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Artykuły w czasopismach na temat "Set-off and counterclaim (Islamic law)"
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ABUSHENKO, D. B. "CIVIL-LAW SET-OFF AND SET-OFF MADE WHEN THE COURT SATISFIES COUNTERCLAIMS AND INITIAL CLAIMS: THEORETICAL REFLECTIONS ON THE SIMILARITIES AND DIFFERENCES OF LEGAL INSTITUTIONS (continuation)". Herald of Civil Procedure 11, nr 4 (20.10.2021): 50–69. http://dx.doi.org/10.24031/2226-0781-2021-11-4-50-69.
Pełny tekst źródłaStreszczenie:
In the article, the author continues to distinguish between a civil-legal offset and a set-off made when the court satisfies a counterclaim and initial claims. As a criterion, recognition is taken as an act of will, proceeding respectively from the compensator (the person to whom the application for set-off is addressed) and the defendant in the counterclaim. The article analyzes the anticipated and “double-edged” recognition. The author substantiates the admissibility of using the mechanism of convalidation (cure) of a defective transaction for cases when the corresponding expression of will is addressed to the court without presenting an independent claim for recognizing the transaction as valid. The issues related to the determination of the moment from which the transaction is considered cured, the content of the convalidated contract, as well as the legal consequences of the subsequent judicial discrediting of the convalidated transaction on the grounds related to its impugnability are considered.
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ABUSHENKO, D. B. "CIVIL-LAW SET-OFF AND SET-OFF MADE WHEN THE COURT SATISFIES COUNTERCLAIMS AND INITIAL CLAIMS: THEORETICAL REFLECTIONS ON THE SIMILARITIES AND DIFFERENCES OF LEGAL INSTITUTIONS (continuation)". Herald of Civil Procedure 11, nr 2 (30.06.2021): 26–49. http://dx.doi.org/10.24031/2226-0781-2021-11-2-26-49.
Pełny tekst źródłaStreszczenie:
In the article, the author continues to distinguish between the civil-legal set-off and the set-off made when the court satisfies the counterclaim and initial claims. As a criterion, recognition is taken as an act of will, coming respectively from the compensator (the person to whom the statement of set-off is addressed) and the defendant in the counterclaim. Judicial and non-judicial confessions are analyzed. With regard to judicial recognition, the conclusion is justified that, depending on the type of process and the existence of rules on mandatory professional judicial representation, it will be either ordinary evidence or a basis for exemption from proof, and in some cases also entail certain substantive consequences. Individual cases of so-called qualified recognition are considered (discrepancy in quantitative characteristics; discrepancy in relation to the subject or object of the legal relationship; recognition of another legal relationship; notification to the court of two or more facts, some of which correspond to the interests of the procedural opponent, and the other part – to the interests of the recognizer; discrepancy in the qualification of legal consequences; recognition of the fact of termination of claims with the reservation that they were subsequently restored on the basis of the realized secondary right).
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ABUSHENKO, D. B. "CIVIL-LAW SET-OFF AND SET-OFF MADE WHEN THE COURT SATISFIES COUNTERCLAIMS AND INITIAL CLAIMS: THEORETICAL REFLECTIONS ON THE SIMILARITIES AND DIFFERENCES OF LEGAL INSTITUTIONS (continuation)". Herald of Civil Procedure 12, nr 1 (15.04.2022): 86–106. http://dx.doi.org/10.24031/2226-0781-2022-12-1-86-106.
Pełny tekst źródłaStreszczenie:
In the article, the author continues to distinguish between the civil-legal offset and the offset made when the court satisfies the counterclaim and initial claims. The issues related to the systematisation of exceptions from the general rule on the obligation of judicial recognition for the court are considered. Conflicts of the institution of recognition with other legal phenomena allowing the establishment of the opposite fact are revealed. It is proposed to divide these conflicts into factual and legal ones. An actual information conflict is understood as a contradiction of judicial recognition to well-known facts or sound logic, and a legal contradiction to legal institutions (this includes pre-judicial and other judicial acts, notarial acts, irrefutable presumptions, fictions, as well as «ordinary» evidence adopted in another court case). The paper suggests specific ways to resolve such conflicts by the law enforcement. Exceptions from the general rule on the obligation of judicial recognition, ensuring the protection of the rights of other persons, are also considered separately. Here, as a general rule, the conclusion is justified that judicial control over recognition should be carried out only if another person has the status of a person participating in the case.
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Stępniak, Lechosław. "Potrącenie w procesie cywilnym". Studia Prawnicze / The Legal Studies, nr 35 (30.04.2023): 153–82. http://dx.doi.org/10.37232/sp.1973.35.6.
