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1
Dahham, Mohammed Waheed. "أركان العقد الإداري وشروط صحته دراسة مقارنة". Twejer 3, n.º 3 (diciembre de 2020): 707–38. http://dx.doi.org/10.31918/twejer.2033.19.
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The administrative contract is the tool used by the administration to maintain the continuity of the public facility and its steady progress in order to meet the needs of citizens, in way would achieve the public interest. The administrative contract consists of procedures paving the way for its conclusion, represented by the administrative decisions issued by this department with the public authority it has in accordance with the laws and regulations. These decisions are part of and component of the administrative contract. Therefore, the elements of the administrative contract are; that the public authority is one of its parties, the contract relates to a public facility service, and the contract should be subject to public law. However, the conditions of validity of the contract are; the administration shall abide by the laws and regulations in selecting the contractor, the administrative contract includes contractual and regulatory provisions and, and the public person has a generic feature throughout the life of an administrative contract. Key words; administrative law, administrative decision, elements of administrative law, conditions of validity of administrative contract, legal system of administrative law, conclusion of the administrative contract
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CRETU, Georgeta y Camelia SPASICI. "THE LEGAL NATURE OF ”PRE-CONTRACTUL OBLIGATIONS”:CONDITIONS OF VALIDITY IN THE CONSUMER CONTRACT". Jurnalul de Studii Juridice 15, n.º 3-4 (20 de diciembre de 2020): 30–42. http://dx.doi.org/10.18662/jls/15.3-4/73.
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This paper aims to briefly analyze the legal nature of “the pre-contractual obligations” regarding the information, counselling and safety elements that are specific to the consumer legislation. From the perspective of consumerist regulations, “the pre-contractual obligations” occur during the formation of the contract stage although in the civil contract the obligations of the parties designate the effects of the contract. In these circumstances, the following question arises: are “the pre-contractual obligations” laid down in the Consumer Code conditions of validity or effects (obligations) of the contract? This dispute is a part of the harmonization process of the institutions that are specific to the legislation of consumption with those of the contract as laid down in the Civil Code (the ordinary law in the matter). The paper is structured in four parts: “Introduction”, “The Stages of the Civil Contract: the Conditions of Validity, Conclusion, Effects and Termination”, “The Pre-Contractual Obligations as Laid Down in the Consumer Code” and “The Legal Character of the Pre-Contractual Obligations.” This legal undertaking ends with conclusions.
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Shojaei, Abdorreza. "Validity of Open Contract in International Trade Law". Journal of Politics and Law 10, n.º 2 (28 de febrero de 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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Bawono, Bambang Tri. "The Validity of Electronic Contracts in Software Applications". Jurnal Akta 7, n.º 1 (13 de junio de 2020): 119. http://dx.doi.org/10.30659/akta.v7i1.10556.
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The development of information and communication technology resulted in the form of agreements turned into electrical forms, which are commonly referred to as electronic contracts. Discussion on electronic contracts refers to Article 46 paragraph (2) President Regulation No. 71 of 2019 on the Implementation of Electronic Systems and Transactions must also fulfill the legal conditions of the agreement. Based on this case, it is necessary to do a deeper study of the electronic contract, because it certainly has the potential to not fulfill the legal conditions of the agreement.Method research used in this research is library research. While the approach in this study uses a normative juridical approach. The source of legal material in this study uses primary and secondary legal materials.The results of this study state that the validity of electronic contracts in software applications can be canceled and null and void. Electronic contracts in software applications can be canceled because they do not meet the subjective requirements in terms of skills. This is because those who make electronic contracts through click warp have the potential to be immature, because they are under 18 years of age. Especially in the context of the use of smartphones or other devices related to the use of software applications, there are no clear rules regarding the minimum limits of users of such smartphones or devices. While the electronic contract has the potential to be null and void because the electronic contract is potential to conflict with the laws and regulations of Article 47 paragraph (1) President Regulation No. 71 of 2019 on the Implementation of Electronic Systems and Transactions. Electronic contracts in software applications are generally made using foreign languages, while Article 47 paragraph (1) requires that electronic contracts faced by Indonesian citizens must be made in Indonesian.Keywords: Electronic Contracts; Click Warp Agreement; Terms of Legitimate Agreement.
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Natig Mammadova, Nazrin. "LEGAL ANALYSIS OF VALIDITY OF A SURETYSHIP AGREEMENT". SCIENTIFIC WORK 65, n.º 04 (23 de abril de 2021): 415–19. http://dx.doi.org/10.36719/2663-4619/65/415-419.
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In order the contracts to be binding and engender legal consequences, firstly, they must be concluded in compliance with formal requirements set forth in the legislation. A suretyship agreement is also a contractual obligation. Taking into account its unilateral and gratuitous nature, the suretyship contract can result with onerous circumstances for the surety. That is why, validity conditions of the suretyship agreement pursue the aim to preserve legitimate interests and economic situation of the surety. The provision of them make the surety comprehend the seriousness of his engagement. This article illustrates the analysis of the essential terms of the suretyship agreement to be valid in comparison with foreign legal systems. Key words: suretyship agreement, a security device, conditions of validity, existence of a main obligation, written form, spouse’s consent.
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Cotutiu, Aurelia. "The Essential Conditions for the Validity of the Contract of Carriage". Journal of Legal Studies 16, n.º 29 (1 de junio de 2015): 48–55. http://dx.doi.org/10.1515/jles-2015-0005.
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Abstract At the conclusion of the transport contract for goods or people, the carrier shall make available to the consignor or the passenger his exclusive and special service to travel in space with a suitable means of transport, different from other previous or subsequent transport services. Thus, the transport activity is entirely distinct and independent from the civil or economic transactions concerning the goods transported, which run between the consignor and the recipient, or, taking another example, from the insurance agreement during the transport of goods or persons, imposed by law. At the same time, transport is a service of public interest, which obliges the transport operator to publish permanently his transport offer with all the information needed to access it. This is the source of the organized and uniform periodicity of the carrying trade, performed as a constant preoccupation in order to obtain profit. But, because of the multitude and diversity of displacement interests of the transport beneficiaries, sometimes the transport operator is forced to arrange that the transport of goods or people contracting should be carried out through another carrier. Therefore, whenever the transporter is substituted by another transport operator for total or partial execution of its duty, the latter will be considered part of the transport contract, taking over all obligations of the contracting operator directly with the beneficiary of his service.
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Oleksandr, Polivodskyі. "Land lease contract. Dynamic of invalidity". Yearly journal of scientific articles “Pravova derzhava”, n.º 31 (2020): 249–60. http://dx.doi.org/10.33663/0869-2491-2020-31-249-260.
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The article is devoted to the issues of invalidity of land lease contracts. The author points out that the problem is important and significant both for the theory and practice. Cases on land lease contract validity contain significant part of disputes in Ukrainian business and civil courts, that demonstrates topicality of the problem and demand to the ideas, conception and solution. Author proposes considers the problem of invalidity in dynamic, in accordance to the sequences of legal facts and conditions that are related to invalidity of contracts, proposes his own phases of invalidity (preceding or preparation; committing contract; executing contract; contestation of validity of the contract; legal consideration and application of effects of invalidity) as well as corresponding stages of invalidity of the contracts. In this view, the article contains analysis of legislation and it’s specific in aspect that is related to the issues of invalidity of land lease contract. The author made analysis of literature proposes changes to legislation on invalidity of land lease contract. The author points out that form of the land lease contract is not conditioned by registration of rights and contract itself, meanwhile, parties agreed another conditions/ Among others, the author proposes consider land lease contract as real contract (not consensual), that committed at the moment of signing, proposes application of the principle of legitimate expectations to relations that are related to invalidity agreement and proposes changes to legislation.
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TULAI, Dana-Lucia. "THE LEGAL CAPACITY OF THE PARTIES, AS A VALIDITY CONDITION FOR THE MANDATE CONTRACT". ANNALS OF THE UNIVERSITY OF ORADEA. ECONOMIC SCIENCES 32, n.º 2 (diciembre de 2023): 99–110. http://dx.doi.org/10.47535/1991auoes32(2)009.
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This article aims to bring attention to the mandate contract, under the aspect of its validity conditions, more precisely the legal capacity required of the parties to be able to conclude such an agreement. First of all, the mandate contract must meet the general requirements for the validity of contracts, stipulated by art. 1179 para. (1) Civil Code. Regarding the form of the power of attorney, art. 1301 Civil Code specifies the fact that it will be effective only if it is given in compliance with the forms required by law ad validitatem for the conclusion of the contract that the representative is to make on behalf of the represented. In addition to these general conditions of contract validity, the conventional representation by mandate, in order to be effective, also requires the fulfillment of certain specific conditions, which essentially relate to the manifestation of the legal will of the participants in this tripartite operation, namely: the will of the representative to represent; the will of the represented to be represented; the will of the representative to perform legal acts through representation; the externalized will of the representative to represent and perform legal acts with the contracting third party and the externalized will of the third party with the value of accepting the contract with the representative (contemplatio domini).Therefore, the requirements for the valid and effective conclusion of the mandate contract must be assessed at the time of the conclusion of the convention, but in order for it to reach its final goal, consisting in the performance by the agent of the business entrusted by the principal, the requirements for the valid and effective conclusion of the targeted act, at the time of its completion, must also be met. Out of all these conditions claimed for the valid conclusion of the mandate, we have chosen to focus our attention in this study on the capacity required of the parties to contract, necessary so that conventional representation, as a tripartite operation, which involves a source act (the mandate agreement) and one/more targeted acts (the act/s concluded by the agent with third parties in the name and on behalf of the principal) will be validly formed.
