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Journal articles on the topic 'Reform of Contract law'
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1
Grau, Juan Bataller. "Reform of Insurance Contract Law." European Journal of Commercial Contract Law 3, no. 1 (January 1, 2011): 8–21. http://dx.doi.org/10.7590/ejccl_2011_01_02.
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Koch, Robert. "German Reform of Insurance Contract Law." European Journal of Commercial Contract Law 2, no. 3 (July 1, 2010): 163–71. http://dx.doi.org/10.7590/ejccl_2010_03_02.
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Lorenz, Werner. "Reform of the German Law of Breach of Contract." Edinburgh Law Review 1, no. 3 (May 1997): 317–44. http://dx.doi.org/10.3366/elr.1997.1.3.317.
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This paper, first presented on 21 October 1995 at a joint seminar of the Scottish Law Commission and the Faculty of Law, University of Edinburgh, on the subject of breach of contract, considers the proposed reforms of German law in this area. The paper first surveys some of the problems of the existing law, highlighting its lack of a unitary concept of breach, gaps with regard to liability for breach of pre-contractual duties and contract modification owing to change of circumstances, difficulties arising from the special treatment of sales contracts and contracts for work and labour, and the mutual exclusivity of rescission and damages. Many difficulties arise from the operation of the law of prescription in the field. It is observed that the Vienna Convention on International Sales of Goods was ratified by Germany in 1991, making it desirable for reform to be consistent with the Convention. The reform proposals put forward in 1992 include a unitary concept of breach, modification of the fault principle, priority for specific implement, adjustment of the rules on termination to permit cumulation with damages and restitution, and changes with regard to the law of sales and contracts for work and labour. If implemented these will bring the German Civil Code into line with case-law developments as well as those in the international law of sales.
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Downe, Alexis. "THE REFORM OF FRENCH CONTRACT LAW: A CRITICAL OVERVIEW." Revista da Faculdade de Direito UFPR 61, no. 1 (April 29, 2016): 43. http://dx.doi.org/10.5380/rfdufpr.v61i1.46003.
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Since the Napoleonic Code of 1804 we have seen republics, monarchies and empires coming and going; local and world wars; revolutions, from the industrial to the informational; and our society has moved from an economy based on agriculture to one open to the world, based on tertiary services. In all this time, French contract law has been able to stay up and keep up to date with the many changes in society, thanks to the judicial interpretation of the various articles of the French civil code and the generality of its articles. There have been many previous attempts to reform French contract law but its principles, forged in 1804, have escaped unscathed, except for certain transpositions of European directives. This article focuses on an academic point of view with regards the reforms to the French civil code that will bring private contract law into line with modern international standards. This is the first step in a series of broader changes the government is making to the French law of obligations. This reform is said to have both adapted and revolutionised French contract law and merits scholarly attention.
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Latifiani, Dian. "RENEWAL OF THE NATIONAL CONTRACT LAW." Jurnal Hukum Progresif 8, no. 2 (October 30, 2020): 137–50. http://dx.doi.org/10.14710/jhp.8.2.137-150.
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The development of transactions/contracts in Indonesia and the world is developing very rapidly. Meanwhile, Indonesian contract law is sourced from the Civil Code Book III. The Dutch colonial-made Burgerlijk Wetboek did not yet regulate national and international contracts which had undergone development. Indonesian values also do not exist in book III. So it is necessary to have contract law renewal based on the values of Pancasila. The problem discussed in this paper is how to reform the national contract law. The urgency for renewal is carried out to support the 2005-2025 National RPJP, namely "The development of legal materials/substances is directed to continue the renewal of legal products to replace colonial legacy laws to reflect the social values and interests of the Indonesian people". The juridical normative writing method is used to assess the value of the renewal of the national contract law. Renewal begins with the preparation of an academic paper. Updates are carried out with open partial codification, not closed. The reforms contain Pancasila values, are designed as a sub-codification of engagement law, and are designed to lay the foundation for contract law in Indonesia.
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Yuanjian, Zhai. "Chinese Contract Law and the Economic Reform." Transition Studies Review 16, no. 2 (April 29, 2009): 429–37. http://dx.doi.org/10.1007/s11300-009-0074-1.
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FAUVARQUE-COSSON, BÉNÉDICTE, and FRANÇOIS ANCEL. "Is Renovating the General Law of Contracts Useful? The French Experience." Право України, no. 2019/03 (2019): 220. http://dx.doi.org/10.33498/louu-2019-03-220.
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The ordonnance of 10 February 2016 for the reform of contract law, of the general regime and of proof of obligations came into force on 1 October 2016. Further changes were made by the legislator in 2018. This reform modifies one of the most important part of the Code civil: the provisions on contracts and obligations The reform aims at giving more accessibility and clarity to French contract law, and it undeniably has already made it more attractive internationally. In this paper, we explain why, in an international world where contracting parties can chose the law applicable to their contract, we believe that a codified law is very important to overcome the void left by the contract and to resolve the difficulties that have arisen during its existence. Besides, it brings legal certainty, accessibility and visibility. We also explain why we think that a modern general law of contracts is a unique opportunity to propose a base of legal provisions considered as “minimal” and to affirm a specific legal policy. If it is clear, that practitioners and judges should not conceive contract law as the expression of a contractual public order (ordre public contractuel), it is sometimes difficult to know to what extent contracting parties can set aside some provisions of the governing law. Finally, we explain how, after having been for nearly two centuries the instruments of a certain legal nationalism, national codifications have become the cement of European private law. Indeed, the French contract law reform, which was built on the diversity of Europe, drew much inspiration from various European and international models. In turn, it has attracted a great deal of interest abroad, was translated into several languages and is extensively commented.
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Ubochioma, Wiseman. "Pre-incorporation contract: A comparative analysis of the Canadian and Nigerian corporate law regimes." Corporate Law and Governance Review 3, no. 1 (2021): 29–42. http://dx.doi.org/10.22495/clgrv3i1p3.
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The question of how best to protect the interests of a promoter, a third party, and a company in pre-incorporation contracts is one that seems to have defied corporate law. Although this problem has its origin in common law, various countries have made efforts to address it through statutory reforms. The paper, therefore, examines the extent to which the Canadian and Nigerian legal regimes for the pre-incorporation contract have provided panaceas to the problem. This paper, through a comparative analysis, argues that although the legal regimes have made efforts to reform the common law rule on pre-incorporation contracts, they suffer patent defects. It also posits that notwithstanding the defects in the laws, the Canadian legal regimes offer more protection to parties to pre-incorporation contracts than Nigerian law. The paper suggests reforms in both regimes that would meet the reasonable expectations of the parties to a pre incorporation contract
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MacQueen, H. "Contract law reform: Legislators or judges – or both?" Acta Juridica 2021 (2021): 57–82. http://dx.doi.org/10.47348/acta/2021/a3.
