scholarly journals Mitigation of Damage in the Context of Remedies for Breach of Contract

2019 ◽  
Vol 15 (2) ◽  
pp. 293-340
Author(s):  
Anne Michaud
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Conclusive Evidence ◽  
Point Of View ◽  
Second Phase ◽  
Breach Of Contract ◽  
Physical Injuries ◽  
Course Of Action ◽  
Two Phases ◽  
The Cost

When I began this article my main objective was to show why the concept of mitigation of damage, which is so extensively used in common law, was apparently non-existent in civil law. Right from the beginning, however, I found conclusive evidence which proved that the concept of mitigation actually exists in civil law too; my purpose was then transformed into explaining how this concept works in two systems of law that are so different in their approaches and their methodologies. In order to make this study manageable, I have focused on the links between the concept of mitigation and the problem of pecuniary loss following a breach of contract. Consequently, issues pertaining to tort, physical injuries to persons and things, and claims to liquidate sums, as in debt, will be dealt with only incidentally. Regrettably, this course of action will leave open many interesting questions related to mitigation, mainly in tort but also in contract. Nevertheless, I trust that the present study will constitute a useful basis for further analysis on this subject. I have divided this work into two parts, devoted to the two phases of recovery following a breach of contract. The first phase concerns the choice of which losses fall under the protection of the law, among all those claimed by the plaintiff. I propose to call this phase measuring the extent of the loss. The second phase involves the determination of what the defendant will have to do in order to compensate the plaintiff; when this compensation takes a pecuniary form it involves the assessment of the pecuniary value of the loss. The first of these phases primarily concerns the extent of losses and the question of what damage counts for compensation; this particular aspect of the issue of mitigation is the subject of Part I of this article. The connection between mitigation and the pecuniary evaluation of a plaintiff's damages is examined in Part II where I focus on the effects of inflation and other factors that influence the cost of compensation. Finally, from a comparative point of view, one of the main interests of the present study lies in observing that the concept of mitigation has achieved a different status in civil law and in common law. The conclusion of this work explores this situation, and aims at explaining the historical and juridical circumstances that may have caused common law to attain higher levels of generality and of abstraction than civil law with regard to the issue of mitigation.

scholarly journals Designing a model to determine the preferred Islamic contract for a bank facilities applicant

2018 ◽  
Vol 7 (2.2) ◽  
pp. 21
Author(s):  
Marzieh Jahani ◽  
Parastoo Mohammadi
Keyword(s):  
Evaluation Criteria ◽  
Industrial Sector ◽  
Point Of View ◽  
Second Phase ◽  
Optimization Approach ◽  
Compromise Solution ◽  
Decision Matrix ◽  
Analytic Hierarchy ◽  
The Cost ◽  
Hierarchy Process

This paper aims to present a model to determine the preferred Islamic contract for the bank facilities applicant in the industrial sector. For this purpose we use a consolidated method which includes the compromise solution multi-criteria optimization in the first phase, and the calculation of the cost of financing for the applicant of facilities in the second phase. Afterwards, by using the output of the both-phase, the preferred Islamic contract based on the combinational criterion has been determined for the applicant of the facilities. According to the fact that in the financing of the projects, in addition to the criteria related to the cost of financing, the qualitative criteria are also important, so both the qualitative and quantitative criteria have been considered in this research. In this study, we used four widely applied Islamic contracts (Jo’aalah Instalment sales, Hire purchase, Participation). The assessment criteria of the Islamic contracts have been extracted in the form of a questionnaire based on the previous studies and the expert’s point of view. In the first phase, the Analytic Hierarchy Process (AHP) has been used in order to determine the weights of the evaluation criteria of the Islamic contracts; and, in order to select an appropriate contract for the applicant, the compromise solution multi-criteria optimization approach (VIKOR), which is based on the decision matrix, was used. In the second phase, the cost of financing from the bank was estimated for the applicant of the facilities in the four contracts. Finally, the obtained results of the qualitative questionnaire and the cost of financing from the bank have been combined; thus, the preferred contract for the applicant of facilities has been determined based on a combinational criterion.

scholarly journals Lexicographic Repair Under Querying Prioritised DL-Lite Knowledge Bases

2021 ◽  
Vol 22 (1) ◽  
Author(s):  
Telli Abdelmoutia ◽  
Hamdi Ghassen ◽  
Omri Nazih
Keyword(s):  
Experimental Study ◽  
Execution Time ◽  
Knowledge Bases ◽  
Point Of View ◽  
Second Phase ◽  
Two Phases ◽  
And Performance ◽  
Data Collections ◽  
Different Levels

This article discusses the issue of inconsistency in responses from various DL-Lite knowledge bases. This inconsistency problem is at the origin of several sources of assertions with different levels of reliability. The various solutions proposed in the literature that have to do with retrieving an exhaustive and coherent list of responses are not satisfactory from the point of view of reliability and performance. The solution that we present to solve this problem is articulated around two phases: the first phase consists of interrogating the different knowledge bases to retrieve all of the possible answers, which may be inconsistent and/or contradictory, and the second phase consists in repairing these inconsistencies and/or contradictions. To do this, we propose an approach based on three algorithms that we developed in this framework: a first algorithm for non-defeat repair, a second algorithm for lexicographic repair and a third algorithm for non-defeat repair based on lexicography of possible inconsistent responses. The experimental study carried out on the different data collections, as well as the analysis of the results obtained, confirm the performance of our approach as well as its efficiency in regards to productivity and complexity in terms of execution time.

