Civil law – Prosecute Bush Cheney http://prosecutebushcheney.org/ Wed, 15 Sep 2021 16:32:03 +0000 en-US hourly 1 https://wordpress.org/?v=5.8 https://prosecutebushcheney.org/wp-content/uploads/2021/08/cropped-icon-32x32.png Civil law – Prosecute Bush Cheney http://prosecutebushcheney.org/ 32 32 New Access to Justice Class Helps Students Make Changes to Civil Law https://prosecutebushcheney.org/new-access-to-justice-class-helps-students-make-changes-to-civil-law/ https://prosecutebushcheney.org/new-access-to-justice-class-helps-students-make-changes-to-civil-law/#respond Fri, 13 Aug 2021 07:00:00 +0000 https://prosecutebushcheney.org/new-access-to-justice-class-helps-students-make-changes-to-civil-law/ In-person members of Assistant Professor of Government Alyx Mark’s Access to Justice course, with class mascot Smudge the Corgi in the arms of the course’s Community Partner Liaison, Zach Zarnow of the National Center for State Courts. Photo courtesy of Armando Alvarez. Assistant government professor Alyx Mark’s prospective law students arrived at her new service-learning […]]]>

In-person members of Assistant Professor of Government Alyx Mark’s Access to Justice course, with class mascot Smudge the Corgi in the arms of the course’s Community Partner Liaison, Zach Zarnow of the National Center for State Courts. Photo courtesy of Armando Alvarez.

Assistant government professor Alyx Mark’s prospective law students arrived at her new service-learning class with a typical set of assumptions about how American courts work: and people with legal problems tend to solve them.

However, most of an individual’s interactions with the law take place through small civil actions – lawsuits, traffic courts, and evictions, for example. For many people who live in low-income neighborhoods, not only is it difficult to find legal help, but when they access the law, often representing themselves in court, it could make their problem worse. .

Assistant Professor of Government Alyx Mark

Brand Alyx

Thanks to Mark’s new Access to Justice course, offered last spring and scheduled every two years, Wesleyan students had a new perspective and a chance to help implement real change. “Wesleyan has a lot to offer the local community, as well as globally. We have these enterprising, enthusiastic, sharp students who want to do good things in the world. So it’s not difficult to go to a community partner and say, “Do you want a team of researchers to help you solve this problem? ”Said Mark.

After a year of planning, Mark partnered with a civil justice funder, a national civil justice advocacy organization, and a local legal services provider to provide students with hands-on opportunities to address systemic issues. Mark also recruited a subject matter expert, Zach Zarnow of the National Center for State Courts, to provide students with a practitioner’s perspective at their weekly meetings. Mark recently published his thoughts on the project in ABA Journal.

“Community partners explained what they needed, such as a wish list of different types of projects that will help them move their work forward. The good thing about the projects was that they all required a different set of research skills, ”said Mark. “The community partners loved talking to the students.

For example, a group of students helped a granting agency collect data that would allow it to award more targeted grants, helping them better understand their impact.

Another project done for a legal aid provider has helped alleviate “legal deserts” in Connecticut. As is the case with food or books, many disadvantaged neighborhoods do not have access to free legal representation.

Mark’s students worked with Wesleyan geo-mapping experts to create a map of the state that displayed all the places where legal services and information are available, including law firms, courts, centers communities and libraries, in addition to demographic information from the census. “They layered all of these things together to make predictions about where the legal service provider might target resources to people who might not be served well,” said Mark.

Mark’s overall goal is to show his students the real interaction between ordinary citizens and legal officials. How are people who represent themselves in court treated? Are people getting the help they need? Is there a way for people to avoid the courts while still having their legal problem resolved? “How far upstream can we deal with a potential problem so that it never has to enter a courthouse?” Marc asked. The answers are complicated and justice, for many, can be elusive.

Mark has given his students what appears to be a straightforward task: to seek relief from court fees in various jurisdictions across the country. Between outdated websites and confusing language – some places do not refer to a “fee waiver” as such, using obscure terminology for what should be a straightforward proposition – it is difficult for someone faced with financial problems of finding this remedy.

In short, the law works for some people and not for others. As Mark said, courts are places designed by lawyers for lawyers to use. Real legal reform will require people from disciplines other than law to be part of the conversation. “We have to really think critically about how these systems are built,” Mark said.

Mark said the student engagement in the course was inspiring. Through in-depth discussions that challenged the worldviews of all participants and presentations by expert speakers offering their unique perspectives, Mark’s class was motivated to help implement change that can benefit everyone. . “It was a dream. I couldn’t wait to be in the room with them and hear them,” Mark said.