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This essay pursues a theme identified by Dale Hutchison – judges’ use of their technical expertise to achieve creativity in law – and asks how far that may be relied upon by law reform bodies, such as the Law Commissions in the United Kingdom. The question is whether such bodies should take account of means other than legislation for having their recommendations put into effect. It is suggested that, while law reform bodies should be fully aware that their published work is a source of information, ideas and arguments for practitioners and judges which may contribute to the judicial development of the law, they should address themselves only to government and the legislature.
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Oldham, James. "A Profusion of Chancery Reform." Law and History Review 22, no. 3 (2004): 609–14. http://dx.doi.org/10.2307/4141691.
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The refrain that law and equity cannot peaceably cohabit the same court is familiar and persistent. In his 1790 treatise on contracts, Joseph Powell protested that blending law and equity was “subversive of first principles.” He claimed, “That a right in itself purely legal cannot be the proper subject of discussion in a jurisdiction purely equitable, and that a right purely equitable, cannot be the proper subject of a purely legal jurisdiction, are axioms that cannot be denied,” adding for good measure: “It is a proposition as self-evident as that black is not red, or white black.” Almost two centuries later, in a provocative 1974 essay called The Death of Contract, Grant Gilmore asserted that the legal doctrine of consideration in contract law and the equitable doctrine of promissory estoppel were like “matter and anti-matter,” and “The one thing that is clear is that these two contradictory propositions cannot live comfortably together: in the end one must swallow the other up.”
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Kovac, Mitja. "Frustration of purpose and the French Contract Law reform." Maastricht Journal of European and Comparative Law 25, no. 3 (June 2018): 288–309. http://dx.doi.org/10.1177/1023263x18781190.
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Frustration of purpose remains one of the most ill-defined concepts in the English law of contracts. The same problem has also recently attracted the attention of the French legislature in its modernization of the Code Civil. The French reform entitles courts with broad powers to adjust the contract when unforeseen contingencies have made the bargain unduly costly. This article argues that the introduction of an economically inspired adjustment rule in English contract law should be re-considered to maintain its current superior commercial position. If implemented, then the ‘ex ante division of surplus’ should be the governing principle in adjusting contract price, because such a remedy will not affect the agreed-upon division of the surplus. Moreover, this paper suggests that the recent French reform is indeed a long-awaited step toward a more effective regulation of the notorious ‘unforeseen contingencies’ phenomena, but also suggests that further improvements might be needed. Furthermore, it offers a set of arguments suggesting that the English law in its current form might still be the preferred option in the world of international business transactions. The international commercial attractiveness of English contract law, although being challenged by the new French Civil Code, remains undisputed.
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Grundmann, Stefan. "European Sales Law — Reform and Adoption of International Models in German Sales Law." European Review of Private Law 9, Issue 2/3 (June 1, 2001): 239–58. http://dx.doi.org/10.54648/359019.
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The sales directive will lead to the most important law reform in German contract law since the entering into force of the German Civil Code in 1900. This is true, first, for sales law and the law of limitation. Here, the most important problems were due to the fact that defects in quality and defects in the right confered were treated differently, that there was a multitude of grossly diverging limitation periods (from six months to thirty years) and that phenomena like the delivery of slightly different goods (aliud) or of a slightly diverging quantity (minus) were again treated differently. With respect to these differentiations, the directive will lead to an important simplification of German sales law. One major topic not treated by the directive will change as well: So far, in most cases sellers (and only sellers) could not be sued for damages in case of pure negligence but only of fraud. This is anachronistic and will change. One striking feature of new German sales law is that it applies to all sales with only very few specific rules for consumer sales. This is however due to the fact that also the (consumer) sales directive and the Vienna Convention on international (commercial) sales are very similar in most points. Apart from sales law, it is still likely that the reform of German contract law will extend, second, to two more fields: The general law of breach of contract will probably be reformed, the preparatory work by the so-called Schuldrechtskommission extended over two decades. And probably the different acts on consumer law will be integrated into the Civil Code. This relates mainly to door step selling, distance selling, consumer credits and also unfair contract terms, although the latter are not a problem only of consumer contracts under German law. German academia was taken in surprise by the pace of reform both on Community level and by the German legislature. It started to collaborate in the legislative process only lately and large parts of it still rather see the disadvantages of new models than the chances of law reform. This casts some doubts over the parts of the reform which are not imposed by the directive.
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Rowan, Solène. "THE NEW FRENCH LAW OF CONTRACT." International and Comparative Law Quarterly 66, no. 4 (August 22, 2017): 805–31. http://dx.doi.org/10.1017/s0020589317000252.
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AbstractThe article analyses the recent reform of contract law in France. The section of the Civil Code on the law of contract was amended and restructured in its entirety last year. The revised section came into force on 1 October 2016. The article considers its main innovations and compares them with the corresponding principles of English law and some contract law international instruments, mainly the UNIDROIT Principles and the Principles of European Contract Law. The article also assesses whether the new provisions achieve their stated aim of rendering French contract law more accessible, predictable, influential abroad and commercially attractive.
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Uchida, T. "Contract Law Reform in Japan and the UNIDROIT Principles." Uniform Law Review - Revue de droit uniforme 16, no. 3 (August 1, 2011): 705–17. http://dx.doi.org/10.1093/ulr/16.3.705.
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Newman, P. L. "The Law Reform Act 1945 and Breaches of Contract." Modern Law Review 53, no. 2 (March 1990): 201–5. http://dx.doi.org/10.1111/j.1468-2230.1990.tb01804.x.
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Davey, Martin. "Privity of Contract and Leases - Reform at Last." Modern Law Review 59, no. 1 (January 1996): 78–94. http://dx.doi.org/10.1111/j.1468-2230.1996.tb02066.x.
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Leisner-Egensperger, Anna. "Der Verwaltungsvertrag: Bestandsaufnahme und Reformbedarf." Die Verwaltung 51, no. 4 (October 1, 2018): 467–94. http://dx.doi.org/10.3790/verw.51.4.467.
