Draft Civil Research Articles

일본 개정민법상 매도인의 담보책임의 규율 - 법무부 민법개정위원회안(2024)과의 비교를 겸하여 -

This paper examines the regulations on the seller’s liability for warranty under Japan’s revised Civil Code (Law of Obligations), which came into effect on April 1, 2020. The author’s motivation for exploring this topic stems not only from curiosity about the outcomes of the revision but also from a strong interest in the legislative techniques employed to simplify, integrate, and reorganize the substantial provisions on the seller’s liability for warranty into a coherent system based on the “contractual liability theory.” The pre-revision Japanese Civil Code’s provisions on the seller’s liability for warranty, much like those in the Korean Civil Code, were characterized by a highly complex regulatory framework and content. Reorganizing such provisions from a new theoretical perspective was undoubtedly a significant legislative challenge. This paper seeks to trace not only the results of the revision but also the process through which the simplification of regulatory content was realized. The revised Japanese Civil Code restructured the seller’s liability for warranty as a special rule of non-performance under the “contractual liability theory.” It explicitly provides that when a non-conformity to the contract is recognized, the buyer is entitled to remedies such as the right to demand cure, the right to reduce the purchase price, the right to claim damages and to terminate the contract based on general principles of non-performance. As a result of the revision, the scattered provisions of the pre-revision Civil Code governing the seller’s liability for warranty were unified into a single framework of liability for non-performance due to non-conformity with the contract. Coincidentally, in Korea, the Ministry of Justice's Civil Code Revision Committee, launched in 2023, has been working on a comprehensive revision of the contract law, and the draft amendment has recently been disclosed. The draft amendment, like Japan’s revised Civil Code, integrates various types of warranty liabilities by distinguishing between defects in rights and defects in goods, and it provides the buyer with remedies such as the right to demand cure, the right to reduce the purchase price, the right to claim damages, and the right to terminate the contract. It also introduces special provisions on the period for exercising rights in cases of defects in goods. However, there are differences from Japan’s revised Civil Code, including the Korean draft’s retention of the concept of defects, its use of the buyer’s awareness of a defect as a subjective condition to exclude the buyer’s rights, and its sequence of remedies (cure, termination, price reduction, and damages). Japan’s revised Civil Code serves as a valuable comparative legal resource for understanding and analyzing the Korean Civil Code Revision Committee’s draft. Future studies comparing the seller’s liability for warranty under the Korean draft Civil Code (or the revised Korean Civil Code) and the Japanese revised Civil Code are anticipated.

Астрент и прогибиторный иск

The article is devoted to solving the problem of the correlation between astrente and prohibition action by highlighting the common and different features of these legal institutions. It is argued that astrent can be indirectly used for the protection of the owner's rights, but for initial prevention astrent is not identical to a prohibition action. It is concluded that there is a need for a comprehensive defence of the right in rem by preventing infringement through a prohibition action and an application for the appointment of an astrente to guarantee the enforcement of the court's decision on the prohibition action. Such a combination of astrente and prohibition action was reflected in Article 35 of the Draft Civil Code of the Russian Empire, therefore, astrente cannot be considered a novelty for the Russian law, it is prescribed from the above norm.

Napoleon's Civil Code in the Political Discourse of the Alexander Era

Napoleon's "Civil Code" is a fundamental work of European legal thought. M.M. Speransky, appointed by Emperor Alexander I to the Commission for Drafting Laws, of course, could not help but refer to this text; moreover, he actively used it when drafting his famous "Draft Civil Code", but revised many of its provisions when adapting it to the class-based Russian society. Nevertheless, the influence of the Code on Speransky's "Draft" was so noticeable that it caused sharp rejection in conservative circles. The main opponents of the Secretary of State were N.M. Karamzin and A.S. Shishkov, who criticized the "Draft". When writing this article, the main method was the method of discourse analysis. This method, the subject of which is traditionally defined as "speech immersed in life", made it possible to study the extralinguistic aspects of the texts of participants in the communicative field in political disputes around the legislative initiatives of M.M. Speransky in terms of their correlation with Napoleon's Civil Code. Also used were such methods as content analysis, biographical method, comparative-historical and contrastive. Despite all the similarities, the positions of Karamzin and Shishkov differed. If Shishkov categorically did not accept any changes to Russian statehood, defending the need to preserve its absolutist inviolability, then Karamzin, who admired Robespierre in his youth, then idolized Napoleon, openly declared his republicanism. The ambiguity of his position, which has been repeatedly noted by researchers, is fully explained by the phenomenon of the development of republican thought of that time, which is shown in the article. Speransky, responding to criticism of the "Project Code", stated that all such projects are similar, since they have Roman law as their source. But this was not important for his opponents, who used all available tools to discredit him.

