Exchange Of Rights Research Articles

APPLICATION OF THE PROPORTIONALITY PRINCIPLE IN COMMERCIAL CONTRACTS TO ENSURE JUSTICE FOR THE PARTIES

<em>Contracts play a very significant function in business. It is envisaged that applying the proportionality principle will aid in the realization of the contract's objectives and functions. The principle of proportionality governs the exchange of rights and obligations between parties in accordance with their proportions or parts, and it applies throughout the contract process, including the pre-contractual stage, contract formulation, and contract execution. Commercial contracts emphasize characteristics of partnership and business continuity, with the parties exchanging their rights and obligations in a fair and reasonable manner. To build a fair and mutually advantageous contractual partnership, ensure that the parties' interests (rights and obligations) are exchanged in balance. The notion of proportionality is vital not only for creating contracts that are just and mutually advantageous (substantial justice), but also for emphasizing fairness (fairness in procedures). The integration of contract law concepts is an analytical technique for dissecting the presence of contracts formed by the parties in order to manage the parties' various interests in a proportional manner</em>

Договор обмена прав, удостоверенных по конструкции цифровых финансовых активов, и его разновидности

Introduction: the circulation of rights certified by the construction of digital financial assets makes it necessary to make various transactions with such rights, including paid transactions that mediate the exchange of these rights for other objects of civil rights. The purpose of the study is to identify the features characteristic of the agreement for the exchange of rights, certified by the construction of digital financial assets, allowing distinguishing this agreement from related legal categories, to define this agreement and identify its varieties. Methods: the methodological framework for the research is a set of methods of scientific cognition, among which the main ones are analysis, synthesis, generalization, and comparative jurisprudence. The results of the study have made it possible to formulate a position on the need to introduce the structure of an exchange agreement into the system of contract law and apply this structure to relations arising from the exchange of rights certified by the construction of digital financial assets. Conclusions: it is proposed to include the definition of the agreement for the exchange of rights certified by the construction of digital financial assets in Russian legislation, stating it as follows: “Under the agreement for the exchange of rights certified by the construction of digital financial assets for other objects of civil rights, one party that is the owner of digital financial assets, through the intermediary of the operator of the exchange of digital financial assets, undertakes to transfer to the other party of the agreement its own property rights, certified by the construction of digital financial assets, in exchange for the transferred equivalent items (except for cash and currency) or other property rights”. Depending on the specifics of the subject of the agreement, the need to distinguish three types of the rights exchange agreement certified by the construction of digital financial assets is defended.

Rights redistribution and COVID-19 lockdown policy

What is the tenet upon which the public policy of lockdown by fiat experienced during the COVID-19 pandemic is based on? The work approaches this question about the rationale of the mandatory shelter-in-place policy as an interpersonal exchange of rights, but where the exchange occurs coercively instead of voluntarily. It compares, in positive political economy terms, the normative principles of utilitarianism and Rawlsianism, and shows that lockdown by fiat is a policy that is closer to a maximin equity criterion rather than to a utilitarian one. The work moreover shows, also with the aid of a thought experiment and with factual applications, that the fiat redistribution of rights to liberty in favor of rights to health—from those least affected to those most affected by COVID-19—is, in the main, a policy choice that is to be expected under certain constraints.

ЭКОНОМИКА СОВМЕСТНОГО ПОТРЕБЛЕНИЯ VS ТРАДИЦИОННыЕ ИНДУСТРИИ

The development of digital technologies and the circular economy contribute to the creation of new models, one of which is the sharing economy. It is based on information platforms, social connections, and its essence is to ensure the exchange of rights to use resources. Unlike traditional industries, in the sharing economy they do not produce, but “re-consume”. The article analyzes how the sharing economy affects traditional industries, what directions of development companies are changing based on the new model.

