Keresés
Keresési eredmények
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Előreláthatósági klauzula a szerződések jogában
Megtekintések száma:58The essay is about the clause of foreseeability in connection with damages for breach of a contract. This seems to be a constant problem throughout the history of law how and when it is reasonably to limit the amount of damages in case of breach.
The general principle of full compensation originates in the main purpose of private law, restoring the violated financial situation. At the same time in business relations it often happens that damages occurred as consequences of breach highly exceed the contractual interest of the party and generate indirect damages independent from the violator’s influence. This is considered to be the starting point of the dilemma about restricting the damages availably for compensation.
Full compensation and its relation to breach of a contract occurred in the Hungarian jurisprudence many times. Miklós Világhy suggested the reconsideration of full compensation in contract law in 1971. Attila Harmathy also suggested the implementation of foreseeability clause in the rules of contract law as the ‘best possible way to treat business relations between the parties’.
Due to the historic and social differences various forms of foreseeability are known in the legal systems.
The study examines the development of foreseeability, its first codification in the French Napoleonic Code Civil, its application in the law of the USA and some significant sentences of English courts. The first application of foreseeability was in the infamous Hadley v. Baxendale case, in which an English court worked out the meaning of contemplation rules. In the case of Victoria Laundry Ld. v. Newman Industries Ld. (1949) the court defined the meaning of foreseeability. According to the sentence of the case damages are limited to those that were foreseeable for the party at the time of entering a contract. The study also analyzes the German model of restricting damages of breach. The German theory ensures the possibility of exoneration for the violator if the other party failed to give proper information about the unusual danger of breach in the particular case. If the entitled party acted intentionally, the German law accepts exoneration. The essay demonstrates the adequate causality conception of the German law. This theory states that an act can only be the probable cause if – due to the normal and reasonable procession – it is able to cause such consequence. In our opinion foreseeability gives a stricter and much better solution of restricting damages with a more objective measurement for the obliged party on how to calculate his behavior in a certain contractual relation. The amount of risk can be predicted if the rules of damages for breach are based on foreseeability rather than adequate causality.
The new Hungarian Civil Code plans to establish objective liability in contract law. The only exoneration can be the successful reference to unavoidable external cause. Beside this stricter liability the new Civil Code also introduce the possibility of limitation in damages, the application of foreseeability clause. This seems to be a significant preference for the obliged party. As in the Hungarian legal history foreseeability clause was never used, it is an essential question how judicature will interpret the rule in practice. In our opinion for an adequate application of the new clause it is necessary to take a closer look at the United Nations Convention on the International Sale of Goods (CISG), the Principles of European Contract Law (PECL) and the interpretation in the American and English case law. This study tries to give some help for it.
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A versenytilalmi megállapodás
20-28Megtekintések száma:228The “agreement on non-competition” is essentially the extension of the protection of the basic economic interest of the employer. While during the employment relationship several labor law provisions protect the interest of both parties, the “agreement on non-competition” is designed to protect the employer’s interests after the termination of the relationship. This means – in return for financial compensation – the former employee needs to refrain from any kind of business competition against his/her former employer. This necessarily involves financial compensation and may have several restrictions, such business or geographical area or time.
The previous Labor Code did not specify for detailed regulation of the issue and the law remained rather vague. It merely referred to the fact that parties – based on their own free will – may enter into such agreement. However the new Labor Code contains explicit regulations under title XVIII of the Act as “Particular Agreements Related to Employment”.
The “agreement on non-competition” belongs to the field of employment law. Unlike the previous Labor Code that categorized this possible agreement as of purely civil law in nature, the new Labor Code declares it to belong under the scope of the Labor Code. The previous regulation even ordered the provisions of the Civil Code to be applied to such agreements however the new legislation brought a conceptual change.
The currently effective regulation provides for a 2-year limitation on such conduct on the employee’s part that would create competition with the employer. The exact amount of the consideration payable for this obligation remains to be decided by the parties however the Labor Code suggests that it shall be based on how difficult the applied restrictions make it for the employee to find another job with his qualifications and experience. As a basic limit the law provides that the amount shall not be less than one-third of the base wage payable for the same period of time.
