Articles de revues : « Pre-contractual stage »

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CRETU, Georgeta, et 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 décembre 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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Demkina, Alesya V. « FUNDAMENTALS OF THE THEORY OF PRE-CONTRACTUAL LIABILITY ». Vestnik Tomskogo gosudarstvennogo universiteta. Pravo, n^o 40 (2021) : 148–61. http://dx.doi.org/10.17223/22253513/40/13.

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The article deals with the relatively new rules of Art. 434.1 the Civil Code of the Russian Federation on the conduct of negotiations. Taking into account the current wording of the said rule and the experience of foreign legislation on pre-contractual liability, the article argues for different theories justifying the nature of pre-contractual legal relations and liability and gives different positions of the authors on this issue. Proceeding from the doctrinal concept of obligation and characteristics of pre-contractual relations themselves the conclusion is made that these relations, firstly, are regulated by law and, secondly, they are not simply a legal relation but an obligation. It is based on certain actions of the negotiating partners that give rise to such an obliga-tion. As such, any action that is sufficiently certain (in some cases it may be required by law) and expresses the intention of the person to regard himself as negotiating with the addressee, who will in return perform the same sufficiently certain action, can be regarded as such. The specified characteristics of an action allow us to conclude that, from the point of view of classification of legal facts, this action is an act (because it is performed with a certain in-tention evident to other participants of civil turnover) and, moreover, it is also a transaction. Special rules of the Civil Code of the Russian Federation stipulate that the actions performed to enter into negotiations (for example, if the conclusion of a contract is binding on one party) or the actions of both partners entail legal consequences - the obligation to negotiate in good faith. The analysis of these legal relationships identifies three stages in their development, charac-terises them and attempts to answer more precisely the question of who can be a participant in the negotiation process depending on the stage of the negotiation process. The subject matter of an obligation arising during pre-contractual contacts will be actions aimed at negotiating and concluding a contract. The content of the obligation arising in the course of pre-contractual contacts, based on Art. 434.1 of the Civil Code will be the obligation to negotiate in good faith (paragraph 2 of the above rule). Assuming that the legislator provides an indicative list of actions that should fall within the scope of bad faith conduct, an indicative list of the "standard" of good faith conduct at the negotiation stage is given. This includes the obligation to provide full and truthful information to a party, including the reporting of circumstances that, due to the nature of the contract, must be brought to the attention of the other party (e.g. in a sale, all encumbrances on the subject of the contract must be reported). In addition, persons are obliged to negotiate only if they intend to conclude a contract, not to terminate negotiations suddenly and unjustifiably, and to take into account the rights and legitimate interests of the other party to the negotiation. The obligation under this obligation may also include a requirement not to disclose infor-mation obtained during the negotiation of the contract.

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VASIN, Leonid A., et Vitalii A. STARUKHIN. « Managing transaction costs in company's contractual work ». Finance and Credit 28, n^o 8 (30 août 2022) : 1709–32. http://dx.doi.org/10.24891/fc.28.8.1709.

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Subject. The article considers the management of company's transaction costs arising during contracting activities. Objectives. On the basis of standardization and digitalization of business processes, we aim at developing a model to manage the costs of contractual work by identifying and measuring them at the pre-contractual, contractual, and post-contractual stage of relations with parties to the transaction. Methods. The study draws on methods of logical analysis and synthesis. Results. The paper offers a model for managing the costs of contractual work. It rests on the elements of management impact on transaction costs at the stage of transaction planning, coordinating its parameters, and execution. To build the model, we systematized the main types of contracts, depending on commercial relations of the parties, structured our own approaches to the classification of transaction costs, identified factors that determine their dynamic nature. Conclusions. If used at all stages of company's contractual work through standardization and digitalization tools, the model for transaction cost management enables to reduce the weight of such costs in company's expenses. This correlates with the goals of corporate governance, acting as a basis for the effectiveness of the entire business system.

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Boyarinova, V. I. « The Obligation to Conduct Negotiations in Good Faith on the Conclusion of a Contract as an Element of the Content of a Pre-Contractual Legal Relationship ». Juridical science and practice 17, n^o 2 (18 octobre 2021) : 35–44. http://dx.doi.org/10.25205/2542-0410-2021-17-2-35-44.

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The article discusses the issue of the content of the pre-contractual legal relationship and the role of good faith in it. As a result of the analysis, it is concluded that the content of the pre-contractual legal relationship includes only one pre-contractual obligation – to negotiate in good faith. It should be considered as a duty that includes separate elements – manifestations of the general obligation of the parties to behave in good faith, arising at the pre-contractual stage, or, in other words, requirements for good behavior. These elements include the obligation to inform; the obligation not to interrupt negotiations without giving reasons if the other party relied on the person's intention to conclude a contract; the obligation to keep the information received in confidentiality if the party knows that the information is secret and cannot be used by third parties. An attempt has been made to prove that the meaning of good faith is not in addition to the pre-contractual obligation, but in its specification.

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Муратова, Ольга, et Olga Muratova. « PRE-CONTRACTUAL RELATIONS IN INTERNATIONAL COMMERCIAL TURNOVER : SPECIFICITY AND TENDENCIES OF LEGAL REGULATION ». Journal of Foreign Legislation and Comparative Law 3, n^o 3 (10 juillet 2017) : 69–76. http://dx.doi.org/10.12737/article_593fc343b94613.23365582.

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The article is devoted to analysis of specifics and trends of legal regulation of pre-contractual relations in international commercial turnover. The emergence of disputes arising from pre-contractual relations, the recognition of the doctrine of culpa in contrahendo, which appeared in the late nineteenth century and helped to establish the Institute that meets the needs of the international commercial turnover in the XXI century. The determining factor in the formation of the new Institute of pre-contractual relations of the Russian civil law are the successes of the foreign national codifications of private law and the unification of international private law in the European Union in the framework of non-governmental organizations: International Institute for the Unification of Private Law (UNIDROIT), the Hague conference on private international law, etc. These achievements prefaced the inclusion in the civil code provisions on pre-contractual relations by putting the question of formal recognition of their existence as an independent Institute of the civil law on the legal consequences occurring as the result of unfair behavior at the pre-contractual stage. The author also draws attention to the complexity of the recognition of those or other actions of potential contractors of the existence of pre-contractual relations, which raises the question of whether their formalization through written fixation. In addition, the author considers the problem of implementation in the Russian legislation the principle of autonomy of will of parties to select the law applicable to pre-contractual relations. At the end the author comes to a conclusion that the most suited to modern commercial reality is an approach, according to which the principle of autonomy of will of the parties is a fundamental criterion for determining the law applicable to pre-contractual relations. The choice of such rights must be granted to the parties pre-contractual relations, as the conclusion of the main contract or after its conclusion (for example, if you have any pre-contractual dispute).

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Kipli, Kumalasari, Fara Diva Mustapa, Shariffah Zatil Hidayah Syed Jamaluddin et Favilla Zaini. « KNOWLEDGE MANAGEMENT PROCESS IMPLEMENTATION IN PRIVATE FINANCE INITIATIVE PROJECT IN MALAYSIA ». Journal of Information System and Technology Management 6, n^o 24 (1 décembre 2021) : 109–17. http://dx.doi.org/10.35631/jistm.624011.

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PFI involved a project with long-term relationships at various stages from pre-contract stage to contractual stage and in use stage which also include maintenance stage. KM process is one of the elements to ensure the success of the KM system. In the PFI project, the KM process also needs to be checked whether it is applied in the various stage of the pre-contract stages. Questionnaires had been distributed to the parties involved at the pre-contract stage. The results are then analyse using the Relative Important Index (RII) to identify the ranking of KM usage in various stages of the pre-contract stage. According to the analysis, some of the stages in the pre-contract process of the PFI are not fully implemented in the KM process. For knowledge acquisition and storage practise, the high usage of the process is at the conduct of value management, submission to cabinet and access, evaluation, and approval. The next KM process which is capturing and storing, the process evaluation, negotiation and recommend are the activities at the higher level practising these KM processes. At next KM process which is re-using and sharing are Access and approval by the ministry, evaluation, negotiate and recommend practise more on this KM process.

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Ṭḯrlea, Mariana Rodica, et Agatador Mihaela Popescu. « Current Aspects Regarding the Crediting of Micro-Enterprises ». International conference KNOWLEDGE-BASED ORGANIZATION 26, n^o 2 (1 juin 2020) : 121–27. http://dx.doi.org/10.2478/kbo-2020-0063.

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AbstractThe IMM INVEST type of reimbursable financing is a top-up loan formula, materialized in the granting of bank loans granted to micro-enterprises under the national legislation applicable to investments and working capital. In order to benefit from this financing, the wishing companies must go through two stages: a pre-contractual stage in which the registration on the electronic platform created for this purpose takes place, in which the companies must prove that they fall into the category of micro-enterprises and the contractual stage. In order to meet the eligibility conditions in the contractual phase, micro-enterprises will be subject to the verification of administrative compliance and the techniques and methods for verifying financial soundness. Beneficiaries of such loans will benefit under the state aid scheme from various forms of government support materialized in supporting the costs of financing 100% from the state budget, until the end of 2020 with the possibility of extension, which will help them to re-launch itself from a financial and economic perspective.

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Kullolli, Dr Brunela. « Confidentiality - A Two-Appeal Principle ». European Journal of Social Sciences 1, n^o 3 (29 novembre 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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Hernoko, Agus Yudha. « ASAS PROPORSIONALITAS SEBAGAI LANDASAN PERTUKARAN HAK DAN KEWAJIBAN PARA PIHAK DALAM KONTRAK KOMERSIAL / The Principle Of Proportionality As The Basis Exchange Rights And Obligations Of The Parties In The Commercial Contract ». Jurnal Hukum dan Peradilan 5, n^o 3 (29 novembre 2016) : 447. http://dx.doi.org/10.25216/jhp.5.3.2016.447-466.

