Q 1-15 Why did the court in C1-5 ultimately apply the CISG, although it had not entered into force in one of the Contracting States? Q 1-16 a) Why does the CISG provide for the possibility of a reservation in Art. 95 CISG? b) What is the purpose of Art. 95 CISG? Q 1-17 a) In C1-5, why was the CISG not applicable through Art. 1(1)(a)? b) Why was the court wrong to ﬁnd that the CISG governed this case? c) Could the court have found out the reservation made by the USA under Art. 95 CISG? Where could it have been looked up? Q 1-18 Look at the following examples and decide whether the CISG is the applic-able law: a) The lex fori of Swiss courts leads to the law of China. b) The lex fori of a Czech court leads to French law. c) The lex fori of a US court leads to US law. d) A claim arising from a sales contract between a US and an Italian enter-prise has been brought before a US court. e) A US buyer sues a Slovakian seller in a US court. Q 1-19 Germany has made a declaration that it will not apply Art. 1(1)(b) CISG if the conﬂict of laws rules lead to the application of the law of a Contracting State which has made a reservation within the meaning of Art. 95 CISG. Can you imagine why Germany made such a declaration? To put it diﬀerently, a minority view in legal commentary holds that the CISG could be applicable via Art. 1(1)(b) despite the fact that the other party is located in a Contracting State that has made a declaration according to Art. 95 CISG. What reasons could there be for such a view? Q 1-20 Work out the most signiﬁcant diﬀerences with regard to the applicability of the UP 2004, the PECL, and the CISG. Consider the legal status of the UP 2004 and the PECL, respectively. Q 1-21 Compare the way in which ‘international’ is deﬁned in the UP 2004 and the CISG, respectively. Q 1-22 Do the parties to an international sales contract have the possibility to choose the UP 2004 or the PECL as the law applicable to their contract?

This chapter examines the French law of tort. Although French law takes a broad approach to civil liability, when looking more closely at the way in which French judges have dealt with claims in tort, it becomes apparent that the need to avoid extending the scope of civil liability to an unlimited extent has also been present in French law. Indeed, in order to achieve desirable results, French judges have on many occasions used their discretion to interpret restrictively the elastic concepts of fault, damage, and causation. Hence, they end up dismissing claims which, for policy reasons, would have created unjust results or would have opened the gates to a flood of new claims. Thus, even though French judges do not admit to it openly in their judgments, they are influenced as regards the matter of deciding the limits of liability by general policy considerations, especially the ‘floodgates arguments’ which their English counterparts also readily understand.

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Voices of Spectators and Audience Power

Pólemos ◽

10.1515/pol-2015-0017 ◽

2015 ◽

Vol 9 (2) ◽

Author(s):

Christian Biet

Keyword(s):

Social Relationship ◽

The Other ◽

Long Period ◽

The Social ◽

The Common ◽

Dramatic Action ◽

The Law ◽

The Voice ◽

The Way

AbstractTheatre and law are not so different. Generally, researchers work on the art of theatre, the rhetoric of the actors, or the dramaturgy built from law cases or from the questions that the law does not completely resolve. Trials, tragedies, even comedies are close: everybody can see the interpenetration of them on stage and in the courts. We know that, and we know that the dramas are made with/from/of law, we know that the art the actors are developing is not so far from the art of the lawyers, and conversely. In this paper, I would like to have a look at the action of the audience, at the session itself and at the way the spectators are here to evaluate and judge not only the dramatic action, not only the art of the actors, not only the text of the author, but also the other spectators, and themselves too. In particular, I will focus on the “common judgment” of the audience and on its judicial, aesthetic and social relationship. The spectators have been undisciplined, noisy, unruled, during such a long period that theatre still retains some prints of this behaviour, even if nowadays, the social and aesthetic rule is to be silent. But uncertainty, inattention, distraction, contradiction, heterogeneity are the notions which characterise the session, and the judgments of the spectators still depend on them. So, what was and what is the voice of the audience? And with what sort of voice do spectators give their judgments?

