scholarly journals AGREEMENT OF THE WILLS FROM THE CONTRACTUAL PARTIES AS ONE OF THE CONDITIONS TO MAKE A DEAL

2018 ◽  
Vol 28 (6) ◽  
pp. 1953-1957
Author(s):  
Aleksandra Patoska

Every agreement of the wills among two or more persons who make mutual law relation or changes or calls of the existing law relation is named as a contrast in the theory of law. According its characteristics, the law relations may be different - obligatorious, familliarious, hereditorious, administrativ, merchanditorious etc., because of what the contracts as instruments of law regulations of that relationships are published in different law branches, like: familly law, heretige law, administrative law, merchandise law etc. Regarding its theoretical structure and frequent use and meaning in the law practice, the obligatory contracts are separated - those which may make obligatory relationships.The obligatory relationships are law connection among two or more parties from which one of them has the right to ask for, and the other is obligated to give the asked or to do, or not to do, or to bear it. The essence of the obligatory relation is in the right of the creditor to ak from the debtor to fulfille his obligation, which means - basicly - they are in creditor - debtor's relationships. Therefore, the obligatory contracts are double law acts according to which, in the agreement of the wills between two parties, the one part obeys to give something, to do or not to do something, or to bear something in the benefit of the other part, the part which takes that obligation as its right.The agreement of the wills of the contractual parties is one of the four common conditions of the genezes of a contract. It is realized by equality of the different whishes and different aims which the parties like to reach by making an agreement. There are the questions which I am trying to answer in my written text: about law relevant will, the atributes which the will should possesse, the ways of giving the will and, at the end, coordinating the wills of the two parts which goes to make the contact. The coordinating of the wills should be done on a legalized or usual way, frequently or usually by giving an offer from the first part and reaching the offer from the other one. That is the most usual mode of implementation the reunification of the wills between the contractual parts.

2020 ◽  
Vol 2019 ◽  
pp. 126-133
Author(s):  
Vlad-Cristian SOARE ◽  

"The fundamental transformations through the Romanian state passed since the Revolution of December 1989, have also put their mark on the legal system. For this reason, there have been major changes in the content of administrative law. However, the regulation of the territorial-administrative subdivisions survived the change of political regime, due to Law 2/1968. Moreover, regulations on administrative-territorial subdivisions are also found in Law 215/2001 and in the 1991 Constitution, revised in 2003. This has led to problems of interpretation. Thus, on the one hand, we need to identify who has the right to constitute administrative-territorial subdivisions, and on the other hand, it must be seen whether the answer to the first question, leads to a possible interpretation that would be unconstitutional. At the same time, administrative-territorial subdivisions have created problems of interpretation regarding their legal capacity. Through this article, we have proposed to look at the issues mentioned above."


Author(s):  
Bothe Michael

This chapter focuses on rules of the law of neutrality concerning the protection of the victims of armed conflicts, which must be considered as part of international humanitarian law. ‘Neutrality’ describes the particular status, as defined by international law, of a state not party to an armed conflict. This status entails specific rights and duties in the relationship between the neutral and the belligerent states. On one hand, there is the right of the neutral state to remain apart from, and not to be adversely affected by, the conflict. On the other hand, there is the duty of non-participation and impartiality. The right not to be adversely affected means that the relationship between the neutral and belligerent States is governed by the law of peace, which is modified only in certain respects by the law of neutrality. In particular, the neutral State must tolerate certain controls in the area of maritime commerce. The duty of non-participation means, above all, that the state must abstain from supporting a party to the conflict. This duty not to support also means that the neutral state is under a duty not to allow one party to the conflict to use the resources of the neutral state against the will of the opponent.


2005 ◽  
pp. 220-224
Author(s):  
Vitaliy I. Docush ◽  
Ya. Poznyak

If we analyze our legislation in detail, we can see that there are so-called “legal scissors”. On the one hand, the law guarantees freedom by equalizing the rights of all citizens of the state (Article 24 of the Constitution), and on the other - leaves believers outside the legal field (Article 35 of the Constitution and Article 6 of the Law of Ukraine "On Freedom of Conscience and Religious organizations ") declaring separation from the church. It should be noted that even the Law on Education does not guarantee the right to receive alternative (not secular) education for children of believers, regardless of their affiliation with a religious organization, in educational institutions. It should also be noted that even in the years of Ukraine's independence, the issue of granting theological education a proper status that would equate it to secular rights has not yet been resolved. Again, the principle is the separation of the school and the church. Here are some questions.