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Dalam kontrak komersial, perdebatan “semu” mengenai “keadilan dan keseimbangan” yang berujung pada “ketidakadilan dan ketidakseimbangan” posisi para kontraktan pada dasarnya tidak relevan lagi untuk diungkapkan. Hal ini didasari pertimbangan bahwa dalam kontrak komersial posisi para pihak diasumsikan setara, baik pada tahap proses negosiasi (pre-contractual phase), pembentukan kontrak (contractual phase) maupun pelaksanaan kontrak (post contractual phase). Sementara itu, hasil pertukaran kepentingan para kontraktan dianggap adil apabila berlangsung secara proporsional. Proporsionalitas pertukaran hak dan kewajiban dalam kontrak komersial tidak menuntut hasil yang selalu seimbang-sama (equilibrium-matematis), oleh karenanya perbedaan hasil dianggap adil dan diterima secara wajar apabila proses pertukaran hak dan kewajiban berlangsung proporsional. Penerapan asas proporsionalitas dalam seluruh mata rantai proses kontraktual pada dasarnya merupakan perwujudan doktrin “keadilan berkontrak” yang dianut dan dikembangkan dewasa ini. In commercial contracts, the debates about 'fairness and balance' that led to the 'injustice and imbalance' position of the parties basically irrelevant to be disclosed. It is based on the consideration that the positions of the parties in commercial contracts is similar on the stage of the negotiation process (pre-contractual phase), the formation of the contract (contractual phase) and the execution of the contract (post-contractual phase). Meanwhile, the results of the exchange of the interests of the parties considered fair if it lasts proportionally. The proportionality of exchange of rights and obligations undercommercial contracts do not demand results that are always balanced and same (equilibrium-mathematically), therefore the differences in the results are considered fair and reasonably acceptable if the exchange process of the rights and obligations stay proportional. Application of the principle of proportionality in the whole chain of contractual process is basically a manifestation of the doctrine of "fairness of contract" adopted and developed today.

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Davtyan, Tsolak Agasovich. « The ratio of will and expression of will in the issue of determining pre-contractual liability. » Юридические исследования, n^o 9 (septembre 2022) : 62–79. http://dx.doi.org/10.25136/2409-7136.2022.9.37973.

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The subject of the study is aspects of the institute culpa in contrahendo, embodied in the novels of the Gc 2015. The main purpose is to demonstrate the significance of the correlation of the will and the will of the parties (the object of the study) in determining pre-contractual liability (PO) in cases where the contract remains valid; an appropriate legal technique is given to explain the restoration of the legal situation in accordance with the concept of the desired agreement, understood as a coincidence of wills (common will). In this regard, it turns out that the norms of the domestic Civil Code, defining the responsibility of the party for culpa in contrahendo while maintaining the validity of the contract, are insufficiently elaborated. In this situation, the theoretical construction of the software turns out to be so similar to the liability caused by a legal relationship from a specific contract that it is possible to determine both the independent position of this institution and within the framework of contractual liability, but not tort. One of the conclusions to which this study comes is the assertion that the nature of the agreement is bound by the will of the parties until the framework of the contract-transaction, at the request of one of the parties (termination of the contract, invalidation of the transaction) is not disclosed in order to legally fix the agreement itself as a single legal relationship linking the pre-contractual and contractual stages of commitment. The article also provides specific proposals for unifying the scope of liability in the form of losses caused by unfair actions at the negotiation stage, in particular, in the case when the concluded contract is not disputed by the injured party (that is, when the norms of Articles 178 and 179 do not apply).

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Nahnybida, Volodymyr, Yurii Bilousov, Yaroslav Bliakharskyi, Ievgen Boiarskyi et Anatolii Ishchuk. « Trade agreements, digital development and international commercial arbitration ». Cuestiones Políticas 40, n^o 74 (25 octobre 2022) : 160–77. http://dx.doi.org/10.46398/cuestpol.4074.08.

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The purpose of the article was to study the problems that arise during the settlement of disputes in the order of international commercial arbitration. The article used general scientific (dialectic, analysis and synthesis) and special legal (comparative legal, formal-logical, systemic, hermeneutic, axiological) methods. In the results of the research, it was established that the characteristic features of electronic development contracts in international trade are: electronic forms of conclusion of pre-contractual and contractual communication, making amendments and additions to the contract. Taking into account the features that accompany the chosen form of contracting prevails the need to refer to the provisions of the applicable legislation on tax and customs legislation and protection of personal data, etc. The conclusions state that the main problems in the resolution of disputes arising from e-commerce contracts, in international commercial arbitration, are the issues of requirements and validity of the arbitration clauses contained in such contracts, the importance of the agreements reached in the pre-contractual stage in the subsequent resolution of disputes between the parties and the problems of proof arising from the peculiarities of entering into relevant contracts

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Kusmiati, N. Ike. « Legal Standing of Pre-Contractual Good Faith Principle as a Law Reformation of Indonesian Contract Law ». International Journal of Science and Society 2, n^o 1 (15 mars 2020) : 73–85. http://dx.doi.org/10.54783/ijsoc.v2i1.61.

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Good faith plays an important role in a contract since it holds a dominant position either during pre-contractual phase or when a contract is executed. However, pre-contractual good faith in Indonesian Civil Code is not recognized as such there is no legal assurance. In fact in pre-contractual stage, the parties already put some investment based on trust and hope, however, they faced dead end and they did not reach an agreement. This was tinted with the fading of wall between two major legal systems: Common Law System and Civil Law System as a result of dynamic in business relation involving countries bringing some developments in contract law. The extension in the substance of good faith in Article 1338 verse (3) of the Civil Code should not be implemented so grammartically that good faith does not only appear during the execution of the contract but it should also be interpreted during the whole process of the contract that good faith should lay the foundation of the parties relation both in pre-contractual phase and during the contract such that the good faith in Article 1338 verse (3) of Civil Code functions dynamically. In UPICC, the provision of good faith is stipulated in Article 1, 7 stressing on the importance of good faith and fair dealing. This stressing underlays the process of contract agreement. Good faith should be interpreted and formulated during the whole process of contract. Under the traditional doctrine of Common law, court cannot punish the defendant because Common Law system does not recognize the good faith principle in negotiation process. Nevertheless, modern law contract waives the legal assurance to reach a substantial justice that good faith is not only applied in a contractual relation but also in a pre-contractual. Meaning, good faith does not only bind upon matters explicitly stated in the agreement, but also upon ones that traditionally are required by appropriateness, tradition, or the law as stipulated in Article 1339 of the Civil Code and Article 6:248 of Netherlands NBW. The good faith and fair dealing principles should be the underpinning of contract law. Each party should uphold the principles of good faith and fair dealing in the whole process of the contract starting from negotiation, contract arrangement, the execution of the contract as far as the termination of the contract particularly in the reformation of Indonesian future contract law

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Абдулин, Руслан Робертович. « Features of legal procedures in the consideration of disputes related to contractual relations ». Юридические исследования, n^o 1 (janvier 2023) : 65–73. http://dx.doi.org/10.25136/2409-7136.2023.1.38430.

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The subject of the study is the peculiarities of legal procedures in the consideration of disputes related to contractual relations. The author of the article, by analyzing and summarizing scientific materials, materials of judicial practice, comes to the conclusion that in recent years, in the consideration of disputes related to contractual relations, the search for alternative ways to resolve emerging conflicts has been actualized. The author notes that legal procedures in the implementation of reconciliation of the parties in pre-trial, judicial and other alternative methods of dispute settlement are contractual in nature, that is, contractual legal procedures are used to settle a dispute (conflict) at any stage of contractual relations, which is not typical for other types of civil relations. Meanwhile, from the standpoint of a functional approach, extrajudicial, judicial and other methods of protecting the rights of participants in contractual relations can act as an effective tool for resolving conflicts arising between the parties. In the work, the author creatively used general scientific and private scientific methods in cognitively significant unity and in a complex combination, including: analysis and synthesis, abstraction, system-structural, comparative legal, etc. The scientific novelty of the research consists in the fact that the article is a comprehensive study that examines the regulatory and security functions provided to the parties in contractual relations aimed at establishing (arising) a contractual legal relationship, changing the content and termination of contractual relations, changing the subject matter of the contract, recognizing and confirming the right, as well as eliminating disputability (conflict) in contractual relations. The key to this maxim is that the parties, as carriers of a subjective right or legal obligation, in the event of a dispute (conflict), have the opportunity to choose the method provided for by law or a reasonable model of behavior for its settlement, as well as the procedure for its implementation.

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Dewanti, Rizky Febri, Pujiyono Pujiyono et Yudho Taruno Muryanto. « The application of good Faith principle of precontract in common law and civil law contry ». Research, Society and Development 10, n^o 16 (5 décembre 2021) : e139101623621. http://dx.doi.org/10.33448/rsd-v10i16.23621.

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In Indonesia, development of application of good faith principle in legal agreement focuses on the application of Civil Code (KUHPerdata) where scope is still placed on the implementation of agreement. It is as if Civil Code has not recognized the existence of good faith principle at pre-contract stage. In comparison, according to modern agreement theory that parties who suffer losses in pre-agreement/contract stage or at negotiation stage, their rights also deserve to be protected. Thus, pre-agreement/contract promises will have legal implications for those who violate them. This will be seen in countries that have common law and civil law systems. An important issue in this case relates to the principle of good faith at the pre-contract stage which creates a gap with the provisions in the legislation. To analyze these problems, legal research was conducted with the black-letter law paradigm. Technique of collecting legal materials in this research used library research. Legal materials are analyzed deductively and utilize the method of interpretation (hermeneutics). Results showed that the application of the principle of good faith at the pre-contract stage in Common Law and Civil Law countries had differences. In the Civil Law system, good faith is highly emphasized in the stage of contractual negotiation. Whereas in the Common Law system, it prioritizes efforts to restore rights of aggrieved party in pre-contract stage. Parties who do not have good faith at the pre-contract stage have legal consequences for cancellation of the agreement.

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Rahayu, Sang Ayu Putu. « PRINSIP HUKUM DALAM KONTRAK KERJASAMA KEGIATAN USAHA HULU MINYAK DAN GAS BUMI ». Yuridika 32, n^o 2 (24 août 2017) : 333. http://dx.doi.org/10.20473/ydk.v32i2.4774.

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The main issues elaborated in this legal research are the legal principles of tender during a pre-contractual stage and the principles of contract law on Cooperation Contract known as Production Sharing Contract (PSC) based on Laws Number 22 Of 2001 Concerning Oil and Gas. The type of this research is normative study and the approach of this research are conceptual approach, statute approach, and case approach. There are two results in this research. Firstly, in the process of tender during a pre-contractual stage of Cooperation Contract, the principles of responsive competition, transparency and the principle of accountability must be applied. The principle of responsive competition is the most important to be implemented since the tender process produces a competition to get a working area. In addition, the tender process of Cooperation Contract is also related to the principles of transparency and accountability that plays to protectthe interests ofthe state and to get a competent contractor.Secondly, in formation and performance of the Cooperation Contract, the principle of proportionality sharing should be emphasized, especially when formulating the proportion of production sharing. Cooperation Contract is also related to the principle of transparency that plays an important role on state revenues from the upstream oil and gas business activities, because a transparent process will result in optimal outcomes. Finally, in Cooperation Contract, the principles of responsive competition, transparency, accountability, and the principle of proportionality sharing should be clearly stated in the rules and legal norms.

