Journal articles on the topic '180105 Commercial and Contract Law'
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1
Mitchell, Catherine. "Narrativising contract law." Legal Studies 29, no. 1 (March 2009): 19–46. http://dx.doi.org/10.1111/j.1748-121x.2008.00109.x.
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Socio-legal scholarship in contract maintains that the classical law is ineffective in regulating commercial agreements, and that the law should be more attentive to the role played by relational norms of cooperation and implicit understandings in business dealings. This paper explores the extent to which the parties' own narratives about their business relationship, as presented to a judge through testimony, can be both a source of information to judges about how business is conducted and a corrective to the classical contract law mindset, which favours the operation of individualist over cooperative norms in the resolution of commercial disputes. The paper examines a body of ‘law and narrative’ scholarship which underlines narrative's power to subvert traditional legal norms. It also considers some of the difficulties with relying on party narratives as evidence of the implicit dimensions of commercial agreements, but concludes that such narratives may have a role to play in the development of a more relationally constituted contract law and are thus worthy of closer scrutiny.
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Cauffman, Caroline. "Book Review: Commercial Contract Law: Transatlantic Perspectives." Maastricht Journal of European and Comparative Law 21, no. 1 (March 2014): 221–22. http://dx.doi.org/10.1177/1023263x1402100112.
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Benson, Bruce L. "Customary law as a social contract: International commercial law." Constitutional Political Economy 3, no. 1 (December 1992): 1–27. http://dx.doi.org/10.1007/bf02393230.
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Cimino, Chapin F. "The Relational Economics of Commercial Contract." Texas A&M Law Review 3, no. 1 (September 2015): 91–130. http://dx.doi.org/10.37419/lr.v3.i1.4.
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Modern contract law scholarship embraces a particularly strange contradiction. On one hand, most legal scholars accept the core insight of what is called relational contract theory: most commercial contracts involve repeat players who seek to maximize wealth while still maintaining cooperative relationships. On the other hand, many of these same contract scholars believe that there is nothing contract law could or should do about it. They contend that contract law and legal theory are better off ignoring this insight, rather than trying to respond to it. This Article brings these disparate lines of contract scholarship together by introducing new information that could dramatically change how legal scholars make sense of relational contract theory. It turns out that while legal scholars have largely discounted the importance of relational contract theory, another community of scholars—working in organizational theory, marketing, and strategic management—have studied, tested, and developed its insights. As a result, they have not only empirically confirmed the presence of relational behaviors in modern contracting, but they have begun to discover the sort of data that might make it possible to better account for the economic effects of relational contracting behavior in both legal theory and contract law doctrine. This literature demonstrates that it is possible to operationalize the insights of relational contract theory in an interdisciplinary way that respects both the need for a methodologically rigorous framework and the complex nature of economic behavior. In this Article, I argue that contract law scholars should set out on that same course.
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Bertino, Lorenzo. "Agency Agreement: From Innominate Contract to the Reference Model of Commercial Distribution Agreements." European Business Law Review 29, Issue 4 (July 1, 2018): 643–69. http://dx.doi.org/10.54648/eulr2018025.
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The purpose of this article is to demonstrate that some Italian rules in relation to the commercial agent also can be applied to the distributor. The few Italian judgements rendered on this matter state that rules governing the commercial agent are not applicable to the distribution contract: this innominate contract could be governed through applying by analogy the regulation of supply contract. This Italian Courts’ point of view could be revised. This analysis is based on an historical approach and on the examination of case law in the German, English and Italian legal systems. The historical analysis demonstrates that Italian legislator has regulated the commercial agent contract as a framework model for all distribution contracts. An analysis of the case law demonstrates that in some legal systems the commercial agent’s regulation can sometimes be applied to the distribution contract.
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Dutu, Adelina-Oana. "Law Governing International Commercial Arbitration." European Journal of Law and Public Administration 8, no. 1 (June 30, 2021): 01–10. http://dx.doi.org/10.18662/eljpa/8.1/143.
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The scope of this article is to identify the law governing the international commercial arbitration by reporting the international and internal regulations. We shall consider the situation of contracting parties selecting the law governing their contract and when the parties have not selected the governing law and decided for arbitration as manner of solving their disputes.
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Bilić, Antun. "Trgovac, poduzetnik i trgovački ugovori." Zbornik Pravnog fakulteta u Zagrebu 72, no. 1-2 (June 1, 2022): 641–72. http://dx.doi.org/10.3935/zpfz.72.12.19.
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The trader and the commercial contract are the basic notions of the commercial law. The trader is defined in various Croatian statutes so many times that it is questionable whether it represents a single notion. Everything is more complicated by the notion of undertaking which is defined in a similar multitude of statutes. Although the legislator is authorized to introduce as many definitions as it wants, the current state of affairs does not contribute to the transparency and legal certainty. The paper tries to establish firm criteria for a possible future systematization. Two models are singled out, based on the criterion whether a trader is considered as such in all legal transactions (an absolute model) or just for the needs of a specific transaction (a functional, transactional model). The chosen model affects the definition of the commercial contract. If the commercial contract begins with an absolute model of a trader, it is advisable that the contract falls within trader’s commercial activity. The Croatian law, however, adopted an asymmetric definition, which requires that the contract falls within the commercial activity of only one of the traders.
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Collins, Hugh. "Formalism and Efficiency: Designing European Commercial Contract Law." European Review of Private Law 8, Issue 1 (March 1, 2000): 211–35. http://dx.doi.org/10.54648/264261.
