Dissertations / Theses on the topic 'Expression de la volonté (droit romain)'
Create a spot-on reference in APA, MLA, Chicago, Harvard, and other styles
Consult the top 50 dissertations / theses for your research on the topic 'Expression de la volonté (droit romain).'
Next to every source in the list of references, there is an 'Add to bibliography' button. Press on it, and we will generate automatically the bibliographic reference to the chosen work in the citation style you need: APA, MLA, Harvard, Chicago, Vancouver, etc.
You can also download the full text of the academic publication as pdf and read online its abstract whenever available in the metadata.
Browse dissertations / theses on a wide variety of disciplines and organise your bibliography correctly.
Peralta, Alexandra. "La notion de voluntas chez Lucrèce : du mouvement volontaire à l’action délibérée." Thesis, Paris 1, 2022. https://ecm.univ-paris1.fr/nuxeo/site/esupversions/1d87d458-1d87-486d-be11-c98f12dc0281.
Full textIn this thesis, I propose to examine the meaning and scope of the notion of voluntas in the Epicurean poet Lucretius. To this purpose, I use two approaches: one properly historical and critical, the other interpretative. The first part of this work deals with the semantic analysis of the term voluntas at the time of the poet, the first century B.C. It is a historical and philological work which is then completed by a critique of the sources, ancient and modern, on the supposed relationship between voluntas and the clinamen of atoms. The result of this first analysis allowed me to note that, on the one hand, voluntas consists in a movement of the atoms of the mind and, on the other hand, that the meaning of this term has nevertheless varied in the different interpretations, notably contemporary ones. In the second part of my thesis, I propose to verify the following hypothesis: voluntas as a voluntary movement of the atoms of the mind is a concept that is articulated in the three registers present in the Lucretian poem: natural philosophy, psychophysiology, and moral psychology. Concerning the first field, I analyze the notion of sponte sua or natural spontaneity, a central concept of the Lucretian exposition, in order to show that voluntas is a species of this spontaneity. In other words, the ability of animals to control their movement is the expression of a type of natural causality that is quite distinct from necessity and chance. The study of the psychophysiological conditions for the realization of voluntas is the subject of my second chapter. In the last chapter, I analyze the notion of consilium, in order to propose that it designates the rational operation of the soul allowing deliberation and thus, the accomplishment of properly rational actions. Understood in this way, voluntas helps to understand differently the famous polemic on clinamen, because its intervention is not necessary to understand the process of animal movement. The freedom we enjoy is a freedom of movement and, for humans, a freedom to act intentionally
Vallar, Sandrine. "Le rôle de la volonté dans l'interprétation des contrats en droit romain." Thesis, Paris 2, 2013. http://www.theses.fr/2013PA020046.
Full textThis is a study of Roman private law, more precisely of the role of will in Roman contract law. The question of voluntas is well-known among inheritance matters. But it seems not to be unknown in contract law as well. Indeed, will does not only concern consensual contracts. It clearly also occurs in real or formal contracts. This taking into account of will seems to be the result of Roman jurisprudence. Cases of jurisconsults have to be analyzed in order to determine the role and the relevance they give to the will of the different parties. The main sources which have to be exploited are the Institutes of Gaius, the Praetor’s Edict, the Digest, the Code and the Institutes of Justinian. The study focuses on classical Roman law (2nd century BC - 3rd century AD), and depending on the results, it could reach postclassical law (4th - beginning of 6th), and Justinian law (6th century)
Conte, Henri. "Volonté et responsabilité civile." Thesis, Toulouse 1, 2017. http://www.theses.fr/2017TOU10039.
Full textCivil liability law is constantly evolving, and yet no major reform has ever taken place since the promulgation of the Civil Code. Many projects have accumulated without any actual legislative outcome. In 1804, the legislator bequeathed broad general principles which proved as fruitful as Portalis advocated in his preliminary discourse. Contractual liability has evolved in such a way that it has become an important basis for remediation of bodily damages. Today, it allows for the more or less effective reparation of prejudices but remains criticized in terms of legal basis and scope. Extra-contractual responsibility, for its part, has been largely enriched by case law and now fulfills functions it was initially not designed to address. The purpose of this study is to examine the concept of responsibility through the lens of the will. What role does the will play when it comes to contractual and extra-contractual liability? At first glance, it seems natural to think that the will has an important role to play in connection with contractual responsibility. The contract, as forecasting device and outcome of the parties’ will, would interfere with the application of a regime which sanctions non- or improper performance. It is at least from this assertion that the validity of clauses of limitation or exemption of responsibility derives. The parties wanted the contract and their will is likely to alleviate their obligations, the amount of damages due in case of non-performance, etc. However, it appears possible to challenge this assumption by illustrating the weakening influence of the contractual will, influenced by various factors. Yet, there would be no room for will under the regime of extra-contractual liability. Since this type of liability derives from public policy, the parties’ will would play no part in it. Parties would therefore not be in a position to contractually restrict their respective liabilities and could not interfere with the application of the regime to which they are subject. Once again, it seemed possible to question this presupposition. Not only the will plays a role for the purpose of extra-contractual liability but such role could even be reinforced. Promoting the importance of the will under liability law would materialize through a voluntarism which would go beyond the contract itself and which would promote individual freedom through action in law
Najm-Makhlouf, Carole. "Tacite reconduction et volonté des parties." Paris 2, 2009. http://www.theses.fr/2009PA020011.
Full textBarlon, Corinne. "De la volonté dans le droit extrapatrimonial de la famille." Reims, 2000. http://www.theses.fr/2000REIMD002.
Full textMatray, Emmanuelle. "Le motif en droit privé." Dijon, 2006. http://www.theses.fr/2006DIJOD004.
Full textGigon, Eleonore. "La volonté des personnes privées en droit administratif." Thesis, Paris 1, 2017. http://www.theses.fr/2017PA01D060.
