The author undertakes a comparative legal analysis of the approaches to transparency in regulating unfair contract terms in the UK and Australia. Specifically, the author examines how transparency is used to legitimize potentially unfair terms in consumer contracts in both jurisdictions. The author finds that while the law has developed differently in the UK and Australia over time, both countries currently have some uncertainty around whether transparency alone can legitimize substantively unfair terms. The author takes a prescriptive approach, arguing legislators should provide clearer guidance on the issue based on approaches in other jurisdictions like the EU. The overall goal of the research is to assess the role of transparency and argue for improvements to unfair terms laws in the UK and Australia.
On Analyzing and Developing Data Contracts in Cloud-based Data MarketplacesHong-Linh Truong
Currently, rich and diverse data types have been
increasingly provided using the Data-as-a-Service (DaaS) model,
a form of cloud computing services. However, data offered by
DaaS are constrained by several data concerns that, if not
automatically being reasoned properly, will lead to a wrong way
of using them. In this paper, we support the assumption that
data concerns should be explicitly modeled and specified in data
contracts to support concern-aware data selection and utilization.
Instead of relying on a specific definition of data contracts, we
analyze contemporary data contracts and we present an abstract
model for data contracts. Based on the abstract model, we
propose several techniques for evaluating data contracts that
can be integrated into data service selection and composition
frameworks. We also illustrate our approach with some realworld
scenarios.
E commerce developments and use of social mediaRob Blamires
The document summarizes key issues around e-commerce, social media, and regulation. It discusses the revised EU Consumer Rights Directive, bans on debit/credit card surcharges, and plans for a Common European Sales Law. Regarding social media, it covers issues like content ownership, platforms' rights to user content and data, prohibitions against stealth advertising, and considerations for employee social media usage policies. Checklists are also provided around social media campaigns, contracting with platforms, and employee social media policies.
This document summarizes key regulations regarding distance selling and doorstep selling contracts. It outlines regulations requiring sellers to provide customers information before and after concluding contracts. It describes customers' rights to cancel contracts within cooling off periods and sellers' obligations to reimburse customers upon cancellation. The summary also notes exceptions and enforcement measures available under the regulations.
This document provides information about Warrantywise, a used car warranty company in the UK. It begins by stating that Warrantywise aims to design the best used car warranty without "weasel words". It then provides contact information and lists Quentin Willson as having helped design the warranty.
The summary highlights that the warranty covers repairs for mechanical and electrical parts, can be used at any VAT-registered garage, and includes car hire and European coverage. It also notes there are no excess fees or exclusions for normal wear and tear.
In 3 sentences or less, it introduces Warrantywise as a used car warranty provider in the UK, discusses some key coverage details like repairing mechanical and electrical parts at any
An Analytical Framework For Empirical Research On Access To JusticeAngie Miller
This document presents an analytical framework for empirical research on access to justice. It begins with defining access to justice and proposing a process-oriented definition that focuses on poor and disadvantaged justice seekers. It then explains the ROLAX (Rule of Law and Access to Justice) framework, which maps the steps a potential justice seeker takes through the legal system or reasons for dropping out. Finally, it discusses using a rule of law analysis to assess the quality of the available legal system in meeting the needs of justice seekers. The goal is to develop a methodology for researchers to evaluate access to justice and identify legal system reforms needed to increase access for the poor.
On Analyzing and Developing Data Contracts in Cloud-based Data MarketplacesHong-Linh Truong
Currently, rich and diverse data types have been
increasingly provided using the Data-as-a-Service (DaaS) model,
a form of cloud computing services. However, data offered by
DaaS are constrained by several data concerns that, if not
automatically being reasoned properly, will lead to a wrong way
of using them. In this paper, we support the assumption that
data concerns should be explicitly modeled and specified in data
contracts to support concern-aware data selection and utilization.
Instead of relying on a specific definition of data contracts, we
analyze contemporary data contracts and we present an abstract
model for data contracts. Based on the abstract model, we
propose several techniques for evaluating data contracts that
can be integrated into data service selection and composition
frameworks. We also illustrate our approach with some realworld
scenarios.
