scholarly journals The bill of lading contracts under European national laws (civil law approaches to explaining the legal position of the consignee under bills of lading)

2020 ◽  
pp. 251-280
Author(s):  
Frank G.M. Smeele
Keyword(s):  
Civil Law ◽  
Bill Of Lading ◽  
Legal Position

scholarly journals The publication of judicial decisions as a reason for convincing precedent

1970 ◽  
pp. 195-199
Author(s):  
Roman Sabodash
Keyword(s):  
Common Law ◽  
Civil Law ◽  
General Idea ◽  
Court Decisions ◽  
Supreme Courts ◽  
State Register ◽  
Pros And Cons ◽  
Legal Position ◽  
The Common ◽  
The Right

The paper shows how the publication of court decisions influenced the formation of a precedent. The author reviewed scientific works devoted to research the precedent in common and continental law. The research explains that the formation of precedent in England was accompanied by development of the judgment’s reviews and their prevalence among lawyers. Of course, publication of court decisions was not a major factor in setting a precedent, but it played a significant role in this. The paper also describes facts of the publication of court decisions in Italy, Germany, France and the Netherlands, as well as the admissibility of their citations at the court of cassation. The general idea of the paper is that convincing precedent exists and is used although the countries of continental law do not have a «classic» precedent. The paper gives a review of the importance of the state register of court decisions for setting a convincing precedent in Ukraine. The author analyzes the pros and cons of citing court decisions. It’s stated that, unfortunately, the quotations of court decisions is not always correct and sometimes amounts to rewriting the «right» legal position without comparing the circumstances of the case. The article concludes that the practice of applying a convincing precedent in Ukraine is only emerging and needs further improvement.          It has been found out that the publication of judgments of supreme courts is one of the factors that helped to establish precedent in common law countries. The publication of court rulings also created the conditions for a convincing precedent in civil law countries (especially in private law). At the same time, the formation of a “convincing precedent» in countries where court decisions are published in publicly available electronic court registers is much faster than in common law countries. Of course, the structure and the significance of the precedent in the common law and civil law countries are different, but one cannot dismiss that publication of court decisions as one of the factors for establishing the precedent.

scholarly journals DUE TO LEGAL POSITION AND LEGAL SURROGACY AGREEMENT AS AN INNOMINAAT AGREEMENT IN THE PERPECTIVE OF CIVIL LAW, ISLAMIC LAW AND NATIONAL LAW

2019 ◽  
Vol 6 (1) ◽  
pp. 90
Author(s):  
Peni Rinda
Keyword(s):  
Legal Status ◽  
Islamic Law ◽  
Civil Law ◽  
Literature Study ◽  
Specification Method ◽  
The Status ◽  
Technological Developments ◽  
Legal Position ◽  
Community Issues

Technological developments in medicine have provided an outlet for community issues with the discovery of a new method of artificial insemination is known as in vitro fertilitization (IVF). For couples who want to have children but due to medical reasons can not obtain offspring naturally, with IVF method can obtain offspring / children. But in its development appears IVF lease term or the surrogate mother's womb, the sperm and ovum from a legitimate married another woman entered in the womb. Therefore the aim of this study to determine the legal position of surrogacy agreement as an innominaat agreement in the perspective of civil law, Islamic law national law, This research used normative juridical approach, descriptive analytical research specification, method of data collection is done with a literature study on legal materials, both primary legal materials, as well as secondary materials, then analyzed by qualitative descriptive. The results showed that a good legal position surrogacy agreement according to the Civil Law, Islamic law and national law is as the agreement is not named (innominaat) and surrogacy agreement is not allowed or unlawful. While the legal consequences of surrogacy agreements either under Civil Law, Islamic law, and national law relating to the status of children, descent problems, inheritance and other rights. The legal status of children under civil law can be a legitimate child of the surrogate mother, it could be a child outside of mating recognized, while according to Islamic law status of the child as a child of the uterus rental yields laqith, while according to national law, the legal status of the child as a foster child. This inheritance rights issue depends the legal status of the child, there is nothing not inherit (civil relationship with his mother).

scholarly journals Amicus Curiae: Origin, Worldwide Experience and Suggestions for East European Countries

2019 ◽  
Vol 60 (1) ◽  
pp. 18-39
Author(s):  
Iryna Izarova ◽  
Bartosz Szolc-Nartowski ◽  
Anastasiia Kovtun
Keyword(s):  
Case Management ◽  
Eastern Europe ◽  
International Institutions ◽  
Civil Law ◽  
Civil Procedure ◽  
European Countries ◽  
Roman Law ◽  
Amicus Curiae ◽  
East European ◽  
Legal Position