Full textThe topic of private legal persons’ will traditionally falls under the field of private law research, which it naturally belongs to. However, it also is an object of administrative law research. Observing substantive law as well the evolution of the ways and means of administrative action, one can access to an actual “system of possibilities of will”, as far as private legal persons are concerned, stemming itself from classical administrative law. Analyzing this system contributes to the understanding of the means and conditions of expression of private will. In fine, this allows contemplating voluntary phenomenons : private persons’ will so appears as the faculty to make the choice and/or give the impulse that will allow one to pursue alegal, authorized aim. The various phases of private persons’ voluntary process are thus organized and structured in administrative law. However, the actual realization of the pursued aim is neither immediate nor automatic. As a matter of fact, private will needs public will as a media in order to produce its full effects and to fulfil its function. This phenomenon of mediation thus follows a dynamic process which study involves specific attention towards the subjective elements of a legal act. Therefore, not only does this research help to take measure of the part taken by private will, but also does it offer a new reading of administrative law
Ayma, Laurence. "L'acte tacite." Paris 10, 2004. http://www.theses.fr/2004PA100075.
Full textThe difference between the express act and the implied act is not based on the degree of the obvious intention but results from the mode of expression of the will. The implied demonstration is expressed by behaviour objectively significant constituted by positive acts which are not ambiguous but are valued in cohesion of circumstances. The legal intent of the effects of behaviour results from preestablished rule or implied from the facts by the judge. Producing a rebutable presumption is very often possible. The evidence of behaviour is free. Il allows to stay near reality. The implied act can nevertheless have its efficacity reduced by publication. In all the others cases where the implied demonstration can efficiently produce legal effects, the judge sees to the stability of individual behaviour
Rihm, Isabelle. "L'erreur dans la déclaration de volonté : contribution à l'étude du régime de l'erreur en droit français." Université Robert Schuman (Strasbourg) (1971-2008), 2004. http://www.theses.fr/2004STR30019.
Full textThe legal will is a will that is likely to generate law consequences. Il exists only If two differents parts are present : a psycological part, which is the inside will , a material part, which Is the declaration of this will. A divergence can occur between these two parts. If this divergence is unintentional, then it produces a mistake in the will declaration. In our legal system, where the obligation is based on the consent of the part which is under an obligation, the inside will gets the better of the declared will. The errans is not bound by a mistake in his will declaration, and he has the possibility ta insist upon his mistake in order to obtain the invalidity of the contract. The doctrine dwells also on the necessity to protect the other part of the contract, who could have rightfully believe in the exactitude of the will declaration. Two methods are possible ta bring this protection. The first one consists in acting before the invalidity of the contract, in restricting the possibilities for the errans to obtain the invalidity of the contract. The other one consists in acting after the invalidity, in using the rules of the civil liabillty. The point is to oblige the errans to make arnends to the other part for the prejudice of believe in the exactitude of the will declaration, and consequently in the validity of the contract. The first method tends to refuse the invalidity of the contract based on the fact that the errans made a fault or that the other part wasn't able to determine that there was a mistake. In fact, that is a confusion between the notion of invalidity and the notion of liability. The second method is preferable, as it allows to respect the requirement of law restoration and the need of protection for the other part of the contract. Rather than forbid the errans ta obtain the invalidity of the contract, it is better ta oblige him ta make amends to the other part. This way allows to ensure both the principle of the primacy of the inside will upon the declared will and the need of protection for the other part of the contract, who could have rightfully believe in the exactitude of the will declaration
Praud, Jean-Lou. "La réitération en droit privé." Nantes, 2014. http://www.theses.fr/2014NANT4013.
Full textThe notion of reiteration in private law refers to the technique of reproducing a legal act to put into operation its effectiveness. Reiteration is a mechanism by which persons having legal rights or obligations confirm their intentions in order to activate the related legal effects. Reiteration should be distinguished from different but close notions, such as repetition, renewal, or even confirmation. Based on the case-law criteria of identity and the unity of successive legal acts, two scenarios of reiteration can be identified : reiteration of consent, and reiteration of contract, that is to say the meeting of the minds. This technique thus offers a dual practical interest: freezing the effects of a consent to enable its author to continue reflecting before issuing a definitive decision; freezing the effects of a contract to serve the interests of the parties until the final legal act is signed. Reiteration can thus be recognised to be a fundamental notion which responds to major contemporary challenges: the protection of consent, the technique of the formation of contract by stages, the procedure of decoupling the period of the formation of contract from that of its execution, the protection of the obligatory effect of a party's word, the protection of the integrity of the human body, the concilation of divergent interests. However, the full efficacity of reiteration requires there to be a collective conscience of the need to undertake reforms in terms of legal regime
Perez, Léa. "La volonté des parties dans les procédures de régulation." Thesis, Montpellier, 2019. http://www.theses.fr/2019MONTD032.
Full textRegardless of the scope, recent evolutions in regulatory procedures reveals an opening of decision-making processes and the constant development of negotiation.From the early 80’s, Pr. Amselek already identified an “evolution de la technique juridique dans les sociétés occidentales” which would be reflected in such developments.However, this crossed study of regulatory authorities’ methods unveils the rise of an original combination between the ability to include operators through their participation or adhesion, and the possibility to spontaneously recur to creative instruments on the fringe of conventional administrative acts and procedures typology. Regulatory procedures hence compose with new fields modulated by regulated operators as well as regulators, respectively identified as actors of the regulatory process.Nevertheless, the irruption of willingness within a structurally unbalanced relationship between public authorities and private operators is neither without cause nor without consequences upon the legal environment it falls within. Although seemingly typical, economic regulation highlights the depths of such causes. Invariable inclination towards open procedures and the will of the parties above formal regulatory practices is nourished by dynamics and circumstances specific to the considered field. The present research endeavors to establish its topology, through questioning the role of such willingness of the parties among regulatory procedures. By contrast, consequences of the praise of choice either from the regulator or the regulated, seldom analyzed, are more difficult to systematize.This study ventures to highlight adjustment vectors and consider signs of a reconfiguration of the regulatory system throughout the phenomenon of compliance
Nicolini, Clémentine. "Les techniques de perfection de la volonté contractuelle." Aix-Marseille 3, 1999. http://www.theses.fr/1999AIX32064.
