Thesis, Münster i. Westf., 1919.

Thesis, Münster i. Westf., 1919.

The United Nations Convention on Contracts for the International Sale of Goods (CISG), adopted in April 11, 1980, is an attempt to unify rules of international trade. A large number of states that represent a variety of legal systems and of degrees of development have adhered to this Convention. / As a result of the divergence of approaches and rules in these systems, several issues were debated during the negotiations, among others the remedy of specific performance. / This thesis examines the provisions regarding specific performance in the Convention in attempt to reveal the divergence of approaches between Common Law and Civil Law by means of a comparative study of the two systems. / The purpose is to assess the extent to which uniformity is achieved in the Convention. The study shows that the solution adopted regarding specific performance was a compromise that threatens uniformity to a certain degree.

Most sleep loss research has concentrated on long duration, repeated measures performance of low-level, monotonous tasks, such as vigilance and reaction time, in support of the theory that sleep loss induces a decline in Non-Specific arousal while having no specific effects on functioning. Numerous studies have shown the beneficial effects of caffeine on this type of performance measure. Recent studies have been conducted on executive functioning tasks that are short, novel, and stimulating. These measures display a sensitivity to sleep loss after 36h that is not compensated by waking countermeasures such as motivation and caffeine. These findings suggest Specific effects of sleep loss, contrary to the Non-Specific theory, particularly on tasks associated with frontal lobe activation. Similarities between performance deficits following brain lesions and those observed in sleep loss subjects form the basis of a neuropsychological model of sleep function. This thesis was an endeavour to document the findings of executive functioning sensitivity following 27 and 36 hours of sleep loss, testing the effect of two common countermeasures, caffeine and a nap. It was established that the critical period of sleep loss for executive functioning performance is at 36 hours. Sleep deprivation effects for periods shorter than 36 hours can be countered by a waking countermeasure, caffeine. It was further established that a 2-hour prophylactic nap opportunity inhibited sleep deprivation effects at 36-hr performance testing for executive functions. The systematic analysis of the effects of sleep loss on language skill, a complex task which is possibly an executive functioning task associated with frontal lobe activation but largely neglected in the literature, detected an increase in variability in language skill, and a propensity towards production errors in speech, but not writing, at 36 hours without sleep. This effect was not observed at 27 hours. The findings are discussed in support of a hypothetical consolidated model of Specific and Non-Specific Effects of sleep loss.

No description available.

Univ., Diss.--Nijmegen, 2007.

This thesis is located within the discourse of pedestrian performance, an area of research which has emerged from a recent proliferation of site-based works that are concerned with walking as an aesthetic and performative practice. However, my research seeks to expand the field beyond studies of site-based performances. Through placing emphasis on the action of walking itself within performance, I argue that pedestrian performance is an umbrella term for a host of performances that utilise walking. Beginning at the turn of the twentieth century, I present a mapped journey of pedestrian performance, with each chapter in my thesis acting as a waymarker. Each waymarker is shaped by a distinctive spatial arrangement, plotting a journey from the theatre to the site. Although there is a sense of chronology in this journey, its structure lies principally in the subtle shifting of the spatial arrangement of the performer and audience. The first waymarker is that of the theatre, where I examine the manner in which the journey has been staged and the kinesthetic empathy of a seated audience. I then move to the overlooked staging of promenade performance, exploring the varying tensions incurred by putting an audience on their feet. From here I investigate the familiar territory of site and how walking allows us to distinguish between site-specific and situation-specific performances. Finally I address the non-site, illustrating how this theory of land artist Robert Smithson, can enhance our understanding of a recent wave of pedestrian performances which involve journeys to sites that cannot be reached. I close this thesis by presenting a more cohesive illustration of pedestrian performance, illustrating its varying incarnations within an expanded field. Such an expansion of the landscape allows the pedestrian performance scholar to discern between the different ways in which walking and the journey motif has been utilised in performance. Furthermore, it also reveals a legacy of this mode of performance which predates its popularity in site-based works, enabling a dialogue to occur between scholars of both theatre and performance studies.

This thesis explores the making of Thailand’s Civil and Commercial Code in 1925 (‘Code of 1925’), especially the drafting method the draftsmen employed, and ascertains how the use of this method affected Thai lawyers’ understanding of rules and concepts of the Code. The Code of 1925 emerged from a period in which Thailand was under threat from colonisation by Western powers. As a result of a number of unbalanced commercial treaties between the Thai and foreign governments, the jurisdictional sovereignty of the country had been eroded by consular jurisdiction and the principle of extraterritoriality. These ‘unfair treaties’ forced the Thai government to establish a modern legal system as part of its attempts to recover full judicial autonomy. The work of codification of civil and commercial law, which began in 1908 under the direction of French draftsmen, produced the desired result in 1925 only after Phraya Manavarajasevi (Plod na Songkhla) became involved. Plod was instrumental in replacing the French Code civil with the BGB of 1900 as the principal model and introducing the Japanese Civil Code of 1898 (‘Minpō’) and the ‘copying method’ which he referred to as the ‘Japanese method’ to the new Thai-dominated drafting committee. The Japanese Code and the ‘Japanese method’ were chosen owing to Plod’s belief that the Japanese had established their civil code by copying the BGB. This thesis shows that Alan Watson’s theory of legal transplants is well suited for explaining this type of legal development: the draftsmen copied the wording of English translations of provisions of the BGB and the Minpō without much concern about their conceptual foundations. They finished their task within seven months. But Watson’s contention that successful legal borrowing does not require ‘a systematic knowledge of the law’ must be approached with great caution. Plod was misled by a secondary source he consulted into believing that the Minpō was practically a copy of the BGB. In reality, the Japanese Code was influenced by a variety of foreign laws, including German and French law. The drafting committee’s lack of knowledge about the rules and concepts they borrowed and the method they adopted led to difficulties in interpreting the rules and concepts in question. This is illustrated in this thesis by a case study of the legal rules in the Code of 1925 on specific performance. Most of the Thai provisions concerning non-performance and remedies for non-performance were copied from the BGB, but two important rules concerning the rights to performance and damages (Articles 213 and 215) came from the Minpō. These provisions were mainly influenced by French law, but Plod and most likely other Thai draftsmen erroneously believed that they were of German origin. The text of these two articles clearly put specific performance and damages as remedies for non-performance on equal footing. The consequence of this is that Thai academics who maintain that specific performance is the primary remedy for nonperformance have struggled to justify this point of view. Whenever they expound on the principle of the primacy of specific performance in Thai law, Thai writers produce contradictory statements because the wording of Articles 213 and 215 forces them to accept that the creditor in case of non-performance has the right to choose between specific performance and damages. This thesis shows that legal borrowing without a proper use of comparative law and legal history and a systematic knowledge of the law borrowed can lead to undesirable results. Thai lawyers must employ comparative and historical methods when discovering the true character of the Thai rules and concepts. With the help of these methods, they may find common ground in legal concepts and resolve some theoretical problems.

