Dissertations / Theses on the topic 'Droit spécial des contrats'
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Raymond, Raphaële. "Droit commun et droit spécial des contrats d'affaires." Versailles-St Quentin en Yvelines, 2012. http://www.theses.fr/2012VERS026S.
Full textAlthough viable in 1804, the separation of contractual matters into "general rules" and "rules particular to certain contracts" needs to be clarified today. On this basis, the purpose of this study is two-fold. In the first place, we propose a reading of the dialectics of common law and special law by counterbalancing ordinary rules and non-ordinary rules. It will be seen that the rules used to regulate contracts, currently outside the established order of Article 1107 of the Civil Code, are reinstated in contractual law. As such, competition law becomes special business contract law. In the second place, we endeavour to understand the organisation of this "new contractual order". By doing so, we bring to light the respective influence of the two sets of legal rules on the validity of contractual behaviour and contents and we assess the management of their coexistence
Bérenger, Frédéric. "Le droit commun des contrats à l'épreuve du droit spécial de la consommation : renouvellement ou substitution ?" Aix-Marseille 3, 2006. http://www.theses.fr/2006AIX32012.
Full textThis thesis tries to introduce a new light of account between these two laws detecting a specifical movement existence: the substitution of contract common law by the consumption law. It tries, first, to prove that the special law cannot enable a common law change because, on the one hand , these new legal definition cannot blend with it, and on the other hand, the common law used by specifical law is altered by its coherence. The study tries next to demonstrate the existence of an extensive interpretation of specifical law then the contamination of common law by specifical law. The synthesis of analysis must permitted to put to good use the proposition which stipulate that the movement of the substitution of contract common law by consumption law can be a possible new description of the account between these two laws
Goldie-Genicon, Charlotte. "Contribution à l'étude des rapports entre le droit commun et le droit spécial des contrats." Paris 2, 2006. http://www.theses.fr/2006PA020056.
Full textSénéchal, Juliette. "Recherches sur le contrat d'entreprise et la classification des contrats spéciaux." Lille 2, 2004. http://www.theses.fr/2004LIL20021.
Full textThe system of civil code's special contracts is faced with the original flaw : the "hiring of labor-contract for work by a job". Placed by mistake in the hiring of labor family contracts for which it doesn't own the common property - the disposal -, the contract for work by a job constitutes from the origin a heterogeneous and residual notion, without any real law system. Neither the judge nor the modern legislator have been able to fill the gap in, so that the contract for work by a job competes with the unnamed contracts' category and doesn't perform its function of services supplies's regulation. This difficulty has justified trying to give a new definition of the contract for work by a job in order to let it become a restrictive and homogeneous category with a complete law system. This proposal has required a new contracts' classification that modifies the limits of the sales contract and the contract for work by a job and also bases the last one on two characteristics : a performance of services conceived by the contractor according to specific need of the client ; a postponed services supplies compared to the date of the signing of the contract
Herrera, Moreno Jorge Ivan. "La cessation du contrat de distribution en droit colombien : l'apport du droit français." Thesis, Paris 2, 2018. http://www.theses.fr/2018PA020062/document.
Full textUnder Colombian law, there are different legal regimes governing the termination of distribution contracts. In particular, the rules of the termination of the commercial agency contract differs from the rules of other distribution contracts, such as the concession and franchise contracts. This difference stems the fact that the legislator established rules of protection in favor of the commercial agent in a particular political-economic context whereas he did not worry until now about the regime of termination of the other distribution contracts. This differentiated treatment is, however, highly questionable. In addition, the application of the general contract law is revealed to be unsuited in many respects to the peculiarities of the termination of distribution contracts. In order to overcome these issues, a special common regime for the termination of distribution contracts is possible, which is based on the unity of their characteristic performance and on their common structural characteristics. Special regime, it allows to understand the special nature of these contracts. Common regime, it allows to remedy unjustified differences in legal regime. A proposal of the rules which make up this common regime is necessary
Zoïa, Michel. "Incidence du droit communautaire sur les contrats spéciaux." Toulouse 1, 1999. http://www.theses.fr/1999TOU10046.
Full textAnalysing the effect of the European Union law on special contracts may seem surprising insofar as neither harmonization nor standardization of the legislation of the member states is specified by the European Union treaty, a text essentially dealing with economy. However, it can't be denied the European Union law has an increasing effect on special contracts, mainly on two law bases, the consumer protection law and the competition law. Those rules which all take on a public policy aspect, respectively concerning the protection of particularly or general interests, seem at first irremediably opposed to the French law, animated by the principle of the autonomy of the will. Nonetheless, the internal law is also characterised by a development of that public policy, thus reducing the principle of the autonomy of the will. In that field, the double component of the public policy established by the European Union law can be found again, which is not surprising for most French texts are derived from a community text. Nevertheless, the effect of the European Union law varies, depending on whether it is a matter of protection of particularly or general interests. As far as the former is concerned, if the French law preceded the European Union law relating to the adoption of an imperative regulation of the weaker part of the contract, the European Union law all the same involves a reinforcement to it (part 1). As to the latter, the European Union law has played the role of a precursor insofar as the French law has known an evolution, constantly aiming to conform to its solutions over the European Union law ones. Therefore, the European Union law has been at the origin of the transformation of the competition laws into an instrument of regulation of the contract which has led to the creation of an indirect and imperative regulation of the special contracts concluded between enterprises (part 2)
Jacquot, François. "Du contrat de vente au droit de la vente : réflexions de théorie générale sur un contrat spécial." Nancy 2, 1988. http://www.theses.fr/1988NAN20002.
Full textIn so far as it is a privileged means in all economic tradings as well as the major medium through which the right of property - when deprived of its individual and absolute character - can be conveyed, it seems that the bill of sale represents a most valuable observation post from which to study the range of changes the process of binding agreements is undergoing nowadays. Despite the ever-asserted principale of the preeminence of individual will "in the notion of contact, as well as under the legal terms of that contract, it turms out that constraint in its most varied aspects affects each element of the sale and inevitably prevails over the will-power of both contracting parties. Thus the determining of the contractual content does not actually belong to the seller or the buyer : indeed, it seems to be more ans more beyond them. In the same way, the very role originally played by the shared consent of the two parties is fading away. As a consequence, the classical theory defining the contractual pro- cess - mosthy based on the notion of consent - is altered to such a point that it becomes necessary to adopt a more objective approach to the notion of contract, as it is widely advocated by an increasing number of authors within the contemporary doctrine. (. . . )
Mazaud, Anne-Laure. "Contrat de travail et droit commun : essai de mesure." Thesis, Lyon, 2016. http://www.theses.fr/2016LYSE2157.