2001 ◽  
Vol 50 (1) ◽  
pp. 144-157 ◽  
Author(s):  
Jonathan Hill

Over the course of the last hundred and fifty years or so the general trend in the laws of Western European countries has been, first, to make provision for judicial divorce and, second, to make it easier for parties to a marriage which has broken down to obtain such a divorce. This coupled with increased mobility has added to the significance of the law relating to the recognition of foreign divorces. The law's essential task is to strike the right balance between, on the one hand, being too restrictive, thereby creating “limping” marriages (i.e., marriages which are valid in one or more countries, but not others) and, on the other, being too generous, thereby sanctioning “quickie” divorces or divorces of convenience.1


2016 ◽  
Vol 61 (4) ◽  
Author(s):  
Carlo Casini

Il contributo è dato dall’esame e dal commento della Relazione del Ministro della Salute sull’attuazione della Legge 40 del 19 febbraio 2004 “Norme in materia di procreazione medicalmente assistita”, presentata, al Parlamento ai sensi dell’art. 15, comma 2 della legge stessa. Il Movimento per la Vita Italiano (MpVI) per valutare i dati di volta in volta riportati nei documenti ministeriali ha finora presentato quattro Rapporti al Parlamento: il primo nel 2007, il secondo nell'aprile 2009, il terzo a luglio 2011 e il quarto – oggetto del presente articolo – nell’agosto 2012. L’attenzione della Relazione ministeriale è rivolta soprattutto alla realizzazione del desiderio degli adulti di avere un figlio, in base allo scopo dichiarato dalla legge di “favorire la soluzione dei problemi riproduttivi derivanti dalla sterilità o dalla infertilità umana”. Perciò la descrizione del percorso seguito dalle varie tecniche e gli incroci tra i vari dati a disposizione fanno riferimento prevalente alla coppia adulta. Tuttavia, si sottolinea nella Rapporto del “MpVI” non si deve sottovalutare l’art. 1 della legge indica l’altro fondamentale obiettivo della legge e cioè quello di: “assicurare i diritti di tutti i soggetti coinvolti compreso il concepito”. I soggetti di cui è doveroso tener conto non sono solo gli adulti desiderosi di avere un figlio, ma anche i figli fin dal primo momento della loro esistenza (proprio l’evento che le nuove tecniche intendono determinare), cioè fin dal momento del concepimento. L’articolato, documentato e ricco Rapporto del MpVI richiama sinteticamente l’impianto della normativa – seriamente alterato dalla sentenza costituzionale 151/2009 – e gli interventi giudiziari che lo riguardano; rimarca con forza la grande differenza – in ordine alla protezione del diritto alla vita – tra la morte dell’embrione dopo il trasferimento nelle vie genitali della donna e la sua soppressione deliberata, diretta, concordata, che avviene quando l’embrione, non trasferito nelle vie genitali della donna viene selezionato, reso oggetto di sperimentazione, distrutto, congelato; contesta la teoria del c.d. “diritto affievolito” con riferimento al diritto alla vita del concepito; si sofferma sulla necessità di rimuovere le cause impeditive della procreazione alternative alla procreazione artificiale (a questo proposito viene segnalata la significativa esperienza dell’Istituto Scientifico Internazionale Paolo VI di ricerca sulla fertilità e infertilità umana operante presso il Policlinico “A. Gemelli” di Roma dal 2003). Infine, il rapporto si conclude con alcune domande e proposte di lavoro rivolte al Ministro della Salute. Non vi è dubbio, comunque, che quella dello statuto giuridico dell’embrione umano non deve essere emarginata nella relazione annuale del Ministro: “se nell’attuazione della L. 40/04 vogliamo raggiungere un adeguato bilanciamento tra l’obiettivo di superare la sterilità e l’infertilità da un lato e il rispetto della vita dall’altro, occorre assolutamente valorizzare il principio dell’art. 1 che qualifica soggetto titolare di diritti il concepito, al pari degli altri soggetti coinvolti nella vicenda procreativa”. ---------- This article is the review and comment of the Report of the Italian Minister of Health on the implementation of Law 40, February 19, 2004 on medically assisted procreation, submitted to the Parliament under article 15 paragraph 2. The Italian Pro-Life Movement (MpVI) to evaluate the data from time to time within ministerial documents has up to now submitted four reports to Parliament: the first in 2007, the second in 2009, the third in July 2011 and the fourth – subject of this article – in August 2012. The Ministerial Report focuses mainly on the realization of the desire of adults to have a child, according to the stated purpose of the law of “helping to resolve problems arising from human sterility or infertility”. Therefore the description of the path followed by various techniques and the connections between the various available data refer mainly to the adult couple. However, it is observed in the Report of the (MpVI), we shouldn’t neglect the article 1 of the Law indicating another key objective of the same Law which is: “to ensure the rights of all subjects involved including the human embryo”. So, the subjects we must take into account are not only the adults longing to have a child, but also the children from the first moment of their existence (just the event that the new techniques intend to be determined), that is, from the moment of conception. The articulated, documented and rich Report MpVI recalls briefly the system of Law – seriously altered by constitutional judgment 151/2009 – and the judicial interventions concerning it; it strongly emphasizes the great difference – as for the protection of the right to life of human embryo – between the death of the embryo after transfer into the genital tracts of women and his deliberate killing, direct, agreed that occurs when the embryo is not transferred to the genital tract of women is selected, but he is destroyed, made the object of experimentation, frozen, selected; it desputes the theory of the so-called “Weakened Law” dealing with the right to life of the unborn child; it focuses on the need to remove the causes hindering human procreation alternative to artificial procreation (in this regard is reported significant experience of the International Scientific Institute Paul VI on research on fertility and infertility human, working at the Policlinico Gemelli in Rome since 2003). Finally, the Report of MpVI concludes with some questions and work proposals addressed to the Minister of Health. There is no doubt, however, that the legal status of the human embryo should not be neglected in the annual Report of the Minister: “if about the implementation of the L. 40/2004 we want to achieve an appropriate balance between the objective of overcoming infertility and infertility on the one hand and respect for life on the other, it is essential to enhance the principle of article 1 that qualifies human embryo subject holder of human rights, like the other subjects involved in the medically assisted procreation”.


