scholarly journals Sąžiningumo imperatyvas ikisutartiniuose santykiuose: turinys ir taikymo problematika

Teisė ◽  
2011 ◽  
Vol 79 ◽  
pp. 76-91
Author(s):  
Agnė Jakaitė
Keyword(s):  
Common Law ◽  
Good Reason ◽  
Civil Law ◽  
Case Law ◽  
Good Faith ◽  
Legal Systems

Straipsnyje analizuojama šiuo laikotarpiu aktuali sąžiningumo imperatyvo, kaip neteisėtų veiksmų nustatymo ikisutartiniuose santykiuose, taikymo problematika Lietuvos civilinės teisės ir lyginamų skirtingų jurisdikcijų kontekste. Įvertinusi šiandienes Lietuvos praktikos realijas, straipsnio autorė atskleidžia ikisutartinio sąžiningumo turinį, daug dėmesio skirdama dviejų elementų – draudimo vesti derybas neturint tikslo sudaryti sutartį ir reikalavimo nenutraukti toli pažengusių derybų be pakankamos priežasties – analizei. Kadangi Lietuvos doktrinoje šie klausimai plačiau nenagrinėti, temos analizei ir formuojamoms išvadoms pagrįsti remiamasi užsienio autorių darbais bei kitų valstybių suformuota ilgalaike teismų praktika.The author examines the imperative of good faith as the concept determining the illegal actions during the pre-contractual phase in the content of Lithuanian civil law and different continental and common law legal systems. In the view of nowadays Lithuanian realities the article defines the content of pre-contractual good faith and focuses on the analysis of two elements – the prohibition to negotiate without no real intention to conclude a contract and the requirement not to breach off the negotiations without the reasonable cause when one of the parties has a good reason to believe that the contract will be concluded. Since these issues have not been dealt before in Lithuanian doctrine, the research refers to the foreign legal articles and case law.

2. Legal systems and sources of law

2020 ◽  
pp. 35-70
Author(s):  
Scott Slorach ◽  
Judith Embley ◽  
Peter Goodchild ◽  
Catherine Shephard
Keyword(s):  
International Law ◽  
Common Law ◽  
Civil Law ◽  
Case Law ◽  
Potential Effect ◽  
Legal Systems ◽  
Public And Private ◽  
England And Wales ◽  
The World ◽  
The Status

This chapter focuses on the sources of law in England & Wales, and is organised as follows. Section 2.1 describes the key jurisdictions relevant to lawyers in England and Wales. Section 2.2 deals with the issue of where the law comes from: sources of law. Section 2.3 reviews the development of the two ‘traditional’ sources of law in England and Wales: case law and statutes. Sections 2.4 and 2.5 consider the status and operation of EU and international law, including the potential effect of Brexit. Section 2.7 goes on to discuss public and private law, common law, and civil law, and other classifications used by lawyers. This is followed by a discussion of legal systems and their cultures across the world.

scholarly journals A COMPARISON OF THE COMMON LAW BASED DUTY WITH ITS CIVIL LAW EQUIVALENT

2020 ◽  
Author(s):  
Azamat Omarov ◽  
Asylbek Kultasov ◽  
Kanat Abdilov
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Comparative Law ◽  
Case Law ◽  
Legal Systems ◽  
Legal Structure ◽  
Legal Term ◽  
Legal Effect ◽  
The World ◽  
The Common

The article discusses the features of civil law in different countries. The authors studied the origins of the modern tradition of civil law, comparing the legal systems of two European countries. One of the traditional classifications of duties in civil law is analyzed, the conclusion is made about the inappropriateness of the allocation of personal and universal duties. In comparative law, there are many situations where the same legal term has different meanings, or where different legal terms have same legal effect. This confusion most often occurs when civil lawyers have to deal with common law, or vice versa, when common law lawyers deal with civil law issues. While there are many issues which are dealt with in the same way by the civil law and common law systems, there remain also significant differences between these two legal systems related to legal structure, classification, fundamental concepts, terminology, etc. As lawyers know, legal systems in countries around the world generally fall into one of two main categories: common law systems and civil law systems. There are roughly 150 countries that have what can be described as primarily civil law systems, whereas there are about 80 common law countries. The main difference between the two systems is that in common law countries, case law – in the form of published judicial opinions – is of primary importance, whereas in civil law systems, codified statutes predominate.

