legal system – Prosecute Bush Cheney http://prosecutebushcheney.org/ Sun, 17 Apr 2022 08:28:00 +0000 en-US hourly 1 https://wordpress.org/?v=5.9.3 https://prosecutebushcheney.org/wp-content/uploads/2021/08/cropped-icon-32x32.png legal system – Prosecute Bush Cheney http://prosecutebushcheney.org/ 32 32 Application of common law clauses in contracts for the purchase of shares of Colombian companies https://prosecutebushcheney.org/application-of-common-law-clauses-in-contracts-for-the-purchase-of-shares-of-colombian-companies/ Thu, 17 Feb 2022 20:25:27 +0000 https://prosecutebushcheney.org/application-of-common-law-clauses-in-contracts-for-the-purchase-of-shares-of-colombian-companies/ introduction The market for acquiring control of Colombian companies has intensified in recent years, with local and international buyers investing in our country. This has led to the internationalization of stock purchase agreement (“SPA”) language used by Colombian lawyers, including using concepts imported from common law. The adoption of this language greatly facilitates communication between […]]]>

introduction

The market for acquiring control of Colombian companies has intensified in recent years, with local and international buyers investing in our country. This has led to the internationalization of stock purchase agreement (“SPA”) language used by Colombian lawyers, including using concepts imported from common law. The adoption of this language greatly facilitates communication between foreign clients and lawyers and makes transactions more fluid. However, buyers and sellers who trust Colombian lawyers should not lose sight of the fact that, being an imported contractual language, it has its limits when it comes to applying it in Colombia. Therefore, parties involved in negotiating SPAs of Colombian companies should be careful to keep this in mind when receiving legal advice in the country.

When seeking to acquire a position of control in a company, the transaction does not refer only to the acquisition of a certain number of shares, but mainly to the purchase of an organization which has a life of its own and is made up of a corporate culture, a commercial projection, assets, workers who make autonomous decisions and, in general, elements that interact to create added value. With this in mind, the parties, including the acquirer, may not be able to identify all possible contingencies in the conduct of the target’s business.

This is why the negotiation of representations and warranties (“D&G”) in stock purchase agreements becomes so important. D&G originated from common law and are widely used in Colombian legal practice of mergers and acquisitions. They go hand in hand with the indemnification clause, in which the parties agree on the amount of the claim that the buyer can demand from the seller in the event of lies in the D&G. However, what happens when the D&Gs are inaccurate, or if after the transaction is concluded new contingencies arise that were not disclosed by the seller?

In this article, we seek to explain the contractual and legal numbers that parties to a SPA should keep in mind in order to invoke breach of contract once the transaction has been concluded, with the aim that buyers and sellers can have informed conversations with their advisers and ensure that their interests are adequately protected. To be more specific, we will focus on explaining the D&G clause and the indemnification clause, then explain how they interact with two relevant contractual figures of the Colombian system, such as the action redhibitoria and the relative nullity of the contract due to an error in the quality of the asset (error in the quality of the cosa)

Breach of Contract: Representations and Warranties, Indemnification Clause and action redhibitoria

To begin with, the legal nature of D&G is contractual and based on the autonomy of the will of the parties. This means that these are clauses that are not incorporated into Colombian law and that it is the parties – through the clause – who are responsible for spreading the risks of the sale of the shares. D&G assumes that, if a contracted party makes an assertion that leads to the closing of the legal transaction, then it must guarantee its truth and be liable for the consequences if it is not true. 1 Ultimately, this can be expressed by a statement of the following type: “The Company has no liabilities or obligations for a value greater than 20% of the total assets. Likewise, each of the principal obligations has been disclosed in Schedule A of this contract.”

It is important to point out that in SPAs, the Supreme Court of Justice has clarified that the object of the contract is not the company’s assets, but rather the representative certificates of participation in the company. 2 It is therefore essential that the parties stipulate, taking into account the economic object of the contract, that the contractual object does not relate only to the securities, but also to the assets of the company. 3 At this stage, the D&G clause is particularly important, as well as the indemnification clause, because through these the parties will indicate the characteristics of the company and the amount of the indemnification of the buyer in which they are inaccurate. Similarly, it is important that the parties agree on the limitation period of the indemnification clause, since in the event of their silence, the guarantee will be valid for two years from the signing of the contract (art. 932 Commercial Code). 4

Therefore, this clause ends up being an acknowledgment of the economic purpose of the contract, which truly extends to the acquisition of a business. In addition, it has proven to be one of the most common contractual mechanisms for invoking default due to irregularities of the company being transacted.

Likewise, the parties must bear in mind that in any sale celebrated under the Colombian legal system, the seller is responsible for the obligation to saneamiento. This obligation implies that the seller “is obliged to provide the buyer with peaceful and useful possession of the property sold”. 5 This implies that “the good must materially serve the use for which it is intended according to its nature. 6 Hence, when the good suffers from material defects which prevent it from being used in accordance with its nature, the seller will have broken the contract and the buyer will have the right to lodge a complaint. action redhibitoria hidden defects of the property sold. 7

In SPAs, the action redhibitoria is a legal figure that the parties should not ignore. In this respect, it is important to specify that the object of the contract is not the company, but the equity securities. This would mean that, in turn, the obligation to saneamiento would only accrue to the shares of the company. However, the Supreme Court of Justice has recognized that the parties may extend the obligation to saneamiento to cover the business. 8 Therefore, the obligation to saneamiento may also apply in the event of inaccuracies or defects of the company within the framework of the contractual object. 9

Now, it is vitally important that the parties bear in mind that the action redhibitoria gives rise to the buyer requesting the termination of the contract or the reduction of the price depending on whether the good does not serve its natural purpose or serves it imperfectly. 10 In addition, the limitation period of the action redhibitoria is six months for movable property such as shares. 11

