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Contracts in General
CHAPTER 12 Contracts in General The soviet law of contracts evolved from the efforts of the soviet legislators and jurists to use within the framework of socialist economy the concept of contract as developed in the civil law countries. Therefore, a person schooled in Anglo-American legal theory must be prepared to sustain a double handicap in studying the soviet law of contracts. On the one hand, the Con tinental European law of contracts, which is the start ing point of the development of the soviet theory of contract, deviates from basic concepts of Anglo-Ameri can law. On the other hand, the notion of a contract as outlined in the Civil Code no longer covers, in reality, all ramifications of contract in soviet law, in particular contracts between government agencies engaged in in dustry and commerce. But the concepts implied in the provisions of the Civil Code have not been totally aban doned, and it seems appropriate, therefore, to begin with a consideration of those concepts. 1. Legal Transactions and Contracts ln outlining the law of contracts, the framers of the soviet Civil Code followed certain theoretical construc tions of European law, of German law in particular, as developed by Professors Shershenevich, Gambarov, and Korkunov, the Russian prerevolutionary legal writers of renown. 1 Since these constructions have been taken 1 Shershenevich, 1 Textbook of the Russian Civil Law (in Russian 11th ed. 1915) 86, 190; Gambarov, 1 Course in Civil Law (in Russian 1911) 632; Korkunov, General Theory of Law (in Russian 7th ed. 1907) 161 et seq., English translation by Hastings ( 1922) 167 et seq. -
The Philosophy of Contractual Obligation, 21 Marq
Marquette Law Review Volume 21 Article 1 Issue 4 June 1937 The hiP losophy of Contractual Obligation Robert J. Buer Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Law Commons Repository Citation Robert J. Buer, The Philosophy of Contractual Obligation, 21 Marq. L. Rev. 157 (1937). Available at: http://scholarship.law.marquette.edu/mulr/vol21/iss4/1 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. MARQUETTE LAW REVIEW VOLUME XXI JUNE, 1937 NUMBER FOUR THE PHILOSOPHY OF CONTRACTUAL OBLIGATION ROBERT J. BUER THE HISTORY OF CONSIDERATION T HE doctrine of consideration has stood for several centuries as a pillar in the law of contracts, an essential to their enforcement. Students of the law have, from the first instance of their contacts with the great body of jurisprudence, regarded consideration as one of the rudimentary principles upon which future knowledge of the refine- ments and technicalities of the law must be based. However, in recent years, chiefly because of the exceptions to and inconsistencies of the fundamental rule that every contract to be enforceable must be sup- ported by a sufficient consideration, liberal students of the law have advocated the alteration or abolishment of the rule.' These advocates of change in the doctrine are not without sound historical authority as a basis for their demands. -
Proprietary Estoppel
UNIVERSITY OF THE WEST INDIES FACULTY OF LAW REAL PROPERTY I Worksheet 5 2018-2019 Proprietary Estoppel LEARNING OBJECTIVES By the end of this lesson, you should be able to:- Explain and apply the principles governing the doctrine of proprietary estoppel Required General Readings: Sampson Owusu, Commonwealth Caribbean Land Law, Ch. 6 and Ch. 7 Kevin and Susan Gray, Elements of Land Law (5th ed.), Chap. 9.2, pp. 1196 -1256 Neuberger, “The Stuffing of Minerva’s Owl? Taxonomy and Taxidermy in Equity” [2009] CLJ 537. Timothy Fancourt, QC, “Are All Estoppels Alike” available from https://www.chba.org.uk/for-members/library/overseas-seminars/3-non-financial THE DOCTRINE OF PROPRIETARY ESTOPPEL • The term estoppel is used to refer to circumstances in which a person is prevented or estopped from denying the truth of a particular matter of fact or law - Roger Smith, Introduction to Land Law (p.30). • A proprietary estoppel may arise in the following cases: (i) Incomplete gifts (ii) Reasonable (common) expectation of acquisition of right (iii) Unilateral Mistake The equitable doctrine of proprietary estoppel intervenes to “restrain (or estop) the assertion of legal entitlement on the grounds of conscience.”1 According to Walker LJ in Gillett v Holt [2001] Ch. 210 at 255, “[t]he fundamental principle that equity is concerned to prevent unconscionable conduct permeates all elements of the doctrine.” The doctrine of proprietary estoppel operates to prevent the revocation of a right held by one person (B) based on an assurance given by another (A) which the first person (B) relied on and was led to believe was permanent.2 1 Ridall, p. -
Sharing Homes: a Discussion Paper
