Penalty Clauses Research Articles

Estimation of Fly ASH Availability in a Thermal Power Plant for Cement Manufacturers

The Indian coals are having 25 to 45% ash content and huge quantity of fly ash is being generated every day in the Indianthermal power plants. The fly ash so generated are being disposed by dry or wet mode from the power plant. The fly ashdisposed in dry mode is lifted by the cement manufacturers and the fly ash disposed in wet mode is unattended. Mostof the quantity of fly ash is collected in the ESPs. The particle size of fly ash collected in ESPs is finer compared to the flyash collected in other parts of the power plant. For this reason the cement manufacturers prefer the fly ash from ESPs.The quantity of fly ash collected in the ESPs is not directly measurable on everyday basis as there are no well proveninstrumental methods. Also the quantity of fly ash collected in ESPs fluctuates every day due to the varying load factorand coal quality. However, it is important to estimate the quantity of fly ash collected by ESPs on everyday basis so thatthe proportion of fly ash lifted by the cement manufacturers and the fly ash sent to the ash pond will be known. Presentlypower plants do not have a method to estimate the exact availability of fly ash and it is being theoretically calculated fromthe design value that the 80% of the total ash is fly ash and in that a fixed proportion (about 70% of total fly ash generated)is collected in the ESPs. However, the actual generation of fly ash would be different and this is influenced by the type ofcoal used, fineness of the input coal particles, boiler operating conditions, load factor, age of the power plant, etc. Thisuncertainty leads to disputes between cement manufacturers and the utility if there is a penalty clause in the agreementfor not completely lifting the available fly ash (as theoretically calculated by the utility). In view of this it is imperative toformulate acceptable methods for determining the actual quantity of fly ash collected in the ESPs on daily basis. In thepresent work, a simple methodology was developed to quantity the average fly ash collected in ESPs in a 210 MWe coalfired power plant on every day basis through site measurements and routine power plant data. The amount of fly ashdisposed in dry and wet mode has also been estimated through this method.

건설산업기본법상 하자담보책임기간에 관한 강행규정성 고찰 - 건설산업기본법 시행령 제30조 2항의 강행규정성 여부를 중심으로 -

A contract for construction work is a bilateral contract in which each party promises to make a certain payment and bears a debt with a mutual meaning of consideration. In other words, the contract must be concluded according to the agreement of the parties in an equal relationship, and the contents must not be significantly contrary to 'good customs and other social order' or 'fairness'. In principle, if the contents of the contract violate good customs or other social order, or if it greatly impairs mutual fairness, the provision will not take effect. The Framework Act on Construction Industry, which falls under the Framework Act on Construction, is a law that stipulates all matters related to construction work and construction, and is the predecessor of the Construction Business Act enacted by Act No. 3501 in 1981.Therefore, the purpose is to determine basic matters related to investigation, design, construction, supervision, maintenance, and technology management of construction works, and to promote appropriate construction and development of the construction industry. On the other hand, in public construction contracts under the guise of the 'principle of private autonomy', unfair acts resulting from the relationship between A and B frequently occur. Even in this case, it is difficult to fight against this situation, and some contractors pass on the unfairness to their subcontractors, and the lowest class becomes the biggest victim of the unfairness. Since the Framework Act on the Construction Industry is basically a law enacted to regulate construction companies, if one of the contracting parties is not a contractor or orderer, there is no penalty clause that can sanction an unfair act even if it occurs. In addition, as the agreement between the parties is applied before the Framework Act on the Construction Industry, which is a special law of the general civil law or a special law of the civil law, it often provides the cause of unfair conduct. In addition, due to the negative effects of the relationship between A and B, there is of course a limit to the refusal of all unfair acts by the contracting party, who is comparatively inferior to the ordering party in the case of a construction contract. Although the contracting party is generally fully aware of the injustice in advance, it is often necessary to endure it due to its economic status, effectively nullifying the effectiveness of the provisions to prevent unfair acts stipulated in the Framework Act on the Construction Industry. Therefore, it is necessary to specifically and explicitly stipulate the case that falls under a remarkably unfair act in which there is an objectively large imbalance between benefits and benefits in return, etc., so that the compulsory nature can be easily identified. In accordance with Article 30 (2) of the Enforcement Decree, if the period of warranty liability is set separately and the provisions of the law stipulating 'the cause and additionally incurred defect guarantee fee' are violated, the effect of the relevant matter will not take effect. In order to do this, it would have to be specified by supplementing the clause that 'in case of violation of this, it is invalid'. In addition, it would be a way to secure legal stability to legislate as exemplary and specific regulations rather than regulations that can be interpreted enumeratedly, and to stipulate them in laws that are difficult to change rather than enforcement ordinances and enforcement rules.

