Contract law, theories of

2018 ◽  
Author(s):  
N.E. Simmonds
Keyword(s):  
Political Philosophy ◽  
Contract Law ◽  
The State ◽  
The Will ◽  
The Law ◽  
Individual Choices ◽  
Rival View

Theories of contract law seek to articulate general principles and values underpinning the complex rules of contract law. Some theorists view contract law as simply concerned to facilitate individual choices and enforce the will of the parties. A rival view holds that it is impossible to derive the content of contract law from such a sparse foundation: contract law is better viewed as one of the instruments whereby the state regulates markets and distributes resources and power. The debate addresses the detailed technicalities of the law, but seeks to relate these technicalities to broader questions of political philosophy.

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.

Kant’s Naturrecht Feyerabend, Achenwall and the Role of the State

Kant Yearbook ◽  
2021 ◽  
Vol 13 (1) ◽  
pp. 49-71
Author(s):  
Mike L. Gregory
Keyword(s):  
Political Philosophy ◽  
Sustained Attention ◽  
Natural Law ◽  
The State ◽  
Natural Rights ◽  
Law System ◽  
Role Of The State ◽  
The Will ◽  
Subjective Rights

Abstract Kant’s Naturrecht Feyerabend has recently gained more sustained attention for its role in clarifying Kant’s published positions in political philosophy. However, too little attention has been given to the lecture’s relation to Gottfried Achenwall, whose book was the textbook for the course. In this paper, I will examine how Kant rejected and transforms Achenwall’s natural law system in the Feyerabend Lectures. Specifically, I will argue that Kant problematizes Achenwall’s foundational notion of a divine juridical state which opens up a normative gap between objective law (prohibitions, prescriptions and permissions) and subjective rights (moral capacities). In the absence of a divine sovereign, formal natural law is unable to justify subjective natural rights in the state of nature. In the Feyerabend Lectures, Kant, in order to close this gap, replaces the divine will with the “will of society”, making the state necessary for the possibility of rights.

Contract

2005 ◽  
Author(s):  
James Gordley
Keyword(s):  
Twentieth Century ◽  
Legal System ◽  
Common Law ◽  
Contract Law ◽  
Legal Method ◽  
Legal Problems ◽  
Early Twentieth Century ◽  
The Will ◽  
The Law

‘Classical’ contract law was built on a substantive premise about contract law and two premises about legal method. The substantive premise was voluntaristic: the business of contract law is to enforce the will or choice of the parties. The first methodological premise was positivistic: the law is found, implicitly or explicitly, in the decisions of common law judges. The second methodological premise was conceptualistic: the law should be stated in general formulas which can be tested by their coherence. Finally, ‘classical’ contract law reflected an attitude about how best to steer a course — as every legal system must — between strict rules and equitable considerations. Since the early twentieth century, classical contract law has been breaking down. Allegiance to its premises has weakened as has the preference for rigor. At the same time, scholars have found classical law to be inconsistent even in its own terms. Nevertheless, much of it has remained in place faute de mieux while contemporary jurists have tried to see what is really at stake in particular legal problems. This article describes their work.

scholarly journals UNDUE INFLUENCE SEBAGAI FAKTOR PENYEBAB CACAT KEHENDAK DILUAR KUHPERDATA, DALAM UPAYA MENGISI KEKOSONGAN HUKUM

LITIGASI ◽  
2016 ◽  
Vol 17 (1) ◽  
Author(s):  
N. Ike Kusmiati
Keyword(s):  
Contract Law ◽  
Civil Code ◽  
The State ◽  
Undue Influence ◽  
Freedom Of Contract ◽  
Opposing Party ◽  
Bargaining Position ◽  
The Will ◽  
The Government ◽  
The Relationship