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Yuniarti, Shanty Ika. « Duty of Disclosure for Insurance Contracts : A Comparative Note of the United Kingdom and Indonesia ». Corporate and Trade Law Review 1, n^o 1 (23 décembre 2020) : 80–97. http://dx.doi.org/10.21632/ctlr.1.1.80-97.

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Duty of disclosure is one of the most essential aspects of an insurance contract. Its role in an insurance contract is to avoid fraud and misinterpretations. A person seeking insurance must act in good faith, and good faith requires to disclose every material fact known, related to the risk. It begins with the proposer for the insurance policy that is obliged to disclose all information to the insurer. However, there is a possibility either the insured or insurer done a breach of duty of disclosure. Breach of duty of disclosure includes Non-Disclosure and Misrepresentation. Breach of duty of disclosure also possible to happen in the Pre-Contractual and Post-Contractual Stage in an insurance contract due to either a deliberate, reckless, or innocent breach. The duty of disclosure in each country might be different depends on its jurisdiction, for example, the United Kingdom as a common law country and Indonesia as a civil law country.

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ZDYRKO, Nataliya. « STANDARDIZATION OF PUBLIC AUDIT OF PUBLIC PROCUREMENT IN UKRAINE THROUGH THE INTRODUCTION OF COMPLIANCE AUDITS ». "EСONOMY. FINANСES. MANAGEMENT : Topical issues of science and practical activity", n^o 4 (54) (19 décembre 2020) : 156–74. http://dx.doi.org/10.37128/2411-4413-2020-4-11.

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The independent legislative agency of Ukraine according to the international standards ISSAI in private carrying out of the state audit (including the published purchases) is made. It is established that international practice has identified three components of public audit: performance audit, financial audit and compliance audit. The necessity of standardization of the state audit of public procurements through legislative fixing of audit of conformity is proved. The main objects of compliance audit are proposed: the activities of the customer (participant), public resources and the activities of responsible government agencies. Recommended main directions and procedures for compliance audit for each object and by stages of the life cycle of procurement items. Features of the audit of compliance of redistribution by the customer of various receipts for public procurement are considered. Features of audit procedures for different types of public procurement are identified. The recommended procedure and algorithm for auditing the correctness of determining the subject of procurement from the customer. The main mistakes and violations of the participants, which take place during the audit of compliance with public procurement, have been identified. The peculiarities of compliance audit at the stage of public procurement planning, pre-contractual and contractual relations in the electronic procurement system, as well as at the stage of use of procurement items are highlighted. It was emphasized that the responsible body should regulate issues related to the functioning of the electronic information system, platforms and web portal in the field of public procurement. The key elements of the Public Procurement Compliance Audit Standard (purpose, objectives, subject, objects, subjects, stages, methods, principles) are proposed.

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Ngongo, Prince B., Francis Kombe, Anatoli Kamali et Carel IJsselmuiden. « PO 8254 LESSONS LEARNT FROM SCALING UP AN ONLINE SYSTEM FOR REVIEW AND MANAGEMENT OF PROTOCOLS IN SUB-SAHARAN AFRICA ». BMJ Global Health 4, Suppl 3 (avril 2019) : A24.1—A24. http://dx.doi.org/10.1136/bmjgh-2019-edc.60.

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BackgroundThe transition from paper-based to online submission of health research protocols using the RHinnO Ethics (RE) platform has been shown to improve efficiency and quality of ethics reviews. However, despite these documented benefits, there are only a total of 40 installations in 12 out of the 54 countries in Africa. We analysed facilitators and barriers to adoption of RE by Researc Ethics Committees.MethodsWe used a retrospective analysis to identify determinants of adoption or rejection of RE by grouping feedback from users into key emerging themes identified through three stages of RE adoption: 1) contractual 2) trial 3) full implementation.ResultsA total of 3947 protocols have been managed through RE by March 2018. Of those reached, 25 per cent adopted and continue to use RE. Of those that rejected, 14 per cent rejected after the trial. At the contractual stage, the key determinants of adoption were the guarantee of sustainable funding, pre-existing good IT infrastructure, and the assurance of technical assistance from the providers. The key determinants of rejection were concerns of cyber security, limited control and ownership by Researc Ethics Committees and cost of the annual subscription. At the trial stage, the determinants of continued adoption and use were continued IT support from providers and a proven comparative advantage over the paper-based system. The key determinant of rejection was limited support from organisation leadership. Those who have continued through the implementation stage emphasised financial sustainability and continuous improvement of the RE as key determinants.ConclusionAccelerated adoption of RE will require increased adaptability of the platform, decrease in cost of annual subscription, improved confidence in security and ownership of data. Developers, Research Ethics Committees and sponsors of RE need to develop a cost-effective funding strategy to increase efficiency, economies of scale and benefits related to harmonised and standardised digital platforms.

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KHAMIDULLIN, Marat T. « PROVISION OF TECHNICAL CONNECTION CONDITIONS AS A PRE-CONTRACTUAL STAGE OF THE RELATIONS BETWEEN THE PARTIES TO THE TECHNOLOGICAL CONNECTION AGREEMENT ». HERALD OF THE RUSSIAN LAW ACADEMY, n^o 1 (2020) : 72–77. http://dx.doi.org/10.33874/2072-9936-2020-0-1-72-77.

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Bychkova, S. M., et O. V. Shvets. « Digital Technologies : New Reality of Counterparty Reliability Analysis ». Accounting. Analysis. Auditing 9, n^o 5 (24 novembre 2022) : 43–55. http://dx.doi.org/10.26794/2408-9303-2022-9-5-43-55.

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The research carried the potential analysis for using digital tools to verify the due diligence of a counterparty out at the stage of pre-contractual interaction with the organization, which allows for reduced possible financial, legal, reputational and tax risks. When using specialized platforms and online services, it can reduce the expected time spent on such an assessment by preparing a comprehensive report that reflects the fundamental aspects of the activities of a potential business partner. The digital products presented on the market are able to provide a detailed analysis of the financial position of the audited economic entity, its legal status, business reputation and affiliation with other legal entities. The information obtained allows us to determine the vector of further cooperation. The aim of the work is to consider the possibility and prospects for the use of digital tools during the procedure of contractual due diligence, carried out by specialized organizations; the authors identified the primary advantages of using these technologies, which are to reduce the time spent on collecting and analyzing information about the counterparty and providing expanded access to various databases. The study used methods of synthesis, comparative and logical analysis. The practical significance of the research is because experts have been conducting the contractual due diligence procedure when deciding on the possibility of using a particular online service in their work can use the presented results of the comparative characteristics of the considered digital tools.

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Yin, Yi Lin, et Peng Juan Li. « Study on Risk Allocation and Management Performance Measurement of Construction Project ». Applied Mechanics and Materials 638-640 (septembre 2014) : 2346–50. http://dx.doi.org/10.4028/www.scientific.net/amm.638-640.2346.

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Recently, risk allocation (RA) has become a research focus as a pre-variable for its damaging to the improvement of project management performance (PMP), but the related measured operations were absence. Based on the theory of incomplete contract, firstly, this paper mapped the initial contract,renegotiation and contract efficiency into the whole process of project RA, constructed a three-stage theoretical models including initial risk allocation (IRA) for contracting , project management performance (PMP) and risk reallocation for contract performance, and depicted their measuring dimensions. Secondly, this paper developed RA measure scale based upon questionnaire design and empirical analysis, and the reliability and validity were analyzed. The research guided significance for contractual arrangements for the project RA and exploring relevance to other variables.

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Zdyrko, Nataliya. « Audit of Compliance of Public Procurement : Theoretical and Practical Aspects ». Accounting and Finance, n^o 1(91) (2021) : 90–100. http://dx.doi.org/10.33146/2307-9878-2021-1(91)-90-100.

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The purpose of the article is to identify the main elements of the public procurement compliance audit and disclose the practical aspects of its implementation. It was determined that the control function is a priority in the management of public procurement in Ukraine among other functions (planning, organization, accounting, analysis, motivation, regulation). The problem of non-compliance of legislative provision of the state audit with international ISSAI standards due to the lack of compliance audit was identified. The main legislative requirements (general and specific) for conducting the compliance audit were considered. The proposed author's vision of the purpose, tasks, subject, objects and subjects of compliance audit which correlates with international ISSAI standards. The objects of the audit are the activities of the customer (participant) at different stages of the life cycle of procurement items, public resources and the activities of responsible state agencies. The main entities (in accordance with the requirements of international standards) are the state auditor, controlled entity and potential users. The main issues on the directions and objects of compliance audit are detailed. The main issues on the areas and objects of compliance audit were detailed. The stages of compliance audit (planning, carrying out and preparation of reporting documentation) with the definition of control actions at each of them were disclosed. The criteria of legality and validity in the compliance audit (relevance, completeness, reliability, neutrality, clarity, usefulness, compatibility, acceptability, accessibility) were characterized. The internal sources of state audit (including compliance audit) of public procurement at the stage of pre-contractual and contractual procedures in the electronic procurement system, as well as the use of procurement items were described. The methods of state audit of public procurement by the objects of inspection (observation, verification, research, confirmation, analytical procedures) are highlighted.

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Belova, Olesya. « On the Issue of “Concluding a Contract” in the Projection of the Perception of Contractual Relations in the Pre-Revolutionary, Soviet and Modern Periods ». Legal Concept, n^o 4 (décembre 2022) : 120–25. http://dx.doi.org/10.15688/lc.jvolsu.2022.4.17.

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Introduction: the issue of concluding a contract, as a non-momentary process, regulated by the general norms of the civil legislation of the Russian Federation (Article 432 of the Civil Code of the Russian Federation), is still debatable in both scientific and practical terms. Such a phenomenon is caused by the absence in the legislation and the lack of consolidation of the dynamics of the stages of concluding a civil contract as a single process, whose end result is perfection (the effective time of the contract), which generates the emergence of mutually defined rights and obligations of the parties to the contract. The identification of modern trends, the analysis of the development of the science of civil law on the issues of the dynamic process of concluding a contract, the disclosure of the imperfections of modern formulations of the civil legislation is the purpose of the study. Methods: the methodological framework for the research is a set of methods of scientific cognition, among which the main ones are analysis, synthesis, generalization and comparative jurisprudence. Results: the study analyzes the pre-revolutionary, Soviet and modern understanding of the civil legislation provisions for the concluding a contract, in particular, determining the time of its conclusion and the emergence of the rights and obligations of the parties. The revealed doctrinal understanding of the time of concluding a contract, set out in the results of the scientific research of civilists of various periods, allowed us to find that the process of concluding a civil contract is a stepwise process. At various stages of its conclusion, the roles of the parties have specificity due to the time of the will of the party entering into the transaction. Conclusions: the scientific theses on the conclusion of a civil contract, formulated by pre-revolutionary and Soviet civil law, at the present stage of development of the economic system, introducing more and more means and technologies of information and communication interaction, do not have relevance for current participants in civil turnover. The author has formulated the proposals for the modernization of the civil legislation of the Russian Federation aimed at leveling the issues of the stages of concluding a contract, and reflecting its ultimate goal – the time of entry into force of the contract (perfection).

