scholarly journals Liquidated damages for failure to pay or delayed payment of remuneration to subcontractors — comments on the background of the resolution of the Supreme Court of 30 June 2020, III CZP 67/19

2021 ◽  
Vol 35 ◽  
pp. 33-50
Author(s):  
Cyprian Herl
Keyword(s):  
Supreme Court ◽  
Public Procurement ◽  
Legal Discourse ◽  
Civil Code ◽  
The Supreme Court ◽  
Liquidated Damages ◽  
The Subject ◽  
The Relationship

The subject of this work is the issue of the admissibility of stipulating liquidated damages for failure to pay or delayed payment of remuneration to subcontractors in the light of article 483 par. 1 of the Civil Code, which allows stipulating contractual penalties only in non-pecuniary obligations. The basis for the considerations is the content of the resolution of the Supreme Court of June 30th, 2020 (III CZP 67/19), which took a firm position in the ongoing legal discourse. This publication is a comparison on the basis of the previous jurisprudence and the doctrine of the relationship between liquidated damages defined in article 483 par. 1 of the Civil Code, and liquidated damages provided for in the Act of 29th January 2004 — Public Procurement Law.

scholarly journals Czy przebaczenie niweczy skutki uprzedniego wydziedziczenia?

2017 ◽  
Vol 21 ◽  
pp. 143-153
Author(s):  
Anna Moskal
Keyword(s):  
Supreme Court ◽  
Civil Law ◽  
Civil Code ◽  
Inheritance Law ◽  
Dominant Position ◽  
Legal Nature ◽  
The Supreme Court ◽  
Lower Courts ◽  
The Subject ◽  
Made In

Does forgiveness nullify the effects of previous disinheritance? The legal nature of forgiveness is the subject of passionate debates among the representatives of civil law doctrine. According to the dominant position in the literature, forgiveness is an act of affection or its manifested expression of forgiveness of the perpetrator of experienced injustice and related to this grudge. This institution has been applied three times in the Civil Code — once with the donation agreement, twice in regulations of inheritance law. Article 1010 § 1 provides that a testator cannot disinherit eligible for legal portion if he forgave him. The wording of the above article indicates that accomplishment of disinheritance in case if testator eligible for legal portion has previously forgiven. The legislator did not, however, determine the effects of forgiveness in relation to previous disinheritance. In the act of 1971, the Supreme Court accepted that such forgiveness would automatically nullify the effects of disinheritance, and could be made in any form. In recent years, lower courts have begun to question the Supreme Court's position, and judges increasingly refer to the critical statements of numerous doctrines. As it was rightly stated, admitting the possibility of invoking the forgiveness made after disinheritance poses a serious threat to the realization of the testator’s will, who, by forgiving, does not necessarily want to revoke the effects of his previous disinheritance. The postulate of de lege ferenda is, according to the author of the article, giving of freedom of judging the effects of forgiveness to the courts and each examination of the forgiving testator’s will on the possible abatement of the consequences of previous disinheritance.]]>

scholarly journals Odpowiedzialność zakładu ubezpieczeń za szkody wyrządzone przez agenta ubezpieczeniowego

2017 ◽  
Vol 21 ◽  
pp. 13-30
Author(s):  
Amanda Adamska ◽  
Anna Maria Barańska
Keyword(s):  
Supreme Court ◽  
Civil Code ◽  
Insurance Company ◽  
The Supreme Court ◽  
Insurance Agent ◽  
Insurance Intermediation ◽  
The Subject ◽  
Injured Party ◽  
The Difference ◽  
Definition Of

The responsibility of an insurance company for damages caused by an insurance agent The subject of this article is the responsibility of an insurance company for damages caused by an insurance agent in connection with the performance of agency activities. The Act on Insurance Intermediation of 22 May 2003 lays down a liability regime based on the principle of risk. It also contains the definition of an insurance agent and performed agency activities. In the next part of the article there is analysed the jurisprudence of the Supreme Court concerning the interpretation of article 11 1 of the abovementioned Act. It discusses an attempt at defining the difference between activities performed “in connection with” and “at the occasion of” other activities. Finally there is analysed an issue of the contribution of the injured party to the occurrence of the damage in this type of cases article 362 of the Civil Code.

scholarly journals REVIEW OF LEGAL POSITIONS OF THE SUPREME COURT OF THE RUSSIAN FEDERATION FOR 2015-2020 ON THE APPLICATION OF THE PROVISIONS OF THE CIVIL CODE OF THE RUSSIAN FEDERATION ON THE INVALIDITY OF TRANSACTIONS AND ON THE PROHIBITION OF ABUSE OF RIGHTS