Conflicts between Main Contractor and Domestic Sub-Contractors in the Building Projects in Tanzania; Experiences and Causes

Conflicts are unavoidable in the projects; there is no project that is free from conflicts. At the same time, sub-contracting has been, and continues to be a very important aspect in building construction industry, as standard procedure in construction. Thus, the study aims at analyzing the conflicts between main contractor and domestic sub-contractors in building construction projects in Tanzania. Qualitative and quantitative approaches were employed in this research. Data was collected using questionnaires. A total of 38 questionnaires were distributed to building construction and domestic sub-contractors found in Dar-es-Salaam, and 32 were returned fairly filled for analysis accounting to 84.2%. On the experience in terms of the connection between main and sub-contractor; findings revealed 81.3% their relationship to be good. 43.8% said yes to have ever been in a project that did not go well because of problems between main and sub-contractor, while 53.1% said “no”. Moreover, on whether the project contract prepared are to each party specifications and satisfaction; 84.4% of the respondents said sometimes. In terms of the availability of a penalty clause in the project contract, if one of the parties fails to comply; 56.3% of the respondents said sometimes. 40.6% of the respondents said the payment is normally done immediately after completion. Furthermore, 75.0% said the contract is prepared by the main contractor. Besides, findings revealed PPRA as the most used form of sub-contract by 56.3% respondents. Additionally, 65.5% of the respondents have had a share of conflicts, either as a main contractor against a sub-contractor, or as a sub-contractor against a main contractor. Also, some respondents revealed, failing to follow instruction, delaying in materials delivery to site, poor quality of work, as well as main contractor’s squeezing them firmly on the quoted prices, leaving them fighting to make ends meet, alongside experiencing huge loses; as the main areas sparking the conflicts. Finally,69.6% reported the extent of occurrences of conflicts in Tanzanian building construction industry to be frequently. Moreover, Findings revealed delays in payment, poor communication, lack of trust, consultants delay in approving work and sample material, and shortage of construction materials in the market as well as unexpected price escalations are the factors with the highest frequency in causing conflicts. The study concludes that for the project to run smoothly and with less conflicts, proper attention must be paid to all recommendations such as good communication, cooperation and timely payment; early notice and proper records keeping; sub-contractor should have enough fund for project; certify work on time and timely payment; and risk management plan.

Considerations on penalty clauses: regulation and enforceability

Abstract Penalty clauses are regulated in the Romanian law through the provisions of the civil Code. These types of clauses are frequently inserted in commercial contracts in order to ensure that all contracting parties will respect their obligations, or will pay the pre-evaluated damages considered by the parties at the conclusion of the contract. As opposed to the common-law regulations, the continental law systems allow and support such clauses, mainly because of the liberty of the parties when concluding a contract; nevertheless, our legislation, as other European legislations allow the mutability of penalty clauses, when they are deemed excessive. In the present study, we aimed to analyze the nature of the penalty clause in the Romanian regulations, as well as study their applicability in commercial contracts, especially when inserted in contracts that are concluded over longer periods of time for the supply of services. We aim to understand if such a clause might be deemed inapplicable if one of the parties decides upon the termination of the contract ahead of term or simply wants to reduce the clause in order to pay a lesser penalty. The legislation states that such clauses may be amended by the court when part of the principal obligation was partly upheld by the party and its execution has profited the creditor, or when the penalty is “manifestly excessive” as opposed to the prejudice that could have been foreseen by the parties at the conclusion of the contract. Based on the current state of legislation, while analyzing doctrine and jurisprudence, we aim to underline what a manifestly excessive penalty should be.

