scholarly journals A recepção do duty to mitigate the loss no direito brasileiro

2019 ◽  
Vol 1 (41) ◽  
Author(s):  
José Eduardo Figueiredo de Andrade Martins
Keyword(s):  
Legal System ◽  
Common Law ◽  
Good Faith ◽  
Roman Law ◽  
Law System ◽  
Legal Provisions ◽  
The Face ◽  
The Common ◽  
The Creation ◽  
Subjective Rights

RESUMOEste artigo trata da recepção do duty to mitigate the loss no direito brasileiro, como uma solução para o ordenamento jurídico brasileiro do problema da inobservância da mitigação pelo credor em face de um inadimplemento, seja evitando ou minimizando o seu prejuízo quando este é considerado evitável. Desenvolve-se a hipótese de que é possível incorporar o duty to mitigate the loss como um desdobramento do princípio da boa-fé objetiva, como um delimitador do exercício de direitos subjetivos que se irradia por todo o ordenamento jurídico. Para tanto, é realizada uma revisão de suas origens no direito romano e no sistema de common law para que, a seguir, sejam estabelecidos os pressupostos de sua existência no ordenamento jurídico brasileiro, propondo ainda a criação de uma regra de aferição da razoabilidade. Ao final, são apontados os dispositivos legais já presentes no direito brasileiro que contêm a norma de mitigação.PALAVRAS-CHAVEDireito privado. Duty to mitigate the loss. Boa-fé. Responsabilidade contratual. ABSTRACTThis article regards the reception of duty to mitigate the loss in Brazilian law, as a solution to the Brazilian legal system of the problem of non-compliance with mitigation by the creditor in the face of breach, either avoiding or minimizing its damage when it is considered avoidable. It develops the hypothesis that it is possible to incorporate duty to mitigate the loss as an offshoot of the principle of objective good faith, as a delimiter of the exercise of subjective rights that radiates throughout the legal system. To this end, a review of its origins in Roman law and in the common law system is carried out so that, subsequently, the presuppositions of its existence in the Brazilian legal system are established, proposing the creation of a reasonability measurement rule. At the end, the legal provisions already present in Brazilian law that contain the mitigation rule are pointed out.KEYWORDSPrivate law. Duty to mitigate the loss. Good faith. Contractual liability.

scholarly journals GOOD FAITH IN FRANCHISE CONTRACT

2020 ◽  
Vol 5 (19) ◽  
pp. 118-127
Author(s):  
Nurli Yaacob ◽  
Nasri Naiimi
Keyword(s):  
Common Law ◽  
Good Faith ◽  
Relational Contracts ◽  
Law System ◽  
Freedom Of Contract ◽  
Term Contract ◽  
The Common ◽  
Definition Of ◽  
The Right

Good faith has been defined as justice, fairness, reasonableness, decency, taking no chances, and so on. The concept of good faith has long been rooted in contract law under the jurisdiction of Civil law, although the definition of it is still debated until today. However, the view of the Common Law tradition does not recognize the concept of good faith as long as the contract is entered into with the freedom of contract and both parties abide by the terms of the contract. Given that a franchise contract involves a long-term contract and always been developed, it is impossible to define both rights and responsibilities base on express terms only. As such, the franchise contract gives the franchisor the right to exercise its discretion in executing the contract. It is in this context that the element of good faith is very important to ensure that the franchisor does not take advantage of the franchisee and that the business continues to prosper. Therefore, the objective of this article is to discuss the concept of good faith in a franchise contract. The findings show that the common law system that initially rejected the application of the concept of good faith also changed its approach and began to recognize the concept of good faith as it is very important for relational contracts such as franchise contracts.

