A comparative investigation into the revolution in private law in the era of human rights
Scotland and South Africa are mixed jurisdictions, combining features of common law and civil law traditions. ...Over the last decade, a shared feature in both Scotland and South Africa has been a new and intense focus on human rights.
In Scotland, the European Convention on Human Rights now constitutes an important element in the foundation of all domestic law. Similarly, the Constitution of the Republic of South Africa, adopted in 1996, has a Bill of Rights as its cornerstone. This binds the legislature, the executive, the judiciary and all organs of state - and also private parties.
In some ways, the Scottish and South African experience could not be more dissimilar, and the 'constitutional moments' from which these documents sprang were very different. At the same time, the parallels are close and compelling. This book, written by experts from both jurisdictions, examines exactly how human-rights provisions influence private law, looking at all branches of the subject. Moreover, it gives a unique perspective by comparing the approach in these kindred legal systems, providing a benchmark for both.
This book develops the implications of that venerable Aristotelian notion of justice for understanding contemporary private law. Over the last decades corrective justice has become a central but ...controversial idea among legal scholars and theorists. This book presents corrective justice as the normative idea latent in the institutions and concepts of a fair and coherent regime of liability. It begins by setting out the conceptual components of corrective justice: the correlativity of the parties normative positions as the structuring idea of their relationship, and a robust notion of rights and their correlative duties (conceived in Kantian terms) as the content appropriate to legal relationships structured in that way. It then describes the significance of corrective justice for various legal contexts: for the grounds of liability in negligence, contract and unjust enrichment; for the relationship between right and remedy; for legal education; for the comparative understanding of private law; and for the compatibility of corrective justice with state support for the poor. The book integrates the concrete and wide-ranging treatment of legal doctrine with a unitary and comprehensive set of theoretical ideas. Combining legal and philosophical analysis, it presents private law in non-instrumental terms, as a distinctive mode of moral discourse that focuses on the normativity intrinsic to the parties relationship.
As part of the European integration, an ambitious programme of harmonisation of European private law is taking place. This new edition in the Swedish Studies in European Law series, the work of both ...legal scholars and politicians, aims to create a modern codification in the tradition of the great continental codifications such as the BGB and the Code Civil. A significant step towards this development was taken in 2009 with the creation of the Draft Common Frame of Reference which contains model rules for a large part of central private law. The process raises a number of questions. What are the advantages and disadvantages of such an intensive process of harmonisation? Are there lessons to be learnt from the Europeanisation of private law through history? Are there any further steps which have been taken in order to create a European private law? What is the future of European private law? These crucial questions were discussed at a conference in Stockholm, sponsored by the Swedish Network of European Legal Studies. This important volume includes the answers offered by leading scholars in the field.
The assignment of the contract appears as a tripartite or bilateral operation which is carried out either for a fee, or free of charge, and consists in the replacement of one of the parties to a ...contract, by the assignment by one of the parties of the contract who thus becomes assignor (cedens) to a third party assignee (substituiens) of the quality of a party to that contract, third party who thus enters as a party to the contract with the remaining party, respectively the assigned (cessus).
The assignment of the contract resides in a private rule that contributes to the dynamisation of the civil legal relations, which is achieved by transferring the quality of the contractual party to a third party that thus replaces the relationship that arose previously, without however affecting the pre-existing conduct, initially established by the contracting parties. In this way, an assignment of the contractual position that a party has in that contract is carried out without, however, affecting the content of the contract.
From the legal definition we distinguish the following characteristic elements:
– the assignment of the contract implies a private transmission of the binding legal relationship between the living;
– the assignment of the contract is a unique operation and does not generate a successive transmission of the obligation, neither in terms of the liabilities, nor of the assets. The essential condition is that the „services” have not been „yet fully executed”, from which it follows that they must be in the process of execution, so the obligations must not be extinguished;
– in order to produce its legal effects, this act requires the consent of the party that maintains its contractual position.
The legal nature of the assignment of the contract is typical of the legal act with translative effect of rights and obligations, respectively a translative convention, but also specific to a contract through which there is operated a substitution of persons, which ensures the continuity of the former contract, but with new parties, contract which must be regarded as a transferable patrimonial value.
The assignment of the contract has as features: a translative character inter vivos, it is a unitary legal operation of conventional substitution of a contractor, and for its realization it is necessary to have the consent of the assigned contractor.
In this article, the author deals with the issues of sanctions of defective activities performed within the management of the child's property. The premise of this article is to indicate the threats ...to the financial interests of the child resulting from the absolute invalidity sanction, as well as the certainty and safety of transactions with minors. The general assumption of this article is a comprehensive analysis of the legal structures of the management of a child's property, which may result in the absolute invalidity sanction of a legal act. This will be used to develop de lege lata conclusions regarding the functioning of the current regulations and to propose directions of de lege ferenda changes.
