Дисертації з теми "Droi comparé des contrats"
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Raobelina, Fanjamalala. "L'harmonisation du droit de la vente aux consommateurs dans l'Union européenne : Réflexion à la lumière de la directive (UE) 2019/771 relative à certains aspects concernant les contrats de vente de biens." Electronic Thesis or Diss., CY Cergy Paris Université, 2023. http://www.theses.fr/2023CYUN1267.
The contract for the sale of goods constitutes a lever for cross-border trade in the Union, the European legislator therefore governs certain aspects. Directive 1999/44/EC reformed by Directive (EU) 2019/771 and Directive 2011/83/EU thus include rules common to Member States, specific to sales. The choice of the specific study of these rules is due on the one hand to the fact that, economically, it is the most common contract on the internal market and on the other hand, to the fact that, legally, the sale remains the archetype of the contract in EU law, thus serving as premises and models for European legislation on consumer contracts
SITBON, ERIC. "La mise en concurrence dans les contrats de services publics locaux en france et au royaume-uni." Lille 2, 1999. http://www.theses.fr/1999LIL20008.
The objectives, contents and scope of compulsory competitive tendering in relation to bidding for local public service contracts, differ from one legal system to the other and from one type of local public services contracts to the other (i. E. Ec public procurement law, the french law of public procurement and public services 'delegations', english local government contract law). Under both ec law and french law, competitive tendering can be formal (consisting mainly of the requirement for publication of a prior notice) or wide-ranging (open bid procedure). Under english law, so-called 'compulsory competitive tendering'is equivalent to a compulsory open bid procedure and is intended to put direct service organisations or direct labour organisations in competition with private companies. Under ec law, competitive tendering now only applies in relation to public procurement contracts and public works concessions, whilst under french law, its scope covers not only public procurement contracts but also public services 'delegations'. Under english law, compulsory competitive tendering only applies to local public procurement contracts. It is proposed that the requirements of compulsory competitive tendering in these three legal systems are harmonized through emphasing their similarities and by generalising the application of compulsory competitive tendering to all local public services contracts
Filios, Christian P. "L'enrichissement sans cause en droit prive francais analyse interne et vues comparatives." Lille 2, 1999. http://www.theses.fr/1999LIL20007.
Enrichment without cause was recognized in france as an autonomous source of obligations in 1892 (case boudier). Its technical evolution in french law had a significant rise at the beginning of 20th century. After the last thesis from francois gore in 1949, no more essays were dedicated to the problem of unjust enrichment. At that period, though the other continental laws, mainly those of germanic inspiration, this mechanism, which does not allow somebody to get rich at the expense of others, sprang back to life. A fundamental distinction, based on the nature of things, made it possible to separate the benefits conferred with payment from benefits acquired "in any other manner". Besides its functional aspect, this distinction strives to attach different definitions to the constitutive elements of unjust enrichment, especially that of "cause". The attempt to intro, duce the distinction between benefits conferred with payment and benefits acquired "in any other manner" in french law, and at the same time to bring this institution up-to-date, is the essential purpose of our essay
Fattal, Raghid. "La résiliation unilatérale du contrat : étude comparée du droit français et du droit des Émirats Arabes." Poitiers, 2008. http://www.theses.fr/2008POIT3017.
The right, for one contracting party to break a contract is provided in French law and in the UAE (United Arab Emirates) law, by a legal act or a termination clause. Furthermore, French courts have ruled that the right to break a contract could apply to a contract concluded for an unspecified period and also to a contract concluded for a specific period in case of emergency or when the situation has become unbearable given the bad behaviour of one of the contracting parties. In 1998, the French Court of Cassation established, in the Tocqueville case, a unilateral right to break a contract when one contracting party had a harmful behaviour. This sentence was confirmed by many others as well. This new solution is not yet admitted by the UAE law despite of a quite similar legislation and the economical benefits brought by the decision of the French Court of Cassation
Surachat, Jinda. "L'identification du contrat administratif : étude de droit comparé des modèles français et thaïlandais." Nantes, 2014. http://www.theses.fr/2014NANT4005.
Nowadays, the administration resort to contractual process in order to successfully complete its missions for different kind of public action. Nevertheless, not all contract of the administration are administrative contracts. The latter are based on the principle of inequality between the administration and private individuals. It is subject to an exorbitant regime which come under the administrative judge, while the civil contract of the administration is based on the equality of party. It is then necessary to distinguish the different contracts in order to know the relevant jurisdiction, the applicable rules and procedures. In Thailand, we used to apply, for every contracts of the administration, administrative and civil, the rules of civil law. The concept of administrative contract has been recognized only since the creation of the Administrative Court in 1999. There is therefore, a difficulty for identifying contracts, which is not known in French law, where the dualism of jurisdictions system is implanted for a long time. The principle of the administrative contract are more developed and clearer thanks to the Council of State's decisions and legislative texts. In this research, the French law is used as a paradigm for trying to grasp the criterion that make possible the identification, and thereby, the execution of the administrative contract in Thailand
Markellou, Marina. "Les contrats d'exploitation de droit d'auteur en droit comparé (Allemagne, France, Grèce)." Montpellier 1, 2009. http://www.theses.fr/2009MON10053.
The explosion of digitised information has strongly questioned the existence of the copyright system. We are at present in a highly transitional state and the crucial question that arises is what should be the author's position in the copyright system in general. The contractual copyright law is therefore called to determine in a more precise way this position of the author into the system. The contractual copyright law is, indeed, an important instrument susceptible to guarantee an equitable balance of the opposing interests, while assuring an effective protection of the author, who is considered as the weakest party of the contract. In this context, the objective of this thesis is to examine the German, French and Hellenic main rules which govern the copyright contracts of exploitation. This comparative analysis will allow us to bring to light the convergences of these three legislations in order to facilitate a European harmonization in the near future. Based essentially on a detailed treatment of this question, which was until now rarely explored, this study aims at arousing a deeper reflection in this domain
Yang, Liu. "La suspension du contrat en cas d’obstacle à l’exécution : en droit comparé français chinois." Thesis, Montpellier 1, 2013. http://www.theses.fr/2013MON10035/document.
In practice several obstacles may prevent the natural progress of the contract. When those obstacles are not permanent in nature, modern law offers the contracting party a temporary solution : suspension of the contract. However, up until now, that legal solution has not been subject to a unitary legal system. Suspension is concealed by a range of traditional and modern legal techniques. Sino-French comparative law in relation to suspension makes it possible to clearly identify all these techniques, to envisage a new understanding and to offer a systematization of the complex phenomenon of suspension. Our study has revealed several important findings. For a contracting party, suspension is not merely a way to enable the sanctioning of temporary breach by the other contracting party; it can also be used to prove his legitimate breach. In addition, suspension can be used, not only in the event of breach of contract, but also in the event of the risk of breach. Lastly, the object affected by the suspension may not only be the contractual arrangement, but also the work leading up to it
Bucher, Charles-Edouard. "L'inexécution du contrat de droit privé et du contrat administratif : Etude de droit comparé interne." Paris 2, 2009. http://buadistant.univ-angers.fr/login?url=https://www.dalloz-bibliotheque.fr/pvurl.php?r=http%3A%2F%2Fdallozbndpro-pvgpsla.dalloz-bibliotheque.fr%2Ffr%2Fpvpage2.asp%3Fpuc%3D5442%26nu%3D83.
