Letteratura scientifica selezionata sul tema "Civil law – australia – interpretation and construction"

The continuing existence and operation of the traditional law of Aboriginal and Torres Strait Islander peoples has – relatively recently – been explicitly acknowledged in Australian law. In emerging case law on the subject, the High Court of Australia has confirmed the common law recognition of the survival of Indigenous Australian law. However, in determining what it is that is recognized by the common law – in interpreting Indigenous Australian ‘traditional laws and customs’ – the High Court has disregarded the knowledge reposed in those with authority or expertise in Indigenous Australian law, relying instead upon concepts and assumptions from the jurisprudence of English legal philosopher, HLA Hart. The influence of Hart’s theory in the Australian High Court’s interpretation of Indigenous Australian ‘traditional laws and customs’ is problematic, because it contains an obvious pre-legal–legal dualism reminiscent of the ‘state of nature’ – ‘civil society’ mechanism that was instrumental in the application of terra nullius to Australia. At the heart of The Concept of Law lies the notion of progression from a ‘primitive community’ with only primary rules, to an advanced legal system with a combination of both primary and secondary rules. In this article, I investigate how Indigenous Australians are positioned in relation to Hart’s pre-legal–legal dualism. I examine the ‘primitive’, pre-legal society in The Concept of Law, and its counterpart, the advanced legal system, to analyze the position of Indigenous Australian societies and law in Hart’s scheme. Finally, I analyze the construction of the dualism and consider its impact on the High Court’s interpretation of Indigenous Australian ‘traditional laws and customs’.

The Security Token Offering (STO) represents a fusion of traditional securities and blockchain token issuance, categorized into asset-based STO, derivatives-based STO, and payment-based STO, establishing a novel tripartite legal relationship among the issuer, trading platform, and subscriber. This study commences by defining the essence of STOs, delving into the fundamental legal dynamics, and scrutinizing the primary challenges in localizing construction, specifically the limitations of the conventional civil law system and the complexities in establishing a rights bundle paradigm. In accordance with prevailing regulations, it advocates for a localized construction approach, involving an expanded interpretation within the criminal law and civil law systems. The adaptation within the criminal law system involves recognizing the property attributes to prevent classification as illicit tokens or other violations. Meanwhile, the adaptation within the civil law system entails endorsing the legalization of security token trading and validating the legitimacy of entrusted investment and trading activities involving security tokens.

The article presents the problem of the interpretation of art. 3 point 11 of the polish Construction Law act. Abovementioned provision statues the definition of the notion of “right to use the real property for construction purposes”. Literal wording of art. 3 point 11 may seemingly indicate that this right may be arised only from private (civil) law’s legal relationships. This paper aims to indicate that such interpretation of the art. 3 point 11 of the Construction Law act is incorrect. The author proves that the administrative act like the permit for building structures localisation in the road lane (statued in the Public Roads Act) may be considered as independent source of the investor’s right to use the real property for construction purposes.

After the construction project is completed, if the contract is judged as invalid by the court at this time, it will involves the application of Article 157 of the Civil Code of People’s Republic of China: For example, how to return the completed construction, how to compensate for the discount if it cannot be returned, and what standard should be adopted for the discount compensation. In order to solve the above problems, the Supreme People's Court issued the "Interpretation on the Application of Law to the Trial of Construction Contract Disputes" (hereinafter referred to as "Interpretation"), which mentions that the above problems should be regulated in judicial practice through the invalid construction contract "treated as valid". However, the principle encounters many difficulties both in theory and practice. For example, how to avoid its counterproductive effect of encouraging the signing of invalid contracts to destroy the market order, whether to use the contractual standard or the engineering quota standard in the project settlement, and how to interpret the scope of "effective" to better protect the rights and interests of the parties. This paper mainly discusses the background of the development of construction industry from 2005 to 2020, the definition of the principle of invalid building construction contract, the applicable situation, the limitations in theory and practice, and the final reflections and countermeasures.

