Culpa in Contrahendo as the General Ground for Precontractual Liability in Polish Civil Code

2021 ◽  
Vol 67 (2) ◽  
pp. 202-218
Author(s):  
Wojciech J. Kocot

The justified and legally relevant relationship between contracting partners acting together in order to conclude a contract along with a comprehensive system of precontractual liability have been recognized in Poland at least since the enter into force of the Code of Obligations in 1933. Nevertheless until 2003 there wasn’t any specific legislative enactment of general duty of fair dealing in the precontractual stage. This article sheds light on the legal concept of culpa in contrahendo, with particular emphasis on questions of tort, contract or tertium genus, the objective character of precontractual liability, the scope of protected precontractual interest, and the adequate causal link and the moment of breaking off negotiations. The article concludes with an overview of the perspectives of culpa in contrahendo in the new Civil Code in Poland.

2004 ◽  
pp. 159-178
Author(s):  
Gordana Kovacek-Stanic

In the jubilee year 2004, Serbia marks the 200th anniversary of The First Serbian Uprising, structuring of modern Serbian state and its legal system comparatively speaking, France marks the 200th anniversary of passing the French Civil Code, one of the most significant civil codifications in the 19th century. It was an occasion to study certain institutions of family law through history and today. The used approach is modern, we studied the ways how the principle of self-determination influenced the family-legal solutions today, and we investigated if one could talk about the effect of this principle in the historical sense, too. The principle of self-determination implies the possibility for the subjects of family-legal relations to arrange their own relations themselves ? both the partner and parent relations. However, this principle undergoes significant limitations in the family law because the family relations are personal relations by character, as well as because of the need to protect the weaker participant, both the weaker partner or a child who needs protection stemming from his/her very status. Within marriage law, the principle of self-determination of the spouses (extramarital partners) is, among other things, made concrete through the possibility for an agreement about the effects of marriage (extramarital union), then through the possibility of agreed divorce, while the procedure of mediation in the marriage litigation contributes to the realization of the mentioned principle. As for the effects of marriage (extramarital union), the paper particularly discusses property relations, that is the marriage property contract, because it is at the moment a current issue in our domestic law. Within the relations between parents and children, the concretization of the principle of self-determination in parental care is significant, particularly in the situations when the relations between the parents were disturbed and resulted in a separation or a divorce with the joint parental care (application of the parental right). All institutions are analyzed in the positive law, in the historical context (solutions from the Serbian Civil Code the former Hungarian Law), and viewed comparatively in the European legal systems of the east and west European countries.


Author(s):  
Илија Бабић

The Draft of the Serbian Civil Code provides for a new contract for the birth for another person, on the basis of which the parental relationship is established. This contract obligates the surrogate mother to carry and give birth to a child and deliver it to the married couple or companions (the intended parents), after impregnation by seeding cells of one or both of the intended parents. The intended parents are required to take the child and establish the parental relationship with the child.The contract can be signed by a woman who lives with a surrogate mother (particularly justified by the reasons and determined on by the court in a contentious procedure - Article 63 of the preliminary draft), when it is necessary to use the seeding cells of the intended mother.The contract on the birth for another person is not in the interest of the child. In the countries where it has been adopted, it represents a means of exploitation of the poorest women and it is unnatural. In the Draft, the contract is regulated mainly according to the general legal standards, whereas the autonomy of the parties involved regulates the rights and obligations (such as the waiver of surrogate mother to the status of mother, the moment of acquisition of parental rights of the intended parents, the handover of the child, reimbursement of reasonable costs, etc).


Author(s):  
Armas M Marcelo

This chapter examines the law of set-off in Chile, both before and after insolvency, as well as the alternatives for contractual set-off structures that may be agreed among two or more parties. In Chile, set-off was created as a legal concept primarily on the basis of practical considerations rather than juridical principles. The right to set-off may arise due to a contractual arrangement between the parties or by the operation of law, including the Chilean Civil Code. The chapter first considers set-off in Chile outside insolvency, focusing on set-off by operation of law and contractual set-off, before discussing set-off in insolvency. In particular, it explains the implications of a declaration of liquidation under Chilean Bankruptcy Law and its possible consequences for set-off rights. It also analyses issues arising in cross-border set-off.