Abstract This article describes the meaning of amicus curiae according to modern legislation and doctrine, as well as its origin from Roman law and English law. One part of the article is devoted to the current legal position of international institutions regarding amicus curiae and its place in different legal systems worldwide. Furthermore, the last part of the article related to the analysis of the new amicus curiae concept in Ukraine legislation, combined with the new principles of judicial case management and cooperation of the judge and parties in civil procedure. The article concludes with some thoughts about the need and viability of its implementation in the civil law countries using examples of current reforms of Civil Procedure in Ukraine, and other states of Eastern Europe.

scholarly journals How Delivery of Goods without Tendering of Bill of Lading Can Discharge Liability of Maritime Carrier

2021 ◽  
Vol 10 (1) ◽  
Author(s):  
Derar Al-Daboubi
Keyword(s):  
Bill Of Lading ◽  
Legal Position ◽  
International Conventions

This paper tends to clarify implications of delivery of goods performed by a maritime carrier to a consignee at the place of destination; particularly, a delivery made without receiving the original bill of lading in exchange for the goods delivered to the consignee. In spite of the importance of such delivery, none of the related international conventions has addressed the implications of such a delivery for the liability of the maritime carrier. This gap has given rise to inconsistency between the approaches adopted by various jurisdictions worldwide, and such a divergence will contradict the fundamental international principle of unifying the international maritime rules. Hence, the study is discussing the area of ambiguity under both the English and the Qatari law to reach some suggestions that could be adopted under both jurisdictions to clarify the legal position of maritime carriers as well as to protect them from liability arising under this delivery.

Substitution of Parties in the Obligation and Suretyship: Contradictions in the Construction of a Solidary Plurality of Persons (Part 1)

Legal Concept ◽  
2021 ◽  
pp. 119-124
Author(s):  
Natalia Kvitsinia ◽  
◽  
Elvira Osadchenko ◽  
Keyword(s):  
Law Enforcement ◽  
Civil Law ◽  
Court Decisions ◽  
Legal Position ◽  
The Russian Federation ◽  
Similarities And Differences ◽  
Historical Comparative ◽  
Broad Interpretation ◽  
Proper Performance ◽  
Logical Research

Introduction: the authors conducted a study of the differentiation of the norms on surety and substitution of parties in the obligation due to the lack of their clear regulation by the legislator. The paper discusses the concepts of co-suretyship and individual suretyship, reveals their similarities and differences. The authors highlighted the problems of applying the rules on the substitution of parties in the obligation and the responsibility of the surety and also suggested the ways to resolve them. The purpose of the study is to develop some proposals for improving the institution of suretyship and bringing it into line with the norms on the substitution of parties in an obligation. Methods: the study used historical, comparative law, logical research methods, as well as the method of the literal and broad interpretation of normative legal acts and court decisions. Results: the civil law doctrine of the institute of suretyship and co-suretyship was supplemented, the legal position of suretyship in the proper performance of its obligations for the debtor was determined from the standpoint of the science of civil law. Conclusions: according to the results of the study, it is proposed to amend the current legislation and completely exclude from it the provisions on the independent regulation of “joint suretyship”, i.e. to recognize Part 3 of Article 363 of the Civil Code of the Russian Federation as invalid. The provisions developed by the authors will simplify and streamline the law enforcement practice in the issues under consideration.

The State as a Party to Private Law Relations

2021 ◽  
Vol 10 (1-2) ◽  
pp. 47-60
Author(s):  
Nataliya M. Оnishchenko ◽  
Tatyana I. Tarakhonych ◽  
Oleh L. Bohinich
Keyword(s):  
Civil Law ◽  
The State ◽  
Private Law ◽  
Liability Law ◽  
Multi Stage ◽  
The Status ◽  
Legal Structures ◽  
Legal Position ◽  
Autonomous Republic ◽  
The Eu

Abstract The purpose of the study is to cover the analysis of the legal position of the state in private law relations. Particular attention is paid to the dualistic nature of the state – as a sovereign and as a horizontal participant in civil law relations. The study employs the following methods: dialectical, technical and comparative law. Results of the systematic interpretation suggest that the state does not have the status of a person, which complicates the application of some legal structures. It is concluded that the state is a multi-stage entity that includes the state of Ukraine, the Autonomous Republic of Crimea and territorial communities. This paper will be useful for advocates, judges, academics whose area of expertise is the problematics of the liability law, as well as the issue of harmonisation of the civil legislation of Ukraine with the civil legislation of the EU countries.

scholarly journals THE RIGHT OF SUIT UNDER THE CONTRACT OF AFFREIGHTMENT

2013 ◽  
Author(s):  
Haji Hairuddin Haji Megat Latif
Keyword(s):  
Civil Law ◽  
Breach Of Contract ◽  
Port Authority ◽  
Bill Of Lading ◽  
Ship Owner ◽  
The Right ◽  
In Transit

