Littérature scientifique sur le sujet « Quasi ex contractu »

OBLIGATIONES QUASI EX DELICTO . FROM THE RESEARCH ON THE SOURCES OF OBLIGATIONS IN THE ROMAN LAWSummary There is scarce literature on the sources of Roman obligatio. The opinions presented therein are very often contradictory, mostly because this issue was variously defined in the Roman law. On the one hand, Gaius in his Institutiones, which he wrote in the middle of the 2nd century AD, claimed that every obligation is derived from either ex contractu or ex delicto. Whereas on the other hand, Justinian’s Institutiones, constituting part of his codifications from the 6th century AD, divided the sources of obligations into four types, supplementing Gaius’ division with obligationes quasi ex contractu and quasi ex delicto (maleficio). The above issue is analysed in the first part of this article, where the attempts (made by Ulpian and Modestinus, as well as by the author of Res cottidianae) to supplement the classification of the sources of obligations proposed by Gaius are also presented. Gaius’ classification, which proved useful for the didactic goals, has become insufficient in the course of time.In the Gaian and Justinian tradition concerning the sources of obligations there are two elements which spark controversy. The first one is the meaning ascribed to the term contractus in Gaius’ Institutiones. Another questionable matter is quasi-de\ictsy since a range of various hypotheses exists in the doctrine of the Roman jurists concerning the criteria regarding this type of liability. This issue is discussed in the second part of the article. Analysing the above mentioned sources, the author comes to a conclusion that out of all theories set forth until now, the only valid one is the theory which assumes the so-called - in modern terminology (objective liability as a basis of quasi-delicts. He also notes that the question of the exact number of cases which could be included into this category still remains open, since different cases of the so-called objective liability existed and they are not called quasi-deX\cts in the sources.

Many future fusion devices will rely heavily, if not solely, on electron cyclotron (EC) heating subsystems to provide bulk heating, instability control (neoclassical tearing mode (NTM) stabilization), and thermal instability control. Efficient use of the installed heating power (gyrotrons) requires low-loss transmission of the power over 100s of meters since the mm-wave sources need to be installed where the stray magnetic field has a small amplitude. Transmission lines are used to propagate the mm-wave power over this long distance. Quasi-optical techniques (mirrors) are used at W7X and are planned for DTT, for example. Guided components are installed at DIII-D, TCV and elsewhere and are planned at JT60SA and ITER. High power test facilities exist to evaluate the power transmission of assemblies of guided components (transmission lines). The European test facility FALCON was setup by Switzerland and Fusion for Energy (F4E) in Lausanne Switzerland at the Swiss Plasma Center (SPC) in the Ecole Polytechnique Fédérale de Lausanne (EPFL). Operations are funded through a framework contract with F4E. SPC operates the facility. Two ITER-class 170GHz gyrotrons are housed within the facility and used to evaluate the thermal behaviour of components provided by various ITER partners. Loss measurements are presented for miter bends and waveguides of several materials at two different diameters. The results are used to model the expected losses in the ITER ex-vessel waveguides (EW) of all five EC launchers.

Agricultural production is widely discussed in the context of imbalances in bargaining power in the food chain and farmers’ difficult position relative to their contractors. The paper attempts to explain the nature and reasons of the bargaining power imbalances that may lead to hold-up relationships in the farming sector in the light of the Transaction Costs Theory (TCT). In order to provide a certain focus, the theoretical discussion is illustrated by an empirical example of backward vertical relations between farmers and input (feed) suppliers. The article investigates the reasons for long-term and stable relationships between farmers and feed suppliers and whether these may be partly explained by an imbalance in bargaining power, trapping farmers in the specific monopolistic (hold-up) relations with their contractors.Overall, the picture that emerges from the analysis does not support the assumptions that farmers are experiencing a large imbalance in bargaining power with regard to their input contractors, and are trapped in a specific monopolistic (hold-up) relationship with them. Despite that there is no written contract between the farmers and their suppliers, relations are based on unwritten, privately enforced terms. The parties tend to respect the mutually agreed relationship rather than breaching it ex-post in order extract the holdup quasi-rents. In this case a binding written supply commitment may increase transaction costs, limit the freedom to change supplier and reduce the farmer’s bargaining power over the feed producer by adding additional inter-dependency.