The “agreement on non-competition” is not to be confused with similar legal institutions. The paper points out two close similarities in the legal system. One being the employee’s obligation of confidentiality; this prevails after termination of the employment relationship as well without any time or similar restrictions and even without any financial compensation. The other one is the so called “non-compete” agreement from the field of competition law. This is applicable after takeovers where the seller shall refrain from engaging into business in the same area as the buyer.
In the field of labor law the time period for the “agreement on non-competition” is up to the agreement of the parties however the new law invokes an upper limit of two years that is following the termination of the employment relationship. This is a decrease from the previous regulation that provided for a period of three years. The agreement can be modified by the consent of both parties just like the employment contract or civil law agreements.
In case of violation of the agreement three cases are to be analyzed. The first is the case of the employee breaching the provisions of the contract. In this case the employee is liable for damages towards his/her former employer. The provisions of the new Civil Code and those of the Labor Code are to be applied to the damages. In the second case the employer may request an injunction to prohibit the employee from any conduct breaching the agreement while the third case involves the breach of the agreement on the employee’s part for which the rules of the Civil Code and the Labor Code are to be applied as well.
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A szerződési jog alapelveinek értelmezése és funkciói a német polgári jogban
Megtekintések száma:48To describe the functions of principles we can say that all of them are fundamental basis of an area of law. They declare or solve concrete debates between the parties. If there is a problem with interpreting of a rule in the civil code, judges has this helping hand. In Germany the development of principles in the field of contract law has a really unique historical root. At the time of BGB’s birth, the German Civil Code did not accept any exculpation under the rule pacta sunt servanda. Moral philosophers acknowledged that a contract as private interest of the parties needs special protection from the state. It is not only a personal relationship, because self welfare leads to welfare of the public. The law has to regulate this field and give instruments of protection for both parties to ensure peace and equality in the field of public relations and moral.
After the First World War, Rechtsmark (German currency) had its deepest point in its history. The inflation was so high that the performance of a contract made before the war was absolutely unfair for the supplier. For the cost of one galloon gas anyone could buy the entire stock after the war. There was a too late and too small reaction from the state for this situation. An Act had been accepted in 1925 about revalorization. The main fault of this Act was the strict and very small applicability in the field of contracts. The regulations of it were applicable only for contracts with large economic potential.
German jurisdiction had to solve the problem. The most difficult part of this process was how to dissolve the strict paradigm of pacta sunt servanda. Oertmann, a German legal expert created the collapse of the foundation of the transaction. It meant that changed circumstances deprive the contract from its ground, the need of the party. Anybody who signs a contract has a need and tries to create all conditions of that specific contract to harmonize with his or her needs and interest. In case of an essential change of circumstances this interest modifies and the original transaction became tremendously onerous for him or her. The doctrine of Oertmann was insisted on pacta sunt servanda, so after the change of circumstances the whole contract failed.
Jurisdiction in Germany accepted Oertmann’s doctrine with a completion. Judges vindicated the right for themselves to modify the contract to be suitable for the new interests of the parties. This modification meant the implementation of clausula rebus sic stantibus into German contract law. It became applicable worldwide in the field of long term relationship of the parties.
In this essay I examine not only the development of these contractual principles in Germany but the effectiveness and functions of them. I describe and define the legal interest of regulating contracts and what is the connection between private and public interest in the field of the law of contracts. As a defect of the contractual procedure non-performance and other breach of a contract have special importance in civil law. Good faith is a basic principle of civil law in Hungary too and in most European civil codes. The interpretation of German good faith theory (Treu und Glauben) is significant from the viewpoint of the judicial modification of contracts. In case of clausula rebus sic stantibus if the party wants to ground his or her claim, he or she has to prove the good faith as a moral standard to be an exculpation under the heavy burden of pacta sunt servanda. The conclusion is that in Germany the basic element of private contracts is not the consent of parties but good faith of them. The socially excepted moral appears through the requirement of good faith of the parties. The law has to ensure that in any period of a contractual relationship this good faith exists.
