Trusts and Patrimonies

2015 ◽  
Keyword(s):  
The Netherlands ◽  
Building Block ◽  
Common Law ◽  
Civil Law ◽  
Comparative Law ◽  
Private Law ◽  
Legal Concept ◽  
The Common

This book explores how the private law concepts of trust and patrimony interact in various jurisdictions, with a view to advancing the understanding of the trust as a fundamental legal concept. It comprises new and previously published papers written by distinguished comparative law scholars. Focusing on the private law of England, Scotland, France, Quebec and the Netherlands, this book investigates whether the common law trust could be understood as a civil law patrimony by appropriation, and whether civil law and mixed traditions could create local versions of the common law trust using patrimony as the main conceptual building block.

scholarly journals A COMPARISON OF THE COMMON LAW BASED DUTY WITH ITS CIVIL LAW EQUIVALENT

2020 ◽  
Author(s):  
Azamat Omarov ◽  
Asylbek Kultasov ◽  
Kanat Abdilov
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Comparative Law ◽  
Case Law ◽  
Legal Systems ◽  
Legal Structure ◽  
Legal Term ◽  
Legal Effect ◽  
The World ◽  
The Common

The article discusses the features of civil law in different countries. The authors studied the origins of the modern tradition of civil law, comparing the legal systems of two European countries. One of the traditional classifications of duties in civil law is analyzed, the conclusion is made about the inappropriateness of the allocation of personal and universal duties. In comparative law, there are many situations where the same legal term has different meanings, or where different legal terms have same legal effect. This confusion most often occurs when civil lawyers have to deal with common law, or vice versa, when common law lawyers deal with civil law issues. While there are many issues which are dealt with in the same way by the civil law and common law systems, there remain also significant differences between these two legal systems related to legal structure, classification, fundamental concepts, terminology, etc. As lawyers know, legal systems in countries around the world generally fall into one of two main categories: common law systems and civil law systems. There are roughly 150 countries that have what can be described as primarily civil law systems, whereas there are about 80 common law countries. The main difference between the two systems is that in common law countries, case law – in the form of published judicial opinions – is of primary importance, whereas in civil law systems, codified statutes predominate.

Formation of Contract and Stipulations for Third Parties in Indonesia

2018 ◽  
Author(s):  
Gary F Bell
Keyword(s):  
The Netherlands ◽  
Common Law ◽  
Civil Law ◽  
Essential Element ◽  
Contract Law ◽  
Third Parties ◽  
Legal Tradition ◽  
The World ◽  
The Common ◽  
The Law

Indonesia is one of the most legally diverse and complex countries in the world. It practises legal pluralism with three types of contract law in force: adat (customary) contract laws, Islamic contract laws (mostly concerning banking), and the European civil law of contract, transplanted from the Netherlands in 1847, found mainly in the Civil Code (Kitab Undang-Undang Hukum Perdata). This chapter focuses on European civil law as it is the law used for the majority of commercial transactions. The civil law of contract is not well developed and there is a paucity of indigenous doctrine and jurisprudence, since most significant commercial disputes are settled by arbitration. The contours of the law are consistent with the French/Dutch legal tradition. In the formation of contracts, the subjective intention of the parties plays a greater role than in the common law. As with most jurisdictions with a Napoleonic tradition, the offer must include all the essential element of the contract, there is no concept of ‘invitations to treat’ or of ‘consideration’, the common law posting rule is rejected, and the contract is formed only when the acceptance is received. There are generally few requirements of form but some contracts must be in writing and some in a notarial deed.

European Private Law: Moving From a Closed to an Open System of Proprietary Rights

2001 ◽  
Vol 5 (3) ◽  
pp. 273-396
Author(s):  
J H Dalhuisen
Keyword(s):  
Open System ◽  
Common Law ◽  
Civil Law ◽  
Private Law ◽  
The Common ◽  
Lex Mercatoria

This article considers the denationalisation ofprivate law across both Civil Law and Common Lawjurisdictions in Europe. It looks in particular at systems ofproprietary rights and the demands currently placedupon them by commercial logic and practice. As the basic tenets ofownership are reformulated at transnational level in respect of commerce, trade, andfinance, greaterflexibility may be required of the Civil Law. In this connection, the conditional and temporary ownership notions offered by both the Civil and the Common Law may make a contribution to the development ofthe modern Lex Mercatoria.

scholarly journals Challenging of Debtor`s Transactions Aimed at Infliction of Damage on Creditors in Anglo-American Law and Russian Civil Law: Comparative Law Research

JURIST ◽  
2021 ◽  
Vol 3 ◽  
pp. 19-24
Author(s):  
Sergey V. Myshyakov ◽  
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Comparative Law ◽  
Legal Analysis ◽  
Legal Provisions ◽  
American Law ◽  
The Common ◽  
Russian Law ◽  
Anglo American ◽  
Fraudulent Transfer

This article deals with the common law institutions on the grounds for challenging transactions made to the detriment of creditor’s property interests, and the relevant legal provisions and presumptions located in Chapter III.1 of the Russian law on insolvency (bankruptcy), a comparative legal analysis of the object and grounds of the challenge, the subjects of the challenge, the composition for proving the fact of fraudulent transfer of the debtor’s property and the preferred satisfaction of the creditor’s claims is carried out.