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Zgodnie z obowiązującymi w kodeksie cywilnym przepisami, potrącenia można dokonać zawsze, jeśli spełnione są warunki ustawowe i to niezależnie od tego czy w stosunki między stronami ingerował lub ingeruje organ sądowy. Problematyka potrącenia w postępowaniu cywilnym nie została zadowalająco rozwiązana w dotychczasowej literaturze. To skłania do podjęcia jeszcze jednej próby spojrzenia na to zagadnienie. Autor nie podjął się całościowej i kompleksowej analizy procesowych instytucji, przez które realizuje się potrącenie, lecz raczej uwagi, które z materialno-prawnego punktu widzenia nasuwają się co do dyskusji toczonej przez specjalistów prawa postępowania cywilnego. Celem tego artykułu jest spojrzenie na potrącenie jako instytucji prawa materialnego z punktu widzenia norm postępowania cywilnego. Rozważania ograniczone zostaną jednak w zasadzie do problematyki potrącenia w postępowaniu rozpoznawczym I instancji i do powództwa wzajemnego. According to the applicable provisions of the Civil Code, a set-off can always be made if the statutory conditions are met, and regardless of whether a judicial authority has intervened or is intervening in the relationship between the parties. The issue of set-off in civil proceedings has not been satisfactorily addressed in the literature to date. This prompts yet another attempt to look at the issue. The author has not undertaken a holistic and comprehensive analysis of the procedural institutions through which the set-off is enforced, but rather comments that, from a substantive legal point of view, come to mind as regards the discussion by specialists in civil procedure law. This article aims at looking at the set-off as a substantive law institution from the point of view of civil procedural norms. However, the consideration will be limited to the issue of set-off in the first instance proceedings and the counterclaim.
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Khan, Hidayat, i Moazzam Shah. "http://habibiaislamicus.com/index.php/hirj/article/view/207". Habibia Islamicus 5, nr 2 (21.06.2021): 56–70. http://dx.doi.org/10.47720/hi.2021.0502u04.
Pełny tekst źródłaStreszczenie:
In Islamic law of Business rules, there is a terminology of “Muqassah”, which in Arabic etymology means, Debt settlement by a contra transaction when someone is indebted to a person and this person in the same time is indebted to the first one of the similar amounts of money. In terminology point of view, Muqassah means the discharge of a debt receivable against a debt payable or. Thus, muqassah is one of the ways to pay someone’s debt. New forms of Muqassah have been introduced in the modern Islamic banking system. It has turned into a complexed system after the emergence of modern technology. Therefore, there is a great need to discuss the modern application of the rules of set-off already set forth by Shariah to modern financial transaction. These modern applications include set-off between customer and financial institution and also between tow financial institutions through cheque and sometimes through clearing house. This sett-off may take place through national and international networking system. This article proceeds with an introduction of the term “Muqassah” and other related terms. It further discusses the classification, conditions and shariah ruling of each type of “Muqassah” (Set off). The article ends with conclusion of this discussion about set-off.
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Christakakou-Fotiadi, Kalliopi, i José M. Miguel González. "BGH, Urteil vom 12.12.1997, BGH JZ 1998, 685 m. Anm. Gursky - Zur Berücksichtigung von Aufwendungen des unrechtmäßigen Besitzers beim Nutzungsherausgabeanspruch nach §§ 988, 8". European Review of Private Law 7, Issue 4 (1.12.1999): 505–13. http://dx.doi.org/10.54648/256447.
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The decision of the German Federal Supreme Court was based on the following set of facts: The defendant, inter alia in 1991, made use of the plaintiff's land, without having any rights of occupation. A villa and stables had been built on the land. During the time of use, the defendant expended various sums of money on the property, of which no further details are given. In her claim, the plaintiff sought payment for the benefits the defendant had obtained from the use of the villa and stables in 1991. In his defence, the defendant claimed a set off, supplemented by a counterclaim, based on the expenditures he had made. The Landgericht dismissed the claim, but the Oberlandesgericht allowed an appeal. The further appeal in cassation led to the case being referred back to the appeal court. In giving its reasons, the Supreme Court stated that the defendant had no rights of occupation and therefore owed the plaintiff for the benefits of use asserted, in accordance with §§ 988, 818 of the German Civil Code. The duty to compensate was, however, limited in principle under § 818(3) of the Code to the benefits that overall still remained within his patrimony. In contrast to an opinion commonly expressed in academic writings - to the effect that the expenditure made by an occupier can only be be used as a defence to a claim based on § 988 of the Code if it concerns harvesting costs or expenditures within the meaning of §§ 994 ff of the Code - the Supreme Court took the view that expenditures made by the occupier in relation to the property in question could be taken into account to reduce the claim to compensation for use based on §988 of the Code independently of the question whether they were expenditures within the meaning of § 994 ff of the Code. If the occupier asserted that his enrichment had been cancelled out by expenditures, the decisive issue was whether those expenditures had a close connection with the benefits obtained from use of the property. This was in principle the case when the occupier had made expenditures on the property. In the following comments, the authors examine the problem from the point of view of Greek and Spanish law.
