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Journal articles on the topic 'Contractual rights'
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1
Tiverios, N. A. "THE FORFEITURE OF CONTRACTUAL RIGHTS." Cambridge Law Journal 79, no. 1 (March 2020): 17–20. http://dx.doi.org/10.1017/s0008197320000173.
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O'DAIR, RICHARD. "Justifying an Interference with Contractual Rights." Oxford Journal of Legal Studies 11, no. 2 (1991): 227–46. http://dx.doi.org/10.1093/ojls/11.2.227.
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Sjeničić, Marta, Sandra Perić, and Dragana Marčetić. "The judiciary system and the social care system policy on contractual capacity: Overview of research conducted in the City of Belgrade." Zbornik radova Pravnog fakulteta Nis 59, no. 88 (2020): 135–56. http://dx.doi.org/10.5937/zrpfn0-27813.
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Contractual capacity is the starting point for exercising most human rights. It entails the capacity to sign contracts and enter into the legal transactions, and it is a gateway to exercising a range of labour, voting, family, property, succession (etc.) rights envisaged by the law. The full deprivation of contractual capacity leads to the deprivation of most other capacities. Thus, a person is de iure and de facto excluded from societal life. The mechanism for deprivation of contractual capacity exists in both domestic and foreign jurisprudence, as a way of protecting individual rights. The deprivation of contractual capacity in adults is applicable when the competent authority determines one's mental or intellectual impairment. In the past, the prevailing approach to establishing such disability was the medical approach, which is largely the same today, while the social model is seldom applied. The issue of protection of the right to contractual capacity has seldom been comprehensively analyzed, either from the standpoint of social care services or from the standpoint of jurisprudence. Yet, they are both equally relevant in the process of assessing contractual capacity. This paper presents the results of research conducted in social care centers and courts in the territory of the City of Belgrade (Serbia). The research was aimed at establishing whether the status and position of social care service users has improved after introducing the legal mechanism authorizing the courts to assess (within a specific time limit) if there are reasons for continuing the imposed measure of deprivation of contractual capacity, as well as to analyze the major reasons for initiating the legal action for reassessment of contractual capacity.
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Osama Ismail Mohammad Amayreh, Izura Masdina Mohamed Zakri, Pardis Moslemzadeh Tehrani, and Yousef Mohammad Shandi. "A NEW ROLE OF CAUSATION THEORY TOWARDS ACHIEVING ECONOMIC CONTRACTUAL EQUILIBRIUM: ANNULLING THE ARBITRARY CONTRACTUAL CONDITIONS." IIUM Law Journal 29, no. 1 (June 30, 2021): 153–81. http://dx.doi.org/10.31436/iiumlj.v29i1.481.
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The phrase “who says contractual, says justice” (qui dit contractuel dit juste) does not fully express the truth of present reality, where the phrase itself falls into doubt, since a contract does not always result in fair obligations. In this regard, the French judiciary realized that the absence of justice in a contract might arise as a result of the contractual freedom afforded to the contracting parties. Thus, the idea of Commutative Justice in the contract was developed, such as, the Chronopost’s decision which is considered one of its most important applications. However, the equivalence of rights and obligations in the Palestinian Draft Civil Code only exists in a virtual form, without any content that actually contributes to the achievement of the equivalence between rights and obligations in contracts. This article seeks to prove that the provisions of the causation theory in the Palestinian Draft Civil Code can be used as an effective means for achieving contractual justice between the contracting parties, in order to maintain economic contractual equilibrium of the contract. To do so, the function of the causation theory should be analysed in a comparative analytical approach with the Chronopost’s decision to illustrate the Palestinian legislative deficiencies. It will also show the need for adopting the French judicial approach, which will establish a general rule that any arbitrary clause that contravenes the essential obligation of the contract is considered to be unwritten, regardless of the nature or the subject matter of the contract.
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Grin, O. S., and E. S. Grin. "Rights Accounting Systems for Various Contractual Relations." Actual Problems of Russian Law 15, no. 10 (October 29, 2020): 95–104. http://dx.doi.org/10.17803/1994-1471.2020.119.10.095-104.
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Marczely, Bernadette. "The Contractual Diminishing of FMLA Employee Rights." Journal of Collective Negotiations (formerly Journal of Collective Negotiations in the Public Sector) 32, no. 4 (January 1, 2008): 279–86. http://dx.doi.org/10.2190/cn.32.4.b.
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Atsegbua, Lawrence. "Acquisition of Oil Rights under Contractual Joint Ventures in Nigeria." Journal of African Law 37, no. 1 (1993): 10–29. http://dx.doi.org/10.1017/s0021855300011086.
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This article inquires critically into the different modes of acquisition of oil rights in Nigeria by international oil companies (IOCs) under contractual joint ventures. These contractual joint ventures are either production sharing or service contracts.
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Heatley, Leah. "Are Contractual Rights Amenable to Public Law Remedies?" Judicial Review 21, no. 4 (October 2016): 253–60. http://dx.doi.org/10.1080/10854681.2017.1278960.
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Yu, Ben T., Daigee Shaw, Tsu-Tan Fu, and Lawrence W. C. Lai. "Property rights and contractual approach to sustainable development." Environmental Economics and Policy Studies 3, no. 3 (September 2000): 291–309. http://dx.doi.org/10.1007/bf03354042.
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Matthews, Gilbert E. "Impact of Contractual Rights on Preferred Stock Valuations in Delaware." Business Valuation Review 38, no. 2 (December 2019): 92–102. http://dx.doi.org/10.5791/19-00001.1.
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The rights and the value of preferred stock have been the subject of several Delaware court decisions. These decisions are particularly significant for understanding the importance of contractual rights as the defining attribute affecting the valuation of preferred stock. Directors' fiduciary duties are primarily to common shareholders, while obligations to preferred shareholders are primarily contractual. Preferred stocks' contractual rights, as interpreted in these decisions, directly affects the value of the preferred and the common. When common shareholders control the board, the impact on the preferred can be negative. The common may be adversely impacted when preferred shareholders, particularly venture capitalists, control the board. Some commentators have argued that, when going-concern value is less than the preferred's preference, common stockholders should be entitled to the option value of their shares.
