scholarly journals The application of good Faith principle of precontract in common law and civil law contry

2021 ◽  
Vol 10 (16) ◽  
pp. e139101623621
Author(s):  
Rizky Febri Dewanti ◽  
Pujiyono Pujiyono ◽  
Yudho Taruno Muryanto
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Civil Code ◽  
Good Faith ◽  
Law System ◽  
Library Research ◽  
Legal Implications ◽  
The Common ◽  
Civil Law System ◽  
Legal Consequences

In Indonesia, development of application of good faith principle in legal agreement focuses on the application of Civil Code (KUHPerdata) where scope is still placed on the implementation of agreement. It is as if Civil Code has not recognized the existence of good faith principle at  pre-contract stage. In comparison, according to modern agreement theory that parties who suffer losses in pre-agreement/contract stage or at  negotiation stage, their rights also deserve to be protected. Thus, pre-agreement/contract promises will have legal implications for those who violate them. This will be seen in countries that have common law and civil law systems. An important issue in this case relates to the principle of good faith at the pre-contract stage which creates a gap with the provisions in the legislation. To analyze these problems, legal research was conducted with the black-letter law paradigm. Technique of collecting legal materials in this research used library research. Legal materials are analyzed deductively and utilize the method of interpretation (hermeneutics). Results showed that the application of the principle of good faith at the pre-contract stage in Common Law and Civil Law countries had differences. In the Civil Law system, good faith is highly emphasized in the stage of contractual negotiation. Whereas in the Common Law system, it prioritizes efforts to restore rights of aggrieved party in pre-contract stage. Parties who do not have good faith at the pre-contract stage have legal consequences for cancellation of the agreement.

scholarly journals Formulasi Pengaturan Tahapan Pra Kontrak dalam Proses Pembentukan Kontrak di Indonesia

2020 ◽  
Vol 22 (02) ◽  
pp. 84-93
Author(s):  
Bebeto Ardyo
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Civil Code ◽  
Legal Certainty ◽  
Law System ◽  
Human Needs ◽  
Contract Formation ◽  
The Common ◽  
The Times ◽  
Civil Law System

The increasement of human needs in society goes hand in hand with the development of technology. To meet these needs, there must be interaction between people which sometimes has the potential to cause disputes. That’s why a contract is needed. The existence of a contract guarantees legal certainty regarding protection of the rights of the parties and also the obligations that they must fulfill. There are several stages of contract formation which consist of pre-contract and agreement between the parties. According to the system in the Book III of Indonesia’s Code of Civil Law, consensus is the base for the formation of contract that means once the agreement has reached between the parties then a contract is formed. Indonesia’s Code of Civil Law doesn’t yet regulate pre-contract stages of contract formation, even though these stages are equally important. The regulation of pre-contract stages are usually set in the common law system, but along with the times, the regulation of pre-contract stages should also be regulated in the civil law system. As a comparison, Het Nieuw Burgerlijke Wetboek (New Civil Code of Netherlands) has already regulated that pre-contract stages, although the Netherlands is a country that implements civil law system. The pre-contract stages are very important to be regulated in Indonesia because there are many potential pre-contractual issues. This paper aims to formulate the outline of what needs to be regulated in the pre-contract regulations. Keywords : Interaction, Contract, Formation, Civil Code  

Canada—Nova Scotia

2015 ◽  
Author(s):  
Alex Ruck Keene ◽  
QC Alison Scott Butler
Keyword(s):  
Nova Scotia ◽  
Civil Rights ◽  
Federal Government ◽  
Common Law ◽  
Civil Law ◽  
Political Rights ◽  
Canadian Charter ◽  
Law System ◽  
The Common ◽  
Civil Law System

Canada is a federation composed of ten provinces, including Nova Scotia (‘NS’), and three territories. The common law applies in Canada, with the exception of the province of Quebec, which uses a civil law system. There is a federal government; as a province, NS also exercises constitutional powers in its own right. Federal legislation includes provisions relating to adults within the scope of this work. The Canadian Charter of Rights and Freedoms also guarantees certain political rights to Canadians and civil rights to everyone in Canada, and contains rights that impact upon capacity law.

Canada—Alberta

2015 ◽  
Author(s):  
Claire van Overdijk ◽  
Barb Martini
Keyword(s):  
Civil Rights ◽  
Federal Government ◽  
Common Law ◽  
Civil Law ◽  
Federal Legislation ◽  
Political Rights ◽  
Canadian Charter ◽  
Law System ◽  
The Common ◽  
Civil Law System

Canada is a federation composed of ten provinces, including Alberta, and three territories. The common law applies in Canada, with the exception of the province of Quebec, which uses a civil law system. While there is a Federal Government, Alberta, as a province, also exercises constitutional powers in its own right. Federal legislation includes provisions relating to adults within the scope of this work. The Canadian Charter of Rights and Freedoms also guarantees certain political rights to Canadians and civil rights to everyone in Canada, and contains rights that impact upon capacity law.

scholarly journals THE ISSUE OF VARIANCE IN TRANSLATION OF TERMS IN THE FIELD OF CRIMINALISTICS AND FORENSIC EXAMINATION

2021 ◽  
pp. 200-215
Author(s):  
T. Kryvak
Keyword(s):  
Beneficial Effect ◽  
Common Law ◽  
Civil Law ◽  
Professional Communication ◽  
Law System ◽  
Forensic Examination ◽  
English Speaking ◽  
The Common ◽  
The Difference ◽  
Civil Law System

