scholarly journals The principle of reasonableness in civil law

2019 ◽  
pp. 11-21
Author(s):  
A. V. Konovalov
Keyword(s):  
Common Sense ◽  
Civil Law ◽  
Civil Liability ◽  
Economic Feasibility

In the article, the author substantiates the conclusion that the reasonableness of behavior of a subject of civil law is expressed in his aspiration, while exercising his rights and performing his duties, to commensurate his behavior with common sense, general perceptions of prudence and economic feasibility, rights and legally protected interests of other participants of relations regulated under civil law.Based on the analysis of legislation and practice of its application, the author comes to the conclusion that the main objectives of the principle of reasonableness in civil law include: encouragement of participants of relations regulated under civil law to behave responsibly and conscientiously; establishment of the presumption of compensatory nature and equivalence of the scope of considerations provided for under obligations arising in civil law relations; enforcement of the application of adequate measures of civil liability in case of default on or improper performance of obligations, etc. 

scholarly journals MORTGAGOR’S LIABILITY FOR THE PRESERVATION OF THE VALUE OF A MORTGAGED REAL ESTATE

TEME ◽  
2020 ◽  
pp. 065
Author(s):  
Milica Vučković ◽  
Miroslav Lazić
Keyword(s):  
Real Estate ◽  
Civil Law ◽  
Civil Liability ◽  
Due Diligence ◽  
Legal Standard ◽  
Real Risk ◽  
The Relationship

In this paper, the authors analyze the civil law liability of a mortgage debtor (mortgagor) in cases where the debtor breaches the obligation of treating the mortgaged real estate in compliance with the legal standard of acting with due diligence of “a good host” or “a good businessman,” and thus depreciates its value to the extent that jeopardizes the possibility of enforcing the claim. Given the accessory nature of mortgage which is aimed at securing the claim as the primary right, this form of civil liability and the corresponding rights of the mortgage creditor (mortgagee) are applicable before raising the issue of traditional civil law liability, which implies the maturity of the receivables and compensation for the damage sustained by the creditor. This form of civil liability may also be used preventively when there is a real risk of causing damage to the mortgagee. The relationship between civil law liability and the insurance of the mortgaged asset implies that they do not exclude but complement each other.

Southern Water Authority v Pegrum and Pegrum [1989] Crim LR 442 (DC) Facts: The respondents were charged with an offence contrary to s 31(1) of the Control of Pollution Act 1974, causing polluting matter (pig effluent) to enter a stream. The respondents reared pigs; effluent produced by the pigs was held initially in tanks and then transferred by gravity into a lagoon constructed for the purpose. The lagoon itself was emptied of liquid content for use as manure several times a year and of sediment annually. In the winter of 1987, after heavy rain, a blocked drain resulted in rain water flowing into the lagoon. A fissure developed at the top of one side of the lagoon and polluting liquid escaped, finding its way into a stream and eventually into a river. The magistrates found that the overflow from the lagoon was caused by an act of God – the ingress of rainwater – and that it was unnecessary to consider whether the respondents were negligent either in not inspecting the drain or discovering the overflow promptly enough or in not providing an adequate drain. They further found that the blocked drain causing the ingress of rainwater was an intervening event ‘breaking the chain of causation’. They dismissed the information and the prosecutor appealed by way of case stated. Held, allowing the appeal and remitting the case with a direction to convict, the following principles applied: (1) where the defendant conducts some active operation involving the storage, use or creation of material capable of polluting a river should it escape, then if it does escape and pollute, the defendant is liable if he ‘caused’ that escape; (2) the question of causation is to be decided in a common sense way; (3) a defendant may be found to have caused that escape even though he did not intend that escape and even though the escape happened without his negligence; (4) it is a defence to show that the cause of the escape was the intervening act of a third party or act of God or vis major which are the novus actus interveniens defences to strict civil liability referred to in Rylands v Fletcher (1868) LR 3 HL 330; (5) in deciding whether the intervening cause affords a defence the test is whether it was of so powerful nature that the conduct of the defendant was not a cause at all, but was merely part of the surrounding circumstances. On the facts of the present case, the active operations or positive acts of the respondents were the storage and re-use of the effluent which resulted in the formation of the toxic sediment which polluted the stream. The magistrates erred in finding that the ingress of rainwater was an act of God; an act of God is an operation of natural forces so unpredictable as to excuse a defendant all liability for its consequences. The quantity of rain could not properly be regarded in itself as an act of God and in any event the ingress of rainwater into the lagoon was the result of the overflow from the blocked drain. Although unpredictable and unforeseeable operation of animate forces can amount to an act of God (see Carstairs v Taylor (1870) LR 6 Exch 217), there was no factual basis for such finding in the present case. The respondents submitted that the blocked drain was an effective intervening cause relegating the respondent’s effluent operation to a mere surrounding circumstance; it was sought to distinguish Alphacell Ltd v Woodward [1972] AC 824 on the basis that in