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Botterell, Andrew. "CONTRACTUAL PERFORMANCE, CORRECTIVE JUSTICE, AND DISGORGEMENT FOR BREACH OF CONTRACT." Legal Theory 16, no. 3 (September 2010): 135–60. http://dx.doi.org/10.1017/s1352325210000170.
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This paper is about the remedy of disgorgement for breach of contract. In it I argue for two conclusions. I first argue that, prima facie at least, disgorgement damages for breach of contract present something of a puzzle. But second, I argue that if we pay close attention to the notion of contractual performance, this puzzle can be resolved in a way that is consistent with principles of corrective justice. In particular, I suggest that even if a contract gives the promisee a right to only the promisor's performance of the contract, such a right can sometimes entail the acquisition by the promisee of certain rights of ownership. And in situations in which such rights are acquired, the disappointed promisee is entitled to the gains realized by the promisor in breach of contract by reason of the fact that such gains are something to which the promisee has an antecedent right.
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Kondrackaitė, Karolina, and Ugnė Kastanauskaitė. "Protection of consumer rights and interests." Vilnius University Open Series, no. 4 (November 16, 2020): 29–45. http://dx.doi.org/10.15388/os.tmp.2020.2.
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The object of this scientific article is protection of consumer rights and interests in contractual relationship between seller and consumer. The ever-expanding trade development, increasing abundance of goods and services stimulates consumption and this obviously leads to the growing number of consumer contracts. The growing number of consumer contracts determines the need to regulate contractual relations of consumers and sellers as much detail as possible. The purpose of detailed regulation is to prevent unfairness and ensure effective protection of the consumer as the weaker party. The work also draws attention to European Union law. The European Union law not only develops and ensures free movement of goods, services, capital and persons in a single market of European Union, but also seeks to discover a balance between the competitiveness of various companies in different Member States and a high level of consumer protection.
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Baughen, Simon. "Estoppels over land and third parties. An open question?" Legal Studies 14, no. 2 (July 1994): 147–55. http://dx.doi.org/10.1111/j.1748-121x.1994.tb00496.x.
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The proprietary status of the contractual licence has long been a matter of dispute. In Arnold v Ashbum–Anstult the obiter remarks of Fox LJ signalled a return to orthodoxy in this area of the law. Unless a contractual licence can be supported by facts sufficient to support a constructive trust (and these, too, were restrictively defined by Fox LJ), it will not bind third parties. However, Fox W did not discuss rights over land arising by way of estoppel ( ‘estoppel rights’). The proposition that these can bind third parties has never attracted the controversy that surrounded the proprietary status of contractual licences. Nonetheless, due to the potential overlap between the two types of licence, it is a proposition that needs urgent re-evaluation in the light of Fox W’s views on contractual licences.
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Velichko, Veronika, and Ekaterina Terdi. "Contractual Preemptive Rights: Russian Doctrine and European Tradition in the Context of Russian Civil Code Reform." Russian Law Journal 7, no. 1 (March 22, 2019): 119–37. http://dx.doi.org/10.17589/2309-8678-2019-7-1-119-137.
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Problems associated with the possibility of the stipulation of preemptive rights by contract and their effective protection are researched in this article. Based on the examples of German, French and Swiss civil legislation, we establish that contractual preemption is widely used in Europe as a convenient instrument to formalize the interests of the participants in a civil turnover. In this connection, in Russian civil doctrine, the widespread idea that preemptive rights may be stipulated only by law, not by contract, should be revised.We state that the essence of the institution of preemptive rights predetermines its remedy. Historically Russian civil law provides specific remedy in case of breach of the most spread statutory preemptive rights. It is a claim by the entitled person (holder of preemption) against a third party (counterparty of obliged person whose contract breached the preemption) to transfer from the third party to the entitled person the rights and duties that arose under the contract between the third party and the obliged person. This remedy is more efficient for the entitled person than damages. In accordance with the principle of good faith, it may be used only in cases in which the third party knew or should have known about preemption. However, this requirement is complied in relation to protection of statutory preemptions only. As far as both contractual preemptive rights and contracts stipulated the latter are not recognized and not registered in Russia, such suit will be dismissed by court. The lack of effective protection of contractual preemptions impedes the creation of full-fledge system of preemptive rights in Russian civil law.In order to create effective mechanism of protection of contractual preemptive rights by giving the participants of a civil turnover the opportunity to ascertain if there is a contractual preemptions, we suggest that Russian civil legislation should be added by two registration systems. The first is a system for the registration of contracts that stipulate preemptions over immovable property (or registration of the preemptions itself which is better) provided by the Federal Service for State Registration, Cadastre and Cartography of the Russian Federation. The second is a system for the registration of notifications on the conclusion of contracts that stipulate contractual preemptive rights over movable things that could be established by an expansion of the existing system for the e-registration of notifications оf pledges of movable things under the jurisdiction of the Federal Chamber of Notaries of the Russian Federation.
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Zulfirman, Zulfirman. "EBIJAKAN NEGARA TERHADAP HUBUNGAN KONTRAKTUAL SEBAGAI HAK ASASI MANUSIA DI INDONESIA." Jurnal Rechts Vinding: Media Pembinaan Hukum Nasional 2, no. 3 (December 31, 2013): 417. http://dx.doi.org/10.33331/rechtsvinding.v2i3.68.
