scholarly journals The Application of Caveat Emptor and Caveat Venditor Doctrines from Civil and Islamic Perspectives

2021 ◽  
Vol 28 (2021) ◽  
pp. 92-103
Author(s):  
Muhammad Hafiz Mohd. Shukri ◽  
Rahmah Ismail ◽  
Ruzian Markom
Keyword(s):  
Negative Impact ◽  
Common Law ◽  
Court Cases ◽  
Legal Research ◽  
Caveat Emptor ◽  
Consumer Law ◽  
Depth Analysis ◽  
Long Time ◽  
Research Findings ◽  
The Common

Since a long time ago, consumers have never been completely safe from exposure to the risk of purchasing defective products, which may cause an adverse effect on them. The introduction of the doctrines of caveat emptor and caveat venditor became a part of the common law to resolve disputes between manufacturers, sellers, and consumers. This study therefore aims to analyze the application of the caveat emptor and caveat venditor doctrines according to civil and Islamic perspectives to see how far the application of both doctrines can provide justice to consumers. Utilizing doctrinal approach based on the methodology of qualitative legal research, this study involves in-depth analysis of statutory provisions, court cases, Quranic texts, hadiths, and the opinions of Muslim scholars. The research findings were analyzed through content analysis and critical analysis methods. This study has proven that there are legal problems with regards to the application of the caveat emptor doctrine and its resulting negative impact on consumers, thus leading to the formation of the caveat venditor doctrine. Although the term “caveat venditor” and its definition are not expressly mentioned in the Qur’an and the hadiths, the application of the doctrine is seen to have a strong foundation in Islam. The results of this study are expected to contribute significant new knowledge in the field of consumer law since a comparative analysis of the application of both doctrines according to civil and Islamic perspectives is still lacking, especially in cases involving the selling of defective products.

Bona fides and ubuntu – A response to Dale Hutchison

Acta Juridica ◽  
2021 ◽  
Vol 2021 ◽  
pp. 85-106
Author(s):  
J Barnard-Naudé
Keyword(s):  
South African ◽  
Common Law ◽  
Standard Form ◽  
Contract Law ◽  
Law School ◽  
Point Of View ◽  
Long Time ◽  
School Faculty ◽  
The Common ◽  
Faculty Meeting

This paper is a response to Dale Hutchison’s recent arguments about the role of fairness in contract law after the Constitution. From the point of view of transformative constitutionalism, the paper argues that the fairness ‘debate’ in the South African law of contract should be approached as what it so patently is, namely, as evidence of a deep ideological conflict that has existed in our law of contract for a very long time, and that this debate now exists within the context of a larger debate about the appropriate transformative reach of the Constitution. The argument takes the form of two ‘dangerous supplements’ to Hutchison’s discourse. The first of these supplements contends that indeterminacy is a symptom of the common law itself, rather than a result of contract law’s contact with the Constitution. The second dangerous supplement suggests a responsible judicial engagement with bona fides and ubuntu, one that can exploit the strengths of both the common law and the Constitution and that understands good faith and ubuntu to be ‘inter-linking’ constitutional values that should be enlisted in unison or at least in resonance when it comes to the question of fairness in our contemporary law of contract. In conclusion, I offer a reading of Hutchison’s own politics of contract law and contend that his is an altruistic politics committed to the standard form. I contend that this politics of contract law is consistent with a transformative understanding of the post-apartheid legal order. ‘Law, like every other cultural institution, is a place where we tell one another stories about our relationships with ourselves, one another, and authority. In this, law is no different from the Boston Globe, the CBS evening news, Mother Jones, or a law school faculty meeting. When we tell one another stories, we use languages and themes that different pieces of the culture make available to us, and that limit the stories we can tell. Since our stories influence how we imagine, as well as how we describe, our relationships, our stories also limit who we can be’.