Full textDamas, Nicolas. "La volonté dans la formation de l'acte juridique en droit du travail." Nancy 2, 2001. http://docnum.univ-lorraine.fr/public/NANCY2/doc395/2001NAN20002.pdf.
Full textRaby, Sabine. "Le rôle de la volonté dans la circulation de l'obligation contractuelle." Aix-Marseille 3, 2002. http://www.theses.fr/2002AIX32044.
Full textNowadays while noteworthy promptness in the transmission of obligation is becoming a certainty the will of some parties involved is thrown far away. Old institutions, such as novation, are slow, but reliable. The requirement of a tripartite intention provides dependable safeguards. In fact one is contractually bound to a new contracting party just because one has consented to it. Conversely modern patterns, such as transfer, are fast, but unreliable. Regarding the parties directly concerned, we have postulated an assent procedure by the transferred parties, in case the transfer of a claim should worsen their own situation. It has also seemed to us useful to regulate the conventional transfer of a contract and make the consent of the transferred party a condition for its validity. Concerning the bails, a rewriting of the article 1692 of the civil code appeared to be likely to spare them an unfair lot, the objective being to let the bails recover their autonomy just during the transfer
Lahana, Myriam. "Vers une théorie générale des clauses en droit des contrats." Paris 2, 2008. http://www.theses.fr/2008PA020048.
Full textZagori, Aurélie. "La volonté dans la gestion des conflits." Thesis, Université Paris-Saclay (ComUE), 2015. http://www.theses.fr/2015VERS025S.
Full textConflict management is nowadays undoubtedly a major subject for economic operators who frequently mobilize their will in order to prevent, process, adjust or solve their conflicts, within the original agreement, by an agreement or during the proceedings, thus appropriating the art of justice. Individual will then confronts with the imposed order as defined by different mandatory legal sources with an intensity which varies depending on the contractual or procedural nature of the considered field. From this confrontation arise freedom’s boundaries which need to be challenged. Assessing the role of will, whether individual or joint, of the parties or of third parties, in conflict management enables the isolation of multiple conceptions of Justice, as private interest satisfaction, universal ideal achievement and public service. The position adopted by subtantive law invites to determine if a more individualistic view of justice is conceivable
Tranier-Lagarrigue, Benoît. "L'inertie en droit privé." Toulouse 1, 2002. http://www.theses.fr/2002TOU10008.
Full textInertia is a passive attitude which originates in a reluctance to act in a different way. It appears whenever the accomplishment of positive acts is required in favour of others or oneself. Hence, inertia inevitably arouses an unfavourable value judgement. But this judgement must nevertheless remain moderate, for inertia does not convey any hostility towards actions it prevents from accomplishment. Furthermore, it is exclusive of the acknowledgement of an intentional or deliberate fault and makes up the typical feature of the unintentional fault by omission. As far as the numerous legal consequences related to inertia are concerned, it cleary appears that whilst some are severe, others are less rigourous. And the latter ones contribute to balance the judgement the French legal system applies to this attitude. Sometimes, a right to inertia is even exceptionally recognized
Sabouraud, Julie. "La fin de l'acte juridique." Bordeaux 4, 2009. http://www.theses.fr/2009BOR40045.
Full textTime is "law's fourth dimension". By putting the legal act in this temporal dimension, it becomes possible to analyse its final moments. Towards the end, the act's constituent elements, volition and objective data, are disrupted. Consideration disintegrates and no longer acts as a link between the subjective and objective aspects. As a result, volition loses its normative influence on the observed implications. This structural upheaval occurs after a loss of interest in the act due to the disappearance of its essence and leads to the act's termination. Certain legal effects prevail, however, in spite of termination. Thus a new legal situation arises, as the created legal act becomes a finished legal act. It is considered a legal fact due to volition's lack of normative influence and because it "re-establishes a balance". Moreover, since its main objective follows a liquidation logic settling a sort of "foreseeability balance", we call it a liquidating legal fact. Two kinds of legal consequences arise from this situation. Firstly the liquidating legal fact directly creates subsidiary residual obligations either because pre-existing ones become due, or by creating new ones. Secondly, the liquidating legal fact's very existence triggers effects through the legal milieu's reaction, this new structure therefore has implications for third-parties and for the ex-parties
Carsin, Xavier. "La renonciation en droit du travail." Paris 1, 2006. http://www.theses.fr/2006PA010252.
Full textTodorova, Liliana. "L'engagement en droit." Paris 2, 2003. http://www.theses.fr/2003PA020023.
Full textSaint, Rémy Caroline de. "La volonte expresse (contribution a l'etude de l'exigence d'une volonte expresse dans les actes juridiques)." Rouen, 2000. http://www.theses.fr/2000ROUEL373.
Full textMajdanski, Delphine. "Les mentions manuscrites dans les contrats." Bordeaux 4, 1998. http://www.theses.fr/1998BOR40024.
Full textBros, Sarah. "L' interdépendance contractuelle." Paris 2, 2001. http://www.theses.fr/2001PA020060.
Full textDupichot, Philippe. "Le pouvoir des volontés individuelles en droit des sûretés." Paris 2, 2003. http://www.theses.fr/2003PA020089.
Full textMichel, Laurent. "De la "régressivité" de la volonté dans la protection des majeurs." Thesis, Amiens, 2016. http://www.theses.fr/2016AMIE0002/document.
