scholarly journals Interference of the intervener in contractual relations: means of protecting a bona fide creditor

2021 ◽  
pp. 83-98
Author(s):  
Mikhail Leonidovich Osipov ◽  
Anastasiya Aleksandrovna Guseva
Keyword(s):  
Burden Of Proof ◽  
Third Party ◽  
Economic Losses ◽  
The Third ◽  
Bona Fide ◽  
The Subject ◽  
Contractual Relations ◽  
The Third Party

The subject of this article is relations that arise to interference of the third party (intervener) in contractual relations of the parties. The author considers the question of possible means of protecting a bona fide creditor from the actions of an intervener, such as challenging of the transaction consummated between the obligator and the intervener, as well as recovery of tort damages from the intervener for the benefit of a bona fide creditor. The article examines the issues emerging in the context of application of both methods of protection. The conclusion is made on the possibility of use of both methods, in preference to recovery of damages. It is noted that challenging of the transactions allows to equitably redistribute the burden of proof in disputes with a mala fide intervener, while the tort claim implies the possibility of recovering pure economic losses from a mala fide intervener. The authors indicate that the current Russian legislation does not contain dogmatic obstacles for application of such method of protecting a mala fide intervener.

Ch.5 Content, third party rights and conditions, s.2: Third party rights, Art.5.2.4

2015 ◽  
Author(s):  
Vogenauer Stefan
Keyword(s):  
Burden Of Proof ◽  
Third Party ◽  
The Third ◽  
Contractual Relationship ◽  
The Third Party

This commentary focuses on Article 5.2.4 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning defences of the promisor against the promisee and against the beneficiary. Art 5.2.4 stipulates that the promisor may assert against the beneficiary all defences which the promisor could assert against the promisee. The phrase ‘all defences’ has to be read as ‘all defences based on the contract from which the third party derives its right, but not those based on other relationships between the promisor and the promisee’. The promisor has to prove the existence of a defence against the promisee arising out of the contractual relationship which confers a right upon the beneficiary. The burden of proof is on the beneficiary if it wants to argue that the parties agreed not to make the promisor's defences available against the beneficiary.

Ch.2 Formation and authority of agents, s.2: Authority of agents, Art.2.2.8

2015 ◽  
Author(s):  
Krebs Thomas
Keyword(s):  
Burden Of Proof ◽  
Third Party ◽  
Default Rule ◽  
Agency Relationship ◽  
The Third ◽  
Delegation Of Authority ◽  
The Third Party

This commentary focuses on Article 2.2.8 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning sub-agency. In most countries, the default rule is that the agent is not permitted to delegate its authority. This rule is generally based on the confidential nature of the agency relationship. Art 2.2.8 stipulates that an agent has implied authority to appoint a sub-agent to perform acts which it is not reasonable to expect the agent to perform itself. This commentary discusses the requirements of sub-agency, the consequences of delegation of authority, cases where the sub-agent affects the legal relations of the third party, and burden of proof relating to sub-agency.

scholarly journals La politique comme le lieu de l’universalisation de l’exigence éthique chez Levinas

2022 ◽  
Vol 10 (1) ◽  
pp. 168-181
Author(s):  
Ericbert Tambou Kamgue
Keyword(s):  
Final Analysis ◽  
The Other ◽  
Third Party ◽  
Face To Face ◽  
The Third ◽  
Ethical Subjectivity ◽  
The Face ◽  
The Subject ◽  
The Third Party ◽  
Ethical Requirement

Levinasian philosophy is characterized as a philosophy of ethical subjectivity and asymmetrical responsibility. Ethics is understood as the subject that gives itself entirely to the Other. However, the Other is never alone. His face attests to the presence of a third party who, looking at me in his eyes, cries for justice. There is no longer any question for the subject to devote himself entirely to the Other (ethical justice), to give everything to him at the risk of appearing empty-handed before the third party. How then to serve both the Other and the third party? The question of the political appears in the thought of Levinas with the emergence of the third party who, like the Other, challenges me and commands me (social justice). The third party establishes a political space. Politics is in the final analysis the place of the universalization of the ethical requirement born from face-to-face with the face of the Other.

Ch.5 Content, third party rights and conditions, s.2: Third party rights, Art.5.2.2

2015 ◽  
Author(s):  
Vogenauer Stefan
Keyword(s):  
Burden Of Proof ◽  
Third Party ◽  
Legal Capacity ◽  
Legal Certainty ◽  
The Third ◽  
The Third Party

This commentary focuses on Article 5.2.2 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the attributes of the third party. The provision aims to strike a balance between commercial flexibility and legal certainty. Art 5.2.2 stipulates that the beneficiary must be identifiable with adequate certainty by the contract but need not be in existence at the time the contract is made. It furthers the autonomy of the original parties by allowing them to accord a right to future persons. A lack of identifiability affects the validity of the contract between the original parties. The burden of proof that the third party is identifiable with adequate certainty by the contract is on the party asserting that a contract in favour of a third party has been validly concluded, usually the beneficiary or the promisee. This commentary discusses the rationale of Article 5.2.2, existence and identity of the third party, and legal capacity of the third party.