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Fazzan, Fazzan, i Abdul Karim Ali. "ISLAMIC AND POSITIVE LAW PERSPECTIVES OF GRATIFICATION IN INDONESIA". Jurnal Ilmiah Islam Futura 15, nr 1 (1.08.2015): 1. http://dx.doi.org/10.22373/jiif.v15i1.549.
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A set of rules about gratification is a novelty within society and perceived to collide with the cultural of giving in the Islamic society in Indonesia. This study is aimed to explore the meaning of gratification from the perspective of positive law in Indonesia, and the boundaries of gratification, which is interdicted by the laws. This study used the normative method which analyzes the positive law in Indonesia regulating the gratification. The result of this study shows that gratification in the positive law and Islamic law perspective has a wide meaning including each tribute for Civil Servant or State Apparatus. According to Indonesia law, gratification could be either positive or negative. Gratification which is allowed by the laws is a gift with a pure tension of the recipient to the Civil Servant or State Apparatus without expecting to achieve anything in return. In contrary, gratification which is not allowed by the laws is a gift for the Civil Servant or State Apparatus because of their position in that employment and the purpose of it is not related to their duty or order. Based on Islamic law perspective, gratification is forbidden by nas al-Qur’an and hadith. Substantially, the rule of positive law in Indonesia which forbids the gratification practices has fit with the aim of Islamic law. In positive law in Indonesia, however, there is still gratification allowed that leads to the fraudulence. Instead, in Islamic law all kinds of gratifications for the State Apparatus and the Civil Servant are forbidden in order to ensure all the ways of fraudulences are closed off.
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Saad Saleh Al-Gharafi, Abdul-Ghani Abdul-Raqeeb. "Underage marriage in Islamic law and Yemeni law". Yemen University Journal 8, nr 8 (11.02.2023): 1–38. http://dx.doi.org/10.57117/j.v8i8.32022.
Pełny tekst źródłaStreszczenie:
This research aims to explain the marriage of minors and to know the point of view of Islamic law and Yemeni law on this marriage, as well as to know its causes and effects. This objective was achieved through an introduction, four chapters and a conclusion. The introduction included the importance of the research, the reasons for its selection, its problem, objectives, methodology, questions, hypotheses, previous studies and research, and its divisions. The first topic included: the nature of marriage, its legitimacy and its pillars in Islamic law.. The second topic contained: the concept of marriage of minors and the reasons for its emergence in contemporary societies. The third topic came: it included the legitimate and legal vision of the marriage of minors. The fourth topic included: the effects of marriage of minors. The conclusion included: the most important findings and recommendations. The researcher followed the descriptive approach based on induction, analysis and deduction. The research came out with the most important results and recommendations as follows: 1- Studying and analyzing the causes, motives and risks of underage marriage will limit the growth of the phenomenon by spreading awareness among the members of society. 2- Educating society about the dangers, negatives, and problems of underage marriage and its effects, and activating dialogue on this matter helps limit its increasing growth and contributes to combating the ignorance that surrounds some groups of society, which pushes them to hasten to marry off their daughters. 3- Early marriage is considered one of the social problems that the Yemeni society suffers from, and the Yemeni girl suffers from it, especially in the countryside. 4- The phenomenon of early marriage in Yemen was combined with many factors, including economic, social and cultural factors. 5- There are many effects that result from early marriage, including psychological, health, social and economic effects. 6- The presence of shortcomings in the Yemeni law regarding the marriage of minors, in Article No. (15) of its recent amendments in the Personal Status Law, which did not explicitly specify the age of marriage, and there is no explicit text specifying the penalty for those who violate the text of the law. 7- The prevalence of early divorce among young girls, due to several reasons, including, but not limited to, her lack of knowledge of marital rights, the lack of complementarity between the two marriages, or the lack of compatibility between them. 8- The high mortality rate of young mothers, due to their exposure to many risks of pregnancy and childbirth at an early age, including severe bleeding, acute anemia, etc. The researcher recommended several recommendations, the most important of which are: 1- Determining the age of marriage at (18) years, and urging the Yemeni legislator to amend Article (15) of the Personal Status Law No. (20) of 1992 AD and its amendments in Law No. (27) of 1998 AD so that it explicitly stipulates that the age of marriage be set at no less than (18) years. A solar system, specifying a penalty for those who violate it, and harmonizing other laws related to the personal status law with regard to the age of marriage for young girls. 2- Developing a media policy aimed at creating awareness among members of society, through visual, print and audio media, and social media, in order to clarify the harms of early marriage, and the risks, disadvantages, and problems of underage marriage and its future effects, and to provide an educational role through various relevant official and unofficial agencies and institutions such as the Ministry Education, media, human rights, the National Committee for Women, the Supreme Council for Motherhood and Childhood, civil society organizations and others. 3- Spreading legal awareness in society of the dangers and effects of child marriage. 4- Combined joint efforts (official and popular) to seek to achieve a safe age of marriage of eighteen years, in order to achieve the complete elimination of child marriage. 5- Urging researchers and those interested in the field of the family to prepare qualitative studies and in-depth specialized research on child marriage as a social phenomenon that includes all its different aspects in terms of its size, causes of its spread, damages and multiple effects.
