Literatura académica sobre el tema "Contractual preservation"

Author in the article analyses unified conflict rules in international treaties of the Russian Federation in relation to the conflict rules’ mechanism of the Civil Code of the Russian Federation in determining applicable law to contractual obligations. Based on international treaties which contained conflict rules for contractual obligations author concludes that exclusively in relations among state parties of the Commonwealth of Independent States is applied a conflict rule based on an archaic lex loci contractus. At the same time article 1211 of the Civil Code of the Russian Federation and unified conflict rules of international treaties with states other than CIS’s parties based on contemporary and effective characteristic performance theory. The preservation of the lex loci contractus rule seems to be a conscious course of the post-Soviet states.

Abstract: Civil acts and scholars do not deal with the definition of contractual clause. We can have two different meanings for it. According to a formal definition, a clause is any part of a contract. According to a substantial definition, a clause is any statement that produces a legal effect. As explained in the text, the substantial definition is to be preferred: it allows us to face the problem of partial nullity and contract preservation.

AbstractThe paper critically discusses the deontological interpretation of Hobbesian contractual obligation which has been advocated by commentators such as Brian Barry, D. D. Raphael and Bernd Ludwig. According to this interpretation, the obligation to comply with contracts and covenants is fundamentally different from the obligation to observe the laws of nature. While the latter is taken to be a prudential obligation that is logically dependent upon the individual aim of self-preservation, the former is viewed as an absolute or unconditional moral obligation that solely follows from the fact that the individual has bound himself to the performance or omission of certain actions. As can be shown, the deontological interpretation suffers from inherent problems and does not provide an appropriate interpretation of the Hobbesian texts. In particular, it can be demonstrated that the attempt to use Hobbes's concept of 'freedom as deliberation' in order to explain how obligations arise from contractual agreements faces serious difficulties.

Virtual environments, such as Second Life, have assumed an increasingly important role in popular culture, education and research. Unfortunately, we have almost no practical experience in how to preserve these highly dynamic, interactive information resources. This article reports on research by the National Digital Information Infrastructure for Preservation Program (NDIIPP)-funded Preserving Virtual Worlds project, which examines the issues that arise when attempting to archive regions from Second Life. Intellectual property and contractual issues can raise significant impediments to the creation of an archival information package for these environments, as can the technical design of the worlds themselves. We discuss the implication of these impediments for distributed models of preservation, such as NDIIPP.

AbstractThis paper argues that throughout his intellectual career, Hobbes remains unsatisfied with his own attempts at proving the invariant advisability of contract-keeping. Not only does he see himself forced to abandon his early idea that contractual obligation is a matter of physical laws. He also develops and retains doubts concerning its theoretical successor, the doctrine that the obligatoriness characteristic of contracts is the interest in self-preservation in alliance with instrumental reason – i.e. prudence. In fact, it is during his work on Leviathan that Hobbes notes the doctrine's main shortcoming, namely the limitation of its dialectical potential to cases in which contract-breakers are publicly identifiable. This essay shows Hobbes's doubts about his Leviathan's treatment of contractual obligation by way of a close reading of its central 15 th chapter and an analysis of some revealing shifts between the English Leviathan and the (later) Latin edition. The paper ends by suggesting that Hobbes's awareness of the flaws at the heart of his political philosophy helps account for some striking changes in his latest writings.

This paper critically evaluates the contractual theories of companies and company law which have risen to prominence in recent years. It argues that history reveals as misguided the attempt to depict public companies as essentially contractual in nature, one of the most striking features of the development in nineteenth century Britain of the first body of (joint stock) company law having been its gradual move away from the principles of agency and contract underlying the law of partnership from which it emerged. Against this backdrop, the paper moves on to explore the ways in which theorists have tried, against the odds, to characterise public Companies as contractual and the reasons for their attempting to do so. While it might be apposite to view many private or closely held companies through the prism of contract, the paper argues, public companies and much of company law itself can only properly be understood when viewed through the prism of financial property. Indeed, it suggests, this is implicitly confirmed by the Company Law Review and (paradoxically) by the recent work of corporate governance specialists and financial economists in the US, with its focus on investor protection and the preservation of financial property's integrity, and its emphasis on the crucial role of (public) regulation in these processes. The paper concludes that these property forms are not merely the objects, but the products of regulation and that this has important implications for our understanding of both company law and corporate governance. In making these arguments, it seeks to cast some light on the nature of intangible property, on the differences between contract-based and property-based rights, on the neo-liberal idea of ‘deregulation’, and on the unity and scope of company law as a legal category.