Milingo, Ellong Jean Joss. "Le civisme contractuel : étude de droit comparé. Droit OHADA et droit européen." Thesis, Paris 1, 2014. http://www.theses.fr/2014PA010265.
The "contract" is just because both parties wanted it. This idea has long prevailed in contract law and is still very present. With the observed economic, social, environmental and technological transformations, it is blunted in favour of a protective interventionism, the will no longer being to ensure exclusively the protection of the contractual interests. Today, voluntarism and protectionism are not enough to ensure the safety of all contractual interests. It is therefore necessary to think otherwise of a contract. According to Dean Carbonnier, «on/y the contractual citizenship (contract compliance ta public order and morality) represents an absolutely general validity requirement, the minimum social conformity required of al! contractors». The idea of citizenship, consubstantial with the notion of contract, reveals itself gradually on the matter, under national law, as in the state groupings such as the European law and OHADA. Though implicit, contractual citizenship is stated in the sources of these legal systems and its heterogeneous content is identifiable and recognizable. Moreover, the contractual citizenship authority to apply to all contracts of private law; to all contractual phases, even though it would be more evident during the execution of the contract. It binds the contracting parties and interpreters such the judge and arbitrator, and contribute" not only to help increasing their powers, but also to the security and reassurance of contractual relationship. Thus, the contractual citizenship could not be limited, as foreseen by the illustrious sire Dean Carbonnier, to an extrinsic condition of validity of the contract relating to the content. It is about a general principle of contract law, complementary to the existing principles like liberalism and contractual solidarity, and whose necessary textual dedication can be relativized. The violation of rights and obligations which conveys the contractual citizenship is sanctioned according to whether the interest in question is general or private, the idea being to maintain the contract so long as its execution remains possible, or to accelerate its disappearance when established that its maintenance likely infringe or affect the contractual persons involved
Acosta, Joaquin Emilio. "La constitutionnalisation du droit colombien des contrats : contribution à l'étude du droit transnational des contrats." Thesis, Bordeaux, 2016. http://www.theses.fr/2016BORD0274.
Traditionally, the law of contracts of Romani tradition has basically had its source in the law and in particular in the Civil Code. Thus the contracting parties had a great deal of legal discretion, since most of the laws governing contracts had a residual character of the individual will. However, this primacy of the legislature has been limited by the promulgation of the post-war Constitutions. Indeed and incontestably, human rights are the fashion, and this vogue leaves its imprint in the law of contracts. From now on, it is no longer possible for the legislator to violate certain principles having constitutional value. Moreover, this system allows the contemporary constitutional judge to annul statutory provisions that violate such imperatives. Similarly, the guardians of the new constitutions give themselves the power to indicate the interpretation that ordinary judges must adopt of the legislative texts. In this way the constitutional judge becomes an important actor of contract law in the Romanist family. Thus, an event marks a new stage in the development of private contract law: its constitutionalization. This new episode gives rise to the debate on a possible questioning of the contractual civil order
Georgijevic, Goran. "La prise en compte des motifs en droit comparé des contrats : (droits français, serbe et anglais)." Thesis, Bordeaux 4, 2012. http://www.theses.fr/2012BOR40061.
The behaviour of every individual of sound mind is explained by a variety of reasons. Besides psychological science, Law, including contract law, is interested by those reasons, called motives. This interest results from the fact that the behaviour of contracting parties is not abstract; it always reveals the existence of a variety of motives. However, the legal rules of a given domestic system cannot attribute an importance to all motives of parties. This is so because motives represent a psychological category and taking into account in an unlimited way those motives would imperil security in law. This present doctoral thesis aims at proposing a critical analysis of the taking into account of parties’ motives through a comparative study of French, Serbian and English law
Ferjani, Nabil. "Le juge étatique et les contrats internationaux : essai d'un droit comparé franco-tunisien." Perpignan, 2006. http://www.theses.fr/2006PERP0722.
Hascoët, Marie. "Le contrat de travail précaire en droit italien : droit comparé italien et français." Aix-Marseille 3, 2009. http://www.theses.fr/2009AIX32035.
Studying insecure work contracts in Italian labour laws raises a first question for the French readers. According to Italian labour laws, "work contract" is common to the field of "subordination" and to the field of independence as well. This study aims at analysing both models. In the field of "subordination" the insecure work contract remains a fixed work contract. The comparative study shows that the legal framework of the contract is not the same in French and Italian laws. Such differences are due to opposed legislative policies: limiting insecure unemployment according to the French law; promoting jobs even at the expense of insecurity according to the Italian law. Italian labour laws advocate a liberal legislative policy to make resorting to fixed term contract easier. Convergent contractual guarantees are still provided for in French and Italian labour laws so as to maintain minimal stability and prevent improper use of the contract. In the field of independence, "parasubordination" is the standard for job insecurity. Italian labor laws put in contract "parasubordination" with a specific independent work contract, a "parasubordinated contract". In spite of various reforms, the contract remains uncompleted and a factor in insecurity. On the contrary, French laws does not offer a homogeneous construction of "parasubordination. " Hence, a comparative study of the two frameworks is relevant
Al, Shattnawi Sinan. "Les conditions générales de vente dans les contrats électroniques en droit comparé franco-jordanien." Thesis, Reims, 2012. http://www.theses.fr/2012REIMD003/document.
SummaryE-commerce activities and the legal frame that results from them raise many relevant questions. Especially those related to the protection of the layman buyer.Concerning this issue, and in the framework of fundamental rules. The professional seller should bring to the knowledge of the consumer all the legal rules laid down by the law in a clear and concise way before the conclusion of the e-contract. Thus, will be cited precisely: the identity and address of the seller (professional), particularly a detailed description of the steps leading to the conclusion of the contract. This is the case in the European and French law. E-contracts are also subject to legal rules framed by the obligations of and the seller the buyer such as delivery, reception, payment, e-signature of the contract, the right to withdrawal or repayment. Within the framework, we show a great interest towards the legal rules set up by lawmakers in the French law. It seems necessary for us that such accurate legal rules regulate e-commerce activities in the Jordanian law. The reason why we made some propositions in this thesis.Our study shows that general sales conditions are standard clauses and components of the adhesion contract binding consumers and professionals that represents the specificity of general sales conditions.Furthermore, those common clauses can be classified in two categories either related to the lay out of the contract or related to the accomplishment of the contract. At these two stages of the lay out of the contract, the consumer is protected by the legal frame provided by the French law who bans abusive clauses. Some of these rules can be transposed to the Jordanian law.Key words: Islamic law, Jordanian law, consumer, recipient, sender, delivery, guarantee
Raboteau-Duval, Michèle. "Le droit des contrats de travail à durée déterminée en droit espagnol et en droit français : contribution à l'étude du droit social comparé." Aix-Marseille 3, 2004. http://www.theses.fr/2004AIX32028.
