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 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 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 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 A NEW ROLE OF CAUSATION THEORY TOWARDS ACHIEVING ECONOMIC CONTRACTUAL EQUILIBRIUM: ANNULLING THE ARBITRARY CONTRACTUAL CONDITIONS

2021 ◽  
Vol 29 (1) ◽  
pp. 153-181
Author(s):  
Osama Ismail Mohammad Amayreh ◽  
Izura Masdina Mohamed Zakri ◽  
Pardis Moslemzadeh Tehrani ◽  
Yousef Mohammad Shandi
Keyword(s):  
Subject Matter ◽  
Analytical Approach ◽  
Effective Means ◽  
General Rule ◽  
Civil Code ◽  
Commutative Justice ◽  
The Subject ◽  
Do So

The phrase “who says contractual, says justice” (qui dit contractuel dit juste) does not fully express the truth of present reality, where the phrase itself falls into doubt, since a contract does not always result in fair obligations. In this regard, the French judiciary realized that the absence of justice in a contract might arise as a result of the contractual freedom afforded to the contracting parties. Thus, the idea of Commutative Justice in the contract was developed, such as, the Chronopost’s decision which is considered one of its most important applications. However, the equivalence of rights and obligations in the Palestinian Draft Civil Code only exists in a virtual form, without any content that actually contributes to the achievement of the equivalence between rights and obligations in contracts. This article seeks to prove that the provisions of the causation theory in the Palestinian Draft Civil Code can be used as an effective means for achieving contractual justice between the contracting parties, in order to maintain economic contractual equilibrium of the contract. To do so, the function of the causation theory should be analysed in a comparative analytical approach with the Chronopost’s decision to illustrate the Palestinian legislative deficiencies. It will also show the need for adopting the French judicial approach, which will establish a general rule that any arbitrary clause that contravenes the essential obligation of the contract is considered to be unwritten, regardless of the nature or the subject matter of the contract.

XXIII. On the water-barometer erected in the hall of the Royal Society

1832 ◽  
Vol 122 ◽  
pp. 539-574 ◽  
Keyword(s):  
Royal Society ◽  
Physical Science ◽  
The Other ◽  
Metallic Tube ◽  
French Academy ◽  
History Of ◽  
The Subject ◽  
The Common ◽  
Academy Of Sciences ◽  
Made In

I have for some time entertained an opinion, in common with some others who have turned their attention tot he subject, that a good series of observations with a Water-Barometer, accurately constructed, might throw some light upon several important points of physical science: amongst others, upon the tides of the atmosphere; the horary oscillations of the counterpoising column; the ascending and descending rate of its greater oscillations; and the tension of vapour at different atmospheric temperatures. I have sought in vain in various scientific works, and in the Transactions of Philosophical Societies, for the record of any such observations, or for a description of an instrument calculated to afford the required information with anything approaching to precision. In the first volume of the History of the French Academy of Sciences, a cursory reference is made, in the following words, to some experiments of M. Mariotte upon the subject, of which no particulars appear to have been preserved. “Le même M. Mariotte fit aussi à l’observatoire des experiences sur le baromètre ordinaire à mercure comparé au baromètre à eau. Dans l’un le mercure s’eléva à 28 polices, et dans Fautre l’eau fut a 31 pieds Cequi donne le rapport du mercure à l’eau de 13½ à 1.” Histoire de I'Acadérmie, tom. i. p. 234. It also appears that Otto Guricke constructed a philosophical toy for the amusement of himself and friends, upon the principle of the water-barometer; but the column of water probably in this, as in all the other instances which I have met with, was raised by the imperfect rarefaction of the air in the tube above it, or by filling with water a metallic tube, of sufficient length, cemented to a glass one at its upper extremity, and fitted with a stop-cock at each end; so that when full the upper one might be closed and the lower opened, when the water would fall till it afforded an equipoise to the pressure of the atmo­sphere. The imperfections of such an instrument, it is quite clear, would render it totally unfit for the delicate investigations required in the present state of science; as, to render the observations of any value, it is absolutely necessary that the water should be thoroughly purged of air, by boiling, and its insinuation or reabsorption effectually guarded against. I was convinced that the only chance of securing these two necessary ends, was to form the whole length of tube of one piece of glass, and to boil the water in it, as is done with mercury in the common barometer. The practical difficulties which opposed themselves to such a construction long appeared to me insurmount­able; but I at length contrived a plan for the purpose, which, having been honoured with the approval of the late Meteorological Committee of this Society, was ordered to be carried into execution by the President and Council.

