Criteria of Liability for Breach of Contract

1967 ◽  
Vol 2 (1) ◽  
pp. 67-110 ◽  
Author(s):  
Ernst Livneh
Keyword(s):  
Civil Procedure ◽  
The Other ◽  
Bad Faith ◽  
Breach Of Contract ◽  
Direct Damage ◽  
Damage Compensation ◽  
Direct Loss ◽  
The Law

The Israel law on damages for breach of contract is contained in arts. 106–11 (112) of the Ottoman Code of Civil Procedure, 1879 (OCCP), and the law on damages for torts in the Civil Wrongs Ordinance, 1944, (CWO)— enactments from two different worlds, built upon different foundations. The tests of liability are as follows.OCCPart. 109. “If the non-performance of an agreement be not due to bad faith on the part of the person who has undertaken to perform it, the damages awarded against him shall be equivalent only to the direct and determinate loss suffered by the other party owing to such non-performance.”art. 110. “If the non-performance of the agreement be due to fraud or bad faith on the part of the person bound to perform it, he shall be liable to pay damages which shall include both direct loss caused to the other party by such non-performance and also profits of which he may have been deprived owing to such non-performance.”CWOsec. 60, prov. (a), “…where the plaintiff has suffered damage, compensation shall only be awarded in respect of such damage as would naturally arise in the usual course of things and which directly arose from the defendant's civil wrong;…”Among all the criteria of liability for damages (which will hereafter be analysed) one only is common to both laws—“direct” damage. But neither law is original; it will be more interesting, and more instructive for the elucidation of their meaning, to go back to the sources and to compare both sets of provisions with their source, and the sources with each other.

Consideraţii critice referitoare la Decizia nr. 12/2020, pronunţată de Înalta Curte de Casaţie şi Justiţie – Completul pentru soluţionarea recursului în interesul legii

2020 ◽  
Vol 2020 (2020) ◽  
pp. 38-53
Author(s):  
Claudia ROȘU ◽  
◽  
Alin SPERIUSI-VLAD ◽  
Keyword(s):  
Supreme Court ◽  
Civil Procedure ◽  
The Other ◽  
Correct Interpretation ◽  
Bad Faith ◽  
Lower Court ◽  
Civil Action ◽  
The Supreme Court ◽  
The Law

"The authors analyzed the decision of the Supreme Court by an appeal in the interest of the law, regarding the possibility of the party fined according to art. 187 parag. (1) pt. 1 let. a) Code of Civil Procedure, for the introduction, in bad faith, of a civil action, accessory, additional or incidental requests, as well as for the exercise of some appeals, obviously unfounded, by the same decision by which these requests were solved, to submit in the appeal filed to the superior court, criticisms concerning the judicial fine. In the opinion of the authors, the correct interpretation is that these criticisms can be formulated in the appeal filed to the superior court, together with all the other criticisms regarding the solution of the lower court, when the fine was applied by the same decision by which those requests were solved."

scholarly journals Exemption of a Judge according to the law on civil procedure, article 71, paragraph 1, hyphens 6

2004 ◽  
Vol 76 (9) ◽  
pp. 236-239
Author(s):  
Miodrag Đisalov
Keyword(s):  
Civil Procedure ◽  
The Other ◽  
The Law

Requests for the exemption of a judge-chairman of tribunal according to the Article 71, Paragraph 1, Hyphens 6. are very common in practice. Justified or not, these requests affect the law principles and usage of a trial's authorizations and they immediately influence the judge's efficiency. This text is about establishing limits in the already existing legal solutions and directing the law applications and judge's behavior. The aim is to protect the judge's functions and authority of the court, as well as, to protect the other party in the trial that may have consequences as the result of the prolongation.

Part I Introduction, 1 The Nature of Termination

2020 ◽  
Author(s):  
Stannard John E ◽  
Capper David
Keyword(s):  
Common Law ◽  
The Other ◽  
Breach Of Contract ◽  
Close Relationship ◽  
The Law ◽  
The Right ◽  
The Relationship ◽  
Right To Refuse

This chapter discusses the nature of termination for breach. Termination for breach can be seen both as a process and as a remedy. Traditionally, the topic has been dealt with under the broader umbrella of ‘discharge’, alongside such topics as performance, frustration, and agreement. Problems arise, however, when the notion of discharge is pressed too far; in particular, the idea of the contract ‘coming to an end’ can be a misleading one, and has given rise to various errors and misconceptions. For this and other reasons, more emphasis is now given to termination in the context of remedies. Termination can be one of the most useful weapons in the armoury for the victim of a breach of contract, not least because, unlike many other remedies, it does not require recourse to the courts. However, this notion of termination as a remedy should not obscure the close relationship between termination and the other modes of discharge, most notably frustration. The chapter then looks at the problems in this area of the law, including problems of terminology, the different ways in which common law and equity have approached the question, and the relationship between discharge and damages. It also considers the most important aspects of the right to terminate, including the right to refuse performance.