Full textThe content of the 5th March 2007 Law suggests the empowerment of the legally protected adult, especially by highlighting his/her willingness in the choice of a particular type of legal protection. One can however notice that the pre-eminence of this will gradually turns into a form of substitution, i.e. from a wanted and chosen legal protection measure to a measure that is imposed by a judge. Thus, the conventional, social and judicial legal protection hierarchy for adults reveals a greater and more and more disparate and faded will-power, due to the gradual emergence of a medical cause that will justify side-lining the person’s wishes. Furthermore, the same law was presented as taking into account the actual person so as to contain the too great importance that was attached to assets and real estate by the 3rd January 1968 Law. One can however see that the implementation of a legal protection measure is also dedicated to preserving the person’s assets and real estate in all circumstances, just as a social or conventional measure would do. And that the legal actions related to a person can remain without effect if the adult under legal protection can’t express what he wants but that the protection of real estate and assets don’t need the persons will. This is how operates the “regressiveness” of will in adults legal protection mechanisms
Abdallah, Nadine Ghassan. "Rôle et limites de la volonté des parties dans l'arbitrage international : étude comparée de droit libanais et de droit français." Aix-Marseille 3, 2007. http://www.theses.fr/2007AIX32040.
Full textAt a moment when, in Lebanese and French law, international arbitration is developing around both imperatives of efficiency and legal security, we revisit the consensual origins of arbitration by examining the current role and limits of the parties’ will in international arbitration. Firstly, international arbitration is based on an agreement. Therefore, the parties’ will guaranties, in principle, the effectiveness of the international arbitration convention. Nevertheless, the binding effect of the arbitration clause is not limited to the contracting parties. It can also be extended or transferred to third parties. Moreover, the international public policy excludes arbitration for certain categories of people and for certain subject matters. Secondly, international arbitration is also a private justice. The parties’ will sets up the arbitral tribunal by freely choosing the arbitrators and defining their mission. In addition, common will determines freely the substantial rules and the procedural rules. Nevertheless, the will of the parties is limited by the respect of international public policy in the choice of the substantial law and by the necessity to guaranty the equity of the arbitral justice. Therefore, the chosen arbitrators should be independent and impartial and the arbitral tribunal should respect, at all times, the defense rights and the adversarial principle
Pujolar, Olivier. "Le contrat en droit de la sécurité sociale." Bordeaux 4, 2002. http://www.theses.fr/2002BOR40001.
Full textIt can seems paradoxical, or at least very surprising, that a legal instrument such as the contract be used by the state, and more widely by persons in charge of the mision of the public utility which constitutes the social Sécurity. Traditionally, these persons use other legal instruments. Neverless, once exceeded the paradox wich instinctively appears to recover the association of the contract and the Social Security law, the practice shows the contractual instrument is present in social security law contract. .
Hourtal, Jean-Armand. "La Volonté incarcérée : Contribution à une compréhension éducative des manifestations de l'acte volontaire dans la justice pénale." Lyon 2, 1998. http://www.theses.fr/1998LYO20013.
Full textThe topic of this thesis is the will. This will is studied in its triple context of law, of crime and of education. These three phenomena are considered as being the plural expressions of a willpower in actuality. The main objective of the research aims at an understanding of the acted willpower expressions, applied to the proving ground of education in the prison environment. This understanding of "willpower" concept justifies, in the first place, the meticulous construction of a voluntary act model ; this model is subdivided throughout the work. The author has a long experience in penitentiary educational functions. He is the responsible of a socio-educational department, in charge of the integration and the probation of people gripped by the law. He shows that an expression of willpower often hides another one, the willpower being a protean reality. The researcher defines the educational difficulties in prison, in the perspective of a fundamental paradox opposing the various wills involved. He brings up the necessity to take the guilty's will into account, for the purposes of education and integration, while the law names this same will as the cause of crime. This thesis firmly fits into the discipline of education sciences, it feeds on lights from philosophy, from psychology and from law, it lights up as well with the facts of history, of sociology and of criminology
Grimaldi, Cyril. "Quasi-engagement et engagement en droit privé." Paris 2, 2005. http://www.theses.fr/2005PA020073.
Full textNeiss, Philippe. "Le silence en droit du travail." Strasbourg, 2009. http://www.theses.fr/2009STRA4023.
Full textFor some specialists of law, silence is nothing and has no effect. The study about the notion and the role of silence, specially in the labour law, shows the opposite. First, the analyse of the notion of silence in cognition pragmatic shows that silence, absence of language, can serve the communication. In law, the juridic act must be analysed as a communication act. In consequence, silence is not necessarily an obstruction of a juridic act existence. The judge, limited by the law, interpretes the silenced attitudes in order to find the expression of a juridic act. In labour law, the interpretation of employer and employee's attitudes has some specificities. Secondely, silence plays an important but ambivalent role in labour law. In the construction of a system of norms, silence can permit or forbid the application of an other norm. It can also permit or not the derogation. That is why silence is a factor of the complexity of the norms system. Silence can also be an obligation for employer and employee. It can be obliged or forbidden. By that way, silence participates to the importants evolutions of labour law: developpement of the collective negotiation and the participation of employee to the decision about the firm, « proceduralisation » of law, protection of the fundamental rights of employees
Mirabail, Solange. "La rétractation en droit privé français." Toulouse 1, 1991. http://www.theses.fr/1991TOU10029.
Full textThe object of the study is to define the domain, nature and system of retraction. A criterion is proposed that enables one to bring out two domains: one of principle, made up by statements retractable by nature, and one of exception made up by various hypothesis where the possibility of retraction, forbidden in principle, does exist thanks to an express reserve of conventional, legal or judicial origin. After an inventory of these domains, we pass to a legal analysis of the powers of retraction, private as well as judiciary, and to a study of their respective systems
Mboup, Ibrahim. "L'unilatéralité de l'acte administratif unilatéral décisoire." Aix-Marseille 3, 2010. http://www.theses.fr/2010AIX32079.