Penerapan Asas Proporsionalitas Dalam Kontrak Komersial Pada Jasa Konstruksi

This study aims to find out how the application of the principle of proportionality in commercial contracts on construction services and in line with the government's objectives in establishing a regulation related to construction services provided as a form of government appreciation in providing legal protection for clients or partners of the company's cooperation. The research method used is normative juridical law research based on secondary legal materials. This research uses the statute approach, conceptual approach, and case approach. The technique of tracing legal materials uses document study techniques, and analysis of studies using qualitative analysis. The results of the study indicate that the proportional principle is the principle that underlies or underlies the exchange of rights and obligations of the parties according to their proportion or share in the entire contractual process. The principle of proportionality ensures that the exchange of wills in the contract, which includes 3 stages (pre-contract, contract, and post-contract) can take place fairly according to the proportions of each party. So that with the application of the principle of proportionality, it is hoped that the agreement can be guarded into a fair agreement according to the proportions of each party

A Reconstruction of the Civil Code Article Based on the Value of Contractual Justice

Justice contracts is essentially the fulfillment of rights and obligations in line with the principle of proportionality by observing the contract process from start to finish. The value of fairness in Contracting is: first, the principle of proportionality, where it governs the exchange of rights and obligations of the parties in accordance with proportion or part thereof; second, the principle of consensualism, in which it governs the agreement of both sides. The agreement is a conformity between the will and the statements made by the parties, so that legally an agreement can be held accountable; and third, the principle of freedom, in which it governs the freedom of a person in making a contract accompanied by good faith. Meanwhile, there are 9 (nine) chapters in the book III Civil Code of the partnership requiring the reconstruction of chapters.

Penerapan Asas Proporsionalitas Bagi Hakim dalam Mengadili Sengketa Kontrak

In fact the appropriateness of the contract substance is the dismissibility of the parties ' wishes in a contractual relationship, which is based on agreement, proficiency, ability and compliance with statutory regulations. However, the appropriation and exegesis of the existence of a new problem, there is a double understanding, ambiguity to lead to the misinterpretation of the wishes of the contractual parties, which can cause The Parties ' rights and obligations. For this it is important to do a search of the red thread of a contract, which is expected to find the identity of a contract when disputed by the parties. In this case the principle of proportionality can be used as a parameter for judges in each level of justice in finding a win solution in the matter of the commercial contract he handled. This is because the proportionality measure of the exchange of rights and contractual obligations is always based on equitability, freedom, distribution-proportionate that is not independent of the principle of accuracy, feasibility and Fit. All of which can be used as a red thread of the true meaning of a contractual relationship, which in fact does not have to be centered on the proportion of the distribution of rights and obligations mathematically, but more than that through The basic search of proportionality by the magistrate of the judge, then any contractual matters handled will be resolved worthily and appropriately (fair and reasonableness) in order to achieve a win-win solution among the parties in dispute.

ФОРМУВАННЯ МАСИВІВ ЗЕМЕЛЬ СІЛЬСЬКОГОСПОДАРСЬКОГО ПРИЗНАЧЕННЯ ЯК АЛЬТЕРНАТИВА КОНСОЛІДАЦІЇ ЗЕМЕЛЬНИХ ДІЛЯНОК

The lack of a national strategy (program) for land consolidation, which would be integrated into the country’s land policy, led to the adoption in 2018 of the Law of Ukraine № 2498-VIII “On Amendments to Certain Legislative Acts of Ukraine in Respect of the Issue of Collective Ownership of Land, Improvement of Agricultural Land Use Rules, Prevention of Raidership and Stimulation of Irrigation in Ukraine”. This law is designed to solve the existing problems of land use concerning the rational use of land parcels. However, the principles declared by the relevant law have not gained practical application to this day. The purpose of the article is to analyse the procedure for the formation of the agricultural land layout to ensure the rational use of land through the exchange of rights of use as an alternative to land consolidation. A detailed analysis of the Law № 2498-VIII allowed to develop an algorithm for the formation of the agricultural land layout with the purpose to exchange of land parcels and their rights of use. This has allowed approaching the solution of the set problem in a more structured and comprehensive way. It has been established that the permitted exchange of land parcels and rights of use within the agricultural land layout is not a land consolidation either in the classical or in any other sense. An analysis of the legal provisions of Law № 2498-VIII has revealed their inconsistency with the “Voluntary Guidelines on Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security” and best international practice on land consolidation. The existing obstacles to the implementation of the legislation on improving the rules of land use in the agricultural land layout have been found out. Three key causes of their occurrence (technical, legal and organizational) have been identified.

