scholarly journals Confidentiality - A Two-Appeal Principle

2018 ◽  
Vol 1 (3) ◽  
pp. 53
Author(s):  
Dr. Brunela Kullolli
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Contract Law ◽  
Good Faith ◽  
The Third ◽  
Article Analysis ◽  
The Common ◽  
The Moment ◽  
Contractual Relation

This article analysis relates to the creation of conditions for the conclusion of the contract.This is the moment when the negotiating parties determine whether there will be a contract or not. This is the stage that in the best case is finalized with the contract signing.Known as the pre-contractual stage, it is considered as the foundation of the contractual relationship.Conduct in good faith at the stage of entering into a contract would also avoid causing potential damages and liability".- The first part gives , of Completion of the contract in good faith, is a legal requirement under the Civil Laë tradition, but unlike the requirement for pre-contractual trust, finds place in the Common Law tradition.In this part of the study, the detailed treatment of the manner of performance of the contract will be set aside, focusing mainly on the obligations that dictate its fulfillment in good faith and the liability incurred in the event of its absence . The second part is concentrated, Contract Interpretation. The third part will be treated as a brief and comparative overview of the common law of Civil Law in the interpretation of the contract, taking into account the main interpretative criteria, to underline the main differences between them. Among all the criteria, the focus will be on trust, which is sanctioned as a special criterion of interpretation by the Civil Law countries. The fourth part analysis the validity of the contract.In this last part of the chapter, I will try to clarify the confusion created between the rules of contract validity and the rules of conduct, as well as the role and impact of the breach of the trust principle in the validity of the contract. Conclusions .Regarding the situations that arise for the damage that comes to the parties from non-fulfillment of obligations and breach of the principle of good faith during the contract's formation, it is necessary to clarify how the type of damage that came during the pre-contractual phase and which interest has failed to realize one of the parties. In fact, this is a genuine duty of the court which, as the case may be, must specify exactly: the responsibility of the parties, the interest that has been violated, the type of damage that has been caused.Keywords: contract law ,internal law ,contractual relation,internal contract interpretation, civil law

Classifying precontractual liability: a comparative analysis

Legal Studies ◽  
2001 ◽  
Vol 21 (2) ◽  
pp. 153-191 ◽  
Author(s):  
Joachim Dietrich
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Tort Law ◽  
Contract Law ◽  
Common Elements ◽  
Ongoing Debate ◽  
Unjust Enrichment ◽  
The Common ◽  
Initial Focus

The common law has solved questions of liability arising in the context of precontractual negotiations by resort to a range of different doctrines and approaches, adopting in effect ‘piecemeal’ solutions to questions of precontractual liability. Consequently, debate has arisen as to how best to classify or categorise claims for precontractual work and as to which doctrines are best suited to solving problems arising from anticipated contracts. The purpose of this article is to consider this question of how best to classify (cases of) precontractual liability. The initial focus will be on the ongoing debate as to whether principles of contract law or principles of unjust enrichment can better solve problems of precontractual liability. I will be suggesting that unjust enrichment theory offers little by way of explanation of cases of precontractual liability and, indeed, draws on principles of contract law in determining questions of liability for precontractual services rendered, though it does so by formulating those principles under different guises. Irrespective, however, of the doctrines utilised by the common law to impose liability, it is possible to identify a number of common elements unifying all cases of precontractual liability. In identifying such common elements of liability, it is necessary to draw on principles of both contract and tort law. How, then, should cases of precontractual liability best be classified? A consideration of the issue of classification of precontractual liability from a perspective of German civil law will demonstrate that a better understanding of cases of precontractual liability will be gained by classifying such cases as lying between the existing categories of contract and tort.

7. Privity of contract and third party rights

2021 ◽  
pp. 307-358
Author(s):  
Robert Merkin ◽  
Séverine Saintier
Keyword(s):  
Common Law ◽  
Case Law ◽  
Contract Law ◽  
Third Parties ◽  
Third Party ◽  
The Third ◽  
The Subject ◽  
The Common ◽  
Contractual Obligations ◽  
Privity Of Contract

Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. This chapter examines privity of contract, its relationship with consideration, and the ability of third parties to enforce contractual provisions for their benefit. The doctrine of privity of contract provides that the benefits of a contract can be enjoyed only by the parties to that contract and only parties can suffer the burdens of the contract. At common law, third party beneficiaries could not enforce a contractual provision in their favour so various devices were employed seeking to avoid privity. Statute now allows for direct third party enforcement but in limited circumstances. This chapter examines the background to privity and the attempted statutory reform in the Contracts (Rights of Third Parties) Act 1999 as it has been interpreted in the case law. The chapter also discusses the common law means of avoiding privity as illustrated by the case law, e.g. agency, collateral contracts, and trusts of contractual obligations. Finally, it assesses the remedies available to the contracting party to recover on behalf of the third party beneficiary of the promise, including the narrow and broad grounds in Linden Gardens Trust. It concludes by briefly considering privity and burdens—and the exceptional situations where a burden can be imposed on a person who is not a party to the contract.

