25. Conditions, warranties, and innominate terms

2021 ◽  
pp. 374-391
Author(s):  
Paul S. Davies
Keyword(s):  
Term Condition ◽  
Injured Party ◽  
The Right

If a party fails to perform a promise in a contract, it is in breach and liable to pay damages. But some breaches of contract not only entitle the injured party to claim damages, but also to put an end to the contract. The nature of the term becomes important when considering the right to terminate. This chapter discusses the meaning and scope of conditions, warranties, and innominate terms. A party may terminate a contract for breach of condition, but never for breach of warranty. Terms that are neither conditions nor warranties are called ‘innominate’ terms. It may be possible to terminate a contract for breach of an innominate term if the breach is sufficiently serious. Breaches which justify termination are often called ‘repudiatory breaches’. The chapter also considers express termination clauses and another difficult sense in which the term ‘condition’ is used, namely to denote an ‘entire obligation’.

25. Conditions, warranties, and innominate terms

2018 ◽  
Author(s):  
Paul S. Davies
Keyword(s):  
Term Condition ◽  
Injured Party ◽  
The Right

If a party fails to perform a promise in a contract, it is in breach and liable to pay damages. But some breaches of contract not only entitle the injured party to claim damages, but also to put an end to the contract. The nature of the term becomes important when considering the right to terminate. This chapter discusses the meaning and scope of conditions, warranties, and innominate terms. A party may terminate a contract for breach of condition, but never for breach of warranty. Terms that are neither conditions nor warranties are called ‘innominate’ terms. It may be possible to terminate a contract for breach of an innominate term if the breach is sufficiently serious. Breaches which justify termination are often called ‘repudiatory breaches’. The chapter also considers express termination clauses and another difficult sense in which the term ‘condition’ is used, namely to denote an ‘entire obligation’.

SUBROGATION IN INSURANCE CONTRACT

2018 ◽  
Vol 28 (6) ◽  
pp. 1985-1991
Author(s):  
Tatjana Dimov
Keyword(s):  
Insurance Contract ◽  
Insurance Companies ◽  
Property Insurance ◽  
Insured Person ◽  
Legal Position ◽  
Insured Loss ◽  
Injured Party ◽  
The Right ◽  
Insurance Agreement ◽  
Responsible Person

Subrogation is a legal right characteristically reserved by property insurers. Subrogation occurs in property insurance and in some particular cases of liability insurance. The doctrine of subrogation operates to ensure protection of certain specific principles relevant to the property insurance including the principle of indemnification whereby the compensation received is no more and no less than a full indemnity for the insured loss or damage suffered by the insured due to loss occurrence, the principle of non-cumulation in terms of claims under the same insurance contract and the principle which excludes claiming indemnity from the person who is legally responsible for causing the loss, because otherwise the insurance contract may be an unjustified source of profit for the insured as the insured would get double recovery or paid out twice for the same claim.With the payment of the reimbursement from an insurance agreement on the insurer, all rights that the insured has towards the persons responsible for the damage up to the amount of the paid compensation are transferred. With the subrogation, the insurer takes up the legal position of the insured person and exercises his right to subrogation from the rights of the insured (derivative acquisition of the right), so that the insurer exceeds the claims in scope and amount as the insured had towards the perpetrator.Subrogation is the right of the insurer, it is not his obligation. The insurer is not obliged to use this right to transfer the rights to the responsible person.The notion of subrogation is often associated with the concept of insurance regression. But there is a difference between these two terms: recourse is the right of the insurer to claim the amount of compensation that he has paid to the insured (injured parties) from the harmful person, while subrogation is the transfer of the right (the claim for damages to the responsible person) from the insured to the insurer up to the amount of the compensation paid on the basis of an insurance contract. The right to recourse is a consequence of the existence of subrogation, i.e. transfer of the rights of the insured person to the responsible person, and which is reached by the law itself.Тhe subrogation doctrine also operates to ensure that the defendant or the person who is legally responsible for the loss shall not be absolved of liability under the civil law. Namely, the perpetrator should bear the consequences of his liability for the caused damage, and therefore the legislator of the insurer (as one of the contractual parties in insurance contract) has recognized the right what he has paid the injured party (as the contractual party in the insurance contract called the insured) to calm from the perpetrator.Furthermore, subrogation doctrine operates to ensure profit for the insurance companies whereby the reimbursement funds the claims or sum insured are covered from additionally grow; therefore, this doctrine is of great importance to the insurers.