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Pasal 11 Kovenan Internasional Hak Sipil dan Hak Politik mewajibkan negara untuk menghormati, melindungi dan menegakkan hubungan kontraktual sebagai hak asasi manusia di Indonesia. Bagaimana kebijakan negara melindungi, menghormati dan menegakan hubungan kontraktual sebagai hak asasi manusia di Indonesia. Penelitian ini menggunakan data sekunder terdiri dari bahan hukum primer, bahan hukum sekunder dan bahan hukum tertier. Data diperoleh melalui studi kepustakaan. Penelitian melalui pendekatan filosifis yuridis normatif. Data dianalisis secara kualitatif dengan metode penafsiran untuk menemukan nilai dasar atas hubungan kontraktual sebagai hak sipil bagian dari hak asasi manusia di Indonesia yang dijadikan dasar dalam penegakan hukum. Hubungan kontraktual sebagai hak sipil sudah diatur dalam Kitab Undang Undang Hukum Perdata sebelum diratifikasinya kovenan Internasional hak sipil dan hak politik. Negara Indonesia tidak konsekuen melaksanakan kovenan internasional hak sipil dan hak politik dengan memberi sanksi pidana kepada pelaku yang tidak memenuhi kewajiban kontraktualnya. Perlu dilakukan reposisi peran dan fungsi negara untuk perlindungan hak sipil sebagai kebijakan politik dalam pembentukan hukum dan penegakan hukum di masa datang.<p>Article 11 of the International Covenant on Civil and Political Rights requires states to respect, protect and enforce contractual relations as human rights in Indonesia. How state policy to protect, respect and uphold the contractual relationship as human rights in Indonesia. This study uses secondary data consists of primary legal materials,secondary and tertiary legal materials. The data obtained through the study of literature. Research through juridical normative and philosophical approach. Data were analyzed qualitatively by using interpretative method to find the value of the basic civil rights of a contractual relationship as part of human rights in Indonesia were used as a basis for law enforcement. Contractual relationship as a civil rights set out in the draft of Civil Code before the ratification of the International Covenant on civil and political rights. Indonesian state does not consistently implement the international covenant of civil rights and political rights proved to sanction the perpetrators who did not fulfill its contractual obligations. Necessary to reposition the role and function of the state for the protection of civil rights as a political policy formation and law enforcement in the future.</p>
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Marston, Geoffrey. "Contractual Rights and Duties after an Unaccepted Anticipatory Repudiation." Cambridge Law Journal 47, no. 3 (November 1988): 340–42. http://dx.doi.org/10.1017/s0008197300120306.
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Senčur Peček, Darja, Sandra Laleta, and Karla Kotulovski. "Ugovorni odnosi u vezi s privremenim agencijskim radom." Zbornik Pravnog fakulteta Sveučilišta u Rijeci 40, no. 3 (2020): 1101–27. http://dx.doi.org/10.30925/zpfsr.40.3.6.
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This article analyses the contractual relationships concerning temporary agency work: specificities of the employment contract between the agency (as an employer) and worker; contractual relationship between agency and the user undertaking and the factual relationship between the user and agency workers. Concerning the employment relationship between the agency and worker, the analysis focuses on the fact that only legal subject that fulfils specific conditions can operate as an agency; further, on the duration of the employment relationship, the workplace, rights and the termination of the employment relationship. Despite the fact that the agency and the user conclude the commercial contract, those contractual parties are limited by the labour law rules that are the object of the analysis in this article. Thirdly, the article deals with the relationship between the agency worker and user, that is not formalized by the conclusion of the contract, but regulated by the labour legislation, that prescribes the workers’ rights and its impact on the user’s stable workers’ rights. The authors analyse the mentioned contractual relationships as regulated in Croatian and Slovenian labour law, as well as by EU law, giving the examples of good practice used in some European countries.
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Buana, Andika Prawira, Aan Aswari, Muh Fachri Said, and Muhammad Ya'rif Arifin. "Responsibility Parking Service Business to The Protection Of Consumer Of The Parking Services in Makassar." Substantive Justice International Journal of Law 1, no. 1 (June 2, 2018): 23. http://dx.doi.org/10.33096/substantivejustice.v1i1.15.
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The development of dynamic human behavior will lead to more complex contractual relationships. A contractual relationship that occurs must necessarily be accompanied by certainty and legal protection for each party. Existing regulations should serve as guidelines for contractual relationships. Parking business practitioners and parking service users must understand and know the rights and obligations of each. The form of liability which must be fulfilled by each party shall be adhered to in order to create a good contractual relationship and the fulfillment of rights and obligations based on the prevailing laws and regulations. This research is research with qualitative type with the socio-juridical approach. This study responded the ineffectiveness of the accountability of parking service business actors (PD Parkir Makassar Raya) to the consumer protection of parking service users because there is still a standard clause on the parking ticket. Makassar City Local Government needs to provide direct supervision on policies issued by PD Parkir Makassar Raya and revise the Local Regulation on Parking Management in order to be relevant to the provisions of the higher Legislation (UUPK). Parking service users are also required to increase legal awareness to know what rights and obligations of service users and parking service business actors.
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Davidson, Julia O'Connell. "The Rights and Wrongs of Prostitution." Hypatia 17, no. 2 (2002): 84–98. http://dx.doi.org/10.1111/j.1527-2001.2002.tb00767.x.
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This essay critically explores contemporary Euro-American feminist debate on prostitution. It argues that to develop analyses relevant to the experience of more than just a small minority of “First World” women, those who are concerned with prostitution as a form of work need to look beyond liberal discourse on property and contractual consent for ways of conceptualizing the rights and wrongs of “sex work.”
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Topildiev, Bakhromjon. "Issues Of Protection And Enforcement Of The Rights And Interests Of The Beneficiary." American Journal of Political Science Law and Criminology 03, no. 06 (June 12, 2021): 13–19. http://dx.doi.org/10.37547/tajpslc/volume03issue06-03.
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The subjects of a contract of trust management of property have clear rights and obligations under the contract. First of all, the trustee is the one who has to think about the rights and obligations of the party “performing the main function” in this legal relationship, and the continuation of the contractual relationship depends on his actions. The article discusses the issues of protection and observance of the rights and interests of the beneficiary.
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Mróz, Teresa. "On Legal Interpretation of Basic Consumer Rights." Studies in Logic, Grammar and Rhetoric 32, no. 1 (May 1, 2013): 9–23. http://dx.doi.org/10.2478/slgr-2013-0001.
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Abstract. The liability of an entrepreneur towards a consumer is the specific kind of contractual responsibility. The typical feature of this regime is weakness of two principles that are basic for market economy: freedom of contracts and pacta sunt servanda principle. This liability is regulated by specific acts of law. Its object is to intensify the legal protection of the consumer. Nowadays in the Polish law, the form of legal provisions concerning pro- tection of the consumer, is influenced by European Union law, especially con- sumerist directives. The Act on specific terms and conditions of consumer sale, on 27th July 2002, has huge practical significance. The basic premise of this lia- bility is the fact of ’nonconformity of goods with the contract’. Therefore there is no need to prove any damage and other premises inseparably connected with damage liability. Moreover, it must be noticed that normally specific acts of law concerning protection of the consumer, do not entirely realize the compensatory function which is typical of general principles of contractual responsibility.