Defects in the consent: relative nullity of the contract due to error in the quality of the good (error in the quality of the cosa)

However, once the nature of the D&G has been clarified, it should be reaffirmed that the mandatory nature of this clause within the contract is incidental to the main obligation of the SPA, which is the transfer of ownership of the shares in question. Despite this, the arbitral awards have proposed that although the nature of the D&G is incidental (since its very origin is common law), its relationship to the primary obligation is such that, in the first place, they could be understood as part the pre-contractual duty of information, a duty which derives from the principle of good faith (art. 871 Civil Code). Secondly, since the veracity of these can be a determining cause to execute the contract, the D&G have a privileged role in the contract which cannot be covered by considering them as auxiliaries. Their importance is such, for the two reasons mentioned above, that arbitral awards have positioned them as part of the consent requirement in the contract. 12

To reach the above conclusion, it is important to remember that according to Colombian law, when signing any contract, the parties must have: legal capacity, consent free from defects, and the contract must be based on a lawful object and cause. Taking this into account, the arbitral justice developed the argument set out in the previous paragraph, saying that the D&G’s lie cannot only lead to the claim of the agreed indemnities, but it can also lead to the relative nullity of the contract, since they would represent a defect in the consent. 13

The defects of the consent, in turn, can be due to force, fraud or error, in this case the defect of the consent would be due to an error in the quality of the asset (error in the quality of the cosa).

Finally, although the declaration of relative nullity of the contract due to falsity of the D&G is an additional possibility to the request for indemnities, or to the exercise of the action redhibitoria, this claim must first be asserted by one of the parties in accordance with article 1743 of the Civil Code. Thus, it is important that the interested buyer or his lawyer remember this arbitration award when resolving any dispute in a litigious manner, since it is not an alternative that the judge can exercise. ex officio.

conclusion

From all that is said in this article, it must be concluded that even if the SPAs are drafted with the same legal figures as those used in common law, this does not mean that they will have the same effects. Therefore, it is important that the parties ensure that the contracts are drafted in a manner consistent with Colombian law, so that in the event of a violation of the agreement by one of the parties, an ordinary judge or arbitrator will grant the effects which the parties intended. These effects are not always peaceful and there are differences between ordinary jurisdiction and arbitration jurisdiction, for which correct legal advice is of vital importance when entering a SPA in Colombia.

Bibliography

  • Arbitral award of Balclin Investmets sl, Altra Inversiones SAS and others against Jairo Gutiérrez Robayo, Jimena Gross Mejía and others. Judgment of September 14, 2011. Referees: Ernesto Rengifo García, Jorge Cubides Camacho and Carlos Gustavo Arrieta Padilla.
  • Congress of the Republic of Colombia. Civil Code. Law 84 of 1873. Official Journal No. 2,867 of May 31, 1873
  • Gomez Estrada, Caesar. Main civil contracts. Fourth edition. Colombia: Editorial Temis SA, 2008. ISBN: 978-958-35-0656-7
  • President of the Republic of Colombia. Trade code. Decree 410 of 1971. Official Journal No. 33 339 of June 16, 1971
  • Supreme Court of Justice of Colombia. Civil Cassation Chamber. Judgment of December 16, 2013. Reporting Judge: Ariel Salazar Ramírez. File No. 248433
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Roz Boynton: A defense of automatism has no place in civil law https://prosecutebushcheney.org/roz-boynton-a-defense-of-automatism-has-no-place-in-civil-law/ https://prosecutebushcheney.org/roz-boynton-a-defense-of-automatism-has-no-place-in-civil-law/#respond Tue, 02 Nov 2021 13:23:40 +0000 https://prosecutebushcheney.org/roz-boynton-a-defense-of-automatism-has-no-place-in-civil-law/ [ad_1] Roz Boynton: A defense of automatism has no place in civil law Posted November 2, 2021 Roz boynton Shockwaves reverberated through the cycling community recently when a jury handed down an ‘unproven’ verdict against car driver Jordan McDowall following a trial in Glasgow High Court. The 21-year-old was acquitted of causing the death of […]]]>


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Roz Boynton: A defense of automatism has no place in civil law



Roz boynton

Shockwaves reverberated through the cycling community recently when a jury handed down an ‘unproven’ verdict against car driver Jordan McDowall following a trial in Glasgow High Court.

The 21-year-old was acquitted of causing the death of 51-year-old cyclist Kevin Gilchrist by reckless driving. Mr Gilchrist, husband and father of three, was killed in 2018.

Jordan McDowall pleaded not guilty to causing death by dangerous driving, saying she had no recollection of the incident and that there was a gap in her memory.

Many in the Scottish cycling community have questioned whether the jury’s decision means you can get away with anything just by saying you don’t remember the incident. This was not a case where the driver claimed she was suffering from a new or sudden medical condition that she was not aware of before – she said she just couldn’t remember of what had happened and explained that there was a “space” in his memory.

Colin Allanach, President of Scottish Cycling Grampian and Grampian Cycle Partnership, said: “Is the season open to cyclists now?” and, as a cyclist myself, it’s hard not to agree with him.

While the ruling is controversial, the legal defense behind it may be even more so and has not been widely reported in coverage of the case. In criminal law, to be convicted of most crimes, it must be shown that you have criminal intent – either through malice or recklessness. However, if it can be shown that the accused was not in control of his actions through no fault of his own and has no knowledge of the incident, then a defense of automatism will be invoked and may be sufficient to obtain the acquittal.