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Although legal formalism is commonly regarded as desirable for business transactions because it produces certainty of entitlements, this essay argues that the form of calculability required by businesses in fact consists of the protection of expectations. These expectations are themselves grounded in three competing normative contexts: the business relation, the business deal, and the contract. Legal formalism tends to award priority to the contractual normative framework, and can, therefore, defeat business expectations. The merchants' rejection of legal formalism as an unsatisfactory regulatory tool for business transactions is discovered in the operation of the market for the adjudication of commercial disputes. The possibility that common law reasoning is superior to civil law reasoning in managing to avoid the closure of legal formalism is suggested, though it is acknowledged that the virus of legal formalism has penetrated deeply into the operations of common law reasoning as well. The key feature of new private law regulation of commercial contracts at European level must be the production of the capacity to protect business expectation (or calculability) by creating a legal discourse that can simultaneously evaluate the competing normative frameworks of the business relation, the deal, and the contract. This capacity requires the contextualisation of contractual disputes, an ability to differentiate between contexts in the light of custom and usage and the economic interests of the parties, and the power to reformulate regulation in the light of revisions of normative standards in the market. This capacity may also require a post-national legal structure that respects pluralism in regulation of different industrial sectors.
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Rinkes, Jac. "Optional Commercial Contract Law: Global Experiences – European Perspectives." European Journal of Commercial Contract Law 1, no. 4 (October 1, 2009): 184–93. http://dx.doi.org/10.7590/ejccl_2009_04_02.
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Trimarchi, Pietro. "Commercial impracticability in contract law: An economic analysis." International Review of Law and Economics 11, no. 1 (May 1991): 63–82. http://dx.doi.org/10.1016/0144-8188(91)90026-a.
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Fentiman, Richard. "COMMERCIAL EXPECTATIONS AND THE ROME CONVENTION." Cambridge Law Journal 61, no. 1 (March 7, 2002): 1–52. http://dx.doi.org/10.1017/s0008197302381509.
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WHICH law governs a contract where none has been chosen by the parties? The solution lies in Articles 3 and 4 of the 1980 Rome Convention on the Law Applicable to Contractual Obligations. Article 3 allows a court to infer the parties’ intentions from the circumstances. But such intentions must be “real”, not presumed, and in the absence of genuine consent, Article 4 provides that the applicable law is that most closely connected with the contract. Under Article 4(2) this is (in effect) the law in force where the supplier of goods or services is located, or (if relevant) has a branch—for the supplier’s performance is invariably “characteristic” of a contract, in the sense intended by the Convention. But any clarity thereby won is immediately lost because the presumption is rebuttable under Article 4(5) whenever a contract is better connected with another law, exposing Article 4(2) to the risk of constant challenge. The presumption is especially vulnerable because it will so seldom be appropriate to apply the supplier’s law, the law of the place of performance frequently having a stronger claim to govern. Perplexingly, it is a presumption more apt to be rebutted than applied.
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Zhou, Qi. "Limits of mandatory rules in contract law: an example in agency law." Northern Ireland Legal Quarterly 65, no. 4 (February 12, 2019): 357–69. http://dx.doi.org/10.53386/nilq.v65i4.221.
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This paper uses Article 17 of the Commercial Agent (Council Directive) Regulations 1993 as an example to illustrate the regulatory limits of a mandatory rule in contract law. Article 17 aims to protect commercial agents by forcing the principal to a commercial agency contract to make a mandatory end payment to the agent on termination of the contract. This paper argues that Article 17 cannot benefit the commercial agent. Rather, it makes both the agent and the principal worse off. Based on the analysis, the paper provides four general implications for understanding the limits of the mandatory rule in policing abuse of bargaining power. First, the mandatory rule will generate a new compliance cost for the stronger party, who can pass it on to the weaker party. Second, the mandatory rule cannot benefit all of the parties aimed to be protected. It inevitably creates both winners and losers. Third, the mandatory rule cannot be used to force the stronger party to make a direct payment of money to the weaker party. Fourth, the mandatory rule may exacerbate the problem of information asymmetry in a contracting process.
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Drabiak, Katherine, Carole Wegner, Valita Fredland, and Paul R. Helft. "Ethics, Law, and Commercial Surrogacy: A Call for Uniformity." Journal of Law, Medicine & Ethics 35, no. 2 (2007): 300–309. http://dx.doi.org/10.1111/j.1748-720x.2007.00139.x.
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In July of 2005, Indianapolis witnessed streaming headlines in the local newspaper attempting to distill the confusion surrounding the adoption of two premature infants by an adoptive parent. Thirteen articles and opinion pieces introduced the public to a murky legal and ethical transaction. Stating his overwhelming desire to have children, a New Jersey schoolteacher hired the services of a local attorney. The attorney procured a South Carolina woman for a compensated gestational surrogacy contract. Under the contract, the surrogate and the attorney would meet in Indiana to complete the execution of the contract and transfer parental rights via adoption after the birth of the twins.
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Hedley, Steve. "C.I.F. Contract—Commercial Arbitration—Acceptance of Anticipatory Breach." Cambridge Law Journal 55, no. 1 (March 1996): 14–16. http://dx.doi.org/10.1017/s0008197300097634.
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Worthington, Sarah. "Equitable Liens in Commercial Transactions." Cambridge Law Journal 53, no. 2 (July 1994): 263–72. http://dx.doi.org/10.1017/s0008197300099037.
