USING OF THE INSTITUTE OF UNJUSTIFIABLE ENRICHMENT IN SETTLEMENT RELATIONSHIP

2016 ◽  
pp. 0-0
Author(s):  
Каролин Лауэ ◽  
Karolin Laue
Keyword(s):  
German Law ◽  
Federal Court ◽  
Legal Concept ◽  
Unjust Enrichment ◽  
Before And After ◽  
Federal Court Of Justice ◽  
Legal Position ◽  
Payment Services ◽  
Unjustified Enrichment ◽  
Performance Conditions

In 2009 Directive 2007/64/EC of the European Parliament and of the Council of November 13, 2007 on payment services in the internal market was implemented into the German civil law. The article deals with theoretical and practical problems of the recovery of money paid by mistake based on the principles of unjust enrichment according to the German law with regard to the new regulation. Тhe German Civil Codex (BGB) distinguishes between “performance” and “non-performance” conditions. By presenting basic arguments the author shows that this is of crucial importance for the concept of the recovery of money paid by mistake under the principles of unjustified enrichment. Due to the new regulation the Federal Court of Justice (Bundesgerichtshof) in Germany has recently changed its legal opinion. The article compares the legal position before and after the implementation of the directive on payment services into the German law and its impact on the German legal concept of the recovery of money paid by mistake under the principles of unjust enrichment.

“Farewell to Unjustified Enrichment?” – A Common Law Response

2016 ◽  
Vol 20 (3) ◽  
pp. 326-337
Author(s):  
Steve Hedley
Keyword(s):  
Common Law ◽  
German Law ◽  
Unjust Enrichment ◽  
Level Of Abstraction ◽  
The Law ◽  
Unjustified Enrichment ◽  
High Level ◽  
Logical Process

In this article, Professor Steve Hedley offers a Common Law response to he recently published arguments of Professor Nils Jansen on the German law of unjustified enrichment (as to which, see Jansen, “Farewell to Unjustified Enrichment” (2016) 20 EdinLR 123). The author takes the view that Jansen's paper provided a welcome opportunity to reconsider not merely what unjust enrichment can logically be, but what it is for. He argues that unjust enrichment talk contributes little of value, and that the supposedly logical process of stating it at a high level of abstraction, and then seeking to deduce the law from that abstraction, merely distracts lawyers from the equities of the cases they consider.

Umfang und Inhalt der vorvertraglichen Aufklärungspflicht des Franchisegebers

2019 ◽  
Author(s):  
Anna Hahn
Keyword(s):  
Comparative Research ◽  
German Law ◽  
Federal Court ◽  
Location Analysis ◽  
Special Focus ◽  
Legal Systems ◽  
Specific Question ◽  
Court Of Justice ◽  
French And English ◽  
Federal Court Of Justice

This study examines a franchisor’s pre-contractual duty of disclosure with a special focus on financial forecasts and location analysis. In particular, it raises the question of whether these specific aspects are part of mandatory pre-contractual disclosure under German franchise law. German law has not directly addressed this specific question—neither by means of codified law nor through precedents from the German Federal Court of Justice (Bundesgerichtshof). Thus, some degree of uncertainty prevails, although the topic is well known to German courts and scholars. This study analyses and contextualises how the question has been addressed so far under German law. In order to explore legal solutions developed in other legal systems, the author undertook extensive comparative research into French and English franchise law. This thesis will be of particular interest to legal practitioners, researchers and courts who have to deal with cases of pre-contractual disclosure in franchise contracts.