Full textWhen wondering about the relationship between employment contract and general law, autonomist claim is usually immediately brought up. Yet, the point is not to claim, but to define the propensity to autonomy of labor law in regard of general contract law, many times asked, and always renewed. Precisely, this measurement essay reveals deeply nuanced results. Thus autonomy could not be definitely accepted due to many manifestations of the subservience of employment contract to general law. However it cannot be totally contradicted because of the incontestable emancipation of the employment contract from the general law. To understand this apparent contradiction, the subject must be divided. The approach cannot be global and the study must deal with distinct subjects. The employment contract system is indeed oscillating between two poles: autonomy and dependence. Emancipation towards general law is almost complete when considering some questions. Concerning some other questions, subservience can only be noted. Moreover, the results of this research are leading to affirm that autonomy and dependence are not two distinct areas, separated by a hermetic border. Hence, dependence must be admitted when general law is preserved, though autonomy already appears when general law is appropriate. It is more intense when general law is distorted, and reaches its ultimate degree when general law is ousted. A kind of continuum is observed between these two poles – subservience and autonomy – on which questions about employment contract are organized. Consequently, when measuring the relationship between employment contract and general contract law, everything is a matter of degrees, proximity and distance correlative to these two extremities of the spectrum
Cadoret, Vincent. "Réflexions sur les contrats d'affaires : plaidoyer pour une théorie réaliste du contrat." Thesis, Montpellier 1, 2012. http://www.theses.fr/2012MON10021/document.
Full textBusiness is not inclued as well in french general theory of contract. Legal research on business contracts seems therefore to be a critical view on that general theory. Throuhg the identification of a notion of business contract, then through its materialization thanks to a realist approach to Contracts Law, legal research on business contracts aim at a method which could get economic reality in legal reasoning. An economic analysis of contract on the one hand and an economic analysis of Contract Law on the other hand express a realist theory of contract, which discuss equity about principles and method of the french general theory of contract and the normative approach of Law. This realist theory introduce a method to explain why and how a judge would choose to throw off general theory's rules to decide on a case, when it would have seemed necessary
Sassolas, Delphine. "Les contrats de crédit." Thesis, Grenoble, 2012. http://www.theses.fr/2012GREND021.
Full textBeyond the diversity of legal techniques aimed at performing a credit operation, the credit agreement has its own unique definition. It can take the form of a money loan, a credit opening, a leasing agreement or a hire purchase. However, claiming the existence of a conceptual unity and autonomy for this special agreement implies going beyond the issues related to its interdependence with financed agreements, to the banking monopoly and its numerous exceptions, and to the distinction to be made between professional and consumer. Functional unity is visible in the adaptation of ordinary law of agreements principles through the rules applicable to credit agreements. Consensualism, contractual freedom and the binding force of agreements are confronted with credit agreements' typical mechanisms (formality, duty to warn, period of withdrawal, interdependence, early repayment, repayment by acceleration, etc.). This unity is nevertheless compromised by the acknowledgement of provisions specific to credit agreements granted to consumers
Heit, Stéphane. "Du droit de louage de choses au contrat de location mobilière : réflexions sur la théorie générale et l'évolution d'un contrat spécial." Nancy 2, 1993. http://www.theses.fr/1993NAN20003.
Full textThe movable location's agreement turns out to be a frequently complex deal which is no longer a simple disposal of a personal property. Partly complete services frequently join the rental dealing, those services including the renting thing's simple technical charge and an efficient staff supplying as well. Then a new classification of a movable location's agreement has to be proposed. This one is based on a single movable location's qualification refined with sub qualifications by accessory obligations. Besides, as the movable location's agreement is characterized by a lake of specific disposal, then it is subject to the renting's common right as instituted in the civil law. Then the applications of the civil law's disposition (1714 to 17462) to the movable lease have to be defined, as the partied did remain quiet and as those dispositions were definitely instituted for real lease. At last, the renting property promoted by its movable type allows an easy moving and it cannot be distinguished from those belonging to the tenant; the lessor's estate right is then weakened and the lessee's creditors might be betraied by a specious solvency. It is then proper to palliate to this lake of juridical security by proposing an advertising system
Pimbert, Agnès. "Le contrôle judiciaire du contrat d'assurances terrestres : essai sur les rapports entre le droit commun des contrats et la législation spéciale de l'assurance." Poitiers, 2000. http://www.theses.fr/2000POIT3003.
Full textGamet, Laurent. "Les contrats de travail conclus au titre des dispositifs publics de mise à l'emploi : contribution à l'étude des contrats de travail spéciaux." Lyon 2, 2001. http://theses.univ-lyon2.fr/documents/lyon2/2001/gamet_l.
Full textFrench legislator has created a lot of atypical employment contracts in the frame of public employment policy. Those contracts reveal two main features, which distinguish them from the other employment contracts and unite them in a single family. One the one hand, authorities aim to carry out a public goal throughout those contracts. That implies that the employer benefits from public subsidies and public administration is able to intervene in the contract's formation process. One the other hand, the employer has not only to pay the slary, but also to train the employee or to participate in his " insertion programm " established " by authorities. From a technical point that implies a combinaison of an employment contract with an other convention. The result is a single contract ("contrat complexe") or a pair of contracts united to each other ("complexe de contrats"). The emergence of new obligations has a direct influence on the work required of the employee, and on the employer's management power. Moreover, when this latter does not carry out his obligations, the employee has the right to pursue him. The judge will recognize that their relationship is in fact a typical employment contract. The employee will therefore gain damages. One can not miss that, in the future, combination of activities of production, training or involvement in non-profit organizations will be the common rule. If we follow those prospects, the atypical contracts, promoted in the frame of public employment policy, reveal what could be, in the next decades, the common employment contracts
Dupre, Marc. "Contribution à une théorie générale des contrats spéciaux : apports du principe de liberté contractuelle tempérée." Toulouse 1, 2011. http://www.theses.fr/2011TOU10039.
