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Acceptance of the contract (roman law) – short reference to the Portughese and Brazilian rights

Contrato estimatório (Direito romano). Breve referencia aos direitos portugués e brasileiro

Author(s): A. Santos Justo / Language(s): Spanish / Issue: 02/2013

Keywords: contract; roman law; Portughese; Brazilian; contemporary rights.

The acceptance of the contract (aestimatum), also called modern consignment contract is a legal concept whose origin is lost in the mists of time long and whose importance remains in contemporary rights. Sufficient to state that allows one party to sell things that are not purchased, pay to sell, sell and if they do not return, selling, purchasing a gain which is reflected in the difference between what you pay and what the supplier receives from the buyer.

Understanding Contract under the Law of Lithuania and Other European Countries

Sutarties samprata Lietuvos ir kitų Europos šalių teisėje

Author(s): Asta Dambrauskaitė,Agnė Tikniūtė / Language(s): English / Issue: 4/2011

Keywords: contract; contract theories; juridical act; will; promise; causa; consideration; European Contract Law; PECL; DCFR

Contract theories may be a useful analytical tool for understanding and explaining contract, as well as for facilitating orientation in a complex and often fragmented legal regulation. The article presents main understandings of contract in various European jurisdictions: contract as free assumption of obligation, contract as a bargain based on the idea of consideration, contract as free assumption of obligation based on sufficient causa. The article inquires as to how universal those theories are, what are the recent trends in the development of European contract law, what philosophy of contract underlies the soft law instruments, such as UNIDROIT Principles of International Commercial Contracts or Principles of European Contract Law (PECL), what is the stance of the Draft Common Frame of Reference (DCFR) in regard to the concept of contract. Under the law of Lithuania the definition of contract comprises elements found in several European countries, but it is argued that the new Lithuanian Civil Code has not received any model in its pure form. However it seems that the prevailing view understands contract as juridical act, as freely assumed obligation and meeting of parties’ intentions with the aim to create legal effects. Following the position of soft law instruments in regard to the elements of the contract, Lithuanian law (at least in its statutory form) does not have any explicit additional requirements, such as consideration or causa.

Contract Interpretation: Brief Overview from the Standpoint of International and TransNational Instruments

Тлумачення договору: короткий нарис із наднаціональної і транснаціональної точок зору

Author(s): Bogdan Karnaukh / Language(s): Ukrainian / Issue: 135/2016

Keywords: contract; interpretation of contract; constructive interpretation; will theory; reliance theory; contra proferentem rule;

The role of contract in modern social and economic order can hardly be overestimated. Contract constitutes the legal form of economic exchange and in the same time it is an instrument for self-regulation which is used by agents in the market. Therefore contract bears much resemblance to the state law. Just as the state law, contract provides some obligatory rules which must be followed. And just as the provisions of state law, the terms of a contract are put in words of natural language. Since natural language allows for much ambiguity and polysemy, the problem of finding out the exact meaning of contract terms constitutes an important issue of modern law of contracts.Contract interpretation is a traditional topic within the realm of contract law. That is why the issue is always in the spotlight of researchers’ attention. Amongst contemporary publications the works of Catherine Mitchell, Steve J Cornelius, Lord Justice Lewison and David Hughes address the issue.Paper objective. The main objective of the paper is to figure out the most modern tendencies relating to contract interpretation. This goal is achieved through the analysis of influential international and transnational authorities such as Vienna Convention on Contracts for the International Sale of Goods (CISG),UNIDROIT Principles of International Commercial Contracts (PICC), Principles of European ContractLaw (PECL), Draft Common Frame of Reference (DCFR), Common European Sales Law (CESL).First of all the paper provides a brief overview of two opposite approaches to the interpretation ofcontract, namely objective theory of interpretation and subjective theory of interpretation which are also known as reliance theory and theory of will. The author states pros and cons of each theory and then goes on to analyzing how those two theories are reconciled in PICC, PECL, DCFR, and CESL. Also the author pays attention to different factors which one has to take into account while interpreting the contract. In this context some brief comparative observations are made.The main trend in evolution of modern rules on contract interpretation is that the boundary dividing subjective and objective interpretation is being more and more erased. Those two approaches are now combined in one complex solution of the problem. This solution can be worded as a kind of rebuttable presumption according to which the contract must be construed from the standpoint of hypothetical reasonable persons put in the same factual situation as the parties, unless there are firm evidences that there was an actual mutual intention of the parties to attach the contract some different meaning (i.e. different from the meaning which can be inferred by using the first approach).

