scholarly journals THE PRE-CONTRACTUAL OBLIGATION TO CONFIDENTIALITY OF INFORMATION IN THE PALESTINIAN CIVIL CODE DRAFT AND ITS ROLE IN MAINTAINING ECONOMIC CONTRACTUAL EQUILIBRIUM

2019 ◽  
Vol 10 ◽  
pp. 121-156
Author(s):  
Osama Ismail Mohammad Amayreh ◽  
Izura Masdina Mohamad Zakr ◽  
Pardis Moslemzadeh Tehrani ◽  
Yousef Mohammad Shandi
Keyword(s):  
Civil Code ◽  
Comparative Approach ◽  
Legal Basis ◽  
Contractual Obligation ◽  
Legal Provisions ◽  
Prime Objective ◽  
The Subject ◽  
Contracting Phase ◽  
English Law ◽  
The Stability

It is inconceivable that a person can be legally obliged to provide influential information to another party in order to contract freely and in an enlightened manner without requiring the latter to maintain the confidentiality of the exchanged information between the parties. In this context, Article 2.1.16 of the UNIDROIT principles of International Commercial Contracts and Article 1112-2 of the French Decree N 131-2016, etc. tend to apply the obligation to confidentiality of information at the pre-contracting phase as one of the most substantial principles governing this phase. However, the Palestinian legislature, having ignored enacting legal provisions obliging the parties to maintain the confidentiality of information in the pre-contracting phase, caused legislative deficiencies in the legislative remedies of the subject of confidentiality of information in the pre-contracting phase. A such, as a prime objective, this paper seeks to suggest orientations for the formulation of provisions for the obligation to maintain confidentiality of information in the Palestinian Civil Code Draft. Thus, an analytical comparative approach -with the French civil code- is used, while alluding briefly to German and English law, as to illustrate the Palestinian legislative deficiencies and the urgent need to legislate a legal article obligating the negotiating parties to maintain confidentiality of information, in order to contribute to the stability of civil and commercial transactions. In this regard, contractual equilibrium entails that the obligation to maintain confidentiality of information has its own independent essence from all the theories that the jurisprudence adopted as a legal basis for this obligation.

scholarly journals The Principle of Good Faith in the Palestinian Civil Code Draft and Its Role in Maintaining Economic Contractual Equilibrium at the Pre-Contracting Phase

2019 ◽  
Vol 12 (3) ◽  
pp. 113
Author(s):  
Osama Ismail Mohammad Amayreh ◽  
Izura Masdina Mohamed Zakri ◽  
Pardis Moslemzadeh Tehrani ◽  
Yousef Mohammad Shandi
Keyword(s):  
Civil Code ◽  
Good Faith ◽  
Tort Liability ◽  
Legal Basis ◽  
Bad Faith ◽  
Legal Provisions ◽  
The Subject ◽  
Contracting Phase ◽  
The Stability ◽  
Definition Of

The jurisprudential and judicial legal trend tends to apply the principle of good faith at the pre-contracting phase as one of the most substantial principles governing this phase, since it is inconceivable that the parties are to negotiate in bad faith, and then must implement the contract in good faith, in accordance with the traditional legal rule that “fraud spoils everything it touches”. However, the Palestinian legislature has ignored enacting legal provisions obliging the parties to abide by the principle of good faith in the pre-contracting phase causing a legislative deficiency in the legislative remedies of the subject of good faith in the pre-contracting phase. This paper seeks to prove that replacing a provision that requires good faith in negotiations with the provisions of tort liability causes many legal problems. To prove this, the legal provisions should be analysed which would also include determining the definition of the principle of good faith, and the function of that principle in achieving contractual equilibrium and the legal basis for this principle at the stage of negotiation which should also be analysed. Moreover, a comparative analytical approach with the French civil code is used to illustrate the Palestinian legislative deficiencies and the need to legislate a legal article which obligates the negotiating parties to behave in good faith, as this has become an unavoidable reality that should be dealt with to contribute to the stability of civil and commercial transactions. As such, the legal article should also specify the compensation to be claimed.