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The law describing vendor's and purchaser's liens over personal property can only be described as baffling: there are cases to “prove” and “disprove” almost any proposition. This uncertainty is surprising. A contract of sale is one of the most basic forms of commercial activity, and an equitable lien would convert a vendor or purchaser into a secured creditor by operation of law. The advantages of such a position are self-evident, yet it remains unacceptably difficult to say when such advantages accrue. Fundamental equitable principles seem to support a simple analysis of vendor's and purchaser's liens which might eliminate some of the current uncertainties. This article describes that analysis. It concludes that one party to a sale contract has a lien over identified sale property whenever, and as soon as, all the contractual obligations assumed by that party have been carried out.
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Karton, Joshua. "The Rise of Sectorally Differentiated Contract Law." AJIL Unbound 111 (2017): 106–11. http://dx.doi.org/10.1017/aju.2017.15.
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This essay identifies an underappreciated side-effect of the increasing influence of industry associations in the development of transnational law. As the law governing commercial contracts harmonizes across territorial boundaries, it will increasingly split along boundaries between industry sectors, a phenomenon I call “sectoral differentiation.” Sectoral differentiation is largely a by-product of the growth of transnational legal orders in an environment where state laws and networks may be unable to keep pace with commercial globalization. Industry associations are not the sole drivers of sectoral differentiation, but their activities often promote it, either directly through rulemaking activities related to their particular industries, or indirectly through influence on treaty drafting and other national and international rulemaking processes.
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Tehrani, Ali Honari. "Stipulation in the International Commercial Contracts." Journal of Politics and Law 9, no. 6 (July 31, 2016): 75. http://dx.doi.org/10.5539/jpl.v9n6p75.
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<p>According to the principle of will power or will dominance and the principle of freedom to contract which have been manifested in the article number ten of the civil code the will power of individuals dominates the regulations of closing a contract and its after effects and the freedom of will power here has gained the acceptance as a principle. By closing a contract by two free wills that contract becomes binding and according to the binding principle or provision in contracts the sides of a contract will be committed to carry out the terms and content which is inserted in a contract unless it becomes terminated with by the volition of the sides of the contract themselves or due to a legal cause. Since according to the principle of freedom to contract its sides can shun from closing any contract which is an obvious violation of law, due to the same reason they can also take into consideration any condition or term which isn’t an obvious violation of law and according to the principle of binding ness of contracts the sides of them and their vicars are bound to execute the conditions which are stated in it. One of the conditions of contracts which can be considered is the condition of stipulation.</p>In the present study in addition to scratch the surface on the subject of stipulation in contracts it is expected that the theoretical aspect of the essence of stipulation gets evident, the view point of Islamic jurisprudence and the legal proceedings become stated and the issue that stipulation is claimable under what conditions and in what manner. By carry out a comparative study we get aware of the views in several legal systems toward stipulation and also its position in the private international law and the latest changes in the domain of stipulation specifically ones which are presented at the international level.
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Abrosimova, Elena A. "Specific Features of Commercial and Contract Law in Latin America." Gosudarstvo i pravo, no. 10 (2022): 184. http://dx.doi.org/10.31857/s102694520017565-2.
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The article analyzes the dualism of private law in Latin America with the examples of civil and commercial codes of individual states of the continent. A specific feature of the legislation governing trade activities is the incorporation of the customs of the indigenous peoples inhabiting the territory of South America into the colonial legal systems of continental Europe, which led to the formation of dualistic principles of trade and contractual regulation. The purpose of this article was to identify the common and distinctive features of contractual regulation of commercial relations in different countries of Central and South America in terms of defining the concept of a contract, the subject of the contract, the procedure for concluding a contract and individual contractual structures. The specificity of the legal regulation of contractual relations in Latin America is analyzed by means of historical, comparative legal research methods and the method of content analysis of the provisions of normative acts. Civil and commercial codes, as well as other regulations of Brazil, Argentina, Chile, Mexico, Peru, Paraguay, Venezuela, Bolivia and a number of other Latin American countries were used as empirical material. The following can be stated as the basic principles on which the Latin American system of Contractual law is built: the autonomy of participants in commercial relations, the social function of the contract and freedom of contract, good faith and equality of the parties in contractual obligations. The dualism of private law in Latin American countries leads to a different understanding of civil law contracts and commercial transactions concluded by participants in trade, which is reflected in the provisions of the civil and commercial codes and the definition of the subject of the contract. Separately, the article discusses the procedure for concluding an agreement through the offer-acceptance structure, as well as in the negotiation process.
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Nwafor, Ndubuisi, Uju Beatrice Obuka, Morning-Glory Nwafor, and Kingsley N. Edeh. "Frustration and Remedies Under the CISG, UNIDROIT Principles and English Law: A Comparative Review." Business Law Review 40, Issue 5 (August 1, 2019): 194–202. http://dx.doi.org/10.54648/bula2019026.
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The doctrine of frustration is one of the most efficient risk sharing mechanisms in a commercial contract under the Contracts for the International Sale of Goods (CISG), Institute for the Unification of Private Law (UNIDROIT) Principles of International Commercial Contract and the English law. This article investigates and comparatively discusses the various remedies that can apply under a frustrated contract.
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Ziegel, Jacob S. "Bora Laskin's Contributions to Commercial, Contract, and Corporate Law." University of Toronto Law Journal 35, no. 4 (1985): 392. http://dx.doi.org/10.2307/825535.
