scholarly journals Venire contra factum proprium nemini licet –– Changing fortunes of the maxim demanding the constancy in conduct

2020 ◽  
Vol 3 (53) ◽  
Author(s):  
Wojciech Tadeusz Dajczak

Key words: estoppel, legal principles, good faith, European legal tradition

ANCIENT LAND ◽  
2021 ◽  
Vol 04 (02) ◽  
pp. 46-48
Author(s):  
Tahmina Shahin Alizada ◽  

The article describes the fundamental principles of marine insurance. It mainly examines the principle of "utmost good faith" which is the cornerstone of insurance law. The main aim of an article is to help the reader to gain basic knowledge and understanding of the legal principles of marine insurance. The fundamental principles governing marine insurance are very helpful in the assessment of loss and the claim in the maritime insurance industry. As in all contracts of insurance on the property, also marine insurance contract is based on the fundamental principles. Key words: marine insurance, Marine Insurance Act 1906, principles of marine insurance, utmost good faith, insurable interest


Author(s):  
Irina Chereshneva

Due to continuing interest of legal community to the problematic of preventing contradictory behavior or in the Anglo-American legal tradition – estoppel, the subject of this research is an attempt of determination of legal nature of the so-called norms of the Civil Code of the Russian Federation on estoppel. The selected topic is relevant due to the fact that there is no unanimity of opinions regarding the nature of estoppel; it is viewed as interdisciplinary principle, doctrine, institution of law, sanction for violation of the principle of good faith, one of the manifestations of the principle of good faith, legal mechanisms etc. An attempt is made to view estoppel from different perspectives: through the prism of the English promissory stopper, from the position of continental maxim “venire contra factum proprium", in relation with the principle of good faith. The conclusion is made that the so-called norms on estoppel in the Civil Code of the Russian Federation represent a special case of the doctrine of noncontradictory behavior, known to the continental legal order through the maxim “venire contra factum proprium", which is a manifestation of the principle of good faith. Based on this fact, it is inappropriate to designate the aforementioned norms as estoppel, since even in Anglo-American tradition, the variety of estoppels does not allow considering it a universal principle, and understanding of estoppel thereof does not correspond with its Russian interpretation. Moreover, being a part of Romano-Germanic legal family, there is no need for the Russian legal order to borrow foreign legal phenomena, especially when the evolution of similar legal constructs can be traced in the fold of continental system of law, which Russia belongs to.


2020 ◽  
Vol 41 (2) ◽  
pp. 469-482
Author(s):  
Ivan Milotić

The protocol of Petar Lazarić, who was simultaneously a domestic priest, prebendary and a notary of Mošćenice, dates back to 1621. It originated in Mošćenice and records in glagolithic script a resolution of a private dispute concerning the property division which was achieved in arbitration. Although the wording of the documents reveals the glagolithic script and is fully made in the Croatian language, if we go beyond that and explore the origins of the essential terms and expressions, we may reach a conclusion that the document substantially records Latin (or Italian) legal technical language which was slightly Croatised in the process of its adoption into the legal system of the commune of Mošćenice. Moreover, the content of the document puts forth legal principles, concepts and institutes of the extrajudicial dispute resolution which were consistently applied in Mošćenice following the model of arbitration in Roman law. All the essentials of the document at hand reflect the strong influences of the Roman legal tradition and the ius commune. The author provides an analysis in this paper which addresses all the relevant institutes that were applied in the arbitration dispute at hand referring to the procedural and substantive law at the same time. The author searches for the Roman model of these institutes, evaluates them from perspective of Roman and canon law of the Middle and New Ages and, finally, he brings this particular legal source in relation to the other two which originated in Mošćenice in the first half of the 17th century that both record significant influences of the Roman legal tradition of the time: The Statute of Mošćenice of 1637 and the boundary dispute between Lovran and Mošćenice of 1646.