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Yasir, Emi, i Shafwan Bendadeh. "‘URF SEBAGAI METODE ISTINBATH HUKUM ISLAM (Pemikiran Hasbi Ash-Shiddieqy dengan Fiqh Indonesianya)". SYARIAH: Journal of Islamic Law 3, nr 2 (7.12.2021): 14. http://dx.doi.org/10.22373/sy.v3i2.308.
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Tengku Muhammad Hasbi Ash-Shiddieqy is one of the most influential scholars in Islamic law reform in Indonesia, he brings local traditions ('urf/'adat) as the construction of Islamic Indonesian characteristic law. According to Hasbi 'urf is the law which is alive in the community and could be fluctuated continuously and it could be a strong consideration for Islamic law implementation. Hasbi, in his scientifical oration entitled “Syariat Islam Menjawab Tantangan Zaman", which delivered on the first Anniversary ceremonial of Dies Natalis in 1961, He explained: Fiqh Indonesia, is, fiqh that established in accordance with the personality of Indonesian, suitable to Indonesian behavior and character. Currently, some of developing Fiqh in society is Fiqh Hijazi that established on the basis of 'customs and' urf prevailing in Hejaz, or fiqh Misri that established on the basis of Egyptian customs and habits, or fiqh Hindi that established on 'urf and' customs prevailing in India. Recently, Fiqh did not show its ability to effectuate ijtihad, realizing the legal rulings of fiqh in accordance with the Indonesian personality. Therefore sometimes we force Hijazi fiqh or fiqh Iraki Misri to be applied in Indonesia on the basis of imitation. To construct Indonesian personality fiqh, Hasbi set off with 'urf/ traditions living in Indonesian society, he argued that every ‘urf/ customary law can be used as the postulate provided that not conflict with the Shariah. It is not only 'urf/'customs of the Arabs, but also those who follow principles of egalitarian Islam, so that besides 'urf/'Arab customs can be used as the foundation of law istinbat. 'urf is one of the principles of usul fiqh, which makes Islamic law is always evolving and able to fulfill human needs.
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Sahidin, Amir. "Telaah Atas Ijtihad Umar Bin Khaṭṭab Perspektif Maqāṣid Al-Syarī'ah". Jurnal Penelitian Medan Agama 14, nr 1 (28.06.2023): 25. http://dx.doi.org/10.58836/jpma.v14i1.16553.
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<p>In the course of Islamic law, there were several issues of muamalat that were not found in law at the time of the Prophet, so the companions made ijtihad to find them. In fact, not infrequently the laws set by the companions seemed to contradict the teachings of the Prophet. As ijtihad was carried out by Umar bin Khaṭṭab in several ways such as: aborting the had punishment for adulterers, aborting the punishment for cutting off the hands of thieves, stopping giving zakat to <em>mu'allaf</em>, not dividing spoils of war between Muslim soldiers. Regarding some of these ijtihad, many people praised Umar's intelligence in grounding Islamic law. However, there are also some scholars who make Umar the pioneer of sharia deconstruction. This article attempts to examine Umar's ijtihad with the <em>maqāṣid al-syarī'ah</em> approach. Through research of the type of library research with a descriptive-analytic approach, it can be concluded that, <em>first:</em> Umar's ijtihad in some of the above cases did not actually deconstruct Islamic law, but because of his intelligence and foresight in seeing the factors that could hinder the implementation of these lawsuits. <em>Second: </em>Umar bin Khaṭṭab saw the <em>naṣ</em> textually and contextually in a balanced way, without annulling the existing <em>naṣ</em>.</p>
Książki na temat "Set-off and counterclaim (Islamic law)"
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Yūsuf, Aḥmad Shawqī ʻAlī. al-Ṭalabāt al-muqābilah: Dirāsah fiqhīyah muqāranah bayna al-sharīʻah al-Islāmīyah wa-al-qānūn al-waḍʻī. al-Iskandarīyah: Maktabat al-Wafāʼ al-Qānūnīyah, 2021.