2. Legal systems and sources of law

2017 ◽  
Author(s):  
Scott Slorach ◽  
Judith Embley ◽  
Peter Goodchild ◽  
Catherine Shephard
Keyword(s):  
International Law ◽  
Common Law ◽  
Civil Law ◽  
Case Law ◽  
Potential Effect ◽  
Legal Systems ◽  
Public And Private ◽  
England And Wales ◽  
The World ◽  
The Status

This chapter focuses on the sources of law in England and Wales, and is organised as follows. Section 2.1 describes the key jurisdictions relevant to lawyers in England and Wales. Section 2.2 deals with the issue of where the law comes from: sources of law. Section 2.3 reviews the development of the two ‘traditional’ sources of law in England and Wales: case law and statutes. Sections 2.4 and 2.5 consider the status and operation of EU and international law, including the potential effect of Brexit. Section 2.7 goes on to discuss public and private law, common law, and civil law, and other classifications used by lawyers. This is followed by a discussion of legal systems and their cultures across the world.

The Evolution of a Nation

2011 ◽  
Author(s):  
Daniel Berkowitz ◽  
Karen B. Clay
Keyword(s):  
Political Competition ◽  
Common Law ◽  
Civil Law ◽  
Legal Institutions ◽  
Colonial History ◽  
Legal Systems ◽  
Water Transportation ◽  
Long Run ◽  
Access To Water ◽  
Late Twentieth

Although political and legal institutions are essential to any nation's economic development, the forces that have shaped these institutions are poorly understood. Drawing on rich evidence about the development of the American states from the mid-nineteenth to the late twentieth century, this book documents the mechanisms through which geographical and historical conditions—such as climate, access to water transportation, and early legal systems—impacted political and judicial institutions and economic growth. The book shows how a state's geography and climate influenced whether elites based their wealth in agriculture or trade. States with more occupationally diverse elites in 1860 had greater levels of political competition in their legislature from 1866 to 2000. The book also examines the effects of early legal systems. Because of their colonial history, thirteen states had an operational civil-law legal system prior to statehood. All of these states except Louisiana would later adopt common law. By the late eighteenth century, the two legal systems differed in their balances of power. In civil-law systems, judiciaries were subordinate to legislatures, whereas in common-law systems, the two were more equal. Former civil-law states and common-law states exhibit persistent differences in the structure of their courts, the retention of judges, and judicial budgets. Moreover, changes in court structures, retention procedures, and budgets occur under very different conditions in civil-law and common-law states. This book illustrates how initial geographical and historical conditions can determine the evolution of political and legal institutions and long-run growth.

scholarly journals The Transplant of Trusts in Different Legal Jurisdictions: The Example of China

Global Jurist ◽  
2020 ◽  
Vol 0 (0) ◽  
Author(s):  
Giulia Terranova
Keyword(s):  
Legal System ◽  
Common Law ◽  
Civil Law ◽  
Original Model ◽  
People’S Republic Of China ◽  
Legal Institution ◽  
Legal Systems ◽  
People's Republic Of China ◽  
Republic Of China ◽  
Trust Law

AbstractLegal transplants are considered a significant factor in the evolution of legal systems. One example of transplant of a legal institution through its prestige is the diffusion of the trust from the English legal system to other common law systems and to many civil law countries. One of these is China that in 2001 enacted the Trust Law of the People’s Republic of China. This paper wants to analyse the trust under the Trust Law and to compare it with the original model in the English legal system, understanding how far or how close it is from the original one.

scholarly journals CODIFICATION, CONSOLIDATION, RESTATEMENT? HOW BEST TO SYSTEMISE THE MODERN LAW OF TORT

2021 ◽  
Vol 70 (2) ◽  
pp. 271-305
Author(s):  
Paula Giliker
Keyword(s):  
Comparative Study ◽  
Common Law ◽  
Civil Law ◽  
Tort Law ◽  
Case Law ◽  
Legal Scholarship ◽  
Legal Rules ◽  
The Law ◽  
Codal Provisions ◽  
Code Civil

AbstractThe law of tort (or extra or non-contractual liability) has been criticised for being imprecise and lacking coherence. Legal systems have sought to systemise its rules in a number of ways. While civil law systems generally place tort law in a civil code, common law systems have favoured case-law development supported by limited statutory intervention consolidating existing legal rules. In both systems, case law plays a significant role in maintaining the flexibility and adaptability of the law. This article will examine, comparatively, different means of systemising the law of tort, contrasting civil law codification (taking the example of recent French proposals to update the tort provisions of the Code civil) with common law statutory consolidation and case-law intervention (using examples taken from English and Australian law). In examining the degree to which these formal means of systemisation are capable of improving the accessibility, intelligibility, clarity and predictability of the law of tort, it will also address the role played by informal sources, be they ambitious restatements of law or other means. It will be argued that given the nature of tort law, at best, any form of systemisation (be it formal or informal) can only seek to minimise any lack of precision and coherence. However, as this comparative study shows, further steps are needed, both in updating outdated codal provisions and rethinking the type of legal scholarship that might best assist the courts.