Toxæmia in the Etiology of Mental Disease. a Discussion opened

1902 ◽  
Vol 48 (202) ◽  
pp. 434-450 ◽  
Author(s):  
T. S. Clouston
Keyword(s):  
Nerve Cell ◽  
General Trend ◽  
Mental Disease ◽  
The Other ◽  
British Association ◽  
Younger Men ◽  
Full Knowledge ◽  
The Subject ◽  
Definition Of ◽  
Do So

Dr. Clouston said that when he suggested toxæmia to the secretary as a suitable subject for a discussion at this meeting he had not intended to be the first speaker, because his object was to bring out more fully the views of the younger members who had recently committed themselves so strongly to the toxæmic and bacterial etiology of insanity, and so to get light thrown on some of the difficulties which he and others had felt in applying this theory to many of their cases in practice. It was not that he did not believe in the toxic theory as explaining the onset of many cases, or that he under-rated its importance, but that he could not see how it applied so universally or generally as some of the modern pathological school were now inclined to insist on. He knew that it was difficult for those of the older psychological and clinical school to approach the subject with that full knowledge of recent bacteriological and pathological doctrine which the younger men possessed, or to breathe that all-pervading pathological atmosphere which they seemed to inhale. He desired to conduct this discussion in an absolutely non-controversial and purely scientific spirit. To do so he thought it best to put his facts, objections, and difficulties in a series of propositions which could be answered and explained by the other side. He thought it important to define toxæmia, but should be willing to accept Dr. Ford Robertson's definition of toxines, viz., “Substances which are taken up by the (cortical nerve) cell and then disorder its metabolism.” He took the following extracts from his address at the Cheltenham meeting of the British Association (1) as representing Dr. Ford Robertson's views and the general trend of much investigation and hypothesis on the Continent.

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.

Complete and defective agreement in Kutchi

2014 ◽  
Vol 14 (2) ◽  
pp. 243-288
Author(s):  
Stefan Keine ◽  
Trupti Nisar ◽  
Rajesh Bhatt
Keyword(s):  
The Other ◽  
Other Hand ◽  
The Subject ◽  
Stark Contrast ◽  
Verbal Agreement ◽  
And Gender ◽  
Split Ergativity ◽  
Do So

We describe and analyze the previously undocumented verbal agreement system of Kutchi (Indo-Aryan). We argue that Kutchi instantiates a novel type of split ergativity. First, it exhibits an aspect split in that agreement in non-perfective clauses behaves on a par with agreement in intransitive perfective clauses, in stark contrast to transitive perfective clauses. A striking property of Kutchi is that these asymmetries manifest themselves in the richness of agreement. In the former configurations, the verb agrees with the subject for person, number and gender. In the latter, on the other hand, agreement is systematically defective and reliable fails to cross-references certain φ-features. In addition to this aspect split, Kutchi displays a person split: While the verb normally agrees with the subject, it surprisingly fails to do so in transitive perfective clauses with a 1st person subject. Instead, it is the object that triggers agreement in these configurations, likewise in a defective manner. We will argue that these agreement asymmetries are syntactic in nature rather than morphological. Our analysis builds on, and extends, previous work by Laka (2006) and Coon (2010).

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.

Richard William Southern 1912–2001

2003 ◽  
Author(s):  
Alexander Murray
Keyword(s):  
The Other ◽  
Practical Action ◽  
Contemporary World ◽  
The World ◽  
History Of ◽  
The Common ◽  
Deep Thought ◽  
Life Work ◽  
Made In ◽  
Do So

People with a logical turn of mind say that the history of the world can be summarised in a sentence. A précis of mediaval historian Richard William Southern's work made in that spirit would identify two characteristics, one housed inside the other, and both quite apart from the question of its quality as a work of art. The first is his sympathy for a particular kind of medieval churchman, a kind who combined deep thought about faith with practical action. This characteristic fits inside another, touching Southern's historical vision as a whole. Its genesis is traceable to those few seconds in his teens when he ‘quarrelled’ with his father about the Renaissance. The intuition that moved him to do so became a historical fides quaerens intellectum. Reflection on Southern's life work leaves us with an example of the service an historian can perform for his contemporary world, as a truer self-perception seeps into the common consciousness by way of a lifetime of teaching and writing, spreading out through the world (all Southern's books were translated into one or more foreign language).

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