The Law Commission (LAW COM No 278) SHARING HOMES A Discussion Paper Presented to the Parliament of the United Kingdom by the Lord High Chancellor by Command of Her Majesty November 2002 Cm xxxx The Law Commission was set up by the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Honourable Mr Justice Toulson, Chairman 1 Professor Hugh Beale QC Mr Stuart Bridge Professor Martin Partington CBE Judge Alan Wilkie, QC The Secretary of the Law Commission is Mr Michael Sayers and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London WC1N 2BQ. This Discussion Paper was first published online on 18 July 2002. The text of this Discussion Paper is available on the Internet at: http://www.lawcom.gov.uk 1 At the date this report was signed, the Chairman of the Law Commission was the Right Honourable Lord Justice Carnwath CVO. ii THE LAW COMMISSION SHARING HOMES A Discussion Paper CONTENTS Paragraph Page Executive Summary vi PART I: INTRODUCTION 1 The shared home 1.6 2 A property-based approach 1.23 6 PART II: THE CURRENT LAW 9 Introduction 2.1 9 Trusts of land 2.4 10 Legal and beneficial ownership of the shared home 2.10 11 Legal title – joint tenancy 2.12 11 Beneficial ownership- joint tenancy or tenancy in common 2.16 12 Resolution of disputes between trustees and beneficiaries 2.23 14 Dealings with third parties 2.27 15 Occupation of the shared home 2.32 17 Where a person has an interest under a trust of land 2.34 17 Matrimonial home rights 2.37 18 Orders regulating -
The Rational Basis of Contracts and Related Problems in Legal Analysis, by Merton Ferson
Indiana Law Journal Volume 25 Issue 2 Article 15 Winter 1950 The Rational Basis of Contracts and Related Problems in Legal Analysis, by Merton Ferson Edwin W. Patterson Columbia University Follow this and additional works at: https://www.repository.law.indiana.edu/ilj Part of the Contracts Commons Recommended Citation Patterson, Edwin W. (1950) "The Rational Basis of Contracts and Related Problems in Legal Analysis, by Merton Ferson," Indiana Law Journal: Vol. 25 : Iss. 2 , Article 15. Available at: https://www.repository.law.indiana.edu/ilj/vol25/iss2/15 This Book Review is brought to you for free and open access by the Law School Journals at Digital Repository @ Maurer Law. It has been accepted for inclusion in Indiana Law Journal by an authorized editor of Digital Repository @ Maurer Law. For more information, please contact [email protected]. BOOK REVIEWS not be answered if men seek salvation in the exclusive worship of a popular present-day secular trinity: Purely informative education, tolerance and democracy. Today many men and women have turned for anchorage in a time of stress from religion or devotion to the gods of science to public education. It is assumed that free education for all will give men common goals and a saving wisdom even though the goals of education are not agreed upon. It is assumed that if men accumulate enough facts somehow a sound philosophy will emerge from the pile like some genie from a bottle. Combine education with unlimited tolerance for any and all ideas however incompatible or false and with devotion to a vague something called democracy and everything will come out all right. -
The Role of the Notary in Real Estate Conveyancing
ARTICLE: THE ROLE OF THE NOTARY IN REAL ESTATE WRITTEN BY: CONVEYANCING ELIANA MORANDI In the field of real estate, the notary’s role of financial assets amount to approximately 25,000 euros oversight and consulting extends to all aspects of and other miscellaneous assets to 20,000 euros),4 the the transaction: from verifying the title of the political and social dimensions of a real estate purchase seller, to tax-related issues and choices, to are abundantly apparent. However, real estate has ascertaining the legal zoning status of the assumed an ever more important role in an increasingly property, to suggesting alternative solutions to global economy as collateral to obtain credit. So called improve the organization and distribution of ‘embedded capital value’ is an important tool for overall economic growth. Taken together, the need for reliability family assets. In addition, should any errors be and security in the circulation of real estate becomes made that compromise the client’s purchase, the increasingly important. notary is fully liable for compensation up to the Since most people make one of the biggest financial entire current value of the property. and emotional investments of their lives when they buy a house, they are understandably adverse to any risk, Conveyancing: modern development and and would not consider monetary compensation new demands related to real estate transfers 1 adequate to make up for the loss of the property. In the credit world, growth and stability are based on the For some time now, there has been a broad debate in reliability of the collateral that backs it up, with the the European Union regarding the regulation of security of the title used as surety constituting a competition, aimed at safeguarding consumers and fundamental condition for granting credit. -
Unconscionable Contracts: a Comparative Study of the Approaches in England, France, Germany, and the United States
