The Common Law Life Estate and the Civil Law Usufruct: A Comparative Study

1963 ◽  
Vol 12 (2) ◽  
pp. 649-667
Author(s):  
A. J. McClean
Keyword(s):  
Comparative Study ◽  
Common Law ◽  
Civil Law ◽  
The Common

scholarly journals Comparative Study of Civil Procedure in Common Law and Civil Law Systems

2016 ◽  
Vol 9 (5) ◽  
pp. 267
Author(s):  
Nader Ghanbari ◽  
Hassan Mohseni ◽  
Dawood Nassiran
Keyword(s):  
Comparative Study ◽  
Common Law ◽  
Civil Law ◽  
Civil Procedure ◽  
Judicial System ◽  
Specific Method ◽  
Legal Systems ◽  
Separate Branch ◽  
The Common ◽  
The Comparative Study

Comparing the legal systems is a specific method in which due to its important function is considered as a separate branch in law. None of the branches in law can place its knowledge merely on ideas and findings within the national borders. Several basic objections have been given regarding the definition and purpose of comparative study in civil procedure. In addition there are specific problems regarding studying practically the similar systems in a legal system like differences in purpose, definition and concept. In different legal systems like civil law and common law systems in which there is a divergence, even the judicial system`s organs and judges` appointment and judicial formalism are different, which add to the problems of the comparative study. Reviewing these differences could lead to a better understanding of these legal systems and recognizing the common principles in making use of each other`s findings considering these differences and indicate the obstacles of comparative study in this regard.

La nueva perspectiva de la tutela del error en el moderno derecho de los contratos

2014 ◽  
pp. 863
Author(s):  
Rocío Herrera Blanco
Keyword(s):  
Comparative Study ◽  
Common Law ◽  
Civil Law ◽  
Contract Law ◽  
Civil Code ◽  
European Contract ◽  
Legal Effect ◽  
The Common ◽  
The Impact ◽  
European Contract Law

Premio de artículos jurídicos «GARCÍA GOYENA» (Curso 2013-2014). Primer accésit Todos los ordenamientos jurídicos europeos prevén normas relativas a la ineficacia de los contratos por vicios del consentimiento, sin embargo, existen entre ellos diferencias bastante significativas, especialmente cuando se comparan el Common Law y los derechos continentales. El presente estudio comparado parte del tratamiento de esta cuestión en la regulación española y se centra en las propuestas que el moderno Derecho de la contratación proporciona en materia de vicios del consentimiento, con particular atención a la figura del error, así como en el Derecho anglosajón, por su eventual influencia en la regulación de estos instrumentos. De manera muy amplia, podríamos decir que el Common Law enfatiza la seguridad de las transacciones, mientras que los sistemas del Civil Law, quizás todavía marcados por las huellas de las llamadas teorías voluntaristas, son más transigentes en permitir la ineficacia de los contratos por defectos del consentimiento. Partiendo de esta premisa, intentaremos evidenciar que las soluciones brindadas por el Derecho anglosajón y los diferentes instrumentos de unificación para la determinación de los efectos jurídicos del error son muy similares. Asimismo, en este trabajo se defiende la tesis de la obsolescencia del Código Civil español en esta materia, y la consecuente necesidad de adaptación del mismo a la actual realidad social, a través de un propósito de homogeneización del Derecho contractual europeo. Para ello, igualmente estudiaremos la Propuesta de modernización del Código civil en materia de obligaciones y contratos, cuya regulación del error, en particular, merece ser objeto de estudio y confrontación de ideas.The legal systems of all european countries provide rules regarding the inefficacy of contracts due to defects of consent, however, there are very significant differences between them, with the deepest differences when Common law and continental systems are contrasted. The present comparative study focuses on the proposals that the modern contract law (PECL, Unidroit Principles, DCFR, CESL) provides with regard to defects of consent and, particularly, to the doctrine of mistake, as well as the Common law for its eventual influence on the regulation of these projects. Very generally, we could say that Common Law emphasizes the security of transactions, while Civil law systems, perhaps still under the impact of the eroded voluntarist theories, are more generous in allowing the inefficacy of contracts due to defects consent. Given these premises, we will try to evidence that the solutions provided by the Common law and the different unifying instruments in order to determinate the legal effect of the defects of consent are very similar. Furthermore, this survey defends the thesis of obsolescence of the spanish Civil Code respecting defects of consent, and the ensuing need for adapting it to the current social reality through a purpose of homogenization of european contract law. Due to this fact, we will also study the Proposal for the modernization of the Civil Code on obligations and contracts, whose regulation of defects of consent, particularly, diserves to be analyzed.

