scholarly journals Participants (Subjects) Of Civil Legal Relations As One Of The Criteria For The Identification Of Third Parties

2019 ◽  
pp. 76-87
Author(s):  
O.Ya. Kuzmych
Keyword(s):  
Civil Rights ◽  
Civil Code ◽  
Third Parties ◽  
Third Party ◽  
General Character ◽  
Legal Relationship ◽  
Third Person ◽  
The Subject ◽  
Subjective Rights ◽  
Legal Entities

The article is devoted to the development of one of the scientific criteria that can be taken as a basis for the identification of third parties in civil legal relations, namely the participants (subjects) of civil legal relations. The article analyzes doctrinal studies on the problem of understanding the content of such concepts as the participant of civil relations, the subject of civil legal relations, the subject of civil rights. In particular, participants in civil relations are individuals and legal entities, as well as other public entities referred to in Art. 2 of the Civil Code of Ukraine, which having civil capacity and capacity can participate in civil legal relations. At the same time, the subjects of civil legal relations are the participants, whose circle is defined in Art. 2 of the Civil Code of Ukraine, which, in the presence of appropriate prerequisites, have already entered into appropriate civil legal relations. Therefore, having entered into the relevant legal relationship participants, the circle of which is defined in Art. 2 of the Civil Code of Ukraine can become one of the subjects of the legal relationship, which is taken as the basis, and a third person. Particular attention is paid to the relation between such concepts as the subject of civil legal relations and the subject of civil rights. The parties to the civil relationship are a variety of subjects. parties to civil legal relations are subjects of binding legal relations with mutual subjective rights and obligations. As concepts of «party to civil relations», «subjects of civil legal relations», «subjects of civil rights» in relation to the meaning of the concept of «third person» have a general character. In particular, as a third party are the participants whose circle is defined in Art. 2 of the Civil Code of Ukraine, which have already entered into the relevant civil legal relations, and as a consequence, possess the characteristics characteristic of such persons.

Contracts for the Benefit of Third Parties Under the Taiwan Civil Code

2018 ◽  
Author(s):  
Sheng-Lin JAN
Keyword(s):  
Civil Code ◽  
Third Parties ◽  
Third Party ◽  
The Third ◽  
Legal Relationship ◽  
The Third Party ◽  
Privity Of Contract

This chapter discusses the position of third party beneficiaries in Taiwan law where the principle of privity of contract is well established. Article 269 of the Taiwan Civil Code confers a right on the third party to sue for performance as long as the parties have at least impliedly agreed. This should be distinguished from a ‘spurious contract’ for the benefit of third parties where there is no agreement to permit the third party to claim. Both the aggrieved party and the third party beneficiary can sue on the contract, but only for its own loss. The debtor can only set off on a counterclaim arising from its legal relationship with the third party. Where the third party coerces the debtor into the contract, the contract can be avoided, but where the third party induces the debtor to contract with the creditor by misrepresentation, the debtor can only avoid the contract if the creditor knows or ought to have known of the misrepresentation.

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.

Contracts for the Benefit of Third Parties in Japan

2018 ◽  
Author(s):  
Masami Okino
Keyword(s):  
Case Analysis ◽  
Case Law ◽  
Contract Law ◽  
Civil Code ◽  
Third Parties ◽  
Third Party ◽  
German Model ◽  
Recent Debate ◽  
The Law

This chapter discusses the law on third party beneficiaries in Japan; mostly characterized by adherence to the German model that still bears an imprint on Japanese contract law. Thus, there is neither a doctrine of consideration nor any other justification for a general doctrine of privity, and contracts for the benefit of third parties are generally enforceable as a matter of course. Whether an enforceable right on the part of a third party is created is simply a matter of interpretation of the contract which is always made on a case-by-case analysis but there are a number of typical scenarios where the courts normally find the existence (or non-existence) of a contract for the benefit of a third party. In the recent debate on reform of Japanese contract law, wide-ranging suggestions were made for revision of the provisions on contracts for the benefit of third parties in the Japanese Civil Code. However, it turned out that reform in this area was confined to a very limited codification of established case law.

