Law Of Obligations Research Articles

Veterinary surgeons’ legal obligations in sales-related animal health status examinations

The article presents, interprets, analyzes and examines legal obligations of veterinary surgeons who conduct animal examinations, issue decisions on animal health, and prepare opinions in connection with the contract of sale. It examines responsibilities originating from various sources and forming a complex system of relationships. A veterinary surgeon has numerous obligations in the field of civil law (including general civilian rules and norms of the law of obligations) and corporate law (including ethics and professional deontology). Moreover, he also has specific documentation, information, and explanatory duties closely related to the contract. The liability threshold of a veterinary surgeon is very low, which applies in particular to the mixed contract discussed here (an obligation of due diligence in relation to examination and an obligation of result in relation to decision-making).

Niemiecki kodeks cywilny w pracach Komisji Kodyfikacyjnej nad Kodeksem zobowiązań z 1933 r.

The work aims to discuss the use of the German Civil Code from 1896 (BGB) by the Codification Commission in the work on the Code of Obligations from 1933. The subject of codification and unification of private law in the interwar period is of great interest to historians of law. It is also an issue for experts in comparative legal studies. This is since the process of unification and codification of the law of obligations in the Second Polish Republic assumed the development of a code combining elements of all laws of the former partitioning states. As a result, the Polish Code of Obligations does not belong to either the Romanesque or the Germanic system. Particularly noteworthy is the use by members of the BGB Codification Committee. The work will present a list of the provisions of the Code of Obligations that were modeled only on the German law or on the BGB and other codes. Additionally, the use of BGB will be presented on selected regulations of the Code of Obligations. When determining the impact of BGB on the rules of the Code of Obligations, a comparative method and the texts of normative acts, legislative materials, and legal literature will be used. The justification for the draft Code of Obligations by Roman Longchamps de Bérier will be particularly helpful. The subject matter raised in the paper may turn out to be attractive to Polish and German researchers studying the impact of the BGB on the development of Polish obligation law.

DYNAMICS OF A CIVIL OBLIGATION FULFILLED THROUGH THE USE OF INFORMATION TECHNOLOGIES (SMART CONTRACT)

Abstract: The article is devoted to a new phenomenon for the Russian legal and economic space – the smart contract. The author of the article, based on the novel of Part 2 of Article 309 of the Civil Code of the Russian Federation, considers the dynamics of a civil obligation that is fulfilled through the use of information technologies. Thus, the article structurally highlights the parts devoted to the actual dynamics itself, the stage of occurrence of an obligation mediated by a smart contract; the stage of performance of such an obligation through the prism of the principles of performance; as well as the stage of termination of the obligation under study. The paper shows three main scientific approaches that reflect the mechanism of occurrence of an obligation that is fulfilled through the use of information technologies; the legal characteristics of click-wrap and browse-wrap agreements are given; the specifics of the known principles of performance of obligations in the performance of obligations using information technologies are reflected; it is concluded that it is necessary to adapt the law of obligations to digital realities, which is possible without a radical "breaking" of the pandect system of Russian civil law and the key approaches of the legislator to the main legal instruments of civil law.

РЕФОРМА ГРАЖДАНСКО-ПРАВОВЫХ ОБЯЗАТЕЛЬСТВ В РФ И ЕЕ ВЛИЯНИЕ НА ИНСТИТУТ ВОЗМЕЩЕНИЯ ВРЕДА (УБЫТКОВ)

