Ch.6 Performance, s.1: Performance in general, Art.6.1.2

2015 ◽  
Author(s):  
Atamer Yesim
Keyword(s):  
Burden Of Proof ◽  
Contractual Obligation ◽  
Legitimate Interest ◽  
Single Moment ◽  
Contractual Obligations ◽  
The Right

This commentary focuses on Article 6.1.2 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning performance of a contractual obligation at one time or in instalments. Whenever the obligor is given the right to perform its contractual obligations during a certain period of time, the question arises whether the obligor has to perform at one single moment during this period or whether it may choose to perform in lots. According to Art 6.1.2, the principle is performance at one time. The legitimate interest of the obligee not to be disturbed repeatedly for the same obligation seems to prevail over the interest of the obligor to offer its obligation in portions. This commentary discusses performance at one time as a rule, performance in instalments as an exception to the rule, effect of performance in instalments on counter-performance, and burden of proof relating to performance of a contractual obligation at one time or in instalments.

Ch.6 Performance, s.1: Performance in general, Art.6.1.3

2015 ◽  
Author(s):  
Atamer Yesim
Keyword(s):  
Burden Of Proof ◽  
Contractual Obligation ◽  
Scope Of Application ◽  
Contractual Obligations ◽  
And Performance ◽  
Definition Of ◽  
The Right ◽  
Legal Consequences

This commentary focuses on Article 6.1.3 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning partial performance of a contractual obligation. Art 6.1.3 addresses the question of whether the obligee has the right to reject partial performance or, conversely, whether the obligor has the right to discharge itself at least partly when the time of performance is due. This commentary discusses the content and scope of application of Article 6.1.3, definition of partial performance with regard to contractual obligations, right of the obligee to reject partial performance and obligation to accept partial performance, and legal consequences of acceptance or rejection of partial performance. It also considers the right of rejection in case of only partly possible performance, defective performance, and performance in excess. Finally, it looks at burden of proof as it relates to partial performance.

Ch.6 Performance, s.1: Performance in general, Art.6.1.4

2015 ◽  
Author(s):  
Atamer Yesim
Keyword(s):  
Burden Of Proof ◽  
Contractual Obligation ◽  
Bilateral Contract ◽  
Scope Of Application ◽  
Contractual Obligations ◽  
Legal Consequences

This commentary focuses on Article 6.1.4 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning order of performance of a contractual obligation. Art 6.1.4 deals with the sequence of performance and counter-performance if the parties have undertaken reciprocal obligations in a bilateral contract. This commentary discusses the content and scope of application of Art 6.1.4, the role of Art 6.1.4 in determining the time of performance for the counter-performance and in determining the order of performance of due contractual obligations, performances to be taken into consideration when determining the time and order of performance, legal consequences of disregarding the order of performance, and burden of proof relating to order of performance.

Ch.6 Performance, s.1: Performance in general, Art.6.1.1

2015 ◽  
Author(s):  
Atamer Yesim
Keyword(s):  
Burden Of Proof ◽  
Default Rule ◽  
Reasonable Time ◽  
Contractual Obligation ◽  
Performance Time ◽  
Contractual Obligations

This commentary focuses on Article 6.1.1 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the time of performing a contractual obligation. Art 6.1.1 determines when a party has to perform its contractual obligations. This is the time, or within the period of time, explicitly or impliedly stipulated in the contract within a reasonable time after the conclusion of the contract. This commentary discusses the notion of timely performance and the consequences of untimely performance, time of performance fixed by the parties, time of performance according to the default rule, obligee's failure to co-operate in regard to timely performance, changes in time of performance, and the burden of proof relating to time of performance.

Base estoppel and its impact on modifying the binding force of the contract

2021 ◽  
Author(s):  
Asos Namiq
Keyword(s):  
Good Faith ◽  
The Other ◽  
Full Time ◽  
Contractual Obligation ◽  
Binding Force ◽  
Other Hand ◽  
The Subject ◽  
Contractual Obligations ◽  
The One ◽  
The Right

The contract is the Sharia of the Contracting Party as a rule that does not govern the contract only upon formation, but also upon execution, since the terms of the contract are transformed, after its formation, into a law that imposes itself, and its sanctity cannot be violated. That is, when the contract is valid and enforceable, it must be executed according to what it contains and in accordance with good faith and trust between people, and this is called the principle of binding force of the contract. Whenever the contract is binding on both parties, one of the parties cannot be the only one to rescind or amend it. The mandatory limits of the contract are not limited to what the contracting parties have agreed only, but include all of its requirements in accordance with legislative and customary rules, and what justice requires, and what is imposed by the nature of the full-time obligation of the contract. When executing the contract, the extent of the debtor’s commitment to the contract is measured in the manner in which it is implemented, and his agreement with the requirements of the contract, that is, the closer the method of implementation is with the requirements of the contract, the debtor is considered on the right path in fulfillment, and the more the method of implementation is far from the requirements of the contract, the debtor is considered in breach of his contractual obligations. Since the debtor may deviate from the prescribed path in some cases due to the difficulty of implementing the obligation on the one hand, and the difficulty of harmonizing the circumstances and methods of implementation on the other hand, the law allowed the creditor to object to the debtor’s behavior whenever he saw it as different from the contract based on the binding force of the contract. But this right granted to the creditor is not an absolute right. Rather, it is restricted by his act or statement that revealed to the debtor the safety of his conduct in the implementation of the contract, meaning that despite the recognition of the right to object to the creditor, the creditor may be suspended by what was previously issued by him, i.e. closed The door of objection to it, and this is called the rule of judgment closure that we have chosen as the subject of our study. We deal with it by research and study to show the limits of this rule, and its impact on modifying the binding force of the contract, whether by making mandatory certain clauses in the contract or even creating new clauses, or by stripping a contractual obligation of its binding force.

