Ch.5 Content, third party rights and conditions, s.3: Conditions, Art.5.3.3

2015 ◽  
Author(s):  
Rowan Solène
Keyword(s):  
Good Faith ◽  
Third Party ◽  
Fair Dealing

This commentary focuses on Article 5.3.3 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning a contracting party's interference with the fulfilment of a condition. If fulfilment of a condition is prevented by a party, contrary to the duty of good faith and fair dealing or the duty of co-operation, that party may not rely on the non-fulfilment of the condition. If fulfilment of a condition is brought about by a party, contrary to the duty of good faith and fair dealing or the duty of co-operation, that party may not rely on the fulfilment of the condition. This commentary also discusses duty to use all reasonable efforts to cause the condition to be fulfilled and remedies for interference with the fulfilment of a condition.

Ch.5 Content, third party rights and conditions, s.3: Conditions, Art.5.3.4

2015 ◽  
Author(s):  
Rowan Solène
Keyword(s):  
Good Faith ◽  
The Other ◽  
Third Party ◽  
Fair Dealing ◽  
The Relationship

This commentary focuses on Article 5.3.4 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the duty to preserve the rights of a party. Art 5.3.4 imposes obligations on the parties during the period of suspension of the condition. It requires the parties not to act, contrary to the duty to act in accordance with good faith and fair dealing, act so as to prejudice the other party's rights in case of fulfilment of the condition. Art 5.3.4 applies to both suspensive and resolutive conditions, but it should arguably apply with less intensity to resolutive conditions. This commentary discusses the prejudicial act that breaches the duty of good faith and fair dealing, the relationship between Arts 5.3.3 and 5.3.4, remedies for breach of Art 5.3.4, and the intensity of the obligation.

Observation of Good Faith Principle in Contract Negotiations: A Comparative Study with Emphasis on International Instruments

2013 ◽  
Vol 03 (09) ◽  
pp. 56-61
Author(s):  
Ebrahim Shoarian Sattari
Keyword(s):  
Islamic Law ◽  
German Law ◽  
Good Faith ◽  
Roman Law ◽  
Fair Dealing ◽  
Contract Negotiations ◽  
Law System ◽  
American Law ◽  
Special Stand ◽  
International Instruments

Good Faith is one of the important principles in contract law. This principle is inherited from Roman law and it has been mostly developed in civil law system. Observation of Good faith and Fair dealing in French and German law and many other countries is considered as legal obligation. Good faith, also, is of special stand In Chinese law of contract. Since Good faith is considered as important and valuable, it has been recognized in Common Law System and adopted in English and American law. Islamic law also contains numerous examples of obligations that are based on Good Faith principle. Nowadays, good faith principle has been incorporated in important international instruments such as CISG, UPICC, PECL, and DCFR and its scope has been developed. If good faith principle was being considered in fulfilling of contracts, today it also is considered as important in pre-contractual and conclusion stages of contracts. The aforementioned documents contain regulations for observing good faith in preliminary negotiations, conclusion of contract, fulfilling of contract and the interpretation thereto. The present Article is attempted to show that Good faith is important in all stages including preliminary negotiation and it should be incorporated in domestic legislations. Remedy for breach of this duty in the pre-contractual sphere should be limited only to compensation for damages.

The role of the principle of integrity in copyright protection

2021 ◽  
pp. 12-25
Author(s):  
Olena Shtefan
Keyword(s):  
Case Law ◽  
The United States ◽  
Fair Use ◽  
Good Faith ◽  
Scientific Article ◽  
Anglo Saxon ◽  
Fair Dealing ◽  
Applicable Law ◽  
Principle Of Justice