The elements of the patrimonial copyright assignment contract (Parties and Scope)

Elementele contractului de transmitere a drepturilor patrimoniale de autor (Părțile și obiectul)

Author(s): Ion Tiganas / Language(s): Romanian / Issue: 1 (46)/2016

Keywords: contract; economic rights; contract parties; parties’ capacity; consent; object of the author´s contract; assignment; license.

The author examines the legal status of the parties to the author´s contract, defines the notions of the “author of the work” and the “copyright owner”, examines the validity of the contract through the legal capacity of the parties and their consent towards the conclusion expressed by the legal act. Also, the author states the object of the author´s contract in terms of legislation and specialized literature, as well analyzes the terms of civil legislation in respect of the object of the author´s contract, namely: it must exist, be determined or determinable, be possible, be legal and in civil circuit.

Some Aspects of the Principle of Relativity Effects of the Contract in the Light of the Romanian New Civil Code

Some Aspects of the Principle of Relativity Effects of the Contract in the Light of the Romanian New Civil Code

Author(s): Manuel Cristian Firică / Language(s): English / Issue: 12/2015

Keywords: contract; relativity; effects; principle; document; third parties; legal relation; new Civil Code;

The paper addresses the issue of the principle of relativity effects of the contract, a principle effective in the legal system of several countries worldwide.Reviewing some aspects of the principle’s origin, we outlined its quintessence, the manner in which the principle of relativity effects of the contract is reflected in the system of contract law as well as the way it is stipulated in the new Romanian Civil Code, as compared to the old Romanian Civil Code, highlighting the similarities as well as the differences between the two documents.

Theoretical and practical – comment – regarding the texts of the new Civil code regarding the contract drafting

Comentariu – teoretic și practic – cu privire la textele noului Cod civil referitoare la formarea contractului

Author(s): Lacrima Bianca Luntraru / Language(s): Romanian / Issue: 02/2013

Keywords: contract; offer and offer acceptance; negotiation; confidentiality; good faith.

This study proposes a thorough and precise examination of the provisions of the present Civil Code regarding the institution of the contract, especially, its drafting mechanism. The objective of our research concerns the reference made to the innovative items, but also a critical view regarding the possible discrepancies existing between the legal text and the judicial practice, respectively the concepts developed by the specialty literature under the pressure of the Civil Code of the year 1864. The approach is based upon a permanent tendency to refer to the comparative law, especially the European law and the great projects of unifying the regulation of the international commercial contracts, UNIDROIT Principles and the Principles of European Contract Law. We notice that one of the basic ideas taken into account by the editors of the Civil Code is that of „unifying” the civil law and the commercial law, by adopting the solutions proposed by other Codes, such as the Swiss or the Italian code. The assembly of the regulations applicable to the mechanism of the contract drafting has to be construed from this perspective. The usefulness is undisputable considering that the distinction cannot be justified at this level in a modern society. Likewise, it is required to specify that in the matter of drafting the contract, the good faith principle was raised to the rank of an „axiological summum”, being present both in the negotiations-related regulations and in the rigorous and detailed provisions of the offer and of its acceptance.