7. Privity of contract and third party rights

2021 ◽  
pp. 307-358
Author(s):  
Robert Merkin ◽  
Séverine Saintier
Keyword(s):  
Common Law ◽  
Case Law ◽  
Contract Law ◽  
Third Parties ◽  
Third Party ◽  
The Third ◽  
The Subject ◽  
The Common ◽  
Contractual Obligations ◽  
Privity Of Contract

Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. This chapter examines privity of contract, its relationship with consideration, and the ability of third parties to enforce contractual provisions for their benefit. The doctrine of privity of contract provides that the benefits of a contract can be enjoyed only by the parties to that contract and only parties can suffer the burdens of the contract. At common law, third party beneficiaries could not enforce a contractual provision in their favour so various devices were employed seeking to avoid privity. Statute now allows for direct third party enforcement but in limited circumstances. This chapter examines the background to privity and the attempted statutory reform in the Contracts (Rights of Third Parties) Act 1999 as it has been interpreted in the case law. The chapter also discusses the common law means of avoiding privity as illustrated by the case law, e.g. agency, collateral contracts, and trusts of contractual obligations. Finally, it assesses the remedies available to the contracting party to recover on behalf of the third party beneficiary of the promise, including the narrow and broad grounds in Linden Gardens Trust. It concludes by briefly considering privity and burdens—and the exceptional situations where a burden can be imposed on a person who is not a party to the contract.

scholarly journals ON THE MEASURES OF CIVIL LEGAL LIABILITY: THEORETICAL ASPECTS

2018 ◽  
Vol 22 (1) ◽  
pp. 175-181
Author(s):  
Yu. N. Andreev ◽  
A. P. Zolotarev
Keyword(s):  
Civil Rights ◽  
Russian Federation ◽  
Legal Liability ◽  
Civil Code ◽  
Property Damage ◽  
Intellectual Activity ◽  
Post Graduate Student ◽  
The Russian Federation ◽  
Contractual Obligations ◽  
Legal Entities

The work is devoted to topical problems of the civil theory of civil legal liability measures. The authors propose their classification of the measures of civil legal liability, give a brief description of some types of these measures, make reasoned proposals for further development of legislation in the field under studies. The authors of the proposed article refer compensation (recovery) of damages, recovery of penalties (fines, penalties), interests, loss of deposit, payment of deposit in double size, compensation to the measures of civil liability:. There are legitimate, contractual, preclusive, compensation-restorative, and punitive measures of civil legal liability. Civil legal liability measures can be differentiated into the following measures: a) delictual; b) contractual and c) conditional liability; taking into account the subjects of liability they can be classified into: a) measures of liability of individuals; b) measures of liability of legal entities; c) measures of liability of public legal entities, the state. The authors of the article assert that in civil legal there are compensatory payments for: 1) causing moral harm (see, for example, Articles 151, 1099 - 1101 of the Civil Code of the Russian Federation); ) diminishing business reputation of legal entities (Article 152 of the Civil Code of the Russian Federation); 3) violation of the property rights of consumers (Article 145 of the Law on the Protection of Consumer Rights); 4) violation of exclusive rights to the results of intellectual activity, means of individualization (Article 1252 of the Civil Code of the Russian Federation); 5) causing anthropogenic, natural or terrorist harm; 6) infliction of damage by lawful actions of state and municipal bodies (Article 6.1 of the Civil Code of the Russian Federation); 7) violation of reasonable time limits for judicial proceedings and enforcement of judicial acts. Professor Yu. .N. Andreev and post-graduate student A.P. Zolotarev also refer measures of corporate liability of the members of the corporation to the corporate organization, and, conversely, liability of the corporations to its members to civil legal measures of liability. At the same time, many measures of civil legal liability are simultaneously measures of civil protection. The authors of the article suggest renaming the ‘compensation of damages’ as a way of protecting civil rights, stipulated in Article 12 of the Civil Code of the Russian Federation, to ‘recover damages’ or ‘compensation for property damage’, clarify Article 15 of the Civil Code of the Russian Federation indicating that compensation for damages is applied with a view to recovering property damage for tortious destruction, damage, diminution, restriction of material benefits, non-performance (improper performance) of contractual obligations, non-compliance with unjust enrichment obligation.

scholarly journals SI TAMEN PLURES PER SE NAVEM EXERCEANT. KILKA UWAG O ODPOWIEDZIALNOŚCI ARMATORÓW

2017 ◽  
Vol 7 (1) ◽  
pp. 23
Author(s):  
Zuzanna Służewska
Keyword(s):  
Economic Activity ◽  
Third Parties ◽  
Third Party ◽  
Proper Part ◽  
Technical Term ◽  
The Third ◽  
Joint And Several Liability ◽  
Legal Relationship ◽  
Per Se ◽  
The Third Party