The determination of the \u201ctrue\u201d property boundary in planned development: a Coasian analysis

This interdisciplinary paper, informed by research and practices in neo-institutional economics, property law and land surveying, is an exploratory account of the boundary as (a) the ontological foundation of private property in land and boundary dispute resolution, and (b) as a pre-contractual condition of any Coasian exchange of rights for planned urban development and space-relevant innovations. Under conditions of positive transaction costs according to the third Coase Theorem, with the help of real-life examples, the paper explains the choice of using the courts, instead of the market, as a means of resolving disputes over land boundaries. It does so in terms of two land surveying and three economic reasons. The surveying reasons are historical and cartographical. The economics reasons relate to the price level of land, the transaction costs of enforcing dispute resolutions and the externalities of land boundary determination.

Private Patent Rights, the Patent Bargain and the Fiction of Administrative 'Error Correction' in Inter Partes Reviews

This paper shows that the Framers empowering Congress to act by “securing for limited Times to…Inventors the exclusive Right to their…Discoveries” understood that the exclusive patent right is not “granted” but is a preexistent right emanating from the inventor – not from Congress. This exclusive right is only secured by statute, as part of the patent bargain in exchange for the inventor’s public disclosure of the invention. Therefore the right adjudicated in administrative validity review of issued patents is a “private right.” It is shown that the notion of post-issuance administrative “error correction” is fiction, as it overlooks the irreversible and uncorrectable exchange of rights upon patent issuance. It is concluded that only Article III courts can extinguish such private rights and that arguments advanced by proponents of post-issuance administrative patent revocation are therefore deficient in supporting the constitutionality of such proceedings.

ASAS PROPORSIONALITAS SEBAGAI LANDASAN PERTUKARAN HAK DAN KEWAJIBAN PARA PIHAK DALAM KONTRAK KOMERSIAL

In commercial contracts, the debates about 'fairness and balance' that led to the 'injustice and imbalance' position of the parties basically irrelevant to be disclosed. It is based on the consideration that the positions of the parties in commercial contracts is similar on the stage of the negotiation process (pre-contractual phase), the formation of the contract (contractual phase) and the execution of the contract (post-contractual phase). Meanwhile, the results of the exchange of the interests of the parties considered fair if it lasts proportionally. The proportionality of exchange of rights and obligations under commercial contracts do not demand results that are always balanced and same (equilibrium-mathematically), therefore the differences in the results are considered fair and reasonably acceptable if the exchange process of the rights and obligations stay proportional. Application of the principle of proportionality in the whole chain of contractual process is basically a manifestation of the doctrine of "fairness of contract" adopted and developed today.Keywords : the exchange of rights and obligations, the principle of proportionality,fairness doctrine in a contract

KONSEP WANPRESTASI DALAM HUKUM PERJANJIAN DAN KONSEP UTANG DALAM HUKUM KEPAILITAN (STUDI KOMPARATIF DALAM PERSPEKTIF HUKUM PERJANJIAN DAN KEPAILITAN)

Based on the assumption default is debt, the settlement of default case in contract law by using mechanisms of the law of Bankruptcy’s has become a new phenomenon in Indonesian business world. Though it is not infrequently the defendant of bankruptcy intentionally default to reply the counterparty that had already been in default (exceptio inadimpleti contractus situation). So the research problem of this thesis is: Is the concept of default on the law of treaties can be fully applied to the concept of debt in bankruptcy law? This research used normative legal research methods by using statue approach, case-based approach, comparative approach and the conceptual approach. Analysis of legal materials is done with a qualitative approach to the exploratory nature of interpretive techniques, systematic, evaluative, constructive and argumentative. The results showed that not all defaults can be expressed as a debt in bankruptcy Law, except if the intended achievement is an achievement in the field of business activity (accounts payable). Default is determined from the agreement, regardless of whether there has been an exchange of rights and obligations or not, while the concept of debt has to be determined from the exchange between the rights and obligations which just happens sided (unilateral halt) though it is not preceded by a written agreement. Beside that, in contract law, tort only accountable to the creditors who have made a covenant only, but in bankruptcy law, the settlement will involve and affect a whole other creditors as well.

