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This paper provides an analysis of the rules of consumer sales guarantees in polish civil law, which evolved under the influence of the Consumer Sales Directive. Implementation of the Consumer Sales Directive in the area of guarantees didn’t have a positive effect in Poland. Before the implementation, polish legal system offered advanced system of rules on consumer sales guarantees. Introducing the directive has resulted in lowering the level of consumer protection in this scope.
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Changed circumstances between conclusion of a contract and the time foreseen for performance may render performance much more burdensome for the debtor. The approaches in Civil law and in Common law differ fundamentally as to whether the debtor may be relieved from his obligation to perform or, as it is the case for general principles of contract law, as to a right to renegotiate the contract. In Civil law, the question of changed circumstances and their impact on a promise has crystalized around the doctrine of clausula rebus sic stantibus, which was initially understood as an implied precondition. In Common law, hardship would have no impact on the duty to perform, unless it amounts to frustration of contract. This article presents the historical roots of both approaches and shows the fundamental differences between them.
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X is a small producer of plastic products from China. Searching on internet for suppliers of plastic raw materials X found Y, a supplier based in the United States, offering these materials at a very favourable price. X and Y entered into sale contract under Cost, Insurance, and Freight (CIF) terms. Following CIF terms, payment was to be made by letter of credit. Y shipped the goods in a container and delivered for carriage within the agreed time. Carrier then inserted a ‘’said to contain’’ clause into the bill of lading, and the bank accepted such document. When X opened container it discovered that the goods were in such bad condition that they could not be used in the manufacturing process. X contacted Y, by email, and demanded delivery of substitute goods, which would conform to the contract. Y refused, claiming that the goods were delivered for carriage in good condition. Y could not be reached by telephone, and its address stated on its website was wrong. X had no redress against the Carrier, because the Carrier validly excluded its liability with a ‘’said to contain’’ clause. The Bank was also not liable, because this clause was acceptable under the letter of credit rules. X contacted a lawyer in the United States, and after receiving an estimate of attorney expenses, which would not be recoverable under the U.S. law, X decided to give up the case and bear the loss.
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The Italian Navigation Code has transposed the practices developed at international level, in particular in international contracts for the ‘’locazione’’ and‘’noleggio’’ of ships, distinguishing between the ship lease, from the one side, and the charter, from the other. The latter, in particular, consists of voyage charter and time charter. However, the Italian discipline differs in several respects from the contract types developed at international level.As for pleasure vessels, a specific regime lacked until the Law of 11 February1971, No 50. The great development of this sector (which was previously considered limited to the use of pleasure vessels only for personal purposes), in particular of the entrepreneurial use of these vessels, furthered the draft and enactment, in2005, of the Pleasure Navigation Code (Law of 18 July 2005, No 171), providing for a more comprehensive regime, however still not covering all the issues and aspects of pleasure navigation.The Code provides for a special regime of the contracts for the lease and charter of pleasure vessels: this article provides a review of the regime of these contracts provided by the Italian Pleasure Navigation Code, with regard also to its relationship with the Navigation Code and the Civil Code. The Code’s provisions are also examined with reference to standard contracts developed at the international level.
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Review of: D. Bolanča, Prometno pravo Republike Hrvatske: Split : Pravni fakultet, 2016
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Translation of the document (international law instrument)
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The EDI-CMR Protocol of 2008 entered into force in 2011. So far 9 states have become parties to it, Croatia not being among them. Compared to 55 states parties to the original document, the CMR Convention of 1956, this is certainly a modest number. The reason for such reluctance in accepting this new and modern international instrument is certainly not to be found in its content. The EDI-CMR Protocol of 2008 relies on two major principles: technological neutrality that ascertains that legal rules apply equally, not withstanding the technology used; and functional equality, whereby transport documents issued on paper and in the electronic mode have the same legal treatment. The EDI-CMR Protocol of 2008 does not impose any obligation with respect to the use of electronic consignment note. Quite to the contrary, it only gives the basic legal framework for the use of such a document, in case parties to the contract of carriage wish to use such technology, avoiding therefore the possibilities of divergent legal regimes and solutions in different countries. The basic practical prerequisite for the use of the electronic consignment note is the same technological platform used by the parties to the contract of carriage of goods, which is basically reserved for large companies with steady business relationship. Countries ratifying the EDI-CMR Protocol of 2008 will, therefore, not impose any new obligation on their road freight carriers; they will only give a new incentive and legal certainty to the best among them that are able to compete more safely on a new level of e-commerce and e-transport either within the single market, or internationally. It is hence largely advisable for Croatia to ratify this new and modern instrument in the field of international road transport law.
