Journal articles on the topic 'Comparative law of contracts'
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1
Rösler, Hannes. "Hardship in German Codified Private Law – In Comparative Perspective to English, French and International Contract Law." European Review of Private Law 15, Issue 4 (August 1, 2007): 483–513. http://dx.doi.org/10.54648/erpl2007028.
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Abstract: This article analyzes the German, English and French law if and how contracts can be terminated or amended in response to unforeseen events. In addition, it describes the solutions in the UN Convention on Contracts for the International Sale of Goods (CISG), the Principles of European Contract Law (PECL) and the UNIDROIT Principles on International Commercial Contracts. The starting point of this article is German law with its doctrine of Störung der Geschäftsgrundlage established by the courts in the 1920’s and recently codified in § 313 BGB. The new provision requires a fundamental change in circumstances upon which a contract was based and that it is unreasonable to hold the party bound to its (unchanged) duty. The article then stresses some parallels to the English frustration law, though English Courts have no power to revise the contract, whereas this is the primary remedy in German law. Taking French law into account, which still rejects the concept of imprévision, English law is thus placed between the Germanic and Romanic legal solutions. French law only knows force majeure which officially results in tout ou rien, though there is some trend towards accepting an obligation de renégociation. While article 79 (1) CISG is not dealing with the change of fundamental circumstances or the adjustment of contracts, article 6:111 PECL and articles 6.2.1 to 6.2.3 UNIDROIT Principles provide for this. The fact that they do not just allow for a termination of the contract, but also its juridical adaptation to restore the equilibrium is a trend that should be welcomed from the perspective of European and international contract law. Résumé: Cet article analyse au niveau des droits allemand, anglais et français la question de la résiliation ou de la modification des contrats suite à des évènements imprévus. De plus, il décrit les solutions de la Convention des Nations Unies sur les Contrats de Vente Internationale de Marchandises (CVIM), des Principes de droit européen des contrats (PECL) et des Principes UNIDROIT relatifs aux contrats du commerce international. Le point de départ de cet article est le droit allemand et sa doctrine de Störung der Geschäftsgrundlage [see above]. instauré par les tribunaux dans les années 1920 et codifié récemment par le § 313 BGB. Cette nouvelle disposition requiert deux conditions: un changement important des circonstances à la base du contrat et qu’il ne soit pas équitable d’exiger l’exécution par la partie de son obligation contractuelle (non modifiée). Des parallèles sont ensuite tracés avec le droit anglais de l’impossibilité d’exécution, et ce bien que les tribunaux anglais n’aient pas le pouvoir de modifier le contrat alors que c’est le recours principal du droit allemand. Au vu du droit français, qui rejette encore le concept d’imprévision, le droit anglais est donc situé entre les solutions germaniques et romanes. Le droit français connaît uniquement la force majeure qui se solde officiellement par tout ou rien, bien qu’il existe une certaine tendance vers l’acceptation d’une obligation de renégociation. Alors que l’article 79 (1) CVIM ne concerne par le changement des circonstances à la base du contrat ou la modification des contrats, l’article 6:111 PECL et les articles 6.2.1 à 6&peri
2
Urazbaevna, Tulepova Zulfiya. "THE COMPARATIVE ANALYSIS OF CONTRACTS AND DEALS IN THE CIVIL LAW OF UZBEKISTAN." American Journal Of Philological Sciences 03, no. 03 (March 1, 2023): 39–42. http://dx.doi.org/10.37547/ajps/volume03issue03-07.
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The article deals with the concepts of contracts and deals in the Civil Code of the republic of Uzbekistan. Mainly, the research concerns the types of contracts and deals and citizens' rights and duties. In addition, the research is based on the comparative-legal analysis of contract and deals in the Civil Code of the republic of Uzbekistan. Therefore, the article presents similarities and differences between contracts and deals.
3
Ong, Jason Pratama. "The Enforceability of Digital Contract: A Comparative Analysis on Indonesia and New Zealand Law." Lawpreneurship Journal 1, no. 1 (March 3, 2021): 30–42. http://dx.doi.org/10.21632/tlj.1.1.30-42.
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The age of digitalization has impacted paper contracts as it is being replaced by digital contracts. Therefore, not understanding the different interpretation of digital contracts in both countries could result in a flawed contract. A flawed contract could make it difficult and confusing for the party concerned to meet their end which could lead to a breach of contract. The injured party would then demand damages, specific performance, cancellation, or restitution. This paper intends to provide a comparative analysis and explanation about the enforceability of digital contracts within the New Zealand and Indonesian contract law. The research method used in this paper is normative legal research with comparative legal research. New Zealand and Indonesian law have some similarities but there are differences that still need to be considered in order to ensure the enforceability of digital contracts.
4
Eller, Klaas Hendrik. "Comparative Genealogies of “Contract and Society”." German Law Journal 21, no. 7 (October 2020): 1393–410. http://dx.doi.org/10.1017/glj.2020.84.
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AbstractSince contracts form a basic institution of every legal order, the interdisciplinary orientation of concepts of contracts reveals socio-legal inclinations of a legal order more broadly. Contrasting the UK and US Common Law of contracts with developments under German law, this Article examines the relation between normative and social science approaches, notably rooted in economics, economic sociology, and social theory in the genealogy of contract law. A shared leitmotif over the 20th century has been the drive to account for the societal embeddedness of contract. However, conceptualizations of “Contract and Society” differ considerably between legal orders in their disciplinary ingredients and design. In the US, and to a lesser extent also in the UK, the rather continuous reception of legal realism has paved the way for broad interdisciplinary perspectives on contract law, ranging from classical socio-legal, empirical work (e.g., Macaulay), economics (e.g., Williamson), sociology (e.g., Powell), and critical theory (e.g., Kennedy) to today’s landscape, where essentially instrumental and ideal-normative theories compete. Alternatively, in Germany, where the realist heritage was more ephemeral, the transformations of contract law were processed from within legal discourse and foremost in their effects on private autonomy as conceptualized, for example, in German idealism, discourse theory and critical theory. Similarly, the “constitutionalization” of contract law—even if championed for fostering private law’s reflexivity—has, for the most part, defied a socio-legal orientation. Finally, the Article highlights the path dependencies with which these different starting points translate in current debates around the role of contract in transnational governance.
5
Liçenji, Anjeza, and Vitiana Pitaku. "A Comparative Analysis of Donation Contract in Albanian and Italian Contract Law." European Journal of Economics, Law and Social Sciences 8, no. 2 (June 1, 2024): 40–47. http://dx.doi.org/10.2478/ejels-2024-0008.
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Abstract The donation contract, as delineated in the Albanian Civil Code, symbolizes the altruistic and compassionate ethos upon which is founded. Its primary aim is to embody acts of generosity and selflessness, reflecting the donor’s relinquishment of ownership for the benefit of the recipient. The motivation behind entering this legal relationship is rooted in the donor’s desire to enhance the recipient’s assets, a sentiment essential for the contract’s efficacy. The transition in Albania’s political landscape has brought forth a new legislative ethos, prompting adaptations to legal provisions in alignment with contemporary requirements. As property relations evolve, influenced by political and historical shifts, so too does the donation contract. Addressing the challenges encountered in donation contracts, Albanian legal scholars have sought solutions that align with evolving social dynamics. While current legislation offers broader provisions for donation contracts compared to previous iterations, ambiguities persist. Thus, there’s a recognized need for enhancements and clarifications, achieved through comparative analysis of Albanian and Italian legislation on donations. This comparison aims to elucidate critical yet ambiguous aspects of donation contracts for readers and scholars. One such issue pertains to categorizing donations accurately, determining whether they stem from unilateral acts or real contracts. The Civil Code unequivocally designates donation as a contractual arrangement. Regarding the grounds for revoking donation contracts, Albanian law delineates only two cases wherein donors can revoke donations, in contrast to Italian law, which affords donors this right in numerous circumstances. Italian jurisprudence and the previous Albanian Civil Code, unlike the current one, recognize another ground for revocation: the birth of the donor’s children. This provision aims to safeguard donors who, had they known about impending births at the time of donation, might have reconsidered their decision.