Performativity between Logos and Nomos: Law, Temporality and the Non-Economic Analysis of Power

Judith Butler's signature theorizing of performativity requires attention to full ethico-political range of meanings of law, from self-discipline to convention to juridical logic of sovereignty. That is, performativity spans continuum across political rule and ethical rules, and play of processes of subjectivization, subjecthood and subjection. Problematizing sovereign subject, Butler unpacks a priori, intending legal subject by reading law at once as text, thus cracking open self-referential and universalist moves of sealed juridical logic, and also as context, as norms that are always on move. Considering law's performativity challenges authorial and authoritative transparency of law--its sovereignty--by demanding a temporally robust approach to very idea of context. A theorizing of iteration and citationality, performativity poses context as more than just historical and empirical framework for law, contemplating it instead as historicity of law itself, of law understood as ever-shifting convention, or always already situated norms that become sites for citation. My work on installation of rule of law in colonial India, particularly colonial law's staging of society as market, and its temporal politics, that is, its production of modern, contracting economic subjects as opposed to anachronistic subjects of custom, brings me back to these thematics of convention, context and historicity in Butler's work. In British India, a mission to systematize law confronted array of customs and conventions among local populations. Butler innovatively engages such tensions across different forms of law. A deconstmction of speech act, idea of performativity reveals itself as a temporal play that cuts across two broad concepts of law: logos and nomos. Logos, traditionally translated as reason or speech, also evokes a divine performative, word or sovereign command, as well as notion of law as a sealed logic or system. Law as nomos, on other hand, refers to law as convention, what is done and what is accepted. The idea of nomos evokes ways of being, settled norms and values, while at same time exposing a problem of agency: who is agent of convention? In legal scholarship, both explicitly and implicitly, concept of law as nomos has informed robust readings of legal regimes as lived worlds, as normative universes that are made, maintained and remade. (1) Butler's performativity complicates and finesses such critical approaches. To show how, I draw attention to temporal and spatial situatedness of convention and pose nomos as a marker of context, its consistent remaking, and so its (im)possibility. I would like then to emphasize Butler's wide-angle approach to law, which renders her a unique legal theorist whose legal philosophy stems from a relentless focus on slippages across, and temporalities of, law as nomos and as logos. After discussing Excitable Speech to highlight these moves, I will consider ways in which they cite and speak to another influential mapping of ethico-political continuum of law: Foucault's analysis of discourses of governing/government, particularly in his late College de France lectures, and what he calls non-economic analysis of power, which informs his genealogy of governmentality. (2) In a much-cited early lecture, Foucault asks if it is possible to imagine relations of power differently from classical models of social contract that structure liberal democratic legal systems today, models which conceptualize power as an economy or exchange of rights. (3) Butler's theorizing of performativity challenges liberal templates of law and legal procedure in just this way. To further pursue this connection between Butler and Foucault on relationship of law and governmentality, and to bring early Butler of Excitable Speech (4) to Butler of Precarious Life, (5) I will pose questions that are opened by story of rule of law in British India, especially legal institutionalization of that ubiquitous modern social imaginary, the economy. …

Markets, Evaluations and Rankings

Markte, Bewertungen und Klassifizierungen. Starting from the problem of economic coordination, this article defines markets as a social structure for the exchange of rights in which offers are eval ...

