Rights-based justifications for the tort of unlawful interference with economic relations

Legal Studies ◽  
2008 ◽  
Vol 28 (2) ◽  
pp. 215-233
Author(s):  
JW Neyers
Keyword(s):  
Basic Principle ◽  
Tort Law ◽  
Case Law ◽  
The Other ◽  
Third Party ◽  
Private Law ◽  
Economic Relations ◽  
Public Rights ◽  
Unlawful Interference ◽  
The Right

The tort of unlawful interference with economic relations is anomalous since it allows a plaintiff to sue a defendant for a loss that is occasioned by an unlawful act committed by that defendant against a third party. This parasitic liability is seemingly in violation of the basic tort law principle that in order to make out a claim what the plaintiff must show is a violation of her own rights, not merely a wrong to someone else. Thus, it appears that the tort is an instance of damnum absque injuria. This paper examines whether this is in fact the case by examining if there are any rights-based theories that can explain the tort in a way that is consistent with basic private law principle. In other words, is it possible to find an independent right of the defendant that has somehow been violated, one which explains why the defendant is able to sue in their own right? Upon examination, it appears that the ‘right to trade’, ‘remoteness’ and ‘abuse of right’ theories are largely incapable of providing such an explanation since they display many seemingly insurmountable problems of coherence and fit with the existing case-law. More promising are the arguments that the tort is a justified exception to basic principle or that it is an example of public rights being vindicated in private law, yet each of these theories is also problematic in some respects. The overall thesis of the paper is that the tort of unlawful interference with economic relations is radically under-theorised and that it, and the other economic torts, could benefit tremendously from more intense academic examination.

Formation of Contract and Third Parties in Cambodia

2018 ◽  
Author(s):  
Ly Tayseng
Keyword(s):  
Academic Writing ◽  
Case Law ◽  
Civil Code ◽  
Third Parties ◽  
Third Party ◽  
The Third ◽  
Contract Formation ◽  
The Law ◽  
The Right ◽  
Formal Requirements

This chapter gives an overview of the law on contract formation and third party beneficiaries in Cambodia. Much of the discussion is tentative since the new Cambodian Civil Code only entered into force from 21 December 2011 and there is little case law and academic writing fleshing out its provisions. The Code owes much to the Japanese Civil Code of 1898 and, like the latter, does not have a requirement of consideration and seldom imposes formal requirements but there are a few statutory exceptions from the principle of freedom from form. For a binding contract, the agreement of the parties is required and the offer must be made with the intention to create a legally binding obligation and becomes effective once it reaches the offeree. The new Code explicitly provides that the parties to the contract may agree to confer a right arising under the contract upon a third party. This right accrues directly from their agreement; it is not required that the third party declare its intention to accept the right.

KEPEMILIKAN DAN PENGUASAAN OBJEK JAMINAN FIDUSIA APABILA TERJADI SENGKETA WANPRESTASI DALAM PERJANJIAN KREDIT

2020 ◽  
Vol 8 (1) ◽  
pp. 78
Author(s):  
Dija Hedistira ◽  
' Pujiyono
Keyword(s):  
Economic Benefits ◽  
Civil Code ◽  
The Other ◽  
Third Party ◽  
Analysis Method ◽  
The Law ◽  
The Right

