Of Berk, again
O Berku, opet
Keywords: Edmund Burke;
Answer on article "Burke, democracy and nationalism" from "New serbian political thought".
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Keywords: Edmund Burke;
Answer on article "Burke, democracy and nationalism" from "New serbian political thought".
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Keywords: Privatisation; Stockholders
Problems of privatisation in Serbia.
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Keywords: privatization; stockholders; Šinvoz;
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Keywords: workers; Serbia; government;
Workers accused for government's mistakes in Serbia.
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Keywords: contracts; contracts law; management; management agreement; operator; owner; management fee
This paper examines management agreements with the aim to determine their subject, legal nature and characteristics, rights and obligations of the contract parties, as well as advantages and disadvantages of implementing the particular contract compared to contracts that produce similar economic effects. For that purpose similarities and differences with licence and franchising agreements, contracts on technical assistance or advisory services and so called enterprising contracts known to some national laws are analysed, with the special focus on the domestic legal regulations. The main rights and obligations of contract parties are also analysed in detail and some sensitive negotiating aspects are pointed out. Results that ensued have helped to determine potential advantages and disadvantages of negotiating management agreements both for operators and for owners.
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Keywords: privatization; Serbia;
Problems of privatization in Serbia.
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Keywords: Privatization; Serbia
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Keywords: government; privatization; corruption;
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Keywords: European Union; consumers; distance contracts; offpremises contracts; Directive 2011/83/EU; Directive on alternative dispute resolution for consumer disputes (Directive on consumer ADR);
The aim of this paper is to present consumer protection in Croatia with special emphasis on distance and off-premises contracts. The focus in this paper is on a rather narrow, but extremely important field of consumer protection. Namely, it depicts situations in which consumer is unprepared and unable to reconsider a purchase of a certain product or service. In the first part of the paper a brief overview of the development of consumer protection in Croatia is presented, from the Stabilization and Association Agreement in 2001 until the present. Then, in the second part of the paper novelties which were brought to the „new“ Consumer protection Act by the implementation of Directive 2011/83/EU on consumer rights, in the manner that regulation of distance contracts are presented prior to the regulation of off-premises contracts. In the third part of the paper establishment of out-of-court resolution of consumer disputes according to Directive on alternative dispute resolution for consumer disputes (Directive on consumer ADR) and Regulation on online dispute resolution for consumer disputes (Regulation on consumer ODR) are presented. Solutions which could enable simplified and efficient resolution of both national and cross-border disputes within a system of alternative dispute resolution for consumer disputes originating from distance and off-premises contracts are analysed and a critical consideration of their implementation in Croatian consumer protection legislation is carried out.
More...Keywords: the CISG; the international sale of goods; the application of the Convention; the interpretation of the Convention;
The article discusses the importance and scope of the UN Convention on Contracts for the International Sale of Goods (Vienna Convention) and its contribution to the unification of the Law of international sale of goods. Although it does not regulate all matters relating to international sale of goods, the Vienna Convention is undoubtedly the most frequently used source of law for contracts for the international sale of goods. Containing substantive rules to regulate this, the most common, legal operation in international business, the CISG, 30 years after being signed, confirms its successful implementation throughout the world. The paper analyses parts of the Vienna Convention, as chapters of this article, through the prism of the views of leading international scientists, which were presented at the International Conference held at the University of Belgrade Faculty of Law in November 2010. The paper underlines current and outstanding issues regarding the application and interpretation of the CISG, and the solutions to these problems proposed by different authors. This article pays particular attention to issues of content and conclusion of the sales contracts, lack of conformity of delivered goods, and remedies for non-performance of the contract and the exclusion of contractual liability. In addition, the paper analyses the advantages and disadvantages of international conventions as a source of uniform rules governing contracts for the international sale of goods, as well as the relation of the Vienna Convention and other (especially newer) instruments of unification, which may be applied to regulate this most common legal operation in international business.
More...Keywords: administrative contracts; GAPA; Western Balkans
Administrative contract, as well as specific legal institut, draws the attention of theoreticians of administrative law for more than a century. For them, it is that they are “formally” recognized by the courts, or in special substantive laws or Generally Administrative procedural Act (GAPA), we can find in almost all Euro-continental legal systems. In the former Yugoslav theory, in conjunction with the institute of administrative contracts are continuously guided serious discussions since the sixties of the 20th century. However, at several last years, we can see the intention and tendecy that the administrative contracts have to be generally defined by GAPA. Today, all countries of the Western Balkans, except Bosnia and Herzegovina, have in new GAPA a special section that regulates this institute and its specific legal regime. However, the ways in which they are formulated and regulated depend on specifics of the legal system in each of these countries. In this paper, we gave the comparative archive and analyze legal norms relating to administrative contracts in new GAPA in Croatia, Montenegro, Macedonia, Albania and Serbia, with basic similarities and differences in thair existing legal regimes.
