Principles Of Contract Law Research Articles

재보험계약원칙(PRICL) version 1.0에 대한 약간의 검토

In 2010, the European Principle of Insurance Contracts (PEICL) stipulated that PEICL did not apply to reinsurance contracts. The reason was that the insurance contract law of most EU member states completely excluded the application of the insurance contract law to reinsurance contracts. Accordingly, the project group led by the private sector began to write the Reinsurance Contract Law Principles (PRICL). The goal of this work is to provide a unified soft law for contract law to the reinsurance market. This project has a similar purpose to the restatement promoted by the American Legal Association (ALI) and has a similar writing format. ALI's restatement is intended to enhance the clarity and simplification of the law, accommodate social needs, and encourage the performance of academic and scientific legal work useful in trials. Project Group published its achievements so far in 2019. It was named PRICL version 1.0. PRICL Project Group planned to complete the work until the end of 2023, but failed to complete it due to COVID-19 pandemic and other reasons. Korea occupies a significant portion of the global insurance(and reinsurance)market. Nevertheless, the author regret the lack of research on PRICL in Korean academia. This paper briefly introduces the basic matters of PRICL's preparation process and version 1.0. As well as the provisions to be added in the future, a detailed review of the entire article is required.

Принципы договорного права в судебных делах, осложненных использованием контрагентами цифровых технологий (опыт Нидерландов)

Increasingly, there are legal disputes that cannot be directly resolved by the current legislation, as it has not kept pace with the development of digital technologies. In such a situation, it is useful to turn to foreign experience. Transposition of new foreign cases to the Russian reality allows predicting the development of business practice and future solutions for similar problems. The purpose of the study is to analyse the decisions of the courts of the Netherlands, in which the principles of contract law are applied to disputes about digital products. The provisions that Dutch courts derive from the principles of freedom of contract and good faith are formulated, and the mechanisms of protection of the weaker party to the contract are disclosed. On this basis, conclusions are drawn which, mutatis mutandis, can be applied in Russia. The thesis is substantiated that in the conditions of digitalisation the categories of contract law are not abandoned, but there is a need for their specific interpretation, taking into account all the circumstances of the case.

A NEW PARADIGM OF DOCTOR-PATIENT RELATIONSHIP, DIGNIFIED JUSTICE PERSPECTIVE

The relationship between doctor and patients is highly personal, based on the patients trust in the doctor. However, , it is not uncommon for this doctor-patient relationship to give rise to conflicts, disputes, and even legal claims and demands against doctors. Throughout history, the doctor-patient relationship has evolved through three models: thethe Activity-Passivity Relation, Guidance-Cooperation, and Mutual Participation. From the perspective of Dignified Justice, both the Activity-Passivity (Paternalistic) and Guidance-Cooperation models are not aligned with the Principles of Equality, the Principle of Balance between Rights and Responsibilities. They are contrary to the goal of humanizing individuals (ngewongkewong). The model of Mutual Participation is considered the optimal phase of the relationship, where doctors and patients are on an equal footing and bound by the principles of contract law, known as the Therapeutic Contract. However, this model falls short of the Principles of Moral Justice, the Principles of Spiritual Justice, and the fundamental principles of Dignified Justice that elevate intellect, creativity, and empathy as the highest drivers of the doctor-patient. We propose a new paradigm for this relationship, emphasizing humanity, justice, respect for moral and ethical norms, a familial bond, virtue, and spirituality. This model embodies the Dignified Justice of a Relationship.

Anticontract

AbstractShould a court ever second‐guess a contract, ignoring what the parties said and imposing something different? Contractual purists insist that the answer is no. But the messy nature of reality counsels otherwise. We have long appreciated that creating a “complete” contract, one that efficiently treats every potentially relevant contingency, is impossible. In particular, systematic risks that affect the entire economy fall beyond contract's realistic reach. When such events occur, they upset contractual frameworks, leaving parties shackled with obligations suited to a world that never came to be. At least in that context, second‐guessing is vital. And that second‐guessing can be understood according to a concept called anticontract. When systematic risks fundamentally upend contractual frameworks, this inversion of contract's basic principles paradoxically fulfills contract's goals. Anticontract does the opposite of all that contract law does: it adjusts rather than enforces; it looks ex post rather than ex ante; it prioritizes the public rather than the parties; and it provides no general rules, only particular results. It operates, in short, irregularly rather than regularly. In the face of realized systematic risks, anticontract thus paradoxically fulfills contract's goals by doing contract's opposite. In so doing, it redistributes losses to those most able to bear them at the microlevel, curing macroeconomic ills at their source. In essence, it creates social insurance for systematic risks that private contract cannot manage. In all this, anticontract can be understood as an instance of a broader phenomenon, the completion of law through equity. Anticontract thus represents an important way to understand the limits of contract and when to violate the principles of contract law.