The article deals with the features of translation of terms in the field of criminalistics and forensic examination and the issue of variance that arises in the process of translation. It is noted that variance in the translation of terms in the field of criminalistics and forensic examination is both a positive and a negative phenomenon. However, the emergence of variance, as practice shows, is a prerequisite for the acquisition of an exact and unambiguous equivalent in language, depending on the context. The article indicates that the translation of terminology in the field of criminalistics is of particular interest, since the language of law, as a language of professional communication, has a vivid national specificity, due to the legal realities of national legal systems. Therefore, in the case of translations from English into Ukrainian and from Ukrainian into English, one should take into account the difference between the common law system, which is applied in English-speaking countries, and the civil law system, which also includes the Ukrainian legal system. The lexical transformations that are used when translating terms are analyzed and the need to achieve the effect of meaningful and contextual identity when translating terms is determined. It is concluded that as criminalistics and forensic examination develop, there is a rethinking and transformation of existing terminological units. Moreover, international cooperation has a beneficial effect on the work of not only terminologists, but also criminologists and forensic experts, since the unification of terminology facilitates communication between specialists. Terminology serves as the basic conceptual apparatus for any field of knowledge, and forensic science is no exception.

Challenges in Applying IFRS in a Civil Law Tradition

2015 ◽  
pp. 126-147
Author(s):  
Edison Carlos Fernandes
Keyword(s):  
Financial Reporting ◽  
Cultural Change ◽  
Common Law ◽  
Civil Law ◽  
Financial Statements ◽  
Law System ◽  
Financial Reporting Standards ◽  
The Common ◽  
Accounting Terms ◽  
Civil Law System

As part of the Common Law, IFRS represents a significant cultural change in Brazil, a Civil Law country, for both accounting and law. In 2010 (the first adoption of IFRS), Brazilian accounting legislation fully adopted the International Financial Reporting Standards (IFRS) as its standard for accounting practices. Accordingly, its adoption by Brazil represents a challenge, since it is a significant cultural change, because of its insertion into a Civil Law system country. First of all, in accounting terms, this chapter comments how the specific rules were changed by principles with a big importance for the administration judgments, in this way, the managers' subjectivity. Additionally, considering that in a Civil Law system, especially in Brazil, this chapter presents that there are many shareholders' rights in the stricto sensu law, the legal impacts of the financial statements must be analyzed, including the manager's responsibility.

Sejarah dan Perkembangan Pertanggungjawaban Korporasi

2018 ◽  
Vol 1 (2) ◽  
Author(s):  
Hesti Widya Ningrum
Keyword(s):  
Corporate Responsibility ◽  
Criminal Responsibility ◽  
Common Law ◽  
Civil Law ◽  
Criminal Code ◽  
Law System ◽  
Vicarious Liability ◽  
Normative Approach ◽  
The Common ◽  
Civil Law System

Corporate criminal responsibility has a difference in its development between countries with the common law system and those with civil law system. This is also, no exception in Indonesia. Indonesia as a Dutch Colony, which adheres to the civil law system which carries the adagium "deliquere non potest university," where corporations cannot be convicted. By using a normative approach, this article discusses about corporation as subject of criminal law which regulated outside the Criminal Code (KUHP). In Pratice, there have been several cases that punish corporations who commit criminal acts such as corruption. The finding of this article is court in Indonesia, especially corruption court are more likely to use the doctrine of vicarious liability as in common law countries. Contrary, with the conception in the Draft Criminal Code (RKUHP) that is more likely to use identification doctrine on corporate responsibility.

Justification of Acquisitive Prescription in the Civil Law System. Why is It Not an “Uncompensated Deprivation?

2015 ◽  
Vol 1 (3) ◽  
pp. 170
Author(s):  
Silvana Dode
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Civil Law ◽  
Bad Faith ◽  
Law System ◽  
European Court ◽  
The World ◽  
Adverse Possession ◽  
The Common ◽  
Civil Law System

Acquisitive prescription (a civil law institute) and Adverse Possession, its equivalent in the common law system is alreadya consolidated private law institute. It is recognised from the legal systems of almost each country in the world and is among the most important original ways of gaining ownership.Its constitutionality and the fact that should it be recognized from a legal system or not was brought in question in 2002, sparking a debate between lawyers in the world. The debate rose after the announcement of the decision of the ECHR (European. Court of Human Rights) in the case JA Pye ( Oxford) Ltd vs Graham. The Fourth Chamber of the ECHR held that acquisitive prescription is actually an 'uncompensated deprivation. First, we will analyze the main theories on the basis of which this institute is justified. The question to be raised for the review of the article is whether prescription is morally and legally justified, especially in the case of prescription in bad faith. In the end, it will be reached the conclusion that there are justified reasons for the prescription and it is a very useful institution inthe civil circulation. But preliminary stricter legal criteria must be met for the recognition of the property right by prescription, especially in the case of bad faith prescription. The law should aim to provide a greater protection to the legitimate owner.

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.

Canada—Saskatchewan

2015 ◽  
Author(s):  
Adrian Ward ◽  
Kruzeniski Ron
Keyword(s):  
Civil Rights ◽  
Federal Government ◽  
Common Law ◽  
Civil Law ◽  
Federal Legislation ◽  
Political Rights ◽  
Canadian Charter ◽  
Law System ◽  
The Common ◽  
Civil Law System

Canada is a federation composed of ten provinces, including Saskatchewan, and three territories. The common law applies in Canada, with the exception of the province of Quebec, which uses a civil law system. There is a federal government; as a province, Saskatchewan also exercises constitutional powers in its own right. Federal legislation includes provisions relating to adults within the scope of this work. The Canadian Charter of Rights and Freedoms also guarantees certain political rights to Canadians and civil rights to everyone in Canada and contains rights that impact upon capacity law.

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