Shtefan O. The role of the principle of integrity in copyright protection.The article is devoted to the disclosure of the essence of the principle of good faith as the quintessence of all principles of law, universal principle, which applies both in procedural and material law. Directly in the article, the principle of good faith is revealed through the prism of the analysis of controversial legal relations arising in copyright relations.The application of the principle of fair use of works is aimed at establishing a balance between the interests of authors of works and the interests of society regarding their use, while sometimes it is used to expand the monopoly of copyright.Analysis of the legislation and case law of Canada, Australia and other countries allows us to define the principle of «fair dealing» as a way to protect («affirmative defense ») from copyright infringement and restrictions, rather than as a statutory right to use someone else’s work. Otherwise, the defendant would be burdened with proving that: 1) the use corresponds to one of those listed in Art. 29 goals (for example, research, criticism or news); 2) the use was «fair» and 3) there were references to the original source.According to the results of the study in the scientific article it was concluded that the existence in the Anglo-Saxon legal family of two conceptually different in the application of doctrines of fair use «fair use» and «fair dealing» and understanding the free use of works in Ukraine, as in other countries in continental Europe, closer to the doctrine of «fair dealing», which implies a statutory list of actions that are classified as fair use, than to the doctrine of «fair use», which operates in the United States. Although it is possible to trace some similarities between the understanding of free use in the Civil Code of Ukraine, the Law of Ukraine «On Copyright and Related Rights» and the doctrine of «fair dealing» (given the statutory list of restrictions on copyright), it is necessary to take into account case law and, accordingly, a more «free» interpretationof the applicable law when the courts decide whether the use is a violation of exclusive rights or is an activity within the framework of free (fair) use. Keywords: copyright, illegal use of copyright objects, the principle of justice, thedoctrine of «fair use», the doctrine of «fair dealing».

Ch.4 Interpretation, Art.4.8

2015 ◽  
Author(s):  
Vogenauer Stefan
Keyword(s):  
Good Faith ◽  
Fair Dealing

This commentary focuses on Article 4.8 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the supplementation of an omitted term in a contract. According to Art 4.8, where the parties to a contract have not agreed with respect to a term which is important for a determination of their rights and duties, a term which is appropriate in the circumstances shall be supplied. In determining what is an appropriate term, regard shall be had to the intention of the parties; the nature and purpose of the contract; good faith and fair dealing; and reasonableness. This commentary discusses the interpretation, supplementation, and implication of contractual terms, omission of a term, and supplementation of an appropriate term.

Ch.1 General Provisions, General Provisions III: Arts 1.6–1.12—Application of the PICC, Art.1.7

2015 ◽  
Author(s):  
Vogenauer Stefan
Keyword(s):  
International Trade ◽  
Burden Of Proof ◽  
Contract Law ◽  
Ethical Standard ◽  
Good Faith ◽  
Fair Dealing ◽  
Global Trend

This commentary focuses on Article 1.7, which obliges the parties to a contract to ‘act in accordance with good faith and fair dealing’. The imposition of this duty corresponds to a global trend towards an increasing role for the standard of good faith in contract law that has been emerging for several decades. To a certain extent, the UNIDROIT Principles of International Commercial Contracts (PICC) help to reinforce this trend. Art 1.7 spells out the scope of the obligation to act in accordance with good faith and fair dealing; standard of good faith and fair dealing, including ethical standard and standard employed ‘in international trade’; consequences of failure to act in accordance with good faith and fair dealing; and burden of proof.

Wiederaufleben von Drittsicherheiten

2019 ◽  
Author(s):  
Sven Kalisz
Keyword(s):  
Historical Context ◽  
Previous Treatment ◽  
Case Law ◽  
Third Parties ◽  
Good Faith ◽  
Third Party ◽  
Security Agreements

The reinstatement of third-party collateral has not received much academic attention to date. Previous treatment of this issue has, in relation to many questions, merely led to seemingly apodictic assertions, without taking each systematic, historical context into account. This work provides coherent, dogmatically well-founded reasoning with respect to this set of issues. It scrutinizes prior approaches to this, in particular the differentiation between accessory and non-accessory collateral, resolves issues that have been disputed to date and provides a viable, dogmatic solution. In conclusion, possible contractual solutions are outlined which, contrary to previous approaches, except for tax and accounting law issues, protect the collateral taker as far as possible against good faith acquisition by third parties and can stand up to the strict case law relating to “restrictive security agreements”. This work is aimed at both practitioners and academics.