Fixed-term contracts rose considerably these twenty-five past years in Spain. Just as in France, the legislator had to intervene in order to give framework to the use of this contract. If the two systems made fixed-term contracts an exception, thus privileging the recruiting at indeterminate duration, the regulation relating to the fixed-term contracts comprises an ambivalent character in Spain and in France. On one side, the legislation of the two countries limit the recourse to this contract when it is used jointly with the contract of employment at indeterminate duration like instrument of flexible management of the personnel. But, in addition, the contract affected of a term was largely privileged by the two laws as stimulative of employment within the framework of public policies of fight against unemployment and exclusion. In Spain, the laws of these contracts shows a certain flexibility, whereas in France it appears definitely more formal and "sanctionnator". The working relationship in fixed-term contracts raises moreover the question of the application of the guarantees recognized to the permanent employees. In this respect, the two legislations seem to be oriented towards the progressive development of a statute of the fixed-term contracts. This statute is articulated around the principle of equal treatment and of non-discrimination, principle also recognized under European Union's regulations, with the directive of June, 28, 1999. Nevertheless, the construction of the Spanish law remains now less contrued than in France. Moreover, the end of the contract remains the principal source of precariousness in Spain, whether for the renewal, for the succession of contracts or for the rules of anticipated rupture. Indeed, the rules of anticipated rupture merges with the rules on dismissal and does not fully ensure the stability of the contractual relation, contrary to the French regulation which locks the possibilities of rupture before the term of the contract
Josselin-Gall, Muriel. "Les contrats d'exploitation du droit de propriété littéraire et artistique : étude de droit comparé et de droit international privé." Paris 1, 1994. http://www.theses.fr/1994PA010288.
At a time when copyright has developed a full international dimension, the object of this thesis is to analyse both the domestic and international legal regimes of copyright contracts which are the principal juridical mechanisms for exploiting this right. The first part of this thesis focuses on a comparative law analysis of the essential elements of intellectual property as it relates to the written word and their contractual expression in a number of legal systemes (roman-germanic, common-law, soviet legal systems). To begin with, this first part ettempts to find a common definition of the notion of "copyright contract" applicable to all of these legal systems. It then goes on to analyse the way in which this contractual system operates. The second part concentrates on the question of the law applicable to the international trade in copyright. The study first considers the conflicts of law relating to the ownership of copyright including both the physical and moral aspects. As to the ownership of the monopoly right of exploitation, the country of origin of the work is suggested as the connecting factor. With regard to the ownership of the moral right, the connecting factor is found through an analysis of the question of characterization, so that the suggested conflicts rule is the lex loci delicti. The thesis concludes by studying the law applicable to various international copyright contracts
Makolo, N'kashama Stéphane. "Le rôle du juge dans la résolution du contrat pour inexécution en droits français et anglais." Electronic Thesis or Diss., Université de Lille (2022-....), 2024. http://www.theses.fr/2024ULILD003.
To what extent, today, the reform of French Contract Law has brought two institutions closer together, the résolution du contrat pour inexécution under French law and the termination for breach of contract under English law; to what extent has the reform profoundly affected the role of the judge in the résolution du contrat pour inexécution, in the light of English law? If the reform carried out by the order of February 10, 2016 is intended to make French contract résolution more attractive, it intends to play on the role of the judge, a repulsive judge who invites the parties to use sparingly, reason and moderation of the résolution extrajudiciaire granted to it, to anticipate the intervention of the judge. Failing this, the parties will expose themselves to the wrath of a judge who, without being arbitrary, nevertheless has such a wide range of instruments at his disposal that it will thwart any predictability of the parties. In this context, the French judge remains omnipresent and omnipotent in the termination. By contrast, the English judge, intervening at the margins, can hardly adopt the same posture; it is rather the creditor who finds himself in a position of strength and who in practice limits the judge's assessment to a control of blatant abuses… We therefore come to consider in English law that the creditor truly holds a right to resolution, contrary to the position accepted in French law. It is easy to understand that the role of the judge ultimately is not the same in the two legal orders, French and English. The French judge fulfills an overly interventionist role in the contract while that of the English judge is non-interventionist. Mechanically, the French judge intervenes to further instill contractual justice, the English judge to guarantee legal certainty and economic efficiency. In short, what is highlighted in this study is the extent of the powers that the judge is likely to exercise in the resolution in French and English law, his influence, his control, his supervision. Although the current reform of contract law has evolved the concept of termination of contract by bringing it closer to the termination of English law, it fuels the debate between the role of the judge and the parties in the contract
Desgagné, Richard. "La participation des états au commerce international : les contrats gouvernementaux en droit comparé et en droit international." Thesis, McGill University, 1991. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=60704.
Lee, Sunwoo. "Étude sur le contrat administratif : contribution à une étude du droit comparé de la Corée et de la France." Paris 1, 2008. http://www.theses.fr/2008PA010251.
Trabelsi, Riadh. "Contrats d'affaires et fonds de commerce dans le monde électronique : étude de droit comparé français et tunisien." Grenoble 2, 2008. http://www.theses.fr/2008GRE21004.
An electronic store can fill up all the conditions of fixity and permanence to conclude business contracts. Therefore, it constitutes an appropriate support for the selling of goods and services. In fact, the legal institution of "fonds de commerce" can be adopted to give a legal existence to this new economic reality, despite of its electronic character. Thanks to the idea of "legal universality", the business contracts can constitute an important element of the "fonds de commerce". It reflects with the other elements of the "fonds de commerce" the wealth of this particular institution of the French law
Sall, Bigué. "L'harmonisation OHADA des contrats : contribution à la méthode légistique des contrats dans l'espace OHADA." Thesis, Bourgogne Franche-Comté, 2019. http://www.theses.fr/2019UBFCB003.
The legal framework is important for improving the economic situation ; it defines progress or decline of the business climate in a country or space. Thus the Organization for the Harmonization in Africa of Business Law has set itself goal in a more or less long term economic development of Africa in general and of its member states in particular. Therefore, it must have rules contributing to the establishment of legal and judicial security in order to promote business investment in the Africa area.It is in this context that OHADA has adopted rules that can framed the development of business in this area. These rules, known as uniform acts, are currently ten, but not one of these uniform acts refers to general contract law. While general contract is fundamental basis of business development of business. Its uniformisation or harmonization must be considered for efficient contracts in OHADA zone and Africa in general. Furthermore, member states of OHADA do not have standardized general contractuel field. This clearly shows how urgently reform is needed!However, it should be notified that a number of projects steps towards the harmonization of contract law have been abandoned or not completed, in particular the preliminary draft OHADA Uniform Act on Contract Law and the project relating to the general law of obligations. These abandonments raise many questions that we will try to solve during our developments through historical, critical and comparative approach
Michaud-Tulquois, Céline. "L'idée littéraire et artistique : droit français et droit américain." Lyon 3, 2008. https://scd-resnum.univ-lyon3.fr/in/theses/2008_in_michaud-tulquois_c.pdf.
Literary and artistic ideas appear to constitute essential elements of French and US intellectual property laws. However, analyzing them remains uneasy. Our study required the revision of the classical grounds for excluding ideas from copyright protection, and suggested to go beyond the idea-expression dichotomy, by disregarding the work of authorship dissection process that leads to consider that certain elements of the work are ideas and that others belong to the form of the work, to prefer a global analysis of the work. The use of criteria such as precision and originality allows a global analysis of the work. Besides, if courts do not ignore ideas and more generally the substance of a work in their analyses, which we have shown, we had to move away from copyright and head toward other legal remedies in order to protect efficiently ideas or their creators, outside any copyright infringement. Our study therefore led us to proceed with the search for other protection modes, outside the strict realm of intellectual property law
Chen, Peng. "L' information précontractuelle en droit des assurances : étude de droit comparé français et chinois." Aix-Marseille 3, 2004. http://www.theses.fr/2004AIX32067.