E commerce developments and use of social mediaRob Blamires
The document summarizes key issues around e-commerce, social media, and regulation. It discusses the revised EU Consumer Rights Directive, bans on debit/credit card surcharges, and plans for a Common European Sales Law. Regarding social media, it covers issues like content ownership, platforms' rights to user content and data, prohibitions against stealth advertising, and considerations for employee social media usage policies. Checklists are also provided around social media campaigns, contracting with platforms, and employee social media policies.
This document summarizes key regulations regarding distance selling and doorstep selling contracts. It outlines regulations requiring sellers to provide customers information before and after concluding contracts. It describes customers' rights to cancel contracts within cooling off periods and sellers' obligations to reimburse customers upon cancellation. The summary also notes exceptions and enforcement measures available under the regulations.
This document provides information about Warrantywise, a used car warranty company in the UK. It begins by stating that Warrantywise aims to design the best used car warranty without "weasel words". It then provides contact information and lists Quentin Willson as having helped design the warranty.
The summary highlights that the warranty covers repairs for mechanical and electrical parts, can be used at any VAT-registered garage, and includes car hire and European coverage. It also notes there are no excess fees or exclusions for normal wear and tear.
In 3 sentences or less, it introduces Warrantywise as a used car warranty provider in the UK, discusses some key coverage details like repairing mechanical and electrical parts at any
An Analytical Framework For Empirical Research On Access To JusticeAngie Miller
This document presents an analytical framework for empirical research on access to justice. It begins with defining access to justice and proposing a process-oriented definition that focuses on poor and disadvantaged justice seekers. It then explains the ROLAX (Rule of Law and Access to Justice) framework, which maps the steps a potential justice seeker takes through the legal system or reasons for dropping out. Finally, it discusses using a rule of law analysis to assess the quality of the available legal system in meeting the needs of justice seekers. The goal is to develop a methodology for researchers to evaluate access to justice and identify legal system reforms needed to increase access for the poor.
Analyzing shareholder protection and stockmarket development: an empirical te...Chenoy Ceil
The researchers wanted to empirically test the "legal origins hypothesis" proposed by La Porta et al. that common law countries have stronger shareholder protections leading to better stock market development. They analyzed changes in shareholder protection laws and stock markets in 20 countries from 1995-2005 using quantitative methods. The researchers concluded that legal origins did influence the development of shareholder protections, with common law systems initially stronger, but civil law systems were catching up. However, they found no link between increased shareholder protections and stock market growth in any system. This challenges La Porta et al.'s claims and contributes new empirical evidence to the literature on how laws and markets develop over time.
A New Solution Concerning Choice-Of-Law for the Assignment of Debts.pdfAmber Ford
This document discusses choice-of-law issues regarding the assignment of debts across borders. It explores existing challenges, including a lack of clear private international law rules, and analyzes efforts toward harmonization. Specifically, it examines the European Union's Rome I Regulation and proposed new regulations aimed at unifying choice-of-law approaches for international assignments within the EU. The document focuses on analyzing solutions to increase legal certainty for parties involved in cross-border debt assignments.
The document compares legal ethics between the United States and European Union. It finds that while client confidentiality and loyalty are important in both systems, there are key differences in how lawyers are regulated. The US follows a common law approach with more formal ethical rules while EU countries follow civil law with more general standards. The EU also allows for more liberal practices like multijurisdictional partnerships and non-lawyer ownership of law firms through reforms like the UK Legal Services Act. In contrast, US state-based licensing restricts multistate and multidisciplinary practice.
The document discusses comparative law and provides definitions and perspectives on what constitutes comparative law. It makes the following key points:
1. Comparative law involves the study and comparison of different legal systems and rules to identify similarities and differences, with the goal of better understanding legal systems and advancing legal knowledge.
2. Comparative law can involve macro-level comparisons of entire legal systems or micro-level comparisons of specific legal issues across systems. It also examines the historical development and interaction of legal systems.
3. The purposes of comparative law include promoting understanding of one's own legal system, fostering understanding between nations, and assisting in law reform and harmonization. It is an important tool for legal study, education and
Judges as Lawmakers: An Examination of the DichotomyIRJET Journal
This document examines the debate around whether judges can make laws. It discusses the traditional view that judges are merely interpreters of laws made by the legislature. However, the document notes there is a growing body of literature challenging this strict separation and advocating for a more active role for judges in shaping legal norms. The paper explores this debate in both historical and contemporary contexts. It also examines how this issue manifests in India's unique legal system, which blends common law traditions with statutory law. The document reviews influential perspectives from legal scholars on both sides of this debate and analyzes landmark cases that have expanded the role of courts in lawmaking.