scholarly journals Implied Terms: The Foundation in Good Faith and Fair Dealing

2014 ◽  
Vol 67 (1) ◽  
pp. 297-331 ◽  
Author(s):  
H. Collins
Keyword(s):  
Good Faith ◽  
Fair Dealing

Good Faith in Sovereign Debt Restructuring: Mapping a Shift from Enforcement to Voluntary Compliance

2007 ◽  
Vol 28 (2) ◽  
Author(s):  
Dania Thomas ◽  
Javier García-Fronti
Keyword(s):  
Collective Action ◽  
Sovereign Debt ◽  
Legal Rule ◽  
Good Faith ◽  
Fair Dealing ◽  
Voluntary Compliance ◽  
Debt Market ◽  
Specific Standard ◽  
Collective Action Clauses ◽  
The U.S

AbstractOur examination of changes in the period leading up to the Argentine debt exchange and after, reveals that with Collective Action Clauses (CACs), the sovereign debt market is increasingly reliant on good faith as a standard of fair dealing to ensure fair and orderly debt restructurings in the future. Unlike the entrenched, enforceable, doctrinal good faith in domestic jurisdictions such as the U.S., the norm relied on in the sovereign debt market is a contextual open norm similar to the notion of Treu und Glauben, section 242 BGB of the German civil code. It is not a legal rule with specific requirements that need to be fulfilled. This paper reveals that reliance on a contextual, open norm is evidence of a shift in the framework that regulates sovereign debt restructurings: a shift from enforcement to voluntary compliance. Further, we argue that in the absence of a multilateral, regulatory, framework that embeds good faith as a specific standard of fair dealing, this reliance will exacerbate not solve the problem of sovereign debt restructurings.

scholarly journals The principle of good faith and fair dealing in English contract law

Pravovedenie ◽  
2020 ◽  
Vol 64 (3) ◽  
pp. 312-325
Author(s):  
Jan Halberda ◽  
Keyword(s):  
Civil Law ◽  
Contract Law ◽  
Civil Code ◽  
Good Faith ◽  
Traditional View ◽  
Comparative Approach ◽  
England And Wales ◽  
Fair Dealing ◽  
Objective Sense ◽  
English Law

Given that continental civil law scholarship applies the concept of good faith in either a subjective (honesty in fact) or objective sense (good faith and fair dealing), the present article focuses on the latter one. The traditional view in England and Wales discards the recognition of a general principle of good faith and fair dealing in English law. English courts have adopted a piecemeal solutions approach (as shown by the judicial decisions issued in Interfoto Picture Library (1987) and Walford v. Miles (1992)). Meanwhile, the principle in question, along with the concept of the freedom of contract, is one of the most important principles of the continental civil law tradition (cf. art. 1104 of the French Civil Code, § 157, § 242 of the German Bürgerliches Gesetzbuch, art. 2 (1) of the Swiss Zivilgesetzbuch, art. 6:2 Burgerlijk Wetboek, art. 5 of the Polish Civil Code, art. 2 (1) Common European Sales Law, art. 1:201 Principles of European Contract Law, art. III1:103 Draft Common Frame of Reference). The current work analyzes recent English case law (in particular Yam Seng (2013)), which seems to acknowledge the principle of good faith and fair dealing while rejecting the traditional view mentioned above. The comparative approach — references to American, and Commonwealth law, as well as to that of particular European states — is taken into account. The author claims that hostility to the concept of good faith in an objective sense in English law is superficial. One may expect that in the near future courts in England and Wales will follow the path taken by courts in the United States (§ 205 of the Restatement (Second) of Contracts (1981)), Australia (Renard Constructions (1992)) and Canada (Bhasin v. Hrynew (2014)), and they will finally recognize good faith as an underlying principle.

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