scholarly journals KARA UMOWNA - KOMPENSACJA CZY REPRESJA?

2017 ◽  
Vol 3 (2) ◽  
pp. 179
Author(s):  
Elżbieta Skowrońska-Bocian
Keyword(s):  
Civil Code ◽  
The Other ◽  
Judicial Decisions

Contractual Indemnity - Compensation or Reprisal?SummaryA contractual indemnity has been regulated in article 483 and 484 of the Civil Code. Parties may decide that a damage resulting from non-performance or improper performance of a non-pecuniary obligation shall be redressed in such a way that a debtor shall pay a creditor a specified amount, even if its extent differs from an extent of a damage incurred by a creditor.There is a discrepancy between the doctrine and judicial decisions as to the possibility of claiming a contractual indemnity by a creditor who did not incur a damage as a result of non-performance or improper performance of an obligation. Those in favour of an opinion according to which a creditor may claim a contractual indemnity even if he did not incur a damage stress its repressive character. The supporters of a notion that a damage on the side of a creditor constitutes a prerequisite for a claim to pay a contractual indemnity invoke the substance of the article 483 § 1 of the Civil Code. Pursuant to the provision the aim of a contractual indemnity is to redress a damage resulting from non-performance or improper performance of an obligation.The author of this study takes a position that a creditor is entitled to a contractual indemnity only if he sustained a damage as a result of non-performance or improper performance of an obligation. It is indicated in the substance of articles 483 § 1 and 484 § 1 of the Civil Code. Such an interpretation neither impairs a protection of an interest of a creditor nor excludes the repressive function of a contractual indemnity. The other interpretation, shaped many years ago, is no longer up-to-date due to socio-economic and legal changes effected in Poland after 1989.Notwithstanding, within the confines of a binding principle of liberty of contract (article 3 5 3 1 of the Civil Code), a contractual clause is admissible, according to which a debtor obligates himself to pay a specified amount in the event of non-performance or improper performance of an obligation, also if a creditor does not sustain any damage. However, such a clause does not constitute a contractual indemnity in the light of the article 483 § 1 of the Civil Code. It is a clause of a guarantee character. A contractual provision is also admissible, according to which a creditor, in the event of non-performance or improper performance of an obligation, may claim from debtor an amount specified in an agreement, beside an indemnity on general principles. 

KEPEMILIKAN DAN PENGUASAAN OBJEK JAMINAN FIDUSIA APABILA TERJADI SENGKETA WANPRESTASI DALAM PERJANJIAN KREDIT

2020 ◽  
Vol 8 (1) ◽  
pp. 78
Author(s):  
Dija Hedistira ◽  
' Pujiyono
Keyword(s):  
Economic Benefits ◽  
Civil Code ◽  
The Other ◽  
Third Party ◽  
Analysis Method ◽  
The Law ◽  
The Right