AN ESTATE AGENT’S CLAIM FOR PAYMENT OF COMMISSION, PARTIAL COMMISSION, DAMAGES, PENALTIES AND A QUANTUM MERUIT

Estate agents often become engaged in disputes regarding remuneration, and their legal representatives need to have a clear understanding of the remedies that are available in the circumstances and the different causes of action that can form thebasis of a claim. The traditional claim is one for payment of commission, based on common law, on the grounds that the estate had performed the mandate. This requires proof that the estate agent was the effective cause of the transaction contemplated bythe mandator. A commission claim may also be based on a stipulatio alteri contained in a sale agreement negotiated by an estate agent, in which event only the terms of the stipulatio (express or implied) need to be established. The stipulatio may be worded to the effect that commission would be payable regardless of whether or not the estate agent was the effective cause of the sale. In certain instances the claim would be a claim for damages, not commission, requiring proof of the damages suffered. Claims for the enforcement of a penalty clause are subject to the Conventional Penalties Act 15 of 1962. A claim based on enrichment is a possibility in certain, rare instances. Generally an estate agent’s claim would be a claim for the full commission (or damages in lieu of commission), but a claim for payment of a portion of the commission is nevertheless possible in certain instances.

Agreed payment for non-performance under the Unidroit Principles and Arab region laws

Abstract This article deals with parties’ pre-estimation of the amount of compensation for non-performance (liquidated damages, penalty clause). It discusses this agreed payment in terms of definition, validity, invocation, and possibility of adjustment upon the application of either party. The article presents the provisions of this legal institution in the Unidroit Principles, the Egyptian Civil Code, and the Jordanian Civil Code. It, first, draws a comparison between these laws in the Arab region and, second, considers them in relation to the Unidroit Principles to conclude with a solution that best serves the parties’ interests.

Earnings from Penalty Clauses in Financial Commitments: A Fiqhī Study

The penalty clause has become very common in contracts and financial commitments recently, for reasons such as hedging against damages and the desire not to leave the damage assessment to the judiciary. The expanded use of such clauses and compensations has resulted in the possibility of using them to earn more than the actual amount of damage, which raises some Sharīʿah concerns. It is also noticeable in the contemporary fatwas relating to this matter that different rulings have been given for similar issues and that compensation has been expanded. The research deals with these issues using fiqhī analysis based on the objectives of Sharīʿah rules and existing market practices, and employing an inductive and analytical methodology. The most important conclusions it has arrived at are that the principles and objectives of the Sharīʿah do not prohibit the principle of compensation for damage; however, earning profit from a penalty clause is prohibited by the Sharīʿah. If it is difficult to precisely calculate the actual compensation, it is permissible to adopt an estimated amount when there is certainty that the penalty clause is not being used as a means of earning.