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REKONSTRUKSI IJTIHĀD DALAM ILMU UṢŪL AL-FIQH

Al-Ahkam ◽

10.21580/ahkam.2012.22.2.9 ◽

2012 ◽

Vol 22 (2) ◽

pp. 161

Author(s):

Rokhmadi Rokhmadi

Keyword(s):

Islamic Law ◽

The Other ◽

Basic Principles ◽

The Law ◽

The Way

Al-Qur’an and Sunnah, needs of understanding and extracting optimally, so that the contents of law can be applied for the benefit of people. The way- to understand and to extract the contents in these two sources- called ijtihād. Thus, ijtihād is needed on istinbāṭ of law from many arguments of the texts (naṣ), eventhough it is qaṭ’ī in which the uṣūliyyūn have agreed that it is not the area for re-extracting to the law (ijtihādiyyah). The problem in this case is that even a qaṭ’ī argument according to the most of uṣūliyyūn has not been qaṭ’ī argument in the other uṣūliyyūn opinion. Reconstruction of ijtihād becomes an alternative, with some considerations: First, weight and tightening the requirements to become a mujtahid, which is almost impossible controlled by someone at the present time; Second, the increasing complexity of the problems faced by the ummat which is very urgent to get the solution; Third, let the period without ijtihād (vacuum of mujtahid) is contrary to the basic principles of Islamic law are always sāliḥ li kulli zamān wa makān. This paper present to discuss further about the urgency of the reconstruction of ijtihād in the challenge of modernity.***Al-Qur<ins cite="mailto:hasan" datetime="2015-02-17T11:11">’</ins>an maupun <ins cite="mailto:hasan" datetime="2015-02-17T11:11">s</ins>unnah sangat membutuhkan pemahaman dan penggalian secara optimal agar isi kandungan hukumnya dapat diterapkan bagi kemaslahatan umat. Cara untuk menggali dan mengeluarkan isi kandungan yang ada dalam kedua sumber tersebut dinamakan ijtihād. Ijtihād sangat dibutuhkan pada setiap isti<ins cite="mailto:muthohar" datetime="2015-01-29T05:30">n</ins><del cite="mailto:muthohar" datetime="2015-01-29T05:30"></del>bāṭ hukum dari dalil naṣ, sekalipun dalil naṣ tersebut bersifat qaṭ'ī yang oleh para uṣūliyyūn sudah disepakati tidak menjadi wilayah untuk dijitihadi lagi. Permasalahannya adalah bahwa sesuatu dalil naṣ yang sudah bersifat qaṭ'ī sekalipun oleh sebagian besar uṣūliyyūn, belum tentu dipandang qaṭ'ī oleh sebagian uṣūliyyūn yang lain. Rekonstruksi ijtihād menjadi sebuah alternatif, dengan beberapa pertimbangan: Pertama, berat dan ketatnya persyaratan-persyaratan menjadi seorang mujtahid, yang hampir tidak mungkin dikuasai oleh seseorang pada masa sekarang; Kedua, semakin kompleksnya permasalahan yang dihadapi oleh ummat yang sangat mendesak untuk mendapatkan solusi; Ketiga, membiarkan satu periode tanpa ijtihād (kevakuman mujtahid) adalah bertentangan dengan prinsip dasar hukum Islam yang selalu sāliḥ li kulli zamān wa makān. Tulisan ini hadir untuk mendiskusikan lebih jauh tentang urgensi rekonstruksi ijtihād dalam menghadapi tantangan modernitas.***Keywords: ijtihād, qaṭ'ī, ẓannī, uṣūl al-fiqh

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Analisa Hukum Islam dalam Meninggalkan Shalat Jum’at pada Masa Pandemi Corona Virus Disease 2019 (Covid-19)

Mutawasith: Jurnal Hukum Islam ◽

10.47971/mjhi.v3i2.238 ◽

2020 ◽

Vol 3 (2) ◽

pp. 200-2015

Author(s):

Irdlon Sahil

Keyword(s):

Legal Status ◽

Islamic Law ◽

Virus Disease ◽

Secondary Level ◽

Corona Virus ◽

Life Threatening ◽

The Law ◽

Hot Weather ◽

Friday Prayer ◽

The Way

This study discusses the legal status of leaving Friday prayers during the Corana Virus pandemic. Based on the source of Islamic law; al-Qur'an, hadith and ijma' ulama. In this study there are four conclusions, first, the scholars agreed that the law of Friday prayer is mandatory for people who are affected by the law of taklif and are in a state of pain, fear of illness, fear of life and property, rain, very cold or very hot weather and the outbreak of a disease such as coronavirus. Second, it is permissible not to perform Friday prayers if there is udzur in the way. It's part of the waiver in the goal of setting the law at a secondary level of need that turns into a primary need because the spread of this virus has been life-threatening. Third, it is obligatory to obey the leader, as long as the policy is not contrary to Islamic law. To measure the conformity of the leader's policy with sharia by referring to a benefit. Fourth, as long as the udzur syar'i is still struck, leaving Friday prayers is no limit.