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Mahinar Abu Bakar, Noor, Norhashimah Mohd Yasin, and Ng See Teong. "UNFAIR CONTRACT TERMS IN MALAYSIAN ISLAMIC BANKS: EMPOWERING BANK CONSUMERS BY ISLAMIC EDUCATION ETHICS." Humanities & Social Sciences Reviews 8, no. 2 (March 11, 2020): 13–24. http://dx.doi.org/10.18510/hssr.2020.823.
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Purpose of study: The purpose of this study is to examine the importance of Islamic education ethics-based on the objectives of Shariah (maqasid al-Shariah) to bank consumers in raising their knowledge about their contractual rights and obligations since better-decision making empowers them to avoid unfair contractual terms in transactions with Islamic banks and manage their financial affairs responsibly.
Methodology: Using qualitative analysis, this study reviews previously selected literature on Islamic education ethics and applies maqasid al-Shariahas a benchmark to determine the importance of Islamic financial literacy education. To emphasize such importance, the contents of both primary and secondary data are analyzed which include: official websites of Bank Negara Malaysia, books, academic journals, newspapers, and related industry reports.
Result: Results shows that the Islamic educational ethics based on maqasid al-Shariah empowers bank consumers to improve their reading habits in making informed choices to assert their rights by being aware of the content and fairness of contract terms towards raising their financial literacy standard in avoiding unfair contractual terms and be equipped with Islamic financial knowledge and skill to demand for equitable contractual terms.
Applications of this study: This study is important to Malaysian bank consumer empowerment since applying Islamic education ethics contributes to sound financial choice and better-decision making of whether or not to contract with IBIs since having no basic knowledge of contractual rights and obligations with Islamic banks, then they have little defense against one-sided and unfair contractual content.
Novelty/Originality of this study: Because bank consumers do not read their contracts; this study promotes Islamic education ethics in empowering bank consumers to improve financial literacy in avoiding unfair contractual terms while making informed financial decisions and increase acceptability of Islamic banking products. This study contributes to the literature on Islamic ethics specifically on Islamic financial literacy educational ethics base on maqasid al-Shariah.
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Harissa*, Teguh. "Penerapan Asas Proporsionalitas Bagi Hakim dalam Mengadili Sengketa Kontrak." Airlangga Development Journal 2, no. 2 (January 29, 2020): 72. http://dx.doi.org/10.20473/adj.v2i2.18071.
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In fact the appropriateness of the contract substance is the dismissibility of the parties ' wishes in a contractual relationship, which is based on agreement, proficiency, ability and compliance with statutory regulations. However, the appropriation and exegesis of the existence of a new problem, there is a double understanding, ambiguity to lead to the misinterpretation of the wishes of the contractual parties, which can cause The Parties ' rights and obligations. For this it is important to do a search of the red thread of a contract, which is expected to find the identity of a contract when disputed by the parties. In this case the principle of proportionality can be used as a parameter for judges in each level of justice in finding a win solution in the matter of the commercial contract he handled. This is because the proportionality measure of the exchange of rights and contractual obligations is always based on equitability, freedom, distribution-proportionate that is not independent of the principle of accuracy, feasibility and Fit. All of which can be used as a red thread of the true meaning of a contractual relationship, which in fact does not have to be centered on the proportion of the distribution of rights and obligations mathematically, but more than that through The basic search of proportionality by the magistrate of the judge, then any contractual matters handled will be resolved worthily and appropriately (fair and reasonableness) in order to achieve a win-win solution among the parties in dispute.
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Kirby, Justine. "Assignments and Transfers of Contractual Duties: Integrating Theory and Practice." Victoria University of Wellington Law Review 31, no. 2 (May 1, 2000): 317. http://dx.doi.org/10.26686/vuwlr.v31i2.5956.
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While contractual rights are usually assignable, the extent to which contractual obligations may be "assigned" or otherwise "transferred" is unclear. In this article, Justine Kirby examines the common law, section 11 of the Contractual Remedies Act 1979, and accepted methods of "transferring" obligations, and then compares the effects of a purported assignment of obligations under New Zealand, English and United States law. She argues that the law should be clarified, and offers drafting suggestions to lawyers to give effect to parties' intentions while the law remains uncertain.
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Radygin, A., and R. Entov. "Еnforcement of Property Rights and Conractual Obligations." Voprosy Ekonomiki, no. 5 (May 20, 2003): 83–100. http://dx.doi.org/10.32609/0042-8736-2003-5-83-100.
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The paper deals with theoretical approaches to the problems of property rights and contractual obligations and with analysis of economic consequences of the imperfect enforcement system. In particular, the authors consider Russian experience in the sphere of corporate conflicts. Legal and practical recommendations related to the improvement of legal framework, judiciary reform, executory process and different federal and regional authorities are also presented.
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Владимирова, Маргарита, and Margarita Vladimirova. "Legal relations, developing and solving in me diation." Advances in Law Studies 2, no. 2 (May 1, 2014): 100–106. http://dx.doi.org/10.12737/5582.
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The author offers to consider the civil side of mediation,
civil procedure, which includes functioning schemes of contractual
arrangements. The article analyzes separate real and binding relations
in mediation, components of a frame of interacting interdependent
civil rights and liabilities. Mediation is analyzed as a separate right
and a complex system of rights, which absorbing various elements of
certain legal capacity. Made assumptions about the expansion of
mediation use and its influence on civil law field.
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Price, A. "Contractual fairness: Conflict resolved?" Acta Juridica 2021 (2021): 321–42. http://dx.doi.org/10.47348/acta/2021/a12.
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In 2019 Dale Hutchison called upon the Constitutional Court to resolve the apparent conflict between certain of its judgments and those of the Supreme Court of Appeal relating to the most burning issue in South African contract law, namely, the extent to which a judge can refuse to enforce an otherwise valid contract on the grounds that it would be unduly harsh, unfair or unreasonable to do so. Two of the Constitutional Court’s judgments handed down simultaneously in 2020 – Beadica 231 CC v Oregon Trust and AB v Pridwin Preparatory School – answered Dale’s call. In Beadica, the notion that abstract values such as fairness, reasonableness and good faith serve as directly applicable standards that courts may use to control contractual content and enforcement was rejected. The established Barkhuizen test for public policy should be employed instead, ‘it was held’. Nonetheless Pridwin provides fresh impetus to the horizontal application of constitutional rights to contracting parties in terms of s 8(2) of the Constitution. The courts will have to use the latter tool carefully and incrementally, particularly in the context of commercial contracting, if the careful balance between contractual fairness and certainty achieved in Beadica is to be preserved.