The Practice of Defining Markets a Comment on Charles W. Smith

Charles Smith in the Market It is with great pleasure that I take this opportunity write a short comment based on Charles Smith's article, Markets as Definitional Practices (2007). This is also an opportunity present and discuss how markets can be understood. Smith, as is known, has written many interesting texts (e.g., Smith 1981; 1989) that deal with markets, and the current one is no exception. Them are many things that I like with Smith's work. I agree that the market is the most central institution of the economy, that the larger aim of economic sociology is develop a theory of markets, and that ethnography is an indispensable strategy in this undertaking. He should also be praised for addressing markets in relation money, which is all too rare in economic sociology. Moreover, Smith has, in a way that resembles Weber, combined hands on knowledge of financial markets with an analytic outlook. Max Weber wrote two pamphlets (Weber [1893-98] 1999) for the Library of Workers in Gottingen on Die Borse (the stock exchange), which show many sociological insights, but as he grew older, Weber further developed his sociological thinking (cf. Swedberg 2000). Smith's view on markets, if I may, has also become more sociological time. However, my comment is not, and should not be, merely a celebration of Smith's work; that would be demean it, as well as the important issue being researched. The issue at stake, as I see it, is markets. I want point out some issues of disagreement, or where I think one should go further or, in some cases, in a different direction. Before I discuss Smith's contribution I make a short summary of how I understand his arguments. Summary of the Arguments Today few economic sociologists disagree with the central statement of Smith, that markets are part of society. Put in the parlance of economic sociology, markets are embedded, not only in other markets (White 2002), but in the environment at large. This almost self-evident insight must be seen in the light of the differentiation of subsystem, in the words of Luhmann, or spheres, in the words of Nietzsche, Simmel, or Weber. These changes took place in the 17th and 18th century (cf. Luhmann [1984] 1995:461). Regardless of the concepts used, it is clear that the economy has become more independent. Thus, though the economy has always been embedded, it has time become less embedded. The theoretical framework Smith develops aims to, frame markets as evolving in a wide range of more encompassing practices (2007:4). In Smith's text, markets are presented as units, in which actors define themselves and their activities by generating shared meaning as a result of actors taking on each others' roles. This co-activity of market actors generates narratives of markets. A point made by Smith that he shares with Simmel, Weber, and Habermas, is that market activities, as Smith says, over other parts of life. What is meant hereby is not only the idea of market externalities, which economists as well as, more recently, Michel Callon (e.g. 1998) have addressed, but what is called marketization, or the logic of the market. This idea is common in economic sociology, and I do not think it is wrong, but it must be put in perspective. One should remember that also non-market activities spill in markets. Markets, it has been shown, may also become more ethical (Aspers 2006). The literature suggests flows in both directions (Hirschman 1986:105-141), i.e., to and the market economy. What is a Market? This is a straightforward question, and though I agree with much of what is said in Smith's text on markets, I fail see a definition or a description, which sets markets apart from other social practices. I therefore propose the following definition of a market: a structure for exchange of rights, which enables people, firms and products be evaluated and priced. …

Continuities in Markets as Definitional Practices a Response to Aspers, Knorr Cetina, and Prus