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Ali bin Hussein Aidi, Ali bin Hussein Aidi. "Guarantees in Ṣukūk between Sharīʿah Objectives and Contract Conditions". journal of king Abdulaziz University Islamic Economics 32, n.º 1 (11 de enero de 2019): 127–44. http://dx.doi.org/10.4197/islec.32-1.10.
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Guarantees offered for ṣukūk in Islamic finance have become a problematic issue of discussion. From the authors’ perspective, the issue should be approached from two aspects: one considering the required conditions for the validity of contracts and the other considering the Sharīʿah objectives. This research aims to emphasize the necessity of considering the objectives of contracts from a Sharīʿah perspective before judging their validity; particularly with regard to guaranteed ṣukūk. To achieve this goal, the research employs two methods: one descriptive and the other analytical as well as critical. The research has concluded that it is not permissible to stipulate holding the ṣukūk issuer liable neither for the ṣukūk nominal values nor for a predetermined amount of profit; that the idea of holding the ṣukūk issuer responsible based on considering him a joint muḍārib is not founded on solid evidence; that it is not permissible for the muḍārib, partner, or wakīl to be committed to give loan to ṣukūk holders when the actual return for ṣukūk is less than expected; that, in some of their applications, ṣukūk based on lease ending with ownership involve the impermissible ʿīnah transaction; that guarantees in ṣukūk contradict Sharīʿah rules when the issuer undertakes to purchase the ṣukūk assets at their nominal values at the end of the muḍārabah, mushārakah, or wakālah; and that the criteria to assess Islamic ṣukūk on the basis of Sharīʿah objectives can be divided into: criteria related to the motive, criteria related to the contract structure, and criteria for the outcomes of implementing the product.
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Hilal, Mustafa Abdullah y Zaid Jamel Musa AL-Najar. "Comparison Study between Iraqi Conditions of Contract and FIDIC Conditions- The Red Book". Journal of Engineering 18, n.º 03 (21 de julio de 2023): 40–56. http://dx.doi.org/10.31026/j.eng.2012.03.10.
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Reconstruction in Iraq requires coherent legitimate frameworks that are able to detail obligations, rights and responsibilities of the parties participating in reconstruction projects, regardless their type or delivery system.Conditions of Contract can be considered an important component of these frameworks. This paper investigates flexibility and appropriateness of the application of Iraqi conditions of contract in reconstruction projects. These conditions were compared to FIDIC Conditions. The objective wasn't comparing individual clauses, but rather exploring the principles and philosophy laying behind each conditions, and to what extent each conditions care about realizing equity between main contract parties. Validity of application on various project delivery systems was also investigated. The structure of Iraqi and FIDIC conditions were compared to determine how the efficiency of use will be effected by the layout, presentation, organization, and detailing of the contents of each conditions. Moreover, some clauses related to the project parties were compared in order to further illustrate the disparity in efficiency of each conditions. The paper concludes that Iraqi conditions of contract in its current state was, and will continue, hindering the reconstruction efforts in Iraq, as well as being a cause of money waste and bad quality of project outputs.
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Kocowski, Tadeusz. "Brak decyzji uprawniającej a ważność umowy w działalności gospodarczej obszar zamówień publicznych". Przegląd Prawa i Administracji 114 (10 de agosto de 2018): 533–46. http://dx.doi.org/10.19195/0137-1134.114.34.
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NON-POSSESSION OF THE REQUIRED DECISION AND VALIDITY OF THE CONTRACT IN ECONOMIC ACTIVITY SPHERE OF PUBLIC PROCUREMENTIn the case of public procurement, the non-possession of the required decision by the contractor by the law and the terms of the proceedings results in the exclusion of the contractor from the award procedure and rejection of its off er. In this case, the public contract is not concluded. Public procurement are contracts concluded in conditions where it is difficult to talk about the implementation of the principle of freedom of contract. It remains to be determined what effect would be caused by the lack, on the part of the contractor, of the empowerment decisions required by law, if the contract were concluded under conditions of freedom of contract.
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Nicolae, Ioana. "CONSIDERATIONS REGARDING THE SPECIFICS OF THE TRANSACTION CONTRACT". Agora International Journal of Juridical Sciences 11, n.º 2 (20 de enero de 2018): 63–67. http://dx.doi.org/10.15837/aijjs.v11i2.3162.
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Transaction contract was and continues to be widely applied in legal life. The present study discusses the matters which particularize this contract in legal life, by analyzing its definition, its legal characters, by emphasizing the specifics of the validity conditions and the effects it generates.
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Abdullah Mohammed Ali Al. Mekhlafi, Abdullah Mohammed Ali Al Mekhlafi. "Controls of the conditions associated with the contract in Bahraini civil law and Islamic jurisprudence: comparative analytical study: ضوابط الشروط المقترنة بالعقود في القانون المدني البحريني والفقه الإسلامي: دراسة تحليلية مقارنة". مجلة العلوم الإقتصادية و الإدارية و القانونية 5, n.º 15 (29 de agosto de 2021): 125–04. http://dx.doi.org/10.26389/ajsrp.k301220.
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This study deals with the controls of the conditions associated with the contract in Bahraini civil law and Islamic jurisprudence. The knowledge of conditions carries great importance in the financial transactions that take place between individuals in society, and in particular the contracts that are concluded between the contracting parties and the terms that contain these contracts and which are relied upon in The protection and guarantee of contracting funds, as the various contracts and actions through which individuals practice different transactions include many conditions, and on these conditions the validity and invalidity of contracts depend, and given the impact of the conditions on contracts, civil laws have interfered and legal controls have been set for the conditions that are set in the different contracts to protect it from nullity. This research aims mainly to define the legal and controls for the conditions associated with contracts in Bahraini civil law and Islamic jurisprudence, and to show the impact of conditions on the validity of contracts. This study has reached a number of results, the most important of which is that the principle in the conditions is permissibility and not prohibition, and it has restricted freedom in terms of contracts associated with contracts by placing exceptions on the original in order to achieve the public interest and the private interest, and adopting this principle is a desire of the Bahraini legislator not to restrict and limit the contracting parties. The permissibility of the conditions associated with contracts in specific conditions, and the study also showed that adherence to the legal controls related to the conditions protect contracts and actions from nullity, and the contracting parties avoid disputes and material losses that may befall them as a result of contract nullity in the event of Non-compliance with legal and legitimate Controls.
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Tymoshenko, D. V. Tymoshenko. "Peculiarities of concluding an agreement on the transfer of property rights to a software". Bulletin of Kharkiv National University of Internal Affairs 102, n.º 3 (Part 1) (29 de septiembre de 2023): 46–60. http://dx.doi.org/10.32631/v.2023.3.04.
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The article reveals the peculiarities of concluding an agreement on the transfer of property rights to a software, the analysis of current legislation in the field of disposal of rights to the results of intellectual activity, as well as the formulation of conclusions and proposals aimed at improving civil legislation in the specified field. It is noted that in recent years a lot of research has been carried out on contracts in the field of intellectual property law. However, many issues remain debatable and unsettled in the legislation of Ukraine.
The essence and content of the contract regarding the transfer (assignment) of the exclusive (property) right to the software has been analyzed and determined as a set of essential conditions duly agreed upon by the parties to the contract. The essential conditions of the contract regarding the transfer (assignment) of the exclusive (property) right to a software in accordance with the Civil Code of Ukraine and the special copyright legislation of Ukraine have been formulated. It is noted that the essential conditions of the contract regarding the transfer (assignment) of the exclusive (property) right to the software are 1) the subject of the contract; 2) the amount of property rights to the software transferred under the contract; 3) characteristic features of a software that allow it to be identified as such; 4) the form of the contract; 5) the amount and method of payment (remuneration) under the contract, or an indication of the gratuitous nature of the contract and 6) other essential conditions defined by the legislation of Ukraine.
It is established that the subject of the contract on the transfer (assignment) of the exclusive (property) right to the software is actions aimed at the transfer (assignment) of the exclusive (property) rights to the software in whole or in part, which must be specified in the contract. In fact, under this contract, property (exclusive) rights to the software are transferred from the subject of copyright to the acquirer. The difference between the subject and the object of the contract regarding the transfer (assignment) of the exclusive (property) right to the software has been determined. The characteristic features of a software that allow it to be identified as such have been separately defined. The forms of objective expression of the software have been analyzed. Such a feature of the contract on the transfer of property rights to a software as the term has also been indicated. This is because property copyrights have an expiry date. Therefore, when concluding this contract, the validity period of property rights must be taken into account. If the parties have not agreed on the term of validity of the contract, then the term of validity of the contract cannot exceed the maximum term of validity of copyrights for a software.