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Derham, S. Rory. Set-off. Wyd. 2. Oxford: Clarendon Press, 1996.
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Waterman, Thomas W. A treatise on the law of set-off, recoupment, and counter-claim. Littleton, Colo: F.B. Rothman, 1998.
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McCracken, Sheelagh. The banker's remedy of set-off. London: Butterworths, 1993.
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1950-, Johnston William, i Werlen Thomas, red. Set-off law and practice: An international handbook. Wyd. 2. New York: Oxford University Press, 2010.
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W, Neate F., red. Using set-off as security: A comparative survey for practitioners. London: Graham & Trotman, 1990.
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Mesquita, Luís Miguel de Andrade. Reconvenção e excepção no processo civil: O dilema da escolha entre a reconvenção e a excepção e o problema da falta de exercício do direito de reconvir. Coimbra: Almedina, 2009.
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Zimmermann, Reinhard. Comparative foundations of a European law of set-off and prescription. Cambridge: Cambridge University Press, 2002.
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Böhle, Jens. Der Rückgriff in der Lieferkette gemäss der [Paragraphen] 478, 479 BGB nach dem Schuldrechtsmodernisierungsgesetz. Berlin: Duncker & Humblot, 2004.
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Oliveira, Gustavo Burgos de. Benfeitorias & direito de retenção: Doutrina e jurisprudência. Curitiba: Juruá Editora, 2001.
Znajdź pełny tekst źródłaCzęści książek na temat "Set-off and counterclaim (Islamic law)"
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"The Contracts of Absolution (al-Ibra) and Set-Off (al-Muqassah)". W Islamic Commercial Law, 145–53. Hoboken, NJ, USA: John Wiley & Sons, Inc., 2015. http://dx.doi.org/10.1002/9781119198956.ch12.
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Martin F, Gusy, i Hosking James M. "Part I Commentary on the ICDR International Rules, 9 Article 9—Amendment or Supplement of Claim, Counterclaim, or Defense". W A Guide to the ICDR International Arbitration Rules. Oxford University Press, 2019. http://dx.doi.org/10.1093/law/9780198729020.003.0010.
Pełny tekst źródłaStreszczenie:
This chapter focuses on Article 9, which affords the parties relatively wide latitude to modify claims, counterclaims, or defenses, including set-offs. The ICDR Rules provide a permissive standard, establishing that modification by means of amendment and supplementation is possible at any time during the proceedings, as long as the arbitral tribunal considers it appropriate. Such claim, counterclaim, set-off, or defense modifications are required to be within the scope of the arbitration agreement—that is, the boundaries of an arbitral tribunal’s jurisdiction. The parties’ general right to amend their claims or defenses, including set-off, is subject to the tribunal’s power of rejection on grounds of unexcused delay or prejudice to the parties or proceedings.
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Martin F, Gusy, i Hosking James M. "Part I Commentary on the ICDR International Rules, 19 Article 19—Arbitral Jurisdiction". W A Guide to the ICDR International Arbitration Rules. Oxford University Press, 2019. http://dx.doi.org/10.1093/law/9780198729020.003.0020.
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This chapter looks at Article 19 of the ICDR Rules. An arbitral tribunal must consider whether it has jurisdiction over the subject matter of any dispute that comes before it. Article 19 provides the tribunal with authority to determine this preliminary question by deciding any objections to its jurisdiction relating to the ‘existence, scope, or validity of the arbitration agreement’. Under Article 19(3), jurisdictional objections must be made no later than the filing of the Answer to a particular claim, counterclaim, or set-off. Meanwhile, Article 19(4) is a new provision added to the ICDR Rules with the 2014 amendments to make clear that objections to jurisdiction will not prevent the ICDR from administrating the case in the preliminary stages of the arbitration, including for purposes of constituting the tribunal.