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Rini, Ragil Kusnaning. « Urgensi Prinsip Kepatutan dan Keadilan (Redelijkheid en Billijkheid) Dalam Pembuatan Perjanjian Pendahuluan ». Notaire 4, n^o 3 (30 septembre 2021) : 425. http://dx.doi.org/10.20473/ntr.v4i3.27221.

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The principle of reasonableness and fairness (redelijkheid en billijkheid) is a pair of principles that are closely related and constitute an interpretation of the principle of good faith. So that the terms used in NBW are no longer good faith, but rather reasonableness and fairness. In the Netherlands, this principle is mandatory not only at the time of contract execution, but also at the pre-contract stage, giving rise to pre-contractual liability. Whereas to judge whether or not a preliminary agreement is binding, what must be observed first is the substance and not just based on the title. The importance of applying the principles of reasonableness and fairness in the preliminary agreement is to realize contractual justice and provide protection for weak parties when the expectations of the promises offered cannot be fulfilled. In essence, the principle of reasonableness and fairness requires proportionality among the parties. A preliminary agreement if the clauses are made without paying attention to the principles of reasonableness and fairness will have the potential to cause disputes. Furthermore, the party who feels aggrieved can file a lawsuit on the basis of an unlawful act and demand compensation for the costs that have been incurred.Keywords: Preliminary Agreements; Good Faith; Redelijkheid en Billijkheid.Prinsip kepatutan dan keadilan (redelijkheid en billijkheid) merupakan sepasang prinsip yang saling terkait erat dan merupakan penafsiran dari makna prinsip itikad baik. Sehingga istilah yang digunakan pada NBW tidak lagi itikad baik (good faith), melainkan kepatutan dan keadilan (reasonableness and fairness). Di Belanda, prinsip ini tidak hanya diwajibkan pada saat pelaksanaan kontrak saja, namun juga pada tahapan pra kontrak sehingga menimbulkan adanya pra-contractual liability. Bahwa untuk menilai mengikat atau tidaknya suatu perjanjian pendahuluan, maka yang harus dicermati terlebih dahulu adalah substansinya dan bukan hanya didasarkan pada judulnya saja. Pentingnya penerapan prinsip kepatutan dan keadilan dalam perjanjian pendahuluan adalah untuk mewujudkan keadilan berkontrak dan memberikan perlindungan terhadap pihak yang lemah manakala harapan dari janji-janji yang ditawarkan tidak dapat terpenuhi. Pada hakikatnya prinsip kepatutan dan keadilan menghendaki adanya proporsionalitas diantara para pihak. Suatu perjanjian pendahuluan jika klausul-klausulnya dibuat tanpa memperhatikan prinsip kepatutan dan keadilan akan berpotensi menimbulkan perselisihan. Selanjutnya terhadap pihak yang merasa dirugikan dapat mengajukan gugatan atas dasar perbuatan melanggar hukum dan menuntut ganti kerugian atas biaya-biaya yang telah dikeluarkannya.Kata Kunci: Perjanjian Pendahuluan; Itikad Baik; Redelijkheid en Billijkheid.

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MAKOLKIN, N. N. « AUTOMATION AND DIGITALIZATION IN LAW ENFORCEMENT AND EVIDENCE GENERATION : STATEMENT OF THE PROBLEM ». Herald of Civil Procedure 11, n^o 3 (30 août 2021) : 224–35. http://dx.doi.org/10.24031/2226-0781-2021-11-3-224-235.

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In this article, the author attempts to consider the processes of automation, digitalization and digitalization in the daily life of a lawyer, and the issue of using these processes in the formation of evidence is outlined. This procedural and procedural issue is disclosed through the prism of substantive law and the designation of specific examples and real situations arising in law enforcement practice and the daily activities of a lawyer. The article also addresses specific issues in the field of compliance and risk assessment associated with both pre-contractual activities and probabilistic assessment of the flow of an abstract legal relationship in the plane of a legal dispute, in particular the assessment of the enforceability of the judgment at the stage of enforcement proceedings based on information about the wealth of the counterparty. In conclusion, the author concludes that even information from open sources can act as a trigger to improve the quality level of preparation of the plan and the algorithm of specific steps of a lawyer, and the further informatization of society makes preliminary information preparation an increasingly important stage in many processes, in particular the process of gathering evidentiary material on a particular dispute.

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Kratenko, M. V., et O. J. Luik. « Modern Concept of Indemnity Insurance and Prospects for Its Implementation in Russian Law ». Вестник Пермского университета. Юридические науки, n^o 50 (2020) : 762–86. http://dx.doi.org/10.17072/1995-4190-2020-50-762-786.

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Introduction: the division of insurance into indemnity insurance and insurance of fixed sums is as common in European legal doctrine as the differentiation between property and personal insurance in Russian law. The article investigates the functions and main features of indemnity insurance and modern trends in legal regulation of this type of insurance. Purpose: to demonstrate the evolution of the compensation insurance model, caused, among other things, by the penetration of the pro-consumer approach in insurance law; to assess the current state of Russian legislation on insurance contract and the proposals for its reform (formulated in Draft revision of Chapter 48 of the Civil Code) from the perspective of the indemnity insurance model. Methods: the authors apply a comparative legal research method to the legislation and doctrine of Russia, Estonia and other EU member states, model acts of insurance law (Principles of European Insurance Contract Law[1]), and also use methods of retrospective analysis. Results:the authors conclude that the indemnity insurance model is still based on long-established principles (necessity of insurance interest, good faith, etc.), although their interpretation may change over time. In addition, the strengthening of pro-consumer ideas has a significant impact on contractual relationship in indemnity insurance: the standard of requirements to the policyholder (insured person) and his liability for breach of contractual duties have been softened, while the level of requirements to the insurer as a professional subject is increasing. This is reflected in formalization of the information duty of the policyholder at the pre-contractual stage, replacement of the all-or-nothing principle by the principle of proportionality when imposing sanctions on the policyholder, including mandatory testing for the causal link between the breach of contract and materialization of risk or increase in damage. It is concluded that the Russian legislation on insurance contract requires a conceptual reform, including through the consistent introduction of the proportionality principle in all cases when sanctions are applied to the policyholder.

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De la Rosa-Martín, Tonysé, et Jorge Luis León-González. « Diseño del sistema automatizado para la generación y gestión de documentos en la etapa precontractual de compras públicas para instituciones públicas en el Ecuador ». Revista Transdiciplinaria de Estudios Sociales y Tecnológicos 3, n^o 1 (1 janvier 2023) : 14–25. http://dx.doi.org/10.58594/rtest.v3i1.60.

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La presente investigación se centra en el Diseño de un sistema para la generación de documentos en la etapa preparatoria y precontractual de compras públicas para las instituciones públicas del Ecuador. Se realizó una investigación completa de las falencias en los procesos actuales que se manejan para las compras públicas, se determinó realizar distintos módulos para la generación de documentos, además de módulos de administración. Este sistema fue desarrollado en un ambiente web como lenguaje principal PHP, además se utilizaron dos frameworks: Laravel y Bootstrap, también se utilizará la librería de JQuery, como almacenamiento de los datos se utilizó el gestor de base de datos MariaDB.Este Sistemas se apoya en la metodología de desarrollo de Software RUP (Rational Unified Process), se utilizó el lenguaje unificado de modelado UML, estas son herramientas necesarias en el análisis y diseño de sistemas POO (Programación orientada a objetos). El sistema resuelve el problema de la gestión de las compras públicas para instituciones inscritas al gobierno en el Ecuador. Palabras clave: Compras, oferta pública, gobierno, institucionalidad. ABSTRACT The present investigation focuses on the Design of a system for the generation of documents in the pre-contractual and pre-contractual stage of public purchases for public institutions in Ecuador. A complete investigation of the shortcomings in the current processes that are managed for public purchases was carried out, it was determined to carry out different modules for the generation of documents, in addition to administration modules. This system was developed in a web environment as the main language PHP, in addition two frameworks were used: Laravel and Bootstrap, the JQuery library will also be used, as data storage the MariaDB database manager was used. This Systems is based on the RUP (Rational Unified Process) Software development methodology, the unified modeling language UML was used, these are necessary tools in the analysis and design of OOP (Object Oriented Programming) systems. The system solves the problem of managing public purchases for institutions registered with the government in Ecuador. Keywords: Purchases, public offering, government, institutionality.

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Amayreh, Osama Ismail Mohammad, Izura Masdina Mohamed Zakri, Pardis Moslemzadeh Tehrani et Yousef Mohammad Shandi. « The Principle of Good Faith in the Palestinian Civil Code Draft and Its Role in Maintaining Economic Contractual Equilibrium at the Pre-Contracting Phase ». Journal of Politics and Law 12, n^o 3 (23 août 2019) : 113. http://dx.doi.org/10.5539/jpl.v12n3p113.

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The jurisprudential and judicial legal trend tends to apply the principle of good faith at the pre-contracting phase as one of the most substantial principles governing this phase, since it is inconceivable that the parties are to negotiate in bad faith, and then must implement the contract in good faith, in accordance with the traditional legal rule that “fraud spoils everything it touches”. However, the Palestinian legislature has ignored enacting legal provisions obliging the parties to abide by the principle of good faith in the pre-contracting phase causing a legislative deficiency in the legislative remedies of the subject of good faith in the pre-contracting phase. This paper seeks to prove that replacing a provision that requires good faith in negotiations with the provisions of tort liability causes many legal problems. To prove this, the legal provisions should be analysed which would also include determining the definition of the principle of good faith, and the function of that principle in achieving contractual equilibrium and the legal basis for this principle at the stage of negotiation which should also be analysed. Moreover, a comparative analytical approach with the French civil code is used to illustrate the Palestinian legislative deficiencies and the need to legislate a legal article which obligates the negotiating parties to behave in good faith, as this has become an unavoidable reality that should be dealt with to contribute to the stability of civil and commercial transactions. As such, the legal article should also specify the compensation to be claimed.