Introduction: of all the instruments of protection of subjective property rights, the fundamental role belongs to the institute of indemnification, whose regulatory framework needs to be clarified. The purpose of this paper is comparative description of the important legal aspects of the main type of property liability. In accordance with the purpose, the following objectives were set: to determine the extent to which legal provisions of general regulations on obligations laid down in the Civil Code of the Russian Federation should or can be applied to claims for damages; to formulate the proposals for improving the indemnification court practice. Methods: the methodological framework of the study consists of specific scholarly (special legal, comparative legal) and general scholarly (problem-theory, teleological, and system) methods of analysis. The main trends in the development of the institute of liability and the debatable aspects reflected in the Russian and foreign documents were studied with the use of the problem-theory and system analysis methods. Results: being a summary overview of the available knowledge and comparative regulatory material, this paper allowed us to articulate the ideas aimed at improving the fundamental principles of legal regulation of relations in the sphere of protection of subjective rights, in particular indemnification. Discussion: indemnification is a developing major institute of civil law, invariably attracting the attention of scholars around the world. Lately it has taken on special significance and some of its aspects have become a focus of a separate field of scholarly discussion. Many Russian scholars have written about indemnification in a comparative aspect: О. N. Sadikov, V. V. Baibak and others [2, 15]; this paper focuses on the reform of Russian law of obligations and the new provisions of the Civil Code of the Russian Federation of March 8, 2015 and reveals the consequences of the reform for the institute of damages, discussing this topic in detail as a separate standalone issue. Conclusion: we hope that this paper will contribute to further discussion in the civil law doctrine of the ideas and conclusions presented.

Contracts in business transactions according to Polish law

The article aims to familiarize the Russian reader with the issue of contracts concluded by professional entities (entrepreneurs) under the Polish legal system. Undoubtedly, the majority of all contracts concluded by private law bodies are trade contracts. It should be noted that the concept of trade contracts covers contracts in which both parties are professionals as well as those in which only one of the parties acts as an entrepreneur conducting their business. The article discusses 8 contracts as follows: contract of agency, contract of consignment, contract of carriage, contract of forwarding, bailment, contract of storage, delivery contract and leasing contract. They are a compilation of typical contracts traditionally concluded in business transactions. Their choice was determined both by the scale of their use in practice and their importance for commercial activity. At the same time, as highlighted in the paper, due to the freedom of contract principle under the Polish law of obligations, these contracts may be (and often are) used as model solutions that entrepreneurs will rely on when entering into legal relations that are not explicitly indicated in the Polish legal system (so-called unnominated contracts). In conclusion, attention is drawn to the challenges the Polish legislator faces today in the field of contract law due to contemporary economic changes. Furthermore, the threats posed by both excessively strict legislation and a lack of proper regulation are identified along with a recommended solution aimed at reconciling these diverging positions. According to this suggestion, in order to grant a normative form to unnominated contracts, commonly concluded in business transactions, concrete measures should be taken only in the form of guidelines, non-binding proposals that can be used by entrepreneurs to guarantee a minimum level of protection for parties to such contracts.

Transfer of creditor’s rights to the third parties as the substitution of parties to an obligation

The article studies the general issues of the transfer of creditor’s rights to the third parties as the substitution of parties to an obligation. It is noted that legal literature devoted to the study of law of obligation, the focus is on the institute of modification of obligations. The author stresses that in civil law, there are many interpretations of the concept “substitution of parties to an obligation”, but many scholars share a unified position towards the concept of the institute of modification of obligations by defining it as a change of some elements. The author proposes the classification of cases of modification of obligations by E. Hodeme, who separates three types of modification of obligations: changes which belong to obligation power; changes which belong to a subject or content of an obligation; changes which belong to active or passive subjects of obligation. It is highlighted that as the parties of obligation involve an active subject (a creditor) and a passive subject (a debtor), an obligation is subject to modification both on the part of the creditor and the debtor. In other words, the original creditor and/or debtor can secede from this obligation during obligation action through the substitution. Legal literature defines such a change on the part of the creditor and the debtor as the substitution of parties to an obligation. Taking into account the research subject, the main focus is on the contractual ways of the substitution of parties to an obligation, specifically the contractual transfer of the creditor and assignment of debt. The legal regulation of cooperation between persons participating in the transfer of the rights of demand of the original creditor to the new creditor. In particular, the author characterizes the interrelation between the original and new creditors and the interrelation between the new creditor and the debtor. The research makes it possible to conclude that the legislator strives to keep the stability of the original obligation through allowing the transfer of the creditor’s rights and to avoid the abuse of creditors, it ensures the legal protection of creditors –the weakest subject from the perspective of legal scope of the influence on the process of transferring the mandatory rights of demand to him – using compulsory rules.