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The author of this paper points to the legal principles of safe and environmentally sound recycling of ships with regard to the solutions of European legal origins. Presenting the modalities of systematic efforts to protect human health and the marine environment from negative effects of recycling old ships on the beaches of third countries, the International Convention for the Safe and Environmentally Sound Recycling of Ships – Hong Kong (2009) exercised a direct impact on the EU efforts to achieve a unilateral approach to a safer and environmentally friendly recycling of ships flying the flag of a Member State. Therefore, the emphasis was placed on the legal analysis of Regulation (EU) No 1257/2013 of the European Parliament and of the Council of 20 November 2013 on ship recycling in relation to the requirements for ships of the Member States, and in relation to specific solutions regarding the requirements for ships flying the flag of a third country when calling at a port or anchorage of a Member State. Discussing the effects of the high standards of ship recycling to an increase in the operating costs, the author concludes that the increase in environmentally friendly standards of the safety of navigation and the safety of environment will unquestionably require a fast and an efficient adjustment of the shipowners to new legal standards and operating costs. Analyzing ecological and economic perspectives on the impact and effects of the ship recycling industry on the shipping market, the author points out that unilateral approach at the European level– Regulation (EU) No 1257/2013 – is compulsory and entirely directly applicable in the Member States of the EU; this, considering the international nature of the problem of safe and environmentally friendly ship recycling, requires achieving international uniformity.
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Concessions rise very sensitive political, economic and legal issues in many countries worldwide. Even defining the term ‘’concession’’ can be a complicated and not very straightforward exercise. OECD accepted definition of a concession as: “a grant to a private firm of the right to operate a defined infrastructure service and to receive revenues deriving from it. The concessionaire takes possession of the relevant assets (but ownership usually remains with the government) and uses them to provide the relevant product or service according to the terms of the contract.’’Croatian law defines concession generally as a right acquired pursuant to a concession contract subject to terms set out in the decision on concession (granted by a relevant authority) and, in respect of maritime domain, more specifically, as a right (of the Government authority) to exclude a part of maritime domain from the public use, either partly or completely, and to grant it to individuals or corporations for their commercial use subject to the relevant area planning. Buildings and other units erected on a maritime domain form its integral part.The law makes it clear that no property rights can be created on any part of maritime domain including buildings and units erected thereon. Projects developed on maritime domain often include large infrastructure projects,development of ports and marinas which require substantial financing. Banks that provide financing to such projects require organized and transparent concession laws and regulations, freedom of contract, legal protection of all parties involved (including a possibility of international arbitration). Projects of that kind are normally financed through project finance scheme which requires high level of capital and involves a substantial number of participants such as banks, contractors, investors, project managers, service suppliers, public sector, etc. Project finance scheme depends entirely on income generated by the project itself which income is the only source of repayment of financing and on ‘’the availability of reliable security instruments on the assets and cash flow of the concessionaire in favour of lenders,including ‘step-in’ rights and the possibility of government financial support or the guarantee by the contracting authority of proper fulfilment of its obligations. ’’The purpose of having security instruments (including assignment of concessionaire’s rights under the project contracts) for the concessionaire’s loan obligations, is that in the event of the concessionaire’s default the bank can ‘’step-in’’ and take full control over the project (instead of enforcing the securities) and make sure that the project is completed.That is why the project contracts, including concession contract in the first place, are of paramount importance for the banks. Normally, the security instruments on the concessionaire’s assets do not include mortgage on the project buildings and other units developed on the maritime domain. Croatian law does not allow for creation of a mortgage on maritime domain. That, however,is not an obstacle for the banks to provide financing for projects developed on maritime domain. From project finance banks’ point of view it is not necessary to change the law in order to allow creation of mortgage on maritime domain. Other security instruments created in favour of the banks providing project finance, including direct agreements, are normally sufficient for the banks to control the project.