The paper explores the main meaning of understanding of interpretation technologies based on the principle of good faith (bona fides). For this purpose, a compratibly historical method of private law is applied. It was substantiated the understanding of the process of development for the Roman legal institution of interpretation (ius interpretātio) as a transformation of its historical forms or sub-institutions. Were further developed the historical reconstruction of the Roman legal institution of iudicia bonae fidei as the most important for the formation of ius interpretātio by focusing on the study of key legal constructions pro boni viri arbitrio. This made it possible to obtain information that can be reduced to three positions: (1) The essence of the Principle of Good Conscience has a constant nature in world history; (2) In Roman private law, a contextual approach to interpretation was used, and in modern civil law of Ukraine – fundamentally different, textual; (3) The subjective criterion of common sense requires the implementation of the Civil code of Ukraine. It provides changes in the official legal structure of the priority of the literal interpretation of the content of the transaction, enshrined in Art. 213 of the CCU, on the construction of the rule of good faith interpretation, which is generally recognized in European contract law. Key words: comparative historical analysis, good faith, common sense, good faith interpretation, good faith contracts, claims of goodholders.

The Liability of an Investor to a Subcontractor (Art. 6471 § 5 k.c.)SummaryThe article answers a question w hether an investor in case of a contract for construction works will be liable to a subcontractor also when he paid the latter all dues (including the rem uneration). These doubts are grounded in the form ulation of art. 6471 § 5 of the Polish Civil Code, according to which the party concluding a contract with thesubcontractor and the investor as well as the performer bear a joint andseveral liability for the payment of remuneration due to the subcontractor for the performed construction works. Taking into consideration a linguistic interpretation of the provision, as presented in the doctrine, it should be considered that the investor’s payment of the remuneration for the work performed by the subcontractor is permissible. Nevertheless, the author takes a different position based on the functional interpretation and interpretation referring to the whole system of the civil law.

The article raises the problem of the use of language tools in the conclusion of contracts, allowing to mislead contractors. The author analyzes the normative and linguistic prerequisites that contribute to the emergence of the possibility of dual interpretation of treaties. A detailed analysis of the legal doctrine and legal acts is carried out. The attention is focused on the rules of law in which incorrect use of the Russian language can not only lead to double current, but also mislead the subject of interpretation. Indicates the issue of double meaning of legal terms, and different interpretation of concepts from the point of view of the Russian language and the Russian legal language. The author studies various means of the Russian language used in the drafting of the text of contracts. There is a critical attitude to the use of evaluative concepts by the legislator, which do not have a clear semantic content and can vary significantly among different subjects of law. The problem of inclusion in the content of the contract of “as if” dispositive and “as if” permissive rules that mislead the party to the agreement is raised. Analyses of the situation to include the erroneous statements due to incorrect syntactic construction of the text of the article. Proposals are made to eliminate the problems associated with the use of language tools in the conclusion of contracts.

In the novel 'Brave New World,' Aldous Huxley envisions a dystopian future marked by mass production of lab-grown individuals, each assigned to specific castes. In this article parallels are drawn between this dystopian scenario and the dangers posed by technology, particularly in the realm of personal data and digital identity. It explores the potential infringement on privacy and equality rights, emphasizing the need for legal protection amid the increasing use of Big Data. The discussion delves into the theoretical foundations of personal data, virtual identity, and stigmatization, examining the role of civil liability in addressing violations of digital rights. The article navigates through relevant legal frameworks, including the Brazilian Federal Constitution, Consumer Protection Code, Civil Code, General Data Protection Law, and the Law of Public Civil Action, to assess the responses that civil liability can provide in the context of virtual rights violations. It emphasizes the historical construction of law, highlighting the necessity for legal frameworks to adapt to technological and cultural advancements. Despite specific data protection legislation, the article underscores the challenges in enforcing existing rights and calls for a nuanced approach to legal interpretation in the evolving digital landscape.

This paper examines the approaches of three Israeli ultra-Orthodox halakhic decisors and rabbinical judges to civil law and adjudication in Israel. Based primarily on Israel’s building and condominium housing laws, it reveals that the approaches of these decisors appear largely to reflect their distinctive ideological and sociological stances towards Israeli civil law and its civil judicial system. Rabbis Israel Grossman and Shmuel Wosner confer halakhic validity on construction that is in violation of civil law, justifying it on the need to enlarge flats due to large family size and crowded conditions. On the other hand, Rabbi Asher Weiss objects to illegal building work, viewing it as “bad custom.” He maintains that religious Jews should serve as civil court lawyers and judges, regarding this as a holy undertaking. His attitude towards the civil judicial system is more sympathetic than that of Rabbis Grossman and Wosner. In each of their views, these Rabbis bring to their interpretation of Jewish law sources their distinctive ideological perspectives towards modern Israel’s civil law.