Common law, equity and statute - limitations and analogiesHannah Vieira
This document discusses the ongoing distinction between common law and equity in legal systems. It makes two key points:
1) Maintaining the distinction between common law and equity is still meaningful, as there are fundamental differences in their methodologies and approaches that continue to inform legal analysis. Fully merging the two areas would require extensive law reform.
2) Common law and equity also differ in their relationship to statutes. Historically, common law saw itself as separate from statutes, while equity was more accepting of them. This difference between common law and equity's reactions to statutes is an important aspect worthy of further analysis.
This document provides an overview of comparative constitutional law methodology. It discusses key concepts like constitutionalism, levels of comparison, and the importance of theoretical frameworks. The author argues that comparative analysis requires understanding both the causal forces that influence legal systems as well as the motivations and agendas of political elites. Effective comparison examines a legal system's history, culture, economics and politics.
This document discusses jurisdiction in international law as it relates to regulating the internet and the EU's "right to be forgotten" ruling. It makes the following key points:
1) Jurisdiction in international law is traditionally based on a state's territory and sovereignty, but modern economic law has challenged this through the "effects doctrine."
2) The EU's "right to be forgotten" ruling in Google Spain concerned private litigation between individuals and corporations, falling under private international law.
3) Orders to extend compliance with the ruling to Google's global domains raise questions about the territorial reach of the ruling under public and private international law.
4) The document aims to clarify concepts of jurisdiction in public and private
Lord Sumption indexes relevance or Otherwise of
Limit
Knowledge of Which is Precondition re: and Requisite for
Management
Management according to Law
Legal Concourse
Legitimate Conduct
Current or Future - Past or Present
determinable by and with reference to
Currency - Communication - Currency of Communication and Communication of Currents - as may or may not be evidenced by or deployed - deployable or otherwise according to Marine Law - Maritime Regard and Observance of Seabord - basis of which indicates and is indicative of
Thalassocracy - Evidencing The Precedent of Trafalgar and the License of Those Who Provision and In regard of Whose
SEAT - Tenure - Tenet and Capacity - (The 4 Agreements)
Provision is Made - See: Legacy of Royal Exchange (Sir John Gresham) Gresham Institute and Gresham's LAW.
A journal which discusses the relationship of logic to law; gives reference to previous researches related and provides logical questions which can be a guide for further explorations.
Proclem and cencern in comparision of constitution gagan deep
Comparative constitutional law analyzes the differences between countries' constitutions. However, there are several challenges. First, it is difficult to identify "best practices" since concepts like freedom can have different meanings in different legal systems. Second, constitutions change over time through amendments or new interpretations of public opinion, making static comparisons incomplete. Third, precisely defining the subject is complex given the many diverse constitutions and levels of success.
This document provides an overview of what constitutes good quality legislation. It discusses how there is no universally agreed upon definition or metrics for measuring the quality of policy development processes or legislation. However, there is some convergence among OECD countries and legal experts on factors that can improve quality. These include transparency in policymaking, clarity and consistency in legislation. The document also examines approaches to legislative drafting globally and criteria for evaluating legislation, such as the need for amendments, litigation, and failed enforcement.
This document summarizes Roscoe Pound's 1941 essay on the legal doctrine of stare decisis. Some key points:
1. Stare decisis explains how cases are decided in common law based on precedence. It provides continuity and defends against political/judicial absolutism by allowing some change over time.
2. Strict rules alone cannot capture stare decisis - it requires seasoned judicial minds to determine family resemblances between cases. Precedents have a persuasive rather than binding function.