Full textOne-sided act decision expresses a binary unilaterality in its origin and destination. In its first simple meaning of one-sided act, excepting its normativeness, the act does not correspond every time to a straight choice result. The process to its legal birth is generally punctuated by several interventions, mark of its production control necessary elements partition between several persons, institutions or authorities. These elements allocation between several sides takes to questions of the act nature. If this one remains one-sided nature, because it comes to legal life only by the effect of one will’s expression, and remains so in spite of several wills compulsory to its production, it’s only because of a formal neutralization from moral person unity principle. In its decision meaning, the act symbolizes administrative law exorbitance. No matter what it allows administration by itself to enforce obligations to a third party, in no way involved by adoption-act step, a close examination of such a power shows that it’s firstly a competence. By the way, this power is for administration itself an obligation, meaning that it expresses a double reality: a power obliging but also obliged. The idea of a privilege is here an illusion
Talarico, Laure. "La personne du majeur protégé." Lyon 3, 2008. https://scd-resnum.univ-lyon3.fr/out/theses/2008_out_talarico_l.pdf.
Full textFollowing the January 3rd 1968 law, a case law set the foundations of individual protection by asserting that when an adult under legal protection has the ability to express his will, the latter should be respected whilst ensuring the distribution of competencies between protection organisms if the protected adult is inapt to decide on his own. However, the application of the case law found its limit in the strictly personal nature of all acts. It appeared that all personal acts could not be represented by a third party. The rules of competencies allocation described in the January 3rd 1968 law, based on classifications of patrimonial acts, were hardly applicable to personal acts due to the difficulty in classifying representable acts & acts incompatible with this technique. Adult individual protection resulting from the reform issued from the March 5rd 2007 ruling is based on an autonomous regime, different and opposite to the patrimonial protection regime. It is based on the capacity presumption which allows, in theory, the protected adult to accomplish himself acts related to his own person. Nonetheless representation and assistance of the protected adult are not excluded. Civil law foresees, generally speaking, their application when the adult is inapt to grant on his own, unless the concerned personal act is strictly personnel. Besides different particular laws, issued from civil rights and public health rights, maintains representation and assistance for protected adults. Other more innovating techniques ensure individual protection, like support when the latter is under legal proceedings or the ability for the individual, with a mandate for future protection, to anticipate the moment when she is no longer capable of acting on her own. Resulting from these different techniques is a relatively complex regime of individual protection for incapable adults with particularities which will certainly appear in their application
Maire, Guillaume. "Volonté et exécution forcée de l’obligation." Thesis, Université de Lorraine, 2016. http://www.theses.fr/2016LORR0145.
Full textWillingness and specific performance may seem opposed, because the first one refers to freedom while the second one to constraint. Yet, willingness and specific performance are strongly linked. Those links are not to be found in the grounds of the creditor’s specific performance right, even if the obligation on which this right is based comes from an agreement between the parties. While willingness is a criterion used to define specific performance, it especially expresses its influence when it comes to the regime of this sanction. Firstly, willingness influences, as a trigger, the implementation of the rights given by the law to the creditor in case of unperformed obligation. Secondly, it is likely to have a role to play upstream when parties contractually agree on an arrangement of the obligation specific performance’s right.This double influence of willingness on specific performance imposition is likely to affect both party interests and greater value and principles such as individual fundamental rights and freedoms and loyalty. A judicial assessment of willingness, which would highlight the limits of willingness influence, must be carried out. It would combine on the one hand the social utility of obligation - which is provided by specific performance - and freedom of contract with, on the other hand, fundamental rights and freedoms and loyalty. This study on specific performance, viewed from a willingness perspective, results in providing a framework for both the specific performance right and its contractual arrangement as well as a fair conciliation of those requirements
Vaisse, Maryline. "L'utilisation des techniques contractuelles dans l'interprétation des dispositions testamentaires." Paris 8, 2006. http://octaviana.fr/document/119090724#?c=0&m=0&s=0&cv=0.
Full textBahans, Jean-Marc. "Théorie générale de l'acte juridique et droit économique." Bordeaux 4, 1998. http://www.theses.fr/1998BOR40032.