Compliance of Territorially Fragile States with International Human Rights Law

Fragile States are defined as states incapable of fully implementing their international obligations in a part of the territory falling under their jurisdiction. The fragile State's compliance with its international law obligations is then reduced due to objective factors, which also has a major impact on international human rights law (IHRL). However, doctrine has ignored that fragile states can and sometimes do implement their positive obligations in areas beyond their effective control by virtue of the evolving interpretation of IHRL, based on effectiveness. The article argues that each of the dominant conformity theories can only partially explain the factors that influence compliance with IHRL by fragile States: instead of limiting conformity to a monocausal model, rational choices and internal socialization processes should be taken into account to enhance compliance of fragile States. The two main schools of doctrine, rational and constructivist theories, provide complementary explanations to the questions of why and how fragile States can comply with their positive obligations under the IHRL. Rational theories explain that the respect, by fragile States, of their positive obligations in IHRL has direct advantages, especially in terms of monitoring the human rights situation, the well-being of the population of the region and international cooperation. Rational interests do not, however, explain why public bodies act in such a way as to promote the protection of human rights in the area beyond the effective control of the State, especially if their national behavior is not reported in international human rights mechanisms. In these cases, constructivism can provide a complementary explanation: repeated models of norms play an essential role in the creation of a common identity, in particular the belief of national actors in an ideal and active State.

Constitutional identity and judicial cooperation in civil matters in the European Union – An ace up the sleeve?

The reliance on constitutional identity by EU courts and governments has been widely discussed in legal scholarship, but less attention has been devoted to the impact of constitutional identity-based arguments on the evolution of judicial cooperation in civil matters. Member States have increasingly relied on constitutional identity in the area of private international law to claim the application of their own law or reject the recognition of foreign situations. Constitutional identity can be invoked through the public policy exception, to avoid the normal operation of private international law rules. Member States can also refer to constitutional identity when staying outside the adoption of EU private international law rules, especially regarding family law. Constitutional identity can thus impede judicial cooperation in civil matters and contribute to the fragmentation of EU private international law. Constitutional identity does not grant unfettered freedom to Member States, however. The autonomous private international law rules of the Member States must respect EU fundamental principles if the situation demonstrates some connection to EU law and the public international law obligations assumed by the Member State concerned.

Civil law obligation reform in Russian Federation and its effect on the institute of damages (losses)

When an economic actor resorts to recovery of damages as a legal remedy, the main question that arises is what legal provisions govern the claim raised by such an actor. At a first glance, the answer is simple: both Chapter 25 (“Liability for violation of obligations”) and Article 15 (“Reimbursement of damages”) of the Civil Code of the Russian Federation contain provisions governing the terms of satisfaction of financial claims. However, such claims do not always arise from a failure to perform obligations and sometimes are even raised in the absence of an offence per se as stated by law. Therefore, quite often we need to consider the extent to which it would be lawful or, perhaps, even appropriate to invoke some of the provisions contained in Subsection 1 “General provisions on obligations” of Section III of the Civil Code. More detailed provisions on obligations introduced in March 2015 to Civil Code of RF may not be compatible with circumstances of losses. Articles 310, 311, 313, 314, 328, 407, 416 if applicable to damages recovery claims would undermine the said remedy as such. They grand a debtor the legal basis assumed and adopted as his limited protection in obligatory relationship as a whole to avoid the burden of full reimbursement by suspension of performance, counter demands, etc.

AN INSURANCE AGREEMENT AS A REGULATOR OF INSURANCE RELATIONS

The article studies the general provisions of insurance contracts as an effective and efficient means of regulating insurance relations. It is noted that taking into account the level of development of insurance relations, which is based on the rules of national and international law, directly depends on the perfection of national legal institutions and legislation in the context of European integration processes related to the signing of the Association Agreement between Ukraine, on the one hand, and the European Union, the European Atomic Energy Community and their Member States, on the other hand, there is an urgent need to improve the mechanism of legal regulation of the private law segment of relations in the area of insurance services. The judicial practice of the relevant authorities, which proves numerous cases of unequal application of legal requirements when reviewing cases related to the provision of insurance services, gives a boost. It is stressed that in the system of civil law contracts, it is appropriate to consider insurance contracts as a subtype of civil legal obligations within the framework of the type of service contracts, the main feature of which is that the provision of a service is inseparable from the activities of the person - the provider of services (the provision of an insurance service is inseparable from the activities of the insurer), and the beneficial effect of such activities lies in the process of providing the service itself. In the research analysis statutory acts in the area of insurance relations is provided and best practices of the legal regulation of insurance relations is investigated. There are theoretical interpretations of the legal doctrine and law enforcement practices in the area under study. The author determines the place of contractual insurance obligations in the system of civil law obligations, the correlation of the subject and object of the insurance contract, the essence of the insurance service and insurance risk.

