Comparative Commercial Contracts: Law, Culture and Economic Development
Author:
Kozolchyk, Boris
Edition:
2nd
Copyright Date:
2019
49 chapters
have results for Family Law Cases
Chapter 3. The Law of Contracts in a Pre-Commercial or Agricultural Survival Society 87 73 results (showing 5 best matches)
- In a pre-commercial society, especially one that depended upon survival agriculture, valuable property was that which provided sustenance for the family or closely-knit social group. Such property was not to be sold, or at least not easily. For example, according to the Hindu law doctrine of “necessity,” family or ancestral property could only be sold for an urgent necessity and never for “frivolous” purposes. Even in contemporary Hindu law, if an administrator of a family estate sells valuable property, such as the family land, to support a mistress or to throw lavish parties, the heirs of that estate can recover the land from third parties, regardless of the time of sale. Alternatively, the law can surround the sale of valuable family property with cumbersome formalities, as was the case with the Roman law
- What is truly remarkable is how this principle continued to govern the sales of family land until as late as the end of the eighteenth century in a society as seemingly commercial as France’s. As described by the late Professor John P. Dawson of the Harvard School of law, one of the great comparative law scholars of the twentieth century:
- The power of a seller’s (landowner’s) kindred to retract the sale of family land in China has lasted at least as long as that of India. Under Imperial Chinese law, it was sometimes possible for the kindred of the sellers of family land to retrieve the land sold subject to an “economic necessity” clause in the sale agreement for generations. Under present law, and as part of the Chinese government’s status as absolute owner of the land, its conveyance of land rights (directly or through provincial or municipal entities) does not require the special clauses of revocation of rights of the Imperial law. The official grantor has the power to revoke or expropriate what it gave subject only to a duty of “relevant compensation” that rarely specifies the amount, time, source and procedure for it.
- The long-lasting liability of the seller or grantor in pre-commercial societies has forced the creation of commercial law institutions whose effect is to mitigate such liability. For example, in certain regions in India that until very recently depended on a subsistence agricultural economy, unpaid interest on loans was accumulated without limitation from one generation to another on members of the same family of the original debtor. To prevent such accumulation, Hindu law created the doctrine of “ Clearly, this rule put an end to the indefinite and overwhelming accumulation of family debts. Similarly, medieval Arab and Jewish traders found it necessary to create business association forms that limited the liability of the silent or investment partners to the amount invested, as did seventeenth century English insurers with respect to maritime risks.
- Way; Conflict and Case Law in Primitive Jurisprudence
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Chapter 14. Latin American Codification and Its All-Important Colonial Background 483 278 results (showing 5 best matches)
- The present chapter on the Latin American law of commercial contracts, as well as the Chinese chapters that follow, are largely concerned with the interaction between legalism and familism. Unlike legalism, familism is not official law, but a mostly informal or authoritarian living law. It governs the holding of the family’s property, including its distribution and conveyance; the family’s common budget, including its assets and liabilities; and its contracts with family and non-family members. And all of this contract activity takes place in the midst of an increasingly business world populated by third parties, “strangers,” or non-family members.
- In a legal and business environment such as the one just described, the role of codified, statutory, administrative or court-made law is secondary. Legislators may take pride in the logical symmetry and even in the fairness of their enactments, but what governs the bulk of marketplace transactions is a different law, namely the “living law.” In the case of Mexico and other Latin American nations, this living law stems from a colonial and post-colonial tradition of designed to further tribal, clan or family values typical of agricultural survival societies, but not of free-market economy societies.
- Simply put, in a familistic legal culture, family, kin and, at times, non-family dependents come first, especially in commercial dealings with non-family members. This culture grants rights and imposes duties upon family members as part of the family’s perennial pursuit of survival in a difficult rural environment, and the respected and obeyed patrilineal hierarchy is an essential component of that pursuit. Familism encourages family, lineage and clan monopolization, usually by enlisting the support of political and military rulers who are either members of the extended family or its close friends.
- Surprisingly, especially to someone born and raised in Latin America, the early legal cultures of Latin America and China had important elements in common. In addition to the not-very-dissimilar versions of familism and legalism, including a tendency to monopolize commerce and to treat contracting parties who are members of the extended family better than non-members, pre-colonial and colonial Latin America and Chinese “commoners” shared another important attitude: their respect for and obedience to those who were their social, political and military hierarchical superiors. In the case of the family, the obedience was to the patrilineal hierarchy, and where legalism was concerned, the obedience to the chieftain ( ), warlord or emperor was strengthened by their being equated by the governed to heads of their family households.
- relatives. In that case, they merely delivered the goods bought by the storekeepers, collected some of the bills due and obtained orders for future deliveries. They earned commissions from these transactions. Their other customers were mostly peasants, particularly the women who purchased goods for the entire household. They also sold some farming equipment and other implements to their husbands. They had learned that it pays to be nice and family-like to these farmers. They visited their customers regularly, at times once a week. They would start with small credit extensions payable in weekly installments. They would also bring gifts to their customers’ children and spend a lot of time talking to them about goings-on in their families and the surrounding cities. Then, and only then, would they collect the weekly installments due. They only felt safe extending significant credit to customers whom they had gotten to know well, as well as their families and close friends. Those who...
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Chapter 17. Chinese Imperial, Mostly Living, Law of Contracts 653 107 results (showing 5 best matches)
- This observation explains the remarkable similarity between standard clauses in contracts that conveyed family land subject to the Hindu law’s doctrine of “necessity” and to the customs of the Chinese patrilineal, patrilocal family and lineage. The Chinese conveyances of ancestral land, invariably and in a standardized fashion, asserted the serious economic need of the grantor as the reason for the conveyance. On the other hand, as will be discussed shortly, agricultural productivity required that family members be independent and do so by exploiting their own land. This need for greater productivity was the reason why a “frustrated” imperial bureaucrat found it necessary to legalistically impose punitive taxes on family land, thereby forcing the departure of many a family member from the family household. This was an early instance in which a Confucian-inspired living law of single-line agnatic family ownership clashed with a “legalistic” attempt to encourage economic development...
- Family hierarchy was very emphatically symbolized in the concept of [孝] . . . which is usually translated as “filial piety,” but is more accurately rendered “filial subordination.” When wills clashed, it was expected (and legally enforced) that the will of a family superior should prevail over the will of a family inferior. Traditional law held a child’s insubordination to a parent to be a capital offense, and a daughter-in-law’s insubordination to her parents-in-law grounds for divorce.
- Also significant in terms of hierarchy was that, while family headship passed intact from father to son, family property did not. Early in its history, China abandoned primogeniture as the principle of inheritance of family property in favor of an equal distribution of family land among all of the sons. This made the family not only an economic but also a private law making unit inasmuch as the distribution of family land entailed the conferral of rights and the imposition of duties for those using the land.
- Within the extended family, every child from birth was involved in a highly ordered system of kinship relations with elder brothers, sisters, maternal elder brothers’ wives, and other kinds of aunts, uncles, cousins, grandparents, and in-laws. . . . Family members expected to be called by the correct term indicating their relationship to the person addressing them.
- Because of the importance of the common budget, then, the division of family assets ( When family members decided that their union was no longer feasible, they would agree to a division of the family’s assets and the creation of new, financially-separate families. This situation occurred typically after the death of a father left two brothers and their wives and children as a common economic unit; differences in the productivity of the brothers or in the number of their children led to disputes settled by such a family division. Traditionally, the mediator of such a dispute was the brother of one of the older married-in women, and usually a contract would commit the settlement to writing. As will be illustrated in the following chapter, this agreement was quite common, even in late imperial law.
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Chapter 8. The French Code Civil: Key Policies and Drafting Method 249 165 results (showing 5 best matches)
- A French middle-aged father of a family conveyed the beneficial interest in his life insurance policy to a recently-acquired mistress. His widow and heirs sued the mistress alleging the nullity of her designation as beneficiary. The trial and appellate courts decided that the discernible final of the conveyance was contrary to public morals. They based their decision on the factual findings, on the relationship between the father of family and his mistress, and on established case law. In accordance with the case law, a donation in favor of a concubine was not
- (which rendered the obligation void) as one not only prohibited by law, but also contrary to “public morals” and “public order.” It will be recalled that a gratuitous contract under the in the donor’s liberality. However, what if the gratuitous conveyance is not to a member of one’s family but to a “stranger” such as the grantor’s mistress? In such a case, code interpreters drew a distinction between the cause that appears stated in the contract and the so-called “final,” “psychological” or “impulsive” cause.
- As a lawyer and legal philosopher, he was one of the most influential natural law thinkers of his time, as apparent not only in the , but in public international law. His famous treatise, , or law of nations, based on a natural law that relied on the Holy Scriptures, immanent Roman law (in contrast to temporal and, thus, changing law), and on his observation of the “best” natural impulses of man, i.e., man’s association with his peers by means of families and social, peaceful and productive groups.
- Speaking in favor of the principle of immediate transfer of ownership upon execution of an agreement of sale and reflecting the face-to-face nature of bourgeois real estate transactions, Tronchet, one of the drafters, stated: “He who buys does not require that the law adopt special measures for his safety. He has the title before his eyes. He can verify the vendor’s possession.” To this, Bigot de Preameneu, another drafter, added the need to protect “family secrets”: “The system of notice (to third parties) precludes families from preserving the secrecy of their affairs. . . . This secret is always regarded as one of the principal rights of individual liberty.”