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M. Elsawi, Ahmed. « The civil liability of the consortium members for the individual mistake of one member ». International Journal of Engineering & ; Technology 7, n^o 2.13 (15 avril 2018) : 272. http://dx.doi.org/10.14419/ijet.v7i2.13.12677.

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Nowadays, the various forms of contractual agreements have spread between the different contracting companies for the purpose of executing the huge international contracts which require the synergy of all efforts. This has led to the appearance of new forms of cooperation between the international contractors, called the "Consortium Agreement", which is a kind of special partnership entered into for the purpose of executing a certain project, and ends at the completion of this project, without the constitution of a separate entity for the parties of this consortium. Nonetheless, many and various legal implications result from this consortium, some of which may be attributed to the subordination relationship between this agreement and the international contract of construction; while other legal implications might be attributed to the Consortium Agreement itself. The main problem in this regard may arise, if the consortium members did not agree on the accurate determination of the civil liability for each party, whether it was during the pre-contractual stage, or during the contract's execution; as well as the specific determination of the consortium members' liability towards the employer for the individual mistake of one member, especially in light of the multiple parties and the unity of purpose. In this regard, the liability may take one of the following two forms: first, to consider all members of the consortium as joint partners before the employer; second, to adopt the personal liability of each member separately, thus, each member shall be liable only for the part assigned to him. Hence, we will try here to answer a major question regarding the liability of the consortium members for the individual error of one member towards each other or towards the employer, taking into consideration the special nature of the Consortium Agreement.

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Mohamed Naim, Asmadi. « Purchase Undertaking Issues in Musharakah Mutanaqisah Home Financing ». ISRA International Journal of Islamic Finance 3, n^o 1 (15 juin 2011) : 25–47. http://dx.doi.org/10.55188/ijif.v3i1.122.

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This article aims to discuss the issues of purchase undertaking in musharakah mutanaqisah home financing as practised by Islamic banks in Malaysia. This aim can only be achieved by analysing and examining its features in order to determine its inclination either towards shirkat al-milk (co-ownership) or shirkat al-'uqud (contractual partnership). On closer examination, the study also examines the legitimacy of first and second promises (wa'd) by the customer to gradually purchase the bank’s portion, and to give rights to the bank in the event of default: either to sell the bank’s portion in credit to the customer or to purchase the customer’s portion. The study applies the qualitative research method comprising document analysis and interviews with practitioners. The study shows that the home financing is a shirkat al-milk in its initial stage, but it cannot be considered permanently as shirkat al-milk as it does not comply with all the features of shirkat al-milk. The study also found that scholars were in dispute as to whether firstly, to allow a pre-determined price of the bank’s portion or share in the house and secondly, to stipulate a second promise in the event of default.

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Mirza, Mansha, Rooshey Hasnain et Kathryn Duke. « Fostering Community-Academic Partnerships to Promote Employment Opportunities for Refugees with Disabilities : Accomplishments, Dilemmas, and Deliberations ». Societies 8, n^o 3 (12 septembre 2018) : 86. http://dx.doi.org/10.3390/soc8030086.

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Little attention has been given to the processes and dynamics involved in community-engaged research with hard-to-reach and marginalized communities. This concept paper focuses on experiences with and lessons learned from the developmental phase of a community-engaged research project aimed at promoting the economic self-sufficiency of refugees with disabilities in Illinois. Steps taken to foster collaboration between academic researchers and community stakeholders are described, followed by the authors’ commentary on challenges encountered and how these were addressed. Several methods were used to facilitate engagement of community stakeholders. In the pre-funding stage, lead researchers identified potential community partners by networking with coalition groups and task forces focused on disability- and refugee-related issues. In the post-funding stage, relationships with partners were formalized, partners’ roles were defined, and contractual agreements were developed. An advisory board consisting of representatives from partner agencies and self-advocates with disabilities was also assembled to help guide the project goals and deliverables. Structured group and one-on-one meetings were held to sustain community partner engagement. These community engagement strategies were deemed successful. However, challenges did emerge due to conflict between community stakeholders’ preferences, and research logistics and regulatory requirements of the academic institution. Findings suggest that with careful planning, barriers to community-academic collaborations can be addressed in ways that benefit all parties. This paper offers practical strategies and a roadmap for other community-engaged research projects focusing on vulnerable and marginalized groups.

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Tirmizi, Syed Asim Ali, et Farrukh Arif. « Identification and stakeholder responsibility mapping of contractual risk factors in oil and gas sector infrastructure projects using Delphi technique ». Mehran University Research Journal of Engineering and Technology 42, n^o 1 (1 janvier 2023) : 17. http://dx.doi.org/10.22581/muet1982.2301.03.

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The continuing demand for energy has led to the need for developing and improving the oil and gas infrastructure through the execution of various infrastructure capital projects in many parts of the world, including Pakistan. Oil and gas companies have vast experience implementing these infrastructure projects, yet many such projects face delays and cost overruns. This failure to meet project targets may be attributable to the lack of identifying and addressing the risks at the pre-execution stage in the contract documents. This study aims to identify the risks to address in the contract documentation developed for the infrastructure projects and allocate each factor to a particular stakeholder (Client, design consultant, legal consultant, and bidders) in Pakistan. Risks were identified through literature review and were validated using the Delphi technique applied through surveys. Twenty-four survey respondents were selected based on their qualifications and experience in Pakistan’s Oil and Gas sector. In the first round of the Delphi survey, the level of agreement authenticates the risks applicable to Pakistan's Oil and Gas sector. The level of agreement was reaffirmed in round two of the Delphi survey. It also included a check for stability of responses between rounds using the McNemar test. Results confirmed that sixty-one risk factors are the contractual risk for evaluation when developing contracts for Oil and Gas infrastructure projects in Pakistan.

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Ali, Jabir, et Sushil Kumar. « Understanding the contract structure for mango and empirical analysis of its determinants ». British Food Journal 117, n^o 8 (3 août 2015) : 2161–81. http://dx.doi.org/10.1108/bfj-12-2014-0435.

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Purpose – The purpose of this paper is to analyze the structure of contractual arrangements in mango orchards and factors affecting the mango contract design in India. Design/methodology/approach – The study is based on personal structured questionnaire survey of 83 contractors in one of the major mango growing areas in India. A snowball sampling approach was adopted to select suitable respondents for the study. Descriptive statistics have been computed to understand the contractor’s response on contract attributes. Factor analysis was used to categorize the contractors’ responses on various attributes of the mango contract. Further, a logistic regression model has been developed to determine the factors affecting the contract decisions. Findings – The study identifies nine aspects of mango contracting covering orchard owner, orchard and contract management characteristics. Further, a logistic regression model has been developed to assess the factors affecting the contractor’s decision on the time of entering into mango contracting, i.e. pre-flowering or post-flowering stage. Regression analysis results clearly indicate that contractors who prefer pre-flowering contracts pay significantly higher attention to contract management attributes. On the other hand, those contractors who normally enter in contract once the mango trees have flowered are more likely to pay attention to orchard-related features. Practical implications – Specifically, the results have implications for contract terms, contract efficiency and effectiveness and overall performance. Finally, the study provides suggestions for a future research agenda to analyze mango production contracts. Originality/value – Though contracting in mango growing is a common phenomena, there is limited analysis on identifying the key contract attributes and factors affecting the contract structure.

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Sukačić, Marko. « Dvojbena pravna narav kupnji na pokus ». Zbornik Pravnog fakulteta Sveučilišta u Rijeci 40, n^o 3 (2020) : 1207–27. http://dx.doi.org/10.30925/zpfsr.40.3.10.

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The paper deals with the sale on approval of horses and mules shown in D.19,5,20 pr.- 1 (Ulpianus libro 32 ad edictum) and the existing theories on the legal position of the parties in the source. The first part of the paper sets out principium of D.19,5,20, where Ulpian quotes Labeo, and his description of the sale on approval of horses, concluded between the seller and the acrobatic rider – desultor, with a detailed analysis of the interpretations of relevant romanists. The principium is analyzed with the reference to dominant theories: theses on the suspensive and/or resolutive condition pactum displicentiae, on the innominate contract, and on pre-contractual acts. This is followed by an analysis of Ulpian’s sequel in the first paragraph of D.19,5,20 with a quotation of Mela, where he describes the sale on approval of mules, which are stolen during the test period, with Ulpian’s quote of Mela’s dilemma and of comparison with his own. Next part of the paper contains theories and interpretations of the legal nature of the relationship between the parties and the stage of contract. In conclusion, author presents his own position on the both presented situations, the legal nature of the relationship between the parties, and finally on the legal problem raised by Ulpian in the cited sources.

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Południak-Gierz, Katarzyna. « Consequences of the Use of Personalization Algorithms in Shaping an Offer – A Private Law Perspective ». Masaryk University Journal of Law and Technology 13, n^o 2 (30 septembre 2019) : 161–88. http://dx.doi.org/10.5817/mujlt2019-2-2.

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Personalization mechanisms in consumer e-commerce allow for the adjustment of the time, form and manner of contact, the way of concluding the contract and the availability and content of the offer. Subsequently concluded agreements can be seen as a new phase of development of the consumer transaction model – secondary individualization replaces standardization. The possibility of concluding contracts on a massive scale is retained, but with added granularity and flexibility that mimic the individualisation of transactions. Special provisions for personalized contracts are missing on the EU level and within the Polish legal system.The starting point is an analysis of the reaction of the traditional private instruments of Polish law towards the personalization of offers – case law and doctrinal approach towards the concept of a standard contract and an individually negotiated one are examined. Next, the pre-contractual stage is investigated – the personalization process is explored from the perspective of unfair practices regulation, and the legal basis for the personalization process in the context of the GDPR is discussed. While Polish national law focuses on combating the undesired results of personalization, the EU initiatives aim at granting ex-ante protection. The mechanism in directive 2005/29/EC is being supplemented with an information protection mechanism (consent requirement). The limitations of this model are identified and some alternative solutions are proposed.

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Alimi-Memedi, Shpresa. « FORMALISM IN ROMAN CONTRACT LAW ». Knowledge International Journal 34, n^o 5 (4 octobre 2019) : 1457–63. http://dx.doi.org/10.35120/kij34051457s.