2020 ◽  
pp. 7-15
Author(s):  
Ольга Георгиевна Барткова
Keyword(s):  
Civil Rights ◽  
Supreme Court ◽  
Russian Federation ◽  
Civil Code ◽  
Judicial Practice ◽  
The Supreme Court ◽  
The Russian Federation ◽  
The Right ◽  
Relationship Of ◽  
The Relationship

В статье исследуется содержание положений основных Постановлений Пленума Верховного Суда РФ, а также обзоров судебной практики, утверждённых Президиумом Верховного Суда РФ, которые относятся к порядку применения ст. 168 во взаимосвязи со ст. 10 ГК РФ. Обосновывается вывод о том, что злоупотребление правом отнесено законом к числу самостоятельных оснований для признания сделки недействительной. Приведены и проанализированы примеры споров, иллюстрирующие взаимосвязь норм о недействительных (ничтожных) сделках с институтом «пределы осуществления гражданских прав», с основными началами гражданского законодательства. The article examines the content of the provisions of the main Resolutions of the Plenums of the Supreme Court of the Russian Federation, as well as reviews of judicial practice, approved by the Presidium of the Supreme Court of the Russian Federation, which relate to the procedure for applying Art. 168, Art. 170 of the Civil Code of the Russian Federation in conjunction with Art. 10 of the Civil Code of the Russian Federation. The conclusion is substantiated that abuse of the right is attributed by law to the number of independent grounds for recognizing the transaction as invalid. The examples of disputes are presented and analyzed, illustrating the relationship of the norms on invalid (void) transactions with the institution of «limits of the exercise of civil rights», with the basic principles of civil legislation.

scholarly journals Służebność gruntowa o treści odpowiadającej służebności przesyłu w świetle najnowszego orzecznictwa Trybunału Konstytucyjnego

2019 ◽  
Vol 28 ◽  
pp. 207-219
Author(s):  
Anna Maria Barańska
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
Civil Code ◽  
Lively Discussion ◽  
The Supreme Court ◽  
Constitutional Tribunal ◽  
The Subject ◽  
First Time

Problem konstytucyjności służebności gruntowej o treści odpowiadającej służebności przesyłu oraz możliwości jej zasiedzenia jest  przedmiotem ożywionej dyskusji już blisko od dekady. Mimo ugruntowanej i jednolitej linii orzeczniczej Sądu Najwyższego w tym  zakresie sądy powszechne cały czas mają wątpliwości, czy ta wykładnia znajduje umocowanie w przepisach kodeksu cywilnego. Nie  odmawiając interpretacji Sądu Najwyższego funkcjonalności, nie sposób jednak nie zauważyć towarzyszących jej mankamentów. Z  tego względu warte uwagi są ostatnie orzeczenia Trybunału Konstytucyjnego, który zdaje się po raz pierwszy zdecydował się  przełamać swoją bierną postawę. Building lease with the content corresponding to transmission easement in the light of the latest case law of the Constitutional TribunalThe problem of the constitutionality of a building lease with the content corresponding to transmission easement and the possibility of acquisitive prescription has been the subject of lively discussion already for almost a decade. Despite the well-established and unified jurisprudence of the Supreme Court in this regard, common courts constantly have doubts whether this interpretation is in line  with the provisions of the Civil Code. The Supreme Court’s interpretation is thought to have some shortcomings. That is why the last  ruling of the Constitutional Tribunal is worth paying attention to, as the Constitutional Tribunal seems to be for the first time active in this topic.

scholarly journals Insurance related problems in bareboat charter agreements

2021 ◽  
Vol 6 (1) ◽  
Author(s):  
Albano Gilabert Gascón
Keyword(s):  
United Kingdom ◽  
Supreme Court ◽  
Third Parties ◽  
Insurance Contract ◽  
The United Kingdom ◽  
The Supreme Court ◽  
The One ◽  
The Baltic ◽  
The Relationship

AbstractIn 2017, the majority of the United Kingdom Supreme Court held in its judgment in the Gard Marine and Energy v China National Chartering (The Ocean Victory) case that, in bareboat charters under the ‘BARECON 89’ form, if both the owner and the charterer are jointly insured under a hull policy, the damages caused to the vessel by the charterer cannot be claimed by the insurer by way of subrogation after indemnifying the owner. The interpretation of the charter party leads to the conclusion that the liability between the parties is excluded. Faced with the Supreme Court’s decision, the Baltic and International Maritime Council (BIMCO) adopted a new standard bareboat charter agreement only a few months later, the ‘BARECON 2017’ form, which amends, among other clauses, the one related to insurance. The present paper analyses (i) the new wording of the clause mentioned above and (ii) its incidence on the relationship between the parties of both the charter agreement and the insurance contract and its consequences for possible third parties. Despite BIMCO’s attempt to change the solution adopted by the Supreme Court and his willingness to allow the insurer to claim in subrogation against the person who causes the loss, the consequences, as it will be seen, do not differ much in practice when the wrongdoer is the co-insured charterer. On the contrary, when the loss is caused by a time charter or a sub-charter, in principle, there will be no impediment for the insurer to sue him.