Formation of Contract and Stipulations for Third Parties in Indonesia

2018 ◽  
Author(s):  
Gary F Bell
Keyword(s):  
The Netherlands ◽  
Common Law ◽  
Civil Law ◽  
Essential Element ◽  
Contract Law ◽  
Third Parties ◽  
Legal Tradition ◽  
The World ◽  
The Common ◽  
The Law

Indonesia is one of the most legally diverse and complex countries in the world. It practises legal pluralism with three types of contract law in force: adat (customary) contract laws, Islamic contract laws (mostly concerning banking), and the European civil law of contract, transplanted from the Netherlands in 1847, found mainly in the Civil Code (Kitab Undang-Undang Hukum Perdata). This chapter focuses on European civil law as it is the law used for the majority of commercial transactions. The civil law of contract is not well developed and there is a paucity of indigenous doctrine and jurisprudence, since most significant commercial disputes are settled by arbitration. The contours of the law are consistent with the French/Dutch legal tradition. In the formation of contracts, the subjective intention of the parties plays a greater role than in the common law. As with most jurisdictions with a Napoleonic tradition, the offer must include all the essential element of the contract, there is no concept of ‘invitations to treat’ or of ‘consideration’, the common law posting rule is rejected, and the contract is formed only when the acceptance is received. There are generally few requirements of form but some contracts must be in writing and some in a notarial deed.

THE THOUGHTS ON THE DIFFERENCES IN THE CONTRACT LAW TRADITIONS IN THE COMMON LAW AND THE CIVIL LAW LEGAL SYSTEMS

2021 ◽  
Vol 21 (3) ◽  
pp. 108-116
Author(s):  
K.A. USACHEVA
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Contract Law ◽  
Legal Systems ◽  
The Common

The extent to which the contract law traditions in the common law systems really differs from those in the civil law ones is discussed in the article. Today, the existence of such differences is difficult to reject, but their modern description looks more like rough cartoon sketches, which do not take into account lots of additional factors. The article proposes considering this matter more carefully.

Brownsword, R and Howells, G, ‘The implementation of the EC Directive on Unfair Terms in Consumer Contracts – some unresolved questions’ [1995] JBL 243. Brownsword, R, Howells, G and Wilhelmsson, T (eds), Welfarism in Contract, 1994, Aldershot: Dartmouth. Burrows, A, (ed), Essays on the Law of Restitution, 1991, Oxford: Clarendon. Burrows, A, The Law of Restitution, 1993, London: Butterworths. Burrows, A, Understanding the Law of Obligations, 1998, Oxford: Hart. Burrows, A, ‘Free acceptance and the law of restitution’ (1988) 104 LQR 576. Carr, C, ‘Lloyd’s Bank Ltd v Bundy’ (1975) 38 MLR 463. Cheshire, G, Fifoot, C and Furmston, M, Law of Contract, 13th edn, 1996, London: Butterworths/Tolley. Chitty (Guest, AG (ed)), Contracts: General Principles, 27th edn, 1994, London: Sweet & Maxwell. Coase, R, ‘The problem of social cost’ (1960) 3 Journal of Law and Economics 1. Collins, H, Law of Contract, 3rd edn, 1997, London: Butterworths. Collins, H, ‘Good faith in European contract law’ (1994) OJLS 229. Cooke, PJ and Oughton, DW, The Common Law of Obligations, 3rd edn, 2000, London: Butterworths. Coote, B, Exception Clauses, 1964, London: Sweet & Maxwell. Coote, B, ‘The Unfair Contract Terms Act 1977’ (1978) 41 MLR 312. De Lacey, J, ‘Selling in the course of a business under the Sale of Goods Act 1979’ (1999) 62 MLR 776. Dean, M, ‘Unfair contract terms – the European approach’ (1993) 56 MLR 581. Duffy, P, ‘Unfair terms and the draft EC Directive’ (1993) JBL 67. Evans, A, ‘The Anglo-American mailing rule’ (1966) 15 ICLQ 553. Fehlberg, B, ‘The husband, the bank, the wife and her signature – the sequel’ (1996) 59 MLR 675.