Proving Bad Faith in International Law: Lessons from the Article 18 Case law of the European Court of Human Rights

The aim of this chapter is to analyse the ECtHR’s evolving bad faith jurisprudence against this backdrop of the difficulties associated with proving bad faith violations in international law. By way of a close reading of the case law of the European Court of Human Rights between 2004, when it found its first bad faith violation until 2019, the chapter investigates how the Court has come to treat good faith as a rebuttable presumption, how the secondary rules of evidence concerning bad faith violations have developed in the case law of the Court over time, and the consequences of these developments for the primary rule provided in Article 18 of the Convention. The Chapter argues that the development of secondary rules of evidence to prove bad faith violations of the Convention are closely interrelated with the recent developments in the interpretation of primary rules of the Convention under Article 18. The ECtHR’s bad faith case law has, over time, evolved away from a direct and subjective evidence paradigm to a circumstantial and indirect evidence paradigm. At the same time, the substantive interpretation of Article 18 of the Convention, too evolved, to signal that the use of domestic laws and judicial proceedings in the service of anti rule of law and anti-democratic agendas constitutes a violation of the Convention. These developments make the ECtHR an avant -garde adjudicatory body in developing secondary rules of evidence for deciding whether states violate their international law obligations in bad faith.

Law Applicable to Obligations Arising from Bearer Securities other than Bills of Exchange and Cheques – Comments in the Context of the Private International Law Act and the Rome I Regulation

Issues of the law applicable to obligations related to securities are regulated by the Act of 4 February 2011, private international law and the provisions of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I). The purpose of this article is to determine the connecting factors for the indicated law applicable to the obligations arising from bearer securities other than bills of exchange and cheques, including dematerialized securities. To this end, an attempt will be made to determine the relationship between the provisions of Art. 31 of the Private International Law and Art. 1, sect. 2, point d of the Rome I Regulation, which will determine whether it is appropriate to assume that the choice of law for bearer securities obligations will be admissible or whether it is appropriate to assume that in the area of obligations arising from securities other than the bill of exchange and the cheque only objective connecting factors have been used.

Insurance Contract and Aleatory Contract under Reform of the Law of Obligations in France

Insurance Contract and Aleatory Contract under Reform of the Law of Obligations in France

The Country of Origin Principle and the Applicable Law for Obligations Related to the Benefit of Information Society Services

The article takes all of the abovementioned legacy of European Union Law into consideration while analysing them in depth through the prism of the principle in question and via careful comparisons of each of them as well. Particular attention is paid to the following issues, namely: the legal nature of the principle in question, its treaty sources, its scope of application, the principle in question in the light of the abovementioned directives – namely the Directive on audiovisual media services and the Directive on electronic commerce; and finally – relationships between provisions of the two aforementioned directives in the context of audiovisual media services on demand. While working on the text, all of the mentioned parts of the main subject turned out to be important enough to put them into separated sections of the text with their own individual headings. In the meantime, several interesting subject-related sentences by the European Court of Justice were also taken into account for a broadened pool of reference. To sum it all up: ultimately, the principle in question and its potential influence on the practical functioning of the European Union’s law and economy has been considered thoroughly.