Loyola of Los Angeles International and Comparative Law Review Volume 14 Number 3 Symposium on Unconscionability around the World: Seven Perspectives on the Article 3 Contractual Doctrine 7-1-1992 Unconscionable Contracts: A Comparative Study of the Approaches in England, France, Germany, and the United States A.H. Angelo E.P. Ellinger Follow this and additional works at: https://digitalcommons.lmu.edu/ilr Part of the Law Commons Recommended Citation A.H. Angelo and E.P. Ellinger, Unconscionable Contracts: A Comparative Study of the Approaches in England, France, Germany, and the United States, 14 Loy. L.A. Int'l & Comp. L. Rev. 455 (1992). Available at: https://digitalcommons.lmu.edu/ilr/vol14/iss3/3 This Symposium is brought to you for free and open access by the Law Reviews at Digital Commons @ Loyola Marymount University and Loyola Law School. It has been accepted for inclusion in Loyola of Los Angeles International and Comparative Law Review by an authorized administrator of Digital Commons@Loyola Marymount University and Loyola Law School. For more information, please contact [email protected]. Unconscionable Contracts: A Comparative Study of the Approaches in England, France, Germany, and the United States A.H. ANGELO* AND E.P. ELLINGER** I. FREEDOM OF CONTRACT AND UNCONSCIONABILITY OF TERMS The doctrine of sanctity of contracts is entrenched in both the Anglo-American and western European legal systems. The phrase "freedom of contract" originated in the late eighteenth and the early nineteenth centuries,' and was based on the natural law principle that it is "natural" for parties to perform their bargains or pacts. -
Three Pictures of Contract: Duty, Power, and Compound Rule
THREE PICTURES OF CONTRACT: DUTY, POWER, AND COMPOUND RULE GREGORY KLASS* There is a fundamental divide among theories of contract law between those that picture contract as a power and those that picture it as a duty. On the power- conferring picture, contracting is a sort of legislative act in which persons determine what law will apply to their transaction. On the duty-imposing picture, contract law places duties on persons entering into agreements for consideration, whether they want them or not. Until now, very little attention has been paid to the problem of how to tell whether a given rule is power conferring or duty imposing—a question that should lie at the center of contract theory. This Article argues that legal powers have two characteristic features. First, there is an expectation that actors will satisfy the rules with the purpose of achieving the associated legal consequences. Second, the legal rules are designed to facilitate such uses. A law might exhibit these features in either of two ways, which define two types of legal powers. Many laws that create legal powers employ conditions of legal validity, such as legal formalities, designed to guarantee the actor’s legal pur- pose. The presence of such validity conditions is strong evidence that the law’s sole function is to create a legal power, and I suggest reserving the term “power conferring” for such laws. Other laws anticipate and enable their purposive use without conditioning an act’s legal consequences on the actor’s legal purpose. The structure of such laws suggests that they function both to create powers and to impose duties. -
Proprietary Estoppel - Assurance Article & Version: Published Version Original Citation & Hyperlink: Panesar, S
View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by CURVE/open Coventry University Coventry University Repository for the Virtual Environment (CURVE) Author name: Panesar, S. Title: Property: proprietary estoppel - assurance Article & version: Published version Original citation & hyperlink: Panesar, S. (2007) Property: proprietary estoppel - assurance. Coventry Law Journal, volume 12 (2): 75-79. http://wwwm.coventry.ac.uk/bes/law/about%20the%20school/Pages/LawJournal.as px Copyright © and Moral Rights are retained by the author(s) and/ or other copyright owners. A copy can be downloaded for personal non-commercial research or study, without prior permission or charge. This item cannot be reproduced or quoted extensively from without first obtaining permission in writing from the copyright holder(s). The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the copyright holders. Available in the CURVE Research Collection: March 2012 http://curve.coventry.ac.uk/open Page1 Coventry Law Journal 2007 Case Comment Property: proprietary estoppel - assurance Sukhninder Panesar Subject: Succession. Other related subjects: Equity Keywords: Assurances; Farms; Intestacy; Promises; Proprietary estoppel; Succession Case: Thorner v Major [2007] EWHC 2422 (Ch); [2008] W.T.L.R. 155 (Ch D (Bristol)) *Cov. L.J. 76 Facts In 1997 Peter Thorner made a will by which, after a number of pecuniary legacies, left the residue of his estate, including his farm (Steart Farm, Cheddar) to his nephew, David Thorner. The will was subsequently destroyed and Peter died intestate in November 2005. In accordance with the intestacy rules Peter's estate, including Steart Farm, was available for his blood relatives, namely, his sisters. -