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강병근. "The Protection of Contractual Rights under the International Investment Law." kangwon Law Review 28, no. ll (June 2009): 117–39. http://dx.doi.org/10.18215/kwlr.2009.28..117.
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Beladi, Hamid, Sugata Marjit, Xinpeng Xu, and Lei Yang. "STRATEGIC ENFORCEMENT, INTELLECTUAL PROPERTY RIGHTS, AND CONTRACTUAL R&D." Economic Inquiry 54, no. 4 (April 21, 2016): 1904–17. http://dx.doi.org/10.1111/ecin.12352.
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Bonthuys, Elsje. "A Duty of Support for All South African Unmarried Intimate Partners Part 2." Potchefstroom Electronic Law Journal 21 (October 30, 2018): 1–36. http://dx.doi.org/10.17159/1727-3781/2018/v21i0a4411.
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Part I of this two-part article argued that post-constitutional developments of the right to support have excluded the largest and most vulnerable sector of South African women – African women in invalid customary marriages and in intimate partnerships which do not resemble monogamous Western nuclear households. Part II explores the avenues to develop customary and common law to extend rights to support to these women. It argues that the current position discriminates against poor, rural African women on multiple intersecting grounds, which creates a duty for courts to develop the current legal rules. Customary law affords scope for development in relation to women in invalid customary marriages. Common law rights to support can be extended either ex contractu or ex lege. Because contractual support rights are of limited use to poor women, the legacy of the majority judgments in Volks v Robinson 2005 5 BCLR 446 (CC) (Volks) must be confronted to strengthen the legal basis for an automatic duty of support to all women in unmarried intimate relationships. The argument in Volks that, women choose to forego legal rights by not getting married is criticised. The minority judgment in Laubscher v Duplan 2017 2 SA 264 (CC) does, however, create potential for overturning this reasoning.
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Grin, O. S. "Legally Binding Relationships with Regard to Digital Objects of Civil Rights." Lex Russica 73, no. 10 (October 23, 2020): 21–31. http://dx.doi.org/10.17803/1729-5920.2020.167.10.021-031.
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The paper, based on the analysis of the legal nature of new digital objects of civil rights (digital rights, digital currency), makes conclusions concerning possible models of contractual relations arising from object’s data.The author relies on the fact that in relation to the category “a digital right” an independent object can be recognized only in connection with the peculiarities of the form of the object (the form in which the property rights are fixed) rather than its content. Token is seen as a technical concept. i.e. a digital way of fixing property rights. The paper substantiates that the retributive disposal of the digital right (both as a utilitarian digital right and a digital financial asset), according to which the digital right acquirer in order to transfer the right in question undertakes to pay a certain amount of money, under the general rule, should be qualified as a contract for the sale of a digital right. At the same time, in each case this also refers to the transfers the subject matter of which covers the transfer of a separate property right as an object of civil rights (cashless money, a book-entry security, a law of obligation (claims)) classified by law as a digital right.From the author’s point of view, digital currency in the system of objects of civil rights can be qualified only as “other property” in compliance with the the sui generis principle. It is concluded that transactions with digital currency should be classified as non-defined contracts. Contractual legal relations aimed at exchanging various objects for digital currency, in cases not contrary to the law, by analogy of the law, can be regulated under the rules applied to the contract of sale, the exclusive right alienation agreement or license agreement. Based on the special provisions of the law, a legally binding relationship regulating the digital currency, provided the tax authorities are not informed about such possession and transactions with such an object, has features of a natural obligation.
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Hernoko, Agus Yudha. "ASAS PROPORSIONALITAS SEBAGAI LANDASAN PERTUKARAN HAK DAN KEWAJIBAN PARA PIHAK DALAM KONTRAK KOMERSIAL / The Principle Of Proportionality As The Basis Exchange Rights And Obligations Of The Parties In The Commercial Contract." Jurnal Hukum dan Peradilan 5, no. 3 (November 29, 2016): 447. http://dx.doi.org/10.25216/jhp.5.3.2016.447-466.
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Dalam kontrak komersial, perdebatan “semu” mengenai “keadilan dan keseimbangan” yang berujung pada “ketidakadilan dan ketidakseimbangan” posisi para kontraktan pada dasarnya tidak relevan lagi untuk diungkapkan. Hal ini didasari pertimbangan bahwa dalam kontrak komersial posisi para pihak diasumsikan setara, baik pada tahap proses negosiasi (pre-contractual phase), pembentukan kontrak (contractual phase) maupun pelaksanaan kontrak (post contractual phase). Sementara itu, hasil pertukaran kepentingan para kontraktan dianggap adil apabila berlangsung secara proporsional. Proporsionalitas pertukaran hak dan kewajiban dalam kontrak komersial tidak menuntut hasil yang selalu seimbang-sama (equilibrium-matematis), oleh karenanya perbedaan hasil dianggap adil dan diterima secara wajar apabila proses pertukaran hak dan kewajiban berlangsung proporsional. Penerapan asas proporsionalitas dalam seluruh mata rantai proses kontraktual pada dasarnya merupakan perwujudan doktrin “keadilan berkontrak” yang dianut dan dikembangkan dewasa ini. In commercial contracts, the debates about 'fairness and balance' that led to the 'injustice and imbalance' position of the parties basically irrelevant to be disclosed. It is based on the consideration that the positions of the parties in commercial contracts is similar on the stage of the negotiation process (pre-contractual phase), the formation of the contract (contractual phase) and the execution of the contract (post-contractual phase). Meanwhile, the results of the exchange of the interests of the parties considered fair if it lasts proportionally. The proportionality of exchange of rights and obligations undercommercial contracts do not demand results that are always balanced and same (equilibrium-mathematically), therefore the differences in the results are considered fair and reasonably acceptable if the exchange process of the rights and obligations stay proportional. Application of the principle of proportionality in the whole chain of contractual process is basically a manifestation of the doctrine of "fairness of contract" adopted and developed today.
