scholarly journals Obligación contractual = Contractual obligation

2020 ◽  
pp. 164
Author(s):  
Ricardo Gutiérrez Aguilar
Keyword(s):  
Legal Theory ◽  
Tort Law ◽  
Theory And Practice ◽  
Roman Law ◽  
Dual Nature ◽  
Contemporary Debate ◽  
Contractual Obligation ◽  
Legal Obligations ◽  
Sudden Rise ◽  
The Subject

Resumen: El presente trabajo se plantea los interrogantes tanto legales como morales a que una teoría del contrato –y de su equivalente deóntico, la promesa– aboca. Encontramos esta doble naturaleza de las obligaciones legales ya desde los tiempos del derecho romano clásico, pero no es sino desde los años 80 que el tema ha experimentado una segunda vida académica. Con el advenimiento de la llamada muerte del contrato, los teóricos de la materia han discutido si el derecho civil no debería reabsorber la teoría general sobre el contrato como disciplina independiente, y reducir su componente moral. Las obras de Charles Fried y de Patrick Atiyah, reivindicando un compromiso moral fuerte en el ejercicio de la teoría y práctica jurídica de la promesa han abierto el camino a la actualidad del debate y presentado una alternativa a la exitosa teoría económica del contrato. Palabras clave:Obligación, contrato, promesa, teorías económicas del contrato, teorías deónticas del contrato Abstract: The aim of present article is to lay out the usual legal and moral enquiries to which a theory of contract –and its deontic equivalent, promise– leads. We can assess this dual nature of legal obligations even in classic Roman Law times, but it is not until the 80s that the issue has experienced a second academic life. With the sudden rise of scholarship around the so-called death of contract, theorists on the subject have discussed if would not be more convenient to reabsorb the general theory of contract as an independent discipline within tort law, reducing in this exercise its moral component. Charles Fried’s and Patrick Atiyah’s work vindicating a strong moral commitment in legal theory and practice through the underlying idea of promise has left opened the trail to contemporary debate and offered an alternative to the otherwise successful economic theory of contract. Keywords: Obligation, contract, promise, economic theories of contract, deontic theories of contract

scholarly journals BETWEEN THEORY AND PRACTICE: NEW PERSPECTIVES ON THE ROMAN LAW OF LETTING AND HIRING

2006 ◽  
Vol 65 (2) ◽  
pp. 423-437 ◽  
Author(s):  
Paul Du Plessis
Keyword(s):  
Theory And Practice ◽  
Complete Picture ◽  
Roman Law ◽  
Specific Focus ◽  
Compilation Process ◽  
The Subject ◽  
The Law ◽  
Different Parts

JURISTIC writing and Imperial Constitutions on the subject of locatio conductio, collected by the compilers to produce D.19.2 and C.4.65, do not present a complete picture of the Roman law of lease. Not only were most of these texts severed from their original context, but the statements in the Introductory Constitutions to different parts of the Corpus Iuris Civilis also indicate that a large number were eliminated in the compilation process. Although it can hardly be disputed that what the compilers chose to include in these two titles was an accurate account of the law of letting and hiring in force during the time of Justinian, it has been credibly suggested that these titles were given a specific focus in order to project a particular image of the Roman rental economy.

scholarly journals Prosecutor's authority in the conceptual-categorical apparatus of the theory and practice of prosecutorial activity outside the criminal law sphere

2021 ◽  
pp. 58-68
Author(s):  
Darina Viktorovna Kocheva
Keyword(s):  
Semantic Content ◽  
Legal Regulation ◽  
Theory And Practice ◽  
Public Interests ◽  
Legal Obligations ◽  
Legal Nature ◽  
Private And Public ◽  
The Subject ◽  
Universal Definition

The subject of this research is the approaches existing in the theory and practice of prosecutorial activity towards determination of the concept of “prosecutor's authority” and its constituent definitions, their correlation with the scientific views of legal scholars upon the state-legal category of “authority”. Due to the fact that any science is based on the terminological framework, featuring units that differ in their semantic content, the research of the cognizable basic category that does not have a universal definition, neither in science nor effective legislation, as well as the contradicting legal phenomena of different legal nature (rights and obligations) at its part, substantiates the relevance of this research. The scientific novelty of lies in the author’s argumentation of similar, identical and opposite perspectives on the subject matter existing in the literature, effective legal regulation, personal experience of working in the prosecutor's office, justification of conclusion in the indicated category of “legal obligations”. The author comes to the conclusion there is no need for normative differentiation the rights and responsibilities of the prosecutor within the framework of his “general oversight” authority and optimality of the existing regulation, which authorizes the prosecutor to act at the own discretion (making decisions based on subjective opinion and assessment) in terms of the grounds  and means set by law, with consideration of private and public interests.