1996 ◽  
pp. 143-143
Keyword(s):  
Common Sense ◽  
Civil Liability ◽  
Heavy Rain ◽  
Rain Water ◽  
Third Party ◽  
Liquid Content

Liability in Civil Law

2021 ◽  
pp. 257-310
Keyword(s):  
Growth Hormone ◽  
Oral Contraceptives ◽  
Pertussis Vaccine ◽  
Medical Devices ◽  
Civil Law ◽  
Human Growth ◽  
Breast Implants ◽  
Civil Liability ◽  
Mmr Vaccine ◽  
Metal On Metal

This chapter addresses various issues in relation to civil liability associated with the regulation and use of medicines and medical devices. It looks at several cases or potential cases that involve medicinal products and medical devices alleged to have caused injury. It also mentions civil claims relating to thalidomide, oral contraceptives, Opren, pertussis vaccine, benzodiazepines, blood products, human growth hormone, MMR vaccine, Seroxat, anti-convulsants, PIP breast implants, and metal-on-metal hip implants. The chapter discusses the liability to those injured as a result of defective medicines and the principles of causation applicable to this context, as well as the potential liability of regulators of medicines. It reviews the principal types of legal claim that are made in respect of allegedly defective medicines.

criminal law, Roman

2017 ◽  
Author(s):  
Andrew M. Riggsby
Keyword(s):  
Criminal Law ◽  
Common Sense ◽  
Civil Law ◽  
The State ◽  
Criminal Courts ◽  
Public Office ◽  
The Core ◽  
Over Time ◽  
Agreed Definition ◽  
Personal Crimes

“Crime” lacks a fully agreed definition across modern societies, but competing versions tend to stress notions like punishment, protection of public or collective interests, and a pervasive role for the state in proceedings. Over time the Romans used a series of different procedures (successively, trial before the assemblies, by specialized juries, or by imperial inquisitors) to try most of their offences that would be more or less recognizably criminal today. Substantively, the core of this group were offences against the state in an institutional sense (e.g., sedition, electoral malpractice, abuse of public office, forgery). Over time it also came to include an increasing number of (personal) crimes of violence. Some core modern criminal offences such as forms of theft and forgery of private documents came to be grouped in with these only at a very late date and incompletely. “Moral” offences that are treated as criminal more sporadically today (e.g., use of intoxicants, gambling, prostitution) were not criminalized. Penalties in earlier periods included fines, civic disgrace, and exile; later periods introduced finer differentiation of penalties, as well as execution. Imprisonment was not a formal penalty. Roman criminal law had a deeper and more complicated relationship to politics than did the private, civil law. This is true both in the sense that the jurists were relatively uninterested in the criminal law, especially before the late 2nd century ce, and that known trials in the criminal courts seem to have been little governed by niceties of the law. Common-sense notions of guilt and innocence were relevant, but not legal technicalities.

scholarly journals PEMBEBANAN TANGGUNG JAWAB PERDATA KEPADA KEPALA DAERAH AKIBAT WANPRESTASI OLEH KEPALA DINAS

2018 ◽  
Vol 11 (2) ◽  
pp. 209
Author(s):  
Bachtiar Bachtiar ◽  
Tono Sumarna
Keyword(s):  
Research Methods ◽  
Civil Law ◽  
Secondary Data ◽  
Civil Liability ◽  
The State ◽  
Court Decision ◽  
Legal Issue ◽  
Legal Research ◽  
Breach Of Contract ◽  
State Administration