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Resta, Giorgio. "Personal Identity and European Contract Law." European Review of Contract Law 18, no. 3 (September 1, 2022): 205–23. http://dx.doi.org/10.1515/ercl-2022-2046.
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Abstract This paper is aimed at illustrating how the traditional idea of “inalienability” of personality rights has been reshaped and transformed by the increasing commodification of corporeal and incorporeal components of identity. Three different legal regimes have recently emerged in Europe: market-inalienability with regard to body rights; limited inalienability rules with regard to personal data; modified contract law applicable to incorporeal components of identity – such as name or likeness – having commercial value. The objective of this paper is to describe each of these models and provide a contribution both to the theory of inalienability and of contract law.
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Zalesne, Deborah. "Enforcing the Contract at All (Social Costs: The Boundary Between Private Contract Law and the Public Interest." Texas Wesleyan Law Review 11, no. 2 (March 2005): 579–607. http://dx.doi.org/10.37419/twlr.v11.i2.18.
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Using the examples posed by the panelists, this Article explores the limitations on the ability of contract law to deal with the protection of third parties and the public. This limitation is manifested in two distinct ways: (1) Commercial contracts are typically enforced without regard to the negative impact they may have on the public; and (2) although some courts appear willing to stretch the bounds of the law to ensure contracts are enforced in commercial contexts, there has been substantially less motivation to enforce contracts for the public good. Accordingly, Part III will discuss the innovative and flexible nature of the common law of contracts as it applies to protecting commercial interests and players and its concomitant insensitivity toward the public interest. Part IV will address the inadequacy of contract law as a means of protecting public and non-economic interests.
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Merrett, Louise, and Antonia Sommerfeld. "Incentives for Choice of Law and Forum in Commercial Contracts: Predicting the Impact of Brexit." European Review of Private Law 28, Issue 3 (September 1, 2020): 627–63. http://dx.doi.org/10.54648/erpl2020036.
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Looking at the empirical data, English law and England as a forum are currently businesses’ prevailing choice for dispute resolution in international commercial transactions in Europe. This article analyses the factors determining businesses’ choice of contract law and forum in and the underlying mechanisms for businesses’ choices. These findings will be used to analyse what possible effects and consequences Brexit may have for the London commercial courts and the choice of English contract law. Will there be a switch of focus in approaching European commercial contracts and dispute resolution? Or will Brexit impact little on London’s prevailing position in the market for dispute resolution and the choice of English law in international commercial contracts?
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Chongseok Shim. "Legal Characteristics and Applicability of International Commercial Contract to the Common European Contract Law." Journal of International Trade & Commerce 11, no. 4 (August 2015): 373–93. http://dx.doi.org/10.16980/jitc.11.4.201508.373.
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Florea, Dumitriţa, and Narcisa Galeş. "Franchise Contract in International Trade Law." European Journal of Law and Public Administration 9, no. 2 (December 20, 2022): 12–22. http://dx.doi.org/10.18662/eljpa/9.2/178.
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The international contract is of interest to all states because of its value. It represents a way in which international exchanges can be realized, its role in international economic relations giving the parties the opportunity to use the advantages of arbitration and autonomy of will. The main legal instrument used to promote international relations is the contract. Compared to other fields, the legal relationships resulting from contracts are numerous and frequent. International trade contracts are distinguished by certain particularities, because according to their nature, they constitute a form of contracts regarding commercial activity. However, international trade contracts, compared to domestic contracts, do not remain subject to national law and differ from them by the existence of specific elements of internationality. An important moment in the existence of a contract is that of formation. All aspects related to the formation of contractual relations are influenced by the exact knowledge and correct application of the practice of concluding the contract. International trade contracts differ from commercial contracts concluded between participants in domestic trade by means of the extraneous element it contains, an element that, together with the commerciality element, delimits the international trade contract from the other contracts that are regulated by the rules of general law. From the category of contracts that are part of the field of international trade law, the franchise contract has had a rapid evolution, having the ability to adapt and introduce new services, products and techniques to the market, the extent of which has taken over time having practically no tendency to decrease nowadays, more and more merchants end up concluding such contracts. Thus, the franchise contract is both a relatively safe and cheap method of obtaining profit, as well as the most agreeable tool of globalization, attributed to the current consumer society.
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Pedamon, Catherine. "Judicial Interpretation of Commercial Contracts in English and French Law: A Comparative Perspective." European Business Law Review 32, Issue 6 (December 1, 2021): 1093–124. http://dx.doi.org/10.54648/eulr2021040.
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In this paper, I consider whether the recent overhaul of French contract law via ordonnance No 2016-131 of 10 February 2016 has changed the principles of judicial interpretation of commercial contracts, and how these compare with the principles in English law. One of the questions I ask is whether the traditional dichotomy between the French subjective approach and the English objective one has been altered now that the objective principle of interpretation has been incorporated in the Code civil. I explore how both jurisdictions deal with the main aspects of judicial interpretation, such as the nature of the interpretative question and the purpose and scope of contractual interpretation. Similarities emerge that show a rapprochement between these judicial approaches. Naturally, differences persist, which reflect distinct contract law values embedded in each legal order. Even if the ordonnance No 2016-131 has only introduced in appearance small changes to the provisions relating to interpretation, French courts now have the interpretative tools to follow in the footsteps of English courts when interpreting professionally drafted commercial contracts. An emerging coalescence around an objective literal interpretation in a sophisticated business setting is to be welcomed as it enhances commercial certainty across borders. Contractual interpretation, commercial contracts, principles of interpretation, subjective interpretation, objective interpretation, contextualism, textualism, English contract law, French contract law
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McLauchlan, David. "A Conversation about the Contract and Commercial Law Act 2017." Victoria University of Wellington Law Review 50, no. 2 (September 2, 2019): 387. http://dx.doi.org/10.26686/vuwlr.v50i2.5752.