The thesis examines the claims that may be brought against express trustees for pecuniary compensation. It contends that a difference of principle divides this conventional category in two. Some compensation claims complain that the trustee has breached one of his duties and seek to charge him with reparation for whatever ensuing loss has been suffered by the beneficial interests. These claims resemble claims for damages founded upon a tort or breach of contract. Other compensation claims overlook whatever breach there may have been and demand that the trustee account and perform the trusts, in money where this cannot be done in specie. This second type of claim resembles a claim for the specific performance of a contract, bearing in mind that specific performance may be given with compensation where the defendant cannot deliver what he has promised. The claims are cumulative subject to the principle of full satisfaction.

Ancorados no princípio nemo ad factum praecise cogi potest e limitados pela completa ineficácia das ferramentas processuais disponibilizadas, nossos Tribunais vinham ofertando à parte prejudicada com o descumprimento de uma obrigação de fazer, não fazer ou entregar coisa apenas o equivalente pecuniário da prestação inadimplida. A percepção de que a via indenizatória nem sempre repararia de forma integral os danos experimentados e a conscientização de que o uso de meio coercitivo indireto para o desempenho da obrigação anteriormente assumida não caracterizaria ofensa à liberdade individual (entre tantos outros fatores) fizeram com que esse quadro começasse a ser contestado. Atendendo a reivindicação da doutrina, o legislador empreendeu uma série de reformas no Código de Processo Civil, quebrando o paradigma: a tutela específica passou a ocupar o lugar de primazia que vinha sendo indevidamente ocupado pelo sucedâneo indenizatório. O presente estudo se dedica a examinar a principal ferramenta processual utilizada para a obtenção da tutela específica em juízo: as astreintes. São analisados, neste trabalho, os antecedentes históricos da tutela específica e dos meios de coerção nos sistemas romano e lusitano e no próprio direito pátrio bem como os institutos assemelhados à multa coercitiva brasileira no direito francês e anglo-saxão. Com base nessa retrospectiva histórica e tendo em conta os institutos do direito comparado, o estudo define a natureza, função e campo de incidência das astreintes. Após, abordam-se temas polêmicos em torno da aplicabilidade da multa coercitiva: possibilidade de cumulação com outras formas de coerções/sanções, periodicidade e valor inicial, termo a quo e ad quem, existência ou não de limitação legal ou principiológica para o montante final, a possibilidade da alteração de seu valor e a questão do enriquecimento sem causa do credor. Por fim, é tratada a execução da multa coercitiva. Tudo para demonstrar que, a despeito da falta de regramento detalhado e das várias divergências doutrinárias e jurisprudenciais que daí advém, as astreintes se mostram como a mais efetiva ferramenta para a obtenção da tutela específica em juízo - tendência do processo civil contemporâneo. / Based on the principle of nemo ad factum praecise cogi potest and restrained by the total inefficacy of the available procedural tools, our Courts have been granting to the party affected by an obligation of specific performance only the pecuniary equivalent of the defaulted service provision. Such scenario started to be challenged upon the perception that the indemnity path would not always fully repair the damages suffered and in view of the awareness that the use of an indirect coercive means for the previously undertaken obligation to be fulfilled would not qualify as offense to the individual freedom (among many other factors). In response to the doctrine\'s claims, the lawmaker made a number of amendments to the Code of Civil Procedure, overturning the paradigm: the specific relief was given the primacy that had been unduly given to the indemnity substitute. This paper examines the main procedural tool used to obtain the specific relief in court: the daily fines. This paper analyzes the historical precedents of the specific relief and the coercive means in the Roman and Portuguese system and in Brazilian law, as well as the institutions similar to the Brazilian coercive fine in the French and Anglo-Saxon laws. Based on such historical review and considering the institutions in comparative law, the study defines the nature, function and coverage of the daily fines. It further addresses controversial issues revolving around the applicability of the coercive fine: possibility of accumulation with other types of coercion / sanctions, periodicity and initial value, term a quo and ad quem, existence or not of limitation for the final amount, arising from law or principle, possibility of changing its value and the issue of creditor\'s enrichment without cause. Finally, this paper addresses the execution of the coercive fine. The aim is to show that, in spite of the fact that there is not a detailed ruling and that several doctrine and jurisprudence controversies arise from it, the daily fines are the most effective tool to obtain the specific relief in court - a trend in contemporaneous civil procedure.