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Civil law vs criminal law: what’s the difference? – https://prosecutebushcheney.org/civil-law-vs-criminal-law-whats-the-difference/ https://prosecutebushcheney.org/civil-law-vs-criminal-law-whats-the-difference/#respond Fri, 14 May 2021 07:00:00 +0000 https://prosecutebushcheney.org/civil-law-vs-criminal-law-whats-the-difference/ Approximately 400,000 civil lawsuits are filed in the United States each year. But these don’t include any of the many criminal cases the courts see each year. This is because civil law and criminal law are very different. Did you know that in civil law the accused risks being “responsible”, while in criminal law the […]]]>


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Advocacy in the Supreme Court against the uniform civil law on divorce and child support https://prosecutebushcheney.org/advocacy-in-the-supreme-court-against-the-uniform-civil-law-on-divorce-and-child-support/ https://prosecutebushcheney.org/advocacy-in-the-supreme-court-against-the-uniform-civil-law-on-divorce-and-child-support/#respond Wed, 31 Mar 2021 07:00:00 +0000 https://prosecutebushcheney.org/advocacy-in-the-supreme-court-against-the-uniform-civil-law-on-divorce-and-child-support/ A petition has been filed with the Supreme Court against a “blatant attempt” to take away the fundamental right of Muslim women to practice their religion, all under the pretext of providing a “uniform law” for all faiths. Amina Sherwani has asked the Supreme Court to hear her before deciding whether a uniform civil law […]]]>

A petition has been filed with the Supreme Court against a “blatant attempt” to take away the fundamental right of Muslim women to practice their religion, all under the pretext of providing a “uniform law” for all faiths.

Amina Sherwani has asked the Supreme Court to hear her before deciding whether a uniform civil law for divorce, alimony and child support will leave Muslim women like her better off.

In December of last year, the Supreme Court agreed to consider lawyer AK Upadhyay’s plea for a single law covering divorce, alimony and alimony for all religions. Mr. Upadhyay argued that the laws governing them in some religions discriminate and marginalize women.

“Attempted interference”

Ms. Sherwani says she represents women who adhere to the Islamic faith, who have married according to Muslim rites and traditions, and who enjoy the rights accorded to her. She said their personal right grants Muslim women like her “rights that may not be available under other marriage laws.”

Ms. Sherwani said Mr. Upadhyay’s petition was a “deliberate attempt to interfere with cultural and customary practices and customs which enjoy the protection of Articles 25 and 26 of the Constitution”.

Muslim personal law provides a Muslim woman with various options to divorce her husband. These include the Talak-e-Tafweez (the wife’s right to divorce her husband is similar to that of the husband if the latter has been incorporated into the nikahnama or when such a delegation has been made by the husband at a later date) ; Khula – the woman can dissolve her marriage through Darul Kaza (Sharia court); Talak-e-Mubarrah – divorce by mutual consent; Fask – the wife can obtain the annulment of the marriage through Darul Kaza; and finally, through the Dissolution of Muslim Marriages Act of 1939.

The request filed by Ms. Sherwani stated that “Muslim marriage is contractual in nature and as such parties to the marriage are allowed to impose conditions to regulate their matrimonial relationship. Such conditions can be imposed before marriage or at the time of marriage or even after marriage ”.

She said that a way of resolving matrimonial disputes through mediation is also provided by Islamic matrimonial jurisprudence.

Mehr for the bride

Ms. Sherwani also referred to “Mehr”, which is “considered a symbol of respect to the wife and as such is meant to be substantial”.

“A small amount is wrong according to Islamic principles. In addition, if Mehr contributions are not paid at the time of divorce, the wife has the right to retain possession of her husband’s property. In case of refusal of the husband to pay the Mehr, the wife has the right to live separately and during this period, she has the right to claim alimony from her husband, ”says the request.


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COVID-19 insurance issues to watch out for in civil law countries | Zelle LLP https://prosecutebushcheney.org/covid-19-insurance-issues-to-watch-out-for-in-civil-law-countries-zelle-llp/ https://prosecutebushcheney.org/covid-19-insurance-issues-to-watch-out-for-in-civil-law-countries-zelle-llp/#respond Wed, 03 Mar 2021 08:00:00 +0000 https://prosecutebushcheney.org/covid-19-insurance-issues-to-watch-out-for-in-civil-law-countries-zelle-llp/ [co-author: Miguel Torres] Insurance law360March 2, 2021 To read this article in PDF format, please click here. A recent judgment from an appeals court in Spain shows that the outcome of COVID-19 business interruption coverage disputes in civil law jurisdictions may be different than one would expect in a common law country. The ruling raises […]]]>

[co-author: Miguel Torres]

Insurance law360
March 2, 2021

To read this article in PDF format, please click here.

A recent judgment from an appeals court in Spain shows that the outcome of COVID-19 business interruption coverage disputes in civil law jurisdictions may be different than one would expect in a common law country.

The ruling raises important questions for international insurers and reinsurers, especially those based in the United States or other common law jurisdictions, who may not be familiar with the civil law principles applied by the court.

On February 3, the Court of Appeal of Girona delivered the first reported judgment of a court of appeal,[1] whereas a commercial insurance policy covers business interruption losses directly related to the closure and lockdown order issued by the Spanish government declaring a state of alarm due to the pandemic.[2]

The judgment was widely reported in the Spanish press and, as we have seen in the UK following the UK Supreme Court ruling on the model case,[3] this can lead to an increase in claims and litigation in Spain and possibly in other civil law jurisdictions.