Legal nature of individual proceedings in cases of granting the right to marriage

2021 ◽  
pp. 88-93
Author(s):  
T.M. Balyuk
Keyword(s):  
Family Law ◽  
Adoptive Parent ◽  
Intangible Asset ◽  
Scientific Article ◽  
Adopted Child ◽  
Legitimate Interest ◽  
Civil Proceedings ◽  
Legal Nature ◽  
Specific Material ◽  
The Right

The scientific article is devoted to the study of the legal nature of separate proceedings in cases of granting the right to marry.It is established that a separate proceeding as a type of non-litigious civil proceedings is characterized by: 1) the absence of a dispute about the right, which, at the same time, does not exclude the existence of a dispute about the fact; 2) a special object of judicial protection – a legally protected (legitimate) interest, which is the needs and aspi-rations to use a specific material and (or) intangible asset, which may or may not be mediated by a certain subjective right. Protection of legally protected (legal) interest is carried out by the court by deciding on the presence or absence of legal facts relevant to the protection of rights, freedoms and interests of a person or creating conditions for the exercise of personal non-property or property rights or confirmation of the presence or absence of undisputed rights.It is determined that a separate proceeding in cases of granting the right to marry is a type of non-litigious civil proceedings for consideration of applications for confirmation of the presence or absence of legal facts that are im-portant for creating conditions for a person’s right to marry. It is substantiated that the legal nature of separate proceedings in cases of granting the right to marry is a set of substantive grounds for granting the right to marry and features of the procedural form of consideration by the court of relevant applications that mediate changes in family law. The court, establishing the presence or absence of legal facts, decides to grant a person the right to marry, thereby expanding the family law capacity of such a person due to the ability to exercise the right to marry before reaching marriageable age or marry between the adopter’s adopted child and the adopted child, as well as between children who have been adopted by an adoptive parent.

scholarly journals Terms of fulfillment of the contractual obligation: law enforcement problems

2021 ◽  
pp. 330-340
Author(s):  
Maryna Venetska
Keyword(s):  
Law Enforcement ◽  
Legal Regulation ◽  
Contractual Obligation ◽  
Contractual Obligations

The article is devoted to the issues of legal regulation and law enforcement practice of determining the terms of performance and termination of contractual obligations, in particular, given the ambiguity of interpretation in practice of terms of termination of contract and terms of termination of obligations, including security. The urgency of the problem lies in the ambiguity of the interpretation in practice of the terms of termination of the contract and the terms of termination of obligations, which, as can be seen, is a consequence of the insufficiently successful legal regulation of this issue by law. The issue of extension of the obligation after the expiration of the contract is analyzed from the standpoint that the contract and the obligation are not identical concepts. Contracts are the basis for the occurrence and form of existence of obligations, which simultaneously constitute the content of the contract, but the civil obligation is not covered only by the concept of contract. Discussion issues of certainty of the period (moment) of execution are considered, as the civil turnover is aware of the obligations with a definite and indefinite term (term) of execution, terms of fulfillment of obligations with regular payments. The problematic issues of determining the terms of fulfillment of security obligations, in particular, guarantees, are also analyzed. The practice of application by courts of the provisions of the legislation on the terms of fulfillment of contractual obligations has been analyzed and a number of proposals have been made to improve the current civil legislation.

Treatment of silence as misrepresentation in contracts

2018 ◽  
Vol 60 (1) ◽  
pp. 69-78
Author(s):  
Ridoan Karim ◽  
Imtiaz Mohammad Sifat
Keyword(s):  
Best Practices ◽  
Islamic Law ◽  
Common Law ◽  
Point Of View ◽  
Fine Tuning ◽  
Content Type ◽  
Secondary Sources ◽  
Contractual Obligation ◽  
Contractual Obligations ◽  
Further Development