Homicide in Islamic Law

1951 ◽  
Vol 13 (4) ◽  
pp. 811-828 ◽  
Author(s):  
J. N. D. Anderson
Keyword(s):  
Islamic Law ◽  
Discretionary Power ◽  
The Third ◽  
Simple Classification ◽  
First Category ◽  
Injured Party ◽  
The Right ◽  
Exclusive Or

Perhaps the first point which attracts the attention of the European lawyer who begins to study the treatment of qatl (homicide) in the text-books of Islamic law is that it is there treated, in modern parlance, more as a tort than a crime. To understand the offence properly, however, no such simple classification will suffice: instead, it is essential to view it in its historical setting and detailed development.Under the heading of ‘uqūbāt, or punishments, Muslim lawyers treat primarily the very limited number of offences for which definite penalties (hudūd, singular hadd) are expressly prescribed in the arīa, although reference is also frequently made to the discretionary power of the Ruler or Judge suitably to punish other wrongdoing. Offences in general, moreover, are normally sub-divided into those which are regarded as exclusively involving the “right of God”, those in which both the “right of God” and the right of some individual is recognized but the former is held to preponderate, and those in which the latter is regarded as predominant. In the first category all jurists include sariqa in its two degrees (theft and brigandage), zinā (illicit sex relations), urb (wine drinking) and, when placed in this context, irtidād (apostacy from Islam); in the second, some jurists place qaf (the unproved assertion of a chaste person's incontinence), although others put this in the third category; while in the latter all include homicide and wounding. In effect an offence in which the right of God (as the Head of the community) is held to be exclusive or preponderant more or less corresponds to the modern crime, and one in which a private individual's right is regarded as predominant to the modern tort, for the chief practical difference is that in the former neither the party primarily injured nor, indeed, the Court may drop the case or allow a settlement once it has been started, while in the latter the injured party may do either at his or her discretion.

scholarly journals Default and Termination of Contract: A comparative Study between Indonesia and The United Kingdom

Yuridika ◽  
2020 ◽  
Vol 35 (3) ◽  
pp. 469
Author(s):  
Akhmad Budi Cahyono
Keyword(s):  
United Kingdom ◽  
Comparative Study ◽  
Comparative Studies ◽  
Common Law ◽  
Contract Law ◽  
Legal Rules ◽  
Contractual Relationship ◽  
The United Kingdom ◽  
Injured Party ◽  
The Right

Default is something that often occurs in contractual relationship. It can be not perform its obligations in the contract in all or in a part, performing its obligations but not in accordance with was agreed, performing its obligations but not in time, and performing something that is prohibited in the contract. Due to default, the injured party may claim compensation and / or terminate the contract. The problem is, the Indonesian Civil Code does not specify how a contract can be terminated in case of default. Therefore, it is necessary to conduct a comparative study in other countries in terms of how a default can terminate the contract. The British which adopt common law tradition where jurisprudence is the main source of law is the right choice for conducting comparative studies. Countries with common law traditions have detailed legal rules based on jurisprudence. As in Indonesia, according to British contract law, defaults also can terminate the contract. However, unlike in Indonesia, according to British contract law, termination due to a default is only allowed in the event that the default is very serious. The very serious forms of default will be elaborated and become a part of the discussion in this paper.

scholarly journals Performance of obligations in modern civil law

2020 ◽  
pp. 414-417
Author(s):  
Marharyta Butsan
Keyword(s):  
Necessary Conditions ◽  
Civil Law ◽  
Demand Fulfillment ◽  
Mutual Interest ◽  
Injured Party ◽  
Contractual Obligations ◽  
The Stability ◽  
The Right ◽  
Property Performance ◽  
Proper Performance