The Experiences of Civil Lawyers When Studying the Common Law

2013 ◽  
Vol 8 ◽  
pp. 1-20
Author(s):  
Margaret Fordham
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Legal Systems ◽  
The Common

AbstractThis article examines the issues experienced by civil lawyers when studying the common law. It considers the extent of the differences between common law and civil law legal systems, examines the challenges which students from civil law jurisdictions face when first exposed to the common law, analyses the various ways in which these challenges may be met, and summarises civilians’ overall impressions of the common law.

Voluntary Withdrawal in the Context of Attempt – A Defence?

Obiter ◽  
2021 ◽  
Vol 42 (1) ◽  
pp. 148-161
Author(s):  
Shannon Hoctor
Keyword(s):  
South African ◽  
Criminal Liability ◽  
Common Law ◽  
Good Reason ◽  
Case Law ◽  
Current Case ◽  
Voluntary Withdrawal ◽  
Alternative Approach ◽  
The Moment ◽  
Mitigating Factor

Once a crime has been committed, full repentance and restoration do not have any bearing on liability, but may be taken into account in mitigation of sentence. On the other hand, there is no question of criminal liability ensuing for an attempt at a crime if there is a withdrawal from the envisaged crime while still in the stage of preparation, and before, in South African law, reaching the watershed moment of the “commencement of the consummation”. However, what occurs between the moment when the attempt begins, and the moment when the crime has been completed, where there has been a withdrawal from the criminal purpose, is more contested terrain. The disagreement does not apparently arise in the South African case law, where the few judgments that refer to this question have consistently held that where the accused withdraws after the commencement of the consummation of the crime, there will be attempt liability and, at best, the accused may rely on the abandonment as a mitigating factor in sentencing. However, as is discussed, prominent South African academic commentators, along with comparative sources in both the civil-law and common-law jurisdictions, demur from such an “unyielding analysis”, and would regard such withdrawal as giving rise to a defence to criminal liability. Which approach ought to be applied in South African law?  The question may be posed as to how to categorise a defence of voluntary withdrawal? It is neither a justification ground nor a ground excluding fault, but rather a ground excluding punishment. The uniqueness of the defence is demonstrated in that the accused has already met all the requirements for liability, and thus it is not an intending criminal, but an actual criminal who is being considered. This is at least true of the common-law approach (also adopted by South African law), where a two-stage approach is applied to the trial, relating first to establishing criminal liability and followed, if guilt is so established, by an inquiry into sentence. At the outset, it may be stated that the view that is taken in the discussion that follows is that there is no good reason to treat voluntary abandonment as a special defence. As Yaffe has stated, to grant a defence on the basis of abandonment is to mistake the absence of a reason to issue a particular sanction rather than a lower one for a sufficient reason to issue no sanction at all.In the discussion that follows, the current case law is examined, whereafter the alternative approach contended for by some academic writers (and used in other jurisdictions) is discussed; the arguments for and against a renunciation defence are set out, before these aspects are drawn together in a final concluding analysis.

Covering Blood and Graves

2018 ◽  
pp. 213-237
Author(s):  
Nancy O. Gallman ◽  
Alan Taylor
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Legal Systems ◽  
Spanish Law ◽  
Indigenous Groups ◽  
Spanish Florida ◽  
The Face ◽  
English Law ◽  
Corporate Autonomy

Gallman and Taylor take up murder at the boundary zones between the Iroquois and British settlers and between Spanish Florida and the Lower Creeks and Seminoles. Despite contrasts between the legal systems of the empires—civil law and inquisitorial procedure on the Spanish side, common law and trial by jury on the British side—indigenous groups came to similar conclusions regarding murder. Specifically, Native leaders rejected execution of the guilty, as proposed by English law, or other punishments, from execution to imprisonment to exile, under Spanish law. They opted instead to resolve matters by “covering the grave,” or giving gifts by the culpable party to the aggrieved party in lieu of revenge. This practice was less likely to spark a blood feud and enabled indigenous groups to preserve corporate autonomy in the face of pressures to conform to imperial norms. Though reluctantly, imperial officials often went along with this in order to keep the peace.

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