scholarly journals The Testamentary Trust: Is it a Trust or a Will? Hanekom v Voigt 2016 1 SA 416 (WCC)

2018 ◽  
Vol 21 ◽  
pp. 1-22
Author(s):  
Eben Nel
Keyword(s):  
Administrative Law ◽  
Legal Certainty ◽  
Dynamic Nature ◽  
True Nature ◽  
High Court ◽  
Legal Challenges ◽  
The Will ◽  
Per Se ◽  
Trust Law ◽  
Traditional Understanding

The recent judgment in Hanekom v Voigt 2016 1 SA 416 (WCC) is evaluated in the light of the traditional understanding of the testamentary trust. It is evaluated from both a testamentary disposition and a trust law perspective, with the aim of determining whether the Hanekom matter has touched a particular nerve in the will versus trust debate as far as the trust mortis causa is concerned. From this judgment, the importance of differentiating between the spheres of testamentary law and trust law, to ensure legal certainty, became clear. The court submitted that the mere fact that a trust happens to be of testamentary origin should not influence the evaluation of the validity of the amendment of the trust instrument. The court underlined the dynamic nature of the trust figure in referring to it as a "supple, living institution." The nature of the powers vested in the Master of the High Court, both as far as the appraisal of the trust instrument and the appointment of trustees are concerned, is also considered in the judgement. In evaluating the facts of the case, the court recognised the applicability of the Oudekraal principle as it has been developed in the field of administrative law. The writer comes to the conclusion that, while the Hanekom case does illustrate some legal challenges in the last will and testament environment, it also offers a number of valuable lessons for will-drafters. The approach by the court is encouraging, as it shows some sensitivity for the true nature of the testamentary trust. The confirmation by the court that a testamentary trust is in the first instance a trust and not a will per se is to be welcomed, and is a true and realistic reflection of the nature of the institution.

Perlindungan Hukum Harta Bawaan Debitur Pasca Perceraian

2021 ◽  
Vol 1 (1) ◽  
pp. 68-77
Author(s):  
Puspa Fitriyah
Keyword(s):  
Legal Protection ◽  
Legal Liability ◽  
Legal Certainty ◽  
Citizenship Status ◽  
Credit Guarantees ◽  
Personal Status ◽  
The Will ◽  
The Law ◽  
Joint Property ◽  
Husband And Wife

The problem of debt is included in the field of personal status, where marriages are carried out between spouses, which as a result of the law of debt become a burden to be borne together from marriage agreements between citizens, especially related to the distribution of joint assets. How is the legal liability of debtors to creditors in the final period of marriage? and How is the legal protection for the debtor's innate property? Regarding the marriage agreement, it is regulated in Article 29 of Law Number 1 of 1974 concerning Marriage. This is because of the agreement made between the husband and wife both regarding joint property after marriage and the child's guardianship rights as well as the citizenship status of the child and each party. The method used in this research is normative juridical and empirical juridical research which is analyzed using legal certainty theory and legal liability theory. From the results of the research. Events that often occur in the field of debt, debt repayments that must be paid by the debtor are often not as agreed. In the legal certainty of customer credit guarantees on objects of land and building mortgages, there is a decrease in the appraisal value by the bank, but the binding of credit guarantees with mortgages is carried out if a customer or debtor obtains credit facilities from the bank. Divorce is an abolition of marriage accompanied by a judge's decision. or at the will of one of the parties, both husband and wife, through the submission of a claim by one of the parties to the marriage. Keywords: Legal Liability, Debt, Creditors, Wife.

scholarly journals Partitioning the colonization and extinction components of beta diversity: Spatiotemporal species turnover across disturbance gradients

2020 ◽  
Author(s):  
Shinichi Tatsumi ◽  
Joachim Strengbom ◽  
Mihails Čugunovs ◽  
Jari Kouki
Keyword(s):  
Plant Communities ◽  
Beta Diversity ◽  
Species Turnover ◽  
Single Point ◽  
Relative Importance ◽  
Dynamic Nature ◽  
Colonization Dynamics ◽  
Per Se ◽  
The Given ◽  
Temporal Species Turnover

ABSTRACTChanges in species diversity often result from species losses and gains. The dynamic nature of beta diversity (i.e., spatial variation in species composition) that derives from such temporal species turnover, however, has been largely overlooked. Here, we disentangled extinction and colonization components of beta diversity by using the sets of species that went locally extinct and that newly colonized the given sites. We applied this concept of extinction and colonization beta diversity to plant communities that have been repeatedly measured in experimentally disturbed forests. We first found no difference in beta diversity across disturbance gradients when it was analyzed for communities at a single point in time. From this result, we might conclude that disturbance caused no impact on how species assemble across space. However, when we analyzed the extinction and colonization beta diversity, both measures were found to be significantly lower in disturbed sites compared to undisturbed sites. These results indicate that disturbance removed similar subsets of species across space, making communities differentiate, but at the same time induced spatially uniform colonization of new species, causing communities to homogenize. Consequently, the effects of these two processes canceled each other out. The relative importance of extinction and colonization components per se also changed temporally after disturbance. Analyses using extinction and colonization beta diversity allowed us to detect nonrandom dis- and re-assembly dynamics in plant communities. Our results suggest that common practices of analyzing beta diversity at one point in time can mask significant variation driven by disturbance. Acknowledging the extinction–colonization dynamics behind beta diversity is essential for understanding the spatiotemporal organization of biodiversity.