Directive 2011/83 on consumer rights is a case of misleading advertising. Despite its grand title, it is little more than an up-dating of the Directives on doorstep and distant selling which also re-casts them as measures of maximum, not minimum, harmonization. The real interest lies in why the Directive is such a mouse. And this story tells of political resistance to the Commission's original plan to convert also the far more significant Directives on unfair terms and consumer sales to the maximum model. This vertical shift in regulatory responsibility, driven by an aggressive rhetoric of improving "coherence" in harmonized EU contract law, was firmly rejected, with the result that the finally adopted text is stripped of any depth of ambition. Consequently Directive 2011/83 on consumer rights is not without interest for its choice of detailed regulatory technique, explored in this paper, which focuses on pre-contractual information disclosure, post-agreement rights of withdrawal and limited aspects of contractual performance. But much more so, it reveals the contested heart of the EU's internal market project - coherence achieved by suppression of national regulatory competence (unity) or preservation of regulatory experimentation and local autonomy (diversity). The making of Directive 2011/83 demonstrates political readiness to shield the latter from the Commission's current predilection for the former.

This paper evaluates how the revised BIMCO Crew Change Clause 2020 affected crew health during this period. To satisfy the need for specific clauses, regulating the contractual relationships during the COVID-19 period, BIMCO created sets of clauses, such as the BIMCO Crew Change Clauses for Time Charter Parties (2020). The rationale of those clauses was based upon the pre-existing BIMCO Infectious or Contagious Diseases Clause for Voyage and Time Charter Parties 2015, but it was evidenced that the COVID-19 virus had many intricacies. Thus, new sets of rules are presently emerging to eliminate the gaps created. The basic downside of this legislation and the focus of this paper is to prove that these clauses are focused only on regulating the contractual relationship, without actually taking into consideration the crews’ health and safety.The analysis is focused on the impact of a COVID-19 incident on four specific legal aspects, i.e. i) vessels’ seaworthiness, ii) charter parties, iii) port safety, and iv) refusal of orders. There is also an analysis of the imminent Decease Clause 2021 and its actual impact upon the shipping industry. The analysis of the relevant legislation is based on legal doctrine, dominant form in legal research, aiming to provide a systematic exposition of the legal and regulatory principles. It analyzes the relationship between those principles to provide clarifications, utilizing legislation and relevant case law as the primary source of data. This research method is qualitative and is very similar to critical analysis, whose application is performed through (a) research and description of the existing legislation, (b) prescription, whose essence is to explore the statutory framework, locate the critical points, and assess the effectiveness of legislation on protecting the crew health and safety, and (c) evaluation of possible amendments or additions.The majority of studies conclude that shipping companies will be able to protect crew health and safety only through proactive measures and due diligence. The revised BIMCO terms on crew changes during Covid-19 and the new Disease Clause 2021 sadly did not have crew protection as their top priority. In most parts they tried to allocate and even mitigate the risk of the contracting parties, providing “windows” of opportunity for both sides to be excepted from any liability. Based on the analysis of resources, the new clause is not engaging the concept of proactive measures, unquestionably the most important method for the preservation of crew health usually referred to as “exercising due diligence”. It is a fact that BIMCO protects the clients’ interests, with the clients being the charter parties. It is also valid that the shipping industry supported the nations during the COVID-19 outbreak, but the BIMCO clauses were concentrated on the preservation of contractual relationships, leaving the concept of crew health and safety uncharted.

The rule ignorantia juris non excusat constitutes a historical principle in Spanish law as a key pillar of the collective organization of the legal system. The rule embodies the assumption that the effectiveness of the laws cannot rely on subjective elements, such as knowledge or ignorance, interest or carelessness, but it is based on an objective and social component of the legal system aimed to ensure that the enforcement of the laws is general and unconditional. Today, it is still inspiring the legal system and expressly enshrined in Article 6.1 CC, but their meaning must be duly contextualized in the current exuberance of legislation and regulations. Last decades, continuous efforts have been made to enhance the publicity of laws, improve comprehensibility, and implement technological solutions aimed to ensure accessibility of legislation, case law, and public authorities’ decisions. This article traces the origin and the evolution of the principle in Spanish law and the current expressions and applications of legal ignorance in private law. The analysis of the state of the doctrinal debate and the latest case law invites two reflections. First, the excessive use of legal ignorance as an invalidating mistake as a tool to alleviate contractual unfairness, inadequate institutional practices, or commercial abuse blurs its contours, debilitates the principle of contract preservation, deteriorates legal certainty, and discourages transactions. Second, the regulation of increasing information duties as a strategy to attenuate the impact of legal ignorance is making preand contractual processes complex, overinformed, and formalistic, with the risk of inviting purely formal compliance.

