scholarly journals The Americanization of contract law: the merger clause in the European perspective

2019 ◽  
Vol 11 (4) ◽  
Author(s):  
Francesco Castronovo
Keyword(s):  
International Business ◽  
Civil Law ◽  
Contract Law ◽  
Business Environment ◽  
Business Relationships ◽  
European Perspective ◽  
The Us ◽  
The Law

It is a fact that the American contractual models and the American drafting style dominate the business environment. Professional operators use such models not only in international business relationships, but also when they enter into a purely domestic agreement. This means that professional operators circulate US contractual models for which the law of a civil law country is applicable.This paper explores the reasons underpinning such practice and how US contractual models react when they are subject to the law of a civil law country. In particular, considering the peculiarities of the US contract law, it is worth focusing on integration and interpretation that are based on two rules (parol evidence rule and plain meaning rule) that are quite the opposite of the principles applicable under the civil law.The analysis will specifically focus on the merger clause, which is unknown to the civil law tradition and instead is iconic of the US contract law sentiment, investigating if and how this clause can work under the law of a civil law country.

Unenforceable Contracts and Unjusticiable Contracts: Secs. 32–33 of the Contracts (General Part) Law, 1973

1986 ◽  
Vol 21 (3-4) ◽  
pp. 425-449 ◽  
Author(s):  
Gabriela Shalev
Keyword(s):  
Civil Law ◽  
Contract Law ◽  
The Future ◽  
General Part ◽  
The Law ◽  
Preparatory Work

The Contracts (General Part) Law, 1973, is the fundamental statute in Israeli contract law, and will in the future serve as the basis for the codification of Israel civil law. The Law was enacted following a decade of meticulous preparatory work by a committee headed by Professor Tedeschi. Prof. Tedeschi was the leading intellectual force in this committee; his influence is apparent in the approaches, principles and concepts of the Law, as well as in its particular provisions. Prof. Tedeschi also devoted a part of his prolific writings to the realm of contracts law. This article, dealing with only two sections of the wide-ranging Contracts (General Part) Law, is dedicated with admiration to the father of Israeli modern contract law.

scholarly journals Transfer of property based on property law rules and contract law rules under forthcoming Kosovo draft-civil code

2021 ◽  
Vol 42 (1) ◽  
pp. 151-165
Author(s):  
Haxhi Gashi ◽  
Bashkim Preteni
Keyword(s):  
Civil Law ◽  
Contract Law ◽  
Civil Code ◽  
Property Law ◽  
Transfer System ◽  
Abstract System ◽  
Causal System ◽  
The Law

In most civil law jurisdictions, the contract is the most used derivative title for the transfer of ownership (movable and immovable property). Very often, the law of property and law of contract are seen as distinct and one can envisage their role from different legal perspectives. This is closely connected with the type of transfer system based on whether the (Austrian) causal system, (German) abstract system or (French) consensual system is applicable. Kosovo is in the process of civil law codification and the Kosovo Draft-Civil Code which has followed the application of the causal system of transfer of property and such an above mentioned interaction of these two branches of civil law is mandatory, and only with a common survey can the contractual transfer of property be illustrated. The aim of this paper is to focus solely on the influence of contract law rules in connection with the acquisition of ownership over movable and immovable property determined by Kosovo Draft-Civil Code.

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.

Hacia el fin del dogma "voluntad es capacidad" en el derecho civil chileno

2018 ◽  
pp. 73
Author(s):  
Sergio Arenas Benavides
Keyword(s):  
Civil Law ◽  
Tort Law ◽  
Contract Law ◽  
Legal Capacity ◽  
Human Beings ◽  
Palabras Clave ◽  
The Law

ResumenLa idea de que los incapaces absolutos no tienen voluntad no es acorde a la realidad natural de los seres humanos, y por tanto no debe seguir siendo invocada por los juristas chilenos. Sólo los bebés y los que han caído en comao tienen una patología enajenante severa carecen de una voluntad denida. Los demás sí tienen, sólo que el derecho no considera tales voluntades como sucientes para obligarse. Por otro lado, es poco congruente que no se reconozca voluntad en un área de nuestro derecho civil (materia contractual) y sí en otras (materia extracontractual).Palabras clave: Voluntad; Niños; Capacidad; Demente; Derecho civil.AbstractThe notion that persons with absolute incapacity have no will is not accordance with the natural reality of human beings, and therefore should no longer be relied upon by the Chilean jurists. Only babies and those who have fallen in coma or have a severe alienating pathology lack a denite will. Others have it, only that the law does not consider those wills as sucient to obligate oneself. Moreover, it is incongruous that such will is not recognized in some areas of our civil law (contract law) while it is in others (tort law). Keywords: Will; Children; Legal capacity; Insane person; Civil law.