The issue of the classification of civil obligations according to sources has triggered controversies over time, in doctrinal, but also jurisprudential terms, due to the need to establish the ...specific conditions of each category of obligation relationships. The current Civil Code has abandoned the classical classification of the sources of obligations into contracts, quasi-contracts, delicts and quasi-delicts, aligning with the orientation of modern civil codes, stating that the sources of obligations are legal acts and facts, which in their turn, legal facts can be legal or illegal. From the category of lawful legal facts – sources of civil obligations, business management is characterized by the intervention of the manager in the affairs of another person, called „gerat”, consisting in the conclusion of legal acts with third parties or the execution of material acts, voluntarily, disinterestedly and without having received an assignment or a mandate in this regard. The legal mechanism is triggered by the creation of the obligation to compensate the manager for the expenses incurred by him in the management of the affairs and interests of the „gerat”. The logical-legal reasoning behind the birth of this binding relationship is the idea of equity for covering the losses or expenses incurred by the manager for an altruistic purpose, to help. The study proposes an analysis of the institution of business management, according to the current regulation, in order to emphasize the new aspects, such as the essential condition regarding the opportunity of the manager’s intervention, the effects of the management towards third parties or the hypothesis in which the manager acts knowing that the client cannot protect his own interests not having the possibility to appoint a representative. In the introductory part of the paper, we presented considerations regarding legal acts, in general, business management, in particular, with a short historical foray (I). We continued with the exposition of the regulation of business management, from ancient times, from Roman law, to the current Civil Code (II) and its definition in doctrine (III). We analyzed the legal nature of business management to argue that this mechanism is specific to a lawful legal fact, the effects are produced under the law, not being a unilateral (unnamed) legal act (IV). We presented the conditions of business management structured in two categories: objective with reference to the object of business management and the characteristics of legal acts and material acts of management, and subjective, by reference to the attitude and behaviour of people who become or may be bound by the effects or the effect of this mechanism (V).In the final part, we analyzed the effects of business management, primarily between the manager and the managed, in the content of which there are mutual and bilateral obligations, as regulated by the provisions of Articles 1.331–1.335 and Article 1.337 of the Civil Code, and then when the guarantor acts in the interest of the guarantor and has concluded legal acts with third parties, the effects of which also apply to these persons (VI).
Is it possible to approve the enforcement of the maintenance obligation established in the form of the maintenance pension only for the instalments falling due up to the date of the application for ...enforcement, as well as for those with future maturity? The judicial practice offers solutions in both directions, but which of the two guidelines is in accordance with the principle of the best interest of the child? Can the judge censure the civil procedural provisions that give rise to unfair situations, based on the principle of equity? The present study proposes answers to these questions, as well as solutions for correcting the unfair consequences generated by the application of some legal provisions that ignore the particularities of a claim having as object the legal maintenance obligation. Thus, the solutions of the courts of law will be briefly presented, the arguments used to justify the judgments pronounced will be analyzed, and several aspects regarding the incidence of the principle of the best interest of the child and of the principle of equity will be pointed out one by one, in order to finally present our conclusions, as well as some de lege ferenda proposals.
In this study, the forms, advantages and procedure of arbitration are presented, as an alternative method of dispute resolution that the parties can resort to by virtue of the principle of ...availability. At the same time, the particularities of the judgment of the essentially jurisdictional act represented by the arbitral award, as well as the solutions pronounced by the courts in the appeal of the annulment action, are highlighted. By exposing the advantages of arbitration, the author aims to highlight the fact that this is an extremely viable way of resolving disputes, which the parties should resort to with priority over state justice in matters permitted by law, with great confidence and conviction that the disputes will be resolved in a manner that most faithfully corresponds to their interests.
Inadmissibility presents itself as a legal institution with a special physiognomy, being specific, above all, to the Romanian civil procedural law, there being inclusively a common practice of the ...courts of law for the application of this legal institution in the trials from Romania. Although it is often used at the level of judicial practice and reference is made to this procedural sanction in every valuable doctrinal work that deals with the issue of civil procedural law, there is still a certain lack of concrete explanations with regard to the legal nature, the internal resources, the legal effects and to the situations of incidence of this extremely important legal institution within the civil procedural matter. Or, this fact is likely to put the practitioners in a difficult situation, in many civil disputes, and even the specialized doctrine is not exempted from a series of hesitations in revealing the true coordinates of the sanction of inadmissibility. The rejection of an application for summons, as inadmissible, represents a risky solution, from the perspective of ensuring the fairness of the civil procedure by the courts of law, in the fundamental component of the applicants’ right to effective access to the court, established by Article 6 of the European Convention on Human Rights, a fact likely to impose particular rigor in the practical way of making the sanction of inadmissibility more effective, as well as the exigency of a full justification and reasoning, from the courts of law, of the converging legal reasons, in the sense of applying the procedural sanction of inadmissibility. Therefore, the issue of revealing the determining aspects in shaping the structure and the method of application of the institution of inadmissibility in the Romanian civil trial remains extremely important and current, with practical implications among the most concrete and important.
The Law No 77/2016 on the datio in solutum of some real estate in order to settle the obligations assumed through credits, amended by the Law No 52/2020, establishes the priority of balancing and ...continuing the credit contract to the detriment of the cessation of its effects. The present study aims to analyze a few aspects regarding this imperative of the legislator from the perspective of the decisions of the Constitutional Court, in the hypotheses where the consumer either exclusively requests the adaptation of the contract, or the direct datio in solutum of the building. The constitutional case law reveals the evolution of the criteria regarding unpredictability. The problems of the study include elements of practice of the courts, regarding the relationship between the adaptation of the contract and the principle of availability, the application of law in time, effective ways of contractual rebalancing and of sharing the coverage of the contract risk.