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Abstract The regime concerning administrative contract law under sec. 54 et seq. of the Administrative Procedure Code (VwVfG) appears to be in need of reform. Amendment of the code remains on the political agenda, though other projects such as Europeanisation, democratisation and digitisation currently seem to enjoy precedence. In recent times, progressive development of administrative contract law has shifted to specific legal areas, in particular to construction and planning law, environmental law, elements of public commercial law, tax law and social legislation. How administrative law may be distinguished as a specific discipline is a question of principle, effectively representing a new chapter in the dispute concerning methods that occurred in the 19th century, a question, moreover, that extends far beyond the law concerning administrative contracts. In order to reform the current legal provisions covering administrative contracts in the Administrative Procedure Code, a three-part analysis is proposed: First of all, the specific interests of both the public authority and the citizen must be taken into consideration. Subsequently, the current legal regulation of administrative contracts must be analysed in terms of both its fundamental ideas, as well as its central provisions. Finally, it is necessary to determine whether the teleology of the public law contract can be applied to this area, or whether specific, factual connections or constellations of interests must be taken into account, entailing that the use of a model based on general standards seems inappropriate. The result of the foregoing is that a critical analysis of the evolution of administrative contract law is proposed.
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Shojaei, Abdorreza. "Validity of Open Contract in International Trade Law." Journal of Politics and Law 10, no. 2 (February 28, 2017): 241. http://dx.doi.org/10.5539/jpl.v10n2p241.
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Open contracts are agreement whereby parties of the contract can insert terms and conditions in the contract, delete them, or revise them. Some contracts for the supply of goods or construction are examples of such contracts. One party (usually a contractor or seller) can have many initiatives by increasing and decreasing the price or by changing elements of the contract. Certainly, there are many reasons, motives, and important goals in creating this type of conventions and its acceptance by the legal community. Discovery of these reasons and the goals leads to fundamental changes and definition of this type of contract could be a major driver of reform in Iranian contract laws, as Iranian community prefers to use example or pre-specified forms of contracts. Therefore, referring to the Principles of European Contract Law and implementation of the legal provisions, legal doctrines, and jurisprudence, presentation of new concepts such as open contract as well as analysis of its nature, validity, and effects leads to establishment of grounds for accepting new contractual frameworks and its localization of contractual rights in Iran because it has been rejected due to traditional perspectives. It may result in legislation to pave the way for solving many legal problems in specialized issues such as oil contracts. In this regard, in addition to genealogy of open contract, this article aims to examine its types and its effects legally in the laws of countries like Iran and European countries.
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Bertino, Lorenzo. "The Standardisation of the Leasing Contract Under Italian Law and the Unidroit Principles." European Business Law Review 30, Issue 5 (October 1, 2019): 841–52. http://dx.doi.org/10.54648/eulr2019035.
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Despite its financial nature, for over forty years, Italian case law has classified the financial leasing contract as an atypical contractual form, often qualifying it as a sale or rental agreement. In this respect, various indexes were formulated, such as the amount of the rental fees and the existence of a redemption agreement. In August 2017, the Italian legislator sought to standardise the leasing contract under the law, attempting to define its contractual form and to regulate certain aspects, such as the lessee’s breach and possible consequences deriving from its termination. The comparison between the approach taken by case law prior to the legislative reform and the new regulatory framework shows that the legislator did not transpose the long-established jurisprudential outcomes into the reform. Instead, through comparing the legal reform with the UNIDROIT Principles (The Ottawa Convention and the Model Law), it would appear that the new legal framework closely resembles the solutions adopted therein. Conversely, it is clear that the legal reform does not incorporate the rules adopted by the Draft Common Frame of Reference.
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Ernst, Wolfgang. "New Rules of Breach of Contract in Germany." Cambridge Yearbook of European Legal Studies 5 (2003): 333–56. http://dx.doi.org/10.1017/s1528887000004389.
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In 2001 the German legislator passed a law for the ‘Modernisation of the Law of Obligations’ (Schuldrechtsmodernisierungsgesetz—SMG). It encompassed new rules on breach of contract, a wholly new law of limitation of actions and new provisions for contracts of sale, contracts for services and loan. By the same Act the existing statute on standard contracts (Gesetz über Allgemeine Geschäftsbedingungen) and various other statutes for the protection of consumers were integrated into the German Civil Code (Bürgerliches Gesetzbuch—BGB). It was the most extensive amendment of the BGB since its enactment in 1900. Many of the legislative measures bundled together in the SMG had an EC-law background. We shall here consider only one aspect of the reform statute, namely the new rules on breach of contract and their relationship with European law.
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Ernst, Wolfgang. "New Rules of Breach of Contract in Germany." Cambridge Yearbook of European Legal Studies 5 (2003): 333–56. http://dx.doi.org/10.5235/152888712802784243.
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In 2001 the German legislator passed a law for the ‘Modernisation of the Law of Obligations’ (Schuldrechtsmodernisierungsgesetz—SMG). It encompassed new rules on breach of contract, a wholly new law of limitation of actions and new provisions for contracts of sale, contracts for services and loan. By the same Act the existing statute on standard contracts (Gesetz über Allgemeine Geschäftsbedingungen) and various other statutes for the protection of consumers were integrated into the German Civil Code (Bürgerliches Gesetzbuch—BGB). It was the most extensive amendment of the BGB since its enactment in 1900. Many of the legislative measures bundled together in the SMG had an EC-law background. We shall here consider only one aspect of the reform statute, namely the new rules on breach of contract and their relationship with European law.
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Cornelius, S. "Die matigende rol van die waardes onderliggend aan die grondwet in die Suid-Afrikaanse kontraktereg." Tydskrif vir die Suid-Afrikaanse Reg 2022, no. 4 (2022): 660–71. http://dx.doi.org/10.47348/tsar/2022/i4a3.