scholarly journals THE PRE-CONTRACTUAL DUTY OF DISCLOSURE IN THE PALESTINIAN CIVIL CODE DRAFT AND ITS ROLE IN MAINTAINING ECONOMIC CONTRACTUAL EQUILIBRIUM

2021 ◽  
Vol 12 (Number 1) ◽  
pp. 119-156
Author(s):  
Osama Ismail Mohammad Amayreh ◽  
Izura Masdina Mohamad Zakri ◽  
Pardis Moslemzadeh Tehrani ◽  
Yousef Mohammad Shandi
Keyword(s):  
Analytical Approach ◽  
Civil Code ◽  
The Other ◽  
Legal Basis ◽  
Legal Provisions ◽  
The Subject ◽  
The Common ◽  
Contracting Phase ◽  
Common European Sales Law ◽  
Do So

Many recent legislations and international principles tend to apply the pre-contractual duty of disclosure as one of the most substantial principles governing the pre-contracting phase, such as Article 1112-1 of the Amended French Civil Code of 2016, Article 1337 of the Amended Italian Civil Code and Article 13 of chapter 2 of the Common European Sales Law, etc. However, the Palestinian legislature has ignored enacting legal provisions imposing the pre-contractual duty of disclosure which causes legislative deficiencies in the legislative remedies of the subject of pre-contractual duty of disclosure. In this regard, this paper suggests orientations for the formulation of the provisions of the pre-contractual duty of disclosure in the Palestinian Civil Code Draft (PDCC). To do so, a comparative analytical approach with the French civil code is used to illustrate the Palestinian legislative deficiencies and the urgent need to legislate a legal article which obligates the negotiating party to disclose any substantial information for the satisfaction of the other party. As such, the contractual equilibrium entails that the pre-contractual duty of disclosure has its own independent essence from all the theories that the jurisprudence adopted as a legal basis for this duty.

scholarly journals The principle of good faith and fair dealing in English contract law

Pravovedenie ◽  
2020 ◽  
Vol 64 (3) ◽  
pp. 312-325
Author(s):  
Jan Halberda ◽  
Keyword(s):  
Civil Law ◽  
Contract Law ◽  
Civil Code ◽  
Good Faith ◽  
Traditional View ◽  
Comparative Approach ◽  
England And Wales ◽  
Fair Dealing ◽  
Objective Sense ◽  
English Law

Given that continental civil law scholarship applies the concept of good faith in either a subjective (honesty in fact) or objective sense (good faith and fair dealing), the present article focuses on the latter one. The traditional view in England and Wales discards the recognition of a general principle of good faith and fair dealing in English law. English courts have adopted a piecemeal solutions approach (as shown by the judicial decisions issued in Interfoto Picture Library (1987) and Walford v. Miles (1992)). Meanwhile, the principle in question, along with the concept of the freedom of contract, is one of the most important principles of the continental civil law tradition (cf. art. 1104 of the French Civil Code, § 157, § 242 of the German Bürgerliches Gesetzbuch, art. 2 (1) of the Swiss Zivilgesetzbuch, art. 6:2 Burgerlijk Wetboek, art. 5 of the Polish Civil Code, art. 2 (1) Common European Sales Law, art. 1:201 Principles of European Contract Law, art. III1:103 Draft Common Frame of Reference). The current work analyzes recent English case law (in particular Yam Seng (2013)), which seems to acknowledge the principle of good faith and fair dealing while rejecting the traditional view mentioned above. The comparative approach — references to American, and Commonwealth law, as well as to that of particular European states — is taken into account. The author claims that hostility to the concept of good faith in an objective sense in English law is superficial. One may expect that in the near future courts in England and Wales will follow the path taken by courts in the United States (§ 205 of the Restatement (Second) of Contracts (1981)), Australia (Renard Constructions (1992)) and Canada (Bhasin v. Hrynew (2014)), and they will finally recognize good faith as an underlying principle.

scholarly journals Depriving the Debtor’s Essential Obligation of its Substance and its Remedies under the Provisions of Article 1170 of the French Civil Code