The Conditions Under Which A Creditor Acquires The Right To Terminate The Contract Due To Nonperformance And Restrictions On Disposal Of The Respective Right

Uslovi pod kojima poverilac stiče pravo da raskine ugovor zbog neispunjenja i ograničenja za upotrebu tog prava

Author(s): Katarina Jovičić / Language(s): Serbian / Issue: 1/2015

Keywords: contract; nonperformance of the contract; remedy; demand for termination the contract;

The termination of the contract is a remedy available to each contracting party under the provided conditions in case when the other party does not fulfills contractual obligations. This right is established by law, but also can be provided by the contract itself. The aim which creditor wants to achieve using it is to get free from his contractual obligation and to get things back, to the maximum extent possible, into the position in which they would have been if the performance of the contract has not even started. Having in mind that the termination of the contract is a remedy that affects the contract on the most difficult way, all legal systems provide conditions and restrictions of its use, in order to prevent its misuse. A request that the breach of contract has to be sufficiently serious is the most important restriction in that context, as only severe breach can be a basis for rescind of the contract. Beside that, a right to use that remedy is, as a rule, time-limited, and in some legal systems it depends upon by the possibility to return the debtor what he has already fulfilled in the name of performance of the contract. Predicting specific procedures for realization of the right to terminate the contract, control of fulfillment of mentioned conditions is carried out. So, termination can be exercised only in court proceedings in some legal systems, while in others it is enough if the creditor makes an appropriate statement. Sometimes, termination of the contract comes ex lege.

CONTRACT ON USING COMPUTER RESOURCES OF ANOTHER

УГОВОР О КОРИШЋЕЊУ ТУЂИХ РАЧУНАРСКИХ РЕСУРСА

Author(s): Mihajlo Cvetković / Language(s): Serbian / Issue: 72/2016

Keywords: contract; Internet; performance (praestatio); services; analogy; consumers; pseudo-gratuitous contracts; cloud computing

Contractual relations involving the use of another’s property are quite common. Yet, the use of computer resources of others over the Internet and legal transactions arising thereof certainly diverge from the traditional framework embodied in the special part of contract law dealing with this issue. Modern performance concepts (such as: infrastructure, software or platform as high-tech services) are highly unlikely to be described by the terminology derived from Roman law. The overwhelming novelty of high-tech services obscures the disadvantageous position of contracting parties. In most cases, service providers are global multinational companies which tend to secure their own unjustified privileges and gain by providing lengthy and intricate contracts, often comprising a number of legal documents. General terms and conditions in these service provision contracts are further complicated by the “service level agreement”, rules of conduct and (non)confidentiality guarantees. Without giving the issue a second thought, users easily accept the pre-fabricated offer without reservations, unaware that such a pseudo-gratuitous contract actually conceals a highly lucrative and mutually binding agreement. The author examines the extent to which the legal provisions governing sale of goods and services, lease, loan and commodatum may apply to “cloud computing” contracts, and analyses the scope and advantages of contractual consumer protection, as a relatively new area in contract law. The termination of a service contract between the provider and the user features specific post-contractual obligations which are inherent to an online environment.

AN ASSESSMENT OF THE EMPLOYER’S PROTECTION OBLIGATIONS DURING THE CONTRACT NEGOTIATIONS PROCESS

SÖZLEŞME GÖRÜŞMELERİ SÜRECİNDE İŞVERENİN KORUMA YÜKÜMLÜLÜKLERİ ÜZERİNE BİR DEĞERLENDİRME

Author(s): Atanur KARAAHMETOĞLU / Language(s): Turkish / Issue: 40/2018

Keywords: contract; honesty; confidence; worker; workers’ rights; protection obligations;

One of the basic principles of labor law is the employer’s obligation to protect the worker. The employer is obliged to protect the workers who are involved in the contractual relationship. However, until the establishment of the employment contract, there is a process in which the contract negotiations are held. In this context, the question of whether or not the employer has a protection obligation in this period is brought to the agenda if the candidate of the worker is subject to a loss of right at this stage of contract negotiations. In this direction, article 2 of Turkish Civil Code and article 417 of Turkish Code Obligations have introduced important regulations for the protection obligations of the employer during the contract negotiations process. In addition the question of whether the protective arrangements brought by the Labor Law can be applied during the contract negotiations in case of violation of right rights in addition to this provisions for the protection of the worker.