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With the adoption of the interim constitution in 1993, much was made of the transformative function which the new constitution, and more particularly, the bill of rights, would fulfil. There were calls to reform the law of contract, whether by means of codification, piecemeal legislation or judicial reform. This contribution focuses on judicial reform of the law of contract and the apparent lack of change since the advent of the new constitutional dispensation. The search for a means to mitigate the strict application of the law of contract is not new. The Romans found that strict application of the law of contract could sometimes lead to unfair results. Eventually, Roman law developed a remedy, known as the exceptio doli, to mitigate the strict application of the law of contract. The courts in South Africa, from the outset, had to deal with instances where strict application of the law of contract would apparently lead to harsh results. To this end, the courts also turned to the Roman exceptio doli, but eventually, the appellate division ruled in Bank of Lisbon and South Africa Ltd v De Ornelas (1988 3 SA 580 (A)) that the exceptio doli is not part of the South African law of contract. Since then, and particularly since the advent of the new constitutional dispensation, parties have sought to rely on the values underlying the constitution, good faith, reasonableness and equity, in an attempt to seek redress from what they viewed as the harsh effects of the law of contract. Some trends began to develop: firstly, in some instances, judges displayed a shocking lack of knowledge of the law of contract; secondly, parties or the courts sometimes unnecessarily invoked the constitution when the common law of contract would have produced the same result; thirdly, a clear pattern of conservative majority and liberal minority opinions emerged in judgments of the courts; and lastly, the courts have tended to follow an all-or-nothing approach to matters dealing with contracts. However, in a minority opinion in Beadica 231 CC v Trustees, Oregon Trust (2020 5 SA 247 (CC)), Froneman J proposed a more nuanced approach in terms of which contractual matters can be resolved by proportionate adjustment of the contract. This kind of approach has been followed in Germany and it is proposed that the German concept of ergänzende Vertragsauslegung can guide the courts in South Africa to give greater effect to the values underlying the constitution, good faith, reasonableness and equity.
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Matsuda, Masaharu. "Insurance Contract and Aleatory Contract under Reform of the Law of Obligations in France." Hokengakuzasshi (JOURNAL of INSURANCE SCIENCE) 2020, no. 651 (December 31, 2020): 651_111–651_137. http://dx.doi.org/10.5609/jsis.2020.651_111.
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Mandala, Subianta. "PEMBAHARUAN HUKUM KONTRAK INDONESIA DALAM KERANGKA HARMONISASI HUKUM KONTRAK ASEAN." Jurnal Rechts Vinding: Media Pembinaan Hukum Nasional 1, no. 2 (August 31, 2012): 295. http://dx.doi.org/10.33331/rechtsvinding.v1i2.102.
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<p>Pembentukan Masyarakat Ekonomi ASEAN pada tahun 2015 telah mendorong Negara Anggota ASEAN untuk mereformasi undang-undang mereka. Ini adalah momentum yang baik bagi Indonesia untuk mereformasi hukum kontrak dan pada saat yang sama untuk mencapai komitmen ASEAN untuk harmonisasi hukum ASEAN. Dalam tulisan ini akan dibahas, pendekatan hukum dapat diambil oleh Indonesia dalam upaya untuk mereformasi hukum kontrak sehingga konsisten dengan tujuan harmonisasi ASEAN hukum; dan seberapa luas atau apa lingkup substansi untuk dimasukkan dalam undang- undang untuk bisa menjadi undang-undang baru yang kompa Ɵ bel dengan hukum kontrak Negara ASEAN lainnya. Tulisan ini menggunakan metode peneli Ɵ an hukum norma Ɵ f dengan analisa kualita Ɵ f. Kesimpulan yang diperoleh dari peneli Ɵ an ini adalah bahwa pendekatan yang diambil untuk mereformasi hukum kontrak Indonesia saat ini adalah dengan menggunakan instrumen hukum internasional seper Ɵ Konvensi PBB tentang Kontrak untuk Penjualan Barang Internasional (CISG) 1980 dan Prinsip UNIDROIT Kontrak Komersial Internasional (UPICCs) sebagai referensi untuk hukum kontrak Indonesia yang baru. Sedangkan lingkup substansi yang akan direformasi terbatas pada prinsip-prinsip umum dan aturan hukum kontrak internasional dan ketentuan untuk penjualan barang. Untuk mempercepat reformasi, penulis menunjukkan bahwa hukum kontrak diprioritaskan dengan memasukkannya ke dalam Program Hukum Nasional (Prolegnas) dari periode 2015-2019.</p><p>The establishment of ASEAN Economic Community by 2015 has encouraged ASEAN Member States to reform their laws for harmoniza Ɵ on, including contract law. This is a good momentum for Indonesia to reform its contract law and at the same Ɵ me to achieve ASEAN commitment for ASEAN legal harmoniza Ɵ on. Having said that, the ques Ɵ ons are (1) what legal approach can be taken by Indonesia in its e ff ort to reform its contract law so that it is consistent with the objec Ɵ ve of ASEAN legal harmoniza Ɵ on, (2) how broad or what the scope of substance to be included in the new law can be so that the new law will be compa Ɵ ble with the contract laws of other ASEAN Countries. To answer those ques Ɵ ons, minor research has been conducted. A method of norma Ɵ ve legal research is used to collect data which is mainly from books, academic dra Ō s, na Ɵ onal legisla Ɵ on and interna Ɵ onal trea Ɵ es (secondary data). Those data is, then, analyzed using qualita Ɵ ve method. In conclusion, (1) the approach taken to reform the current Indonesian contract law is by using interna Ɵ onal legal instruments such as United Na Ɵ ons Conven Ɵ on on Contracts for the Interna Ɵ onal Sale of Goods (CISG) 1980 and UNIDROIT Principles of Interna Ɵ onal Commercial Contracts (UPICCs) as references for the new Indonesian contract law, (2) the scope of the substance to be reformed is restricted to the general principles and rules of interna Ɵ onal contract law and provisions for sale of goods. To speed up the reform, the writer suggests that contract law be priori Ɵ zed by pu ƫ ng it into the Na Ɵ onal Legal Program (Prolegnas) of 2015-2019 period.</p>
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Hertzell, David. "Insurance Contract Law Reform in England and Scotland – An Update." ERA Forum 9, S1 (August 22, 2008): 177–82. http://dx.doi.org/10.1007/s12027-008-0076-1.
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Jaharuddin, Jaharuddin, and R. Melda Maesarach. "AKAD SALAM DAN PROBLEMATIKANYA DI PERBANKAN SYARIAH, PENDEKATAN KRITIS." Media Ekonomi 29, no. 2 (February 27, 2022): 1–16. http://dx.doi.org/10.25105/me.v29i2.10135.
