The Cause of the Contract in French and Italian Law: ‘I will Survive’

Unlike many other civil codes modeled after the Napoleonic model, the drafters of the French Civil Code (“FrCC”) chose not to include specific directives on how to interpret or complement it, thus adopting the notion that the purpose of a code is to prescribe a coherent set of rules, rather than setting forth scholarly guidelines. Yet, Article 1194 FrCC (formerly Art. 1135 FrCC), which provides that the meaning and effects of a contract means more than its terms, leaves some room for the UNIDROIT Principles on International Commercial Contracts (“the Principles” or “UPIC”) to play a role in the interpretation or complementation of international commercial contracts, at least in theory and as long as the rules embodied in the UNIDROIT Principles qualify as “usages” or “general principles”. A search of the decisions rendered by France’s highest court (Cour de cassation, also referred to as the “French Supreme Court” or simply as “the Court”) since 1987, however, discloses that the Principles have been rarely invoked.

The Italian legal system belongs to the so-called Roman family law. However the distinction between a contract and an agreement, famously applied in French civil law, has not been adopted by Italian legal system. The peculiar features of the concept of contract adopted under Italian law pertain to the fact that, without borrowing from the French Civil Code, nor from the German Civil Code, the Italian definition of contract expressed in art. 1321 of the Italian Civil Code has plain and concise textual meaning, specifying both the nature and legal consequences of contract making. The Italian Civil Code generally identifies a contract with an agreement of the parties concluded for the so called legal cause of the contract understood as the economic and social function of the contract. The regulation concerning concluding and enforcing contracts in accordance with art. 1324 of the Italian Civil Code have been extended to other legal actc, in particular unilateral ones, provided that they are inter vivos and the terms of contract pertain to obligatory or proprietary relations. The paper focuses on the limits of the principle of contractual consent in Italian law. The principle generally refers to the agreement as the general underlying legal condition for validity of any contract. The principle has a significant impact on the legal effects of a potential ex post collapse of the contract due to its’ invalidity in case of the transfer of ownership concerning both personal property rights and immovable property rights.

The transport legislation in Albania has a character of specialty. Through this paper we aim to offer an analysis of the Albanian legal provisions on transport contract according to the Civil Code. This study will deal with the contract of transport of goods. The analysis of the contract will be in a historical, empiric and doctrinal point of view on the regulation offered by the Civil Code and the similarities to the Italian Civil Code. The actual regulation of the contract of transport in Albania is relatively new and there are only a few claims brought into courts that make very difficult a deep analysis of the implementation the legislation. The lack of causes brought into courts mainly has to be recognized to the arbitration clauses in favor of foreign arbitrators as for the transport of goods by sea or the solution on transaction basis as well as, regarding Civil Code provisions, the camouflage of the contract of transport with other types of contracts.

In August 2016 the French Parliament adopted legislation introducing civil liability for ecological harm into the civil code. Since tort law is traditionally concerned with the compensation of harm to individuals, the recognition of ecological harm as a basis of liability extends the boundaries of tort by requiring an alternative approach to what constitutes harm, who will have standing to bring claims and what remedies are appropriate. Through a discussion of the French reform, this article analyses the issues raised in adapting civil liability to deal with ecological harm and considers how French law seeks to overcome the challenges that these issues present. The article also reflects on whether the new civil code provisions are likely to provide an attractive model for reform in other legal systems by considering the extent to which they may represent an effective additional source of environmental protection in France and prove financially sustainable.

The problems of regulating the invalidity of contract under the Italian law is dictated by the crisis of the pandect system of the division of irregular contracts into nullity and annullability. In particular, in the Italian doctrine and case-law attempted to add within the pandect system of invalidity of bargains supplement it with new types of irregular contracts, borrowed from the French civil law tradition. The author using comparative method and examines the invalidity of contract under the Italian law. Firstly, the Article deals with the influence of German and French legal regulation of invalidity of contracts on Italian Law. Secondly, the author discusses the difference between nullity (nullita) and annullability (an-nullabilita) of contracts and analyzes the basic concepts of contract law such as causa as the essential term of contract, for the most part, determines the organization of norms on the nullity of the treaty in Italian civil law. Also the Article focus on the public order, imperative norms under Italian contract law. In conclusion of the Article presents general conclusions on the regulation of nullity and annulla-bility under Italian contract law, as well as an overview of convalidation and conversion. The article is oriented to civilists interested in the comparative legal research and the Italian contract law.