- society, the family or, better still, the household was the owner of most of China’s rural land. Often, as a result of economic necessity, the family or household had to sell its ancestral land. And unless the contract contained a qualifier such as “irrevocable sale,” the sale was deemed revocable by any member of the family who in the future decided that he could pay back the price originally paid by the buyer. This unlimited right of revocation introduced much uncertainty and endless litigation in Chinese courts. Would that be the case in France, despite its relatively short (two-year) statute of limitations?
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Chapter 10. The Code de Commerce of 1807 335 144 results (showing 5 best matches)
- , case law normally has held that a craftsman—meaning an independent manual worker—is not subject to the rules of commercial law. Therefore, it is important to distinguish between a craftsman and a merchant and determine the elements that legally define a craftsman. Case law has provided for the definition of a non-merchant craftsman, and, as happens with most case law, this definition is not devoid of uncertainties. On the one hand, all craftsmen may purchase movable property to resell it, provided that they manually work on it and create a work of their own with it (Article 632, ). But on the other hand, case law has recognized that there may be a commercial manufacturing business even in the absence of purchases made for their resale. Nevertheless, case law has recognized that a non-merchant craftsman is the person who performs manual labor, whether independently or with the assistance of the members of his family; in addition, for purposes of his work he may purchase raw...
- Civil Law is not a source of Commercial Law (El Derecho civil no es fuente del Derecho mercantil). Commercial Law is the only Source (La “ley mercantil” es la única fuente). Neither are [sources of commercial law] case law, equity, the nature of things, general principles of the law nor foreign law (No lo son la jurisprudencia, la equidad, la naturaleza de los hechos y principios generales del Derecho, ni las leyes extranjeras). (author’s translation).
- It is worth remembering that Napoleon Bonaparte’s goal was to protect non-merchants, particularly from the misfortunes of credit transactions that so frequently led to the “mobilization” and loss of fortunes and to the dissipation of family assets (as in the Red Ink case). As just noted, he strongly wanted to discourage the use of bills of exchange or other negotiable instruments by those who were not in business, and especially by bourgeois fathers of family. Yet, as will be discussed shortly, despite this specific context, the listing of acts of commerce by the
- All too frequently, a contract or transaction would take place in which one of the participants performed one of the listed commercial acts and the other an “essentially civil” act. For example, say the seller was an automobile dealer who sold one of his cars and the buyer was a bourgeois father of a family who purchased the automobile strictly for family use. The solution most consistent with the “ a certain formality was essential for that type of civil contract, would the judge dismiss the case in which a defendant buyer had unjustly enriched himself or would he require restitution and if so, of what or how much?
- The distinction between the contract of performance of work [in this case, a building contract] and that of agency carries with it numerous implications, among them: 1) the acts of the builder with respect to third parties do not bind his client [referred to in the law as the landowner]; in contrast, the principal ( ) in an agency relationship is bound by the law of agency and representation; 2) the builder is not a subordinate ( damages suffered by the builder during the course of the building; on the contrary, Article 2000 of the Civil Code imposes upon the principal the obligation to indemnify his agent for all of the losses suffered during his agency; finally, 4) when an agent is paid a salary, case law has established that his compensation may be revised in a manner to reflect the importance of the mandate, whereas the price convened with a builder is deemed of strict compliance by Article 1793 of the ; however, case law has not been uniform on this point and some courts have not...
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Chapter 18. Contracts and Litigation in Imperial and Mao’s China 695 62 results (showing 5 best matches)
- As was discussed in the preceding chapter, Chinese families acted as legal and economic units; this meant that under imperial law, ownership of land and its products belonged to the household and not to the individual members of the family unit, until and unless the land and the accompanying budgets were formally divided or partitioned among them, in which case a new family legal and economic unit was created. Columbia University’s Professor Myron Cohen calls attention to the interaction between contracting families and community ties: “[C]ommunity ties help protect contractual understandings. . . . The witnesses present at the signing committed themselves to
- The second reason concerns the “undifferentiated” approach to the certainty of contract and property rights. Assume that “A,” a member of family “B,” sells land “X” to “C” who intends to develop it for agri-business purposes. A also mortgages lot “Y” to banker “D” who will extend a loan that will facilitate A’s agri-business plans. A believes that lots X and Y are part of his allotment in a division of the land made by his father “E.” E disagrees and believes that lots X and Y were retained by family B under his control. Assume that the division of B’s land was not recorded in a registry, nor in any other public record, or if registered, the recording cannot be found by anyone interested in buying or obtaining a mortgage in B’s land. Assume finally that relying on customary family law or a statutory law, a municipal magistrate decides that the family rights invoked by A and E trump the third party rights invoked by C and D.
- Clearly in this and many other cases of abandoned or reclaimed land, the rights to the topsoil that resulted from the improvements were more valuable than the rights to the sub-soil, yet the only officially recorded rights on the land in question (in the land-tax registry) were those of the owner of the subsoil. Further, as best as I could determine from the case records discussed by Professor Huang, the priority between recorded subsoil rights and unrecorded topsoil rights does not appear to have been elucidated by legislators or judges. In fact, as concluded by Professor Huang, in the case of top soil ownership, code and custom rights were “pitted against the other.” That being the case, what would prevent the priority of a recorded ownership right in the subsoil over unrecorded rights in the topsoil? It is for this reason that third parties buying from or lending to the family or families who possessed or owned unrecorded rights would be hard put to enforce their rights, except...
- From an economic development standpoint, it makes a difference if the rights of E and family B are deemed superior to those of the third party purchaser-investor and lenders. Following such a decision, third parties such as bankers, mortgagees or purchasers of A’s land would not want to buy X or Y or rely on them as collateral. E and family B would be forced to seek development capital among family, lineage or clan members who only proved a good source of capital when they monopolized the business or sector, as was the case with the Huizhou.
- Yet realizing that this right of first refusal enlarged the potential number of bidders and of possible transactions involving land or real property, the imperial government enacted a tax and a waiting period for the completion of the conveyance(s). Thus, the initial two months were extended to six or more months to encourage more bids and transactions. Meanwhile, the title to the family land and to related family law duties remained uncertain and subject to endless lawsuits. Still, by the end of the eleventh century, the “process for selling land had become too cumbersome, and the right of [first] refusal was limited to kin unless the neighbors had graves on the plot[s].”
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Chapter 16. The PecuLIAR meaning of Soviet and Post-Soviet Commercial Contracts: an Invertebrate Legal System 617 115 results (showing 5 best matches)
- Unlike its German and Swiss models, the Soviet Civil Code of 1922 did not include chapters or sections on family law. Such a law was promulgated by the USSR in 1918 and was not made part of the civil code because of the prevailing feeling among Soviet lawyers that the laws of civil transactions, except for non-property transactions and pure exchange or barter of commodities, would soon wither away while the laws of marriage and family would remain.
- [A] citizen with a large family or a right to extra living space may be allowed by the Executive Committee of the . . . borough Soviet of Workers’ Deputies to build, acquire or keep as his property a house, or part of a house, of a larger size. In that case, the living space of the house, or part of a house must not exceed the size determined for the given family according to the norms for tenants in the houses of local Soviets of Workers’ Deputies. . . .
- Equally with the tenant[s] . . . the members of his family who live with him acquire the rights and duties which flow from the lease. . . . The following are regarded as members of the tenant’s family: his spouse, children and parents, and also other relations and dependants who are unable to work, if they reside with him and carry on a common household.
- Surely, the manner in which the sources of Soviet law were listed or referred to in official legal publications (such as constitutions, codes, statutes, decrees, decree laws and regulations) closely resembled that of civil law nations. But that is where the similarities ended. As emphasized in the preceding chapter, the writings of Marx and Lenin, despite their lack of official promulgation as laws or regulations (with few exceptions in the case of Lenin’s constitutional principles), were the living and, in many instances, the supreme law of the USSR at least for the first two decades of Soviet rule. Further, Lenin’s definition of law as nothing more than a “political measure” reinforced a climate of “legal nihilism” inspired by Marx’s prophecy of a withering away of the state during the This climate led some Soviet judges during this period to decide cases based upon what their consciences told them to do.
- Prior to this 1990 law, no classification of property was as important to the commerce engaged in by private parties in the USSR as that of personal property. After many official concessions, retractions and restrictions on what a citizen could treat as his personal property and thus set aside for his and his family’s unimpeded use and perhaps development and conveyance, Article 10 of the Soviet Constitution of 1936 defined personal property as follows:
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Foreword vii 4 results
- The span of this book is enormous. In time it ranges from the pre-commercial era, with its emphasis on community and family relationships rather than on contract, through Roman law, mediaeval law and the evolution of powerful guilds to the age of codification and the development of modern commercial law, noting the influence of the economic analysis of law. In space it traverses old and new legal systems in every legal family, covering a vast number of jurisdictions and of legal, economic and anthropological sources.
- This magnificent new book draws on Professor Boris Kozolchyk’s theoretical and empirical studies over a period of many decades into the development of principles of contract and commercial law in a range of legal families and systems. Founder, President and Director of the National Law Center for Inter-American Free Trade in Tucson, Arizona, since its establishment some 22 years ago, he has brought his wealth of experience to bear on a comprehensive analysis of law as a tool for economic development. The scope of this work is astonishing both in its subject-matter and in the variety of sources on which it draws.
- What has characterised Boris Kozolchyk’s writings from long ago is his focus on merchant motivation, on what makes the law work, on the concept of the and the value added by altruism, and this is the thread that runs throughout this magisterial work of superb scholarship. This is essential reading for anyone seriously interested in the development of commercial law as an instrument of social and economic policy.
