THE BASIS OF TACIT CONTRACTS

Tacit contracts are contracts that are inferred from the conduct of the parties as opposed to written or verbal agreements embodying coinciding expressions of intention. Positive law reveals that the basis of, and especially the test for inferring such contracts, are a source of contention. Generally over the years the courts have fluctuated between subjective and objective approaches to contractual liability and this dichotomy is evident on the level of tacit contracts as well. In this article it is suggested that conflicting rationales and tests for tacit contracts simply cannot coherently co-exist in positive law and although subjective intention does indirectly influence the issue of contractual liability, when the existence of any contract – especially a tacit one – is contested on the basis of dissensus, a court of practical necessity will have to adjudicate the matter on an objective basis. In this regard the conduct of the parties in performing or preparing to perform in terms of the alleged agreement tends to play a prominent role. In the result it is more plausible and indeed preferable that objective criteria are employed by the courts to ascertain whether a tacit contract has arisen, a process which also leaves room for policy considerations to play a role.

THE CONTRACT FOR THE BENEFIT OF A THIRD PERSON. DEFINING ASPECTS AFTER THE MODERNIZATION OF THE CIVIL CODE OF THE REPUBLIC OF MOLDOVA

The contract for the benefit of a third person is that atypical and absolutely impressive legal construction that has struggled to make its place in the laws of many states. The regulation of this type of contract was catalyzed by the practical necessity generated by the jurisprudence. This study represents an exemplary synthesis of the doctrinal-theoretical dimension of the contract issue for the benefit of a third person after the modernization of the Civil Code of the Republic of Moldova. The practical aspects of the contract for the benefit of a third person are also approached, and a particularly important aspect is the analysis of the subject approached in the light of the new regulations of the Civil Code of the Republic of Moldova.

Russian as a foreign language (RFL): inflectional discordances in noun phrases with prepositional postmodification – learners’ difficulties and problem-solution approaches

The article discusses complexity of syncretic-character relationships between the constituents of noun phrases with prepositional postmodification in Russian language, considering their contradictory interpretations in Russian grammar guides’ analysis when applied in Russian-as-a-foreign-language teaching. The experience with beginners and pre-intermediate learners of different ages indicates the practical necessity of analyzing such units regarding their multi-aspect syntactic potential, which is often incompletely treated by contemporary linguistic theory instructions.

Good Love and Hard Words

This chapter opens with the murder of Étienne Marcel and the fall of Paris to the Dauphin at the end of August, and focuses on how the crown and its subjects negotiated the social and emotional—as well as the legal and political—consequences of the Jacquerie. While the crown began by enacting spectacularly harsh penalties against its enemies in Paris, it almost immediately moved to a policy of forgiveness and reconciliation. After publicly executing prominent reformers, the crown issued general pardons to those who participated in the Parisians’ treachery, the Jacquerie, and the Counter-Jacquerie. This was both a practical necessity and an astute political move that allowed the crown to place itself above the fray and to impose its own interpretation of events. But as the subsequent proliferation of individualized pardons and lawsuits show, subjects’ own stories were more varied, demonstrating different ways of thinking about the revolt. Long-running lawsuits and the failure even of extra-judicial agreements reveal enduring barriers to reconciling people to the past, as well as to one another. Relations between some individuals remained emotionally fraught, roiled by anger and anxiety for decades after the revolt, manifesting in the exchange of ‘hard words’ and homicidal quarrels.

Research on Dispute Settlement Mechanism of Economic and Trade Cooperation Between China, Mongolia and Russia

The dispute resolution mechanism of economic and trade cooperation between China, Mongolia and Russia is a kind of dispute resolution mechanism specially used to solve the disputes of economic and trade cooperation between China, Mongolia and Russia. It is not only has the practical necessity, but also has the political and legal feasibility. The main problems of the dispute resolution mechanism are that the dispute resolution methods are too scattered, the dispute resolution basis is too old, and the cohesion and effectiveness of the dispute resolution methods are poor. Under the guidance of the concept of "coordinated development, win-win and mutual benefit, fair procedure, inclusiveness and harmony", it is reasonable to build a dispute resolution mechanism of economic and trade cooperation between China, Mongolia and Russia, which covers the way of political diplomacy and judicial characteristics. Specifically, the dispute resolution mechanism needs to establish special dispute resolution institutions, unified applicable rules, diversified dispute resolution procedures and sound supporting systems.

Hobbes’s Argument for the Practical Necessity of Colonization

Hobbes attempts to show that practical necessity and human nature are related in such a way that colonization is unavoidable by virtue of its naturalness. Colonization is practically and historically necessary because unavoidable constraints generated by human nature combine with material and social factors to produce certain inevitable outcomes. Hobbes’s account of colonization can also be understood in terms of his negative idea of freedom. Hobbes fails, however, to provide a sufficient explanation of one aspect of modern colonialism, namely, the existence of national liberation movements, while the role of the sovereign implies a different idea of freedom to Hobbes’s purely negative one. This makes colonization appear less natural and necessary than he suggests. Finally, I explore the implications of Hobbes’s account of the causes of colonization in connection with the possibility of a ‘science’ of history and the idea of historical necessity.

Practical Necessity, Freedom, and History

By means of careful analysis of relevant writings by Hobbes, Rousseau, Kant, Hegel, and Marx, the author argues that the concept of practical necessity is key to understanding the nature and the extent of human freedom. Practical necessity here means being, or believing oneself to be, constrained to act in certain ways in the absence (whether real or imagined) of other, more attractive options, or by the high costs attached to pursuing other options. Agents become subject to practical necessity because of economic, social, and historical forces over which they have, or appear to have, no effective control, while the extent to which they are subject to this form of necessity varies according to the amount of economic and social power that one agent possesses relative to other agents. The concept of practical necessity is also shown to acknowledge how the beliefs and attitudes of social agents are, in large part, determined by social and historical processes in which they are caught up, and how the type of motivation that we attribute to such agents should recognize this fact. Another key theme is how Rousseau, Kant, Hegel, and Marx, in contrast to Hobbes, explain the emergence of the conditions of a free society in terms of a historical process that is initially governed by practical necessity. The role that this form of necessity plays in explaining historical necessity invites thefollowing question: to what extent arehistorical agents genuinely subject to practical and historical necessity?

Practical Necessity and History I

Rousseau’s idea of ‘moral’ freedom is shown to imply an element of contingency in history. Rousseau can be seen to identify three historical models, the first of which entails the possibility of stasis, whereas the other two presuppose and incorporate the idea of a subjection to practical necessity which explains the development of the capacity for moral freedom. Once this capacity has been sufficiently developed, history may result in significantly different, equally possible, outcomes depending on whether or not this capacity is exercised and how it is exercised. One of these outcomes is a genuine social contract. Rousseau appeals to practical necessity in order to explain how individuals would agree to enter into this contract. We here encounter a potential advantage of a mode of explanation that relies on the notion of practical necessity: it requires introducing fewer assumptions about how agents are disposed to act and what motivates them.