scholarly journals Applying a specific contractual structure in favor of a third party to a passenger carriage contract

2020 ◽  
Vol 16 (1) ◽  
Author(s):  
Diana Sergeevna Fedotova
Keyword(s):  
Systematic Approach ◽  
Civil Law ◽  
Legal Regulation ◽  
Third Parties ◽  
Third Party ◽  
Legal Structure ◽  
Scientific Justification ◽  
Minor Children ◽  
Similarities And Differences ◽  
Contractual Structures

The article considers the possibility of drawing a passenger carriage contract based on the model of beneficiary contracts. In the case of the conclusion by organizations of carriage contracts for organized groups of passengers, a specific contractual structure in favor of a third party may be applied. Minor children can be considered third parties in whose favor a passenger carriage contract is concluded. The contradictions of the current civil legislation regarding the consideration of minor children as passengers have been revealed. The methodological basis of the study includes the following methods. A systematic approach is used to identify the role and place of the passenger carriage contract in the system of civil law contracts, as well as contradictions in civil law. Comparison is actively used to identify similarities and differences in the legal regulation of the passenger carriage contract under the legislation of various countries. Legal modeling is used in the analysis of specific contractual structures, which are legal models, and in modeling the structure of the passenger carriage contract. Methods of formal and dialectic logic are used as well. The contribution to the study of the issue is associated with the scientific justification of the need to improve the legal structure of the passenger carriage contract according to the contract model in favor of a third party.

scholarly journals KONTRAKT SPÓŁKI JAKO PODSTAWA ODPOWIEDZIALNOŚCI IN SOLIDUM W PRAWIE RZYMSKIM

2017 ◽  
Vol 3 (1) ◽  
pp. 43
Author(s):  
Zuzanna Służewska
Keyword(s):  
Civil Law ◽  
Third Parties ◽  
The Other ◽  
Third Party ◽  
Roman Law ◽  
Joint And Several Liability ◽  
Internal Relation ◽  
Common Opinion ◽  
Formal Procedure ◽  
The Common

THE CONTRACT OF PARTNERSHIP AS A BASE OF IN SOLIDUM LIABILITY IN ROMAN LAWSummary In the modern civil law joint and several liability of partners in a partnership is a rule rather than an exception. According to the common opinion this concept did not originate in the Roman law but was first invented in the medieval times by glossators and commentators. The Roman partnership created only a private relation between partners (who, due to a conclusion of that contract were reciprocally obliged to act together in accordance with a good faith in order to conduct common business and to divide profits and bear losses in proportion to their respective shares) and its conclusion did not affect their liability against third parties. The partners had no right to bind themselves contractually to any third parties, unless they all acted jointly (in this case, however, their joint representation was derived from their expressed declarations and not the existence of a contract o f partnership). Thus, any commitment made by an individual partner, even if made within the scope of a partnership having obtained other partners’ consent, was treated as a personal debt of this partner and the remaining partners were not liable against his contractor. Then, of course, the partner who made a commitment (acting within the partnership’s business) could claim a part of what he had paid to a third party from other partners in proportion to their respective shares in the common enterprise.Such a solution was necessary because of the purely consensual character o f the Roman partnership and the lack of any formal procedure of its conclusion and dissolution. The existence of that contract could not affect the model of the external liability of partners, because it would be too risky for third parties, which had no possibility to make sure if a contract of partnership between some persons had been actually concluded or not. Thus, the role of a contract of partnership in the Roman law was only limited to determine a mutual liability o f partners, to specify their respective rights and obligations and to define the scope of their liability against other partners.There are only a few written sources concerning so called specific kinds of partnership characterized by untypical joint and several responsibility of partners. Moreover these texts are not very clear and are difficult to interpret, so the issue of specific kinds of a partnership is a matter of doubts among Romanists. Some authors even believe that the specific types of partnership did not exist in the Roman law at all.It should be firstly observed that the texts regarding a contract of partnership itself (the texts included in the title pro socio of Justinian’ Digest) did not raise the question of the external liability of partners because they were devoted to internal settlement o f accounts within sociu Thus, taking into account only these texts one cannot ascertain that a conclusion of a contract of partnership could not affect in any way the model of the partners’ liability against third parties.Secondly, the other texts concerning the regulation of conducting an economic activity in the Roman law (actio institoria, actio exercitoria and actio de peculio) present some regularity in an introduction of joint and several liability of debtors.On the one hand that model of the liability was introduced in situations in which protecting safety of trade required that the creditor be able to claim a whole amount o f the debt from one person only.On the other hand this model of liability could be introduced only in these cases in which some internal relation existed between several debtors. On the grounds of such relations the debtor who satisfied in full the creditor’s claim could sue other debtors in order to recover their respective parts in the debt. In the Roman law that internal relation that guaranteed the possibility of a recourse could be either a joint-ownership or a partnership.Having considered that, one may say that the texts concerning specific kinds o f partnership do not prove existence of any special type of societas. These sources regard only the situations when a joint and several liability between several debtors was introduced because it was justified by the circumstances: that is the necessity to protect the safety of trade on one hand and the existence of the contract of partnership that guaranteed a possibility to realize the recourse, on the other.In conclusion one may say that although a closing of a contract of partnership did not create a joint and several liability of partners, in some cases its existence was decisive for introducing this model of liability since it guaranteed to every party a possibility to act against the others to obtain the recourse. Thus, Roman jurisprudence made an important step towards the future introduction o f joint and several liability of partners as a rule of a civil law.

