Law Commons^™

The Criterion Of The Apparent Mismatch Between The Specific Performance Cost Incurred By The Debtor And The Interest Gained By The Creditor As An Impediment For The Specific Performance Of The Obligation In The French Law, Yousef Shandi

Journal of the Arab American University مجلة الجامعة العربية الامريكية للبحوث

This paper dealt with the specific performance of the contractual obligations under the Articles (1221 and 1222) of the French civil law as introduced by (Decree 2016 – 131, dated 10/2/2016 amending the contract law, general provisions and evidence). These Articles reinforce the general rule in contracts, i.e. the contractual obligation shall in principle be specifically performed. However, Article (1221) introduces an important exception to this rule. The judge may refuse specific performance requested by the creditor, if there is "an apparent mismatch between specific performance cost incurred by the debtor and the interest gained by the creditor thereof." This …

Contract, Status And The Bonds Of Welfare, Kenneth Veitch

Emancipations: A Journal of Critical Social Analysis

This article explores the relationship between contract and status in the context of contemporary social policy. Using examples of contract in the areas of unemployment policy (what is here called the workfare contract) and what has become known as the financialisation of the welfare state (Social Impact Bonds), the article identifies the types of bonds and obligations involved in those contracts and their sources. Drawing critically on Émile Durkheim and Max Weber’s work on the history and pre-history of contract, it is argued that issues of status – the status of the unemployed and capital, amongst others – lie at …

Nature, Types, And Effects Of Agency Under The English Law: A Comparative Study, Younis Salah Eddin Ali Dr.

مجلة جامعة الإمارات للبحوث القانونية UAEU LAW JOURNAL

The agency is considered as one of the legal systems contained in the English common law, which is based on the customary rules and judicial precedents of the English courts. And depended, to a limited extent, on the legislations enacted later. This means that it is one of the legal systems which is characterized by its customary and judicial origins. It is worth-mentioning that the nature of the agency in the English law differs according to whether the agent enjoys the required contractual capacity or not. If he or she does so, it can be regarded as an agreement concluded …

Pelaksanaan Perjanjian Akibat Terjadinya Wanprestasi Karena Pandemi Covid-19: Studi Perbandingan Di Indonesia Dan Malaysia, Nadya Aurelia Salsabila

Lex Patrimonium

The Covid-19 pandemic has had a significant impact on various aspects of people’s lives, one of which is the existence of contracts whose implementation has been disrupted because there are some of parties who cannot fulfill their achievements or contractual obligations by postulating the Covid-19 pandemic as a category of force majeure. This research discusses the implementation of contracts due to defaults due to the Covid-19 pandemic in Indonesia and Malaysia. The method used is normative juridical by examining laws and regulations and court decisions in the two countries which are the focus of comparison in this research. The conclusion …

Nature, Types, And Effects Of Agency Under The English Law: A Comparative Study, Younis Salah Eddin Ali Dr.

UAEU Law Journal

The agency is considered as one of the legal systems contained in the English common law, which is based on the customary rules and judicial precedents of the English courts. And depended, to a limited extent, on the legislations enacted later. This means that it is one of the legal systems which is characterized by its customary and judicial origins. It is worth-mentioning that the nature of the agency in the English law differs according to whether the agent enjoys the required contractual capacity or not. If he or she does so, it can be regarded as an agreement concluded …

Who Thinks Treaties Are Like Contracts? Not John Marshall, David P. Stewart, Diana A. A. Reisman

American University International Law Review

Courts in the United States are fond of analogizing treaties to contracts. The U.S. Supreme Court has done so on numerous occasions, as have nearly all federal circuit courts. Indeed, the treaty-as-contract trope has permeated U.S. legal discourse since at least the early 1800s when Chief Justice John Marshall wrote in Foster v. Neilson that “[a] treaty is in its nature a contract between two nations, not a legislative act.”

Pengakhiran Kontrak Sebelum Terjadi Wanprestasi Oleh Pihak Yang Mengantisipasi Kegagalan Pelaksanaan Kewajiban, M. Hillman Mehaga S

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Termination of an agreement/contract in a situation where a party has known that he/she/it will not be able to perform its obligation(s) based on the agreement/contract to avoid the occurrence of the larger losses if the agreement/contract is still ongoing. Under Indonesian civil law, a defaulting party or a party who has anticipated that he/she/it will fail to meet obligation(s) does not have the right to file a claim to terminate an agreement/contract. This means that, this party can only be passive until the default actually happens and wait until the non-defaulting party to file the claim with the claim …

Good Faith In Contract Drafting Stage: A Study In Light Of French, Emirati, And Moroccan Laws, Dr. Ahmed Ed-Drari

مجلة جامعة الإمارات للبحوث القانونية UAEU LAW JOURNAL

This study deals with discussing the general duty of good faith as it establishes the criteria for practicing a reasonable manner of freedom within a framework that does not override the legality of what is imposed by the social system.