Paternity Rights of Authors under Iraqi and English Law: A Comparative Study in the Field of Copyright and Author Rights

2020 ◽  
pp. 1-15
Author(s):  
Ali Mohammed Khalaf al-Fatlawi
Keyword(s):  
Intellectual Property ◽  
Comparative Study ◽  
Common Law ◽  
Civil Law ◽  
Moral Rights ◽  
Property Law ◽  
French Law ◽  
Intellectual Property Law ◽  
The Common ◽  
English Law

Abstract Historically, Iraqi law has followed the Latin approach in the ambit of civil law, while English law is the creator of the ‘common law approach’. This has had an effect on the Iraqi doctrine for the protection of works in the field of intellectual property law. Therefore, Iraqi author rights have followed French law which grants authors many, in particular moral, rights on their works whilst English law restricts the rights of the author in kind of the moral rights. However, both laws grant authors important ‘paternity rights’ that prevent anyone from using a work without first receiving license from the author. Due to its importance in both laws, this article will try to explain paternity rights and its differences in Iraqi and English laws. This article will examine the scope paternity rights under both systems of law.

Is Style of Reasoning a Fundamental Difference Between the Common Law and the Civil Law?

2017 ◽  
Vol 17 (2) ◽  
pp. 238-290
Author(s):  
Colm Peter McGrath ◽  
◽  
Helmut Koziol ◽  
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Fundamental Difference ◽  
The Common

scholarly journals CODIFICATION, CONSOLIDATION, RESTATEMENT? HOW BEST TO SYSTEMISE THE MODERN LAW OF TORT

2021 ◽  
Vol 70 (2) ◽  
pp. 271-305
Author(s):  
Paula Giliker
Keyword(s):  
Comparative Study ◽  
Common Law ◽  
Civil Law ◽  
Tort Law ◽  
Case Law ◽  
Legal Scholarship ◽  
Legal Rules ◽  
The Law ◽  
Codal Provisions ◽  
Code Civil

AbstractThe law of tort (or extra or non-contractual liability) has been criticised for being imprecise and lacking coherence. Legal systems have sought to systemise its rules in a number of ways. While civil law systems generally place tort law in a civil code, common law systems have favoured case-law development supported by limited statutory intervention consolidating existing legal rules. In both systems, case law plays a significant role in maintaining the flexibility and adaptability of the law. This article will examine, comparatively, different means of systemising the law of tort, contrasting civil law codification (taking the example of recent French proposals to update the tort provisions of the Code civil) with common law statutory consolidation and case-law intervention (using examples taken from English and Australian law). In examining the degree to which these formal means of systemisation are capable of improving the accessibility, intelligibility, clarity and predictability of the law of tort, it will also address the role played by informal sources, be they ambitious restatements of law or other means. It will be argued that given the nature of tort law, at best, any form of systemisation (be it formal or informal) can only seek to minimise any lack of precision and coherence. However, as this comparative study shows, further steps are needed, both in updating outdated codal provisions and rethinking the type of legal scholarship that might best assist the courts.

Classifying precontractual liability: a comparative analysis

Legal Studies ◽  
2001 ◽  
Vol 21 (2) ◽  
pp. 153-191 ◽  
Author(s):  
Joachim Dietrich
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Tort Law ◽  
Contract Law ◽  
Common Elements ◽  
Ongoing Debate ◽  
Unjust Enrichment ◽  
The Common ◽  
Initial Focus

The common law has solved questions of liability arising in the context of precontractual negotiations by resort to a range of different doctrines and approaches, adopting in effect ‘piecemeal’ solutions to questions of precontractual liability. Consequently, debate has arisen as to how best to classify or categorise claims for precontractual work and as to which doctrines are best suited to solving problems arising from anticipated contracts. The purpose of this article is to consider this question of how best to classify (cases of) precontractual liability. The initial focus will be on the ongoing debate as to whether principles of contract law or principles of unjust enrichment can better solve problems of precontractual liability. I will be suggesting that unjust enrichment theory offers little by way of explanation of cases of precontractual liability and, indeed, draws on principles of contract law in determining questions of liability for precontractual services rendered, though it does so by formulating those principles under different guises. Irrespective, however, of the doctrines utilised by the common law to impose liability, it is possible to identify a number of common elements unifying all cases of precontractual liability. In identifying such common elements of liability, it is necessary to draw on principles of both contract and tort law. How, then, should cases of precontractual liability best be classified? A consideration of the issue of classification of precontractual liability from a perspective of German civil law will demonstrate that a better understanding of cases of precontractual liability will be gained by classifying such cases as lying between the existing categories of contract and tort.