Third Party Beneficiary: A Comparative Analysis

1976 ◽  
Vol 11 (3) ◽  
pp. 315-338 ◽  
Author(s):  
Gabriela Shalev
Keyword(s):  
Comparative Analysis ◽  
Legal System ◽  
Common Law ◽  
Third Party ◽  
Critical Examination ◽  
Legal Research ◽  
General Part ◽  
The Common ◽  
Comparative Survey ◽  
The Right

Chapter 4 of the new Israeli Contracts (General Part) Law, 1973, introduces the concept of a contract in favour of a third party, while granting express recognition to the right of a third party beneficiary. Even those, (including the author) who maintain, that the right of a third party beneficiary could and should be derived, even before the commencement of the new Law, from the general principles and premises of the old Israeli law of contract, cannot fail to see in the above-mentioned chapter an important innovation in the Israeli legal system.This paper is a comparative analysis of the institution of third party beneficiary. The analysis will consist of a presentation and critical examination of the central concepts and doctrines involved in the institution under discussion, and it will be combined with a comparative survey of the arrangements adopted in various legal systems. The choice of this approach stems from the particular circumstances of the new legislation.While in most countries, comparative legal research is a luxury, in Israel it is a necessity. The new legislation in private law is inspired to a great extent by Continental codifications. As far as the law of contract is concerned, Israel is now in the process of becoming a “mixed jurisdiction”: departing from the common law tradition and technique, and heading towards an independent body of law, derived from various sources, mainly Continental in both substance and form.

10. Distributions and maintenance of capital

2019 ◽  
pp. 252-281
Author(s):  
Derek French
Keyword(s):  
General Principle ◽  
Common Law ◽  
Court Cases ◽  
Share Capital ◽  
Capital Transfer ◽  
The Common ◽  
A Company

This chapter examines the controls imposed on return of a company’s capital to its members, first by considering the common law general principle that return of capital to shareholders is illegal unless permitted by statute. It then discusses the problem of how to distinguish between a legal distribution of profits and an illegal return of capital; transfer of profits to a capital redemption reserve and use of profits to pay up bonus shares; company’s issuance and redemption of redeemable shares or purchase of its own shares; purchased shares as treasury shares; and how a company may reduce its issued share capital by special resolution. The chapter also looks at capitalisations and employees’ share schemes. It includes analysis of three court cases that are particularly significant to distributions and the maintenance of capital.

scholarly journals Defining and Describing What We Do: Doctrinal Legal Research

2012 ◽  
Vol 17 (1) ◽  
pp. 83 ◽  
Author(s):  
Terry Hutchinson ◽  
Nigel Duncan
Keyword(s):  
Research Methodology ◽  
Research Method ◽  
Common Law ◽  
Legal Research ◽  
Interdisciplinary Work ◽  
Applied Logic ◽  
The Core ◽  
The Past ◽  
Grant Applications ◽  
The Common

The practitioner lawyer of the past had little need to reflect on process. The doctrinal research methodology developed intuitively within the common law — a research method at the core of practice. There was no need to justify or classify it within a broader research framework. Modern academic lawyers are facing a different situation. At a time when competition for limited research funds is becoming more intense, and in which interdisciplinary work is highly valued and non-lawyers are involved in the assessment of grant applications, lawyer-applicants who engage in doctrinal research need to be able to explain their methodology more clearly. Doctrinal scholars need to be more open and articulate about their methods. These methods may be different in different contexts. This paper examines the doctrinal method used in legal research and its place in recent research dialogue. Some commentators are of the view that the doctrinal method is simply scholarship rather than a separate research methodology. Richard Posner even suggests that law is ‘not a field with a distinct methodology, but an amalgam of applied logic, rhetoric, economics and familiarity with a specialized vocabulary and a particular body of texts, practices, and institutions ...’.1 Therefore, academic lawyers are beginning to realise that the doctrinal research methodology needs clarification for those outside the legal profession and that a discussion about the standing and place of doctrinal research compared to other methodologies is required.