The article considers the notion of performance. Treaty obligations were the most common in the civil turnover. Their performance depends to a large extent the stability of the economy and society as a whole. Of particular importance are norms of civil legislation implementing the Treaty obligation. They are used daily in practical activities of legal entities and citizens. The performance of an obligation – it is always a process that takes some period of time and consists of a series of actions of the debtor and the creditor. Debtor proposes the execution, the creditor accepts it. The article studies scientific approaches with respect to conditions of contractual obligations. practice shows that most contracts are careless, do not contain the necessary conditions to realization of the interests of the parties, do not include measures to ensure contractual obligations. During the execution of such contracts often have complications, different interpretations by the parties to the same conditions, and as a result, there has been a massive failure by the parties of their responsibilities, resulting in numerous conflicts. The most important task of modern legal science and practice – the creation of legal mechanisms, allowing most effectively to ensure the proper performance of contractual obligations and to compensate the injured party for the loss caused by their failure or improper performance. Mechanism of performance of the obligation is the mutual interest of the parties. In determining the obligations a list of specific actions that the debtor is obliged to make in favor of the lender, is limited to the indication of the transfer of property, performance of work and payment of money. Undoubtedly, the parties rely on bilateral compliance with the obligations under the contract, but obviously there are cases when under any circumstances one of the parties does not fulfill its obligations. Performance of the obligation should also be understood as certain acts by the debtor (or refraining from doing,) that is the obligation of the debtor. In this regard, it should be noted that the lender has the right to demand fulfillment of the obligation, but the debtor is involved in such actions. Moreover, under proper performance to understand the performance of an obligation by an appropriate person at the appropriate time a particular person under equal circumstances. The real is the performance of specific obligations, which is reflected in the implementation of certain actions.

scholarly journals Role of P&I Insurance in Implementing Amendments to Maritime Labour Convention 2014

2017 ◽  
Vol 6 (1) ◽  
pp. 39-47
Author(s):  
Ranka Petrinović ◽  
Ivana Lovrić ◽  
Trpimir Perkušić
Keyword(s):  
Occupational Injury ◽  
Security Requirements ◽  
Financial Security ◽  
Marine Insurance ◽  
Insurable Interest ◽  
Legal Nature ◽  
Compulsory Insurance ◽  
Injured Party ◽  
The Right

Maritime Labour Convention (MLC), 2006 stipulates mandatory financial security for repatriation costs (Standard A 2.5), and contractual compensations related to death or longterm disability of seafarers due to an occupational injury, illness or hazard (Standard A 4.2) that is to be provided by the shipowner. However, financial security system set in the MLC was prescribed very broadly and insufficiently precise and, therefore, it opened a number of questions and doubts. Among others, the following questions are particularly interesting: what the legal nature of the MLC financial security is; from the insurance standpoint, whether this is life or accident insurance, or it is liability insurance; who has an insurable interest and what the nature of that interest is; which document proves fulfilment of MLC requirements. Due to the necessity of improving financial security provisions, in 2014 Amendments to the MLC were adopted that came into force in January 2017. Although the MLC does not explicitly prescribe a system of compulsory insurance, with the third injured party the right to a direct claim (actio directa) towards the liability insurer, marine insurance given its characteristic, appeared as a very suitable method of fulfilling MLC requirements – especially P&I insurance. All the clubs within the International Group of P&I Clubs have agreed to assist their members (shipowners) in complying with these additional financial security requirements under the Amendments to the MLC and issue MLC Certificates to their members. MLC Certificates refer to the MLC Extension Clause, 2016 and thus subject the insurance to conditions and limitations in the said clause. MLC Extension Clause provisions will be added to clubs P&I Rules which form the standard P&I cover.

scholarly journals The Recognition of Punitive Damages in Italy: A commentary on Cass Sez Un 5 July 2017, 16601, AXO Sport, SpA v NOSA Inc

2018 ◽  
Vol 9 (1) ◽  
pp. 104-122 ◽  
Author(s):  
Angelo Venchiarutti
Keyword(s):  
Civil Liability ◽  
Case Law ◽  
Punitive Damages ◽  
Damage Compensation ◽  
Lower Courts ◽  
Legislative Framework ◽  
Injured Party ◽  
Equivalent Sources ◽  
The Right ◽  
First Time