<p>Abstract<br />This article aims to analyze the ownership and mastery of a fiduciary collateral object, in cases that often occur today, many disputes between creditors and debtors in fiduciary collateral agreements are caused because creditors assume that with executive rights as fiduciary recipients, the fiduciary collateral object legally owned by creditors and creditors the right to take and sell fiduciary collateral objects when the debtor defaults unilaterally, as well as the debtor who considers that the fiduciary collateral object is owned by him because the object is registered on his name, so that the debtor can use the object free as  giving to a third party or selling the object of fiduciary guarantee unilaterally. the author uses a normative <br />juridical approach, and deductive analysis method based on the Civil Code and fiduciary law applicable in Indonesia, Law No. 42 of 1999 concerning Fiduciary Guarantees. The conclusion of the discussion is the ownership of the object of the Fiduciary Guarantee is owned by the debtor in accordance with the Law, mastery of the object of collateral controlled by the debtor for economic benefits, the procedure of execution The object of Fiduciary Guarantee is carried out in accordance with the Fiduciary Guarantee Act, an alternative mediation in resolving the dispute. There needs to be clarity in the use of language in making a law, so as not to conflict with each other between Article one and the other Articles.<br />Keywords: Ownership; Mastery; Object of Fiduciary Guarantee; Debtor; Creditors.</p><p>Abstrak<br />Artikel ini bertujuan untuk menganalisis tentang kepemilikan dan penguasaan suatu objek jaminan fidusia, dalam kasus yang saat ini sering terjadi, banyak sengketa antara kreditur dan debitur dalam perjanjian jaminan fidusia disebabkan karena kreditur beranggapan bahwa dengan adanya hak eksekutorial sebagai penerima fidusia, maka objek jaminan fidusia tersebut secara sah dimiliki oleh kreditur dan kreditur berhak mengambil dan menjual objek jaminan fidusia saat debitur cidera janji<br />(wanprestasi) secara sepihak, begitupun dengan debitur yang menganggap bahwa objek jaminan fidusia tersebut dimiliki olehnya karena objek tersebut terdaftar atas namannya, sehingga debitur dapat mempergunakan objek tersebut secara bebas seperti menyerahkan kepada pihak ketiga atau menjual objek jaminan fidusia tersebut secara sepihak. penulis menggunakan pendekatan yuridis normatif, dan metode analisis deduktif yang didasarkan pada Kitab Undang-Undang Hukum Perdata<br />dan hukum jaminan fidusia yang berlaku di Indonesia, Undang-Undang No. 42 Tahun 1999 tentang Jaminan Fidusia. Kesimpulan pembahasan adalah Kepemilikan Objek Jaminan Fidusia dimiliki oleh debitur sesuai Undang-undang, penguasaan objek jaminan dikuasai debitur untuk manfaat ekonomis, prosedur eksekusi Objek Jaminan Fidusia dilakukan sesuai dengan Undang-Undang Jaminan Fidusia, alternatif secara mediasi dalam menyelesaikan sengketa yang terjadi. Perlu ada kejelasan dalam<br />penggunaan bahasa pada pembuatan suatu Undang-Undang, agar tidak saling bertentangan antar Pasal satu dengan Pasal yang lainnya. <br />Kata Kunci: Kepemilikan; Penguasaan; Objek Jaminan Fidusia; Debitur; Kreditur.</p>

scholarly journals MATRIMONIAL REGIMES IN THE NEW ROMANIAN CIVIL CODE

2013 ◽  
Vol 7 (2) ◽  
Author(s):  
Iosif Florin Moldovan
Keyword(s):  
Civil Code ◽  
The Other ◽  
Legal Documents ◽  
Legal Provisions ◽  
Marital Agreement

The matrimonial regime represents the entirety of the legal provisions concerning theproperty relations between spouses during marriage, as well as the legal documents theyconclude with other people, governing a (measurable) patrimonial asset.In addition to the legal community regime, with the adoption of the new RomanianCivil Code two new matrimonial regimes were introduced, namely the regime of propertyseparation and the regime of the conventional community.Where the two spouses opt for one of the other two regimes, instead of the legalcommunity regime, it is necessary that they should sign a marital agreement.

scholarly journals PERLINDUNGAN HUKUM BAGI KREDITUR PEMEGANG HAK TANGGUNGAN TERHADAP SENGKETA AGUNAN YANG MENGAKIBATKAN BATALNYA PERJANJIAN KREDIT

2018 ◽  
Vol 1 (1) ◽  
pp. 26
Author(s):  
Fransisca Kusuma Aryani ◽  
Gunawan Djajaputra
Keyword(s):  
Legal Protection ◽  
Civil Code ◽  
The Other ◽  
Third Party ◽  
District Court ◽  
Good People ◽  
Warning Letter ◽  
The Law ◽  
Debt Repayment ◽  
Credit Agreement