<p>Abstract<br />This article aims to analyze the ownership and mastery of a fiduciary collateral object, in cases that often occur today, many disputes between creditors and debtors in fiduciary collateral agreements are caused because creditors assume that with executive rights as fiduciary recipients, the fiduciary collateral object legally owned by creditors and creditors the right to take and sell fiduciary collateral objects when the debtor defaults unilaterally, as well as the debtor who considers that the fiduciary collateral object is owned by him because the object is registered on his name, so that the debtor can use the object free as  giving to a third party or selling the object of fiduciary guarantee unilaterally. the author uses a normative <br />juridical approach, and deductive analysis method based on the Civil Code and fiduciary law applicable in Indonesia, Law No. 42 of 1999 concerning Fiduciary Guarantees. The conclusion of the discussion is the ownership of the object of the Fiduciary Guarantee is owned by the debtor in accordance with the Law, mastery of the object of collateral controlled by the debtor for economic benefits, the procedure of execution The object of Fiduciary Guarantee is carried out in accordance with the Fiduciary Guarantee Act, an alternative mediation in resolving the dispute. There needs to be clarity in the use of language in making a law, so as not to conflict with each other between Article one and the other Articles.<br />Keywords: Ownership; Mastery; Object of Fiduciary Guarantee; Debtor; Creditors.</p><p>Abstrak<br />Artikel ini bertujuan untuk menganalisis tentang kepemilikan dan penguasaan suatu objek jaminan fidusia, dalam kasus yang saat ini sering terjadi, banyak sengketa antara kreditur dan debitur dalam perjanjian jaminan fidusia disebabkan karena kreditur beranggapan bahwa dengan adanya hak eksekutorial sebagai penerima fidusia, maka objek jaminan fidusia tersebut secara sah dimiliki oleh kreditur dan kreditur berhak mengambil dan menjual objek jaminan fidusia saat debitur cidera janji<br />(wanprestasi) secara sepihak, begitupun dengan debitur yang menganggap bahwa objek jaminan fidusia tersebut dimiliki olehnya karena objek tersebut terdaftar atas namannya, sehingga debitur dapat mempergunakan objek tersebut secara bebas seperti menyerahkan kepada pihak ketiga atau menjual objek jaminan fidusia tersebut secara sepihak. penulis menggunakan pendekatan yuridis normatif, dan metode analisis deduktif yang didasarkan pada Kitab Undang-Undang Hukum Perdata<br />dan hukum jaminan fidusia yang berlaku di Indonesia, Undang-Undang No. 42 Tahun 1999 tentang Jaminan Fidusia. Kesimpulan pembahasan adalah Kepemilikan Objek Jaminan Fidusia dimiliki oleh debitur sesuai Undang-undang, penguasaan objek jaminan dikuasai debitur untuk manfaat ekonomis, prosedur eksekusi Objek Jaminan Fidusia dilakukan sesuai dengan Undang-Undang Jaminan Fidusia, alternatif secara mediasi dalam menyelesaikan sengketa yang terjadi. Perlu ada kejelasan dalam<br />penggunaan bahasa pada pembuatan suatu Undang-Undang, agar tidak saling bertentangan antar Pasal satu dengan Pasal yang lainnya. <br />Kata Kunci: Kepemilikan; Penguasaan; Objek Jaminan Fidusia; Debitur; Kreditur.</p>

COHABITANTS IN PRIVATE LAW: TRUST, FRUSTRATION AND UNJUST ENRICHMENT IN ENGLAND, GERMANY AND CANADA

2013 ◽  
Vol 62 (3) ◽  
pp. 629-665 ◽  
Author(s):  
Anne Sanders
Keyword(s):  
Intimate Relationships ◽  
Case Law ◽  
Private Law ◽  
Party Autonomy ◽  
Unjust Enrichment ◽  
Legislative Action ◽  
The Law ◽  
Canadian Provinces ◽  
The Right ◽  
English Canadian

AbstractNeither in England, nor in Germany, nor in all Canadian provinces, does the law provide specific rules for the redistribution of property for unmarried cohabitants after the breakdown of their relationship. Instead, courts apply the law of trusts, contract and unjust enrichment with an eye to the characteristics of intimate relationships, as, for example, in decisions like the EnglishJones v Kernott([2011] UKSC 53) and the CanadianKerr v Baranow(2011 SCC 10). This article compares English, Canadian, and German case law and evaluates it both from a doctrinal perspective and as a part of a general approach towards cohabitation. The article concludes with an appeal for legislative action that strikes the right balance between party autonomy and protection of the weaker party.

12. Easements

2019 ◽  
pp. 434-467
Author(s):  
Martin George ◽  
Antonia Layard
Keyword(s):  
Land Ownership ◽  
Natural Rights ◽  
Third Party ◽  
Restrictive Covenants ◽  
Controversial Subject ◽  
Public Rights ◽  
The Creation ◽  
The Law ◽  
The Right

An easement is a form of third party right that allows one to enjoy the benefits of land ownership. Some examples of such rights are rights of way, rights of light, the right to use a washing line on a neighbour’s land, the right to use a neighbour’s lavatory, and the right to park a car on another person’s land. The easement must exist for the benefit of land and cannot exist in gross. The rule that an easement cannot exist in gross has been a controversial subject. This chapter, which explores the nature of easements and considers their related concepts such as natural rights, public rights, restrictive covenants, and licences, also discusses legal and equitable easements, the creation of easements, and proposals for reform of the law on easements.

