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• Atypical Contracts in Hungary and Serbia

  1-16

  Tekla Papp

  Attila Dudás

  Views:

  107

  The paper analyzes the notion and types of atypical contracts, primarily in the Hungarian and
  Serbian law, but also in wider, European perspective. The analysis sheds light on the different
  terms used in different legal systems to denominate contracts that do not fit explicitly into the
  range of nominate contracts, that is into the range of contract-types envisaged by the civil
  code or code of obligations, respectively. According to the Hungarian legal literature, all civil
  law contracts are divided into two main groups: nominate and innominate contracts. The
  former group is further divided into the categories of typical and atypical contracts, while the
  latter into the categories of mixed contracts and de facto innominate contracts.
  The authors conclude that there is a tendency in Europe, both in the jurisprudence, the
  legislation and the application of law, to create a unified and coherent law of contracts, which
  affects the range of atypical contracts as well. Most notably, the Draft Common Frame of
  Reference, the normative proposal of the Study Group on a European Civil Code and the
  Research Group on EC Private Law (Acquis Group), contains model rules on franchise, timesharing,
  commercial agency and treatment contracts, just as rules on electronic commerce, on
  the one hand. The legislation of the European Union, on the other, aims at the highest possible
  level of harmonisation of laws which, from the aspect of protection of consumers and
  competition law, affects the range and statutory content of atypical contracts. Finally, the
  paper refers to a series of decisions of the Court of Justice of the European Union that tackle
  certain features of the atypical contracts, whereby the Court in the determination of issues of
  contract law applies a rather functional approach.

• Thoughts about the new directions of European contract law

  Ágnes Enikő Béky

  Views:

  58

  On the field of contract law the European Union started a wide legislative effect at the end of the 20th Century. Despite of the originally economic and public legal goals of the Communities recently the competence of the EC institutions conquest a major field in the area of private law. To ensure the fast and non-problematic acceptance of these directives concerning to contract law EC chose two important solutions. Most of the directives focus on the neglected area of the so-called atypical contracts (hawk contracts, e-commerce contracts, leasing contracts, factoring contracts, etc.). As these contractual forms were born in the hands of business actors, most of the European civil codes do not deal with them in an explicit way. As a gap of law this area is the best approach to create unified legal institutions in all Member States’ legislation. The other relevant factor is the law of consumer protection. This is not only a fashionable topic in Europe but a rather underdeveloped issue in – especially – the new Member States. Almost all legal institutions in the EC directives in connection with contract law contain a strong link to protecting customers. As and indirect effect, these new institutions (such as consumer’s right to withdrawal) found their ways in the national codes to be flagships applicable for all consumer contracts. This essay contains thoughts about these relevant changes in approaching contract law from the rather unique EC perspective.

• Functions and interpretation of principles in the German contract law

  Andrea Csécsy

  Views:

  52

  To 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.

• Doubtful questions in connection with the effectiveness of insurance contracts

  László Pribula

  Views:

  57

  The dispensation of justice most often makes decisions in legal disputes about contract law on the basis of the general rules of contract law. The freedom of making contracts and the dynamism of contract law have resulted in an agreement that the conditions of the contract and the general rules should generally be considered to an increasing extent rather than the special regulations referring to the given contract. However, there are some contracts which theme, subjects and content require the application of special rules that result in solutions hard to interpret for parties inexperienced in law and that are radically different from those recommended by the general rules of contract law. Insurance contracts are those type of contracts, where the rules determine when the contract comes into existence and effect and when the services are due. These regulations are based on a logic that is radically different from the general rules, so they can often lead to serious misunderstandings. It is discernable in the judiciary practice that the dispensation of justice respects the specific features of insurance contracts, but tries to interpret the rules in a way that draws near to the general rules of contract law. The decisions of the Hungarian Supreme Court give priority to the interests of the insured parties and allow in fewer cases when the insurance company is exempted of its obligation of payment. However, judiciary practice has little effect on the content of insurance law. It seems justified to make insurance companies work out as detailed and clear conditions as possible and make them disclose the orders basically concerning their obligation of running risks.

• Lack of Balance In Contract Law: the State as Contractual Party

  Ágnes Enikő Béky

  Views:

  291

  Contractual relations mean balanced cooperation between the parties. Right and obligations on both sides are equal. This seems to be a classic essential of contracts. As of many among the terms and condition in contract law, special situations clam for a different perspective. This essay is about a unique problem in contract law that origins from the ancient dilemma about the role of the state in private law relations.

  State as a sovereign has original power and hierarchic connection to citizens. In the field of constitutional law, public administration law, criminal law it is necessary to transfer certain right to the state and allow it determining one-sided obligations that cannot be changed in a particular relation. The theory of state immunity failed in the 20th century in private law. Since jurisprudence makes a difference between the role of the state as a merchant and a sovereign, we cannot maintain the old immunity rights of the state anymore.

