Comparative Perspectives

2020 ◽  
pp. 740-776
Author(s):  
Kenneth G C Reid ◽  
Marius J de Waal ◽  
Reinhard Zimmermann
Keyword(s):  
South America ◽  
Common Law ◽  
Civil Law ◽  
Far East ◽  
Family Members ◽  
The Other ◽  
Judicial Discretion ◽  
The World ◽  
The Common ◽  
Financial Need

Today freedom of testation is qualified, in most countries of the world, by a degree of mandatory family protection. Broadly speaking, that protection can be delivered either by a system of fixed shares (such as forced heirship or compulsory portion), or by the court-based discretionary system which is often known as ‘family provision’. In fixed-share systems, certain family members (especially the surviving spouse and children) are protected merely because they are family members; in discretionary systems there is often an additional requirement of financial need. Fixed-share systems dominate in the civil law countries of Europe, South America, and the Far East as well as in Islamic countries and the Nordic countries; discretionary systems are found mainly in England and in the common law world more generally. The range of potential beneficiaries varies from system to system and country to country, but today includes the surviving spouse and children as well as, often, civil partners, cohabitants and even dependants. Each system has opposing strengths and weaknesses: fixed-share systems are predictable but inflexible; discretionary systems are flexible but unpredictable. Each system has sought various means to temper its weakness. Amidst general satisfaction with mandatory family provision, there have also been reforms and calls for more reform. In fixed-share systems there is support for moving, in whole or in part, to a system of judicial discretion. There is little demand, in discretionary systems, for a move in the other direction.

scholarly journals Applicability of the 2017 FIDIC Red Book in Civil Law Jurisdictions

2020 ◽  
pp. 1-20
Author(s):  
Omar Hisham Al-Hyari
Keyword(s):  
United Arab Emirates ◽  
Legal System ◽  
Research Method ◽  
Common Law ◽  
Civil Law ◽  
Proper Understanding ◽  
The World ◽  
The Common

Abstract In 2017, the FIDIC launched a new edition of its Red Book—a recommended construction-related contract for building and engineering works designed by the employer. The roots of this book were influenced by the common law legal system, whereas many countries follow the civil law legal system. Amongst the latter countries is the United Arab Emirates, which has attracted construction parties from all over the world. Those who wish to use the Red Book amongst such parties should be acquainted with the local limitations on its applicability. Such acquaintance can provide them with a proper understanding of their rights and obligations. This article discusses these limitations using the doctrinal research method, which included, inter alia, an examination of all relevant decisions by local higher courts during the 2009-2019 period. The discussion shows that such limitations can be confronted owing to conflicts with local judicial jurisprudence and/or mandatory statutory provisions.

scholarly journals A COMPARISON OF THE COMMON LAW BASED DUTY WITH ITS CIVIL LAW EQUIVALENT

2020 ◽  
Author(s):  
Azamat Omarov ◽  
Asylbek Kultasov ◽  
Kanat Abdilov
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Comparative Law ◽  
Case Law ◽  
Legal Systems ◽  
Legal Structure ◽  
Legal Term ◽  
Legal Effect ◽  
The World ◽  
The Common

The article discusses the features of civil law in different countries. The authors studied the origins of the modern tradition of civil law, comparing the legal systems of two European countries. One of the traditional classifications of duties in civil law is analyzed, the conclusion is made about the inappropriateness of the allocation of personal and universal duties. In comparative law, there are many situations where the same legal term has different meanings, or where different legal terms have same legal effect. This confusion most often occurs when civil lawyers have to deal with common law, or vice versa, when common law lawyers deal with civil law issues. While there are many issues which are dealt with in the same way by the civil law and common law systems, there remain also significant differences between these two legal systems related to legal structure, classification, fundamental concepts, terminology, etc. As lawyers know, legal systems in countries around the world generally fall into one of two main categories: common law systems and civil law systems. There are roughly 150 countries that have what can be described as primarily civil law systems, whereas there are about 80 common law countries. The main difference between the two systems is that in common law countries, case law – in the form of published judicial opinions – is of primary importance, whereas in civil law systems, codified statutes predominate.