scholarly journals Peculiarities of Civil Law Status of Customs Intermediary under the Legislation of Ukraine and the EU

2020 ◽  
pp. 226-233
Author(s):  
Dmytro SHUTIAK
Keyword(s):  
Public Relations ◽  
Economic Activity ◽  
National Level ◽  
Civil Law ◽  
Legal Regulation ◽  
Third Party ◽  
Related Services ◽  
Legal Relationship ◽  
Provision Of Services ◽  
The Eu

The article explores the features of civil law regulation of customs mediation under the legislation of Ukraine and the EU. The author identifies the characteristics that distinguish customs mediation from similar institutions in other areas of management. The author substantiates the position that the legal relationship established between customs authorities and participants of foreign economic activity with the participation of a third party is a type of economic binding legal relationship, i.e. the legal relationship for the provision of intermediary services. Within the framework of customs legal relations, contracts of a civil law nature are considered as a specific way of the state's influence on this sphere of public relations. With the participation of customs intermediaries, certain economic and legal relations are established between customs authorities and participants in foreign economic activity. The content of customs intermediary activities should be determined through the provision of services mediated by civil law agreements, representing the interests of foreign economic activity in relations with customs authorities, the provision of customs and related services, the implementation of legally significant actions aimed at customs procedures. The analysis of EU legislation in the study area led the author to conclude that at the EU level not only general qualification requirements for customs intermediaries are set, but also principles, values and rules of conduct that encourage customs intermediaries to achieve high standards of professional ethics and proper implementation their responsibilities. Given the specifics of customs mediation in the EU, the author concludes that at EU level it is impossible to unify the standards of customs services, so to date access to the profession of customs agent in each entity, the Member State is subject to national jurisdiction with its requirements for candidates to the level of their skills and knowledge. The author emphasizes that at the national level it is advisable to integrate certain elements of the legal regulation of customs brokerage to ensure competitiveness, provide quality services and overcome gaps in legislation.

scholarly journals Expansion of party replacement designs in the commitment in the civil law of Ukraine

2020 ◽  
pp. 298-305
Author(s):  
Venetskay Marina
Keyword(s):  
Property Rights ◽  
Civil Law ◽  
Legal Regulation ◽  
Contract Law ◽  
Civil Code ◽  
Third Party ◽  
European Legislation ◽  
Economic Practice ◽  
Direct Indication ◽  
Additional Costs

The article is devoted to improving the legal regulation of the replacement of a party to an obligation in the civil legislation of Ukraine, taking into account the needs of civilian turnover and economic practice. The reasonability of the additional settlement of issues of reimbursement of contracts for the assignment of claims and compensation for additional costs associated with such a concession, as well as the introduction of the institution of the assignment of contracts into Ukrainian civil law, is argued. The lack of a direct indication of the law on the remuneration of a claim for assignment of a claim has led to the emergence of a number of interpretations of such a transaction as being non-remunerative. Meanwhile, according to the basic provisions of the Civil Code of Contract - the contract is repayable, unless otherwise stipulated by the contract, law or does not follow from the essence of the contract. In addition, the consequence of concluding a deed of assignment claim is the acquisition by the new creditor of property rights that are property, so the free acquisition of property must be considered as a gift, an indication that is absent in the legislation. Unknown to the contract law of Ukraine and the civil institute of contract withdrawal, which is sufficiently widespread in economic practice and is regulated by European legislation. . The meaning of a contract cancellation is to transfer from one person to another the rights and obligations under the contract with a third party, ie it is a simultaneous combination of the cancellation of claims and the transfer of debt. It is necessary to extend the methods (structures) of transfer of debt through the introduction in Ukrainian civil law of the methods known since Roman times, in particular, the expropriation as a separate construction of the replacement of the debtor in the obligation, which occurs on the initiative of the creditor and on the basis of the agreement concluded between such credit and the new debtor in the absence of the need to obtain such consent from the original debtor; and intercession as a construct, when a new debtor is joined to the obligation (which may be divisible) and each of them must fulfill the obligation in its share.