There is no doubt that the position of the French legislator who codified what was settled by the French judiciary under the civil law of 1804, so that it stipulated the validity of goodwill in all four stages of the contract, starting from its negotiation, conclusion, implementation, and after its end, as it is considered a restriction on behavior that …

A Legal-Comparison Of The India Software Law And The Software Law Of Germany, Thomas E. Soebbing

Indian Journal of Law and Technology

India has emerged as one of the leading destinations for offshore outsourcing in the software industry and has attracted the attention of software industries of several countries including Germany. In order to sustain this outsourcing relationship, the legal frameworks of these countries play a very important role. In this article, the author conducts a comparative analysis of Indian and German laws that impact the software industry, mainly dealing with three fields: first, Copyright Law impacting the protection of intellectual rights over software; second, Contract Law specifically dealing with software contracts and nature of such transactions and, finally, the remedies available …

Contract Law—Conspicuous Arbitration Agreements In Online Contracts: Contradictions And Challenges In The Uber Cases, Matthew Hoffman

University of Arkansas at Little Rock Law Review

No abstract provided.

If The Government Says So, It Must Be Right: An Analysis On The Impact Of Government Issued Force Majeure Certificates, Verónica Orantes

University of Miami Inter-American Law Review

In March 2020, the world came to a halt with the beginning of the Covid–19 pandemic. The pandemic’s worldwide im-pact resulted in endless business transactions becoming im-possible or impracticable to perform. The China Council for the Promotion of International Trade issued force majeure certificates for its national business parties to excuse their performance under cross–border transactions. This note explores how the excuses for the performance of a contract work under Common Law and Civil Law systems and how each system would react to the parties invoking force majeure under a force majeure certificate issued by a government agency.

Marketing Research And Children’S Consumer Privacy Rights: A Battle In The Digital Age, Hadley Johnson

Child and Family Law Journal

Advancements in technology and social media have led to a decreased level of personal data privacy. Companies are now provided with limitless ways to extract information about their customers, even without their knowledge. This is especially concerning when it is the personal information of a child that is being collected, as in the United States, few regulations exist to protect them on social media. Even fewer regulations exist to protect children between the ages of thirteen and seventeen. The purpose of this Note is to discuss the importance between market research practices and children’s consumer privacy rights in the digital …

Contract's Convert Meddlers, Sarah Winsberg

Notre Dame Law Review

Scholars of contract law typically examine contracts as bargains between two parties. This approach elides an additional, key function of many contracts: to shape existing relationships to the satisfaction of a third party, often one more economically powerful than either of the two bargainers. Third-party litigants, especially creditors, have historically advocated for their own interests and interpretive paradigms so strongly that they have sometimes gained priority over the actual intentions of the two bargainers.

This Article recovers the story of how a group of frequent-flier third parties—mainly creditors of small businesses—shifted the rules of contracts between partners in early America. …

The Impending Collision Of Smart Contracts And The Automatic Stay, Carter D. Wietecha

Notre Dame Law Review

This Note begins by briefly examining the nature and function of smart contracts, including how they have changed over time. Next, it evaluates the relevant language of Code provisions dealing with the automatic stay and discusses decisions treating the interaction of early generation smart contracts with the automatic stay. It concludes with a discussion of how the Supreme Court’s recent decision in City of Chicago v. Fulton has significantly changed the legal landscape for smart contracts and how the automatic stay will likely interact with smart contracts in the near future.