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There is an issue that has been neglected by all leading texts on the documentary credits: deficiencies in the Uniform Customs and Practices on Documentary Credits (UCP) provisions regarding transport documents. This text will attempt to demonstrate that the UCP600 definition of ‘’clean’’ bill of lading and the effect given to the ‘’said to contain’’ type of clauses involve two controversies: they contravene the corresponding provisions of the legal regime governing carriage of goods by sea and they may also contribute to documentary fraud. The primary objective of this paper is to highlight the potential problems that may arise from the UCP in light of the risk of documentary fraud arising from those discrepancies and will propose solutions of those problems. The paper will conclude by taking a stance regarding the need to regulate fraud in the next revision of the UCP.
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This paper analyses all the established boundaries of submarine areas in the Adriatic, as well as those that are yet to be defined, especially in the context of the recent exploring and exploiting of its natural resources. In addition to Croatia and Italy that share the largest proportion of the seabed and subsoil in the Adriatic, Montenegro and Albania are also entitled to their own continental shelves. Two Adriatic states with the shortest coastlines – Slovenia and Bosnia and Herzegovina are geographically disadvantaged states, and cannot have their own continental shelves as a natural prolongation of their land territory. Therefore, the submarine areas of those countries terminate on the outer limit of their territorial sea. Aside from the consideration of these boundaries and continental shelf boundaries established by the agreements between the Adriatic states, the authors also critically examine Slovenia’s unilateral acts on the proclamation of the continental shelf of 2005, which have no basis in the international law. This paper focuses on the consideration of the existing continental shelf boundary that divides the submarine areas between Croatia and Italy, as the future boundary of their superjacent waters. In accordance with the United Nations Convention on the Law of the Sea, this boundary line should become a single maritime boundary of their continental shelves and exclusive economic zones (that is, the ecological protection zone of Italy and the ecological and fisheries protection zone of the Republic of Croatia). Such a single all-purpose boundary is in the best interest of legal certainty in all uses of the sea. In the recent decades, it has completely replaced various delimitation lines for several maritime zones in the same maritime area, in the practice of international courts and tribunals. With respect to the results of the recently conducted explorations of potential oil and gas fields in the southern Adriatic, the paper also draws attention to the necessity of drawing the line of the lateral boundary of the continental shelf between Croatia and Montenegro, as soon as possible. The authors analyze the possible directions of the new boundary, taking into account that the temporary line, determined by the Protocol between the Government of the Republic of Croatia and the Federal Government of the Federal Republic of Yugoslavia on temporary border regime along the southern border between the two states in 2002, deviates significantly from the equidistance line.
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IN MEMORIAM : Professor Vinko Hlača (1932-2015)
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Conforme aux prévisions légales en matière, en ce qui concerne les clauses abusive de contractes entre les professionnels et consommateurs, l’instance de jugement, dans le cas de constatation l’existence des clauses abusive dans le contrat, oblige le professionnel da modifier toutes les contrats d’adhésion en cours d’exécution et d’éliminer les clauses abusives de des contrats pre-formulés, destines à être utilise dans l’activité professionnelle. Cette règlementation a été contestée à Courte Constitutionnelle sous soi-disant transgression du principe de séparation et de l’équilibre des pouvoirs dans l’État, mais, l’instance de contentieux constitutionnel a constaté la conformément de celle-ci avec la Lois fondamentale. Dans cet article, nous rendrons sur certains aspects lies à l’évolution législative en matière et les uns considérants de la Courte Constitutionnelle par lesquelles on a statue que l’instance de jugement est l’unique autorité qui se prononce sur l’existence ou inexistence des clauses abusives dans un contrat, l’aspect qui ne contrevient au principe de la séparation et du l’équilibre des pouvoirs dans l’État.
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This article examines land reform attempts in the early Turkish Republic (1923-1945). The first part of the article deals with the processes of commercialization of agriculture in the 19th-century Ottoman Empire and addresses the question whether commercialization significantly altered land tenure. The articles then moves on to the 1930s, which, for most scholars, was the decade when singleparty government’s interest in land reform began in earnest. This part examines legislative initiatives of pre-1945 period with an eye to unearthing government’s purpose in advocating tenurial reform. These initiatives include Settlement Law of 1934, reform bills drafted in 1935-1937 and the constitutional amendment of 1937, which brought a new rule on the confiscation of land. The last and longest part of the article examines Law for Providing Land to Farmers of 1945 in relation to 1930s’ attempts on the one hand and the experiences of World War II on the other.
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