Is Renovating the General Law of Contracts Useful? The French Experience

2019 ◽  
pp. 220
Author(s):  
BÉNÉDICTE FAUVARQUE-COSSON ◽  
FRANÇOIS ANCEL
Keyword(s):  
Contract Law ◽  
Law Reform ◽  
Public Order ◽  
Legal Certainty ◽  
General Law ◽  
Legal Provisions ◽  
French Experience ◽  
Ordre Public ◽  
Governing Law ◽  
Code Civil

The ordonnance of 10 February 2016 for the reform of contract law, of the general regime and of proof of obligations came into force on 1 October 2016. Further changes were made by the legislator in 2018. This reform modifies one of the most important part of the Code civil: the provisions on contracts and obligations The reform aims at giving more accessibility and clarity to French contract law, and it undeniably has already made it more attractive internationally. In this paper, we explain why, in an international world where contracting parties can chose the law applicable to their contract, we believe that a codified law is very important to overcome the void left by the contract and to resolve the difficulties that have arisen during its existence. Besides, it brings legal certainty, accessibility and visibility. We also explain why we think that a modern general law of contracts is a unique opportunity to propose a base of legal provisions considered as “minimal” and to affirm a specific legal policy. If it is clear, that practitioners and judges should not conceive contract law as the expression of a contractual public order (ordre public contractuel), it is sometimes difficult to know to what extent contracting parties can set aside some provisions of the governing law. Finally, we explain how, after having been for nearly two centuries the instruments of a certain legal nationalism, national codifications have become the cement of European private law. Indeed, the French contract law reform, which was built on the diversity of Europe, drew much inspiration from various European and international models. In turn, it has attracted a great deal of interest abroad, was translated into several languages and is extensively commented.

The French Contract Law Reform and the Political Process

2017 ◽  
Vol 13 (4) ◽  
Author(s):  
Bénédicte Fauvarque-Cosson
Keyword(s):  
Social Life ◽  
Political Process ◽  
Contract Law ◽  
First Century ◽  
Political Life ◽  
Law Reform ◽  
The Political ◽  
Legal Certainty ◽  
The Right ◽  
Code Civil

AbstractThis paper provides an overview of the political process which led to the adoption of one of the most important reforms of the Code civil since 1804. This major revision of the French Code civil took place by way of an ‘ordonnance’ (delegated legislation). That, in itself, was highly controversial. As regards substance, the most controversial points related to the need to strike a new balance between contractual justice and legal certainty in French contract law to make it better suited to economic and social life in the twenty-first century. The French contract law reform began at the instigation of President Chirac, was continued under Sarkozy’s presidency and was finally completed while François Hollande was the President of France. This background might suggest that, from a political standpoint, the new provisions of the Code civil successfully struck the right balance between legal certainty and contractual justice; if only political life were so simple. As will be shown in the second part of this paper, many questions remain open. The first part recounts the story behind the reform, from its origins to its completion. The second part gives some further insight into some emblematic new provisions of the Code civil.

Frustration of purpose and the French Contract Law reform

2018 ◽  
Vol 25 (3) ◽  
pp. 288-309
Author(s):  
Mitja Kovac
Keyword(s):  
International Business ◽  
Contract Law ◽  
Law Reform ◽  
Current Form ◽  
Business Transactions ◽  
The World ◽  
Governing Principle ◽  
English Law ◽  
Unforeseen Contingencies ◽  
Code Civil

Frustration of purpose remains one of the most ill-defined concepts in the English law of contracts. The same problem has also recently attracted the attention of the French legislature in its modernization of the Code Civil. The French reform entitles courts with broad powers to adjust the contract when unforeseen contingencies have made the bargain unduly costly. This article argues that the introduction of an economically inspired adjustment rule in English contract law should be re-considered to maintain its current superior commercial position. If implemented, then the ‘ex ante division of surplus’ should be the governing principle in adjusting contract price, because such a remedy will not affect the agreed-upon division of the surplus. Moreover, this paper suggests that the recent French reform is indeed a long-awaited step toward a more effective regulation of the notorious ‘unforeseen contingencies’ phenomena, but also suggests that further improvements might be needed. Furthermore, it offers a set of arguments suggesting that the English law in its current form might still be the preferred option in the world of international business transactions. The international commercial attractiveness of English contract law, although being challenged by the new French Civil Code, remains undisputed.

scholarly journals PENERAPAN PRINSIP-PRINSIP UNIDROIT DAN KONVENSI INTERNASIONAL TERHADAP PEMBAHARUAN HUKUM KONTRAK INDONESIA

