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.

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.

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.

Lepaulle Appropriated

2015 ◽  
Author(s):  
Alexandra Popovici ◽  
Lionel D Smith
Keyword(s):  
International Law ◽  
English Translation ◽  
Common Law ◽  
Civil Law ◽  
Tax Law ◽  
Private Law ◽  
Municipal Law ◽  
The Common ◽  
Droit International

This chapter discusses the English translation of the first chapter of Pierre Lepaulle's 1932 book Traité théorique et pratique des trusts en droit interne, en droit fiscal et en droit international (A Theoretical and Practical Treatise on Trusts in Municipal Law, Tax Law, and International Law). The book articulates Lepaulle's vision of the common law trust as an affected patrimony. His goal was to explain the common law trust to a civilian audience, using the vocabulary and the conceptual tools of the civil law in its French manifestation. The chapter first provides a background on the translation project, which involved appropriating Lepaulle, and the author before presenting the translation. It emphasises the significance of Lepaulle's work to the notions of trust and patrimony as well as to civil law in French and to private law more generally, including the common law.

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.

Is Style of Reasoning a Fundamental Difference Between the Common Law and the Civil Law?

2017 ◽  
Vol 17 (2) ◽  
pp. 238-290
Author(s):  
Colm Peter McGrath ◽  
◽  
Helmut Koziol ◽  
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Fundamental Difference ◽  
The Common

The New Private Law and Intellectual Property

2020 ◽  
pp. 408-426
Author(s):  
Molly Shaffer Van Houweling
Keyword(s):  
Intellectual Property ◽  
Common Law ◽  
Private Law ◽  
Concepts And Categories ◽  
The Common ◽  
The Law ◽  
Law Courts ◽  
Legal Concepts

This chapter studies intellectual property (IP). A hallmark of the New Private Law (NPL) is attentiveness to and appreciation of legal concepts and categories, including the traditional categories of the common law. These categories can sometimes usefully be deployed outside of the traditional common law, to characterize, conceptualize, and critique other bodies of law. For scholars interested in IP, for example, common law categories can be used to describe patent, copyright, trademark, and other fields of IP as more or less “property-like” or “tort-like.” Thischapter investigates both the property- and tort-like features of IP to understand the circumstances under which one set of features tends to dominate and why. It surveys several doctrines within the law of copyright that demonstrate how courts move along the property/tort continuum depending on the nature of the copyrighted work at issue—including, in particular, how well the work’s protected contours are defined. This conceptual navigation is familiar, echoing how common law courts have moved along the property/tort continuum to address disputes over distinctive types of tangible resources.

Civil and Common Law

2020 ◽  
pp. 226-240
Author(s):  
Lionel Smith
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Private Law ◽  
The Future

This chapter aims to answer the question, “what can the civil law tradition tell us about the New Private Law?” It seeks to do this by offering one civilian's perspective on private law, on U.S. private law, and on the New Private Law. In order to answer that question, it is necessary to say a little bit about what is a civilian perspective, or in other words, what makes a jurist a civilian. This is a question to which many different answers could be given. The chapter then looks at the different perspective that a civilian may have on what is the domain of private law. It also asks what insights the civilian's understanding of the discipline of law may offer to common lawyers. From a civilian perspective, the future of the New Private Law will be interesting indeed.

Classifying precontractual liability: a comparative analysis

Legal Studies ◽  
2001 ◽  
Vol 21 (2) ◽  
pp. 153-191 ◽  
Author(s):  
Joachim Dietrich
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Tort Law ◽  
Contract Law ◽  
Common Elements ◽  
Ongoing Debate ◽  
Unjust Enrichment ◽  
The Common ◽  
Initial Focus

The common law has solved questions of liability arising in the context of precontractual negotiations by resort to a range of different doctrines and approaches, adopting in effect ‘piecemeal’ solutions to questions of precontractual liability. Consequently, debate has arisen as to how best to classify or categorise claims for precontractual work and as to which doctrines are best suited to solving problems arising from anticipated contracts. The purpose of this article is to consider this question of how best to classify (cases of) precontractual liability. The initial focus will be on the ongoing debate as to whether principles of contract law or principles of unjust enrichment can better solve problems of precontractual liability. I will be suggesting that unjust enrichment theory offers little by way of explanation of cases of precontractual liability and, indeed, draws on principles of contract law in determining questions of liability for precontractual services rendered, though it does so by formulating those principles under different guises. Irrespective, however, of the doctrines utilised by the common law to impose liability, it is possible to identify a number of common elements unifying all cases of precontractual liability. In identifying such common elements of liability, it is necessary to draw on principles of both contract and tort law. How, then, should cases of precontractual liability best be classified? A consideration of the issue of classification of precontractual liability from a perspective of German civil law will demonstrate that a better understanding of cases of precontractual liability will be gained by classifying such cases as lying between the existing categories of contract and tort.

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