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The purpose of this study is to analyze the application of the salam contract, its development, find problems and provide alternative solutions so that the salam contract can be applied in Indonesian Islamic banking. Research method This research is qualitative research with a critical approach. The results of this study are (1). Salam contract can be applied in Islamic banking in Indonesia and provides benefits as working capital for farmers, fishermen, and MSMEs. Salam contract should be encouraged to be implemented. (2). Salam contract is not implemented in national sharia banking, thus the partiality of sharia banking to farmers, fishermen, and MSMEs, is still not visible. (3). The solution for implementing salam contracts in national Islamic banking is by (a). philosophical re-orientation, namely the re-orientation of the objectives and business model of Islamic banks that are different from conventional banks. (b). Carry out positive law reforms by sharia in Indonesia (shari'a-based omnibus law). (c). Operational technical adjustments, HR literacy, community literacy, and risk management are based on a philosophical re-orientation and strategic reform. And d). The political will of the government, the DPR, and the Indonesian and international community
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Ismail, Mahmoud. "CONTRACT BREACH AND REMEDIES IN FRENCH LAW ACCORDING TO THE REFORM IN 2016." Journal of Southwest Jiaotong University 57, no. 6 (December 30, 2022): 1104–11. http://dx.doi.org/10.35741/issn.0258-2724.57.6.96.
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This research looks on the relationship between the breach of contract and the remedies for such breach, and their actual application in the contractual relationship. The contract is a manifestation of voluntary promise between the parties, tends to create a legal obligation. The Contract Law differs from jurisdiction to jurisdiction due to the history and environment of development in various societies. The law usually specifies contract parties' obligations, and the parties must fulfill their obligations. Otherwise, they will breach the contract. A contract is deemed breached if at least one main obligation was not full filed or was delayed. The obligations of a contract vary depending on whether they are results-based or best-efforts-based. In the first situation, the pretender only needs to prove that the obligation was not realized. In the second situation, the pretender must prove that the other party did not perform his part of contractual obligations as well as possible or was negligent or not diligent enough. The breach of contract must have harmed the other party. French law could order the compensation of different damages such as material injuries, non-pecuniary damages, or bodily harms. However, a debtor is liable only for damages that were predicted or that could be predicted at the time of the contract, unless the debtor's failure is owing to his own clear negligence or fraud. Of course, a causal link must be proved between the breach of contract and the claimed damage, that is to say that the damage must be the immediate and direct consequence of the non-performance of the contract. In this case, the breach of contract is proved, then, what remedies does French law have? While this research was trying to determine the answer of such question according to the reform of 2016 of French civil law, we found a stable remedies decided by the French civil code.
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Fras, Mariusz. "Ugovor o obaveznom osiguranju u međunarodnom privatnom pravu." Evropska revija za pravo osiguranja 20, no. 01 (March 2021): 8–23. http://dx.doi.org/10.46793/erpo2001.08f.
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Compulsory insurance is present in a vast majority of countries in the world and in all European countries. As international legal relations increasingly intensify, the market of cross-border insurance is also expanding. Despite entry into force of the provisions of the Rome I Regulation and the oncoming reform of the Brussels I bis Regulation, the European private international law, to the extent it governs compulsory insurance, is still a compromise. In the absence of a clear regime under the Rome I Regulation, doubts are still raised by the question of the pursuit for law applicable to group insurance contracts.
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Fedtke, Jörg. "The Reform of German Tort Law." European Review of Private Law 11, Issue 4 (August 1, 2003): 485–508. http://dx.doi.org/10.54648/erpl2003031.
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Abstract: After a few futile attempts at reforming German law relating to compensation for tortious acts and breach of contract, a bill enacted on April 18, 2000 brought about some major changes. Amongst the key areas of reform are: the introduction of a general claim for non-pecuniary loss in cases of personal injury; the partial exclusion of value-added tax (VAT) in the calculation of material damages; an improvement of the position of children participating in public traffic; a “levelling” of the defences available to train operators as well as keepers of motorised vehicles under strict liability statutes; new rules relating to liabilty for pharmaceutical products; the raise of existing compensation caps (Haftungshöchstgrenzen) in the field of strict liability; and the introduction of liability of court-appointed experts who submit erroneous reports. Not only has the German legislator, by implementing this reform in August 2002, stayed abreast of changes in case law relating to compensation for tortious acts and breach of contract, but it has also fallen into line with general developments of the law in Europe, such as the improved protection of small children and the establishment of an express claim for non-pecuniary loss. However, the legal basis for a general right of personality has remained unchanged; in this context, a proposal by the Bundesrat to include such a right expressis verbis in the new § 847 BGB has not been adopted. The same holds true for the possibility of the principal to escape liability for his assistants, which is even more important against the background of other European jurisdictions. To lawyers with a common law background, who are accustomed to the gradual development of their case law, this history of German tort law offers an interesting perspective: it demonstrates the frictions involved in the interplay between legislative “maintainance” of an entire Code on the one hand, and development of the law by Courts on the other.
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Burrows, Andrew. "Legislative Reform of Remedies for Breach of Contract: The English Perspective." Edinburgh Law Review 1, no. 2 (January 1997): 155–79. http://dx.doi.org/10.3366/elr.1997.1.2.155.
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This paper,first delivered on 21 October 1995 at ajoint seminar ofthe Scottish Law Commission and the Faculty of Law, University of Edinburgh, on the subject of breach ofcontract, is an examination ofthose areas ofremediesfor breach ofcontract that are, or have been, the subject of review by the English Law Commission. The following topics are addressed: aggravated, exemplary and restitutionary damages; contributory negligence as a defence to breach ofcontract; interest on late payment of contractual debts; damages in contracts for the benefit of third parties; penalty clauses; and limitation periods. In addition some comments are made on remoteness ofdamage. It is concluded that there should not be a codification ofthe law in this area, although there is room for incremental reforms.
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Maschmeyer, Richard A., Minnie Yi-Miin Yen, and Ji-Liang Yang. "ENTREPRENEURIAL ANOMALIES WITHIN CHINA’S STATE ENTERPRISES." Journal of Enterprising Culture 01, no. 01 (June 1993): 21–38. http://dx.doi.org/10.1142/s0218495893000026.
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Since 1979, market oriented reforms have resulted in several initiatives that promote entrepreneurial activities within state enterprises of the Peoples’ Republic of China. This paper discusses the entrepreneurial characteristics implied within the State Enterprise Law, the Bankruptcy Law and the Contract Responsibility System (CRS). In spite of these well intentioned reform initiatives, state enterprises are currently facing serious financial difficulties. The effectiveness of these entrepreneurial type initiatives in the presence of the enterprises’ deteriorating economic performance is discussed.