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Conflict-of-laws rules on assignments of receivables in the United States and Canada

Uniform Law Review ◽

10.1093/ulr/unz041 ◽

2019 ◽

Vol 24 (4) ◽

pp. 649-663

Author(s):

Michel Deschamps

Keyword(s):

Chief Executive ◽

The United States ◽

Third Parties ◽

The Other ◽

Conflict Of Laws ◽

Business Corporation ◽

Secured Transactions ◽

The Usa ◽

Model Law ◽

Definition Of

Abstract This article describes the conflict-of-laws rules of the USA and Canada on the effectiveness against third parties and priority of an assignment of trade receivables. Comparisons are also made with the rules proposed on these issues by the European Commission’s Proposal of 12 March 2018 and the UNCITRAL Model Law on Secured Transactions. The conflict-of-laws rules examined in the article generally designate the location of the assignor as the place whose law applies to the effectiveness against third parties and the priority of an assignment. The article shows however that the definition of the location of the assignor varies from one jurisdiction to another (statutory seat, chief executive office, state of constitution, etc.) Moreover, the US rules and certain Canadian rules define the location of a business corporation using a criterion which is different depending on the corporation’s jurisdiction of incorporation. In addition, the European Commission’s Proposal allows the parties to an assignment made in the course of a securisation transaction to deviate from the assignor’s location rule and select the law governing the receivable as the applicable law. All of these differences result in a lack of harmonization. The article also summarizes the analysis that a financier must conduct to identify the jurisdiction(s) where the financier would normally want that an assignment in its favour be recognized. The relevant jurisdictions are normally the jurisdiction(s) in which insolvency proceedings relating to the assignor may take place and the other jurisdiction(s) where the debtors of the receivables could be located; a dispute might sometimes occur in these other jurisdictions with a competing claimant attempting to claim priority (e.g. a judgement creditor who would seize receivables owed by the debtors located in those jurisdictions). As the insolvency jurisdiction(s) and the other jurisdiction(s) in which the debtors are located may have different conflict-of-laws rules, a prudent financier should examine the applicable rules of all relevant jurisdictions.

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Conflict of law 1921–1971 the way ahead

The Cambridge Law Journal ◽

10.1017/s0008197300133987 ◽

1972 ◽

Vol 31 (1) ◽

pp. 67-120 ◽

Cited By ~ 2

Author(s):

K. Lipstein

Keyword(s):

General Principle ◽

Legal Basis ◽

Conflict Of Laws ◽

Sixth Edition ◽

Foreign Law ◽

Long Time ◽

English Law ◽

The Law ◽

Conflict Of Law ◽

The Way

(1) Legal BasisWhen the first issue of the Cambridge Law Journal appeared in 1921, the English rules of the conflict of laws were those stated and reformulated by Dicey and by the editors of Westlake and Foote. Their progress between 1858 and 1912 had been charted by Dicey himself in a survey published in 1912. The legal basis for the application of foreign law in England was and remained Lord Mansfield's pronouncement in Holman v. Johnson: “Every action here must be tried by the law of England, but the law of England says that in a variety of circumstances … the law of the country where the cause of action arose shall govern.” Dicey never waivered in his adherence to this rule of English law, but he supplemented it with an argument drawn from the doctrine of acquired rights which bedevilled English lawyers for a long time, until in 1949 the editors of the sixth edition of Dicey took what they believed to be a bold, but substantially honest, step by restricting the concept to its proper boundaries and thus by depriving it of its capacity to serve as a general principle of the Conflict of Laws.

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Discretion and Security: Excluding Evidence under Section 78(1) of the Police and Criminal Evidence Act 1984

The Cambridge Law Journal ◽

10.1017/s0008197300106907 ◽

1990 ◽

Vol 49 (1) ◽

pp. 80-90 ◽

Cited By ~ 1

Author(s):

C.J.W. Allen

Keyword(s):