Automatism is one of the six Special Crime Defenses in Scotland (along with Self Defense, Necessity, Alibi, Criminalization and Insanity). Automatism is when someone unwittingly loses control of their body through no fault of their own. For example, if a driver with no medical history, suddenly and without warning, suffers an unexpected epileptic seizure while driving and kills or injures another road user, he could use the automatism defense against criminal charges.

While automatism is a defense to criminal charges, what is its place in civil law? Is it fair and just that it can also be used as a full defense in civil cases, thus refusing to compensate those injured or bereaved by a driver who had no control over his actions at the time of the collision?

In civil damages cases, the onus is on the injured party to establish negligence. There can be no negligence if a driver’s action is unintentional. This means that compensation can be denied to injured parties through no fault of their own. Take the same example above, where the driver who suffers from an unexpected epileptic seizure causes a young woman’s life-changing injuries, meaning she will suffer her entire life and never work again. The driver is fully insured and yet, despite a valid insurance policy, the young woman cannot recover compensation for her injuries and losses.

When automatism is invoked in a civil case, it is up to the defender, often an insurer, to establish that his policyholder was not in control of his actions. Careful investigation of these cases can defeat the defense of automatism often by reviewing medical records and a detailed investigation of a driver’s general health in the days leading up to the collision. However, I would say that in a legal system where there is already compulsory insurance for drivers, the defense of automatism should be removed for civil cases, to allow those injured through no fault of their own to obtain compensation for their injuries and tragically, as was the case with Kevin Gilchrist’s family, the loss of loved ones.

Roz Boynton is a partner at Road Traffic Accident Law (Scotland) LLP

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The Opportunities and Challenges of Applying Common Law Principles to a Multicultural Nation – Family and Marriage https://prosecutebushcheney.org/the-opportunities-and-challenges-of-applying-common-law-principles-to-a-multicultural-nation-family-and-marriage/ https://prosecutebushcheney.org/the-opportunities-and-challenges-of-applying-common-law-principles-to-a-multicultural-nation-family-and-marriage/#respond Wed, 15 Sep 2021 12:39:48 +0000 https://prosecutebushcheney.org/the-opportunities-and-challenges-of-applying-common-law-principles-to-a-multicultural-nation-family-and-marriage/ [ad_1] Canada: The opportunities and challenges of applying common law principles to a multicultural nation September 15, 2021 Clark Wilson LLP To print this article, simply register or connect to Mondaq.com. The common law legal system builds on itself, with higher courts setting a precedent for lower courts and so on. As society evolves, so […]]]>


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Canada: The opportunities and challenges of applying common law principles to a multicultural nation

To print this article, simply register or connect to Mondaq.com.

The common law legal system builds on itself, with higher courts setting a precedent for lower courts and so on. As society evolves, so does the common law, but some traditional legal tests remain in place long after societal norms have advanced. This can cause problems when trying to apply traditional legal tests to modern society. A recent decision of the British Columbia Court of Appeal, Kaur vs. Singh 1, demonstrates the importance of the contextual application of traditional common law principles in a multicultural nation.

The appellant, Ms. Kaur, and the respondent, Mr. Singh, celebrated a civil marriage on February 6, 2019 so that the parties began to live together. Their plan was to delay the consummation of the marriage until after their traditional Gurdwara ceremony, in accordance with the Sikh religion. While living together, the relationship became difficult and the sanity of the parties declined. The relationship ended, and Kaur made an unchallenged request to have the civil marriage annulled for non-consummation. The lower court dismissed the petition, stating that the parties had failed the required legal test as they both agreed that there was no physical, physiological or psychological reason not to consummate the marriage.2. Ms. Kaur appealed.

The Court of Appeal: A Contextual Approach to Traditional Legal Principles

The Honorable Justice Grauer reviewed the nearly 80-year-old Supreme Court of Canada decision in Heil vs. Heil 3, which is still authoritative for the principle according to which, in order to obtain the cancellation for non-consumption, it is necessary to provide proof of some incapacity, “which is in certain cases a structural defect, but which can also result from a condition, with the effect of creating in the mind of the [individual] an aversion to the physical act of consumption “4. Contemporary jurisprudence has clarified that there must be a real incapacity which is not “a mere capricious refusal”5, and this incapacity may be the result of impotence or other disabilities that are physical, or of a psychological and emotional nature.

The Court concluded that the common law principles in Kaurrequired a contextual application to reflect the multicultural society in which we live. A sincere religious and cultural belief can be regarded as a psychological incapacity in accordance with the evolution of legal principles 6to justify the cancellation. The evidence established that the management of the relationship was based on the religious and cultural considerations of the parties. The Court found that “[t]The real aversion to consumption arose out of their religious beliefs, creating a real incapacity “7. The lower court did not sufficiently take into account that the parties’ agreement to abstain reflected an underlying aversion to consumption before completing the traditional Sikh Gurdwara ceremony – and that “[t]his belief pre-existed the interpersonal struggles between the parties “8.

Importantly, the Court advised any future party to present evidence of distinct cultural and religious norms where those norms may influence and impact the conduct of the parties. A diverse understanding of religion and respective practices can be helpful for a judge and educational for those who adjudicate similar cases afterwards.