The tenure of English judges

1913 ◽  
Vol 7 (2) ◽  
pp. 217-229 ◽  
Author(s):  
C. H. McIlwain
Keyword(s):  
Supreme Court ◽  
Political Science ◽  
Theory And Practice ◽  
The Political ◽  
The Supreme Court ◽  
History Of ◽  
The Subject ◽  
General Object ◽  
William Iii ◽  
Science Association

At the meeting of the Political Science Association last year, in the general discussion, on the subject of the recall, I was surprised and I must admit, a little shocked to hear our recall of judges compared to the English removal of judges on address of the houses of parliament.If we must compare unlike things, rather than place the recall beside the theory or the practice of the joint address, I should even prefer to compare it to a bill of attainder.In history, theory and practice the recall as we have it and the English removal by joint address have hardly anything in common, save the same general object.Though I may not (as I do not) believe in the recall of judges, this paper concerns itself not at all with that opinion, but only with the history and nature of the tenure of English judges, particularly as affected by the possibility of removal on address. I believe a study of that history will show that any attempt to force the address into a close resemblance to the recall, whether for the purpose of furthering or of discrediting the latter, is utterly misleading.In the history of the tenure of English judges the act of 12 and 13 William III, subsequently known as the Act of Settlement, is the greatest landmark. The history of the tenure naturally divides into two parts at the year 1711. In dealing with both parts, for the sake of brevity, I shall confine myself strictly to the judges who compose what since 1873 has been known as the supreme court of judicature.

Scientific Commentary on the Review of Judicial Practice on Some Issues of the Application of Legislation on Business Entities

2021 ◽  
Vol 6 ◽  
pp. 27-32
Author(s):  
V. K. Andreev ◽  
Keyword(s):  
Public Relations ◽  
Supreme Court ◽  
Russian Federation ◽  
Separation Of Powers ◽  
Civil Code ◽  
Judicial Practice ◽  
The Supreme Court ◽  
The Russian Federation ◽  
Business Entities ◽  
Law Making

The article discusses the forms of clarification on matters of judicial practice by the Plenum of the Supreme Court of the Russian Federation, the Presidium of the Supreme Court, as well as in the Review of judicial practice on some issues of the application of legislation on business companies dated December 25, 2019. Clarifications of the Supreme Court of the Russian Federation on issues of judicial practice are characterized as the positions of the courts identified in the course of studying and summarizing the judicial practice of the corresponding category of cases, which are acts of individual regulation of public relations. Focusing on Art. 6 of the Civil Code of the Russian Federation and Section 6, Art. 12 of the APC RF shows the validity of dividing wrong into two types of wrong: the «moderate» type of «judicial law-making and the position of the court» and the «radical» type of «judicial law-making», when the court develops the rule of law, which contradicts the constitutional principle of separation of powers. When resolving corporate disputes, it is necessary to investigate whether the charter of a non-public company does not contain the rights and obligations of its participants, which they themselves created by making a unanimous decision and including them in the charter of the company (paragraph 3 of Art. 66.3 of the Civil Code of the Russian Federation, paragraph 3 of Art. 14 of the Law about LLC).

Equity and certainty in contract law

Acta Juridica ◽  
2021 ◽  
Vol 2021 ◽  
pp. 141-176
Author(s):  
F Brand
Keyword(s):  
Supreme Court ◽  
Contract Law ◽  
Constitutional Court ◽  
High Court ◽  
Contractual Relationships ◽  
The Supreme Court ◽  
The Subject ◽  
Court Of Appeal ◽  
Do So

The role of abstract values such as equity and fairness in our law of contract has been the subject of controversy for a number of years. In 2002 the Supreme Court of Appeal took the position that these values do not constitute self-standing grounds for interfering with contractual relationships. Despite this being consistently maintained by the SCA in a number of cases, some High Court judges deviated from this position on the basis that they were permitted to do so by some minority judgments and obiter dicta in the Constitutional Court. The uncertainty thus created has fortunately now been removed by the judgment of the Constitutional Court in Beadica v The Trustees for the Time being of the Oregon Trust.

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