However, although issued by a court of appeal, due to the amount claimed – € 6,000 – the judgment was rendered by a single judge and not by the chamber (three members), and is not susceptible to appeal to the Court of Cassation. Therefore, media opinion aside, it is not clear whether this judgment could be the first of many with a similar trend.

Facts and provisions of the policy

The policyholder and insured, a pizzeria company, has taken out insurance covering, among other risks, loss of profits and “[paralyzation] of the activity. “[4] The coverage contracted was 200 euros per day with a maximum of 30 days, for an amount of 6,000 €. The insurance clause reads as follows:

The insurer covers, depending on the type of compensation agreed and within the temporary and economic limits agreed in the Special Conditions, the economic losses resulting from the temporary, total or partial paralysis of the insured professional activity, provided that it this is a consequence of a peril covered by this policy and included among the guarantees of Chapter III of these General Conditions “Damage Guarantee”, which had been expressly contracted.

Following the mandatory government-ordered lockdown by Royal Decree 463, the restaurant closed and requested a daily allowance of € 200 for the 30-day period set in the policy.

Although the related insurance clause (“direct consequence of“) the guarantee for operating losses at the risks covered by the contract, the judgment declares[5] that while loss of earnings insurance is generally conditional on the existence of prior material damage covered by the policy, the legal representatives of the insurer have not raised this question as a defense.

This article will not deal with this aspect of the coverage requirements, since it appears that, oddly enough, this was not part of the parties’ contractual insurance dispute and the judgment itself does not, in our opinion, provide the information needed to provide a full analysis.

It is important to note, however, that in many court decisions in common law jurisdictions, insurers have prevailed precisely because the presence of the virus that causes COVID-19 does not constitute the direct physical loss or property damage necessary for trigger business interruption and other time element blankets.

The insurer alleged that the policy did not cover any business interruption resulting from a government resolution following the declaration of a pandemic at all. The relevant exclusion reads as follows:

We do not cover losses produced, caused, deriving or resulting from limitations or restrictions imposed by any public body or authority or for any other cause of force majeure, including forfeiture or destruction for repair of damage or for development. normal business activity.

It appears the insurer’s argument was that the foreclosure met the requirements to apply the exclusion.

The Specific Requirement for Acceptance of Limitation Clauses

In Spain, insurance contracts are governed by the Insurance Contracts Act of 1980. In accordance with Article 2 of the LCA, the provisions of the law are mandatory, with the exception of other rules or provisions. specific statutory provisions that could be more advantageous for the insured. This applies to all insurance contracts, except those considered to be significant risks.[6]

It is a legal mandate[7] that the policy must describe in a clear and understandable manner the guarantees provided and the applicable exclusions and limitations. Within the framework of the general conditions, the clauses which limit or restrict the rights of the insured must be typographically highlighted – in practice, in bold type – and must also be explicitly accepted by the policyholder or the insured.[8]

That is to say that the provisions limiting the rights of the insured must be the subject of a specific acceptance; otherwise, the provision may be null and void. Concretely, the exclusions are generally considered as limiting, they must therefore be highlighted and specifically accepted in order to be binding on the insured.

The Supreme Court, following numerous other decisions in the same direction, recently explained that:

Theoretically, the distinction between the clauses defining the guarantee … and the limiting clauses is simple, since the former specify the object of the contract and establish the dangers which, if they arise, give the insured the right to receive the consideration which is the object of the insurance. Contract. Whereas the limiting clauses restrict, condition or modify the right of the insured to receive the indemnity or any other consideration guaranteed in the contract, once the peril that is the subject of the contract occurs.[9]

Although in practice this distinction is not always clear, in general the defining clauses are those describing the risks covered, the limits, the duration or the period of insurance.

As the Supreme Court said:

The goal is to individualize the perils by establishing an objective basis, remove the ambiguity, and specify the nature of the risk consistent with the object of the contract or the uses, provided that the perils are not defined in contradiction with the special conditions or in an unusual or unusual way (surprising clauses).[10]

The exclusion of the powers of politics was inapplicable

The legal question before the appeals court was whether the paralysis of a restaurant’s business, due to the government’s lockdown decision due to the COVID-19 pandemic, is covered by the policy.

The court found that lockdown restrictions resulting from the COVID-19 pandemic caused the loss of profits, as the insured had to close and his income declined.

According to the court, since the general conditions of the police do not expressly include “paralysis resulting from government resolution following a pandemic,“and the insurer refused to provide coverage under an exclusion for damages caused by public authorities, the case presented “a clear limitation of the insured’s rights in the membership contract. “

The court ruled that as such, the requirements of Article 3 of the ICA must be met. However, the judgment states that there was no evidence that the particular policy and terms and conditions had been signed by the insured.

Therefore, the main conclusion of the judgment is that the court of appeal allowed the appeal and granted coverage and compensation on the grounds that the exclusion of the authorities, which the court considers to be a limitation clause, had not been accepted in accordance with the formal requirements envisaged. under section 3 of the LIC.