scholarly journals Variety of theoretical approaches to legal interpretation

2021 ◽  
pp. 109-114
Author(s):  
A. Yе. Shevchenko ◽  
S. V. Kudin
Keyword(s):  
Social Relations ◽  
Theoretical Approach ◽  
Special Kind ◽  
Integrative Approach ◽  
Legal Interpretation ◽  
True Nature ◽  
Theoretical Approaches ◽  
The Will ◽  
The Subject ◽  
The Law

The article explores the variety of theoretical approaches to legal interpretation. It has been determined that the variety of approaches to legal interpretation is due to the complexity of the nature of the origin of this phenomenon, the conditions for the development of post-non-classical science, and the recent influence of the paradigm of comparism, which assumes pluralism of opinions and ideas in legal research. It was found that in modern science there are four traditional theoretical approaches to the essence of legal interpretation. It has been determined that the content of the first approach is revealed within the framework of legal hermeneutics through a number of categories. The essence of the second approach (formal dogmatic or static) is expressed in the fact that the subject of interpretation must strictly and rigorously follow the letter of the law, establish only the meaning of the normative legal act, which the lawmaking body enshrined in it at the time of the publication of the act. That is why normative legal acts cannot, through interpretation, adapt to the changing economic, social, political, cultural internal and external conditions of public life. It is proved that the essence of the dynamic theoretical approach lies in the fact that the subject of legal interpretation adapts the normative legal act to the changes that occur in various social relations. It was found that there is a contradiction between the dynamic and static approaches in legal interpretation, which is reflected in the traditionally called objective and subjective theories of interpretation. According to the subjective theory, the purpose of legal interpretation is to establish the «will of the legislator», and according to the objective theory – to establish the «will of the law». It has been substantiated that the essence of the activity approach is that interpretation is considered as a special kind of legal activity aimed at understanding and clarifying the content of legal texts. The authors of this article point out that in order to establish the true nature of legal interpretation, the methodological foundations of the study should be presented much broader and more diverse, and not be limited only to traditional approaches. When studying it, a comprehensive, integrative approach is needed, which, based on the relevance of interdisciplinary relationships, would include logical, language (linguistic), philosophical, sociological, psychological, axiological (value), ethical, legal, historical, economic, political, mathematical and other substantiation of legal interpretation. Keywords: diversity, theoretical approach, legal interpretation, interpretive practice, integrative approach

Dangerous things and the Non-Natural User of Land

1929 ◽  
Vol 3 (3) ◽  
pp. 376-397
Author(s):  
W. T. S. Stallybrass
Keyword(s):  
Common Law ◽  
True Nature ◽  
Moral Qualities ◽  
The Common ◽  
Per Se ◽  
The Law

It is perhaps true that one of the most important moral qualities of a man, especially an undergraduate, is a knowledge of where to ‘draw the line’; it is certainly true that one of the most essential parts of a lawyer's equipment is the capacity for drawing distinctions correctly. The whole framework of the law is based upon distinctions, and the drawing of false distinctions is as disastrous as is the failure to draw those that are based upon sound reasoning. It is the object of this article to consider, very tentatively, two distinctions which have been introduced into the common law relating to injury done to others by the property of the defendant: in the first place, the distinction between those things which are dangerous per se and those things which are dangerous sub modo, and in the second place, the distinction between the natural and the non-natural user of land. I shall then endeavour to consider the relation of these two problems to each other. But there will be no attempt to state the nature or extent of the liability that arises; for example, I shall not consider the true nature of the rule in Rylands v. Fletcher or the extent of the duty owed by him who deals with dangerous chattels, though some light may incidentally be thrown upon such matters.

Part II Legal Challenges, 7 European Antitrust Criminalization and the Challenge of Legal Certainty

2014 ◽  
Author(s):  
Whelan Peter
Keyword(s):  
Human Rights ◽  
Practical Reasons ◽  
Human Rights Law ◽  
Legal Certainty ◽  
Legal Requirement ◽  
Legal Challenge ◽  
Legal Challenges ◽  
The Impact

This chapter explores the substantive aspect of the human rights-related legal challenge to European antitrust criminalization, focusing on the impact in this context of the principle of legal certainty. Comprehensibility is advisable with any project of antitrust criminalization. When criminal antitrust sanctions are at issue, such comprehensibility is not merely advisable for theoretical or practical reasons, but is in fact a strict legal requirement: comprehensibility—as one element of the wider principle of legal certainty—is mandated by European human rights law. The examination of the challenge of legal certainty for antitrust criminalization is undertaken from three perspectives, namely: (i) legal certainty and the concept of a criminal antitrust offence; (ii) legal certainty and the substance of a criminal antitrust offence; and (iii) legal certainty and the existence of a criminal antitrust offence.