Conceptual features of a public contract in modern civil law

2020 ◽  
Vol 7 (1) ◽  
pp. 22-33
Author(s):  
Andrey G. Ananev
Keyword(s):  
Civil Law ◽  
Legal Regulation ◽  
Legal Principles ◽  
The Public ◽  
Correct Definition ◽  
Public Contracts ◽  
Public Character ◽  
Definition Of ◽  
Contractual Structures ◽  
Public Contract

The civil legislation reform affects the provisions on public contracts. This article deals with the issues surrounding public contract qualification under the conditions of modern regulation. A characteristic feature of modern regulation and theoretical provisions of civil law is the lack of unified approaches to defining the public contract concept, its essence, and accompanying conditions. In practice, there are various situations wherein the legislator does not give clear instructions on certain aspects of contracts that have a public character. This determines the theoretical and practical relevance of examining this area. The article analyzes the main defining features of the designated contractual structure and examines the features of expression of public-legal principles in legal regulation in these contractual relations. The methodological basis of the research is the analysis of normative material, civil law theory and certain aspects of law enforcement on public contracts norms. The article highlights the legal and conceptual aspects of public contract institution in the context of modern legal regulation. The task of further research on this issue is not so much to find one correct definition of this agreement for the legislator, but rather to fix the individualizing features in the law, by integrating them either into the conceptual apparatus or by directly fixing them in the normative act text. The author attempts to systematize the relevant features and to identify the distinct principles for differentiating a public contract with the related contractual structures. The article also presents clear criteria for differentiation and the hierarchy of the application of certain rules to relations arising from a public contract. This paper concludes by highlighting the need to proceed not only from the definition of law, but also from specific features of a public contract, when identifying the designated contractual structure.

scholarly journals METODE PEMBAGIAN WARIS TERHADAP ISTRI KEDUA PERSPEKTIF KOMPILASI HUKUM ISLAM DAN HUKUM PERDATA

2019 ◽  
Vol 3 (1) ◽  
pp. 1-21
Author(s):  
Abdul Hafidz Miftahuddin
Keyword(s):  
Islamic Law ◽  
Civil Law ◽  
Third Parties ◽  
The Other ◽  
Legal Basis ◽  
Similarities And Differences ◽  
The Dead ◽  
The Law

Inheritance is a collection of regulations governing the law regarding wealth because of one's death, which is the transfer of wealth left by the dead and the consequences of this transfer for those who obtain it both in their relationship with them, as well as their relationship with third parties. The main purpose of inheritance is either in the Compilation of Islamic Law or civil law is to provide welfare and justice for heirs based on the principles and legal basis of each. The distribution of inheritance to the second wife according to the Compilation of Islamic Law and Civil Law has similarities and differences. The elements in inheritance according to the Compilation of Islamic Law and civil law are the same or hand in hand and complement each other, nothing contradicts. However, in some cases there are differences, one of which is in the division and number of parts for heirs. Also for the second wife, the two laws differ in looking at her. Islam views the second wife as being the same as the other wives as long as there are no children, but civil law views that the part for the second wife must not be more than the child of the first wife.

THE THEORIES OF THE OBLIGATION OF A REPRESENTATIVE WITHOUT AUTHORITY TO A THIRD PARTY: THE EXPERIENCE OF GERMAN CIVIL LAW AND ITS USE IN RUSSIA

2021 ◽  
Vol 21 (2) ◽  
pp. 199-216
Author(s):  
Yu.V. BAYGUSHEVA
Keyword(s):  
Russian Federation ◽  
Civil Law ◽  
Legal Regulation ◽  
Civil Code ◽  
Third Party ◽  
Tort Liability ◽  
Legal Nature ◽  
Heated Debate ◽  
The Russian Federation ◽  
The 19Th Century