- The impact of business practice on the development of commercial law is a topic of endless fascination both to commercial lawyers and jurisprudes. Even such a basic question as “What converts business practice into law?” is fraught with controversy and circular reasoning. This new work focuses on the opposing factors that motivate business practice: altruism and selfishness, co-operation and competition, brotherhood and adversarial behaviour. Interesting too is the contrast in some jurisdictions between commerce between fellow nationals and trading with foreigners. So we are told that in the Japan domestic market co-operation prevails over market freedom, while in the international market Japanese commercial activity is characterised by market competitiveness and low prices.
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Glossary 1347 36 results (showing 5 best matches)
- Familistic law or legal system
- appeals are the most common in Mexican law. They are present in most of the Mexican decisions discussed in this book. In a so called Direct , the appellant complains that his constitutional right to a due process of law was violated by the lower court when it ignored or misapplied the law. The Mexican appeal the allegation that the lower court erred when applying the law to the facts of the case, and for this reason it is a strictly a legal (non-factual) appeal. It differs from the French in that French appellants do not claim that their constitutional rights of due process were violated by the alleged judicial mistaken application of the law.
- —In the Chinese legal system, judicial institutions include 1) police stations, or offices of police investigators, responsible for factual investigations in criminal cases; 2) procuratorates (in the office of prosecutors) responsible for determining criminal charges, and 3) the courts that adjudicate civil, criminal, or administrative legal disputes under the rules of law. One such rule is Article 17 of the
- or part of a “dense” relationship for their own and their families’ benefits.
- Civil vs. Common Law
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Chapter 11. Socio-Economic Context of Germany’s Civil and Commercial Codes 385 41 results (showing 5 best matches)
- From the preceding description of the various transactions involving land and its produce in Germany, was there an archetypal figure in German land-contract law equivalent to the French bourgeois? If a family’s welfare during agricultural survival times depended on what the land produced, would it not have made sense for the law to make the transfer or conveyance of land very difficult, so as to preserve it within the family estate for as long as possible? What made the transformation of land-for-survival to land-for-commercial-growth possible in Germany?
- Having in mind that for much of Europe’s commercial life, going back to its Roman law period, land was the most valuable family asset, what would be the likely consequences of Germany’s commercialization of land and agriculture for purposes of
- With the family as the principal unit of enterprise, family ties—especially when reinforced by religion—sometimes sufficed to sustain [this] trade over long distances. This was so, as Professor Kellenbenz has demonstrated on the basis of genealogical material, with the seafaring Jews between the Iberian peninsula and Hamburg, and between Spain and the Levant.
- ” component of the House of Rothschild motto was the spirit of reciprocal trust instilled among the family partners. A corollary to the principle of unbreakable unity was that of implicit trust in the partners’ acting, above all, for their joint interest. As expressed by Salomon Rothschild to one of his brothers:
- is one of the features that more sharply distinguishes agency in Anglo-American law and in German and German-inspired codes from -influenced jurisdictions. This distinction became evident in the contrast between the laws of agency in the United States and in Latin America, as discussed in Chapter 5. Unless a corporate agent—no matter how important his position in the operations of the corporation or other form of enterprise—is properly empowered to act in the name of the enterprise when entering into contracts, his signature will not bind the enterprise. Recall the Mexican Moctezuma Brewery case (appendix to § 5.13(B)(2), in which the president of the brewery successfully avoided the brewery’s liability in a large contract for the purchase of hops by proving that his power of attorney did not include the authority to purchase raw materials for the manufacture of beer—that power was conferred expressly only upon a lowly purchase manager.
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Chapter 4. Roman Law 109 116 results (showing 5 best matches)
- ] is concerned with the morality of cause in both gratuitous and onerous contracts. It defines an illicit cause which renders the obligation void as one not only prohibited by law but also contrary to “good morals” and “public order” ( illustrates the meaning of the term “good morals.” A French middle-aged, middle-income father of a family, possessed of a modest estate and a lusty sexual appetite, conveyed the beneficial interest in his group life insurance policy to a recently-acquired mistress. His widow and heirs sued the mistress alleging the nullity of her designation as beneficiary. The trial and appellate courts held that there was an immoral cause in the conveyance. This finding, Professor Esmein tells us, is related to the “well-established case law in accordance with which a donation in favor of a concubine is not ...be valid in the case of adulterous relationships. It is null, however, for the immorality of the cause, when, appearing to be a donation, it is, in reality,...
- Consider at this point the fate of the following Roman law-governed transaction: Numerio promises orally or in an informal writing to Salvio that he will sell ten silver jars on a specified date and Salvio agrees to pay him for the silver jars on that date. Numerio offers to deliver the jars to Salvio and Salvio refuses to pay for them. How binding was Salvio’s promise under Roman law? How binding was it under the Common Law until Slade’s case? When did this type of promise become binding in civil law countries? The above-quoted article by Professor Lorenzen confirms Professor Gorla’s findings:
- , as well as the parties themselves, required the advice of experts who by their studies had acquired authority in law. The consequence was not merely that in its detailed application the law was chiefly developed by jurisconsults who had no recognized part in the procedure itself but acted in an advisory capacity, but even more important, that their attention was necessarily focused upon the very practical problems of law presented in specific cases. . . . This, it would seem, is the underlying explanation of the logical precision that characterized the method and the product of the great Roman jurists.
- There have been, in the Western world, two dominant legal systems, the Roman and the English. Both are functions of empire, the products of people gifted to rule. . . . In the legal systems of these two peoples, accordingly appear significant analogies. In each case, a sharp division was soon made between sacred and secular justice; in each the power of the state was developed at a relatively early stage, the administration of justice was professionalized, and a system of private law, articulated in specific forms of action, superseded the blood-feud and other institutions of the prior communal custom. In each system, the scheme of rights thus elaborated became rigidly formalized and had to be supplemented, corrected, and eventually superseded by a parallel system of equitable remedies, introduced by the authority of a magistrate—the in Rome, the chancellor in London. . . . Most noteworthy is the fact that both are essentially systems of case-law, evolved by specialists, generally...
- 450 B.C.), Rome was a community of soldiering farmers. These Romans practiced “dry farming,” an arduous and skilled form of tilling designed to obtain from a minimum of dry land “the largest amount of vegetable calories.” Much of their terrain was rocky and mountainous, requiring them to spend considerable time building terraces and canals and plowing repeatedly to spread moisture deep below the surface. . . . Horses were also highly valued for their use in soldiering. In fact, ownership of land was lodged, at first, with a small number of families of reputed noble birth ( ), were the core of the incipient Roman army. These families worked the land in units which included not only the
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Chapter 30. Damages for Breach of Warranty in U.S. Law and Economic Analysis 1289 67 results (showing 5 best matches)
- Independent actions for breach of express or implied warranties which are resolved on a case-by-case basis result from the diverse background of causes of action in common law contracts. Sir Roy Goode concisely and clearly restates the evolution of the remedial law of sales in common law.
- As will become apparent throughout this chapter, the aggrieved party’s power to terminate contracts extra-judicially is at the root of the variety and flexibility of remedies found in the U.C.C. and United States case law. The following provisions on actual and hypothetical resales and re-purchases or covers as well as on the action for the price and for breach of warranty, are transcribed to facilitate the subsequent discussion of their meaning in case law and commentary. The reader is encouraged to return to them during the ensuing discussion.
- One of the most influential lines of thought in contemporary legal writings, especially where private law is concerned, is the EAL. One of its seminal writings was Professor Ronald Coase’s article In his article, Professor Coase applies his theory on the costs of market transactions to the analysis of legal phenomena . . . . Whether one agrees or not with this type of argument, the truth is that there are some areas of law where it is impossible to understand the consequences of certain rules or points of view without taking into account the economic considerations set forth by the EAL. Such is the case of the law of contracts and, more precisely, the issue at hand: what should be the recovery of lost profits for a lost volume seller.
- How do these elements differ from those which the plaintiff would have had to claim and prove if Taylor & Gaskin had not delivered the promised goods in due time? How would this case have been decided if, instead of applying the U.C.C. provisions, the court applied the English case law described by Professor Goode and applied until the late 19th century? Why did the defendant not try to prove that Chris-Craft had examined the tanks at the time of delivery? If both parties had technical expertise on fuel tanks in a marine environment, why is it that both the trial court and the court of appeals determined that the manufacturer had breached the warranty of merchantability? On the other hand, why is it that both courts dismissed the claim for breach of the warranty of fitness for a particular purpose? It must be noted that in the decision at hand the losses suffered by the plaintiff were considered as foreseeable ...question that Von Ihering would: What is the purpose that the law...
- Yet, even if Newton’s theory of what explains the falling of bodies was “unrealistic,” it still illustrates the need for a precise and accurate description of the phenomena the scientist intends to explain and predict. Without it, a lay observer such as Posner may reach the conclusion that it was an unrealistic theory. In Newton’s case, his description of the phenomena he was trying to explain by mathematical laws took place in the universe of our every day life. He chose a seminal factual assumption in the analogy between the falling apple and a “falling” moon and explained it by a verifiable force, the law of gravity.
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Index 1359 284 results (showing 5 best matches)
Table of Contents 132 results (showing 5 best matches)
- § 17.2The Family, Lineage and Clan as Early Private Law Makers and Economic Units657
- C.Common Budget and the Importance of Family Land for Family Survival658
- § 10.8Appendix—Case Law Related to the Code de Commerce370
- a.The Absence of a Distinction Between a Case’s Holding and Its Obiter Dictum or Dicta in the Decisions of Many Civil Law Countries558
- 2.Case Law: Unearned Income and Other Accusations Based on Marxist-Leninist Dogma636
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Chapter 19. cONTEMPORary Land and movable property transactions in the prc 725 223 results (showing 5 best matches)
- If during the term of contract, the whole family of the contractor moves into a small town and settles down there, the right of the contractor to land contractual management shall, in accordance with the contractor’s wishes, be the said right according to law.