مشکلة الدیون المتعثرة فی المصارف الإسلامیة

مشکلة الديون المتعثرة في المصارف الإسلامية برلنت سيلغروفا . قسم الفقه وأصوله ، کلية الشيخ نوح للشريعة والقانون ، جامعة العلوم الإسلامية العالمية ، الأردن . البريد الإلکتروني: 123@gamil.comBrillant الملخص: تعد مشکلة الديون المتعثرة من أهم المشاکل في العملية الائتمانية، ومن أهم المشاکل التي تعاني منها معظم القطاعات الاقتصادية، بما فيها المصارف الإسلامية، وتزداد حدة هذه المشکلة اليوم بسبب الأوضاع الاقتصادية الصعبة، والأزمات الاقتصادية والمالية التي تعيشها معظم الدول، وخاصة في ظل أزمة کورونا اليوم، وما ألحقته من أضرار شديدة بالقطاعات الاقتصادية المختلفة، مما يستدعي دراسة هذا الأمر للوقوف على أسباب هذه الظاهرة، وکيفية الحد منها،وسبل علاجها. وتهدف هذه الدراسة إلى بيان أسباب تعثر الديون، حصر الإجراءات الوقائية التي يجب اتخاذها للحد من مشکلة الديون المتعثرة،وبيان الحکم الشرعي لفرض الغرامات التأخيرية على الديون المتعثرة، ومحاولة إيجاد بدائل شرعية لمعالجة مشکلة تعثر الديون بعيدا عن أسلوب الفائدة الربوية. وقد توصلت الدراسة إلى مجموعة من النتائج أبرزها عدم جواز فرض غرامة تأخيرية على المدين ولو کان مماطلا لأن ذلک ربا وهو لا يحل مشکلة التعثر بل يفاقمها، ولکن يجوز اللجوء إلى القضاء والتحکيم لتعويض المصرف إذا لحقه ضرر فعلي نتيجة التأخير، ويجوز للمصرف تملک هذه الغرامة بشرط أن تکون نتيجة ضرر فعلي لحق به، وجواز تضمين المدين ما نقص من قيمة العملة بسبب التضخم ضمن شروط معينة، ومشروعية قيام شرکات التأمين التعاوني بالتأمين على الدين حالة التعثر. کلمات مفتاحية: تعثر الديون ، الديون غير العاملة ، الشرط الجزائي ، تغير قيمة النقود ، المصارف الإسلامية . The problem of default of debts in Islamic banks Brillant Silgrova. Department of Jurisprudence and its Foundations, Sheikh Noah College of Sharia and Law, The World Islamic Sciences & Education University , Jordan. E-mail : Brillant 123@gamil.com Abstract : The problem of default of debts is one of the problems that most economic sectors suffer from, including Islamic banks, and this problem increases today due to the difficult economic conditions, and the economic and financial crises that most countries are witnessing, especially in light of the Corona crisis, and the severe damage it inflicted on the economic sectors. This necessitates studying this issue to find out the causes of this phenomenon, how to reduce it, and ways to treat it . This study aims to explain the causes of debt default, list the preventive measures that must be taken to reduce them, and explain the Sharia ruling on some issues related to them, such as imposing late fines on debts default, and trying to find legal alternatives to address the problem away from the interest-based method. The study reached some results and solutions, the most important of which is the inability to impose a delay fine on the debtor because that is usury, but it is permissible to resort to court and arbitration to compensate the bank if it suffers actual harm as a result of the delay, and it is permissible for the debtor to pay for the loss in the value of the currency due to inflation under certain conditions, and the legality of Cooperative insurance companies insure debt in case of default . Key words: Debt default, Non-performing Debts, Penalty Clause, Change In Money Value, Islamic Banks.

Method of Setting Environmental Administrative Fine Amounts.

In China, there are currently different degrees of arbitrariness in setting environmental administrative fines, and in many areas the faults are not equal to the penalties. To construct a more reasonable and feasible environmental punishment strategy where violators are fined in accordance with the severity of their actions, we use mathematical models to determine the specific range of environmental administrative fines based on the idea of realizing the appropriate balance between the interest of the violators and those of the public, meanwhile, law enforcement officers are allowed to use their discretion within a certain range. We use an example to prove that the punishment scheme provided by our models can be used to more effectively supervise violators’ illegal behaviors than the penalty clause prescribed by law, and through sensitivity analysis and comparison, we prove that the described models are stable and feasible, and provide advantages over the existing methods. We hope our approach provides intellectual support for maintaining legal order, regulating the environmental administrative fine process, guiding business behaviors, and, most importantly, achieving the goal of protecting the environment.

Penalty Clauses in Commercial Contracts

This article analyses and compares the rules applying to contractual penalties in Austria, Germany, France, Italy and England, as well es under the UNIDROIT Principles on International Commercial Contracts, PICC and the Principles of European Contract Law, PECL. Also, the different approaches found in these legal systems are scrutinised with regards to their practical implications for contracting parties. More specifically, some civil law regimes unduly restrict the signalling function of contractual penalties. This is quite surprising in B2B contracts and while this aims at protecting a contracting party from promising a large penalty, it also restricts the use of one of the cheapest marketing instruments available to a contracting party.