It is noted that the moment of transfer of property rights is difficult to clearly define and is usually associated with a certain legal fact. It is suggested to consider two factors. First, when a software is registered, the validity of the contract must be linked to the date of its registration, i.e. the property right to the software passes to the acquirer at the time of state registration of the contract. However, when the program is not registered, the exclusive right to it passes from the right holder to the assignee at the time of concluding the contract, unless otherwise established by the contract or law.
It is argued that it is necessary to further amend the legislation in the field of intellectual property in order to unify the terminology used in the regulation of relations related to the transfer of property rights to an object of intellectual property.
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Nusi, Novriyanto. "Electronic Legality Of Employment Contracts On Minor Children". Estudiante Law Journal 2, n.º 2 (14 de junio de 2020): 293–308. http://dx.doi.org/10.33756/eslaj.v2i2.13195.
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Based on the results of the study, the answers to the existing problems were obtained, that the validity of the employment contract between Youtube and the content creator who was still underage in the statutory provisions contained four conditions for the validity of an agreement, one of which involved the ability to make agreements. Like the real world, there are several requirements from the electronic service provider that must be approved by social media users, especially a content creator. These requirements are commonly known as terms of service. One of the things that are usually regulated in the terms of service is the age of the user so that the legal relationship that exists between the child and the agency or institution is based on the existence of a working relationship between the two parties, in which the child can be represented by the parent or guardian based on a work agreement because children are still unable to carry out legal actions independently, this is because children are categorized as people who are not yet capable of carrying out legal actions As for government regulations regarding employment contracts between YouTube and content creators who are still underage, it can be seen in several laws and regulations in Indonesia which regulate the procedures for engagements or work contracts such as the Civil Code, the ITE Law and in the Manpower Act. For example, in the Civil Code, one of the things that can be used as a reference in the validity of a contract is age, namely 21 years or already married, so based on the problem formulation, the researcher gives an idea in the form of underage content creators who are required to be accompanied or represented by parents or guardians in entering into agreements or contracts with the youtube platform service provider so that it cannot damage the validity of the contract or agreement that has been made by the parties.Keywords: Validity of Employment Contract, Content Creator Children.
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Dawood, Hayel Abdul Hafeez. "The Partnership of Beneficial Owner (Rabb al-Mal) with Managing Trustee (Mudarib) in Business". Journal of Social Sciences (COES&RJ-JSS) 9, n.º 4 (1 de octubre de 2020): 1397–430. http://dx.doi.org/10.25255/jss.2020.9.4.1397.1430.
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Passive partnership contract (mudarabah) occupies a prominent place in the jurisprudence of Islamic financial transactions, and Islamic jurisprudence has surrounded it with provisions, controls and conditions that guarantee its performance of its role. If some of these terms and conditions are violated, this may lead to invalidation of the mudarabah or its being corrupted. Among the conditions stipulated by jurists for the validity of Passive partnership contract is that the beneficial owner not to interfere in performance of its contract except in a manner that guarantees adherence to the controls and restrictions agreed upon by the owner of the money with the managing trustee, including that the owner of the money delivers the capital to the mudarib. This study aims to explain the rule of stipulating that the money owner be involved in performing the work, himself or his representative, as well as the rule of his participation in the work without stipulating that in the contract. The study concluded that it is permissible for the owner of the money or his representative to work with the mudarib, and that this does not affect the validity of the contract unless it leads to restricting the work and preventing the mudarib from disposing of Passive partnership contract.
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Almajali, Mohmmad Husien, Mohammad Basheer Arabyat, Faisal Tayel Alqudah y Mohamed F. Ghazwi. "Cases of Nullity of Administrative Contract Compared to Civil Contract under the Jordanian Legislation". International Journal of Religion 5, n.º 1 (9 de febrero de 2024): 725–31. http://dx.doi.org/10.61707/hd5yz160.
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This article examines the degree of effect of the theory of nullity in Jordanian civil law on administrative and civil contracts and the utmost key cases of nullity of the administrative contract as compared to civil contract. The descriptive and analytical research approach is adapted to achieve the research objectives. In carrying out its activity, the administration resorts to several diverse and numerous means and actions, and these actions may be physical or legal actions. Legal actions may be unilateral actions, which are called administrative decisions, or they may be two-sided, meaning an agreement, which is what, is called contracts, whether these contracts are concluded between persons of public law and between a person of public law and one of the persons of private law. The administrative contract does not differ in its work from other contracts if it is concluded by simply exchanging the expression of their wills between the two parties, taking into account the specific conditions stipulated by the law for its conclusion. In its formation, it is necessary that its pillars be present, which are the administration element, the place element, and the cause element. It is also necessary that the conditions for its validity be met, which is that the will of its two parties is free from any defects of consent that may taint it. Towards the end, results and recommendations are properly incorporated.
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Wulandari, Putri y Khoirun Nasik. "The Sharia Compliance Analysis of the Mudharabah Contract at PT Permodalan Nasional Madani Mekaar Syariah". MALIA (TERAKREDITASI) 15, n.º 1 (31 de diciembre de 2023): 105–16. http://dx.doi.org/10.35891/ml.v15i1.4370.
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Financial institutions in Islam are governed by rules of halal (permissible) and haram (forbidden). One example of an Islamic financial institution is PNM Mekaar Syariah, which operates under various Sharia contracts. To ensure its Sharia compliance, it is necessary to analyze its pillars, conditions, and mechanisms. The objective of this research is to examine the Sharia compliance of the Mudharabah contract used in capital financing at PNM Mekaar Syariah, focusing on the branch in Prambon. This study adopts a qualitative descriptive approach. The findings reveal that PT PNM Mekaar offers Sharia-compliant capital financing products, as demonstrated by the research findings on the practice of capital provision by PNM Mekaar Syariah to its customers. However, there are some pillars and conditions that do not align with Sharia principles, leading to the deterioration of the Mudharabah contract's validity.
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Nikšić, Saša. "Pisani oblik ugovora i drugih pravnih poslova". Zbornik Pravnog fakulteta u Zagrebu 72, n.º 1-2 (1 de junio de 2022): 299–328. http://dx.doi.org/10.3935/zpfz.72.12.08.
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The notion of the written form of contracts and other legal transactions is analyzed in this paper. Historical development of formal legal transactions as well as the comparative law dimension of the form of contracts and other legal transactions are briefly addressed. The possibilities to acknowledge the legal effects of the written form in the case of electronic declarations of will are also analyzed. A particular emphasis is placed on different possibilities to interpret the relevant provisions of the Civil Obligations Act regarding the fulfillment of requirements for the written form if a contract is concluded electronically. The provisions of the German BGB are also discussed because of the fact that German law is to a larger extent adapted to the electronic declaration of will (declaration of will in electronic form and declaration of will in text form). A part of the paper relates to situations in which the parties to a contract agree that they shall conduct their business exclusively in written form. Although the provisions on the written form are of a mandatory nature, considering that they regulate conditions for the validity of contract, when the parties to a contract agree that a certain contract must be in writing, they actually exploit the freedom of contract principle. This fact should be borne in mind when parties agree that any modifications to or rescission of a contract must be in writing. If this is the case, the will of the parties should be taken into the account, because it is in accordance with the pacta sunt servanda principle, and there are no mandatory provisions that would nullify such an agreement. Naturally, the validity of such agreements can be challenged if they are contrary to the good faith principle or the prohibition of the abuse of right principle.
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Zhang, Yunbo. "The Study on the Effectiveness of Arbitration Clauses in International Commercial Arbitration – From the Perspective of Contract Non-Formation". Athens Journal of Law 9, n.º 3 (30 de junio de 2023): 493–508. http://dx.doi.org/10.30958/ajl.9-3-10.
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This study belongs to a more specific project, aiming at exploring the issue of the validity of arbitration clauses in international commercial arbitration when the main contract is not established, and addressing the issue of determining the validity of arbitration clauses in transnational commercial disputes to provide commercial operators, arbitrators or judges with guidelines and references for their ideas. This study is based on the classical jurisprudence of private international law, common law, and international commercial arbitration. Furthermore, based on the customs of international commercial transactions and the contents of the cases, it conducts legal doctrinal analysis, comparative analysis, and case analysis. From different perspectives, these legal norms and issues reflect that the arbitration clause has considerable independence and can typically be established independently of the main contract. The validity of an arbitration clause is based on sufficient formal and substantive elements. The study points out that the determination of the validity of the arbitration clause has its logic of the decision, and it should also apply the process of conclusion of the contract, which includes the conditions of the voluntary agreement of the parties, the process of invitation and negotiation, and the true intention of the parties. Keywords: Autonomy of Will, Independence, Arbitration Clause, Contract
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Abdullah, Raihanah. "Inserting Stipulation Pertaining to Polygamy in a Marriage Contract in Muslim Countries". Al-Jami'ah: Journal of Islamic Studies 46, n.º 1 (27 de junio de 2008): 153–69. http://dx.doi.org/10.14421/ajis.2008.461.153-169.
