scholarly journals The barratry of the shipmaster in early modern law: the approach of Italian and English law courts

2019 ◽  
Vol 87 (4) ◽  
pp. 504-574
Author(s):  
Guido Rossi
Keyword(s):  
Early Modern ◽  
Common Law ◽  
Practical Importance ◽  
Civil Law ◽  
Case Law ◽  
Legal Framework ◽  
Walk Away ◽  
Long Time ◽  
Law Courts ◽  
The Difference

SummaryFor a long time, the concept of barratry (at least in its maritime meaning) was one and the same on both sides of the Channel. The barratry of the shipmaster was part of the mercantile usages, and it identified the intentionally blameworthy conduct of the master. When law courts began to decide on insurance litigation they were confronted with a notion quite alien to them. Broadly speaking, the shipmaster’s barratry could well be considered a fraud of sort. But in order to decide on its occurrence in a specific case, law courts had to analyse it in legal terms, and so according to the specific legal categories of their own system. The point ceases to be trivially obvious if we think that the different legal framework of civil and common law courts progressively led to very different interpretations of the same thing. Thus, with the shift of insurance litigation from mercantile justice to law courts maritime barratry began to acquire increasingly different features in the two legal systems. Very often, the very same conduct of the shipmaster was considered as negligent by civil law courts and barratrous by common law courts. The difference was of great practical importance, for many policies excluded barratry from the risks insured against. So, depending on the kind of law court, an insurer could be charged with full liability for the mishap or walk away without paying anything. If the beginning of the story was the same, its end could not have been more different.

scholarly journals CODIFICATION, CONSOLIDATION, RESTATEMENT? HOW BEST TO SYSTEMISE THE MODERN LAW OF TORT

2021 ◽  
Vol 70 (2) ◽  
pp. 271-305
Author(s):  
Paula Giliker
Keyword(s):  
Comparative Study ◽  
Common Law ◽  
Civil Law ◽  
Tort Law ◽  
Case Law ◽  
Legal Scholarship ◽  
Legal Rules ◽  
The Law ◽  
Codal Provisions ◽  
Code Civil

AbstractThe law of tort (or extra or non-contractual liability) has been criticised for being imprecise and lacking coherence. Legal systems have sought to systemise its rules in a number of ways. While civil law systems generally place tort law in a civil code, common law systems have favoured case-law development supported by limited statutory intervention consolidating existing legal rules. In both systems, case law plays a significant role in maintaining the flexibility and adaptability of the law. This article will examine, comparatively, different means of systemising the law of tort, contrasting civil law codification (taking the example of recent French proposals to update the tort provisions of the Code civil) with common law statutory consolidation and case-law intervention (using examples taken from English and Australian law). In examining the degree to which these formal means of systemisation are capable of improving the accessibility, intelligibility, clarity and predictability of the law of tort, it will also address the role played by informal sources, be they ambitious restatements of law or other means. It will be argued that given the nature of tort law, at best, any form of systemisation (be it formal or informal) can only seek to minimise any lack of precision and coherence. However, as this comparative study shows, further steps are needed, both in updating outdated codal provisions and rethinking the type of legal scholarship that might best assist the courts.

Part VIII Remedies For Default, 27 Debt and Other Agreed Sums

2021 ◽  
Author(s):  
Andrews Neil
Keyword(s):  
Common Law ◽  
Practical Importance ◽  
Case Law ◽  
Fundamental Principle ◽  
Breach Of Contract ◽  
Self Help ◽  
Liquidated Damages ◽  
Specific Performance ◽  
The Common ◽  
Judicial Remedies

This Part mostly concerns judicial remedies for breach of contract (the self-help remedy of forfeiture of a deposit is noted at [27.109]). The chapter sequence reflects both the division between Common Law (chapters 27 and 28) and Equity (chapter 29) but, more importantly, the practical importance of the judicial remedies, debt mattering more than damages, and in turn damages more than specific performance or injunctions. And so chapter 27 concerns ‘Debt’ (but agreed damages, ie liquidated damages clauses, are treated in the same chapter because the sum payable is, by definition, fixed or calculable in advance; but technically, agreed damages are damages and not a cause of action sounding in debt). Chapter 28 concerns damages, that is, compensation. Damages is a branch of the law which continues to generate a mass of intricate case law. Finally, chapter 29 concerns the equitable remedies of specific performance, injunctions, account of profits, and declarations. It is a fundamental principle that specific performance can be granted only if the Common Law remedies (debt and damages) are inadequate on the relevant facts. Chapter 27: The predominant claim for contractual default is the action for debt, to compel payment. Statistically this is the front-runner amongst remedies for breach. The availability of interest is also noted in this chapter.