The purpose of this paper is to highlight the issues related to the clarification of the essence and legal construction of the surface right/ superficies, as initially regulated by the Moldovan legislator (until 01.03.2019), due to the fact that in the local literature there were different opinions with reference to this subject, which, consequently, led to the equivocal interpretation of the norms of law in the same matter, and this interpretation, respectively, offered different solutions of practical application of the norms regarding the institution of superficies. Thus, in this paper was analyzed the evolution of the right of superficies over time and highlighted the premises that led to the change of several rules governing the institution of superficies, but also the concept of real estate, in general.

Esta dissertação se propõe a uma investigação científico-dogmática das demandas relativas às teses repetidas, isto é, de mesma fundamentação jurídica. Para tanto, a partir da concepção histórica do processo civil, desde o seu nascimento até a mudança de paradigma com o surgimento das ações de massa, refletiu-se a respeito da descrição das melhores técnicas, tendo sido várias delas já inseridas em nossa legislação, para que assim se realize o direito de massa como um modelo de processo diferente do individual e do coletivo. Introduziu-se a noção de um processo de resultados práticos a partir da releitura do procedimento para casos diferenciados, de modo a ocorrer maior racionalização dos julgamentos. Também foi analisado o uso dos precedentes judiciais e suas variantes como meio de unificação da jurisprudência, o que denota maior aproximação ao direito de família do Common Law. A partir da demonstração de tais premissas, concluímos que é possível a construção de uma dogmática própria para as ações de massa, pois crucial para garantir maior segurança jurídica nas soluções de casos análogos.
This dissertation aims to research scientific-dogmatic of demands conceming repeated theses, in other words, with the same legal reasoning. Therefore, from the historical conception of civil procedure, from its birth to the paradigm shift with the emergence of mass action, reflected about the best techniques that were able to make the mass right as a model process other than the individual and the collective. Introduced the notion of a process of practical results from the rereading of the procedure for different cases in order to occur a greater rationalization of the judgments. Also discussed was the use of judicial precedents and its variants as a means of unification of the jurisprudence, which denotes closer to family law in the Common Law. After the demonstration of such assumptions, concluded that it is possible to construct a particular dogmatic for mass actions, as crucial to ensure greater legal certainty in the solutions of similar cases.

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This dissertation aims to research scientific-dogmatic of demands conceming repeated theses, in other words, with the same legal reasoning. Therefore, from the historical conception of civil procedure, from its birth to the paradigm shift with the emergence of mass action, reflected about the best techniques that were able to make the mass right as a model process other than the individual and the collective. Introduced the notion of a process of practical results from the rereading of the procedure for different cases in order to occur a greater rationalization of the judgments. Also discussed was the use of judicial precedents and its variants as a means of unification of the jurisprudence, which denotes closer to family law in the Common Law. After the demonstration of such assumptions, concluded that it is possible to construct a particular dogmatic for mass actions, as crucial to ensure greater legal certainty in the solutions of similar cases.
Esta dissertação se propõe a uma investigação científico-dogmática das demandas relativas às teses repetidas, isto é, de mesma fundamentação jurídica. Para tanto, a partir da concepção histórica do processo civil, desde o seu nascimento até a mudança de paradigma com o surgimento das ações de massa, refletiu-se a respeito da descrição das melhores técnicas, tendo sido várias delas já inseridas em nossa legislação, para que assim se realize o direito de massa como um modelo de processo diferente do individual e do coletivo. Introduziu-se a noção de um processo de resultados práticos a partir da releitura do procedimento para casos diferenciados, de modo a ocorrer maior racionalização dos julgamentos. Também foi analisado o uso dos precedentes judiciais e suas variantes como meio de unificação da jurisprudência, o que denota maior aproximação ao direito de família do Common Law. A partir da demonstração de tais premissas, concluímos que é possível a construção de uma dogmática própria para as ações de massa, pois crucial para garantir maior segurança jurídica nas soluções de casos análogos.