The purpose of the study is to determine the basis of the occurrence and the legal nature of the obligation of a representative without authority in case of refusal to approve the contract conducted by him. To achieve this purpose, the author turns to the history of para. 1 p. 1 and p. 3 of Art. 183 of the Civil Code of the Russian Federation and identifies the theoretical model that underlies these prescriptions. The legal regulation of the obligation of the representative was borrowed by the domestic legislator from the draft and the final text of the German BGB. The prescriptions for this undertaking were formed as a result of a heated debate that unfolded in the second half of the 19th century among German civil law experts. They developed the basic theories of an obligation of a representative without authority: a theory of tort liability, a theory of obligation from a guarantee agreement, a theory of pre-contractual liability and a theory of obligation to protect trust. The last theory turned out to be the most viable and was enshrined in the final version of § 179 BGB, and therefore in the paragraphs of Art. 183 of the Civil Code of the Russian Federation. The essence of this theory is that if a representative without authority concludes a contract on behalf of the principal who then refuses to approve, then a representative has an obligation to compensate a third party (counterparty) for property damage; this obligation follows from the prescription of the law and the trust of a third party in the existence of authority that the representative shows, regardless of the representative’s fault. The obligation of the representative without authority is not a tort liability or obligation from the guarantee agreement; this obligation is precontractual in nature, however, it cannot be considered as liability for unfair negotiation, as it arises without the fault of the representative. The theory of obligation to protect trust has not been well covered in Russian literature. The few domestic authors who answer the question about the basis of the occurrence and the legal nature of the obligation of a representative are supporters of the theory of tort liability, the theory of obligation from a guarantee agreement or the theory of pre-contractual liability.

Features of civil law nature of legal assistance agreement

2020 ◽  
pp. 50-55
Author(s):  
Viktor Popov ◽  
Viktoriya Slyvnaya
Keyword(s):  
Civil Law ◽  
Legal Regulation ◽  
Civil Code ◽  
Main Body ◽  
Legal Assistance ◽  
Legal Analysis ◽  
Legal Structure ◽  
Advocacy Activity ◽  
Service Agreement ◽  
Work Contract

Problem setting. Today, the conclusion of a legal assistance agreement is directly regulated by the Law of Ukraine “On the Bar and Legal Practice”. But for effective and lawful implementation the parties should also be guided by the provisions of the Civil Code of Ukraine. Therefore, it is necessary and relevant to determine which provisions of the Civil Code of Ukraine fall under this agreement and the relations arising from its conclusion. Target research. The aim of the work is to analyze the provisions of civil law on the differences between work and services, to determine which category of contracts is a legal assistance agreement and which rules of the Civil Code of Ukraine regulate advocacy and this agreement. Analysis of recent research and publication. The issue of delimitation of works and services is debatable among scientists. In particular, such authors as Gnatiuk G.I, Barinov N.O., Shablova O.G., Pushkin O.A., Ponomarenko O.M., Voronyak A.S., Braginsky M.I., Luts V.V. paid attention to this question. The works of such authors as Gavrilyuk M.O., Sviatotska V.I., Tubelets O.K., Rafilska I.S., Yanovska O.G., Biryukova A.M. are devoted to the question of research of features of legal regulation and realization of advocacy activity in Ukraine. Article’s main body. The article is devoted to the legal characteristics and features of the legal assistance agreement, the discussion issues regarding the regulation of these relations by acts of civil law are considered. In addition, the article analyzes the legal content of such phenomena as work and services and the main differences between the service agreement and the work contract to determine the category of relations of the legal assistance agreement. Conclusions and prospect of development. Thus, the characteristics of the legal structure of the agreement between the lawyer and the client are important for the protection of the interests of both parties. Also, having studied all the features of this agreement and various reasoned opinions of scientists on this issue, we can say that advocacy is multifaceted and can take many forms and types, but the legal analysis of these actions still includes it to services.

Темпоральні характеристики володіння чужим майном: посесорний захист

2019 ◽  
Vol 24 ◽  
Author(s):  
П. Д. Гуйван
Keyword(s):  
Civil Law ◽  
Legal Protection ◽  
Legal Regulation ◽  
Third Parties ◽  
Scholarly Work ◽  
Defensive Reaction ◽  
Protection Mechanism ◽  
Bona Fide ◽  
Substantive Law