Footnotes

1 Kaur v. Singh, 2021 BCCA 320 [Kair].
2 Same as 8.
3 Heil v. Heil, [1942] RCS 160 [Heil].
4 Ibid. p. 163.
5 Kaur, supra note 1 to 16.
6 See generally Jomha v. Jomaa, 2010 ABQB 135; Grewal v. Sohal, 2004 BCSC 1549.
7 Kaur, supra note 1 to 20.
8 Kaur, supra note 1 to 24.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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The opportunities and challenges of applying common law principles to a multicultural nation https://prosecutebushcheney.org/the-opportunities-and-challenges-of-applying-common-law-principles-to-a-multicultural-nation/ Mon, 13 Sep 2021 07:00:00 +0000 https://prosecutebushcheney.org/the-opportunities-and-challenges-of-applying-common-law-principles-to-a-multicultural-nation/ [ad_1] The common law legal system builds on itself, with higher courts setting a precedent for lower courts and so on. As society evolves, so does the common law, but some traditional legal tests remain in place long after societal norms have advanced. This can cause problems when trying to apply traditional legal tests to […]]]>


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The common law legal system builds on itself, with higher courts setting a precedent for lower courts and so on. As society evolves, so does the common law, but some traditional legal tests remain in place long after societal norms have advanced. This can cause problems when trying to apply traditional legal tests to modern society. A recent decision of the British Columbia Court of Appeal, Kaur vs. Singh [1], demonstrates the importance of the contextual application of traditional common law principles in a multicultural nation.

The appellant, Ms. Kaur, and the respondent, Mr. Singh, celebrated their civil marriage on February 6, 2019 so that the parties began to live together. Their plan was to delay the consummation of the marriage until after their traditional Gurdwara ceremony, in accordance with the Sikh religion. Living together, the relationship became difficult and the sanity of the parties declined. The relationship ended, and Kaur made an unchallenged request to have the civil marriage annulled for non-consummation. The lower court dismissed the petition, stating that the parties had failed the required legal test as they both agreed that there was no physical, physiological or psychological reason not to consummate the marriage. [2]. Ms. Kaur appealed.

The Court of Appeal: A Contextual Approach to Traditional Legal Principles

The Honorable Justice Grauer reviewed the nearly 80-year-old Supreme Court of Canada decision in Heil vs. Heil [3], which is still authoritative for the principle according to which, to obtain the cancellation for non-consumption, it is necessary to provide proof of some incapacity, “which in certain cases is a structural defect, but which can also result from mental incapacity. condition, with the effect of creating in the mind of the [individual] an aversion to the physical act of consumption ” [4]. Contemporary jurisprudence has clarified that there must be a real incapacity which is not “a simple capricious refusal” [5], and this incapacity may be the result of impotence or other disabilities that are physical, or of a psychological and emotional nature.

The Court found the principles of common law in Kaur required a contextual application to reflect the multicultural society in which we live. A sincere religious and cultural belief can be regarded as a psychological incapacity in accordance with the evolution of legal principles [6] to justify the cancellation. The evidence established that the management of the relationship was based on the religious and cultural considerations of the parties. The Court concluded that “[t]The real aversion to consumption arose out of their religious beliefs, creating a real incapacity ” [7]. The lower court did not sufficiently take into account that the parties’ agreement to abstain reflected an underlying aversion to consumption before completing the traditional Sikh Gurdwara ceremony – and that “[t]his belief pre-existed the interpersonal struggles between the parties ” [8].

Importantly, the Court advised any future party to present evidence of distinct cultural and religious norms where those norms may influence and impact the conduct of the parties. A diverse understanding of religion and respective practices can be helpful for a judge and educational for those who adjudicate similar cases afterwards.

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Austria: Civil Law Aspects of Selling a Token – A Random Selection https://prosecutebushcheney.org/austria-civil-law-aspects-of-selling-a-token-a-random-selection/ https://prosecutebushcheney.org/austria-civil-law-aspects-of-selling-a-token-a-random-selection/#respond Wed, 02 Jun 2021 07:00:00 +0000 https://prosecutebushcheney.org/austria-civil-law-aspects-of-selling-a-token-a-random-selection/ [ad_1] If you follow our NFT Self-Experience, you already know what an NFT is and what it stands for. If not, you might want to know more. The following article deals with a first random choice in civil law, contractual aspects to be precise, which the authors say are worth considering before buying (or selling) […]]]>


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If you follow our NFT Self-Experience, you already know what an NFT is and what it stands for. If not, you might want to know more. The following article deals with a first random choice in civil law, contractual aspects to be precise, which the authors say are worth considering before buying (or selling) your first NFT. However, given the novelty of the underlying technology, there is room for dissenting opinions.

1. Random subject 1: Which law applies?

If a potential NFT collector delves deep into the world of NFTs, they will hardly ever stick to their home territory. NFTs are generally traded on online platforms. Buyers and sellers are often from different countries. Payment may even be required in cryptocurrency rather than in a state currency. Thus, the agreement that is about to be concluded when purchasing a TVN is “international”. In a preliminary step, the applicable law should be assessed.

General rules

Private international law deals with the question of which national legal system is to be applied to an international dispute. The purpose of conflict of law rules is clear: in disputes with a “foreign connection”, a judge is not allowed to choose discretionary principles to decide that issue but must apply the laws of a specific legal system. To add to the complexity, a distinction must be made between the laws of obligations (Schundrecht) and property law (Sächenrecht) aspects of the case.

In Austria, this question is mainly answered either by the EU “Rome I” regulation or by the Austrian law on private international law (“IPRG”). In terms of the laws of obligations (Schundrecht), the application of these rules (most likely) leads to the law of the country where the seller resides (for purchase contracts) or the service provider (for service contracts).

In real estate law (Sächenrecht), the general catch-all1 of the IPRG applies. According to her, the “closest relation to the case” decides the question of which law is applicable. In practice, this assessment is naturally quite difficult, especially given the decentralized design of the blockchain.

