The Interpretation of Contracts under Japanese Law

2020 ◽  
pp. 161-185
Author(s):  
Masami Okino
Keyword(s):  
Good Faith ◽  
Gap Filling ◽  
Japanese Law

This chapter examines two closely connected issues in defining the contents of contracts in Japan: first, the approaches adopted in interpreting the meaning of agreed contractual terms and, secondly, the extent to which additional terms are implied to supplement the express terms. It discusses the underlying philosophy of interpretation with regard to the dichotomy of ‘objective’ and ‘subjective’ approaches; it details the various interpretative aids, such as customs, usages, the commercial background, the negotiations of the parties and good faith; and it shows how Japanese law resolves the tension between literalist and contextualist approaches to interpretation. A number of hypothetical scenarios illustrate how Japanese courts deal with issues of contractual interpretation and gap-filling in practice.

scholarly journals Form and Substance in US, English, New Zealand and Japanese Law: A Framework for Better Comparisons of Developments in the law of Unfair Contracts

1996 ◽  
Vol 26 (2) ◽  
pp. 247 ◽  
Author(s):  
Luke Nottage
Keyword(s):  
New Zealand ◽  
Legal System ◽  
The United States ◽  
Contract Law ◽  
Good Faith ◽  
Undue Influence ◽  
The Law ◽  
Japanese Law ◽  
The Impact ◽  
Fine Print

There was talk of change in the law of contract in the United States, England, New Zealand and Japan in the 1990s. Often this was linked to broader trends of internationalisation. This article builds on the "form-substance" framework proposed by Atiyah and Summers, focusing on the fine print doctrine, the duty of good faith, and the law of unconscionability and undue influence. It argues that developments in these areas of contract law, which control unfair contracts, tend to be consistent with the overall orientation of each national legal system. This suggests that counter-systemic developments in each legal system's contract law will be met by more resistance than expected. Further, those overall orientations are not necessarily convergent, and this is likely to affect the impact of international developments in contract law on each legal system.

Contract Interpretation under Korean Law

2020 ◽  
pp. 207-223
Author(s):  
Youngjoon KWON
Keyword(s):  
Good Faith ◽  
Gap Filling

This chapter examines two closely connected issues in defining the contents of contracts in Korea: first, the approaches adopted in interpreting the meaning of agreed contractual terms and, second, the extent to which additional terms are implied to supplement the express terms. It discusses the underlying philosophy of interpretation with regard to the dichotomy of ‘objective’ and ‘subjective’ approaches; it details the various interpretative aids, such as customs, usages, the commercial background, the negotiations of the parties, subsequent conduct, and good faith; and it shows how Korean law resolves the tension between literalist and contextualist approaches to interpretation. A number of hypothetical scenarios illustrate how Korean courts deal with issues of contractual interpretation and gap-filling in practice.

Formation of Contract in Japan

2018 ◽  
Author(s):  
Yoshikazu Yamashita
Keyword(s):  
Common Law ◽  
Contract Law ◽  
Mirror Image ◽  
Good Faith ◽  
Contract Formation ◽  
Major Reform ◽  
Consumer Contracts ◽  
The Common ◽  
Japanese Law ◽  
Formal Requirements

This chapter provides insights into the law on contract formation in Japan. The Japanese approach is traditional, requiring an agreement which, in turn, normally requires an offer and matching acceptance, according to the mirror image rule. Once offers become effective, the 1898 Japanese Civil Code severely restricts their revocability. This is in tune with the mostly German origins of Japanese contract law. However, the drafters of the Code deliberately followed the common law in one respect: the offeree’s acceptance becomes effective as soon as it is dispatched. This is highly controversial and in 2001 was abolished for acceptances by electronic means. Ongoing major reform of Japanese contract law will probably extend this solution to all contracts. Japanese law has no doctrine of consideration and has traditionally eschewed formal requirements as a prerequisite for the validity or enforceability of contracts. More recently, formalities have been introduced, first, for certain consumer contracts, then for contracts of suretyship. A particular feature of Japanese law pertaining to contract formation is the strong duty to negotiate in good faith.

“Irony and Charity Are Met Together”: A Puzzle in Margaret Roper’s Letter to Alice Alington

Moreana ◽  
2009 ◽  
Vol 46 (Number 176) (1) ◽  
pp. 65-76
Author(s):  
Joshua Avery
Keyword(s):  
Good Faith ◽  
Platonic Dialogue

This study draws upon the Platonic dialogue tradition as a background for interpreting the conversation between More and his daughter Margaret Roper, as depicted in Margaret’s letter to Alice Alington. With an eye to the famously ironic Socrates, this article will propose the interpretation of a puzzling statement regarding More’s apparent good faith in the sincerity of others who have reversed their positions regarding the problematic oath. Is More expressing ironic distance or straightforward charity in his ambiguous language? The argument is that More, utilizing his legal and literary skills, carefully crafts a rhetoric that paradoxically joins remarkable charity with worldly-wise irony.

Is L2 vocabulary learned better via context or via translation?