The process of granting credit with the guarantee of Mortgage Rights experienced many obstacles, one of which is the cancellation of credit agreement due to a lawsuit from a third party. Examples of problems that will researchers take is a case between PT PNM as creditor and Erlinawati as a debtor. Erlinawati applied for credit to PT PNM and pledged SHM No. 1716 without her husband's agreement, Bagus Satriya. As time went by, Erlinawati could not fulfill its obligations as stipulated in the credit agreement, and then PT PNM sent a warning letter to Erlinawati. Good people who know the land and buildings of his property are used as a direct guarantee to file a lawsuit to the Blora District Court. The Blora District Court ruled that credit agreements and Deed of Mortgage Rights (APHT) are invalid and null and void. So far the legal protection for debtors who have sued from the other party on the guarantee given by the creditor has not been regulated specially in the legislation. The law only regulates bad debts and debt repayment through the execution process stipulated in the Law on Banking and Insurance Rights Act. Legal protection that creditor can use when obtaining a lawsuit from a third party is by using the general guarantees provided for in Articles 1131 and 1132 of the Civil Code.

Projekt kompleksowej reformy niemieckiego kodeksu cywilnego w zakresie Vormundschaftsrecht – stan aktualny

2021 ◽  
Vol 1 (69) ◽  
pp. 39-63
Author(s):  
Aldona Rita Jurewicz
Keyword(s):  
Civil Code ◽  
Fundamental Concept ◽  
The Other ◽  
Legal Structure ◽  
Guardianship Law ◽  
Subsidiarity Principle ◽  
Control Authority

The paper discusses the 2nd working draft of government’s bill of reform of Guardianship Law (2. Diskussionteilentwurf ). The fundamental concept of the reform is an overall remodeling of the legal structure of the Civil Code regulations, de-bureaucratization of the requirements regarding custody of the ward’s property, his/her empowerment, introduction of the privilege to choose a non-compensated Guardian before the other types of Guardians with the simultaneous abolition of the subsidiarity principle and the cancellation of the Gegenvormund institution (a form of control authority for the supervision of Guardian).

FUNDAMENTALS OF THE THEORY OF PRE-CONTRACTUAL LIABILITY

2021 ◽  
pp. 148-161
Author(s):  
Alesya V. Demkina ◽  
Keyword(s):  
Russian Federation ◽  
Civil Code ◽  
Negotiation Process ◽  
Point Of View ◽  
Good Faith ◽  
The Other ◽  
Legitimate Interests ◽  
The Subject ◽  
The Russian Federation ◽  
Special Rules

The article deals with the relatively new rules of Art. 434.1 the Civil Code of the Russian Federation on the conduct of negotiations. Taking into account the current wording of the said rule and the experience of foreign legislation on pre-contractual liability, the article argues for different theories justifying the nature of pre-contractual legal relations and liability and gives different positions of the authors on this issue. Proceeding from the doctrinal concept of obligation and characteristics of pre-contractual relations themselves the conclusion is made that these relations, firstly, are regulated by law and, secondly, they are not simply a legal relation but an obligation. It is based on certain actions of the negotiating partners that give rise to such an obliga-tion. As such, any action that is sufficiently certain (in some cases it may be required by law) and expresses the intention of the person to regard himself as negotiating with the addressee, who will in return perform the same sufficiently certain action, can be regarded as such. The specified characteristics of an action allow us to conclude that, from the point of view of classification of legal facts, this action is an act (because it is performed with a certain in-tention evident to other participants of civil turnover) and, moreover, it is also a transaction. Special rules of the Civil Code of the Russian Federation stipulate that the actions performed to enter into negotiations (for example, if the conclusion of a contract is binding on one party) or the actions of both partners entail legal consequences - the obligation to negotiate in good faith. The analysis of these legal relationships identifies three stages in their development, charac-terises them and attempts to answer more precisely the question of who can be a participant in the negotiation process depending on the stage of the negotiation process. The subject matter of an obligation arising during pre-contractual contacts will be actions aimed at negotiating and concluding a contract. The content of the obligation arising in the course of pre-contractual contacts, based on Art. 434.1 of the Civil Code will be the obligation to negotiate in good faith (paragraph 2 of the above rule). Assuming that the legislator provides an indicative list of actions that should fall within the scope of bad faith conduct, an indicative list of the "standard" of good faith conduct at the negotiation stage is given. This includes the obligation to provide full and truthful information to a party, including the reporting of circumstances that, due to the nature of the contract, must be brought to the attention of the other party (e.g. in a sale, all encumbrances on the subject of the contract must be reported). In addition, persons are obliged to negotiate only if they intend to conclude a contract, not to terminate negotiations suddenly and unjustifiably, and to take into account the rights and legitimate interests of the other party to the negotiation. The obligation under this obligation may also include a requirement not to disclose infor-mation obtained during the negotiation of the contract.