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Bertino, Lorenzo. "Breach of Contract: Automatic and Unilateral Price Reduction." European Review of Contract Law 14, no. 1 (March 19, 2018): 24–59. http://dx.doi.org/10.1515/ercl-2018-1002.
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AbstractThe recent reforms of the French Civil Code have also regulated remedies for breach of contract, by introducing price reduction as a general instrument that can be applied to all contractual types. Firstly, the article analyses the harmonisation projects and regulations on which the French reform claims to be based, for the purposes of verifying whether the French legal framework only reproduces solutions already tested or whether it is innovative with respect to such models. This study highlights the introduction of innovative solutions through which price reduction is achieved. Whilst price reduction is usually ordered by the court, following a claim by the non-breaching creditor, under the French model the price reduction remedy does not require the court’s intervention as it can be performed directly by the creditor: this is an automatic and not a court-based remedy. Secondly, the article also analyses whether the same outcome that is obtained through the automatic price reduction can also be achieved through the use of other legal instruments. This article focuses on a comparative law analysis with the common law system with respect to compensation for damages under English law. With respect to the civil law models, the article examines the Italian model in which parties generally resort to actions for compensation and the exception of partial breach.
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Adams, John N., Deryck Beyleveld, and Roger Brownsword. "Privity of Contract - the Benefits and the Burdens of Law Reform." Modern Law Review 60, no. 2 (March 1997): 238–64. http://dx.doi.org/10.1111/1468-2230.00077.
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Stojanović, Nataša. "Reform of inheritance law in the Swiss confederation (reform phase I)." Zbornik radova Pravnog fakulteta Nis 62, no. 99 (2023): 15–31. http://dx.doi.org/10.5937/zrpfn0-46630.
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In this paper, the author sheds light on the 2020 reform of the Swiss inheritance law, which was instituted by amending the succession law provisions of the Civil Code of the Swis Confederation (2020). The new provisions have been in force since January 2023. The research on this subject matter is aimed at determining the scope and the quality of the revised Swiss legislation on intestate succession. To this effect, the author focuses on a number of new provisions related to statutory heirs: reduction of the children's protected share (forced heir ship portion of the decedent's descendants); abolition of the parents' protected share (forced portion of the decedent's parents); loss of the forced portion for the surviving spouse or same-sex partner in a registered civil partnership in case the divorce proceeding or the proceeding for dissolving a registered civil partnership has been initiated but a spouse or a registered civil partner dies before the proceeding is terminated; a qualitatively different concept of contractual freedom embodied in inheritance contracts; the impact of the "three-pillar system" of the Swiss pension and disability insurance on the exercise and protection of the right to forced portion; changes and nomotechnical improvements of provisions concerning the order of gratuitous donations from which the forced heirs' portion is settled. For the purposes of this paper, the author applied the dogmatic legal science research method, the normative legal research method, and the legal history research method. In the author's opinion, the new provisions on intestate succession are largely aimed at ensuring a greater freedom of testamentary disposition of gratuitous donations, both inter vivos and mortis causa. However, the new legal solutions seem to be insufficiently aligned with the social circumstances in contemporary Switzerland because the right to statutory inheritance is not recognised to an extramarital partner, whereas it is granted to a spouse or a same-sex partner from a registered civil partnership, even though extramarital partnerships are equally present in real life as marriage and registered same-sex partnerships.
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Nakaide, Satoshi. "Reform of Insurance Contract Law in UK and its Implications to the Japanese Law." Hokengakuzasshi (JOURNAL of INSURANCE SCIENCE) 2017, no. 637 (2017): 637_31–637_51. http://dx.doi.org/10.5609/jsis.2017.637_31.
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Doris, Martin. "Promising options, dead ends and the reform of Australian contract law." Legal Studies 34, no. 1 (March 2014): 24–46. http://dx.doi.org/10.1111/lest.12004.
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The Australian government has launched a consultation on the possible reform of domestic contract law. The Attorney-General's Department is currently seeking stakeholder views on the need to reduce inconsistencies and/or remove outdated rules, and on ways to improve legal certainty generally both for businesses and consumers alike. Its current discussion paper, though open-ended as regards next steps, appears to be talking the language of simplification and coherence that has resonated particularly in the EU for well over a decade. Yet, the ongoing, high-profile project aimed at delivering a more coherent and uniform contract law for Europe's internal market has to date proved controversial, and recent concrete initiatives have generated much adverse commentary, particularly from law-and-economics scholars. The European experience therefore offers a series of signposts but equally a number of hazard markers for the Attorney-General's Department. Indeed, many of the broad assumptions underlying developments in the EU rest on weak foundations. The European institutions have further followed a number of dead ends in the pursuit of ‘coherence’ that ought reasonably to be avoided. This paper explores potential risks underlying the current Australian reform process and offers a number of suggestions on a possible way forward.
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Büyüksagis, Erdem. "Turkish Contract Law Reform: Standard Terms, Unforeseen Circumstances, and Judicial Intervention." European Business Organization Law Review 17, no. 3 (September 2016): 423–49. http://dx.doi.org/10.1007/s40804-016-0045-z.
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Brodie, Douglas. "The employment contract and unfair contracts legislation." Legal Studies 27, no. 1 (March 2007): 95–109. http://dx.doi.org/10.1111/j.1748-121x.2006.00040.x.
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In 2005, the Law Commissions published a report reviewing unfair contracts legislation in the UK. Where the contract of employment was concerned, the Commissions were of the view that, in short, the status quo should remain. This paper seeks to appraise that position and considers whether an opportunity to bring forward beneficial reforms has been missed. The paper takes cognisance of the legislative scheme in New South Wales, which contains extensive powers where unfair contracts are concerned. It is suggested that, in the UK, the two key issues which need to be addressed are contracting-out and terms which may be substantively unfair.
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Senyuta, Iryna. "Modern Civilistic Instruments of Medical Reform: Issues of Law Implementation and Law Enforcement." Journal of the National Academy of Legal Sciences of Ukraine 27, no. 3 (September 29, 2020): 109–27. http://dx.doi.org/10.37635/jnalsu.27(3).2020.109-127.