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The certain mode of production conditions certain legal expressions, determines the character and the forms of expression of the law, and depending on this, certain legal institutes and legal principles arise and change. The principle of formalism in a certain period of development of contractual relations is nothing but an expression of certain socioeconomic and other conditions present in that period. The subject of this paper is the principle of formalism as a feature of Roman contract law, the emergent forms of formalism in Roman law, the causes and functions of formalism in certain stage of development of Roman law. The influence of religion on the law and the low level of development of socioeconomic relations were the main reasons for the recognition of formalism in the first legal systems.The principle of formalism implies that the form of the contract as a means of expressing the consent of the will of the parties is a legally established imperative. The specific way of expressing the will to conclude a contract is an essential element of the contract. Infringement of the form is sanctioned by the nullity of the agreement.Formalism in Roman contract law is present and dominant in the period of the early Roman state and law, the late Roman Republic and pre-classical Roman law. The principle of formalism in these developmental stages of the Roman state and law does not mean that it excludes completely the opposite principle of consensualism which implies that contracts are created by a mere consent of the will of the contracting parties, which can be expressed in words or in writing, or with other behavior from which its existence can certainly be concluded. In Roman law, the consensual form has never succeeded in becoming a generally accepted form and Roman law has never formulated the general principle of consensuality.

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Tsaruk, Vasyl. « Ways to solve agency problems in corporate structures with using accounting information : non-institutional aspects ». INNOVATIVE ECONOMY, n^o 7-8 (novembre 2019) : 145–51. http://dx.doi.org/10.37332/2309-1533.2019.7-8.21.

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Purpose. The aim of the article is to analyse and substantiate the ways to solve the consequences of an agency problem in corporate structures based on the use of accounting information. Methodology of the research. The theoretical basis of the research is the scientific works of domestic and foreign scientists on the problems of accounting information formation in the issues of solving agency problems in corporate structures. The following methods are used to achieve the goal of the study: general scientific methods (abstraction, comparison, generalization, analysis, synthesis) – to know the basic elements of accounting information; critical analysis and systematic approach – when disclosing the characteristics of the main elements of solving an agency problem in corporate structures; abstract and logical method – to formulate the conclusions of the study. Findings. The types of opportunistic behaviour regarding the moment of contracting according to agency theory are substantiated. The role of accounting information at the pre-contractual stage of activity of corporate structures is determined. The features of understanding of accounting as one of the basic elements of the corporate governance system, which allows to minimize the consequences of an agency problem, are revealed. The role of accounting information at the post-contracting stage of corporate structures activity is determined. Originality. The possibility of using accounting information for the implementation of opportunistic behaviour by agents in the activity of corporate structures is substantiated. The ability of the accounting system to counteract the hidden intentions that agents may have after contracting has been identified. A matrix classification of approaches to solving the consequences of agency problems in corporate structures has been developed. Practical value. Implementation of the components of accounting information proposed in the study will allow to substantiate the role of accounting information in the application of each of the selected approaches to solving the consequences of the agency problem in corporate structures. Key words: corporate governance; agency problem; adverse selection; moral hazard; accounting information.

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Byrkovych, O. « Introduction of Russian state judiciary on the territory of Ukraine (end of XVIII – early XIX century) ». National Technical University of Ukraine Journal. Political science. Sociology. Law, n^o 1(45) (14 décembre 2020) : 40–44. http://dx.doi.org/10.20535/2308-5053.2020.1(45).226488.

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The article reveals the peculiarities of the implementation of the Russian judicial system in the Hetmanate in the second half of the XVIII - first half of the XIX century. It is pointed out that the incorporation policy of the Russian Empire provided for the full inclusion of Ukrainian lands in the empire, both in administrative and legal aspects. Beginning with the abolition of the institution of the Hetmanate, the regimental-hundred system, the imperial authorities tried to eradicate from life all the legal attributes of the Cossacks, which were traditional for the population and differed from the classical Russian. One of such attributes of statehood was the system of the judiciary and the judiciary. Having determined the specifics and characteristics of the traditional Ukrainian judicial system, which has been implemented in the Hetmanate since the middle of the XVII century, judicial reforms of P. Orlyk, K. Rozumovsky, the peculiarities of the introduction of the Russian class system of justice are established. After the liquidation of the regimental-hundred system and the introduction of division in the provinces, zemstvo (provincial) and county courts began to be established on the territory of Ukraine, which had a wide range of powers and were divided into criminal and civil departments. Zemsky courts were the court of the highest instance and the main appellate body, but decided only cases involving the nobility. The formal election of judges and their subordination to the emperor was a compromise that satisfied both the government and guaranteed the loyalty of the nobility. County courts were under the control of the nobility, which leveled the transparency of decisions. The lowest judiciary was the village courts, which dealt with most economic and administrative issues related to the most vulnerable. The practice of «arbitration» and «conscientious» courts, whose task was to resolve disputes at the pre-trial stage, can be considered a certain positive. They minimized and debureaucratized the judicial system, forming an effective alternative to county courts. Contractual principles in the judiciary, given the existence of about 10 thousand legal acts, some of which were naturally not known to judges, and sometimes contradicted each other, became the key to the stability of the judiciary in the pre-reform period.

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Lehenchuk, Serhii, Iryna Vyhivska et Olena Hrytsak. « The development of institutional and methodological framework for accounting of collateral operations in credit unions ». Herald of Ternopil National Economic University, n^o 1(91) (1 janvier 2019) : 209–18. http://dx.doi.org/10.35774/visnyk2019.01.209.

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The article demonstrates a need for research into the issues of improving accounting of collateral operations in credit unions. This research paper sets out a number of unresolved issues and discussion points relevant to accounting of collateral operations, especially those linked to various types of collateral and activities of credit unions. In response to corporate scandals, some possible ways to improve the conceptual and methodological framework of accounting are identified. The authors demonstrate how further methodological advances in accounting depend on applying individual elements of accounting method to its main constituents. The study has found that it is advisable to add a set of documents for executing and registering collateral operations to the order on accounting policy. Based on the view that collateral is a way to ensure that the borrower meets his obligations to the credit union, it is proposed to change the name of off-balance sheet account 06 from “Guarantees and security received” to “Enforcement of obligations received”. The authors have developed a sample of working chart of accounts for recording collateral operations in credit unions by analytical accounts, which makes it possible to obtain detailed information. The article provides an analysis of specific features of accounting of collateral operations in credit unions and gives evidence of how procedures are performed in line with the standards of international financial reporting. It is offered to change the name of account 437 “Provision of warranty obligations” to ”Provision of contract obligations”. The study notes that a revaluation of collateral objects with high level of volatility, which are used for getting loans from credit unions, should occur on a regular basis. Using an invention patent as an example, it is shown how to calculate the cost of collateral at the pre-contractual stage. It is also specified how to make up inventories of collateral object in credit unions.

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Mazhorina, M. V. « ESG Principles in International Business and Sustainable Contracts ». Actual Problems of Russian Law 16, n^o 12 (2 janvier 2022) : 185–98. http://dx.doi.org/10.17803/1994-1471.2021.133.12.185-198.

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The concept of sustainable development has captured the world. It is altering society, generating new social patterns, reorganizing business and management models, testifying to the ultimate connectedness of the world and, as a result, encourages rethinking the legal superstructure, adapting supernova normative arrays to the current legal taxonomy, which is not always possible with taking into account the positivist approach to law. ESG principles have today become a kind of model for sustainable business development, due to which the goals of companies’ involvement in solving environmental, social and management problems are achieved. They have not only a vector effect, but also a regulatory, reputational; they have also an increasing impact on international business in a variety of industries. In addition, they are updating relatively new rating mechanisms that form the basis of investment, financial, credit, trade, corporate, management and other policies of companies. At the same time, ESG principles are segmented, fragmented and, as a rule, objectified externally in the form of norms of nonstate, often industry regulation. Without legally binding force, ESG principles are quite comparable with law in terms of the degree of impact on public relations and in terms of the resulting legal and economic consequences. Cross-border contracting practices are also changing, leading to the incorporation of “sustainability” clauses into contracts, as well as the emergence of the concept of a sustainable contract. The pre-contractual stage becomes more complicated, it requires human due diligence procedures, the formation and assessment of supply chains, the development of strategies for the disclosure of non-financial information, the study of legal risks taking into account the global law enforcement practice, as well as the establishment of methods and a jurisdictional forum for the resolution of disputes. International Commercial Arbitration claims to be attractive in resolving ESG disputes. These and other issues, taking into account their relevance, are studied in this paper.

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Goldberg, Andrew J., Andrew P. Molloy, Mark Bowen Davies, Steve Hepple, Rhys H. Thomas, Malik S. Siddique, David T. Loveday et al. « Total Ankle Replacement vs Ankle Arthrodesis (TARVA) : A Randomised, Multi-Centre Trial in Patients Over 50 with End Stage Ankle OA, Comparing Clinical and Cost-Effectiveness ». Foot & ; Ankle Orthopaedics 7, n^o 1 (janvier 2022) : 2473011421S0002. http://dx.doi.org/10.1177/2473011421s00027.

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Category: Ankle Arthritis; Ankle; Other Introduction/Purpose: Both ankle replacement and ankle arthrodesis are offered as treatments to patients with end stage ankle osteoarthritis. Systematic reviews have confirmed that both procedures are effective but there has never been a robust randomised multicentre level I study comparing the two treatments. Our objective was to investigate and compare the clinical and cost effectiveness and complication rates of ankle replacement against ankle arthrodesis in the treatment of end-stage ankle osteoarthritis in patients aged 50-85 years. Methods: 17 NHS centres and 35 surgeons across the United Kingdom participated. Formal Ethics committee approvals were obtained. A Trial Management Group was overseen by a Trial Steering Committee, and an Independent Data Monitoring Committee. Randomisation was carried out using a secure on-line service and was stratified by surgeon and the presence or absence of adjacent joint OA (based on an independently reviewed preoperative MRI scan). Participants were randomised 1:1 to either TAR or ankle fusion. The primary outcome was the change in the Manchester Oxford Foot & Ankle Questionnaire (MOXFQ) walking/standing domain scores between pre-operation and 52 weeks post-operation. Secondary outcomes measures included FAAM; FAAM (ADL); and Sport subscale scores. Quality of life was measured using the EQ-5D-5L. Total range of motion was measured using a validated method. Radiological parameters and adverse events were captured. Health economic analysis used mean incremental cost per quality-adjusted life years (QALY) gained. Results: 1600 patients were screened for eligibility. 330 participants were consented and 303 were randomised; 282 underwent surgery and attended follow-up visits. Mean age was 68 years (71% male). The aetiology of OA was post-trauma in 60%, with 6% patients having inflammatory OA. 42% had MRI evidence of OA in the adjacent joints. The groups were well balanced at baseline on all other parameters including deformity, range of motion and baseline clinical and quality of life scores.42% had MRI evidence of OA in the adjacent joints. 54% TARs used were fixed bearing; 46% were mobile bearing. 61% of fusions were performed arthroscopically. We present all outcomes including adverse effects (death; thromboembolic events; reoperation and revision); radiological findings; and range of motion. We also present subgroup analyses looking at the performance of fixed versus mobile bearing implants; differences by age; and by the presence or absence of adjacent joint OA. Conclusion: This is the first publicly funded, multicentre, prospective, randomised clinical trial comparing the clinical and cost effectiveness of ankle replacement against ankle fusion. It is also the first study in surgery to have detailed prospectively captured health economic data to be able to feed into the reimbursement discussions on these life transforming treatments. Due to contractual requirements of the funders the formal results cannot be released until the final report has been submitted for peer review which will not happen until the end of April 2021. The paper is submitted on behalf of the TARVA Study Group.

