Juridica International: Vol. VI

cover

Mon, 19 Sep 2011 00:00:00 +0300

About Grounds for Exemption from Performance under the Draft Estonian Law of Obligations Act

Wed, 01 Apr 2009 00:00:00 +0300

The sacred principle of the classical law of obligations was the idea of pacta sunt servanda (sanctity of contracts), which means that contracts are binding on any conditions. According to the classical theory of contracts, each reasonable person has the freedom to enter into a contract upon terms determined by that person and to be certain that a contract concluded voluntarily will be subject to judicial enforcement and binding on the parties. It is primarily in the public interest to hold contractual agreements binding under any circumstances. Everyone’s freedom to decide whether to conclude a contract (Abschlussfreiheit) and to decide about the content of the contract (Inhaltsfreiheit), in addition to honesty in the process of entering into a contract, were to preclude unfairness in contractual relationships. Disputing of contracts was allowable if the contract had been concluded by fraud, mistake or duress. In the absence of those circumstances, the parties were bound to their contract. Unilateral denunciation of a contract was, therefore, in general, excluded. *1 More...

Problems of Consumer Protection in Russia

Wed, 01 Apr 2009 00:00:00 +0300

1. Consumer protection before the passing of the Russian Consumer Protection Act

The legal regulation of contractual and other obligations between enterprises, organisations and citizens in the former Soviet Union and pre-reform Russia was fulfilled by the norms of the main civil codified laws (the foundations of civil legislation of the USSR and republics of 1961 and later of 1991 and Civil Code of RSFSR of 1964).

Civil legislation of that period did not contain special rules connected exclusively with the questions of consumer protection. That is why a special system of rules connected with consumer protection in these laws traditionally defaulted. More...

The Structure and the Salient Features of the Principles of European Contract Law

Wed, 01 Apr 2009 00:00:00 +0300

This is the first time I address an audience in a Baltic country on the Principles of European Contract Law. I am very pleased and very honoured.

I shall first tell you why the Principles were made and who made them. Then I shall address what they contain, their scope style and technique, and finally some of their salient features.

1. Why they were made and who made them

The European Union of today is an economic community. Its purpose is the free flow of goods, persons, services and capital. The Union is based on these four flows. They go by way of contracts. To make the flows go easily it should be made simpler to conclude contracts and to calculate contract risks. More...

Applicable Law in the Light of Modern Law of Obligations and Bases for the Preparation of the Law of Obligations Act

Wed, 01 Apr 2009 00:00:00 +0300

1. Development of Estonian private law

The Estonian private law has always been a part of Baltic-German law. The first major written body of law, the Baltic Private Law Code (BPLC) dates back to 1863. It was an extensive and extremely voluminous private law code that regulated in great detail the civil relations of the time. Its volume and contents were very similar to the old Common Prussian Land Law. The BPLC was in force in Estonia as a result of the so-called Baltic Special Rights granted to the Baltic countries by Russia (Estonia was a part of Russia from the beginning of the 18^th century), which allowed to maintain the predominant Baltic-German law that was in force here before the Russian Empire. More...

Latvian Contract Law and the EU

Wed, 01 Apr 2009 00:00:00 +0300

Contract law has for centuries promoted international trade and complied with the necessities of international economic relations. As a result of tight integration of EU countries, breaking of obstacles for free movement of capital, goods, services and labour, new trends are appearing in contract law. Latvia, in accordance with the decision made by EU Council in Helsinki, in December 1999, has already commenced discussion on entry into the EU. Significant work has already been accomplished for the harmonisation of the law of Latvia with the law of the EU. However, the EU does not require complete unification of the law. The law of each country has differences and such differences shall remain. Law is a rather conservative social category and therefore when talking about common law, the peculiarity should be taken into consideration. Even one legal regulation, for example, on the moment of concluding a contract or on a right to terminate a contract can cause disputes and conflicts during the execution of the contract. More...

Regulation of Limitation Periods in Estonian Private Law: Historical Overview and Prospects

Wed, 01 Apr 2009 00:00:00 +0300

The rules concerning limitation periods is an area of private law that can be easily overlooked. Jurists consider the law on limitation periods boring, even a technical topic the theoretical potential of which is restricted to the discussion about how justified one or another limitation period is. The issues related to limitation have largely been disregarded also in the reform discussion opened in Estonian private law after the restoration of independence. The debate has been limited to a relatively small circle of people who participate in the working groups preparing the drafts. In a situation where the processing of the draft Law of Obligations Act and the new draft of the General Part of the Civil Code Act in the Riigikogu (Estonian parliament) is about to come to an end as the last stage of the Estonian private law reform, it is the right time to change such practice, taking into account, above all, the topicality of the issue all over Europe in the light of the German law of obligations reform and the anticipated completion of the parts of the Lando Commission’s Principles of European Contract Law and the UNIDROIT Principles of European Commercial Contracts focusing on the law on limitation periods. The author has derived additional inspiration from the article by Prof. Dr. Reinhard Zimmermann on the main features of the contemporary law on limitation periods published recently in Juristenzeitung. *1 More...

The Law of Property Act — Cornerstone of the Civil Law Reform

Wed, 01 Apr 2009 00:00:00 +0300

The Law of Property Act provides bases for the law of property. This act is considered to be the first step in the creation of the new Estonian civil law. The need to create firm bases for the state and its economy emerged upon regaining independence in 1991 and adoption of the Constitution in 1992. Land reform, started at the same time, brought pieces of land onto the market, however, the Civil Code of the Estonian SSR did not provide regulation for commerce of a piece of land. In order to regulate the commerce of immovables, in 1991, the Ministry of Justice engaged Peeter Kask, a lecturer from the University of Tartu, in drafting the Immovable Property Act. *1 However, the draft did not meet the increasing needs of society. The main deficiency of the draft was its weak regulative power and its being a framework act; another problem was that the draft treated both the norms in private and public law in one and the same act Å something characteristic of the Soviet legal order. A team under the guidance of Anre Zeno and Rein Tiivel which consisted of practitioners-students submitted an alternative draft. More...

Statutory Marital Property Law de lege lata and de lege ferenda

Wed, 01 Apr 2009 00:00:00 +0300

In the light of the turbulent changing and reorganisation of the Estonian private law during the last decade, family law has modestly remained in the background and has, apparently to the greatest extent when compared to the other branches of civil law, maintained its decades-old structures and forms.

The applicable Family Law Act *1 entered into force on 1 January 1995. Its regulation method and prevalent ideology largely rely on the ESSR Marriage and Family Code of 1969 *2 ― a fact not concealed by the authors of the Family Law Act of 1995. *3 More...

On Options of Law-interpretation in the Context of the General Part of the Civil Code Act

Wed, 01 Apr 2009 00:00:00 +0300

Comprehension of law and aspects thereof

In social terms, every law serves as one of the means aimed at the achievement of the functioning and reproduction of the society as a whole. This objective is accomplishable for the society if the activities of the people living in the society are co-ordinated at least within the framework provided by law. It is correct that, differently from several other means of social regulation, the functioning of law is based on its authoritative character. *1 However, it is also evident that laws are not created in order to provide parliaments with work or to be understood by only a narrow circle of members of the society. *2 Legislation, and law contained in the legislation, have always been the state’s most important tool for informing practically all members of society about the behaviour expected from them by the society organised as a state. Hence we reach the logical conclusion that behaviour in compliance with laws is immanently based on the assumption that laws are understood. More...