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Generally, Islam permits a wife to stipulate any conditions in a marriage contract. The Muslim jurists however differed in determining the validity of certain conditions and terms upon which their marriage is to take place. One of the controversial conditions is that the wife includes a condition pertaining to polygamy in the marriage contract. It is interesting to note that the practice of inserting stipulations pertaining to polygamy is not a new practice or unusual among many Muslims in the Middle East. Therefore, this article seeks to discuss the possibilities to adopt the Hanbalite’s principles on this matter in muslim countries where the Shafi’ite school of thought is predominantly followed. This article argued that by allowing the wife to insert stipulations pertaining to polygamy in a marriage contract does not go against Islam. This is because stipulations in the marriage contract are often aimed at preventing such eventuality and also protecting the position of women should it come to prevent.
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Septianes Nora Kartika, Reka Dewantara y Faizin Sulistio. "Validity of Forex Trading Agreements Using Foreign Currency as the Object of Investment". Jurnal Multidisiplin Madani 3, n.º 2 (28 de febrero de 2023): 320–27. http://dx.doi.org/10.55927/mudima.v3i2.2318.
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Forex (Foreign Exchange) is better known in Indonesian as Forex trades between two currencies from two countries by many States Parties, institutions and individuals. Forex trading between market players that lasts Open 5 days a week, 24 hours a day. inner consistency Forex trading operations based on Article 1338 of the Legislative Code Civil. These provisions are less effective because there are still many brokers illegal brokers, unlicensed and unscrupulous companies with the intention of misleading investors. Due to the futures trading law Commodity has not yet implemented a complete forex trading system.Speaking of validity foreign exchange investment contract based on article 1320 of the civil code on the conditions of validity of the contract, foreign exchange as the object of the contract, not contrary to the objective conditions which have legal consequences, null and void history and characteristics of book iii of the civil code which regulates the commitment is open, so it is allowed to make one agreements other than those provided for in the civil code, provided that they are not contrary with the law, public order and good morals. This research advising the government and the legislator to make regulations related toforeign exchange investment regulations to prevent things that are not legal protection desired and guaranteed for investors
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Novak, I. М. "Protection of Employment under Martial Law". HERALD OF THE ECONOMIC SCIENCES OF UKRAINE, n.º 1(42) (2022): 205–8. http://dx.doi.org/10.37405/1729-7206.2022.1(42).205-208.
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The purpose of the article is to analyze the tools of state business support policy and develop proposals for improving labor legislation to protect employment under martial law. Research methods: dialectical, abstract-logical, induction and deduction, analysis and synthesis, analogy and comparisons, system, complex and content analysis. The instruments of the state policy of supporting enterprises in the conditions of martial law are analyzed, in particular regarding the simplification of the regulation of labor relations by suspending the validity of the employment contract. It has been proven that this creates conditions for the legalization of hidden unemployment and limits workers’ access to assistance in the mandatory state social insurance system. The similarity of the impact of the factors of the COVID-19 pandemic and martial law on the labor market is shown. Based on the analysis of the international experience of saving jobs during the COVID-19 pandemic, ways of improving the labor legislation are proposed to compensate for the consequences of the suspension of the employment contract in the conditions of martial law. Keywords employment protection, martial law, suspension the validity of the employment contract, labor law, labor relations, hidden unemployment, COVID-19 pandemic.
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Buzescu, Gheorghe. "Procedure of public acquirement". Ars Aequi 12 (13 de abril de 2023): 382–91. http://dx.doi.org/10.47577/10.1234/arsaequi.12.1.242.
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The public procurement contract is an administrative contract, that is, an "agreement of will between a public authority in a position of legal superiority, on the one hand, and other legal subjects, on the other hand, through which the satisfaction of an interest is sought generally, by providing a public service, carrying out a public work or enhancing the value of a public good, subject to a regime of public power.The legal regime applicable to administrative contracts borrows certain characters from private law (e.g. validity conditions) but is distinguished by two essential elements: on the one hand the inequality of the parties and, on the other hand, the fact that the authority does not have a freedom of will similar to the contractual relationship in private law.
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Kullolli, Dr Brunela. "Confidentiality - A Two-Appeal Principle". European Journal of Social Sciences 1, n.º 3 (29 de noviembre de 2018): 53. http://dx.doi.org/10.26417/ejss.v1i3.p53-60.
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This article analysis relates to the creation of conditions for the conclusion of the contract.This is the moment when the negotiating parties determine whether there will be a contract or not. This is the stage that in the best case is finalized with the contract signing.Known as the pre-contractual stage, it is considered as the foundation of the contractual relationship.Conduct in good faith at the stage of entering into a contract would also avoid causing potential damages and liability".- The first part gives , of Completion of the contract in good faith, is a legal requirement under the Civil Laë tradition, but unlike the requirement for pre-contractual trust, finds place in the Common Law tradition.In this part of the study, the detailed treatment of the manner of performance of the contract will be set aside, focusing mainly on the obligations that dictate its fulfillment in good faith and the liability incurred in the event of its absence . The second part is concentrated, Contract Interpretation. The third part will be treated as a brief and comparative overview of the common law of Civil Law in the interpretation of the contract, taking into account the main interpretative criteria, to underline the main differences between them. Among all the criteria, the focus will be on trust, which is sanctioned as a special criterion of interpretation by the Civil Law countries. The fourth part analysis the validity of the contract.In this last part of the chapter, I will try to clarify the confusion created between the rules of contract validity and the rules of conduct, as well as the role and impact of the breach of the trust principle in the validity of the contract. Conclusions .Regarding the situations that arise for the damage that comes to the parties from non-fulfillment of obligations and breach of the principle of good faith during the contract's formation, it is necessary to clarify how the type of damage that came during the pre-contractual phase and which interest has failed to realize one of the parties. In fact, this is a genuine duty of the court which, as the case may be, must specify exactly: the responsibility of the parties, the interest that has been violated, the type of damage that has been caused.Keywords: contract law ,internal law ,contractual relation,internal contract interpretation, civil law
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Omar, Ahmed El-Murdi Saeed. "“Muzarah” Share-Cropping and “Musagah” Irrigation as Methods of Partnership for Financing Agricultural Sector and Micro Finance Projects Practiced by Islamic Banks." advances in multidisciplinary & scientific research journal publication 6, n.º 2 (30 de junio de 2020): 31–46. http://dx.doi.org/10.22624/aims/sij/v6n1p3.
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In this paper, the researcher expected to explain provisions of Islamic financial jurisprudence in respect to the related and selected commercial contracts and to relate their implantation to Islamic Banking system. The objectives are to tell the reader: (1) how the pioneer Muslim scholars compiled and documented the provisions of Muzarah and Musagah as essential methods for partnership recently in Islamic Banking systems. The researcher adopts the APA style that is well known method for referencing to evaluate literature. Findings from the research showed that (1) Sharing corps is a contract allowed within Hanbali School of thought and in the view of Abu Yousuf and Mohammed bn Al-Hassan Alshybaini. (2) for the validity of share cropping conditions of: The land that should be cultivated, the seeds, the employees, the profit and the duration of the contract should be well stated. (3) Share cropping could be valid or vitiated. (4) The contract of Musagat or irrigation will be formed by offer and acceptance. (5) Contract of irrigation is handling tree to workers for purpose or irrigation or harvesting. (6) Contract of Musagah and Muzarah sharing the same conditions. (7) Both of the contracts bearing the same reasons of void or invalidity. The researcher recommends that relevant academic area of knowledge in particular Department sof: economics, banking and finance, law, Islamic Sciences, Business and Management to include the Islamic methods of investment in business, in their curriculums and syllabus at both undergraduate and postgraduate levels. Keywords: “Muzarah”, Share-Cropping, “Musagah”, Irrigation, Partnership, Financing, Agricultural Sector, Micro Finance, Projects, Islamic Banks.
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Faruk, Shakur. "The Mediating Effect of Trust on the Relationship between Psychological Contract and Psychological Employment Contract Breach. A Pilot Test." Journal of Research in Psychology 1, n.º 3 (18 de septiembre de 2019): 26–29. http://dx.doi.org/10.31580/jrp.v1i3.977.
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Employees always expect their employers to fulfil the promises according to the conditions embedded in the employment contract being the factor binding them together, because when the employer fail to meet up with the promises made, it results to psychological employment contract breach. Thus, it has become crucial for employers to uphold prior promises made to employees for the purpose of reciprocated gestures from the employees leading to increased motivation and performance in the organizations. This paper used little number of sample data in examining psychological contract, trust and psychological employment contract breach in Nigeria public universities. More so, it employ the use of SPSS (Version 24) to examine the reliability and cronbach alpha of the measurement instruments, as well as the content and face validity. Academicians and experts were used in the instrument assessment and the pilot study result revealed that the instruments are reliable with evidence of reasonable regularity.