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Made available in DSpace on 2018-11-21T09:00:42Z (GMT). No. of bitstreams: 1 Leonard Ziesemer Schmitz.pdf: 2040475 bytes, checksum: 4703c1d0434a03117e5c00bb5132f267 (MD5) Previous issue date: 2018-09-19
Coordenação de Aperfeiçoamento de Pessoal de Nível Superior - CAPES
The present doctoral thesis seeks to deal with judicial presumptions, thus understood inferential reasoning about unknown facts, from facts known and proven in a concrete case. First, we want to identify if there are the spaces of discretion that are shielded by insufficient presumptive arguments. The work is divided into two parts, with three chapters each. The first part serves to establish theoretical premises, and the second part to approach more closely the topic of presumptions in court. The first chapter discusses the conditions of possibility for the interpreter of a particular case to become aware of the facts narrated by other Interpreter-Subjects. Further notes are given on how the ransom of the past occurs when the judge analyzes the evidence and the probative narratives of the parties. The second chapter deals with science and rationality as grounds for the relation between two facts – one known, one unknown. Considerations are made about generalizations from experience, which allow for deductive, inductive, and analogical reasoning. Also questioned is the sufficiency of the use of the argument of "rationality", often insufficient to infer. The third chapter discusses the relationship between evidence and truth, especially when a judicial presumption is often made in the name of the "pursuit of truth" in the judicial process. Moving on to the second part, the fourth chapter addresses the division of labor between parties and judge in the correctness of the facts, establishing limits of action of each Subject of the process. There is also talk of judicial evidentiary activism. The fifth chapter deals specifically with the presumptions and rules of experience (Article 375 of the CPC), which serve as argumentative basis for inferences. The sixth and final chapter captures presumptions in their practical use and speaks, in detail, of the decision to reorganize and organize the process (article 357 of the CPC), which may be an opportune moment for the correct treatment of the subject. Finally, conclusions are drawn about a possible criteriology for the legitimate and discursive use of inferential reasoning
A presente tese de doutoramento busca tratar das presunções simples ou presunções judiciais, assim entendidos os raciocínios inferenciais sobre fatos não conhecidos, a partir de fatos conhecidos e provados em um caso concreto. Quer-se, antes de tudo, identificar quais são os espaços de discricionariedade que se blindam por trás de fundamentos presuntivos insuficientes. O trabalho está dividido em duas partes, com três capítulos cada. A primeira parte serve para estabelecer premissas teóricas, e a segunda para abordar mais de perto o tema das presunções em juízo. O primeiro capítulo fala a respeito das condições de possibilidade para que o intérprete de um caso concreto tome conhecimento dos fatos narrados por outros Sujeitos-intérpretes. São feitas ainda anotações sobre a maneira como o resgate do passado ocorre quando o juiz analisa as provas e as narrativas probatórias das partes. O segundo capítulo trata da ciência e da racionalidade como fundamentos para a relação entre dois fatos – um sabido, outro não sabido. Fazem-se considerações sobre as generalizações a partir da experiência, que permitem raciocínios dedutivos, indutivos e analógicos. É também questionada a suficiência do uso do argumento “racionalidade”, muitas vezes insuficiente para presumir. O terceiro capítulo fala sobre a relação entre provas e verdade, especialmente quando uma presunção judicial frequentemente é feita em nome da “busca da verdade” no processo judicial. Dando início à segunda parte, o quarto capítulo discute a divisão de trabalho entre partes e juiz no acertamento dos fatos, estabelecendo limites de atuação de cada Sujeito do processo. Fala-se também do ativismo judicial em matéria de provas e da possibilidade de produção oficiosa de provas. O quinto capítulo trata especificamente das presunções e das regras da experiência (art. 375, do CPC), que lhes servem de base. O sexto e último capítulo capta as presunções em seu uso prático e fala, com detalhe, da decisão de saneamento e organização do processo (art. 357, do CPC), que pode ser um momento oportuno para o trato correto do tema. Por fim, são traçadas conclusões a respeito de uma possível criteriologia para o uso legítimo e discursivo do raciocínio inferencial probatório