Abstract This proposal aims at analyzing the Italian initiative “Case a 1 €” launched in 2009 for the preservation of abandoned goods, in Gangi, a small village near Palermo. The Municipality has put for sale the ruined houses for the symbolic prize of 1 €. As this initiative has been imitated by other municipalities in Italy and thus become a model, my intention is to explore how it works based on two different levels of investigation, in terms of: 1) contractual schemes (parties and respective rights and obligations) and 2) policy choices, comparing proposed and achieved goals by the administrations and the parties. Some relevant issues arise after 12 years: is the initiative an appropriate answer for the management of abandoned properties, both private and public? Is it an effective instrument to undermine the idea that such properties are a burden? Can they become a resource for collective, social and economic development? Is it a model to regain cultural identity revitalizing the small, abandoned centers, promoting inclusion, participation and environmental sustainability? I will use both inductive and deductive methods, examining and comparing some case studies in Sicily, among those municipalities that adopted this policy (Cammarata, Sambuca, Gangi, Itala, Salemi, Regalbuto, Mussomeli and Saponara). In order to investigate level 1), I will identify the contractual frames and documents provided online by the Municipalities administrations. To find answers on level 2), I will analyze (when available) the number of goods transferred from private parties to Municipalities and of those finally assigned to the final buyer. I will interview the administration’s civil servants and the final buyers to understand if their expectations (private and collective) have been satisfied.

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The contract, after all, is a link that, of a side, puts the value of the individual as that one that creates it, but, of another side, it establishes the society as the place where the contract goes to be executed and where it goes to receive a reason from balance and measure (Reale, 1986). This the new contract conception. For such reasons, it is that the possibility of the judicial revision of contractual the legal transaction has been admitted modernly, substituting it volitional declaration of the contractors for the state will, with sights to the business balance and its feasibility.
O contrato, afinal, é um elo que, de um lado, põe o valor do indivíduo como aquele que o cria, mas, de outro lado, estabelece a sociedade como o lugar onde o contrato vai ser executado e onde vai receber uma razão de equilíbrio e medida (Reale, 1986). Essa a nova concepção de contrato. Por tais razões, é que se tem admitido modernamente a possibilidade da revisão judicial do negócio jurídico contratual, substituindo-se a declaração volitiva dos contratantes pela vontade estatal, com vistas ao equilíbrio negocial e sua exeqüibilidade.

