Subrogation, originating from Roman law, is an institution adopted in civil law jurisdictions with minor differences. According to the general definition and understanding, subrogation means the legal (ipso iure) transfer of the creditor’s right to claim to the third-party, who performs someone else’s debt, for granting him/her a privileged legal status in his (recourse) relationship with the debtor. The privileged legal status of the third-party, who benefits from the subrogation, lies in the legal transfer of accessory and priority rights arising out of the right to claim. Because of its exceptional feature, considerable efforts have been made to explain the legal nature of subrogation. However, because of its complexity, there is still no consensus on the issue. There are even views implying that subrogation is an unidentified legal object. The author suggests an explanation to the construction of subrogation in three main steps: (1) Parallel to the prevailing view regarding performance of the third-party, it should be accepted that the will of the third-party is decisive concerning the legal consequences of the performance. (2) Then it should be assumed that the third-party performs the debtor’s debt with the will to acquire (causa acquirendi) in addition to the will to discharge the debtor’s debt (causa solvendi) so that his performance can result in subrogation. (3) Finally, the ‘third-party’ should be redefined in the cases of subrogation. Alongside these steps, the construction of subrogation is based on the theory that a debt may only terminate when its inherent purpose is realized. Therefore, in cases of subrogation, the right to claim continues to exist even after the third-party’s performance with the purpose of serving the right to recourse. This purpose also limits the thirdparty’s powers. This article examines the subrogation’s legal construction by explaining the abovementioned concepts and determining their connections.
{"title":"Subrogation: An Unidentified Legal Object? A Proposal for a Solution to the Renowned Problem of the Legal Construction of Subrogation","authors":"Ekin Korkmaz","doi":"10.54648/erpl2022034","DOIUrl":"https://doi.org/10.54648/erpl2022034","url":null,"abstract":"Subrogation, originating from Roman law, is an institution adopted in civil law jurisdictions with minor differences. According to the general definition and understanding, subrogation means the legal (ipso iure) transfer of the creditor’s right to claim to the third-party, who performs someone else’s debt, for granting him/her a privileged legal status in his (recourse) relationship with the debtor. The privileged legal status of the third-party, who benefits from the subrogation, lies in the legal transfer of accessory and priority rights arising out of the right to claim. Because of its exceptional feature, considerable efforts have been made to explain the legal nature of subrogation. However, because of its complexity, there is still no consensus on the issue. There are even views implying that subrogation is an unidentified legal object.\u0000The author suggests an explanation to the construction of subrogation in three main steps:\u0000(1) Parallel to the prevailing view regarding performance of the third-party, it should be accepted that the will of the third-party is decisive concerning the legal consequences of the performance.\u0000(2) Then it should be assumed that the third-party performs the debtor’s debt with the will to acquire (causa acquirendi) in addition to the will to discharge the debtor’s debt (causa solvendi) so that his performance can result in subrogation.\u0000(3) Finally, the ‘third-party’ should be redefined in the cases of subrogation.\u0000Alongside these steps, the construction of subrogation is based on the theory that a debt may only terminate when its inherent purpose is realized. Therefore, in cases of subrogation, the right to claim continues to exist even after the third-party’s performance with the purpose of serving the right to recourse. This purpose also limits the thirdparty’s powers.\u0000This article examines the subrogation’s legal construction by explaining the abovementioned concepts and determining their connections.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46682404","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The letter of intent is a broadly used tool in different negotiations throughout the entire world. The legal implications of these documents however aren’t always clear. Depending on ‘the content of the letter of intent as a whole, in combination with the factual circumstances’, a letter can be solely morally binding, establish some juridically binding obligations or even constitute the envisaged, final agreement. Various research has been conducted on these possible (civil) legal effects. Less clear remains the factual interpretation leading to these legal effects. How do judges interpret ‘the content of the letter as a whole, together with all the factual circumstances’? Essential in this perspective are elements emphasizing a binding intention of the parties, the animus contrahendi. This article contains a concise synopsis of the most prominent case law on the matter in Belgium, France and the Netherlands. In their pursuit for the true intention of the parties involved, courts appear to rely on certain factual indicators. What are those factors, which bearing should be given to them and what perils must negotiators anticipate on?