Full textTHE ANALYSIS OF THE STRUCTURE OF THE JURIDICAL ACT IN ECONOMIC LAW CONFIRMS THAT THIS STRUCTURE IS FUNDAMENTALLY DUALISTIC, BEING BOTH SUBJECTIVE AND OBJECTIVE. THE REVIVAL OF THE SUBJECTIVE STRUCTURE ANSWERS THE COMPLEXITY OF THE OBJECTIVE STRUCTURE. THIS COMPLEXITY IS EXPRESSED BY THE COMBINATION OF MORE AND MORE NUMEROUS OBJECTIVE ELEMENTS (length OF TIME AND ECONOMIC DEPENDENCE) AND HETEROGENEOUS OBJECTIVE ELEMENTS (ECONOMIC PUBLIC ORDER AND SELF-REGULATING SYSTEM). THE REVIVAL OF THE SUBJECTIVE STRUCTURE IS FIRST ACHIEVED THROUGH THE NECESSARY QUALITY OF THE SUBJECTIVISM, BECAUSE WILL MUST BE EFFECTIVE AND ENDOWED WITH A SPIRIT OF COLLABORATION RESTORING THE IDEA OF CONTRACTUEL FREEDOM. THE DEGREES OF SUBJECTIVISM MUST BE TAKEN INTO ACCOUNT TOO, BECAUSE OF THE EXISTING VARIABLE SCALE OF DENSITY OF SUBJECTIVISM AND OF THE DEEP DIVERSITY OF SUBJECTIVE ELEMENTS ACCORDING TO THE JURIDICAL ACTS. NOW, WHILE THE STRUCTURE OF THE ACT IS DUALISTIC, ITS BASIS IS MONISTIC. SUBJECTIVISM AND OBJECTIVISM ARE LINKED BY A DIALECTICAL MOVEMENT, IN THE HEGELIAN MEANING OF THE WORD, THEY ARE INSEPARABLE OPPOSITES FINDING THEIR SYNTHESIS IN A SUPERIOR CATEGORY : THE CAUSE OR CONSIDERATION. THE CAUSE IS THE DIALECTICAL SYNTHESIS OF THE DYNAMIC CAUSALITY, COMING FROM VOLUNTARY CREATION, AND THE STATIC CAUSALITY, COMING FROM THE JURIDICAL ORDER, AND CAN THUS BE DEFINED BY THE NOTION OF INTEREST. INTEREST IS EXPRESSED BY WILL, IT INTEGRATES THE ECONOMIC OBJECTIVE SOUGHT BY PARTIES AND IS SUBJECTED TO A FORWARD-LOOKING ORGANIZATION MADE BY LAW. THE JURIDICAL ACT CAN BE DEFINED AS AN ACT OF WILL CREATING A NEW JURIDICAL SITUATION IN CONSIDERATION OF AN INTEREST WHICH IS PROTECTED, IF NOT ORGANIZED BY LAW AND PROVES TO BE ABLE TO FEDERATE THE JURIDICAL ACTS AS A WHOLE. THE CAUSE IS THE LINK BETWEEN WILL AND THE JURIDICAL ORDER AND IS THE BASIS WHICH JUSTIFIES THE BINDING POWER OF THE JURIDICAL ACT. THE LINK CAN BE PERFECT OR IMPERFECT (GENTLEMAN'S AGREEMENT). THE LINK MUST BE AND REMAIN WHAT JUSTIFIES THE READJUSTMENT OF CONTRACTS. AS THE FIELD OF THE BINDING POWER IS INSEPARABLE FROM THE SPHERE OF ITS BASIS, NEW LIGHT IS SHED ON THE QUESTION OF THE RELATIVY OF CONVENTIONS ; THE CESSION OF CONTRACTS IS JUSTIFIED BY THE PERMANENCY OF THE CAUSE AND GROUPS OF CONTRACTS ARE CHARACTERIZED BY THEIR UNITY OF CAUSE
Lacour, Clémence. "Vieillesse et vulnérabilité." Toulouse 1, 2006. http://www.theses.fr/2006TOU10014.
Full textAge often means vulnerability. It exposes the elderly to unfair agreements in their civilian life and neglects and abuses in their private life. They may loose also ability to decide on their health and personal security. The law hardly faces the specific vulnerability of old people. Most vulnerable elderly are sane, and they can not be protected under the incapacity system. However, vulnerability is increasingly taken into account by the law. The criminal law protects more specifically the victims who are sick, disabled, pregnant or aged. Moreover, the case law widens the protection of the consent in presence of a vulnerable aged person. The lawmaker wonders about the introduction of such expansion in the statute law itself, in the case of agreements under duress. Eventually, the law already protects the elderly in the medical and social domains of their private life. Nonetheless, it appears from the study that increasing consideration of vulnerability in the law would reduce self-sufficiency rather than strengthening it. The overprotected will of a vulnerable aged person would fall apart
Leprince, Christelle. "L'assistance dans l'élaboration d'un acte juridique." Thesis, Rennes 1, 2014. http://www.theses.fr/2014REN1G017.
Full textAssistance is a method that the legislator has had recourse to for long in the drafting of a legal transaction and it still does nowadays. However, it seems to arouse so few interest that the legitimacy of its existence may be doubted. The purpose of this demonstration therefore is to understand this practice and determine whether it can be considered as a singular and autonomous institution or not. Assistance can play two parts during the drafting of a legal transaction, sometimes as an “enabler”, sometimes as a “facilitator”. While this duality proves to be useful in the determination of the regime, it mostly brings a lexical confusion. In any case though, assistance conveys a substantial unity. Both defined as “being with” and “acting with”, assistance is an intermediary protection technique that excludes any kind of substitution and consists, for the designated assistant, in standing by the assisted to help him to state a will in accordance with his interests. As a consequence, it has to comply with clearly identified rules, which is, to date, not necessarily the case. Whilst presenting the positive law, this study aims at clarifying the functioning of assistance, both taken as the relationship established between the two main protagonists and beyond. Although assistance mainly concerns the assistant and the assisted, it inevitably has an impact on the legal transaction concluded thereby and the related third parties
Gallus, Nicole. "La rôle de la vérité socio-affective et de la volonté en droit belge de la filiation." Doctoral thesis, Universite Libre de Bruxelles, 2009. http://hdl.handle.net/2013/ULB-DIPOT:oai:dipot.ulb.ac.be:2013/210382.
Full textElle analyse la place croissante de l'autonomie de la volonté dans la conception de l'enfant, la création, le maintien et les effets du lien, ainsi que la prise en considération marquée de la parenté d'intention, détachée de la réalité génétique.
Cet examen est fait tant pour la procréation dite naturelle que pour la procréation médicalement assistée, avec, en particulier, une étude de la réception par le droit du désir d'enfant chez les personnes célibataires ou en couple homosexuel.
La parenté est également étudiée au plan de son évolution vers une reconnaissance de l'autonomie de la fonction parentale sous la forme de la parentalité, détachée de la filiation.
Le rôle du droit et la transformation de sa fonction sont analysés en parallèle.
Enfin, les conclusions développées au sujet de l'engagement parental volontaire sont confrontées aux principes généraux de dignité humaine et d'intérêt supérieur de l'enfant, ainsi qu'aux droits au respect de la vie familiale et à la connaissance des origines.
Doctorat en droit
info:eu-repo/semantics/nonPublished
Trilha, Schappo Kellen. "Les angles morts d'un monde juridiquement hétérogène : essai sur l'exercice stratégique de la volonté en droit international privé contemporain." Thesis, Paris, Institut d'études politiques, 2016. http://www.theses.fr/2016IEPP0071/document.