The good news is that sometimes there is an easy way out, because instead of these complex rules, the parties are also free to agree on the applicability of a specific law. Such a choice of law clause is frequently included in the general conditions (GTC). However, this freedom to choose the law finds its limits in the field of consumer protection.2 If a consumer concludes the contract, any national provision of his country of residence favoring the consumer prevails over any “chosen” provision provided that the entrepreneur (i) carries out his professional or commercial activity in the state where the consumer has his residence usual; or (ii) directs such activity in any way to that State or to more than one State, including that State, and the contract falls within the scope of that activity.

In summary, a choice of law seems useful when it comes to NFT transfers. Before any transaction, it should be carefully checked whether and which T & Cs are concluded and what these T & Cs say about applicable law.

2. Random topic 2: Speaking of consumer protection…

2.1. … What agreement is reached?

In addition to the above, the specific provisions of the Austrian Distance Selling Act (Fern- und Auswärtsgeschäfte-Gesetz) could apply. The Distance Selling Act (and the underlying European Directive, Directive 2011/83 / EU) regulates certain aspects of distance, off-premises and on-site agreements between consumers and merchants. Distance selling seems obvious. In accordance with the legal opinion in force, the Distance Selling Act covers purchase contracts (Kaufverträge), exchange agreements (Tauschverträge) and service contracts (Dienstleistungsverträge). Thus, if a merchant sells an NFT to a consumer, the Distance Selling Act will apply whether the payment is made in cryptocurrency (which would indicate the conclusion of an exchange agreement) or in fiat currency ( which would indicate the conclusion of a purchase contract). One could even argue that the agreement reached is a service agreement, since the NFT is not really transferred but only the attribution of ownership is changed by adding a new bulk transaction to the blockchain. A service contract within the meaning of the Distance Selling Act is defined as “any contract other than a purchase contract under which the trader provides or undertakes to provide a service to the consumer and the consumer pays or undertakes to pay the price thereofThe questionable NFT vendor undertakes to provide the service to “trigger” the change of ownership in the blockchain. The consumer pays the price.

2.2. … How to manage the rights of withdrawal?

The law on distance selling aims to ensure the transparency of information, in particular pre-contractual information, which will be provided to consumers. When selling NFT, the seller is advised to recheck these transparency obligations. The Distance Selling Act also guarantees consumers’ right of withdrawal. This topic requires special attention, because once an NFT is sold, the attribution of the NFT to the buyer is recorded in the blockchain. Since the blockchain is designed to be irreversible, opt-out rights can pose some problems (although there are workaround options).

In general, under distance selling law, a consumer usually has the right to withdraw from a distance or off-premises contract without giving a reason within (at least) 14 days. However, the right of withdrawal has certain limits. With regard to an NFT purchase, two exceptions could potentially be invoked:

  • there is no right of withdrawal under the Distance Selling Act with regard to “the supply of goods or services whose price depends on fluctuations in the financial market which cannot be controlled by the trader and which may occur within the withdrawal period“; and
  • there is also no right of withdrawal under the Distance Selling Act with regard to “the supply of digital content which is not supplied on a tangible medium if the performance has started with the express prior consent of the consumer and his recognition that he thus loses his right of withdrawal“.

Let us look at the first exception: the consumer has no right of withdrawal in distance contracts for goods or services whose price depends on fluctuations in the financial market beyond the control of the trader and which may occur during the period of withdrawal. At first glance, this exception seems appropriate, as NFTs are traded and there is some market fluctuation beyond the control of the trader.

However, it is worth taking a closer look at the term “goods“before jumping to a conclusion: goods are not defined in distance selling law, but in the underlying EU directive as”any tangible personal property […]“with the exception of goods sold under execution or other legal measures. Water, gas and electricity are also considered as goods within the meaning of the directive if they are offered for sale in a volume limited or in a certain quantity.

Since a TVN is not a piece of furniture tangible thing, but rather a intangible thing, one could try to argue to exclude the consumer’s right of withdrawal by analogy to invest in gold, precious metals or energy. Alternatively, the aforementioned qualification of the agreement as a service agreement could be reconsidered. Regarding the agreement of the “volatile” NFT as a service contract would exclude the right of withdrawal of the consumer. This conclusion could be supported by teleological considerations. The aim and purpose of the specific provision of the Distance Selling Law (Article 18 [2] [2] Distance Selling Law, art. 16 [b] Directive 2011/83 / EU) aims to prevent the right of withdrawal from being misused as an instrument of speculation in the market.

The Distance Selling Act contains a second exception which could apply: according to Article 18 (1) (11), the consumer does not have the right to withdraw from distance contracts for “the supply of digital content which is not supplied on a tangible medium if the performance has started with the express prior consent of the consumer and his recognition that he thus loses his right of withdrawal.“Compared to exception n ° (i), this provision has considerable drawbacks for the seller, since it does not exclude the possibility of withdrawal ex ante, but only from the start of contract performance / delivery. In addition, the right of withdrawal is only excluded if the trader fulfills certain strict conditions: (i) express prior consent of the consumer; (ii) the consumer’s knowledge of the loss of the right of withdrawal; (iii) the trader has started the delivery before the expiry of the withdrawal period; and (iv) providing a copy or confirmation of the concluded agreement (in accordance with Article 7 (3) of the Distance Selling Law). Simply put, relying on this exception carries the risk that consumers may be able to assert their right of withdrawal provided the trader does not meet one of these requirements.

3. Conclusion

As these examples have shown, transactions must be analyzed in their “new” technological but “classic” legal contexts. This process of analysis is the lawyer’s playground.