This may be a surprising result for insurers and reinsurers in common law jurisdictions, where the general rule is that an insured has a duty to read the insurance policy and is presumed to have understood its contents, so that ‘Once the policy is issued, the insured is bound by its terms and conditions, including the exclusion clauses.

It is also interesting from both a practical and academic point of view that the judgment further states that, given the absence of pandemic exclusion as such in the police, the application of the exclusion of authorities could also lead to the conclusion that indeed the policy did not provide actual coverage since the insured expects to be covered against loss of profit and business paralysis, and such a restrictive exclusion could distort the natural content of the insurance contract.

The judgment cites a decision of the Supreme Court, which, in accordance with the case cited above, warned that perils cannot be “defined in contradiction with the special conditions or in an unusual or unusual way. “[11] In other words, even if the acceptance by the insured and the policyholder of the limiting clauses of the policy had satisfied the requirements of section 3 of the LSA, it is possible that the court made the same decision.

The argument raised – but not decided – by the Court of Appeal is somewhat analogous to the concept of illusory coverage in common law jurisdictions, which applies in general terms when a policy defines coverage in such a way that the coverage will never actually be triggered, and may allow a court to reform the policy to meet the insured’s reasonable expectations for coverage. In our experience, at this time, this argument is not advanced by policyholders in disputes related to COVID-19 coverage.

Courts in common law jurisdictions would most likely reject such an argument. The general rule in these jurisdictions is that coverage is illusory when the insured does not purchase effective protection. On the other hand, the granting of a cover is not illusory if the contract meets certain risks, even if it contains a potentially broad exclusion.

The provisions relating to the time element in commercial property insurance policies are not illusory, as they cover many risks that may lead to an interruption of the insured’s activities, even if the losses caused by the decisions of government authorities are excluded.

Conclusion

Since the court relied on legal formalities firmly anchored in Spanish statutory law, the potential impact of the judgment is more likely to be felt in civil law jurisdictions with similar insurance statuses.

The judgment and other decisions following its reasoning may lead to an increase in coverage disputes in several jurisdictions. International insurers and reinsurers should be aware of the different approaches to coverage issues in civil law countries, and the additional exposure they face as a result.

[1] Judgment 59/2021, Audiencia Provincial de Girona, civil section.

[2] Royal Decree 463/2020 of March 14 (RD463).

[3] The Financial Conduct Authority v. Arch and others [2021] UKSC 1.

[4] All quotes from police provisions and court judgments are free translations from the original into Spanish.

[5] Paragraph 13.

[6] Large exposures are defined in section 13 (27) of Solvency II Directive (2009/138 / EC). In Spain, major risks are defined in article 11 of Law 20/2015 on the regulation, supervision and solvency of insurance and reinsurance entities. The contractual autonomy of the parties prevails in large risks.

[7] Article 8 LIC.

[8] Article 3 LIC.

[9] Judgment 58/2019 of January 21.

[10] Judgment 82/2012 of March 5.

[11] Judgment of July 19, 2012.


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University of O alumnus who co-founded BLSA’s civil law chapter creates scholarship for black law students https://prosecutebushcheney.org/university-of-o-alumnus-who-co-founded-blsas-civil-law-chapter-creates-scholarship-for-black-law-students/ https://prosecutebushcheney.org/university-of-o-alumnus-who-co-founded-blsas-civil-law-chapter-creates-scholarship-for-black-law-students/#respond Sun, 07 Feb 2021 08:00:00 +0000 https://prosecutebushcheney.org/university-of-o-alumnus-who-co-founded-blsas-civil-law-chapter-creates-scholarship-for-black-law-students/ Ruth Bansoba graduated in 2020 from the Civil Law program. Image: Ruth Bansoba / Supplied Reading time: 2 minutes Ruth Bansoba aims to motivate black youth to consider a career in the justice system The University of Ottawa announced on January 29 that a new scholarship for black law students will be available for the […]]]>

Ruth Bansoba graduated in 2020 from the Civil Law program. Image: Ruth Bansoba / Supplied

Reading time: 2 minutes

Ruth Bansoba aims to motivate black youth to consider a career in the justice system

The University of Ottawa announced on January 29 that a new scholarship for black law students will be available for the 2020-21 academic year. Created by Ruth Bansoba, a 2020 graduate of the Civil Law program, the scholarship aims to help black students start their careers in law.

Bansoba, was a founding member of the Civil Law Section of the Association of Black Law Students (BLSA). By creating the scholarship, she hopes to motivate black youth to consider a career in the justice system.

“Growing up in Quebec, I never saw black lawyers,” she says. “And once I was in law school, there were a few black students, but in second year the number had been cut in half.”

His motivation behind the scholarships echoes the reasoning behind founding the BLSA during his time at U of O.

“I realized that there was a major problem [with Black students dropping out], maybe they don’t feel comfortable or welcome in this area, ”she said.

“My friends and I got together and founded the BLSA chapter in the civil law section. One of the things we have done is the mentoring program, where second- and third-year black students can mentor black freshman students and support them throughout their judicial careers.