scholarly journals Organization of justice and trial in Moldavia (the second half of the 18th century)

2019 ◽  
Vol 26 (1) ◽  
pp. 146-157
Author(s):  
Catalina Chelcu
Keyword(s):  
18Th Century ◽  
Legal Theory ◽  
Theory And Practice ◽  
Roman Law ◽  
Documentary Sources ◽  
Legal Literature ◽  
Written Law ◽  
The Times ◽  
The Impact ◽  
Made In

In our study we are concerned with the issue of the judicial organization and trial procedure, as well as the relation between common law and written law in Moldavia during the second half of the 18th century especially during the last quarter. During this period the legal system continued to be renewed in terms of criminal preoccupations. Both the princes of Moldavia and of Walachia focused on the reformation of justice. The fact that the princes succeeded each other on the throne in the Phanariot 18th century meant, from this standpoint, a great advantage, as different measures regarding the judicial organization and the procedure were promoted, by means of acts with similar content in Iași and in Bucharest. In this context, the prince preserves the prerogative of supreme judge of the country, as well as his place in relation to the boyars-judges. The preservation of legal attributions by the prince in his capacity of supreme instance is underlined in the new form of judicial organisation by the issuing of the definitive sentence, after having read the report including the boyars-judges’ proposition to punish the perpetrators. The motivation of the penalty also invoked extenuating or aggravating circumstance, which diminished or, on the contrary, increased the content of the penalty. The legal documents in Moldavia, dating from the second half of the 18th century, prove the presence of the Byzantine pravila in the legal theory and practice of that time. The Pravila [Law] meant therefore, as we could see in the contemporaries’ testimonies, the Byzantine written law, law guides made according to the Vasilika or the “Imperial law”, those legal texts in 60 volumes made in the 9th century at the demand of Leo VI (also called the Wise, 886-912), which represented an adaptation in Greek of the Roman Law, codified under the Byzantine emperor Justinian I (527-565). The foreign travellers in late 18th century Moldavia remind of the use of the Law of Harmenopoulos in trying criminal issues. Constantine Harmenopoulos was a judge in Thessaloniki, and his work’s title was Hexabiblos, in accordance with the six books it consisted of. This was made in 1345, summarising the Byzantine legislation included in the Vasilika and in the normative acts that had modified them by then, under the form of a guide. It was estimated that this work, and another legal guide, a nomocanon translated in Slavonic and used in the Romanian area starting with the 14th century, i.e. the Syntagma of Matthew Blastares of 1335, were created to replace the Vasilika, as they were “more concise and briefer for the needs of the trying courts”. It was considered that the Byzantine legal literature was very present in the judicial practice during the Phanariot rules, including in the form of those Vasilika (Fabrotus edition of 1647), as well as in other significant laws. But other such collections of nomocanons circulated in Moldavia as well. Particularly far-spread was Vaktiria ton Archiereôn (Bishop’s Staff), a work written by the monk Jacob of Ioannina, at the request of the Patriarch of Constantinople, Parthenius, and printed in 1645. It is also worth mentioning that – in the documentary sources preserved and researched thus far – the impact of sources where the Byzantine law texts constituted the legal grounds concerns mainly civil cases and, to a lesser extent, criminal cases. Border-related litigations – due to violating the protimisis right or to conflicts regarding the inheritance of lands or wealth in general – were solved in courts by consulting the Byzantine juridical standards. Most of the times, it is generically called the “holy code of law”. Hence, trial by “law code” became a reality from the second half of the 18th century, as proven by the documentary sources made available thus far.

scholarly journals A DOCTRINAL JUSTIFICATION OF THE INSTITUTION OF COMPULSORY SHARE IN MODERN LEGISLATURE

TEME ◽  
2021 ◽  
pp. 179
Author(s):  
Novak Krstić
Keyword(s):  
Property Rights ◽  
Present Author ◽  
Legal Theory ◽  
Family Members ◽  
Theory And Practice ◽  
Legal Systems ◽  
Inheritance Law ◽  
Multiple Functions ◽  
The Subject

In terms of content, compulsory share is the most efficient and effective testation restriction. In the European Continental legal systems, this institution allows a testator’s family members to inherit a legally defined portion of the inheritance against the testator’s will. In modern legal theory and practice, the question is increasingly raised regarding the justifiability of guaranteeing the compulsory share. Views advocating a comprehensive restriction, even an outright abolition, of this institution are gaining prominence, arguing as they are for each individual to thus be able to fully exercise their property rights as they see fit. Although this has been the subject of fierce debate in legal circles recently, one must bear in mind that the compulsory share is a very important inheritance law institution with multiple functions, and that it should not be called into question in Europe. Therefore, the present author outlines the classical theories justifying the existence of the institution of compulsory share, analyses their basic tenets and ideas, and goes on to put forward his observations regarding which arguments can be used to defend regulating compulsory inheritance in modern legal systems.