The Impact of the Debtor’s Fault on Penalty Clause Agreements

Ceza koşulu borçluyu sözleşmesel yükümlülüklerini ifaya güdülemeyi amaç edinmiş bir baskı aracıdır. Ceza koşulu anlaşmasında alacaklı taraf, gerek kendisine taahhüt edilmiş olan edimin yerine getirilmesi ihtimalinin artması gerekse her şeye rağmen ifa edilmemesi halinde kararlaştırılan ceza koşulu tutarını, herhangi bir zarara uğrayıp uğramamasından bağımsız olarak, talep edebilecek olması sebebiyle epey ayrıcalıklı bir konumdadır. Ancak ceza koşulu olarak kararlaştırılan tutarın, borçlunun gerçekleşmeyen ifadan kusuru bulunmaması nedeniyle sorumlu tutulmasının mümkün olmadığı bir durumda dahi muaccel olup olmayacağı bugün hala canlılığını koruyan bir tartışma konusu olmuştur. Bu makalede anılan soruya yanıt aranırken öncelikle mevcut kanuni düzenlemeler arasında ceza koşulu borçlusunun kusursuz sorumluluğuna ilişkin herhangi bir işaret olup olmadığı araştırılmış ve ardından da ceza koşulunun kararlaştırıldığı her durumda böyle katı bir sorumluluk rejimine gerçekten ihtiyaç duyulup duyulmayacağı değerlendirilmiştir. Bu değerlendirmeler sırasında karşılaştırmalı bir yaklaşım benimsenerek farklı hukuk sistemlerinde ve uyumlaştırma çalışmalarında konunun nasıl ele alındığı ortaya konmaya çalışılmıştır.

La cláusula penal abusiva y el requisito de la desproporción de la pena

The central requirement on which depends whether or not a penalty clause is abusive (and the-refore whether or not it should be reduced) is analysed: its disproportion. To this end, it must be determined whether it is proportionate to the value of the compensable damage it replaces. Consequently, notwithstanding the provisions of the law, the creditor cannot disregard the damage if the term is contested by the debtor. Although in theory the creditor is also required to have taken unfair advantage of the debtor’s situation, this requirement is ignored in judicial practice, which highlights the centrality of the compensable damage in this matter.

Article 786 of the Jordanian civil code: a potential gold mine for employers and a potential minefield for contractors

PurposeThis paper aims to highlight how the prevention principle may affect the rights and responsibilities of contractors under Jordanian law. In many instances, the application of legal theories and terminology of the Jordanian civil code (JCC), such as penalty clauses and produces a similar result to that under common law, such as prevention principle, and even if in some cases the route by which the result is reached differs.Design/methodology/approachThis paper is based upon library research on primary and secondary sources. The author adopted the interpretive paradigm with its underlying subjectivist assumption. This paradigm creates different meanings and therefore different realities. This is particularly evident when studying legal notions, such as parties’ autonomy and decennial liability, from a comparative law perspective.FindingsIn many instances, the application of legal theories and terminology of the JCC, such as penalty clauses and produces a similar result to that under common law, such as the prevention principle, and even if in some cases the route by which the result is reached differs. However, it is difficult for judges and lawyers in Jordan to understand the legal principles of certain terms in the common law. This requires, to a certain extent, an understanding of the legal terms and concepts, particularly those originated from English law. For example, a thorough grasp of the prevention principle in Jordanian law remains unclear. Apparently, this can be met by training and capacity building sessions.Originality/valueAs far as the author is aware, this issue has not been researched comprehensively before from technical and legal standpoints. This paper represents the first attempt to examine the issues arising in this difficult and important subject.