  In the essay we examine three specific questions in connection with state participation in contracts. The first part of our study analyzes the strange legal arguments in a famous Hungarian case, called the Subway case. In this case the reasoning of the Supreme Court denied the balanced elements in a private contract and accepted a redefined theory of state immunity in private relations. Although there is a strong political content in the story and right after the criticized decision the Hungarian Civil Code was modified to clear the facts, we want to prove that even today state participation can cause interferences in the coherent theory of contracts.

  A specific contract type is examined in the second chapter of the essay, the concession agreement. This contract is far from the balanced theory of party positions due to its unique nature and content. We emphasize many different aspects in mixing private and public law nature of provisions and rules. Concession agreement is an excellent example to demonstrate extra-rights on the side of the state.

  Finally we spare some words on authority contracts in which state authorities can manage debates in public administration procedures with using the private law nature of contracts.

• The Modification of Public Procurement Contracts

  57-62

  Izabel Ágnes Tarkó

  Views:

  60

  In the recent study we examine the Public Procurement Law as a clear framework for possibilities to amend procurement contracts after completion of the tender procedure in Hungary.

  Under the amendments, further modification of procurement contracts is permitted if the modifications are non-substantial; or substantial, but in exceptional circumstances could apply regardless of whether the modifications are substantial or not.

  Substantial modifications are modifications that would have made a difference to bidding or participation or selection of tenderers, or where the economic balance – risks and their compensatory measures – are changed in the favour of the supplier, or including work not provided for by the initial contract, replacing the supplier.

  Substantial modifications are permitted only if the tender documentation has clearly provided for the possibility and if the conditions on which the modifications plus the extent and nature of possible modifications are acceptable, or if the modifications are made within a specific negotiating procedure, or if the supplier is replaced due to restructuring or transfer of enterprises by law.

  So far the contracting authorities are very limited in the scope of modifications. This meant the Act CXLIII of 2015 on Public Procurement provides quite strict conditions to bind economically more successful contracts. Additionally we examine the new EU Directive on public procurement and Case Pressetext (C-454/06) of the European Court provides the guidelines which even substantial modifications of contracts are permitted without carrying out a new tender procedure.

• Thoughts about software as a patent

  Mihály Petkó

  Views:

  56

  I’m presenting in my study the Hungarian software’s legal system. The Hungarian law system is protecting the software in the copyright law, like a literary property. This resolution given more latitude for the author, but it has many problems of the evidence, because not registred the property – like the patent – cause the author’s being can prove difficultly.

  In the patent law has not problem with the evidence thanks for the state register, but the legal process longer and costly more money. Primarily the Hungarian patent law is protecting the industrial, technical property. The software not an exclusively industrial, technical produce, there is closer the literary property about the author’s intellectual work.

  The protection of the Hungarian copyright is cheaper and faster than the protection in the area of patent law, and it covers more contract liberty for the partners. The Hungarian civil law is based upon the monist conception in the field of intellectual property. This means that pecuniary and personality rights are indivisible. In spite of this competition on the market prefers contracts that ensure exclusive, unambiguous rights. This area of law claims contracts suit to these conditions.

  The personal rights in the Hungarian copyright are remaining for the author, also the pecuniary rights. But - thanks for the successful software’s lobby - in this question the regulation diverged: the pecuniary rights may be transferring for the users, costumers. This regulation is better (cheaper, an easier) for the buyers under the Hungarian regulations of patent law.

  In Hungary a lot of software contract was established under the British legal system. The Hungarian legal culture accepted and using these contract forms. The Hungarian regulation concerning to the software questions is dualist like the British one. The pecuniary rights can be transferred free, just the personality rights belong to the author.

  The users can buy the rights need for using and it gives enough defense as a shield. The author’s interests are not sweating because of the personality rights stay under his domain.

  In my opinion the question is whether the Hungarian legal defense equally serves the author’s and the users’ interests. The process in patent law is longer, needs more money for supporting the protection and there are some conceptual problems between the software and the patent ideas. The new regulation is not reasonable.

• Contract law effects of the Digital Single Market Strategy on the Hungarian civil law

  108-120

  Máté Árva

  Views:

  148

  The necessity of framing contract law fulfilling the expectations of the digital era is among the main purposes of the Digital Single Market Strategy, that has been introduced by the European Committe in 2015. Within the Strategy two directive proposals have been presented: the directive of the European Parliament and of the Council on certain aspects concerning contracts for the supply of digital content and the directive of the European Parliament and of the Council on certain aspects concerning contracts for the online and other distance sales of goods. These include the concept of conformity with the contract, the meaning of which raises several questions to be answered regarding the Hungarian legal system.