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The Contract and Commercial Law Act 2017 is the first piece of legislation prepared pursuant to the revision powers contained in the Legislation Act 2012 which allow, inter alia, for several Acts to be combined and reworded in accordance with modern language and drafting style. This article, which is written in the form of a conversation between a law student and her contract professor, seeks to evaluate the Act. The tenor of the conversation is that the Act has failed to achieve its primary purpose of making the law more accessible.
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Karton, Joshua. "Contract Law in International Commercial Arbitration: The Case of Suspension of Performance." International and Comparative Law Quarterly 58, no. 4 (October 2009): 863–96. http://dx.doi.org/10.1017/s0020589309001419.
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AbstractDespite much attention to the controversial lex mercatoria, international commercial arbitration remains underanalysed as a venue for contract law unification. This article considers a specific case of substantive contract law in arbitration, the remedy of suspension of performance: When will one party's non-performance enable the other party to withhold performance without terminating the contract? In domestic laws, suspension of performance is governed by clearly-defined doctrines; however, it remains unclear whether it constitutes a general principle of international law. This article places suspension in a comparative context, then analyses the published arbitral awards for indications of arbitrators' preferences.
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Bartis, Előd. "A megbízási szerződés szabályozásának történeti vázlata Romániában." Erdélyi Jogélet 3, no. 1 (October 27, 2020): 5–22. http://dx.doi.org/10.47745/erjog.2020.01.01.
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The study constitutes a brief historical overview of the development of the contract of mandate, as regulated in Romanian law. Firstly, the roots of this contract in antiquity and in Roman law are discussed, and the evolution of its major characteristics are revealed. Subsequently, the author presents the regulations applicable to the contract of mandate under the first modern codifications of Romanian civil law in the Calimach and Caragea codes, the Commercial Code of Wallachia of 1840, the Romanian Civil code of 1864, the Commercial Code of 1887, and the Civil Code of 2009, currently in force. The author presents the major historic evolutions of the Romanian regulation pertinent to the nature of the contract, the parties, their remuneration, the effects of the contract inter partes and towards third persons as well as the changes in regulatory logic from the differentiation of commercial and civil mandate to the unification of the two institutions in the Civil Code of 2009.
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Hutabarat, Samuel. "HARMONISASI HUKUM KONTRAK DAN DAMPAKNYA PADA HUKUM KONTRAK INDONESIA." Veritas et Justitia 2, no. 1 (June 21, 2016): 112. http://dx.doi.org/10.25123/vej.2068.
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<p><em>International commercial contracts are contracts closed by parties coming from different countries or made under “foreign” legal systems. Parties may have different understandings about how to read the contract and therefore it is of importance to include in the contract a provision on settlement of disputes containing choice of forum and/or choice of law. A different way to prevent conflicts and disputes stemming from the interpretation and implementation of international commercial contracts is by way of harmonization of national contract laws. Indonesia as an active member of the international (commercial) community should take the initiative to do so. In other words, revision of the existing Indonesian contract law is much needed.</em></p><p> </p><p align="right"><strong><em>Keywords</em></strong><strong><em>: </em></strong></p><em>contract, harmonize, international commercial contract</em>
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Rosengren, Jonas. "Contract Interpretation in International Arbitration." Journal of International Arbitration 30, Issue 1 (February 1, 2013): 1–16. http://dx.doi.org/10.54648/joia2013001.
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The diverging approaches to contract interpretation in different legal systems often emerge in international commercial arbitrations. The differences may concern not only the methods for ascertaining the parties' intention or the evidence considered in this process but also the interplay between interpretation and legal rules or doctrines. This article seeks to go beyond the rhetorical statements about contract interpretation and identify some differences in approach, examine their possible implications and discuss the extent to which contract interpretation is controlled by legal rules. This article also considers relevant transnational law and discusses how parties may argue matters relating to contract interpretation in international arbitrations.
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Slakoper, Zvonimir. "Hijerarhija izvora prava trgovačkih ugovora u hrvatskom pravu." Zbornik Pravnog fakulteta u Zagrebu 72, no. 1-2 (June 1, 2022): 401–20. http://dx.doi.org/10.3935/zpfz.72.12.12.
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Sources of law in commercial contracts are of importance because rights and obligations of contractual parties are derived from such sources. Sources of law are regularly considered to be legal acts, customs and case law. However, due to their flexibility and the freedom of contract, autonomous commercial law stands out as a source of law in commercial contracts. Such autonomous commercial law, in addition to the will of the parties, includes customs, codified customs, practice established between the parties, the general terms of contract and various commercial clauses and terms. This paper compares and analyses in detail the individual sources of law in commercial contracts. Such sources are also systematized and divided into those that are applied because they were contracted by the parties, and those that are applied even though the parties did not agree on their application. Ultimately, the paper elaborates especially on the court and arbitration practice as well as legal science as sources of law.
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Murata, Toshikazu. "Is the “Insurance Contract Law” grouped into the “Commercial Law” or the “Civil Law” ?" Hokengakuzasshi (JOURNAL of INSURANCE SCIENCE), no. 596 (2007): 133–52. http://dx.doi.org/10.5609/jsis.2007.596_133.