Full textLaw of contracts is part of an ideological, historical and juridical current which gives to this field specific characteristics. The principle of temperate contractual freedom summarizes this specificity of law of contracts, primarily founded on framing the relationship between the different parts rather than on considering the balance of benefits. However, studying common law of contracts allows one to demonstrate the insufficiencies of this relational approach to contracts. The examination of special law of contracts demonstrates the evolution of the special rule in the field of contracts. While most authors advocate developing families of contracts or intermediate rules common to all contracts, this study proposes a prospective view for remodeling both parts of contract law and for contributing to build a general theory of special contracts. The principle of temperate contractual freedom allows pinpointing some ideas to improve this relationship between the criticized common law of contracts and the recently growing area of special law of contracts
Loyer, Clémentine. "Les mesures de prévention du surendettement des particuliers : à la croisée des chemins des droits commun et spécial." Thesis, La Rochelle, 2014. http://www.theses.fr/2014LAROD004/document.
Full textRecently created the overindebtedness legislation has always aimed to prevent and cure individual indebtedness situations. To his origin as the “right not to pay its debts” the indebtedness law has been integrated into the French consumer Code. Essentially seen as a consequence of consumption exerted on credit, preventive measures have been developed in the framework of the rules of formation and execution of credit agreements and surety. Given the inadequacies of this preventive legislation, the common law of contract is, in turn, came to make rules for any shortcomings of legal action. Despite the benefits of the law, the effectiveness of prevention, however, is relative. Indeed, as the difficulty of reconciling preventive sources that the restrictive approach proposed of the phenomenon, have no benefit on the development of effective prevention. It is through procedural overindebtedness rules but also in redefining the concepts of debt and the vulnerable person to the risk of debt distress, that the answers to more efficient prevention appear
Groffe, Julie. "La bonne foi en droit d'auteur." Thesis, Paris 11, 2014. http://www.theses.fr/2014PA111016.
Full textGood faith, vague notion which refers to morality and that is derived from common law, can occur in all branches of law. As such, it is naturally applicable in French copyright law, which is the special law that provides the protection of the relationship between the author and the work that he created and that recognizes moral rights and economic rights in favour of the author. Good faith has a double definition: it means both a misbelief in a situation – that is the subjective dimension – and a requirement of loyalty, which refers to its objective dimension. The choice has been made, in this study, to embrace the whole concept instead of focusing on one or the other side of good faith. Because the aim of this thesis is to analyze how a concept of common law can intervene in a special law, it seemed wise to accept its polymorphism instead of deconstructing the concept. The difficulty is that good faith – in its objective dimension as in its subjective dimension – is often absent from the special law: as a consequence, a first analysis might suggest that this concept has no role to play in this area. However, it finally appears that the notion does exist in French copyright law, whether its intervention is positive (and in that case good faith is taken into account and recognized) or negative (in which case the concept is deliberately excluded from the solutions). The expressions of good faith arise in two forms in this field. On one hand, they may be specific to French copyright law: the concept can be used to answer the questions related to the determination of the exclusive right that is granted to the holder of rights, or the questions related to the penalties for copyright infringement. In these hypotheses, the use of good faith is a choice made by the judge or, more rarely, by the legislator and it fulfills a specific objective, proper to French copyright law: this objective is often the defense of the author or, on a wider scale, the right holder. On the other hand, the expressions of good faith can be imported from common law. If the privileged place of intervention in that case is the author’s contract (which is the contract that organizes the exploitation of the work), due to the applicability of the article 1134, paragraph 3, of the French Civil code – which imposes a duty of good faith during the performance of the contract –, good faith also has a part to play beyond this contract. In these cases, the use of the concept is imposed to the judge and the legislator – because both must take into account the general rule when it is not in contradiction with the special one – and the aim is to fulfill a general objective, external to French copyright law: then the goal is to protect the balance of relationships or to guarantee legal certainty. As a consequence, the expressions of good faith in French copyright law are plural and call for questioning the interference between common law and special law
Aubin-Brouté, Raphaèle-Jeanne. "Le contrat en agriculture." Thesis, Poitiers, 2013. http://www.theses.fr/2013POIT3014.
Full textContracts concluded by the farmer for the satisfaction of its professional needs form a family of contracts : all have part in the public action in agriculture. Their common identity is methodological. The contract is a legal instrument of the agricultural policy. All its utilities are mobilized for protecting the farmer or managing the agriculture. The special law of the agricultural contracts allows the penetration in the legal act of the value system chosen by the State. The contractual public order in agriculture also shows itself by an action of police of the contract. The contract in agriculture is not only an object of the public action : it is also one of its modalities. The contractualization shows itself at first by a joint production of the legal rule, with the State or between professionals. It shows itself then by the research for the consent in the standard, specially environmental. The contractual speech justifies the public action in agriculture. The agro-environmental contract allows the public remuneration for an ecological or territorial performance supplied by the farmer. This thesis brings to light a deep change of paradigm in the agricultural policy. While the law of the exploitation is absorbed, partly, by that of the company, an original legal corpus appears which proceeds of the new multifunctional identity recognized by the agricultural activity. This thesis also reveals the methodological sliding which takes place of the private contractual law forced by the public law towards the public law produced by contract
Coll, de carrera Sophie. "Le mandat de protection future." Thesis, Montpellier, 2016. http://www.theses.fr/2016MONTD053/document.
Full textThe mandate of future protection is a conventional measure that organizes in advance the protection of patrimonial interests and/ or someone’s personal interests, for the day this person won’t be able to take care about herself following an alteration of her own abilities. The latter is recorded through a movement of contractualisation of the right of people and of the family prevailing individual will. The mandate of future protection is an innovation in French law that debunks traditional ideas. Nowadays, the measure of protection can be negotiated by the parts that instaure their own law. The person is associated to her own protection. Even if it is an institution often debated from a protective point of view as well as on the technique used to make it (the contract), this very measure is in a constant evolution since it was created and the slow but progressive use of it is becoming more important through the years. Time will be a determining factor to appreciate this new tool on the legal scene
Abonnat, Marine. "Le doute probatoire en matière contractuelle." Thesis, Sorbonne Paris Cité, 2018. http://www.theses.fr/2018USPCD043.