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Hidden risks for common-law couples in Texas https://prosecutebushcheney.org/hidden-risks-for-common-law-couples-in-texas/ https://prosecutebushcheney.org/hidden-risks-for-common-law-couples-in-texas/#respond Mon, 24 May 2021 07:00:00 +0000 https://prosecutebushcheney.org/hidden-risks-for-common-law-couples-in-texas/ [ad_1] Many Texas couples, especially Millennials and older couples, choose a life partner while skipping the wedding ceremony. The reasons vary, but include a desire to save money, avoid family conflict or religious pressure, or sidestep the crippling prospect of future divorce. In doing so, they trade a well-known set of risks for an entirely […]]]>


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Many Texas couples, especially Millennials and older couples, choose a life partner while skipping the wedding ceremony. The reasons vary, but include a desire to save money, avoid family conflict or religious pressure, or sidestep the crippling prospect of future divorce.

In doing so, they trade a well-known set of risks for an entirely different, lesser-known, but equally difficult set of potential problems. Basically, the nature and extent of their property rights at the end of the relationship will depend on whether a marriage exists or not.

Texas has recognized informal or “common law” marriages since the mid-1800s. This recognition has now been extended to same-sex couples, following the 2015 United States Supreme Court ruling in Obergefell vs. Hodges. Therefore, states that recognize de facto marriages must also recognize informal same-sex marriages.

The elements of an informal marriage include (i) a marriage agreement; (ii) cohabitation as spouses; and (iii) representation to others, or “keep out”, as spouses (Tex. Fam. Code Ann. §2.401). These three elements must coexist simultaneously to establish a valid informal marriage. Once established, an informal marriage is considered as valid as a ceremonial marriage, with all the same rights, duties and privileges.

In the event of divorce, Texas law rebuttably presumes that both spouses are entitled to a “just and right” division of the property acquired during the marriage, regardless of who paid for it or on whose behalf the asset is made. or titled (Tex. Fam. Code Ann §7.001). Alternative legal theories for the division of property are much less generous than the “fair and just” standard set out in the Family Code. For this reason, at the end of the relationship, the existence or non-existence of an informal marriage is frequently and fiercely contested, and the burden of proof rests solely on the promoter of the marriage. An unfavorable result can lead to severe or even drastic results.

For example, in high conflict cases, it is not uncommon for one partner to unilaterally lock the other out of the house with little or no notice. The remedies are clear and simple in the context of a divorce. Yet, in the absence of a provable marriage, the evicted party might be required to demonstrate that they have a legal right to remain in the home under another legal theory. These theories include illegal foreclosure, retaliation, constructive expulsion, partition, and trespassing to try the title. The problem with these options is that the mover must establish that there is a property right or that there is a landlord-tenant relationship. If the mover’s name does not appear on the deed or rental agreement, proving either basis can be just as difficult as proving the existence of an informal marriage.

Another risk comes in the form of pension plans. Pensions, 401 (k); IRA; 403 (b); pension plans for teachers, the military and the federal government; stock options; and RSUs are governed by very specific laws that take little account of what Texas law considers a meritorious relationship. (Texas case law defines a meritorious relationship as a cohabitation sexual relationship between two unmarried individuals. See Faglie v. Williams, 569 SW2d 557, 566 (Tex.App. — Austin 1978, short ref.)). Although most federally and state regulated plans allow the plan member to designate another beneficiary without declaring the person as a spouse, they are not necessarily required to do so. Private plans also vary in their requirements. In the absence of an affirmative designation, the alternate beneficiary could find itself without a pension following an unfavorable decision on the issue of informal marriage.

When it comes to other assets, such as cars, bank accounts, art collections, and other types of personal property, the analysis can quickly become granular. Without the benefit of Texas community property laws, the court could first examine title documents, receipts, and other documents to identify the legal owner of each asset. Beyond that, the spouse without property might be forced to pursue even more obscure theories to prove ownership, such as the existence of a partnership, constructive trust, or collection under quantum meruit. ..

The dissolution of an informal marriage through the legal system presents a number of hidden risks for the divorcing couple. However, there are several advanced risk mitigation strategies for couples. They could sign a written declaration of marriage at any time and register it as provided by §§2.402 and 2.404 of the Texas Family Code. Another option is to enter into a written agreement before marriage or after marriage in accordance with the requirements of Chapter 4 of the Texas Family Code, presumably while the relationship is still healthy. But perhaps the best advice we can offer our clients is to take the trip down the aisle after all.

Curtis harrison is a board-certified family lawyer and partner of the law firm GoransonBain Ausley. For the past 27 years, he has worked to help people going through divorce resolve their family law conflict in the least destructive way possible under the circumstances.

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Brexit ‘will renew the vigor’ of common law legacy, Supreme Court justice says | New https://prosecutebushcheney.org/brexit-will-renew-the-vigor-of-common-law-legacy-supreme-court-justice-says-new/ https://prosecutebushcheney.org/brexit-will-renew-the-vigor-of-common-law-legacy-supreme-court-justice-says-new/#respond Tue, 20 Apr 2021 07:00:00 +0000 https://prosecutebushcheney.org/brexit-will-renew-the-vigor-of-common-law-legacy-supreme-court-justice-says-new/ [ad_1] Brexit could strengthen the UK’s relationship with common law jurisdictions such as New Zealand and Canada, as the legal system diverges from that of Europe, a Supreme Court justice has said. Speaking at a virtual conference attended by senior New Zealand court judges, Lord Sales said the UK’s departure from the European Union “could […]]]>


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Brexit could strengthen the UK’s relationship with common law jurisdictions such as New Zealand and Canada, as the legal system diverges from that of Europe, a Supreme Court justice has said.

Speaking at a virtual conference attended by senior New Zealand court judges, Lord Sales said the UK’s departure from the European Union “could have distinct and positive implications for our relationship with other common law jurisdictions “.

