This thesis examines common-law and civil-law jurisdictions in order to find differences between them. These differences are then being qualified as either relevant or irrelevant for the categorisation of individual jurisdictions. This reflects the argument that only features occurring in only one of the legal families can be relevant when categorising jurisdictions. Only such features can be, from the author’s point of view, specific and typical for their legal family and inherent features of them.The first thing to be considered under this premise is the respective sources of law (Chapter 1). These are in civil-law jurisdictions traditionally statutes and in commonlaw jurisdictions predominantly courts’ decisions. There are, of course, statutes also in common-law jurisdictions and previous courts’ decisions play an important role also in civil-law systems. The differences are not inherent. Furthermore, there are fundamental legal concepts, that is important concepts underlying the respective rules. These concepts may explain differences between the rules. The examination of sources of law, altogether, does not reveal any distinguishing factors.Chapters 2–5 discuss the issue of attitudes of common-law and civil-law judges to statutory interpretation. Chapter 2 examines the respective methods of statutory interpretation. This does not reveal any differences as to common-law and civil-law judges’ attitudes; for instance, greater adherence of common-law judges to the literal meaning of rules arguably does not exist. As shown in Chapter 3, this is true also in the area of Criminal Law under the special safeguards this subject provides. Chapter 4 asserts terminology causes differences between the systems; this is true even in case of identical terminology which is sometimes being interpreted in a diametrically different way. Moreover, differences can also be compensated for elsewhere in the legal system. Altogether, Chapter 4 does not reveal any inherent differences between the systems. As Chapter 5 shows, there is an ongoing process of convergence between common-law and civil-law systems, which means the categorisation into legal families becomes even less plausible.Chapter 6 shows that the categorisation into legal families is not only incorrect but also highly misleading and that there are numerous scholarly statements relying incorrectly on the family concept. The proposition (Chapter 7) is that it may nevertheless be feasible to structure comparative-law texts according to the wellknown legal families, as these show a common historical background. However, for conducting research into particular foreign legal rules (micro-comparative research), the family concept becomes a misleading starting-point. Insofar the concept should be abandoned or, at least, used only together with an appropriate warning.

No description available.

This thesis examines common-law and civil-law jurisdictions in order to find differences between them. These differences are then being qualified as either relevant or irrelevant for the categorisation of individual jurisdictions. This reflects the argument that only features occurring in only one of the legal families can be relevant when categorising jurisdictions. Only such features can be, from the author’s point of view, specific and typical for their legal family and inherent features of them.The first thing to be considered under this premise is the respective sources of law (Chapter 1). These are in civil-law jurisdictions traditionally statutes and in commonlaw jurisdictions predominantly courts’ decisions. There are, of course, statutes also in common-law jurisdictions and previous courts’ decisions play an important role also in civil-law systems. The differences are not inherent. Furthermore, there are fundamental legal concepts, that is important concepts underlying the respective rules. These concepts may explain differences between the rules. The examination of sources of law, altogether, does not reveal any distinguishing factors.Chapters 2–5 discuss the issue of attitudes of common-law and civil-law judges to statutory interpretation. Chapter 2 examines the respective methods of statutory interpretation. This does not reveal any differences as to common-law and civil-law judges’ attitudes; for instance, greater adherence of common-law judges to the literal meaning of rules arguably does not exist. As shown in Chapter 3, this is true also in the area of Criminal Law under the special safeguards this subject provides. Chapter 4 asserts terminology causes differences between the systems; this is true even in case of identical terminology which is sometimes being interpreted in a diametrically different way. Moreover, differences can also be compensated for elsewhere in the legal system. Altogether, Chapter 4 does not reveal any inherent differences between the systems. As Chapter 5 shows, there is an ongoing process of convergence between common-law and civil-law systems, which means the categorisation into legal families becomes even less plausible.Chapter 6 shows that the categorisation into legal families is not only incorrect but also highly misleading and that there are numerous scholarly statements relying incorrectly on the family concept. The proposition (Chapter 7) is that it may nevertheless be feasible to structure comparative-law texts according to the wellknown legal families, as these show a common historical background. However, for conducting research into particular foreign legal rules (micro-comparative research), the family concept becomes a misleading starting-point. Insofar the concept should be abandoned or, at least, used only together with an appropriate warning.