1995 ◽  
pp. 808-808
Keyword(s):  
Law And Economics ◽  
Common Law ◽  
Contract Law ◽  
Good Faith ◽  
European Contract ◽  
Consumer Contracts ◽  
The Common ◽  
The Law ◽  
Anglo American ◽  
Unfair Terms

Freedom of Testation and Family Claims in Canada

2020 ◽  
pp. 507-533
Author(s):  
Alexandra Popovici ◽  
Lionel Smith
Keyword(s):  
First Nations ◽  
Common Law ◽  
Civil Law ◽  
Federal Law ◽  
Deceased Person ◽  
Legal Obligations ◽  
The Family ◽  
The Common ◽  
The Moment ◽  
Law Of Succession

The province of Quebec has a civilian law of succession, while the common law governs in the other provinces and in the territories. At the dawn of the twentieth century, an unbridled freedom of testation prevailed in most of Canada. In the decades that followed, the law evolved to temper this principle in favour of protecting the family of a deceased person, so that obligations of support did not simply vanish upon death. The shape and structure of provision for the family is, however, diverse across the country. There is a great deal of variation even among the statutory regimes in the common law provinces, under which courts have the discretion to grant an allowance; some require a claimant to show need, an inter vivos obligation of support, or both, while others allow claims even by adult independent children. In relation to those members of First Nations to whom it applies, federal law grants a wide power to intervene in the distribution of an estate, in this case not to the courts but to the relevant minister. Quebec law, by contrast, aims to convert legal obligations of support that existed at the moment of death into claims against the estate, rejecting any wide discretion and preserving freedom of testation as much as possible. In a broadly comparative context, the unexpected conclusion is that in Canada, it is not the common law but the civil law of Quebec that offers the most freedom to a testator.

The principle of good faith in the performance of contractual obligations under the common law of Canada and the law of Quebec

2018 ◽  
pp. 86-93
Author(s):  
D. S. Alyakin
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Good Faith ◽  
Supreme Court Of Canada ◽  
Legal Analysis ◽  
Legal Method ◽  
The Common ◽  
The Law ◽  
Contractual Obligations

Introduction. In the paper, the author analyzes the principle of good faith in contractual performance under the common law of Canada and carry out a legal analysis of one of the key judicial precedents that is in relation to the designated area and that was adopted by the Supreme Court of Canada in 2014, i.e. Bhasin v. Hrynew case. The study is focused on the principle of good faith contractual performance under the law of the Canadian province of Quebec as well.Materials and methods. The material for the study consists of the judicial precedents of Canadian courts as well as the papers of foreign and Russian researchers in the field of civil law. The methodological basis of research comprises general scientific methods of cognition (analysis, synthesis, analogy) as well as specific ones, i.e. the comparative legal method, the formal logical method, the systematic method, methods of structure and function and the method of interpretation.Results. The author conducts a detailed analysis of Bhasin v. Hrynew case and determines the role of this precedent in the common law of Canada as well as the criteria for identifying the principle and a duty of good faith contractual performance. The author also analyzes the principle of good faith under the law of Quebec, i.e. the relevant jurisprudence and the codification of this principle in the legislation of Quebec.Discussion and conclusion. The distinction of the principle of good faith in the performance of contractual obligations as a freestanding principle of Canada’s common law is justified. The Bhasin v. Hrynew case is a vivid illustration of the growing role of the principle of good faith in the countries of the common law tradition. Furthermore, the convergence of Canada’s common law and the law of the province of Quebec, the only one among ten provinces and three territories of Canada that clearly adheres to civil law tradition, is an impact on this precedent.

La nueva perspectiva de la tutela del error en el moderno derecho de los contratos

2014 ◽  
pp. 863
Author(s):  
Rocío Herrera Blanco
Keyword(s):  
Comparative Study ◽  
Common Law ◽  
Civil Law ◽  
Contract Law ◽  
Civil Code ◽  
European Contract ◽  
Legal Effect ◽  
The Common ◽  
The Impact ◽  
European Contract Law