Purpose This paper aims to provide a comparative discussion on silence as a misrepresentation in contractual obligations between common law and Islamic law. The objective of this paper is to – from a legal pluralism point of view – highlight the contrasts between the two traditions and provide recommendations for best practices to achieve fairness and equity among the contracting parties. While common law does not treat silence as conscious misrepresentation, in Islamic law, silence does not constitute affirmative will. This has repercussions for the contracting parties because if future disputes arise, the aggrieved party in Islamic law reserves the option to rescind or nullify the contract – an opportunity not afforded by common law. We have discussed and analyzed the implementations of the different contractual terms, such as fraud, misrepresentation, trickery and deception in relation with Islamic law principles and common law practices. This research is an effort to draw the attention for further development in both Islamic law and common law practices on contractual obligation. The notion of misrepresentation – subset of a broader gamut of fraud – is arguably nebulous in Islamic literature as well. We delve into these nuances and provide examples both from common law and Islamic law precedents and provide recommendations for reform in both traditions. Design/methodology/approach This paper operates under qualitative methodological framework and uses secondary sources for analysis. Sources include journal databases, review of cases, classical/medieval Islamic scripts, etc. Findings This paper provides a general comparative study between common law’s principle and practice and Islamic law’s principle to forge a better understanding of fine-tuning existing practice and contribute to the debate on determining the best practices to unify international trade and custom exercise. Common law principle, obviously, holds a historical and traditional reputation as those principles are derived from long years of practice and judicial interpretation. Such historical legal system should accommodate fresh ideas in their repertoire and welcome novel ideas which would positively influence its own practice. This paper affords the freedom to the reader to interpret which general principle is acceptable in terms of contractual obligation. Originality/value Previous works exist on the issue of misrepresentation. However, those are mostly explanations of fraud and deceit in Islamic law or common law. The treatment of silence as affirmative will is seldom touched upon. To the authors’ knowledge, this is the first attempt at contrasting the treatment of silence in common and Islamic law. They have also advocated pluralistic practices and argued for legal reform whereby both traditions can benefit from each other.

3 Right to be Presumed Innocent

2021 ◽  
Author(s):  
Clooney Amal ◽  
Webb Philippa
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
Burden Of Proof ◽  
Reasonable Doubt ◽  
International Human Rights ◽  
The Rule Of Law ◽  
Human Rights Treaties ◽  
International Human ◽  
Assessment Of Evidence ◽  
The Right

This chapter focuses on the right to be presumed innocent, one of the most ancient and important principles of criminal justice, and a prerequisite for any system based on the rule of law. The right is absolute and non-derogable and, at its core, prohibits convictions that are predetermined or based on flimsy grounds. International human rights bodies have therefore found that where a conviction is based on non-existent, insufficient, or unreliable evidence, the presumption has been violated and a miscarriage of justice has occurred. More frequently, international human rights bodies have applied the presumption to require specific procedural protections during a trial. These include guarantees that the prosecution bears the burden of proving a defendant’s guilt beyond reasonable doubt, and that the defendant should not be presented or described as a criminal before he has been proved to be one. The chapter concludes that the presumption is protected in similar terms in international human rights treaties, but also highlights divergences in international jurisprudence relating to the standard for finding that a court’s assessment of evidence violates the presumption, the permissibility of reversing the burden of proof, and the extent to which the presumption applies after a trial has been completed.

Fiduciary Law as Equity’s Child

Equity ◽  
2018 ◽  
pp. 113-151
Author(s):  
Irit Samet
Keyword(s):  
Common Law ◽  
Legal Reasoning ◽  
Active Role ◽  
Fiduciary Duties ◽  
Contractual Obligation ◽  
The Law ◽  
Duty Of Loyalty ◽  
Contractual Obligations ◽  
The Relationship ◽  
The Way

This chapter challenges the argument that one of Equity’s most distinctive doctrines, fiduciary law, must be fused with a common law doctrine—the law of contract. In particular, it highlights the disadvantages of transforming the equitable duty of loyalty into an ordinary contractual obligation. The chapter first considers the ‘contractarian’ interpretation of fiduciary law according to which fiduciary duties are no more than a species of contractual obligations before explaining why, in contrast with the contractarian argument, Equity was right in claiming that the fiduciary relationship was essentially different from contract. After making the case of why fiduciary law should be treated as a sui generis equitable doctrine, the chapter examines two features of equitable fiduciary law that will change dramatically if the fusion suggestion is adopted (the language in which it is set and the way into the relationship) and shows the adverse consequences of moving in that direction. It concludes with the contention that the concept of ‘conscience’ still has an active role to play in the legal reasoning about fiduciaries.

26. Anticipatory breach of contract

2021 ◽  
pp. 392-400
Author(s):  
Paul S. Davies
Keyword(s):  
Breach Of Contract ◽  
Contract Price ◽  
Contractual Obligation ◽  
Anticipatory Breach ◽  
Legitimate Interest ◽  
Anticipatory Breach Of Contract ◽  
Do So

This chapter examines the doctrine of anticipatory breach, which occurs where, before the time comes for A to perform their part of the contract, A declares that A is not going to do so. This repudiation of the contractual obligation is itself a breach of contract. The innocent party may choose to either accept or reject an anticipatory breach. If they accept, the contract is terminated and the innocent party can sue for damages immediately. If the anticipatory breach is rejected, then the contract remains on foot. If the innocent party elects not to accept the breach and to keep the contract alive, then they may proceed to perform their side of the bargain and sue for the contract price. However, it appears that this action for the agreed sum, or action in debt, may not succeed if the innocent party had no ‘legitimate interest’ in taking such steps.

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