6
Štemberger Brizani, Katja. "Changed Circumstances and Concession Contracts: Slovenian Law in a Comparative Perspective." Anali Pravnog fakulteta u Beogradu 71, no. 4 (December 20, 2023): 669–94. http://dx.doi.org/10.51204/anali_pfbu_23402a.
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In Slovenian law concession contracts are subject to both the public law and private law regime of changed circumstances. The former applies only to certain concession contracts, while others are subject to the general rules of the law of obligations. However, these rules are not adapted to features of concession contracts as they only give the affected party the right to request the rescission of the contract, but not its modification, unless otherwise agreed in the contract. This is not in line with the principle of continuity of public service and the protection of the public interest. In addition, the private law regime is not adapted to the concession award procedure, as it allows only reference to changes in circumstances that occur after the contract is concluded, but not after the binding tender is submitted, meaning that the tenderer bears a disproportionately higher burden of the risk than the grantor.
7
Shhadah Alhussein, Hussein, Zlatan Meskic, and Ahmad Al-Rushoud. "Sustainability and Challenges of Arbitration in Administrative Contracts: the Concept and Approach in Saudi and Comparative Law." Access to Justice in Eastern Europe 6, no. 5 (April 5, 2023): 1–14. http://dx.doi.org/10.33327/ajee-18-6s004.
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Background. The arbitrability of administrative contracts contributes to sustainable dispute resolution within the United Nations’ Sustainable Development Goals 16 (SDG 16). However, different regulation of administrative contracts in comparative law affects the arbitrability of the disputes arising out of them. The question arises – is protection deserved if an administrative contract containing an arbitration clause concluded in violation of the administrative law of the governmental body or without a special approval is invalid, unenforceable, or if the company was unaware of such a requirement? This paper analyses the concept of an administrative contract and its arbitrability in Saudi Arabia and comparative law to provide for sustainable solutions. Methods. The analysis of the applicable arbitration and administrative laws and rules is conducted with the normative method to establish the arbitrability of the disputes arising out of administrative contracts and the concept of the administrative contract. The case analysis reveals if the legislative approach causes difficulties in practice. The dogmatic method is applied to link the reasons for legislative and case law development to the current normative solutions in comparative and Saudi law. The conclusions on the existing problems and possible solutions shall be based on the analytical method. Results and Conclusions. Government contracts are of great importance and their exclusion from arbitration contradicts the set goal of sustainable dispute resolution mechanism. Differences in comparative law in terms of the notion of the administrative contract and the arbitrability may diminish the positive effects of arbitration in administrative contracts, as they may endanger equal access to dispute resolution as part of the sustainable development goals, be enforceable, or even cause discrepancies between states that annul the arbitration awards and others that still enforce the awards despite their annulment.
8
Herbots, Jacques. "Un aperçu du droit chinois des contrats." European Review of Private Law 18, Issue 5 (October 1, 2010): 915–38. http://dx.doi.org/10.54648/erpl2010070.
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Abstract: This essay presents the current situation of Contract Law in the People’s Republic of China. First, it demonstrates why, before the end of the Qing Dynasty, no Chinese statute on contracts existed. It then sketches the introduction of a Civil Code in the Kuomintang period, as well as the situation in the first decades of the People’s Republic and the genesis of the Contract Act of 15 March 1999. This Act, in anticipation of a Civil Code, encompasses common Contract Law. It consists of two parts: the provisions on contractual obligations on the one hand and those on specific contracts on the other. This essay briefly deals with a number of important notions (such as the freedom of contract, good faith, public policy, nullities, rescission, force majeure, etc.). This indicates that Contract Law in China belongs to the German Legal Family, with some inroads of international uniform law. The paper devotes some attention to the problem of translation into Chinese of Western legal notions. The Common Law has had virtually no influence on the Law of 15 March 1999. Comparative law teaches us that we therefore should be cautious with English language treatises on the Chinese Act. Finally, the paper suggests that the ideology of the Chinese Communist Party, and possibly also Confucian doctrine, may provide the law of contracts with an autonomous character. Résumé: Cet article porte sur le droit des contrats de la République Populaire de Chine, offrant tout d’abord une perspective historique précédant la genèse de la Loi sur les contrats de 1999. Sont passées en revue des notions juridiques centrales telles que la liberté contractuelle, la bonne foi, l’ordre public, les nullités, et la force majeure. L’auteur constate que le droit des contrats chinois puise son inspiration dans la tradition juridique allemande, le droit anglo-américain n’ayant que peu d’influence.
9
van Deventer, Sanmarie. "Problems relating to the formation of online contracts: A comparative perspective." South African Law Journal 139, no. 1 (2022): 32–77. http://dx.doi.org/10.47348/salj/v139/i1a2.
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The formation of online contracts has enjoyed considerable judicial and academic attention in American law. Generally, American courts are of the view that the rise of online contracts has not necessitated any changes to the fundamental principles of the law of contract, although commentators argue that the enforcement of online contracts has stretched the requirement of mutual assent beyond recognition. This article engages in a comparative evaluation of these arguments, as well as some proposals contained in the American Law Institute’s Draft Restatement of the Law, Consumer Contracts. Ultimately, the aim is to identify whether the principles regarding the formation of contracts in South African law ought to be adapted or supplemented to accommodate online contracts. It is found that both legal systems subscribe to fairly lenient formation requirements. The possibility of recognising more stringent assent-related requirements, such as imposing specific disclosure requirements, is investigated. It is concluded that there is little to be gained by insisting on stricter formation requirements for online contracts in general, because consumers rationally choose not to read these contracts. Instead, recognising these concerns may provide the impetus for increased reliance on other forms of control, most notably regulating the use of certain problematic standard terms.
10
Demark, Armando, and Josip Dešić. "PRIVIDNI UGOVORI IZMEĐU NIŠTETNOSTI I NEPOSTOJANJA." Pravni vjesnik 39, no. 3-4 (December 2023): 7–29. http://dx.doi.org/10.25234/pv/25648.
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In this paper, the authors discuss apparent contracts as regulated by Article 285 paragraph 1 of the Croatian Civil Obligations Act as a cause of either the nullity or the inexistence of the contract. In several recent decisions of the Supreme Court of the Republic of Croatia, one can notice the standpoint that apparent contracts are not null contracts, but inexistent contracts. The aforementioned standpoint resulted in the rejection of many claims for the determination of nullity of apparent contracts. Therefore, in the first part of the paper, the authors analyze the subject case-law, as well as apparent contracts in Croatian and comparative law. At the same time, inexistent contracts have been the subject of discussion exclusively from the point of view of legal theory. The second part of the paper is consequently focused on the analysis of inexistent contracts, their practical value and their comparison to null contracts. The authors also give specific attention to the difference between the moment of entering into a contract and the creation of the contract’s legal effects, as well as the need for the differentiation between legal consequences of contracts that are not formed, contracts that are not entered into, contracts that do not produce legal effects and contracts that are explicitly null. In the conclusion, the authors discuss the practical necessity of distinguishing null and inexistent contracts and propose de lege ferenda suggestions for normative improvement of the Civil Obligations Act in the part that pertains to contracts with no legal effect.
