Ch.11 Plurality of obligors and of obligees, s.1: Plurality of Obligors, Art.11.1.10

2015 ◽  
Author(s):  
Meier Sonja
Keyword(s):  
Burden Of Proof ◽  
The Other

This commentary analyses Article 11.1.10 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the extent of contributory claim of the performing obligor against its co-obligors. In a contractual setting, joint and several obligations arise because the obligors obliged themselves by a common commitment towards the obligee or by separate commitments in the knowledge of the commitments of the other obligors. Contribution between joint and several obligors is a generally accepted principle. Art 11.1.10 provides for a personal claim of the performing obligor against its co-obligors. According to this provision, a joint and several obligor who has performed more than its share may claim the excess from any of the other obligors to the extent of each obligor's unperformed share. This commentary considers the obligor's contractual claim to contribution, performance of more than its share, and contribution in money. It also addresses the amount of the contributory claim, costs and interest, duties before performance, and burden of proof relating to contributory claim.

Ch.3 Validity, s.2: Grounds for avoidance, Art.3.2.16

2015 ◽  
Author(s):  
Huber Peter
Keyword(s):  
Burden Of Proof ◽  
The Other

This commentary focuses on Article 3.2.16 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning damages. Art 3.2.16 adopts a ‘neutral’ approach to the issue of damages by simply stating under which conditions a claim for damages may arise and what kinds of damages are recoverable. It does not distinguish between the case where the avoiding party seeks damages and the inverse case where the other party seeks damages. Irrespective of whether or not the contract has been avoided, the party who knew or ought to have known of the ground for avoidance is liable for damages so as to put the other party in the same position in which it would have been if it had not concluded the contract. This commentary discusses the liability of the party entitled to avoid and of the other party in cases where contract is avoided and not avoided, along with the allocation of the burden of proof.

Ch.2 Formation and authority of agents, s.2: Authority of agents, Art.2.2.2

2015 ◽  
Author(s):  
Krebs Thomas
Keyword(s):  
Burden Of Proof ◽  
The Other ◽  
The One

This commentary focuses on Article 2.2.2 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the establishment and scope of the authority of the agent. Art 2.2.2 contains two paragraphs that distinguish between the conferral or establishment of authority on the agent on the one hand, and the extent or scope of that authority on the other. While Art 2.2.2(1) provides that authority can be granted expressly or impliedly (establishment), Art 2.2.2(2) explains how the extent that authority is to be determined. Generally, it is for the person relying on an agent's authority to bear the burden of proof that it existed at the time the agent acted.

Part II Burden and Standard of Proof in International Investment Arbitration, 3 Shifting the Burden of Evidence

2018 ◽  
Author(s):  
Sourgens Frédéric Gilles ◽  
Duggal Kabir ◽  
Laird Ian A
Keyword(s):  
Burden Of Proof ◽  
International Investment ◽  
The Other ◽  
Standard Of Proof ◽  
Investment Arbitration ◽  
Burden Of Persuasion

This chapter explains the process of ‘shifting the burden of evidence’, otherwise known as the ‘shifting principle’. This is the proposition which occurs when the party who bears the initial burden puts forward evidence to support its initial claim. Here, the burden of evidence (or alternatively also termed as the ‘burden of production’, ‘burden of persuasion’, or ‘burden of proceeding’) shifts to the other party to rebut the evidence put forward. Shifting the burden of evidence is to be read in conjunction with the burden of proof principle discussed in the previous chapter. This is because it is only when the initial burden of the party making an allegation is met that the burden is shifted to the other party.

scholarly journals Delayed Justice - Macedonian Experience With Guilty Plea And Sentence Bargaining

SEEU Review ◽  
2015 ◽  
Vol 11 (1) ◽  
pp. 99-110
Author(s):  
Boban Misoski
Keyword(s):  
Burden Of Proof ◽  
Criminal Procedure ◽  
The Other ◽  
Practical Implementation ◽  
Bargaining Process ◽  
Guilty Plea ◽  
The Public ◽  
Legal Provisions ◽  
Weak Points ◽  
The Impact

