PROJECT CONDITIONS JUSTIFYING TIME-AT-LARGE CLAIMS

2017 ◽  
Vol 4 (1) ◽  
Author(s):  
Mohamed-Asem Abdul-Malak ◽  
Abed Elkhalek Jaber
Keyword(s):  
Civil Law ◽  
Construction Project ◽  
Liquidated Damages ◽  
Completion Date ◽  
The Common

The time for completion on a construction project is of great importance and is sometimes referred to as being of the essence. Having a known completion date that the contractor shall be willing to commit to carries both advantages and implications. That is, if the contractor inexcusably overruns this completion date, he becomes liable for delay damages which usually take the form of liquidated damages (LD). During the course of construction, several circumstances may surface which have the effect of the time for completion to be said to have become at large, a situation that can hinder the triggering of the LD clause by employers. This paper aims to explain the concept of time at large and its reasons and implications, while viewing its applicability under both the common and civil law systems. It highlights the conditions whose prevalence justifies the time on the construction contract to be called to have become at large. The work represents the foundation for constructing a method that can aid in systematically testing if such a calling can be viewed as justifiable.

scholarly journals Penalty Clauses and the CISG

2012 ◽  
Vol 30 (2) ◽  
Author(s):  
Jack Graves
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Traditional View ◽  
Advisory Council ◽  
Liquidated Damages ◽  
The Common ◽  
Penalty Clauses ◽  
International Sale Of Goods ◽  
Commercial Agreements

Commercial agreements often provide for “fixed sums” payable upon a specified breach. Such agreements are generally enforced in civil law jurisdictions. In contrast, the common law distinguishes between “liquidated damages” and “penalty” clauses, enforcing the former, while invalidating the latter as a penalty. The UN Convention on Contracts for the International Sale of Goods (CISG) does not directly address the payment of “fixed sums” as damages, and the validity of “penalty” clauses has, traditionally, been relegated to otherwise applicable domestic national law under CISG Article 4. This traditional orthodoxy has recently been challenged—suggesting that the fate of a penalty clause should be determined by reference to the general principles of the CISG and that such a clause should generally be enforced. The validity of fixed sums, as penalties, is currently under consideration by the CISG Advisory Council, so further exploration of the issue would seem particularly timely. This article examines the basis for the traditional view, along with two distinct challenges to that view—ultimately concluding that these challenges fail to support their respective solutions to the issue and suggesting the continuing vitality of the traditional view.

Is Style of Reasoning a Fundamental Difference Between the Common Law and the Civil Law?

2017 ◽  
Vol 17 (2) ◽  
pp. 238-290
Author(s):  
Colm Peter McGrath ◽  
◽  
Helmut Koziol ◽  
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Fundamental Difference ◽  
The Common

Classifying precontractual liability: a comparative analysis

Legal Studies ◽  
2001 ◽  
Vol 21 (2) ◽  
pp. 153-191 ◽  
Author(s):  
Joachim Dietrich
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Tort Law ◽  
Contract Law ◽  
Common Elements ◽  
Ongoing Debate ◽  
Unjust Enrichment ◽  
The Common ◽  
Initial Focus

The common law has solved questions of liability arising in the context of precontractual negotiations by resort to a range of different doctrines and approaches, adopting in effect ‘piecemeal’ solutions to questions of precontractual liability. Consequently, debate has arisen as to how best to classify or categorise claims for precontractual work and as to which doctrines are best suited to solving problems arising from anticipated contracts. The purpose of this article is to consider this question of how best to classify (cases of) precontractual liability. The initial focus will be on the ongoing debate as to whether principles of contract law or principles of unjust enrichment can better solve problems of precontractual liability. I will be suggesting that unjust enrichment theory offers little by way of explanation of cases of precontractual liability and, indeed, draws on principles of contract law in determining questions of liability for precontractual services rendered, though it does so by formulating those principles under different guises. Irrespective, however, of the doctrines utilised by the common law to impose liability, it is possible to identify a number of common elements unifying all cases of precontractual liability. In identifying such common elements of liability, it is necessary to draw on principles of both contract and tort law. How, then, should cases of precontractual liability best be classified? A consideration of the issue of classification of precontractual liability from a perspective of German civil law will demonstrate that a better understanding of cases of precontractual liability will be gained by classifying such cases as lying between the existing categories of contract and tort.