Selected aspects of contractual regulation in the context of digitalization of the economy

Problem setting. One of the most noticeable modern trends is the coverage of digitalization processes in all spheres of life, including the economic sphere, which is accompanied by a rapid expansion of the electronic format of contractual interaction of participants in economic transactions and a change in the very methods of carrying out the latter. At the theoretical level, there are several approaches to the regulation of certain aspects of contractual relations in the field of e-commerce, in particular, with the help of: analogy of the law; customs of business turnover; contractual regulation at the level of individual agreements on the use of an electronic contract form and/or electronic signature, etc.; special legislative acts in this area; complex regulation using different levels of sources. It is the last approach that has gained the most widespread and support among modern scientists. Analysis of recent researches and publications. The issues of concluding, changing and terminating electronic contracts with the participation of business entities were studied in the works of O. M. Vinnyk, M. M. Dutov, S. V. Zlobina, N. B. Koval, N. V. Koryagina, V. L. Despite this, in the practice of contractual and legal regulation of economic transactions in the field of electronic commerce, a unified approach has not been formed regarding the optimal transformation (change or special application) of the established principles of contract law regarding electronic contracts. That is why the purpose of the article is to highlight and analyze problematic issues of legal support for electronic contractual interaction between participants in business relations. Purpose of the research is to highlight the problematic issues of legal support for electronic contractual interaction of the participants in business relationships. Article’s main body. The article notes the lack of a unified approach to the optimal transformation of the established principles of contract law in relation to electronic contracts. Special attention is paid to the procedure for concluding electronic contracts with the participation of business entities and to the content of the concept of “electronic form of contract”. Approaches to the legal nature of electronic offers and acceptance, as well as procedural aspects of their implementation, were investigated based on the analysis of scientific views and the current legislation of Ukraine. Existing legislative dysfunctions in the regulation of the specified issues are highlighted and separate proposals for their elimination are formulated. Conclusions and prospects for development. The article concludes that the agreement of the parties to conclude a contract with the help of information and communication systems is not a sufficient reason to consider it concluded in writing. It is noted that the recognition of the electronic form of the contract as a type of written contract does not correspond to the European approach, according to which only a qualified electronic expression of will is equated to a written form. The necessity of harmonizing the relevant provisions of the Civil Code of Ukraine, the Economic Code of Ukraine, the Law of Ukraine “On Electronic Commerce”, the Law of Ukraine “On Electronic Documents and Electronic Document Management”, etc., in terms of content and correlation of such concepts as “electronic form of transaction”, is emphasized. “electronic transaction”, “electronic form of contract”, “electronic contract”, “electronic document”, “electronic form of providing information”, etc.

Contract Law When the Poor Pay More

Abstract Taking inequality as a key challenge of our time, this article aims to highlight consumer markets, and their underpinning legal ground rules, as important contributors to inequitable wealth distributions. It illustrates how product design, as manifested in contractual terms, can allow firms to evade competition and divert resources upwards along society’s wealth distribution curve. It then highlights the contestable legality of certain pricing practices, such as ‘contingent charges’, and the challenge they pose to fundamental principles of contract law. An in-depth view of the 2015 case of Beavis v ParkingEye argues that the UK Supreme Court has validated contingent pricing models in a manner unsupported by traditional contractual reasoning and unjustified by contemporary market failure analysis. The article asks contract law to confront the reality that it shapes market distributions in economically and politically significant ways, and appeals for greater scrutiny of the contribution of contract law adjudication to inequality.