2020 ◽  
Vol 13 (2) ◽  
pp. 129
Author(s):  
Yousef Mohammad Shandi ◽  
Osama Ismail Mohammad Amayreh
Keyword(s):  
Analytical Approach ◽  
Civil Code ◽  
Economic Equilibrium ◽  
The Other ◽  
Term Result ◽  
Contract Term ◽  
Legal Provisions ◽  
Legal Problems ◽  
The Stability

In 1994 and thereafter, the French judiciary set a trend by utilizing the causation theory to revoke the exemption clauses of liability that constitute a violation of the contract’s essential obligations. This utilization was intended to restore economic equilibrium to the contract, in order to achieve the benefit each party seeks from concluding a contract. However, in 2016, the new amendments of the French civil code -which were issued by decree no: 131-2016- abolished the causation theory in general. Nevertheless, they retained the previous French judicial trend based on causation theory, where Article 1170 of the new amendments states clearly “any contract term which deprives a debtor’s essential obligation of its substance is deemed not written”. However, Article 1170 of the new amendments did not specify what is meant by an essential obligation? When does the contract’s term result in depriving the debtor’s essential obligation of its substance? Moreover, Article 1170 consolidates an individual penalty which may cause many legal problems. These problems are: the matter concerns an essential clause in the contract and not a secondary one, the other clauses of the contract remain valid as they have been, without any modifications or replacements and, in some cases, abolishing the clause itself might lead to further imbalance in the contract. Therefore, the legal provisions of Article 1170 should be analyzed in an analytical approach along with the previous French judicial trend with respect to these provisions. As a result, the research illustrates the urgent need to amend Article 1170 of the new amendments, in order to contribute to the stability of the economic contractual equilibrium.

scholarly journals PEMAKNAAN KEWENANGAN MENGADILI DALAM PRAKTIK PERADILAN PERDATA TENTANG PERMOHONAN PENETAPAN ORANG HILANG DALAM PERSPEKTIF HUKUM POSITIF DAN HUKUM KELUARGA ISLAM

Mahakim ◽  
2020 ◽  
Vol 4 (1) ◽  
pp. 65-83
Author(s):  
Moch. Choirul Rizal
Keyword(s):  
Civil Code ◽  
Theoretical Research ◽  
Legal Basis ◽  
Civil Justice ◽  
Conceptual Approach ◽  
Inheritance Law ◽  
Missing Persons ◽  
The Subject ◽  
Religious Courts

Article 44 paragraph (4) of Law No. 24 of 2013 it is not clear which judicial body has the authority to determine the unclear whereabouts of a person because of missing or dead but his body was not found. For this reason, this research focuses on 2 (two) problems. First, the practice of civil justice regarding applications for the determination of missing persons. Second, the meaning of the authority to adjudicate in the practice of civil justice regarding applications for the determination of missing persons. This research is included in the theoretical research using a statute approach, case approach, and conceptual approach. The results of this study answer 2 (two) problems. First, in examining and adjudicating cases of petition for the determination of missing persons, the general court uses rules regarding the state of absence (afwezig) according to Article 467 and Article 468 of the Civil Code, while religious courts use a legal basis relating to inheritance law. Second, to examine and adjudicate cases for the application of missing persons, the authority of the general court is based on Article 467 and Article 468 of the Civil Code, while the authority of the religious court body still requires interpretation of the judge's law on the subject matter, namely whether it has a connection with inheritance law or not. The case for appealing the missing person, as long as it is related to inheritance law, can reopen the option for Muslims to choose which judicial body to obtain legal certainty regarding the person's absence.

scholarly journals Civil law obligation reform in Russian Federation and its effect on the institute of damages (losses)

2021 ◽  
Vol 12 (3) ◽  
pp. 574-583
Author(s):  
Yuri E. Monastyrsky ◽  
◽  
Vladimir N. Koval’ ◽  
Anatoliy A. Vlasov ◽  
◽  
...  
Keyword(s):  
Russian Federation ◽  
Civil Code ◽  
Main Question ◽  
Legal Basis ◽  
Performance Counter ◽  
Legal Provisions ◽  
Economic Actor ◽  
Legal Remedy ◽  
The Russian Federation ◽  
Per Se