scholarly journals DISGORGEMENT DAMAGES FOR BREACH OF CONTRACT

2012 ◽  
Vol 20 (1) ◽  
pp. 87-110
Author(s):  
Adam Temple
Keyword(s):  
Theoretical Basis ◽  
The Other ◽  
Rational Basis ◽  
Breach Of Contract ◽  
Contractual Obligation ◽  
The Core ◽  
The Law

Gain-based damages for breach of contract are often viewed as anomalous, and lacking a clear rational basis. This article seeks to provide a theoretical basis for the requirement to disgorge profits gained through breach of contract.  By looking at the core contractual obligation, it can be seen that a contracting party has two ways in which they can fulfil their promises. They can pay damages where they fully compensate the other party, or they can perform. Where damages are inadequate, the contracting party must perform. Failure to perform in such circumstances should be prevented, and it is argued that disgorgement of profits is a suitable deterrent to such contract breakers. It is suggested that the law should act in this way to protect the facilitative institution of contract. 

Die Vorleistungspflicht im Leistungsstörungsrecht

2021 ◽  
Author(s):  
Korla Karadas
Keyword(s):  
Civil Law ◽  
Civil Procedure ◽  
District Court ◽  
Research Assistant ◽  
Labour Law ◽  
Breach Of Contract ◽  
The Law

The work examines the obligation to perform in advance in the mesh of the law of breach of contract and attempts to grasp its special features. In nine chapters, its effects on general principles, such as final non-performance or damages, are examined. Special attention is paid to the changes since the reform of the law of obligations and the regulation of contracts for work and services as a model. The author of the work is a judge at the Hildesheim District Court and worked for many years as a research assistant to Prof. Roland Schwarze at the Chair of Civil Law, Labour Law and Civil Procedure Law at Leibniz University Hanover.

15. Breach of contract

Contract Law ◽  
2019 ◽  
pp. 429-466
Author(s):  
TT Arvind
Keyword(s):  
The Other ◽  
Breach Of Contract ◽  
The Core ◽  
Anticipatory Breach ◽  
English Law ◽  
The Law ◽  
The Right

This chapter examines how English law defines breach of contract and what the immediate effect of breach is on the validity of the contract, along with the obligations of the parties under the contract. It first considers the core principles underlying the law’s approach to defining breach before explaining how the courts assess performance and the consequences of breach, with particular emphasis on cases involving repudiation. It then discusses three types or classes of contractual terms: conditions, warranties, and innominate terms. It also looks at how the law deals with situations of anticipatory breach and concludes with an analysis of the scope and limits of the right of a party to terminate the contract following a repudiatory breach by the other party.

The Right of a Defaulting Party to Restitution When a Contract has not Been Rescinded

1974 ◽  
Vol 9 (3) ◽  
pp. 352-368 ◽  
Author(s):  
Daniel Friedmann ◽  
Asher Maoz
Keyword(s):  
Contract Law ◽  
The Other ◽  
Satisfactory Solution ◽  
Breach Of Contract ◽  
Difference Of Opinion ◽  
Injured Party ◽  
The Law ◽  
The Right

Is a party who breaks his contract entitled to restitution? This is one of the most difficult problems in the law of contracts. Williston, for instance, remarks:Few questions in the law have given rise to more discussion and difference of opinion than that concerning the right of one who has materially broken his contract without legal excuse to recover for such benefit as he may have conferred on the other party by part performance of an indivisible contract or by the performance of an indivisible fraction of a divisible portion of a contract. A satisfactory solution is not easy.We shall examine this question in light of the provisions of the Contracts (Remedies for Breach of Contract) Law, 1970.Sec. 9 of the Law reads as follows:(a) Where the contract is rescinded, the person in breach shall restore to the injured party what he has received thereunder, or, if restitution is impossible or unreasonable or the injured party so chooses, shall pay him the value thereof; and the injured party shall restore to the person in breach what he has received under the contract, or, if restitution is impossible or unreasonable or the injured party so chooses, shall pay him the value thereof.(b) Where part of the contract is rescinded, the provisions of subsection (a) shall apply to what the parties have received under that part.

