scholarly journals Improving the Regulation of Joint Rights in Civil Law

2021 ◽  
Vol 17 (30) ◽  
pp. 69
Author(s):  
Ekaterine Nandoshvili
Keyword(s):  
Common Property ◽  
Practical Importance ◽  
Civil Law ◽  
Case Law ◽  
Systematic Analysis ◽  
Legal Literature ◽  
The Common ◽  
The Law ◽  
Correct Understanding ◽  
Full Protection

This paper focuses on analyzing the norms regulating joint rights, presents their shortcomings, and criticizes the misconceptions expressed in the legal literature about the types of common property, joint rights, and co-ownership. The paper considers the incompleteness of the provisions regulating the legal consequences of the abolition of joint rights as a serious shortcoming of the Civil Code of Georgia. A novelty is a mechanism proposed in this paper, and it is possible to assign the entire property to one of the participants in case of abolition of joint right, in exchange for compensation for the shareholder who requests the abolition of joint right and the allocation of the amount. The objective of the paper is to analyze certain aspects of the regulation of joint rights, which, together with the theoretical, have the practical importance that will contribute to a correct understanding of a number of issues and the correct qualification of the rights and obligations of participants of the legally binding relationship, rising on the basis of joint rights. To achieve this objective, logical and systematic analysis of norms as well as comparative-legal methods are used. Using these methods, it is possible to determine the strengths and weaknesses of the norms of Georgian law or to better understand their content, to identify gaps in the legislation in court practice, as well as to develop proposals and recommendations for the improvement of norms and practice. The problems are analyzed using the examples of Georgian, German, and Swiss civil law. The common features and shortcomings were identified between the Georgian and German models regarding the issue of the consequences of the abolition of joint rights. The Swiss model appears to be the most perfect and effective model among the named ones. The study found that neither in practice nor under the law is a shareholder allowed to sell the joint item in an auction by redeeming the shares of other owners. The extinction of this opportunity for the owner reduces the essence of ownership. In order to extend the guarantees for full protection of the property rights, a view is proposed on the need to develop an approach, similar to the Swiss model, and the implementation should be ensured by case law before the law is changed.

The Common Law Legal Tradition: First Things First

2021 ◽  
pp. 15-22
Author(s):  
Steven Gow Calabresi
Keyword(s):  
Judicial Review ◽  
Common Law ◽  
Civil Law ◽  
Primary Source ◽  
Case Law ◽  
The United States ◽  
Public Law ◽  
Legal Tradition ◽  
The Common ◽  
The Law

This chapter explains briefly the origins and development of the common law tradition in order to better understand the rise of judicial review in the seven common law countries discussed in this volume. The common law legal tradition is characterized historically, in public law, by limited, constitutional government and by forms of judicial review of the constitutionality of legislation. In private law, the common law tradition is characterized by judge-made case law, which is the primary source of the law, instead of a massive code being the primary source of the law. The common law tradition is also characterized by reliance on the institution of trial by jury. Judges, rather than scholars, are the key figures who are revered in the common law legal tradition, and this is one of the key things that distinguishes the common law legal tradition from the civil law legal tradition. The common law legal tradition emphasizes judicial power, which explains why it has led to judicial review in the countries studied in this volume. It is the prevailing legal tradition in the four countries with the oldest systems of judicial review of the constitutionality of legislation: the United States, Canada, Australia, and India. Thus, judicial review of the constitutionality of legislation in these four countries is very much shaped by common law attitudes about the roles of judges.

scholarly journals The Accessory Nature of the Penalty and the Peculiarities of Payment

2021 ◽  
Vol 17 (33) ◽  
pp. 93
Author(s):  
Ekaterine Nandoshvili
Keyword(s):  
Civil Law ◽  
Case Law ◽  
Civil Code ◽  
Practical Significance ◽  
Private Law ◽  
Systematic Analysis ◽  
Legal Literature ◽  
Made In