The War on Drugs: Moral Panic and Excessive Sentences

The United States’ War on Drugs has not been pretty. Moral panic has repeatedly driven policy when states and the federal government have regulated drugs. Responding to that panic, legislators have authorized severe sentences for drug offenses. By design, Article III gives federal judges independence, in part, to protect fundamental rights against mob rule. Unfortunately, the Supreme Court has often failed to protect fundamental rights in times of moral panic. For example, it eroded Fourth Amendment protections during the War on Drugs. Similarly, it failed to protect drug offenders from excessive prison sentences during the War on Drugs. This article examines whether it is time for the Supreme Court to rethink its precedent upholding extremely long sentences for drug crimes. In 1983, in Solem v. Helm, the Supreme Court held that the Eighth Amendment’s Cruel and Unusual Punishment Clause applies to terms of imprisonment. There, it found the imposition of a true-life sentence imposed on a repeat offender to be grossly disproportionate to the gravity of the defendant’s offense. Whatever hope Solem created that courts might limit excessive sentences proved to be false. Two Supreme Court cases dealing with drug sentences, bracketing Solem, demonstrate the Court’s unwillingness to override legislatures’ discretion in imposing sentences. In 1982, the Court upheld a 40-year term of imprisonment imposed on an offender who possessed less than nine ounces of marijuana. In 1991, the Court upheld a true-life sentence imposed on an offender who possessed 672 grams of cocaine. The Court’s refusal to curtail such extreme sentences reflects its willingness to accede to the nation’s moral panic over drug usage. Since the height of the War on Drugs, Americans have changed their views about drugs. Significant majorities of Americans favor legalization of marijuana for medical and recreational use. Many Americans favor a wholesale rethinking of drug policy. Despite studies in the 1950s and 1960s, demonstrating beneficial use of drugs like LSD and psilocybin, Congress yielded to moral panic and included them in Schedule I when it enacted the Controlled Substances Act of 1970. Efforts are afoot at the state level to legalize the study of and to decriminalize the use of those and other drugs. This article argues that the Court should rethink its Eighth Amendment caselaw upholding severe drug sentences. The Court’s Eighth Amendment caselaw balances the severity of punishment against the gravity of an offense. In turn, the gravity of an offense turns on its social harm and the culpability of the offender. The Court upheld extreme drug sentences based on the view that drugs were a national scourge. Moral panic led it to overstate the social harm and the culpability of drug offenders. Scientifically based examination of drugs and drug policy should compel the Court to rethink its excessive punishment caselaw because the balance between severity of punishment and the gravity of drug offenses looks different when one has a better understanding of true costs and benefits of drug use.

From Relief to Compulsion and Back Again in Contract Law

Abstract Relief or compulsion are the two classes of remedy granted for a breach of contract. Traditionally English law is considered to favour relief-based remedies whilst French law prefer compulsion-based remedies. This article seeks to challenge this orthodoxy through the analysis of relatively recent changes in both jurisdictions regarding enforced performance in kind. More importantly, the influence that performance in kind has on other contractual remedies and clauses must be taken into account. Both contractual damages and penalty clauses are shaped by the availability of enforced performance in kind. Comparing English and French law shows that these two systems are converging which enables lawyers to anticipate the evolution of their respective jurisdictions.

Testing a fine is a price in the lab

Recent research in experimental law and economics shows that the imposition of a fine, intended to deter some harmful behavior, may crowd out moral motivation: the behavior occurs more frequently even though a payment is charged to discourage it. In A Fine is a Price, Gneezy and Rustichini (2000) suggest that the payment may induce subjects to frame the intended prohibition as a permission in exchange for a price. Obviously, the effect if confirmed may impact almost any form of public regulation or contract drafting. May fines charged for plastic bags in fact increase usage? May penalty clauses in contracts increase the likelihood of breach?Our study tests this theory, distinguishing it from six alternative crowding-out mechanisms and from confounds in Gneezy and Rustichini’s original day-care study.In our experiment, subjects are offered a contract to perform a real effort task. Subjects are paid upon the acceptance of the contract. If they breach the contract, they keep their payment, but burden their partner with an additional workload. We vary our treatments by specifying different amounts that subject need to pay if they do not perform: T1 specifies no payment, T2 stipulates a low fine disproportional to the extra workload imposed, and T3 stipulates a proportional fine; the payments go to the contractual partner.We find the same mean performance level across all three treatments. However, splitting the sample according to the subjects’ social value orientation reveals a strong crowding-out effect in the pro-social group and an offsetting price effect for the pro-self players.Our last treatment, T4, aims to identify the mechanism behind this crowding out effect. In this treatment, the payment is made to the experimenter, instead of the contractual partner as under T2 and T3. In the absence of a transfer between the parties, T4 forces subjects to view the fine as a penalty, instead of an exchange. Results show that T4 crowds in the pro-social subjects’ compliance, providing causal evidence for the Fine-is-a-Price hypothesis.