A Negotiated Instrument: Proposing A Safer Contract For Consumers (And Not Just A Smarter One), Michael S. Lewis

Georgia State University Law Review

In this Article, I propose a new standard for determining what constitutes assent, as a matter of contract formation, within the domain of electronic consumer contracting. The threshold test should reject the “take-it-or-leave-it” arrangement dominant in the marketplace and reified by recent proposals before the American Law Institute (“ALI”) under the moniker “blanket assent.” The new standard should reject blanket assent in favor of a default rule that would require any electronic form proposing contract terms to permit at least a minimal amount of negotiation around terms seeking waiver of rights from consumers. I propose this rule as a more …

International Treaty As A Basis For The Recognition And Enforcement Of Foreign Interim Measures, Mansurov Artem

ProAcademy

The article examines in detail an international treaty as a basis for the recognition and enforcement of foreign interim measures, in addition, the author came to the conclusion that the Economic Procedural Legislation of Uzbekistan in chapter 33 of the EPC RU regulates proceedings in cases of recognition and enforcement of decisions of foreign courts and arbitrations, however, such foreign judicial acts as interim measures in any form are not regulated. In addition, the recently adopted legislation on international commercial arbitration - LRU 674 of February 16, 2021, despite the fact that its norms contain the regulation of interim measures …

Covid And Consequences: How The Pandemic Changed Contract Interpretation And Litigation, Glenn Lutzky

Saint Louis University Law Journal

No abstract provided.

Forum Selection Clauses, Non-Signatories, And Personal Jurisdiction, John F. Coyle, Robin J. Effron

Notre Dame Law Review

Who is bound by a forum selection clause? At first glance, the answer to this question may seem obvious. It is black letter law that a person cannot be bound to an agreement without her consent. In recent years, however, courts have not followed this rule with respect to forum selection clauses. Instead, they routinely enforce these clauses against individuals who never signed the contract containing the clause. Courts justify this practice on the grounds that it promotes litigation efficiency by bringing all of the litigants together in the chosen forum. There are, however, problems with enforcing forum selection clauses …

Business Information And Nondisclosure Agreements: A Public Policy Framework, Rex N. Alley

Northwestern University Law Review

Trade secret law, as codified in the Uniform Trade Secrets Act, gives businesses in nearly every U.S. jurisdiction a uniform, clearly defined right to protect secret and valuable business information from misappropriation. But how can businesses protect information that, while potentially useful, falls short of the legal definition of a trade secret? Businesses often require their employees to sign nondisclosure agreements (NDAs) to protect this category of information, which this Note refers to as “confidential business information” or “CBI.” These CBI NDAs are often drafted so broadly that, read literally, they would encompass every piece of information an employee learns …

Class Arbitration Waivers Cannot Be Found Unconscionable: A Pervasive And Common "Mis-Concepcion", Emma Silberstein

Northwestern University Law Review

In 1925, Congress enacted the Federal Arbitration Act (FAA) as a means of quelling judicial hostility towards arbitration agreements, providing a mechanism for the enforcement of such agreements. The Supreme Court’s treatment and application of the FAA has evolved over time, and in recent decades the FAA has been massively extended to cover not only arm’s-length commercial transactions, but consumer and employment contracts as well. The Supreme Court, its previous hostile stance long forgotten, has created a policy of favoring arbitration and striking down many an argument that may interfere with that policy. In particular, the Court solidified its position …

Shareholder Wealth Maximization: A Schelling Point, Martin Edwards

St. John's Law Review

(Excerpt)

Imagine a reality television game show where two contestants begin the game in two different places in New York City. The object of the game is for the two contestants to find each other, but they do not know anything about each other and they have no way of communicating. If they succeed, both contestants win a prize. If they fail, they get nothing. With no ability to explicitly bargain over the meeting, the parties have to make an educated guess about what the other person is most likely to do. Most people, confronted with this sort of tacit …

Creating Cryptolaw For The Uniform Commercial Code, Carla L. Reyes

Washington and Lee Law Review

A contract generally only binds its parties. Security agreements, which create a security interest in specific personal property, stand out as a glaring exception to this rule. Under certain conditions, security interests not only bind the creditor and debtor, but also third-party creditors seeking to lend against the same collateral. To receive this extraordinary benefit, creditors must put the world on notice, usually by filing a financing statement with the state in which the debtor is located. Unfortunately, the Uniform Commercial Code (U.C.C.) Article 9 filing system fails to provide actual notice to interested parties and introduces risk of heavy …

The Right Of Khiyar Al-Naqd In Transactions Of Islamic Banks, Prof. Dr. Mohammad Othman Shebair