2. Sources of international law

2021 ◽  
pp. 17-32
Author(s):  
Ilias Bantekas ◽  
Efthymios Papastavridis
Keyword(s):  
General Practice ◽  
International Law ◽  
The Other ◽  
Legal Norms ◽  
Judicial Decisions ◽  
International Theory ◽  
Subjective Element ◽  
General Principles Of Law

This chapter examines the sources of international law, ie the norms of international law that give validity to all the other international legal norms. These are enumerated in Art 38 ICJ Statute. Although quite dated, this Article is still considered as enunciating an authoritative list of the sources of international law. These are treaties; custom; general principles of law recognized by States; judicial decisions; and international theory as subsidiary sources. Particular emphasis is placed on custom, consisting of an objective element, the general practice of States, and a subjective element, the opinio juris, ie consisting of a legal conviction. There is no hierarchy between the sources of international law and both treaties and custom may exist alongside each other.

scholarly journals Movimento social de mulheres e atuação perante o poder judiciário: entre os avanços e as potencialidades ignoradas

2017 ◽  
Vol 30 (1) ◽  
Author(s):  
Ana Carolina De Morais Colombaroli
Keyword(s):  
Social Movement ◽  
Literature Search ◽  
The Other ◽  
Judicial Decisions ◽  
Legal Activism ◽  
The One

Resumo O artigo analisa a atuação do movimento social de mulheres pela via do judiciário, a fim de conquistar e garantir direitos. Busca, por um lado, investigar os avanços alcançados e, por outro, demonstrar as potencialidades de atuação ignoradas pelos feminismos, associando pesquisa bibliográfica, análise de decisões judiciais e pesquisa de jurisprudé‚ncia. Palavras-chave: Movimento Social de Mulheres. Ativismo Jurídico. Direitos da Mulher. AbstractThis paper analyses the agency of the women's social movement through the judiciary, in order to conquer and guarantee rights. Aims, on the one hand, investigate the progress achieved and, on the other, demonstrate the ignored agency capabilities by feminisms, combining literature search, analysis of judicial decisions and jurisprudence research. Keywords: Women's Social Movement. Legal Activism. Women's Rights. 

scholarly journals PROFIT AND LOSS SHARING IN THE PARTNERSHIP AGREEMENT UNDER THE NEW ROMANIAN CIVIL CODE

2013 ◽  
Vol 7 (2) ◽  
Author(s):  
Amelia Veronica Singh
Keyword(s):  
Ab Initio ◽  
Profit Sharing ◽  
Civil Code ◽  
The Other ◽  
Other Hand ◽  
The Law ◽  
Partnership Agreement ◽  
The One ◽  
Profit Share

The new Romanian Civil Code regulations have reconfirmed the rule ofproportionality when speaking about profit and loss in a partnership agreement. Basically,the law does not require that the participation of partners in profit and loss be necessarilyproportional to their contribution to the society’s capital and the associates can evendetermine their share of benefits and losses. In case the associates establish by contract onlytheir share of benefits, then their contribution to losses will become proportional to theirprofit share. If the share of profit is not proportionally equal with the contribution, then thecontribution to debts will be proportional with the profit share and not with the contributionbrought to the capital.One must keep in mind as compulsory the condition that each partner shouldparticipate both in profit and loss sharing. On the one hand, a partner cannot reserve all thebenefit for himself only, while on the other hand the partners cannot decide that one orseveral of them are exempted from participating in loss sharing. Also, they cannot set aprovision by which a partner is excluded wither from profit sharing or from participation inloss, as this provision would be void ab initio.