Ch.2 Formation and authority of agents, s.2: Authority of agents, Art.2.2.7

2015 ◽  
Author(s):  
Krebs Thomas
Keyword(s):  
Burden Of Proof ◽  
Third Party ◽  
Reasonable Time ◽  
Conflict Of Interests ◽  
The Third ◽  
The Third Party

This commentary focuses on Article 2.2.7 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning conflict of interests. Art 2.2.7 stipulates that if a contract concluded by an agent involves the agent in a conflict of interests with the principal of which the third party knew or ought to have known, the principal may avoid the contract. However, the principal may not avoid the contract if the principal had consented to, or knew or ought to have known of, the agent's involvement in the conflict of interests; or if the agent had disclosed the conflict of interests to the principal and the latter had not objected within a reasonable time. It is for the principal to show both the existence of the conflict of interests and that the third parry knew or ought to have known about it. Once the principal has discharged that burden of proof, it is then for the third party to establish that the principal consented to, knew of, or ought to have known of the conflict.

12 Legal Relations Between Agent and Third Party

2016 ◽  
Author(s):  
Munday Roderick
Keyword(s):  
General Rule ◽  
Third Party ◽  
The Third ◽  
Contractual Relations ◽  
The Third Party

This chapter explores the legal relations between the agent and the third party. An agent acting for a disclosed principal (named or unnamed) normally can neither sue nor be sued by the third party on contracts concluded on behalf of that principal. In cases of disclosed agency, the object is to bring principal and third party into direct contractual relations. At this point, the agent customarily drops out of the transaction, neither acquiring rights against the third party nor incurring liability to the third party. There are, however, a number of exceptions to the general rule that an agent does not customarily acquire rights or incur liabilities under their principal’s contract, which are elaborated in the chapter.

Can Estoppel be Raised Against an Eviction in Terms of PIE?

2017 ◽  
Vol 30 (2) ◽  
pp. 434-455
Author(s):  
Elmien WJ Du Plessis
Keyword(s):  
Case Law ◽  
Third Party ◽  
The Real ◽  
The Third ◽  
Tacit Consent ◽  
Bona Fide ◽  
The Third Party

Estoppel is a well-known defence against (or limitation on) the rei vindicatio. This would be the case for example where the owner by some representation creates the impression that a third party is the owner of a thing and that the third party has the capacity to alienate the property. The bona fide third party can, when the owner then institutes the rei vindication to recover his property, raise estoppel and preclude the real owner from claiming his property. Before 2002, if one wanted to evict an unlawful occupier from certain residential premises, one would institute the rei vindicatio. In Ndlovu v Ngcobo; Bekker v Jika [2002] 4 All SA 384 (SCA) the court, however, ruled that the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) must be used in all instances of evicting people from urban residential premises. The question is: does estoppel serve as a defence/limit in the application of PIE? Surprisingly few cases deal with this issue. The court in Joe Slovo made a few remarks about the possibility of using estoppel as a defence against the rei vindicatio by looking at the interpretation of ‘tacit consent’ required by PIE. This article will interpret provisions of PIE and look at case law that deals with the use of estoppel in lease cases. It will conclude by remarking on the feasibility of using estoppel as a defence in PIE eviction cases.

scholarly journals Kepler’s Tertius Interveniens

1997 ◽  
Vol 1 (01) ◽  
pp. 51-54
Author(s):  
Ken Negus
Keyword(s):  
The Other ◽  
Third Party ◽  
The Third ◽  
The Subject ◽  
The Third Party ◽  
The One

Tertius Interveniens, written in 1610, is one of Kepler's most powerful and passionate treatises on astrology, written as a defence of the subject against extremists on both sides, on the one hand those who would condemn astrology altogether, and on the other those who accepted everything said and done in its name, no matter how preposterous. Hence he is the ‘third party intervening’, as indicated by the title.

12. The creation of agency and the agent’s authority

2017 ◽  
Author(s):  
Eric Baskind
Keyword(s):  
Third Party ◽  
Essential Information ◽  
The Third ◽  
Contractual Relations ◽  
The Creation ◽  
The Third Party

Each Concentrate revision guide is packed with essential information, Key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter focuses on the creation of agency and its three main parties: the agent, the principal, and the third party. The primary purpose of the agent is to bring the principal and the third party into direct contractual relations, with the principal taking on the rights and liabilities created by the contracts provided the agent had authority to act. The chapter looks at several kinds of agent’s authority, including actual authority, apparent authority, and usual authority, and also considers agency of necessity as well as cases where the principal may ratify a transaction.

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