3. The Numerus Clausus and Party Autonomy in the Law of Property

2011 ◽  
Author(s):  
T.H.D. Struycken
Keyword(s):  
Party Autonomy ◽  
Numerus Clausus ◽  
The Law

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.

scholarly journals CHOICE OF ISLAMIC LAW AS THE GOVERNING LAW IN ISLAMIC FINANCE CONTRACTS: THE UNITED KINGDOM AND NIGERIAN PERSPECTIVES

2017 ◽  
Vol 25 (1) ◽  
Author(s):  
Kareem Adebayo Olatoye ◽  
Abubakri Yekini
Keyword(s):  
United Kingdom ◽  
Islamic Law ◽  
Islamic Finance ◽  
Unique Problem ◽  
Party Autonomy ◽  
The United Kingdom ◽  
Muslim Majority ◽  
The Law ◽  
Governing Law

The globalisation of Islamic finance has brought the adjudication of Islamic finance disputes before non-Muslim courts and arbitral tribunals in Europe, America and elsewhere. Expectedly, the issue of the validity of the selecting Islamic law as the governing law of an Islamic finance contract often arises before these courts and tribunals. The article seeks to address the attitude of the United Kingdom and Nigerian courts to this unique problem. The thesis of the paper is that while the parties’ reasonable expectations in having their Islamic finance contracts governed by the Shari’ah may be met in Nigeria and by extension in other Muslim-majority countries, the contrary is the case in the United Kingdom and Europe where the courts do not generally favour the application of Islamic law. The paper advocates that the doctrine of the proper law of contract should be extended to Islamic finance by upholding Islamic law as the law selected by the parties (on the basis of party autonomy) or alternatively, as the system of law with which an Islamic finance transaction is most closely connected.

O caso Enka Insaat v. Insurance Company Chubb e a questão relativa à lei aplicável à cláusula arbitral: entre a lex contractus e a Lei da Sede

2021 ◽  
Vol 3 (5) ◽  
pp. 159-194
Author(s):  
Nadia de Araujo ◽  
Caio Gomes de Freitas
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
Insurance Company ◽  
Party Autonomy ◽  
The Supreme Court ◽  
The Law ◽  
The Uk ◽  
The Way

When negotiating a contract, parties usually establish that future and eventual disputes arising out and related to the performance of their obligations shall be resolved by arbitration. Such a choice, a clear expression of the principle of party autonomy, is embedded in a contractual clause, commonly referred to as arbitration agreement. The way by which the agreement is written and, to some extent, how it is construed can, and most commonly will, result in extensive and costly disputes. In the UK, the Supreme Court has recently decided a case related to the construction of an arbitration agreement, specifically to the law applicable to its validity, scope and effectiveness. According to the Court, in the absence of an express choice made by the parties, the system of law chosen to govern the substance of the contract will apply to the validity and scope of the agreement to arbitrate. Where no such choice is expressly or implied made by the parties, it will be the law of the seat of arbitration since it represents the system of law most closely connected to the agreement. This article reviews the case-law and provides some relevant excerpts of the case.

5. Legal Estates and Legal Interests

Land Law ◽  
2018 ◽  
Author(s):  
Ben McFarlane ◽  
Nicholas Hopkins ◽  
Sarah Nield
Keyword(s):  
Property Rights ◽  
General Question ◽  
Crucial Importance ◽  
Land Law ◽  
Numerus Clausus ◽  
The Law ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource.This chapter investigates legal property rights in land. The numerus clausus (or ‘closed list’) principle is of crucial importance when addressing the content question of legal property rights in land. The Law of Property Act 1925 (LPA 1925) creates a distinction between legal estates and legal interests. As a result of s 1 of LPA 1925, there are now only two permissible legal estates in land. The chapter then explores the content of a freehold and of a lease, and covers the vital question of why the LPA 1925 imposed this limit on the types of permissible legal estate in land. The facts of Hill v Tupper and Keppell v Bailey offer particular examples of a more general question that land law has to tackle when deciding on the content of legal interests in land.

The evolution of pignus in classical Roman law
Ius honorarium and ‘ius novum’

2013 ◽  
Vol 81 (1-2) ◽  
pp. 51-79
Author(s):  
H.L.E. Verhagen
Keyword(s):  
Intangible Assets ◽  
Evolutionary Process ◽  
Roman Law ◽  
Party Autonomy ◽  
Leading Role ◽  
Security Interest ◽  
The Law ◽  
Physical Asset

The Roman pledge (pignus) developed from a possessory pledge on a single physical asset owned at the time of pledging by the debtor into a versatile security interest that could be created as a non-possessory security interest over all the debtor’s present and future tangible and intangible assets. This evolutionary process was triggered by transactional practices which were recognised by the ius honorarium. At a later stage the Severan rescript practice (‘ius novum’) took over the leading role in developing the law of pledge. While the ius honorarium generally recognised party autonomy, by upholding transactional practises, the ius novum placed limitations on it, in particular in order to protect the debtor. 