Full textDoubt is a state of uncertainty of the mind ; it is omnipresent in legal proceedings. Indeed, doubt is carried on flawlessly by together the point to substantiate, the available means used by the opposite sides and the relevant argumentation intended to convince the judge. More, doubt is detrimental to the judge and the different sides ; one is worried to at least serve justice, while the others are expecting the judge’s decision. Hence, doubt must be are maining inference ; it must be subsidary. Well, at deliberation, doubt is managed by the legislator and the judge. On the one hand, il is lessened by several mechanisms which refer to the point to substantiate, the available means and relevant argumentation of evidence, when some are attributable to administrative or extra administrative law handling with evidence. Moreover, if doubt remains up on examination, then it is under consideration. The judge decides which side loses the procedure agreeing the choice of the legislator or else he thoroughly expounds fundamental principles refering the law. So the judge and the legislator both consider doubt focusing precised and different featured purposes. However, the opposite sides may be offended by the legislator’s and judge’s decision. This is the reason why opposite sides can handle doubt within contract law. More specifically, they can lessen it, manage it even judge it, using clauses involving direct or indirect impact upon the evidence. Far from absolute nevertheless the handling of doubt by both sides embraces bounds of evidence and contract
Saint, Genis Solène. "La préférence en droit des sociétés : contribution à l'étude de la liberté statutaire." Thesis, Lyon, 2018. http://www.theses.fr/2018LYSE3073/document.
Full textThe impact of contractual freedom in associates’ relations is often contextualized, if not annihilated, with regard to the mandatory rules governing legal entities. The hypertrophy of those rules is sometimes criticized. Not only is freedom limited, it also suffers from a principle of equality, which prohibit unequal treatment, unless it is on exceptional occasions. However, upon a thorough text analysis, the preference turns out to be the expression of contractual freedom in the relations between associates. It adopts a similar system: apart from intentional prohibitions – originating both from the general theory of contract and corporate laws -, and from excessive inequality –to which social interest acts as a protector in that area-, as soon as the consent of the associates to the organization is free and enlightened, the principle is the freedom to stipulate an alterity of processing. Whichever social form is considered, the associates receive an important freedom to build all their prerogatives reflecting their needs. With constructive and dynamic inequality in social interest’s service, preference must be promoted: the wish must be expressed again with a clarification and a simplification of the standard framework offered to French companies statuses
Dupouy, Sabrina. "La prise en compte des données environnementales par le contrat." Thesis, Aix-Marseille, 2016. http://www.theses.fr/2016AIXM1068.
Full textThe notion of environment embraces the “natural and artificial living environment of man” which means “the living space” of the human being. Today the quality of this environment takes on an increasing importance in the legal order. Environmental law, which follows the purposes of environmental protection and protection of the human being, is now investing private law. In particular, contract law seems significantly affected by the level of requirement of environmental quality. In this context, what is the role of a contract in front of growing contemporary concerns regarding environmental quality ? It seems that the environment is comprehended by the contract as an ambivalent element. On the one hand it is indeed a risk against which it is necessary to protect the contracting party and, on the other hand, a value that can be directly protected by the contract. The contract is subsequently without doubt shaped by the parties themselves, as well as by the judge and the legislator to protect the contracting party against environmental risks and to contribute to environmental protection
Aubert, Sylvie. "Essai sur le contrat spécial." Tours, 1994. http://www.theses.fr/1994TOUR1012.
Full textContrats classification can be renewed from the object of contract, and however we do not take in consideration cause. This classification is based on a distinction made between special, specialized and dispecialized contract. Its allows to appraise exactly how obligatory the contract is and can constitute the beginnings of a remedies theory
Laval, Sarah. "Le tiers et le contrat : étude de conflit de lois." Thesis, Paris 1, 2014. http://www.theses.fr/2014PA010259.
Full textWhile Substantial Contract Law is characterized by the decline of party autonomy, Private International Law makes it the main conflict rule in the field of Contract. Besides this reversed evolution, a similar trend is shaping Substantial Contract Law and Private International Law of Contract : the contract incorporates third parties, both through the rights it creates as well as through the increase in ties between parties and third parties. Coherent with the scaling down of party autonomy in Contract law, the connection between the third party and the contract goes against the conflict rule in the field of contracts. Although party autonomy serves parties interests, third parties expectations require an objectively determined law. To heed the object and the opposability of contracts allows for a well-balanced consideration of third parties interests in accordance with parties interests. Regarding contracts with reinforced opposability, ("long-range contracts"), the third party is taken into account by the creation of a special conflict rule in the field of contracts, that prevents parties from choosing their law. Party autonomy vanishes for these contracts. In case of simple opposability, ("short-range contracts"), the third party may be reached by the extension of contract effects. Its expectations cannot be protected by the elimination of party autonomy but either by the qualification of questions or by exceptional mechanisms such as overriding mandatory rules
Giannopoulou, Alexandra. "Les licences 'creative commons'." Thesis, Paris 2, 2016. http://www.theses.fr/2016PA020054.
Full textThe widespread use of the Creative Commons licenses for the sharing of non-software works demonstrates the imperative to devote a study to the licenses in question. The goal of the study is to assess the current links of the licenses to the legal regime of intellectual property in order to suggest prospective ones. The study underlines the singularity of Creative Commons as a copyright management system, which consists of a series of licenses and is guided by an association promoting the sharing of works and by an ideology based on the autonomy of the authors. The premise of the thesis is founded on the variety of freedoms granted by the licenses. The licenses transform into a series of standardized tools that are gradually imposed as a standard for the sharing of works while relying on the rules of copyright. At the same time, the analysis of the consequences of the implementation of each license demonstrates the asymmetries created between the agents involved in the sharing process. In particular, our study shows that although the distinction between commercial and non commercial introduced by the licenses acts as a conciliation tool between the proprietary regime and that of the creative sharing, the introduction of an ambiguous concept - that of non-commercial use - influences the fate of licenses and complicates the evolutionary process of shared works. One way to resolve this tension proposed by our thesis is to review prospective mechanisms that would achieve a level of coordination between the licenses and copyright based on the founding principle of Creative Commons, which is the rebalancing of the interests involved in copyright
Delegove, Nicolas. "Le droit commun et le droit spécial." Thesis, Paris 2, 2011. http://www.theses.fr/2011PA020020.