LITIGASI ◽  
2016 ◽  
Vol 15 (1) ◽  
Author(s):  
An An Chandrawulan
Keyword(s):  
International Trade ◽  
Contract Law ◽  
Civil Code ◽  
Law Reform ◽  
Legal Certainty ◽  
International Convention ◽  
Legal Principles ◽  
Business Transactions ◽  
The World ◽  
The Government

The development of business transaction require a new national contract law. Correspondingly, the UNIDROIT Principles of International Commercial Contracts and the International Convention on the sale of Goods (UNCITRAL CISG 1980) sets out principles contained in it may be adopted into a new national contract laws in the future. This research aims to examine in depth the urgency of contract law reform in Indonesia either through adjustment to the development of practice or through a complete overhaulof the Indonesian National Contract Law contained in Book III of the Civil Code (BW) by adopting principles of contract law that is universally applicable in the world. The Result of this research indicate that contract law contained in Book III of the Civil Code has be enunable to meet the demands of the business transactions today. Because it does not explicitly specifying the principles espoused by the international contract law as listed in the UNIDROIT Principles, therefore the new contract law apply the principles contained the provisions of the UNIDROIT Principles for International Commercial Contracts. So setting the forth coming contract to accommodate the interests of society, especially the government, businesses both domestically and internationally so that we will be a player in this era of globalization. Application of the principles of the CISG is based on the CERD and the general legal principles that apply in various countries around the world can be adopted into law the new Indonesian contract, so Indonesian contract law which will come to accommodate the interests and provide protection and legal certainty to the entrepreneurs, especially in the field of international trade. Keywords : Law Reform; Contract; UNIDROIT; CISGABSTRAKAdanya perkembangan transaksi bisnis memerlukan suatu perangkat hukum kontrak nasional yang baru. Sejalan dengan itu, Unidroit Principles of International Commercial Contract dan Konvensi Jual Beli Internasional (UNCITRAL CISG 1980) memuat prinsip-prinsip yang dapat diadopsi ke dalam hukum kontrak nasional yang baru nanti. Penelitian ini bertujuan menelaah secara mendalam urgensi pembaharuan hukum kontrak di Indonesia, apakah melalui penyesuaian terhadap perkembangan praktik yang sudah ada ataukah melalui perombakan total Hukum Perjanjian Nasional Indonesia yang terdapat dalam Buku III KUHPerdata (BW) dengan mengadopsi prinsip-prinsip hukum kontrak yang berlaku universal di dunia. Berdasarkan hasil penelitian hukum kontrak yang termuat dalam Buku III KUHPerdata sudah tidak dapat memenuhi tuntutan perkembangan transaksi bisnis saat ini, karena tidak secara eksplisit mencatumkan  prinsip-prinsip yang dianut oleh hukum kontrak internasional seperti yang tercantum dalam UNIDROIT Principles. Oleh karena itu seyogyianya dalam pembaharuan hukum kontrak diterapkan prinsip-prinsip yang terdapat dalam ketentuan UNIDROIT Principle for Internasional Commercial Contract. Penerapan prinsip-prinsip dalam CISG yang didasari oleh CERD dan prinsip-prinsip hukum umum yang berlaku diberbagai negara di belahan dunia dapat diadopsi kedalam hukum kontrak Indonesia baru, sehingga hukum kontrak Indonesia yang akan datang dapat mengakomodir kepentingan dan memberikan perlindungan serta kepastian hukum kepada para pelaku usaha khususnya yang bergerak di bidang perdagangan internasional. Kata Kunci : Pembaharuan  Hukum; Kontrak; UNIDROIT; CISG 

ASAS KEPASTIAN HUKUM DAN ASAS KEBEBASAN BERKONTRAK SEBAGAI PERTIMBANGAN UTAMA DALAM PENYELESAIAN SENGKETA PERBANKAN SYARIAH (Kajian Yuridis Putusan MK Nomor 93/PUU-X/2012)

2018 ◽  
Vol 3 (1) ◽  
pp. 69
Author(s):  
Edi Hudiata
Keyword(s):  
Dispute Resolution ◽  
Judicial Review ◽  
Alternative Dispute Resolution ◽  
Contract Law ◽  
Islamic Banking ◽  
Constitutional Court ◽  
Legal Certainty ◽  
Ideal Norm ◽  
Freedom Of Contract ◽  
Binding Force