Ziyadelerin İbadetlerin Sıhhatine Etkisi

One of important aspects that distinguishes Islamic law from other legal systems is that it regulates individuals' lives of worship. Good servitude is possible by spending whole life in form of worship, in line with Creator's orders. For this reason, moderation, not excess, was accepted as basis in prayers. Therefore, person who wants to be good servant will reach this level by staying within boundaries drawn by nass (the certain sources). In other words, believer can be good servant by staying within limits declared by Shari (God) in his life of worship. Here, in this study, situation of worshiping of those who knowingly or unknowingly exceeded limits determined by Shari were evaluated. One of important aspects that distinguishes Islamic law from other legal systems is that it regulates worship life of individuals. In this context, prayers are shaped within framework of Book, Sunnah and Idjma; Except for provisions in details, analogy (ta‘lil), which is an activity of reasoning completely, has been accepted as closed (ta'abbudī). It is considered normal to judge by analogy in details of worship. Because while nass (the certain sources) draws main frame of worship; it has left some situations in individuals’ life to field of idjtihād. In this study, effect of excess performed during prayer on health of worship, whether determined by nass or based on analogy, was evaluated under separate headings. The issue of excess in prayers has been scattered in classical fiqh works due to casuistic nature of Islamic law. The issues related to this study were dealt with both systematically and common system of rules (dhabit) was tried in terms of affecting health of worship. As it is known, concept of dhabit is in sub-category of concept of pedestal. In this sense, while it is defined as the universal proposition that reflects basic principles of law and encompasses provisions of individual issues in different fields to large extent; dhabit is defined as a particular proposition encompassing matters of only one For example, principle Decision is given according to purpose can be applied to many types of contracts in law of obligations. However, proposition the subject is interest in lease contract” is dhabit on lease contract. The following can be stated regarding literature on our subject: First of all, there has been no independent study directly addressing excesses in prayers and their effects on health of worship. On subject of dhabit trials that will be expressed in study, it is known by researchers that there is special literature related to kawāid and dhabit in classical and modern literature. Although in these works habit are pointed out in field of worship, they are not about excesses. In modern studies, there is work titled Muhtasar al-dawāb al-fiqhiya li ahkām fiqh al-ibādāt fī kitāb Nihāya al-matlab li al-Imām al-Cuwaynī, written by Vāil b. Ahmad b. Ramazān al-Hams as master's thesis on prayers in field of worship. . This study is not exclusive to subject of excesses and is based on one of important works of Shafii doctrine. This situation excludes him from our subject. As result, we hope that our research will facilitate further studies. The topics covered in our study; wudū, tayammum, adhān and iqāmah, prayer, zakāh and fasting. These headings were evaluated in context of views of four fiqh schools. If there is choice between different views, this issue is also pointed out in relevant place. It is seen as an obligation (fardh) for an individual to perform prayers, recitation, prostration, circumambulation, touching Qur’an, and taking it in hand no breaking wudū. In this context, ablution is major form of worship as it is condition for another prayer, and its conditions and limits are determined in nass. Therefore, excesses in ablution are discussed in detail. In addition, tayammum is worship to replace ablution or ghusl in event that wudū or ghusl cannot be performed because water is not accessible for any reason. The provisions regarding tayammum are given in detail in nass. It is intended in act of tayammum to clean dirt off oneself by clean soil. In this context, with intention of tayammum, hands are hit on ground (blow) and face and arms are wiped with these dusty hands. It is understood here that it is fardh for tayammum to be valid to have started with intention in heart, and to have hit hands on ground. Within framework of our topic, excesses (ziyādah) in number of hitting hands and wiping face and arms with hands are explained.

DEVELOPMENT OF «LIABILITY INSURANCE» IN GEORGIA FOR THE LAST 10 YEARS» (OVERVIEW OF 2008 - 2018)

In Georgia, the insurance industry has been developing since 1997, since the establishment of insurance development strategy by the state, the LEPL State Insurance Supervision Service, the main insurance regulation law on insurance, normative and sub-legal acts have been developed, and an important place has been given to insurance relations in Georgian civil, air, marine and customs code. Several types of compulsory insurance have been introduced. Over time, with the realization of the benefits of insurance by the public and private business, there has been a growing demand for the various types of insurance offered by private insurance companies. Including types of personal insurance, property and financial risk insurance. There was also some demand for various liability insurance in both the corporate and retail markets. Nevertheless, judging by the statistics of the Georgian insurance market from 2008 to 2018, we will see that liability insurance is less prominent. Leading among the types of insurance are types of insurance such as medical insurance, auto insurance, property and life insurance. Liability insurance ranks sixth and seventh, both in terms of premiums attracted and policies issued. Liability insurance is less in demand today and is preceded by types of insurance such as medical insurance, motor insurance, property and life insurance. The separation of the type of liability insurance and the importance of its development is due to the fact that it is impossible to attribute it to property or personal insurance. If the object of property insurance is the property of a natural or legal person, and the property of a person - human life, health and ability to work, then the object of liability insurance is the liability of the insured (insured) for damage to a third party in accordance with law or contractual obligations. Therefore, the aim of the paper is to reflect to some extent the problems of liability insurance development in Georgia and to offer recommendations for their solution.