This paper focuses on analyzing the accessory nature of the penalty, the peculiarities of its payment, and the legislative provisions regulating the penalty. It also presents their shortcomings and criticizes the wrong opinions in the legal literature on the concept and types of the penalty. The penalty is considered as the institutions with only accessory nature. Reduction of the penalty requires the debtor's counterclaim, without which the court is deprived of the possibility of reducing the penalty. The provision of Article 417 of the Civil Code is considered a serious legislative gap by the paper. The novelty is the provisions of the paper and the necessity of introducing norms on legal penalties in the Civil Code is substantiated, without which the case law may become a factor of unjustified violation of the rights of the participants of the private relations. There is also substantiated provision, which refutes the validity of the opinion of the authors who exclude the initiative of the court in the issue of reduction of the penalty. The aim of this paper is to analyze certain aspects of the regulation of penalties, which, together with the theoretical aspects, have practical significance that will provide better understanding of a number of issues as well as the correct qualification of the rights and obligations arising from the payment of penalties. Logical and systematic analysis of norms, as well as comparative-legal methods, are used to achieve the above-mentioned goal. Using these methods, it is possible to determine the progressiveness of Georgian law norms and to identify existing gaps in them. This further provides a better understanding of their content so as to develop suggestions and recommendations to improve the norms and practices. Problems are analyzed on the examples of Georgian and German civil law. In terms of types and concepts of penalties, common characteristics and shortcomings between Georgian and German models were revealed. The efficiency of the Georgian model was also examined in terms of establishing the penalties. The study revealed that the Civil Code of Georgia determines the type of contractual penalty and allows its reduction. Based on this, a wrong conclusion has been made in science and practice about the existence of only one type of penalty in Georgian law. The circumstance that private law legislation does not consist solely of the Civil Code was not taken into account. The paper examines the applicable legislation of Georgia, which sometimes does not even use the term “penalty”, but actually provides for a legal penalty in various provisions. It is inevitably necessary to reflect the norms in detail in order to regulate the payment of legal penalties in the Civil Code of Georgia.

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.

scholarly journals SKUTKI PRAWNE ORZECZEŃ TRYBUNAŁU KONSTYTUCYJNEGO W UJĘCIU CZASOWYM

2017 ◽  
Vol 3 (2) ◽  
pp. 313
Author(s):  
Roman Trzaskowski
Keyword(s):  
Supreme Court ◽  
Practical Importance ◽  
Civil Law ◽  
Main Question ◽  
Time Effects ◽  
Area Of Interest ◽  
Retroactive Effect ◽  
The Supreme Court ◽  
Constitutional Tribunal ◽  
The Common

Effects of Constitutional Tribunal’s Judgments in the Time PerspectiveSummaryThe problem of the time effects of the Constitutional Tribunal’s rulings remain within the area of interest of both constitutional and civil law scholars. It is widely discussed because of its enormous practical importance: more and more often the common courts and the Supreme Court have to deal with the laws which have been declared unconstitutional.The main question is whether the courts should apply the unconstitutional law while deciding on a case in which legally significant events had taken place before the law was declared null and void.The Polish Constitution does not give a clear answer to this question. The most important provisions seem to be contradictory, which makes it possible to use them as arguments for opposing positions.The scholars’ opinions differ significantly: some of them, followed by the Supreme Court, accept the so-called „retrospective” effect (the unconstitutional law cannot by applied), the others, together with the Constitutional Tribunal, take the opposite view. A few try to find a compromise.The proposition presented in this paper is to be classified as belonging to the third group.Indeed it seems that there is a need for a flexible approach. The time effects of a ruling shall be expressly stated by the Constitutional Tribunal. When the Tribunal fails to do so, the common courts have to asses themselves the rulings’ effects, being guided, among other things, by the principles of the civil law. There are strong arguments that the Constitution seems to favor the retroactive effect, yet it is not decisive. There are certainly situations, where a prospecitve effect shall be accepted: ultimately it is a question of balancing different constitutional and civil law values. 

scholarly journals BANKRUPTCY ESTATE OF THE DEBTOR’S SPOUSE: AN INTERSECTORAL ASPECT

2020 ◽  
pp. 26-30
Author(s):  
А.S. Salimov ◽  
S.V. Voronina
Keyword(s):  
Common Property ◽  
Family Law ◽  
Family Relations ◽  
Civil Law ◽  
Legal Regulation ◽  
Bankruptcy Law ◽  
Joint Ownership ◽  
The Common

The bankruptcy estate of the debtor spouse is all property belonging to him both on the basis ofindividual and joint ownership, including unfulfilled property obligations. The composition of the propertyof spouses is determined by the rules of family law, taking into account the legal regulation of certain typesof property, which requires special attention when forming the bankruptcy estate of the debtor spouse. Thebankruptcy estate may include the property of a citizen, making up his share in the total property, which maybe levied in accordance with civil law, family law. Family relations are built on the principle of community,which affects the implementation of bankruptcy law. To foreclose on the share of the debtor spouse, it isnecessary to separate the share of the debtor spouse from the common property, while the bankruptcy lawallows the sale of common property with the subsequent payment of funds to the debtor’s spouse.