11
Azab, Rania S. "Interpreting digital licensing contracts between a metaphorical and functional direction: A comparative analytical study." International Journal of ADVANCED AND APPLIED SCIENCES 8, no. 8 (August 2021): 103–12. http://dx.doi.org/10.21833/ijaas.2021.08.013.
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This study seeks to clarify the importance of explaining the type of digital license contracts to see if it can continue subjecting them to the metaphorical direction that adopts the direction of applying the traditional rules to this types of contract or must it be subject to the functional direction that adopts the necessity of establishing independent legal rules in the theory of contracts in Egypt. The problem of the user not reading the contract terms is still there. Although consumers do not read the terms of digital licensing contracts, some jurisprudence in the US often insist that it must be the exchange of consent must take place that the offeree must see the terms and conditions before assenting in some sort of this contracts, this differs from the nature of digital licensing contracts and the way they are contracted. It is right that the consumers discover in some the types of contracts do not express the consent by the traditional way in the contract but are subject to specific instructions set by the site, due to the inability to read and understand the terms of the contract, but rather that in some types of digital licensing contracts the consumers are not aware to be a party to a contract according to the traditional concept of contract theory. Legal recognition is important by the Egyptian and Arab legislations in the role of technical and digital in regulations next to the contract and the law (functional direction) which can contribute to help the user to read the terms of use, we must make use of digital technology to fulfill the function of the contract, which aims to create obligations on both parties, businesses and the user. The following questions were analyzed: Is it possible an individual can enter into a contract without realizing it on the internet? Is the individual obligated to contractual terms that he did not read and understand? How can the provisions of the traditional contract be applied to digital licensing contracts? Then I concluded the necessity of enacting new legal rules that regulate digital licensing contracts within Egyptian legislation.
12
Cannarsa, Michel. "Interpretation of Contracts and Smart Contracts: Smart Interpretation or Interpretation of Smart Contracts?" European Review of Private Law 26, Issue 6 (December 1, 2018): 773–85. http://dx.doi.org/10.54648/erpl2018054.
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Abstract: The computer language (computer code) on the basis of which smart contracts are written is different from the natural (Human) language. Computer language is a ‘dry’ language, whereas natural language is ‘wet’. In other words, it means that computer language is deterministic (just one meaning and one result are conceivable), when natural language is open to more and potential different meanings. Natural language requires therefore in itself interpretation, at least more than computer language. Computer language in theory doesn’t require and possibly doesn’t leave room for interpretation. If this assumption is accurate, what are the consequences of it (on the intention of the parties, on contract drafting, on courts’ intervention…)? Building on that assumption, this article explores, from a comparative perspective, the impact of the blockchain-based smart contract technology, especially regarding contract drafting techniques. Contract drafting style in common law (long contracts, based on a ‘if …, then ….’ approach, quite similar to the coding approach) is in part based on the idea of preventing courts’ interpretation and intervention. In civil law countries instead, contracts are generally shorter, for several reasons but partly because drafters tend to rely on more general legal concepts, external to the contract, and know that courts will play an important role, through interpretation, in disclosing the ‘true meaning’ of a contract. Coding contracts and relying on computer-code language can hence have a significant impact on the civil law approach and bring the two legal systems closer as far as contract drafting and contract interpretation are concerned.
13
Ali, Yunus. "Catering Contract of Restaurants in the English Law. A Comparative Analytical Study with Iraqi Civil Law." مجلة العلوم القانونية 37, no. 1 (June 15, 2022): 1–46. http://dx.doi.org/10.35246/jols.v37i1.450.
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The Catering contract is considered as a type of hospitality contracts in the English common law of customary origins. Which is unwritten and based upon judicial precedents of the English courts. It is a complex contract of mixed nature، Is Regarded as a contract for the sale of meals of food and drink،, and is considered as a contract for supply of services concerning the preparation of food and drink، for providing them to the customer، as well as being a bailment contract. It is worth-bearing in mind that this contract is subject to the rules of three important English legislations: The Sale of Goods Act 1979، The Supply of Goods and Services 1982، The Consumer Protection Act 1987، and The Consumer Rights Act 2015. It is also worth-mentioning that a lot of Statutorily Implied Terms can be extracted from this contract. Whereas the Iraqi civil code No.40 of 1951 did not regulate expressly this contract within the nominate contracts، but the rules of both the contract of sale and enterprise can be applied to this contract، because it contains sale of food and drink، as well as other services closely related to it، which the restaurateur provides to the customer.
14
Kovac, Mitja. "Unilateral Cancellation of Contracts in French, English and Chinese Law." Global Journal of Comparative Law 3, no. 1 (May 29, 2014): 1–33. http://dx.doi.org/10.1163/2211906x-00301001.
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This paper offers a comparative evaluation of the unilateral cancellation of contracts in French, English and Chinese contract law. The main propositions and conclusions are: (1) in principle, contracts should not be unilaterally cancellable by any contracting party; (2) with several preconditions, efficiency requires the unilateral cancellation of open-ended contracts to be permitted, as in fixed-term contracts where the right to unilateral cancellation is expressly provided for; (3) in order to deter opportunism, such cancellation should only be awarded if it is not due to socially harmful behaviour – a good faith standard for cancellation should be introduced; (4) a certain advance notice period should be given in order to enable the non-cancelling party to adapt to the new, changed circumstances and to recoup their initial investment; and finally (5) analysis reveals that Chinese contract law differs from French and English contract law.
15
Luppi, Barbara, Francesco Parisi, and Marta Cenini. "Enforcing Bilateral Promises: A Comparative Law and Economics Perspective." European Review of Private Law 21, Issue 2 (March 1, 2013): 423–50. http://dx.doi.org/10.54648/erpl2013022.
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Abstract: Parties often exchange promises of future performance with one another. Legal systems frame and regulate contracts involving the exchange of bilateral promises of future performance differently from one another. Two conceptual and practical questions often arise in these bilateral situations. Should a breaching promisor be allowed to force the performance of his non-breaching promisee? Should a breaching party be able to collect damages in a contract if his counterpart was also in breach? This article examines these interrelated questions from a comparative law and economics perspective. We consider contracts in which parties make reciprocal promises of performance and study the incentives created by applying a defence of non-performance in unilateral breach cases and the 'plaintiff in default' preclusion rules in bilateral breach cases. Résumé: Les parties échangent souvent entre elles des promesses de prestation future. Les systèmes légaux encadrent et règlent différemment les uns des autres les contrats comportant l'échange de promesses bilatérales de prestations futures. Deux questions conceptuelles et pratiques se posent souvent dans ces situations bilatérales. Le promettant en défaut devrait-il être autorisé à exiger la prestation de l'autre partie qui n'est pas en défaut? Une partie en défaut pourrait-elle obtenir une indemnisation dans un contrat si la contrepartie était aussi en défaut? Le présent article examine ces questions, en relation étroite les unes avec les autres, du point de vue du droit comparé et dans une perspective économique. Nous examinons des contrats dans lesquels les parties se font des promesses réciproques de prestations et étudions les motivations créées par l'application d'une défense basée sur la non-prestation dans des cas de manquement unilatéral et les règles de prévention concernant le 'plaignant en défaut' dans des cas de manquement bilatéral.
