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Some Issues in Treating the Changes of Circumstances under English Law
25-44Views:195All legal systems have their own solution for the treatment of the essential change of circumstance subsequent to the conclusion of the contract. Some of them allow for the judicial amendment of the contract, if the conditions of the clausula rebus sic stantibus are fulfilled. There are other states, where the possibility to modify the contract by judicial act in case of an essential change of circumstances subsequent to the contract conclusion has only recently been recognised by the national legislation. In the following, it is to be reviewed how and by what means and models English law treats those changes of circumstances which occur after the conclusion of the contract and significantly reshape the contractual relationships.
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The Continuation of the Employment Contract or the Development of a New Contract?
12-28Views:188Labor law has not been able to dispose of the shackles of the locatio conductio for a long time; the system of traditional labor law was built on this contract. However, new forms of employment are beginning to break down this structure. Outsourcing and employment by digital platforms have broken the dominance of the employment contract and the contractual structure is shifting towards private law. The study seeks to answer the question of what all this means in terms of protecting the worker and the responsibility of the employer. Finally, does the theory of the personal employment contract offer a solution?
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Some Labour Law Aspects of Psychological Contract Theory
50-69Views:201The aim of this paper is to present the central-topics of psychological contract theory, focusing on the relevant labour law contexts. The main research method used is an examination of relevant studies, articles and monographs on the topic, a secondary analysis of empirical research data systematically compiled by the authors, and an exploration of the main labour law aspects and contexts. The difference between an employment contract and a psychological contract is that while the former is a written, legally binding contract, the latter is a theoretical, abstract construct that contains the mutual and implicit expectations of the parties. A psychological contract therefore falls into the category of "extra-legal" contracts, but in certain cases, especially in the event of breach of contract, it may have legal relevance.
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The Transfer of Contract on the Basis of Statutory Provisions: Novation or Succession?
7-27Views:191In 2016, the Act CLXXVII of 2013 on the Transitional and Authorizing Provisions related to the Entry into Force of Act No. V of 2013 on the Civil Code (’Ptké.’) was amended, with questions of interpretation arising regarding the transfer of contract on the basis of statutory provisions. Therefore, after a short period of rest, the transfer of contract, the novation, and their relationship again became the focus of the attention of both legal scholars and practitioners. After a short introduction of the legal provisions on the transfer of contract, the amendment of 2016 and its reasons are reviewed. Then, both the controversies that emerged in the judicial practice and the answers given by the Hungarian Constitutional Court and the Curia are examined thoroughly.
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Reflections on the validity of exculpatory clauses in light of Section 6:152 of the Hungarian Civil Code
9-24Views:174Section 6:152 of the Hungarian Civil Code (HCC) is an objective cap on the freedom of contract, it is an unconditional (absolute) and minimum protection to which all exculpatory clauses are subject. In this essay, this rule is examined in a wide and complex context. These exculpatory clauses are closely connected to the consent of an injured person or their assumption of risk, or their waiver (especially waiving claims for damages) as unilateral juridical acts. The relationship between this statute and other grounds of invalidity shall also be examined, especially the connection to the invalidity rule of unfair standard contract terms.
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Is This the Way Labour Law Should Protect the Employee? Review of György Kiss’s New Book
203-212Views:160Our review is about György Kiss's book, its title being Employment Flexibility and the Protection of Employee Status (A Possible Approach to Examining the Content of the Employment Relationship). The work raises the question of the future of labour law regulation, using the results and findings of the past. After describing the roots of Roman law, we can learn about the development of the current form of labour law through the development of the Germanic, Francophone and Anglo-Saxon legal systems. In addition to the historical view, the dogmatic foundations are also outlined in the work, so the content processing of the employment contract takes place on several levels before the author discusses the labour law applicability of the relational contract theory he raises. The description of all these bases makes the work suitable for those interested in labour law to better understand the contractual theories of different legal systems. We want to give an insight into this in the review, so that in addition to presenting the work, our own personal views and opinions will also appear.