Meeting the Needs of Comparative and International Legal Research in Australia: A Library Project—A Report and Proposal*

1992 ◽  
Vol 20 (3) ◽  
pp. 238-264
Author(s):  
Gerard C. Rowe ◽  
Rob Brian
Keyword(s):  
Legal System ◽  
Common Law ◽  
Comparative Law ◽  
Legal Systems ◽  
Legal Research ◽  
Consumer Law ◽  
Rules And Principles ◽  
Potential Benefits ◽  
Foreign Commerce ◽  
International Interactions

Common Law systems have always practiced a fairly consistent comparative legal research and scholarship. Initially through the mere exportation of rules and principles from England this was a somewhat centripetal comparative law but it has passed through various modes of radial, circumferential, centrifugal and ultimately polycentric comparisons and cross-fertilizations. Nevertheless, this exercise in comparative law, also in Australia, has remained largely within the boundaries of the Common Law world. It is no longer possible for legal research to be conducted wholly within the boundaries of a single legal system, even that of the enlarged Common Law. Legal researchers need to look beyond the borders of their own jurisdictions. Hardly any legal system today is capable of operating without international interactions requiring a knowledge of foreign legal systems, and many legal problems, or socio-economic problems which law must help to solve, may find useful models elsewhere. In Australia there are needs for reform in fields such as intellectual property, banking or consumer law, and for providing qualified advice including predictions of developments in foreign legal systems to ensure that foreign commerce and trade is fully informed of potential benefits and disadvantages to be found under foreign law. Australia must also be able to take its proper place in fields such as international environmental protection, and to take advantage of potentially beneficial developments in dispute resolution techniques. All of these situations are ones in which, by looking outside their national and even Common Law framework, Australian legal researchers will be better placed to provide concrete benefits to Australian society.

10. Distributions and maintenance of capital

2021 ◽  
pp. 246-276
Author(s):  
Derek French
Keyword(s):  
General Principle ◽  
Common Law ◽  
Court Cases ◽  
Share Capital ◽  
Capital Transfer ◽  
The Common ◽  
A Company

This chapter examines the controls imposed on return of a company’s capital to its members, first by considering the common law general principle that return of capital to shareholders is illegal unless permitted by statute. It then discusses the problem of how to distinguish between a legal distribution of profits and an illegal return of capital; transfer of profits to a capital redemption reserve and use of profits to pay up bonus shares; company’s issuance and redemption of redeemable shares or purchase of its own shares; purchased shares as treasury shares; and how a company may reduce its issued share capital by special resolution. The chapter also looks at capitalisations and employees’ share schemes. It includes analysis of three court cases that are particularly significant to distributions and the maintenance of capital.

16. Equitable maxims, doctrines, and remedies

2020 ◽  
pp. 563-606
Author(s):  
Gary Watt
Keyword(s):  
Supreme Court ◽  
Special Function ◽  
Common Law ◽  
Legal Rights ◽  
Court Cases ◽  
Very Old ◽  
The Common ◽  
Court Of Chancery ◽  
Over Time ◽  
The Way

In general, the leading court cases on equitable doctrines and remedies are very old. The fact that they still have the power to determine modern cases proves that equity is inherently adaptable. Originally developed by the old Court of Chancery in constructive competition with the common law courts, equity is now applied (since the Judicature Acts 1873–1875) by the unified Supreme Court of England and Wales. In addition, equity, as a dimension of law, has retained its special function of restraining or restricting the exercise of legal rights and powers in certain cases. This chapter considers particular principles (including maxims), doctrines (including conversion, satisfaction, performance, and election), and remedies that have been developed over time to help predict the way in which equity will operate in various types of cases.