Premio de artículos jurídicos «GARCÍA GOYENA» (Curso 2013-2014). Primer accésit Todos los ordenamientos jurídicos europeos prevén normas relativas a la ineficacia de los contratos por vicios del consentimiento, sin embargo, existen entre ellos diferencias bastante significativas, especialmente cuando se comparan el Common Law y los derechos continentales. El presente estudio comparado parte del tratamiento de esta cuestión en la regulación española y se centra en las propuestas que el moderno Derecho de la contratación proporciona en materia de vicios del consentimiento, con particular atención a la figura del error, así como en el Derecho anglosajón, por su eventual influencia en la regulación de estos instrumentos. De manera muy amplia, podríamos decir que el Common Law enfatiza la seguridad de las transacciones, mientras que los sistemas del Civil Law, quizás todavía marcados por las huellas de las llamadas teorías voluntaristas, son más transigentes en permitir la ineficacia de los contratos por defectos del consentimiento. Partiendo de esta premisa, intentaremos evidenciar que las soluciones brindadas por el Derecho anglosajón y los diferentes instrumentos de unificación para la determinación de los efectos jurídicos del error son muy similares. Asimismo, en este trabajo se defiende la tesis de la obsolescencia del Código Civil español en esta materia, y la consecuente necesidad de adaptación del mismo a la actual realidad social, a través de un propósito de homogeneización del Derecho contractual europeo. Para ello, igualmente estudiaremos la Propuesta de modernización del Código civil en materia de obligaciones y contratos, cuya regulación del error, en particular, merece ser objeto de estudio y confrontación de ideas.The legal systems of all european countries provide rules regarding the inefficacy of contracts due to defects of consent, however, there are very significant differences between them, with the deepest differences when Common law and continental systems are contrasted. The present comparative study focuses on the proposals that the modern contract law (PECL, Unidroit Principles, DCFR, CESL) provides with regard to defects of consent and, particularly, to the doctrine of mistake, as well as the Common law for its eventual influence on the regulation of these projects. Very generally, we could say that Common Law emphasizes the security of transactions, while Civil law systems, perhaps still under the impact of the eroded voluntarist theories, are more generous in allowing the inefficacy of contracts due to defects consent. Given these premises, we will try to evidence that the solutions provided by the Common law and the different unifying instruments in order to determinate the legal effect of the defects of consent are very similar. Furthermore, this survey defends the thesis of obsolescence of the spanish Civil Code respecting defects of consent, and the ensuing need for adapting it to the current social reality through a purpose of homogenization of european contract law. Due to this fact, we will also study the Proposal for the modernization of the Civil Code on obligations and contracts, whose regulation of defects of consent, particularly, diserves to be analyzed.

Contracts for the Benefit of Third Parties: The Singapore Law Perspectives

2018 ◽  
Author(s):  
ONG Burton
Keyword(s):  
Common Law ◽  
Contract Law ◽  
Third Parties ◽  
Third Party ◽  
The Third ◽  
The Status ◽  
The Common ◽  
English Law ◽  
The Third Party ◽  
Privity Of Contract

Singapore’s contract law framework, in the context of third party beneficiaries, has stayed faithful to the approach taken under English law. The common law in Singapore has adopted the privity of contract rule, various common law exceptions to the rule, and a statutory regime to empower third parties to enforce contractual terms in prescribed circumstances. The privity rule confines the benefits and burdens under a contract to the contract parties; only they have given consideration and only they can sue and be sued under it. However, various reasons support the third party beneficiary having some right to enforce that benefit and a range of common law mechanisms have been recognized by the courts to allow the third party to do this. Some are true exceptions, others operate by recharacterizing the status of the third party into that of a primary party, thereby eliminating the lack of privity. In cases where the third party may potentially be able to sue the promisor in tort, the basis for loosening the privity doctrine to permit the third party to sue the promisor in contract, and the character of the damages recoverable from the party in breach, requires closer scrutiny.

scholarly journals International trade and transnational law

2020 ◽  
Vol 2 (2) ◽  
pp. 9-34
Author(s):  
Michael Bridge
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Standard Form ◽  
Contract Law ◽  
Historical Survey ◽  
Hard Law ◽  
Key Points ◽  
Uniform Law ◽  
The Common ◽  
Standard Terms

This article deals with the globalisation of contract law. It begins with an historical survey before taking an inventory of the various types of uniform law. These range from 'hard' law, such as multilateral treaties, to 'soft' law, an expression that captures various non-binding instruments that can usefully be employed by contracting parties and sovereign states. These include contractual standard terms (e.g. Incoterms 2020) and standard form contracts (e.g. ISDA contracts), as well as UNCITRAL model laws. The influence of national law in the globalisation process is noted, whether it takes the form of influencing the laws of other states or provides input into the creation of uniform law. The UN Convention on the International Sale of Goods (CISG) is examined at key points with reference to the influence exerted by the civil law and the common law in its creation. The importance of maintaining the uniform character of the CISG is underlined. Finally, the role played by the UNIDROIT Principles of International Commercial Contracts (PICC) is also examined.

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