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Unfair Termination Review During Probationary Period: The Case of Iraq in Light of New Judiciary Trends
75-89Views:249Probation is a trial period to test a new employee for a particular position. It is commonplace for many employers to stipulate that the contract begins with probation based on a mutual agreement with the employee. During the probationary period, more flexible standards are given to review unfair termination. Notwithstanding, a degree of protection insofar as it safeguards employees from the risk of unfair termination shall be granted. Article 37 in the Iraqi Labour Code No. 37 of 2015 permits the employer to test the employee for a maximum of three months if the latter has no professional certificate. The same article empowers the employer to terminate the contract if the employee has failed in the suitability test without setting any standards for such a test. In reviewing cases arising on the basis of unfair termination claims, the judiciary in some developed countries has come up with basic standards of the suitability test. This paper, therefore, attempts to examine Article 37 in the Iraqi Labour Code in light of the new judiciary trends and finally suggests redrafting the mentioned article to be more compatible with the rights of contractual parties.
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Foreign Loan: Cross-border temporary agency work in Hungary, with special regard to the employment of third-country nationals
43-60Views:250The special feature of temporary agency work is that the employee does not work for the agency which concludes the employment contract with them, but for a third party, the user company, with which the agency enters into a civil law contract for the remunerated transfer of workforce. The article summarises how an international element can appear in this tripartite employment relationship. It covers the rules under which an agency may conclude an employment contract with a foreign employee and also the cases where the agency and the user company are established in different states. Although Hungarian law generally prohibits third-country nationals to work in Hungary as agency workers, this is made possible by an expanding range of exceptions. The article explores the labour law and social security law situation of third-country agency workers in Hungary.
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Cumulation of Causes of Remedies for Non-performance and other Claims, with Special Regard to the Section 6:145. of Civil Code
60-78Views:180The Civil Code (Section 6:145.) excludes the possibility of parallel delictual claims of compensation for damages arising from breach of contract (non-cumul). This essay deals with the concept of concurrence of law and the concept of cumulation of causes of action and the relationship between contractual remedies and other sanctions grounded on a non-contractual basis. It examines the French doctrine of non-cumul, the proposal of DCRF and certain methods among the European legal systems. This essay analyzes briefly the two situations where the contractual and delictual bases could compete with each other and the application of the above mentioned provision may generate problems.
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PPP as an umbrella term
62-78Views:119In this study the author examines the legal institution of PPP (Public Private Partnership) in Western legal cultures. As a result of the analysis, the author finds that PPP is a blanket term which includes all contracts concluded between public and non-public sectors where the subject of the contract is the implementation of a public task and the term of the contract is relatively long. The second part of the study collects and analyses the possible classifications of PPP contracts, including the short introduction of the most typical PPP contracts.
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Collective Agreement’s Status in Law
Views:539The collective agreement is a Janus-faced legal phenomenon. From one side it has the nature of a contractual relationship where the parties have the right to determine the content of the contract, also including the choice itself, whether they establish it or not. On the other hand, the collective agreement acts as a legal norm as well. From this aspect its regulations are also obligatory for those persons who were not involved during the set-up process, or even for those who disagrees with some parts of the document. Therefore it is a crucial question in labour law as to how these contracts are handled by law. The Hungarian Labour Code came into force in 2012 contained an approach in which the legislator wanted to empower the legal status of collective agreement. To achieve this goal, in some parts the Act gives the parties the possibility to deviate from the law and to customize the norms in order to make it fit their current relationship. In this paper I examine the nature of the Collective Agreement and show its specialities in the Hungarian legal environment.
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Is the Implementation of Home Office Legally Feasible? The Criteria for Home Office and its Framework Within Employment Law
59-82Views:1154The year of 2020 was the challenge of “home office”. Although, the publicity uses the term of “home office” as the legal construction of working from home, this approach is misleading. Moreover, the Hungarian Labour Code does not contain any regulation about “home office”, while this legal source embraces two other methods in connection to work from home. These legal institutes are the teleworking and the legal relationship of outworkers. The problem with the aforementioned legal institutes is that the parties must take into account several rules and must apply these solutions regularly, on a permanent basis. However according to the legal literature, the “home office” is created by the economic and human resource management practice of the employers, where they intend to employ the workers mainly at home irregularly, on an ad-hoc basis. At the same time, “home office” does not have a legal framework in the Hungarian Labour Code, therefore the legal literature has been trying to find a real solution for this employment method in the general norms of the Labour Code. In the following article we are going to use the home office definition of the literatures and highlight the background legal institutes and concepts of this working method. Although we are going to set our opinion about which legal institute may be applicable in this sense, in the conclusion we are going to emphasise that legislation and rules regarding “home office” are indispensable.