Pojetí výprosy podle ABGB

This contribution focuses on the development of the concept of the precarium from the beginning of its codification in the ABGB to the present day, focusing more closely on two historically established interpretations: the first adopted by Antonín Randa and developed by his student Josef Stupecký and the second adopted by the Austrian civilian Josef von Schey. Historically, these conceptions came into conflict in our territory during the recodification of the ABGB in interwar Czechoslovakia which is why the contribution discusses the development of the precarium also within the framework of the so-called Draft Civil Codes, all considering contemporary Austrian and Czechoslovak case-law. Finally, the contribution provides a concept in the form of contemporary Austrian law and its concept of precarium which is also relevant in the light of the fact that the ABGB provision on precarium has remained unchanged since 1811.

Институт юридического лица и его развитие в представлении П.И. Стучки // Актуальные проблемы государства и права

The discussion of the draft Civil Code of the Russian Socialist Federative Soviet Republic and the act itself after its adoption in scientific legal journalism led to the appearance of many books and articles, the authors of which touched upon, among other things, the problem of a legal entity. Legal institutions underwent significant changes in comparison with their interpretation in pre-revolutionary Russian law, which required theoretical jus-tification for institutional changes. The institution of a legal entity was the subject of a few norms introduced into the civil legislation of Soviet Russia by 1923, and in some works P.I. Stuchka presented his view of a legal entity as a new subject of rights. From the analysis of his works it follows that he used the comparative legal method in revealing the experience of reflection in legal theories and laws of European countries of a pseudo-person, recognized the fictitiousness of a legal entity and gave well-founded critical comments. However, at the same time, they allowed for contradictory assessments; not all elements of the theory of a legal entity were provided with clear and unambiguous explanations, in particular on issues of the significance of labor and representation of the interests of a legal entity in external legal relations with its participation. The author comes to the conclusion that a legal entity represents, in addition to a form of association of persons or property, a form of association and legal separation of the labor function of employees and their labor itself.

Neredovna ostava u rimskom i srpskom pravu

The irregular deposit, a contentious concept in Roman law, is believed to have its origins in the eastern provinces of the Roman Empire, sparking debates among scholars about its existence in classical law. This contractual arrangement enables the depositor to utilize the deposited funds, which they own, with an obligation to repay the same nominal amount along with associated interest upon the depositor’s request. According to research, the author contends that this institution did exist in classical law. However, the irregular deposit was absent in Serbian medieval law. The Civil Code for the Principality of Serbia, influenced by the Austrian model, did not treat the irregular deposit as a separate contract. Present Serbian law addresses it in Article 722 of the Law on Contracts and Torts. The author also highlights potential shortcomings of this institution in the Draft Civil Code of the Republic of Serbia from 2015. The paper uses linguistic, historical, and systematic interpretation of passages: Paul. Sent. 2.12.9, D.12.1.9.9, D.12.1.10, D.16.3.24, D.16.3.25.1, D.16.3.26.1, D.16.3.28, D.16.3.27, D.16.3.29.1, D.16.3.1.34, D.19.2.31. and historical method.