Protecting the right to freedom from discrimination in Zambia: Understanding the constitutional and legislative grounds

2019 ◽  
Vol 19 (3-4) ◽  
pp. 155-177
Author(s):  
Jamil Ddamulira Mujuzi
Keyword(s):  
Case Law ◽  
The Other ◽  
Relevant Case ◽  
The Right

The Constitution of Zambia prohibits discrimination in different articles and the grounds on which a person may not be discriminated against are included in two different constitutional provisions – Article 23(3) and Article 266. Apart from the Constitution, some pieces of legislation prohibit discrimination and provide for grounds against which a person may not be discriminated against which are not provided for in the Constitution. Jurisprudence from Zambian courts has not been consistent on the question of whether the list of the grounds against which a person may not be discriminated against is exhaustive. With the exception of the ground of disability, the Constitution does not define the other grounds on which a person may not be discriminated against. In this article, it is argued, inter alia, that the existence of two constitutional provisions providing for different grounds could create uncertainty among some litigants and judicial officials and that in cases where the Constitution does not define the grounds of discrimination, courts could resort to relevant case law, legislation or dictionaries to define such grounds.

A quest for consistency in the law of commercial agency. Loss of the right to remuneration in Polish and European law

2017 ◽  
Vol 71 (0) ◽  
pp. 0-0
Author(s):  
Piotr Sitnik
Keyword(s):  
Case Law ◽  
Third Party ◽  
European Law ◽  
The European Union ◽  
The Third ◽  
Court Of Justice ◽  
Council Directive ◽  
European Standards ◽  
Polish Law ◽  
The Right

In a recent judgment in ERGO Poist’ovňa, a.s. v Alžbeta Barlíková, the Court of Justice of the European Union attempted to clarify the ambit of Article 11 of Council Directive of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents, that is the circumstances where a commercial agent’s right to remuneration may be extinguished should a negotiated transaction not be executed between the principal and the client. Notably, the Court held that in the event of even partial non-execution of a negotiated contract between the principal and the third party client, provided it happened due to no fault on the part of the principal, the agent’s right to commission is proportionately extinguished. The paper discusses the judgment in the light of previous CJEU case law and the Polish transposition of the said European standards with a view to finding any potential divergences between the two. The paper notes two problems. First, Polish law, as opposed to Slovak law, does not recognize an automatic termination of an insurance contract in the event of default on the part of the customer. Conversely, whether such an effect eventuates is left to contractual discretion of the parties. Second, Polish courts have been recently willing to substitute unjust enrichment for contractual liability even where, it appears, complainants have valid claims under Article 7614 of the Civil Code.

scholarly journals La responsabilité civile délictuelle des municipalités en matière d'entretien des rues et des trottoirs pendant l'hiver

2005 ◽  
Vol 23 (1) ◽  
pp. 135-173
Author(s):  
Micheline McNicoll
Keyword(s):  
Civil Liability ◽  
Case Law ◽  
Public Law ◽  
The Other ◽  
Boundary Line ◽  
Court Decisions ◽  
Private Law ◽  
Considerable Influence ◽  
Public And Private ◽  
Proper Understanding

An exhaustive review of our case law is required for a proper understanding of municipalities' civil liability for offences and quasi-offences. It appears indeed that there is no other alternative since, on one hand, the legislator is mute on number of important relevant questions and, on the other hand, municipalities, are governed by rules of public law. Our review covering a period of about eighty years, contains an analysis of the three « schools of thought » that succesively exerciced considerable influence upon our court decisions. The different « schools of thought » naturally emerged from the constant opposition of public and private law divided by a boundary line subject to fluctuation.