Not to misuse the regulation of the state as the factor that causes defects in the will of the Indonesian Civil Code, should be anticipated for the development of contract occurs so fast in practice. The convergence of an agreement in the form of rapprochement will of the parties, no longer occur in a balanced manner, because there are elements that influence the parties, both economically and psychologically, whereby the economically strong dominate the contract even harm the opposing party, so the contract applies biased, unfair and inappropriate. Therefore, the government needs to intervene to protect the weaker party. It was felt important need for inclusion of the substance abuse situation as a factor that will cause defects arising from Jurisprudence in the Netherlands as the fourth element, in addition to oversight, coercion and deception that has been set out in Article 1321 of the Civil Code. It is therefore necessary to be examined how the relationship between the abuse of state as the factor that causes the will deform against the abuse of contracts and how to position the state as a factor that causes defects will fill the void in the legal system of contract law in Indonesia. The results showed that the state of relationship abuse as factors that led to the agreement will deform, relevant because the agreement occur with the agreement, and to the agreed required the conformity of the will of the parties. For that agreement became the basis for the validity of the contract. But with the misuse of state in the contract raises the contract it becomes irrevocable, because conformity of his will are not met, while the position of the abuse of the state as the factor that causes a defect will in fill the legal vacuum in the system of contract law in Indonesia, it is very important, where in addition there is no setting in Indonesia, also the case in practice. The parties to a contract are often cornered by the interests of one party, so that the opposing party gives consent with full conviction, because it does not have the bargaining power is balanced, often one of the parties has a weak bargaining position, caused by the influence of the economic position and psychiatric one parties, so we need government intervention to oversee the implementation of the freedom of contract in practice, and making rules coercive. Keywords: Abuse of state; Disability Will; Contracts

scholarly journals FORMALISM IN ROMAN CONTRACT LAW

2019 ◽  
Vol 34 (5) ◽  
pp. 1457-1463
Author(s):  
Shpresa Alimi-Memedi
Keyword(s):  
Developmental Stages ◽  
Essential Element ◽  
Contract Law ◽  
Roman Law ◽  
Legal Principles ◽  
Stage Of Development ◽  
The Will ◽  
The Subject ◽  
The Law ◽  
Accepted Form

The certain mode of production conditions certain legal expressions, determines the character and the forms of expression of the law, and depending on this, certain legal institutes and legal principles arise and change. The principle of formalism in a certain period of development of contractual relations is nothing but an expression of certain socioeconomic and other conditions present in that period. The subject of this paper is the principle of formalism as a feature of Roman contract law, the emergent forms of formalism in Roman law, the causes and functions of formalism in certain stage of development of Roman law. The influence of religion on the law and the low level of development of socioeconomic relations were the main reasons for the recognition of formalism in the first legal systems.The principle of formalism implies that the form of the contract as a means of expressing the consent of the will of the parties is a legally established imperative. The specific way of expressing the will to conclude a contract is an essential element of the contract. Infringement of the form is sanctioned by the nullity of the agreement.Formalism in Roman contract law is present and dominant in the period of the early Roman state and law, the late Roman Republic and pre-classical Roman law. The principle of formalism in these developmental stages of the Roman state and law does not mean that it excludes completely the opposite principle of consensualism which implies that contracts are created by a mere consent of the will of the contracting parties, which can be expressed in words or in writing, or with other behavior from which its existence can certainly be concluded. In Roman law, the consensual form has never succeeded in becoming a generally accepted form and Roman law has never formulated the general principle of consensuality.

The Conflict of Personal Laws, Part II

1970 ◽  
Vol 5 (3) ◽  
pp. 337-351
Author(s):  
Edoardo Vitta
Keyword(s):  
Characteristic Function ◽  
International Law ◽  
The State ◽  
Private International Law ◽  
Legal Systems ◽  
The Will ◽  
The Law ◽  
Different Parts

The characteristic function of private international law is to declare the law applying to cases containing a foreign element, by pointing out the general principles upon which all the legislation on the matter is based and developed. The function of such principles is to help to specify the law considered appropriate in individual cases. Private international law knows several such principles such as domicile, nationality, the will of the parties, the place where a contract is concluded or where an immovable is situated, etc.Conflict of personal laws is also based on connecting principles, although of a different character. The main connecting principle is the ethnic or religious association of the parties. Nationality or domicile of the parties, the two connecting principles on which the main systems of private international law are based, may not be resorted to in the conflict of personal laws. Nationality may be taken as a basis for deciding which is the most appropriate law to be applied to the relationships between nationals of different States, but not for deciding which law is to be applied to parties who, being members of different legal systems, are nevertheless all nationals of the same State. As to domicile, it may help to solve a similar problem arising between persons domiciled in different countries or between persons domiciled in different parts of the same country within which different territorial laws are in force; but it can serve no useful purpose in relation to nationals of the same State to whom different laws apply by reason of their ethnic or religious origin and who live scattered throughout the whole of the territory of the State.

1. Introduction

Contract Law ◽  
2017 ◽  
Author(s):  
TT Arvind
Keyword(s):  
Contract Law ◽  
The Will ◽  
English Law ◽  
The Law ◽  
Bundle Of Rights

This introduction provides an overview of contracts and the law of contract. It first explains what the law of contract is about and why it matters before discussing the tasks of contract law. It then considers the role of debates in contract law, unity and diversity in contract law, and central issues in contract law. It also examines the main perspectives about contract that have influenced English law, including perspectives that used to be historically important. In particular, it explores the notions of bargains and the will. The chapter goes on to address two very different understandings of contracts: one that sees it primarily as a bundle of rights, and one that sees it as a relationship between the parties.