The Protection, Ownership, and Return of Cultural Property: A Surinamese Law Perspective

This article explores the ownership of cultural objects within national and traditional customary law in Suriname, with the aim to provide a legal context to the issue of claims for the return of some of these cultural objects from the Netherlands. The discussion of the legal regime for exporting cultural objects examines the National Ordinance of 1952 on Provisions for the Preservation of Objects with Historical, Cultural, and Scientific Value; the Movement of Goods Act of 2003; and the Monuments Act of 2002, which protects immovable objects, objects of archaeological excavations, and discoveries. This is followed by a short overview of the legal regime relating to the ownership of cultural property under the Surinamese Civil Code. Next this article outlines the property law of cultural objects under customary laws of Indigenous and Tribal communities in Suriname and how these may be included in the Draft Civil Code and the Draft Legislation on Rules Concerning the Collective Land Rights of Indigenous and Tribal Peoples. The article concludes that neither the existing legal framework nor the draft legislation provide answers on dealing with cultural objects acquired in a colonial context and the possible repatriation of such objects.

Genesis of Harm and Losses in Civil Law Doctrine. The Factor of European Science

The works of the first Russian jurists on the problem of compensation for damages in civil law are not sufficiently used in scientific works on this topic. This article can fill in the gaps and be of interest to specialists in this field of research. The author has studied and compared the main works on civil law compensation published before the revolution of 1917. It was found that the science of civil law has moved away from the consideration of universal claims for damages as a remedy and focused on the interpretation of damages as a sanction for an offense. Modern authors repeat the four-level structure of consideration of compensation cases adopted and developed in the Soviet period and the influence of the following conditions: illegality, causality, guilt, proven material damage, lost profit. The author comes to the conclusion that it is necessary to return to the ideas that existed before the Russian Revolution and use them to improve the existing theory of compensation for damages and losses.Russian pre-Soviet civil law initially proceeded from the concept of responsibility only for behavior, since the category of «illegal actions» was introduced in Article 684 of the Code of Laws of the Russian Empire. Due to the developing industry, separate laws provided for payment as the equivalent of property losses for any material damage from dangerous activities, that is, for the materialized risk. In the Draft civil code of the Russian Empire, branched norms on responsibility for lawful actions appeared. A proper scientific generalization of this approach and phenomenon has not yet been made. The Civil Code of the Russian Federation has a norm on compensation for damage due to lawful actions, when it is specified in the law, but not on recovery of damages.

Nematerijalna šteta kao izraz zaštite društvenih vrednosti

The paper examines the development of non-pecuniary damage and the accepted concepts of non-pecuniary damage, in light of protection of social values. While the protection of material goods entails the obligation to compensate the injured party for material (pecuniary) damage, the protection of immaterial (intangible) goods has always given rise to opposed views. In the earlier stages of the development of law, the principle of talion (lex talionis) provided for observance of one's physical integrity; however, its application did not ensure the compensation of the injured party (except for the feeling of satisfaction embodied in revenge) but the punishment of the tortfeasor. On the other hand, the psychological (emotional) harm inflicted on a human being was not a protected legal interest due to the common belief that non-pecuniary damages could not compensate for this injury. The development of legal thought provided a firm foothold for the protection of intangible interests. The next step involved determining the scope of the concept of non-pecuniary damage. In the collision of subjective and objective conceptions on non-pecuniary damage, legislators opted for one of the approaches, or a mixed concept. Ultimately, the acceptance of a specific conceptual framework sets the course in the protection of social values that the legal system seeks to uphold by instituting non-pecuniary damage. The Serbian Civil Obligations Act defines non-pecuniary damage as inflicted physical pain, psychological pain or fear (subjective conception), arising from quantifiable injuries to one's intangible interests (harm caused to one's body, honor or reputation, loss of a loved one, etc.) (Articles 155 and 200). Article 199 of this Act also recognizes harm to personality rights (objective conception). The observed shortcomings inspired the Croatian and Montenegrin legislators to amend their civil obligations acts by introducing personality rights in the conceptual framework of non-pecuniary damage, which is in compliance with the Principles of European Tort Law (PETL). Although both the subjective and the objective conception essentially seek to embrace the same intangible interests, different approaches consequently lead to different scopes of protection. The Draft Civil Code of the Republic of Serbia contains a proposal for instituting a mixed concept, whereby non-pecuniary damage is defined as an infliction of physical harm or psychological pain, and a violation of personality rights. The principle of legal certainty calls for a cautious approach in proposing and implementing changes in domestic tort law.