In carriage of goods by sea, usually parties involved in the transaction are composed of a seller of goods (exporter), buyer (importer), forwarding agent, ship owner, carrier and port authority. When the contract of carriage is entered, basically it involves the shipper of goods (not necessarily the seller of goods) and the ship owner. The question normally arises are as follows: Who is the right or proper person to bring action should a breach of contract occur?; If the goods damage or loss in transit, who should claim damages for the loss or damage?; What are the laws applicable in Malaysia after 1992?. All these questions become very important due to the changes of law in England in 1992, relating to the right of suit. This paper attempts to answer all the above questions based on The Civil Law Act 1956 (The Malaysian Act), The Bill of Lading Act 1855 (The English Act) and The Carriage of Goods by Sea Act 1992 (The English Act).

scholarly journals O AKTUALNOSTI CASUUM COMMORIENTIUM U RIMSKOM I SUVREMENOM EUROPSKOM PRIVATNOM PRAVU

2021 ◽  
Vol 37 (3-4) ◽  
pp. 171-200
Author(s):  
Mirza Hebib
Keyword(s):  
Civil Law ◽  
Roman Law ◽  
Temporal Distance ◽  
Private Law ◽  
Legal Tradition ◽  
Inheritance Law ◽  
Legal Position ◽  
Basic Concepts ◽  
Over Time

In the Roman legal tradition, but also in modern civil law systems, the term commorientes (lat. commorientes) refers to persons who died in the same accident or other danger, standing in a legal position relevant to inheritance law. In connection with the resolution of such situations in the theory of private law, various legal presumptions have been developed since the period of classical Roman law. All these presumptions can be systematized within two basic concepts - the first based on the presumption of survival of subjects and the second based on the presumption of the simultaneous death of subjects. Comparatively, in the development of European private law, there has been a reception of both concepts, with the proviso that over time the concept of simultaneity will almost completely suppress the concept of survival. The paper analyzes the reasons for this. In establishing a link between Roman roots and European private law, special attention is given to the possibility of applying presumptions in cases where there is a certain spatial or temporal distance between the deaths of persons or if a different cause has led to fatal consequences. Ultimately, the paper clearly points to the importance of Roman rules, which can sometimes be fundamental in understanding the institutes of contemporary private law.

scholarly journals ON COMPARATIVE LAW STUDIES IN THE FIELD OF PRIVATE (CIVIL) LAW

2015 ◽  
Vol 1 (5) ◽  
pp. 0-0
Author(s):  
Наталья Семилютина ◽  
Natalya Semilyutina
Keyword(s):  
Comparative Analysis ◽  
Public Interest ◽  
Civil Law ◽  
Comparative Law ◽  
Legal Rules ◽  
The Public ◽  
Legal Relationship ◽  
Legal Position ◽  
The Subject

The article analyses the origins of comparative civil law studies in Russia starting from the reforms of tsar Peter I. The author understands comparative civil law as a branch of legal science that makes comparative law studies applying the civil law methodology. The civil law methodology is applied by a researcher who studies legal relationship between the parties which are in equal legal position. The analysis of legal rules of various countries, regulating of alike legal relationship in different countries affords to find the best way to regulate the corresponding relationship. The purposes of comparative analysis varied in various periods of the development of Russia. The role of the Institute and the comparative law studies related to civil law are also the subject of the present article. Within the article the author pays attention to tendencies in the foreign civil law regulation such as extraterritorial application of the rules of law, or the effect of the public interest presence.

scholarly journals THE AWARDING OF POST-DIVORCE MAINTENANCE TO A MUSLIM EX-WIFE AND CHILDREN IN THE SOUTH AFRICAN COURTS: THE INTERACTION BETWEEN DIVINE AND SECULAR LAW

Obiter ◽  
2021 ◽  
Vol 30 (3) ◽  
Author(s):  
Razaana Denson ◽  
Marita Carnelley
Keyword(s):  
South African ◽  
Islamic Law ◽  
Civil Law ◽  
Case Law ◽  
Law Reform ◽  
Specific Reference ◽  
The South ◽  
Commission Report ◽  
Legal Position ◽  
Apparent Conflict

The article discusses the differences between the South African civil law and Islamic law with specific reference to post-divorce spousal maintenance as well as postdivorce maintenance of children in light of recent case law, Mahomed v Mahomed [2009] JOL 23733 (ECP). The issue of post-divorce spousal maintenance is especially controversial and it is noted that in both systems the issue should not beseen in isolation, but in conjunction with the other protection possibilities within each of these systems. The apparent conflict between the South African constitutional principles and the principles of Islam is noted and compared to the Indian legal and constitutional experience, although reference is also made to the Algerian legal position. Drawing an analogy with the South African legal developments vis-à-vis customary marriages, the article concludes and submits that any enactment by the South African legislature, dealing with the maintenance of spouses and children after divorce, whether in the format of the Muslim Marriage Bill as set out in the 2003 South African Law Reform Commission Report, or in any other format, should take cognizance of the rulings and teachings of Islam.

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