After Enforcement Rules on the Operation of Joint Contracts was amended by Ministry of Strategy and Finance in Jan. 8, 1996, judicial opinions on how claims of construction costs shall belong to the partners of joint venture changed, but it was not clear. That is, if the parties express their intention to exclude the application of civil code provisions on the partnership-ownership, the claims of construction costs may belong to each partners separately. Subsequent judicial precedents did not come to a unified conclusion. In some cases it was concluded that the claims belonged to all the partners jointly, but in others it was not. In other cases of similar issues, while admitting that a joint venture is a civil partnership, obligations to return advance payment was settled separately by each partners. Contradictory precedents left the following questions: Is a joint venture a civil partnership? Is the legal nature of the civil code provisions on the partnership-ownership of partnerships compulsory or optional? In conclusion, can the claims for construction costs of joint ventures belong to each of the partners?<BR> Supreme Court en banc Decision 2009Da105406 decided May 17, 2012 made decisions that a joint venture is a civil partnership under civil code, and that the claims for construction costs of the joint ventures belong to each of its partners separately under special agreements of a contract for a construction work. But the Supreme Court Decision was not clear and still left the following problems; Which of the provision on partnership-ownership under civil code is interpreted as optional? Are these opinions generally applicable to a civil partnership? What does it mean that the attribution method on claims of a civil partnership can be laid down under special agreements of a contract for construction work?<BR> Experts in favor of the Supreme Court Decision say that it is based on the principle of freedom of contract. Opposite views, on the other hand, presuppose that the provisions of civil code, which define the method of belonging to the property of civil partnership, are compulsory. However, the specific solutions proposed by each opinion are various.<BR> The property of a civil partnership include everything with value as property. How this is attributed to partners is defined in § 271 (1) in part of Real Rights and § 704 in part of Claims. With regard to the relationship between the two articles, it is generally considered either that they duplicate one another or that § 704 is unnecessary. However, contrary to the opinion of the above theory, if § 271 (1) and § 704 can be assumed to have different meanings, § 271 could have the meaning of forcing only real right property to belong to partners, not all property of a civil partnership. So the attribution of claims of a civil partnership is determined by § 704. In short, the property of civil partnership as real rights is ruled by compulsory provisions on Partnership-ownership in Real Rights, the property of civil partnership as claims is ruled by a optional provision on Partnership-ownership in Claims.<BR> If such assumptions are allowed, the claims of a civil partnership, in principle, belong to the partners in accordance with § 704. However, if there are special agreements in the partnership contract that divide the claims of the civil partnership into partners, this implies the exclusion of § 704, so the attribution of the claims becomes as agreed by the partners. However, even if the special agreements exist in the agreement between the partnership and the third party, they do not define how the property of the partnership belongs. This is because matters related to the internal relationship of partnerships can be determined only by the terms of the partnership contract. These special agreements, in some cases, can only mean how third parties can implement their contracts.<BR> In conclusion, the meanings of Supreme Court en banc Decision in 2012 could be found as follows. First, as before, § 271 (1) is a compulsory provision. Second, § 704 is an optional provision. One of the cases where § 704 is applied is the construction costs of the joint venture. Third, the property of a civil partnership where § 704 is applied is different from that where § 271 (1) is applied. In addition, an opinion that makes clear that the legal nature of the joint venture is a civil partnership means the above conclusions are generally applicable to civil partnerships. However, care should be taken when reading the expression, “The claims for construction costs of the joint ventures belong to each of its partners separately under special agreements of a contract for construction work.” It means that partners own the claims for construction costs separately, not