{"title":"The Letter of Intent: To Be Bound or Not to Be Bound, that Is the Question","authors":"Thibaut Verhofstede","doi":"10.54648/erpl2022035","DOIUrl":"https://doi.org/10.54648/erpl2022035","url":null,"abstract":"The letter of intent is a broadly used tool in different negotiations throughout the entire world. The legal implications of these documents however aren’t always clear. Depending on ‘the content of the letter of intent as a whole, in combination with the factual circumstances’, a letter can be solely morally binding, establish some juridically binding obligations or even constitute the envisaged, final agreement. Various research has been conducted on these possible (civil) legal effects. Less clear remains the factual interpretation leading to these legal effects. How do judges interpret ‘the content of the letter as a whole, together with all the factual circumstances’? Essential in this perspective are elements emphasizing a binding intention of the parties, the animus contrahendi. This article contains a concise synopsis of the most prominent case law on the matter in Belgium, France and the Netherlands. In their pursuit for the true intention of the parties involved, courts appear to rely on certain factual indicators. What are those factors, which bearing should be given to them and what perils must negotiators anticipate on?","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48542800","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
On 1 January 2021, the newly codified Civil Code (CC) came into effect in the People’s Republic of China, having been high on the political and legislative agenda in recent years and approved by the National People’s Congress on 28 May 2020. Since the founding of the People’s Republic (1949), numerous attempts have been made to codify its civil law. The CC is undoubtedly a landmark in China’s overall legal history, particularly with regard to civil law legislation, which, in contrast to the country’s long and turbulent history, had only begun in the late Qing Dynasty (1911). Preceding the enactment of the CCL, the General Part of the Civil Law of the People’s Republic of China, to which the CC’s General Part is basically identical, had already been adopted and enacted in 2017. With this step, China’s legislators succeeded in replacing the General Principles of the Civil Law of the People’s Republic of China, which by then were already 31 years old, together with their supreme court interpretation, and finally set the course for the codification of the People’s Republic of China’s civil law. In view of the codificationhistorical and jurisprudential position of the CC’s General Part in China’s civil law and of the new codification as a whole, it is appropriate to present it to German-speaking and international legal experts, primarily in comparison with the General Part of the German Civil Code, which served or will serve as the most important foreign source of knowledge in the creation of the CC and in its application-related optimization. In this respect, this treatise, consisting of two parts, appreciates the renewal achievements of the CC’s General Part and examines its regulations in a comparative legal manner, focusing on the legal subjects, civil rights, legal transactions (including representation) and civil liability in terms of legal doctrine, technology and concepts.
{"title":"Der Allgemeine Teil des neuen chinesischen Zivilgesetzbuchs im Vergleich zum deutschen BGB (Teil 1): Eine rechtswissenschaftliche und -terminologische Untersuchung der Rechtssubjektsregelungen","authors":"Qiang Wang","doi":"10.54648/erpl2022036","DOIUrl":"https://doi.org/10.54648/erpl2022036","url":null,"abstract":"On 1 January 2021, the newly codified Civil Code (CC) came into effect in the People’s Republic of China, having been high on the political and legislative agenda in recent years and approved by the National People’s Congress on 28 May 2020. Since the founding of the People’s Republic (1949), numerous attempts have been made to codify its civil law. The CC is undoubtedly a landmark in China’s overall legal history, particularly with regard to civil law legislation, which, in contrast to the country’s long and turbulent history, had only begun in the late Qing Dynasty (1911). Preceding the enactment of the CCL, the General Part of the Civil Law of the People’s Republic of China, to which the CC’s General Part is basically identical, had already been adopted and enacted in 2017. With this step, China’s legislators succeeded in replacing the General Principles of the Civil Law of the People’s Republic of China, which by then were already 31 years old, together with their supreme court interpretation, and finally set the course for the codification of the People’s Republic of China’s civil law. In view of the codificationhistorical and jurisprudential position of the CC’s General Part in China’s civil law and of the new codification as a whole, it is appropriate to present it to German-speaking and international legal experts, primarily in comparison with the General Part of the German Civil Code, which served or will serve as the most important foreign source of knowledge in the creation of the CC and in its application-related optimization. In this respect, this treatise, consisting of two parts, appreciates the renewal achievements of the CC’s General Part and examines its regulations in a comparative legal manner, focusing on the legal subjects, civil rights, legal transactions (including representation) and civil liability in terms of legal doctrine, technology and concepts.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45343361","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article attempts to derive some principles concerning the legal treatment of bugs in smart contracts, namely errors in the smart contract code which may result to some unwanted or unexpected outcome at the execution of the contract. Before dealing with this main issue, the article concludes that despite the practical issues that arise concerning the application of traditional contract law rules and principles, these rules remain relevant, and that a smart contract is typically (but not necessarily) a mere tool for the performance of the contract and not a legal contract itself. Therefore, typically, bugs in smart contracts should be examined under the doctrines of the breach of contract and/or the unfair enrichment and not as reasons for any potential invalidity of the contract. Only in (rather unlikely cases) where a smart contract could be indeed perceived as the body of the legal contract itself, printing errors in the code or other expressional mistakes concerning the semantics of the code (albeit not its function) could be perceived as potential reasons for the invalidity of the contract, according to the relevant rules of each jurisdiction. Nevertheless, even in these cases, interpretation of the contract with objective standards should not be ruled out, even when the contract is concluded by means of artificial intelligence (AI). The article examines also contributory negligence issues.