- Seeds of Legal Discontent, The Luoyang Seed Law Case: A Case Study of the Rule of Law in China,
- And as if these restrictions were little, on February 17, 2011, Beijing’s municipal government issued new rules limiting the number of homes each family can purchase in order to “cool the property market.” Beijing families who own two or more apartments, such as the Shanghai families described in the preceding section, can no longer make new home purchases and Beijing families who own just one apartment can only buy one additional apartment. These restrictions were issued on the heels of an April 2010 regulation that limited each Beijing family to buying only one extra apartment.
- The Beijing 2011 regulations also forbid non-Beijing registered families who have no residence permit ( ) or other documents that certify that members of the family have been paying social security or income tax for five straight years are also banned from buying apartments. By the time of my visit to China, I was familiar with the legitimating function of national identity cards in some Latin American countries. They provided their holders not only with the status to claim basic state services such as social security payments, healthcare and so on, but also with legal capacity to enter into binding contracts, file claims or give notice of their rights in public registries. is a small red passbook with information on every family “including marriages, divorces, births, and deaths, as well as the city or village to which each person belongs.” still treats its holder’s family as an economic unit, while the Latin American identity card is given to citizens or residents in their individual
- Chapter 10 of the “general part” of the PRL grants rights in the things of “others” (meaning the Chinese State or its Agricultural Collectives) much as the Roman law allowed for its and as Anglo-American law did with its reversionary interests such as in life estates and easements. As was discussed in the preceding chapter, the Chinese law on free tenancy dates back at least to the seventh century CE. in the same land granted by an owner who at one time was the emperor and at another, the feudal lord or the head of a family or household. Occasionally, free tenants were given rights to the topsoil, and others were given rights to the subsoil. At this point, Chinese land law was conferring rights that appeared to be similar to those conferred by the English Doctrine of Estates in the Land.
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Chapter 13. Customs And Usages as sources of law in representative codes 445 142 results (showing 5 best matches)
- Treaties that regulate the political relations of the Federation or relate to subjects of federal legislation shall require the consent or participation, in the form of a federal law, of the bodies responsible in such a case for the enactment of federal law. In the case of executive agreements the provisions concerning the federal administration shall apply mutatis mutandis.
- Case law, , the theoretical and practical work of the jurists is not a source of law, even though it is a necessary and an excellent tool to
- A similar attitude among doctrinal writers in Latin American jurisdictions is responsible for the minimal role of customary law as a living law source of commercial contract law. In the case of the Mexican Commercial Code of 1895, with the exception of its reference to the civil code as a subsidiary source, its list of sources could have been drafted by Heinrich Thöl. The only sources applicable to commercial contract law disputes in that code were the codified or statutory commercial and civil laws.
- There is unanimity with regards to the issue that the Federal Constitution is the fundamental law. . . . The problem with regards to the hierarchy of the rest of the legal system . . . [as] found, both in case law and in doctrine, different solutions, amongst those: supremacy of federal law before local law, and the same hierarchy, with regards to “constitutional laws”, and the other that says that supreme law will be deemed as such if deemed constitutional. Notwithstanding, this Supreme Court of Justice considers international treaties to be on a second plane immediately following the Fundamental Law, but above federal and local law.
- He rejected equity because it was only the result of applying the general norm to the individual case and thus it was so connected with the facts and circumstances of each case that it was not capable of generalization and becoming a generally-observed law. While none of these objections rose above the level of crass sophistry (such as the distinction between case law as an educational as opposed to a creative tool or the impossibility to infer a general rule from individual equitable rulings, and so on), they were said to be warranted by a legal science grounded in the
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Chapter 28. Extrajudicial Remedies and the Remedy of Specific Performance 1225 96 results (showing 5 best matches)
- Before beginning the examination of these treaties and rules, a clarification of terminology is in order. As was discussed in the preceding chapter and as will become apparent in the following discussion, there are significant differences in the use of the remedial terminology on breaches of contract among Common and Civil lawyers. For example, common-law lawyers use the term “rescission” in a generic manner to include the remedy of unilateral or bilateral “termination” that civil lawyers of the French, Italian and Spanish family of codes refer to as “resolution.” In addition, Anglo-American lawyers use the term rescission in connection with remedies that apply to cases of duress, coercion and unconscionability. This is the usage that most closely approximates that of civil-law lawyers, especially in French, Italian and Spanish legal writings, who (as discussed in the preceding chapter) associate rescission with the suffering of a serious economic, physical or psychological harm or...
- As noted by Judge Battaglia, “Specific performance is an equitable remedy . . . and so the requirement is that there be no adequate remedy at law for it to be ordered. Satisfaction of the requirement is, in effect, presumed when real property is the subject of the contract.” Why should the requirement that there be no adequate remedy at law be presumed in the case of real property and not, say, in the case of uniquely valuable personal property? Is it a reflection of the uniqueness that rural America attributed to real property and especially to land or buildings on it? Was this the “rural” attitude that Professor Karl Llewellyn was referring to in his landmark article “Across Sales on Horseback”? ...law jurisdictions studied in this book arrive at the same conclusion as that alluded to by Judge Battaglia but through a different reasoning—the obligation to convey land usually entails the obligation to sign a public deed, which is an obligation “to do” as opposed to an obligation...
- Specific performance and related preliminary injunctive relief are available remedies, in the appropriate case, for the breach or threatened breach of a contract for the purchase and sale of a cooperative apartment. (Citations omitted) For the most part, however, the decisions do not address the “adequate remedy at law” or “irreparable injury” requirements for specific performance and related injunctive relief.
- ” (first pay then claim) method of doing business. Not surprisingly, the twentieth-century remedial law of sales reflected the same need for expediency, not only for international, but also for local sales. Some jurisdictions facilitated extrajudicial remedies in their domestic codification and case law early in the twentieth century. Less than a century later (a short time span in the development of commercial legal institutions, and getting shorter with each passing decade), other jurisdictions introduced the same remedies in international sales law treaties and related sources. To facilitate a better understanding of the law of extrajudicial remedies and because these treaties and related sources set forth the remedies in their clearest and most succinct fashion, we will turn to them first.
- In order to obtain the remedy of specific performance, `the complaint must show: (1) the making of the contract and its terms, including a description of the subject matter; (2) that the plaintiff is ready, willing, and able to perform the contract and has fulfilled all of plaintiff’s duties to date; (3) that it is within defendant’s power to perform (as, in the case of specific performance of a real estate purchase agreement, a plaintiff should allege that defendant held title to the realty); and (4) that there is no adequate remedy at law (an element that need not be pled where the contract is for the sale of real property).’
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Chapter 21. The Socio-Economic and Legal Contexts of U.S. Commercial Contracts 847 167 results (showing 5 best matches)
- In short order, the ALI became known for its restatements of various areas of the law that were of interest to judges, lawyers and scholars of the law. Thus, the ALI produced restatements for the laws of agency, conflict of laws, contracts, judgments, property, restitution, security, torts and trusts. Although the ALI’s restatements are often referred to as codifications of case law, they are better described as compilations of important cases or cases with precedential value whose holdings are distilled by the restatements as “black letter law,” , the rules that courts would apply to similar cases in the future. In doing this, the restatements affirm not only their precedential value, but also the existence of a certain judicial trend which connects holdings to decision-making trends. Thus, this black letter law generally is not framed as a set of codified rules that result from
- Professor Wood provided another telling statistic on the economic and social importance of the above family enterprises: In 1810, 90% of the total $42 million textile production came from family households. Thus, as early as in 1790, a British visitor to Massachusetts and New Jersey noted that “housewives in every farming household kept their families busy carding and spinning woolen and linen cloth in the evenings and when they are not in the fields.” And as we will discuss shortly, the production and distribution of dairy products such as cheese and butter was another fast growing family business in some states, but especially in New York. It should be kept in mind that these farming, manufacturing and merchandising families came from numerous countries and practiced different religions or none at all.
- Unlike the extended and networking Puritan families, most of the farmer-merchant-manufacturing families of late-eighteenth- and mid-nineteenth-century America operated as individual family (not networked) enterprises. And surprisingly to many foreign visitors, these businessmen received credit from distant merchants. A Scottish shopkeeper, known to extend six months to a year of credit to his customers in Chesapeake Bay in the United States, explained his credit policy as follows:
- [A] single cash transfer—say, $6,000—to every citizen. A family of four with no market income would thus receive an annual payment from the I.R.S. of $24,000. For each dollar the family then earned, this payment would be reduced by some fraction—perhaps 50 percent. A family of four earning $12,000 a year, for example, would receive a net supplement of $18,000 (the initial $24,000 less the $6,000 tax on its earnings).
- Restatements also include comments and illustrations, often as “Reporters’ Notes,” which include a discussion of all the cases that went into the formulation of a principle summarized in a section. These comments and illustrations help contextualize the rules and thus enable lawyers and judges to rely more confidently on the black letter law set forth in the restatements. In doing this analytical work, albeit confined mostly to case law, the participants in the drafting of the restatements (including black letter law and commentary) craft the United States version of common-law-based legal science. For if by legal science one understands the most accurate and objective description of the state of a given branch of the law, as shaped mostly by court decisions and statutes, the restatements are the best products of American legal science.