Author(s):  
Furmston Michael ◽  
Tolhurst Gregory

This text provides a scholarly and practical analysis of the legal principles which govern the formation of contracts in English law, offering those involved in litigation and in drafting contracts a guide to the application of those principles in practice. The book reviews all the classical rules governing contract formation with extensive coverage of difficult areas such as certainty, conditional contracts, good faith negotiations, auctions, tenders, on-line contracting and the assessment of conduct and silence in contract formation. It also discusses the efficacy, problems and rules around modern contracting, in particular the use of heads of agreement, letters of intent, letters of comfort and the methods of resolving a battle of the forms. In this second edition a chapter has been added on consideration and estoppel. Although this work is based on English law, the text draws upon decisions in other jurisdictions such as Australia, Canada, the United States, Singapore and New Zealand, where these inform the development of principles in English law.


Jurnal Hukum ◽  
2016 ◽  
Vol 31 (1) ◽  
pp. 1655
Author(s):  
Nugraha Pranadita

Abstrak: Di Indonesia saat ini sedang berkembang pemikiran tentang penerapan prinsip syariah dalam bidang-bidang perekonomian, termasuk dalam hal perlindungan Hak Kekayaan Intelektual (HKI). Pemikiran tersebut berbeda dengan “pemikiran barat” yang menjadi dasar dibentuknya undang-undang terkait perlindungan HKI yang sudah ada di Indonesia. Rumusan konsep perlindungan HKI syariah adalah sebuah konsep hasil penggabungan fungsi beberapa pranata hukum yang ada. Hal tersebut memungkinkan rumusan konsep perlindungan HKI syariah ini dapat segera diterapkan di Indonesia dan tetap menjadi bagian dari sistem hukum nasional dan sekaligus menjadi bagian dari tradisi hukum yang ada di dunia. Kata kunci: Perlindungan HKI syariah, konsep, implementasi.  Abstract: In Indonesia, the idea of applying the sharia principles in economy fields is currently developing, including the protection of Intellectual Property Rights (IPR). This idea is substantially different from the "western thought" which became the basis of the law establishment regarding the protection of Intellectual Property Rights in Indonesia. The formulation of the concept of sharia IPR protection is a concept of the result of merging some functions of the existing legal order. It allows the formulation of the concept of IPR protection sharia to be immediately applied in Indonesia and remains a part of the national legal system and also become part  of the legal tradition in the world. Key words : Sharia IPR Protection, concept, implementation.


2015 ◽  
Vol 10 (1) ◽  
pp. 63-88
Author(s):  
Francesco Alicino

In this article the author analyses the influence of Islamic references in the 2011 Moroccan constitutional reform that, far from taking place in a vacuum, was informed both by an internal political perspective and by the broader context of what has come to be called the “Arab Spring”. It will be outlined that, on the one hand, Islamic legal tradition interacts with Western legal principles; while on the other hand the exceptionalism of the “Moroccan Spring” reveals that those very principles are contextualized and adapted within this executive Islamic monarchy.


2008 ◽  
Vol 77 (3) ◽  
pp. 275-299
Author(s):  
Marion Panizzon

AbstractThe World Trade Organization Appellate Body has drawn from international legal principles to intensify the normative impact of good faith duties vaguely described in Articles 3(10) and 4(3) of the Dispute Settlement Understanding. In the context of the Appellate Body's repeated rejection of good faith principles in the “substantive” WTO law of the General Agreement on Tariffs and Trade, the General Agreement on Trade in Services and the Agreement on Trade-Related Aspects of Intellectual Property Rights, the development of “procedural” good faith adjudication stands out. Relating procedural good faith adjudication to the level of fairness, the WTO judiciary thus relegates to the past power-oriented, diplomacy-based structures of WTO dispute settlement.This article will show how the general good faith principle served to reduce the flexibility remaining in the WTO's Member-driven dispute settlement procedure, often abused by powerful WTO Members to draw out disputes at the expense of developing country Members. One will also describe how the Appellate Body derived a due process standard, the one of requiring a “fair, prompt and effective” resolution of WTO trade disputes from the good faith obligation in Article 3(10) DSU, while keeping due process distinct from good faith duties.This due process standard enables the Appellate Body to review (and restrict) the use of procedural rights by WTO Members even when the exercise of these rights appears – on its face – consistent with DSU norms.The article finds that the due process standard is a first-time judicial assertion in Appellate Body practice of a broader enforceability of good faith.