Part VIII Remedies For Default, 27 Debt and Other Agreed Sums

2021 ◽  
Author(s):  
Andrews Neil
Keyword(s):  
Common Law ◽  
Practical Importance ◽  
Case Law ◽  
Fundamental Principle ◽  
Breach Of Contract ◽  
Self Help ◽  
Liquidated Damages ◽  
Specific Performance ◽  
The Common ◽  
Judicial Remedies

This Part mostly concerns judicial remedies for breach of contract (the self-help remedy of forfeiture of a deposit is noted at [27.109]). The chapter sequence reflects both the division between Common Law (chapters 27 and 28) and Equity (chapter 29) but, more importantly, the practical importance of the judicial remedies, debt mattering more than damages, and in turn damages more than specific performance or injunctions. And so chapter 27 concerns ‘Debt’ (but agreed damages, ie liquidated damages clauses, are treated in the same chapter because the sum payable is, by definition, fixed or calculable in advance; but technically, agreed damages are damages and not a cause of action sounding in debt). Chapter 28 concerns damages, that is, compensation. Damages is a branch of the law which continues to generate a mass of intricate case law. Finally, chapter 29 concerns the equitable remedies of specific performance, injunctions, account of profits, and declarations. It is a fundamental principle that specific performance can be granted only if the Common Law remedies (debt and damages) are inadequate on the relevant facts. Chapter 27: The predominant claim for contractual default is the action for debt, to compel payment. Statistically this is the front-runner amongst remedies for breach. The availability of interest is also noted in this chapter.

scholarly journals The barratry of the shipmaster in early modern law: the approach of Italian and English law courts

2019 ◽  
Vol 87 (4) ◽  
pp. 504-574
Author(s):  
Guido Rossi
Keyword(s):  
Early Modern ◽  
Common Law ◽  
Practical Importance ◽  
Civil Law ◽  
Case Law ◽  
Legal Framework ◽  
Walk Away ◽  
Long Time ◽  
Law Courts ◽  
The Difference

SummaryFor a long time, the concept of barratry (at least in its maritime meaning) was one and the same on both sides of the Channel. The barratry of the shipmaster was part of the mercantile usages, and it identified the intentionally blameworthy conduct of the master. When law courts began to decide on insurance litigation they were confronted with a notion quite alien to them. Broadly speaking, the shipmaster’s barratry could well be considered a fraud of sort. But in order to decide on its occurrence in a specific case, law courts had to analyse it in legal terms, and so according to the specific legal categories of their own system. The point ceases to be trivially obvious if we think that the different legal framework of civil and common law courts progressively led to very different interpretations of the same thing. Thus, with the shift of insurance litigation from mercantile justice to law courts maritime barratry began to acquire increasingly different features in the two legal systems. Very often, the very same conduct of the shipmaster was considered as negligent by civil law courts and barratrous by common law courts. The difference was of great practical importance, for many policies excluded barratry from the risks insured against. So, depending on the kind of law court, an insurer could be charged with full liability for the mishap or walk away without paying anything. If the beginning of the story was the same, its end could not have been more different.

Indian Legal Literature

2008 ◽  
Vol 36 (2) ◽  
pp. 300-302
Author(s):  
Surendra Malik
Keyword(s):  
Case Law ◽  
Point Of View ◽  
Legal Literature ◽  
Statutory Law ◽  
The Law

Indian Legal literature is comprehensive and exhaustive in that it fully encompasses the law prevailing in India in all its varied aspects. Statutory law, case law, and minor portions of customary and religion-based laws are well documented and readily accessible. Fortunately, from the point of view of a foreign reader, nearly all of the law currently prevalent in India is available in English.

Unjustified Enrichment in Comparative Perspective

2006 ◽  
pp. 968-1002
Author(s):  
Daniel Visser
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Comparative Perspective ◽  
The Future ◽  
The Common ◽  
English Law ◽  
The Law ◽  
Level Of Understanding ◽  
Unjustified Enrichment

Unjustified enrichment confronted both civil and common lawyers with thinking which was often completely outside the paradigm to which they had become accustomed. The recognition of unjustified enrichment as a cause of action in its own right in English law created a new arena of uncertainty between the systems. This article argues that comparative lawyers can make an important contribution to the future of the fractured and fractious world of unjustified enrichment. It may help to uncover the enormous wealth of learning of which both the common law and the civil law are the repositories, and so bring the same level of understanding to the law of unjustified enrichment which has, over the years, been achieved between the systems in regard to contract and tort.

scholarly journals A Managerial Guide to Products Liability: A Primer on the Law in the United States

2012 ◽  
Vol 2 (3) ◽  
pp. 34
Author(s):  
Jr. Richard J. Hunter ◽  
Henry J. Amoroso ◽  
John H. Shannon
Keyword(s):  
United States ◽  
Strict Liability ◽  
Case Law ◽  
The United States ◽  
Managerial Decision ◽  
Products Liability ◽  
Product Manager ◽  
The Common ◽  
The Law ◽  
Product Defect

This article provides an overview or primer on the law of products liability in the United States for use in the managerial decision-making process.  It focuses on the development of case law under the common law in determining a product defect, types of defects, theories of recovery, and the move to the adoption of the theory of strict liability in products cases.  The article is written within the context of the Restatement of the Law of Torts.  The article provides useful information to the product manager who is responsible for production decisions in a business organization. Key words: Products Liability, Product Defects, Strict Liability in Tort

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