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Texas Shoot-out, avagy biztosítéki konstrukciók a szindikátusi kötelemben
118-129Megtekintések száma:68The shareholders agreement is considered a typical contract. This agreement is concluded by and between the members of the company in order to establish the rules of the cooperation among them, their behaviour towards and expectations from each other in connection with the company.
The agreement is often used in the practice, since its flexible construction enables to rule various types of transaction. For example, in Hungary there is a growing tendency i.e.the major investments and joint venture agreements are being established in the frame of a shareholders’ agreement.
On the other hand, drafting such a contract is a complex procedure. This type of agreement is not governed by specific law, therefore the general rules of the contract law may be linefore. Furthermore the shareholders’ agreement is located at the borderline between the civil and company law, and in a given case it might be complicated to enforce the provisions of the agreement. For example, if the member breaches the voting provision outlined in the shareholders’ agreement, then the resolution passed upon the contract breach cannot be challenged.
Due to lack of a specific law, the practice created the adequate legal securities to ensure the enforcement of the cooperation structure outlined in the shareholders’ agreement.
As the first analysed security, the purpose of the buy-out clauses (Russian Roulette, Texas Shoot-out, Dutch Auction, Put-Option, Call-Option) is to ensure the company’s permanent operation, if there is an insoluble dispute among the members, which obstructs the decision making, and consequently the operation of the company, as well. The concept of the buy-out clause is to settle the dispute in the way of taking over the participation of the involved member by another member.
The exit clauses (Drag Along, Carry Along) aimed to encumber or to unburden the step out from the company. The entitled person is able to sell the shares of the remaining members to the buyer, or to oblige the seller to sell his own and the entitled person’s participations jointly to the buyer.
The takeover clauses’ (Control Flip Over, Swiss Clause) duty is to enable the enforcement of the corporate legal obligations outlined in the agreement. If a member fails to fulfil his obligations, the entitled person may acquire his participation, which will enable him to pass the necessary resolution in the members meeting (general meeting). After the voting, the “seller” is entitled to buy back his participation at the same price.
If the members want to exclude acquiring participation by third persons in the company without their approval, there are adequate securities to be specified in the shareholders’ agreement (for example the right of first refusal, option right).
By the specific type of shareholders’ agreement the creditor makes investments in the company and becomes member in order to secure the transaction. If the company or the original owners of the company breach the contract, they will be held individually liable till the limit of the investmented amount.
The shareholders’ agreement is an efficient option to rule major transactions, and with the help of the securities described in this study, the investor could feel his money in safe. On the other hand, there are still a lot of questions to be answered. For example the compliance of these securities with the strict provisions of the law. It is the duty of the practice to reveal the answers.
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A társasági jogviszonyok szabályozása a német polgári jogi társaságban
Megtekintések száma:50Partnership under the civil code is a harsh institution in Hungarian legal system. Despite of this fact, most of the European countries apply this legal entity a lot as a background for other, more complicated corporate forms. In my essay I demonstrate those rules in German Civil Code (BGB), which show the importance and opportunities of these partnerships.
If we would like to describe the essentials of partnerships under the Civil Code, the most important question is the legal relations from both inner and external point of view. Internal relations mean an obligation between the parties, who form this partnership. It is natural that we can find both rights and commitments between founders. This is a contract but BGB says that all parties have equal rights and commitments in the same partnership. As a general rule of the Code, it is permissive, not cogent. BGB has basic regulation for operating such a partnership, but can be useful if founders live with this permissive opportunity and shape special rules for their partnership, which fit to their aims, functions, different financial potential of the parties.
There is a chance for founders to neglect building a whole structure and organization for their partnership, if they want to operate it as an inner partnership, without external relations, focusing only for the rights and omissions between the parties.
From all contract that establishes a partnership under the Civil Code membership rights follow. These rights cannot be transferred. A distinction can be made between administrational, common business management and financial rights. Rights to common business management can consist of right to information, right to supervision or the most important right to vote. Financial rights gather typical rights such as right to dividend or liquidity proportion. These rights are social omissions from the viewpoint of the partnership itself, as these are for the interest of the parties.
