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.6.1.3

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.6.1.6

2015 ◽  
Author(s):  
Atamer Yesim
Keyword(s):  
Burden Of Proof ◽  
Default Rule ◽  
Contractual Obligation ◽  
Performance Problems ◽  
Legal Consequences ◽  
Wrong Place

This commentary analyses Article 6.1.6 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the place of performance of a contractual obligation. The place of performance is the place at which the obligor has to perform the acts necessary to honour its obligation. According to Art 6.1.6, monetary obligations must be discharged at the place of business of the obligee and non-monetary obligations at the place of business of the obligor. This commentary discusses the relevance of place of performance, problems related to interpretation of stipulations regarding place of performance, default rule for determining place of performance, place of performance for non-performance and restitution claims, the notion of place of business and consequences of a change in place of business or a change of parties, legal consequences related to performance at a wrong place, and burden of proof relating to place of performance.

scholarly journals Exceptions in International Law

2020 ◽  
pp. 11-34
Author(s):  
Jaap Hage ◽  
Antonia Waltermann ◽  
Gustavo Arosemena
Keyword(s):  
International Law ◽  
Burden Of Proof ◽  
Legal Consequences

In order to understand the role of exceptions in international law, this chapter distinguishes between applicability and application of rules. An exception to a rule in a case is defined as the situation in which a rule is applicable to, but nevertheless not applied to, the case. This is possible because the applicability of a rule is merely considered to be a reason for applying the rule, which can be outweighed by reasons against application. This chapter argues that exceptions to rules are made mainly for two purposes: to create a division in the burden of proof, or because the legal consequences of the rule in the case are undesirable. The chapter also discusses techniques used by law to avoid rule conflicts and the need for making exceptions, including subscripting, scope limitations, interpretation, derogation, incorporation and reference, and limitations on rule-creating powers.

12. Human rights and humanitarian law

2021 ◽  
pp. 165-177
Author(s):  
Ilias Bantekas ◽  
Efthymios Papastavridis
Keyword(s):  
Human Rights ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Positive Dimension ◽  
Margin Of Appreciation ◽  
Human Rights Treaties ◽  
Scope Of Application ◽  
Key Aspects ◽  
Legal Consequences

This chapter examines the nature and diversity of human rights, rather than any particular right. It looks at issues such as the universality, interdependence, and indivisibility of rights. It points to the issue of justiciability and emphasizes the obligation of States in both its negative, as well as its positive, dimension. The chapter examines the role of derogations and reservations to human rights treaties, as well as cardinal principles in such treaties, namely, the margin of appreciation and the scope of application. Finally, the chapter examines in some detail the key aspects and distinctions in international humanitarian law, such as the distinction and legal consequences between combatants and civilians and others.

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.6.1.1

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.

EU Non-Refoulement: (The Irrelevance of) Territoriality and Pre-Border Controls

2017 ◽  
Author(s):  
Violeta Moreno-Lax
Keyword(s):  
International Human Rights Law ◽  
Eu Law ◽  
Human Rights Law ◽  
Refugee Law ◽  
Functional Understanding ◽  
Scope Of Application ◽  
International Refugee Law ◽  
Border Controls ◽  
The Eu

This chapter identifies the content and scope of application of the EU prohibition of refoulement. Following the ‘cumulative standards’ approach, the analysis incorporates developments in international human rights law (IHRL) and international refugee law (IRL). Taking account of the prominent role of the ECHR and the Refugee Convention (CSR51) as sources of Article 19 CFR, these are the two main instruments taken in consideration. The scope of application of Articles 33 CSR51 and 3 ECHR will be identified in turns. Autonomous requirements of EU law will be determined by reference to the asylum acquis as interpreted by the CJEU. The main focus will be on the establishment of the territorial reach of EU non-refoulement. The idea that it may be territorially confined will be rejected. Drawing on the ‘Fransson paradigm’, a ‘functional’ understanding of the ‘implementation of EU law’ standard under Article 51 CFR will be put forward, as the decisive factor to determine applicability of Charter provisions. The implications of non-refoulement for the different measures of extraterritorial control considered in Part I will be delineated at the end.

The Role of Addington V Texas on Involuntary Civil Commitment

1989 ◽  
Vol 65 (3_suppl2) ◽  
pp. 1211-1215 ◽  
Author(s):  
J. Ray Hays
Keyword(s):  
United States ◽  
No Reduction ◽  
Burden Of Proof ◽  
United States Supreme Court ◽  
The United States ◽  
Convincing Evidence ◽  
Involuntary Commitment ◽  
United States Supreme ◽  
Linear Fashion

The United States Supreme Court in 1979 set the standard for involuntary commitment. This decision, styled Addington v Texas, raised the burden of proof required to commit persons from the usual civil burden of proof of “preponderance of the evidence” to “clear and convincing” evidence. There was no reduction in the rates of commitment as a result of the decision. The proportion of patients committed in Texas grew in almost linear fashion during the years 1972–1986. Various economic, sociological, and treatment factors may have more influence on commitment of patients than does a court decision.

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.

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