British Virgin Islands

2020 ◽  
Author(s):  
Arabella di Iorio
Keyword(s):  
Supreme Court ◽  
Legal System ◽  
Common Law ◽  
Virgin Islands ◽  
British Virgin Islands ◽  
Law System ◽  
The Common ◽  
Eastern Caribbean ◽  
Common Law System ◽  
Trust Law

The legal system of the British Virgin Islands is a common law system based on the English model, comprising statute law and binding case precedents. The principles of English common law and equity apply in the BVI (subject to modification by BVI statutes) pursuant to the Common Law (Declaration of Application) Act (Cap 13) and the Eastern Caribbean Supreme Court (Virgin Islands) Act (Cap 80) respectively. The general principles of trust law are based on English law.

scholarly journals Precedent as a Core Component of Anglo-American Law and Its Penetration into the Legal System of Ukraine

2020 ◽  
pp. 119-127
Author(s):  
Nepyivoda Vasyl ◽  
Nepyivoda Ivanna
Keyword(s):  
Legal System ◽  
Common Law ◽  
Civil Law ◽  
Legal Tradition ◽  
Stare Decisis ◽  
Law System ◽  
American Law ◽  
Judicial Lawmaking ◽  
The Common ◽  
Anglo American

The Anglo-American law have a considerable amount of accomplishments, which have become a worldwide asset. In terms of globalization and interaction, to use these achievements would be beneficial for further development of Ukrainian legal system. However, the very philosophy and reasoning behind the precedent-based common law is different from that in the civil law tradition of which the Ukrainian law is a part. This paper is intended to contribute to the examination how the mechanism of Anglo-American law operates in view of the expediency to introduce some of its elements into the Ukrainian jurisdiction. The initial part devoted to the emergence of, and formation of, the common law. It is noted that in the case of common law the influence of Roman law should not be denied. Relying mostly on praetorium ius experience, it has manifested itself in other directions and forms compare to civil law system. Therefore, the both, common law and civil law, despite their differences have been formed on the common ground – the Roman legal tradition. Taking into consideration that throughout their history they exchanged fruitful ideas, there is no irreconcilable, "genetic" incompatibility between them. Thus, it would allow to successfully implant certain common law elements, first of all precedent as a source of law, in the body of Ukrainian law, a part of civil law system. The paper notes that issues of common law mechanism have never been a priority for scholarly research in Ukraine as in a country of civil law tradition. The inertial influence of the Soviet law has also contributed to this situation. According to the communist ideology and the positivist visions on which the Soviet law was based, the precedent has not been considered as an acceptable legal instrument. In order to clarify how the mechanism works, the paper provides an overview of precedent and stare decisis doctrine as key components of common law. While a principle of stare decisis binding courts to follow legal precedents in cases with similar circumstances is in the core of Anglo-American law, in civil law systems precedent is not considered as binding. This discussion is followed by an analysis of judicial lawmaking. The paper specifies that in the common law systems, courts are not absolutely bound by precedents. In terms of radical changes in political, social or legal areas, they are entitled to re-examine and apply the law differently without legislative intervention, to adapt it to new circumstances. Thus, the Anglo-American legal tradition provides much broader scope for judicial lawmaking than Romano-German law. However, there is no consensus on the range to which it should be extended and to which extent it should rely on precedent. Within the framework of this controversial issue judicial activism and judicial restraint, two opposite philosophies of making a ruling in common law, are addressed. In order to examine the multifaceted nature of correlation between stare decisis principle and judicial lawmaking, the latest experience of the Supreme Court of the United States' on overruling precedents is considered. The paper summarizes that, most likely, mixed legal system associated with Nordic countries should be set as the reference point for the movement of Ukraine in this area. Such approach would provide rather broad scope for the operation of the common law elements, while safeguarding its omissions such as unjustified judicial activism.

scholarly journals Precedent Precedent in the Russian legal system contemporarily

2017 ◽  
Vol 33 (3) ◽  
Author(s):  
Mai Văn Thắng
Keyword(s):  
Legal System ◽  
Federal Court ◽  
Stare Decisis ◽  
Law System ◽  
Legal Principles ◽  
Legal Documents ◽  
Lower Courts ◽  
The Common ◽  
The Creation ◽  
The Guardian