Formation of Contract and Stipulations for Third Parties in Indonesia

2018 ◽  
Author(s):  
Gary F Bell
Keyword(s):  
The Netherlands ◽  
Common Law ◽  
Civil Law ◽  
Essential Element ◽  
Contract Law ◽  
Third Parties ◽  
Legal Tradition ◽  
The World ◽  
The Common ◽  
The Law

Indonesia is one of the most legally diverse and complex countries in the world. It practises legal pluralism with three types of contract law in force: adat (customary) contract laws, Islamic contract laws (mostly concerning banking), and the European civil law of contract, transplanted from the Netherlands in 1847, found mainly in the Civil Code (Kitab Undang-Undang Hukum Perdata). This chapter focuses on European civil law as it is the law used for the majority of commercial transactions. The civil law of contract is not well developed and there is a paucity of indigenous doctrine and jurisprudence, since most significant commercial disputes are settled by arbitration. The contours of the law are consistent with the French/Dutch legal tradition. In the formation of contracts, the subjective intention of the parties plays a greater role than in the common law. As with most jurisdictions with a Napoleonic tradition, the offer must include all the essential element of the contract, there is no concept of ‘invitations to treat’ or of ‘consideration’, the common law posting rule is rejected, and the contract is formed only when the acceptance is received. There are generally few requirements of form but some contracts must be in writing and some in a notarial deed.

Interprétation auprès des tribunaux nationaux

FORUM ◽  
2007 ◽  
Vol 5 (1) ◽  
pp. 65-89 ◽  
Author(s):  
Christiane J. Driesen
Keyword(s):  
Human Rights ◽  
Continuing Education ◽  
Common Law ◽  
Civil Law ◽  
The Other ◽  
Cognitive Content ◽  
Bachelor Degree ◽  
Law System ◽  
The Common ◽  
University Course

The aim of this article is to take stock of the situation concerning training of court interpreters, particularly in what is known as the « civil law » countries in Europe as opposed to those with the « common law » system. It reviews existing organisational formats and proposes the two types of teaching that seem best-suited to meet the urgent requirements of the courts. One is in the framework of continuing education; the other a university course leading to a bachelor degree. The author recommends a principle of pedagogical progression taking into consideration the difficulties linked to less spoken languages and stresses the importance of teaching all the traditional interpreting techniques, including specific cognitive content, but at the same time focusing especially on ethical and human rights aspects in the interpreting strategies taught.

Fundamental Values of Criminal Procedure

2019 ◽  
pp. 24-42
Author(s):  
Richard Lippke
Keyword(s):  
United States ◽  
Criminal Justice ◽  
Human Dignity ◽  
Common Law ◽  
Civil Law ◽  
Criminal Procedure ◽  
The United States ◽  
The World ◽  
The Common ◽  
Fundamental Values

This chapter examines the fundamental values that ought to inform criminal procedure. More specifically, it considers what we ideally should want from the rules and procedures that exist in legal jurisdictions throughout the world. Three fundamental values are discussed—human dignity, truth, and fairness—and the ways in which they can be upheld or subverted by criminal justice practices. Illustrations are drawn primarily from the United States, but reference is also made to criminal procedure in other countries, including those in the civil law tradition. The article concludes by analyzing two further candidates for inclusion on the list of fundamental values of criminal procedure: the “effectiveness” of criminal procedure and the value of “expertise” that highlights the distinction between the common law and civil law traditions.

Mistake

2017 ◽  
Author(s):  
Hein Kötz
Keyword(s):  
Common Law ◽  
Civil Law ◽  
The Other ◽  
Historical Background ◽  
European Law ◽  
The Common ◽  
The Law ◽  
To Receive

This chapter examines how the law deals with contracts that a party entered into by mistake. After a brief discussion of the historical background of the rules in the civil law and the common law, the question is raised whether there is a relevant mistake if a party’s ‘motive’ for entering into the contract turns out to be incorrect, if the party’s mistake refers to the value of what it promised or was to receive under the contract, or if the party’s mistake is due to its carelessness. Should the relevance of a mistake not depend on whether it was caused or shared by the other party? Finally, the chapter outlines some common threads in the development of a European law on mistake.

Justification of Acquisitive Prescription in the Civil Law System. Why is It Not an “Uncompensated Deprivation?