scholarly journals The publication of judicial decisions as a reason for convincing precedent

1970 ◽  
pp. 195-199
Author(s):  
Roman Sabodash
Keyword(s):  
Common Law ◽  
Civil Law ◽  
General Idea ◽  
Court Decisions ◽  
Supreme Courts ◽  
State Register ◽  
Pros And Cons ◽  
Legal Position ◽  
The Common ◽  
The Right

The paper shows how the publication of court decisions influenced the formation of a precedent. The author reviewed scientific works devoted to research the precedent in common and continental law. The research explains that the formation of precedent in England was accompanied by development of the judgment’s reviews and their prevalence among lawyers. Of course, publication of court decisions was not a major factor in setting a precedent, but it played a significant role in this. The paper also describes facts of the publication of court decisions in Italy, Germany, France and the Netherlands, as well as the admissibility of their citations at the court of cassation. The general idea of the paper is that convincing precedent exists and is used although the countries of continental law do not have a «classic» precedent. The paper gives a review of the importance of the state register of court decisions for setting a convincing precedent in Ukraine. The author analyzes the pros and cons of citing court decisions. It’s stated that, unfortunately, the quotations of court decisions is not always correct and sometimes amounts to rewriting the «right» legal position without comparing the circumstances of the case. The article concludes that the practice of applying a convincing precedent in Ukraine is only emerging and needs further improvement.          It has been found out that the publication of judgments of supreme courts is one of the factors that helped to establish precedent in common law countries. The publication of court rulings also created the conditions for a convincing precedent in civil law countries (especially in private law). At the same time, the formation of a “convincing precedent» in countries where court decisions are published in publicly available electronic court registers is much faster than in common law countries. Of course, the structure and the significance of the precedent in the common law and civil law countries are different, but one cannot dismiss that publication of court decisions as one of the factors for establishing the precedent.

The Experiences of Civil Lawyers When Studying the Common Law

2013 ◽  
Vol 8 ◽  
pp. 1-20
Author(s):  
Margaret Fordham
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Legal Systems ◽  
The Common

AbstractThis article examines the issues experienced by civil lawyers when studying the common law. It considers the extent of the differences between common law and civil law legal systems, examines the challenges which students from civil law jurisdictions face when first exposed to the common law, analyses the various ways in which these challenges may be met, and summarises civilians’ overall impressions of the common law.

The Relationship between Disability Non-Discrimination Law and Quota Schemes

2019 ◽  
pp. 94-117
Author(s):  
Lisa Waddington
Keyword(s):  
Public Sector ◽  
Common Law ◽  
Civil Law ◽  
People With Disabilities ◽  
Public And Private ◽  
The Public ◽  
The Common ◽  
Public And Private Sector ◽  
The Relationship

This chapter explores the relationship between disability quota schemes and non-discrimination law in Europe. While at first sight they seem to sit uneasily beside each other, the chapter reveals how, in some instances, quota schemes can serve to facilitate compliance with non-discrimination legislation. At the same time, the chapter explores seeming incompatibilities between the two approaches and considers whether there are differences between common and civil law jurisdictions in this respect. Tentative conclusions suggest that there is a greater willingness to establish quota schemes through legislation in civil law jurisdictions compared to common law jurisdictions, and that quota schemes in civil law jurisdictions are more likely to provide for the imposition of a levy in the case that employers fail to meet their quota obligations through employing the required number of people with disabilities. There also seems to be some indication that there is greater awareness of the potential for conflict or tension, in various forms, between non-discrimination law and quota schemes in common law jurisdictions than in civil law jurisdictions. Finally, the two schemes operating in the common law states are only applicable to the public sector—whilst in civil law states quotas are generally applied to both public and private sector employers. This may indicate different perceptions regarding the role of public sector employers and the legitimacy of imposing quota requirements.

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