Full textIt is practically impossible to prevent individuals from choosing the legal framework that would best fit their expectations. Law regulates and limits individual will in contexts in which collective interests, as it understands them, should prevail; the international aspect of a situation relativizes, however, these limits, and offers multiple possibilities for individuals to develop a tailor-made framework for their own relationship. Private international law addresses the difficulties arising from the international aspects of a situation, but the complexity of some cases challenges the limits of the discipline’s mechanisms. Controlling the effects of individual choices becomes more difficult when not only the different content of rules from a country to another is explored, but individual strategy extends also to neighbouring regimes, in a normatively heterogeneous world. The strategic exercise of will consists in the manipulation of the regulatory framework by an individual aiming at excluding the application of a norm which does not satisfy their purpose. The submission of the situation to a chosen legal framework diverts it from the field of vision of the initial legal order, which will not see the situation again unless it is called to decide upon its effects. The new solution developed by the individual risks being not fully anticipated and regulated by the receiving legal order, or by any legal order that will have to decide on matters related to the main situation. Thus, in these conditions, the different interests at stake are not fully considered and balanced. As a space that escapes from an observer’s eyesight, some aspects of the situations are in a blind spot, phenomenon whose description and treatment are at the centre of this thesis
Bondil, Frédéric. "Le rôle des volontés individuelles dans la genèse des délibérations collectives." Aix-Marseille 3, 2001. http://www.theses.fr/2001AIX32037.
Full textThe study begins with the double statement of the dangers and benefits of an interference of the ordinary members of deliberative entities, ruled by private law, in the initiative of collective decisions. The research aims to determine how law arbitrates between these two facts. Two trends come out from the research related to a significant number of cases of deliberative collectivities. The action of individual will is tightly controlled when it is intended to apply to the opening of a deliberative procedure. Ordinary members in that case have to insure the proper and necessary development of their collective procedure. This requirement first appears when it comes to provoke the initiation of a decision making process. The function allotted to the power to initiate a decision then reveals itself in the terms of assignments of this prerogative and above all in the ways of exercising it. .
Dory, François. "Essai sur le contrat." Amiens, 2012. http://www.theses.fr/2012AMIE0062.
Full textNowadays, the word-concept « contract » hides more than it reveals. Most of the scholars establish that the diversity of contractual practice does not enable us to obtain an unified conceptual reality. This being said, the voluntarist représentation of the contractual phenomenon is taking a stronger hold in légal consciousness. Much of this persistence cornes from the fact that the lexical fïeld of the word 'contract' needs to be read using a psychological vocabulary. There is indeed no way to deal with contractual phenomenon without using terms such as will, agreement, intention, freedom or sayings such as contractual will and contractual freedom. Thèse 'verbal objects' incite the use of a strictly psychological approach and show that the contract cornes from the meeting of minds. Thus, even though the contractual phenomenon distinguishes itself by the implementation of legal norms and standards, contracts and will are still confusingly associated. Although this subjective representation of the contract is of considerable symbolical value, wondering about the ontological status of the contractual phenomenon leads us to see contracting as a social act that grows in a sphere of intersubjectivity. In this respect, it is an act of communication, an act that takes place using language
Mathieu, Marie-Laure. "L'avènement de l'engagement unilatéral en droit privé contemporain." Aix-Marseille 3, 1989. http://www.theses.fr/1989AIX32030.
Full textAfter raising an acute controversy at the end of the last century, the engagement by unilateral will is now ratified by positive law. On a theorical plan, this ratification came up against conventional conceptions related to will and obligation on one side and against the fact the code of napoleon acknowledges only one voluntary source of obligation on the other side : contract. The present evolution of ideas made it possible to overcome this obstacle. It has concretely meant a clear legislative and jurisprudential evolution, undoubtedly still uncompleted and which especially leads the judge to initiate an inductive reasoning in which the determination of the applicable system precedes the juridical qualification. Beyond the emergence of a new source of obligation, this phenomenon allows to foresce a new conception of the juridical deed, replacing the notion of pertaining to a juridical category by the concept of proximity compared with a model. For unilateral engagement is a juridical deed: the "density" of the obligation weighing down on the initiator is in close relationship with the intensity of his consent. Therefore, the juridical system of unilateral engagement is deeply marked by the question of the existence and the full implication of will. The unilaterality of the subscribed obligation is added to the unilaterality of the consent, which urges the judge to show the greatest care; the obligation is certainly intangible but its juridical system seldom separates from the question of the existence of the initial intention : thus, unilateral will is fully but scrupulously respected
Bahurel, Charles. "Les volontés des morts : vouloir pour le temps où l'on ne sera plus." Thesis, Paris 2, 2012. http://www.theses.fr/2012PA020021.
Full textA will is a singular act in private law, in many ways. First, it is certainly the most dramatic legal act of the private law. It expresses feelings very deeply rooted in the human heart : the fear of the death and also the fear of the deaths, the desire to stay among the alive, to leave some track of its existence, the concern to insure the future of his family … The will is also tragic by the disorders which he can provoke among survivors: the will is very often a source of scandals and family conflicts. The testator can hope to take revenge for his family. Then, the will is a mysterious act of the technical point of view. Its mechanism is very specific and breaks numerous rules of the general theory of the legal acts. Indeed, the will is all the opposite of a contract : unilateral command, the will obliges the heirs, without obliging at all the testator, who can, during his life, freely revoke its testamentary provisions. This study aims at explaining better the legal nature of the act of last will and at specifying its general rules, by indicating major principles useful for its application and for its construction. Without attempting a full analysis of all provisions on death, this work aims to shed light some difficulties traditional law of wills and some applications recently established by the legislature, particularly in Act of June 23, 2006
Bougardier, Maripierre. "La protection durable de la personne vulnérable en droit civil." Thesis, Toulon, 2017. http://www.theses.fr/2017TOUL0117.