16
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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Syawie, Afifah. "Studi Komparatif Hukum Positif dan Hukum Islam Terhadap Hybrid Contract Pada Bank Syariah." Al-Mazaahib: Jurnal Perbandingan Hukum 10, no. 1 (August 16, 2022): 57. http://dx.doi.org/10.14421/al-mazaahib.v10i1.2495.
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This study discusses the comparative study of positive law and Islamic law on hybrid contracts in Islamic banks. The main problem is reviewing Positive and Islamic Laws on Hybrid Contracts in Islamic Banks. This article is a research library (Library Research). The data source for this article comes from the journals and books relevant to this discussion. The results of the research of this article indicate that a Multi contract or joint contract, or Hybrid Contract (al-'Uqud al-Murakkabah) is the application of two or more contracts in one transaction as a single transaction that is inseparable from each other. Sharia Bank is a Bank based on Islamic law, based on the Qur'an and Hadith. All products and services offered must not conflict with the contents of the Qur'an and Hadith. Hybrid contracts originate from a contract and develop and change. As a development, the hybrid contract has fulfilled the requirements for forming a contract with the elements and pillars of a hybrid contract similar to the elements and pillars of a Sharia contract. The hybrid contract element in Islamic banking follows the principles of contract and the provisions of Islamic law and is allowed in Islamic banking.
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Ubochioma, Wiseman. "Pre-incorporation contract: A comparative analysis of the Canadian and Nigerian corporate law regimes." Corporate Law and Governance Review 3, no. 1 (2021): 29–42. http://dx.doi.org/10.22495/clgrv3i1p3.
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The question of how best to protect the interests of a promoter, a third party, and a company in pre-incorporation contracts is one that seems to have defied corporate law. Although this problem has its origin in common law, various countries have made efforts to address it through statutory reforms. The paper, therefore, examines the extent to which the Canadian and Nigerian legal regimes for the pre-incorporation contract have provided panaceas to the problem. This paper, through a comparative analysis, argues that although the legal regimes have made efforts to reform the common law rule on pre-incorporation contracts, they suffer patent defects. It also posits that notwithstanding the defects in the laws, the Canadian legal regimes offer more protection to parties to pre-incorporation contracts than Nigerian law. The paper suggests reforms in both regimes that would meet the reasonable expectations of the parties to a pre incorporation contract
19
Askari, Farideh. "A comparative look at the validity of contracts in German and Iranian law." International Journal of Advanced Research in Humanities and Law 1, no. 2 (June 4, 2024): 116–24. http://dx.doi.org/10.63053/ijrel.19.
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A contract is a binding agreement that specifies the rights and obligations of the parties. Nowadays, due to the expansion of the volume of commercial exchanges, contracts have gained special importance in such a way that neglecting them causes economic, political and social chaos in the society. Therefore, the legislator supported the agreements between the parties and placed the principle on the authenticity of the contracts. Considering the importance of the subject, this article has discussed the validity of contracts in the legal systems of Iran and Germany by using the descriptive-analytical method in a comparative manner. First, the validity of contracts was discussed in German law and then in Iranian law. As a result, it was found that the conditions of validity of contracts and the validity of these legal acts in the studied legal systems are very similar to each other. In fact, in both legal systems, the capacity of the parties, their will and legality for the transaction are the conditions for the authenticity and validity of the contracts.
20
Tatar, O. V. "EVOLUTION AND TRANSFORMATION OF INNOMINATE CONTRACTS THROUGH THE PRINCIPLE OF FREEDOM OF CONTRACT: A SYNTHESIS OF SCIENTIFIC WORKS." Вестник Пермского университета. Юридические науки, no. 1(55) (2022): 70–85. http://dx.doi.org/10.17072/1995-4190-2022-55-70-85.
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Introduction: the article deals with the evolution and transformation of innominate contracts through the principle of freedom of contract. Purpose: to conduct an in-depth and comprehensive analysis of innominate contracts, which emerged due to the principle of freedom of contract. Objectives: synthesis of scientific works in the field of civil law contracts; shaping the understanding of the concept, essence, significance, and need for transformation of the contract; determining the impact of the principle of freedom of contract on the modification of the contract, making it possible for the contract to reflect the newly arising desires and needs of people; the development of conclusions and recommendations for improving legislation through filling gaps in the regulation of civil law contracts. Methods: comparative legal, systemic, statistical, general logical, historical. Conclusions: the presented material related to the evolution and transformation of the institution of contract can serve as a basis for further scientific research.
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Garg, Anuj. "A Comparative Analysis of Contract Law in Common Law and Civil Law Jurisdictions." Indian Journal of Law 1, no. 1 (November 10, 2023): 61–70. http://dx.doi.org/10.36676/ijl.2023-v1i1-08.
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Contract law's key tasks include the creation, interpretation, and enforcement of agreements between parties. As a result, contract law is seen as an essential component of all types of legal systems. However, due to the distinct historical, cultural, and judicial contexts of common law and civil law states, the development of contract law has taken a different path in each of these jurisdictions. A comparison is made between the core ideas, central concepts, and different approaches that are characteristic of contract law in common law and civil law regimes. the beginnings and development of contract law within the context of both the common law and the civil law legal systems. the development of contractual ideas, shedding light on the various foundations that continue to have an impact on contemporary legal philosophy, and making reference to the legacy left behind by the Roman law tradition and the English common law history. a comparison and contrast of the impact of reasoning based on precedent in common law and codified statutes in civil law is used to illustrate the various techniques that are used to govern the interpretation and adjudication of contracts.
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An, Chu Thị Thanh. "Book Review: Contract Law in East Central Europe." Vietnamese Journal of Legal Sciences 8, no. 1 (June 1, 2023): 110–14. http://dx.doi.org/10.2478/vjls-2023-0006.
Abstract:
Abstract The book “Contract law in East Central Europe”, edited by Emőd Veress, is a part of a comparative legal project on a wide range of topics in the Central Europe. The book is devoted to the general rules on contracts in the jurisdictions of Croatia, Czech Republic, Hungary, Poland, Romania, Serbia, Slovakia, and Slovenia. This book is highly recommended to both academics and legal practitioners who are interested in comparative contract law.
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Tuzhilova-Ordanskaya, Elena M., and Yulia V. Atnabaeva. "AN INHERITANCE AND A LIFE ESTATE AGREEMENT: CORRELATION OF CONCEPTS." Law of succession 4 (December 19, 2018): 38–40. http://dx.doi.org/10.18572/2072-4179-2018-4-38-40.
Abstract:
The article is devoted to the novelties of inheritance law, introduced by the Federal Law of July 19, 2018 N 217-FL. The article discusses the theoretical and practical aspects correlation of such legal categories as “the inheritance contract” and “the life estate agreement”. Based on a comparative analysis, conclusions are drawning up about the legal nature of such contracts. The question of classifying the inheritance contract and the life estate agreement to the category of risk contracts is also being considered.
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Kuznetsov, Matvey O. "Legal Regime of Smart Contracts in Russia, Germany and the USA: Comparative Analysis." Теория и практика общественного развития, no. 2 (February 28, 2024): 132–40. http://dx.doi.org/10.24158/tipor.2024.2.18.