Choosing between civil contract and employment contract

Choosing between civil contract and employment contract

Author(s): Raluca Dimitriu / Language(s): English / Issue: 4/2018

Keywords: Labour law; civil contract; employment contract; requalification; labour inspection;

The requalification of the civil contract as an employment contract is the work of unlocking its true legal nature, thus removing the improper (or deliberately misleading) terms used by the parties and revealing the true understanding between them. The requalification can be performed by a fiscal control body, as representative of the third party – namely the state – damaged by the non-payment of contributions and fees, according to the true legal nature of the relationship between the parties. The requalification can be performed by a labour control body, which seeks to eliminate the risk of undeclared work and prevents the employer from abusing the worker. Or it can be carried out by the courts themselves, most often at the request of the worker, who seeks to open the way for the benefits deriving from the protective rules of labour law, inaccessible to the worker who concludes a mere civil contract. The current set of regulations on requalification of the employment contract is far from ideal. Therefore, a number of improvements to ensure coherence in the system would be welcome. The paper aims to identify the relation between the current rules in civil law, labour law, and fiscal law and to include some de lege ferenda proposals in order to make the Romanian legislation more prepared to fight against undeclared work, by still observing the parties right to freely contract.

Corrective Justice, Freedom of Contract, and European Contract Law

Corrective Justice, Freedom of Contract, and European Contract Law

Author(s): Szymon Osmola / Language(s): English / Issue: 4/2018

Keywords: corrective justice; freedom of contract; contract law; European Union law

Freedom of contract and corrective justice are considered to be the basic principles gov- erning contract law. However, many contemporary legal orders implement various policy goals into private law. The regulatory private law of the European Union is the most strik- ing example of such a trend. This article aims at reconciling the corrective justice theory of private law and the principle of freedom of contract with the regulatory dimension of the EU law. The main argument is that the meaning of the concept of harm, one that is crucial to the principle of corrective justice, should be understood broadly so that it can transform the corrective justice theory from a monistic one into a pluralistic one.

The legal nature of a real estate leasing contract in the Belgian legal system

Charakter prawny i umowa leasingu nieruchomości w belgijskim systemie prawnym

Author(s): Ryszard Źróbek,Bogdan Statkiewicz / Language(s): Polish / Issue: 1-2/2006

Keywords: real estate;leasing;contract;rent;financial leasing;

This study presents the characteristics of a real estate leasing contract in the Belgian legal system. This system of real estate leasing has been functioning in Belgium since 1969 and there are many aspects of it which could be implemented in Poland. The authors present the way in which this interesting problem has been solved in Belgium, taking into account the fact that the system of civil law in that country, like in Poland, is based on the Napoleonic Code; however, unlike in Poland, it has developed in an unhindered manner in the free market conditions and now it can be treated as an example, or at least to provide guidance, in seeking solutions to similar problems in Polish civil law. The study presents selected features of a real estate leasing contract, especially focusing on the mutual obligations involved. Rent is an important element of a contract. An analysis is made of various types of real estate leasing contracts. In particular, communal leasing is presented, which, considering the shortage of apartments on the communal market, could be an interesting solution and a significant factor in communal real estate management.

Perspectives of the maintenance contract in the context of its regulation in the new Civil Code

Perspectivele contractului de întreţinere în contextul reglementării sale în noul Cod civil

Author(s): Ioan Morariu / Language(s): Romanian / Issue: I/2013

Keywords: contract; institution; legal characters; analysis; civil code; regulation;

Under the condition that the maintenance contract was not a legal and crystallized legal figure, it has defined and finalized its legal profile over time, as legal practice offered an increasingly rich caseload,and the legal doctrine takes over and analysis. The regulation of this type of contract by the new civil code has a consistent impact on the legal institution itself, both from the perspective of the legal characters of the contract, but also from the practical perspective of the effects and that of the way of concluding and carrying out such a contract. Equally, the new regulation opens a fertile field of legal analysis through the intrinsic content of the legal norms introduced, but also leaves enough space for legal exploration and future legislative projections.