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Fonotova, Olga V., et Maria D. Ukolova. « The impact of foreign economic sanctions on commercial contracts ». Vestnik of Saint Petersburg University. Law 13, n^o 4 (2022) : 963–74. http://dx.doi.org/10.21638/spbu14.2022.408.

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Foreign economic sanctions were in the focus of domestic lawyers’ attention for half a dozen years. The new legal regime for persons directly or indirectly involved in sanctioned cross-border commercial activities has been studied in science mainly in the context of public law, and — in the applied aspect — through the prism of compliance procedures. However, no less important is the problem of sanctions regulation in its embodiment in the private law instruments of contract law. The purpose of the study is to summarize and analyze the effectiveness of the accumulated practice of the use of pre-contractual and contractual mechanisms to manage the risks caused by foreign restrictive measures. To achieve the goal, general scientific methods of analysis, synthesis, generalization, as well as the comparative legal method and approaches of economic and empirical analysis of law are used. Following the presentation of the leading approaches of the Russian state courts to the legal qualification of economic sanctions, the most promising options to manage the risks of sanctions for business at the pre-contractual and contractual stages are studied. In line with best business practices, pre-contractual mechanisms of compliance procedures (external and internal compliance) as well as contractual ways to mitigate sanctions risks proved to be the most effective for alleviation of the sanctions burden. Both sets of measures are developed and introduced into the daily routine by business participants themselves. Contractual regulation makes a decisive contribution to reducing the degree of negative legal consequences for business. To effectively manage risk, representatives of the business community use a wide range of contractual provisions: sanctions clauses, force majeure clauses, currency choice clauses, applicable law clauses and arbitration clauses. The success of such contractual initiatives, strengthened by the development of standard forms and terms of commercial contracts, is confirmed by judicial and business practice.

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Masik, Mariya Zinovievivna. « FEATURES OF RISK MANAGEMENT AFTER REALIZING PPP PROJECTS ». UKRAINIAN ASSEMBLY OF DOCTORS OF SCIENCES IN PUBLIC ADMINISTRATION 1, n^o 12 (14 février 2018) : 179–90. http://dx.doi.org/10.31618/vadnd.v1i12.90.

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The article is devoted to the clarification of the peculiarities of risk management during the implementation of PPP projects. The author identifies a set of risks for a private partner, business risks of PPP projects and the main risks associated with the protests of the public, as well as public and international organizations. The typical risks of PPP projects are presented, including force majeure, political risks, profitability risks, operational, construction, financial risks, and the risk of default. The world experience of sharing risks between the partners is presented. Also named are the main methods for assessing the risks of PPP projects. It has been determined that the conditions on which the parties should reach agreement in order for the contract to be concluded are essential. Risk management can be implemented within the framework of the essential conditions for the allocation of risks. However, the provisions of the law provide for the allocation of only those risks identified by the results of an analysis of the effectiveness of the PPP project. Legislation does not directly determine how risks can be allocated to the risks identified during the pre-contract negotiations (or even at a later stage), but not taken into account in the analysis of efficiency. For example, suggestions on the terms of the partnership agreement as part of the bidding proposal may include suggestions on risk management mechanisms. There are no definite and can not be fully defined possible ways of managing risks in view of their specificity for a particular project. For this purpose, it is advisable to provide for a period of familiarization with the draft tender documentation and the possibility of making changes to it based on the findings received from potential contestants. It is also advisable to foresee cases in which it is possible to review certain terms of the contract without a competition. It is substantiated that the law does not restrict the possibility of foreseeing specific terms of an agreement on the implementation of the PPP project or to conclude additional (auxiliary) contractual instruments (for example, an investment agreement). At the same time, when laying down conditions not provided for by law, it is necessary to take into account the scope of competence of the state partner. Also, in order to ensure the principle of equality of conditions, the state partner should provide such additional conditions in the tender documentation.

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Sood, Muhammad. « Mechanism of Business Contract Drafting in Supporting Economic Activities ». Unram Law Review 4, n^o 2 (27 octobre 2020) : 193–204. http://dx.doi.org/10.29303/ulrev.v4i2.124.

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The development of business contracts in supporting economic activities, especially in the trade sector, is inseparable from developments in the field of law. Thus, economic actors should understand the contract design method. This article aims to analyze the regulations of business contracts both nationally and internationally, and analize the mechanism of business contract draftingin supporting economic activity. This article is sourced from the results of normative legal research; therefore the method of approach used is the legal approach and conceptual approach. The results of the study indicates that the legal sources which form the basis for regulating business contracts include national law as regulated in Article 1457-1540 of the Civil Code; contract documents; international agreements in the field of contract; court decisions regarding business contracts; and doctrines in the field of contract law. The business contract mechanism includes 3 stages, namely: 1) Pre contractual includes: negotiations on the delivery, delivery and payment of goods; risk of loss if there is a default and procedure for resolving contractual problems; make a Memorandum of Understanding as an initial guideline for the understanding of the parties; Feasibility study concerning the prospects of business contracts made by the parties; 2) Contractual or contractual arrangements include, writing the initial manuscript, revising the manuscript, exchanging draft contracts, revising and writing the final manuscript, and signing of the contract. 3) Contract contractual or contract completion where the parties are responsible for providing guarantees or guarantees that the agreed contract is executed and completed properly. Understanding the mechanism of contract design will facilitate business activities carried out by the parties.

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Ardyo, Bebeto. « Formulasi Pengaturan Tahapan Pra Kontrak dalam Proses Pembentukan Kontrak di Indonesia ». JURNAL YUSTIKA : MEDIA HUKUM DAN KEADILAN 22, n^o 02 (12 juin 2020) : 84–93. http://dx.doi.org/10.24123/yustika.v22i02.2406.

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The increasement of human needs in society goes hand in hand with the development of technology. To meet these needs, there must be interaction between people which sometimes has the potential to cause disputes. That’s why a contract is needed. The existence of a contract guarantees legal certainty regarding protection of the rights of the parties and also the obligations that they must fulfill. There are several stages of contract formation which consist of pre-contract and agreement between the parties. According to the system in the Book III of Indonesia’s Code of Civil Law, consensus is the base for the formation of contract that means once the agreement has reached between the parties then a contract is formed. Indonesia’s Code of Civil Law doesn’t yet regulate pre-contract stages of contract formation, even though these stages are equally important. The regulation of pre-contract stages are usually set in the common law system, but along with the times, the regulation of pre-contract stages should also be regulated in the civil law system. As a comparison, Het Nieuw Burgerlijke Wetboek (New Civil Code of Netherlands) has already regulated that pre-contract stages, although the Netherlands is a country that implements civil law system. The pre-contract stages are very important to be regulated in Indonesia because there are many potential pre-contractual issues. This paper aims to formulate the outline of what needs to be regulated in the pre-contract regulations. Keywords : Interaction, Contract, Formation, Civil Code

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Sattari, Ebrahim Shoarian. « Observation of Good Faith Principle in Contract Negotiations : A Comparative Study with Emphasis on International Instruments ». Australian Journal of Business and Management Research 03, n^o 09 (3 septembre 2013) : 56–61. http://dx.doi.org/10.52283/nswrca.ajbmr.20130309a06.

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Good Faith is one of the important principles in contract law. This principle is inherited from Roman law and it has been mostly developed in civil law system. Observation of Good faith and Fair dealing in French and German law and many other countries is considered as legal obligation. Good faith, also, is of special stand In Chinese law of contract. Since Good faith is considered as important and valuable, it has been recognized in Common Law System and adopted in English and American law. Islamic law also contains numerous examples of obligations that are based on Good Faith principle. Nowadays, good faith principle has been incorporated in important international instruments such as CISG, UPICC, PECL, and DCFR and its scope has been developed. If good faith principle was being considered in fulfilling of contracts, today it also is considered as important in pre-contractual and conclusion stages of contracts. The aforementioned documents contain regulations for observing good faith in preliminary negotiations, conclusion of contract, fulfilling of contract and the interpretation thereto. The present Article is attempted to show that Good faith is important in all stages including preliminary negotiation and it should be incorporated in domestic legislations. Remedy for breach of this duty in the pre-contractual sphere should be limited only to compensation for damages.

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Sonnekus, JC. « Regterlike herverdelingsdiskresie vir batedeling by egskeiding beleef ’n heropstanding ondanks grondwetlike bedeling téén arbitrêre ontneming sonder vergoeding ». Tydskrif vir die Suid-Afrikaanse Reg 2022, n^o 4 (2022) : 603–39. http://dx.doi.org/10.47348/tsar/2022/i4a1.