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Håstad, Torgny. "Modification Due to Unreasonableness in Nordic Commercial Contract Law (Sweden)." European Review of Private Law 28, Issue 3 (September 1, 2020): 577–83. http://dx.doi.org/10.54648/erpl2020034.
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Swedish as well as Danish, Norwegian and Finnish law had between 1936 and 1976 an Article 8 in their joint Promissory Notes (Debt Instruments) Act providing that obviously unconscionable terms could be modified. This article was in some cases, but very restrictively, applied by analogy. Courts had however other means to take reasonableness into regard. This contribution discusses these other means and the application of article 36 of the Contracts Act in force since 1976.
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IKONOMI, Ergysa, and Jonada ZYBERAJ. "THE CONTRACTUAL RIGHT TO WITHDRAW: COPYRIGHT CONTRACT V COMMERCIAL CONTRACT." Balkan Social Science Review 19, no. 19 (2022): 123–37. http://dx.doi.org/10.46763/bssr2219123i.
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Al Amaren, Emad Mohammad, and Rachma Indriyani. "APPRAISING THE LAW OF WILLS IN A CONTRACT." Hang Tuah Law Journal 3, no. 1 (May 20, 2019): 46. http://dx.doi.org/10.30649/htlj.v3i1.107.
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<p>Contracts play a significant role in both economic and commercial transactions, whether internal contract within a national legal system of a State or contract with international nature due to there is more than one legal system would be involved. As a tool that runs international trade and a means of economic exchanges across the border, it can not be denied that many practitioners have high stakes and interest through a contract. The internationality of the contract may impose its subordination to a law other than the law of the judge, and may be subjected to the international substantive rules represented in the most common rules of international law or common principles of international trade rules. Therefore, the definition of the concept of an international contract is a critical issue for the consequences of this limitation. Therefore, the appraisal between domestic and international contract is crucial to do as well as the role of the will in internationalizing the contract.</p>
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Belousov, V. N. "Contract of a Commercial Concession in Russian Law: Issues of Theory and Practice." Siberian Law Herald 1 (2021): 31–37. http://dx.doi.org/10.26516/2071-8136.2021.1.31.
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The article is devoted to the analysis and resolution of problems arising during the conclusion and execution of a commercial concession agreement. The article substantiates the consideration of a commercial concession agreement as an independent type of civil contract. The criterion for the independence of this type of agreement is the presence of its own subject matter (the rightholder performing actions to grant the user the right to use a set of exclusive rights), as well as othertractors are differentiated. It is concluded that quality control of goods (works, services) produced (performed, rendered) by the user must be considered as a duty of the copyright holder, which cannot be excluded by agreement of the parties. The reasons for the absence of the legal obligation of the copyright holder to offer the user to conclude a contract for a new term are established. Special rules on termination of a commercial concession agreement are studied. The cases for motivated and unmotivated unilateral refusal of the contract are named. Specific proposals have been developed to improve the rules on a commercial concession agreement.
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Abdussalam, Moshood. "Recalibrating the governance of remedial clauses in contract law." Northern Ireland Legal Quarterly 71, no. 3 (November 5, 2020): 429–55. http://dx.doi.org/10.53386/nilq.v71i3.282.
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Yawning gaps in bargaining powers between transacting parties have always been a source of concern in commercial relations and the legal governance of such relations. In modern times, the likely implications of gaps in bargaining powers are not only palpable as it concerns the affairs of transacting parties with weaker bargaining powers, but also on the welfare of society, at large. That is particularly so in this milieu of pervasive oligopolistic market structures, organised commercial networks, digitisation, and big data. The imperative to guard against the use of contractually agreed remedial clauses to consolidate market power and as tools for wealth extraction is the concern of this article. To this end, this article makes a case for a recalibration of the rule against penalties in contract law.
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Schurr, Francesco A. "The Relevance of the European Consumer Protection Law for the Development of the European Contract Law." Victoria University of Wellington Law Review 38, no. 1 (March 1, 2007): 131. http://dx.doi.org/10.26686/vuwlr.v38i1.5660.
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This paper deals with the interaction of consumer law and contract law in the European Union. Over the last two decades the European legislature has adopted many legislative measures in the field of consumer protection that were designed to strengthen the single market and to avoid distortion of competition. Thus the European legislature tried to approximate or harmonise consumer protection standards within the European Community and consequently created a new layer of supranational contract law which now coexists with the traditional national contract law regimes. The paper assesses the various types of contract law on the international, supranational and national levels and discusses the problems arising from the fact that the contract law in the European Community is so diverse. Directive 2005/29/EC on Unfair Business-to-Consumer Commercial Practices is discussed as a very prominent recent product of European Community consumer legislation. The paper points out how the development of European consumer law serves as a catalyst for the further development of a genuine European contract law.
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Зайцев, О. Л., and С. В. Ясечко. "Contract for Public Procurement in Terms of Private Law." Law and Safety 80, no. 1 (March 19, 2021): 139–43. http://dx.doi.org/10.32631/pb.2021.1.19.
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The authors have analyzed the way of the origin and consolidation of the public procurement procedure in the Ukrainian national law from 1993 till the present day. That allowed us to determine the main conditions of public procurement, which have not changed during the whole period of existence of the independent legal system of Ukraine, and to critically evaluate them. Namely, the basis for payment is a report on the results of public procurement during the procurement of goods, works or services, and the cost of procurement should have been equal to or have exceeded the amount of UAH 200,000.