Gabayet, Nicolas. "Les contrats publics à l'épreuve de l'aléa en droit anglais et français." Thesis, Aix-Marseille, 2013. http://www.theses.fr/2013AIXM1004.
The question of the treatment of uncertain/unforeseen events affecting public contracts seems to oppose in an immeasurable way English and French laws. While, in French law, general rules provide, in the public interest, the treatment of uncertain/unforeseen events affecting public contracts without the consent of the contractors, no such provisions exist in English law, where the sanctity and intangibility of contract prevails. Thank to this antagonism, the proposed comparison enables to highlight the deep motivations of the treatment of uncertain/unforeseen events affecting public contracts, through the theoretical opposition between sanctity of contract and public interest. In this respect, the general rules allowing, in French law, the treatment of the uncertain/unforeseen events without the consent of the parties appear to be based on an economic and teleological approach of the contract and its biding force. Surprisingly, the latter approach can also be noticed, in some respects, in the English law of contracts. Moreover, the priviledged mean to treat uncertain/unforeseen events in England as well as in France is the agreement of the parties – whether ex ante or ex post. Nonetheless, the possibilities of variating the contract in the course of its performance have been drastically limited by the European Union law. By contrast, the intial terms which tends to erect an autonomous regime of treatment of uncertain/unforeseen events through the spreading of standard terms appear to be the major and indispensable mean of adaptation of public contracts in the course of their performance
Mohr, Pablo J. "L'harmonisation européenne du droit des contrats d'auteur : étude de droit comparé à partir des droits allemand, anglais, espagnol et français." Thesis, Strasbourg, 2014. http://www.theses.fr/2014STRAA019.
The objective of the present study is the comparative analysis of contract law relating to copyright in four legal systems of the European Union, which are German, English, Spanish and French law, and to analyse the resulting prospects of European harmonization on this subject. First, the similarities and specificities of the aforementioned legal systems will be explored on a certain number of fundamental issues of copyright contract law. Then, propositions of convergence will be formulated, which could provide a basis for discussions in the case of a possible European harmonization. The study considers aspects from copyright law, general contract law, property law, personality rights, fundamental rights, comparative law theory, as well as some European scientific projects
Hacini, Benyounes. "L'incidence du dirigisme économique sur le droit des contrats des entreprises publiques économiques en Algérie et en droit comparé : France-Egypte-ex-U.R.S.S." Paris 2, 1996. http://www.theses.fr/1996PA020089.
Gaiardo, Paul. "Contribution à l'étude critique et comparative des théories du contrat : droits américain et français." Thesis, Paris 1, 2017. http://www.theses.fr/2017PA01D040.
In contract law, it is common to distinguish between the subjective intent of the parties and the external manifestations of their will. American contract law is considered to adopt an objective theory of assent since a party's mental assentis not necessary to form a contract, whereas french contractis viewed as being subjective as a contract requires the parties ' actual assents to the agreement. However a comparative case laws analysis sheds light on the fact that judges actually seem to adopt a very similar reasoning. The thesis aims at demontrating that judges intuitively follow a common theory which can be developed according to Husserlian phenomenology and can be called "an appearance theory of assent". But American and French contract law seem objective and subjective in a different way. Understanding this difference entails a shift in the questioning and a focus on rules pertaining to the validity and execution of contracts. On the one hand, American contract law appears to be objective since a contract is viewed as protecting an economic interest. On the other hand, French contract law seems to be subjective since its main goal is to protect the principle of keeping one's promise. Two contract theories - and not theories of assent anymore - can be highlighted and are both established on a founding principle (teleological, deontological), translated in positive law through a guiding principle (consideration, "cause") that spread to all other contract rules. The thesis then tries to examine the deeper movements of our laws which might lead them to draw closer to each other
Micalef, Romain. "L'internationalisation du droit des contrats publics en France et au Canada." Doctoral thesis, Université Laval, 2019. http://hdl.handle.net/20.500.11794/33906.
L’internationalisation du droit n’est pas indifférente aux contrats publics. Les deux pourraient même entrer en contact de manière privilégiée. Cette étude a pour ambition de révéler la nature juridique des rapports entre ce phénomène et cette discipline, en prenant comme ancrage deux États : la France et le Canada. Il convient alors d’observer le degré d’influence des normes internationales sur les droit internes, ainsi que l’influence des droits internes sur les normes internationales. Tantôt - selon l’angle d’observation - le phénomène d’internationalisation du droit semble être la cause de l’étude et la discipline du droit des contrats publics l’objet, tantôt l’inverse. A l’appui d’une telle démarche, différents matériaux doivent être mobilisés comme - entre autres - les accords internationaux, les décisions de justice, les sentences arbitrales, les directives internationales et les clauses du contrat. L’intérêt et la complexité d’un tel sujet résident en grande partie dans la méthode choisie, consistant à mobiliser le droit comparé au profit d’un phénomène juridique de nature internationale. Celui-ci est étudié par le biais de la notion de contrat public, mais aussi par sa formation incluant - notamment - son contenu, puis par son caractère financier et enfin par ses aspects contentieux. Si le particularisme de chacun des deux systèmes juridiques est préservé, il paraît intéressant d’analyser les dynamiques d’un éventuel rapprochement - voir d’une harmonisation - du droit des contrats publics en France et au Canada sous l’effet du phénomène d’internationalisation du droit. Le choix de ces deux États permet de matérialiser un tel phénomène à l’échelle nationale. Les divergences entre ces deux systèmes sont a priori assez nombreuses pour que leur éventuel rapprochement interpelle et mérite une étude approfondie.
The internationalization of law is not indifferent to public contracts. Both could even be coming into contact in a privileged way. This study aims to reveal the legal nature of the relationship between this phenomenon and this discipline, by taking two states as an anchor : France and Canada. It is necessary to focus, first and foremost, on the degree of influence of international standards on domestic laws, as well as the influence of domestic laws on international standards. In support of such an approach, it is interesting to make use of different materials such as - among others - the international agreements, the decisions of justice, the arbitral awards, the international directives and the clauses of the contract. The interest and complexity of such a topic lie mostly in the chosen method, using here a comparative approach of law in favor of a legal phenomenon of an international nature. This phenomenon is studied through the concept of public contract, but also by its creation, in particular its content, then by its financial character and finally by its remedies aspects. If the idiosyncrasy of each of the two legal systems is preserved, it will become necessary to analyze the dynamics of a possible merging, or even a harmonization of the law of public contracts under the effect of the phenomenon of the internationalization of law. The choice of France and Canada will make it possible, materializing such a phenomenon on a national scale. The differences between these two systems are a priori numerous enough that a possible merging challenges us and deserves a thorough study.
Gardounis, Emmanuel. "La détermination du prix dans le contrat : étude comparée entre le droit français et le droit hellénique." Lille 2, 2004. http://www.theses.fr/2004LIL20007.