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Tolhurst, G. J., and J. W. Carter. "PROHIBITIONS ON ASSIGNMENT: A CHOICE TO BE MADE." Cambridge Law Journal 73, no. 2 (May 19, 2014): 405–34. http://dx.doi.org/10.1017/s0008197314000440.
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AbstractIn recent years two views have developed as to the efficacy of prohibitions on the assignment of contractual rights. One view, “the property view”, dictates that such prohibitions characterise contractual rights as choses in action and robs them of their transferable nature. Another view, “the contract view”, dictates that such prohibitions operate only at the level of contract and cannot prevent the equitable assignment of the benefit of a contract. Both views have judicial and academic support. The view that is ultimately adopted will have important implications for contract drafting and the law of assignment. This paper explains both views and puts forward an argument for adopting the property view.
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Emigh, Rebecca Jean. "Forms of property rights or class capacities: The example of Tuscan sharecropping." European Journal of Sociology 41, no. 1 (May 2000): 22–52. http://dx.doi.org/10.1017/s0003975600007876.
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This paper criticizes the economic perspective that property rights determine economic outcomes, by examining sharecropping, because this form of property right can be associated with remarkably different economic outcomes. In particular, drawing on evidence from fifteenth-century Tuscany, it is argued that landlords' and tenants' class capacities explain sharecropping's variability. The results show that Tuscan sharecropping was efficient and contractual, because the difference in landlords' and tenants' class capacity was relatively small.
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Schweitzer, Doris. "“Rights of Things”." Nature and Culture 16, no. 1 (March 1, 2021): 28–46. http://dx.doi.org/10.3167/nc.2020.160103.
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Abstract We can identify a legal vanishing point within neo-materialist and posthumanist approaches—either explicitly, for example, when things are regarded as political actors or contractual partners; or implicitly, when authors hint at the anthropocentric limitations of the granting of rights to human beings. Conversely, “rights of things” appear as a posthumanist approach to law as they decentralize “the human.” But do “rights of things” actually surmount the strict divide between humans (persona) and nonhumans (res) within law? By referring to three empirical cases—animal rights, rights of nature, and robot rights—I will argue that “rights of things” do not necessarily push against the anthropocentrism of law. Rather, we can identify a re-centralization of humans within a given milieu. Thus, the critical impact of the concept “rights of things” must be reconsidered; furthermore, we can draw some conclusions for the theoretical approaches of New Materialism and Posthumanism itself.
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Schweitzer, Doris. "“Rights of Things”." Nature and Culture 16, no. 1 (March 1, 2021): 28–46. http://dx.doi.org/10.3167/nc.2021.160103.
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We can identify a legal vanishing point within neo-materialist and posthumanist approaches—either explicitly, for example, when things are regarded as political actors or contractual partners; or implicitly, when authors hint at the anthropocentric limitations of the granting of rights to human beings. Conversely, “rights of things” appear as a posthumanist approach to law as they decentralize “the human.” But do “rights of things” actually surmount the strict divide between humans (persona) and nonhumans (res) within law? By referring to three empirical cases—animal rights, rights of nature, and robot rights—I will argue that “rights of things” do not necessarily push against the anthropocentrism of law. Rather, we can identify a re-centralization of humans within a given milieu. Thus, the critical impact of the concept “rights of things” must be reconsidered; furthermore, we can draw some conclusions for the theoretical approaches of New Materialism and Posthumanism itself.
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Forder, Caroline. "Socialist mountains out of capitalist molehills: ownership and use of land in the German Democratic Republic." Legal Studies 6, no. 2 (July 1986): 154–69. http://dx.doi.org/10.1111/j.1748-121x.1986.tb00541.x.
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To understand the rights in land of a person in the GDR the first task of an English lawyer is to consider the rules being applied in terms of concepts and institutions in operation in England. The GDR have opted for a ‘mixed’ property system, retaining ‘pure’ personal ownership (similar to the rights given to landowners under English law) alongside the socialist creatures: contractual rights (use-contracts) and the hybrid use-rights in public land. Property law has long provided for the creation of rights which provide at the outset for the conditions under which the right will end; this is one of the principal attributes of leasehold tenure in England. It is indeed striking how many of the characteristics of use rights can be discovered among the provisions and decisions upon the security of tenure of tenancies in England.
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Sevryukova, Inna. "Problems of the definition and characteristics of the contractual basis for the limitation and encumbrance of ownership of real estate in Ukraine." Yearly journal of scientific articles “Pravova derzhava”, no. 32 (2021): 341–48. http://dx.doi.org/10.33663/0869-2491-2021-32-341-348.
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Introduction. The legal description of the contractual grounds for restrictions and encumbrances on the right of ownership of real estate can be provided only after a comprehensive study of the common features of the contractual structures, which establish the relevant rights and obligations of the parties. The main common feature of such agreements is the emergence of appropriate property benefits for the owner, which is to enable the owner to satisfy their interests at the expense of someone else's real estate, resulting in restrictions and encumbrances on property subject to the contract. It should also be emphasized that each subjective right has its limits of exercise, including the subjective right of ownership, as well as other real property rights. Of course, the nature of such restrictions must be different and depend on the content and nature of the restricted right, its object and the grounds for the restrictions. That is, restrictions on property rights and other property rights cannot be the same. Restrictions on property rights are established in the interests of society and arise by law, as well as in the interests of individuals (on the basis of law, contract, court decision), and restrictions on other property rights are primarily due to protection of the property from which they originate and the legitimate interests of the owner. In our opinion, the category of real contracts should include those types of contracts relating to real estate, including contracts of encumbrance of property rights on the basis of which the rights subject to state registration arise. Purpose and objectives of the study The main common feature of such agreements is the emergence of appropriate property benefits for the owner, which is to enable the owner to satisfy their interests at the expense of someone else's real estate, resulting in restrictions and encumbrances on property subject to the contract. Therefore, we can argue for the existence of a certain generalizing type of contract, the features of which are inherent in all its subspecies, in particular, contracts for the establishment of easements, superficies, emphyteusis, mortgage agreement. Such an agreement in the legal literature is called by some authors as a real contract. However, issues concerning its legal nature, place in the system of civil law contracts remain debatable. Research methods. The research carried out in the article is based on the assessment of generally accepted approaches to defining the characteristic features of problematic issues of contractual grounds for the emergence of restrictions and encumbrances of property rights to real estate. It should be emphasized that these issues are controversial due to the lack of clear legislative regulation, which leads to imperfect legal regulation and violations of the rights of participants in property turnover. Research conclusions. As a result of the study, the idea is given that in the current legislation of Ukraine due to the lack of a clear concept of the relationship between the category of "encumbrance" and "restriction" of property rights, as well as the uncertainty of property rights, some questions remain about the classification of certain rights accordingly, about the types of material contract, this issue is debatable and needs further study. It is possible to make about polystructurality of the real contract that causes division of this type of the civil law contract into kinds and subspecies. In our opinion, such a division depends on the legal nature and scope of the relevant types of restrictions and encumbrances on the right of ownership of real estate, which are proposed by current civil law.