Bračno pravo u Kraljevini SHS / Jugoslaviji: stanje zakonodavstva i pokušaj reforme

After the Unification, in Yugoslavia there was legal particularism between six legal areas where pre-war law was applied. In the field of marriage law, the situation was further complicated because there was additional particularism between the religious marriage law of the six confessions. The article summarises the condition of state and religious legislation, with special reference to outdated norms; further on it presents the problems of legal uncertainty and the conflict of laws that arose from such a legal framework. There was a consensus among the professional public that the existing situation was very dysfunctional and that reforms were needed, but there was no agreement on specific solutions. The degree of influence that religious communities should have in the future was hotly debated, and depending on that, three models were proposed: mandatory church marriage, optional civil or church marriage, or mandatory civil marriage. At the end, the paper provides an overview of the official proposal for a moderate reform in the Draft Civil Code, along with an explanation as to why it was never implemented. Special attention is paid to the reception of foreign law and the adequacy of transplanted norms within the domestic legal system.

Codification of Civil Law in Kosovo: An Analysis of the Main Principles of Book One – General Part of the Kosovo Draft Civil Code

Kosovo is in the process of civil law codification. Civil law relationships are currently regulated by special laws. After the end of the war in 1999, Kosovo’s jurisdiction became complex due to the simultaneous application of different laws: the UNMIK regulations, previous laws, and the legislation adopted by the Assembly of Kosovo from 2001 onwards. Consequently, these circumstances have had an impact and caused different interpretations and inconsistent application of the laws in the same cases, which among other issues points to the need for codification. The lack of clear and uniform law implementation in court cases related to the civil law matters is also considered an issue that can be resolved by the harmonisation of civil law through a civil code. In other words, the drafting of a civil code will clean up the legal system from different laws in place. It will harmonize and bring Kosovo’s legislation closer to the international standards and best practices in this area of law, which will lead to better law implementation. In this paper, questions related to the approach and model of the civil code will be discussed. Further discussion will focus on the main general principles outlined in the General Part of the Civil Code approved by the Government on 29 December 2021, which is being regulated in Kosovo for the first time. The analyses in this paper are based on a review of literature, Kosovo legislation and references to the European countries’ legislation which are used as models for some parts of the Kosovo Draft Civil Code. Finally, some conclusions are drawn regarding the questions raised concerning the model of the civil code and the general principles included in the code.

Razrešenje nedoumica o tome šta je goodwill i da li primalac franšize ima prava povodom goodwill-a

Franchising as a specific method of contractual investment business has become increasingly important. The legal system of the Republic of Serbia does not directly regulate franchising agreement. Until the publication of the Draft Civil Code, legislation didn’t mention the franchising agreement, and therefore does not know the institute of goodwill as one of the essential elements of the franchising agreement. Goodwill represents a boon and a benefit from a good name and reputation, it is an attractive force that brings customers. Goodwill is important for successful operation of franchisor and the franchising network. By providing answers to the questions: what goodwill is; whether goodwill and reputation are synonymous; what are the types of goodwill and what are the rights of the franchisee regarding goodwill, we believe that we will be able to clarify potential ambiguities regarding this institute that will be relevant to future judicial and business practice in Serbia.