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Chapter 12. The Codification of the German Civil and Commercial Codes 417 88 results (showing 5 best matches)
- was divided into books on persons, things, and methods of acquiring property. Each of these books covered a different and purportedly self-contained subject of private law, much as was done by Justinian’s and Gaius’ Institutes. The BGB was also divided into books, but its first book was labeled a general part and was followed by books on obligations, property, family law, and successions.
- Many of these changes were enacted during the Nazi era and subsequently abrogated during the military occupation following the Second World War. Most of the changes took place in family and obligations law. However, the latter was revisited during the new millennium, and in January of 2002, a very substantial reform of the law of obligations (
- , on land law, family law, and on the law of associations (civil and commercial). With this in mind, they obtained a crucial amendment to Article 4, Number 13 of the Law of December 20, 1873, which assigned to the future BGB the power to govern all of Germany’s private law. This power included contracts emerging from the commercialized agriculture (also described by Professor Blackbourn) and an increased ability to sell land, as well as mortgages and other charges or security interests in it.
- Although this group had the appearance of a pluralistic sub-commission, its members were mostly from the business sector: owners of large farms, a bank director, a director of a brewery, a professor of economics, and a professor of law. I would only add that the presence of the business sector in the drafting committee was responsible for the greater sensitivity to the importance of commercial contracts and their inclusion in the code. It was sent to the legislature in 1895 after adding changes on the law of associations, family, successions, and tort law. Finally, a third draft was approved on July 1, 1896, and signed by the Kaiser on August 18 of that year. Its date of effectiveness was January 1, 1900. Its adoption as a model for other civil law countries, while not as widespread as that of the .... At last count, the following civil law countries used it as a model for their civil codes: Estonia, Greece, Japan, Latvia, People’s Republic of China, Portugal, South Korea, Thailand...
- As discussed in the preceding chapter, the goal of a unified Germany was already being actively pursued during the first half of the nineteenth century. Yet, as was the case with France, there was much law to unify. The Napoleonic domination of German states and principalities during the first decades of the nineteenth century resulted in the adoption of the by the states and principalities west of the Rhine River and Baden. This only added to the large number of local laws extant, including a Roman law that had been received in its totality by many principalities in 1495.
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Chapter 1. Guiding Themes and Content of This Book 3 106 results (showing 5 best matches)
- Toward a Theory of Law in Economic Development,
- In sum, the main lesson learned from the progression that starts with the transactions of pre-commercial societies of families, clans, and tribes and continues in our present commercial and financial markets of strangers, is that for commercial law to help develop an economy, it must treat strangers or third parties as regular participants in the marketplace would reasonably expect to be treated. And, in instances of significant entrustment by a third party or stranger, that party should be entitled to a more caring, fiduciary treatment.
- Further, the very nature of a tradable commodity suffers from the distrust with which the “strangers” of a familistic society view this commodity. This fact became apparent to me during the nineteen sixties when I directed a commercial law reform project in Costa Rica ( ...regional (Central American) stock exchange. One of the questions in a questionnaire we circulated among potential middle class Costa Rican investors was: “Please explain why you prefer purchasing second mortgages that yield on average 4.5% interest per annum and do not invest in the common stock of the National Cement Company of Costa Rica (Industria Nacional de Cemento S.A.; hereafter INC), which is the only cement producer in Costa Rica and, for the last eight years, has paid a dividend whose yield exceeds 9% per annum. The respondents’ uniform response was: “We know the mortgagors well. Many of them are our family or friends. On the other hand, we do not know anyone at the INC. In addition, if buying their...family
- . In individualist societies, ties between individuals are loose: Everyone is expected to look after him/herself and his/her immediate family. In collectivist societies (which included Japan, among others), people from birth onwards are integrated into strong, cohesive in-groups, often as extended families, which continue to protect their members in exchange for unquestioning loyalty, regardless of the outcome of the business.
- ” (a knowledgeable and respected “man of affairs”), and its possible connections with contemporary codified and judicial archetypes, such as the Code Civil’s “good father of family,” the German Commercial Code’s “orderly and honest merchant,” and the U.C.C.’s “honest, reasonable and fair” merchant; d) the contrast between the medieval Aristotelian and scholastic logic of permanent and universal definitions and classifications, as reflected in the Code Civil and in the logic of the reasonable of commercial law judges, such as Lord Mansfield, Justice Cardozo, and Judge Friendly; e) the influence of Germany’s BGB and Levin Goldschmidt’s views on what is inherently commercial “honest and decent” behavior in Karl Llewellyn’s Articles 1 and 2 of the U.C.C.; f) ancestral familistic clauses and their influence in China’s present law of sales and secured transactions, etc., etc.
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Chapter 5. Medieval Law 145 139 results (showing 5 best matches)
- In contrast with Lazarillo’s trade, the Ruiz family was legitimized by its official and church connections. However, this only took place after the Ruiz family established that despite the Jewish sounding name of Simon, one of the founders of the dynasty, the family’s blood was “clean,” Just to be on the safe side, it was not unusual for the Ruiz family to consult priests or theologians whenever a commercial contract could possibly be tainted with usury or the sin of avarice associated with Jewish business practices. The consultation was often accompanied by a request that the correspondent attest to the religious acceptability of the transaction in question.
- Toward a Theory on Law in Economic Development: The Costa Rican USAID-ROCAP Law Reform Project
- The Selden Society compiled and commented on the sources for the Law Merchant cases, procedures and provenance of these cases, among other subjects.
- 69 Col. Law. Rev
- XLVI The Publications of the Selden Society: Select Cases Concerning the Law Merchant A.D.
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Chapter 23. Good Faith and Reasonableness in the Interpretation of Commercial Contracts 1009 176 results (showing 5 best matches)
- A survey of French appellate decisions during the mid-1980s found that the standard of the archetypal good father of family was applied to tradesmen and professionals, commercial agents, paid custodians or bailees, and suppliers of goods and personal services. The courts described such a multifaceted good father of family as:
- He supported this creation with a venerable case law tradition: “The fact is, and the cases show, that different responsibilities have been imposed both by explicit law and by the cases upon persons who have professional responsibilities as contrasted with other persons.” Thus, at least some of what he referred to as commercial practices had been deduced from case law findings that may have reflected individual or isolated practices.
- Last, but not least, are the overarching principles of honesty, reasonableness, and fair dealing, which are the “nuclear” components of good faith. At times they are found in statutory law, at times in case law and doctrinal writings, but most frequently they are imbedded in standard and fiduciary practices. Regardless of the type of contract and its life-stage (from negotiation to termination), or the number, timing, and symmetry of their performances, these principles are, by now, an integral part of the interpretation of commercial contracts, particularly in German and United States law.
- Defendant had alleged and offered to prove that the plaintiff, who had been active in other stock corporations as a professional oppositionist bent on obtaining personal rather than corporate benefits, was here engaged in the same kind of practice . . . [H]e carried on obstruction solely for the purpose of acquiring the shares of the W. family at a cheap price and to compel either his election as a director or the distribution of a higher dividend; and that the present action, again, was to serve plaintiff’s own selfish rather than corporate purposes. The legal relevance of these allegations should not have been denied. . . . [T]he statutory scheme shows that the shareholder’s special need for legal protection results from the sole fact of his membership in the corporation . . . by virtue of which . . . he is given the right to attack those resolutions of the corporation which are inconsistent with law or charter, even though they may cause no detriment to him personally. But this...
- The Anglo-American law on the sale of goods relies on two types of warranties: express and implied. Professor Llewellyn observed that the law of contract warranties in England from 1780–1850 “divides conveniently . . . into horse and non-horse (cases).” Anderson and Oldham’s studies confirmed the validity of this observation: The sale of horses was the most often litigated sale of goods in Mansfield’s court with “at least forty such cases, and thirty-three of these involved proof of an express warranty” and most were won by the buyers of the horses. Despite the large number of express warranty cases, the decisions and notes evidenced Mansfield’s willingness to consider implied duties of quality associated with some sales and also to hear evidence on what was a reasonable time for plaintiffs to return defective goods such as horses.
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Chapter 9. The Birth of a Continental European Commercial Law; Fair and Commercial Courts 305 77 results (showing 5 best matches)
- It is worth noting that normative charity is not the exclusive domain of enlightened legislatures and commercial courts; it is usually found in viable marketplaces, especially when the transaction or business sector in question has been interrupted by a catastrophe. In such cases, for the transaction or business sector to remain viable, it must regain the trust of regular participants in the marketplace. This was the case of the Mediterranean Jewish traveling merchants whose duty it was to “pick up their deceased colleagues’ bundle” and upon doing so, sell their colleague’s goods and deliver the proceeds at no charge to the deceased’s family. It was also the case of the London goldsmiths who repaid their depositors for the loss of their jewels and other deposits suffered as a result of the London fires—despite the availability of the excuse of ...case of a few solvent New York bankers paying off the debts of their failing colleagues and enabling some of them to continue in business...
- for Documentary Credits (UCP 500 and 600) and others that attempt to interpret the GAFTA Master Agreement, decisions involving the standard practices of French associations of merchants and their “auxiliaries” do not seem common. If that is actually the case—and it is not caused by the limitations of my own research—why not? Clearly, a body of case law based upon a healthy body of local customary law is only likely to heighten the influence of the commercial court. A disregard of local customary law can only make that court’s adjudication less influential.
- Obstacles to a Market-Based Case Law
- Based upon pre-existing case law, BGB § 223(2)
- From the standpoint of the development of commercial law, the commercial court’s failure to rely on observed and sound commercial customs and practices as persuasive, if not binding, sources of law was, in my opinion, its most serious shortcoming. And, while Professor Kessler warns that Christian norms were not the only basis for commercial court jurisprudence, she adds that “though not every case was resolved by applying norms of Christian virtue, such norms were . . . the driving force behind many of the court’s decisions and procedures.”