ANOTHER CIVILIAN VIEW OF UNJUST ENRICHMENT'S STRUCTURAL DEBATE

2020 ◽  
Vol 79 (3) ◽  
pp. 527-548
Author(s):  
Pablo Letelier
Keyword(s):  
Legal System ◽  
German Law ◽  
Unified Approach ◽  
Unjust Enrichment ◽  
The Subject ◽  
Unjustified Enrichment ◽  
Do So

AbstractThis article seeks to illustrate the kinds of difficulties that may follow from renouncing a unified approach to restitutionary claims for unjust enrichment. To do so, it draws on the experience of the French legal system, where the notion of unjustified enrichment describes a maxim inspiring various doctrines which have evolved in relative isolation from each other. Relying on this experience, the article argues that the objections recently raised by Nils Jansen against the German law of unjustified enrichment should not lead English lawyers to downplay the value of a unified approach to the subject.

scholarly journals The Constitutionality of Negotiated Criminal Judgments in Germany

2014 ◽  
Vol 15 (1) ◽  
pp. 81-105 ◽  
Author(s):  
Thomas Weigend ◽  
Jenia Iontcheva Turner
Keyword(s):  
Criminal Law ◽  
German Law ◽  
Plea Bargaining ◽  
Federal Court ◽  
Constitutional Court ◽  
German Version ◽  
Court Of Justice ◽  
Federal Court Of Justice ◽  
Federal Constitutional ◽  
German Constitutional Court

In a long-awaited judgment, the German Constitutional Court in 2013 upheld the constitutionality of the 2009 German law authorizing the negotiation of criminal judgments between the court and the parties. The German version of plea bargaining, which had grown from the grassroots of criminal law practice, was later accepted by the Federal Court of Justice and written into § 257c of the Code of Criminal Procedure (StPO) in 2009. In light of these developments, a verdict of unconstitutionality by the Federal Constitutional Court was the final hope of those who opposed the replacement of the search for truth with a system of negotiation. The Court deflated these hopes, but at the same time refrained from giving an unconditional stamp of approval to the burgeoning practice of negotiating judgments. The Court attempted to rein in that practice by giving the statute a literal reading, emphasizing the limitations it places on negotiations, and strictly prohibiting any consensual disposition outside the statutory framework.

Consequences of Premature Self-Cure: The Lawless Buyer? – A Critical Review of Bundesgerichtshof's Decision of 23 February 2005

2006 ◽  
Vol 7 (1) ◽  
pp. 1-23
Author(s):  
Tobias Caspary
Keyword(s):  
Critical Review ◽  
German Law ◽  
Federal Court ◽  
Civil Code ◽  
Grace Period ◽  
Court Of Justice ◽  
Federal Court Of Justice ◽  
The Law ◽  
Bürgerliches Gesetzbuch

More than three and a half years ago, the German law of obligations, codified in the second of the five books of the German Civil Code (Bürgerliches Gesetzbuch, BGB), underwent its greatest reform since the BGB was enacted on 1 January 1900. The Act to Modernize the Law of Obligations, the Schuldrechtsmodernisierungsgesetz, which came into force on 1 January 2002, dramatically altered the law of obligations. Whereas legal practitioners had almost no time to adapt to the new provisions, at least the German courts were granted a grace period. Nevertheless, by now the first cases involving the modernized law have reached the benches of the Bundesgerichtshof (BGH – Federal Court of Justice).This article deals with “one of the currently most controversially discussed questions” of the law of obligations: Whether a buyer, who cures a product's defect can claim reimbursement for the associated expenses (Aufwendungen) from the seller, without giving the seller an additional period of time for supplementary performance (Nacherfüllung). This manner of bringing the product into conformity with the contract can be described as a premature self-cure (verfrühte Selbstvornahme).

Excessive Data Collection as a Form of Anticompetitive Conduct: The German Facebook Case

2021 ◽  
pp. 0003603X2199702
Author(s):  
Anne C. Witt
Keyword(s):  
Data Collection ◽  
Competition Law ◽  
Federal Court ◽  
Digital Platforms ◽  
High Profile ◽  
Court Of Justice ◽  
Federal Court Of Justice ◽  
Constitutional Right ◽  
Abuse Of Dominance

In a high-profile decision of February 6, 2019, the German Federal Cartel Office prohibited Facebook’s data collection policy as an abuse of dominance for infringing its users’ constitutional right to privacy. The case triggered a remarkable interinstitutional dispute between the key players in German competition law. Conflicting rulings by the Düsseldorf Higher Regional Court and the German Federal Court of Justice further illustrate how deeply divided the antitrust community is on the role of competition law in regulating excessive data collection and other novel types of harm caused by dominant digital platforms. This contribution discusses the original prohibition decision, the ensuing court orders, and legislative reform proposals in the broader context of European Union and U.S. competition law.