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Mykhalniuk, O. V. "Divorce Agreements: Certain Theoretical and Practical Aspects." Legal horizons, no. 18 (2019): 28–33. http://dx.doi.org/10.21272/legalhorizons.2019.i18.p28.
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The article deals with the problems of contractual regulation of the relationship between spouses in the process of divorce, determination of the terms of agreements on the maintenance, and the upbringing of children in the order according to Art. 109 Family Code of Ukraine, identification of contractual forms for settlement of other issues arising in the process of divorce, namely: division of property, separation of shares from the joint property of spouses, use of joint property, provision of housing interests of children, etc. Considerable attention was paid to the issues of improvement of Art. 109 of the Family Code of Ukraine. The view is expressed that the husband and wife, resolving the issue of divorce by mutual consent according to Art. 109 of the Family Code of Ukraine, are obliged on a contractual basis to determine the living conditions of children after divorce, by concluding two types of agreements: the agreement on the exercise of parental rights and obligations (Part 1 of Article 109 of the Family Code); the agreement on the maintenance of the child to those of the parents who live separately or the agreement on the discontinuation of the right to alimony in exchange for the acquisition of ownership of real estate (Part 2 of Article 109 of the Family Code of Ukraine). It is also argued that a spouse in the divorce process may enter into a single agreement, combining the terms of both agreements (on maintenance and on upbringing). The main characteristic of the agreement on discontinuation of the right to alimony in exchange for the acquisition of the property right for real estate with the purpose of securing the housing rights of the children in divorce is investigated. Given the need to resolve on a contractual basis a wide range of divorced life issues, it is proposed to consider family law agreements in the process of divorce in a narrow and broad sense. The article also analyzes the practical prerequisites for implementation a single comprehensive divorce agreement into the legislation of Ukraine, as well as proposes to distinguish it from the marriage contract in the case of divorce. Keywords: divorce, simplified divorce procedure, contracts between spouses, upbringing and maintenance of children, discontinuation of the right to alimony.
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Wiese, Mitzi. "The The Legal Operation of Liens: Theory and Practice." Potchefstroom Electronic Law Journal 24 (February 19, 2021): 1–23. http://dx.doi.org/10.17159/1727-3781/2021/v24i0a8721.
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The legal operation of liens has been the source of academic debates for many years. Liens are traditionally classified as enrichment liens and debtor-and-creditor liens (contractual liens). In the instance of an enrichment lien the creditor (lienholder) has a contract with a non-owner and not with the owner (debtor) himself. Consequently, the creditor can vest a lien against the owner of the thing only on the grounds of unjustified enrichment. Enrichment liens are classified as real rights. In the instance of a debtor-and-creditor lien (contractual lien) the creditor (lienholder) has a contract with the owner of the thing and the contract is the basis for the liability of the owner (debtor) towards the creditor. Debtor-and-creditor liens are generally classified as personal rights. This classification causes confusion regarding the legal operation on the one hand of an enrichment lien as a real right and on the other hand of a debtor-and-creditor lien (contractual lien) as a personal right. This paper proposes that the origin of the legal claim for which the lien serves as security (unjustified enrichment or contractual) merely determines the debt (expenses) for which a lienholder can vest his lien and does not determine the classification of a lien as either a real right or a personal right. A lien can be described as a defence against the owner's rei vindicatio and is, in principle, enforceable only against the owner of the thing (security object). A lien can, however, also be enforced against parties other than the owner, including the creditors (who, for example, want to attach the thing subject to the lien) of the owner (debtor) and other real claimants. The enforcement of a lien against these parties is referred to as the real operation (third-party action) of a lien. This paper analyses the legal operation of a lien with specific reference to the debt (expenses incurred) secured by the lien, the vesting (existence) of a lien, the real operation (third-party action) of a lien and the preferential position of a lienholder in the case of the debtor' insolvency.
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Boo Chan Kim and TIAN Ke. "The Expropriation and Protection of “Contractual Rights” under International Investment Law." 법과정책 17, no. 2 (August 2011): 85–125. http://dx.doi.org/10.36727/jjlpr.17.2.201108.004.
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CLARKE, L. "NOTES: Pregnancy and Dismissal: the Interaction of Statutory and Contractual Rights." Industrial Law Journal 24, no. 2 (June 1, 1995): 170–76. http://dx.doi.org/10.1093/ilj/24.2.170.
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Martinkute, Inga. "The Delimitation of Contractual Rights and Property in International Investment Law." European Investment Law and Arbitration Review 1, no. 1 (2016): 1–32. http://dx.doi.org/10.1163/24689017-00101002.
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Zimmerman, Jory Bard. "Exclusivity of Personal Services: The Viability and Enforceability of Contractual Rights." Journal of Arts Management and Law 16, no. 3 (September 1986): 61–88. http://dx.doi.org/10.1080/07335113.1986.9942176.
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Jalalian, Askar, and Elnaz Nasiri. "Contractual Obligations and Customer Reviews on the Bank Rights of England." Kuwait Chapter of Arabian Journal of Business and Management Review 3, no. 10 (June 2014): 199–209. http://dx.doi.org/10.12816/0018401.