3. Both law and economics involve balancing rules with discretion. A reductive, rules-only approach does not work given the need to address unforeseen issues. Precedents and monetary interventions cannot be reduced
LIMITS OF JUDICIAL LAWMAKING AND PROSPECTIVE OVERRULING Dhruv Tripathi
This document provides a review of an article on the limits of judicial lawmaking and prospective overruling. It discusses how courts increasingly take on a lawmaking role, as the Blackstonian view of courts merely declaring existing law has diminished. It analyzes several cases where courts established new legal principles or overturned prior doctrines. While courts are not suited to implement institutional reforms, they do initiate basic legal changes through reinterpreting constitutions or innovative rulings that pave the way for later legislative action. The conclusion examines whether courts should intrude to change unjust principles or remain passive, noting there is no simple answer.
This paper puts forward some legal arguments and concepts of the relationship between international law and domestic law, in the context of constitutional justice.
This chapter discusses the concept of age discrimination and the status of age as a protected characteristic. While age discrimination was included in EU legislation through Directive 2000/78, Article 6(1) allows member states to justify direct age discrimination if it is objectively and reasonably justified. This reflects the contested nature of age discrimination and view that it is less serious than other forms of discrimination. Additionally, age is seen as a temporary characteristic that affects everyone rather than a discrete group, and discrimination is sometimes viewed as rational. As a result, age has a lower status among protected characteristics and the Directive took a minimal approach, prioritizing economic objectives over anti-discrimination goals. This has led to a perception that age equality is mainly a labor
Law of the Future 2011
23 & 24 June 2011, Peace Palace, The Hague, The Netherlands
title:
Opening Law of the Future Conference 2011
www.lawofthefuture.org
This document appears to be a last will and testament. It names executors to administer the estate and outlines how the testator's assets and property should be distributed after their death. The bulk of the estate is to be divided into equal parts and held in trust for various beneficiaries, with detailed provisions governing the operation and management of the trusts. The will was signed by the testator in the presence of two witnesses.
The central rationale for trademark protection is and ought to be the need of...Chenoy Ceil
This document argues that the central rationale for trademark protection has always been and should continue to be the need for businesses to protect their brand value, rather than public interest. It discusses how trademarks originally served to indicate commercial origin and courts denied relief even if consumers were confused, showing public interest was secondary. Today, trademarks allow businesses to distinguish their products and services in order to build brand recognition and goodwill. While ostensibly protecting consumers, trademark law inherently focuses on protecting business interests in establishing and maintaining brand value.
This document is a tenancy agreement between a landlord and tenant. The landlord owns a multi-story house and is leasing the ground floor to the tenant for residential purposes. Key terms of the agreement include:
1) The tenant will pay a monthly rent of a specified amount, along with a security deposit, and is responsible for electricity charges.
2) The tenancy commenced on a specified date and the tenant will use the space solely for residential purposes.
3) The landlord is responsible for property taxes and will provide water to the tenant free of cost.
4) Notices between the parties must be in writing and the courts of a specified jurisdiction will handle any disputes arising from the agreement.
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Analyzing shareholder protection and stockmarket development: an empirical te...Chenoy Ceil
The researchers wanted to empirically test the "legal origins hypothesis" proposed by La Porta et al. that common law countries have stronger shareholder protections leading to better stock market development. They analyzed changes in shareholder protection laws and stock markets in 20 countries from 1995-2005 using quantitative methods. The researchers concluded that legal origins did influence the development of shareholder protections, with common law systems initially stronger, but civil law systems were catching up. However, they found no link between increased shareholder protections and stock market growth in any system. This challenges La Porta et al.'s claims and contributes new empirical evidence to the literature on how laws and markets develop over time.
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This document discusses choice-of-law issues regarding the assignment of debts across borders. It explores existing challenges, including a lack of clear private international law rules, and analyzes efforts toward harmonization. Specifically, it examines the European Union's Rome I Regulation and proposed new regulations aimed at unifying choice-of-law approaches for international assignments within the EU. The document focuses on analyzing solutions to increase legal certainty for parties involved in cross-border debt assignments.
The document compares legal ethics between the United States and European Union. It finds that while client confidentiality and loyalty are important in both systems, there are key differences in how lawyers are regulated. The US follows a common law approach with more formal ethical rules while EU countries follow civil law with more general standards. The EU also allows for more liberal practices like multijurisdictional partnerships and non-lawyer ownership of law firms through reforms like the UK Legal Services Act. In contrast, US state-based licensing restricts multistate and multidisciplinary practice.