The Law of Interim Release in the Jurisprudence of the International Criminal Tribunals

2008 ◽  
Vol 8 (3) ◽  
pp. 589-626 ◽  
Author(s):  
Clemens Müller
Keyword(s):  
International Criminal ◽  
Case Law ◽  
The Other ◽  
Presumption Of Innocence ◽  
Criminal Proceedings ◽  
International Criminal Tribunals ◽  
Depth Study ◽  
Rules Of Procedure ◽  
The Law ◽  
The Right

AbstractThe right of interim release during trial is an international recognized fundamental right of the accused which is deduced from the presumption of innocence. Although the ICTY has shifted to a more liberal practice, the other tribunals and the ICC are still applying the law of interim release in a restrictive manner. Decisions on interim release are not guided by clearly decisive factors to be applicable for every single accused in each case. Rather an examination of the particular facts of the case and the personality or character of the accused, surrounded by a framework of requirements set forth in the Rules of Procedure and Evidence, determine the practice on interim release. The way international criminal tribunals apply the law of interim release is, like international criminal proceedings as such, of a design sui generis. This article summarises the case-law concerning interim release at the international criminal tribunals. It gives an in-depth study on the requirements set forth in the Rules of Procedure and Evidence which the accused must fulfil to be provisional released.

Private law and the environment: nuisance in context

Legal Studies ◽  
1995 ◽  
Vol 15 (2) ◽  
pp. 236-259 ◽  
Author(s):  
Jenny Steele
Keyword(s):  
Environmental Change ◽  
Environmental Law ◽  
Tort Law ◽  
The Other ◽  
Private Law ◽  
Positive Potential ◽  
Law And Policy ◽  
Central Elements ◽  
The Face ◽  
Environmental Law And Policy

Private nuisance is, on the face of it, an old-fashioned tort, whose agrarian, antidevelopmental roots may make its contemporary relevance seem limited. On the other hand, both nuisance and Rylands v Fletcher hold obvious attractions for litigants whose interests have suffered as a result of environmental change. The potential apotheosis of nuisance into a ‘Toxic Tort’ presents tort lawyers and environmental lawyers with a number of pressing questions concerning the nature and scope of private law in this context.This article will seek to assess in outline the positive potential of tort law in this respect, but it will also be argued that there may nevertheless be real conflicts between the law of tort and central elements of environmental law. The nature of those potential conflicts can only be understood if we clarify the form (or forms) of liability effected by relevant torts, and here the tort of nuisance poses particular problems. Once clarified, however, I would suggest that these conflicts can contribute to debates, not just about tort law, but also about the basic aspirations of environmental law and policy.

scholarly journals Euthanasia under French law

2021 ◽  
pp. 145-152
Author(s):  
A. Haddadi ◽  
F. Ravaz
Keyword(s):  
Criminal Law ◽  
Question Answering ◽  
Common Law ◽  
The Other ◽  
Third Party ◽  
Right To Die ◽  
French Law ◽  
The Face ◽  
The One ◽  
The Right

Under criminal law, euthanasia can have two distinct qualifications: that of homicide in the event that the act of directly killing another person is characterized, or that of assisting a third party in the suicide. These two qualifications are applicable on the condition that the agent — the author of the act of causing death — is not the one who went through it. In fact, selfeuthanasia is nothing more than suicide.In addition to euthanasia imposed to a third party (such as in the case of Malevre, nurse from Mantes-la-Jolie, tried in 2003), the euthanasia requested and subscribed constitutes a complex legal question. Answering this question first involves specifying the position of contemporary criminal law in the face of suicide.In the event that suicide is only decriminalized, in fact, the author of the act — regardless of the outcome of his actions, who is himself the victim, cannot be prosecuted. Nor ultimately receive any condemnation.However, this lack of prosecution and conviction is by no means an endorsement of the act — suicide — by the law.Moreover, in the event that suicide is a right, it would then be necessary to agree that any candidate for this act can request assistance in the accomplishment of his death. Given these two opposing approaches, imposed on us the question of whether there is a right to die.Although the euthanasia imposed is unequivocally under ordinary criminal law, the euthanasia requested and granted is not based on any rights. To date, there is no right to approve a death request, but on the other hand, it does allow it to be respected and to some extent promotes its approach with dignity. This work will focus on two central points which are the possibility that euthanasia is a homicide under common law (I) and the attitude of French law concerning the right to death (II).

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