Abstract:
The article delves into a comparative study of the legal regime of smart contracts in Russia, Germany and the United States. In-depth analysis of the concept, normative support, technological and legal nature of smart-contracts is carried out, the areas of application of this tool in civil law transactions and other legal relations are highlighted. Significant conclusions were obtained. Firstly, in the legal systems under consideration there is still no unambiguous definition of a smart contract. Secondly, a smart contract is understood to a greater extent as a program code embedded in websites or mobile applications, providing a number of elements of the procedural side of various transactions, rather than as an equivalent of a civil law contract. Thirdly, the areas of application of smart contracts are constantly expanding, they are used in the work of e-government, banking, e-commerce, electoral processes, and other legal relations. This requires the active activity of legislators in the countries in question.
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Ni, Jiahao. "Intelligent Contracts and the Principle of Contractual Freedom: A Classical Legal Examination in the Era of Emerging Technologies." Frontiers in Business, Economics and Management 14, no. 3 (April 19, 2024): 5–9. http://dx.doi.org/10.54097/w0gxsm83.
Abstract:
The development of smart contract technology has garnered widespread attention in the legal field. This study, rooted in the principle of contractual freedom, delves into the impact of smart contract technology on the expression of parties' free will and analyzes the challenges it poses to legal rules and practices. Through a comparative analysis of smart contracts and traditional contracts, this research reveals the advantages of smart contracts in terms of contract design, execution efficiency, and transparency. While smart contract technology brings innovative changes to contract law, it necessitates profound reflections within the legal community and legal practice on how to strike a balance between free will and technological developments.
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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.
Abstract:
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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Alpa, Guido. "Future of Family Contracts, Comparative Law and European Law." European Business Law Review 21, Issue 1 (February 1, 2010): 1–13. http://dx.doi.org/10.54648/eulr2010001.
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Атнабаева, Юлия Вилевна. "ON THE CLASSIFICATION OF RISK CONTRACTS AS SPECIAL CIVIL LAW STRUCTURES." Rule-of-law state: theory and practice 18, no. 3(69) (October 20, 2022): 13–19. http://dx.doi.org/10.33184/pravgos-2022.3.2.
Abstract:
The development of market relations is accompanied by an increase in the needs of participants in civil law relations for contractual forms that ensure the redistribution of risks. At the same time, the established list of legally enforceable contractual forms containing elements of a risk nature seems to be very flexible and does not meet the requirements of civil turnover. The main trend of reforming Russian civil legislation is the complication of both the system of risk contracts and their legal structure itself, in particular, new civil law constructions of risk contracts have emerged (a contract for compensation of losses, an option contract). These circumstances make it necessary to systematize them, to identify the features inherent in certain types of risk contracts. Purpose: comprehensive analysis and identification of signs of special civil law constructions of risk contracts, as well as the author's classification of risk contracts. Methods: general scientific and special research methods are used such as dialectical, comparative legal, formal logical, system analysis and synthesis. Results: the study helps to identify the multiplicity of classification criteria that can be reduced to two groups of grounds: general and special, on the basis of which special civil law constructions of risk contracts are distinguished.
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Petrović Tomić, Nataša, and Mirjana Glintić. "The Hybridization of the Regulatory Framework of Insurance Contract Law: Elements of a New Setting." Anali Pravnog fakulteta u Beogradu 72, no. 2 (June 27, 2024): 223–50. http://dx.doi.org/10.51204/anali_pfbu_24203a.
Abstract:
This article aims to highlight the phenomenon of hybridization of insurance contract law, which started with its emancipation from contract law. The next phase included its internal stratification, stemming from obvious differences between commercial and consumer insurance, and various contractual positions of contracting parties in these different insurance contracts. Two features of insurance contracts regulation are addressed, based on Serbian law as it currently stands, as well as comparative legal analysis. The first feature is that the legislatively envisaged unified regime for insurance contracts is incomplete and inadequate for all manifestations of this contract. The second feature is that regulation of this matter must enable balancing of interests between insurers and insureds, especially consumers. The authors conclude that insurance regulation can only be conducive when simultaneously ensuring protection of the weaker party, protecting insurers from the negligent actions of the insured, while facilitating conduct of insurance business.
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Jentsch, Valentin. "Government Responses on Corona and Contracts in Europe: A Compilation of Extraordinary Measures in Times of Crisis." European Business Law Review 32, Issue 6 (December 1, 2021): 1067–91. http://dx.doi.org/10.54648/eulr2021039.
Abstract:
In March 2020, the new coronavirus (Covid-19) outbreak, which was eventually declared a pandemic by the World Health Organization, changed everyday life all over Europe from one day to another. Under those extraordinary circumstances, a wide range of issues concerning the law of contracts are becoming particularly important. In the early stages of the pandemic, during lockdowns and a subsequent reopening of the economy, many European countries have implemented significant and unprecedented measures in response to the current crisis. Against this backdrop, the more fundamental question arises whether and to what extent we need an extraordinary law of contracts in times of pandemic. Drawing on five important civil law jurisdictions (Germany, Austria, Switzerland, France, Italy), the paper provides for an analysis and discussion of various extraordinary measures taken by European governments and puts these measures into perspective. A functional and comparative approach is used to elaborate on how contract law should respond to the current crisis. Coronavirus (Covid-19) pandemic, commercial contracts, consumer contracts, employment contracts, lease contracts
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de Elizalde, Francisco. "Should the Implied Term Concerning Quality Be Generalized? Present and Future of the Principle of Conformity in Europe." European Review of Private Law 25, Issue 1 (April 1, 2017): 71–107. http://dx.doi.org/10.54648/erpl2017005.
Abstract:
Abstract: One of the main inroads to the so-called Classic Contract Law has been made by implied terms imposing a certain quality on the subject matter of contracts, an outcome that has been achieved by resorting to a variety of legal sources and tools. Modernization and harmonization of European Contract Law, to this respect, has mainly focused on sales contracts (as an archetype to others), including the requirement of conformity in its terms. The article deals with the concept of conformity and assesses its profound implications to traditional notions of Contract Law. As in many European legal systems the principle of conformity is restricted to certain types of sales, it is necessary to furtherly deepen in national Law to assess the existence of equivalent requirements to conformity whenever it does not apply. To this end, the work undertakes a Comparative Law perspective following a realistic and functional methodology. As a central instrument in the modernization of Contract Law, the article assesses the desirability of generalizing the principle of conformity to all contracts, a position that, from a legal and economic perspective, is not recommended. The relationship between freedom of contract and reasonable expectations of the parties is an underlying tension to this matter in respect of which the present work proposes a solution.
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Umar, Wahyudi, Sudirman Sudirman, and Rasmuddin Rasmuddin. "Artificial General Intelligence (AGI) and Its Implications For Contract Law." Indonesian Journal of Artificial Intelligence and Data Mining 6, no. 1 (July 31, 2023): 116. http://dx.doi.org/10.24014/ijaidm.v6i1.24704.
Abstract:
The development of artificial intelligence technology has presented AGI as an exciting future potential. In contract law, AGI can change the landscape of agreements and contract execution. The existence of AGI will raise various legal challenges and questions, such as whether AGI can be a legal party to a contract, whether AGI can execute contracts effectively, and how legal responsibility AGI is in contract execution. This study aims to analyze and identify the legal implications that may arise with the existence of AGI in the context of contract law. In this regard, the research will try to understand how AGI can influence existing principles of contract law. This study uses normative research methods by collecting and analyzing relevant legal sources, including legal literature, regulations, and court rulings related to contract law. This research also involves a comparative study of existing contract law with possible future situations with the existence of AGI. The results of this study show that the presence of AGI has the potential to change important aspects of contract law. Some of the implications identified include questions about AGI's legal status as a legal subject, AGI's legal liability in the performance of contracts, aspects of the validity and interpretation of contracts involving AGI, and legal protection for parties entering transactions with AGI. This research provides a crucial initial understanding in dealing with legal challenges that may arise due to the existence of AGI in the context of contract law
33
Varavenko, Victor Evgenyevich, and Valeriya Andreevna Ostroukhova. "Unilateral termination of construction contract: comparative analysis of civil Legislation and international contract forms." Право и политика, no. 2 (February 2021): 70–82. http://dx.doi.org/10.7256/2454-0706.2021.2.35113.