Principle Law Pacta Sunt Servanda in Agreement Rent Place Business

Objective: Pacta sunt servanda is one of the principles that apply in rental agreements, namely that the contract that has been agreed upon then becomes valid as governing law. However, in reality, rental contracts are not based on the principles of the agreement; therefore, it can lead to default. Thereby causing losses to other parties. This research aims to determine the implementation of the legal regulation of pacta sunt servanda in rental agreements for business premises. Methode: The research method used is normative research by inventorying, studying, analyzing, and understanding the law as a set of regulations or positive norms in the legal system regulating human life. This research collected data through a literature study, namely a review of library materials related to the studied problem. Result: In an agreement such as a rental agreement, principles or principles are closely related to regulating and directing the parties in a rental agreement; namely, the owner of the business space must adhere to regulations or principles closely associated with the contents of the rental agreement. Conclusion: this research is the implementation of the legal principle of pacta sunt servanda in the rental agreement for business premises that in the rental agreement for business premises that have been handed over for rent, the parties have agreed to the rental agreement for the business premises, as a form of respect for the rental agreement. According to Article 1338 paragraph (1), the business space must be like the enactment of regulations that can regulate the parties based on one principle of contract law, namely the principle of pacta sunt servanda.

Menilik Perjanjian Kerja Sebagai Perwujudan Terpenuhinya Hak dan Kewajiban Para Pihak

One of the bases in the employment relationship which gives rise to an engagement or legal relationship for the parties is the employment agreement which gives rise to the rights and obligations of the parties. The existence of work agreements regulated in Law Number 13 of 2003 concerning Employment is expected to realize the rights and obligations of the parties fairly, however in practice this has not been fully fulfilled. The principles of contract law must be fulfilled and in harmony with the principles contained in the employment agreement. These principles include the principle of freedom of contract, the principle of consensualism, the principle of legal certainty, the principle of good faith, the principle of personality, the principle of trust, the principle of legal equality, the principle of balance, the principle of legal certainty, the principle of morals, the principle of decency and the principle of protection. All of these principles are related and cannot be separated.

The Implementation Science of Financial Intelligence in Evidence-Based Medicine Using Select Criteria Mechanism as Treatment Process towards Healthcare Corporate Governance

Purpose: Implementation science is the broader aspect of corporate social responsibility (CSR) translating healthcare education to clinical research and practice for public health and patient safety encompassing the hierarchy of evidence-based medicine (EBM), hence, serving as an integrative method of combing CSR towards healthcare corporate governance. This paper aims to model EBM under principles of valid contract formation as compliance to CSR theories of promoting positive health outcomes of patient safety leading to financial success and lessening the risks of mortality cases.
 Methodology: The elements of valid contract formation and sources of errors are the systematic plan for behavioral guidance of EBM practice. These determinants are crucial in refining the clinical judgment of medical experts together with other healthcare professionals in support with high-ranking databases of research publication, resulting to a greater impact of positive health outcomes of patient safety under “judicious” application of CSR. These principles of contract law are integrated for “measuring” the EBM’s financial success towards healthcare corporate governance.
 Findings: EBM is a scientific approach to handle medical cases and reports towards patient safety under clinical judgment of medical expert and healthcare team in corroboration with reliable sources of databases for medical research and review for reducing death rates in healthcare setting. SELECT Criteria Mechanism elucidated EBM as implementation science integrating CSR for behavioral compliance to healthcare corporate governance. First, the modeling of CSR as method to comply with EBM delineates the elements formed for valid contract formation in producing an “ethical” standard as responsibility for optimal patient safety as bargained promise under acceptance of the clinical team. Second, the illustration of the healthcare corporate governance in EBM practice as theory “measures” the reduction of healthcare expenditures from the exhibited means of diminishing mortality cases. Therefore, implementation science serves as an initiation for remediation process of reducing risks of death cases. 
 Recommendation: Implementation science is very important in EBM practice in treating ways of lessening the probability of mortality cases under “ethical” or “judicious” patient safety guidelines as corporate social responsibility. Hence, it is recommended to develop systems for behavioral guidance in a more organized plan of targeting death reduction cases towards financial intelligence as fulfillment in implementation science.