Renewable Biodiesel From CSO: A Fuel Option for Diesel Engines

Solar Energy ◽  
2006 ◽  
Author(s):  
B. Murali Krishna ◽  
J. M. Mallikarjuna
Keyword(s):  
Diesel Fuel ◽  
Direct Injection ◽  
Point Of View ◽  
Ethyl Esters ◽  
Second Phase ◽  
Performance Point ◽  
Alternate Fuel ◽  
Two Phases ◽  
And Performance ◽  
Conventional Diesel Fuel

The petroleum-based fuels are limited reserve fuels, with our present known reserves and the growing rate of consumption, it is feared that they are not going to last long. These finite resources of petroleum and highly concentrated in certain regions of the world has given rise to frequent disruptions and uncertainties in its supply and as well as price. This situation has created a problem to increase the prices of these oils. The growing dependence on oil has created great scarcities and hardships with serious economic imbalance. A part from the problem of fast vanishing reserves, Petroleum fueled vehicles discharge significant amount of pollutants. In view of these problems attempts must be made to develop the technology of alternate clean burning fuels. The alternative, which satisfies all these requirements, is bio-diesel. Bio-diesel is methyl or ethyl ester of fatty acid made from virgin or used vegetable oils (both edible and non-edible) and animal fat, by converting the triglyceride oils to methyl (or ethyl) esters with a process known as transesterification. Bio-fuels are important now and offer increase in potential for the future. This paper consists two phases. The phase one dealt with preparation of bio-diesel from Cotton Seed Oil (C.S.O), which is available at cheaper price, as it is byproduct from cotton industries. Its properties were determined experimentally and compared with the conventional diesel fuel. The second phase dealt with conduction of experiments on a single cylinder, 4-stroke, direct injection Diesel Engine without modifications at constant speed 1500 rpm for various loads using 100% bio-diesel and conventional diesel fuel. It noticed that, the performance of the engine is not severely deviated by the substituted renewable biodiesel inaddition considerable decrease in smoke level. It is concluding that the biodiesel is superior fuel from the environmental and performance point of view, addition to this reducing the import of oil and consequentially improving energy security as a renewable alternate fuel.

scholarly journals An approach based on Clustering AH and VND for Supply Chain Management

2021 ◽  
Vol 14 (1) ◽  
pp. 306-315
Author(s):  
Fadoua Oudouar ◽  
◽  
El Zaoui ◽  
Keyword(s):  
Second Phase ◽  
Variable Neighborhood Descent ◽  
Location Routing Problem ◽  
Routing Problem ◽  
New Approach ◽  
Location Routing ◽  
Sweep Algorithm ◽  
Two Phases ◽  
The Cost ◽  
Capacitated Location

In this work, we present a new approach to solve the Capacitated Location-Routing Problem (CLRP). The aim of this method is to determine the depot locations, to assign customers to facilities and to define routes for each depot to serve the associated clients. The proposed approach contains two phases, which are the constructive phase and the improvement phase. In the first phase, we select the depots to be opened, allocate the customers to open depots using a Hierarchical Ascendant (HA) method and we solve the vehicle routing problem for each depot using Sweep algorithm. In the second phase, we apply a Variable Neighborhood Descent (VND) with three structures in order to optimize the cost obtained by the first phase. Two sets of well-known instances from the literature are used to evaluate the performance of this method, and the numerical results obtained are compared with the experimental results of other methods. Results show that our method is competitive with respect to the best-known solutions (BKSs) and demonstrate its efficiency in comparison with other approaches.

scholarly journals The Case for Specific Performance as the Primary Remedy for Breach of Contract in New Zealand

2004 ◽  
Vol 35 (3) ◽  
pp. 657
Author(s):  
Fionnghuala Cuncannon
Keyword(s):  
New Zealand ◽  
Historical Development ◽  
Common Law ◽  
Civil Law ◽  
Breach Of Contract ◽  
Administration Of Justice ◽  
Specific Performance ◽  
The Common ◽  
The Right ◽  
Practical Impact

This article examines the appropriateness of damages as the primary remedy for breach of contract in New Zealand. It argues that the civil law approach to contractual remedies, which gives primacy to performance of the obligation, is superior to New Zealand's common law position, which merely seeks to replace the right to performance with an award of damages. The importance of both the normative and practical impact of the remedial framework is examined in order to demonstrate that specific performance is better able to facilitate commercial endeavours. The three justifications for the primacy of damages in the common law (the historical development, the economic theory of efficient breach, and the concern that specific performance will overburden the administration of justice) are examined but rejected as adequate justification for the common law position. It contends that specific performance should be the primary remedy because it is more consistent with the principles that underlie the law of contract. It also contends that specific performance is more practical because it reduces conflict and promotes efficiency. The recommendation is that any change should be through appropriate legislation.