Abstract:
The subject of this research is the similarities and differences between the contract forms developed by the international nongovernmental organizations for application in the sphere of investment construction activity (contracts terms for engineering, procurement, construction/ for turnkey projects, second edition of 2017, developed by the International Federation of Consulting Engineers (FIDIC), framework “turnkey” contract for large projects, first edition of 2007, developed by the International Chamber of Commerce (ICC)) and the norms of national civil legislation (Parts I and II of the Civil Code of the Russian Federation) that regulate unilateral termination of construction contracts. The novelty of this research lies in conducting a comparative analysis of Russian legislation and contract forms developed by the international nongovernmental organizations. The examination of foreign experience in the sphere of legal regulation of termination of contract are based on analysis of the norms of contract law of the national legal systems of foreign countries. However, according to the foreign authors, contract law within the systems of both, general and continental law, was developing in seclusion, without substantial influence of one national system upon another. International influence upon the national contract law emerged relatively recently in the sphere of foreign economic activity. At the same time, the key factor for mutual enrichment of the national systems of contract law became the use of international contract forms, which contributed to the unification of contractual regulation of the relations of obligation in national jurisdictions. Their influence upon the development of contract law was far more substantial than even the development of international conventions with substantive law regulations.
34
Emmamally, Zeenat. "Slapping down SLAPP suits in South Africa: The need for legislative protection and civil society action." South African Law Journal 139, no. 1 (2022): 1–31. http://dx.doi.org/10.47348/salj/v139/i1a1.
Abstract:
The formation of online contracts has enjoyed considerable judicial and academic attention in American law. Generally, American courts are of the view that the rise of online contracts has not necessitated any changes to the fundamental principles of the law of contract, although commentators argue that the enforcement of online contracts has stretched the requirement of mutual assent beyond recognition. This article engages in a comparative evaluation of these arguments, as well as some proposals contained in the American Law Institute’s Draft Restatement of the Law, Consumer Contracts. Ultimately, the aim is to identify whether the principles regarding the formation of contracts in South African law ought to be adapted or supplemented to accommodate online contracts. It is found that both legal systems subscribe to fairly lenient formation requirements. The possibility of recognising more stringent assent-related requirements, such as imposing specific disclosure requirements, is investigated. It is concluded that there is little to be gained by insisting on stricter formation requirements for online contracts in general, because consumers rationally choose not to read these contracts. Instead, recognising these concerns may provide the impetus for increased reliance on other forms of control, most notably regulating the use of certain problematic standard terms.
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Sattari, Ebrahim Shoarian. "Observation of Good Faith Principle in Contract Negotiations: A Comparative Study with Emphasis on International Instruments." Australian Journal of Business and Management Research 03, no. 09 (September 3, 2013): 56–61. http://dx.doi.org/10.52283/nswrca.ajbmr.20130309a06.
Abstract:
Good Faith is one of the important principles in contract law. This principle is inherited from Roman law and it has been mostly developed in civil law system. Observation of Good faith and Fair dealing in French and German law and many other countries is considered as legal obligation. Good faith, also, is of special stand In Chinese law of contract. Since Good faith is considered as important and valuable, it has been recognized in Common Law System and adopted in English and American law. Islamic law also contains numerous examples of obligations that are based on Good Faith principle. Nowadays, good faith principle has been incorporated in important international instruments such as CISG, UPICC, PECL, and DCFR and its scope has been developed. If good faith principle was being considered in fulfilling of contracts, today it also is considered as important in pre-contractual and conclusion stages of contracts. The aforementioned documents contain regulations for observing good faith in preliminary negotiations, conclusion of contract, fulfilling of contract and the interpretation thereto. The present Article is attempted to show that Good faith is important in all stages including preliminary negotiation and it should be incorporated in domestic legislations. Remedy for breach of this duty in the pre-contractual sphere should be limited only to compensation for damages.
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Viven-Wilksch, Jessica. "The importance of being relational: comparative reflections on relational contracts in Australia and the United Kingdom." Northern Ireland Legal Quarterly 73, AD2 (October 6, 2022): 94–124. http://dx.doi.org/10.53386/nilq.v73iad2.963.
Abstract:
The notion of the relational contract, previously limited to academic circles, is now being articulated by some courts. The consequences are threefold. Firstly, these judicial decisions are challenging the conception of agreements in the common law. Secondly, these decisions acknowledge the particularity of some long-term commercial relationships and shift the spotlight onto the relations of the parties. Thirdly, they are being used to integrate obligations to act in good faith. This article will show how these decisions implement the developing theory of relational contracts. The article will discuss recent developments in the United Kingdom and Australia and reflect on the parallel course the two jurisdictions are taking. By providing a bird’s-eye view of normative changes affecting some long-term transactions, the aim of the article is to reflect on how contract law is being reshaped by the recognition that, in some contracts, the relationship, not self-interest, is the vital thing, demonstrating a move away from traditional contract law theory.
37
Viven-Wilksch, Jessica. "The importance of being relational: comparative reflections on relational contracts in Australia and the United Kingdom." Northern Ireland Legal Quarterly 74, no. 3 (December 7, 2023): 528–58. http://dx.doi.org/10.53386/nilq.v74i3.1119.
Abstract:
The notion of the relational contract, previously limited to academic circles, is now being articulated by some courts. The consequences are threefold. Firstly, these judicial decisions are challenging the conception of agreements in the common law. Secondly, these decisions acknowledge the particularity of some long-term commercial relationships and shift the spotlight onto the relations of the parties. Thirdly, they are being used to integrate obligations to act in good faith. This article will show how these decisions implement the developing theory of relational contracts. The article will discuss recent developments in the United Kingdom and Australia and reflect on the parallel course the two jurisdictions are taking. By providing a bird’s-eye view of normative changes affecting some long-term transactions, the aim of the article is to reflect on how contract law is being reshaped by the recognition that, in some contracts, the relationship, not self-interest, is the vital thing, demonstrating a move away from traditional contract law theory.
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Mansoor, Zeeshan. "Contracts Contrary to Public Policy under English Law and Dutch Law: The Case of Agreements Affecting Matrimony." European Review of Private Law 22, Issue 5 (October 1, 2014): 703–27. http://dx.doi.org/10.54648/erpl2014057.