Si tamen plures per se navem exerceant. Several Remarks on the Liability of ShipownersSummaryThe problem discussed in this paper regards the liability of several shipowners (exercitores) managing the same ship. In the title de exercitoria actione o f the Digest there are three texts that refer to this matter: D. 14,1,1,25; D. 14,1,4 pr. and D. 14,1,4,1. The first and the last one refer to a situation in which the shipowners appointed a captain (magister navis) as their agent and thus were held liable in solidum for contracts made by him with third parties. In these cases their joint and several liability had ground in the joint appointm ent of an agent (praepositio). The second text D. 14,1,4 pr. is not very clear and refers to shipowners that were managing the same ship per se, and in this case they could be sued pro portionibus exercitionis. Such a model of liability was justified by the reservation that they cannot be deemed as being each other’s captain (neque enim invicem sui magistri videbuntur). This text was widely discussed among romanists and gave ground to various interpretations. The main questions concerned were the following: whether shipowners dealt with the third parties personally or appointed an agent (magister navis), whether a contract was stipulated by all shipowners jointly or only one o f them, whether they were partners in a partnership or conducted their business independently. According to the most common interpretation the text refers to a situation in which the shipowners conducted their activity personally in the partnership. Having accepted the above view, to justify their liability pro portionibus exercitionis one must admit that they all acted as a party in a contract or, supposing a contract was stipulated by one of them, a partnership between shipowners was a particular kind of partnership in which a contract concluded by only one of the partners resulted in the liability of the others. N one of these interpretations seems to be convincing.First of all, one must take into consideration that the word exercitor was a technical term used to define someone conducting an economic activity through his agent (magister navis) so it was normally used in the context of the whole structure of exercitio navis that was based on the scheme exercitor — magister navis. Thus it seems more likely that exercere per se means not conducting an activity personally but rather „on one’s own account”, „independently”. Besides, the reservation neque enim invicem sui magistri videbuntur suggesting that plures exercitores conducted their activity personally is dubious since it refers to a concept of mutual praepositio, which was used by glossators and commentators to justify joint and several liability of partners and it may be possible that this reservation constituted a part of the gloss or was added to the original context later by some interpreter that did not understand Ulpian’s intention.A similar conclusion arises from the comparison of the text of D. 14,1,4 pr. with texts concerning the liability of several persons on the basis of actio institoria. From the text of D. 14,3,14 it appears that if no legal relationship that guaranteed the possibility of a recourse existed among several persons liable for the act of the agent, none o f them could be sued for the full am ount (in solidum) but they were held liable pro parte. In the case of actio institoria the fact of a joint appointm ent was probably treated as a manifestation of animus societatis that made it possible to treat the persons that had nom inated jointly the institor as partners and thus held them liable in solidum for contracts made by this agent. Hence the fact that in the text o f D. 14,1,4 pr. the shipowners did not appoint jointly their agent and were held liable pro portionibus exercitionis suggests that they were not partners but each of them managed a ship on his own account.If we adm it that plures exercitores that per se navem exerceant were the shipowners that did not conduct their business together we could indicate two situations in which they could be sued pro portionibus exercitionis. The first would be the case in which each o f the shipowners appointed his own agent on the ship and the contract with the third party was stipulated by all agents acting together. The second would be the case in which the shipowners appointed the same person as their agent but the praepositio was given by each o f them separately. in both cases each o f the shipowners could be sued with actio exercitoria only for his proper part since they could not be deemed to be partners and they could not sue each other with any action for a recourse.

scholarly journals Investigating the Custody in Shiite Jurisprudence and Civil Rights in France

2016 ◽  
Vol 9 (7) ◽  
pp. 230
Author(s):  
Mahdi Nazemi ◽  
Abbas Ali Salehi
Keyword(s):  
Civil Rights ◽  
Child Custody ◽  
Civil Law ◽  
Civil Code ◽  
Third Party ◽  
Child Rearing ◽  
Religious Orders ◽  
Spiritual Dimension ◽  
The Right ◽  
Legal Opinion