Common Law ◽

The Other ◽

Rule Of Thumb ◽

The Common ◽

Political Compromise ◽

The Law ◽

Law Of Evidence ◽

Court Of Appeal ◽

The Way

Among rules of law Karl Llewellyn noted at one extreme the “rule-of-thumb, in which the flat result is articulated, leaving behind and unexpressed all indication of its reason”. At the other extreme was “the way of principle, in which the reason is clearly and effectively articulated, and that articulation is made part of the very rule”. The vice of principle, he observed, “can be a vaporish vagueness, and the techniques of its effective formulation are not easy to isolate for communication and use”. Partly for this reason, partly perhaps because of its origin in a last-minute political compromise, section 78(1) of the Police and Criminal Evidence Act 1984 at first confounded attempts to predict the manner of its application. One commentary suggested that it was “of no practical use”; there were dicta in the Court of Appeal to the effect that it did “no more than to re-state the power which judges had at common law before the Act of 1984 was passed”. A leading work on the law of evidence expressed the view that the sub-section was “cast in terms of such vagueness and generality as to furnish little guidance to the court”. There has been some development since those early days. It now seems clear that the Police and Criminal Evidence Act 1984 is to be regarded as a codifying Act which has to be looked at on its own wording. Section 78(1), therefore, does not merely re-state the position at common law. It is also clear that in its operation it overlaps section 76 and, through section 82(3), some of the common law. Section 78(1) may be applied in a variety of situations, with or without the presence of some element of impropriety in the way in which the evidence was obtained. Basic questions about its operation nevertheless remain.

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Procedure

The Conflict of Laws in India ◽

10.1093/oso/9780199495603.003.0013 ◽

2019 ◽

pp. 225-238

Author(s):

V.C. Govindaraj

Keyword(s):

The Other ◽

Remedial Measures ◽

Choice Of Law ◽

Conflict Of Laws ◽

Other Hand ◽

Foreign Law ◽

The Law ◽

Substantive Law

This chapter begins with a brief discussion of the jurisprudential distinction between substance and procedure. Substance relates to rights and obligations of the parties to a dispute, whereas procedure is the means employed to determine such rights and obligations. Matters of substantive law are governed by the lex causae (that is, the law that governs the cause of action), the law found applicable under the concerned country’s rules for the choice of law. Matters of procedure, on the other hand, are governed by the lex fori (that is, the law of the forum), the law of country where the action is brought. The chapter covers procedural matters of interlocutory character; remedial measures for enforcing a right; conflict of laws and the law of limitations; matters of enforcement; underlying norms and principles of stay of proceedings; and proof of foreign law.

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Some Points of Comparison between the Companies Act, 1948, and the French Law of Companies

The Cambridge Law Journal ◽

10.1017/s0008197300015099 ◽

1951 ◽

Vol 11 (1) ◽

pp. 15-30

Author(s):

Jean Escarra

Keyword(s):

Company Law ◽

The Other ◽

French Law ◽

Share Capital ◽

Legal Personality ◽

French And English ◽

English Law ◽

The Law ◽

The Many

The paper I am going to read is a study in comparative jurisprudence. I propose to examine some aspects of Company Law, and especially of the law relating to companies limited by shares. From the many differences existing between French and English Law on this matter, I have selected several points, in the setting up as well as in the management and administration of such companies, which seem typical to me. These are as follows:—As regards the setting up of companies, I have thought it would be interesting to compare how French and English Law deal with:—(A) The subscription of share capital;(B) the prospectus or the other documents designed to serve the same purpose;(C) the part played by the statutory meeting.As regards the management and administration, I have chosen to examine:(D) The powers of directors, and how they are restricted in England according to the doctrine of ultra vires, as compared with the French system of legal personality;(E) the audit and inspection of companies.

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Hate Speech – What Reduces the Phenomenon in Media

Yearbook of Department Mass Communications ◽

10.33919/ydmc.19.1.10 ◽

2020 ◽

Vol 1 ◽

pp. 170-180

Author(s):

Kristina Nenova

Keyword(s):

Present Article ◽

Hate Speech ◽

Political Influence ◽

The Other ◽

Current Debate ◽

Election Campaigns ◽

Policy Makers ◽

Presidential Candidates ◽

The Usa ◽

The Way

Hate speech can be used as an instrument preferred to exert political influence upon voters during election campaigns. This article provides two examples to support this assumption – the first one is related to a Kirk and Martin’s study on the way main presidential candidates in the USA ran their campaigns in 2016, while the other assumption is related to the current debate in Bulgaria on the National Child Strategy 2019-2030. The present article focuses upon possibilities to reduce the phenomenon’s influence as well as upon some of the challenges researchers and policy makers face in their attempts to limit it.

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