Law and Political Philosophy

2019 ◽  
Author(s):  
Jens Damgaard Thaysen
Keyword(s):  
Political Philosophy ◽  
Rule Of Law ◽  
Good Reason ◽  
The State ◽  
The Rule Of Law ◽  
The Public ◽  
Legal Coercion ◽  
The Future ◽  
The Law ◽  
Public Wrong

Modern states pursue most of their (domestic) ends by creating law and acting in accordance with the law they create. Moreover, many believe states ought to pursue most of their ends this way. If a state ought to do something, then chances are it ought to do it by creating, abolishing, changing, upholding, or enforcing some law. Therefore, almost any kind of political philosophy with bearing on what states should do has bearing on what law should be like. Justifying the legal proscription of some conduct involves more than just showing that citizens ought to refrain from that conduct. Legally restricting conduct is an exercise of coercion and must be justified as such. Criminal prohibitions in particular require special justification, as they are not only coercive but also commit the state to deliberately inflict the harm and stigma of punishment on some of its own citizens. Nevertheless, if the state must coerce its citizens, it ought generally to do so through a law that conforms to the rule of law. Law conforms to the rule of law if it is capable of guiding the citizens as they act and plan for the future. This the law can do only if it is open, clear, prospective, and stable, such that citizens can know what it demands now and predict with reasonable certainty what it will demand in the future. Conformity to the rule of law promotes freedom and is required to respect human dignity. Much of the debate about the justification and scope of legal coercion revolves around several principles that advance claims about what considerations are relevant to the justifiability of law. These principles all have the following structure: The fact that a legal restriction of a certain kind is related in a certain way to a certain type of conduct has a certain impact on whether that restriction is justifiable. Common principles include (a) legal moralism, according to which it is always a good reason to criminalize conduct that the conduct is wrongful; (b) the wrongness constraint, according to which criminalizing morally permissible conduct is never justified; (c) liberalism, according to which it is always a good reason to criminalize conduct that the conduct is either harmful or seriously offensive to others, and criminalizing conduct that is neither harmful nor offensive is never justified; (d) the public wrong principle, according to which it is always a good reason to criminalize conduct that the conduct is a public wrong, and criminalizing conduct is never justified unless the conduct is a public wrong; (e) the sovereignty principle, according to which the only legitimate restrictions on conduct are those that secure independence. Which, if any, of these principles one should accept is the subject of an extensive and sophisticated academic debate.

scholarly journals Nondimeno. Una nota sul linguaggio dell’eccezione e della circostanza nel Carteggio sforzesco

2021 ◽  
pp. 95-110
Author(s):  
Massimo Della Misericordia
Keyword(s):  
General Rule ◽  
The State ◽  
Huge Amount ◽  
Late Medieval ◽  
Key Word ◽  
Political Writing ◽  
The Will ◽  
The Law ◽  
The Government ◽  
Recent Monograph

On the basis of the recent monograph by C. Ginzburg and G. Pedullà’s review, it is possible to identify the word nondimanco/nondimeno (nonetheless) as an important element in Renaissance political writing. However, it does not only appear in the work of Machiavelli or Guicciardini and in the more conscious reflections by the intellectuals, but also in the huge amount of letters that constitute the government correspondence of the time. In these kinds of pragmatic texts, referring to the state of Milan in the Sforza age, it recurs as a key word of a dilemma: the friction between law and transgression (or exception considered legitimate) and also between law and practice. On one hand, it expresses an assumption invested in value: the duke must honor his promises and the contents of the chapters agreed on with his subjects; custom demands respect; factional divisions must be overcome. At the same time it reveals the concern that this principle could be trampled upon, or instead the will, if not the need, to attenuate the more general rule. This conjunction thus summarized the requirement to nuance the law, to adapt it to circumstance, and to conciliate potentially conflicting rights or reasons. In short, it stands as an indicator of one of the main causes of open tensions in the late medieval state, debated by a long tradition of scholars ranging from O. Brunner to R. Fubini: the opposition between the authority of the prince, as arbiter of the exception requested from time to time from the same variety of concrete situations, and the legalistic culture of the territorial bodies, which, referring to law and custom, tempted to stem the “extraordinary” powers that the duke was attributing to himself.

Sign in / Sign up

Export Citation Format

Share Document