Corrective Justice, Freedom of Contract, and the European Contract Law

Corrective Justice, Freedom of Contract, and the European Contract Law

Author(s): Szymon Osmola / Language(s): English / Issue: 1/2019

Keywords: corrective justice; freedom of contract; contract law; European Union law;

Freedom of contract and corrective justice are considered to be the basic principles gov-erning contract law. However, many contemporary legal orders implement various policy goals into private law. The regulatory private law of the European Union is the most strik-ing example of such a trend. This article aims at reconciling the corrective justice theory of private law and the principle of freedom of contract with the regulatory dimension of the EU law. The main argument is that the meaning of the concept of harm, one that is crucial to the principle of corrective justice, should be understood broadly so that it can transform the corrective justice theory from a monistic one into a pluralistic one.

CONSENT OF THE ASSIGNED TO THE ASSIGNMENT OF CONTRACT

CONSENT OF THE ASSIGNED TO THE ASSIGNMENT OF CONTRACT

Author(s): Diana Nicoleta Deaconu-Dascălu / Language(s): English / Issue: III/2015

Keywords: assignment of contract; substitution of parties; the consent of the obligor;

The consent of the assigned represents a condition imposed by the law so that the cession of the contract would operate from one of the initial contractors towards a third, which thus becomes a party of the contract. The present paper debates the judicial nature of the consent and the role it plays within the tripartite operation which defines the new judicial institution of contract assignment.

Currency – The Means by Which the Obligation to Pay the Price in the Sales Contract is Realized. From Leu to Bitcoin

Currency – The Means by Which the Obligation to Pay the Price in the Sales Contract is Realized. From Leu to Bitcoin

Author(s): Daniel Cătălin Chifor / Language(s): English / Issue: VI/2018

Keywords: contract; sale; price; evolution; coin; electronic coin; virtual currency; Leu; bitcoin;

The present study describes the evolution of the national currency as a legal mean of achieving the obligation to pay the price from the moment of its appearance until now. Also, the social evolution and the dynamism of the economic activities made possible the fulfillment of the obligation to pay the price by other means besides the actual remittance of money in the form of banknote or metal coin as a traditional mean. Therefore, the legal regulation of the electronic money as a legal instrument of payment, as well as the emergence of virtual coins/cryptocurrency, allowed the acceleration of the obligation to pay the price. In regards with the realization of the obligation to pay the price under the sales contract, we can see that this is possible by the remittance of a classical coin but also by the remittance of the electronic currency, but it can not be achieved by using the virtual currency due to the specificity of the price that must imperiously consist in a sum of money. However, virtual currency may in fact substitute a currency-payment instrument, recognized by the lawmaker, to achieve the object of the obligation under the legal rules of the exchange contract, thus changing the legal nature of the original contract from the sale contract into an exchange contract.

PROMISING THE DEED OF ANOTHER - APPEARING EXCEPTION FROM THE PRINCIPLE OF RELATIVITY OF THE EFFECTS OF THE CONTRACT

PROMISIUNEA FAPTEI ALTUIA – EXCEPŢIE APARENTĂ DE LA PRINCIPIUL RELATIVITĂŢII EFECTELOR CONTRACTULUI

Author(s): Hristache Trofin / Language(s): Romanian / Issue: 02/2012

Keywords: contract; the relativity of effects; vicarious promise;

Vicarious promise is a new legislative concept, which is not regulated by the Civil Code of 1864. The current Romanian Civil Code establishes the legal regime based on the opinions expressed in doctrine and jurisprudence prior to its entry into force, but comes with some new elements.