Murābaḥah Penalty Clause is Ribā in Disguise! The Penalty Clause Questions the Deep-rooted Preference for Literal Interpretation over Substantial Interpretation of Ribā

Abstract Following the literal interpretation of ribā, jurists have agreed that muḍārabah and mušārakah are legitimate modes of financing. As both arrangements are highly risky to manage in practice, murābaḥah has been introduced as an alternate mode of financing. Despite its extraordinary success, murābaḥah has led to moral hazard in the form of frequent delays in payments and defaults for which Islamic scholars have introduced a penalty clause as discouragement. Examination of the murābaḥah penalty clause instrument suggests that it is ribā, prohibited when interpreted literally. Moreover, the penalty clause has never been enforced in Pakistani courts. This article suggests that the literal interpretation based on the objectives of Sharīʿah (substantial interpretation) will prevent loopholes such as the abuse of the murābaḥah instrument and consequently the penalty clause as well and will lead to substantial compliance with the principles of Islamic finance.

The Civil Law of Contract

The general thesis put forward in this chapter is that there is no reason to expect the economic analysis of law to be any less applicable to civil law systems than it is to common law systems, once structural differences between the two families are taken into account. Civil law systems aim at bringing together all rules pertaining to a given field in a law code; to keep the code workable, its provisions have to be concise, often using rather abstract language to summarise a broad range of situations encountered in practice. Since codes must in principle cover all legal problems within their purview, they carry an implicit ambition of being complete. As a result, unlike common law systems, they have to rely on some broad and open-ended concepts such as good faith or abuse of rights to fill the gaps and “close” the system. The contents of good faith can be clarified usefully by linking it to the economic concept of opportunism. In looking more closely at some civil law concepts, one discovers that matters having triggered discussion in common law systems, such as the desirability of limiting penalty clauses or specific performance, are also cause for reflection in civil law systems. Examination of civil law defects of consent shows developments and arguments that are reminiscent of common law discussions, with a different vocabulary. This similarity had already been highlighted in an Anglo-French comparative exercise (Harris/Tallon 1991). All in all, law and economics provides a useful tool for lawyers in civil law systems at a time when Europe is looking for common principles of contract and delictual responsibility. When one is comparing national legal systems in search of communalities, it offers a functional analysis in terms of which different national systems can, as it were, be put on a common denominator. That is an important asset for doctrinal analysis.

Thy Pedestal Of Shame: Sex Offender Laws And Humiliation In The United States

Since the 1990s and into the 21st century, the United States continues to tighten its sex offender laws both federally and at the state level. Simultaneously, a renaissance is also taking place concerning the proper way to punish various offenders. As the United States began to trend toward alternative sanctions, civil programs, and creative sentences, scholars see issues with shame punishments or Scarlet Letter punishments. These punishments seek to: (1) punish the offender for their offense, and (2) encourage the public to shame the offender through various means. While the methods of shaming have evolved since the days of Nathaniel Hawthorne’s Hester Prynne, the same spirit of shaming is present. In light of society’s justifications for punishment, shame punishments are contrary to the goals of punishing offenders. The concerns of improper punishments are raised under the Eighth Amendment in a recent case in the District of Colorado in Millard v. Rankin, 265 F. Supp. 3d 1211 (D. Colo. 2017). Plaintiffs argue that Colorado’s sex offender statute violates, among other provisions, the Cruel and Unusual Punishment Clause of the Eighth Amendment. This student note argues that these sex offender punishments are inconsistent with our justifications for punishment and that shame punishments as a whole are cruel and unusual punishments not consistent with our evolving standards of decency.

Legal Effects of Arbitrary Dismissal in the Bahraini Labor Law

The legal effects of arbitrary dismissal are legal subjects that need to be studied because of the problems that social laws still need to be decided upon in anticipation of the failure of the legal rule to cover them in the light of the continuous change in economic and social conditions. These effects are compensation for arbitrary dismissal or reinstatement of the employee where possible in accordance with the grounds and controls governing compensation for arbitrary dismissal and the amount of such compensation in fixed-term and unspecified contracts, as well as other labor benefits that an employee deserves as a result of dismissal as notice allowance, termination indemnity in indefinite contracts and compensation for the penalty clause in fixed-term contracts, if any, and other benefits. The question of reinstating the employee is a matter of appreciation to the civil super court - the competent civil court to consider resolving disputes between the employee and the employer concerning unpaid wages due to the employee or illegal deductions of remuneration, whenever the employee is still in employment - constrained by the employer's desire and the possibility of reinstating the employee.