Thesis (doctoral)--Universität Rostock.

Thesis (doctoral)--Ruprecht-Karl-Universität in Heidelberg.

No description available.

The purpose of this thesis is to examine, from a comparative perspective, the legal treatment of stipulated damages clauses in the common law and in French civil law. First, we will see that this clause has endured a turbulent legal history in both legal traditions. The French civil law and the common law have reflected at great length on the appropriate legal response to such clauses---essentially, on whether, and if so when such clauses should be enforced or prohibited. / Second, this thesis will analyse the practical roles that these clauses have played in the two legal traditions, which will illuminate further differences between their respective approaches. Emphasis will be placed on the difficult question, which has arisen in both legal systems, of defining the notion of stipulated damages clauses and of differentiating them from other institutions, such as deposit clauses. / Third, the evaluation of these two legal systems will facilitate the contention that the approach of the French civil system is, in most cases, preferable to the solution adopted by the common law. Nevertheless, it will be seen that each legal tradition could benefit considerably from careful examination of the other's treatment of these clauses.

No description available.

The author begins this article focusing on how historically the contract has reached such binding; from its philosophical origins, through his word to a matter of loyalty to Christian morality; to attribute the quality of certainty as contribution to the economy and become an indispensable legal instrument of forecasting for relations between individuals. Finally, in the second part of this article, essential applications mainly include contract between both parties and to third parties, also seeking the role of judge. / El autor inicia el presente artículo centrándose en cómo históricamente el contrato ha alcanzado dicha fuerza obligatoria; desde sus orígenes filosóficos, pasando por la palabra empeñada a una cuestión de fidelidad en la moral cristiana; hasta atribuirle la calidad de certeza como aporte en la economía y convertirse en un instrumento jurídico indispensable de previsión para las relaciones entre los particulares. Finalmente, en la segunda parte de este artículo, destacan principalmente las aplicaciones esenciales del contrato tanto entre las partes como frente a terceros, tratando también el rol del juez.

No description available.

The purpose of this thesis is to determine the scope and consequences of the separability doctrine in English law. It reveals a tension which hitherto has not been explored or understood between the desire to widen the separability doctrine so as to promote commercial arbitration and the need for that doctrine to rest on sound principle and policy. The thesis seeks to convince the reader that: (i) English arbitration law is, and should continue to be, based on a contractual theory of arbitration; (ii) the separability doctrine, as applied in England, is consistent with a contractual theory of arbitration; (iii) the best way for the English doctrine of separability to develop, for reasons of policy and principle, is to recognise two main exceptions to separability, these being for non-existent and for illegal contracts; and (iv) the competence-competence principle can, and should, be utilised in order to mitigate some possible drawbacks of the above-mentioned exceptions to the separability doctrine. In developing the above arguments the thesis tackles issues of great importance that have tended to be overlooked, in particular the relationship between the separability doctrine and general theories of arbitration and the relationship between the separability doctrine and the competence-competence principle.

No description available.

The majority of established legal systems are predisposed to the express recognition of good faith in contract. The apparent pressure for harmonisation of contract law arising from globalisation and political union will necessitate the Anglo-Commonwealth common law countries addressing their historical resistance to the observance of a general obligation of good faith. Accordingly this thesis appraises whether there is a requirement for a universal doctrine of good faith in New Zealand contractual relationships. The manuscript focuses on a prospective common law doctrine operating primarily as a rule of construction. It identifies the limits of such a judicial doctrine including its probable lack of application to non-contractual dealings and the likely need for a legislative duty if contracting parties are to be precluded from excluding the obligation. The characteristics of the subject doctrine are explored including the potential definition and uses of good faith. Whilst it is shown that good faith serves an important role in contract law, the analysis reveals that there is no current requirement for an express doctrine within New Zealand. The entrenched ‘piecemeal’ approach synonymous with Anglo-New Zealand contract law is not demonstrably deficient when gauged against the reasonable expectations of contracting parties. The current methodology is preferred to a general, unfamiliar and uncertain good faith principle which is likely to be reduced to equate with the existing New Zealand law in any event. Further, duties consonant with good faith may enhance economic efficiency but not in some instances. Good faith is therefore best imposed in specific circumstances rather than as a universal doctrine. Likewise, there is insufficient evidence to suggest that New Zealand is impaired in the international arena due to a lack of good faith despite pressure for New Zealand to accord with widespread overseas practice. The principle is of minimal utility in international trade where commercial certitude is paramount. Although an imperfect exemplar, the unresolved issues pertaining to contractual good faith in domestic American law confirms the identified reservations associated with the subject doctrine.