3. Consent

2018 ◽  
Author(s):  
Jo Samanta ◽  
Ash Samanta
Keyword(s):  
Public Policy ◽  
Information Disclosure ◽  
Common Law ◽  
Mental Capacity ◽  
Best Interests ◽  
Court Cases ◽  
Essential Information ◽  
Mental Capacity Act 2005 ◽  
The Common ◽  
Mental Capacity Act

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter deals with consent as a necessary precondition for medical treatment of competent adults. It provides an overview of the common law basis of the Mental Capacity Act 2005, followed by discussion of issues relating to information disclosure, public policy, and the key case of Montgomery. It considers the statutory provisions for adults who lack capacity, exceptions to the requirement to treat patients who lack capacity in their best interests, and consent involving children under the Children Act 1989. Gillick competence, a concept applied to determine whether a child may give consent, is also explained. Relevant court cases, including Gillick, which gave rise to the concept, are cited where appropriate.

scholarly journals Railway Sparks: Technological Development and the Common Law

2019 ◽  
Author(s):  
Mark L Wilde
Keyword(s):  
Technological Development ◽  
New Technology ◽  
Common Law ◽  
Strict Liability ◽  
Social Changes ◽  
Industrial Age ◽  
Depth Analysis ◽  
Railway Industry ◽  
The Common ◽  
Negative Side Effects

Abstract The railways have been described as Britain's ‘gift to the world’. The sheer scale, ambition and audaciousness of the engineering still inspires awe and reshaped the landscape forever. They brought towns and cities closer together and instigated irreversible economic, political and social changes. However, as is often the case with a new technology, the railways also brought negative side effects, one of the most destructive of which was fire damage caused by sparks and lighted coals from steam locomotives. The railway sparks issue has long served as a case study for the economic analysis of tort and the issue of where the loss should fall. Nevertheless, much of the analysis has lacked an appreciation of how the courts actually resolved these disputes. This has attracted some comment from tort scholars and legal historians but has never been the subject of a sustained piece of doctrinal or historical research. This article constitutes the first truly comprehensive and in-depth analysis of the cases (both reported and unreported). The study has yielded new insights into the main arguments (and in particular the need to fit spark arrestors to locomotives), the attitude of the railway industry to the problem and the role played by such cases in key doctrinal developments such as strict liability. Moreover, it examines how railway interests in Parliament were able to stymy attempts to replace the common law with a much more onerous strict liability regime under statute. As such it affords important new insights into how law responded to some of the new challenges of the Industrial Age.

Droit Administratif

1929 ◽  
Vol 3 (3) ◽  
pp. 355-364
Author(s):  
Achille Mestre
Keyword(s):  
Great Britain ◽  
Common Law ◽  
Good Reason ◽  
Administrative Law ◽  
Considerable Time ◽  
Judicial Practice ◽  
Long Time ◽  
The Common ◽  
English Law ◽  
Short Time

A French jurist who seeks to explain to the English public the principles governing administrative law as they are understood in France, is beset at the same moment by conflicting feelings of uneasiness and confidence. He recollects at the outset that, according to a classical doctrine which has been true for a considerable time and which is expressed in Dicey's works in the most brilliant formula, England does not possess to any extent in its legal organization a system of ideas which could have any claim to be compared to the French droit administratif or indeed could be regarded as parallel to it with any exactness. Is it not therefore presumptuous for a Frenchman to attempt to explain to English lawyers the leading characteristics of an institution which might certainly appear to them unusual, if not grotesque? And yet when a traveller has stayed a short time in Great Britain, has talked with the recognized authorities of that country, has asked questions, has made notes, has dipped into the recent works on English law, has glanced with an unprejudiced eye at the whole trend of legal institutions at the present day, he cannot help being struck by a certain lack of harmony between the official doctrine, which for such a long time has had good reason to say that there is no administrative law in England, and the judicial practice which, owing to the creation of new jurisdictions, to the introduction of new forms of procedure, and to the needs originating in ihe obvious inadequacy of inherited views, seems to pave the way for the introduction into England of a droit administratif and the recognition of principles derogatory to the common law—principles which are adapted to playing in English law the part which droit administratif played in the French common law chiring the nineteenth century, and still plays.

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