The main scientific works focused on the consideration of public procurement issues in various branches of Ukrainian law have been summarized. The concept of the contract for procurement has been generalized and its features have been listed: the contract for procurement is an agreement between the customer and the participant (most of the parties), aimed at establishing, transferring or terminating property rights and obligations, which is concluded as a result of the procurement procedure and which provides the acquisition of freehold interest in the property, provision of services or performance of works. The main conceptual contradictions between the contract for procurement, the civil contract and the commercial agreement have been established and characterized. Based on the analysis of tender, civil and commercial legislation, the authors have carried out a critical analysis of the contract for procurement in terms of understanding and essential terms of the general civil contract, namely: violation of the concept of free agreement between the parties, non-compliance with equality of the rights, unreasonable narrowing of the contract for procurement up to the provision of services, performance of works or acquisition of ownership for goods, which contradicts the draft contract included in the tender documentation, the impossibility of reducing the contract price in the direction of reduction as agreed by the parties, the lack of electronic form of the contract for procurement provided by the tender legislation.
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Moinfar, Somaye, Masoumeh Esmaeeli, Elham Taghizadeh, and Hossein Hassani. "Bank Guarantees in Iranian Law." Journal of Politics and Law 9, no. 2 (March 31, 2016): 181. http://dx.doi.org/10.5539/jpl.v9n2p181.
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<p>This paper aims at investigating bank guarantees in <em>Iranian law</em> and exploring new and different bases for the nature of bank <em>guarantees</em> that create liabilities and make accepting this legal action simpler for community members. In other words, we have been in a position to answer these questions: What is the nature of bank g<em>uarantees</em>? In other words, do bank g<em>uarantees </em>include <em>civil or </em>commercial guarantees? Finally, according to the proposed principles and introduced ideas, it seems that bank guarantees cannot act as a Civil or Commercial <em>Guarantee.</em> It should also be acknowledged that bank guarantee letter<em> </em>is an innovative financial tool that is very important in commercial contracts and in particular international contracts, because they minimize economic risk of the contract and are strong executive guaranty. In general, no contract can be executed or take effect without bank guarantees and insurance.</p>
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Poncibò, Cristina. "A contract law for future generations." Revija Kopaonicke skole prirodnog prava 2, no. 2 (2020): 35–56. http://dx.doi.org/10.5937/rkspp2002035p.
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While attention for the social and environmental impacts of international business is certainly not new, the past years have seen renewed interest due pressing global problems such as climate change, poverty, and human rights violations. Multinational enterprises (MNEs) are increasingly called upon to play an active role and thus contribute to a more sustainable development. Interestingly, legal scholars are studying how MNEs are adopting codes of conduct advancing sustainable development goals to rule their commercial relationships with their suppliers in global supply chains. Some of these goals are incorporated in contractual terms when the company insert sustainability contractual clauses in international supply agreements. These contractual provisions dealing with public values represent "irritant clauses" for contract theory and pose some challenging questions to contract law scholars. The article considers, in particular, the following research questions: firstly, are these contractual provisions binding and enforceable by the parties or by a third party to the contract? Secondly, are they really "part of the contract" or do they play many functions? Thirdly, do they have an impact in advancing sustainability goals? Finally, the case of sustainability contractual clauses confirms that a new, specifically intergenerational, contract theory is needed.
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Al-Amaren, Emad Mohammed. "THE INTERNATIONALIZATION OF THE INTERNATIONAL CONTRACT ACCORDING TO INTERNATIONAL THEORIES AND CONVENTIONS." Yustisia Jurnal Hukum 7, no. 3 (December 31, 2018): 428. http://dx.doi.org/10.20961/yustisia.v7i3.26196.
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<p>The contract generally means the consent of two wills to make a particular legal effect of giving or doing work or abstaining from work in return for material or in-kind compensation. As for the commercial nature of the contract, in the Jordanian civil law, the contract is considered commercial if it is included in the business stipulated in Article 6 of the Jordanian Trade Law. A contract is commercial if its subject matter is one of the acts provided for in article 6 of the Trade Law, as is the case with the purchase of movables for the purpose of selling them, and the agency commission and brokerage. On the international level, the commercial character of the contract comes closest to the extent to which the contract relates to international trade as the export or import of goods that regulate the movement of goods across the borders of one State. After the good study of the subject, we find that there are a number of questions or problems that accompany the determination of the internationality of the contract, including the extant of adequacy of the personal internationality, in addition to, whether the introduction of the purely national relationship to the jurisdiction of the foreign country lead to the internationalization of the relationship. The study will deal with international standards of the contract in different international theories and conventions. I will discuss the legal and economic standard in section I, the mixed standard in section II and the standards of the internationality of the contract in accordance to international conventions, especially the Vienna Conventions, The Hague Convention, the Rome Convention and the International Convention on International Arbitration in Section III.</p>
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Richardson, Lorna. "Commercial Common Sense Again: What Role in Contract Interpretation?" Edinburgh Law Review 25, no. 1 (January 2021): 89–94. http://dx.doi.org/10.3366/elr.2021.0674.
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Malacka, Michal. "General commercial terms and standard-form contracts in international business relations." Bratislava Law Review 2, no. 2 (December 31, 2018): 30–47. http://dx.doi.org/10.46282/blr.2018.2.2.102.