Proprietary Estoppel
Copyright of the New Zealand Law Journal is the property of LexisNexis NZ Ltd and its content may not be copied, saved or emailed to multiple sites or posted to a listserv without the copyright holder's written permission. However, users may print, download or email articles for individual use. [2021] NZLJ 195 Proprietary estoppel Connor Seddon and Henry Brandts-Giesen, Dentons Kensington Swan, on an emerging cause of action in the law of relationship property, trusts, and estates in New Zealand roprietary estoppel is a species of equitable estoppel considers the reliance and expectation measures of remedy where, when property is being transferred, an indi- and the Court states that the purpose of the remedy ought to P vidual can make a claim on that property on the basis be to eliminate the unconscionability and satisfy the equity. that the owner of the property had assured them that they The Court rejects a prima facie presumption in favour of would be granted the property and they had relied on that either the reliance or expectation measures. The Court states assurance to their own detriment. that the three elements relevant to the measure of remedy will In order to bring a successful claim in proprietary estop- be (1) the quality of assurance, (2) the nature of the detri- pel, the claimant must be able to establish four elements: mental reliance, and (3) the unconscionability. The expecta- a) a representation or assurance has been made to the tion measure is to be used when the measure would be claimant; proportionate as between the expectation, the detriment and b) the claimant has relied on that representation or assur- the remedy. -
Imagereal Capture
ARTICLES Patrick Parkinson* DOING EQUITY BETWEEN DE FACTO SPOUSES: FROM CALVERLEY V GREEN TO BAUMGARTNER 1. INTRODUCTION In some areas of law there are too few legal norms to deal adequately with the disputes which the courts must resolve. Judges are found appealing for the intervention of Parliament. In other areas, there are perhaps too many. A given set of facts may be analysed according to a variety of different principles, many of which lead to different results. The problems arising from the property disputes of de facto spouses· may be thought to fall into the former category. It is not unusual for judges to call for the intervention of Parliament when they feel compelled to a conclusion on the law which is at variance with their views of the merits. 2 The perceived inadequacies of the law in this area have led to statutory intervention in New South Wales 3 and in Victoria. 4 It is apparent, however, when one surveys the variety of legal categories in which these cases may be analysed that there are indeed a large number of legal norms available to do equity when de facto spouses break up. Pettitt v PettittS and Gissing v Gissing, 6 which discussed 'implied, resulting and constructive' trusts,7 gave birth to a number of different interpretations based on the common intention of the parties. Lord Denning MR founded on Lord Diplock's speech in Gissing to develop a 'constructive trust of a new model'. Canadian courts have * MA (Oxon) LLM (Illinois), Lecturer in Law, University of Sydney. The term is used to cover all relationships which resemble marriages. -
The Negotiation Stage
Part I The negotiation stage M02_HALS8786_02_SE_C02.indd 17 7/19/12 3:47 PM M02_HALS8786_02_SE_C02.indd 18 7/19/12 3:47 PM 2 Negotiating the contract Introduction Lord Atkin once remarked that: ‘Businessmen habitually . trust to luck or the good faith of the other party . .’.1 This comment2 provides more than an insight into the motivations of businessmen. It also implicitly acknowledges a limitation of the common law in policing the activities of contractors: the law no more ensures the good faith of your contractual partner than it guarantees your good fortune in business dealings. However, this might not be an accurate description of the purpose of the law relating to pre-contractual negotiations. In an important judgment that was notable for its attempt to place the legal principles under discussion in a broader doctrinal and comparative context Bingham LJ in the Court of Appeal observed that:3 In many civil law systems, and perhaps in most legal systems outside the common law world, the law of obligations recognises and enforces an overriding principle that in making and carrying out contracts parties should act in good faith . It is in essence a principle of fair and open dealing . English law has, characteristically, committed itself to no such overriding principle but has developed piecemeal solutions to demonstrated problems of unfairness. This judgment makes it clear that the gap between civil and common-law jurisdictions is exaggerated by observations at too high a level of generality. While it is true to say that the common law does not explicitly adopt a principle of good faith, it is as obviously untrue to say that the common law encourages bad faith.