Zugl.: Münster (Westfalen), Univ., Diss., 2007

Made available in DSpace on 2013-08-07T18:48:05Z (GMT). No. of bitstreams: 1 000444155-Texto+Parcial-0.pdf: 125862 bytes, checksum: 38e05cc26d38b4f5c2324707d56c7483 (MD5) Previous issue date: 2012 / The binding precedent is a topic which, more and more, has taken part of the academic and jurisprudential debates, in the face of its insertion in the Brazilian legal order through binding sumula, binding decisions in the appeals to the Supreme Court, acknowledgment of the general repercussion in recurrent appeals to the Supreme Court, and the judgment of recurrent appeals to the Superior Court. The best comprehension of the binding precedent, to avoid distortion in its application by the Brazilian jurists, demands a deep study of its original system, and the way it is faced and used in such a system. Aiming at this deepening, the present dissertation departs from the comparative study between the original law family of binding precedent, the Common Law family, and the family in which is inserted the Brazilian law, the Civil Law. Understanding both systems and these main features, a detailed examination of the binding doctrine in Common Law was established and, after that, it has done an analysis of the way this doctrine is being transposed to Brasil. The work was developed through the bibliographic research in historical and comparative law books, the reading of British and North-American authors who had been dedicated to the concepts of Common Law, and the analysis of Brazilian doctrinaire and jurisprudential opinion about the topic. The investigation which was made allowed to verify the importance of adopting binding precedents in the evolution of national law. But, on the other hand, it also permitted to realize the lack of technique in the consolidation of this practice in the national territory, what is responsible for the compromising of the judicial assistance. / O precedente vinculante é um tema que, cada vez mais, vem ocupando espaço nos debates acadêmicos e jurisprudenciais, diante da sua inserção no ordenamento jurídico brasileiro através das súmulas vinculantes, decisões vinculantes em recursos extraordinários, do reconhecimento da repercussão geral em recursos extraordinários repetitivos e do julgamento de recursos especiais repetitivos. A melhor compreensão do precedente vinculante, para se evitar distorções na sua aplicação pelos juristas pátrios, exige um estudo aprofundado do sistema jurídico que lhe deu origem, e da forma como é encarado e utilizado neste sistema. Visando a este aprofundamento, a presente dissertação partiu do estudo comparado entre a família de direito originária da doutrina dos precedentes, a família do Common Law, e a família na qual se insere o direito brasileiro, a do Civil Law. Entendendo estes dois sistemas e as suas principais características, estabeleceu-se, então, um exame minucioso da doutrina dos precedentes dentro do Common Law e, após, a análise de como esta doutrina vem sendo transposta para o Brasil. O trabalho foi desenvolvido através da pesquisa bibliográfica em livros de história do direito e de direito comparado, da leitura de autores ingleses e norte-americanos que se dedicaram aos conceitos do Common Law, bem como através da análise das opiniões doutrinárias e jurisprudenciais brasileiras a respeito do tema. A investigação realizada permitiu constatar a importância da adoção dos precedentes vinculantes para a evolução do direito nacional. Mas, por outro lado, permitiu perceber também a atecnia com que essa prática vem se consolidando no direito nacional, o que só compromete a qualidade da prestação jurisdicional.

LL.M. (Civil Procedural Law) / In this dissertation various topics regarding inchoate documents will be analysed and discussed. A brief historical background will set the scene, showing the development of bills of exchange in various countries around the world. Although the origins of the earliest bills of exchange can be traced back to Arabic traders in the eighth century, the development of the bill of exchange is generally traced back to the lex mercatoria, i~ the rules which were adopted by medieval traders, especially the Lombards in Italy, to conduct their business. As the lex mercatoria was absorbed into various countries, differences developed. It is clear that the English Bills of Exchange Act 1882 had a marked influence on the law relating to negotiable instruments in most Commonwealth countries and the United States of America. In the second chapter the distinction between the common law and statute law will be analysed. The recent Appellate Division judgment in the case of Thompson v Voges 1988 (I) SA 747 (A) will be discussed. In that case Acting Chief Justice Rabie held that an automatic estoppel could not operate against the signatory of an inchoate document who had signed a document and had handed it to another with the intention that it be issued and used as a negotiable instrument. A detailed analysis of Thompson's case, and the cases referred to by the learned Acting Chief Justice in the course of his judgment, will show that the conclusion reached by him can only be applied to holders who qualify as mere holders, and not to holders in due course. It is submitted, with the greatest respect, that an automatic estoppel will still operate in favour of a holder in due course...

No abstract available Copyright / Dissertation (LLM)--University of Pretoria, 2012. / Private Law / unrestricted

Tato diplomová práce popisuje vznik a formování ekvity v systému anglického práva, její vzájemné postavení vůči common law, současné použití ekvity a některé její vývojové trendy. Teoretická část této práce je doplněna konkrétními precedenty.

No description available.

The objective of this work is to evaluate the consequences of the withdrawal of the United Kingdom from the European Union in the field of Private International Law, with a focus on the enforcement of civil judgments between the UK and the EU after “Brexit”. The theme is part of a broader debate, which has involved the European Institutions, the British Government and the European academia and has been focused on the identification of the relevant rules on international jurisdiction and the recognition and enforcement of civil judgments in Europe, after the discontinuation of the Acquis Communautaire and the Brussels Ibis Regulation. On the assumption of the uncertainty surrounding the issue and the unfortunate outcome of a “no-deal Brexit”, the discussion is first articulated over the framing of the historical and political context within which the will to withdraw has been formed and expressed and over the analysis of the different reconstructive hypotheses that have been put forward since the 2016 British vote, in order to highlight the problematic aspects and the juridical limits that prevent the usability of each. Then, on the premise that reference should be made to the national rules of Private International Law and, more specifically, to the common law, if we consider the English legal system, the reflection unfolds in a dialectical reconstruction of the legislation in question in light of the principles that govern the Brussels regime, with the aim of emphasizing the consequences of Brexit in terms of more complex procedural fulfillments and increased time and costs that will aggravate creditors whose claims require compulsory satisfaction in the United Kingdom. More generally, the comparison between the avant-garde project implemented by the European Institutions with the Recast Brussels Regulation and the outdated principles governing the matter of English conflict of laws allows a critical evaluation of the epistemological and cultural value of the British withdrawal from the European Union, since in the claims of autonomy and renewed sovereignty of the United Kingdom we must recognize the prelude of a new dialectical interaction between common law and civil law. In this respect, the challenge for scholars cannot be limited to a mere consideration of the technicalities of the new regime for the enforcement of European civil judgments in the UK after Brexit, but is enriched by an essential comparative approach that the transnational dimension of legal protection demands to be accomplished.