scholarly journals SKUTKI PRAWNE ORZECZEŃ TRYBUNAŁU KONSTYTUCYJNEGO W UJĘCIU CZASOWYM

2017 ◽  
Vol 3 (2) ◽  
pp. 313
Author(s):  
Roman Trzaskowski
Keyword(s):  
Supreme Court ◽  
Practical Importance ◽  
Civil Law ◽  
Main Question ◽  
Time Effects ◽  
Area Of Interest ◽  
Retroactive Effect ◽  
The Supreme Court ◽  
Constitutional Tribunal ◽  
The Common

Effects of Constitutional Tribunal’s Judgments in the Time PerspectiveSummaryThe problem of the time effects of the Constitutional Tribunal’s rulings remain within the area of interest of both constitutional and civil law scholars. It is widely discussed because of its enormous practical importance: more and more often the common courts and the Supreme Court have to deal with the laws which have been declared unconstitutional.The main question is whether the courts should apply the unconstitutional law while deciding on a case in which legally significant events had taken place before the law was declared null and void.The Polish Constitution does not give a clear answer to this question. The most important provisions seem to be contradictory, which makes it possible to use them as arguments for opposing positions.The scholars’ opinions differ significantly: some of them, followed by the Supreme Court, accept the so-called „retrospective” effect (the unconstitutional law cannot by applied), the others, together with the Constitutional Tribunal, take the opposite view. A few try to find a compromise.The proposition presented in this paper is to be classified as belonging to the third group.Indeed it seems that there is a need for a flexible approach. The time effects of a ruling shall be expressly stated by the Constitutional Tribunal. When the Tribunal fails to do so, the common courts have to asses themselves the rulings’ effects, being guided, among other things, by the principles of the civil law. There are strong arguments that the Constitution seems to favor the retroactive effect, yet it is not decisive. There are certainly situations, where a prospecitve effect shall be accepted: ultimately it is a question of balancing different constitutional and civil law values. 

scholarly journals The publication of judicial decisions as a reason for convincing precedent

1970 ◽  
pp. 195-199
Author(s):  
Roman Sabodash
Keyword(s):  
Common Law ◽  
Civil Law ◽  
General Idea ◽  
Court Decisions ◽  
Supreme Courts ◽  
State Register ◽  
Pros And Cons ◽  
Legal Position ◽  
The Common ◽  
The Right

The paper shows how the publication of court decisions influenced the formation of a precedent. The author reviewed scientific works devoted to research the precedent in common and continental law. The research explains that the formation of precedent in England was accompanied by development of the judgment’s reviews and their prevalence among lawyers. Of course, publication of court decisions was not a major factor in setting a precedent, but it played a significant role in this. The paper also describes facts of the publication of court decisions in Italy, Germany, France and the Netherlands, as well as the admissibility of their citations at the court of cassation. The general idea of the paper is that convincing precedent exists and is used although the countries of continental law do not have a «classic» precedent. The paper gives a review of the importance of the state register of court decisions for setting a convincing precedent in Ukraine. The author analyzes the pros and cons of citing court decisions. It’s stated that, unfortunately, the quotations of court decisions is not always correct and sometimes amounts to rewriting the «right» legal position without comparing the circumstances of the case. The article concludes that the practice of applying a convincing precedent in Ukraine is only emerging and needs further improvement.          It has been found out that the publication of judgments of supreme courts is one of the factors that helped to establish precedent in common law countries. The publication of court rulings also created the conditions for a convincing precedent in civil law countries (especially in private law). At the same time, the formation of a “convincing precedent» in countries where court decisions are published in publicly available electronic court registers is much faster than in common law countries. Of course, the structure and the significance of the precedent in the common law and civil law countries are different, but one cannot dismiss that publication of court decisions as one of the factors for establishing the precedent.

scholarly journals KONTRAKT SPÓŁKI JAKO PODSTAWA ODPOWIEDZIALNOŚCI IN SOLIDUM W PRAWIE RZYMSKIM

2017 ◽  
Vol 3 (1) ◽  
pp. 43
Author(s):  
Zuzanna Służewska
Keyword(s):  
Civil Law ◽  
Third Parties ◽  
The Other ◽  
Third Party ◽  
Roman Law ◽  
Joint And Several Liability ◽  
Internal Relation ◽  
Common Opinion ◽  
Formal Procedure ◽  
The Common