The most important omissions of the founders are financial contribution to establish the partnership. This regulation results from that partnership is to promote common aim of the founders, and to achieve this, all of them have to make available pecuniary or non-pecuniary assets. According to a special rule of BGB, over against the other corporate forms, members of the partnership have no omission to increase or complete their assets.
Management of the partnership is not only a right but an obligation too. A special omission is that all members and founders have to be loyal to the partnership. Because of the strong partnership character of this corporate form, this means that members have to keep the interest and aim of the partnership in view. They all are responsible for achieving the aim of the partnership and nobody can sit as a beneficiary. Loyal members have to keep secrets in connection with operating the partnership and of course the sudden obligation to inform the others of all events and experiences, which are in tight connection with the partnership and the interests of the parties. If any of the members breach these obligations, rules of damages can be applied in BGB.
Assets of the partnership are special, because no separated corporate assets form. Financial and non-pecuniary contribution becomes the assets of the community of members. It is undividable and common. But these common assets are strictly separated from the private assets of the parties. Rights for profit and deficit are equal, but this permissive rule allows different regulation in the contract. The only cogent sentence is the prohibition of societas leoniana, i.e. nobody can be precluded of profit and deficit.
External relations mean the representation of the partnership. In this case the most important law is the contract itself. In case of disagreement between the parties, there is a helping rule of BGB: members can act as a body. If we take into consideration the rules of liability, we can say that because of the lack of legal capacity of the partnership, individual liability has its important role. Generally this liability is unlimited, but there is a chance to agree with the creditor to limit liability. But this limitation is only valid for that legal transaction.
Rules for partnerships under the Civil Code in Germany are more detailed and nuanced than in Hungary. Partnership is the basic type of civil law partnerships, such as limited partnership or general partnership. We have to consider that building up a more coherent regulation for these partnerships can be useful to categorize atypical corporations.
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Értelmezési anomáliák a Bécsi Vételi Egyezmény kártérítési gyakorlatában
14-26.Megtekintések száma:232A dolgozat az ENSZ, az áruk nemzetközi adásvételi szerződéseiről szóló egyezményének a kártérítési joggyakorlatával kapcsolatos értelmezési anomáliákról szól.
Az Egyezmény rendelkezései univerzális jellegűek, így egységes értelmezést és alkalmazást követelnek meg a részes államok bíróságaitól, ezért a szabályok értelmezésével és a joghézagok kitöltésével foglalkozó 7. Cikk elengedhetetlen az Egyezmény sikeres alkalmazásához. Dolgozatomban a vonatkozó ítélkezési gyakorlat elemzésével, elsősorban arra kerestem választ, hogy a különböző országok ítészei érvényesítik-e az Egyezmény univerzialitását, a kártérítés értékelése tekintetében. A kérdés megválaszolása érdekében az Egyezmény kártérítési joggyakorlatát a 7. Cikk által támasztott értelmezési alapelvek relációjában értékeltem. Ennek keretén belül a 74. Cikk joggyakorlatának szisztematikus felülvizsgálatát végeztem el, összesen 144 jogesetet elemezve, a 2006-tól 2016-ig terjedő időszak tekintetében.
A felülvizsgálat eredménye azt mutatja, hogy kilenc olyan döntés született amikor a bíróság nemzeti kárfelelősségi doktrínát, jogintézményt, jogszabályt, vagy joggyakorlatot alkalmazott a 74. Cikk értelmezése során. Ez a megközelítés nyilvánvalóan nem segíti elő az egységesség megvalósítását. A nemzetközileg egységes szabályozás ugyanis csak akkor valósul meg, ha azt egységesen alkalmazzák. A 7. Cikk által támasztott értemezési követelményekből az következik, hogy az Egyezmény rendelkezéseit autonóm módon, a lehetséges nemzeti felfogástól megkülönböztetve szükséges értelmezni. A dolgozat keretében feltárt jogi problémák azokat a kérdéseket próbálják kiemelni, amelyek nagyobb figyelmet igényelnek a bíróságok részéről, erősítve ezzel az Egyezmény univerzális jellegét.