In this paper, I consider whether the recent overhaul of French contract law via ordonnance No 2016-131 of 10 February 2016 has changed the principles of judicial interpretation of commercial contracts, and how these compare with the principles in English law. One of the questions I ask is whether the traditional dichotomy between the French subjective approach and the English objective one has been altered now that the objective principle of interpretation has been incorporated in the Code civil. I explore how both jurisdictions deal with the main aspects of judicial interpretation, such as the nature of the interpretative question and the purpose and scope of contractual interpretation. Similarities emerge that show a rapprochement between these judicial approaches. Naturally, differences persist, which reflect distinct contract law values embedded in each legal order. Even if the ordonnance No 2016-131 has only introduced in appearance small changes to the provisions relating to interpretation, French courts now have the interpretative tools to follow in the footsteps of English courts when interpreting professionally drafted commercial contracts. An emerging coalescence around an objective literal interpretation in a sophisticated business setting is to be welcomed as it enhances commercial certainty across borders. Contractual interpretation, commercial contracts, principles of interpretation, subjective interpretation, objective interpretation, contextualism, textualism, English contract law, French contract law

The “agreement on non-competition” is essentially the extension of the protection of the basic economic interest of the employer. While during the employment relationship several labor law provisions protect the interest of both parties, the “agreement on non-competition” is designed to protect the employer’s interests after the termination of the relationship. This means – in return for financial compensation – the former employee needs to refrain from any kind of business competition against his/her former employer. This necessarily involves financial compensation and may have several restrictions, such business or geographical area or time.&#x0D; &#x0D; The previous Labor Code did not specify for detailed regulation of the issue and the law remained rather vague. It merely referred to the fact that parties – based on their own free will – may enter into such agreement. However the new Labor Code contains explicit regulations under title XVIII of the Act as “Particular Agreements Related to Employment”.&#x0D; &#x0D; The “agreement on non-competition” belongs to the field of employment law. Unlike the previous Labor Code that categorized this possible agreement as of purely civil law in nature, the new Labor Code declares it to belong under the scope of the Labor Code. The previous regulation even ordered the provisions of the Civil Code to be applied to such agreements however the new legislation brought a conceptual change.&#x0D; &#x0D; The currently effective regulation provides for a 2-year limitation on such conduct on the employee’s part that would create competition with the employer. The exact amount of the consideration payable for this obligation remains to be decided by the parties however the Labor Code suggests that it shall be based on how difficult the applied restrictions make it for the employee to find another job with his qualifications and experience. As a basic limit the law provides that the amount shall not be less than one-third of the base wage payable for the same period of time.&#x0D; &#x0D; The “agreement on non-competition” is not to be confused with similar legal institutions. The paper points out two close similarities in the legal system. One being the employee’s obligation of confidentiality; this prevails after termination of the employment relationship as well without any time or similar restrictions and even without any financial compensation. The other one is the so called “non-compete” agreement from the field of competition law. This is applicable after takeovers where the seller shall refrain from engaging into business in the same area as the buyer.&#x0D; &#x0D; In the field of labor law the time period for the “agreement on non-competition” is up to the agreement of the parties however the new law invokes an upper limit of two years that is following the termination of the employment relationship. This is a decrease from the previous regulation that provided for a period of three years. The agreement can be modified by the consent of both parties just like the employment contract or civil law agreements.&#x0D; &#x0D; In case of violation of the agreement three cases are to be analyzed. The first is the case of the employee breaching the provisions of the contract. In this case the employee is liable for damages towards his/her former employer. The provisions of the new Civil Code and those of the Labor Code are to be applied to the damages. In the second case the employer may request an injunction to prohibit the employee from any conduct breaching the agreement while the third case involves the breach of the agreement on the employee’s part for which the rules of the Civil Code and the Labor Code are to be applied as well.

One of the developments that was made in the French Civil Code in 2016 as a result of obligation rights' reform was the prediction of independent models to cession commitments and expression of the criteria governing them including the explanation of the status of accessories and guarantees of the original obligation in case of cession to third parties. However, this subject has many ambiguities in Iranian law and there are no explicit and definite articles about it. The Iranian Civil Code with adaptation of former French Civil Code, mentions the methods of Cession of Commitment, but contrary to French law, do not specify their effects and rulings, including the status of Accessory Contracts. The descriptive-analytic study of the subject in the legal systems of France and Iran demonstrates that the new French law of obligations is very similar to the Iranian legal system in this regard and in both legal systems, by ceding the positive aspect of the obligation (cession of the claim), its accessory contracts are also ceded, but the cession of the negative aspect of the obligation (cession of the debt) causes the termination of its accessory obligations.