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Golecki, Mariusz Jerzy. "Causa as an element of the structure of a binding contract in the Spanish law". Nieruchomości@ III, n.º III (30 de septiembre de 2022): 37–59. http://dx.doi.org/10.5604/01.3001.0015.9846.
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The Spanish Civil Code does not define the concept of a binding contract, although it contains the list of legal conditions on which its formation depends. As a rule, the conclusion of the contract depends upon the agreement of the parties, resulting in a binding obligation. However, this theory does not explain whether the relationship is causal or purposeful and, therefore, whether the contract is the basis for the obligation or vice versa. The problem is mainly the definition of the relationship between the binding contract and the obligation in a situation where, on the one hand, the causa is a necessary element for the validity of the contract (Article 1261 of the Spanish Civil Code) and, on the other hand, it is identified with the cause of the obligation (causa de obligación, under Article 1261(3) and Article 1274 of the Spanish Civil Code). The concept of causa is understood in a variety of ways in the Spanish law. As defined in Article 1274 of the Spanish Civil Code, it is applicable, in the case of mutual contracts, to the obligation of the other party in contract of a benefit-generating nature, to the service provided by one party in case of remunerating contracts, and to the donor's intention in case of donations. The paper contains an analysis of various types of causa and the relationship between the binding contract and the obligation understood as crucial for the scope and the essence of contractual obligations.
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FILA, SITI ZAFILAH FIRDAUSIAH. "Kajian Teoritik Terhadap Urgensi Asas Dalam Akad (Kontrak) Syariah". Al - Muamalat: Jurnal Hukum dan Ekonomi Syariah 5, n.º 1 (26 de septiembre de 2020): 48–67. http://dx.doi.org/10.32505/muamalat.v5i1.1519.
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The concept of or in sharia transactions is an important element that regulates and determines the relationship between the economic actors (among others) in a transaction that is related to the contract. Sharia sees the validity of the Akad can be said to be fulfilled if it meets the conditions and pillars of contract. Then, there is a basic principle that can stimulate the contract which is the basis of a foundation, basic, point of decline and footing that serves as a corridor in the creation of the contract as well as a corridor to interpret in resolving treaty disputes. Therefore, the principle becomes very important to be further examined in order to understand the various kinds of akad to make the development of contemporary business Akad and become a reference in making contract. This type of research uses library research. There are principles underlying the creation, enforcement and implementation of sharia contracts that include the principle of ibahah, the principle of freedom of law, the principle of consensualism, the principle of promise binding, the principle of balance, the principle of benefit, the principle of trust, the principle of justice, the principle of personnel, and the written principle.
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Mendjul, M. "Grounds for invalidating marriage contracts: legal positions of the supreme court and risks in martial law". Uzhhorod National University Herald. Series: Law 1, n.º 74 (31 de enero de 2023): 103–6. http://dx.doi.org/10.24144/2307-3322.2022.74.17.
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The article provides a comparative analysis of the grounds for declaring marriage contracts invalid, taking into account the legal positions of the Supreme Court before martial law and taking into account modern risks. It is noted that in the doctrine of private law in general and family law in particular, the approach to recognizing a marriage contract as a transaction with a complex legal nature, which is regulated both by the norms of the Family Code of Ukraine, and subsidiarily by the provisions of the Central Committee of Ukraine, is already established. In order to find out the requirements for the validity of the marriage contract, the grounds for declaring it invalid, the provisions of the legislation, the legal positions of the Supreme Courtcontained in the resolutions issued during the consideration of family cases both before the war and during martial law were analyzed. The requirements for the content of the marriage contract were studied.
It has been determined which legal norms determine the grounds for the invalidity of a marriage contract and which requirements the parties must comply with when concluding a marriage contract. The following grounds for invalidating a marriage contract are distinguished: violation of the notarial form of the contract; improper subject composition; reduction of the scope of children’s rights established by the SC of Ukraine; the inclusion of conditions that put one of the spouses in an extremely unfavorable financial situation or the conclusion of a marriage contract under the influence of a grave circumstance; concluding a marriage contract under the influence of error, deception or violence; violation of the law by the marriage contract. It was revealed that a fairly significant number of cases are considered by the Supreme Court regarding the recognition of the marriage contract as invalid due to the inclusion of conditions that put one of the spouses in an extremely unfavorable financial situation.
It is substantiated that the rulings of the Supreme Court issued during the war in Ukraine confirm the consistency and stability of judicial practice regarding the analysis of the content of marriage contracts both in the conditions of the pre-war period and during martial law. Martial law is not a reason for the parties to deviate from the legal requirements regarding the content of the marriage contract. It is proposed to amend Article 103 of the Criminal Code of Ukraine and to present it in a new version.
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Gillani, Syed Hasnat Ahmad shah. "https://habibiaislamicus.com/index.php/hirj/article/view/88". Habibia Islamicus 6, n.º 2 (19 de junio de 2022): 69–90. http://dx.doi.org/10.47720/hi.2022.0602e05.
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In Islamic law it is necessary for a binding agreement to take place; certain conditions are to be satisfied and a valid transaction can be formed if elements laid down in Islamic law are to be met in order to consider it lawful. The majority of Islamic jurists hold that those essential elements upon which a valid contract bases itself are threefold. The formation; Ijab and Qabūl (Sighah) subject matter of contract and lastly the parties to the contract that the essence of the validity of offer and acceptance is mutual consent. Besides, they are also agreed that there must be three conditions for valid constitution of offer and acceptance. First, both must be clear and definite, in terms of clarity, secondly conformity with the Muqtadā al-àqd, which means coherence or agreement between offer and acceptance and last and third is continuity that offer and acceptance must be connected. In other words, as a basic rule of Islamic law the contracting parties can make whatever stipulations they deem fit for regulating their contractual relationship. The law will intervene only in a few and exceptional cases to invalidate such stipulation. This means, it is validity rather than invalidity of stipulation which is the general rule in Islamic law.
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M. Auritsniyal Firdaus y Rifqy Tazkiyyaturrohmah. "Perbandingan Fiqh Tentang Akad Tidak Bernama". At-Tasyri': Jurnal Hukum dan Ekonomi Syariah 5, n.º 01 (16 de diciembre de 2023): 1–19. http://dx.doi.org/10.55380/tasyri.v5i01.560.
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Abstract
This paper uses a type of qualitative research with a library research focus. The discussion of this paper, first discusses the meaning of contract in a comparative study of fiqh, then discusses the pillars and conditions of a contract in a comparative study of fiqh, and finally discusses the validity, legal consequences and termination of the contract as well as a comparison of fiqh regarding anonymous contracts. According to Syāfi'iyah, Mālikiyah, and Hānabilah, a contract is anything that someone intends to do, whether it arises from one will, then according to Wahbah az-Zuhailī, a contract is an agreement between two wills to give rise to legal consequences, either in the form of giving rise to obligation, transfer it, transfer it, or stop it, whereas according to Hanafiyah and Musṭahfā Ahmad az-Zarqā, in terms of terms, a contract is a relationship between consent and qabul according to the provisions of the sharia.' The pillars of a contract according to Hanafiyah are only consent and acceptance, whereas according to non-Hanafiyah a contract has three pillars, namely 'aqid, ma'qud 'alaih and shighat. Meanwhile, according to contemporary Islamic legal experts, there are four pillars of a contract, namely al-'āqida'in, ṣigatul-'aqd, maḥalul-'aqd, and mauḍū' al-'aqd. According to Hanafiyah, the levels of invalidity and validity of a contract are five levels, namely: baṭil contract, fāsid contract, mauqūf contract, nafiz gair lāzim contract, and nafiz lāzim contract, whereas according to others there is no distinction between a void contract and a fāsid contract, for them both are contracts that cancelled. Then the legal consequences of a contract can have an impact on the parties and on the contents of the contract. And finally, contract termination covers four things, namely termination based on agreement (al-iqālah), termination related to advance payment, contract termination because it is not implemented, and contract termination because it is impossible to implement.
Keynote: contracts, fiqh, comparisons, anonymous contracts.