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Varney, Eliza. "Redefining contractual capacity? the UN Convention on the Rights of Persons with Disabilities and the incapacity defence in English contract law." Legal Studies 37, no. 3 (September 2017): 493–519. http://dx.doi.org/10.1111/lest.12166.
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How can the incapacity defence in contract law coexist with the concept of universal legal capacity advanced by the UN Convention on the Rights of Persons with Disabilities (CRPD)? In the absence of clear guidance from the CRPD on the link between legal capacity and mental capacity, and given the silence of this Convention on the concept of contractual capacity, this article stresses the need to redefine contractual capacity in a manner that responds not only to economic interests (eg upholding the security of transactions) but also to social interests (including the protection of values such as dignity). The discussion insists that incapacity and disability must never be conceptually equated and calls for a definition of contractual incapacity that moves beyond the medical condition of individuals (whether this is known by or apparent to the other contracting party) and which considers the circumstances of the transaction. These arguments are explored in the context of English contract law, focusing on the question of contractual validity when a party lacked the mental capacity to understand the transaction and the other party was unaware of the incapacity and acted in good faith.
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Buletsa, S. B. "Concept, types and signs of responsibility in the field of medical activities." Analytical and Comparative Jurisprudence, no. 1 (July 1, 2021): 37–42. http://dx.doi.org/10.24144/2788-6018.2021.01.7.
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The development of medical science, the improvement of the living standards of the population and the establishment of democratic institutions contribute to the increase of the requirements for the activity of medical workers and to the increase of cases of bringing them to justice for improper performance of professional duties. Civil law distinguishes between types of liability according to different criteria. Thus, on the basis of the rights and obligations, for the violation of which liability is established, it is divided into contractual and non-contractual. Contractual and non-contractual civil liability have some common generic features. Liability in medical activities arises in case of violation of rights and responsibilities. The activities of health professionals (doctors, nurses, support staff) in any case, aimed at the patient, he receives medical care, taking into account his health, physical condition, and aim at positive changes in the patient's health. In the case of contractual liability, the terms of the contract are violated, in the case of non-contractual (tort) liability between the violator and the victim before the violation there were absolute legal relations. The behavior of the offender must be active, ie passive behavior is not the basis for tortious liability, but only if there are special rules of law that provide only for active behavior (doctors).
Tort liability damages the general prohibition, where potentially harmful conduct is not clearly defined by law, as any active conduct is illegal and associated with the occurrence of the damage.
Contractual liability will arise in compliance with the terms of liability, especially the causal link, ie the objectively existing link between the wrongful conduct of the debtor and the adverse consequences that have occurred. The classic features of the contract, of course, are more clearly manifested in private medical services (eg, dentists, private medical institutions), there are contractual relationships.
Liability in the field of medical activity is a type of legal liability, ie the implementation of a sanction of a legal norm, which by its nature is a means of coercion, is accompanied by condemnation by the state and is expressed in imposing on the perpetrator of violation of intangible consequences of a material nature.
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Ellerman, David. "Corporate governance, capital theory, and corporate finance theory: An approach from property theory." Corporate Ownership and Control 1, no. 4 (2004): 13–29. http://dx.doi.org/10.22495/cocv1i4p1.
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An analysis of the corporate governance debate is developed using a descriptive theory about the system of private property and contract in a market economy. There are strong implications for capital theory and corporate finance theory. The structure of the main results is that what often appears as being an owned property right is upon analysis seen to be only a contractual position—and contractual positions only extend a few years into the future. An enterprise could be described concretely as specific people working with specific machines producing a certain product or it could be described more abstractly using the economists’ notion of a production function. But either way, it is not determined who is legally undertaking the enterprise until the contracts between the factor suppliers are given. Thus the determination of who undertakes an enterprise is contractually determined; it is not an owned property right. In this sense, there is no such thing as the "ownership of the firm" since the party undertaking an enterprise, the residual claimant, is determined by the direction of the hiring contracts. There is the ownership of a conventional joint stock corporation, but a corporation does not "own" the enterprise that it is currently undertaking by virtue of its contractual position. For another party to take over the enterprise, it is sufficient to redo the contracts, not "buy the firm." Since a corporation’s paid contracts at best extend only a few years into the future, there is no basis for the common assumption in capital theory or corporate finance theory that the corporation "owns" the future enterprise cash flows in perpetuity. This simple result thus has rather strong implications for considerations of enterprise governance as well as for capital theory and corporate finance theory. Many of the "ownership" assertions that fuel the debate about enterprise governance are groundless, and the discounting of future enterprise net returns beyond the horizon of current contracts does not represent the valuation of current property rights.
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Apreda, Rodolfo. "Who is the ultimate master of contractual, regulatory, discretionary and residual cash flows? An answer from the standpoint of corporate governance." Corporate Ownership and Control 6, no. 1-4 (2008): 424–32. http://dx.doi.org/10.22495/cocv6i1c4p1.
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This paper sets forth a framework of analysis that links contractual, discretionary, regulatory and residual cash flows with decision rights over them. To attain this purpose, firstly we introduce the standard incremental cash flow model, underlying its main limitations. Secondly, we move on bringing to light cash flows to senior management and directors, as well as the so-often neglected investment portfolio. Next, we settle down to what we are going to call the compact cash flow model that comprises five building blocks, namely those arising out of assets, those addressed to owners, creditors, managers and directors, and lastly the company’s investment portfolio. Afterwards, contractual, discretionary, regulatory and residual cash flows are enlarged upon. Last of all, we focus on decision rights over every constituent of each building block. This issue carries weight in Corporate Governance since stakeholders who claim or exercise decision rights, also could trespass on the rules of the game, becoming better off to the expense and damage of other stakeholders.
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Ondřejek, Pavel. "A Structural Approach to the Effects of Fundamental Rights on Legal Transactions in Private Law." European Constitutional Law Review 13, no. 2 (May 26, 2017): 281–304. http://dx.doi.org/10.1017/s1574019617000062.
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Horizontal effect of fundamental rights – Legal principles – Dichotomy between private and public law – Systemic or anti-systemic elements in legal orders – Conflict between contractual autonomy and fundamental rights – Coherence in law – Balancing – Cases of permissibility of bank charges in the Czech and German legal systems – General clauses on good morals and good faith in private law