A l’aune d’une réforme du droit des obligations, et alors que les relations contractuelles se complexifient et ont vocation à durer, le contrat a parfois besoin d’être protégé. Le respect de la parole donnée par les contractants, en raison de la confiance que les parties se sont mutuellement accordées, n’est pas toujours chose aisée pour les parties et un risque d’extinction du contrat sans satisfaction pèse sur les parties. La nullité du contrat, pour défaut de validité, mais surtout les risques d’inexécution, qui peuvent conduire à la résolution ou à la caducité du contrat, menacent l’existence du contrat qui doit pouvoir être sauvé. Une telle survie du contrat, qui a vocation à permettre la réalisation de l’objectif contractuel, est envisageable par la mise en place de remèdes aux défaillances du contrat et, plus généralement, de traitements en cas de risques d’inexécution. Ce droit des remèdes, déjà présent en droit positif, doit pouvoir être étendu, par une systématisation de la survie, qu’il est possible d’intégrer dans une conception renouvelée du contrat.Pour cela, il est indispensable qu’une obligation préexistante dont l’exécution est possible soit maintenue, afin de dépasser la menace d’inexécution. Ce préalable posé, une application extensive destinée à préserver la satisfaction du créancier est envisageable. De la période précontractuelle à l’extinction intégrale des obligations, autrement dit, le droit à l’exécution mais également la protection des obligations post-contractuelles une survie doit pouvoir être mise en place. Mais à quel prix ? La systématisation de la survie du contrat doit permettre de fixer les limites du mécanisme. Puisque les difficultés d’exécution doivent pouvoir être traitées par une modification, par une atteinte à l’intangibilité du contrat. Or, cette atteinte est parfois synonyme de protection de la force obligatoire et de la sécurité juridique des contractants. La loyauté et la bonne foi imposent parfois certains abandons au créancier, mais permettront la réalisation de l’objectif contractuel. Toutefois, des garde-fous doivent être intégrés pour préserver les intérêts d’un créancier, qui n’a pas à subir indéfiniment la situation contractuelle douloureuse
From a reform of law of obligations standpoint, and while contractual relationships become evermore complex and are meant to last, the contract may need to be protected. Respect for the word given by the contractors, due to the trust that the parties have mutually granted, is not always an easy task for the parties, who may see the contract be extinguished without any satisfaction.The nullity of the contract, by way of invalidity, but especially the risk of default, which can lead to the resolution or the lapse of the contract, threatens the existence of the contract that must be saved. Such survival of the contract, which is intended to enable the achievement of the contractual objective, is foreseen by implementing remedies for the deficiencies of the contract and, more generally, the risk of treatment failure. This right to remedies, already present in positive law, must be extended by a systematization of survival so that it may be possible to integrate a remedy into a new version of the contract.For this, it is essential that preexisting obligation, for which execution is possible, be maintained in order to overcome the threat of default. This prior condition, extensively applied and designed to preserve the satisfaction of the creditor, is possible. From the pre-contractual period to full termination of obligations, including post contractual obligations, through the preservation of the execution, then survival is possible. But at what price?The systemization of contract survival can fix the limits of the mechanism. Implementation difficulties must be addressed by a change, for a breach of the inviolability of the contract, but this achievement is sometimes synonymous with protection of binding and legal security contractors. Loyalty and good faith sometimes provide some ways out for the creditor, but will achieve the contractual objective. However, limits should be incorporated to protect the interests of creditors, whom should not have to endure the painful contractual situation

Lo studio della nullità di protezione prevista dall'art. 36 cod. cons. offre lo spunto per riflettere sul grado di effettività del rimedio, quando l'invalidità colpisce una clausola essenziale per il rapporto. A ben vedere, infatti, un sistema di soppressione delle clausole abusive basato sulla semplice nullità parziale necessaria non appare sempre in grado di realizzare efficacemente l'obiettivo di protezione del contraente debole. Ove a essere eliminata sia una clausola essenziale o un gran numero di clausole, il rischio, per il consumatore, è che la nullità si estenda a contagiare l'intero contratto, lasciandolo privo di protezione e obbligandolo, anzi, alle conseguenti restituzioni. Per questi motivi, il presente lavoro intende indagare quali siano le conseguenze del vuoto contrattuale determinato dall'operare della nullità parziale necessaria, stabilendo di quali poteri disponga il giudice per gestire la lacuna sopravvenuta. A tal fine, lo studio si concentra sull'analisi dei principali meccanismi di modificazione integrativa o correttiva del contratto, funzionali ad assicurarne la conservazione. Attraverso l'indagine prospettata, è così possibile cogliere l'attuale stadio di evoluzione del rimedio della nullità di protezione nel nostro ordinamento, nella consapevolezza che, nel delicato rapporto tra sindacato del giudice e autonomia privata, quest'ultima deve concorrere ad assicurare un equo assetto di tutti gli interessi. The study of protective nullity, provided for art. 36 of the Consumer Code, gives the opportunity to reflect upon the grade of effectiveness of this remedy, when invalidity refers to a core clause of the contract. Ultimately, a system that voids abusive clauses, as a result of a nullity which is necessary partial, does not seem to achieve the purpose of protecting the weak contractual partner. When it is voided a core clause or a large number of clauses, the consumer risks to see that the nullity extends to all the agreement, remaining without protection and having to face to the consequent contractual drawbacks. For these reasons, the present research aims to examine the consequences of the contractual lack produced by the protective nullity, providing which are the judicial powers to manage that void. In connection with this purpose, the study analyzes the main instrument of contractual adjustment, in order to incorporate or correct it, so that it can be preserved. By means this research, it is possible to highlight the current stage of development of protective nullity in our legal system, in the awareness that, with reference to the complex relationship between judicial powers and contractual freedom, the latter must cooperate to ensure a fair balance among all the interests.