{"title":"A Contract Law Approach for the Treatment of Smart Contracts’ ‘Bugs’","authors":"E. Rizos","doi":"10.54648/erpl2022037","DOIUrl":"https://doi.org/10.54648/erpl2022037","url":null,"abstract":"This article attempts to derive some principles concerning the legal treatment of bugs in smart contracts, namely errors in the smart contract code which may result to some unwanted or unexpected outcome at the execution of the contract. Before dealing with this main issue, the article concludes that despite the practical issues that arise concerning the application of traditional contract law rules and principles, these rules remain relevant, and that a smart contract is typically (but not necessarily) a mere tool for the performance of the contract and not a legal contract itself. Therefore, typically, bugs in smart contracts should be examined under the doctrines of the breach of contract and/or the unfair enrichment and not as reasons for any potential invalidity of the contract. Only in (rather unlikely cases) where a smart contract could be indeed perceived as the body of the legal contract itself, printing errors in the code or other expressional mistakes concerning the semantics of the code (albeit not its function) could be perceived as potential reasons for the invalidity of the contract, according to the relevant rules of each jurisdiction. Nevertheless, even in these cases, interpretation of the contract with objective standards should not be ruled out, even when the contract is concluded by means of artificial intelligence (AI). The article examines also contributory negligence issues.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46739750","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Lease contracts have been among the most affected by the economic effects of the pandemic in many countries around the world. Measures aimed at containing the virus and the economic crisis following Covid-19 impacted the solvency of individuals and businesses and restricted or prevented access to business premises for some time. This has resulted in delays and defaults in rent payment and claims for rent reduction. The Japanese and Italian legal systems have both addressed these issues by adopting different approaches. This article aims at comparing both systems, by testing the adequacy of the legal provisions in dealing with the consequences of the Covid-19 crisis. An important role in this regard has been played by the respective doctrines of changed circumstances. The article shows how the rules of the Italian legal system have not proved adequate, have brought about considerable litigation, which in turn has led to conflicting judgments. On the other hand, the Japanese legal system seems to have responded better, as litigation has been more limited and court decisions have been based on uniform principles and rules. The comparison of the two legal systems suggests that the best rules to govern supervening circumstances are those which favour a case-by case please insert caseby- case assessment and encourage spontaneous renegotiation of the contract. The article also raises the question of whether predictability should always be regarded as a value in our legal systems and whether the law is moving toward a more contextual approach.
{"title":"Dealing With the Unpredictable: The Impact of the Covid-19 Crisis on Lease Agreements in the Italian and Japanese Legal Systems","authors":"Alba F. Fondrieschi","doi":"10.54648/erpl2022040","DOIUrl":"https://doi.org/10.54648/erpl2022040","url":null,"abstract":"Lease contracts have been among the most affected by the economic effects of the pandemic in many countries around the world. Measures aimed at containing the virus and the economic crisis following Covid-19 impacted the solvency of individuals and businesses and restricted or prevented access to business premises for some time. This has resulted in delays and defaults in rent payment and claims for rent reduction. The Japanese and Italian legal systems have both addressed these issues by adopting different approaches. This article aims at comparing both systems, by testing the adequacy of the legal provisions in dealing with the consequences of the Covid-19 crisis. An important role in this regard has been played by the respective doctrines of changed circumstances. The article shows how the rules of the Italian legal system have not proved adequate, have brought about considerable litigation, which in turn has led to conflicting judgments. On the other hand, the Japanese legal system seems to have responded better, as litigation has been more limited and court decisions have been based on uniform principles and rules. The comparison of the two legal systems suggests that the best rules to govern supervening circumstances are those which favour a case-by case please insert caseby- case assessment and encourage spontaneous renegotiation of the contract. The article also raises the question of whether predictability should always be regarded as a value in our legal systems and whether the law is moving toward a more contextual approach.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42063243","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
On 21 April 2021, the European Commission presented a proposal for an Artificial Intelligence (AI) Act. The proposal’s aim is to address the risks associated with the placement and putting into service of an AI system on the EU market. In this contribution the Draft Regulation, its relationship to existing product safety law and its consequences for the private law liability of providers and users are assessed. More in particular, the proposed risk-based approach is explained, high-risk AI systems are discussed in more detail and what the implications of this public law instrument are for the private law contractual relationships and liability of the provider and user of an AI system.