Custody in Islam is the procedure for child rearing, which effects his physical and material context. What kept custody of the child apart from other issues, is attention to the spiritual dimension of the child and considering the child needs. Child custody and disputes on it leads to be an important issue for parents in countries civil law. In civil rights it becomes as well as the important of religious orders and opinions of jurists, in this regard recommendations are provided on how to improve the supervision and laws of our country's children for a better life. Therefore, in this case, it is needed to examine the legal opinion regarding to the custody of the two legal systems of Iran and France. The first custody must be investigated and have priority to the custody of the father or mother. In Iranian Civil Code the right and duty of parents in custody knows some right and some homework. In French Civil Code custody of parents towards children in all areas of life for the growth, maintenance and education of children is common and conspicuous aspects of its obligatory. The exercise of the custody right is shared between parents and conditions are considered the parent with custody situations where their absence is excused. Parents under certain circumstances can have the right to self-disclaimer or leave to a third party to ask the court about the right.

scholarly journals Recognition of right as a way to protect liability rights

2019 ◽  
pp. 76-84
Author(s):  
A. S. Starovoytova
Keyword(s):  
Civil Rights ◽  
Subject Matter ◽  
Practical Application ◽  
Legal Relationship ◽  
The Subject ◽  
The Right

The article substantiates the conclusion that recognition of the right is a universal way of protection of civil rights. This method of protection can be applied to liability rights. The article reveals the practical application of recognition of right as a way of protecting liability rights. The author states that the requirement to recognize the contract as concluded is a claim to recognize the obligations legal relationship. The structures similar to the recognition of liability rights are analyzed and the conclusion that such requirements are not claims for recognition, but are claims for award is reasoned. Claims for recognition of obligations are recommended to be divided into positive and negative. Particular attention is given to the legal design of the claim on recognition of obligations rights. In particular, the issues of the subject of the claim, its subjects, the conditions of presentation and satisfaction of the claim were considered. The claim for recognition of the right of obligation in its subject matter should be qualified as a requirement for confirmation of legal relationship.

scholarly journals Protection Analysis Of Third Parties Of Principles Droit De Suite In Execution Of Rights Liability

Jurnal Akta ◽  
2019 ◽  
Vol 6 (2) ◽  
pp. 383
Author(s):  
Serly Nurnaningsih ◽  
Amin Purnawan
Keyword(s):  
Third Parties ◽  
Third Party ◽  
Legal Relationship ◽  
Droit De Suite

This study discusses the protection of third parties from the principle of droit de suite in the execution of Mortgage Rights, problems faced in the protection of third parties from the principle of droit de suite in the execution of Mortgage Rights and the solution.Protection of third parties from the principle of droit de suite in the execution of Underwriting Rights, among others, registration of Underwriting Rights to fulfill the principle of publication, announcement of auction sales in execution of Underwriting Rights and prohibition of auction of third party property. The problems faced in the protection of third parties from the principle of droit de suite in the execution of Mortgage Rights, namely protection of third parties is not direct protection because third parties are not parties to the Underwriting Rights Agreement or do not have a direct legal relationship with the Mortgage Agreement To overcome this, it can be done by involving third parties related to the Underwriting Right object in the Underwriting Agreement.Keywords: Protection; Execution; Mortgage Rights; Third Party.

scholarly journals TURNOVER OF LAND PLOTS AS OBJECTS OF CIVIL RIGHTS

2021 ◽  
pp. 30-35
Author(s):  
O.A. Rozhkova ◽  
S.V. Voronina
Keyword(s):  
Civil Rights ◽  
Single Point ◽  
Civil Code ◽  
Point Of View ◽  
Scientific Discussion ◽  
The Subject ◽  
Federal Laws ◽  
Definition Of ◽  
Land Code

The definition of the concept of turnover is absent in the provisions of the civil code and other normativelegal acts. The scientific discussion is based on the content of the concepts of turnover, civil turnover and legalregime, and their relationship. In civil turnover, most of the objects of civil rights are freely used, which ispredetermined by their inherent legal property of turnover. The civil code defines turnover as the ability ofan object of civil rights to be freely alienated and transferred from one person to another. Turnover is oftenidentified with the ability of an object to be an object of civil rights in General. The doctrine also does nothave a single point of view regarding the understanding of turnover and its relationship to the legal regime.Land plots are objects of civil turnover, participate in land legal relations as objects of civil turnover.The turnover of land plots is carried out to the extent that it is allowed by the legislation. The question ofthe correlation between land and civil legislation in regulating the turnover of land plots is relevant. Thecivil code refers the determination of the degree of turnover of land plots to the subject of regulation of landlegislation. In accordance with the land code, the turnover of land plots is carried out in accordance withcivil legislation and the code, while the content of restrictions on the turnover of land plots is establishedby the land code and Federal laws.

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