ABSTRAKWanprestasi dalam perjanjian konstruksi kerap ditemui dalam praktik, baik yang dilakukan oleh pemberi pekerjaan, maupun pihak pelaksana pekerjaan. Konsekuensinya, pihak yang melakukan wanprestasi dibebankan memulihkan kerugian yang timbul dari pelaksanaan perjanjian. Hal demikian tercermin dalam Putusan Nomor 72/PDT.G/2014/PN.TGR, di mana Kepala Dinas Kesehatan Kota Tangerang Selatan selaku pihak pemberi pekerjaan proyek terbukti melakukan wanprestasi. Menarik untuk dicermati, majelis hakim dalam putusannya justru membebankan Walikota Tangerang Selatan untuk bertanggung jawab secara keperdataan. Isu hukum yang hendak dijawab dalam tulisan ini, terkait apakah penafsiran hakim dalam Putusan Nomor 72/PDT.G/2014/PN.TNG tentang pembebanan tanggung jawab perdata kepada kepala daerah akibat wanprestasi yang dilakukan oleh kepala dinas telah sesuai dengan ajaran hukum administrasi negara, dan ajaran hukum perdata. Untuk menjawab isu hukum tersebut, penulis menggunakan metode penelitian hukum normatif dengan bersandar pada data sekunder yang diperoleh melalui studi kepustakaan. Hasil penelitian ini menunjukkan bahwa majelis hakim telah keliru dalam menafsirkan konsep pertanggungjawaban kepala daerah. Menurut ajaran hukum administrasi negara, walikota selaku kepala daerah tidak dapat dimintai tanggung jawab secara perdata akibat wanprestasi yang dilakukan kepala dinas. Demikian pula dari perspektif Pasal 1340 KUHPerdata, walikota bukanlah merupakan pihak dalam pelaksanaan perjanjian yang dibuat oleh kepala dinas, sehingga tidak dapat dibebani tanggung jawab secara keperdataan.Kata kunci: tanggung jawab perdata, kepala daerah, wanprestasi. ABSTRACT Breach of contract in construction agreements is often found in practice, whether carried out by the employer, or the implementing party. As a consequence, the defaulting party is charged to recover losses arising from the implementation of the agreement. This was reflected in Court Decision Number 72/PDT.G/2014/ PN.TGR, which is the Head of South Tangerang City Health Office, as the project employer, has been proven in breach of contract. It is interesting to note that the panel of judges in its decision actually charged the Mayor of South Tangerang with a contractual liability. The legal issue in this paper is whether the interpretation of judges in Court Decision Number 72/PDT.G/2014/ PN.TNG concerning the imposition of civil liability to the regional head due to default committed by the head  of office is in accordance with the teachings of the law of state administration and civil law. To answer these issues, the author uses normative legal research methods based on secondary data obtained through literature studies. The results of the analysis show that the panel of judges has erred in interpreting the concept of regional head accountability. According to the teachings of the state administration law, the mayor as the head of the region cannot be privately liable for the default committed by the head of office. Likewise, from the perspective of Article 1340 of the Civil Code, the mayor is not a party to the implementation of the agreement made by the head of office, therefore civil liability cannot be burdened to him. Keywords: civil liability, regional head, default.

scholarly journals PROSPECTIVE DIRECTIONS OF IMPROVEMENT OF CIVIL LIABILITY

2021 ◽  
pp. 141-146
Author(s):  
O. Zozulyak ◽  
Y. Paruta
Keyword(s):  
Artificial Intelligence ◽  
Civil Rights ◽  
Scientific Community ◽  
Autonomous Robots ◽  
Civil Law ◽  
Limited Liability ◽  
Civil Liability ◽  
Scientific Article ◽  
Simultaneous Application ◽  
Definition Of

The article is devoted to the study of such an important area of civil law as civil liability. The scientific article examines the definition of "civil liability". It is emphasized that civil liability consists of many aspects, including a sanction, a new obligation, the replacement of an unfulfilled obligation with a new one, and so on. It is supported the position that the application of civil liability is voluntary, but the possibility of using jurisdictional forms of liability is not excluded. The authors of the article agree with the approach proposed in the doctrine on the expediency of the transition to the so-called behavioral concept of guilt. The importance of the theoretical demarcation of the institution of ensuring the fulfillment of obligations and measures of civil liability is emphasized. The possibility of simultaneous application of different forms of civil liability is allowed. It is argued that it is appropriate to change the approach to determining and compensating of non-pecuniary damage. It is needed because compensation for non-pecuniary damage depends on the violation of a person's civil right, and not on the envisaged possibility of compensation for non-pecuniary damage in law or contract. The authors of the article positively perceive the position on the need for consolidate the provisions on the civil nature of the liability of officials of corporations.  It is focused on the need to consolidate the subsidiary liability of members of limited liability companies in the event of bringing the failure through their fault. The position to the prospects of further scientific research in the field of responsibility of autonomous robots and artificial intelligence is expressed. It is concluded that due to the multi-vector nature of the concept of "civil liability" there is a need for further meticulous attention of the scientific community to the institution of private liability. In particular, it is necessary to develop qualitative criteria for distinguishing between the institution of abuse of subjective civil rights and the institution of civil liability; research of the peculiarities of the responsibility of such legal entities as owners of significant participation in corporations, supervisors of banking groups and other specific entities, etc.