KAUZA UGOVORNE OBAVEZE

2021 ◽  
Author(s):  
Samir Manić ◽  
Keyword(s):  
Legal Theory ◽  
Contract Law ◽  
Roman Law ◽  
Practical Significance ◽  
Contractual Obligation ◽  
The Law ◽  
The Impact

The paper discusses the impact of the reasons for the commitment on the validity of the contract. Due to the fact that most institutes of modern law find their origin in Roman law, the paper begins by presenting the role of the cause of obligation in Roman law. The author then analyzes the causal and anti-causal views of legal theory, all in order to emphasize the fact that the cause of the contractual obligation is theoretically a very controversial institute of the law of obligations. The last part of the paper is dedicated to the cause of contractual obligation in our contract law. Starting from the fact that the Law on Obligations accepts with its provisions the subjective and objective conception of the cause of the contractual obligation, the author points out that the objective conception of the cause of the contractual obligation, accepted through art. 51. ZOO, is a redundant institute that has no greater practical significance and which is successfully replaced by other institutes of law of obligations.

Legal Theory and Practice in Eleventh-Century Italy

2003 ◽  
Vol 21 (2) ◽  
pp. 377-382 ◽  
Author(s):  
Charles M. Radding
Keyword(s):  
Twelfth Century ◽  
Eleventh Century ◽  
Legal Theory ◽  
Northern Italy ◽  
Theory And Practice ◽  
Roman Law ◽  
Practical Significance ◽  
School Based ◽  
The Alps ◽  
Legal Expertise

As I understand it, Susan Reynolds's article is meant to address the longstanding habit among legal historians of equating professional approaches to the law with the emergence of a school-based study of Roman law. In the course of the twelfth century, she argues, legal practitioners developed their own kinds of expertise that, though less bookish, might have had a practical significance equal to, if not greater than, the learning produced in the schools. Although these observations seem on the mark for Europe north of the Alps, Reynolds errs, I think, in assimilating Italy to this chronological and conceptual schema. Already by the ninth and tenth centuries, there existed in northern Italy a corps of royal notaries and judges who possessed both literacy and legal expertise unparalleled elsewhere in Europe. Distinguished from other laymen by their titles, learning, and even their handwriting, the legal experts already appear to have met the criteria of professionalism generally proposed for the late twelfth century in the rest of Europe.

scholarly journals The legal nature of an autonomous robot in determining the subject of property legal responsibility: theory and practice

2019 ◽  
Keyword(s):  
Autonomous Robots ◽  
Autonomous Robot ◽  
Theory And Practice ◽  
Roman Law ◽  
Legal Responsibility ◽  
Legal Nature ◽  
Balance Of Interests ◽  
The Status ◽  
The Subject ◽  
Legal Fact

In the article, given the need to distinguish between "objects" and "subjects" of legal relations, the issues of determining the subject of property legal responsibility are considered when there is a legal fact of unlawful behavior of an autonomous robot. As an idea-antithesis with respect to the idea of ​​an “electronic person”, it is proved that, by making appropriate changes in the current legislation, not to provide an autonomous robot with the status of a “subject of legal relations”. In general the features of functioning of autonomous robots are examined from position of "de lege lata" and "de lege ferenda". The features of concepts "Technical lack of autonomous robot" and "illegal excess of functioning of autonomous robot" are indicated. Underlined, that the guarantees of balance of interests of "producers" (developers), "consumers" (owners, users), "third persons", first of all suppose the presence of "insurance of risk of functioning of autonomous robots" (for example, "Contract of insurance of risk of illegal result of functioning of autonomous robot"), of the "compensative money system" of accruals, "registration of autonomous robots" consists. Grounded, that autonomous robot (for example, "military-battle autonomous robot") as an object of legal relationships can be embraced by a category "source of enhanceable danger". Text of addition of the corresponding article of the Civil code of Ukraine is proposed. It is also indicated on expediency of presence in this code of the separate article with the name: the "Illegal excess of functioning of autonomous robot, subject to obligatory registration" (text of the article is set forth). The variant of understanding of autonomous robots is analysed, as well as "animals", by the special objects of civil legal relationships, and also suggestion to give to the autonomous robots status analogical to status of slave in the Ancient Roman law. Drawn conclusion in relation to understanding of autonomous robot as quasisubject or subject of legal relationships.