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The study of the latest civilistic instruments of medical reform is conditioned by its purpose, which is to clarify the legal nature of the declaration of choice of primary care physician and the contract for medical care under the programme of medical guarantees, highlighting the specific features of the right to choose a doctor, conditioned by the outlined tolls, as well as identifying gaps and controversies in the legislation of Ukraine and judicial practice in law enforcement in this area. The main method of the study was the method of studying judicial practice, which allowed to assess the effectiveness of law enforcement, the level of perception of legislation in this area in practice, as well as to determine the necessity of improving the legal regulation. The study highlights the problematic aspects related to the exercise of the right to free choice of a doctor, in particular due to legislative changes regarding medical reform. The legal essence of the declaration on the choice of a primary care physician has been covered. The study clarifies that it is not a transaction, but a document certifying the exercise of the right to freely choose a primary care physician. The contract on medical care of the population under the programme of medical guarantees is analysed and its civil law matter is established. It is determined that it is a contract for the provision of services under the public procurement, concluded for the benefit of third parties. The reimbursement agreement was also investigated, which is also an agreement in favour of third parties – patients in terms of full or partial payment for their medicines. The judicial practice is analysed, which gives grounds to assert the problems with enforcement and administration of law, and proposals are made to improve the current legislation, including in the aspect of the subject of the contract under the programme of medical guarantees. The "legitimate expectation" that arises in a person in the presence of regulatory guarantees is under conventional protection, as illustrated by the European Court of Human Rights in its decisions, and to change the paradigm of implementation requires a transformation of legislation. The practical significance of this study is to intensify scientific intelligence in this direction, to improve the legal regulation of these innovative legal constructions, to optimise the enforcement and administration of law in the outlined civilistic plane
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Anifalaje, Kehinde. "Statutory Reform of the Doctrine of Uberrimae Fidei in Insurance Law: A Comparative Review." Journal of African Law 63, no. 2 (June 2019): 251–79. http://dx.doi.org/10.1017/s0021855319000160.
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AbstractThe common law doctrine of uberrimae fidei is pivotal to all contracts of insurance. It imposes a duty on the parties to act towards each other with utmost good faith by disclosing all material facts and not misrepresenting any fact, either before the contract is formed or while the contract subsists. This article examines the doctrine and its statutory reforms in Nigeria and the United Kingdom. It argues that, before the statutory interventions, the iniquitous doctrine was a potent weapon, most often used by insurers to defeat just and legitimate claims by an insured. Although the legislation has brought some measure of relief to the insured in these jurisdictions, the article concludes that there are still some grey areas in the Nigerian law that need to be addressed to further the cause of justice between the contracting parties.
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Clapperton, Dale. "Electronic Contracts: A Law Unto Themselves?" Media International Australia 130, no. 1 (February 2009): 102–11. http://dx.doi.org/10.1177/1329878x0913000112.
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Electronic contracts, however described, are everywhere in the digital environment. In computer games, they govern the relationship not only between the gamer and the game publisher, but the gamer and the game. Yet, despite their ubiquity, their substantive content receives relatively little attention. Consumers assent without reading them, and publishers and their lawyers adopt oppressive contracts, seemingly without thought for the rights of their customers. Whether a market failure or a rational response, electronic contracting seems to be stuck in a vicious cycle of apathy and indifference. This paper explores these issues, as well as examples of games-related electronic contracts, common terms in such contracts, and how those contracts might be affected areas of law including contract, copyright, competition and consumer protection. Might these areas of law provide a stimulus for ‘clickwrap reform’?
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Eldridge, John. "Contract Codification: Cautionary Lessons from Australia." Edinburgh Law Review 23, no. 2 (May 2019): 204–29. http://dx.doi.org/10.3366/elr.2019.0549.
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In March 2012, the Australian Commonwealth Attorney-General's Department published a Discussion Paper which explored the prospect of codifying or otherwise reforming the Australian law of contract. There is little reason to think that the codification of the Australian law of contract is likely to be embarked upon in the foreseeable future. At the same time, recent years have seen a resurgence of interest in codification in Britain. This paper examines the experience of contract codification efforts in Australia with a view to identifying a number of cautionary lessons. It focuses on two challenges inherent in contract codification which have been given too little attention by the proponents of reform in Australia.
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MacQueen, Hector L. "Remedies for Breach of Contract: The Future Development of Scots Law in its European and International Context." Edinburgh Law Review 1, no. 2 (January 1997): 200–226. http://dx.doi.org/10.3366/elr.1997.1.2.200.
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This paper,first presented on 21 October 1995 at ajoint seminar ofthe Scottish Law Commission and the Faculty of Law, University of Edinburgh, on the subject of breach of contract, considers the future development of the law in this area, first by considering its history and current state in comparative terms and drawing the conclusion that it is characterised by a mixture of Civilian and Common Law elements; second, by comparing Scots law with the provisions on breach contained in recently published proposals for a harmonised law of contract (the UNIDROIT Principles of International Commercial Contracts, the Principles of European Contract Law prepared by the Lando Commission, and the draft “code”for the United Kingdom prepared on behalf of the English Law Commission by Harvey McGregor in the late 1960s) and in international conventions on the sale of goods. Although Scots law emerges reasonably wellfrom this exercise, there are a number of points to be taken on board in any future reform, as well as some insights into important underlying principles.
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GILBERT, NEIL. "US Welfare Reform: Rewriting the Social Contract." Journal of Social Policy 38, no. 3 (July 2009): 383–99. http://dx.doi.org/10.1017/s0047279409003043.
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AbstractThis paper analyses recent developments in US welfare policy and their implications for future reforms. The analysis begins by examining how the enactment of the Temporary Assistance for Needy Families (TANF) programme in 1996 changed the essential character of public assistance and the major social forces that accounted for this fundamental shift in US welfare policy. It then shows how the most recent welfare reforms under the Deficit Reduction Act of 2005 broadened and intensified the TANF requirements, leaving four avenues along which issues of conditionality and entitlement are likely to be played out in future welfare reforms. Finally, the discussion highlights how a new social contract is being forged through progressive and conservative proposals, which shift the focus of public assistance from the right to financial support to the right to work and earn a living wage.
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Pizzoferrato, Alberto. "The Economic Crisis and Labour Law Reform in Italy." International Journal of Comparative Labour Law and Industrial Relations 31, Issue 2 (June 1, 2015): 187–205. http://dx.doi.org/10.54648/ijcl2015011.