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Keywords: iustum pretium; laesio enormis; bona fides; Roman law; ius commune; fair price; consumer protection; unfair contract clauses;
In this paper, without going into detailed theoretical considerations, we gave only the main development of thoughts about iustum pretium, as well as the outline of different methods of its realization through history, until today. The main problem is how to ensure the principle of equality between the contracting parties whose position is often unequal due to their different circumstances. The demand for equality of contracting parties in business relations and their mutual obligations (equivalence) was laid down by Aristotle in the early IV century B. C. Later the praetors have developed these principles, and they got their own further elaboration by pre-classical and classical roman jurists. Despite the fact that from the period of the Republic there already existed some sort of price control, mainly because of social reasons, the main rule was — that the price is just, if there is no lack of will one of the contractual parts: dolus, metus, error, or lack of experience in case of a person younger than twenty-five (minor), or women. They have considered in the first place the principle of bona fides in business relations. In modern theory, this concept is known as the subjective theory of the just price. In the post-classical period, due to special needs of poor small land-owners (in the period of Diocletian or Justinian) the seller of the land, who did not get even a half price of the value of a land sold, ewoyed protection even without its consideration and proving the lack of the will. Although there are only two provisions in Justinian's code about it, this rule, which was called laesio enormis in the Middle Ages (and founded the so-called, objective theory of just price), thanks to canon law mainly, with a lot of discussion in the Middle-Ages in theory and different solutions in practice, ius commune is accepted as a general rule. Modern codifications accepted in the first place the subjective theory about the just price. Somewhere in the sense of usury contracts (like in German BGB), or in combination with laesio enormis (for example, Code civil, ABGB, our Law of obligations), but only exceptionally, laesio enormis is accepted also in the objective sense (like in former Serbian Civil Code, and Hungarian Ptk.). We can say that today there is a tendency of wider interpretation of the bona fides in practice when solving the question of equality of values, all with the aim of weaker party protection, usually the consumer. Council Directive 93/13 EEC protects the consumer with a new, objective rule: the prohibition of one-sided unfair contract clauses: if the clause harms the consumer, neglects the bona fides requirements and if it results in considerable inequality in the rights and obligations of the contracting parties. A clause like that does not oblige the consumer. There is a tendency to apply this rule to all contracts, which means also on non-consumer contracts.
More...Keywords: Nominate contracts; Innominate contracts; Joined contracts; Mixed contracts; Theory of absorption;
This paper discusses the problems that arise in the present-day Law of Obligations, in connection with the classification of contracts into nominate and innominate contracts. The analysis contains a theoretical examination of the said contracts, their sub-types (linked, joined, mixed and atypical), their qualification and interpretation, the conflict of laws in the domain of contracts, particularly in view of public policy. Without referring to the classic institutions of obligation, i.e. contractual law, it is difficult or even impossible to understand the changing nature of contractual relations in our times, especially because they seem to be taking on completely new forms. What appear to be quite new forms of innominate contracts, often on the very boundaries of public policy (public order),fair dealings, and prohibited contracts impose the need for a thorough and theoretical re-examination of the old classification of contracts into nominate and innominate. In fact, those modern, apparently, completely new contracts can be reduced to a kind of sub-type, which is between classic nominate and innominate contracts. This premiss could have significant, practical consequences because the legal life of such a contract will largely depend on the application of one or the other theory, e.g. the theory of absorption or the theory of combination, with the possibility of relativising clear-cut types of contracts (e.g. the theory of absorption with certain specificities). It goes without saying that all of this, significantly eases the practical understanding and treatment of such contracts, especially from the viewpoint of the basic and, in a certain sense, most important question -- their permissibility.
More...Keywords: consumer protection; Consumer Protection Act 2014; Directive on Consumer Rights
Pravo zaštite potrošača kao slabije strane u tržišnom odnosu razvija se u hrvatskom pravnom poretku veoma intenzivno posljednjih 10-ak godina, posebno zbog obveze Hrvatske da svoje pravo i u ovom području uskladi s pravnom stečevinom EU. Pri tome se Hrvatska opredijelila za sustav posebnog zakona o zaštiti potrošača koji obuhvaća najveći dio potrošačkog prava, no složenost i opsežnost EU potrošačkog acquis-a uvjetovala je da neke odredbe o zaštiti potrošača budu uvrštene u druge normativne akte, posebno u Zakon o obveznim odnosima, ali i u sektorske propise kao što je Zakon o potrošačkom kreditiranju, Zakon o sigurnosti proizvoda, Zakon o kreditnim institucijama, Zakon o leasingu, Zakon o informiranju potrošača o hrani, itd. U aprilu 2014. godine stupio je na snagu treći Zakon o zaštiti potrošača čija je temeljna svrha bila uskladiti hrvatsko pravo s odredbama Direktive o pravima potrošača, te otkloniti određene nedostatke Zakona o zaštiti potrošača iz 2009. godine. U radu se analizira koliko je novi Zakon uspio udovoljiti ovim zahtjevima, a posebno koliko je intervencija u neke postupovne i druge zaštitne instrumente uspješan prilog efikasnijoj zaštiti proklamiranih potrošačkih prava u praksi. Ukazuje se i na problem nedovoljne usklađenosti posebnih propisa s pravilima Zakona o zaštiti potrošača, te potrebu da se sva pravila potrošačkog prava tumače u svjetlu ciljeva europskih direktiva iz kojih su preuzeta, kao i u skladu s praksom Suda pravde Europske unije.