Bansoba explained the requirements for applicants, saying the scholarship “is open to students who identify as black, demonstrate financial need and are somehow involved in the black community.”

The scholarship is funded in part by Bansoba as well as by four lawyers; Alexandre Bien-Aimé, Sabine Uwitonze, Joshua Sally-Harrington, Safiatou Diallo and will reward a student with $ 1,000.

However, Bansoba said they “hope to increase the number and number of students over the next four or five years.”

Applications close on March 31 for students admitted to the Faculty of Law, Civil Law section for September 2021.

New scholarship available for common law students

The Common Law School also announced the creation of its own entrance scholarship for black law students on February 1.

The Black Student Law Scholarship is open to self-identified Black students who have demonstrated financial need and have helped reduce discrimination for Black Canadians.

Adam Dodek, the dean of the common law faculty, wrote in an email to Fulcrum that the stock market must help fight “systemic discrimination” in our society.

“We created this scholarship in response to the heightened awareness over the past year of the need to address systemic discrimination in all aspects of our society, including the legal profession, academia and faculties. right, ”he said.

“For many years, our holistic admissions process has encouraged applicants from a variety of backgrounds. To ensure that the student body represents the fullest possible range of social, economic, ethnic and cultural perspectives in our society, the admissions committee takes into account many factors in assessing applicants.

According to the Common Law School’s website, the Black Law Student Entrance Bursary “will provide $ 10,000 to up to five newly admitted black law students each year.”

“The scholarships will be renewable for $ 5,000 in each of the second and third years of law school for a total value of $ 20,000 for each student.”

Civil Law and Common Law Scholarships seek continuous donations and nominations.

Applications are available in uOzone under “Online scholarships and scholarships”.

Donations for the Civil Law Scholarship and the Common Law Scholarship are open to anyone wishing to contribute.


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delays and cost claims in common law and civil law https://prosecutebushcheney.org/delays-and-cost-claims-in-common-law-and-civil-law/ https://prosecutebushcheney.org/delays-and-cost-claims-in-common-law-and-civil-law/#respond Fri, 28 Aug 2020 07:00:00 +0000 https://prosecutebushcheney.org/delays-and-cost-claims-in-common-law-and-civil-law/ Again, the contract should be checked for changes in legal provisions, as these may allow a contractor to claim costs if specific legislative measures adopted in the wake of the pandemic resulted in additional costs. The success of a law change request will depend on the specific facts and how the additional costs arise and […]]]>

Again, the contract should be checked for changes in legal provisions, as these may allow a contractor to claim costs if specific legislative measures adopted in the wake of the pandemic resulted in additional costs. The success of a law change request will depend on the specific facts and how the additional costs arise and are presented.

Civil law systems

Civil law systems may provide for additional legal costs remedies. These should be taken into account when submitting claims for additional costs due to the pandemic.

As with common law systems, the starting point for requests for costs will be what is provided for in the contract. In the absence of express provisions, the applicable breach of contract argument in “constructive acceleration” cases may also be available in civil law systems. The obligation of “good faith” contained in some civil codes can provide here an additional legal basis, if the entrepreneur can demonstrate that he has informed the employer of the impact suffered, the need to accelerate at the expense of the employer if the employer intends to enforce the initial completion date and the estimated cost of this acceleration.

Law change claims may also arise and may be invoked when the contract contemplates expense claims for changes in law. These would be subject to the same need to demonstrate that the costs result from the specific legislative measures invoked.

Finally, the main difference from a common law system is that a number of civil law systems also recognize the possibility of reducing an excessively onerous obligation or restoring the “lost” economic balance of the contract, when the one or the other was caused by unforeseen circumstances. The French legal system calls this the doctrine of “unforeseen” which, since 2016, has been governed by the French Civil Code. The United Arab Emirates Civil Code contains similar provisions, allowing a judge or arbitrator to reduce an onerous obligation to a reasonable level if an unforeseen exceptional circumstance has made that obligation excessively onerous and the person charged with the obligation is threatened with “serious loss”.

The specific requirements of each legal system will have to be met before these provisions apply, and these should be checked in detail. In some cases, the test is quite high.

Causal or causal link

Regardless of the type of applicable law, all time and expenses claimed must be related or related to the event on which the law is based. The necessary link between cause and effect cannot be underestimated even in the context of an event as seemingly obvious as the Covid-19 pandemic.

Obligation to mitigate

The parties to a construction contract are required to mitigate as much as possible any damage or loss resulting from the Covid-19 pandemic.

In common law systems – and certainly in England and South Africa – there is an obligation to mitigate. A similar obligation also applies in civil law. The difference lies in the origin of the obligation.

In England and South Africa, the obligation to mitigate applies as a common law principle adopted in the measurement of losses:. In some civil law systems, the obligation arises from the broader – and mandatory – obligation to act in good faith.

In both systems, the exact scope of the mitigation obligation will be defined by reference to the specific facts, the cost of the mitigation measures versus the potential loss, market conditions, etc. The best practice when presenting a complaint is to show that mitigating measures have been considered.