Full textDistinguishing between general and specific rules of law is a deeply rooted habit among civilist lawyers, concerning the field of theory as the practice one. The roles of this distinction are very different, but they are threatened by two kinds of phenomenas as well : the increasing degreesof specialization and the development of -horizontal- relationship between general rules of lawon the one hand, and specific rules of law in the other hand. As a genuine, it would work,however, always as a good way to order the priority of different rules of law for both legislature and judges, both in academia and in practice.There is however a singular paradox. The general and specific rules of law can't be defined,their relativity is such an obvious one that they inconceivable if the other doesn't exist. According to this idea, their relationship is usually described in terms of opposition. Yet, the meaning of "relativity" is closer to collaboration rather than opposition.Thus, as regards to the development of the law, positive influences are at work. General and specific rule of law are a model to each other. Their evolution takes place in contemplation ofeach part. This especially helps the application of law to refute the idea that the general andspecific rules of law are mechanically mutually exclusive. A part from the possibilities provided by statute law, no basis justifies exclusiveness. Furthermore, specific rules of law sometimes contain a lot of less-defined rules. The value of the solution advocated by the adage "specialia generalibus derogant " is just a presumption, a simple one. A specific rule of law is supposes to be perfectly adapted to a situation, but it may pragmatically, about some case, be less appropriate than the general rule of law
Chaaban, Yousra. "Dépendance et équilibre contractuel -étude de droit comparé." Thesis, Lyon, 2020. http://www.theses.fr/2020LYSE3036.
Full textThe objective of this thesis is to establish a principle of contractual justice, especially in Egyptian law, thus benefiting from French and English experiences in this regard. In terms of precision, we deal with situations of dependence where contracts are formed, from the outset, unbalanced. The idea for this thesis was implemented due to the French reform of contract law in 2016. The latter has been devoted to article 1143 of the Civil Code a new vice of consent: the vice of abuse of dependence related to the duress. In this perspective, we had the idea of comparing this new vice with the fourth vice; in the Egyptian law known as the vice of exploitation, which mainly deals with abuses of the moral weakness of the parties. In order to present an unprecedented comparative experience, we decided to integrate the English law in our field of research. The originality of this subject also appears in the fact of simultaneously treating dependence and contractual equilibrium. However, the subject of this thesis encounters several difficulties which concerns not only dependence, but also contractual justice. First of all, concerning the dependence: its concept has so far been unclear. The dependence is surrounded by several other notions which only hide it instead of clarifying it such as the state of necessity, the vulnerability, the state of need, the state of weakness, the constraint, the subordination, the ignorance, and the inexperience. In addition, dependence, mainly in French law, was known at the outset to special law, that is to say in criminal, consumer or competition law. It had no precise concept in contract law. We note in the end that dependence is a subjective state of moral weakness, but which must also widen to encompass adhesion or standard contracts and contracts including unfair terms. This perspective would provide real protection for weaker parties.As far as contractual balance is concerned, in addition to its conceptual imprecision, it encounters a more serious difficulty. This is contrary to the traditional and usual logic of autonomy of will known in the three legal systems. That is to say that the contract is correctly formed from the moment the parties grant their consents, even if the contract itself is unequal or unbalanced from the formation.However, the contract is properly formed unless proven otherwise. This gives a vision of the legal philosophy adopted: this is a corrective philosophy and not a preventive one. The legal sanction for unbalanced contracts is a posteriori and not a priori sanction. That is to say, the law establishes contractual balance through contractual imbalance.In our view, the contractual context in general must be strengthened by a legal principle competing with that of autonomy of will. This principle is the contractual justice. The latter would counterbalance the contractual relations usually governed by the principle of the autonomy of the will. It would make it possible to control the justice of contracts a priori.This solution might seem to some "utopian". It is, on the contrary, a very practical solution because balance in contractual relations is a supreme end which will help to decrease the cases of unbalanced contracts or the cases of contracts vitiated by the abuse of dependence
Dupin, Coralie. "Les fusions transfrontalières de sociétés de capitaux dans l'Union européenne : aspects de droit social." Thesis, Paris 2, 2013. http://www.theses.fr/2013PA020006.
Full textCross-border mergers of incorporated companies do not only interest Company Law but also comprise important aspects of Labour & Employment Law. If the European Directive dated 26 October 2005 facilitates these transactions, the reference made to national legislation raises many difficulties in the absence of harmonized treatment of the social consequences of transactions. The questions raised by the implementation of workers' participation in management bodies of the company resulting from the transaction are an illustration. Other issues include the fate of employees’ representative bodies of existing staff within the merging companies, collective norms and employment contracts, remain unresolved. To these and others, this study attempts to provide answers. The consequences of the cross-border transactions require that answers be given to the unresolved issues
Pagani, Krys. "Sport et droit du travail : entre droit commun et droit spécial." Thesis, Paris 2, 2012. http://www.theses.fr/2012PA020026.
Full textAs sport specificity has been fading away while developing its economic dimension and adopting a rational economic behaviour, common labour laws and European law have inevitably applied to this sector of activity. Admitting sport special features sometimes leads to the conclusion that an “exception” has to be recognised and that special labour laws emanating from the state must be developed. While such a conclusion is not relevant, a professional law implemented by its actors through national or European collective bargaining (within the state legal frame set up) is, to a large extent, more appropriate. The exclusion of common labour laws or European law is acceptable only if justified by objective and concrete elements. It cannot legitimately be based on “customs”. If the constraints related to sports hazards, sporting fairness or sporting career shortness can be justified by such customs, it is necessary to rigorously appreciate and strictly measure their effects on employment and working conditions. The residual distinctive identity of an economic activity provides no justification for excluding it from the application of common labour laws or European law. The application of certain state rules and laws to sport reveals some normative articulation issues, in particular in relation to conflicts arising with sporting rules. However, in such a game, common labour laws and European law often win. Neutralizing the boundaries drawn by the sports community, in particular between amateur and professional sports, they succeed, through their judges, in having their requirements prevailing
Saintourens, Bernard. "Essai sur la méthode législative : droit commun et droit spécial." Bordeaux 1, 1986. http://www.theses.fr/1986BOR1D004.