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Keywords: bareboat charter; sea going vessels; employment contracts; continental law; common law; comparative analysis;
The paper analyses the legal system of bareboat charter in Italian, French, English and American law. First, the position of bareboat charter in the systematization of the contracts of employment of sea going vessels within the above countries’ law systems will be determined. Legal solutions are examined through the analysis of the terminology of bareboat charter. The rights and obligations of the parties to the contract are listed, as well their contractual liability related thereto. Other specific provisions of the legal sources for bareboat charter of these countries are identified, e.g. the form and termination of bareboat charter. In conclusion, the similarities and differences of the observed law and legal systems regarding bareboat charter are determined. The analysis identifies specific solutions, whose differences are especially conspicuous when it comes to the legal system of bareboat charter in continental law and Common law.
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Keywords: shipbuilding contract; shipyard’s obligations; ship buyer’s obligations; ship classification society;
Construction of a vessel (shipbuilding) is a very complex project, not only from technical point of view but also from legal and financial point of view. Every shipbuilding project involves a number of areas of law (civil law, maritime law, corporate law, law of financing, insurance law) and different governing laws (law of contract, law of the vessel’s flag, law governing insurances, governing law of supply contracts, classification rules, international laws and conventions). The author writes about certain legal aspects of shipbuilding and delivery of a vessel taking into consideration Croatian and English legal aspects of shipbuilding in Croatian and international shipyards. Although the topic is very complex, the author is setting out some of the most essential provisions of a shipbuilding contract, fundamental rights and obligations of the contract parties, effects of breaches of contractual obligations, legal aspects of vessel’s delivery, the role of classification societies.
More...![Sale of Ship - Deception of the buyer : [case review]](/api/image/getissuecoverimage?id=picture_2006_45792.jpg)
Keywords: case review; sale of ship; deception of buyer; misleading informations; compensation of loss;
Provision of misleading information about the year of construction for a ship being sold represents deception of the buyer. The party which entered into the sale contract through deception by other party has the right to request compensation of the sustained loss.
More...Keywords: sale of goods; breach of contract; Vienna convention; the general ground for termination the contract due to its non-performance; concept of fundamental breach of contract
The notion of child labour is well determined by relevant international instruments and it can be said that it is theoretically unquestionable. In practice, however, there are various concerns about how to distinguish legal child work from illegal child labour. Sexual exploitation of children, as well as trafficking in children for further exploitation, are still reality in many countries of the world, although they are characterized as the worst forms of child abuse and incriminated as criminal offenses. In addition, a large share of child labour falls under labour in agriculture and household work – these are forms that are very difficult to perceive, and in some cultures and traditions are practically allowed, regardless of the existing legal prohibitions. There are also different strategies which countries are developing to approach the problem of child labour. The aim of the research is to show that the theoretical framework of the content of child labour is undisputed and that it allows clear distinction of child work from child labour. Also, by examining content and scope of basic legal institutes it can be concluded how an effective system for protecting children from labour exploitation and other forms of illicit engagement should potentially look like.
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Keywords: disclosure duty; risk; precontractual duty; circumstances; insurance; breach; sanctions
In this paper, the author considers issues related to the pre-contractual obligation of the insurance policyholder to report to the insurer circumstances significant for the risk assessment. The aim of this paper is to compare the provisions of the The Law on Contract and Torts (LCT), proposals for changes in Serbian law envisaged in the Preliminary Draft of the Civil Code of the Republic of Serbia with solutions from comparative law and the provisions of the Principles of European Insurance Contract Law (PEICL). The analysis showed that it is necessary to update the solutions from the LCT and that the proposed changes, in terms of special rules regarding the obligation to report circumstances relevant to risk assessment to the insurer, are largely in line with modern solutions in comparative law and PEICL. The author points out that the proposed solutions can be supplemented and improved.
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