The Article focus on analyzing the fundamental reasons fostering the creation and progress, the nature, the position and value of precedent as a source of law within the Russian legal system contemporarily. Accordingly, the construction of a state in which the rule of law, the democracy, the integration, the recognized of fundamental legal principles such as the court must not deny resolving cases, the guardian of the court to the basic human rights as well as citizen rights, the judges do not rely solely on the laws but also on their conscience to accomplish the mission of protection of justice, the existence of a  constitutional federal court, have been considered the main reasons promoting the creation of caselaw in Russia in reality at the period after Soviet. However, there is not any official legal documents governing precedent in Russia so far. Unlike the "stare decisis" principle in the Common law system, precedent in Russia only plays an inferior role which is a supplement source considered legal interpreting in the system.  Precedents in Russia are also not granted an official authorization as well as not selected or published, instead of that, case laws are the opinions, decisions from the superior courts which are believed to be trustworthy, outstanding, valuable and appropriate. These case laws would be cited in the lower courts although some of them which were granted by Constitution Federal Court may not follow previously mentioned principle because of their own binding rules. The opinions, legal reasonings considered the content of the precedents are not the laws.

scholarly journals Piercing the Corporate Veil and Ambiguities in the Iranian Legal System: A Comparative Study with California Law

2020 ◽  
Vol 13 (2) ◽  
pp. 209
Author(s):  
Ahmad Torabi
Keyword(s):  
Comparative Study ◽  
Legal System ◽  
Common Law ◽  
Law System ◽  
Iranian Law ◽  
System A ◽  
Commercial Code ◽  
Legal Challenges ◽  
The Common ◽  
Piercing The Corporate Veil

This paper focuses on the situation of doctrine of “piercing the corporate veil” in the current Iranian legal system especially in the Iranian Commercial Code and in the Iranian Civil Code. The author discusses the ambiguities and legal challenges which arise, directly or indirectly, from implementation of these challenges. There is also a comparative study of the doctrine with the common law system. The paper aims to highlight the defects of this doctrine in the Iranian law system and provides suggestions to improve it.

scholarly journals The Conceptual Analysis of the Doctrine of Proportionality and, its Role in Democratic Constitutionalism; A Case Study of UK

sjesr ◽  
2021 ◽  
Vol 4 (1) ◽  
pp. 204-210
Author(s):  
Dr. Syed Raza Shah Gilani ◽  
Hidayat Ur Rehman ◽  
Dr. Ilyas Khan
Keyword(s):  
Legal System ◽  
Common Law ◽  
Constitutional Rights ◽  
Basic Principles ◽  
Law System ◽  
The People ◽  
The Common ◽  
Common Law System ◽  
Democratic Norms

For the last few decades, the doctrine of proportionality has demonstrated and corroborated that it is the most effective legal standard used around Europe for the adjudication of constitutional rights. From its German origins, proportionality has migrated across jurisdictions and areas of law and has become one of the most successful legal transplants. However, there is some confusion as to whether there is any justification for the intervention of this in the UK's legal system, as the UK's legal system is based on common law, and did not welcome this doctrine very much. Therefore, it is essential to analyze the basic principles of this doctrine and check its compatibility with the common law system, which is based on democratic norms. To test the similarity, this article would also reflect on the underlying characteristics of the theory of proportionality and equate it with the standards of a democratic society. To begin with, this article first endeavors to analyze the legal sources of the doctrine of proportionality and then examines its affinity with the democratic norms of the common law system to investigate the compatibility level with each other in protecting the constitutional rights of the people.