THE CONTRACT OF PARTNERSHIP AS A BASE OF IN SOLIDUM LIABILITY IN ROMAN LAWSummary In the modern civil law joint and several liability of partners in a partnership is a rule rather than an exception. According to the common opinion this concept did not originate in the Roman law but was first invented in the medieval times by glossators and commentators. The Roman partnership created only a private relation between partners (who, due to a conclusion of that contract were reciprocally obliged to act together in accordance with a good faith in order to conduct common business and to divide profits and bear losses in proportion to their respective shares) and its conclusion did not affect their liability against third parties. The partners had no right to bind themselves contractually to any third parties, unless they all acted jointly (in this case, however, their joint representation was derived from their expressed declarations and not the existence of a contract o f partnership). Thus, any commitment made by an individual partner, even if made within the scope of a partnership having obtained other partners’ consent, was treated as a personal debt of this partner and the remaining partners were not liable against his contractor. Then, of course, the partner who made a commitment (acting within the partnership’s business) could claim a part of what he had paid to a third party from other partners in proportion to their respective shares in the common enterprise.Such a solution was necessary because of the purely consensual character o f the Roman partnership and the lack of any formal procedure of its conclusion and dissolution. The existence of that contract could not affect the model of the external liability of partners, because it would be too risky for third parties, which had no possibility to make sure if a contract of partnership between some persons had been actually concluded or not. Thus, the role of a contract of partnership in the Roman law was only limited to determine a mutual liability o f partners, to specify their respective rights and obligations and to define the scope of their liability against other partners.There are only a few written sources concerning so called specific kinds of partnership characterized by untypical joint and several responsibility of partners. Moreover these texts are not very clear and are difficult to interpret, so the issue of specific kinds of a partnership is a matter of doubts among Romanists. Some authors even believe that the specific types of partnership did not exist in the Roman law at all.It should be firstly observed that the texts regarding a contract of partnership itself (the texts included in the title pro socio of Justinian’ Digest) did not raise the question of the external liability of partners because they were devoted to internal settlement o f accounts within sociu Thus, taking into account only these texts one cannot ascertain that a conclusion of a contract of partnership could not affect in any way the model of the partners’ liability against third parties.Secondly, the other texts concerning the regulation of conducting an economic activity in the Roman law (actio institoria, actio exercitoria and actio de peculio) present some regularity in an introduction of joint and several liability of debtors.On the one hand that model of the liability was introduced in situations in which protecting safety of trade required that the creditor be able to claim a whole amount o f the debt from one person only.On the other hand this model of liability could be introduced only in these cases in which some internal relation existed between several debtors. On the grounds of such relations the debtor who satisfied in full the creditor’s claim could sue other debtors in order to recover their respective parts in the debt. In the Roman law that internal relation that guaranteed the possibility of a recourse could be either a joint-ownership or a partnership.Having considered that, one may say that the texts concerning specific kinds o f partnership do not prove existence of any special type of societas. These sources regard only the situations when a joint and several liability between several debtors was introduced because it was justified by the circumstances: that is the necessity to protect the safety of trade on one hand and the existence of the contract of partnership that guaranteed a possibility to realize the recourse, on the other.In conclusion one may say that although a closing of a contract of partnership did not create a joint and several liability of partners, in some cases its existence was decisive for introducing this model of liability since it guaranteed to every party a possibility to act against the others to obtain the recourse. Thus, Roman jurisprudence made an important step towards the future introduction o f joint and several liability of partners as a rule of a civil law.

scholarly journals BANKRUPTCY ESTATE OF THE DEBTOR’S SPOUSE: AN INTERSECTORAL ASPECT

2020 ◽  
pp. 26-30
Author(s):  
А.S. Salimov ◽  
S.V. Voronina
Keyword(s):  
Common Property ◽  
Family Law ◽  
Family Relations ◽  
Civil Law ◽  
Legal Regulation ◽  
Bankruptcy Law ◽  
Joint Ownership ◽  
The Common

The bankruptcy estate of the debtor spouse is all property belonging to him both on the basis ofindividual and joint ownership, including unfulfilled property obligations. The composition of the propertyof spouses is determined by the rules of family law, taking into account the legal regulation of certain typesof property, which requires special attention when forming the bankruptcy estate of the debtor spouse. Thebankruptcy estate may include the property of a citizen, making up his share in the total property, which maybe levied in accordance with civil law, family law. Family relations are built on the principle of community,which affects the implementation of bankruptcy law. To foreclose on the share of the debtor spouse, it isnecessary to separate the share of the debtor spouse from the common property, while the bankruptcy lawallows the sale of common property with the subsequent payment of funds to the debtor’s spouse.