UNILATERAL TERMINATION OF A PUBLIC CONTRACT

UNILATERAL TERMINATION OF A PUBLIC CONTRACT

Author(s): Jovana Tomić / Language(s): English / Issue: 32/2021

Keywords: termination of a contract; public contract; public and private law; public-private partnership

Public contract is a special type of administrative contract to which the rules of the law of obligations apply accordingly or in a subsidiary manner. This contract represents the basis of all public procurements, public private partnerships, and, in certain form, concessions. Due to its specific legal nature, which is a consequence of the application of norms of both public and private law to this type of contract, it is called „hybrid“ or sui generis contract. The combination of the application of the norms of public and private law is seen, also, in the example of regulating the termination of a public contract. In the European Union law, the unilateral termination of a public contract is mostly regulated in the public law, while unilateral termination of a public contract in the Serbian law is usually done in accordance with the rules of the private law (law of obligations). However, due to the harmonisation of the Serbian law with that of the European Union, public law elements have been introduced into the contractual relationship between the public and private partners, which is reflected, also, in the issue of termination of public contract. The aim of this paper is to stress the ambiguities that may arise on the occasion of a unilateral termination of a public contract in cases when there are no detailed provisions in the public contract itself on unilateral termination, as well as to contribute to eliminating legal uncertainty in this area through interpretation of the positive law.

Reception of Contract Group Theory in European Contract Law

Reception of Contract Group Theory in European Contract Law

Author(s): Gina Orga Dumitriu / Language(s): English / Issue: 1/2022

Keywords: contract chain; linked contracts; direct action; competent jurisdiction; applicable law; autonomous qualification; ancillary contracts;

The relationship between the contract group theory and the principle of the relative effect of conventions is, in the civil law of obligations, an actual Strait of the Danaids. Developed in French doctrine, the theoretical construction of contract groups is seductive and, above all, controversial. Recognized as a legal reality only in French, Belgian and Luxembourg law, the formula of contract groups remains for other national legislators only an economic reality whose challenges are most often manifested, in legal terms, regarding the nature of liability between the group's partners, respectively the contractual or delictual nature of the direct action of the subacquirer against the original producer-seller of the goods. The study begins with the description of the contract group categories popularized by Prof. Bernard Teyssié, who differentiated between i) chains of contracts with linear (homogeneous and heterogeneous) structure or with radiant structure and ii) contractual (interdependent and divisible) sets (I). Subsequently, with specific reference to direct action in international chains of contracts, we will proceed to analyze the determination of judicial competence in case of i) the absence or existence of a clause conferring jurisdiction or ii) by applying the rules established by the Brussels Convention of 27th September 1968, respectively Brussels I and Brussels I bis (II) Regulation and legislative competence with regard to the law applicable to (i) the action arising from a transferring ownership chain, respectively (ii) the action arising from a non-transferring ownership chain (III). Finally, we will identify the contract group approach in i) the jurisprudence of the Court of Justice of the European Union (CJEU), more precisely the refusal of the contractual qualification of direct action from the well-known Jakob Handte and in ii) consumer directives, respectively in European contract law instruments, such as Draft Common Frame of Reference (DCFR) and optional sales instrument (IV).

Forwarding Contract, Contract on the Carriage of Goods, Contract on Operating a Means of Transportation

Forwarding Contract, Contract on the Carriage of Goods, Contract on Operating a Means of Transportation

Author(s): Petr Bohata,Karel Marek / Language(s): English / Issue: 2/2022

The development of trade in the modern economy has brought about an increased importance of transport. Multiplication of means of transportation and the quantity of goods transported has led to the fact that contracts governing the area of transport have become, especially since the beginning of the 21st century, the most common and widely used ones. The frequently used one is contract on the carriage of goods, forwarding contract and often also contract on operating a means of transportation. In practice there are often situations when more than one of the aforementioned contracts is used for carriage in one “business case” (e.g. a forwarding contract and a contract on the carriage of goods), although comprehensive logistic solutions either under a forwarding contract or under an innominate contract have lately been increasingly required by contracting parties.