Contractual Mechanisms for Securing the Public Interest in Data Sharing in Public-Private Health Research Partnerships

Public private partnerships (PPPs) are increasingly common in health research, with large European investment over the last 20 years and renewed focus in the wake of the global health crisis COVID-19. PPPs have been used for health research that seeks to collect, analyse and share personal data from research participants, often on the basis of informed or broad consent. PPPs are underpinned by contracts, both to govern the use of data and samples necessary for health research, and to govern the agreement between the public and private contracting parties of a project. This raises the question of how far contracts adequately protect public interests, for example in privacy and data protection when patient data are exposed to a broader range of potential uses from the private sector. A core principle of contract law is that you cannot contract for unlawful activity. As such, contracts could be void if their design or performance entails a breach of statute or common law, for example data protection and privacy laws or the common law duty of confidentiality. This paper analyses the implications of this general principle of illegality for contracts underpinning PPPs in health research, particularly to understand the extent to which it could operate to protect the public interest as conceived by privacy and data protection law. The paper will show how this heavily policy-driven doctrine has scope to ensure that contracts and contract terms that are contrary to public policy are void or unenforceable which, in the context of PPPs using personal information for health innovation and research, is a welcome, though limited, accountability mechanism in private law that could operate to serve the public interest.

PENINGKATAN PENGETAHUAN HUKUM MELALUI PENYULUHAN DASAR-DASAR KONTRAK BISNIS BAGI UMKM

Micro, small and medium enterprise (MSMEs) as business owner, in running their business also cannot rule out the role of business contract when running their business. One of the aspect that deserve attention from the perspective of MSMEs, is the legal aspect of agreements and business contract drafting techniques, so that MSMEs owners become more legal literate, and they understand the importance of a business contract as a support for securing their business, in order to avoid further potential disputes with their business partners. Basics of drafting business contract for MSMEs is important because there are still many MSMEs owner who are not yet legally literate, including understanding the importance of making written agreements with their business partner. The method that being used in this activity is in the form of descriptive legal counseling, and the question asked are answered by conducting an analysis based on regulations and the principle of contract law. The counseling on the basics of drafting business contract for MSMEs delivered to Komunitas Pebisnis Pemula Jakbar can be said to be successful, considering that from the impressions and messages conveyed by the participant, most of them stated that the material presented was very important because they had never received counseling related to contract law, and they hope that it can be continued with legal counseling activities with other materials that can support MSMEs.

Repackaging the General Prejudice Principle in Suretyship Agreements as a Breach of Contract under South African Law

Historically, if a creditor through his conduct prejudiced or injured a surety in the latter's rights or interest, the surety was entitled to claim release from his obligations under the general prejudice principle. However, the principle was summarily rejected by the Supreme Court of Appeal in Bock v Dubororo Investments (Pty) Ltd 2004 2 SA 242 (SCA), and it may now be determined whether there exists another interpretation in order to ensure its survival. This article considers the historical application of the general prejudice principle in suretyship agreements under South African law since the principle’s original incorporation from the English law up until its outright rejection by the Supreme Court of Appeal in Bock. It then aims to reinterpret the principle in the light of ordinary contract law principles as being nothing more than a breach of contract by the creditor.

Legal Analysis of Fraud Disputes in Franchise Practices: An Overview of the Perspective of Civil Society Capita Selecta

This article discusses a legal analysis of fraudulent disputes that occur in franchise practices. The main focus of this analysis is to look at fraud disputes in franchise practices from the perspective of civil society capita selekta. This research was conducted by collecting data from relevant primary and secondary legal sources. In the context of franchising, fraud disputes occur when a franchisor knowingly commits fraud or provides false information to a franchisee with the aim of making a profit. This kind of fraud often involves misunderstanding of the franchise contract, injustice in business practices, lack of communication and support from the franchisor, and non-compliance with operational standards. This legal analysis of fraudulent disputes in franchise practices uses the principles of contract law, fairness and protection of rights. Contract law principles are used to interpret, enforce and enforce franchise contracts. The principle of justice ensures that dispute resolution is carried out in a fair and objective manner. Meanwhile, protection of rights is important in maintaining the integrity of the franchise industry and promoting the sustainability of this industry. In handling fraud disputes in franchising practices, it is important for franchisees to understand the franchise contract well and comply with the stipulated conditions. In the event of fraud on the part of the franchisor, the franchisee may bring legal claims based on breach of contract, unfair business practices or fraud. In conclusion, the application of legal principles in handling fraud disputes in franchise practices is very important. This article provides an overview from the perspective of civil society, taking into account the principles of contract law, justice and protection of rights. This research provides a better understanding of fraud disputes in franchise practices and their relevance in the context of civil law capita selekta.