Abstrak
Pada tulisan ini menggunakan jenis penelitian kualitatif dengan fokus kepustakaan (library research). Pembahasan paper ini, pertama dibahas tentang pengertian akad dalam kajian perbandingan fiqh, kemudian dibahas rukun dan syarat akad dalam kajian perbandingan fiqh, dan terakhir dibahas keabsahan, akibat hukum, dan terminasi akad serta perbandingan fiqh tentang akad tak bernama. Akad menurut Syāfi’iyah, Mālikiyah, dan Hānabilah, akad adalah segala sesuatu yang diniatkan oleh seseorang untuk dikerjakan, baik timbul karena satu kehendak, kemudian menurut Wahbah az-Zuhailī, akad adalah kesepakatan dua kehendak untuk menimbulkan akibat-akibat hukum, baik berupa menimbulkan kewajiban, memindahkannya, mengalihkan, maupun menghentikannya, sedangkan menurut Hanafiyah dan Musṭahfā Ahmad az-Zarqā secara istilah akad adalah pertalian antara ijab dan qabul menurut ketentuan syara.’ Rukun akad menurut Hanafiyah hanya ijab dan kabul, sedangkan menurut selain Hanafiyah akad memiliki tiga rukun yaitu 'aqid, ma'qud 'alaih dan shighat. Sedangkan Rukun akad menurut ahli-ahli hukum Islam kontemporer, rukun akad ada empat, yaitu al-‘āqida’in, ṣigatul-‘aqd, maḥalul-‘aqd, dan mauḍū’ al-‘aqd. Menurut Hanafiyah tingkatan kebatalan dan keabsahan akad menjadi lima peringkat, yaitu: akad baṭil, akad fāsid, akad mauqūf, akad nafiz gair lāzim, dan akad nafiz lāzim, sedangkan menurut yang lain tidak membedakan akad batal dan akad fāsid, bagi mereka keduanya adalah akad yang batal. Kemudian akibat hukum suatu akad dapat berakibat terhadap para pihak dan terhadap isi pada akad. Dan terakhir dibahas terminasi akad meliputi empat hal, yaitu terminasi berdasarkan kesepakatan (al-iqālah), terminasi terkait pembayaran urbun di muka, terminasi akad karena tidak dilaksanakan, dan terminasi akad karena mustahil dilaksanakan.
Kata kunci: akad, fiqh, perbandingan, akad tak Bernama.
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Khaerul Aqbar, Muhammad Akram Puang Endek y Azwar Azwar. "Sistem Give and Get dalam Perspektif Fikih Muamalah". AL-KHIYAR: Jurnal Bidang Muamalah dan Ekonomi Islam 3, n.º 2 (17 de noviembre de 2023): 170–93. http://dx.doi.org/10.36701/al-khiyar.v3i2.1134.
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This research aims to determine the give and get negotiation system in buying and selling and its laws based on the muamalah fiqh perspective. The type of research used in this research is library research, with a juridical/normative approach. The research results show that the give and get negotiation system in buying and selling is a bargaining method that uses two transaction tricks, namely: 1) adding conditions; and 2) additional prizes/bonuses. In view of muamalah jurisprudence, the give and get negotiation system is permissible. Judging from the side/trick of adding conditions, this is considered permissible because it does not affect the validity of the contract and is not part of the three limiting conditions that damage the contract, such as if the conditions cancel the main purpose of the transaction, the existence of other contracts outside of buying and selling and the contract being dependent on something. which is not certain what happened. Meanwhile, looking at the aspect/trick of adding prizes/bonuses, this is deemed permissible, if it is appropriate and does not conflict with sharia rules. For example, the prizes given do not contain elements of gambling, they are not given by lottery where customers have to pay and then the money is collected and used as prizes, the prizes given must be halal and in accordance with what was promised, and the aim of consumers is to buy goods because they really need them.
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Coryka, Widhiatmika, I. Nyoman Putu Budiartha y Ni Made Puspasutari Ujianti. "Perlindungan Hukum Bagi Pemilik Kartu Elektronik dalam Transaksi E-Commerceputu". Jurnal Interpretasi Hukum 2, n.º 3 (27 de noviembre de 2021): 525–30. http://dx.doi.org/10.22225/juinhum.2.3.4131.525-530.
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Electronic contracts are one of the new forms of contracts that get special protection in Law Number 11 of 2008 concerning Information and Electronic Transactions. In general, electronic contracts are very different from ordinary (conventional) forms of contract, therefore it will be very difficult to directly apply the conditions for the occurrence of conventional contracts to this electronic contract (online contract). The purposes of this study are to reveal the validity of electronic contracts in credit card agreements and legal protection for credit card owners in e-commerce transactions. This research was conducted using normative legal research by applying a statutory approach. The technique of collecting legal materials is carried out by taking inventory of laws and regulations and recording techniques. This study uses primary and secondary legal materials which are then processed using deductive logic with analysis of legal interpretation and legal arguments presented descriptively. The results of the study reveal that in Law Number 8 of 1999 there are regulations that protect the parties who carry out E-Commerce transactions. Electronic contracts are basically the same as written contacts and have legal force and legal consequences as long as they meet statutory requirements. The legal protection provided by Article 26 of Law Number 8 of 1999 provides protection for consumers by requiring business actors who trade services to fulfill the agreed or/or agreed guarantees and/or guarantees.
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Mohd Noor, Nurul Syazwani, Muhammad Hakimi Mohd. Shafiai y Abdul Ghafar Ismail. "The derivation of Shariah risk in Islamic finance: a theoretical approach". Journal of Islamic Accounting and Business Research 10, n.º 5 (14 de octubre de 2019): 663–78. http://dx.doi.org/10.1108/jiabr-08-2017-0112.
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Purpose This paper aims to propose a derivation of Shariah risk from both the Islamic finance theory and theory of contracts in Islamic law. Specifically, it deliberates the derivation of Shariah risk following the contracts validity and apprises the readers of the Shariah risk issues currently under debate. Design/methodology/approach This study reviews the relevant literature and presents an analysis of contract rulings through evidence derived from the Qur’an, Hadith and other secondary sources of Islamic law. Various theories of Islamic finance and Islamic law of contracts are identified, to examine the general principles and essential elements and conditions of a valid contract. Findings This analysis asserts that any circumstances that may render invalidity of the contract will trigger Shariah risk. More importantly, this paper highlights the implications of invalid contracts, based on the opinion of Hanafi jurists, who concluded that Shariah risk may be derived from any void or voidable contracts due to the failure of the contractual parties to comply with Shariah contractual obligations. Research limitations/implications This paper emphasises the derivation of Shariah risk over theoretical approaches. It does not include an explanation in the form of any empirical model. Originality/value This is the first study that contributes to the field of derivation of Shariah risk, based on the theory from the Islamic law of contracts.
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Hrynyshyn, Kh M. "Validity conditions of significant transactions of limited and additional liability companies". Uzhhorod National University Herald. Series: Law 1, n.º 78 (28 de agosto de 2023): 159–65. http://dx.doi.org/10.24144/2307-3322.2023.78.1.25.
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The article is devoted to a comprehensive study of the conditions of validity of significant transactions of limited and additional liability companies. The author argues that a significant transaction of LLC or TDV shall comply with not only the general requirements regarding the validity of the deed (Article 203 of the Civil Code of Ukraine), but also the requirements that apply to deed of a specific type depending on its subject. In addition, to enter into a significant transaction, the consent of the authorized body of the company shall be given (or it shall be approved) under Article 44 of the Law of Ukraine “On Limited and Additional Liability Companies”. The author highlights the criteria for assigning the company’s transactions to the category of significant, analyzes the practice of applying such criteria based on the materials of court practice. The author stresses that significant transactions of the LLC (TDV), entered into without the consent (approval) of the authorized body of the company, are contested transactions. The author also argues that the consent of the general meeting of the company to the conclusion of the deed (or its subsequent approval) is not a classic and unconditional condition for its validity. At the same time, the lack of such consent combined with other circumstances, may be suggested as grounds for declaring the deed invalid. In particular, it is highlighted that in cases of recognition of a significant deed as invalid, other important factual circumstances are to be proved: the absence of active actions by the company or its participants, which would testify that such a contract (deed) does not correspond to the will of the company; the possibility (impossibility) of determining by the counterparty (creditor) whether the transaction is really significant for the company; prosecution of a person who committed such an act in excess of authority, etc
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Ika Novitasari. "“Passorong Tedong” As A Requirement For The Validity Of Marriage According To The Tuho Law In Ulumanda District Majene Regency". Journal of Scientific Research, Education, and Technology (JSRET) 1, n.º 2 (28 de diciembre de 2022): 415–22. http://dx.doi.org/10.58526/jsret.v1i2.124.
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Marriage is defined as a very strong contract or miistaaqan gholiidhan to obey God's commands and its implementation is a form of worship. In Islamic law, marriage is considered valid if the pillars and conditions of a valid marriage are met. These two elements are very basic and cannot be abandoned. However, in the Ulumanda District, the community imposes conditions other than those specified by the Shari'a and the Islamic Law Compilation. The condition is "Passorong Tedong", which determines the validity of a marriage in the Ada' Tuho community in Ulumanda District. This study discusses the conditions for the validity of marriage according to the Ada' Tuho Law and whether or not the application of these validity conditions is in line with the provisions of Islamic law. The results of the study show that the application of Massorong tedong as a condition for the validity of a marriage that is applied in the community in the Ulumanda District is contrary to the provisions of Islamic law, because this is not in accordance with the provisions regarding the legal requirements of a marriage that have been stipulated in the Marriage Law and Compilation of Islamic Law.
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Hosseini Pouya, Mohsen, Abbas Ghasemihamed y Amir Hosseinabadi. "Elements and conditions of penalty clause validity in banking contracts". Journal of Law Research 22, n.º 86 (1 de julio de 2019): 119–46. http://dx.doi.org/10.29252/lawresearch.22.86.119.