{"title":"The AI Act and Its Impact on Product Safety, Contracts and Liability","authors":"Tycho de Graaf, G. Veldt","doi":"10.54648/erpl2022038","DOIUrl":"https://doi.org/10.54648/erpl2022038","url":null,"abstract":"On 21 April 2021, the European Commission presented a proposal for an Artificial Intelligence (AI) Act. The proposal’s aim is to address the risks associated with the placement and putting into service of an AI system on the EU market. In this contribution the Draft Regulation, its relationship to existing product safety law and its consequences for the private law liability of providers and users are assessed. More in particular, the proposed risk-based approach is explained, high-risk AI systems are discussed in more detail and what the implications of this public law instrument are for the private law contractual relationships and liability of the provider and user of an AI system.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49328332","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Editorial: On Old or New Rules for New Problems or Old Problems","authors":"M. Storme","doi":"10.54648/erpl2022032","DOIUrl":"https://doi.org/10.54648/erpl2022032","url":null,"abstract":"","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49131956","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Amid the various forms of the interplay between the general principles and directives, the contribution rather deals with its five shades by focusing the main role of the directives in the legal effects of the combination of general principles and directives on horizontal litigation before the national courts in order to shed light on certain characteristics of the already very complicated Mangold line of case law, particularly arising from occasionally perplexed understanding of interaction between the general principles of EU law and directives. In that regard, it precisely examines, within the context of horizontal direct effect of the principle of non-discrimination in EU law, the role of directives in that interplay as an instrument to render the general principles of EU law applicable, to establish the existence of the general principles of EU law, to justify/exemplify the existence of the general principles of EU law, to infer from which the substantive content of the general principles of EU law and to ascertain whether the (un)conditional nature of the general principles of EU law or principles in the sense of Article 52(5) of the Charter of the Fundamental Rights of the European Union.
{"title":"The Five Shades of the Interplay in Horizontal Litigation Between the General Principles of EU Law on Non-discrimination and Directives","authors":"","doi":"10.54648/erpl2022024","DOIUrl":"https://doi.org/10.54648/erpl2022024","url":null,"abstract":"Amid the various forms of the interplay between the general principles and directives, the contribution rather deals with its five shades by focusing the main role of the directives in the legal effects of the combination of general principles and directives on horizontal litigation before the national courts in order to shed light on certain characteristics of the already very complicated Mangold line of case law, particularly arising from occasionally perplexed understanding of interaction between the general principles of EU law and directives. In that regard, it precisely examines, within the context of horizontal direct effect of the principle of non-discrimination in EU law, the role of directives in that interplay as an instrument to render the general principles of EU law applicable, to establish the existence of the general principles of EU law, to justify/exemplify the existence of the general principles of EU law, to infer from which the substantive content of the general principles of EU law and to ascertain whether the (un)conditional nature of the general principles of EU law or principles in the sense of Article 52(5) of the Charter of the Fundamental Rights of the European Union.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43093319","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
It is still assumed in scholarship that ‘contra legem’ characterizes the Court of Justice of the European Union case law on conforming interpretation. This article argues, through a new reading of the relevant CJEU jurisprudence, that the case law on conforming interpretation has been taking a new direction away from ‘contra legem’. A critique of the new jurisprudence is then proposed through pointing to two unrenounceable virtues of the ‘contra legem’ requirement – towards making scholarship aware of the urgent need to take seriously, and critically face, the new jurisprudence.
{"title":"Conforming Interpretation","authors":"Leone Niglia","doi":"10.54648/erpl2022031","DOIUrl":"https://doi.org/10.54648/erpl2022031","url":null,"abstract":"It is still assumed in scholarship that ‘contra legem’ characterizes the Court of Justice of the European Union case law on conforming interpretation. This article argues, through a new reading of the relevant CJEU jurisprudence, that the case law on conforming interpretation has been taking a new direction away from ‘contra legem’. A critique of the new jurisprudence is then proposed through pointing to two unrenounceable virtues of the ‘contra legem’ requirement – towards making scholarship aware of the urgent need to take seriously, and critically face, the new jurisprudence.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41758387","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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