Part IV Guide to Key Substantive Issues, 19 The Law Applicable in Investment Treaty Arbitration

2018 ◽  
Author(s):  
Banifatemi Yas
Keyword(s):  
Specific Nature ◽  
Commercial Arbitration ◽  
Party Autonomy ◽  
Applicable Law ◽  
Investment Protection ◽  
Investment Treaty ◽  
Primary Rule ◽  
The Law ◽  
Investment Treaty Arbitration

Investment treaty arbitration, being an arbitral process, in no way differs from international commercial arbitration in that the principle of party autonomy is the primary rule governing the arbitration, including as regards the law applicable to the substance of the dispute. When the applicable law has been chosen by the parties, the arbitrators have a duty to apply such law and nothing but such law. It is only in the absence of a choice by the parties that the arbitrators are entitled to exercise a degree of discretion in the determination of the applicable law. This chapter examines each of these situations in turn, before considering whether the specific nature of investment protection treaties has implications in terms of choice of law process.

scholarly journals THE DOCTRINE OF BENEFIT AND BURDEN: REFORMING THE LAW OF COVENANTS AND THE NUMERUS CLAUSUS “PROBLEM”

2018 ◽  
Vol 77 (1) ◽  
pp. 72-96
Author(s):  
Chris Bevan
Keyword(s):  
Indirect Method ◽  
Theoretical Issue ◽  
Recent Reform ◽  
Numerus Clausus ◽  
The Law ◽  
Court Of Appeal ◽  
Law Commission ◽  
Reform Debate

AbstractThe doctrine of benefit and burden – an indirect method for enforcing the burden of positive freehold covenants – developed as an exception the strict Austerberry rule that the burden of positive covenants cannot bind successors directly at law. Three recent Court of Appeal cases (Davies v Jones; Wilkinson v Kerdene and Elwood v Goodman) confirm the continued existence and application of the doctrine but also reveal its deficiencies and limitations. This article explores the contemporary application of the doctrine, identifies its theoretical, historical and elemental frailty and, drawing on recent reform proposals of the Law Commission, highlights the case for reform. In so doing, this article argues that a vital theoretical issue has been overlooked in the reform debate: the numerus clausus principle.

Autonomy and prenuptial agreements in Ireland: a relational analysis

Legal Studies ◽  
2018 ◽  
Vol 38 (1) ◽  
pp. 164-186
Author(s):  
Lucy-Ann Buckley
Keyword(s):  
Gender Equity ◽  
Relational Theory ◽  
England And Wales ◽  
Party Autonomy ◽  
Fairness Concerns ◽  
The Law ◽  
Relational Concerns ◽  
And Gender ◽  
Family Autonomy ◽  
Law Commission

AbstractUnlike England and Wales, Ireland has not yet moved from the traditional common law rejection of prenuptial agreements. Nevertheless, similar policy concerns continue to be debated in both jurisdictions, particularly regarding the balance between autonomy and fairness concerns, and gender equity. In 2007, an Irish ministerial Study Group recommended limited recognition of prenuptial agreements, foreshadowing similar proposals by the Law Commission for England and Wales in 2014. However, the Irish recommendations were never implemented, despite sustained lobbying. This paper draws on relational theory to scrutinise the Study Group's proposals, identifying its core assumptions and their implications. The paper contends that Irish courts dealing with spousal agreements have tacitly accepted liberal conceptualisations of autonomy, which may lead to injustice. Furthermore, the Study Group's recommendations have been overtaken by events. Recent decisions on spousal agreements emphasise respect for party autonomy, without interrogating what this means. This could be problematic if applied to prenuptial agreements. Accordingly, the paper suggests modifications to the Study Group's proposals, to address relational concerns. In this regard, the paper speaks to the broader debate on family autonomy, and draws on comparative perspectives, including the recommendations of the Law Commission for England and Wales, and the Canadian experience.

scholarly journals THE CISG AND PARTY AUTONOMY IN BRAZILIAN INTERNATIONAL CONTRACT LAW

2018 ◽  
Vol 1 (1) ◽  
pp. 173-186
Author(s):  
Iacyr De Aguilar Vieira
Keyword(s):  
Contract Law ◽  
Legal Systems ◽  
Party Autonomy ◽  
The Law

This paper focus on the principle of party autonomy in the choice of the law applicable to international contracts under CISG and Brazilian law. It analyses the different possibilities of application of this principle as well as its limits under both legal systems.

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