Insufficient Knowledge in Kunduz: The Precautionary Principle and International Humanitarian Law

2020 ◽  
Vol 25 (1) ◽  
pp. 53-79
Author(s):  
Emma J Marchant
Keyword(s):  
Precautionary Principle ◽  
Armed Conflict ◽  
Federal Court ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
The Precautionary Principle ◽  
Lack Of Information ◽  
Operational Application ◽  
Federal Court Of Justice ◽  
Insufficient Knowledge

Abstract The targeting protocols applied by forces during armed conflict are some of the most secretive documents held by any military. However, their role in applying principles of international humanitarian law (IHL) means that they are key to understanding their development. This piece is primarily concerned with practical and operational application of the precautionary principle under IHL; how much knowledge is sufficient to carry out an attack lawfully during modern armed conflict. In order to establish if a standard has developed with the increase in intelligence, surveillance and reconnaissance technology, this piece uses the framework of an investigation into an incident in Kunduz, Afghanistan in 2009. I explore the difficulties of obtaining information post-incident, the differential standards expected by North Atlantic Treaty Organization (NATO) and the Bundesgerichtshof (German Federal Court of Justice), and the manner in which these can be evaluated through the principles of proportionality, distinction and precautions in attack. The piece looks at the interrelated issues raised by the Rules of Engagement and Tactical Directives, as well as the problems surrounding the clarity of intelligence available. I argue that this case is demonstrative of the failings inherent in the application and practical use of the precautionary principle outlined by IHL. The lack of transparency afforded in, and after, incidents of this nature prevents objective analysis and so the development of IHL can be obfuscated. I conclude that the lack of information following incidents of this kind confuses any intelligence standard that exists under IHL.

Evaluation of Ship Performance Using Operation Records

2018 ◽  
Author(s):  
Kenichi Fukuda ◽  
Yoshihisa Okada ◽  
Akinori Okazaki ◽  
Hiroyuki Adachi ◽  
Yuichiro Hisamuara ◽  
...  
Keyword(s):  
Big Data ◽  
Fuel Oil ◽  
Time Dependent ◽  
Oil Consumption ◽  
Sea Trial ◽  
Before And After ◽  
Report Data ◽  
Unique Approach ◽  
Performance Conditions ◽  
Ship Performance

Recently, the big data can be employed as the economical ship operating or evaluation of ship performance conditions. However, such data cannot be easily obtained and analyzed for every ship. In this case, for example, an evaluation of ship performance during operation is usually dependent on ship owner’s experience. The time-dependent ship performance is an essential topic for ship owners because if they realize their current ship performance, they can implement something such as hull or propeller cleaning for their economical operation. This study is focused on the usage of noon report data rather than the big data due to their obtainability. Usually, such data are considered as references because different ship operational condition and environmental condition obscure current ship performance. However, our unique approach, which is used integrally the noon report data such as BHP, propeller revolution and fuel oil consumption, ship sea trial data and propeller performance, can be evaluated ship performance during ship in service. The analyzed output data can be produced as increasing of ship resistance (delta Rw) versus ship performance efficiency, fuel oil consumption (ton per day) or sea margin. Under this output conditions, it can be comparable at same conditions even though the conditions of operations are different. Therefore, this analyzed data has a potential ability to have a look at ship performance conditions during ship in service. The purpose of this paper is to introduce our unique approach using noon data for time-dependent ship performance and then discuss the verification of this approach. As the case study, the noon report data for Japanese domestic bulker was chosen and the ship performance was evaluated in terms of different points of views. It was done comparing the conditions of before and after dry dock to evaluate our approach. In addition, the potential application of this approach will be discussed in this paper.

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