Abstract Bearing on mind the idea of the proverb “Justice Delayed is Justice Denied” Macedonian Legislator within the new Code of Criminal Procedure (CPC) has introduced several legal mechanisms for accelerating the criminal procedure. The most important instruments among them, by all means, are the Guilty Plea and Sentence Bargaining. In this article, the author elaborates the practical implementation of these CPC’s provisions and performs analysis of its implementation by the Basic Court Skopje 1 in Skopje, as the biggest and most caseload-burdened court in Macedonia, and by the Public Prosecution Office in Skopje. The analysis discovered several weak points, which should be properly addressed, both through theoretical scrutiny and through introduction of amendments to the CPC or through production of a general opinion by the Supreme Court. Only through these amendments to the legal provisions of the CPC can be expected to have improved court practice in a manner which would accentuate the real/just benefits of these instruments for accelerating of the criminal procedure. Several conclusions and suggestions for improvement or specific issues, which were determined as problematic were developed, such as: tackling the impact of a guilty plea by one of the codefendants to the other codefendants who did not plead guilty; treatment of the altered statement by one of the codefendants during the plea agreement and its use against the other codefendant; and the burden of proof and amount of evidence which is necessary to support the sentence bargaining process.

scholarly journals Uncertain causation: two hunters dilemma

2020 ◽  
pp. 49-61
Author(s):  
Богдан Петрович Карнаух
Keyword(s):  
Burden Of Proof ◽  
General Rule ◽  
Tort Law ◽  
Point Of View ◽  
The Other ◽  
Vicious Circle ◽  
Common Denominator ◽  
The Supreme Court ◽  
The Common ◽  
Causal Nexus

According to the general principles of tort law, in order to succeed a plaintiff must prove causal nexus between the damage he or she sustained and the actions of a particular defendant. However, in some factual situations this task appears to be impossible, and the question arises whether the plaintiff should be left uncompensated or rather the general rule on proof of causation has to be relaxed. In a groundbreaking case Summers v. Tice (the facts of which are also known as ‘two hunters dilemma’), the Supreme Court of California favored the latter option. The Court shifted the burden of proof and decided that under these exceptional circumstances it is for each of the defendants to absolve himself from liability by providing evidence that he could not had caused the damage. The conclusion of the Court does not cause any doubts. However scholars dispute over the exact explanation of that conclusion, because it is the explanation that is crucial for future similar cases.The circumstances of the Summers case are thoroughly analyzed by many writers. Some suggest that even the number of defendants matters (supposing thus, that if there were three of them the court would not have reached the same conclusion). On the other hand, the character of their activity is underlined. The proponents of this point of view focus on the fact that the members of hunting party can coordinate their actions and it is this opportunity of coordination that justifies the burden shifting. The common denominator for numerous authors is spotlighting the fact that both hunters are at fault for causing the uncertainty, even though one of them might not be at fault for causing damage. However, in some other situation the uncertainty could have been caused without their fault. The author doubts if in the latter case the defendants should escape liability.The author offers the following explanation of the two hunters dilemma. Whenever it has been proven that defendants acted negligently subjecting the plaintiff to a certain type of risk and it has been proven that one of them did actually caused plaintiff’s damage, neither of the defendants can absolve himself from liability merely relying on the fact that the damage may have been caused by the other defendant. Otherwise the vicious circle will arise.

scholarly journals Zum kollisionsrechtlichen Umgang mit sachenrechtlichen Eigentumsvermutungen aus dem Besitz

2021 ◽  
Vol 30 ◽  
pp. 90-98
Author(s):  
Aleksandar Zivanic
Keyword(s):  
Burden Of Proof ◽  
Civil Code ◽  
The Other ◽  
Conflict Of Laws ◽  
The One ◽  
Made In

A presumption is made in the favour of the possessor of a movable thing that he is the owner of the thing, and likewise it is presumed that a former possessor was the owner during the term of his possession. However, legal presumptions such as those behind the German Civil Code’s §1006, subsections 1 and 2 (or §90 of the Estonian Law of Property Act) are shifting the burden of proof to the other party, the one who is not or was not the possessor of the movable. The paper examines the attendant issues with regard to conflict of laws, with the conclusion that it remains unclear whether legal presumptions arising from possession should be qualified by the lex rei sitae doctrine (per the Introductory Act to the German Civil Code, Article 43, Subsection 1), instead as ‘rights over an object’ (under that article’s Subsection 2), or in line with procedural regulations (lex fori).