Принципы договорного права в современных условиях цифровизации общества (на примере судебной практики США)

The article is devoted to the role of the principles of contract law in the cases arises from economic disputes in connection with the use of current digital technologies by the parties of the contract. Based on the analysis of different US court decisions, the author makes several scientific proposals. The most fundamental of them is that the digitalisation of society and the emergence of new relationships does not prevent the application of the principles of contract law. At the same time, the principles might be filled with special content and understanding. In such circumstances, the interpretation of the principles of contract law is essentially vital. There is a good example of the successful attempt of this type of interpretation. Having examined the interface and design of the corresponding online platform, the court of the USA determined the fact of consent to the terms of the user agreement according to the principle contractual freedom. It is a very useful approach for the Russian practice as well. Based on the principles of contract law, the US courts formulate the substantive part of the decision. Furthermore, they do creatively approach the establishment of a model for regulating emerging relations in the digital economy. The creatively approach of courts should not be useful in Russia according to the traditions of the continental system of law. However, it should be used by the legislative power. In order to establish an affective regulatory model, it is necessary to take into account not only economic feasibility and technical features. First of all, we have to rely on the principles of law. Unfortunately, it is not always obvious in Russia.

Contracts in the commercial law of foreign countries: topical issues of theory and practice

Commercial contracts are the main tool for regulating relations between enterprises, regardless of their geographical location. The purpose of the research is the analysis and study of modern trends, features, and problems related to the conclusion and execution of commercial contracts in foreign countries. The main tasks are: 1. Study of the main principles of commercial law of foreign countries. Consideration of key aspects of commercial law of different countries, such as the principles of contract law, executive law, and other important aspects affecting the conclusion and performance of contracts. 2. Study of current problems and challenges. Consideration of modern problems of conclusion, execution, and disputes under contracts in the commercial law of foreign countries, such as problems of electronic commerce, international trade disputes, protection of consumer rights, and other relevant issues. 3. Study of international trends. Analysis of modern international trends in the field of commercial law, such as the harmonization of legal norms, the development of electronic commerce, the impact of technology on the conclusion and performance of contracts, international cooperation, and integration. Current theoretical approaches, principles, and general rules related to commercial contracts in foreign countries are studied. The problems arising in the practice of conclusion and execution of such contracts have been identified. Common principles and features of regulation of commercial contracts in various foreign countries are established.

Law of Contracts: Their presence in corporate transactions learning

Abstract Corporate transactions form the foundation of modern business activities, including mergers, acquisitions, partnerships and commercial agreements. Such transactions are supported by contractual relationships that define rights, obligations and expectations between multiple parties. This paper uses a methodology that integrates a comprehensive literature review with a legal analysis, surrounding contract formation, interpretation, performance and remedies in the corporate context. The legal analysis component examines relevant contract law principles and precedents, examining their application and relevance to corporate transactions. This analysis identifies the legal complexities and challenges inherent in these transactions and assesses the effectiveness of contract law in addressing them. This analysis verifies that contract law is an essential aspect of learning and engaging in corporate transactions. It demonstrates how the principles of contract law provide a framework for negotiation, execution and resolution of disputes within these transactions. It underlines the importance of knowledge of contract law in mitigating risks and ensuring the successful implementation of corporate transactions. In conclusion, contract law plays an important role in learning and conducting corporate transactions.

INTEGRATING SHARIA BUSINESS CONTRACTS: Enhancing Inheritance Management Among the Simalungun Batak Tribe’s Muslim Community

This research was conducted to find sharia contracts that could be empowered in utilizing inherited assets in the Simalungun Batak Muslim community. This research was field research. The data collection techniques were through interviews and observations and utilizing literature using classical and contemporary fiqh books. The research method was a historical qualitative approach, while the analysis technique used a qualitative descriptive method. The results of the study show that various models of sharia contracts in the utilization of inherited assets can be carried out by the community, such as profit sharing (mudharabah), cooperation (musyarakah), leasing (ijarah), entrusted (wadiah) and waqf. These various sharia contracts can be carried out both between heirs and heirs with other parties. In order to strengthen the implementation of this sharia contract, it is necessary to implement a written contract to strengthen the contract realization process and assist the interests of all parties and for their benefit. The application of this contract can be implemented based on various principles: economic, maqashid, contract, and customary inheritance law principles.