A jeles humanista gondolkodó és kodifikátor, Andrés Bello és a magánjogi (polgári jogi és kereskedelmi jogi) kodifikáció Chilében

The author of this article analyzes the process of codificaton of private law (civil law and commercial law) in the light of the thought of Andrés Bello (1781–1865), the humanist thinker and expert of codification in Chile. The intellectual background of Andrés Bello, born in Venezuela, comprised history, philosophy, linguistics, literature, mainly poetry, education as well as law. It also deserves to be mentioned that Bello was the first rector of the State University of Chile founded in 1842. According to the idea of Andrés Bello Roman law (ius Romanum or ius civile) constituted the background of legal education as well as the primary source of the codification of private law in Chile. The author of the study points out that Bello had no legal education. In the field of philosophy he was substantially influenced by the scholastic tradition. In his works he put special emphasis on morality in compliance with the plurisecular tradition deeply rooted in natural law (derecho natural). This article provides also an insight into the partial influence of the German Historical School of Law (Historische Rechtsschule) on the law related ideas of Andrés Bello. The author emphasizes the decisive influence of Johann Gottlieb Heineccius on Andrés Bello. Andrés Bello was regarded as a major authority regarding his principles of international public law both in Europe and in most countries of Latin America. He spent 19 years in the United Kingdom, in London. His work Principios de Derecho de Gentes, published in 1832 was with no doubt fundamental in particular as far as sovereignty of State was concerned. Andrés Bello was a committed advocate of the Solidaridad americana pointing out the specific features i.e. characteristics of the Spanish speaking states in America. In the field of the codification of private law (civil law and commercial law) in Chile the role of Andrés Bello was determinant. The first step towards codification was the consolidation of the law of the country. The process of consolidation ended in 1833 when the first constitution of Chile was promulgated and came into effect. During the second period, encompassing the period between 1834 and 1838, Andrés Bello took into consideration the French Civil Code, the Austrian General Civil Code and the Civil Code of canton Bern (Switzerland) prepared by Samuel Ludwig Schnell. During the third period (from 1838 through 1849) Andrés Bello contemplated the structure and the contents of the draft Civil Code of Chile. It has to be notes that on the territory of Chile several compilations, namely the Breviarium Alaricianum, the Fuero Juzgo, the Fuero Real, the Siete Partidas, as well as the Ordenamiento de Alcalá were implemented. Moreover, the Nueva Recopilación, promulgated in 1567, the Recopilación de las Leyes de las Indias, promulgated in 1680 as well as the Novísima Recopilación, promulgated in 1805 were in effect. The author of the article emphasizes that the Civil Code of Chile prepared by Andrés Bello influenced the codification of civil law in most countries of Latin America. Therefore, as the author puts it, Andrés Bello can be regarded as a ‘father of codification of civil law’ in Latin America. The Civil Code of Chile was completed in 1855 and promulgated by the National Congress in the following year. The Civil Code of Andrés Bello came into effect in 1857. The Code is still in effect, with minor amendments i.e. modifications. The Civil Code of Chile follows partly the French Civil Code. However, the Código de la República de Chile, albeit does not contain a General Part (parte general), differs from the French model regarding its structure. Compiling the Code, Andrés Bello took into consideration the Spanish legal dogmatics based mainly on Roman law traditions (acervo jurídico romano). He also availed himself of the doctrine developed by the representatives of the German Pandectist Legal Science with particular regard to the thoughts of Friedrich Carl von Savigny (1779–1861). Several legal institutions regulated in the text of the Civil Code of Chile testifies the influence of the works of Jean Domat (1625–1696), Robert-Joseph Pothier (1699–1772), Merlin, Favard de Langlande, Jean-Etienne-Marie Portalis ((1745–1807), Raymond Théodore Troplong, Pardessus and Carl Salomo Zachariae von Lingenthal (1769–1843). Andrés Bello took into consideration first of all the French Civil Code, the Austrian General Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB), the Louisiana Civil Code, the Prussian General Land Code (Allgememeines Landrecht) as well as the Dutch Civil Code (Burgerlijk Wetboek), promulgated in 1838. In the last part of his study the author emphasizes that the Civil Code of Chile does not contain a General Part (Parte General). The structure of the Civil Code of Chile is as follows: the Preliminary Title (Titulo preliminar), containing general dispositions, the Law of Persons, the Rights In Rem, The Law of Succession (Law of Inheritance) and the Law of Contractual Obligations.