The issue of determination of the price in contracts has plagued French jurisprudence for three decades before the famous " Alcatel " decisions by the Plenary assembly of the Supreme Court paved the way for untying this modern " Gordian knot ". There are still questions, largely concerning the notion of abuse in the fixation of the price, implying that a comparative analysis of this jurisprudence with one of the rare codifications of the notion of abuse of right enshrined in the article 281 of the Greek civil code is all the more compelling. In addition, the " Alcatel " jurisprudence could constitute a transitory step towards the recognition in France of a judiciary power of review over the price of the contract. Hence, that would result in the price being considered as equitable. Nevertheless, giver that abuses often exceed the regulatory framework related to the capital of the prive, a comprehensive control of the abusive clauses governing business-to-business relations seems to be an appropriate and legitimate course of action
El, Rajab Dima. "L'opposabilité des droits contractuels : étude de droit comparé français et libanais." Thesis, Paris 2, 2013. http://www.theses.fr/2013PA020074/document.
The notion of opposability, which appeared in French doctrine at the beginning of the last century, is of crucial importance today in relation to legal certainty. Thus, it is generally accepted in contemporary doctrine that such a concept explains the non-obligatory effects of contracts towards third parties and particularly in regard to responsibility. On the one hand, third parties must abstain from any act which may harm others' contracts. If this should occur, parties to the contract could claim compensation for any damage suffered as the result of a convention under taken by a third party without regard to their rights. On the other hand, and in parallel, a third-party victim is entitled to make a tort claim against a cocontracting party failed to fulfill a contractual obligation when this would be prejudicial tohim. Having said that, there is an ever-increasing number of authors for whom opposability cannot be used to support the two preceding rules. However, this criticism is notcompletely justified. Indeed, an in-depth study of the exact meaning, of the basis and of the determining characteristics of opposability show that, given a fair definition of the boundaries, this notion remains useful, if not indispensable to protect parties to a contract and third parties
Chaaban, Yousra. "Dépendance et équilibre contractuel -étude de droit comparé." Thesis, Lyon, 2020. http://www.theses.fr/2020LYSE3036.
The objective of this thesis is to establish a principle of contractual justice, especially in Egyptian law, thus benefiting from French and English experiences in this regard. In terms of precision, we deal with situations of dependence where contracts are formed, from the outset, unbalanced. The idea for this thesis was implemented due to the French reform of contract law in 2016. The latter has been devoted to article 1143 of the Civil Code a new vice of consent: the vice of abuse of dependence related to the duress. In this perspective, we had the idea of comparing this new vice with the fourth vice; in the Egyptian law known as the vice of exploitation, which mainly deals with abuses of the moral weakness of the parties. In order to present an unprecedented comparative experience, we decided to integrate the English law in our field of research. The originality of this subject also appears in the fact of simultaneously treating dependence and contractual equilibrium. However, the subject of this thesis encounters several difficulties which concerns not only dependence, but also contractual justice. First of all, concerning the dependence: its concept has so far been unclear. The dependence is surrounded by several other notions which only hide it instead of clarifying it such as the state of necessity, the vulnerability, the state of need, the state of weakness, the constraint, the subordination, the ignorance, and the inexperience. In addition, dependence, mainly in French law, was known at the outset to special law, that is to say in criminal, consumer or competition law. It had no precise concept in contract law. We note in the end that dependence is a subjective state of moral weakness, but which must also widen to encompass adhesion or standard contracts and contracts including unfair terms. This perspective would provide real protection for weaker parties.As far as contractual balance is concerned, in addition to its conceptual imprecision, it encounters a more serious difficulty. This is contrary to the traditional and usual logic of autonomy of will known in the three legal systems. That is to say that the contract is correctly formed from the moment the parties grant their consents, even if the contract itself is unequal or unbalanced from the formation.However, the contract is properly formed unless proven otherwise. This gives a vision of the legal philosophy adopted: this is a corrective philosophy and not a preventive one. The legal sanction for unbalanced contracts is a posteriori and not a priori sanction. That is to say, the law establishes contractual balance through contractual imbalance.In our view, the contractual context in general must be strengthened by a legal principle competing with that of autonomy of will. This principle is the contractual justice. The latter would counterbalance the contractual relations usually governed by the principle of the autonomy of the will. It would make it possible to control the justice of contracts a priori.This solution might seem to some "utopian". It is, on the contrary, a very practical solution because balance in contractual relations is a supreme end which will help to decrease the cases of unbalanced contracts or the cases of contracts vitiated by the abuse of dependence
Diop, Boubacar. "Droit des obligations et droit musulman." Thesis, Normandie, 2017. http://www.theses.fr/2017NORMLH07/document.
The most various demands weigh upon mankind: of a moral or religious, social or political order, of a logical order. Demand in the shape of duty: towards deity, towards oneself, towards others. These obligations obviously do not fall within the province of the law. If the judicial is related to the normative, everything normative is not translated into law. The theme of the study:”Law of obligations and Muslim law” should not be perceived from the perspective of a parallelism that might exist between the two: that is to say a Muslim law of obligations which will be contrary to the law of classical obligations deriving from western legal systems, like the French one. The problem raised by the subject of this thesis is to know how countries proclaiming themselves of “Muslim law”, while greatly influenced by a western model, manage to create a hybrid law? In what ways, by which means, has Muslim law evolved? To answer these questions, it is interesting, if not necessary, to seek on a practical as well as a utilitarian level for the technical means which allow to combine the requirements of the moral rule with the constraints of contractual relations in general, of international trade and of modern economy
Robinson-Brocheton, María de las Mercedes. "Accords verticaux de concurrence en droit comparé franco-argentin et communautaire." Thesis, Montpellier 1, 2012. http://www.theses.fr/2012MON10007.
Vertical agreements mostly correspond to single branding, exclusive distribution, exclusive purchase, selective distribution, franchising and concession. Although their variety is large, most of the time they constitute competition agreements because they increase inter-brand competition. The main aim of this study is to look for and to analyse the assessment criteria of distribution vertical agreements in French, European and Argentine Competition Laws. In European Competition Law, an important set of regulations and a rich case-law exist concerning distribution agreements. The rules concerning vertical agreements have been reformed ; as a consequence of this reform, a new Block Exemption Regulation (Regulation No 330/2010) has been adopted and accompanied by new Guidelines on Vertical Restraints. Lots of vertical agreements also benefit from Block Exemption which confers them a presumption of legality and in case these agreements do not benefit from the Block Exemption Regulation, they still can be exempted on the condition that a positive economic balance should be established, notably in view of efficiency gains. Unlike European Competition Law, the Argentine Competition Law concerning vertical agreements has not adopted Block Exemption Regulation and the Argentine competition authorities analyse each agreement in the light of the Rule of Reason and analyse their impact on the general economic interest
Póvoa, Marcos. "L'unilatéralisme au sein du contrat : regard brésilien sur la nature et le régime des prérogatives contractuelles unilatérales en droit français." Thesis, Paris 2, 2019. http://www.theses.fr/2019PA020083.