The Norman Conquest in English History

2020 ◽  
Author(s):  
George Garnett
Keyword(s):  
Seventeenth Century ◽  
Middle Ages ◽  
Twelfth Century ◽  
Legal Theory ◽  
Early Modern Period ◽  
Theory And Practice ◽  
English History ◽  
Norman Conquest ◽  
History Of ◽  
The Subject

This study pursues a central theme in English historical thinking—the Norman Conquest—over seven centuries. This first volume, which covers more than half a millennium, explains how and why the experience of the Conquest prompted both an unprecedented campaign in the early twelfth century to write (or create) the history of England, and to excavate (and fabricate) pre-Conquest English law. It traces the treatment of the Conquest in English historiography, legal theory and practice, and political argument through the middle ages and early modern period. It shows that during this period jurisprudence and legal practice became more important than historical writing in preserving the Conquest as a subject of interest. It concludes with an examination of the dispersal of these materials from libraries consequent on the dissolution of the monasteries, and the attempts made to rescue, edit, and print many of them in the late sixteenth and early seventeenth centuries. This preservation of what had been written for the most part in the early twelfth century enabled the Conquest to become still more contested in the constitutional cataclysms of the seventeenth century than it had been in the eleventh and twelfth. The seventeenth-century resurrection of the Conquest will be the subject of a second volume.

ИЗМЕНЕНИЕ ПАРАДИГМЫ МЕТОДОЛОГИИ ЮРИСПРУДЕНЦИИ

2019 ◽  
Vol 13 ◽  
pp. 32-40
Author(s):  
Ю. М. Оборотов
Keyword(s):  
Legal Theory ◽  
Research Strategy ◽  
The State ◽  
New Paradigm ◽  
Methodological Question ◽  
Modern Development ◽  
Decisive Importance ◽  
The Subject ◽  
Methodological Approaches ◽  
The Law

В современной методологии юриспруденции происходит переход от изучения состо­яний ее объекта, которыми выступают право и государство, к постижению этого объек­та в его изменениях и превращениях. Две подсистемы методологии юриспруденции, подсистема обращенная к состоянию права и государства; и подсистема обращенная к изменениям права и государства, — получают свое отображение в концептуальной форме, методологических подходах, методах, специфических понятиях. Показательны перемены в содержании методологии юриспруденции, где определяю­щее значение имеют методологические подходы, определяющие стратегию исследова­тельских поисков во взаимосвязи юриспруденции с правом и государством. Среди наи­более характерных подходов антропологический, аксиологический, цивилизационный, синергетический и герменевтический — определяют плюралистичность современной методологии и свидетельствуют о становлении новой парадигмы методологии юриспру­денции.   In modern methodology of jurisprudence there is a transition from the study the states of its object to its comprehension in changes and transformations. Hence the two subsystems of methodology of jurisprudence: subsystem facing the states of the law and the state as well as their components and aspects; and subsystem facing the changes of the law and the state in general and their constituents. These subsystems of methodology of jurisprudence receive its reflection in conceptual form, methodological approaches, methods, specific concepts. Methodology of jurisprudence should not be restricted to the methodology of legal theory. In this regard, it is an important methodological question about subject of jurisprudence. It is proposed to consider the subject of jurisprudence as complex, covering both the law and the state in their specificity, interaction and integrity. Indicative changes in the content methodology of jurisprudence are the usage of decisive importance methodological approaches that govern research strategy searches in conjunction with the law and the state. Among the most characteristic of modern development approaches: anthropological, axiological, civilization, synergistic and hermeneutic. Modern methodology of jurisprudence is pluralistic in nature alleging various approaches to the law and the state. Marked approaches allow the formation of a new paradigm methodology of jurisprudence.

Without the Power to Drink or Contract

2020 ◽  
Vol 24 (1) ◽  
pp. 26-48
Author(s):  
Warren Swain
Keyword(s):  
Alcohol Consumption ◽  
Social Activity ◽  
Individual Responsibility ◽  
Roman Law ◽  
Current Position ◽  
Modern Times ◽  
The Will ◽  
The Subject ◽  
The Law ◽  
Over Time

Intoxication as a ground to set aside a contract is not something that has proved to be easy for the law to regulate. This is perhaps not very surprising. Intoxication is a temporary condition of varying degrees of magnitude. Its presence does however raise questions of contractual autonomy and individual responsibility. Alcohol consumption is a common social activity and perceptions of intoxication and especially alcoholism have changed over time. Roman law is surprisingly quiet on the subject. In modern times the rules about intoxicated contracting in Scottish and English law is very similar. Rather more interestingly the law in these two jurisdictions has reached the current position in slightly different ways. This history can be traced through English Equity, the works of the Scottish Institutional writers, the rise of the Will Theory, and all leavened with a dose of judicial pragmatism.

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