Standard of proof

The standard of proof is the level or degree of proof that the judge or arbitrator will require with respect to causation and quantum if a claim has been submitted to them.

In common law jurisdictions, the standard of proof to be met is the balance of probabilities: that is, it is more likely than not that the delay or cost was caused by the alleged event. In most civil law jurisdictions, there is no defined standard and judges and arbitrators have more latitude, which may lead to a stricter standard than that applicable under common law.

In international arbitration, even if civil law applies, arbitrators can be influenced by the common law standard and, if the underlying legal system gives them that discretion, they can apply a “paramountcy” approach. of probabilities ”.


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“McDonough v. Smith ”:“ Favorable Termination ”and the Confusing Civil Law of Wrongful Convictions https://prosecutebushcheney.org/mcdonough-v-smith-favorable-termination-and-the-confusing-civil-law-of-wrongful-convictions/ https://prosecutebushcheney.org/mcdonough-v-smith-favorable-termination-and-the-confusing-civil-law-of-wrongful-convictions/#respond Wed, 22 Apr 2020 07:00:00 +0000 https://prosecutebushcheney.org/mcdonough-v-smith-favorable-termination-and-the-confusing-civil-law-of-wrongful-convictions/ Does a plaintiff who sues the police for falsifying evidence against him in a criminal case have to prove that he has been formally exonerated in that case? The answer to this question, like too many other important questions affecting the ability of people to be compensated for wrongful convictions, is: No one really knows. […]]]>

Does a plaintiff who sues the police for falsifying evidence against him in a criminal case have to prove that he has been formally exonerated in that case? The answer to this question, like too many other important questions affecting the ability of people to be compensated for wrongful convictions, is: No one really knows.

Two types of police misconduct are common in wrongful conviction cases: first, hiding evidence favorable to the defense, or Brady Equipment; second, fabricating evidence, which may mean forcing a suspect or witness to make a false statement or make up a statement that a witness has never made.



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Civil law, common law distinctions and implications for lawyers in international transition https://prosecutebushcheney.org/civil-law-common-law-distinctions-and-implications-for-lawyers-in-international-transition/ https://prosecutebushcheney.org/civil-law-common-law-distinctions-and-implications-for-lawyers-in-international-transition/#respond Tue, 19 Nov 2019 08:00:00 +0000 https://prosecutebushcheney.org/civil-law-common-law-distinctions-and-implications-for-lawyers-in-international-transition/ As the world becomes more and more connected, many lawyers have chosen to leave their home countries to become certified lawyers and practice law in other jurisdictions. In addition to the procedural requirements that lawyers must comply with in order to obtain a license in different countries and jurisdictions, lawyers interested in this transition must […]]]>

As the world becomes more and more connected, many lawyers have chosen to leave their home countries to become certified lawyers and practice law in other jurisdictions. In addition to the procedural requirements that lawyers must comply with in order to obtain a license in different countries and jurisdictions, lawyers interested in this transition must also familiarize themselves with the legal system of the new country. First, it is essential that lawyers understand the difference between the two dominant systems of law, civil law and common law, as these systems represent different ways of obtaining justice. Additionally, understanding the distinctions between the two systems and their implications is imperative not only for lawyers who intend to practice across borders, but also for law firms looking to operate and operate. represent clients internationally.

It is important to note that civil law and common law are the two main legal systems in the world. Currently, around 150 countries and the province of Quebec, Canada, adopt the civil law system, including China, Brazil, Germany, and France, while around 80 countries have chosen common law, including United States, England and Canada, excluding Quebec. . The most notable difference between the two systems is that the common law is mainly based on judicial precedents, where previous judicial decisions are of paramount importance, while in civil law, codified laws prevail. In practice, however, many countries adopt a mixture of the characteristics of the two systems.



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Are verbal contracts valid? A comparative analysis between common law, civil law and CISG https://prosecutebushcheney.org/are-verbal-contracts-valid-a-comparative-analysis-between-common-law-civil-law-and-cisg/ https://prosecutebushcheney.org/are-verbal-contracts-valid-a-comparative-analysis-between-common-law-civil-law-and-cisg/#respond Mon, 09 Sep 2019 07:00:00 +0000 https://prosecutebushcheney.org/are-verbal-contracts-valid-a-comparative-analysis-between-common-law-civil-law-and-cisg/ introduction Comparative contract law is a fascinating area of ​​academic discussion, as it explores many challenges relating to the interpretation and application of various rules in competing jurisdictions. This article deals in particular with the validity of oral contracts in common law, civil law and international trade law. Common law What is the Parol rule […]]]>

introduction

Comparative contract law is a fascinating area of ​​academic discussion, as it explores many challenges relating to the interpretation and application of various rules in competing jurisdictions. This article deals in particular with the validity of oral contracts in common law, civil law and international trade law.

Common law

What is the Parol rule of evidence and why does it exist?

In the common law world, verbal contracts are subject to the Parol rule of evidence, which is one of the oldest rules of evidence. Its effect is to prohibit testimonials which are used to contradict, modify, add or subtract from the terms of a valid written contract document, which is intended by the parties to be their final agreement.[1] In practice, the type of testimony prohibited by the rule refers to verbal statements or agreements and to behavior before or after the conclusion of the written contract.