“The starting point is that the UK already has a strong relationship with the rest of the common law world. Our common legal heritage means that our courts frequently refer to each other’s case law when considering how to approach similar issues in our own jurisdiction, ”said Lord Sales.

He added that the “strong relationship” will not be weakened by Brexit. “There is good reason to believe that these links could in fact be strengthened. It has been suggested that UK courts may now increasingly prefer to resort to our non-European rather than European counterparts, as we have retained our legal similarities with these jurisdictions. ‘

Sales said commentators have already started to identify particular common law doctrines that may regain prominence in the UK legal body, including the trade restriction common law doctrine. “In the years to come, we may well see UK law evolve differently from our European counterparts and in so doing find renewed vigor and inspiration in our common law heritage,” he said.

The UK has opposed the EU over a key legal treaty, having formally left the EU on January 31, 2020. The European Commission reportedly opposes UK accession to the Convention of Lugano 2007, which facilitates judicial cooperation across Europe.

The convention is an international agreement on which the courts of the country can hear cross-border civil or commercial disputes and what decisions can be enforced. The deal is particularly important for individuals and small businesses who would otherwise find it difficult to enforce their rights.

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Can a Vancouver Restaurant Use Common Law to Avoid Legal Consequences? https://prosecutebushcheney.org/can-a-vancouver-restaurant-use-common-law-to-avoid-legal-consequences/ https://prosecutebushcheney.org/can-a-vancouver-restaurant-use-common-law-to-avoid-legal-consequences/#respond Tue, 06 Apr 2021 07:00:00 +0000 https://prosecutebushcheney.org/can-a-vancouver-restaurant-use-common-law-to-avoid-legal-consequences/ [ad_1] $ 100,000 fine for trespassing? A “common law” jurisdiction? A Vancouver restaurant can put up whatever posters it wants: it’s still bound by the terms of licenses, contracts, leases and, yes … public health orders. The owner of Kitsilano’s Corduroy Restaurant recently made waves for its selfish decision to continue eating indoors, despite health […]]]>


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$ 100,000 fine for trespassing? A “common law” jurisdiction? A Vancouver restaurant can put up whatever posters it wants: it’s still bound by the terms of licenses, contracts, leases and, yes … public health orders.

The owner of Kitsilano’s Corduroy Restaurant recently made waves for its selfish decision to continue eating indoors, despite health orders in British Columbia. When health officials attempted to enforce the orders, she persisted in arranging in-person meals at the restaurant.

When health officials closed the restaurant, she continued to serve restaurant customers.

Things came to a head this weekend, when the owner and her customers were caught on camera harassing health officials, yelling at them to get out of the restaurant. The city of Vancouver has since suspended the restaurant’s business license.

Amid it all, owner Rebecca Matthews posted (now private) Instagram posts justifying her decision to stay open, including a post in which she claimed that “we cannot continue to protect some lives by destroying some lives. ‘others”. While such a view is embarrassing in itself, what is more embarrassing seems to be the root of her decision to defy orders.

What is the “common law” or “free man” argument?

A photo recently posted on Reddit shows the restaurant’s front door, covered with signs indicating that the restaurant is a “common law jurisdiction” and that fines will be imposed, starting from $ 100,000 against any health official who attempts to enforce the orders closing.

But what does this mean exactly?

The official legal answer is “nothing”. What the signs on Corduroy’s gates refer to is a type of pseudo-legal argument that has been raised in various contexts, by individuals attempting to avoid various legal sanctions imposed by the government.

You may have heard of this argument in its other forms – “free man of the earth” or the “natural person” argument. The crux of the argument is that individuals are governed only by free will, and unless they enter into a binding contract with the state – which they have not done – then they cannot. be ruled by state authority over them. The argument was made to fight against taxes or tickets.

The courts have unilaterally rejected the plausibility of these arguments. The most frequently cited case on this subject is Meads v. Meads, an Alberta divorce case in which Mr. Meads attempted to advance what the court called a “pseudo-legal organized business case.” the names used by – is it fair to say nut-eared? – advancing them have changed.

Supporters of arguments change the names but not the substance of the way arguments are concocted. And the way it’s been done is smart.

“You keep using that word. I don’t think it means what you think it means.”

If you read these arguments without legal training, you might be persuaded to believe they contain some truth. For example, arguments often refer to very old laws such as the British North America Act or the principles of admiralty law as the source of the legal conclusion. The arguments themselves draw on real language used by lawyers and in courts all the time.

The notices posted on the doors of Corduroy refer to the restaurant being under common law jurisdiction. Without reading anything that follows, it is technically true. British Columbia is a common law jurisdiction. But, to quote Inigo Montoya, “You keep using that word. I don’t think it means what you think it means. Common law jurisdiction does not refer to a person’s right to make their own rules and to live by the rules they want. Rather, it refers to a legal system governed by laws as interpreted by the courts. Judges set a precedent, which creates and shapes the law.

But the power in a common law jurisdiction rests with the judges. And British Columbia judges have consistently rejected the idea that health orders designed to protect against COVIDThe -19 pandemic goes too far.

Even in a common law jurisdiction, the government still has the power. Laws are drafted and interpreted by the courts, which determine the government’s intentions when drafting the law. But the government still retains the power to write rules and to some extent tie the hands of judges with those rules.

Nothing in the legal sense of the term “ordinary jurisdiction” implies that Corduroy can exempt himself from complying with public health orders, bringing in health officials, or entering without permission.

Are Vancouver Coastal Health inspectors “infringing” on the enforcement of an order? No.

The trespassing signs, which are recommended notices in the pseudo-legal babbling manual, have their roots in the British Columbia Trespass Act, which itself contains a trespass ban section. The Act provides remedies for victims of trespassing who post such notices on their properties.