Full textLegislative method relying on distinction between general law's norms and special law's norms, presents certain risks, but it also shows interesting potentialities that we have to discuss successively. Dangers of the legislative method that we are learning appear at first with the concepts themselves. These concepts, analysed in their abstract meanings or in their concrete displays, prove they are not much reliable. The authority that confers them a very commun use, in many historical times and in many places, and the significance of law interpretation maxims, are not enough to give these concepts a clearly definite contents. Secondly, dangers of this legislative method come from the too big sollicitation of distinction between general law and special law. This distinction is not only used for building the different private law's branches, wich are ambigous because of the assertion of distinction criterions in the same time of an allegiance to general law, but it has also favoured growth of special laws, with more or less strict contours, that give french law a luxuriant appearence. Potentialities of this legislative method have not to be covered by these dangers up. For in positive law this method allows a new definition of laws by a constriction of special laws and also by the rise of new general laws, coming or not from special laws. This legislative method will be allow to rise of new law speciality criterions. It may happen that these criterions group about some notions like "grouping" or "professionnal"
Grandvuillemin, Sophie. "Entreprises à statut spécial et concurrence." Paris 1, 1997. http://www.theses.fr/1997PA010330.
Full textBecause of their special status, some firms are in a particular situation that can break equality between the competitors and disrupt the free competition. Such is the case of the public corporations and non-profit- making enterprises. These firms have an original, hybrid status which reflect both their economic character and their first calling of public or social interest. From that point of view, the fact that they are on the market may seen incongirous. However, the subject matter of the study is to show that special status and competition have close links. First of all, the special character of firms does not act as a brake upon their integration into the competitive system. At a material level, the substantive law has accepted that the enterprises of social economy and public bodies should fully compete with the profit-making enterprises. At a legal level, the access to the market implies that the enterprises submit to the competition law, despite the specificity of their status. But, as some kind of kickback, his integration of the firms into the competitive system is done to the very detriment of the special character of their status. It leads to an equalization, eliminating certain statutory advantages and constraints. Now, this equalization goes together with unspecified special status, so much so that, in some cases, a few of them can be abandoned. As to the remaining inequalities, they must be sanctioned. The competition law proves very useful there. As a law of behaviours, it seems to become a law of deeds at the origin of inequalities. The role of equality, as a condition of free competition, is on the way to being fully recognized
Haïk, Raphaëlle. "Droit pénal des contrats." Paris 11, 2008. http://www.theses.fr/2008PA111017.
Full textChoubani, Salah Saloua. "La promesse de porte-fort : étude comparative en droit français et en droit tunisien." Nantes, 1998. http://www.theses.fr/1998NANT4013.
Full textGrimonprez, Benoît. "L'exigibilité en droit des contrats." Poitiers, 2005. http://www.theses.fr/2005POIT3010.
Full text"Exigibilité" is a notion which represents the moment when the creditor can force the debitor to carry out his undertaking. This trait of the obligation expresses it temporality and binding effect. Broadly speaking, it's role is to ascertain the moment when the contract comes into force. In this respect, overstepping the moment when performance is due amounts to a breach of contract and the stantdrard remedies are then available to the creditor (claim or specific performance, right to withhol performance, claim for termination). "Exigibilité" is traditionnaly perceived as invariable, but in modern contract law it is subject to interferences which show the adjustments made to the contractual bound by the circumstances of the contract's performance. Thus the concept becomes the privileged of the social processing of debt problems and the carrying out of the contract's economic function
Sun, Hanguang. "Les contrats en droit chinois." Aix-Marseille 3, 1992. http://www.theses.fr/1992AIX32012.
Full textThe present study is about two direction : the contract theory in interior law and the contract theory in private international law in china. The auther try to present spcific character in chinese law. The last chapter is interesting for practicians of chinese law
Muller, Anne-Catherine. "Droit des marchés financiers et droit des contrats." Paris 2, 2001. http://www.theses.fr/2001PA020063.
Full textMoukoko, Serge Rock. "Le plein contentieux spécial des installations classées." Thesis, Metz, 2009. http://www.theses.fr/2009METZ003D/document.
Full textThe full special dispute on closed plants is qualified by the special doctrine. Indeed it is special, more than the mere idea, on accounts of particularisms that it shows up in relation to the common law's dispute. That special side is firstly due to the variety of deadlines about the dispute appeal, which change either according to the applicant, the plant's aspect in matter or the beginning of setting up. This special point is also due to the exceptionnal competences vested in the judge, whenever he pleads for the special dispute, whose implementationis first conditioned by a decree. Not only can he abrogate (annihilate / repeal) the decree, but he can also behave as an administrator. He can play the prefect's part and act in places taking the decrees into the jurisdictional setting. Out of sheen reason, this domain lies within the administrator's exclusive province. besides, the rules of the law implementable by the judge varies according to given aspects. He must incite to the procedure rules implementation which comes into effect the very day when the decree is treatened. As for the deep rules, the judge should appreciate their equality when the jurisdictional decision is drawn. Some of its particularisms are justified on particularly historical accounts. However these cannot be justified nowadays any longer, because of the public law's evolution and the recent principles of process law guaranteed to the justicees by an european and a community judge, such as the legal security principle, the equal opportunity principle, the right to the justice court, the right to a non-dependant (free) judge. All the aforementioned specificities enable the commont law's dispute to take over the full special dispute, which tends to come up forth as by a history reserve
Acosta, Joaquin Emilio. "La constitutionnalisation du droit colombien des contrats : contribution à l'étude du droit transnational des contrats." Thesis, Bordeaux, 2016. http://www.theses.fr/2016BORD0274.