2015 ◽  
Vol 1 (3) ◽  
pp. 170
Author(s):  
Silvana Dode
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Civil Law ◽  
Bad Faith ◽  
Law System ◽  
European Court ◽  
The World ◽  
Adverse Possession ◽  
The Common ◽  
Civil Law System

Acquisitive prescription (a civil law institute) and Adverse Possession, its equivalent in the common law system is alreadya consolidated private law institute. It is recognised from the legal systems of almost each country in the world and is among the most important original ways of gaining ownership.Its constitutionality and the fact that should it be recognized from a legal system or not was brought in question in 2002, sparking a debate between lawyers in the world. The debate rose after the announcement of the decision of the ECHR (European. Court of Human Rights) in the case JA Pye ( Oxford) Ltd vs Graham. The Fourth Chamber of the ECHR held that acquisitive prescription is actually an 'uncompensated deprivation. First, we will analyze the main theories on the basis of which this institute is justified. The question to be raised for the review of the article is whether prescription is morally and legally justified, especially in the case of prescription in bad faith. In the end, it will be reached the conclusion that there are justified reasons for the prescription and it is a very useful institution inthe civil circulation. But preliminary stricter legal criteria must be met for the recognition of the property right by prescription, especially in the case of bad faith prescription. The law should aim to provide a greater protection to the legitimate owner.

Ch.3 Validity, s.2: Grounds for avoidance, Art.3.2.12

2015 ◽  
Author(s):  
Huber Peter
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Time Limit ◽  
The Other ◽  
Reasonable Time ◽  
Time Limits ◽  
Individual Term ◽  
Time Period ◽  
The Common ◽  
The Right

This commentary focuses on Article 3.2.12 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning time limits for exercising the right to avoid the contract. Art 3.2.12 stipulates that notice of avoidance shall be given within a reasonable time, having regard to the circumstances, after the avoiding party knew or could not have been unaware of the relevant facts or became capable of acting freely. Where an individual term of the contract may be avoided by a party under Article 3.2.7, the period of time for giving notice of avoidance begins to run when that term is asserted by the other party. In relying on a ‘reasonable time’ period rather than setting out a clearly defined period of time (for example, two years after conclusion of the contract), Art 3.2.12 follows the common law model rather than the typical civil law solution. This commentary discusses the commencement and duration of ‘reasonable time’ period as well as the consequences of failure to avoid a contract within time limit.

Justification of Acquisitive Prescription in the Civil Law System. Why is It Not an “Uncompensated Deprivation?

2015 ◽  
Vol 3 (1) ◽  
pp. 170
Author(s):  
Silvana Dode
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Civil Law ◽  
Bad Faith ◽  
Law System ◽  
European Court ◽  
The World ◽  
Adverse Possession ◽  
The Common ◽  
Civil Law System

Acquisitive prescription (a civil law institute) and Adverse Possession, its equivalent in the common law system is alreadya consolidated private law institute. It is recognised from the legal systems of almost each country in the world and is among the most important original ways of gaining ownership.Its constitutionality and the fact that should it be recognized from a legal system or not was brought in question in 2002, sparking a debate between lawyers in the world. The debate rose after the announcement of the decision of the ECHR (European. Court of Human Rights) in the case JA Pye ( Oxford) Ltd vs Graham. The Fourth Chamber of the ECHR held that acquisitive prescription is actually an 'uncompensated deprivation. First, we will analyze the main theories on the basis of which this institute is justified. The question to be raised for the review of the article is whether prescription is morally and legally justified, especially in the case of prescription in bad faith. In the end, it will be reached the conclusion that there are justified reasons for the prescription and it is a very useful institution inthe civil circulation. But preliminary stricter legal criteria must be met for the recognition of the property right by prescription, especially in the case of bad faith prescription. The law should aim to provide a greater protection to the legitimate owner.

Unjustified Enrichment in Comparative Perspective

2019 ◽  
pp. 960-993
Author(s):  
Daniel Visser
Keyword(s):  
Common Law ◽  
Civil Law ◽  
The Other ◽  
Comparative Perspective ◽  
Unjust Enrichment ◽  
The Future ◽  
The Common ◽  
The One ◽  
Level Of Understanding ◽  
Unjustified Enrichment

The emergence of unjust enrichment as a cause of action in its own right in England and Australia sparked a remarkable debate between, on the one hand, civil and common lawyers, who were confronted with thinking which was often completely outside the paradigm to which they had become accustomed, and, on the other hand, between common lawyers inter se about the merits of the various ways in which unjust enrichment may be understood and organized. At the heart of this debate was the struggle of the common law to confront and deal with the deficit caused by its reliance solely on ‘unjust factors’ to make sense of enrichment liability without taking account of the notion of ‘absence of basis’. This chapter argues that comparative lawyers can make an important contribution to the future of the fractured and fractious world of unjustified enrichment by uncovering the enormous wealth of learning of which both the common law and the civil law are the repositories, and so bring the same level of understanding to the law of unjustified enrichment which has, over the years, been achieved between the systems in regard to contract and tort.

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