This thesis discusses the limits of statute of contractual obligations solely from the perspective of conflict of law rules. It is based primarily on the analysis of national conflict of law rules contained in Act No. 91/2012 Coll., On Private International Law. There are also analyzed relevant standards of the European Parliament and Council Regulation (EC) No. 593/2008 on the law applicable to contractual obligations (Rome I) and conflict of law rules in the German Initial Act to the Civil Code, as well as in the Swiss Act on Private International Law. The primary hypothesis of this work is the concept of a single contractual statute, which governes contractual relationship since the early beginning to the end. The secondary hypothesis follows the departure of German international private law from the principle of seat for the principle of incorporation. Another hypothesis explores the safeguarding of property rights once acquired, if the substantive legal facts are in the mode of the original substantive statute closed that no means no and yes means yes, but ... This work also examines the question of whether the European legislator through the unification of rules of conflict of law removed the deficiencies that resulted from the application of autonomous national conflict of law rules or...

This chapter observes two trends: the rise of the digital marketplace as the result of technological development and the decline of ownership due to aggressive intellectual property laws, restrictive contractual provisions and technological locks. Admittedly, the market offers consumers a choice between ownership and more conditional, impermanent access to goods, but because of the asymmetric information possessed by consumers and retailers or IP rights holders, consumers frequently cannot make informed decisions. This leads to the loss of control over the goods they purchase; more importantly, the lack of ownership rights has serious implications for cultural preservation, innovation and consumer autonomy. The rest of the book unfolds by detailing how consumers and IP rights holders contend for control over physical and digital goods in various areas.

When the initial generation of U.S. municipal waste combustor (WTE) facilities was developed during the 1980s and early 1990s, the only tools that were included in the service agreement to deal with a contract operator that was not meeting the contract terms was either dispute resolution or default and termination. After 20 years of administering these service agreements, those two provisions have proved inadequate for publicly owned WTE facilities particularly as it relates to ongoing maintenance. Additional provisions have recently been developed and incorporated into the next generation of service agreements to address this need. Contract operators of publicly owned WTE facilities typically focus their attention on facility performance and less on long-term facility asset preservation, especially for the portions of the facility that are not critical to production. If a contract operator is meeting all of its performance guarantees, but is falling behind on the general upkeep of facility buildings and/or infrastructure, owners will likely not invest the time and money in dispute resolution to try to get those items repaired. Additionally, neglect of those items does not rise to the level that the operator can be defaulted and terminated. As a result, conditions generally deteriorate to the point where the relations between the owner and contract operator are adversely affected. If the deferral of maintenance continues until the end of the service agreement term, the public owner will be faced with added capital costs and/or increased operating costs under a new service agreement for items that he already paid the previous operator for. This paper describes the new contractual provisions that have been developed in the latest generation of service agreements aimed at helping public owners of WTE facilities resolve these types of problems at minimal cost. Instead of only having the “nuclear weapons” (e.g., formal—and expensive—dispute resolution or default and termination), a series of mechanisms have been developed that provide owners with some “small arms weapons” to assure that the timely and proper maintenance is performed on all aspects of the WTE facility, thereby assuring its long-term preservation. This paper also sets forth case studies of three WTE facilities in the Tampa Bay, Florida area where these latest contractual provisions are being implemented and the results to date.

The legal norms with postponed applicability, which regulate the situations that will occur pro futuro, fall within the category of conditional legal norms and constitute the content of the conditional law. Unlike conditional legal norms, with clearly defined date of application, there are others, which are the subject of an analysis in the article, for which there is absolute uncertainty whether they will be applied or, at least, when their application will begin. The reason for this is that the possibility for their implementation is related to the occurrence of a certain event, i.e., to the membership of Serbia in the European Union. As application of conditional service law relates to the emergence of a future uncertain circumstance, author analyzes its meaning and purpose. General considerations are followed by the conditional rules laid down for regulated professions, due to the importance they have for the creation and preservation of social infrastructure. Consenquently, author points out the rules that set the framework for performing regulated professions, i.e., the rules on pre-contractual notification of service users, business communications and provision of mixed services.