Full textTraditionally, the law of contracts of Romani tradition has basically had its source in the law and in particular in the Civil Code. Thus the contracting parties had a great deal of legal discretion, since most of the laws governing contracts had a residual character of the individual will. However, this primacy of the legislature has been limited by the promulgation of the post-war Constitutions. Indeed and incontestably, human rights are the fashion, and this vogue leaves its imprint in the law of contracts. From now on, it is no longer possible for the legislator to violate certain principles having constitutional value. Moreover, this system allows the contemporary constitutional judge to annul statutory provisions that violate such imperatives. Similarly, the guardians of the new constitutions give themselves the power to indicate the interpretation that ordinary judges must adopt of the legislative texts. In this way the constitutional judge becomes an important actor of contract law in the Romanist family. Thus, an event marks a new stage in the development of private contract law: its constitutionalization. This new episode gives rise to the debate on a possible questioning of the contractual civil order
Belebna, Mohamed. "Le contrat d'assurance maritime en droit algérien et en droit français." Paris 2, 1995. http://www.theses.fr/1995PA020061.
Full textThe aim of this thesis is the study of marine insurance contract in algerian and french law. The long experience of the french marine insurance market explains its predominant place and role among the largest insurance market in the world. It's not the case of algeiran insurance system. Although that is a french inspiration, the algerian insurance it's so young and a few studies was maked in this matter. The first part is an preliminary chaptr. Its aim is the draw of history evolution to marine insurance. The first chaptr deal at once the definition, the characters of the marine insurance contract then relative rules of this formation. There is not marine insurance when the insured values (hull and cargo) don't takes to submit marine risks. This cause to express by both ways: as for nature risks, a time and place covers. It's object of the second cha@pter. The main prupose of insurance is to indemnity the assured for loss substained by this property. This rule to express in the insured values. For instance, we have treated in the third chapter. The last one chapter, explains the obligation of the insured, assured and settling on indemnity. It can be made : "in damage" or "in abandonment". However, the divergences separates the algerian and french systems. Since 1966, algeria has instituted a state monopoly on insurance sector
Assi, Assepo Eugene. "La preuve des contrats tacites." Nice, 1986. http://www.theses.fr/1986NICE0011.
Full textSow, Moustapha Baidy. "Le Tribunal spécial pour la Sierra Leone : entre droit et politique." Reims, 2008. http://www.theses.fr/2008REIMD002.
Full textThe Special Court for Sierra Leone had been set up in Freetown on January 16 th, 2002, thanks to a common initiative of the Sierra Leonan Government and the United Nations. The international agreement signed by both authorities settled a "speciai" international court, constituted by an international and local staff entitled to implement local and international humanitarian law. The Security Council mandated this new International Court to bring to justice the perpetrators of crimes against humanity, war crimes and serious violations of international humanitarian law cormnitted in Sierra Leone since 1996. The establishment (institution) of the Special Court for Sierra Leone has been decided on the basis of remarks notified by the United Nations and made on the functioning of the international Criminal Courts for (former) Yugoslavia and Rwanda. The conclusion of the observations led the UN political authorities to envisage the creation of an International Court, clearly submitted to financial, legal and political constraints. The final outline of this repressive jurisdiction will obey to a new charter specific to ad hoc International Courts, summed up (within) in the following trilogy: "expeditiousness, cost efficiency and effectiveness". This conception of an international penal justice connected with UN political and financial issues, will induce inescapably major legal, judicial and social consequences, which are largely criticised. It is then legitimate to question the prospect of the model of this new international jurisdiction stuck between political constraints and its initial mandate which is to dispense unconditional justice to the victims
Collantes, González Jorge Luis. "De l'harmonisation du droit des contrats publics vers la construction d'un droit international des contrats publics." Thesis, Perpignan, 2020. http://www.theses.fr/2020PERP0020.
Full textThe harmonization of public procurement law is a legal phenomenon. This phenomenon is characterized by the introduction of rules governing public tenders in order to broaden access to the public procurement market.This phenomenon can be seen from the 1970s onwards and is taking place in different legal contexts: within regional and sub-regional international organizations, within the framework of the World Trade Organization (WTO) and within the framework of Free Trade Agreements (FTA), which leads to differing harmonization and a multiplicity of rules. These rules require harmonization to avoid contradictions and uncertainties. While the harmonization of these rules is not uniform, they share various commonalities: each harmonization is based on the principle of non-discrimination within a Community legal order (as the Union Europe) or non-Community legal order (as the FTA or the WTO Law).In this context, each harmonization introduces transparency rules and redress for the protection of free competition.In addition, free competition involves market protection through the penal law. In that connection, the UN Convention against Corruption and other international treaties are very important; however, the rules of territoriality and extraterritoriality that underpin these treaties raise a question: how many times may a person be punished for the same acts in the context of an international public tender?Moreover, there are various branches of international Law (IL) which intersect and influence public procurement law such as, for example, the IL of labour, the three generations of human rights, the IL of indigenous peoples, the arbitration, etc. Within the framework of economic IL, there are two areas that influence public procurement law: on the one hand, the relationship between WTO Law on public procurement and some IL rules different from WTO Law; and, on the other hand, the assimilation and non-assimilation of the most-favored-nation clause in the context of each harmonization (this clause extrapolates the benefits of an international treaty in favor of a third party).This thesis tries to determine the impact of harmonization on IL. It will be shown that there are various elements for the construction of a public procurement IL under the conventional IL, without losing sight of the customary Law or the “soft Law” or the contracts under the IL of investments. However, it is difficult to speak of the existence of an public procurement IL as a subsystem of international Law that covers uniformly the diversity of existing contracts and the phases or stages of the contract (public tenders, award of the contract, execution of contracts and dispute settlement); but a set of trends in public procurement Law is perfectly perceptible in our time
Mauclair, Stéphanie. "Recherche sur l'articulation entre le droit commun et le droit spécial en droit de la responsabilité civile extracontractuelle." Phd thesis, Université d'Orléans, 2011. http://tel.archives-ouvertes.fr/tel-00705891.
Full textPicq, Marielle. "La distinction entre contrats à exécution successive et contrats à exécution instantanée." Grenoble 2, 1994. http://www.theses.fr/1994GRE21052.