6. The significance of nation states

2017 ◽  
pp. 66-80
Author(s):  
Elizabeth Fisher
Keyword(s):  
Environmental Law ◽  
Common Law ◽  
Civil Law ◽  
Legal Culture ◽  
Environmental Problems ◽  
Physical Reality ◽  
Nation States ◽  
Global Environmental ◽  
The Difference ◽  
Political Communities

Environmental problems transcend the boundaries of nation states. That fact is a reminder of the physical reality of such problems, but—for good or ill—political and legal imagination is the product of political communities that cluster into nation states. ‘The significance of nation states’ looks at how environmental law is shaped by the legal culture of nation states. It also discusses the difference between civil law systems and common law systems. The internal constitutional arrangements of a country are fundamental to how environmental law develops in a particular legal culture. Is a ‘global environmental law’ emerging?

2. Legal systems and sources of law

2020 ◽  
pp. 35-70
Author(s):  
Scott Slorach ◽  
Judith Embley ◽  
Peter Goodchild ◽  
Catherine Shephard
Keyword(s):  
International Law ◽  
Common Law ◽  
Civil Law ◽  
Case Law ◽  
Potential Effect ◽  
Legal Systems ◽  
Public And Private ◽  
England And Wales ◽  
The World ◽  
The Status

This chapter focuses on the sources of law in England & Wales, and is organised as follows. Section 2.1 describes the key jurisdictions relevant to lawyers in England and Wales. Section 2.2 deals with the issue of where the law comes from: sources of law. Section 2.3 reviews the development of the two ‘traditional’ sources of law in England and Wales: case law and statutes. Sections 2.4 and 2.5 consider the status and operation of EU and international law, including the potential effect of Brexit. Section 2.7 goes on to discuss public and private law, common law, and civil law, and other classifications used by lawyers. This is followed by a discussion of legal systems and their cultures across the world.

Dispute Resolution in the Islamic Finance Industry

2020 ◽  
pp. 804-833
Author(s):  
Camille Paldi
Keyword(s):  
Dispute Resolution ◽  
Common Law ◽  
Legal Framework ◽  
Islamic Finance ◽  
Finance Industry ◽  
The Common ◽  
Law Courts

A unique and independent legal framework is important to effectively adjudicate Islamic finance disputes, Sukuk bankruptcies, and Takaful disputes. Currently, these disputes are being adjudicated in common law courts or ineffective arbitration centres where often the Islamic finance transaction is inadvertently converted into a conventional transaction due to the common law nature of the dispute adjudication. In this chapter, a framework is proposed for Islamic finance dispute resolution in the form of the Dubai World Islamic Finance Arbitration Centre (DWIFAC), DWIFAC Jurisprudence Office, the Sukuk Bankruptcy Tribunal (SBT) and the Takaful Tribunal (TT).

The Appeals Decision in the ICC's Jean-Pierre Bemba Gombo Case on the Trial Chamber's ‘Decision on the Admission into Evidence of Materials Contained in the Prosecution's List of Evidence’

2012 ◽  
Vol 25 (2) ◽  
pp. 511-520
Author(s):  
CHRISTINE SCHUON
Keyword(s):  
Present Article ◽  
International Criminal Court ◽  
International Criminal ◽  
Common Law ◽  
Civil Law ◽  
Legal Framework ◽  
Trial Chamber ◽  
Criminal Court ◽  
The Common

AbstractWhen, on 3 May 2011, the Appeals Chamber reversed the decision of Trial Chamber III in the Bemba case that had admitted material on a list of the prosecution into evidence, it addressed various central issues related to the admission of evidence under the legal framework of the International Criminal Court (inter alia, the orality principle). The present article critically analyses both decisions. In particular, it views the Trial Chamber's approach that envisages a multi-tiered process of admitting evidence, in light of the approaches of civil law and common law, and expresses concerns about uncertainties and protraction that may result. As the Court's legal framework does not determine that the processing of evidence follow either the civil-law or the common-law model, this is left for the trial chambers to decide in each case. In determining the preferable approach for each respective case, consideration of the procedural context is key. The Appeals Chamber decision allows for the required leeway of the trial chambers in regulating the processing of evidence, to adopt a way that fits the particular circumstances best.

