Kollisionsrecht der Vertragsübernahme

2019 ◽  
Author(s):  
Sebastian Feiler

Wherever long-term contractual relationships exist, there may also be a need for a transfer (assignment) of such contracts. In many legal systems, this is achieved by a uniform transfer of the complete contract (sometimes also called “assignment” of the contract). Increasingly, contracts are also being transferred in international business transactions. The cases to be found are manifold. After a look at the legal institution of the transfer of contracts in German law and some possible case scenarios, the work examines which law is applicable to such a transfer. It covers the more well-known institutions of assignment of claims, accession to and assumption of debt, and then sheds light on whether the transfer of an entire contractual relationship is also covered by the unified European conflict of laws provisions of the Rome Regulations. In addition, the contract transferred is examined: With the transfer of such contract, the question of a change of law applicable to the contract transferred arises.

2014 ◽  
pp. 7-39
Author(s):  
Aleksandra Sikorska-Lewandowska

In Polish and also in German law a housing community is entitled to sue the owner of premises and demand their sale by public auction. In both legal systems a resolution must be taken by a housing community and then the case must be referred to court. Grounds for an action, in accordance with Polish law, are as follows: long-term default by the owner on the payment of charges due, flagrant or persistent offence against the applicable order of house rules, inappropriate behaviour that makes the use of other premises or the common property burdensome. Under German law, grounds for a claim may be breach of the obligations incumbent on an owner to other owners of premises in such a blatant way that one cannot expect them to continue to maintain community with him. In both legal regimes, that legal remedy is of a unique and final nature and, therefore, is used when other solutions have produced no effect.


2021 ◽  
Vol 8 (1) ◽  
pp. 15-35
Author(s):  
Egzonis Hajdari

Fraud is a specific type of defect in consent that manifests the purpose of one of the parties to establish a contractual relationship through deceptive actions. As such, fraud is an unlawful and unethical action that emerged beginning with some of the earliest agreements in human society. Moreover, the practical treatment of fraud is likely to have occurred since the genesis of its appearance. More appropriate and advanced treatment of fraud can be seen after the implementation of the first legal systems, which focused on contractual relationships. Fraud in contractual relationships will be examined starting with Babylonian, Ancient Greek, Roman, and Islamic law and will continue with a focus on Albanian customary law and modern laws implemented in Kosovo. Furthermore, in this article, we will show how the treatment of fraud has evolved in the legal framework in Kosovo.


2018 ◽  
Vol 239 ◽  
pp. 03006
Author(s):  
Elvir Akhmetshin ◽  
Kseniya Kovalenko

The specifics of the contract of carriage of goods and its difference from other types of contracts used in the sale of goods and services are considered. Application of the contract of carriage of goods for the regulation of large-scale and long-term relations, and also relations between the branches of the economy and the regions of the country are considered. This is of practical importance and is necessary due to the fact that the specifically dedicated norms are applied to each contract along with the norms common to all sales contracts. At the same time, the legal characteristic of economic contract depends not only on the name assigned to it by the parties but also on those rights and obligations that the parties have determined in the contract. However, the functions performed and the role of each of the types of transport contracts cannot be unambiguous. In the article, the factors affecting the transport service of international business transactions are considered.


Global Jurist ◽  
2020 ◽  
Vol 0 (0) ◽  
Author(s):  
Giulia Terranova

AbstractLegal transplants are considered a significant factor in the evolution of legal systems. One example of transplant of a legal institution through its prestige is the diffusion of the trust from the English legal system to other common law systems and to many civil law countries. One of these is China that in 2001 enacted the Trust Law of the People’s Republic of China. This paper wants to analyse the trust under the Trust Law and to compare it with the original model in the English legal system, understanding how far or how close it is from the original one.


Pro Futuro ◽  
2020 ◽  
Vol 9 (3) ◽  
Author(s):  
Ágnes Juhász

All legal systems have their own solution for the treatment of the essential change of circumstance subsequent to the conclusion of the contract. Some of them allow for the judicial amendment of the contract, if the conditions of the clausula rebus sic stantibus are fulfilled.  There are other states, where the possibility to modify the contract by judicial act in case of an essential change of circumstances subsequent to the contract conclusion has only recently been recognised by the national legislation. In the following, it is to be reviewed how and by what means and models English law treats those changes of circumstances which occur after the conclusion of the contract and significantly reshape the contractual relationships.