A Matter of Interpretation: Constructing and Interpreting Commercial Contracts under the Common Law and the Convention on the International Sale of Goods

2015 ◽  
Vol 4 (1) ◽  
pp. 1-42
Author(s):  
Gordon Wade
Keyword(s):  
19Th Century ◽  
Common Law ◽  
Civil Law ◽  
Private Law ◽  
International Organisations ◽  
Commercial Law ◽  
International Private Law ◽  
The Common ◽  
International Sale Of Goods ◽  
Contractual Obligations

Contractual disputes concerning interpretation can be the most intractable of all contractual disputes and their outcome is notoriously difficult to predict. The interpretation of contradictory or ambiguous contractual provisions may often be necessary in order to determine, inter alia, the effect of the parties’ actions upon the performance of the contract and what the substantive contractual obligations actually are. Contractual interpretation in civil law and common law jurisdictions proceeds from fundamentally different perspectives, particularly when viewed in light of a recognised international private law convention, the cisg. Comparing and contrasting the common law and the cisg shows the latter to be the product of a diplomatic conference comprising 62 States and eight international organisations and not a series of ancient pronouncements of English judges who developed commercial law through 19th century sensibilities. The cisg and the common law are, however, not poles apart but the cisg was born because commercial trading, commercial agreements and the parties involved have become increasingly internationalised, complex and sophisticated.

Personnalité, Persönlichkeit, Personality

2014 ◽  
Vol 1 (3) ◽  
pp. 215-243 ◽  
Author(s):  
Giorgio Resta
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Comparative Law ◽  
Early History ◽  
Private Law ◽  
Distinctive Features ◽  
Modern Development ◽  
Insight Into

Can we translate the expression “droits de la personnalité” or “Persönlichkeitsrechte” into English? Is the notion of “personality” an equivalent of the continental “personnalité” or “Persönlichkeit”? This paper will deal with these questions from the perspective of comparative law. After a brief survey of the uses of the notion “personality right” in some selected civil law and common law jurisdictions, the attention will be focused on the early history and the modern development of this category, with the aim of providing some insight into the distinctive features of the continental idea of “protecting personality”. In the conclusion, two different conceptions of safeguarding personhood in private law will be contrasted, and it will be clarified to what extent the civilian droits de la personnalité should be regarded as an intraduisible.

scholarly journals What is "Equity"? Of Comparative Law, Time Travel and Judicial Cultures

2014 ◽  
Vol 39 (1) ◽  
pp. 203-228
Author(s):  
Anne-Françoise Debruche
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Comparative Law ◽  
Judicial Interpretation ◽  
Time Machine ◽  
Imaginary Time ◽  
Chronological Order ◽  
Historical Figures ◽  
The Common ◽  
Principle Of Liability

What is "equity"? Does it mean the same as the word "équité" in French ? Can the word "equity", used in an English or an American legal text, be translated readily by équité without being misleading? The answer to those two last questions is no. In the language of the common law, "equity" means something very specific and much more complicated than what we have in mind when we say équité in our civil law traditions. The present paper, adapted from a lecture given in Brasilia, attempts to shed some light on this awkward subject, as it compares the notion of équité in the French civil law tradition with the concept of equity indigenous to the English common law tradition. The mode of presentation used is that of the imaginary time machine: specialists of équité are thus interviewed one by one (Montesquieu, Portalis, Justice Magnaud) in chronological order, followed by English judges associated with the development of equity (Lord Coke, Chancellor Ellesmere and Lord Denning), Those historical figures use examples borrowed from their own time in order to illustrate the workings of équité/equity: in France the principle of liability for things and the abuse of rights theory, in England the trust, the estoppel and the injunction. As a conclusion, we discover that equity does not necessarily mean fair, and that équité has to express itself indirectly under the guise of judicial interpretation.

scholarly journals Du Maintien des Appels a la Cour Supreme du Canada en Matiere de Droit Civil

1969 ◽  
pp. 144
Author(s):  
Gérald A. Beaudoin
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Civil Law ◽  
The Other ◽  
Private Law ◽  
Supreme Court Of Canada ◽  
The Supreme Court ◽  
The Common ◽  
Le Canada ◽  
Article Analyse

L'auteur de cet article analyse la question du maintien des appels en droit civil la Cour Supr&me. Dans le contexte fSdSral canadien, il se declare favorable au maintien de ces appels. II trouve plus d'avantages que de disavantages. Le Canada ayant deux systdmes de droit privi, il convient que le plus haut tribunal du pays se prononce en ces matidres il s'agit d'une richesse pour notre pays. 11 moyen d'assurer la purete" de Vun et de Vautre systdme. The author of this article analyses the question of the retention of the civil law appeals to the Supreme Court of Canada. He is in favour of such appeals in our federation. We have in Canada two private law systemss one inspired from the Common Law of England and the other from "le droit civil" of France. It is appro priate for our highest tribunal to render judgments in both systems. This is great advantage for our country. Steps may be taken to assure the purity of both systems.

Comparative Law and the Study of Mixed Legal Systems

2006 ◽  
pp. 476-512 ◽  
Author(s):  
Jacques Du Plessis
Keyword(s):  
Comparative Analysis ◽  
Common Law ◽  
Civil Law ◽  
Comparative Law ◽  
Legal Systems ◽  
Legal Development ◽  
European Context ◽  
The Common

Legal systems generally are ‘mixed’ in the sense that they have been influenced by a variety of other systems. However, this label traditionally is only attached to those systems which represent a mix between the common law and the civilian tradition. This article focuses on what studies of mixed legal systems reveal about the broader comparative themes of the classification of legal systems, whether and how borrowing can take place, the quality of the law to which borrowing gives rise, the connection between civil law and the common law in the European context, and the role which language can play in comparative analysis and legal development.

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