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The recognition of and respect for the party autonomy of every legal subject of majority not limited by any personal cognitive handicap is part and parcel of the foundation of an orderly legal community governed by the rule of law. “Making rules of law discretionary or subject to value judgments may be destructive of the rule of law” (Bredenkamp v Standard Bank of South Africa Ltd 2010 4 SA 468 (SCA) 481E). The discretionary power of a divorce court under section 7(3) of the Divorce Act 70 of 1979 stems from before the current constitutional dispensation. Almost thirty years after the acceptance of the constitutional values of the current system, it was hoped that as time went by, the transitional exception dating to 1984 that exhibits clear elements of arbitrariness would be relied on with declining frequency. There is only a limited number of marriages still in existence concluded before November 1984 with an ante-nuptial contract providing for the proverbial “cold exclusion of all benefits” that could potentially at this late stage in the spouses’ lives be expected to end in the divorce court justifying a reliance on this section. The act limits the discretionary power to explicit conditions: it can be considered only where the divorce concerned a marriage concluded before the commencement of Act 88 of 1984 with an ante-nuptial contract that excluded accrual sharing and any form of asset sharing and in the absence of any agreement at any time between the erstwhile spouses regarding the division of their assets. Provided these conditions are met, the court can order that such assets, or such part of the assets of the other party as the court may deem just, be transferred to the first-mentioned party (s 7(3)). In all these circumstances a valid ante-nuptial contract exists to which both parties agreed in the presence of a notary public and the applicant in reality never acquired any claim to the other party’s assets. The applicant in addition represented to the other spouse, the notary public and the public at large a claim would never be made to any of the respondent’s assets. “Reasonableness and fairness are not freestanding requirements for the exercise of a contractual right. … Acceptance of the notion that judges can refuse to enforce a contractual provision merely because it offends their personal sense of fairness and equity will give rise to legal and commercial uncertainty” (Potgieter v Potgieter NO 2012 1 SA 637 (SCA) 650F-H). In Greyling v Minister of Home Affairs ((40023/21) 2022 ZAGPPHC 311 (11 May 2022)) the court regarded the upholding of the claim of the applicant contrary to the explicit misrepresentation by the applicant that she is in agreement with the terms contained in the notarially registered ante-nuptial contract of 1989 governing the marriage, potentially fair. The court ordered the first condition in section 7(3) of Act 70 of 1979, limiting its application to pre-November 1984 marriages, unconstitutional. This judgment may be popular and in line with what the woman in the street might regard as fair, presumably abandoning the principle of pacta sunt servanda as well as the principles underlying estoppel, but does not bode well for the upholding of the rule of law. “The court does not as yet sit, as under a palm tree, to exercise a general discretion to do what the man in the street, on a general overview of the case, might regard as fair” (Springette v Defoe 1992 2 FLR 388 391). It is argued that legal certainty will not be enhanced should the constitutional court confirm this judgment. An alleged reliance on principles or policy exclusively based on common law jurisdictions as justification for the recognition of such a discretionary power under these circumstances, without any consideration of the position under civil law systems which indeed share common roots with specifically the South African private law system is once more an example of the demise of our jurisprudence where legal professionals seem to be unable to do proper, relevant and reliable comparative legal research. Since the husband in the Greyling case did not even oppose the claim of his spouse (all prior to a divorce application) and chose to abide by the court’s decision, it is indeed strange that the court refrained from referring to and recognising that the parties could at any stage since 1989, have relied on section 21(1) of Act 88 of 1984 to have effected a change in their matrimonial property regime. It reeks of misuse of the court process for the court, under these circumstances, to hold as unconstitutional that part of section 7(3) as being the only possible remedy for the claimant against the perceived injustice she would be suffering on divorcing her husband because of their matrimonial property regime, is mind-blowing. The only benefit of not relying on section 21(1) would be to not be bound by the requirements contained in section 21(1)(a-c) – there are sound reasons for the proposed change; sufficient notice of the proposed change has been given to all the creditors of the spouses; and no other person will be prejudiced by the proposed change – and that would constitute misuse. Section 36(1)(e) of the constitution provides that the rights in the bill of rights may be limited but only in terms of a law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom (party autonomy), taking into account all relevant factors, including less restrictive means to achieve the purpose. It is clearly not the case in instances like these.

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Teremetsʹkyy, V., et N. Huts. « PROCEDURE NOVATIONS FOR CONCLUDING INDEPENDENT CONTRACTOR AGREEMENTS ». Scientific Notes Series Law 1, n^o 12 (octobre 2022) : 176–81. http://dx.doi.org/10.36550/2522-9230-2022-12-176-181.

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The article is focused on defining procedure novations for concluding independent contractor agreements. The existence of two tendencies in the legal construction of the procedure for concluding an independent contractor agreement has been emphasized: unchanged architectonics of the procedure for concluding an acceptance and introducing novation elements into this system, which depend on the method of concluding and the purpose of the corresponding agreement. The general and special procedures for concluding independent contractor agreements have been characterized. General procedure – is when proposals set out in the offer coincide with the acceptance. Special procedure for concluding an independent contractor agreement is implemented in regard to public, defense procurement. The content of the stages of concluding an independent contractor agreement has been revealed, in particular the offer and acceptance. Specific features of concluding an independent contractor agreement with Diia-City residents have been researched. It has been emphasized that the conclusion of an independent contractor agreement in the digital environment forms a special legal regime of civil legal relations, which arise, are changed, are terminated in this environment. At the same time, the consumer receives a positive effect from the electronic agreement in the real, material world, and the product or service has the appropriate objective form. It has been proved that the institution of assurance can be applied in corporate, labor legal relations, relations in the field of intellectual property law, innovation law, foreign economic activity. It has been stated that this institution includes the following elements: 1) pre-contractual contacts of the parties (negotiations); 2) obtaining assurances and guarantees; 3) consideration of assurances and guarantees; 4) formation and provision of the offer; 5) consideration of the offer; 6) acceptance of the offer. It has been established that the procedure of concluding an independent contractor agreement for public, defense procurement is characterized by: the presence of an imperative element in the procedure of concluding an agreement; mandatory compliance with the procedure for concluding an agreement; lack of pre-contractual contacts of the parties: expanded public offer; planned procurement, i.e. the conclusion of a future agreement; narrowing the principle of contractual freedom. The lack of practice in applying the institution of assurance has been emphasized.

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Anggraeny, Isdian, Tongat Tongat et Wardah Dinnar Rahmadanti. « URGENSI PELAKSANAAN TAHAPAN PERSIAPAN PENYUSUNAN KONTRAK OLEH PELAKU BISNIS DALAM MENGKONTRUKSI HUBUNGAN BISNIS ». Yurispruden 3, n^o 1 (31 janvier 2020) : 1. http://dx.doi.org/10.33474/yur.v3i1.5013.

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ABSTRACT Hypothetically-theoretical, almost certainly, without adequate understanding of the business relations agreement will not go well. So, every business person must understand the agreement. Departing from such needs, this article presents two fundamental issues as a material discussion. First, What are the elements that business people must consider in the preparation phase of the business contract? Secondly, What is the urgency of implementing a contract planning preparation phase by business people? Through normative and juridical studies, the explanation is obtained as follows. Business contracts are conducted through the following phases: Pre-contracted stages, contractual stages, and post-contractual phases. As an effort to make an ideal, systematic, and safe contract for the parties, it is necessary to maturation in the preparation phase of the contract drafting. The Implementation of the preparation phase of the business contract is very important so that the contract can be held accountable legally and can be understood by the parties.Keywords: Contract planning, business people, business relationships ABSTRAK Secara hipotetis-teoretis, hampir dapat dipastikan, tanpa ada pemahaman yang memadai tentang perjanjian hubungan bisnis tidak akan berjalan dengan baik. Sebegitu urgennya, maka setiap pelaku bisnis harus memahami tentang perjanjian. Berangkat dari kebutuhan yang demikian, tulisan ini menyajikan dua masalah pokok sebagai bahan pembahasan. Pertama, apa saja unsur-unsur yang harus diperhatikan oleh Pelaku Bisnis dalam tahapan persiapan kontrak bisnis? Kedua, apa urgensi pelaksanaan tahapan persiapan perancangan kontrak oleh Pelaku Bisnis? Melalui kajian secara yuridis normatif, diperoleh paparan penjelasan seperti berikut. Kontrak bisnis dilakukan melalui tahapan seperti berikut: tahapan pra kontratual, tahap kontraktual, dan tahap pasca-kontraktual. Sebagai upaya membuat kontrak yang ideal, sistematis, dan aman bagi para pihak maka perlu pematangan dalam tahap persiapan penyusunan kontrak. Pelaksanaan tahapan persiapan penyusunan Kontrak bisnis sangat penting agar kontrak yang dibuat bisa dipertanggungjawabkan secara hukum dan dapat dipahami oleh para pihak.Kata kunci : perancangan kontrak, pelaku bisnis, hubungan bisnis

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Smith, Judith, Sarah Parkinson, Amelia Harshfield et Manbinder Sidhu. « Early evidence of the development of primary care networks in England : a rapid evaluation study ». Health and Social Care Delivery Research 10, n^o 27 (septembre 2022) : 1–108. http://dx.doi.org/10.3310/gbuo3259.

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Background Primary care networks are groups of general practices brought together in July 2019 to hold shared budgets and develop new services in response to NHS England (now NHS England and Improvement) policy. This study examined the early implementation of primary care networks, especially what has helped or hindered progress, how they operate in relation to pre-existing collaborations and issues for rural networks. Objective To produce early evidence about the development of primary care networks to inform policy for their future development. Our research questions were to investigate (1) the contextual background of primary care networks; (2) the rationale for general practices to enter into collaborations; (3) the early learning from establishing primary care networks; (4) barriers to and facilitators of effective collaboration across general practices; and (5) the likely future progress of primary care networks in the English NHS, including in the light of COVID-19. Design A qualitative cross-comparative case study evaluation comprised four work packages: (1) a rapid evidence assessment; (2) a workshop with academics, policy experts and patient/public representatives; (3) interviews with stakeholders, observations of meetings, a survey and documentary analysis across four case study sites; and (4) analysis and synthesis of findings to develop recommendations for the next stage of the development of primary care networks. Results Primary care networks have been implemented in a timely manner and have established a range of new local health services. Previous general practice collaborations provide much-needed support in terms of management, leadership and infrastructure, although they can be a source of tension within networks where interests, goals and ways of working do not align. Reasons for collaborative working typically focus on the sustainability of primary care and a desire for better-integrated services, although those cited as the basis for joining primary care networks were mostly related to policy and financial incentives. Early evidence reveals operational success in establishing organisational structures, recruiting to new roles and providing services as required by the national specification. Effective management and leadership, particularly with respect to having a committed clinical director, and constructive relationships between primary care networks and clinical commissioning groups, are important in ensuring success. In rural areas there was some perceived lack of fit with aspects of the primary care network specification, alongside existing challenges of providing primary care to rural populations. Limitations Arranging and carrying out interviews proved difficult given the workload associated with implementing networks and wider time pressures. Following the onset of the COVID-19 pandemic, the team was unable to undertake planned face-to-face workshops to explore findings. Given that primary care networks were in their first year of operation at the time of this evaluation, we were cautious in drawing definitive conclusions. Conclusions Key lessons focus on increasing the engagement of general practices and wider primary care teams with networks; building leadership and management capacity to support networks in fulfilling their contractual obligations and meeting local health needs; and clarifying how primary care networks will operate in the post-COVID-19 health and social care system. Future work Future work could involve evaluating the impact and effectiveness of primary care networks using quantitative and qualitative measures; undertaking research in both rural and urban areas, exploring the extent to which this context is significant; examining the cost and effectiveness of sustaining and extending leadership and management support within primary care networks; and understanding the relationships between primary care networks and the wider health and care system. Study registration This study is registered as PROSPERO CRD42018110790. Funding This project was funded by the National Institute for Health and Care Research (NIHR) Health and Social Care and Delivery Research programme and will be published in full in Health and Social Care Delivery Research; Vol. 10, No. 27. See the NIHR Journals Library website for further project information.

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