The main justifications for the emergence of the rule include legal insecurity arising from a person’s memory, on which verbal agreements and statements are based, and the risk of lying, fraud or perjury.[2] Other justifications are put forward using two approaches. The “consent approach” recognizes that the parties intend to make the writing a manifestation of their final agreement which is superior to any previous agreement.[3] The “quality of evidence approach” recognizes that a written agreement that has been carefully crafted to reflect the intentions of the parties must be given greater consideration and weight than any other agreement or understanding between the parties.[4] This ensures that the weaker evidence cannot modify or replace the stronger written evidence.[5]

Application of the parole rule of evidence to the interpretation of the contract

The rule of conditional proof is a feature of the interpretation of contracts, since it must be determined whether a writing constitutes a partial or complete declaration of the agreement of the parties.[6] In the common law world, this determination is made in such a way as to promote certainty and predictability in the performance of the contract.[7] This determination aims to determine the meaning of the language of the contract and therefore excludes evidence of pre-contractual negotiations used to interpret the contract.[8] It is here that a divergence appears between the common law and the civil theoretical approaches to the formation and therefore of the construction of contracts. The rule of evidence on parole was described by Judge Blackburn in the English case Smith vs. Hughes.[9] He said: “Whatever a man’s real intention, if he behaves in such a way that a reasonable man would believe that he consents to the terms proposed by the other party, and that party concludes the contract on the basis of this belief, the man would also be bound by the contract as if he had intended to accept its terms.[10]

This classic theory of contract law is based on the idea that a “contract is formed for a homogeneous product concluded between two foreigners who trade in a perfect spot market”.[11] This is important in the context of the rule of evidence on parole, because if the terms of a contract are ambiguous or unclear, thus making subjective intention difficult to determine, then the general rule is that objective intention parts will be verified by interpreting the actual language and wording. of the contract and prohibiting the use of extrinsic material to facilitate this interpretation.

However, many common law jurisdictions have introduced many exceptions to the rule. For example, in Australia, Judge Mason in the notable case Codelfa Construction Pty Ltd v State Rail Authority of NSW emphasized, “the real rule is that evidence of the surrounding circumstances is admissible to aid in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning”.[12]

However, evidence of the surrounding circumstances is not admissible to contradict the language of the contract if it has a clear and clear meaning and if the subjective intentions of the parties are displaced by the contract itself.[13] The rule is virtually unknown in civil law and it is questionable whether this principle should continue to function given its growing inability to reflect contemporary international trade realities.

Evidence of parole in civil law

Although the rule is universally recognized, it is only accepted in its true form in the common law tradition. While the common law classifies parole evidence as a rule of substantive law, the civil law classifies any equivalent as a rule of evidence,[14] which is primarily procedural rather than substantive. Civil or commercial codes generally contain the presumption that a written text is the final agreement of the parties and must be honored on the basis of pacta sunt servanda and the principle of good faith.[15] Civil codes allow certain restrictions on proof of parole in certain circumstances and this may also depend on the particular jurisdiction.

For example, the French Civil Code prohibits parol proof in the form of witness proof if the object of a contract exceeds a certain sum of money.[16] The Spanish Civil Code contains a provision similar to Article 51.[17] In Germany, the principles of good faith and custom can be used to interpret contracts.[18] Written agreements are presumed valid and accurate, however, formal evidence may be accepted to prove the intentions of the parties and to interpret the contract.[19]

Interestingly, it is only the Italian Civil Code that incorporates a rule comparable to the common law rule on parol evidence. It specifies that “the proof by witnesses of agreements before or contemporaneous with a written document is not authorized to establish stipulations which have been added or which are contrary to the contents of a document”.[20] Section 2724, however, continues to allow such evidence if the legitimacy of the writing is in doubt.[21]

As a general rule, however, civil law is largely uniform in its acceptance of extrinsic evidence such as verbal agreements to prove the intentions of the parties in contracting.[22] The absence of formal requirements in day-to-day transactions is common in civil jurisdictions and if terms are considered ambiguous, they should be interpreted in accordance with the subjective intentions of the parties and may take into account customs and usages.[23]

Parol Evidence and CISG – Business Realities

This article has so far discussed the parole rule of evidence and its application in common and civil legal traditions. The rule, however, has become subject to criticism regarding its archaic nature and the fact that its application no longer reflects contemporary business practice. The common law treats the contract as a final agreement reached after a series of negotiations.[24] While such an approach may benefit from a business opportunity within a national common law framework, internationalized business and commerce reflect a different reality.

Contracts negotiated between international parties are now recognized as “evolving instruments of negotiation and exchange” that can change and adapt to various contextual influences such as the economy, rather than being a rigid end product.[25] A conflict therefore arises between contracting parties of different jurisdictions as to the rules of interpretation of contracts and in particular, for the purposes of this article, whether formal evidence can be admitted to assist in the interpretation of contracts.