scholarly journals Requirements for assuming a permanent establishment under Art. 5 OECD Model Tax Convention

2021 ◽  
Vol 1 (1) ◽  
pp. 111-125
Author(s):  
Mandy Witt
Keyword(s):  
Research Question ◽  
Common Law ◽  
Relevant Literature ◽  
Civil Law ◽  
German Law ◽  
Case Law ◽  
International Level ◽  
Permanent Establishment ◽  
The Common ◽  
Article 5

In January 2019, the German Federal Finance Court defined the legally binding requirements with respect to a fixed place of business being a matter of a permanent establishment according to German law, thus the revenue generated being subject to the German taxation.This article addresses the research question ‘Which criteria have to be met by a permanent establishment to be effective for tax purposes?’Regarding the methods, the article reviews relevant literature and case law to identify the prevailing and dissenting opinions on the requirements for assuming a fixed place of business under Art. 5(5) OECD-Model Tax Convention. As to the question whether one can refer to a fixed place of business as a permanent establishment, the courts use to differentiate between Civil Jurisdiction and Common Law. For the sake of clarity, the courts coined the article 5 of the OECD[1] Model Tax Convention. In accordance to the abovementioned Model Tax Convention, binding provisions were defined on the international level for both, countries using the Common Law as well as for those using the Civil Law, with respect to the requirements as to a permanent establishment and the resulting country of taxation to be applied. In doing so, the question arose whether for instance a lockbox would represent a permanent establishment or not.However, the contracting states did not succeed in determining clear requirements as to the existence of the establishment in question. In fact, they left it to the state in question to define their respective double-tax agreements according to their own needs.    

scholarly journals Dividend Smoothing and Investor Protection

2019 ◽  
Vol 22 (2) ◽  
pp. 55-70
Author(s):  
Ante Džidić ◽  
Silvije Orsag
Keyword(s):  
United States ◽  
Common Law ◽  
Investor Protection ◽  
Civil Law ◽  
Legal Origin ◽  
Agency Model ◽  
Dividend Smoothing ◽  
Widespread Phenomenon ◽  
The Common ◽  
The Difference

Abstract This paper examines the agency model of dividends where the importance of dividends depends on the level of investor protection. The importance of dividends is presented by the dividend smoothing concept, while the level of investor protection is determined by the legal origin. Within this, the sensitivity of dividends to earnings changes was analyzed to examine the universality of the dividend smoothing phenomenon. Subsequently, the difference in proportions of dividend smoothing firms within the common law and civil law countries was tested to determine which of these two systems attributes more importance to dividends. Finally, the application of Lintner’s model was examined in transition countries as well as in United States. Research results show that dividend smoothing is a globally widespread phenomenon, but the likelihood to reduce or cut dividends is greater in civil law countries. Also, the largest percentage of dividend smoothing firms was recorded in common law countries.

scholarly journals A COMPARISON OF THE COMMON LAW BASED DUTY WITH ITS CIVIL LAW EQUIVALENT

2020 ◽  
Author(s):  
Azamat Omarov ◽  
Asylbek Kultasov ◽  
Kanat Abdilov
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Comparative Law ◽  
Case Law ◽  
Legal Systems ◽  
Legal Structure ◽  
Legal Term ◽  
Legal Effect ◽  
The World ◽  
The Common

The article discusses the features of civil law in different countries. The authors studied the origins of the modern tradition of civil law, comparing the legal systems of two European countries. One of the traditional classifications of duties in civil law is analyzed, the conclusion is made about the inappropriateness of the allocation of personal and universal duties. In comparative law, there are many situations where the same legal term has different meanings, or where different legal terms have same legal effect. This confusion most often occurs when civil lawyers have to deal with common law, or vice versa, when common law lawyers deal with civil law issues. While there are many issues which are dealt with in the same way by the civil law and common law systems, there remain also significant differences between these two legal systems related to legal structure, classification, fundamental concepts, terminology, etc. As lawyers know, legal systems in countries around the world generally fall into one of two main categories: common law systems and civil law systems. There are roughly 150 countries that have what can be described as primarily civil law systems, whereas there are about 80 common law countries. The main difference between the two systems is that in common law countries, case law – in the form of published judicial opinions – is of primary importance, whereas in civil law systems, codified statutes predominate.

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