2018 ◽  
Vol 2 (1) ◽  
pp. 39-60
Author(s):  
Michael John Alroe ◽  
Heyo Reinders ◽  
Punchalee Wasanasomsithi
Keyword(s):  
Incidental Learning ◽  
Intentional Learning ◽  
Time On Task ◽  
Translation Group ◽  
Gap Filling ◽  
Freshmen Students ◽  
Context Group ◽  
Comprehensible Input ◽  
Post Test ◽  
L2 Vocabulary

Various studies have shown intentional learning of L2 vocabulary to be more efficient than incidental learning from exposure to comprehensible input. Some have argued that such learning may be further enhanced by recourse to L1 translation, particularly for weaker learners. The present study aims to determine if intentional learning of new vocabulary through L1 does indeed confer an advantage over intentional learning from an L2 context. To this end, 403 Thai freshmen students were pre-tested on thirty vocabulary items set for study on their English course. They were then randomly allocated to either a translation or context group to learn those items. Time on task was controlled. A delayed post-test showed that while the translation group was better at matching the thirty English words with Thai translations, albeit marginally so, there was no benefit conferred on the translation group when it came to using the words in a contextual gap-filling exercise. This finding held for both advanced and weaker learners.

Non-Signatories in International Commercial Arbitration: Contesting the Myth of Consent

2018 ◽  
Vol 18 (2) ◽  
pp. 59-84
Author(s):  
Slavomír Halla
Keyword(s):  
Case Law ◽  
Good Faith ◽  
Mutual Understanding ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Starting Point ◽  
Professional Audience

Abstract Consent, the final frontier. International commercial arbitration is a dis­pute resolution mechanism embedded in consent of the parties involved. Presentation of such a mutual understanding is done through an arbitration agreement. However, the aim of this paper is to analyse whether its contractual, indeed consensual, nature is the only element which the courts use to identify the subjects who may compel or must be compelled to arbitrate disputes, or whether they employ other considerations as well. The paper will focus on extension doctrines which might be less known even to a professional audience: piercing of the corporate veil, estoppel & group of companies. A review of selected case law leads to a conclusion that consent-finding analysis is defi­nitely a starting point of any analysis. However, at the same time courts and arbitrators do indeed use tools of contract interpretation and the ones based on equity or good faith considerations to establish, and exceptionally force, the implication of consent far beyond what is obvious.

MENIMBANG PRINSIP ”DUTY OF CARE”: ‘PEMBELI’ MELAWAN ‘PEMBELI’ DALAM SENGKETA JUAL BELI TANAH

2017 ◽  
Vol 10 (1) ◽  
pp. 99
Author(s):  
Widodo Dwi Putro ◽  
Ahmad Zuhairi
Keyword(s):  
Legal Protection ◽  
Good Faith ◽  
Duty Of Care ◽  
Court Decisions ◽  
Analysis Method ◽  
Legal Standing ◽  
Physical Data ◽  
Agrarian Law ◽  
Land Sale

ABSTRAKSengketa jual beli tanah dalam perkara ini menyeret pihak penjual yang telah menjual objek yang sama kepada dua pembeli dalam dua kali transaksi. Pembeli kedua (penggugat) melayangkan gugatannya terhadap pembeli pertama (tergugat II). Posisi hukumnya dilematis. Kedua pembeli sama-sama merasa mempunyai hak atas tanah sengketa karena telah membeli objek yang sama dari penjual. Untuk membuktikan siapa pembeli yang berhak, hakim perlu mempertimbangkan asas "iktikad baik" (good faith), sebagai dasar untuk menentukan pembeli yang patut mendapat perlindungan hukum. Permasalahannya, kedua pembeli sama-sama mengklaim dirinya adalah pembeli yang beriktikad baik. Sehingga, untuk menilai siapa pembeli yang patut mendapat perlindungan hukum, hakim berpegangan pada prinsip duty of care, dengan mempertimbangkan siapa pembeli yang berhati-hati dan cermat memeriksa data yuridis dan data fisik sebelum dan saat jual beli dilakukan. Prinsip duty of care ini bersifat abstrak, maka metode penulisan yang digunakan, menelusuri dan mengkaji pendapat para ahli hukum perdata dan agraria untuk didialogkan dengan putusan-putusan hakim. Perkembangan putusan-putusan pengadilan mengenai pembeli beriktikad baik yang mengadopsi prinsip duty of care, seharusnya menjadi 'pegangan' para hakim dalam menangani kasus yang serupa, untuk menilai kapan pembeli dikategorikan sebagai pembeli beriktikad baik.Kata kunci: iktikad baik, perlindungan hukum, duty of care, data yuridis dan fisik.ABSTRACTThe dispute of land sale and purchase in this case drag the seller who had sold the same object to two buyers in two transactions. The second buyer (plaintiff) filed a lawsuit against the first buyer (defendant II). Its legal standing created a dilemma. Both buyers felt equally entitled to be the owner of the disputed land, which is the same object purchased from the seller. In providing evidence of the most eligible buyer, the judge should take into consideration the principle of "good faith" as the basis for determining the buyer deserving legal protection. The problem is that both buyers claimed that they were buyers of good faith. Therefore, to appraise which buyer deserving the legal protection, the judges adhered to principle of "duty of care" by taking into account which one of them was carefully and meticulously reading-through the juridical and physical data prior to and during the sale and purchase of the land was conducted. Given the abstract nature of the principle of "duty of care" the analysis method used in this discussion is exploring and studying the opinions of the experts of civil and agrarian law as to be juxtaposed with the decisions of the judges. The development of court decisions related to the issue of good faith buyers adopting the principle of "duty of care" should serve as a reference for the judges in handling similar cases to determine a good faith buyer.Keywords: good faith, legal protection, duty of care, juridical and physical data.

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