The purpose of this thesis is to make a contribution to the reflection on quasi-contracts by surveying the most problematic aspects of the subject. In particular, through the analysis of the evolutionary path made starting from the classification of the sources of obligation, it will be attempted whether the quasi-contract is already attested in the classical Roman jurisprudential thought and, at the same time, to understand what is the process that led to the development of the same. The analysis is structured in four chapters. In the first one, it is outlined a brief historical evolutionary framework of the quasi-contract that starts from the reflections made by Roman jurists, in the main historical periods, and then reaches, passing through the discipline of common law and the doctrine of the seventeenth and eighteenth centuries, the reasons that led to its non-acceptance within the current regulatory framework of the Italian Civil Code of 1942. In the second part, starting from the summa divisio obligationum contained in the Institutiones of Gaius, the first question is why a partition that is originally presented as basically complete, is not in fact so, and then what can be, following the close relationship between mutuum and solutio indebiti, the perspective from which the jurist moves in the elaboration of his partition. All of this, trying to establish whether, starting from the proper juridical foundation on which the obligationes ex variis causarum figuris are based, there is any clear dialectical purpose between what Gaius asserts in his multifunctional institutional manual and the subsequent elaboration envisaged in the Libri rerum cottidianarum sive aureorum. In the third one, after that, an attempt will be made to demonstrate both the truthfulness and completeness of what has been transmitted to us in the Res cottidianae, about the tripartition of the sources of obligations and the figures that can be traced back to it, especially in the light of what was the subsequent elaboration expressed in Justinian’s Institutions, and then, questioning the relationship between obligatio and actio in personam, to establish whether, before and during the period in which Gaius lived, the cases listed among the obligationes ex variis causarum figuris were known, and likewise to ascertain whether they were treated in the same way as obligations that did not come within the category of contracts, but could, however, be approached analogically to them. Finally, in the fourth chapter, taking its cue from Justinian’s systematization, in which the threefold division of the sources of obligations was replaced by a fourfold division in which, in addition to obligations under contract and delict, there are obligations quasi ex contractu and those quasi ex delicto, a review is made of the individual obligationes quasi ex contractu contained in the Iustiniani Institutiones, in relation to those provided for in the Res cottidianae, and concludes with an analysis of the relevant passages, devoted to quasi contractus, in the Greek Paraphrase to the Imperial Institutions of Theophilus.

This PhD dissertation is about legal fictions in private law. A legal fiction, broadly, is a false assumption knowingly relied upon by the courts. The main aim of the dissertation is to formulate a test for which fictions should be accepted and which rejected. Subsidiary aims include a better understanding of the fiction as a device and of certain individual fictions, past and present. This research is undertaken, primarily, to establish a rigorous system for the treatment of fictions in English law - which is lacking. Secondarily, it is intended to settle some intractable disputes, which have plagued the scholarship. These theoretical debates have hindered progress on the practical matters which affect litigants in the real world. The dissertation is divided into four chapters. The first chapter is a historical study of common-law fictions. The conclusions drawn thereform are the foundation of the acceptance test for fictions. The second chapter deals with the theoretical problems surrounding the fiction. Chiefly, it seeks precisely to define 'legal fiction', a recurrent problem in the literature. A solution, in the form of a two-pronged definition, is proposed, adding an important element to the acceptance test. The third chapter analyses modern-day fictions and recommends retention or abolition for each fiction. In the fourth chapter, the findings hitherto are synthesised into a general acceptance test for fictions. This test, which is the thesis of this work, is presented as a flowchart. It is the author's hope that this project will raise awareness as to the merits and demerits of legal fictions, de-mystify the debate and bring about reform.