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Chapter 29. Judicial and Extrajudicial Termination 1261 73 results (showing 5 best matches)
- In case of chattel mortgage bonds and guarantee trusts, the parties may agree that enforcement be done in accordance with the Law of Warehouses and the Code of Commerce, as the case may be.
- is a middle-ground between the extrajudicial resolution for anticipatory repudiation under U.S. law and the Mexican judicial resolution, as it was held in the case of Pedro J. Gonzalez? Is there any similar concept regulated under the reader’s legal system? Is it found in case law, customs, or under the general terms and conditions of contracting? During one of our class discussions, a German lawyer compared the
- Plaintiff argued that he was entitled to terminate the contract because defendant had told him several times before that he was not going to be able to determine when he would be able to deliver the yacht. He further argued that defendant knew that he, the plaintiff, intended to use the yacht for a family vacation in July 1989. Accordingly, he had told the defendant on July 13, 1989 that he should provide a yacht at least on July 20, 1989. This deadline and also several calls by plaintiff’s brother-in-law until July 26, 1989 did not produce any positive results. Essentially, the plaintiff claimed reimbursement of the purchase price of DM 42,500.
- Extrajudicial Resolution Under Mexican Case Law
- In German Case Law
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Chapter 2. Methodology 41 123 results (showing 5 best matches)
- What is the importance of these principles as elements of a successful law reform process? Their importance is multi-faceted. First, they provide the justification for the selection of the standard and fiduciary practices that will eventually become part of the new law. Second, as justifiers of the proposed law, their legitimacy is earned by the successful legislative experiences that inspired them. In the case of the NatLaw Principles, they were inspired by the standard and fiduciary secured transactions practices and laws in nations with developed market economies such as Canada and the United States. In the case of Canada the selected statute was its Personal Property Security Act
- Microfinance, Law and Development: A Case Study in Mali
- Another method of reasoning used by the Greek dialecticians is the one known in United States law schools as “Socratic.” Imitating that which was attributed by Plato to Socrates, this method shows how a given hypothesis (or in our case, a legal argument, rule of law, or statement about it) can be tested for its reasonableness and can lead to a contradiction or to an absurdity (
- The logic of the reasonable is one of the most common methods of legal reasoning in Anglo-American countries. It is not the only method of reasoning used in these countries, as Anglo-American lawyers, jurists, and scholars frequently resort to syllogistic logic, or to the absolute value of certain freedoms, such as freedom of expression. Neither is it exclusive to the common law, as more and more commercial lawyers in civil law countries resort to it when drafting statutes, treaties, contracts, or arguing cases. Nonetheless, the logic of the reasonable prevails in common law countries when addressing issues as basic as: Is there a contract? What was the intent of the contracting parties? Was there a breach and what remedy or remedies should be granted?
- Ortega y Gasset argued that man, unlike other animals, has a memory built up each second of every day by the accumulation of daily experiences. Thus, it is most unnatural for man to go to bed at night believing, on the basis of all those accumulated experiences, that he had a family and a status in life, which he acquired by honestly following certain rules, only to wake up one morning to be told that he had neither family nor status, and that the rules under which he acquired them were no longer in effect—and that all of this radical and unexpected change occurred because of someone else’s revolutionary inspiration or whim. This is why Britain, according to Ortega y Gasset, had to become the “nurse” of a relentlessly revolutionary and violent Europe, a continent that continued to be embroiled in violent and costly social change during most of its history.
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Chapter 20. Socio-Economic and Legal Contexts and English Commercial Contracts 813 101 results (showing 5 best matches)
- Within the last thirty years the commercial law of this country has taken a very different turn from what it did before. . . . And I should be very sorry to find myself under a necessity of differing from any case on this subject which has been decided by Lord Mansfield, who may be truly said to be the founder of commercial law of this country.
- must be recognised by the law of the country where it is used. The power of a master over his slaves has been extremely different in different countries. The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political, but only by positive law. . . . It is so odious, that nothing can be suffered to support it, but positive law. Whatever inconvenience, therefore, may [be said to] follow from this decision I cannot say that this case is allowed or approved by the law of England; and, therefore, the black must be discharged.
- ,” “Trespass on the Case,” “Trover” and so on. As noted by the late Professor Max Radin of the University of California at the Berkeley and Hastings law schools: “For each action a separate writ had to be obtained, and the use of the wrong form of action meant the loss of the plaintiff’s case, regardless of the justness of the claim. . . .”
- Slade’s Case
- Equity and Common Law Courts: The Earl of Oxford Case
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Chapter 24. Drafting Commercial Practices and the Growth of Commercial Contract Law 1099 96 results (showing 5 best matches)
- When I first read this opinion, I found its simplification of the seemingly contrasting features of pledges and mortgages reassuring, but after recalling the phenomenon of legal invertebration in Latin American, Soviet, and Chinese law, I wondered if the Roman law and practice on pledges and mortgages did not evidence a similar invertebration in the above laws and practice. Recall that, when it came to the enforcement of rights against a member of the same family, close friend, or business associate of the judge or administrator, legal precision and the rule of law gave way to simulatory and fraudulent practices that blurred the distinctions between established legal institutions, but I am getting ahead of myself.
- As noted earlier, a reasonable document checking practice belongs to the family of fair practices, but the latter encompasses more market participants than does the former by including not only the actual participants in the transaction, but also third parties likely to be affected by it.
- Here, one can see that the trend line indicates a gradual decline of U.S. courts mentioning the UCP. Even more noteworthy, is that while the UCP 500 revision has been explicitly used by courts in the past, since the UCP 600 became effective, U.S. courts have only mentioned the phrase “UCP 600” in three total cases and have never mentioned the “eUCP.” In addition, since 2007, U.S. courts have only mentioned the general concept of “Uniform Customs and Practice for Documentary Credits” or “UCP” in 22 total cases. One of Pocock’s conclusions is that UCP’s drafting suffered from failing to include not only experienced commercial and banking lawyers but also regular participants in electronic media transactions. Professor Janet Levit of the Emory Law School agrees with Elizabeth Pocock’s conclusion:
- It is true that there was substantial case law on acceptances signified in documents other than the bill of exchange itself and, indeed, some of these were called “extrinsic,” and others “virtual,” acceptances.
- The second lesson is that such an interchangeability can only be expected from regular participants in the same trade or profession. When, as in the case of the Roman repossession and foreclosure practices, the powerless borrowers were always the borrowers, and the powerful lenders were always the lenders, someone other than these participants had to be willing and ready to prevent the abuses from coming into being; to attempt to stamp them out once the practices are in wide use is always riskier and costlier. For such abuses are invariably countered by attempts to bribe the enforcers, and when corruption fails, by violence. Eventually, the abusive practices lead to legal invertebration of remedial secured lending law and to Emperor Constantine’s abrogation of the
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Chapter 25. Brief Overview of Commercial Trial Procedure 1149 90 results (showing 5 best matches)
- United States procedural law, whether in federal or state courts, does not distinguish between civil and commercial trials; the trial of what a civilian would consider a commercial or civil case is subject to the same unified rules of pleading and proof in United States law. This unified trial system is divided into several stages: 1) pleadings; 2) disclosure of the essence of the claims and defenses and pre-trial discovery; 3) oral presentation of evidence before the judge or jury, as the case may be; and 4) final judgment. This judgment can take the form of a summary judgment, in which case there is no need for the presentation of evidence or for discovery because, based on what the parties themselves alleged, there is no issue of fact to be tried. A fifth and final stage consists of the appeal.
- Even though both documents make reference to facts that allegedly led to the breach of a contract, the reader should notice certain differences. The U.S. complaint makes a general reference to facts and no express reference to the law applicable to the specific case, with the exception—in this example—of the laws of the State of Arizona, where both corporations were incorporated. In contrast with its U.S. counterpart, the Uruguayan complaint’s section for facts and allegations has space for the plaintiff is to provide a reference to specific clauses in the law that allegedly were breached. It also provides a space to list the evidence that pertains to the facts, which should include the names of witnesses and key evidentiary documents to be introduced. In addition, it has a section dedicated to the law applicable to the case at bar. In this section, the complaint is grounded in specific legislation that cites provisions from applicable codes or statutes.
- Because the legal status of all the holders of negotiable instruments (whether in due course or not) is governed not only by the codes of civil procedure but also by the laws of negotiable instruments, and because the latter list the defenses against holders in greater detail than the former, the laws of negotiable instruments should be given the preeminent status of a “ ,” or of the more specific law, and therefore prevail. Yet, as will be apparent in the following decision, Spanish appellate courts seem evenly divided on this point. One of the questions for the reader to keep in mind, then, is whether the same “virus” that seemed capable of infecting the executive status of the promissory note in this case can also infect other documents that involve the original parties to the underlying transaction as plaintiffs and defendants. Another question is whether reasoning by the Spanish appellate court is not surprisingly close to that of a United States court considering whether there...
- The judge may find that the document attached to the complaint was not an enforcement title because it did not comply with the requirements of law, or the judge may determine that the complaint is not sufficiently clear—in such cases the complaint may be dismissed, with or without prejudice.
- The law links this defense to the bill of exchange (is that it is. . .) true that the provision in question may seem to warrant such a defense when it states that “to the promissory note will be applicable, the provisions related to the bill of exchange. . . as long as they are not incompatible with its nature (arts. 49–60, 62 and 68)” (art. 96 LCCH). . . If applicable, these rules would allow defenses such as the extinction, nullity, or breach of the underlying contract. We are mindful of the existence of numerous decisions by provincial appellate courts which reject the application to promissory notes of the defense that funds for its payment were not provided to the maker-appellant. We are also mindful of the existence of an equal number of decisions that allow such a defense. Our survey of case law shows, then, that the law of defenses is far from uniform.