So if you were to search for it, you might see that it is connected to something that feels real. That’s the thing with these arguments. They’re just close enough to the real law that it’s easy to be fooled.

Even trespassing itself is a loaded term. Trespassing in common law jurisdiction refers to a tort. It is a wrongful civil act to enter another person’s property without the right to do so. Health officials are permitted to enter restaurant premises and indeed any premises to enforce public health orders. And, of course, the trespassing law states that it does not apply to people who enter a premises with legal authority.

Oh, and the $ 100,000 fine for trespassing on restaurant property? Well, these fines cannot be imposed by an individual. In a civil action for trespassing, the court would determine the amount of financial compensation, which would be limited to the damage suffered by the trespass. It would be exactly $ 0 in a case like this given that no intrusion has or can occur.

The “rights” you waive when you own a business

But even entertaining for a moment (can’t believe I’m doing this) the idea that Ms. Matthews needed to contract with the state in order to give up her rights… she did.

By applying for a business license, it entered into a contract with the city of Vancouver. By applying to become a catering establishment, she entered into a contract with the health authority that included the power to inspect and enforce health ordinances. By applying for a GST and the PST number, it has contracted with the provincial and federal governments to collect and pay taxes. Ditto for the liquor license. And the lease, assuming she doesn’t own the property, likely contains standard terms regarding illegal activities.

If her position is that a contract cannot be unilaterally imposed on her by the state, then she cannot unilaterally cancel all the contracts she entered into when starting the restaurant. Even assuming that his arguments posted on the door have some legal merit, which they don’t, they are not applicable in his case.


Kyla Lee is a Vancouver-based criminal lawyer

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The return of common law is the key to the success of the City, not the EU code https://prosecutebushcheney.org/the-return-of-common-law-is-the-key-to-the-success-of-the-city-not-the-eu-code/ https://prosecutebushcheney.org/the-return-of-common-law-is-the-key-to-the-success-of-the-city-not-the-eu-code/#respond Thu, 25 Feb 2021 08:00:00 +0000 https://prosecutebushcheney.org/the-return-of-common-law-is-the-key-to-the-success-of-the-city-not-the-eu-code/ [ad_1] As it seeks to capitalize on Brexit, the UK should shed the legacy of the EU’s codified legal system and fully restore its own common law. This will bring many opportunities to the city and the millions of people benefiting from the financial services industry across the country. Not only does the common law […]]]>


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As it seeks to capitalize on Brexit, the UK should shed the legacy of the EU’s codified legal system and fully restore its own common law. This will bring many opportunities to the city and the millions of people benefiting from the financial services industry across the country.

Not only does the common law underpin the world’s most successful financial centers – London, New York, Singapore and Hong Kong – but the evidence shows the superiority of the common law for economic growth. Financial centers that set up in the Middle East and elsewhere adopt common law.

The common law values ​​individual and commercial liberty. It relies on independent judges and evolves with change, and it does not have a single, omniscient creator. This allows it to focus on appropriate remedies and responsibilities, and on limited restrictions when these are needed.

In contrast, EU law has largely developed on the continental model, based on the civil law approach and developed using the French-German coded systems of the 19th century. These aim to provide answers in advance to any problem. The code is likely to set out both rights and restrictions, putting them in tension with each other. The scheme is designed for control.

Why restore common law?

EU law has bound UK financial services firms under a cumbersome code. The law froze, requiring constant attempts to update and upgrade the code and its operating system. The method contradicts the UK approach.

Bringing the common law approach back to life means removing unnecessary provisions in EU law – of which there are many – and reformulating those that remain in the clear and predictable sense of the common law.

It is also encouraging and adopting more case law, since this is how the common law offers the greatest certainty. Businesses should be encouraged to take legal action against regulators in court.

Reforming the Small Claims System

We should also address the current approach of allowing the financial ombudsman to deal with small claims. He is given the ability to ignore the law and simply strive for fairness, in an effort to settle disputes on the cheap. But this is detrimental to the development of the law and the financial market, because the clarity of properly reasoned court decisions is lost.

It is fair to have a cheaper form of small claims justice. However, the legal system needs to be fully deployed and we should use junior judges for these claims. There must also be judicial review for any remaining claims for the ombudsman, to ensure that legal principles are broadly observed.

In addition, UK regulators may need to change direction. Under the EU, they operated a system mixing continental law with ours, forced to interpret detailed EU rules and judge whether they were broken. A single example, MiFID2, contains 1.7 million provisions.

In addition, they often relied on their own rules called “principles”, introduced to avoid even more rules. This approach leads to a double uncertainty: that of the codified system of the EU and the additional layer of uncertainty of the regulator.

More certainty

The brilliance of the common law is that, while offering flexibility, it brings predictability and certainty. The way to do this is to ensure that the regulators operate with careful checks and balances. Regulatory powers and objectives should be carefully defined. Judicial review can be facilitated, allowing courts to apply their rigorous approach and ensure that regulators are subject to legal oversight.

There is also a need for greater parliamentary oversight of regulators. The select Treasury committee could fulfill this function through a new sub-committee which can rely on a panel of experts. This body could review the exercise by regulators of their regulatory and supervisory powers.

In addition, processes should be considered whereby Parliament can veto proposed new regulatory rules.

By restoring UK law, reforming regulations and removing burdens from the EU’s codified system, the UK financial sector and its businesses across the country will be free to rediscover all the benefits of freedom and prosperity that She bring.

Barnabas Reynolds is a partner at Shearman & Sterling and author of Restoring UK Law: Freeing the UK’s Global Financial Market

Read more: Andrew Bailey pledges to fight against Brussels’ takeover of the City

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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/ [ad_1] 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 […]]]>


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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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