Judicial Review of Decisions

2019 ◽  
pp. 145-164
Author(s):  
John Baker
Keyword(s):  
Judicial Review ◽  
Common Law ◽  
Administrative Law ◽  
Present System ◽  
Habeas Corpus ◽  
Law System ◽  
The Face ◽  
History Of ◽  
The Common ◽  
Common Law System

This chapter is concerned with the history of mechanisms for reviewing judicial and administrative decisions. It begins with the writ of error, which was confined to errors on the face of the record of a court of record and therefore not an appeal as now understood. But informal methods were developed for reserving points to be discussed by all the judges of England, usually in the Exchequer Chamber or Serjeants’ Inn. Appeals in a wider sense began in Chancery and were not brought into the common-law system till 1875. The ‘prerogative writs’ of prohibition, habeas corpus, certiorari, and mandamus, enabled the King’s Bench to review inferior jurisdictions and also the exercise of power by officials and ministers. It is explained how this grew into the present system of administrative law. There is also a brief account of the rise of tribunals, and how their decisions came to be reviewable.

5. The constitution of trusts

2019 ◽  
pp. 97-126
Author(s):  
Gary Watt
Keyword(s):  
Common Law ◽  
Roman Law ◽  
Legal Knowledge ◽  
Key Points ◽  
The Common ◽  
The Creation

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. The formality requirements of a trust aim to prevent secret fraudulent dealings and to achieve certainty through the recording of transactions. In contrast, no trust exists if the requirements of valid constitution are not complied with. These requirements are designed as a precaution against the casual creation of trusts, a sensible approach given the dramatic consequences of the typical express trust of property. This chapter deals with the constitution of trusts and discusses the distinction between requirements of constitution and formality in relation to the creation of trusts. It also looks at a validly constituted trust, the maxim that equity will not assist a volunteer, how the common law can assist in the constitution of trusts and a valid donatio mortis causa. In addition, the chapter considers constitution by transfer of legal title to trustees as well as assistance from Roman law with respect to constitution of trusts.

The Efficient Breach Theory under Jordanian Civil Law

2016 ◽  
Vol 30 (4) ◽  
pp. 336-356
Author(s):  
Yusuf Mohammed Gassim Obeidat
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Good Faith ◽  
Breach Of Contract ◽  
Law System ◽  
Legal Rules ◽  
Specific Performance ◽  
History Of ◽  
The Common ◽  
The Right

This study examined the ‘efficient breach’ theory and its possible application under Jordanian Civil Law. The theory says the promisor has the right to breach a contract and pay damages whenever his profit from breach exceeds his expected profits from performance. As a prerequisite for its application, the theory requires the general remedy for breach to be the payment of damages, rather than forced performance. Thus, the main area for its application is the common law system, since it favours damages as a primary remedy. This study reached the conclusion that the theory cannot work under Jordanian Civil Law, where the primary remedy for breach of contract is specific performance, that forces the promisor to complete the contract. In addition, it contradicts the good faith principle that Jordanian law is based upon, amongst other principles, and goes against the history of Jordanian legal rules.

scholarly journals The Mistaken Doctrine of Common Law: A Critique

2016 ◽  
Vol 7 (3) ◽  
pp. 173-181
Author(s):  
Lukáš Nikodym ◽  
Tomáš Nikodym ◽  
Tereza Pušová
Keyword(s):  
Business Cycles ◽  
Legal System ◽  
Common Law ◽  
Civil Law ◽  
Roman Law ◽  
The Creation ◽  
Anglo American ◽  
American Legal System

Abstract The study deals with Huerta de Soto’s thesis about the “mistaken doctrine of common law”, which is based on the equalization of depositum irregulare and mutuum contracts. He concluded that equalization of these contracts resulted in the creation of business cycles. According to this study, Huerta de Soto made a mistake when considering contracts inspired by the continental law based on Roman law. The study shows that mutuum was even in Roman law an ancient contract that was not codified, and that Huerta de Soto’s interpretation of this contract in the Anglo-American legal system is based more on civil law, not on common law as he stated in his work. Finally, the problem of common law did not lie in the equalization of the mentioned contracts, but rather in the absence of depositum irregulare contracts applied to monetary questions.

Sign in / Sign up

Export Citation Format

Share Document