Since the verdict of the Constitutional Court (MK) Number 93/PUU-X/2012 pronounced on Thursday, August 29, 2013, concerning the judicial review of Law No. 21 of 2008 on Islamic Banking, it is no longer dualism dispute resolution. The verdict as well as strengthen the jurisdiction of Religious Court to resolve Islamic banking disputes. In consideration of the judges, judges agreed stating that Article 55 paragraph (2) and (3) of Law No. 21 of 2008 which is an ideal norm, contains no constitutional problems. The problem is the explanation of the constitutional article 55 paragraph (2) of the Act. The emergence of the Constitutional Court verdict No. 93/PUU-X/2012 which substantially states that the explanation of Article 55 paragraph (2) of Law No. 21 of 2008 does not have binding force, basically does not violate the principle of freedom of contract which is common in contract law. The parties are allowed to make a dispute resolution agreement out of religious court based on provisions as Act No. 30 of 1999 on Arbitration and Alternative Dispute Resolution. Keywords: dispute resolution, legal certainty and the principle of freedom of contract

LEGAL ISSUES REGARDING IMPOSITION OF E-FORM D AS A BASIS FOR DETERMINATION OF PREFERENTIAL TARIFFS IN ATIGA

2020 ◽  
Vol 4 (2) ◽  
Author(s):  
Aditya Subur Purwana ◽  
Wahyu Hidayat ◽  
Mursal Maulana
Keyword(s):  
Research Method ◽  
Descriptive Analysis ◽  
Legal Issues ◽  
Legal Certainty ◽  
Layer System ◽  
Legal Provisions ◽  
Directorate General ◽  
Domestic Law

Submission of Certificate of Origin (e-Form D) is conducted through a three-layer system named ASW Gateway, LNSW, and CEISA has raised issues related to the period/time of receipt of e-Form D given by customs authorities for the purposes of charging preferential tariffs in the ATIGA scheme. This article aims to analyze the legal certainty in submitting e-Form D to the customs authorities in the importing country, in this case, the Directorate General of Customs and Excise for the purpose of charging preferential tariffs, so that it can be in line with the presentation principle based on the ATIGA OCP and Indonesian domestic legal provisions. The research method used is a normative juridical approach with descriptive analysis and normative qualitative to draw conclusions. Based on the research, it was concluded that with regard to the submission of e-Form D, Customs and Excise Officials must have confidence based on factual evidence to determine whether the principle of submission of e-Form D has been accomplished or refused when an interruption in the ASW Gateway, LNSW or CEISA happened so the Customs Officer and Excise can determine tariffs based on OCP as well as domestic law in force in Indonesia.Keywords: ATIGA, Customs Authority, Directorate General of Customs and Excise, e-Form D, Tariffs Preference.ABSTRAK: Penyerahan SKA e-Form D dilakukan melalui tiga layer system yakni ASW Gateway, LNSW, dan CEISA memunculkan permasalahan terkait dengan jangka waktu/saat diterimanya e-Form D oleh otoritas kepabeanan untuk kepentingan pengenaan tarif preferensi dalam skema ATIGA. Penelitian bertujuan menganalisis kepastian hukum dalam penyerahan e-Form D ke otoritas kepabeanan di negara importir, dalam hal ini Direktorat Jenderal Bea dan Cukai untuk kepentingan pengenaan tarif preferensi, sehingga dapat sejalan dengan prinsip presentasi berdasarkan OCP ATIGA dan ketentuan hukum domestik Indonesia. Metode penelitian dilakukan dengan pendekatan yuridis normatif secara deskriptif analisis dan penarikan kesimpulan secara normatif kualitatif. Berdasarkan penelitian, disimpulkan bahwa berkenaan dengan penyerahan e-Form D, Pejabat Bea dan Cukai harus memiliki keyakinan berdasarkan bukti faktual untuk menentukan apakah prinsip penyerahan e-Form D sudah dipenuhi/tidak ketika terjadi gangguan pada ASW Gateway, LNSW atau CEISA sehingga Pejabat Bea dan Cukai dapat menentukan tarif berdasarkan OCP maupun hukum domestik yang berlaku di Indonesia. Kata Kunci: ATIGA, Direktorat Jenderal Bea dan Cukai, e-Form D, Otoritas Kepabeanan, Tarif Preferensi. 

The Law of Contract

2018 ◽  
Author(s):  
Eva Steiner
Keyword(s):  
Common Law ◽  
World Market ◽  
Contract Law ◽  
The State ◽  
Legal Certainty ◽  
Philosophical Foundations ◽  
The Common ◽  
The Law

This chapter examines the law of contract in France and discusses the milestone reform of French contract law. While this new legislation introduces a fresh equilibrium between the contracting parties and enhances accessibility and legal certainty in contract, it does not radically change the state of the law in this area. In addition, it does not strongly impact the traditional philosophical foundations of the law of contract. The reform, in short, looks more like a tidying up operation rather than a far-reaching transformation of the law. Therefore, the chapter argues that it is questionable whether the new law, which was also intended to increase France's attractiveness against the background of a world market dominated by the Common Law, will keep its promise.