Основания недействительности сделок в русском праве: законодательство, Сенатская практика и доктрина второй половины XIX — начала XX века

The article analyses the grounds for invalidity of legal acts in Russian pre-revolutionary law, primarily in the Code of Civil Laws and the Draft Civil Code of Russian Empire. For the purpose of better understanding of the changes that the Draft had been preparing for Russian civil law, the article examines, along with the provisions of the law, the case law of the Civil Cassation Department of the Ruling Senate (Russia’s Supreme Court), as well as the works of prominent Russian scholars of that time.

Wirtschaftlicher Wandel in der Tschechoslowakei der Zwischenkriegszeit

Czechoslovakia was founded on October 28th, 1918, when the National Committee adopted the Act on the Establishment of an Independent Czechoslovak State (Act No. 11/1918 Coll.). This law established the reception of the existing Austro‐Hungarian legal system that thus formed the legal system of the new republic (legal dualism). In Bohemia and Moravia (briefly also in the Hlučín Region) the law of Cisleithania, and in the rest of the republic the law of the Lands of the Crown of Saint Stephen, applied. The Czechoslovak government had to solve a number of economic problems. In 1919, the threatening financial crisis was averted by the country’s first minister of finance, Alois Rašín, who initiated a monetary separation that resulted in the adoption of a separate currency. A relatively extensive land reform took place from 1922. The first estates to be confiscated and partitioned were those belonging to the German and Hungarian aristocracy; those who benefited were Czech and Slovak farmers. Also, nostrification took place, the aim of which was to transfer the headquarters and management of businesses to the Czechoslovak Republic. As a result of the take‐over of the legal system, the legal regulation of commercial law was different both in terms of content and language in the two parts of the country. In the legislative area, efforts had been made to unify and at the same time to modernize the legal order across the most important areas of law. In the field of commercial law, the preparation of a new codification was based on the Austrian codification of 1863 and the Hungarian codification of 1875. The preparation was subject to the Ministry of Justice and the Ministry of Unification, which set up expert commissions that developed the Draft Commercial Code. The course of the codification preparation process is further analyzed in the text, and attention is paid to the content of the individual codification proposals. A draft published in 1937 by the Ministry of Justice entitled ʺDraft of the Commercial Codeʺ contained the first (Merchants) and second book (Companies) and had 236 sections. Unlike the then valid Czechoslovak Commercial Act that was based on a mixed system, the Draft of the new Commercial Code was based on a subjective system, on which the German Commercial Code was also based. Unfortunately, this proposal was not adopted by the legislator and remained only in the preparatory phase. One of the reasons was the wait for the adoption of the Draft Civil Code, which did not occur as a result of the German occupation. In the interwar period, therefore, some partial norms were adopted, which unified important areas of commercial law. This included Act No. 259/1924 Coll. (Trade Licensing Act for the territory of Slovakia and Carpathian Ruthenia) on the basis of which the regulations of the former Austrian Trade Licensing Code were used with appropriate adaptation to the conditions in this territory. The other acts were the Bill of Exchange Act (Act No. 1/1928 Coll.), Act No. 145/1934 Coll. on insurance policy, and Act No. 147/1934 Coll. on securing the claims of policyholders in private insurance and on state supervision over private insurance companies. Another important law concerning state intervention in the economic area was the Act against Unfair Competition in 1927 (Act No. 111/1927 Coll.). The complex conditions of the receding economic crisis had created the need for bankruptcy legislation (Act. No. 64/1931 Coll.) and an amendment to procedural law (Act No. 1/1933 Coll.).

Project civil code of the republic of Uzbekistan: Token, blockchain and smart contracts

This article researches the content of the draft Civil Code ofthe Republic of Uzbekistan and the issue of smart contracts. The study also analyzes the issue of defining smart contracts as a written form of agreement and contract. The disadvantages of concluding a will agreement through smartcontracts are justified. The article explores the basics of using smart contracts as a way to fulfill an obligation.