  My treatise focuses on the investigation of the criteria of conformity with the contract with special regard to the definiton of the directive proposals. In the first place I outline the elements of conformity with the contract, then I attempt to create a comprehensive definition of it. Thereafter I analyse the rules of the Hungarian Civil Code that are connected to the category of the conformity. Furthermore, I investigate the necessity of the integration of the conformity with the contract into the the Hungarian civil law. Finally, I present a future legislative concept that could be regarded as a possible way of adaptation of this legal category.

• Thoughts on the successions of the business shares

  János Dúl

  Views:

  94

  The article focuses on the successions of the business shares which are in the Hungarian limited liability companies. There are several changes because of the new Civil Code that affected this area although we have to examine the former regulation because of the period of validity, too.

  The succession law is the area of the law with whom every people has connection at least once in their life. The number of the legacies grows in which business shares can be founded because more and more people are participating in business societies.

  The new method of the regulation differs from the previous. The new Hungarian Civil Code (Act V of 2013) consists of not only the “classical” civil law (for example property law, law of contracts) but the family law even the business law. Before this there were two separate laws and because of this situation we have to examine the relation of these laws and their methods of regulations.

  Afterwards we study the state of the successors in the Hungarian limited liability companies. It diverges from the other companies because the limited liability companies are transitions between general and limited partnerships and joint-stock companies. There were more ideas how to regulate this company; at the end it has differences but not so significant.

• Re-Reading Hugo Grotius Reflections to Thoughts of „Father of International Law” in International Law of 21th Century

  Sándor Szemesi

  Views:

  94

  There are several theories when the birth date of international law was. Hugo Grotius (1583-1645) was the first who systematized these specific rules and raised it to a scientific level. In this essay I examine how Grotius thought about important institutions of international law and what kind of impact these considerations have to our modern age.

  War cannot be seen only as an unlawful act, because most of the original human instincts can be recognized in fighting to each other. This point of view proclaims that international law does not denounce war generally. Existence of international law is important to determine the rules of warfare. To suit to the criterions of lawful war, a war should perform two requirements: opposite parties have to be main authorities in their state and both of them have to keep special formal rules during their fight. Main supremacy means that this power is absolute in its territory, so there are no other relevant human factors to limit it. In our age we have to mention that this criterion is no longer applicable without reservation, because the attack against USA on 11th September 2001 demonstrated that not only states can fight to each other.

  Grotius gives importance to the reasons of war too. Three reasons exist: defence, regain possession and punishment. Defence means self-defence, which is a right for everybody to protect himself against unlawful injuries, but this solution has to be the last one. Self-defence can be applicable only if it is necessary, sudden and proportional. After the attack against USA a question was born: is it possible to protect before the real attack, when the enemy is in the period of planning an injury. This preventive self-defence is supported by USA, but UN appreciates the right to self-defence only if there is an armed attack against the state. According to Grotius reasons of war can be pretexts or real reasons. Fear of uncertainty can be a pretext for example, because it is not the most proportional instrument to avoid conflict.

  Grotius examines not only ius ad bellum but ius in bellum, rights during a war. These regulations are formal obligations, which give frame to the lawful war and show direction to the opposite parties. Grotius says that there are regulations strictly from the law of nature. A great example is that every instrument can be applicable if it is necessary to reach the major aim of war. It is obvious that today this sentence is intolerable, because technical revolution created such weapons that have power to destroy a whole country suddenly. That is why certain prohibited weapons and methods of warfare exist in international treaties. Grotius deals with the problem of traitors, who support the enemy. There is a slight distinction between the nature of dispatched goods. If these goods can be used for fighting, i.e. weapons, traders are enemies too. If these goods are luxury ones, no traitors can be found. The third situation is more problematic, because if these goods can be used in and outside a war too, the exact situation has to examine to judge the intention of the party.

  Groitus has interesting thoughts about prisoners. All prisoners and their descendants become slaves. It means the enemy can do anything against prisoners. By now we have certain rules how to treat with prisoners and it is a general regulation that torture and murder against prisoners is strictly prohibited.

  An interesting question is in connection with the law of contracts. Hostages and pledge can be typical securities to strengthen a contract. Grotius says that killing a hostage can be lawful, but inner morals order that killing is lawful only if hostage is culpable too.

  Grotius deals with the question of ministers, arranging debates. Looking through this huge work of Grotius we can say statement that he is the father of international law is not without basic and well structured reasons. Before the birth of his book, there were only rules and commentaries for national laws. Grotius extended them to a larger perspective, up to an international level.