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Bereza, I. V. "STRATEGIC REFERENCE POINTS OF DEVELOPMENT OF THE ENTERPRISES OF TRANSPORT BUILDING IN THE CONDITIONS OF BRANCH TRANSFORMATION". Economic innovations 19, n.º 1(63) (24 de abril de 2017): 23–28. http://dx.doi.org/10.31520/ei.2017.19.1(63).23-28.
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Results of research of dynamics of development of market mutual relations in sector of transport building and influence of efficiency of functioning of the enterprises of transport building on activity of transport area, as major element of national economy of Ukraine are presented. At application of the developed complex toolkit as a whole, the transportno-building organisation will provide increase of economic efficiency of the activity at the expense of increase of degree of validity of the offers under the price and terms of building of object in mutual relations with the customer at the turnkey contract conclusion. Increase of validity of indicators which pay off, in the course of preparation of offers allows to represent accurately to a contract organisation the planned costs on building of object which in turn, gives the chance to guarantee to the customer of data of object under the given price, to the specified term. Performance of the obligations taken on strengthens competitiveness of the building organisation in the market of contract works. The customer, taking into consideration offers of the contractor, really represents the size of investments on building. As a result, the performed works are paid by the building organisation in due time, that allows to work to it(her) more stably. Besides, reception by the building organisation of the size of profit according to the proved calculations, allows to conduct to it(her) necessary building of objects of non-productive appointment, to expand manufacture. Besides, use of separate positions of toolkit at formation of strategic reference points of development of the enterprises of transport building allows to do(make) the analysis of the caused aspects of activity, calculation of the size of necessary financial assets for timely elimination of bottlenecks in is industrial-economic activities.
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Azzulfa, Fatihatul Anhar y Moh Durrul Ainun Nafis. "THE VALIDITY OF THE PRACTICE OF MUSLIM MARRIAGE CONTRACTS WITH THE SAMIN INDIGENOUS PEOPLE IN KARANGROWO VILLAGE, UNDAAN, KUDUS REGENCY". Al Hakam The Journal of Islamic Family Law and Gender Issues 2, n.º 2 (4 de noviembre de 2022): 89–105. http://dx.doi.org/10.35896/alhakam.v2i2.348.
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The study aims to determine the practice of the Samin customary marriage contract with Muslims (non Samin) in Karangrowoi Village, Undaani district, Kudus Regency hich has differences with the marriage contract procession in general, where between ijab and kabul there must be a grace period (separately). The method used is descriptive-qualitative, which describe and explore the practice of marriage contract in the Samin community and then analyzes it based on the perspective of Islamic law and positif law. This tudy found that, what should have been the implementation of ijab and kabul carried out in one assembly (in one space and time), isn’t done that way by indigenous people of Samin. The implementation, kabul is delivered at different times so that its validity isn’t fulfilled as required by the pillars and conditions of marriage.
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Sándor, István. "The system of grounds for invalidity in Hungarian private law". European Integration Studies 18, n.º 2 (2022): 48–60. http://dx.doi.org/10.46941/2022.e2.48-60.
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The study analyses the system of grounds for invalidity that has developed in Hungarian private law. One of the starting points is the distinction between nullity and contestability, which distinguishes, depending on the gravity of the error in the contract, between ipso iure invalidity (nullity) and invalidity, depending on the juridical act of the aggrieved party or person with legal interest. The other systematisation aspect was based on the dogmatic triad of conditions of validity, so it was grouped according to the error of contractual intention, the error in the contractual juridical act, and the error in the intended legal effect. Errors of contractual intention include mistake, mispresentation, and unlawful threats, while errors of the contractual juridical act include formal errors in the contract. Most of the legal facts were included among the errors of the intended legal effect, e.g. a prohibited contract, a contract contrary to good morals, a usurious contract, obvious disproportionality, nullity of transferring title as security, contract terms impairing consumer rights, etc.
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Hnatiuk, T. "The concept, legal features and meaning of the energy supply contract". Analytical and Comparative Jurisprudence, n.º 2 (11 de mayo de 2024): 266–69. http://dx.doi.org/10.24144/2788-6018.2024.02.46.
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The article analyzes the concept of an energy supply contract, its essential features and the importance of concluding it for Ukraine in wartime conditions. Since the introduction of electricity in the 19th century, the supply of energy was often organized through agreements between producers and consumers that set the terms of supply. In the 20th century, universal energy supply systems were created in many countries, where energy supply contracts became standard and regulated by the state. In connection with the development of technology and the growth of competition, the terms of contracts have become more diverse, including fixed and variable prices, terms of delivery and payment. With increased attention to the problems of climate change, conditions aimed at stimulating the use of renewable energy sources appeared in energy supply contracts. The author analyzed the current legislation that regulates the conclusion of these contracts and the system of their validity. A conclusion was made about the importance and necessity of high-quality and timely energy supply for the Ukrainian people. Attention was drawn to the need to create backup power supply mechanisms in case of emergency, electricity payments in conditions of limited access to energy resources, as well as additional security measures to ensure the continuous operation of the power grid and power plants in the event of military threats. It was concluded that in the context of Ukraine, which has a complex energy system and dependence on energy imports, energy supply contracts play an important role in ensuring the stability and development of the country's energy sector. Analysis of the energy supply contract shows constant changes in the interaction between suppliers and consumers of energy, reflecting changes in technology, economics and energy policies.
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Zuhair Al-feel, Nada. "MANUFACTURE CONTRACT (ISTISNA’A), CONCEPT, IMPORTANCE & RISKS". Humanities & Social Sciences Reviews 7, n.º 5 (3 de noviembre de 2019): 1039–52. http://dx.doi.org/10.18510/hssr.2019.75139.
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Purpose of the study: This research deals with Manufacture Contract (Istisna'a contracts) Arabic (الإستصناع) in terms of their concept, importance, and risks related to them; as one of the means used by Islamic banks to meet the individuals special needs of goods and products that require special specifications.
Methodology: The study is based on the descriptive approach that gave a clear picture of Istisna'a is a contract and as a financing formula. It is meant by the terms and conditions of its validity and legitimacy, distinguishing it from the other financing forms witnessed by the banking reality, the methods and procedures of its application and its importance.
Results: it does not stipulate what is required in the peace contract to accelerate the price, a contract that recognizes contemporary jurisprudence in need of modification and development to be removed from its traditional image to a new image through which it is able to accommodate the fate Greater than the requirements for industrial finance. Given the importance of this contract in the field of industrial investments carried out by Islamic banks, the many questions that may be raised about its legitimacy, its relevance to other contracts, the risks faced by banks in applying it, and the solutions that must be prepared to address it, we have chosen it to be the subject of this study.
Applications of this study: This research can be used for the universities, teachers, and students.
Novelty/Originality of this study: In this research, the model of Manufacture Contract (Istisna’a), Concept, Importance & Risks is presented in a comprehensive and complete manner.
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Shavira Aprilia y Rasta Kurniawati Br. Pinem. "Tinjauan Praktek Akad Ijarah Menurut Hukum Islam: Studi Kasus pada UMKM Kios di Kec. Medan Helvetia". El-Mal: Jurnal Kajian Ekonomi & Bisnis Islam 5, n.º 4 (1 de marzo de 2024): 3292–300. http://dx.doi.org/10.47467/elmal.v5i4.2024.
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Leasing (ijarah) is a form of muamalah action that is often carried out by humans to fulfil their needs. These needs can be in the form of the benefits of goods or services that are not owned, such as renting out kiosks for MSME business actors in Medan Helvetia Sub-District. However, in some cases, kiosk tenants are often not responsible for the leased kiosk building, such as building damage that arises during the lease period and arrears in water and electricity costs. The purpose of this study is to explain how the practice of ijarah contracts contained in kiosk MSMEs in Medan Helvetia sub-district and explain the practice of ijarah contracts contained in kiosk MSMEs in Medan Helvetia sub-district according to Islamic law. This research uses a type of field research with a descriptive qualitative approach. The data sources used are primary data sources and secondary data sources. Data collection is done by observation, interviews, documentation. Data analysis techniques using qualitative descriptive data analysis techniques. Based on the results of this research, the benefits of objects in the practice of ijarah contracts for MSME kiosks in Medan Helvetia sub-district are permissible in Shara'. When viewed from the validity of the contract, the practice of ijarah contracts for MSME kiosks in Medan Helvetia Sub-District is not in accordance with Islamic law because the conditions for the validity of the ijarah contract have not been fulfilled, which is due to violations committed by the tenant against the object of the lease in the form of damage to the building that appears.
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Wu, Xiaoling, Yichen Peng, Xiaofeng Liu y Jing Zhou. "Validity of generalized compensation contract for PPP project with consideration of private fair reference depending on concession profit". China Finance Review International 8, n.º 1 (19 de febrero de 2018): 43–68. http://dx.doi.org/10.1108/cfri-06-2016-0071.