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Chapter 22. Formation of Contracts: Ceremony or conduct? 927 200 results (showing 5 best matches)
- No less an authority than Sir Edward Coke, one of seventeenth-century England’s most respected jurists, referred to the widespread concern among creditors-plaintiffs that, as used in actions on debt, the wager of the law was conducive to perjury: “The law presumeth that no man will forswear himself for any worldly thing; but men’s consciences do grow so large . . . [thus creditors] choose rather to bring an action
- Professor Ames’ above-quoted article was written in 1888, a time during which many United States judges frequently cited English case law as persuasive if not primary sources. It started out, however, with a candid criticism of the common law of contracts as wrought by English courts: “Nothing impresses the student of the Common Law more than its extraordinary conservatism. . . . [and] the persistency of archaic reverence for form and of scholastic methods of interpretation.”
- Since my days as a law student, I have collected old commercial law textbooks, manuals and guides. I first visited London in 1970 while doing research for my chapter on letters of credit for the Max Planck International Encyclopedia of Comparative Law. It was then that I met Maurice Megrah Q.C., someone whose humanity and writings I admired. When I told him about my interest in acquiring historical commercial law writings, he recommended that I visit the Wildy’s and Sons bookstore where he was a ...enough money with me to pay for it. An elderly gentleman who introduced himself as a member of the Wildy family asked me if he could be of assistance. I told him that I wanted to buy a book but did not have enough money with me (no internationally-accepted credit cards were available in those days). I told him that I would like to pay twenty dollars or so to put it aside. I explained to him that this was commonly done in “lay away” transactions in the United States. I also told him...
- According to the continuous and consistent interpretation of these Articles, the argument of the appellant is completely at odds with the content of the cited legal provisions—in such a way that it should be enough to remind the appellant that in our Law there is absolute freedom of forms (Articles 1255 and 1278); that where the law establishes a written formality, it can either be ; that in the case at issue, a solemnity cannot be required by Law because the Law does not regulate this type of contract; that where the Code refers to a non-solemn public deed or private document, the correct interpretation of Article 1280 in relation to 1279 is that the parties can compel each other to grant the contract in such way.
- Appendix: Formalities and Solemnities in Comparative Case Law
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Chapter 7. The Latin Notariat and Contemporary Contracts 219 85 results (showing 5 best matches)
- In some cases, hand-over ( ) before payment is agreed. Under German law, this frequently creates the problem that the transfer of ownership represents an advance performance by the seller for which he still has no security. In this case, provisional payment of part of the purchase price is a solution. This money can be deposited with the notary or paid into a special
- The parties may agree in their contracts to submit, before a notary public, the procedure for the execution of security interests, whether in moveable or immoveable property, in which case they shall also agree on the minimum price of the immoveable property granted as collateral and of the method for notification, following the procedure set forth in the present Law.
- As was the case with the English scrivener notaries’ attempt to approximate the functions of Latin notaries, some states in the United States have enacted statutes allowing the appointment of attorneys as civil law notaries with the power to authenticate documents and transactions.
- This requirement was insisted upon by the banks that financed the purchase price. When this was the case, the notary or advocate also acted as a professional escrow agent. In addition, civil law notaries in Austria were expected to play a central role in the taxation phase of the transaction. As in Mexico, the land transfer tax is normally calculated by the civil law notary as the draft person.
- Based upon my own experiences with Latin notaries, the German notaries seem to be the ones most attuned to the nature of contemporary commercial contracts. As in France, Spain and Latin America, German notaries play a central role in real estate and corporate transactions of monetary significance, as well as in family and succession matters. Unlike their French colleagues, however, the German notaries seem to have a closer connection with the transactional realities of the marketplace.
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Chapter 26. Pre-Contractual Liability: Culpa in Contrahendo 1183 31 results (showing 5 best matches)
- Case Law
- , the common law does not restrict liability to the stage prior to the conclusion of the contract. Indeed, in the civil law jurisdictions discussed above, the conclusion of the contract generally precludes the possibility to claim damages based on the However, in the common law system, damages resulting from a party’s behavior during the pre-contractual negotiations may be claimed even after the contract has been concluded. However, in order for such pre-contractual behavior to be brought forward, such behavior must fall within one of the causes of action recognized by common law, and it may not be characterized merely as being contrary to good faith, as would be the case in a civil law system.
- As was the case in Germany and France, Chilean courts were responsible for introducing in Chilean contractual and extra-contractual law. In contrast to France and Germany, the source relied upon by the Chilean courts was the Commercial Code, especially Articles 99
- Cases such as (Chile) evidence that the two different jurisdictions, one common law and the other civil law, have resolved this issue in similar fashion. Indeed, the
- In spite of the numerous amendments that the BGB has undergone since its promulgation, Articles 122 and 179 have remained in force without significant modifications. However, this has not been the case with Articles 307 and 309, which were replaced when the BGB incorporated the provisions of the Law Governing Standard Business Terms and Conditions.
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Chapter 27. Excuses for Non-Performance of Contracts 1195 84 results (showing 5 best matches)
- Even a cursory review of Italian case law on excessive onerousness will reveal that courts closely link foreseeability and synallagmatic imbalance, especially when the latter can be measured objectively. In doing this, it is clear that excessive onerousness is a broader doctrine than the French doctrine of foreseeability since it is not restricted to administrative concessions.
- There can be little doubt that Italian case law and doctrinal comments have circumscribed the scope of application of Article 1467 of the It.C.C. and that they continue do so. This trend confirms the restrictive nature of this excuse for non-performance in Italian law. Among the categories of contracts that cannot be terminated because of excessive onerousness are: i) unilateral contracts, or contracts in which only one party acquires obligations, iii) cases in which the plaintiff fails to prove his contractual diligence as manifested in an absence of reasonable foreseeability;
- Argentinean Case Law and Hyperinflation
- As was mentioned in the introduction in the United States the law regarding excuses for non-performance of contracts do not have the judicial and doctrinal importance that they do in civil-law countries such as Germany and Italy. Taking into consideration the economic reasons mentioned at the beginning of this chapter, we must also consider that the equity jurisdiction (even when absorbed by common law, as was the case in the United States) provides the decision-maker with considerably more flexibility to evaluate circumstances that “shock the judge’s conscience” regarding what is fair and equitable.
- The It.C.C. limits the remedy of rescission to the following situations: a party may rescind a contract when, according to Article 1447 of the It.C.C., it was entered into under “unfair conditions, known by the other party, and caused by the need of saving himself or his family from a present danger of personal injury.”
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Prologue to the Second Edition ix 9 results (showing 5 best matches)
- I conclude this Prologue with expressions of gratitude for contributions to the “coming into being” of this 2nd edition. It would not have been possible without the medical “contribution” of Dr. Ritsuko U. Komaki, a leading thoracic radiation oncologist at the MD Anderson Cancer Center. Her superb medical science was matched by her exceptional devotion to my, so far, successful treatment. The same is true of the extraordinary support of my wife, children, grandchildren, sister and other members of the Kozolchyk family, and dear friends such as my colleague Roy Spece and board member Carol Colombo. I am also very grateful for the support I received from Dr. Marek Dubovec, and to the highly devoted staff and members of our board of directors at the Kozolchyk National Law Center. I would also like to thank Dr. Dubovec for his very helpful comments on Part II of Chapter 19 (on China’s secured transactions law). I am indebted to research attorney Rachael Sedgwick for her devoted... ...Law...
- The world-wide interest in secured transactions law is reflected in the addition of a Second Part to Chapter 19 on China’s Property Rights Law of 2007 (PRL). This is the law that governs the security interests in movable property mortgages and pledges in China. This Part contains a critical statutory and case-law analysis of the PRL. It takes into account not only its textual and conceptual problems, but, as is customary with the methodology of this book and NatLaw’s work, it is also a contextual, cultural and institutional analysis of the PRL’s accomplishments and shortcomings. Among the latter are: a) the formulation of imprecise and often conflicting rules; b) the disregard for the functionality of collateral as important as inventory, contract rights, proceeds, and fixtures; and c) a decentralized and dysfunctional registry system. Given China’s major role in Asia’s and the world’s commerce, Chapter 19 should be of considerable interest not only to China but to its numerous...
- Prior to the above process of modernization of the law of contracts in civil law countries, I published two lectures, suggesting, ever so gingerly, the need for a “commercialized civil law” and a “civilized commercial law” in both civil and common law countries (see the entries for “Fairness in Anglo-American and Latin American commercial Adjudication” and for “The Commercialization of Civil Law and the Civilization of Commercial Law” in this book’s list of frequently used sources). One of the readers of these articles was Dean Jean Carbonnier of the Paris Law School, one of Europe’s most insightful private law jurists. He shared my concern with the negative developmental consequences of preserving many of the dated concepts, principles and rules of France and Spain’s civil and commercial codes. In fact, we had a running bet on how long it would take for some of the anachronistic and dated rules to be abrogated. He was of the opinion that the abrogation would surely start before our...
- Some of the legislative products of these agencies have helped modernize the contract laws of member nations. The prime example is UNCITRAL’s United Nations Convention on Contracts for the International Sale of Goods (CISG) (1980), with 89 adoptions over a period of 38 years. Similarly, the OAS Model Inter-American Law of Secured Transactions (2002) has undergone seven adoptions over a period of 16 years. Meanwhile, UNIDROIT’s Principles of International Commercial Contracts (2016 edition), while not officially adopted as a model law, has been highly influential in modernizing European contract law. Equally, the Principles of European Contract Law (PECL) (Parts I and II revised 1998, Part III revised in 2002), drawn by European contract law experts, slowly continues to influence some of the European contract laws.