Part II The Sources of the Law of State Immunity, 6 The Restrictive Doctrine of State Immunity: Its Recognition in State Practice

2015 ◽  
Author(s):  
Fox Hazel ◽  
Webb Philippa
Keyword(s):  
Civil Law ◽  
National Courts ◽  
State Immunity ◽  
The Us ◽  
State Practice ◽  
History Of ◽  
General Recognition ◽  
The Law ◽  
The Uk ◽  
International Law Commission

This chapter recalls the history of the law of State immunity through the decisions of the national courts in both common and civil law jurisdictions and recounts the general recognition in common and civil law jurisdictions of the restrictive doctrine as well as its adoption by national legislation in 1976 in the US (the Foreign Sovereign Immunities Act 1976 (FSIA)) and in 1978 in the UK (the State Immunity Act 1978 (SIA)) followed by similar legislation in some Commonwealths and other countries. The conclusion drawn from State practice in surveys conducted by the International Law Commission (ILC) and the Council of Europe is that there is wide and ever increasing support for a restrictive doctrine of immunity.

scholarly journals Documentary Letter of Credit: A Pivotal Case for the Inefficiency of the Law of Contract

2014 ◽  
Vol 35 (4) ◽  
pp. 487-532
Author(s):  
Malgorzata Karolina Chmielewska
Keyword(s):  
International Trade ◽  
Comparative Analysis ◽  
Guinea Pig ◽  
Common Law ◽  
Civil Law ◽  
Contract Law ◽  
Letter Of Credit ◽  
Distinct Mechanism ◽  
The Law ◽  
Commercial Device

This study compares the methods used both in common law and civil law jurisdictions to deal with the basic problems relating to the documentary letter of credit. A unique commercial device was thus developed in international trade as a means of ensuring safe and swift payment for goods. Even though this distinct mechanism works efficiently in practice, the numerous attempts made to classify it legally have been unsuccessful. A comparative analysis of the legal conceptualizations traditionally used to explain the nature of credit reveals apparent shortcomings in contractual theories. Because the basis of the documentary credit appears to be an abstract promise to pay, this phenomenon seems to break through the conceptual framework of traditional contract law theory. This is due to the fact that the process of forming the credit does not fit into the ordinary offer-acceptance formula. Yet, the easiest solution—the credit as a "mercantile specialty" or a "sui generis contract"—avoids facing the true challenge of our era, which is re-thinking the concept of "contracts" under modern laws. Legal debates should be directed in a more functional direction in order to provide satisfactory theoretical grounds for providing solutions to obvious, but still unanswered questions such as why people ought to keep their promises and why only some of those promises are likely to be legally enforced. It seems that, in this regard, documentary credit would be a convenient "guinea pig" for most contemporary concepts relating to the law of contracts.

scholarly journals General Partnerships and the Fiduciary Duty in the US Legal System

Pro Futuro ◽  
2021 ◽  
Vol 10 (4) ◽  
Author(s):  
Márta Plásztán-Brehószki
Keyword(s):  
Common Law ◽  
Civil Law ◽  
High Standard ◽  
Company Law ◽  
Fiduciary Duty ◽  
Agency Relationship ◽  
The Us ◽  
The Common ◽  
The Law ◽  
The One

The law of fiduciary duty is as old as common law. It is the key element of the law of equity. The agency relationship creates a fiduciary relationship between the parties, which means that the fiduciary (agent) is subject to the direction of the one on whose behalf he acts (principal). This high standard of conduct – in the scope of the agency relationship – has become a separate liability form in the common law countries and has appeared not only in company law but in other parts of civil law as well. This paper presents the development and the basic elements of fiduciary duty in the field of general partnerships.

scholarly journals PRINSIP GOOD FAITH(ITIKAD BAIK) DALAM HUKUM KONTRAK BISNIS INTERNASIONAL

2014 ◽  
Vol 26 (2) ◽  
pp. 181
Author(s):  
Mrs. Cindawati
Keyword(s):  
International Business ◽  
Contract Law ◽  
Good Faith ◽  
Business Contract ◽  
The Law

The law of international business contracts is the law of national contract with additional of foreign substances, this principle relevant for the law of  international business contracts. Writer has an interest in the issue what principle good faith in the international business contract law. Principle good faith is honesty in behavior or honesty in trade transaction, which include honesty in fact and honour towards proper trade standards, and honesty in trade transaction. Relations require good faith when contract signatory, but also not yet to close the contracts. Hukum Kontrak Internasional adalah hukum kontrak nasional yang ada unsur asingnya, prinsip ini relevan bagi Hukum Kontrak Internasional. Penulis tertarik untuk mengkaji dengan permasalahan: apa prinsip good faith(itikad baik) dalam hukum kontrak internasional? Prinsip good faith(itikad baik) tidak lain adalah “kejujuran” dalam perilaku atau kejujuran dalam bertransaksi dagang, termasuk di dalamnya adalah kejujuran dalam fakta dan penghormatan terhadap standar-standar dagang yang wajar dan transaksi dagang yang jujur. Hubungan mensyaratkan kewajiban itikad baik bukan saja ketika kontrak ditandatangani, tetapi juga sebelum kontrak ditutup.

Sign in / Sign up

Export Citation Format

Share Document