AbstractFollowing the decision of the First Division of the Court of Cassation issued on May 16, 2016, the United Section of the Italian Court of Cassation delivered a very important ruling on 5 July 2017 deciding – for the very first time – in favour of the enforceability of US punitive damages in Italy.The decision of the Joint Divisions of the Court of Cassation was based on the following arguments: a) more than one provision of the Italian legislative framework already attributes to damage compensation a scope that goes far beyond the mere restoration of the prejudice suffered by the victim; b) recent case law on the matter excludes the incompatibility of the punitive scope of civil liability with the Italian legal system; and c) several doctrinal contributions have promoted the possibility of granting the injured party the right to obtain compensation, beyond the patrimonial loss suffered, assuming that civil liability may also have a deterrent effect.On these premises, the Plenary Session of the Italian Court of Cassation recognised that civil liability may serve different functions: it primarily grants compensation to the injured party, in line with the previous connotation of civil liability as restoration of patrimonial loss, but it may also ensure deterrence and sanction the wrongdoing of the tortfeasor.Given this comprehensive nature of civil liability, the decision stated that foreign decisions granting punitive damages are not against public policy in principle and, thus, can be enforced in Italy, but only under certain preconditions.A foreign ruling providing the payment of punitive damages may be executed in Italy only in the case where foreign legislative provisions, or equivalent sources, grant the competent judge the power to award punitive damages based on typical and predictable circumstances. Moreover, the amount of punitive damages due shall be limited.A decision of the Joint Divisions of the Italian Court of Cassation—which is entitled to provide an uniform interpretation of the law— represents a significant precedent, which lower courts and subsequent judgments are likely to follow, in terms of which courts will be required to recognise and enforce foreign decisions implying a compensation of punitive damages.

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 Personalna subrogacija u odnosu prema pravu regresa osiguratelja i ustupanju tražbine – cesiji

2021 ◽  
Vol 11 (1) ◽  
pp. 79-90
Author(s):  
Jadranka Nižić-Peroš
Keyword(s):  
Case Law ◽  
Point Of View ◽  
Civil Proceedings ◽  
Legal Position ◽  
The Subject ◽  
Injured Party ◽  
Court Proceedings ◽  
The Right ◽  
Court Expert ◽  
Insurance Compensation

The subject of this paper is a review of legislation and case law regarding personal subrogation, recourse obligation and recourse claim of the insurer for payment of insurance compensation as well as determining the amount of payment of recourse claim in civil proceedings before the court and assignment of the claim - cession. The paper starts from the point of view that the terms and institutes of subrogation, recourse and cession are very similar and that they are often identified, so we try to clearly distinguish what exactly the term refers to. In Croatian law, the right of subrogation of the insurer is most often understood as legal personal subrogation where by paying the insurance compensation the insurer assumes the legal position of its insured and consequently enabling the insurer to claim damages against the responsible person . In addition to the above, the paper also considers the statute of limitations for insurers’ recourse rights. Furthermore, the author starts from the point of view that in court proceedings initiated for recourse payment it is necessary for the court expert to clearly determine the parameters based on which the court will be able to assess in a certain percentage the possible contribution of the injured party to the damage towards the plaintiff, namely the insurer.

scholarly journals Recusatio iudicus: Serbian scope, comparative review and practice of European Court of Human Rights

2020 ◽  
pp. 137-150
Author(s):  
Krsto Pejović
Keyword(s):  
Human Rights ◽  
Legal Framework ◽  
European Convention ◽  
European Court ◽  
Comparative Review ◽  
Compensation Claim ◽  
Injured Party ◽  
Legal Frameworks ◽  
The Right ◽  
Procedure Codes

The right of a party to exercise a judicial function in a case deciding its rights and obligations is impartial to a judge, which is determined by the obligation of the state to provide, first in a normative and then in a practical framework, the right to be upheld. Prima faciae, when it comes to the Serbian and legal frameworks of surrounding countries, it has been done nomotechnically in an impeccable way, but there are a number of essential shortcomings. The results we have obtained, using comparative legal review and analyzing practice of ECHR indicate that the Serbian, as well as the legislatures in the region, faces major problems in this area. As an anomaly we identified the possibility that a judge, although biased, in accordance with applicable regulations (in Serbian, Croatian and North Macedonian legal framework), could exercise judicial function in the case (because, there Criminal procedure codes stipulates that judge "can" be disqualified if there are doubts in his impartiality). Furthermore, very big problem in all legislatures (except Montenegrin) was that the injured party, although entitled to make a compensation claim (and this claim, within the meaning of Article 6(1) of the European Convention constitutes a civil claim), has no opportunity to seek a judicial excption/recusation. Finally, all analyzed legislation, except the Slovenian, allows a judge to take immediate action when it comes to an optional recusation. Disagreeing with this, we suggested that in the future they follow their Slovenian colleague who arranged it in a much better way.

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