Let me first acknowledge my deep appreciation to Professors Aspers, Knorr Cetina, and Prus for the rime and energy that they put into their responses to my paper (Smith 2007). (1) As each of them built on my paper in responding, so I will attempt to build on their comments. Though their comments overlap in many respects, the focus of each varies sufficiently that I will address each individually beginning with Prus, then Aspers and concluding with Knorr Cetina. Robert Prus, while accurately seeing my paper as supporting thoroughgoing constructionist/interactionist approach to markets, seeks to relate it more specifically to the symbolic interactionism tradition of Herbert Blumer. He does so by emphasizing the extent to which markets should be understood as 1. reflectively enabled fields of activity (and interchange); 2. interdependent with non-market factors and situations; 3. engaged with objects with evolving, relativistic meanings; 4. entailing variety of purposes and rationalities; 5. not only entailing ambiguities and risks, but also generating them; 6. ongoing that require ethnographic study; and 7. instances of social exchanges, interchanges and in general and as such best understood and studied within broad theoretical understanding of social processes in general. Given that Prus correctly sees each of these points echoing similar sentiments within my paper, it will come of no surprise that I have no objections with how Prus has extended these points. At the same rime, however, I am perhaps more wary than he in how extensive we should theoretically reach. If I have learned anything from my many years of studying markets of varying sorts it is how theoretically fickle markets can be. All practices, including market practices, are inherently minded insofar as they are informed by numerous expectations in the forms of concepts, schema, and assumptions. These concepts, schema, and assumptions, however, are themselves constantly subject to change within the themselves. While I strongly share the symbolic interactionist and ethnographic antipathy toward attempts to reify and objectify social as inherently meaningful, I am similarly dubious of social actors' autonomy to define object and practices. We similarly need to be very careful in that we not reify concepts and meanings. As cases in point, both the notion of risk and the notion of rationality have undergone quite dramatic transformations within markets, primarily financial markets, in recent years. While risk, initially introduced by Knight (1921) as distinct from was meant to pertain specifically to measurable uncertainty, it has by and large managed to claim the whole field for itself and in so doing obfuscating whole areas of very real uncertainty by endowing them with quite dubious probability quotients. Game theory, rational choice theory and neo-classical economics have successfully been responsible for somewhat similar transformation of our notion of rationality. I am quite confident that Prus and I are on the same page here, but wonder how many readers are likely to overlook the degree to which meanings not only structure practices, but also the degree to which transform meanings. What I have continually found captivating about markets is the extent to which this latter process not only occurs within markets, but the extent to which these transformed meanings often carry over into other non-market social processes. In short, while clearly agreeing with Prus that markets should be understood within broad social practice context, I also feel that the unique research opportunities of seeing Market as definitional practices not be lost in the process. It is specifically this concern that tempers my otherwise very positive response to Patrik Aspers' comments. The heart of the problem emerges quite early in Aspers' paper when he seeks to set markets apart from other types of social by defining them as follows: a social structure for exchange of rights, which enable people, firms and products to be evaluated and priced. …

Wherefore the Liberal State?

The post-Soviet setting is characterized by a disheartening political paradox. Since the fall of communism, some kind of electoralism has been spreading to almost every corner of the former empire, yet liberal rights and the rule of law have not been its fellow travelers; nor do they seem destined to provide companionship in the imminent future. Revisiting the long-standing German current of fiscal sociology, it is possible to solve this paradox. In the Europe of yesterday, liberal constitutionalism was the product of a quid pro quo between the rulers and the ruled: an exchange of rights for revenue. Historically, this “grand bargain of the liberal state” was a prerequisite for liberal democracy, and the very same social mechanisms—or lack thereof— seem to be operating in the post-Soviet world of today.

PLANNING THROUGH THE EXCHANGE OF RIGHTS UNDER PERFORMANCE ZONING

This article sets out an approach to land-use planning involving the exchange of rights under performance zoning - the setting of performance standards in land use such as the protection of property owners from adverse impacts resulting from the use of nearby land. Performance zoning offers high levels of flexibility to landowners to pursue different uses of their property within the limits of agreed standards and reduces the role of bureaucratic and political processes in the implementation of planning regulations.

The Perpetually Sick Self

The Perpetually Sick Self

A transaction cost model of contract choice: The case of petroleum exploration

The growing literature on transaction costs posits that the structures of contracts involving exchange under uncertainty are influenced by the costs incurred by the contracting parties prior to, as well as after, a contract is signed. This research investigates the contractual responses to the substantial uncertainty attending the exchange of rights to underground petroleum deposits. It develops a transaction cost model to explain the payment structure found in these contracts. The model identifies the major transaction costs associated with the payment types used in oil and gas exploration contracts, including ex ante measurement costs and ex post production inefficiencies, and explains their effect on contract structure. Testable implications concerning variations in the payment structure of petroleum exploration contracts are generated and tested using data from private oil and gas mineral rights leasing contracts in four western states. The study has direct public policy significance in that it delineates the implications of different payment structures of oil and gas leasing contracts. These implications can be used to evaluate proposals to reform federal oil and gas leasing policies. In addition, while there has been considerable analysis of federal offshore oil and gas leasing contracts, there has been a dearth of research on private onshore oil leasing practices. This study helps to fill this empirical void.