An integral part of the recodification of private law is also the preparation of the new Commercial Code. Its conception as a special law in relation to the Civil Code should not be changed. It is the legal status of an entrepreneur that the Commercial Code should focus on. This article concentrates on those issues, which are unclear as to their inclusion in the Commercial Code or Civil Code provisions respectively. It is especially the regulation of the obligation relationships between entrepreneurs, the fundamental delimitation of the concept of an entrepreneur, the business accountancy and unfair competition regulations that are at stake. The Commercial Code should particularly regulate special legal concepts which are either exclusively or prevailingly interconnected with the entrepreneur’s position, such as the following: entrepreneur, enterprise and its organisational units, procuration, business property, business assets and the shareholders’ capital, the commercial secret, trade name, public tender and some types of contracts. Alongside the given issues the Commercial Code is to involve deviations and amendments to the general regulations in the Civil Code that are necessary for the entrepreneurs and their relationships.

In the introductory part of his contribution, the author deals with a special nature of the Czech Labour Law as a separate branch of law, its component parts, and its relation to European Law. In the forthcoming codification of the Czech private law, the Labour Code should preserve its nature of a separate code – interconnected, however, with the Civil Code. General issues, especially those relating to legal facts, representation, securing obligations, calculation of time etc. should be uniformly regulated, allowing for the application of the principal of subsidiarity with respect to the Civil Code. The author is of the opinion that in other issues, the principal of delegation should apply, i.e. the Civil Code provisions would only be used if the Labour Code stipulated so expressly. In the conclusion, the author gives his idea of the scope of the Labour Code and the specific contents of its individual parts in terms of individual as well as collective labour law. After the adoption of the new Labour Code, there should still be a separate regulation, namely in the areas of employment rate and protection of employees in case of employer’s insolvency.

In the era of contract-based maritime rescue under the background of amendments to the Maritime Code, disputes arise regarding whether a rescuer who, due to negligence, causes harm to the assisted party should bear tort liability. When a rescuer negligently causes harm to the assisted party during maritime rescue operations, it constitutes concurrent liability for tort and breach of contract. The rescuer should bear the responsibility for compensating the damages. Specifically, in establishing liability, it is essential to adhere to the standards identical to those in the Tort Liability section of the Civil Code. However, in determining the scope of liability, the principle of full compensation should not be strictly applied and can be appropriately relaxed. First, after posing the question, this paper employs a legal normative analysis method to explore the applicable domestic and foreign laws as well as international treaties related to the issue. The current legal systems stance on the matter is derived from legal norms. Analyzing the rights and obligations relationship between the rescuer and the assisted party from the perspective of balancing interests aims to achieve a new balance of interests between the two parties. Secondly, by comparing the Maritime Code with the Civil Code, the specific differences between the Maritime Code and the Civil Code provisions are identified. Additionally, considering the inherent characteristics of the Maritime Code, an analysis is conducted to differentiate the establishment and scope of liability for negligence-induced maritime rescue. Thirdly, through comparative analysis, it is determined that the rescuer should bear liability for damages resulting from negligent infringement, but the scope of liability can be appropriately limited. Moreover, a comparison between the maritime rescue system and relevant systems is made to clarify the relationship between the maritime rescue system and other relevant systems, providing theoretical support for the amendment of the Maritime Code. Finally, solutions and recommendations are proposed for the issues raised in the context of amendments to the Maritime Code.

The digital transformation has introduced new forms of wealth in the form of digital assets, such as cryptocurrency, NFTs, e-wallets, and social media accounts. The existence of these assets raises legal challenges in the context of inheritance law in Indonesia, since the Indonesian Civil Code (KUHPerdata) does not explicitly regulate them. This study aims to analyze the legal status of digital assets as inheritance objects and evaluate the mechanisms of their transfer under Indonesian civil law. The research employs a normative juridical method with statutory, conceptual, and comparative approaches. The findings reveal a legal vacuum that causes uncertainty for heirs, particularly due to the discrepancy between the Civil Code provisions and the privacy policies of global digital platforms. This study recommends a progressive interpretation of Articles 499, 503, 830, 832, and 833 of the Civil Code to include digital assets as inheritance objects, as well as the establishment of national regulations governing digital inheritance, including digital wills and the appointment of digital executors. Thus, the study is expected to contribute both academically and practically to the development of inheritance law in Indonesia, making it more adaptive to technological advancements.