Abstract:
Abstract: Both English law and Dutch law contain general rules that result in the invalidity of contracts that conflict with morality or public policy. Working on the premise that each country has its own unique set of factors shaping public interests, this article highlights methodological aspects of identifying the extent to which convergences and divergences exist in the English and Dutch approaches towards the invalidity of contracts on grounds of public policy and good morals. Case patterns dealing with contracts affecting the institution of marriage under both English law and Dutch law are used as an example in this paper. They are analysed using a new methodology: the 'principle-policy clarification' methodology. Subsequently, the results are comparatively examined. The outcome reveals that English law and Dutch law converge to a significant degree as far as contracts affecting matrimony are concerned. Résumé: Le droit anglais et le droit néerlandais contiennent tous deux des règles générales résultant dans la nullité des contrats contraires à la morale ou à l'ordre public. Partant du principe que chaque pays possède son propre ensemble de facteurs constituant des intérêts publics, cet article souligne les aspects méthodologiques permettant d'identifier l'étendue des convergences et divergences qui existent dans les approches anglaises et néerlandaises sur la nullité des contrats basée sur l'ordre public et les bonnes moeurs. L'article utilise à titre d'exemples des cas typiques de contrats touchant l'institution du mariage en droit anglais et en droit néerlandais. Ils sont analysés selon une nouvelle méthodologie : la méthodologie de la 'clarification de la politique du principe'. Les résultats sont ensuite examinés de manière comparative. L'issue révèle que, dans la mesure où sont concernés des contrats de mariage, le droit anglais et le droit néerlandais convergent jusqu'à un degré significatif.
39
Habibzadeh, Taher. "Developing Internet Jurisdiction in B2B and B2C Contracts: Focusing on Iranian Legal System with Comparative Study of American, English and eu Laws." Arab Law Quarterly 31, no. 3 (October 27, 2017): 276–304. http://dx.doi.org/10.1163/15730255-12313034.
Abstract:
Abstract In the modern world, electronic communications play a significant role in areas of national and international law such as Internet jurisdiction. Private international law provides that the competent court is the court within which jurisdiction the contract is performed, so it is important to know the place of performance of the contract in the case of contracts for digital goods such as e-books or computer software delivered online. It is equally important in the case of electronic services such as e-teaching. Furthermore, as consumer protection in B2C contracts is important in developing global e-commerce, it is important to consider whether the consumer party is able to bring an action against the business party in his own place of domicile or habitual residence. The article analyses these questions and proposes ways in which the Iranian legal system might be developed to address issues of Internet jurisdiction in B2B and B2C contracts.
40
Costa Machado, Sérgio Manuel Da. "The exchange contract in the Portuguese legal system and comparative law." CUADERNOS DE DERECHO TRANSNACIONAL 15, no. 2 (October 3, 2023): 337–60. http://dx.doi.org/10.20318/cdt.2023.8059.
Abstract:
Despite the exchange contract being one of the oldest contracts, it is not currently regulated in the Portuguese Civil Code, as it is understood that it belongs to a primitive state of the economy. The Portuguese legislator intended to make the purchase and sale contract the prototype of other onerous agreements according to article 939.º of the Civil Code. However, this will raise problems for us between the frontier of buying and selling and that of exchange, for which our law does not give us direct answers.We found that other legal systems, such as the Spanish, French, Italian, or Ibero-American codes, consecrate in their Civil Codes, in a brief way, the exchange contract.
41
Ivanytskyi, A. V. "CORRELATION OF FACTORING AGREEMENT WITH CERTAIN TYPES OF CONTRACTS IN UKRAINE." Actual problems of native jurisprudence, no. 4 (August 30, 2019): 45–49. http://dx.doi.org/10.15421/391910.
Abstract:
The legal construction of a factoring contract has separate features similar to other business agreements. At the same time, factoring is characterized by a number of certain features, which makes it possible to distinguish it as an independent type of economic agreement with its own, specific legal regulation. Doctrinal literature suggests that factoring is not a separate type of obligation, but is instead considered as a subspecies or specific form of other treaties. In order to refute such judgments, we consider it necessary to clarify the difference between factoring agreements and related categories. The article improves the comparative characteristics of the factoring contract and the cession contract – a number of different characteristics are revealed, which allow to differentiate factoring relations from the relations of the cession. Using the comparative method, the differences of the contract of faking from the different types of contracts are investigated on the basis of the subject of contracts, independence, payment, formof conclusion of contracts, legal personality of the parties, sources of legal regulation, complex nature, etc. Further developed the provision on the economic and legal nature of the factoring agreement, which objectively corresponds to its nature, features and characteristic specificity, based on the analyzed theoretical approaches to determining the legal nature of the factoring agreement, foreignexperience, case law and case law international law and the author’s own positions. It is proved that the factoring contract is an independent and complete economic obligation, which has its own characteristic features and features that make it possible to distinguish the factoring contract with similar legal structures. On the basis of a systematic study of the relation of the factoring contract with certain types of contracts, new scientific provisions have been developed, and proposals for improvement of legislation on a number of issues have been substantiated.
42
Kirsanov, A. N., and A. V. Korablin. "Lex Constructionis as a Regulator of an International Construction Contract in Russia." Journal of Law and Administration 18, no. 3 (October 18, 2022): 26–31. http://dx.doi.org/10.24833/2073-8420-2022-3-64-26-31.
Abstract:
Introduction. The gaps in the international private legal regulation of legal relations arising from an international construction contract are filled by other sources of law, primarily Lex constructionis, which is a set of acts and documents developed by non-governmental organizations that do not have the force of law, but are actively used in business circulation.FIDIC contracts can be cited as standard contracts, which are a set of narrowly focused standard forms of contracts, each of which was developed for a specific situation and certain legal relations arising from an international construction contract.Despite the international and narrowly focused nature of the FIDIC agreements, their application is also possible in the national projects of Russia with some reservations.The purpose of this article is to analyze Lex constructionis on the example of standard FIDIC con- tracts and the possibility of using FIDIC contracts in national projects in Russia.Materials and methods. The implementation of the research tasks was achieved on the basis of the study of theoretical and practical experience in the application of standard FIDIC construction contracts. The methodological basis of the study was the following methods: generalization, analysis, synthesis, induction, deduction, comparative legal analysis. The results of the study. The following tasks are solved in the work: an analysis of standard contracts and Russian legislation is carried out, their contradictions are revealed.Discussion and conclusions. The use of FIDIC model contracts without their adaptation to Russian law is not possible due to the existence of contradictions between the provisions of FIDIC model contracts and the mandatory rules of Russian law, arising from different approaches to the regulation of a construction contract - FIDIC model contracts are based on the doctrine of common law, while Russian law belongs to the Romano-Germanic legal family.
43
Öner, Cihat. "Legal Nature of Advance Pricing Agreements under Turkish Law: A Comparative Analysis." Intertax 40, Issue 8/9 (August 1, 2012): 503–13. http://dx.doi.org/10.54648/taxi2012050.
Abstract:
This article first identifies and defines the legal nature of advance pricing agreements on a theoretical basis using the criteria developed in the literature and case law for administrative contracts. It then underlines and assesses the impact of case law on the definition of an administrative contract using a comparative approach. The general research question is whether these criteria can be employed to determine the legal nature of advance pricing agreements under Turkish law.
44
Puneri, Atharyanshah, Ilhamiddin Ikramovich Nazarov, Moustapha Chora Ahmat, and Muhamad Ikhwan Arif. "The Litigation Process in Handling Murabahah Cases: A Comparative Study between Malaysia and Indonesia." International Journal of Management and Applied Research 6, no. 4 (November 1, 2019): 307–16. http://dx.doi.org/10.18646/2056.64.19-023.
Abstract:
In conventional banking, the validity of a contract is recognised through case law and the legal system of the country. Islamic banking contracts follow the same laws in addition to Shariah principles, which sometimes create legal uncertainty. Murabahah is an Islamic financial instrument which allows a buyer to purchase goods from a seller at a specified profit margin. In contemporary banking practice, Murabahah has been widely used by Islamic financial institutions as a financing contract. It is therefore important to scrutinise the legality and validity of Murabahah practised by Islamic financial institutions in contemporary settings because the existing substantive law on contracts and commerce may not fit well with the Shariah principles. This paper selected three Murabahah cases in Malaysia and Indonesia between 2013 and 2016 as points of comparison. Future research could compare and contrast legal cases over a wider time span.