Environmental protection in the draft civil code

Article 11 of the draft Serbian Civil Code establishes a precedent, i.e. the principle of environmental protection. It is manifested as an accessory popular civil duty erga omnes, a protected public good, and a means of civil rights? restriction. This paper investigates whether this new institution of civil law is necessary or at least opportune, purposeful and harmonized with positive law. The results of comparative and doctrinal insights indicate that the answers to these questions are affirmative. However, certain shortcomings of the proposed provision are found: the lack of a duty to restrain from environmental harm, the absence of the individual environmental right and the undefined impact on civil affairs and on the enjoyment of civil rights. Given the vague and blanket nature of the provision, these shortcomings can be remedied by broader interpretations and references to the rules of public and environmental law, ethics and intergenerational solidarity. This paper suggests another possibility, i.e. the intervention in the proposed text of the provision to complete the future civil law legislation and integrated environmental protection.

РАЗВИТИЕ РОССИЙСКОГО ОБЯЗАТЕЛЬСТВЕННОГО ПРАВА В ПРОЕКТЕ ГРАЖДАНСКОГО УЛОЖЕНИЯ 1905 г.

The author analyzes the level of development of the civil legislation on the example of the law of obligations by means of its comparative analysis with the civil legislation in force in Russia in 1914 – the Code of Civil Laws. Examples of legal novelty in the articles of the draft Civil Code, indicating the development of the Russian law of obligations, are considered. The conclusion is made that the civil legislation developed in the draft was, in quantitative and qualitative terms, a significant step forward, bringing Russian law of obligations closer to European law.

The Urgency of Regulations Revision Related to Filing Bankruptcy and Postponing Debt Payment Obligations Amid the COVID-19 Pandemic

The purpose of this research is to analyze the requirements of bankruptcy regulations and postponement of debt payment obligations on the increase in bankruptcy filings and delays in debt payment obligations in the middle of the COVID-19 Pandemic. This research uses a normative juridical research method with a statutory approach and a conceptual approach that is supported by primary and secondary legal materials. The results of this research indicate that the increase in filing for bankrBankruptcydelays in paying debt obligations at the Commercial Court is due to unclear rules regarding filing for bankrBankruptcyecially the requirements in filing for bank bankruptcy do not specify the amount of debt that can be filed for bankrBankruptcyre is a need for consideration in making and stipulating bankruptcy arrangements, both in the Draft Civil Procedure Code and the Bankruptcy Law and Suspension of Debt Payment Obligations, especially on issues: the amount of debtor debt, simple evidence, creditors holding guarantees in bankrBankruptcyminal confiscation in bankrBankruptcyker wage rating, bankruptcy estate settlement, and position of the arbitration award in bankruptcy cases.

A NEW ROLE OF CAUSATION THEORY TOWARDS ACHIEVING ECONOMIC CONTRACTUAL EQUILIBRIUM: ANNULLING THE ARBITRARY CONTRACTUAL CONDITIONS

The phrase “who says contractual, says justice” (qui dit contractuel dit juste) does not fully express the truth of present reality, where the phrase itself falls into doubt, since a contract does not always result in fair obligations. In this regard, the French judiciary realized that the absence of justice in a contract might arise as a result of the contractual freedom afforded to the contracting parties. Thus, the idea of Commutative Justice in the contract was developed, such as, the Chronopost’s decision which is considered one of its most important applications. However, the equivalence of rights and obligations in the Palestinian Draft Civil Code only exists in a virtual form, without any content that actually contributes to the achievement of the equivalence between rights and obligations in contracts. This article seeks to prove that the provisions of the causation theory in the Palestinian Draft Civil Code can be used as an effective means for achieving contractual justice between the contracting parties, in order to maintain economic contractual equilibrium of the contract. To do so, the function of the causation theory should be analysed in a comparative analytical approach with the Chronopost’s decision to illustrate the Palestinian legislative deficiencies. It will also show the need for adopting the French judicial approach, which will establish a general rule that any arbitrary clause that contravenes the essential obligation of the contract is considered to be unwritten, regardless of the nature or the subject matter of the contract.