In order to overcome the challenges posed by the application of inconsistent rules between different legal traditions and states, CISG[26] was adopted to create a uniform international sales framework to facilitate international trade and commerce.[27] With 91 contracting parties, CISG represents an important part of international trade.[28]

The CISG Advisory Council emphasized in its opinion that CISG does not incorporate the rule of evidence on parole.[29] Article 11 CISG specifies that “a sales contract need not be concluded or evidenced in writing and is not subject to any other formal requirement. It can be proven by any means, including by witnesses.[30] The editorial conference commentary explained that this provision was incorporated due to the fact that an overwhelming number of “international sales contracts are concluded by modern means of communication, which may not always include the written word”.[31] In an increasingly globalized world where commerce and communication have become largely electronic and subject to technological advancements, such as the emergence of electronic commerce, it is conceivable that writing alone can no longer be seen as a holistic expression. or specifies the intentions of the contracting parties.

Therefore, Article 8 CISG specifies that “to determine the [subjective] intention of a party, due account must be taken of all the relevant circumstances of the case, including negotiations, practices and customs, and any subsequent behavior of the parties. ‘[32] In this way, it appears that CISG followed the civil tradition in interpreting contracts according to the subjective intention of the parties, which can be proved with the help of foreign and even conditional evidence.

Final remarks

This article has compared the treatment of parole evidence in the interpretation of contracts within common law and civil traditions, as well as under CISG. The strong dependence of the common law on the written agreement aims to achieve the objectives of legal certainty and predictability. These objectives are however achieved to the detriment of the true intentions of the parties, which this article suggests is contrary to the well-established principle of contractual freedom, which is part of the commercial world. To view contracts as a final, concluding agreement incapable of being amended to reflect the wishes of the parties, as expressed through verbal and other communications, runs counter to contemporary realities of international trade.

International contracts are increasingly treated as bargains and flexible exchanges given economic and other factors. Section 8 CISG appears to strike a balance between common law considerations of certainty and foreseeability, and the civil law preference for determining the true subjective intent of a contract by allowing the admission of all relevant evidence.[33]


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Letter of the day | D’obeah, abortion and civil law | Letters https://prosecutebushcheney.org/letter-of-the-day-dobeah-abortion-and-civil-law-letters/ https://prosecutebushcheney.org/letter-of-the-day-dobeah-abortion-and-civil-law-letters/#respond Thu, 06 Jun 2019 07:00:00 +0000 https://prosecutebushcheney.org/letter-of-the-day-dobeah-abortion-and-civil-law-letters/ THE EDITOR, Sir: So Prophetess Almarie Campbell of Tarrant Baptist Church will bring fire and destruction to Parliament and Parliamentarians. This is because they propose to repeal a law (the Obeah law) which was first promulgated to suppress West African religious practices, which aimed to entrench the evil institution of slavery which however proved impossible […]]]>

THE EDITOR, Sir:

So Prophetess Almarie Campbell of Tarrant Baptist Church will bring fire and destruction to Parliament and Parliamentarians. This is because they propose to repeal a law (the Obeah law) which was first promulgated to suppress West African religious practices, which aimed to entrench the evil institution of slavery which however proved impossible to subsume over the centuries.

Maybe she and others should use their prayers and statements to pray and speak for an end to the modern day slavery and exploitation that is happening among us. Did they notice?

It’s the same way we demonize abortion and try to put in place exceptions to appease our collective conscience. I can guarantee that for the majority of the women who made this decision, this is one of the hardest things they’ve ever done – it’s not what some claim to be – born of neglectful sex. . Ask married women who had to do it too.

“I don’t think just because you’re against abortion doesn’t make you pro-life. In fact, I think in many cases your morality is deeply flawed if all you want is a born child, but not a fed child, not an educated child, not a housed child. And why would I think you don’t? Because you don’t want the tax money to go there. It is not pro-life. It’s pro-birth. We need a much larger conversation about what pro-life morality is. Sister Joan Chittister, OSB (2015). https: //www.dailykos.com/stories/2015/7/30/1407166/-Catholic-Nun-Explain ….

Maybe we should pass a law that requires men to always wear condoms, unless the woman agrees to conceive.

If pastors had faith in what they teach about Christianity, they would have no fear in their hearts that these practices would be made legal. Their statements turned out to be terribly anti-Christian – no sense of tolerance or love.

This is the reason why I questioned those who arise from day to day calling themselves prophets and pastors, but without study or formal understanding of Scripture.

We need to pass a law requiring these people to be qualified and certified to reap the benefits accrued by those who spend the time studying and understanding. Any understanding of Scripture shows that Jesus himself, as a “human,” was not born with full knowledge, but spent the formative years of his life studying the books of Torah.

Civil law is about protecting and setting parameters so that we can function as a society, not about providing for the exclusion of some and the inclusion of others. I could suggest on this subject that the government pass a law that imposes taxes on churches, but on the condition that they make good use of it to help their fellow men in need and not only themselves.

Laws of inclusion and responsibility for all.

Colin McDonald B Ed

(The mic)

Our history tours

3 avenue du Sud, Swallowfield

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