CONTRACTUAL AND NON-CONTRACTUAL LIABILITY IN CIVIL LAW: CONCEPT AND RELATIONSHIP

2020 ◽  
Author(s):  
Хаджи-Мурад Абдулаевич Хамидов
Keyword(s):  
Civil Law ◽  
Civil Liability

В статье рассматриваются такие разновидности гражданско-правовой ответственности как договорная и внедоговорная. Приводятся их определения и соотношение. The article considers such types of civil liability as contractual and non-contractual. Their definitions and correlation are given.

Self-placement of Complex Financial Instruments by Banks to Retail Clients and Civil Liability Issues – An Overview of Greek Case-Law

2021 ◽  
Vol 18 (1) ◽  
pp. 34-75
Author(s):  
Anna O. Mitsou
Keyword(s):  
Civil Law ◽  
Civil Liability ◽  
Case Law ◽  
The Other ◽  
Recent Case ◽  
Financial Instruments ◽  
Securities Litigation ◽  
Retail Investor ◽  
The One ◽  
The Eu

Abstract This study focuses on self-placement of complex financial instruments to retail clients which is often associated with mis-selling practices. Recent case law in Greece concerning distribution Of “Coco” bonds by a Cypriot bank to its clients reveals, on the one hand, the stand Of Greek Courts concerning the interpretation of certain ambiguous MiFID I Conduct of Business (COB) rules and, on the other, their interplay with civil law duties and the intricacies that arise in order to substantiate a civil liability claim for breach of the COB rules, such as the difficulty to prove causation in securities litigation. The study further evaluates the new MiFID II/MiFIR provisions that relate to the practice of self-placement and supports the adoption of a civil liability regime at the EU level, as well as other alternatives to further enhance retail investor protection.

scholarly journals The Civil Law Liability of Taxi Aggregators

CIVIL LAW ◽  
2021 ◽  
Vol 1 ◽  
pp. 3-7
Author(s):  
Sergey G. Dolgov ◽  
Keyword(s):  
Civil Law ◽  
Civil Liability ◽  
Road Accidents ◽  
Taxi Drivers ◽  
Federal Level ◽  
Judicial Practice ◽  
Points Of View ◽  
To Receive

Within the framework of this article, an analysis of the points of view of the authors, who in their works touched on the problems associated with the impossibility of bringing taxi aggregators to civil liability, was carried out, it was revealed that the current regulatory legal acts do not contain a direct rule providing for the liability of taxi aggregators, it was concluded that that the absence of legislation at the federal level creates problems for victims who have suffered from the dishonest actions of taxi drivers to receive compensation for the damage to life and health caused by road accidents, an analysis of judicial practice confirming the problem of bringing taxi aggregators to justice.

scholarly journals Civil Liability for Damage Caused by a Physical Defect of an Autonomous Car in Polish Law

2020 ◽  
Vol 29 (5) ◽  
pp. 165
Author(s):  
Jolanta Loranc-Borkowska
Keyword(s):  
Active Control ◽  
Autonomous Vehicles ◽  
Civil Law ◽  
Civil Liability ◽  
Effective Protection ◽  
Law System ◽  
Levels Of Automation ◽  
Polish Law ◽  
Definition Of ◽  
Civil Law System

<p>The issue of liability for damage caused by the movement of a defective autonomous car is multi-faceted and multi-problem. The purpose of the article is to investigate the issue of liability for damage caused by a physical defect in an autonomous car in the Polish civil law system and determining whether the currently existing civil law regulations are sufficient for effective protection of victims. The paper begins with a definition of an autonomous car – that is a vehicle enabled with technology which has the capability of operating without the active control or monitoring of a natural person. Next, the levels of automation (from 0 to 5) are presented. The following describes the concept of a physical defect. The next part is an analysis of the theories that can be applied to the problem of autonomous vehicles, along with an assessment of the effects of their use. Finally, conclusions from the analysis of the title issue are included.</p>

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