Development of Indonesian Business Contract Law in The Globalization Era

In business activities in Indonesia, contracts are the basic framework that is used as a framework for relationships for economic actors. The principle of contract law is regulated in the Civil Code. Contracts can give rise to rights and obligations for the parties making the contract. Thus contracts play an important role in doing business in Indonesia. Contract law has existed since the days of Egyptian and Mesopotamian society around 3-4 centuries before Christ and has always experienced developments until now. The development of contract law in countries that adhere to the Common Law system is based on the doctrine of Promissory Estoppel and consideration, where there is an agreement followed by certain legal actions to fulfill the agreement already able to claim compensation, and there is a reciprocal relationship. This development also occurred in the Netherlands where an agreement that was not final but already had legal actions to fulfill the agreement could also claim compensation based on the principle of good faith. The development of contract law in Indonesia is still based on fulfilling the requirements for the validity of the agreement stipulated in article 1320 of the Civil Code, so that it can be called classic contract law. Legal actions that have not been based on Article 1320 of the Civil Code do not yet have legal consequences, so that losses arising from pre-contracts do not receive compensation. Assessment of current contract law, it is necessary to pay close attention to other developments through the development of contract law in other countries or through statutory regulations, which where the aggrieved party at the time of the agreement can claim compensation.

Lex Mercatoria as Substantive Applicable Law of International Sale and Purchase Contracts

This study aims to analyze lex mercatoria as a substantive applicable law international sale and purchase contract. The research method used is a qualitative method. The research results show that international trade activities often lead to disputes between the parties. And the choice of dispute settlement can be made either in court or in arbitration. There are two types of law that apply and are used in international arbitration, namely arbitration procedure law and arbitration substantive law. The substantive law is in the form of a country's national law and/or international conventions related to contracts and lex mercatoria. Lex mercatoria is the law of traders derived from trade usages and general principles of law. CISG can be classified as one of the lex mercatoria because there are principles that generally govern sales and purchase contracts which are referred to as the general principles of international contract law so that the general law principles in this contract are applied as substantive law by arbitrator judges in deciding contract disputes, international sale and purchase in international arbitration.

Fulfillment of the terms of the contract as a result of force majeure during martial law

Under the conditions of martial law, the existing contractual activity in Ukraine was actually divided into: contracts concluded before the beginning of martial law and after its introduction.
 The peculiarity of the application of force majeure for domestic business entities during martial law is the occurrence of its circumstances mainly for both parties.
 Each type of contract concluded between the parties, as a rule, contains provisions on the actions of the parties that must be taken under force majeure circumstances and the consequences that will follow for the parties regarding the fulfillment of contractual obligations with the use of force majeure.
 The military aggression of the Russian Federation against Ukraine has affected almost all spheres of human life in Ukraine, including the possibility of fulfilling civil obligations. It is assumed that for these reasons, a large number of civil law agreements concluded in Ukraine will not be properly implemented, the conditions will be changed, and in other cases, in general, the termination of the agreement. In this regard,there is a need to investigate the consequences of non-compliance with civil law obligations due to martial law in Ukraine.
 If the parties have not agreed to bring the agreement in line with the current circumstances of martial law, which have changed significantly, the agreement may be terminated on the grounds established by the Central Committee of Ukraine, amended by a court decision at the request of the interested party. the moment of concluding the contract the parties assumed that such a change of circumstances will not occur; the change of circumstances is due to reasons that the interested party could not eliminate after their occurrence with all the care and diligence required of it.
 Legal regulation of the legal consequences of significant changes in the circumstances that exist when concluding a contract is usually based on one of two key principles of contract law: the principle according to which contracts must be performed (pactasuntservanda), or clause (clausularebussicstantibus). The legislation of foreign countries contains norms according to which «a change of circumstances may justify a change in the contract, when the preservation of the contract in its original form leads to extraordinary results, incompatible with justice».
 The main consequences of a significant change in the circumstances that guided the parties in concluding the contract are: - actually change the contract, ie change the terms of the contract (and as a consequence - the obligations between the parties) while maintaining the contract in force; – and termination of the contract by agreement of the parties