POSTUPAK SAČINjAVANjA JAVNOBELEŽNIČKOG ZAPISA

2021 ◽  
pp. 291-299
Author(s):  
Tamara Đurđić Milošević ◽  
Keyword(s):  
Contract Law ◽  
Autonomy Of Will

The form of notarized record is one of the legally prescribed obligatory forms for concluding certain legal transactions and as such it has become more and more present in modern legal transactions, at the same time calling into question the prevailing principle of consensualism in contract law. Having in mind the fact that, through formalism, legal transactions has been slowed down, and at the same time the freedom of contracting and autonomy of will of participants in legal transactions are additionally (formally) restricted, the question due to the justification of obligatory notarial form for the most important legal affairs arises. This issue can be considered through the functions that are performed by the implementation of the notarial procedure, as well as through the legal purpose to which realisation the rules for conducting the notarial procedure contributes.

Richard Austen-Baker, Implied Terms in English Contract Law

2018 ◽  
Vol 22 (3) ◽  
pp. 433-434
Author(s):  
Kathrin Kuehnel-Fitchen
Keyword(s):  
Contract Law

FORCE MAJEURE, CHANGE OF CIRCUMSTANCES AND TERMINATION OF CONTRACT

2016 ◽  
Vol 3 (1) ◽  
pp. 31-44
Author(s):  
Shiyuan Han
Keyword(s):  
United Nations ◽  
Contract Law ◽  
Unified Model ◽  
The Other ◽  
Final Decision ◽  
Dual Model ◽  
Chinese Law ◽  
Force Majeure ◽  
United Nations Convention ◽  
Distinct Line

It is impossible to draw a distinct line between force majeure and change of circumstances, because the two overlap. In order to regulate both force majeure and change of circumstances, the United Nations Convention on Contracts for the International Sale of Goods (CISG) has adopted a unified model in article 79, whereas Chinese law adopts a dual model by treating them as different things and regulating them in different articles. Where the purpose of a contract becomes impossible to achieve because of a force majeure and both the CISG and Chinese Contract Law (the CCL) adopt the same model of termination of the contract, the contract should be terminated by one party with a notice to the other party instead of ipso facto avoidance. In a case of a change of circumstances, in order to terminate the contract, both the CISG and the CCL actually follow the path of raising an action by a notice of avoidance or termination to theother party. Both approaches have their merits and demerits but the differences between them in practice are not as large as presumed. Where force majeure and change of circumstances overlap each other, possible ways for termination of the contract are for a party either to choose their preferred solution or to follow the lex specialis derogat generali. The latter way is preferred in this article; and while in an action for termination the judge may balance the interests of both parties in making a final decision, the uniform application of the law, the safety of the transaction and the fairness of the judgment may be ensured in so doing.

ASAS KEPASTIAN HUKUM DAN ASAS KEBEBASAN BERKONTRAK SEBAGAI PERTIMBANGAN UTAMA DALAM PENYELESAIAN SENGKETA PERBANKAN SYARIAH (Kajian Yuridis Putusan MK Nomor 93/PUU-X/2012)

2018 ◽  
Vol 3 (1) ◽  
pp. 69
Author(s):  
Edi Hudiata
Keyword(s):  
Dispute Resolution ◽  
Judicial Review ◽  
Alternative Dispute Resolution ◽  
Contract Law ◽  
Islamic Banking ◽  
Constitutional Court ◽  
Legal Certainty ◽  
Ideal Norm ◽  
Freedom Of Contract ◽  
Binding Force

Since the verdict of the Constitutional Court (MK) Number 93/PUU-X/2012 pronounced on Thursday, August 29, 2013, concerning the judicial review of Law No. 21 of 2008 on Islamic Banking, it is no longer dualism dispute resolution. The verdict as well as strengthen the jurisdiction of Religious Court to resolve Islamic banking disputes. In consideration of the judges, judges agreed stating that Article 55 paragraph (2) and (3) of Law No. 21 of 2008 which is an ideal norm, contains no constitutional problems. The problem is the explanation of the constitutional article 55 paragraph (2) of the Act. The emergence of the Constitutional Court verdict No. 93/PUU-X/2012 which substantially states that the explanation of Article 55 paragraph (2) of Law No. 21 of 2008 does not have binding force, basically does not violate the principle of freedom of contract which is common in contract law. The parties are allowed to make a dispute resolution agreement out of religious court based on provisions as Act No. 30 of 1999 on Arbitration and Alternative Dispute Resolution. Keywords: dispute resolution, legal certainty and the principle of freedom of contract

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