Pravovedenie ◽  
2020 ◽  
Vol 64 (3) ◽  
pp. 312-325
Author(s):  
Jan Halberda ◽  

Given that continental civil law scholarship applies the concept of good faith in either a subjective (honesty in fact) or objective sense (good faith and fair dealing), the present article focuses on the latter one. The traditional view in England and Wales discards the recognition of a general principle of good faith and fair dealing in English law. English courts have adopted a piecemeal solutions approach (as shown by the judicial decisions issued in Interfoto Picture Library (1987) and Walford v. Miles (1992)). Meanwhile, the principle in question, along with the concept of the freedom of contract, is one of the most important principles of the continental civil law tradition (cf. art. 1104 of the French Civil Code, § 157, § 242 of the German Bürgerliches Gesetzbuch, art. 2 (1) of the Swiss Zivilgesetzbuch, art. 6:2 Burgerlijk Wetboek, art. 5 of the Polish Civil Code, art. 2 (1) Common European Sales Law, art. 1:201 Principles of European Contract Law, art. III1:103 Draft Common Frame of Reference). The current work analyzes recent English case law (in particular Yam Seng (2013)), which seems to acknowledge the principle of good faith and fair dealing while rejecting the traditional view mentioned above. The comparative approach — references to American, and Commonwealth law, as well as to that of particular European states — is taken into account. The author claims that hostility to the concept of good faith in an objective sense in English law is superficial. One may expect that in the near future courts in England and Wales will follow the path taken by courts in the United States (§ 205 of the Restatement (Second) of Contracts (1981)), Australia (Renard Constructions (1992)) and Canada (Bhasin v. Hrynew (2014)), and they will finally recognize good faith as an underlying principle.