UAEU Law Journal

The Subject of Khiyar Al-naqd (The right given to both the seller and the Customer to Carry out the Contract or to cancel it ), within a period of time is one of the important subjects in current financial transactions. This is quite clear when we know that Islamic banks need it and depend on it in their economic activities. This research treats the reality of (Khiyar Al-naqd), the views of jurists on this subject, the conditions of its application in contracts, its effect on contracts, and finally how it can assists in the transactions of Islamic banks transactions. This …

Definition Of Tenancy Contract In Islamic Fiqh And Arabic Man-Made Legislation-د. محمد علي عبد الرحمن وفا

UAEU Law Journal

The chosen definition for tenancy contract i n Islamic Fiqh is: "to pass a certain benefit into one's possession in ret urn for a certain con­sideration". We say 'to pass a benefit into one's possession" to show that tenancy is to pass benefits into one's possession, unlike selling which is to pass. Subject of selling in to the purchaser's possession. We also say: "a certain benefit” to show that the benefit, contracted upon in the tenancy contract must be provided with certain conditions. It should be legal, aimed at, well-k now n, easy to hand and owned by the landlord. …

The Concept Of Non-Present Subjects In Light Of Emirates Civil Transactions Law And Islamic Jurisprudence, Prof. Jassim Salem Al-Shamsi

UAEU Law Journal

The introduction explained the meaning of this title and that the intrinsic purpose for its selection is due to the fact that the Transactions Law was affected by its original source which is the Islamic Legislation Jurisprudence.

In Part (1) I have discussed the effects on the contract due to the absence of contracted goods.

My first topic covers the effects on the contract due to the absence of contracted goods in the denominations of Islamic jurisprudence from the points of prohibiting and permitting citations evidence in legislative references, the "possible" concept of Malkiah and their followers concerning either the …

Must The Idea Of A Vitiated Contract Be Retained In The Jordanian Civil Code And The Emirati Civil Transactions Act?

UAEU Law Journal

“Jordanian Civil Law” and the “law of Financial Dealings” of theUnited Arab Emirates, have chosen to follow the Hanifite Doctrine and to adopt the concept of the “Vitiated contract” - “Al-Aqd Al- Fasid”. This concept has been highly commended by some modern legal writers: they underlined the dynamism of the theory of the “Vitiated Contract” and its ability to avoid the demolition of the contract for some defects which are note worthy of destroying the whole convention.

Through our research, we can affirm that the adoption of this theory has disrupted the legal ordering of the contract especially that part …

Effect Of The Consumer's Choice To Revoke The Contract On Determining The Moment At Which The Contract Is Concluded, Yousef Mohammed Shandi

UAEU Law Journal

The choice to revoke the conclusion of a contract is one of the most important guarantees of a complete consent in contracts. It allows consumers a chance to contemplate and consider carefully the contract before they announce their final acceptance thereof. Despite the paramount significance of this choice in relation to the consumer, it raises a complex legal problem regarding the determination of the moment of concluding the consumer contract, which is associated with the choice to revocation. A legal school deems that such a choice takes effect immediately following the exchange of consent even before the period of revocation …

The Bank Civil Liability Regarding Consumer Loans Toward Debtor: A Study Based On Kuwaiti And French Law

UAEU Law Journal

Long ago, the French courts did not hesitate in recognizing the bank's liability toward its debtor based upon its failure to warn the debtor especially when the loan did not fit the debtor's financial ability. As a result of that judicial precedent, the French legislature, recently, adopted the bank's responsibility towards its debtor in providing the loan in the Consumer Protection Act. Therefore, when a contract is concluded between a professional and a consumer (Consumer Loan Contract), the bank is obliged to clarify all financial details to a consumer (debtor). In addition, the bank is obliged to verify the consumer's …

Validity Of Contract Law Applicable To Unilateral Acts Within A Conflict Of Laws., Firas Kasassbeh

UAEU Law Journal

The law makers and jurists have never shown clear interest in the issue of the law applicable to unilateral undertakings (acte juridique unilatéral). This is the case under Jordanian law despite the fact that unilateral undertaking is deemed under one of the general sources of rights (obligations). Accordingly, it shall be assumed that the general rule shall be subject to the same provisions that are applied to contracts, and therefore, it shall be applied to unilateral undertakings, including those relating to conflict of laws that govern this issue.

This study explores the extent to which the law applicable …

The Idea Of Contract In Japanese Law And Culture, Sara Landini

Japanese Society and Culture

The paper deals with contract law in Japan in the perspective of law and literature in order to better understand some basic concepts that actually are not a translation of western concept like good faith.