Author(s):  
Fareed Moosa

This article argues that the general approach to documentary interpretation articulated in Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 4 SA 593 (SCA) (Endumeni) applies also to the interpretation of wills, subject to adaptation for context. It is argued that interpretation of wills and the application of an interpretation to a particular factual setting are coequal tasks. Each case must be decided on its own facts. The cardinal rule is the ascertainment of a testator's intention and giving effect thereto, provided that this will not bring about a violation of the law. It is argued that a court must put itself in the armchair of the testator and, after determining where the probabilities lie, it must infer or presume what the testator had in mind at the time that the will was created. Although intention is subjective, the interpretive process to determine a testator's intention is objective in form. It is argued that a court must, in every instance, understand the purpose for which it seeks to determine a testator's intention. This is so that it can undertake the correct enquiry. If the aim is to determine the meaning of a testamentary provision, then a testator's intention must be ascertained as memorialised in the written text of the will read as a whole, taking into account also the purpose of the text and its context. If, on the other hand, the aim is to determine whether a document is a testator's intended last will and testament, as is the case when section 2(3) of the Wills Act 7 of 1953 is invoked, then a testator's intention must be ascertained with reference to the document's purpose, taking also into account all legally relevant and admissible internal and external contextual factors. It is argued that all this is, as confirmed in Endumeni, consistent with the modern trend favouring an objective, purposive, contextual cum teleological mode of documentary interpretation.


Legal Theory ◽  
2014 ◽  
Vol 20 (1) ◽  
pp. 25-51 ◽  
Author(s):  
Colin Grey

This paper argues that neither a general right to exclude migrants nor a general right to migrate freely exists. The extent of the right to exclude or the right to migrate freely must instead, in the majority of cases, be determined indirectly by examining whether a given immigration law or policy would result in the violation of migrants’ basic rights. Therefore states’ right to exclude migrants is constrained by what the author calls the indirect principle of freedom of migration. Under this principle, if an immigration law or policy cannot be imposed without violating a migrant's basic rights, then the law or policy cannot be legitimately implemented. The argument for this principle is undertaken both conceptually and substantively. It is then defended against the objections that on the one hand, it may not have enough critical force, and on the other, it may be overly restrictive of states’ power to exclude migrants.