Thesis (LLD (Public Law))—University of Stellenbosch, 2009.
ENGLISH SUMMARY: The point of departure of this dissertation is that transformation in South Africa depends on transformative politics – extra-institutional, substantive, oppositional, transformation-oriented politics. One challenge South Africa’s constitution therefore poses to courts is to take account of the impact of adjudication on transformative politics. The purpose of this dissertation is to investigate the relationship between adjudication and transformative politics within a specific context – adjudication of socio-economic rights cases. This relationship is commonly described in a positive light – either that adjudication of socio-economic rights cases promotes transformative politics by giving impoverished people access to the basic resources required for political participation; or that adjudication of such cases is in itself a space for transformative politics. Although there is much truth in both these descriptions, both under-estimate the extent to which adjudication also limits transformative politics. This dissertation focuses on the extent to which adjudication limits transformative politics – it comprises an analysis of socio-economic rights cases with the aim of showing how adjudication of these cases, despite positive results, also limited transformative politics. The theoretical aspects of this problem are outlined in the first chapter. After a description of the body of case law on which the analysis focuses two chapters follow in which two ways in which adjudication limits transformative politics are investigated. The first traces how courts in socio-economic rights cases participate in discourses about impoverishment that tend to describe the problem as non-political – specifically how courts tend to describe impoverishment as technical rather than political in nature; and how courts implicitly legitimise in their judgments liberal-capitalist views of impoverishment that insist that impoverishment is best addressed through the unregulated market. Then follows a chapter investigating how views of legal interpretation in terms of which legal materials have a certain and determinable meaning that can be mechanically found by courts limit transformative politics by insulating adjudication from critique and emphasising finality in adjudication. Throughout it is shown how courts can mitigate the limiting effects of adjudication, by legitimating the political agency of impoverished people, by using remedies requiring political engagement between opponents and postponing closure in adjudication, and by adopting a different approach to interpretation, that emphasises the pliability and relative indeterminacy of legal materials. Despite this, the conclusion of the dissertation is that courts can never wholly avoid the limiting impact of adjudication on transformative politics, but should rather aim to remain continually aware of it.
AFRIKAANS OPSOMMING: Die uitgangspunt van hierdie proefskrif is dat transformasie in Suid-Afrika afhang van transformatiewe politiek – buite-institusionele, substantiewe, opposisionele, transformasie-gerigte politiek. Een eis wat Suid-Afrika se grondwet daarom aan howe stel, is om ag te slaan op die impak van beregting op transformatiewe politiek. Die doel van hierdie proefskrif is om die verhouding tussen beregting en transformatiewe politiek binne ‘n spesifieke konteks – beregting van sake oor sosio-ekonomiese regte – te ondersoek. Meeste beskouinge van hierdie verhouding beskryf dit in ‘n positiewe lig - óf dat die beregting van sake oor sosio-ekonomiese regte transformatiewe politiek bevorder deur vir verarmde mense toegang tot basiese lewensmiddele te bewerkstellig sodat hulle aan politieke optrede kan deelneem; óf dat beregting van sulke sake opsigself ‘n spasie is vir transformatiewe politiek. Hoewel daar waarheid steek in beide beskrywings, onderskat hulle die mate waartoe beregting ook transformatiewe politiek kan beperk. Hierdie proefskrif fokus op hoe beregting transformatiewe politiek beperk - dit behels ‘n analise van sake oor sosio-ekonomiese regte met die doel om te wys hoe beregting van hierdie sake, ten spyte van kennelik positiewe gevolge ook transformatiewe politiek beperk het. Die teoretiese vergestalting van hierdie probleem word in die eerste hoofstuk beskou. Na ‘n beskrywing van die liggaam van regspraak waarop die analise fokus volg twee hoofstukke waarin twee maniere waarop beregting transformatiewe politiek beperk ondersoek word. Die eerste beskou hoe howe in sake oor sosio-ekonomiese regte deelneem aan diskoerse oor verarming wat neig om hierdie probleem as non-polities te beskryf - spesifiek hoe howe neig om hierdie problem as tegnies eerder as polities van aard te beskryf; en hoe howe liberaal-kapitalistiese sieninge van verarming, ingevolge waarvan verarming deur die ongereguleerde mark aangespreek behoort te word, implisiet in hul uitsprake legitimeer. Dan volg ‘n hoofstuk wat naspeur hoe sieninge van regsinterpretasie ingevolge waarvan regsmateriaal ‘n sekere en vasstelbare betekenis het wat meganies deur howe gevind word, transformatiewe politieke optrede beperk deur die openheid van beregting vir kritiek te beperk en finaliteit in beregting in die hand te werk. Deurgaans word gewys hoe howe die beperkende effek van beregting kan teëwerk, deur die politike agentskap van verarmde mense te legitimeer, deur remedies te gebruik wat politieke onderhandeling tussen opponente bewerkstellig en finale oplossings uitstel, en deur ‘n ander benadering tot interpretasie, wat die buigsaamheid en relatiewe onbepaalbaarheid van regsmateriaal erken, te omarm. Tog is die gevolgtrekking van die proefskrif dat howe nooit die beperkende effek van beregting op transformatiewe politiek geheel kan vermy nie, maar eerder deurgaans daarop bedag moet wees.