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Purpose The purpose of this paper is to analyze the effects of private investor's fair preference on the governmental compensation mechanism based on the uncertainty of income for the public-private-partnership (PPP) project. Design/methodology/approach Based on the governmental dilemma for the compensation of PPP project, a generalized compensation contract is designed by the combination of compensation before the event and compensation after the event. Then the private investor's claimed concession profit is taken as its fair reference point according to the idea of the BO model, and its fair utility function is established by improving the FS model. Thus the master-slave counter measure game is applied to conduct the behavior modeling for the governmental compensation contract design. Findings By analyzing the model given in this paper, some conclusions are obtained. First, the governmental optimal compensation contract is fair incentive for the private investor. Second, the private fair preference is not intuitively positive or negative related to the social efficiency of compensation. Only under some given conditions, the correlation will show the consistent effect. Third, the private fair behavior’s impact on the efficiency of compensation will become lower and lower as the social cost of compensation reduces. Fourth, the governmental effective compensation scheme should be carried out based on the different comparison scene of the private claimed portfolio profit and the expected revenue for the project. Originality/value This study analyzes the effects of private investor's fair preference on the validity of governmental generalized compensation contract of the PPP project for the first time; and the governmental generalized compensation contract designed in this study is a pioneering and exploratory attempt.
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Anisimov, E. N. "Deposit of Funds as Security for the Execution of a Government (municipal) Contract by a Third Party". Juridical science and practice 18, n.º 2 (13 de octubre de 2022): 33–36. http://dx.doi.org/10.25205/2542-0410-2022-18-2-33-36.
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This article discusses the legal model in which the deposit of funds as a security for the performance of the contract is carried out by another third party instead of the procurement participant. The article provides a legal assessment of the situation in which a participant in a procurement, conducted in accordance with the procedure and under the conditions established by Federal Law No. 44-FZ dd. 05. 04. 2013, imposes the obligation to pay for the performance of the contract on a third party. For objective consideration of the issue, the author considers the practice of regulatory authorities and arbitration courts, and makes conclusions about the validity of such payment based on a systematic interpretation of the law.
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Borsuk, N. y P. Kikot. "Busines legal regulation of the contractual use of intellectual property objects". Uzhhorod National University Herald. Series: Law 1, n.º 75 (22 de marzo de 2023): 155–60. http://dx.doi.org/10.24144/2307-3322.2022.75.1.25.
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The article examines the peculiarities of legal regulation of contractual relations on the use of intellectual property objects in the field of business. It has been proven that the importance of the civil law regulation of these relations in the norms of the Economic Code of Ukraine is slightly underestimated. The legal regulation of relations on the contractual use of intellectual property objects by economic norms and norms of civil legislation complex. The issue of concluding a contract is ensured by the norms of economic legislation, and the legal status of the creator (or other person who owns property rights to intellectual property) and the legal regime of the object of intellectual property is regulated by the norms of civil legislation.
Differences in the provisions of economic legislation and the norms of special laws regarding the form of contracts on the transfer of rights to use an intellectual property object were revealed. In special legislation, the written form is defined as a condition for the validity of the contract; the consequences of violation of this condition are defined in the norms of the Civil Code of Ukraine - non-compliance with the written form leads to the invalidity of these contracts.
A number of factors affecting the content of business contracts on granting the right to use intellectual property objects have been determined. These factors are enshrined in the norms of economic and civil legislation, in particular in special laws that determine the legal regime of individual objects of intellectual property. The value of exemplary and standard contracts for the legal regulation of the use of intellectual property objects on the basis of the contract has been revealed.
Based on the analysis of the requirements of economic and civil legislation, a list of essential conditions of the economic agreement on the transfer of intellectual property objects for use has been determined. It has been proven that the essential conditions of such an agreement are the conditions on the subject, on the terms, on the methods of using the object of intellectual property, on the territory to which the right to use the object of intellectual property is extended, as well as any conditions in respect of which the requirements at least. one of the parties to the contract must reach an agreement.
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Mohamed Saleh, Et al. "Digital Transformation and Smart Property Contracts Registration in Egypt Using Blockchain Technology". International Journal on Recent and Innovation Trends in Computing and Communication 11, n.º 9 (5 de noviembre de 2023): 2332–41. http://dx.doi.org/10.17762/ijritcc.v11i9.9241.
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In recent times, an increasing fascination with cryptographic-based blockchain technology has emerged. Blockchain is a decentralized, distributed database functioning as a comprehensive ledger for storing, timestamping, and encrypting data. Comprising interconnected blocks, this technology is openly accessible and immutable. Smart Property Contract registration are self-executing contracts that are subject to the terms of the agreement between the seller and the buyer. The contract defines the pre-programmed contractual rules so that they are executed when the input data meets the mentioned conditions between the two parties. Smart Property Contract Registration are written in one of the programming languages such as AssemblyScript, JavaScript, and Solidity. Blockchain technology and Smart Property Contract Registration can play a vital role in Property and smart cities in the future. The core aim of this thesis is to design a proposed model for registering Smart Property Contract Registration in Egyptian Egyptian Property Registry Office and solve the traditional registration problem of slow registration and high cost and insecure. The proposed model was proposed and implemented on the NEAR platform. Egyptian Property registration system was built using programming code for Smart Property Contract Registration written in a high-level language such as AssemblyScript and HTML, JS, and React Js programming code, and also present research uses a questionnaire study to ensure the validity of the proposed model. We conducted a questionnaire by asking a set of questions to those interested in the subject of blockchain and Smart Property Contract Registrations. The result showed that the adoption of blockchain technology in Egypt will be beneficial in terms of easy access to Property transactions in a quick time, reliability, and cost reduction.
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Anggraeny, Isdian y Wardah Dinnar Rahmadanti. "The Legality Issue of the Financing Contract at the Sharia Rural Banks (BPRS) and the Solution in Sharia Agreement Law Perspective". Jurnal Magister Hukum Udayana (Udayana Master Law Journal) 9, n.º 3 (19 de noviembre de 2020): 646. http://dx.doi.org/10.24843/jmhu.2020.v09.i03.p14.
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Sharia-based financing institutions are currently experiencing developments in the financial industry. Sharia financing provided by the BPRS is one of the ways that can be used by the community to meet their daily needs or manage their business. The use of financing certainly has the risk of default and execution of collateral which of course will be detrimental to the creditors (BPRS). Various financing problems are generally caused by the financing process that does not pay attention to legal provisions, especially sharia contract law and guarantee law. Taking the theme: "Issues on the Legality of the Financing Contract at BPRS and its solution in the Perspective of Agreement Law", this paper will examine two problems, namely: First, reviewing the validity of the Sharia financing contract at BPRS based on the Sharia Economic Law Compilation; and second, reviewing and finding the efforts that should be made by the BPRS so that the sharia financing contract meets the pillars and conditions of the contract in the Sharia Economic Law Compilation. This study uses a normative juridical research method with a statutory approach method, concepts, and cases. Through this method, the following findings were obtained: First, the problem of sharia financing in BPRS Syariah lies in the non-fulfillment of the Rukun and the terms of the sharia contract in some of its financing contracts which are dominated by carelessness in applying the legal principles of financing and SOPs that have been made. Second, the BPRS and its Customers must pay attention to and understand the elements of the fulfillment of the pillars and terms of the contract in the financing contract against the rules contained in the Sharia Economic Law Compilation.
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Iakubovych, I. "WAREHOUSE STORAGE OF GRAIN CONTRACT: ITS CONCEPT AND SPECIFICS". Bulletin of Taras Shevchenko National University of Kyiv. Legal Studies, n.º 113 (2020): 71–75. http://dx.doi.org/10.17721/1728-2195/2020/2.113-14.
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The Law of Ukraine "On Grain and the Grain Market in Ukraine" of 4 July 2002 defines grain as the fruits of cereals, legumes and oilseeds used for food, seed, fodder and technical purposes. Peculiarities of grain as a valuable agricultural raw material determine the peculiarities of its storage, which affects the specifics of legal regulation in this area. The article clarifies the characteristics of a grain storage contract, substantiates the list of its essential conditions, examines the legal nature and features of grain storage documents, identifies shortcomings in the legal regulation and execution of grain storage contracts, and substantiates proposals to eliminate them. It is established that the legal nature of the contract of warehouse storage of grain is manifested in the following: it is a contract for the provision of services; it is a public contract; it is a written contract; it is a bilateral contract; as a rule, it is a retaliatory contract; it is a fixed-term contract; it is a real contract; concluded in a special order; it is a contract of accession. The article proves that the essential terms of the grain storage contract are: the subject matter of the contract (grain storage services with preservation of its quality and prevention of losses above natural); the object of the contract (grain of a certain type, class, quantity, which is defined in the contract of grain storage); the term of the contract (with an indication of a certain period of time or without specifying the one that determines the validity of the contract to the first claim of the pledgor). In order to simplify the circulation of grain storage documents and reduce the level of abuse in the grain market, it is proposed to amend Article 961 of the Civil Code of Ukraine, the Law of Ukraine "On Grain and Grain Market in Ukraine" and the Law of Ukraine "On Certified Warehouses and Simple and Double Warehouse Certificates" in order to provide the legal possibility of issuing warehouse certificates in electronic form. Keywords: a double warehouse certificate; grain; grain storage; a grain storage contract; grain storage documents; a simple warehouse certificate; a warehouse receipt.