2016 ◽  
Vol 33 (1) ◽  
pp. 137-141
Author(s):  
Shehnaz Haqqani

At a time when men’s assumption of leadership roles through all-male eventsand publications is a popular phenomenon, Men in Charge?, a byproduct ofa project by the women-led organization Musawah, could not have been publishedat a more opportune moment. Comprising a foreword by Zainah Anwar,Musawah’s director, an introduction by the editors, and ten chapters from academicsand activists of varied backgrounds, the book historicizes and problematizesthe Islamic idea of qiwāmah (authority) and wilāyah (guardianship),among other legal patriarchal precepts. It successfully argues that the Islamiclegal tradition with regards to gender roles rests on the false notion of malesuperiority.Men in Charge? carries immeasurable value for scholars and studentsof Islam, religion, women’s and gender studies, activists working toward gender-egalitarianism, and (Muslim) feminists seeking empowerment within areligious framework. It also speaks to reform leaders and lawmakers in Muslimstates, who might better understand the fundamental assumptions uponwhich family laws operate and their disconnect from the reality that womenand families face. The book’s major success lies in covering several importantlayers of the myth of male authority, from the theoretical gaps in the notionsof qiwāmah, wilāyah, and istikhlāf to a practical examination of the impact ofthese legal principles and proposals for new and creative approaches for feministsto apply in their vision of a gender-egalitarian Islam.Men in Charge? can be divided into two sections: (1) a theoretical discussionof the problems raised through fiqh rulings on gender and proposesnew ways through which Muslim feminists can approach those problems and(2) an analysis of the established ideals’ practical impacts. Ziba Mir-Hosseini’sdiscussion in the first chapter, “Muslim Legal Tradition and the Challengeof Gender Equality,” effectively contextualizes the book’s broaderdiscussion: What Muslim scholars did in the early twentieth century to challengethe legal tradition’s normative thought in an effort to move towardmore democratic and egalitarian family systems.According to the ideas of the scholars from the past and those from themore modern period, there appears to be an inconsistency between the twogroups’ understanding of “woman.” This suggests that the idea of woman is ...


2019 ◽  
Vol 8 (3) ◽  
Author(s):  
Ayoub Ahmadi Gandmani ◽  
Mohammad Sadeghi ◽  
Babak Baseri

In this research, we first describe and explain the terminology and key words used in the title of the research, namely "Legal Basics", "Economic Policy" and "Islamic Republic of Iran". After explaining the terms and key words used in the research title, this question has been raised, what is the legal basis of economic policy in the Islamic Republic of Iran? Given the clarification of the concept of legal principles and other words used in the research title, the answer to this question is in the highest and most valid legal document in the country, the constitution. Our assumption is that the legal basis for economic policy in the Islamic Republic of Iran is Islamic economics, in other words, the main constitutional basis for economic policy, the Islamic economy, in other words, what is the right of the people and the duty of the state is to make policy according to constitutional criteria. Finally, in view of the goals and ideals of the Islamic Revolution of Iran and the post-revolutionary atmosphere of the Islamic Republic, and the Islamic attitudes of the main legislators, which have contributed to the introduction of the constitution and the various principles of the constitution, and ultimately the principles of the constitution in which the use of Islamic economics has been used, has been answered to the question in a descriptive-analytical method


2011 ◽  
Vol 11 (Edsus) ◽  
Author(s):  
Trusto Subekti

Partial understanding about children and their rights according to Law No. 1 of 1974 and Law no. 23 of 2002, become confusing. If the concept of "every child" has the right to know his parents, raised and nurtured by the parents themselves are connected with the concept of illegitimate children, there will arise the question of whether an illegitimate child ("child adultery"), may file a lawsuit to the Court, in case the biological father has been married to another woman. The result of systematic interpretation in the application of Article 7 paragraph (1) Act No. 23 of 2002 based on the principles and specific legal principles in family law and marriage, the recognition of children can not be applied to "every child" and it only works for children out of wedlock with her biological father is not bound by the terms of marriage with another woman.  The expected contribution is the implementation of human rights in every national legal product should consider the principle of legal certainty, usefulness and fairness, and not just create new problems in society. Key words: systematic interpretation, every child, child recognition


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