45
Kirsanov, A. N., and A. V. Kuzmin. "Smart Contract as a Type of Contract under Russian Law." Journal of Law and Administration 19, no. 3 (October 30, 2023): 45–52. http://dx.doi.org/10.24833/2073-8420-2023-3-68-45-52.
Abstract:
Introduction. This article discusses the problem of the lack of special legislative regulation of the institution of smart contracts, which is expressed, among other things, in the absence of a definition of the concept of a smart contract and a distributed ledger of transactions (blockchain) in the law. The authors made an attempt to identify the presence of negative effects on legal relations due to the presence of a legislative gap in the regulation of this institution.Materials and methods. As part of the research, the author uses both general and specific scientific research methods. When studying the issue of the origin of the institution of smart contracts, the authors use the historical method, and when considering the issue of the existence of a gap in the legislative regulation of the institution of smart contracts in domestic law, they use the comparative legal method of scientific knowledge.Results of the study. The authors come to the conclusion that one of the main problems currently existing in the field of legal regulation of smart contracts is the lack of special regulation of this institution, as well as the lack of legislative recognition of the concept of a smart contract and a distributed registry of transactions. The identified problems create obstacles to the development and application of the institution of smart contracts in civil law relations.Discussion and conclusions. The study showed that the simplest solution to eliminating the regulatory gap of the smart contract institution is to legislate the concept of a smart contract and a distributed transaction registry in the wording proposed in the draft Law on the Central Federal District, which will make the use of this institution more attractive for participants in civil legal relations and will contribute to the development the specified institute.
46
Mosavi, Syed Abolhasan, and Abdolmohammad Afrogh. "Investigation and Comparison of Time and Location of Contract Conclusion in Iranian Electronic Commerce Act and UNCITRAL Model Law." Journal of Politics and Law 10, no. 1 (December 29, 2016): 32. http://dx.doi.org/10.5539/jpl.v10n1p32.
Abstract:
Cyberspace is considered as one of the most modern means for conclusion of contracts and meeting the obligations arising from that, particularly in commercial transactions. The nature of electronic contracts- in terms of creditability, form and homogeneity with public disciplines and regulations of civil law about the contracts- is a new topic based on which recognition and investigation on the legal effects depend on formal structure of cyberspace and information and communication technology concepts known in this area. Present work mainly investigates following items: Electronic contract conclusion and specific properties of such agreements, effect of electronic trait on its way of formation as well as compatibility of public rules and regulation of electronic contracts in Iranian Electronic Commerce Act and UNCITRAL model law. Electronic contract principally does not differ traditional ones in terms of nature. However, structure of cyberspace has brought up new specifications and concepts. A descriptive-analytical method with comparative approach were used for data collection. Current rules and regulations at contracts area in traditional space seem to not be able to completely meet emerging rights in cyberspace but beside traditional legal basics, some rules and regulations are necessary to eliminate existing confusion by setting determination in modern legal uncertainties. Present study tries to answer above queries by assessment and comparison of location and time of contract conclusion in Electronic Commerce Act and UNCITRAL Model Law.
47
Rühl, Giesela. "Common Law, Civil Law, and the Single European Market for Insurances." International and Comparative Law Quarterly 55, no. 4 (October 2006): 879–910. http://dx.doi.org/10.1093/iclq/lei133.
Abstract:
AbstractFifty years after the foundation of the European Communities, the single market for insurances has not yet become a reality. Despite the harmonization of insurance supervision law, insurance companies still essentially refrain from cross-border activity when it comes to small commercial and consumer risks. Since this finding is usually attributed to the lack of common rules on insurance contracts, this article sets out to lay the foundation for the harmonization of the corresponding national laws. By providing a comparative analysis of two of the most pervasive issues in consumer insurance contract law, the article proves that common law and civil law are not as far apart as commonly assumed. It thus refutes the widely held belief that the insurance contract laws of common law and civil law countries are too different to be harmonized.
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Anifalaje, Kehinde. "Legal controls of terms of insurance contracts in Nigeria: A comparative analysis." Common Law World Review 51, no. 1-2 (May 18, 2022): 109–41. http://dx.doi.org/10.1177/14737795211072305.
Abstract:
Conditions and warranties, which are generally referred to as policy terms in insurance contracts, are crucial in the determination of the rights and obligations of the contracting parties. The article examines the enforcement of policy terms in insurance contracts at common law and the legislative measures that have been deployed in some common law countries, including Nigeria, the United Kingdom and Australia, to ensure fairness as well as to balance the inequality in the bargaining power of the contracting parties. In as much as the principle of freedom of contract will generally be honoured by the court, the paper argues that through legislative intervention in policy terms in these countries, the principle is being discountenanced with, in appropriate cases, in order to effectuate the just and reasonable expectation of the insured. It concludes by proffering suggestions to identified lacunae in the Nigerian Insurance law.
49
Naude, Tjakie. "Notes: The incorporation of standard terms into contracts: Is it sufficient that the terms are ‘available on request’?" South African Law Journal 138, no. 4 (2021): 748–60. http://dx.doi.org/10.47348/salj/v138/i4a4.
Abstract:
South African case law has long held that standard terms may be incorporated into a contract by mere reference, and that it is unnecessary for the user of the terms to make the text of the terms available to the other party. The so-called railway ‘ticket cases’ from the early twentieth century started this approach. More recent case law involving contracts concluded by fax has confirmed the possibility of incorporation of standard terms by mere reference, without the text of the terms having been made available. This contribution argues that times have changed with increased access to the internet, and that the user of standard terms can reasonably be expected to make their text available to the other party, for example by making them available on a website. It draws on comparative study of the UN Convention on Contracts for the International Sale of Goods and the Unidroit Principles of International Commercial Contracts. It also shows that legislation requires standard terms to be made available anyway in the consumer context, as well as in the case of electronic contracts. Writers of books on the law of contract should discuss the relevant rules.
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Manhal, Ali Hussein. "Moral Clauses in Contracts: An Iraqi Law Perspective." Revista de Gestão Social e Ambiental 17, no. 4 (June 23, 2023): e03448. http://dx.doi.org/10.24857/rgsa.v17n4-004.
Abstract:
Purpose: In this research, I want to address the moral clauses in contracts concluded by employers with talents and celebrities to promote goods and services. I want to define the meaning and use of these clauses in USA, and answer whether they are acceptable in Iraqi law. Theoretical framework: In USA, moral clauses used since the twenties of the last century and adopt widely in its sixties until now, it used in contracts relating provide work or service by a talent or celebrity and contracts of sponsorship. Moral clauses refer to conducts that talent prohibited from doing such as lying, violating laws, or corruption. Breaching of these clauses may result in termination of contract, or oblige talent to pay damages. Method: This research follows a comparative analytical approach between the American and Iraqi laws regarding moral clauses, showing their meaning, importance and effects. Result and conclusion: This research concluded that moral clause valid in Iraqi law, because it not violate public order or morals. Implications of the research: The research provides a ground for talents, celebrities, contractors, and employers to be aware of their rights and duties regarding moral clauses, the way these clauses formulate in contract, and how to deal with breach of it. Originality/value: Moral clauses not previously dealt with in Iraq, so this research paves the way for other researchers to delve into these clauses.