Author(s):  
Tine Suartina

Tulisan ini berupaya melihat marjinalisasi adat, hukum adat serta implikasinya pada masyarakat adat. Dalam konteks Indonesia, meskipun Konstitusi dan beberapa aturan formal mengakui masyarakat adat, termasuk pranata adat, namun pada praktiknya telah terjadi upaya peminggiran jangka panjang. Ketidakkonsistenan kebijakan negara terhadap penerapan hukum adat memberikan peran dalam marjinalisasi komunitas adat pada berbagai tingkat. Melalui penelitian lapangan di tiga komunitas adat, Kasepuhan Ciptagelar, Kasepuhan Karang dan Kasepuhan Guradog di bagian Barat Jawa serta perspektif pluralism hukum, tulisan ini menjelaskan kurangnya pengakuan pada hukum adat memberikan pengaruh tertentu pada masyarakat adat, termasuk dalam pengaturan kemasyarakatan dan penghidupan. Studi ini pun membuktikan bahwa meskipun hukum adat secara praktis tidak diadopsi oleh negara, dalam beberapa kasus, masyarakat adat menemukan strategi untuk mempertahankan keyakinan dan praktik hukum adat di komunitasnya. Untuk itu, dalam konteks lebih luas, hal yang ingin disampaikan adalah, upaya marjinalisasi tidak mampu menghapuskan praktik adat dan hukum adat secara keseluruhan. Ketiga kasus memperlihatkan hingga saat ini praktik multi sistem hukum di masyarakat plural seperti Indonesia masih diterapkan, baik dalam situasi konflik maupun berdampingan. Selain itu, dalam mendiskusikan implementasi hukum di Indonesia dari perspektif masyarakat, pembedaan sistem formal dan informal di masyarakat tetap diperlukan dan unifikasi hukum hanya berfungsi dalam batas tertentu.This paper attempts to see adat and adat law marginalizations, and the implications on adat peoples. In Indonesia, despite the recognition for adat peoples in the Constitution and formal rules, including adat institutions, in practice there has been a long-term marginalization. The inconsistent State’s policies towards the adat law application play a role in the marginalization of adat communities at various levels. Having field research in Ciptagelar, Karang and Guradog kasepuhan communities in western Java and legal pluralism perspective, this paper elucidates the lack of adat law recognition giving certain impacts on adat peoples, including on their social lives and livelihood. This study also proves that although adat law is not practically adopted by the State, in some cases, adat peoples find strategies to maintain their beliefs and adat law. Thus, in a broader context, the marginalization is unable to eliminate adat and adat law as a whole. To date the practice of multi-legal systems in a plural society, such as Indonesia, still takes place, both in conflict and coexistence. Moreover, in discussing Indonesia’s implementation of law from a community perspective, the distinction between formal and informal systems is still needed and legal unification only functions within certain limits


QAWWAM ◽  
2019 ◽  
Vol 13 (2) ◽  
pp. 101-122
Author(s):  
Nurmala Fahriyanti

In Mataram West Nusa Tenggara, people is lives are regulated on daily basis by religious law, traditional (adat) law and state law. To understand these complex cultural and religious processes as they affect women in particular, I will examine the issue of divorce, also known as sue divorce. This tipe of divorce is socially-sanctioned. I will focus my examination in Mataram, an city of Lombok West Nusa Tenggara. In Lombok society marriage constitutes an important part of the life cycle.  Someone is not considered an adult until marriage.  Marriage is not only united two individual, but also united two families. However this dream canot be realized over the long term.  If family problems arise and  there are no suitable solutions, people may choose to divorce. For instance, if a wife unable to fulfill her obligations as a wife, her husband can divorce her by verbal means alone, according to any of the three existing legal systems (religious customary or state law). By contrast, if her husband unable to fulfill her obligations as a husband his wife can divorce him in only one way by making an application to Islamic Court to do divorce. In marriage available successful couple builds the family that sakinah, mawaddah and warahmah. But then available also that unsuccessful and end with separate or divorce. Separate constitutes a thing that often happens deep good human life divorce the initiating from the husband and also divorce the initiating from the wife, that its cause islamic law puts attention that adequately significant to that thing. It can appear if understand about islamic law, undoubtedly will find both of previous thing and its terminological  islamic law. There is no divorce without started by marriage. But upon that aim not attained, therefore divorce constitutes last way out that must been sailed through. Divorce can't be done but there is grounds which corrected by religion, adat and state law. In islamic law, that divorce grounds experience developing according to social development. Basically islamic law establishes that divorce reason which is wrangle which really culminates and jeopardize the so called soul safety with “ syiqaq ”. Intention is if worried a couple its happening dispute (dispute not only means wrangle among husband or wife can also distinctive principle and opinion) therefore delegate a someone of its husband family and a someone of wife family. And if both of wife and husband will goodness and they can make resolution and look for the solution, but if there are suitable solution wife or husband can do divorce.


2018 ◽  
Vol 25 (3) ◽  
pp. 288-309
Author(s):  
Mitja Kovac

Frustration of purpose remains one of the most ill-defined concepts in the English law of contracts. The same problem has also recently attracted the attention of the French legislature in its modernization of the Code Civil. The French reform entitles courts with broad powers to adjust the contract when unforeseen contingencies have made the bargain unduly costly. This article argues that the introduction of an economically inspired adjustment rule in English contract law should be re-considered to maintain its current superior commercial position. If implemented, then the ‘ex ante division of surplus’ should be the governing principle in adjusting contract price, because such a remedy will not affect the agreed-upon division of the surplus. Moreover, this paper suggests that the recent French reform is indeed a long-awaited step toward a more effective regulation of the notorious ‘unforeseen contingencies’ phenomena, but also suggests that further improvements might be needed. Furthermore, it offers a set of arguments suggesting that the English law in its current form might still be the preferred option in the world of international business transactions. The international commercial attractiveness of English contract law, although being challenged by the new French Civil Code, remains undisputed.


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