Full textThe article of law dated 5 March 2007 regarding legal protection of adults has raised a guideline the issue of protection and autonomy of the protected persons. Conciliation of this double paradoxical injunction - protecting and empowering - gives the law a humanist framework. In order to give capability back to the person of full age without denying protective fonction of measures, legal protection obeys "guiding principles". These principles enable adjustment of protection depending on the person 's vulnerability and, in addition, allow him to keep his freedom and abilities. Protection is renewed under the concept of durability, by improving individual capacities of vulnerable persons. The existence of the concept of durability manifests in the fields of protection of the vulnerable persons and in the expression of the concept, as it tends towards the development of the vulnerable person in the autonomy and providing them with support. The concept of sustainable, applied in the field of protection of vulnerable people, was first germinated in law of protected adults. However, vulnerability shines beyond this narrow circle. Since reform of 10 February 2016, vulnerability has been taken into account in the Common Contract Law. Reference to vulnerability makes it possible to demonstrate that it is only under certain conditions that the application of protective standards is accepted. These standards, which have evolved through recent legislation, reflect a new apprehension of protection under the prism of the " durability ". The expression of sustainable protection is manifested particularly in the law of protected adults which is its beginnings. Mechanisms tend in fact to favour expression of the will of the person and therefore his autonomy in order to make him take part as much as possible in decisions which concem him. The person is thus integrated into the decision-making process. We can now discover traces of a sustainable protection in the Common Contract Law, law of contracts and right of protected adults thus including mechanisms designed to restore of the person's autonomy
Ferra, Nina. "La notion d’équivalence dans le contrat." Thesis, Perpignan, 2018. http://www.theses.fr/2018PERP0061.
Full textAs far as the question of the relationship between voluntarism and contractual justice is concerned, contract law has built its structure on the principle of balance. Attempts at conciliation has its limits: the notions of economy of contracts and relational contracts have appeared. Some notions take on more importance such as essential obligations, protection of the weaker party or even good faith. However interesting they are, in that they propose a more in depth notion of balance, are these approaches satisfactory ? The analysis of jurisprudential and legislative changes constantly leads to re-workings being done. Are these developments only superficial? Do they not convey the need to re-examine in more detail the law of obligations? The question is asked: what is a contract? Pragmatically and without dogmatism, it is a two-way relationship. From this perspective, the contractual relationship calls for equivalence and not balance. In this way, balance would only be an abstract of equivalence, conceived as a concrete fact. The object of this study is to ask the place of equivalence in contract law. Furthermore, it is to know how it can be transformed from the hypothetical to an operational notion
Noguero, David. "L'incidence de la maladie sur l'acte juridique." Paris 2, 2000. http://www.theses.fr/2000PA020036.
Full textGalbois, Diane. "La notion de contrat : esquisse d'une théorie." Thesis, Paris 2, 2018. http://www.theses.fr/2018PA020008.
Full textThe purpose of this thesis is to analyse and clarify what is understood by the notion of “contract”, buried as it is under mountains of doctrinal writings. After a detailed exploration of the general concept, which should enable demarcation of its boundaries with related institutions and give an appreciation of the diversity of contracts and their typology, the aim is to achieve a synthesis of these observations. As the diversity of contracts should not necessarily result in fragmentation of the basic notion, the proposed synthesis will be unitary. Building on the diverse interpretations over the years of the concept of contract (autonomy of the will theory, normative theory...) this thesis, after outlining the concept of contract in both its “voluntarist” and normative aspects, will propose a renewed analysis thereof. The notion of contract will then appear as a complex combination of objective and subjective elements, free of ideological dogma
Argouse, Aude. "« Je le dis pour mémoire » : testaments d'indiens, lieux d'une justice ordinaire : Cajamarca, Pérou, XVIIe siècle." Paris, EHESS, 2011. http://www.theses.fr/2011EHES0143.
Full textBy the end of the 16th century XVI, Cajamarca is a "town of Indians" destined to the natives. Many of them fled, disappeared or died, whereas the Spaniards settled down in the head town of the province Cajamarca becomes in the 17th century, which population rises up to 10 000 inhabitants. We are interested in the way the not-Indians undertook actions to legitimize their "right to be there". In order to evade the prohibitions ruling over the relations with Indians - that restricted the acquisition of real estate -they persisted in their efforts to legitimize their presence and managed to control aIl the spheres of local government, including those of ordinary justice concerning the Indians. In this process, the public legal writings (constituted mainly by wills) represent both a mean and an aim of government. We are interested in this "taking over of the writing" by the Indians, who, as they respond to the legal and religious requirements, find in that practice a place of expression of their feelings and affections. We propose an analysis of the individual’s will and' of the voluntary aspiration of justice by means of the Indian written words, which played a testimonial roll with a judicial vocation. Thus, the lndian public notary submits a report of the present state of things. He do es this aiming to enforce the surviving members of the family to reimburse the debts of the deceased, to guarantee the realization of funerals, and to state "for the record" (" para que conste") so that the act has validity in the future. Hence, the testament, available hereafter at the public registry for anyone to see, becomes a place of justice which inverts the time of those who spoke
Morales, Huertas Sandra Margarita. "La rupture unilatérale du contrat pour inexécution en droit colombien." Thesis, Paris 2, 2018. http://www.theses.fr/2018PA020085.
Full textUnder the Colombian law, the general rule in case of breach of contract is that of termination as a consequence of a court order. Its conditions of exercise have been the object of development by the doctrine and case law, not without several issues that make difficult to understand and put into practice such category. In contrast with this traditional vision, unilateralism breaks in the contemporary contractual world and more specifically, the possibility of termination of contract in such a unilateral way in case of a breach. This trend has its roots in Common law and has been permeating the countries of Roman-Germanic law tradition; and it aims to grant vitality to that critical contractual phase, thus avoiding the intervention of the judge, at least as a first measure, allowing the creditor to remedy the consequences of the breach of contract by an early termination in order to seek effective solutions in the marketplace. Could this rule have a place in Colombian law? Despite the seemingly apparent monopoly of judicial termination of contract, both the civil code and the code of commerce acknowledge this as a possibility. Similarly, more recently the possibility of including termination clauses has been accepted. However, we hold that it is possible to accept a generalization of the rule of unilateral termination of contract in case of breach. A study of comparative law regarding the breach that results in contract termination and the analysis on the way this prerogative should be exercised are of great importance; it does not only enriches a proposal providing the parameters for the unilateral termination of a contract when a breach arises in Colombian Law, but also clarifies the understanding that until now exists in the matter of termination for non-performance