Complementary Protection and Encampment

Abstract A camp may be described as a temporary space in which individuals receive humanitarian relief and protection until a durable solution can be found to their situation. The camp environment is often riddled with contradictions—the camp can be a place of refuge while at the same time, a place of overcrowding, exclusion and suffering. This article asks to what extent removal of an individual from state A to state B, where he or she will have to live in a camp, is a breach of state A’s human rights law obligations. It argues that even if encampment in state B will expose the individual to terrible conditions, it is unlikely that they will be able to successfully challenge a removal decision before international human rights courts and/or treaty monitoring bodies.

Независимая гарантия и поручительство: о целесообразности создания единого личного способа обеспечения обязательства в российском гражданском праве

The article is devoted to the advisability of the simultaneous existence of two named personal means of securing obligations — a suretyship and an independent guarantee. Suretyship is a traditional guaranteeing obligation that has arisen in a modern form in the law of Ancient Rome and has been developing for two millennia. In turn, an independent guarantee is the result of the evolution of an artificially created, or rather, copied from foreign banking practice, to solve the problems of the command economy by the Soviet civil law institute of guarantee. As a result of the permanent reform of domestic law of obligations, the introduction of pro-creditor approaches in the practice of resolving disputes related to securing obligations, the borders between the suretyship and an independent guarantee are washed away. Both of these means today assume a third party’s monetary liability in case of a debtor’s malfunction in a secured obligation (suretyship is de jure, and an independent guarantee is de facto). There are obvious tendencies to give the qualities of accessory independence of an independent guarantee and, on the contrary, to the formation of signs of the abstractness of suretyship. In this regard, the author makes an assumption about the further development of personal methods of securing obligations in Russian civil law.

An analysis of cybersecurity in Dutch annual reports of listed companies

In this paper we study the disclosure of cybersecurity information in Dutch annual reports, such as cybersecurity measures and cyber incidents, from a financial law and economics perspective. We start our discussion with an analysis of the requirements in financial law to disclose cybersecurity information in annual reports. Hereafter, we discuss the incentives for the board regarding disclosing cybersecurity related information and its effect on stakeholders and shareholders. We draft hypotheses regarding the actual disclosure of cybersecurity information and propose a research design of an exploring empirical study. The results of our study show that although there is no strict legal obligation to do so, 87% of the companies mention cybersecurity or similar words in their annual report in 2018. However, only 4 out of 75 companies disclosed more than six specific cybersecurity measures, while openness would generate the highest surplus for society from a social welfare perspective. Some major Dutch banks and employment agencies did not disclose any specific information with regard to their cybersecurity strategy, while those companies are highly vulnerable for cybersecurity incidents. This hampers the protection of creditors, investors and other stakeholders. Our analysis aims to propel the debate on stimulation of self-regulation or possible obligations in financial law concerning cybersecurity in annual reports.

Da (im)possibilidade de um tratamento principiológico do enriquecimento sem causa no Brasil

O presente artigo objetiva aclarar o tratamento assistemático dado ao enriquecimento em causa na prática forense, que é, por vezes, invocado como princípio capaz de traçar critérios de justiça e equidade. A partir do método dedutivo, para tanto, traçar-se-á a análise a partir da consolidação do enriquecimento sem causa e seus elementos estruturais no Brasil até a sua reconstrução histórica, afastando-se, ao final, a aplicação principiológica do enriquecimento sem causa, pois é um ramo do direito das obrigações alicerçado na abstração de causa.