The contract, an institution usually endorsed by at least two people, has now undergone for many years the influence of a movement instilling more of what French authors call unilatéralisme, meaning more unilateral powers to only one of the contractors. The influence of unilatéralisme over the contract, contemporary to the more and more significant place of the individual in society, took place gradually. Initially confined to peripheral clauses of the contract such as termination clauses, unilateralism took an increasingly important place until it reached the very heart of the exchanges between the parties. The diversification of the economic model of the contract, which was initially based on the exchange established by the sale of goods and which encompasses today other economic operations based on the cooperation between the parties, is essential to understand this evolution. The logic underlying the economic operation of the contract, an exchange or a cooperation, will guide the understanding of the limits of the unilateralism.Once unilateralism has been accepted at the heart of the exchanges, the limits of the unilateral power remain to be defined. The enforcement of unilateral powers requires a rigorous framework to avoid any misuse and abuse of the unilateral power. The legislator provided a few mechanisms to perform this control of the use of unilateral powers, for example the duty to give reasons. Other tools, inspired by Brazilian law, could also contribute to strengthening this control. The evolution of contract law, the work of doctrine and case-law will determine the limits of the unilateralism
Tradicionalmente visto como o “templo da bilateralidade”, o contrato vem sofrendo nos últimos anos a influência de um movimento de valorização das chamadas prerrogativas unilaterais. A aceitação da influência do que a doutrina francesa convencionou chamar de “unilatéralisme” encontra eco na valorização recente do indivíduo dentro da sociedade, característica do pós-modernismo. Se, inicialmente, a influência das prerrogativas individuais só podia ser observada em cláusulas ditas “marginais” do contrato, como as cláusulas resolutivas, hoje as prerrogativas unilaterais fazem parte também do conteúdo central do instrumento contratual. O aumento da importância das prerrogativas unilaterais pode ser explicado pelo movimento da “diversificação” do modelo contratual. Inicialmente visto como tão somente uma troca entre os contratantes, como o que ocorre no contrato de compra e venda, o contrato hoje deve levar em conta diversas outras operações econômicas, muitas vezes numa lógica de cooperação entre as partes (distribuição, franquia, entre outros). No entanto, a multiplicação desse tipo de cláusula apresenta um risco para o equilíbrio contratual. Sem um controle rigoroso, a execução dessas cláusulas pode dar margem a abuso. Assim, a presente tese propõe alguns limites para as cláusulas que conferem um poder unilateral, evitando o abuso no uso das mesmas. Alguns dos mecanismos de controle são diretamente inspirados do direito brasileiro. Outros, fazem parte da realidade contratual do direito francês. Os verdadeiros limites dessas cláusulas serão estabelecidos pela evolução do direito dos contratos e pela influência da doutrina e da jurisprudência
Nguiyan, Fils Dieu Le Fit. "La compétition des droits dans l’Union Européenne : étude de droit des sociétés et de droit des contrats." Thesis, Paris 13, 2014. http://www.theses.fr/2014PA131033.
Since the publication of the first Doing Business reports issued by the World Bank, that ranked the different States according to the economic attractiveness of their laws, interest in regulatory competition has increased. Extensive research on the topic were conducted in order to contest or to bear witness of national laws competitiveness. The phenomenon projected however does not reflect the reality when the challenge involves regulatory models or law rules competition.Competition between the civil law model and the Anglo-American model seems real. Each model seeks to expand its influence outside the European Union either in the developing countries or in the emerging democracies. Within the European Union itself, each project represents an opportunity for both the legal cultures to make competition. It is thereforenecessary for the French law to weight the risks and benefits in order to preserve and stretch out its international influence.Regulatory competition seems questionable. The principles of freedom of establishment, free movement of goods and freedom to provide services inside the European Union create suitable conditions to set in motion regulatory competition. About contractual matters, liberalisation of choice-of-law and jurisdictions clauses, as well as the developmentof arbitration can foster economic actors to bypass imperative rules. The analysis of empirical data did not though confirm the existence of competition between the States as far as companies’ laws and contracts law are concerned.The benefit-cost analysis of the various opportunities has enabled us to explain the reluctance of the law rules competition actors on one hand, and encourage the French law to focus mainly on law models competition on the other hand
Bannes, Frédérique. "La responsabilité civile pour dommages pétroliers en droit comparé français et américain." Aix-Marseille 3, 1995. http://www.theses.fr/1995AIX32017.
Since the adoption of the oil pollution act in 1990 by the us congress, there is a splitting of the law of civil liability for oil pollution damages, beetween the international system of law, france has adhered to, and the american system of law. However, the comparative analysis of the french and american systems of civil liabilty reveals the basements of a potential harmoniszation of law. Therefore, the necessary and urgent realizationof a new oil juridical order is conceivable
Porras, Saldana Rebeca. "La notion de contrat de transport maritime : étude de droit comparé en droit panaméen, droit français et droit anglais." Thesis, Paris 1, 2017. http://www.theses.fr/2017PA01D072.
In the contract of international maritime transport of goods, the bill of lading is the key contractual document and the difference with the charter contract is the charter-party, in the relations between the charterer and the charterer. The bill of lading issued in execution of a charter agreement governs the relationship between the shipper and the carrier, on the one hand, and between the carrier and the consignee, on the other hand, and transmitted to a bona fide third party carrier. Interpret the different areas of application of the systems of the International Conventions, in particular the last existing Convention in form international standard: the UNCITRAL Convention of the United Nations (the Rotterdam Rules of 2008), as well as the others known: the Brussels Convention of 1924, the Hague / Visby Rules (The Brussels Protocol, 1968 and the Monetary Protocol (RHV)), Hamburg Rules (RHAM) 1978 United Nations Convention on the Rights of Education (Panamanian, French and English) and the principles present in the legal systems that are part of our analysis; aspects relating to the concept, nature and functions of the bill of lading in of the charter party and other contracts of international maritime law, the purpose of which is of a value title. First, the genesis and evolution of the contract for the international maritime transport of goods under bill of lading will be analyzed. The uniformity of the international legal instruments and the different areas of application of the Hague Rules, The Hague-Visby Rules, the Hamburg Rules and the Rotterdam Rules on the Uniform Bill of Lading Law. Obligations subject to international conventions. Second, the development will be on the charter contract. The charter-party and their different modalities in the carriage of goods by sea established in French law, Panamanian law and English law
Franck, Laëtitia. "Les contrats de location financière dans les procédures collectives d'apurement du passif en droits français et allemand comparés." Thesis, Nancy 2, 2011. http://www.theses.fr/2011NAN20010/document.
Businesses are increasingly using financial lease contracts to finance their capital goods. For the lessee, this form of financing offers the advantage that it does not require an injection of stockholders' equity. This mechanism also allows the finance company (the lessor) to retain ownership of the assets, a strong form of security in the event of the insolvency of the lessee. This becomes all the more relevant when one considers that finance companies are being confronted with cases of lessee insolvency more and more. However, this means that the interests of the lessor stand in opposition to the collective interest of creditors because the retention of a business's means of production is vital to keep the business in operation, which is necessary if the business is to be rescued or indeed wound up. This thesis analyses the reconciliation of the interests at stake based on a comparison between the situation in France and Germany. This analysis is done through a study of the three roles of the lessor in the insolvency proceedings of the lessee, namely as a co-contracting party, a creditor and an owner. First, it points out the necessity of keeping the financial lease in force after the opening of collective insolvency proceedings despite breaches of contract on the part of the lessee. Then it goes on to consider the payment terms of the lessor. And finally, it sets out the conditions for the return of the asset to the lessor and explains the terms of the exercise of the option to purchase the asset. This study shows how the French legal system is more complex than its German counterpart in essentially achieving the same practical results
El, Zanati Khaled. "Le pouvoir de l'administration dans la modification et la résiliation unilatérales des contrats administratifs : études comparatives des droits français, égyptien et libyen." Thesis, Paris 1, 2017. http://www.theses.fr/2017PA01D059.