Contemporary South Africa prides itself on having a Bill of Rights. For 84 years (1910 to 1994) public administration regulated the general welfare and lives of inhabitants in the finest detail, while being subject to almost only the whims and political objectives of the governing authority. On 27 April 1994 the 1993 Constitution introduced a constitutional obligation and radical change to the manner in which public administration must be exercised. Today, still an infant in experience relating to a bill of rights, public administration must be exercised with the Bill of Rights as an integral part of this inhabitant / governing authority interaction. The primary aim of this study is to attempt to describe the manner in which public administration was exercised, firstly, during constitutional dispensations prior to 1994 and, secondly, since public administration became subject to constitutionally entrenched fundamental rights. The empirical investigation is aimed at exploring and analysing the extent to which public administration has realised the constitutional obligation in practice. The results of the empirical investigation highlighted, primarily, that the majority of the officials that participated in the survey do not know of the Bill of Rights, and that half of those who do know of the Bill have little knowledge of its provisions. More than half of the respondents lack awareness of section 195 of the 1996 Constitution, which states that public administration must be governed by democratic principles enshrined in the Constitution. Barely one tenth of respondents were informed of the significance of the Bill and its role regarding public administration. The majority of respondents have not of their own accord studied the Bill and the Bill does not have the desired effect on the manner in which public administration is exercised. Two thirds of respondents have mixed perceptions as to whether to serve the interests of inhabitants above the political objectives of the governing authority and less than a quarter of respondents give recognition to the Bill when rendering public services. It seems as if South African public administration has a long way to go in adhering to its constitutional obligation in practice.
Public Administration
D. Litt et Phil.(Public Administration)

Abstract Fundamental to so much discussion about equality in America has been the Supreme Court’s 1954 decision in Brown v. Board of Education declaring racially segregated schools unconstitutional. Yet critics have differed as to the success of the Court’s Brown decision in actually achieving equality in American life. Broadly speaking, there are two views about Brown. The conventional view holds that Brown is one of the two or three most important cases in American legal history. According to this interpretation, Brown supplied the impetus for the modern civil rights movement, demonstrated that courts, at least at times, can assert moral leadership, and emphasized that African Americans are entitled to live in the United States on terms equal to whites.

Abstract This chapter sets the scene for the remainder of the book by providing an overarching survey of the law across England and Australia, which governs express and implied terms in contracts generally. In doing so, it considers the interplay between general contractual principles and their regulation of contracts for work more specifically. The relationship between implication in fact and implication by law is also examined, as well as the relationship between implication and construction of contractual terms, including policy considerations for the distinction between implication and construction. The chapter considers the relationship between implication and interpretation, noting that the process of implying a term into a contract is no more than a facet of interpreting its ‘true meaning’. In that sense, it is acknowledged that it may sometimes be necessary to imply a term into a contract in order to make the contract work as the parties must have intended. A brief summary of the applicable law is provided, reflective of the fact that its general analysis serves as a precursor for the remaining content of the book.

Purpose – this paper compares the approach of United States’ law and Lithuanian law in classifying a construction defect as a breach of contract or tort. Research methodology – the paper uses case studies to analyze. Unites States’ law approach divides damages into damages for breach of contract and tort damages. According to Lithuanian law, civil liability is assigned to contractual and non-contractual (tort) liability depending on the nature of the unlawful actions. Findings – the cases demonstrate that a defect usually is considered a breach of contract. Different types of damages are recoverable: compensatory damages according to United States’ law and direct and indirect damages are recoverable according to Lithuanian law. Research limitations – both contractual and non-contractual liability are analyzed. In addition, defects to construction by an act of fraud are covered. More research is needed on how the law affects the extension of the warranty period or the statute of limitations. Originality/Value – the paper provides a new interpretation of classification a construction defect as a breach of contract or tort and offers new insights comparing the different approach of law. Practical implications – the paper will be instructive to developers, contractors, management corporations