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This article analyses the labour law reforms enacted in Italy in recent years, paying special attention to their ambiguous relations with the economic crisis and EU requirements. Between 2007 and 2013, Italy's GDP contracted by 8.7% and average per capita income fell by around 10 percentage points: from this starting point, significant improvement in terms of the economy and employment is likely to be hard to achieve. This is a matter of concern for the European institutions, giving rise to the need for structural reform of the labour market. The Italian government has been forced to focus on employment protection measures in their legislative action, since extensive action in terms of public funding in favour of employment and income would be untenable due to insufficient budgetary resources and the need to avoid any further expansion of public spending. In this connection, this article focuses on the approval in February 2015 by the centre-left Renzi Government of the decree aimed at further reform of the labour market introducing a new form of open-ended contract with a growing level of economic protection against unfair dismissal, and concludes by examining the implications for job security.
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Del Punta, Riccardo. "Labour Market Reforms and Beyond: The Italian Case." International Journal of Comparative Labour Law and Industrial Relations 35, Issue 3 (September 1, 2019): 355–78. http://dx.doi.org/10.54648/ijcl2019017.
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The author examines the process of the labour market reform in Italy. The main provisions of the subsequent waves of reform are highlighted, with special emphasis on the reform of dismissal regulations, the role of the standard employment contract in response to labour market dualism, the measures aimed at enhancing functional flexibility and productivity, the growing importance of decentralized collective bargaining and the persistent shortcomings of security measures. The intrinsic limits of these reforms, deriving from their mainly neoliberal inspiration, are then examined. At the same time, it is argued that they have offered a chance for modernization of the labour law approach, which needs to be further developed in a constructive perspective going beyond a mere reaction to neoliberal challenges.
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Andrews, N. H. "Reform of the Privity Rule in English Contract Law: The Law Commission's Report No.242." Cambridge Law Journal 56, no. 1 (March 1997): 25–28. http://dx.doi.org/10.1017/s0008197300017621.
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Sedano Varo, Elena. "The Bumpy Reform of EU Interest Rates and the Rule of Law." European Business Law Review 33, Issue 2 (April 1, 2022): 267–96. http://dx.doi.org/10.54648/eulr2022012.
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This contribution estimates the legal risk of contract discontinuity posed by the transition to new interest rates benchmarks through a comparative study of four national doctrines of force majeure and contract frustration. A pluralistic landscape emerges. Whereas discharge is likely in the United Kingdom, the chances of discontinuity become rather remote in Italy. A middle way solution is found in France or Spain. The lack of harmonization stems from the separation between EU governance, which is regulatory in nature and whose aim is to remove barriers to trade within the internal market, and the traditional legal systems of Member States. Such dichotomy results in an unjustified distinction among market players depending on the jurisdiction they operate on, amounting to a contravention of the principle of generality, a key pillar of the rule of law. This article contends that the EU legislator should pass a legislative provision to ensure a smooth and just transition to new interest rates benchmarks. Force majeure, contract frustration, interest rates, €STR, comparative private laws, internal market, rule of law, principle of generality, law and finance, free markets
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Ananev, Andrey G. "Conceptual features of a public contract in modern civil law." Russian Journal of Legal Studies (Moscow) 7, no. 1 (August 7, 2020): 22–33. http://dx.doi.org/10.17816/rjls33444.
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The civil legislation reform affects the provisions on public contracts. This article deals with the issues surrounding public contract qualification under the conditions of modern regulation. A characteristic feature of modern regulation and theoretical provisions of civil law is the lack of unified approaches to defining the public contract concept, its essence, and accompanying conditions. In practice, there are various situations wherein the legislator does not give clear instructions on certain aspects of contracts that have a public character. This determines the theoretical and practical relevance of examining this area. The article analyzes the main defining features of the designated contractual structure and examines the features of expression of public-legal principles in legal regulation in these contractual relations. The methodological basis of the research is the analysis of normative material, civil law theory and certain aspects of law enforcement on public contracts norms. The article highlights the legal and conceptual aspects of public contract institution in the context of modern legal regulation. The task of further research on this issue is not so much to find one correct definition of this agreement for the legislator, but rather to fix the individualizing features in the law, by integrating them either into the conceptual apparatus or by directly fixing them in the normative act text. The author attempts to systematize the relevant features and to identify the distinct principles for differentiating a public contract with the related contractual structures. The article also presents clear criteria for differentiation and the hierarchy of the application of certain rules to relations arising from a public contract. This paper concludes by highlighting the need to proceed not only from the definition of law, but also from specific features of a public contract, when identifying the designated contractual structure.
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Velichko, Veronika, and Ekaterina Terdi. "Contractual Preemptive Rights: Russian Doctrine and European Tradition in the Context of Russian Civil Code Reform." Russian Law Journal 7, no. 1 (March 22, 2019): 119–37. http://dx.doi.org/10.17589/2309-8678-2019-7-1-119-137.
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Problems associated with the possibility of the stipulation of preemptive rights by contract and their effective protection are researched in this article. Based on the examples of German, French and Swiss civil legislation, we establish that contractual preemption is widely used in Europe as a convenient instrument to formalize the interests of the participants in a civil turnover. In this connection, in Russian civil doctrine, the widespread idea that preemptive rights may be stipulated only by law, not by contract, should be revised.We state that the essence of the institution of preemptive rights predetermines its remedy. Historically Russian civil law provides specific remedy in case of breach of the most spread statutory preemptive rights. It is a claim by the entitled person (holder of preemption) against a third party (counterparty of obliged person whose contract breached the preemption) to transfer from the third party to the entitled person the rights and duties that arose under the contract between the third party and the obliged person. This remedy is more efficient for the entitled person than damages. In accordance with the principle of good faith, it may be used only in cases in which the third party knew or should have known about preemption. However, this requirement is complied in relation to protection of statutory preemptions only. As far as both contractual preemptive rights and contracts stipulated the latter are not recognized and not registered in Russia, such suit will be dismissed by court. The lack of effective protection of contractual preemptions impedes the creation of full-fledge system of preemptive rights in Russian civil law.In order to create effective mechanism of protection of contractual preemptive rights by giving the participants of a civil turnover the opportunity to ascertain if there is a contractual preemptions, we suggest that Russian civil legislation should be added by two registration systems. The first is a system for the registration of contracts that stipulate preemptions over immovable property (or registration of the preemptions itself which is better) provided by the Federal Service for State Registration, Cadastre and Cartography of the Russian Federation. The second is a system for the registration of notifications on the conclusion of contracts that stipulate contractual preemptive rights over movable things that could be established by an expansion of the existing system for the e-registration of notifications оf pledges of movable things under the jurisdiction of the Federal Chamber of Notaries of the Russian Federation.