2013 ◽  
Vol 62 (2) ◽  
Author(s):  
Carlo Casini ◽  
Marina Casini

Il contributo esamina la sentenza della Corte Suprema di Cassazione n. 14979 del 2013 che ha per tema l’obiezione di coscienza all’aborto. Nella fattispecie, un medico ginecologo viene pesantemente condannato per aver fatto valere il suo diritto di sollevare obiezione di coscienza (previsto dalla legge 194/1978) per attività che secondo i giudici non sono coperte dall’obiezione di coscienza. Nella prima parte dell’articolo, gli Autori muovono osservazioni critiche riguardo alla particolare severità della sentenza e riportano la ricostruzione dei fatti così come emerge dalle indagini giudiziarie. Di seguito concentrano l’attenzione sul significato e l’estensione del concetto di intervento medico- chirugico in generale e abortivo in particolare, osservando che nella misura in cui un’attività, sebbene non rientrante nel “nucleo” dell’intervento, è programmata dall’inizio come fase conclusiva (tanto che se non vi fosse la certezza di effettuarla, non potrebbe neanche iniziarsi l’intervento) tale attività è parte integrante dell’intervento stesso e dunque, trattandosi di aborto, coperta da obiezione di coscienza. Rilevante ai fini di questa valutazione è l’evidente nesso di causalità che tiene in un tutto unitario i vari momenti che si susseguono cronologicamente. La questione squisitamente giuridica della revoca immediata dell’obiezione viene risolta alla luce della differenza tra l’eventuale accettazione preventiva e l’esecuzione dell’ordine imprevisto. L’aspetto comunque più significativo è legato all’interrogativo che fa da cornice a tutto il contributo: perché tanta avversione contro l’obiezione di coscienza sanitaria con riferimento all’aborto? La risposta si trova nella negazione esplicita o implicita, ma anche nella semplice dimenticanza, che il figlio è figlio sin dal momento del concepimento. “Il diritto di aborto – si legge nella sentenza della Cassazione – è stato riconosciuto come ricompreso nella sfera di autodeterminazione della donna”. Questo pensiero, sottolineano gli Autori, è espressione di una deriva che, avviatasi con la sentenza costituzionale del 1975, avanzata con la legge 194/1978 e gravemente consolidatasi con la pretesa del “diritto” di aborto, nasce dal rifiuto di porre lo sguardo sul figlio concepito e, di conseguenza, avversa l’obiezione di coscienza. Per questo c’è ancor più bisogno di ripetere, concludono gi Autori, che il fondamento e la tutela dell’obiezione di coscienza dipendono dal riconoscimento che il concepito è uno di noi. Interessanti anche gli spunti giuridici di livello internazionale. ---------- The article examines the judgement of the Supreme Court of Cassation n. 14979 of 2013 about conscientious objection to abortion. In this case, a gynecologist was heavily condemned for having asserted his right to raise conscientious objection (provided by Law 194/1978) for activities that according to the judges are not covered by the conscientious objection. In the first part of the article, the Authors criticize the particular severity of the sentence and report the reconstruction of the events emerging from the judicial investigations. Afterward they focus attention on the meaning and the extension of the concept of surgical intervention to understand what the boundaries are of an abortion. Whether a final activity is planned from the outset (so that if it were not sure to perform it, the intervention should not be started) this activity is an integral part of the intervention itself and, therefore, in the case of abortion, covered by conscientious objection. For the purposes of this evaluation, the Authors write, it is very important the clear causal link that takes into a unified whole the various moments that follow one other chronologically. The purely legal question of immediate withdrawal of the objection is resolved in the light of the difference between the possible preventive acceptance of the execution and the execution of an unexpected order. The most significant aspect, however, is tied to the question that frames the entire contribution: why so much aversion against conscientious objection with regard to abortion? The answer lies in the express or implied negation – but also in the simple forgetfulness – that the child is a child from the moment of conception. “The right to abortion – it is written in the Supreme Court’s ruling – has been recognized as coming within the sphere of women’s self-determination” This thought, the Authors point out, is an expression of a drift originally triggered by the constitutional ruling of 1975, then advanced with the Law 194/1978 and finally severely consolidated with the claim of “right” to abortion. Since this drift arises from the refusal to look at the child conceived, consequently it adverse conscientious objection. For this there is even more need to repeat, the Authors conclude, that the foundation and the protection of conscientious objection depends on the recognition that the unborn is one of us. The legal references on the international level are also interesting.


2020 ◽  
pp. 184-203
Author(s):  
Goran Georgijević

According to the general tort law of Mauritius (articles 1382 through 1384 of the Mauritian Civil Code), three conditions must be met before tort liability may be implemented, namely the existence of harm, the existence of a causal link, and the existence of a harmful event. This paper contains an analysis of the fundamentals of the tort law of Mauritius, which is based on Mauritian case law and French case law and French doctrine, which are considered a persuasive authority in Mauritian Civil Law.


Lex Russica ◽  
2019 ◽  
pp. 30-38
Author(s):  
Yu. A. Meteleva

The problem of liability of persons managing a legal entity was raised in Russian civil law after the adoption of legislation on joint-stock companies. At the beginning, it was more theoretical in nature, since the civil legislation did not contain any mechanisms for the implementation of such liability. To date, due to the reform of the Civil Code and changing approaches in jurisprudence, disputes concerning property liability of directors have formed a considerable category of cases. The paper analyzes the elements of such civil wrongs as damage caused to a legal entity by persons who are members of the managerial boards and are able to exercise a significant impact on such boards. All elements of the civil wrong under consideration are being analyzed: the act, the consequences (damage), the causal link between the act and the consequences, and the fault of the wrong-doer. The paper also elucidates the participants involved in such disputes. Exploring specific court cases, the author shows which acts of directors are recognized by the courts as illegal, what restrictions are expressed in the legal standings of the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation to qualify as illegal different acts of directors and other persons. In the vast majority of cases of this category, persons exercising the functions of the sole executive body are prosecuted. Sometimes they are also the participants at the same time. The scope of persons covered by the term “determining the acts of a legal entity” is not defined in the law, which also hampers judicial practice. Judicial proceedings bringing such persons to justice are exceptional. Therefore, the author proposes to define in the Civil Code all persons who can commit an act and thereby cause damage to a legal entity. In addition, it is proposed to establish criteria of unreasonableness and dishonesty of actions of directors and other persons.