This scholarly work is devoted to the study of the pressing issue regarding the implementation of property protection in national civil law. The work examines the widespread in practice situations where the owner has lost possession of the property belonging to him, while the actual acquirer holds the property without a legal title. Quite often, such relationships are governed by substantive law and are socially desirable in order to revive the dynamics of real turnover. However, despite some legal regulation of the nature of such possession, such as the rules of the Civilian Institute of Limitation, the problem of legal protection of such indiscriminate occupation of a thing in the event of infringement by third parties and, in particular, the owner remains unclear. The content of the relevant authority of the ancient holder to appeal to the court in case of seizure of his property is analyzed. It has been established that, despite the generally progressive importance of this tool, it is still rather limited in its application (for example, infringements on the part of the owner) and is not universal. Some changes in the wording of Art. 344 CCUs that will allow greater use of this protection mechanism.At the same time, the article emphasizes the necessity of legislative consolidation of the civilistic principle of the bordering protection in Ukraine. Possessor property protection is not title based, so it guarantees a simplified protection mechanism. This process is fully in line with the task of promptly restoring the jurisdictional methods of violated subjective law, characterized by such essential features as the inadmissibility of a legal dispute, the promptness of a defensive reaction, the provisional and temporary nature of a protected position, and the possibility of using violence through the exercise of a protective power. For the effectiveness of the seizure mechanism, the plaintiff merely states that he has been deprived of actual possession of the thing or has obstacles in its maintenance. Of course, these circumstances are subject to proof. But for the court, it doesn’t matter who asked for protection, the owner or the holder, or the bona fide purchaser. The thesis argues for the need for such protection, at least for those types of nontitular possession that society deems desirable (for example, bona fide unlawful acquisition of property that gave rise to ancient possession).

Compensation of Losses not Related to the Breach of Obligations

2016 ◽  
Vol 4 (9) ◽  
pp. 0-0
Author(s):  
Евгений Четырус ◽  
Evgeniy Chetyrus
Keyword(s):  
Russian Federation ◽  
Civil Law ◽  
Third Parties ◽  
The Other ◽  
Third Party ◽  
Law System ◽  
Foreign Law ◽  
The Russian Federation ◽  
The Given ◽  
Mutual Agreement

The article considers the concept of “indemnity” that is rather new to national civil law. The analogy of this concept that was borrowed from the foreign law system is reflected in the article 4061 of the Civil Code of the Russian Federation “Compensation of losses which occur due the circumstances stated in the contract”. In particular, the given Article of the Code establishes that the parties to the obligations acting jointly as members of the business activities may through their mutual agreement provide for the obligation of one party to compensate for material losses of the other party which were caused by the circumstances listed in the contract, but unrelated to violation of obligations by the party (losses caused by impossibility of fulfilment of obligations, submission of claims by third parties or bodies of state power against a party or third party which was indicated in the contract, etc.). The agreement between the parties shall determine the amount of losses to be compensated for as well as the procedure for such calculation and compensation. The author concludes that the notion “indemnity” and compensation of losses which are not associated with the violations of obligations, should not be confused since they are not identical legal factors.

scholarly journals Limited Proprietary Rights to Residential Premises in Russian and Foreign Civil Law

Lex Russica ◽  
2021 ◽  
pp. 16-26
Author(s):  
D. D. Klimanova
Keyword(s):  
Civil Law ◽  
Legal Regulation ◽  
Real Right ◽  
Existing Problems ◽  
Legal Structure ◽  
Natural Person ◽  
Foreign Countries ◽  
Personal Needs ◽  
The Right

The right to housing is important and universally recognized. In foreign countries, in order to ensure the realization of the right to housing, in addition to the right of ownership, other limited proprietary rights are provided granting citizens with the right to own and use residential premises. The paper considers the limited proprietary rights to residential premises in France, Italy, Germany, Switzerland, Austria and Russia. It is established that the legislation of the abovementioned foreign countries enshrines real rights to use the residential premise, which, being a kind of usufruct (personal servitude), possesses specific features. They are facility feature (which includes residential premises), the authorized entity (which allows for a natural person) only, as well as the purposive character (this sets the right to stay in the residential premises for personal needs and the needs of his family).   In Russia, there are problems of legal regulation of relations between the use of residential premises by members of the owner’s family and former members of the owner’s family who gave consent to privatization, which cause difficulties in practice and numerous disputes in the doctrine. The outcomes of the analysis of the proposed changes in civil and housing legislation make it possible to conclude that the discussed innovations are not able to solve the existing problems and contradictions.The author proposes to consolidate in civil legislation such a limited real right as the right to use residential premises, which is a kind of usufruct, which will combine all existing real rights to residential premises. The legal structure of the right to use residential premises is formulated, its content, the grounds for its occurrence and termination are set out.

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