scholarly journals Instytucja niesłusznego zbogacenia w polskim Kodeksie zobowiązań z 1933 roku na tle współczesnych kodyfikacji

2012 ◽  
Vol 5 (4) ◽  
pp. 307-328
Author(s):  
Jan Halberda ◽  
Keyword(s):  
Civil Code ◽  
The Other ◽  
Unjust Enrichment ◽  
Polish Code ◽  
Similar Solutions ◽  
Code Civil

THE UNJUST ENRICHMENT AS REGULATED IN THE CODE OF OBLIGATIOON OF 1933 AND COMPARED WITH SIMILAR SOLUTIONS FOUND IN THE OTHER CODES F THE TIME The paper discusses the unjust enrichmennt as found in the Polish Code of Obligations of 1933. The discussion is conducted in a comparative way and makes allusions to other regulations of the time (those detectable in the ABGB, Code Civil, BGB, Obligationenrecht). It also makes reference to the solution accepted in the Polish Civil Code of 1964. What was discussed was the very construction of unjust enrichment as found in the aforementioned regulations (1), grounds for the claims (2), the scope within which the duty to return the enrichment applied (3), the nature of the claim – whether it was autonomous or subsidiary (4). In his final remarks, the author tried to assess the discussed institution as regulated in the Code of Obligations (5).

scholarly journals PENERAPAN PERJANJIAN KERJA ANTARA DIREKTUR DAN KARYAWAN TERKAIT DENGAN ASAS KEBEBASAN BERKONTRAK BERDASARKAN PASAL 1320 KITAB UNDANG-UNDANG HUKUM PERDATA

PRANATA HUKUM ◽  
2020 ◽  
Vol 15 (2) ◽  
pp. 163-171
Author(s):  
Dina Haryati Sukardi ◽  
Dian Herlambang
Keyword(s):  
Trade Unions ◽  
District Hospital ◽  
Civil Code ◽  
Regional Hospital ◽  
The Other ◽  
Freedom Of Contract ◽  
Inhibiting Factors ◽  
Employment Agreement ◽  
Bridge Workers ◽  
Made In

The principle of freedom of contract is a principle that gives freedom to the parties to: (1) make or not make an agreement; (2) entering into agreements with anyone; (3) determine the contents of the agreement, implementation, and terms; and (4) determine the form of an agreement that is written or oral. The purpose of this study is to find out whether the work agreement between directors and employees at the Hospital of Menggala based on the principle of freedom of contract is in accordance with Article 1320 of the Civil Code, knowing the inhibiting factors in the implementation of the principle of freedom contracting to an employment agreement at the District Hospital ofalaala, and the efforts made in overcoming any obstacles that occur in the implementation of the principle of freedom of contracting with an employment contract at the District Hospital.The results of the analysis carried out that the work agreement of the Cooperative Hospital meets the principle of freedom of contract. The principle of freedom of contract is a principle that gives freedom to the parties to make or not make an agreement, enter into an agreement with anyone, determine the contents of the agreement, its implementation, requirements, determine the form of the agreement, written or oral, in making the work agreement of both the Directors and workers there is no influence or pressure from the other party, both parties give freedom to the other party to express their opinions or proposals regarding the agreement material, then the work agreement of the Shepala Regional Hospital is in accordance with the principle of freedom of contract as contained in Article 1320 of the Civil Code. In carrying out the principle of freedom of contract beer to work agreements the Cooperative Hospital experienced obstacles. Constraints faced include: (1) the absence of trade unions in fighting for workers' rights (2) Low Worker Resources. The efforts of the Penggala District Hospital in facing obstacles in implementing the principle of freedom of contract to work agreements are immediately possible to form trade unions that can bridge workers and hospital directors and hold various trainings to improve the professionalism and abilities of their employees.

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