The Reform of Contract Rules in China’s New Civil Code – Successes or Pitfalls The Civil Code of the People’s Republic of China (Civil Code) came into force on 1 January 2021. Book III on Contracts of the Civil Code has adopted significant changes compared to the old Chinese Contract Law (Contract Law). This article provides a comprehensive and systemic analysis of those changes from structure to content, from legislative technics to values underpinning the Civil Code. It evaluates all the factors in the context of the development of Chinese society, Chinese culture and Chinese legal system.This article first outlines the historical background of the development of the Contract Law and the Civil Code. It then moves on to compare the Civil Code and the Contract Law, highlighting the changes in structure, the incorporation of new provisions and the amendments to old provisions in light of contemporary Chinese society and culture. Finally, it argues that the Civil Code is a significant milestone in China’s legislative history; that it reflects the legislative experience and judicial practice in China; that it adds provisions which are innovative and of Chinese characteristics to meet the needs of China’s changing society and legal system; and that it keeps pace with the development of the global law reform and harmonization.

The article analyzes the doctrine of hardship in the contract law of Ukraine, France, Germany, England. The grounds for modify ing or terminating the contract due to a hardship are analyzed. A comparative analysis of the court ’ s powers to modify the contract in connection with a hardship is carried out . In French civil law the doctrine of l’imprévision covers all situations in which a party’s contractual obligations have become harder and more onerous to perform because of an unforeseen event posterior to the conclusion of the contract. The conception of hardship was introduced to Ukrainian Civil Code in 2004 for provide the contractual parties to overcome the negative impact of a change of circumstances that was unforeseeable at the time of the conclusion of the contract and renders performance excessively onerous for one of them . This provision is aimed, on the one hand, to restore the balance of interests in contractual relations and to reduce risks, and on the other hand, to keep the contract, as far as possible, preference given to the adaptation of the contract over its termination. Unfortunately, the case law indicates difficulty in implementing the provision of hardship. In English law doctrine is formed the concept of frustration. The only remedy for frustration in common law is termination of the contract; and termination is permanent – English law does not recognize partial frustration nor temporary frustration. German doctrine of hardship has been conceptualized into three aspects requiring a change of circumstances, the parties would not have concluded the contract if they had been aware of this change, and it would not be equitable for one party to deny the other party any amendment of the contract. German approach has been adopted in many harmonization projects and international instruments of contract law, in particular Principles on European Contract Law, Draft Common Frame of Reference, UNIDROIT Principles of International Commercial Contracts. In French, English and Germany law is established three different approaches to cases of contractual impossibility as an exception to pacta sunt servanda: contractual parties are not discharge unless performance has become impossible; as exception for impossibility to some cases; or as separate exception. The main problem nowadays is the lack of definition of “ significant change of circumstances ” in Ukrainian legislation and case law. Such a rule seems to increase legal uncertainty as the criteria of its implementation are vague and have not yet been firmly and precisely defined by case law. In most cases, the courts do not recognize the change of circumstances referred to by the party as significant. Ukrainian c ivil law doctrine defines “ significant change of circumstances ” as change of circumstances that did not depend on the will of parties and was the result of certain actions from the outside; and contains four features: was unforeseeable at the time of the conclusion of the contract, its duration and inevitability, arise without fault of the parties. The law of many states and international soft law gives courts power to modify or terminate the contract in case of change in circumstances. French Civil Code not contains certain grounds in the event of change in circumstances to modify or terminate the contract. They are the same as in case of contract modification or termination by parties. In contrast, Ukrainian legislator decreases significantly judicial intervention in contractual relations. The power of Ukrainian courts to modify the contract is based on the general principles of contractual freedom, if parties in contractual terms lay down modification the contract in case of change in circumstances that was unforeseeable at the time of the conclusion of the contract renders performance excessively onerous for a party.