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The present paper discusses the importance of general commercial terms and business conditions as basis for the conclusion of commercial contracts. The paper describes the historical development of general commercial terms and the increasing importance of individually stipulated standard-form contracts as well as the influence of both legal sources on the contract practice in international trade. The notion “general commercial terms” (abbr. GCT) designates proposals for standard contracts as produced in many cases by neutral experts of national and international organizations, whereas the notions “terms of business” or “general terms of business” refer to standardform contracts which one party to a contract or both submit and which are accepted by the parties as basis of their negotiations. Subsequently, the advantages and disadvantages associated with the use of general commercial terms on the one hand, and individually negotiated terms of business on the other will be identified. The paper also distinguishes general contract conditions according to their types and formations, both from the point of view of international law and with regard to Czech statute law, as it is established mainly in the Civil Code. However, this paper does not only present the legal issues affiliated with the employment of general commercial terms and “parties’ terms of business”, it also focuses on the economic aspects of the use of established contract forms and conditions. Likewise, the paper is working out the areas where general commercial terms are applied in international trade and it points at important international organizations that work with, or contribute to, general commercial terms, such as the International Chamber of Commerce (ICC), the Institute for the Unification of Private Law (UNIDROIT), and the United Nations Commission on International Trade Law (UNCITRAL) etc. Thus, the work shall demonstrate the importance and indispensability of general contract terms and individually submitted and negotiated terms of business in the trade of goods, whether international or national.
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Kovac, Mitja. "Frustration of purpose and the French Contract Law reform." Maastricht Journal of European and Comparative Law 25, no. 3 (June 2018): 288–309. http://dx.doi.org/10.1177/1023263x18781190.
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Frustration of purpose remains one of the most ill-defined concepts in the English law of contracts. The same problem has also recently attracted the attention of the French legislature in its modernization of the Code Civil. The French reform entitles courts with broad powers to adjust the contract when unforeseen contingencies have made the bargain unduly costly. This article argues that the introduction of an economically inspired adjustment rule in English contract law should be re-considered to maintain its current superior commercial position. If implemented, then the ‘ex ante division of surplus’ should be the governing principle in adjusting contract price, because such a remedy will not affect the agreed-upon division of the surplus. Moreover, this paper suggests that the recent French reform is indeed a long-awaited step toward a more effective regulation of the notorious ‘unforeseen contingencies’ phenomena, but also suggests that further improvements might be needed. Furthermore, it offers a set of arguments suggesting that the English law in its current form might still be the preferred option in the world of international business transactions. The international commercial attractiveness of English contract law, although being challenged by the new French Civil Code, remains undisputed.
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Kykot, P. "Subject of the agreement on the transfer of rights to use intellectual property objects in business." Uzhhorod National University Herald. Series: Law 1, no. 73 (December 9, 2022): 129–33. http://dx.doi.org/10.24144/2307-3322.2022.73.21.
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The article examines the issue of defining the subject of a business contract in general and the problem of the subject of a contract on the transfer of rights to use intellectual property objects in entrepreneurship in particular.
It is proven that the science of economic law defines a complex subject of a business contract, this subject includes two levels. The first level is the main action aimed at achieving the purpose of the contract. The second level is the object in relation to which this action is performed.
It was found that in the norms of the Economic Code of Ukraine and the Civil Code of Ukraine, the subject of a commercial concession contract is not defined in the same way; The Commercial Code of Ukraine does not contain a specific norm regarding the subject of this contract and defines its object more broadly than the Civil Code of Ukraine. The law defines the right to use objects of intellectual property rights, commercial experience and business reputation as the subject of a commercial concession contract.
It has been proven that the subject of the commercial concession contract is complex. At the primary level, an element of the subject matter of a commercial concession agreement is the right holder's actions, which are aimed at granting the user the right to use intellectual property rights belonging to the right holder in his business activity. At the second level, the subject of the commercial concession agreement includes the right to use the object of intellectual property rights, which the right holder grants to the user and this specific object of intellectual property.
An object of intellectual property becomes the subject of a commercial concession contract due to its turnover capacity. Its marketability is manifested in the consumer value and exchange value of the object of intellectual property (private component), as well as in the presence of a legally defined legal regime of objects of intellectual property, which establishes the rules for the alienation of such objects, their circulation in commodity circulation, which ensures balance of private and public interests (public component).
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Liu, Qiao. "COVID-19 in Civil or Commercial Disputes: First Responses from Chinese Courts." Chinese Journal of Comparative Law 8, no. 2 (August 30, 2020): 485–501. http://dx.doi.org/10.1093/cjcl/cxaa023.
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Abstract This comment highlights the major civil or commercial (mostly contract) law provisions in 24 judicial documents newly released by the Supreme People’s Court or High People’s Courts in China in response to the outbreak of COVID-19 and assesses the significance of key changes to the pre-pandemic law. It concludes by noting the increased role of the doctrine of the change of circumstances and the ‘contract purpose’ test, the emphasis placed on consensual solutions (by way of mediation and contract renegotiation), and the flexibility and relatively clearer guidance afforded to lower courts in their adjudication of disputes arising in connection with COVID-19.
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Kanning, Arnald J. "Unification of Commercial Contract Law: The Role of the Dominant Economy." Rabels Zeitschrift für ausländisches und internationales Privatrecht 85, no. 2 (2021): 326. http://dx.doi.org/10.1628/rabelsz-2021-0003.
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김정후. "Development of the Law of Contract and Expansion of Commercial Contracts." kangwon Law Review 28, no. ll (June 2009): 1–23. http://dx.doi.org/10.18215/kwlr.2009.28..1.
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