2019 ◽  
pp. 19-33
Author(s):  
Anna Chodorowska ◽  
Łukasz Szumkowski

The historical feature of the protection of corpses, as well as the development of funerary tendencies, is an integral part of the functioning of our civilization, from the very beginning of time. The approach to death depends on the cultural and denominational circle as well as time. Respect for the living and the dead was in the past a separate division of civilization and thought development. Nowadays, new trends can be observed in the development of the protection of the human individual, as well as his name or reverence. In modern Polish legislation, the open catalog of personal rights (Article 23 of the Civil Code) is a wide field of interpretation in the very problem of the existence of specific goods. Undoubtedly from the provision of art. 23 k.c, it follows that this protection is due to the live unit, and thus only until its death. In modern Polish legislation, the open catalog of personal rights (Article 23 of the Civil Code) is a wide field of interpretation in the very problem of the existence of specific goods. Undoubtedly from the provision of art. 23 k.c, it follows that this protection is due to the live unit, and thus only until its death. At the moment when, according to the law, we cease to deal with a living person, and we start talking about corpses, certain rights are ceded to the closest persons, some are subject to inheritance. The right that people who are closest to someone’s death to cultivate this person according to their own conscience and religion and the contract between the entity authorized to burial and the cemetery management, as well as a number of related circumstances (on the drudge of several areas of law), will be called the right to the grave. The existence of the right to the grave belongs to arguable issues, as the liberty of the subject granting a certain sphere of possibility of proceedings, including its the scope of power. In the article, the Authors also discuss the issues related to the offense described in the art. 261 and 262 of the Polish Criminal Code. The dogmatic analysis carried out with regard to elements of a prohibited act has made it possible to establish, the scope of criminalization of these acts.


Author(s):  
Marta-Natalia López Gálvez

En el presente trabajo se parte del examen de la etimología del término combustible y de su precedente semántico en Roma. Se analiza su noción en relación con el concepto de leña a propósito del contenido de un legado de este carácter, y se pretende determinar qué se consideró como leña para quemar y cuáles fueron sus utilidades en el marco de la casuística jurisprudencial, desde los llamados veteres en tiempos de la república hasta la disposición de la noción de leña bajo el título ‘De verborum significatione’ del Digesto de Justiniano. Con ello se examinan los criterios que fueron progresivamente usados para delimitar el concepto jurídico de leña, y se trazan posibles semejanzas con otros términos de cuño moderno como el de biomasa.This paper is part with the examination of the etymology the term fuel and its semantic precedent in Rome. It is mainly dicussed fuel about the content of a legate of wood, and also it is intended to determine what was considered a fuel object –with the utility wich presents– in the scope of casuistry jurisprudence since veteres from the republican times until the moment this notion is settled under the title ‘De verborum significatione’ in the Digest of Justinian. It is studied the criteria that were being used increasingly to define the legal concept, and drawing possible similarities with other modern coined terms as the biomass.


2021 ◽  
Vol 16 (2) ◽  
pp. 30-38
Author(s):  
A. A. Maksimov

The Internent as the information and telecommunication network has an increasing impact on the life of modern people, and digitalization affects almost all legal relations existing at the moment. The political rights of citizens that are increasingly being exercised through the Internet, have not become an exception. In 2020, the conduct of demonstrations and various public events on the Internet no longer surprises anyone. This method is becoming a more and more popular and mass method of expressing public opinion that attracts increased attention. The paper examines existing online forms of protest actions, explores their correlation with the current legislation, as well as the possibility of their normative regulation. The author analyzes and studies a new legal concept an online meeting, and also suggests options for its legal consolidation. The author comes to the conclusion about the need to expand the concept of public event and to include new forms of mass events in regulatory acts.


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