Full textThe subject of this work is to demonstrate that the usual, which sets the successive execution agreements against the instantaneous execution agreements, can be efficiently replaced by the distinction between the divisible agreements and the indivisible agreements. The first part is relative to the relevances of the traditionnal distinction. It emerges from this study that this opposition is unfitted to explain, in a satisfactory way, the differences of the juridical basis noticed and announced, which it is about the mecanisms which ensure the contractual permanency, or which it is about those which lead to the disappearance of the agreement. All along this examination, the components of the distinction between the divisible agreements and the indivisible agreements are brought out. The second part is devoted to the borders of the distinctionl in a first time are stated the imperfections of the criterions of the actual classification. Then, in a second time is presented the new distinction between the divisible agreements and the indivisible agreements. This last is based on two concepts. First of all, a criterion, the succession of partial and autonomous balances, and then, a theoritical foundation : the cause. These implements are then applied, entitting to draw the picture of a new distinction
Reboul-Maupin, Nadège. "Les contrats de conseil." Paris 1, 1997. http://www.theses.fr/1997PA010252.
Full textAt first sight, few contracts including an obligation to give advice treat this obligation as anything more than collateral. There are, however, (above and beyond any implied obligations), many cases in which the provision of advice is an essential condition of the contract. These are called consultancy agreements. They are defined as contracts by which professional advises agree, for valuable consideration, to provide independant intellectual services to their clients. When such clients are businesses this involves giving effective orientation to business decisions. Of a civil law nature due to their subject matter, consultancy agreements are most often commercial contracts due to the fact that the professionals act through companies and because their clients are businesses. Although consultancy agreements are used in a wide variety of areas, they have a common legal status. Their diversity does not alter the essential aspects of their legal status : independence and subordination. Independence is the determining characteristic of the relationship between the parties to consultancy agreements. The consultant carries out his intellectual work independently and the client receives the resulting advice without being under any obligation to make use of it. This is also shown by the right of the parties to bind themselves (sub-contracting) or to relieve themselves of obligation (termination of contract). Nevertheless, the obvious price of this independence is the wide-ranging nature of the obligations to which they will be subject. Whilst the professional adviser is under an obligation to advise and maintain confidentiality, the client must collaborate and pay the agreed remuneration for the advice
Truilhé-Marengo, Eve. "Vers un droit communautaire des contrats." Phd thesis, Université Paul Cézanne - Aix-Marseille III, 2002. http://tel.archives-ouvertes.fr/tel-00426526.
Full textGrimonprez, Benoît. "De l'exigibilité en droit des contrats /." [Paris] : LGDJ, 2006. http://www.gbv.de/dms/spk/sbb/recht/toc/517149613.pdf.
Full textAlessandrello, Irene. "L'efficacité dans le droit des contrats." Thesis, Paris 1, 2016. http://www.theses.fr/2016PA01D045.
Full textThe effectiveness characterizes any and alI aspects of the law of contracts. Moreover, it seems to have been always so immanent in the contractual instrument that can be grasped as the real logic through all the legal evolution of the contract over many centuries. ln particular, from the analysis of the rules of the Code Napoléon on contracts, the related case law as welI as the Reforrn of the law of contracts enacted in 2016, we inferred two forms of logic underlying the contractual effectiveness, one subjective and the other objective. The classical theory of contract is dominated by a subjective logic of effectiveness resulting from the will of the parties. Indeed, the magnificence of this will reigns almost unfettered and, moreover, is sealed on the other band by the fundamental principles of the contract sanctity and stability and glorified by the very limited role of the judge, as a simple and scrupulous executor of the parties' will. Conversely, the weakening of the role of the subjective will has determined an increase of the objective effectiveness, paying the way for a more comprehensive analysis of the contract that incorporates the subjectivity of the parties' will into the objectivity of the socio-economic environrnent. This new line of interprelation reveals a more complex and objective understanding of the contract leading us to study and integrate it in the context where it operates. The con tract is then no longer turned only to subjectivity generated by the parties' will, since it also considers the objectivity deriving from environrnental eternal challenges
Cunha, Valérie. "Le formalisme en droit des contrats." Nice, 2002. http://www.theses.fr/2002NICE0057.
Full textTruilhé-Marengo, Ève. "Vers un droit communautaire des contrats." Aix-Marseille 3, 2002. https://tel.archives-ouvertes.fr/tel-00426526.
Full textIn what extent the European integration, governed by the logic of the market, is it likely to give birth to a body of coherent rules governing the private contractual relations ? It seems that the various European rules intervening in contractual matter raise more of the "puzzle" than a coherent and united one. The thesis begins therefore by to formulate report, rather negative, weakness of the European contract law (First party). But the specificity of community legal order oblige to make an analysis at once pushed and more pragmatic will allow to put in light the nature of European integration in contractual matter. The development of the internal market oriented community's action in the direction of consumer and competition law. The European Law granted rights to specific categories of contracting party, the consumer and the professional, respecting thus his vocation to unite men before States. .
Claudel, Emmanuelle. "Ententes anticoncurrentielles et droit des contrats." Paris 10, 1994. http://www.theses.fr/1994PA100195.
Full textFrench and EEC antitrust law create some annoyances for companies and give rise to interrogation points for authors. Indeed, interference into the contractual relations by the authorities takes on an unprecedented extent. This interference operates into different ways. The contracts or provisions of contract which violate the antitrust regulation are unenforceable. Unenforceability is one of the necessary sanctions because it draws civil inference from a decision of those authorities. However, this sanction is not well adapted for antitrust. A number of specific regulations in this matter disturb its implementation. Competent authorities have at their disposal some more efficient and adapted legal tools to interfere into the contract, which are on one hand, the exemption and, on the other hand, the injunction. Those two legal technics, the former is privileged and the letter is coercive, are means for the authorities to watch out and to adjust the contractual area. Companies do not favorably receive such interference. They consider the possible sanctions as unforeseeable because they are unavoidable. A particular behavior is rarely uncompetitive by itself: in fact, the economical or legal contexts justify such prohibition. However, companies do not control the context. Moreover, the authorities in matter of competition are not always respectful of the prerequisite conditions to this prohibition. There are two necessary bases of the interference by the authorities into