Introduction

2021 ◽  
pp. 1-37
Author(s):  
Miikka Ruokanen
Keyword(s):  
Natural World ◽  
Medieval Theology ◽  
True Nature ◽  
Divine Grace ◽  
Human Situation ◽  
The Will ◽  
God's Grace ◽  
Theological Language ◽  
Theological Conflict ◽  
To Receive

The debate between Luther and Erasmus was basically about to what degree, if any, a sinner can freely prepare him/herself for the reception of divine grace. When rejecting the bull of Pope Leo X, Luther had used an exaggerating deterministic or necessitarian theological language which alarmed Erasmus. Erasmus concentrated on the application of God’s grace into the human situation “from below”; Luther, on the contrary, focused on the theocentric nature of grace “from above.” Erasmus promoted the commonly accepted rational view of Late Medieval Catholic soteriology: “to those who do what they can God does not deny his grace,” God’s justice requires that he necessarily grant grace to anyone who freely prepares him/herself to receive it, while Luther spoke the language of Biblical realism: Although human will is free in relation to the natural world, the human being is captivated by the overwhelming power of unfaith, sin, and Satan, being incapable of changing his/her ultimate psychic orientation. In his criticism Luther rehabilitated Augustine’s teaching on the radical limits of human freedom and on the Pneumatological dynamism of divine grace, the view neglected in Medieval theology. Research on Luther’s The Bondage of the Will has not recognized the strong Pneumatological and Trinitarian accent of his theology. Instead, the contradiction between Luther and Erasmus has been explained in philosophical terms such as free will, determinism, necessity, and predestination; this has not revealed the true nature of the profoundly theological conflict between the two “forms of Christianity.” The work at hand makes critical comments on Luther research of the last hundred years and launches the task of a detailed and thorough systematic-theological analysis of the major treatise of Luther.

The Reasonableness of Proportionality in the Australian Administrative Law Context

2015 ◽  
Vol 43 (1) ◽  
pp. 59-90
Author(s):  
Janina Boughey
Keyword(s):  
Judicial Review ◽  
Separation Of Powers ◽  
Administrative Law ◽  
High Court ◽  
Administrative Action ◽  
Principle Of Proportionality ◽  
Prevailing View

Although the High Court has never ruled on the issue, the prevailing view has been that unless parliaments enact bills of rights, the principle of proportionality does not and cannot play a role in judicial review of administrative decisions in Australia. Yet in Minister for Immigration and Citizenship v Li, a majority of the High Court hinted that this may not be the case. This article analyses the reasons for Australia's longstanding reluctance to embrace proportionality in the administrative law context, and whether the decision in Li has altered this position. It then explores overseas developments in proportionality review which reveal that the principle may take on many forms in the administrative law context, with differing implications for the separation of powers. The article finds that it might be possible to accommodate certain methods of applying proportionality within Australia's judicial review framework, but not without significant broader changes to judicial review of administrative action in Australia.

scholarly journals The Existence of Legal Protection of Citizens to Government Action in Making Decision of State Administrative

2018 ◽  
Vol 54 ◽  
pp. 03001
Author(s):  
Enny Agustina
Keyword(s):  
Civil Law ◽  
Legal Protection ◽  
Administrative Law ◽  
Legal Certainty ◽  
Government Action ◽  
Legal Decisions ◽  
Library Research ◽  
The People ◽  
The Government ◽  
Dutch Literature

Government in administrative law considered as a unit, as an authorized body. Therefore, it is authorized to establish action, according to administrative law, and affect the legal circumstances of others, or to carry out legal action (under the civil law) in the meaning of government bodies legally. The dutch literature interpreted administrative with the terms administrative recht with administrative besturen. Besturen has a functional meaning to means the function of governance, and institutional or structural whole organs of government. Bestuur is an environment outside formation of regulations (regulgeving), and judicature (rechtspraak). The data of this research was collected by library research. This research aims to know the form of legal protection for the people to government action based on the concept of State Administrative Law. The result of this research shows that Legal decisions were those which fulfill formal and material requirements. This was based on the presumptive principle of rechtmatig, that was het vermoeden van rechtmatigheid or presumtio justea causa (every decisions issued by the government or the administrative of the state were considered lawful). This principle means that every decision was not revoked, unless there was a vernietiging of the court closely related to the principle of legal certainty (rechtszekerheidbeginsel).

Chance Encounters, Nietzschean Philosophy, and the Question of Improvisation

2019 ◽  
pp. 88-102
Author(s):  
Philipa Rothfield
Keyword(s):  
Will To Power ◽  
The Future ◽  
The Will ◽  
Per Se ◽  
Selection Of

This essay is an attempt to think of dancing per se as a mode of improvisation. It draws on Nietzschean philosophy as a means to conceive of dance as a dynamic flux, made up of a multiplicity of forces. Improvisation ensues from the selection of these forces and their consequent corporeal becoming. What follows is a reading of Nietzsche’s work in terms of force and the will to power, which also draws on Deleuze’s engagement with Nietzschean philosophy. Improvisation is posed in these terms, as an encounter with chance that offers and produces the force of the future.

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