scholarly journals Kepastian Hukum Pendaftaran Persekutuan Komanditer Pada Sistem Administrasi Badan Usaha

Acta Comitas ◽  
2020 ◽  
Vol 5 (3) ◽  
pp. 536
Author(s):  
Dentria Cahya Sudarsa ◽  
I Wayan Parsa
Keyword(s):  
Business Administration ◽  
Legal Certainty ◽  
Legal Research ◽  
Administration System ◽  
Limited Partnership ◽  
Trade Law ◽  
General Law ◽  
Civil Union ◽  
Limited Partnerships ◽  
Article 5

The writing of this article is based on the issuance of new regulations regarding the establishment and registration of limited partnership / CV in the business administration system (SABU) in accordance with the provisions of Article 5 paragraph (1) Regulation of the Minister of Law and Human Rights Number 17 of 2018 concerning Registration of Limited Partnerships, Firms, and the Civil Union which previously was only regulated in the Trade Law Book. Type of research used in this article is normative legal research. The purpose of this article is to determine the mechanism and legal certainty in the registration of the Limited Partnership after the enactment of business administration system. The results of the research and writing of this article are that there is an overlap in the registration mechanism for the Limited Partnership based on these two rules, it can be concluded that due to the provisions in KUHD and Minister Regulation No. 17 of 2018 both are still valid, the principle of legal preference can be used, namely lex specialis derogat legi lex generalis, means that a more specific law can override a more general law. The advice that can be given is to conduct a study of the enactment of the Minister Regulation whether to follow or not the provisions in the Trade Law Books due to avoid conflicting norms in the registration of a limited partnership.

scholarly journals Aspek Hukum dalam Penyelenggaraan Bisnis Perhotelan

2020 ◽  
Vol 20 (3) ◽  
pp. 1033
Author(s):  
Hernawati RAS ◽  
Dani Durahman
Keyword(s):  
Law Enforcement ◽  
Environmental Law ◽  
National Development ◽  
Environmental Issues ◽  
Law Reform ◽  
Legal Certainty ◽  
Criminal Sanctions ◽  
Consumer Rights ◽  
Hospitality Business ◽  
Administrative Sanctions

The development of the law as part of a national development known as law reform is carried out thoroughly and integratedly. The hospitality business is growing rapidly as the economy develops, within the restrictions on the scope of the Hotel's business, there is a legal device that regulates the permit and protection of consumers. Hospitality businesses that do not have amdal permits Environmental law enforcement can be done by sanctioning administrative sanctions. Administrative sanctions, settlement of environmental issues outside the court and even criminal sanctions have been stipulated in Law No. 32 of 2009. The aspect of protection to Hospitality Consumers must be in accordance with the provisions of Law No. 8 of 1999, hospitality business must provide legal certainty in providing protection to consumers where currently there are still many hotels that do not provide information about consumer rights and obligations and the development of social responsibility (social responsebility). 

scholarly journals Vision d'une révision du Code du travail

2005 ◽  
Vol 20 (4) ◽  
pp. 901-934
Author(s):  
Pierre Verge
Keyword(s):  
Collective Bargaining ◽  
Third Party ◽  
Collective Agreement ◽  
Labour Law ◽  
Legal Rules ◽  
Third Party Intervention ◽  
General Law ◽  
Legal Provisions ◽  
Labour Standards ◽  
Substantive Law

Would a codification of labour law — in the Continental meaning of the word, and not a mere consolidation of existing statutes — enhance the development of this field of law ? Would the resulting instrument be likely to generate more appropriate ways of dealing with labour situations, whether or not they pertain to a collective bargaining context ? Adjective as well as substantive law would have to be involved in such an exercise. The latter aspect raises the fundamental issue of the proper relationship between the general law — civil law essentially — and labour law. What degree of autonomy is necessary to the integrity of the specialized law ? Conversely, to what extent is the general law to be relied upon to provide the necessary second-line set of legal provisions ? For instance, the two sets of legal rules entertain different views as to the termination of the employment relationship and as to the effect of a collective agreement. A well-integrated body of labour law should, in the author's opinion, govern comprehensively labour situation. The codifying process would also aim at eliminating internal discrepancies and a simpler, more accessible legal subsystem would emerge. As to the adjective aspects of labour law, the identification of desirable forms of third-party intervention relating to both collective bargaining and labour standards legislation could lead to appropriate jurisdictional arrangements. In the case of industrial conflicts, of particular interest are the flexible powers of intervention with which the Canada and British Columbia labour boards are endowed. Consideration should also be paid to certain European models — namely the Conseil de prud'hommes — which allow both conciliation and adjudication to take place in the solving of normative law conflicts of application. A full-fledged Labour Code would indeed invite the setting up of a more authentic Labour Court.

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