• The evaulation of practical significance of the CISG and UPICC

  21-40

  Sándor Boros

  Views:

  239

  The main aim of the present study is to determine the real practical relevant and volume through the evaulation the United Nations Convention on Contracts for the International Sale of Goods (CISG) and the UNIDROIT Principles of International Commercial Contracts (UPICC). In order to achive the mentioned aims, the study applies the results of the available empirical studies regarding to the CISG, whilst regarding to the UPICC, the study applies the available case law abstracts. In case of the Vienna Convention, it can be obviously stated that, the volume of practical application of the CISG is rather moderate, lags behind the success that the legal literature attributes to it, whilst under the results of revision the available case law in connection with the UPICC, can be declared that, the UNIDROIT Principles mainly promotes the interpretation and completion of the national law and also the international legal instruments, the contracting partie’s intend to apply firstly the UPICC as substantial law, is rather low. Furthermore the study also pay attention the CISG and the UPICC influence to the national law legislation, and declares that, both legal instruments have a huge impact to the national law making. 

• Interpretation anomalies in the Vienna Sale Convention damages practice

  14-26.

  Sándor Boros

  Views:

  256

  The essay is about the interpretion anomalies in connection with damages law practice of The United Nations Convention on Contracts for the International Sale of Goods (CISG). This seems to be an essential problem regarding to that the Convention’s breach of contract-system is highly relevant, whereas it must provide a mechanism, which serves international trade between countries with huge legal, economic and social disparaties. At the heart of the system we find damages, which provides an efficient and rapid solution to cure the dysfunctions which can occur with respect to cross-border commercial relationships.

  The provisions of the Convention are of a universal nature, thus they require uniform interpretation and application by the courts of the Contracting States, therefore Article 7, which deals with interpretation of rules and the filling of legal gaps, is indispensable for the successful application of the Convention and the achievement of its objectives. In this essay by analyzing the relevant case law, I was primarily seeking the answer to whether the judges of different countries validate the universiality of the Convention with respect to damages law. In order to answear the question I have analyzed the Convention’s damages practice in relation to interpretation principles set out in Article 7. Within this I have systematically reviewed the practice of Article 74 of the Convention, analyzing a total of 144 cases from 2006 to 2016.

  The revision shows that nine decisions were made during the period under review, where the court has applied national doctrine of liability, law, or practice in connection with the interpretation of Article 74. This method obviously does not promote the realization of uniformity. An internationally uniform sales law will only be realized if it is uniformly applied. For the purpose of the interpretation of the Convention, it follows that requirement the Convention’s provisions must be understood and applied autonomously, separated from their possible national roots. The legal problems discovered in this essay tries to highlight on those issues, which require more attention from the courts, thus confirming the universal character of the Convention.

• Civil law dogmatic deficiencies and legislative hiatuses in a private law legislation: Short case study

  49-66

  Tibor Kiss

  Views:

  113

  Based on the Government Decree 383/2023 (VIII.14.) on the ministerial approval of lease contracts of companies directly or indirectly majority-owned by the state, the article presents a case study showing that the legislation suffers from numerous "legal errors" that violate the provisions of the Legislation Act and is not in line with the fundamental doctrinal principles of civil law. The case study describes in detail the provisions of Act CXXX of 2010 on Legislation that the Government Decree does not comply with and shows how imprecise wording leads to problems of interpretation. The paper points out the private law terminus technicus which the legislator did not apply correctly (the party of the lease contract, consideration, invalidity - ineffectiveness) and the author proposes to correct the errors and to clarify certain normative provisions.

• Lex-Mercatoria Principles: A keystone in International Commercial Arbitration

  5-27

  Rachid Al Bitar

  Views:

  89

  The international Commercial Arbitration is a dispute resolution mechanism; thus, it allows the parties to a dispute to settle their affair outside the national courts. On the other hand, lex mercatoria can be defined as a body of rules that encompasses usages and customs that were used by the merchants in the medieval ages, thus the English nomination “merchant law’. After globalization, more specifically in the twentieth century, both above-mentioned concepts have been developed and adopted by most of the legal systems around the world. This paper aims to define lex mercatoria by exploring its’ history, its’ development, and by tackling all its’ elements to study the impact of lex mercatoria’s principles on international commercial arbitration proceedings.

• Certain private law aspects of the law on the transfer of agricultural holdings

  65-97

  János Dúl

  Views:

  88

  In this study I will examine the law on the transfer of agricultural holdings, focusing on the provisions that can be related to private law. The aim of the law was to facilitate generational change in the field of agriculture, and I believe that farm transfer contracts can be an effective tool for the transfer of agricultural holdings, but it is not yet known to what extent they will be used and to what extent they will be able to fulfil the hopes placed in them.