The rule in private law is that the contract is considered to be the absolute law between the contracting parties, and therefore it cannot be modified or terminated without their consent. That is not the case in the field of administrative law as long as this law permits the administration to use its authority in unilateral amendment and termination of the contract. The problem can be stated here that the administration white practicing its authority in unilateral , modification or termination the contract might abuse its right of such practice under the justification of undefined concept of public interest. The ambiguous and loos of the concept of public interest led to the illegitimate and misuse of the administration of its authority in unilateral amendment and termination of administrative contract which results in disturbance of the balance between the interests of the administration on one hand and the other contracting party on the other
Rojas, Tamayo Daniel Miguel. "Le droit applicable au contrat en droit international privé colombien. Etude comparée, critique et prospective." Thesis, Paris 2, 2017. http://www.theses.fr/2017PA020006/document.
Colombian private international law remains in thrall to a public-law inspired approach resting on the principles of territoriality and sovereignty. These principles, which have been abandoned since the beginning of the twentieth century in comparative private international law, still form the basis of the choice-of-law rules for contractual matters found in positive law. Even though the courts have also used methods that are similar to others put forward more recently in the United States and France, the Colombian system does not offer satisfactory solutions to the issues raised by international situations, particularly in contractual matters. Colombian private international law therefore needs to be rethought. In this respect, it is possible, on the basis of existing texts in Colombian law, to justify both the transformation of the approach and the adoption of new solutions. As far as contracts are concerned, a favorable trend towards the consecration of the freedom of choice of the applicable law as a solution of principle can actually be identified within the Colombian legal order. Indeed, this solution aligns with the constitutional principle of internationalization and is compatible with the role recognized to private initiative in Colombian law. Choice of law, which is widely used in comparative international private law, is also favored by international institutions. In 2015, The Hague Conference thus published its Principles on the choice of law applicable to international commercial contracts. This non-binding instrument can provide inspiration for the development of a choice of law regime in Colombian law
Alghamdi, Khalid. "Changement de circonstances et effets sur les contrats commerciaux internationaux : étude comparative." Thesis, Paris 1, 2018. http://www.theses.fr/2018PA01D021.
Pacta sunt servanda, is a basic principle of civil law, canon law, and international law, in its most common sense, the principle refers to private contracts, stressing that contained clauses are law between the parties, and implies that no fulfillment of respective obligations is a breach of the pact.This principle is double-edged since it applies to both parties and judges, particularly when a change of circumstances occurs as in the case of unforeseen circumstances.This is an unforeseen change in the contractual balance making the execution of the contract much more expensive than originally planned. His American corollary could be found in the notion of impracticability.This allows a contract to be discharged from its obligations if following its conclusion an unforeseeable event occurs and makes its execution impossible or much more expensive than expected.What is the effect today of a change in circumstances on the binding force of the contract in French law and in international law?In this study we will analyze the circumstances that effect in the contracts of international business, including the hardship and the force majeure also we will talk about the French law and international laws including the laws in the Arabic spring countries, we will analyze that and find out the solutions for it
Barbin, Émilie. "La régularisation des actes administratifs : étude de droit comparé franco-brésilien." Thesis, Lyon, 2019. http://www.theses.fr/2019LYSE3048.
The regularisation of administrative acts is part of a global search for legal stability, which calls into question the familiar dialectic between legal certainty and administrative legality. It implies that administrative acts can be retained in the legal system despite their original illegality. Yet the French current legal system is characterised by a striking discrepancy between increasing references to regularisation in positive law, and uncertainty around its usage. On the contrary, regularisation has been embedded in Brazil’s legal architecture for twenty years as a power resting with the administration, which provides us with an example of mature use of this process. In this context, comparative law is both a tool to learn more about regularisation and a means to examine the prospects that could accompany its expansion within the French legal system. This approach allows for a definition of this notion as a corrective process with retroactive effects, enabling administrative acts to be kept in the legal order and legality to be restored. This definition helps to specify the scope of the notion, which then enables us to consider its legal effects. In this respect, building a specific system for the regularisation of administrative acts aims at specifying its legal implications. This system rests on a balance between meeting the objectives pursued by regularisation and limiting some of its negative effects, in particular towards third parties
Wyszogrodzka, Sylwia Danuta. "Etude comparative de l'erreur-obstacle en droit français et du dissentiment en droit polonais." Paris 5, 2011. http://www.theses.fr/2011PA05D005.
The thesis investigates the concept and the legal consequences of the “fundamental misunderstanding” under the French and the Polish law. The definition of the concept of the “erreur-obstacle” in France and the “dissent” in Poland is composed of two elements: the disagreement between the parties on the essential element of the contract and the error which hides the disagreement and causes the appearance of the contract. Despite the autonomy of the concept, which allows to distinguish it from other legal categories (especially the error-vice of consent), the legal consequences result from the lack of consent of the parties (the contract does not exist) or from the appearance of the agreement (then, the contract is based on the meeting of the declared intentions). The first solution, traditionally preferred in France, is complemented by a duty of restitution and the duty to repair the damage suffered by the party whose legitimate expectations was deceived; in that case parties may also enter into transaction or make a retroactive agreement. The second solution, most often applied in Poland, reserves to one party the right to cancel the contract for mistake in the declaration of intent. The bona fide third party can be protected by the application of the theory of the appearance in France and some legal regulations in Poland. According to the contemporary trends in European and international law, the aim of the proposals for both countries is to strengthen the protection of the legitimate expectations and the good faith
Nguyêñ, Minh Hang. "La convention de Vienne de 1980 sur la vente internationale de marchandises et le droit vietnamien de la vente." Thesis, Tours, 2009. http://www.theses.fr/2009TOUR1001/document.
Comparative analyses show that the Vienna Convention on the International Sale of Goods and Vietnam’s Sale of Goods law have a great deal in common, particularly as regards the rules governing the formation and execution of contracts, and this as become even more apparent with the recent reform of contract law in Vietnam and the passing in 2005 of a new Civil Code and a new commercial law. Yet the differences should not be underestimated. The first derives from the fact that the uniform law on international sale provides more flexible and more precise solutions. It also lays greater emphasis on the necessity of achieving contractual stability than Vietnamese law does, if only because there is more at stake in international contracts. The drafting of the Convention is also more meticulous than the provisions under Vietnamese law, another indication of the vital importance in uniform law of reinforcing stability in contractual relationships and the predictability of legal solutions. Besides, given the economic context in which it twas drawn up, the Convention aims to provide solutions which comply with the legitimate expectations of the parties, something that Vietnamese law isn’t always quite so good at doing. Other interesting conclusions can be drawn from the examination of case-law. In fact, both legal systems insist of the general principles underpinning the law of contracts, notably contractual freedom, consensualism and good faith. It should nonetheless be noted that, in practice, major differences remain between the two systems : whereas such principles are consistently upheld in conventional jurisprudence, Vietnamese law absides by them rather less. One is often surprised to read the debatable decisions Vietnamese judges sometimes come up with, decisions which disregard good faith or even the intentions of the parties, thus infringing freedom of contract. This state of affairs is made worse by the absence in domestic law of a general principle of interpretation of the declaration of the parties intentions. A historical and philosophical analysis of the two systems explains other differences. The Vienamese legislator’s reforming drive was held back by conservative notions dating back to the old regime and the planned economy, and cultural and legal values, e.g. Confucianism, must be taken into account. The differences highlighted are by no means insurmountable and do not prevent the formulation of suggestions and recommendations. On the one hand, the rules contained in the Vienna Convention constitute a standard which the Vietnamese legislator may use to improve municipal law in the areas of sale and contracts. On the other hand, Vietnamese judges, arbitrators and lawyers more generally rely heavily on the doctrine and case-law arising out of the Vienna Convention. For legal, political and economic reasons, therefore, it seems both desirable for Vietnam to sign up to the said convention
Ben, Ali Prieur Nabila. "Les contrats d'exploitation des biens immatériels : étude de droit français et marocain." Thesis, Strasbourg, 2014. http://www.theses.fr/2014STRAA022/document.