- While the prologue to the first edition tells the story of this book, how and why it came about and who were the people and institutions who made it possible, the present prologue is to update the reader on developments related to the presence and scope of this edition. For example, you will find that the name of the research and drafting entity associated with all my previous publications, including the first edition of this book, the National Law Center for Inter American Free Trade (abbreviated as NLCIFT), was changed in 2017. Its board of directors decided to honor my work as the Center’s founder and developer of its research methodology by renaming the Center as the “Kozolchyk National Law Center (NatLaw).” Consequently, in this second edition, do not be surprised to find references to research studies of legislative enactments as attributable either to the Kozolchyk National Law Center or to NatLaw. This name change also reflects the fact that for the last decade the Center...law
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Chapter 6. Guilds and the Capitalist System and Marxist Legal Systems 195 30 results (showing 5 best matches)
- the heads of great families, for in their own houses and outside they provide a livelihood for a great many persons (some 200, others 300) employing other men’s hands to manufacture all kinds of magnificent cloth.
- Yet, mercantilism was (and in many countries and regions of the world still is) a product of the selfish (and uncooperative) elements of nuclear commercial transactions. Thus, as a reflection of human nature, these elements are not easily confined to isolated transactions or policies. Sooner or later, they permeate the nuclei of transactions between family and friends in a manner that prevents non-family members or non-friends from engaging in the transactions in question and monopoly or oligopoly becomes not only a macro but also a microform of doing business, especially in nations whose markets are week and susceptible of being corrupted.
- Credit commonly given after a trusting, family-like relationship.
- To an Anglo-American lawyer, one of the most striking features of the private law (or the law of the “mine and the thine”) of many civil law countries is the partitioning of this law into “civil” and “commercial” codes. While this feature will be discussed extensively in the following chapters, ...peddler to the high powered wholesaler, insurer, carrier or broker—the civil codes were not. They were designed to apply to self-proclaimed non-profit transactions whether by individual or associations (the latter being frequently referred to as “civil” as opposed to “business” associations) as well as services rendered by non-merchant artisans, craftsmen, professionals such as lawyers, physicians, and engineers or architects. In fact, one of the distinguishing features of professionals is that their members are supposed to charge often regulated “honoraria” or “tariffs,” as in the case of notaries public and not “synallagmatic” or negotiated prices for their goods as done by merchants....
- many of the interviewees described a form of credit sales that in the case of the shopkeepers was only documented by entries in the shopkeepers’ store booklets ( ), and in the case of the peddlers, totally on trust (nothing written) to their occasional customers. Similar practices prevailed in other Latin American countries as far back as the late nineteenth century. From the standpoint of the contemporary law of sales, what difference does it make if the sale is made on a “cash on the barrelhead” basis or on a credit basis? How about the so-called documentary sales such as C.I.F., F.O.B., C.F.A., and others in which payment is supposed to be made not against the tender of samples or of inspected goods, but merely against the presentation of documents? Do these transactions require greater or lesser trust by buyers? Or is it by sellers, or by both buyers and sellers?
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Chapter 15. Soviet Commercial Contract Law 577 62 results (showing 5 best matches)
- In the countryside, those peasant families able to generate enough money to buy additional farming equipment, lease additional land or set up small rural-domestic industries became known as “ These peasant families attracted the attention of socialist revolutionaries such as Vladimir Ilich Lenin, who argued that the
- The Decree of August 18, 1921 returned to the former houseowners small houses with not more than 2 apartments (not more than 5 apartments in Moscow and Petrograd) . . . . Since all land was nationalized, the owners of small houses retained possession only of the buildings but could use the plots on which the building rested. The possession was limited to personal use of the former owner and his family.
- Pre-revolutionary law was promptly abrogated by the Bolshevik regime; yet, at first no new law of civil or commercial transactions was adopted, in part because many felt that the communist phase of Marx’s prediction would arrive soon and then there would be no need for law. it had little effect on the law of commercial contracts. Whatever law was to govern private trade was a law wrought at the top of the governmental pyramid by officials with only themselves as advisers. In addition, it was a law subject to constant and abrupt changes, reversals, and reversals of those reversals, especially during its Leninist phase. After all, it was Lenin who “epitomized” his views on law and legal systems in 1916, one year before the victory of his socialist revolution, as: “law is a political measure, it is [nothing more than] politics.”
- Employers often preferred to hire women and children, who worked for even less than men. Families lived in horribly crowded, unsanitary housing.
- In his Collection of Laws of 1649, They enjoyed privileges such as “having civil cases tried in their own courts, of being excused from military service, and of being exempted from a head tax.”
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Frequently Cited 1325 51 results (showing 5 best matches)
- Toward a Theory of Law in Economic Development, the Costa Rican USAID-ROCAP Law Reform Project,
- Arthur Taylor Von Mehren & James Russell Gordley, The Civil Law System: An Introduction to The Comparative Study of Law
- Law of the U.S. in Comparative-Legal Reasoning-Perspective, in
- Model Inter-American Law on Secured Transactions
- On the State of Commercial Law at the End of the 20th Century
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West Academic Publishing’s Law School Advisory Board 10 results (showing 5 best matches)
- Distinguished University Professor, Frank R. Strong Chair in LawMichael E. Moritz College of Law, The Ohio State University
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus University of California, Hastings College of the Law
- Professor of Law, Yale Law School
- Professor of Law Emeritus, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
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Title Page 2 results
- Evo DeConcini, Professor of Law, Emeritus James E. Rogers College of Law, University of Arizona Distinguished Visiting Professor of Law and Bailey Lecturer in Residence, Louisiana State University Law Center Former President of the International Academy of Commercial and Consumer Law
- Law, Culture and economic development
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Table of Cases 1339 3 results
Epilogue 1323 5 results
- Because law—whether positive or living—is invariably contextual (as this entire book illustrates) and if one takes into account the proven failure of centrally planned economies, what lies ahead for the law of commercial contracts will depend on the fate of two versions of market economies. In the first, commercial contracts are used extensively, but they reflect mostly the selfish impulses of merchants and of their governmental, usually corrupt, partners and as counselled by submissive-client-
- I am sure that having had to study more than a thousand pages of text, innumerable footnotes—often alluding to exotic sources and a similarly large number of cross references—you will not mind an epilogue that is short. I will also assume that you would probably want to have an answer, tentative though it may be, to the question of what lies ahead for the law of commercial contracts, including its continuing and hopefully accelerated, contribution to economic development.
- And once students learn to identify standard and particularly best practices, they will also have to learn how to formulate them as the legal principles, maxims, concepts and rules that will shape the future law of commercial contracts. Finally, it is worth recalling that the practices that proved most successful in the Anglo-American facilitation of commercial and consumer credit and economic development were those that induced the most trust among participants. And that trust was induced most by practices whose transactional sequence was initiated by an act of giving.
- In the second market economy, where commercial contracts are formed by the right mix of altruism and selfishness and where disputes are adjudicated on the basis of what is reasonable and fair (often as illustrated by the archetypal behavior of knowledgeable and respected merchants), standard and best practices will consolidate their place as the main source of the living, as well as of the positive commercial law. Standard practices will continue to be applied to regular participants in their trade or sector and the number of these practices will continue to grow. What is uncertain is whether best practices will keep pace. Recall that best practices can apply either to transactions between regular participants and third parties or to transactions only between regular participants, but with a marked effect on the interests of third parties, especially of those not capable of bargaining on equal terms with regular participants.
- Such an attitude will require a redirection in the teaching of commercial contract law and in its everyday application by lawyers and adjudicators. Once familiar with the nuts and bolts of the transactions, they will need to identify sectoral and archetypal contractual behavior and to discern both, the existing mix of selfish and altruistic practices and the mix is most likely to satisfy the reasonable expectations of the archetypal contracting parties. They will also need to ascertain the likely effect of standard and best practices upon third parties bearing in mind that the greater the number of market participants acting in different commercial capacities, the greater will be the likelihood of economic development for all.
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Table of Statutes 1341 5 results
Table of Abbreviations 1335 15 results (showing 5 best matches)
Summary of Contents 10 results (showing 5 best matches)
- List of Board of Directors: Kozolchyk National Law Centerv
- The Law of Contracts in a Pre-Commercial or Agricultural Survival Society87
- MEDIEVAL LAW: GUILDS, AGENTS AND NOTARIES
- The Birth of a Continental European Commercial Law; Fair and Commercial Courts305
- Customs And Usages as sources of law in representative codes445
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- Publication Date: December 5th, 2018
- ISBN: 9781640204126
- Subject: Contracts
- Series: Hornbooks
- Type: Hornbook Treatises
- Description: This work offers a contextual comparative analysis of commercial contracts from their origin until the present time. It studies their positive and living law in countries and regions representative of major legal systems and business cultures: Classical Rome, Medieval Europe and the Middle East, Codification Europe (especially France and Germany), Post-Colonial Latin America, the Soviet Union, the Peoples’ Republic of China, England (eighteenth and nineteenth centuries), and Post-Colonial United States. It identifies contractual concepts, principles, rules, doctrines, methods of reasoning and commercial practices that have contributed most to mankind’s economic development. Finally, it explains how certain selfish and altruistic components of standard and fiduciary commercial and financial practices combine to cause the necessary trust and cooperation that makes possible both economic growth and legal institutional longevity.