Ch.7 Non-performance, s.4: Damages, Art.7.4.13

2015 ◽  
Author(s):  
McKendrick Ewan
Keyword(s):  
Performance Art ◽  
Burden Of Proof ◽  
The Other ◽  
Reasonable Amount ◽  
Do So

This commentary analyses Article 7.4.13 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the agreed payment for non-performance. Art 7.4.13 applies where a term of the contract provides that ‘a party who does not perform is to pay a specified sum to the aggrieved party for such non-performance’. According to Art 7.4.13, the aggrieved party is entitled to recover the specified sum from the non-performing party and it can do so irrespective of the harm which it has in fact suffered as a result of the non-performance. However, the specified sum may be reduced to a reasonable amount where it is grossly excessive in relation to the harm resulting from the non-performance and to the other circumstances. This commentary discusses the scope of Art 7.4.13 and the burden of proof relating to payment for non-performance.

Ch.4 Interpretation, Art.4.2

2015 ◽  
Author(s):  
Vogenauer Stefan
Keyword(s):  
Burden Of Proof ◽  
The Other ◽  
Reasonable Person ◽  
Preceding Paragraph ◽  
The Relationship

This commentary focuses on Article 4.2 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning interpretation of unilateral statements and other conduct of a party. Under Art 4.2, the statements and other conduct of a party shall be interpreted according to that party's intention if the other party knew or could not have been unaware of that intention. If the preceding paragraph is not applicable, such statements and other conduct shall be interpreted according to the meaning that a reasonable person of the same kind as the other party would give to it in the same circumstances. This commentary discusses interpretation according to the intention of the party making the statement or engaging in the conduct, interpretation according to the understanding of reasonable persons, the relationship between Art 4.2(1) and (2), and burden of proof for parties wishing to invoke Art 4.2(1) or Art 4.2(2).

Ch.1 General Provisions, General Provisions III: Arts 1.6–1.12—Application of the PICC, Art.1.10

2015 ◽  
Author(s):  
Vogenauer Stefan
Keyword(s):  
Burden Of Proof ◽  
The Other ◽  
Legal Consequences

This commentary focuses on Article 1.10, which deals with the effectiveness of notices provided under the UNIDROIT Principles of International Commercial Contracts (PICC). A notice refers to any communication of intention. By way of example, the paragraph lists declarations, demands, and requests. The notice must be ‘required’ under the PICC; that is, a provision of the instrument must attach certain legal consequences to the giving of the notice. Art 1.10 establishes a single regime for all types of notice which has two main features. In order to be effective, notices are not subject to any requirement as to form. However, they must be received by the addressee. Art 1.10 also explains the burden of proof concerning the party that relies on the effectiveness of its own notice and the party that relies on the effectiveness of the other party's notice.

) Seller is bound to hand the goods over to the first carrier at a particular place, but hands them over prior to the place agreed. d) Goods are handed over to the first carrier but have not yet been identified. Q 67-9 In which of the above situations is the burden of the risk split during transport? Q 67-10 Under the CISG, when does the risk pass in the following situations: a) Seller hands goods over to freight forwarder who will undertake the transport itself. b) Same situation, but a third party will transport the goods. c) Same situation, but the freight forwarder has the right to transport in its own name. Q 67-11 Compare Art. 67 CISG with domestic sales laws. a) Compare Art. 67(1) CISG with § 2-509 UCC. Do you see any similarities? b) What is the corresponding rule in the BGB? c) Why is the BGB clearer than the CISG with regard to the passing of risk in the case of handing the goods over to a freight forwarder? Q 67-12 It has been stated that, under the CISG, although from a dogmatic view, the time of delivery and the time of passing of risk have been distinguished, in practice they will often coincide. Under French and Swiss law, the passing of risk has been settled differently. a) To what extent do Swiss and French law provide for a similar rule on the passing of risk? b) Which point in time is decisive as to whether the risk has passed to the buyer? c) Which rules are more suited for modern international trade, the French and Swiss ones or those found in Art. 67 CISG and the other sales laws? Discuss. d) Under Swiss law, title to the goods will not pass until handing over the goods to the buyer. How does the CC settle the passing of title to goods? Cf. Art. 1138(1) CC. e) In light of what has been said sub c), do you see a rationale in French law for how it handles the passing of risk? f) Which difficulty persists in Swiss law with regard to risk allocation between the buyer and the seller? Q 67-13 As a rule, the burden of proof as to where loss or damage to the goods occurred is borne by the party that wants to draw a benefit from that fact.

2007 ◽  
pp. 519-519
Keyword(s):  
International Trade ◽  
Burden Of Proof ◽  
The Other ◽  
Third Party ◽  
Risk Allocation ◽  
French Law ◽  
Swiss Law ◽  
Freight Forwarder ◽  
The Right ◽  
Own Name
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