Intangible property owned by companies consists most often of the industrial property rights or a secret know-how. Their indirect exploitation, national or international, is made through the concluding of various contracts of exploitation. With the globalization, these contracts are at the heart of the modern economy and constitute one of the most important tools of technology transfer. This dissertation offers a global analysis of the various contracts of exploitation of the industrial property rights and know-how in Moroccan law and in French law. The first part of the thesis exposes their general regime under contract law, industrial property law and competition law. The second part proposes a unitary analysis, which views the problems raised by each type of these contracts in these two legal systems and treats their specific regimes
Jaber, Nagham. "Le contrôle juridictionnel des clauses élusives et limitatives de responsabilité : étude de droit comparé français et libanais." Thesis, Rennes 1, 2013. http://www.theses.fr/2013REN1G005.
The study of judicial control over elusive and limiting liability clauses supposes an in-depth reflection on the different foundations of the judicial control over these liability clauses and on the jurisdictional practices in this matter. The purpose of this study is to propose a well-balanced reform on the judge’s powers when it comes to elusive and limiting liability clauses. The overabundance of means that allows the judge to eliminate limiting clauses leads us to question whether or not he has the possibility to propose a judicial review of these clauses. The elaboration of a model legislation that defines the validity and limits of these clauses and authorizes the judges to modify theme sounds inevitable
Delangle, Charline. "Les motifs du contrat à titre onéreux : étude comparative des droits français, anglais et allemand." Thesis, Bordeaux, 2020. http://www.theses.fr/2020BORD0278.
Referring to the reasons for the conclusion of a contract, contractual motives are classically viewed in a negative way in French law : they are indifferent in principle, except in matters of control of the legality of the act, for which it is traditionally taught that motives of the parties are admitted without limitation. The essential aspect of motives in the contractual phenomenon does not fit well with this rejection of principle. A comparative analysis of the concrete solutions adopted in French, English and German laws not only makes it possible to challenge the principle of indifference of motives but, in addition, reveals substantial lines of convergence in the treatment of the question of contractual motives. Indeed, French, English and German laws meet, both in terms of legal policy at the basis of taking motives into account, and of the regime of this consideration. Also, the issue of motives is, first, inevitable with regard to the unitary requirement of a justification of engagement, which consists of a minimum interest in an onerous contract. Technically, the integration of a counterparty is thus necessary, and the laws studied include institutions making it possible to ensure the sufficiency of the interest that it represents. Beyond this necessary integration of a minimal motive, every law studied makes the fate of the contract dependent on the possibility of satisfying the utility which it pursues, as defined by all the motives tacitly or expressly integrated into it. The impossibility of motives at the formation of the contract or its execution is thus likely to lead to its contestation, provided that it does not constitute a risk to be supported by the one whose expectations are disappointed. The study of contractual motives in French, English and German comparative law leads to overcoming the traditional dogmatic oppositions - in particular centered on debates around the notion of cause - and offers a whole new perspective on the rules adopted in national law
Bouleghlimat, Widad. "L'arbitrage commercial international dans les pays arabes et les principes Unidroit relatifs aux contrats du commerce international." Thesis, Paris 2, 2014. http://www.theses.fr/2014PA020013.
International commercial arbitration is the Alternative Dispute Resolution (ADR) the most used in the world. Which contributes in particular to make the main actor of the diffusion of a-national rules as the general principles of law, usages of international trade, or the lex mercatoria, often chosen by the arbitrators as the law applicable to the substantive of the dispute. This choice was extended to the new rules developed by private international institutions such as the UNIDROIT Principles of International Commercial Contracts. A doctrinal codification conceived as a soft law instrument, which is increasingly applied in arbitration practice. Our study shows, however, that few awards rendered in cases in which one of the parties is Arabic made a reference to UNIDROIT Principles. The explanation is not to look for in an incompatibility between them and contract law in Arab countries but in the ignorance of this doctrinal codification by Arab jurists and lawyers. Added to this, a feeling of distrust a manifestation of soft law. It is therefore necessary to consider the ways in which the UNIDROIT Principles to find their place in the law and practice of the Arab countries
Ramírez, Reyes Santiago. "L’affinement des mécanismes liés à l’ordre public dans le choix de la loi applicable aux contrats internationaux : regards franco-mexicain." Thesis, Paris 1, 2019. http://www.theses.fr/2019PA01D088.
The concepts of public policy and overriding mandatory rules are to be found within the vocabulary of the general theory of conflict of laws. It is legitimate to ask whether this statement of principle can be illustrated by a French-Mexican comparison. The relevance of such a comparison may seem doubtful, given France's participation in a more or less unifying process, due to its membership of the European Union; whereas Mexico, on the other hand, is organized around a "federal pact". However, the comparison remains relevant as we can observe that the relationship between the nation-state and private international law inexorably passes through the prism of sovereignty and that France and Mexico remain masters of their sovereignty at the international level. This analysis is made possible thanks to the existence of a common historical background and a common legal culture, contractual matters are specifically targeted due to their high level of sensitivity to the influence of public policy. However, private international law has evolved since the identification and construction of the broad categories of the public policy and overriding mandatory rules, which have led to a number of developments whose orientation will have to be verified. These specification elements as multiple as they are varied, such as fundamental rights, protection of the weaker party, constitutional review and proportionality, among others, renders this study an opportunity to highlight the evolving nature of mechanisms related to public policy in international private contract law
Wilinski, François. "L’évolution du droit de la commande publique en France et en Italie à l’aune du P.P.P." Thesis, Lille 2, 2015. http://www.theses.fr/2015LIL20004/document.
Holistic expression as a means of action by the private sector to further the public sector, the publicprivate partnership could be perceived as revealing the erosion of the notional categories of public procurment contracts. However, the public-private partnership has not called into question the subject unity. In fact, on the contrary, the legal instruments of the PPP strentgthen it. This analysis can be verified in France as well as in Italy and the present study offers to analyse the legal signification of the phenomenon in both countries. The development induced by this notion confirms this trend. The comparative approach enables to understand the whys and wherfores of the development and formspart of the general theory of public contracts
Espressione globalizzata dei mezzi d’azione del settore privato al servizio del settore pubblico, il partenariato pubblico-privato potrebbe essere visto come rivela la dislocazione delle categorie del diritto dei contratti pubblici. Tuttavia, il partenariato pubblico-privato essa non pregiudica sulll'unitàdella disciplina. Invece, gli strumenti giuridici del P.P.P la rafforza. Questa analisi è confermata in Francia e in Italia ed lo studio permette di analizzare l'importanza giuridica del fenomeno in i due paesi. L'approccio comparativo utilizzato permette di capire questa evoluzione e può essere percepitocome un contributo alla teoria giuridica dei contratti pubblici