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Smart Contracts, Blockchain Technology and the Formulation of a Proposal for Their Application in Public Administration
56-73Views:167The study focuses on smart contracts, emphasizing the opportunities provided by blockchain technology. The main research method used is an examination of relevant domestic and foreign sources on the topic, such as studies and legislation. In addition, we formulate a proposal on how smart contracts and blockchain technology could be applied in public administration, focusing on the real estate registration procedure.
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Claims for Compensation Based on the Infringement of Regulations Applicable to Procurement Procedures
11-30Views:141The study is concerned with those claims for compensation, which are based on the infringement of regulations applicable to procurement procedures. After the placing of the compensation within the public procurement remedy system, we outline those conducts, which can cause damage in the course of the public procurement procedure (e.g. contracting authority’s withdrawal from the public procurement, unlawful withdrawal of the tender, failing of contract conclusion, etc.). during the review of these cases, we heighten the differences existing between the classical civil law claims and the claims based on the infringement of public procurement rules.
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Municipal Waste Management and the Hungarian Model
47-66Views:122There is an ongoing debate on how the role of municipalities should be changed in the local public service sector due to the financial problems present at local level. The debate is mainly related to determine the adequate level and function of local governments. The author introduces the basic elements of a model of public services that shows the relationship between the public actors (state/municipality), the service provider and the user, including how the need is determined, the service is provided, financed and the service provider is chosen. The author introduces the “Hungarian Model” and its main features: the co-existence of three different model (public, quasi private and mixed) of the waste treatment service sector differing in the relationships established among the stakeholders and in the financing system; and the right of municipalities to freely switch between them. It draws the attention to how the changes in the role of the state and the legal framework influenced the models and reshaped the relationships of the stakeholders without dealing with the consequences.
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Historical Salvage as Investment: The Effect of an ICSID Judgment on Two Legal Areas
101-110Views:99In 2007 the ICSID concluded that MHS’s contract with Malaysia to undertake complex salvage operations considered investment even if it had not significantly contributed to Malaysia’s economic development thus failed to fall within the scope of the former interpretation of the notion of investment. This decision is significant in the sphere of international investment law as it synthesizes the former practice of the ICSID concerning the definition and conceptual elements of the notion of ’investment’. Besides, the Diana case serves for the enlargement of salvage law; however it can- not be defined as a classical source of law. It gives a new way to legal protection for salvage activity thus it contributes to the orientation in the chaotic mass of mainly customary rules related to shipwreck salvaging.
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The classification of contracts and the franchise contract apropos the Codification Committee’s Proposal on the new Hungarian Civil Code
68-79Views:133The introductory part of the study presents the standing points related to the delimitation of typical and atypical contracts. The first part gives an overview of the debates on the integration of atypical contracts (e.g. leasing, factoring, franchise, etc.) into the Hungarian Civil Code with special regard to the fact that the proposal on the new Civil Code contains regulations on franchise contracts. The second part examines the rules on franchise contracts of the proposal which was elaborated by the Codification Committee and published in February 2012.
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Multilevel System of Fundamental Rights Protection in Practice, in the Light of the Dismissal of Government Officials without Justification
120-141Views:136Today, in the European multi-level and cooperative constitutional area the European Convention on Human Rights, the constitutional value provisions of the EU Treaties together with the Charter of Fundamental Rights of the EU, as well as the constitutions of the member states of the EU function as parallel constitutions. The legal remedies offered by international forums by nature are subsidiary, because it is desirable that legal issues of human rights be solved by the states at national level. The obligation of the exhaustion of domestic legal remedies as a procedural precon- dition is needed in order that the national level should have the chance to remedy the violation of human rights within its own legal system.
The present paper focuses on Art. 8 para. (1) of Act LVIII of 2010 on the legal status of government officials, which states that the employer has the right to terminate the contract of goverment officials by two months’ notice period without any justification. The research is of considerable interest because the dismissed officials – who, in my opinion, de facto suffered injury by violation of human rights – were forced to turn to international forums because of the fact that the Hungarian legal system was not able to grant them adequate reparation. Therefore, the examination also evaluates the current level of fundamental rights arbitration and the jurisdiction using fundamental principles in Hungary.