scholarly journals Penguatan Kampung Santri untuk Pengembangan Masyarakat Sadar Hukum di Wilayah Mangkang Kota Semarang

2018 ◽  
Vol 17 (2) ◽  
pp. 253
Author(s):  
Rihlatul Khoiriyah ◽  
Ali Imron ◽  
Ahmad Munif ◽  
Lathifah Munawaroh
Keyword(s):  
Family Law ◽  
Civil Law ◽  
Common Point ◽  
The State ◽  
Cultural Approach ◽  
Positive Law ◽  
The People ◽  
The Common ◽  
The Village

<p>This paper intends to see the extent of legal awareness of the community in the village area of the santri against family law derived from national legal products. The results of the study show two main points, first, the understanding of Islamic civil law (marriage and inheritance) of Mangkang region society is dominated to the accepted understanding of classical fiqh. The people of Mangkang region are not anti-starch against the civil law of Islam issued by the state in the form of positive law. Although the Mangkang area people see that both are ijtihadiyah products, but the existence of Indonesian civil law that has an administrative effect on others makes them accept a good denan. Second, a persuasive approach in the form of a cultural approach is more readily accepted by citizens. Mangkang area people feel comfortable when invited to dialogue and discussion related to Islamic civil law of Indonesia. In the end, by reaching the common point and the good that might be obtained, Indonesian civil law can be understood and well accepted.</p><p> </p><p>Tulisan ini bermaksud melihat sejauh mana kesadaran hukum masyarakat di wilayah kampung santri terhadap hukum keluarga yang bersumber dari produk hukum nasional. Hasil dari kajian menunjukkan dua hal pokok, pertama, pemahaman hukum perdata Islam (penikahan dan kewarisan)  masyarakat wilayah Mangkang didominasi kepada pemahaman yang diterima fiqh klasik. Masyarakat wilayah Mangkang tidak anti pati terhadap hukum perdata Islam yang dikeluarkan negara dalam bentuk hukum positif. Meskipun masyarakat wilayah Mangkang melihat bahwa keduanya merupakan produk ijtihadiyah, namun keberadaan hukum perdata Islam Indonesia yang memiliki dampak administratif kepada yang lainnya menjadikan mereka bisa menerima denan baik. Kedua, pendekatan persuasif dalam bentuk pendekatan budaya lebih mudah diterima oleh warga masyarakat. Masyarakat wilayah Mangkang merasa nyaman ketika diajak berdialog dan berdiskusi terkait hukum perdata Islam Indonesia. Pada akhirnya, dengan mencapai titik temu dan kebaikan yang mungkin akan didapat, hukum perdata Islam Indonesia bisa dipahami dan diterima dengan baik..</p>

The Religious Perspective of the Judge's Role in Talmudic Law

2009 ◽  
Vol 25 (2) ◽  
pp. 357-377 ◽  
Author(s):  
Yuval Sinai
Keyword(s):  
Common Good ◽  
Civil Law ◽  
Jewish Law ◽  
Religious Perspective ◽  
Intended Application ◽  
Legal Question ◽  
The Common Good ◽  
Human Conduct ◽  
The Common ◽  
Western Law

Unlike modern Western law, which is generally assumed to be the product of human deliberation about the common good, at least in democratic countries, Jewish law is a normative system in which adjudication is subject to religious commandments. The judge bears responsibility not only to the litigants standing before him but also to God, an allegiance which most modern Western judges do not, at least explicitly, recognize.Because of the systems' assumptions that law is made by humans and thus can be understood by human judges given the appropriate information, modern Western legal systems infer that judges are under obligation to render a decision on any legal question brought before them, even in doubtful cases. Secular-civil law views the resolution of a dispute as preferable to its non-resolution, even if the judge has reservations about his decision. The judge who is hesitant to decide a case is considered to have failed to properly discharge his judicial role, the very essence of which is the regulation of human conduct in one form or other. The obligation of the judge to render a decision on every legal question both implies and requires that a judge exercise creative discretion in at least some cases where the law or its intended application are not clear to ensure the rendering of a clear and unequivocal decision on any legal question brought before him. As a consequence of this unequivocal demand that the judge decide, most judges must make peace with the possibility that their rulings may later be discovered or determined to have been mistaken.

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