2014 ◽  
Vol 22 (1) ◽  
pp. 40-60
Author(s):  
Jiewon Baek

In lieu of an abstract, here is the essay's opening paragraph:Marguerite Duras prefaces the second edition of Le navire night, from which an excerpt is cited above, by explaining that after writing the story of a man named J.M., everything came too late, including the realization of the film version of Le navire night. Once the event has been written and the common night of history been closed up, did she have the right to flash a light into the darkness to go back and see? The only seeing through cinema that was possible, she continues, was to film the failure, the disaster of the film. But how does one film the failure of realizing a film adaptation of a written text, which itself was transcribed from an oral re-telling of a story, which itself was adapted from memory? The event already took place – writing, “this history here” –, leaving cinema to film what never took place, namely, the film itself. As Jean-Luc Godard confirms in a chapter titled Seul le cinéma in Histoire(s) du cinéma, not only in the form of his project as a whole but also more explicitly in one shot that positions two close-up photographs of his face with the sound of Paul Hindemith’s “Funeral Music” and this text: “Faire une description précise de ce qui n’a jamais eu lieu est le travail de l’historien.” Describing the rise of the film Le navire night from its disastrous death, Duras writes: “On a mis la caméra à l’envers et on a filmé ce qui entrait dedans, de la nuit, de l’air, des projecteurs, des routes, des visages aussi.” The camera turned upside-down, or in the other sense, inside-out, Duras films the entrance of the exterior, a sort of a Levinasian visage. The question no longer is one of having the right but of the duty to re-write history, as is insinuated by the reference to “The Critic as Artist” written across one of the photographs mentioned above, which is again a gesture of Godard’s positioning himself as the critic whose role Oscar Wilde defined: “The one duty we owe to history is to rewrite it.”


2005 ◽  
Vol 18 (4) ◽  
pp. 691-710
Author(s):  
Denis Bourque

Clause 1(b) of the Canadian Bill of Rights specifies that every person has the right to equality before the law. The purpose of this article is to analyse, on the one hand, the meaning that the judges of the Supreme Court have given to this concept of equality before the law and, on the other hand, the way in which they have applied this aforementioned principle of Clause 1(b) of the Canadian Bill of Rights. Four judgements are the subject of Mr. Bourque's study. He concerns himself with the Drybones, Lavell, Burnshine and Canard judgements. In the course of analysing these cases, Mr. Bourque brings out the shilly-shallying of the judges in connection with their concept of equality before the law. In spite of this beating about the bush two concepts emerge at the level of the judges of the Supreme Court, namely an equalitarian concept of equality before the law, and a concept which makes equivalent equality before the law and the rule of law. According to Mr. Bourque, the analysis of these four judgements shows that it is the concept which makes equivalent equality before the law and the rule of law, which represents, the position of the Supreme Court, at the present time.


2009 ◽  
pp. 181-192
Author(s):  
Alfonso Catania

- Enrico Pattaro's volume The Law and the Right features an appreciable finesse of argumentation and an analysis of unusual historical density. The attention paid to psychology absolutely significant when studying an area like that of law, which comprises relationships of expectation and of claim is deserving of recognition as an indispensable, urgent complexification of the conceptual framework of legal positivism and realism, whose reasoning has for some time been manifesting a degree of aridity and, I dare say, poverty. The author identifies the fact that Hart is treated as having espoused the psychologically-inclined realist school as a consequence of the realistic attention to describing normative attitudes as somewhat forced reasoning. These normative attitudes that Hart analyses by drawing a distinction between the internal and the external point of view can hardly be reduced to mere internal experiences that are pregnant exclusively in empirical psychological terms. While the epistemological option in favour of a radical, materialist, psychologist monism expounded in Pattaro's book on the one hand stimulates a valuable investigation into the mental and social dynamic immanent to reality (which must be), no less than the plane of reality that is, on the other hand it runs the risk of casting a shadow on the dimension of designing and transforming reality practised by those who generate norms (marginal in volume compared to the prevalence of believers who make them what they are by the very act of believing in them), thus blacking out the dialectic tension between law and facticity, obedience and effectiveness. This is a classical objection to radical realism that is not overcome by the attention paid by Pattaro to the normative dimension "in the relative sense".


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