scholarly journals LIMITATION OF THE RIGHT TO REQUIRE ENFORCEMENT UNDER THE RULE OF THE NEW CIVIL PROCEDURE CODE OF AN ENFORCEMENT ORDER OBTAINED BEFORE ITS ENTRY INTO FORCE

2017 ◽  
Vol 11 (2) ◽  
pp. 13-27
Author(s):  
Carmen Adriana DOMOCOȘ
Keyword(s):  
Coercive Force ◽  
Civil Procedure ◽  
The State ◽  
The Other ◽  
Legal Provisions ◽  
Procedure Code ◽  
Other Hand ◽  
The Law ◽  
The Right ◽  
Court Of Appeal

In a case, the court of appeal have interpreted the provisions of the law regarding the enforceable judgments delivered at first instance, with the right of appeal, or those in respect of which the parties agreed to directly exercise the appeal, when those interested or harmed by the enforcement can require the cancellation of the enforcement documents drawn up by violation of the legal provisions. The jurisprudence is not unanimous to consider the enforceability of the final civil decision is, however, a temporary one, until it is confirmed by the court of appeal, and it is removed when the court of appeal gives a contrary approach. One of the roles of the limitation is to provide the security of legal relationships, because after the expiry of the limitation period the debtor is satisfied that it can no longer be enforced, and the creditor knows that he no longer benefits from the coercive force of the state in order to recover his debt. On the other hand, to oblige the creditor to enforce a temporarily enforceable decision, about which he has no certainty that it will be upheld on appeal, means violating the very principle of the security of legal relationships, which the legislator intended to protect.

INFERRING FUTURE BREACH: TOWARDS A UNIFYING TEST OF ANTICIPATORY BREACH OF CONTRACT

2007 ◽  
Vol 66 (3) ◽  
pp. 574-604
Author(s):  
Qiao Liu
Keyword(s):  
Premature Termination ◽  
Conceptual Structure ◽  
The Other ◽  
Breach Of Contract ◽  
Anticipatory Breach ◽  
Cognitive Failure ◽  
Legal Test ◽  
The Law ◽  
Anticipatory Breach Of Contract

The doctrine of anticipatory breach was officially first established in a famous 1853 case, enabling a party to a contract to terminate it and sue for damages immediately after the other party refused to fulfil its part, despite the fact that the time stipulated for the latter's performance had not arrived. The doctrine has since been employed by counsel as a vehicle to justify a premature termination of contract in numerous legal battles. It was perhaps with the confidence in such vast general judicial experience that Lord Wilberforce once declared that the rules determining the existence of an anticipatory breach constituted “one of the more perspicuous branches of the law of contract”. With due respect, however, his Lordship seemed to be too optimistic on that occasion. When one takes a closer look at decided cases, it is hard to resist the conclusion that this area of law is still plagued with inconsistency, uncertainty and incoherence. Where the existence of an anticipatory breach of contract is in dispute, the courts have been applying two distinct approaches to fact patterns of the same nature. A major cause for this disparity is the courts' failure to realise in some cases that the cases they are dealing with are anticipatory breach cases and should be subjected to a uniform test. This cognitive failure is largely attributable to the fact that, although the term “anticipatory breach” itself was criticised on several occasions, little has been done to illuminate the very nature of an anticipatory breach of contract and what distinguishes it from what we normally conceive of as a breach of contract, namely an “actual breach” of contract. Another cause of the disparity of the courts' approaches is perhaps English law's case-to-case, piecemeal methodology. Pragmatic though this methodology may be, it is sometimes necessary to amass the fragmented pieces and fit them into a clear and stable conceptual structure, thereby bringing the law to a higher level of generalisation. It is the purpose of this article to propose a general legal test for all types of anticipatory breach on the basis of an exposition of its nature and hopefully to bring order, rationality and unity to this chaotic area of law.

15. Breach of contract

Contract Law ◽  
2017 ◽  
Author(s):  
TT Arvind
Keyword(s):  
The Other ◽  
Breach Of Contract ◽  
The Core ◽  
Anticipatory Breach ◽  
English Law ◽  
The Law ◽  
The Right

This chapter examines how English law defines breach of contract and what the immediate effect of breach is on the validity of the contract, along with the obligations of the parties under the contract. It first considers the core principles underlying the law's approach to defining breach before explaining how the courts assess performance and the consequences of breach, with particular emphasis on cases involving repudiation. It then discusses three types or classes of contractual terms: conditions, warranties, and innominate terms. It also looks at how the law deals with situations of anticipatory breach and concludes with an analysis of the scope and limits of the right of a party to terminate the contract following a repudiatory breach by the other party.

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