When an economic actor resorts to recovery of damages as a legal remedy, the main question that arises is what legal provisions govern the claim raised by such an actor. At a first glance, the answer is simple: both Chapter 25 (“Liability for violation of obligations”) and Article 15 (“Reimbursement of damages”) of the Civil Code of the Russian Federation contain provisions governing the terms of satisfaction of financial claims. However, such claims do not always arise from a failure to perform obligations and sometimes are even raised in the absence of an offence per se as stated by law. Therefore, quite often we need to consider the extent to which it would be lawful or, perhaps, even appropriate to invoke some of the provisions contained in Subsection 1 “General provisions on obligations” of Section III of the Civil Code. More detailed provisions on obligations introduced in March 2015 to Civil Code of RF may not be compatible with circumstances of losses. Articles 310, 311, 313, 314, 328, 407, 416 if applicable to damages recovery claims would undermine the said remedy as such. They grand a debtor the legal basis assumed and adopted as his limited protection in obligatory relationship as a whole to avoid the burden of full reimbursement by suspension of performance, counter demands, etc.

scholarly journals Acquisition of ownership by non-owners in the draft of common frame of reference study group for European Civil code

2011 ◽  
pp. 279-291
Author(s):  
Nina Planojevic
Keyword(s):  
Civil Code ◽  
Frame Of Reference ◽  
Study Group ◽  
Legal Basis ◽  
Eu Countries ◽  
Book Viii ◽  
The Subject ◽  
European Civil Code ◽  
Quality Decision ◽  
Common Frame Of Reference

The subject of the paper is analysis of provisions concerning acquisition of ownership by non-owners from the recently presented Book VIII of the Draft of Common Frame of Reference of the Study group for European civil code. These regulative have been commented by the author and compared to the regulative of EU countries, pointing out to similarities, differences as well as discrepancies from solutions. Regulative of acquisition of property by non-owners he considers as divided in six parts: object; legal basis; delivery of goods; self-consciousness of the owner; ownership over the stolen goods and the fortune of the rights of third persons. With slight remarks, the author estimates this project as a complete, purposeful and quality decision. Comparing these decisions of EU countries and those from the Draft, he also estimates the reception of these decisions in Serbia as well, as prospective EU member.

Dopuszczalność stosowania przepisów prawa spółdzielczego do trybu likwidacji fundacji. Rozważania w kontekście poglądów Henryka Ciocha

2021 ◽  
Vol 4(165) ◽  
pp. 175-188
Author(s):  
Marta Stepnowska
Keyword(s):  
Legal Basis ◽  
Current Regulation ◽  
Legal Provisions ◽  
Legal Literature ◽  
Complicated Process ◽  
The Subject ◽  
The Law ◽  
Legal Entities

The Polish statutory regulations concerning the liquidation of Foundations are contained in Article 15 of the Act of 6 April 1984 concerning Foundations, hereinafter referred to as the “Act on Foundations”. The provisions of this Article constitute the only legal basis applicable to the entire complicated process of eliminating the legal existence of a Foundation as part of its liquidation. The Act on Foundations does not establish the course of liquidation proceedings, in this respect it refers to the provisions of the Statutes. Generality and imprecisiness of the applicable legal provisions regarding the liquidation of Foundations has been the subject of universal criticism in the legal literature; the current regulation is considered inappropriate and insufficient. De lege lata indicates a clear need to apply legal solutions contained in other legal acts governing the liquidation of other legal entities to the liquidation of Foundations. Although it has been variously postulated that Foundations should be liquidated according to the laws governing the liquidation of cooperatives, Associations, or according to the Code of Commercial Partnerships and Companies, it is generally acknowledged that the application of the law governing cooperatives is most closely related to the liquidation of Foundations. It is worth underscoring that the proceedings for liquidating a legal cooperative are regulated rather thoroughly and appropriately and as a result they are often used.