The Efficient Breach Theory under Jordanian Civil Law

2016 ◽  
Vol 30 (4) ◽  
pp. 336-356
Author(s):  
Yusuf Mohammed Gassim Obeidat
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Good Faith ◽  
Breach Of Contract ◽  
Law System ◽  
Legal Rules ◽  
Specific Performance ◽  
History Of ◽  
The Common ◽  
The Right

This study examined the ‘efficient breach’ theory and its possible application under Jordanian Civil Law. The theory says the promisor has the right to breach a contract and pay damages whenever his profit from breach exceeds his expected profits from performance. As a prerequisite for its application, the theory requires the general remedy for breach to be the payment of damages, rather than forced performance. Thus, the main area for its application is the common law system, since it favours damages as a primary remedy. This study reached the conclusion that the theory cannot work under Jordanian Civil Law, where the primary remedy for breach of contract is specific performance, that forces the promisor to complete the contract. In addition, it contradicts the good faith principle that Jordanian law is based upon, amongst other principles, and goes against the history of Jordanian legal rules.

Claims for Performance

2017 ◽  
Author(s):  
Hein Kötz
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Contract Law ◽  
Breach Of Contract ◽  
Specific Performance ◽  
The Common ◽  
The Difference

This chapter examines what the contract law says about claims for performance. It first considers the difference between the civil law in which claims for the performance of the contract are generally admitted, and the common law where ‘specific performance’ is awarded only exceptionally. A closer analysis shows, however, that the gap between the civil law and the common law is not as great as it might appear, and it is on that basis that the chapter discusses in some detail the harmonisation of the European rules on claims for the performance of contracts. The chapter also looks at the idea of an ‘efficient breach of contract’ as it relates to claims for performance.

Inherited legal systems and effective rule of law: Africa and the colonial legacy

2001 ◽  
Vol 39 (4) ◽  
pp. 571-596 ◽  
Author(s):  
Sandra Fullerton Joireman
Keyword(s):  
Rule Of Law ◽  
Common Law ◽  
Civil Law ◽  
Point Of View ◽  
The Rule Of Law ◽  
Law System ◽  
Colonial Legacy ◽  
The Common ◽  
Common Law System ◽  
The Individual

The question of whether particular types of legal institutions influence the effectiveness of the rule of law has long been answered with conjecture. Common law lawyers and judges tend to believe that the common law system is superior. This opinion is based on the idea that the common law system inherited from the British is more able to protect the rights of the individual than civil law judicial systems. Quite the opposite point of view can be found in lawyers from civil law countries, who may view the common law system as capricious and disorganised. This paper compares the effectiveness of the rule of law in common law and civil law countries in Africa, through a cross-national statistical comparison using Freedom House and Political Risk Services data. The comparison reveals that common law countries in Africa are generally better at providing ‘rule of law’ than are civil law countries.

Enforced Performance in Common Law Versus Civil Law Systems: An Empirical Study of a Legal Transformation

2020 ◽  
Vol 68 (1) ◽  
pp. 1-54
Author(s):  
Leon Yehuda Anidjar ◽  
Ori Katz ◽  
Eyal Zamir
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Policy Implications ◽  
Breach Of Contract ◽  
Lab Experiments ◽  
Specific Performance ◽  
Lively Debate ◽  
The Common ◽  
Injured Party ◽  
Equitable Relief

Abstract Legal systems differ about the availability of specific performance as a remedy for breach of contract. While common law systems deny specific performance in all but exceptional cases, civil law systems generally award enforcement remedies subject to some exceptions. However, there is an ongoing debate about the extent to which the practice of litigants and courts actually reflects the doctrinal divergence. An equally lively debate revolves around the normative question: Should the injured party be entitled to enforced performance or rather content itself with monetary damages? Very few studies have used qualitative methods, vignette surveys, or incentivized lab experiments to empirically study these issues, and none has quantitatively analyzed actual court judgments. Against the backdrop of the comparative law and theoretical debates, this Article describes the findings of a quantitative analysis of judgments concerning remedies for breach of contract in Israel during a sixty-nine-year period (1948–2016). The judicial and scholarly consensus is that the Remedies Law of 1970 revolutionized Israeli law by turning enforced performance from a secondary, equitable relief to the primary remedy for breach of contract. We nevertheless hypothesized that no such revolution has actually occurred. In fact, neither the common wisdom that the resort to enforced performance has significantly increased following the 1970 Law, nor our skeptic hypothesis that no such increase has occurred, were borne out. According to our findings, the resort to enforced performance actually decreased considerably after 1970. We examine several explanations for this result, and show that this unexpected phenomenon is associated with the increasing length of adjudication proceedings. The theoretical and policy implications of these findings are discussed.

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