Die Vertragsstrafe im georgischen Recht

2019 ◽  
Vol 65 (4) ◽  
pp. 457-466
Author(s):  
Sergi Jorbenadze
Keyword(s):  
Civil Code ◽  
Practical Realization ◽  
Freedom Of Contract ◽  
Contractual Obligation ◽  
Legal Provisions ◽  
Reasonable Amount ◽  
European Experience ◽  
Contractual Relations ◽  
Legal Consequences ◽  
Future Demand

Contractual Penalties under Georgian Law With the development of contractual relations in Georgia, it has become more common for the parties of a contract to include conditions of a penalty in their agreement. Georgia, as a member of the continental law family, actively shares the European experience and executes the guidance of individual institutions. One proof of this fact is the inclusion of penalties in the Civil Code and its practical realization, which is characterized by interesting explanations in court. Penalty, as an additional means of securing a demand, has an accessory nature. It has predominantly a penalty (sanctioned) function that is completely independent of the damage inflicted. Thus, a penalty claim does not preclude a claim for damages. Unlike the legislation of some countries, the Civil Code of Georgia requires that the penalty must be expressed only in monetary form, which shall be written in the contract. There are two types of penalties: legal and contractual. In both cases, penalty request can be reached for breach of contractual obligation. Penalty, in Georgian Law can be expressed in different forms. In this respect, particularly selective is the so-called cumulative penalty, where the requirement to pay a fine together with the performance of the obligation is provided (preferably for a breach of the term). In contrast to the German Civil Code, the legislation does not know of Revocation in return for the forfeit money concept. One part of the thesis relates to this issue - it states that in spite of the absence of legal provisions, considering the principle of freedom of contract, its use is permitted in Georgian reality. The principal importance of the existence of these two institutions is mainly due to Article 420 of the Civil Code of Georgia: under that provision, the court may reduce the penalty to a reasonable amount, while it cannot reduce Revocation in return for forfeit money. Against the background of activating foreign (especially German) businesses and interest in Georgia, a number of agreements are concluded, whose part is from Georgia, or where the contract is based on Georgian law. In this regard, it is advisable that the contractor be more aware with regard to possible legal consequences in the case of future demand.

scholarly journals Temporary values in the paradigm of modernization of civil legislation.

2021 ◽  
Vol 3 (3) ◽  
pp. 148-153
Author(s):  
Viktor Makovii
Keyword(s):  
Civil Rights ◽  
Public Relations ◽  
Civil Law ◽  
Legal Protection ◽  
Decisive Role ◽  
Legal Regulation ◽  
Civil Code ◽  
Complex Nature ◽  
The Subject ◽  
The Stability

The article contains a study of the place of temporal quantities in the concept of updating the Civil Code of Ukraine in view of their legal nature, place and importance in the structure of the mechanism of legal regulation of civil relations. It is emphasized that time values play a decisive role in the legal regulation of public relations, which is the subject of civil law, as an integral part of the mechanism of their legal regulation, which provides temporal boundaries of certain civil rights and relevant civil obligations. It is noted that the proposed model of updating civil legislation partially reproduces the ways and means to introduce temporal elements into the structure of the mechanism of legal regulation of civil relations in view of the relevant legal institution. In fact, considerations have been proposed to improve the provisions of this concept both in terms of general provisions on terms and deadlines under the Civil Code of Ukraine, and within individual legal institutions. In particular, it is proposed to: standardize the nature of the statute of limitations in accordance with international experience and the essence of this category; to determine the peculiarities of the course of this type of term (beginning, end, grounds for interruption and suspension); taking into account the experience of European legislation to single out the statute of limitations as a kind of socio-legal category of a complex nature in the field of application, where to normalize its varieties and the ratio of the latter; to streamline the normative basis of the acquisitive prescription, where, taking into account the experience of judicial practice and the legislation of other countries, to ensure the full realization of the purpose of its introduction into the domestic legal field. With regard to the special provisions of civil law in terms of temporal values, there are proposals that should ensure the implementation of the above purpose of time, as a socio-legal category that will be the subject of further research. In particular, attention is paid to the prospect of improving the place of time values in the mechanism of legal regulation of personal non-property rights of individuals and legal entities, hereditary relations, where these legal categories should ensure the stability of civil turnover and create an optimal model of legal protection of rights and legitimate interests of participants.

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