The document discusses comparative law and provides definitions and perspectives on what constitutes comparative law. It makes the following key points:
1. Comparative law involves the study and comparison of different legal systems and rules to identify similarities and differences, with the goal of better understanding legal systems and advancing legal knowledge.
2. Comparative law can involve macro-level comparisons of entire legal systems or micro-level comparisons of specific legal issues across systems. It also examines the historical development and interaction of legal systems.
3. The purposes of comparative law include promoting understanding of one's own legal system, fostering understanding between nations, and assisting in law reform and harmonization. It is an important tool for legal study, education and
Judges as Lawmakers: An Examination of the DichotomyIRJET Journal
This document examines the debate around whether judges can make laws. It discusses the traditional view that judges are merely interpreters of laws made by the legislature. However, the document notes there is a growing body of literature challenging this strict separation and advocating for a more active role for judges in shaping legal norms. The paper explores this debate in both historical and contemporary contexts. It also examines how this issue manifests in India's unique legal system, which blends common law traditions with statutory law. The document reviews influential perspectives from legal scholars on both sides of this debate and analyzes landmark cases that have expanded the role of courts in lawmaking.
Common law, equity and statute - limitations and analogiesHannah Vieira
This document discusses the ongoing distinction between common law and equity in legal systems. It makes two key points:
1) Maintaining the distinction between common law and equity is still meaningful, as there are fundamental differences in their methodologies and approaches that continue to inform legal analysis. Fully merging the two areas would require extensive law reform.
2) Common law and equity also differ in their relationship to statutes. Historically, common law saw itself as separate from statutes, while equity was more accepting of them. This difference between common law and equity's reactions to statutes is an important aspect worthy of further analysis.
This document provides an overview of comparative constitutional law methodology. It discusses key concepts like constitutionalism, levels of comparison, and the importance of theoretical frameworks. The author argues that comparative analysis requires understanding both the causal forces that influence legal systems as well as the motivations and agendas of political elites. Effective comparison examines a legal system's history, culture, economics and politics.
This document discusses jurisdiction in international law as it relates to regulating the internet and the EU's "right to be forgotten" ruling. It makes the following key points:
1) Jurisdiction in international law is traditionally based on a state's territory and sovereignty, but modern economic law has challenged this through the "effects doctrine."
2) The EU's "right to be forgotten" ruling in Google Spain concerned private litigation between individuals and corporations, falling under private international law.
3) Orders to extend compliance with the ruling to Google's global domains raise questions about the territorial reach of the ruling under public and private international law.
4) The document aims to clarify concepts of jurisdiction in public and private
Lord Sumption indexes relevance or Otherwise of
Limit
Knowledge of Which is Precondition re: and Requisite for
Management
Management according to Law
Legal Concourse
Legitimate Conduct
Current or Future - Past or Present
determinable by and with reference to
Currency - Communication - Currency of Communication and Communication of Currents - as may or may not be evidenced by or deployed - deployable or otherwise according to Marine Law - Maritime Regard and Observance of Seabord - basis of which indicates and is indicative of
Thalassocracy - Evidencing The Precedent of Trafalgar and the License of Those Who Provision and In regard of Whose
SEAT - Tenure - Tenet and Capacity - (The 4 Agreements)
Provision is Made - See: Legacy of Royal Exchange (Sir John Gresham) Gresham Institute and Gresham's LAW.
A journal which discusses the relationship of logic to law; gives reference to previous researches related and provides logical questions which can be a guide for further explorations.
Proclem and cencern in comparision of constitution gagan deep
Comparative constitutional law analyzes the differences between countries' constitutions. However, there are several challenges. First, it is difficult to identify "best practices" since concepts like freedom can have different meanings in different legal systems. Second, constitutions change over time through amendments or new interpretations of public opinion, making static comparisons incomplete. Third, precisely defining the subject is complex given the many diverse constitutions and levels of success.
This document provides an overview of what constitutes good quality legislation. It discusses how there is no universally agreed upon definition or metrics for measuring the quality of policy development processes or legislation. However, there is some convergence among OECD countries and legal experts on factors that can improve quality. These include transparency in policymaking, clarity and consistency in legislation. The document also examines approaches to legislative drafting globally and criteria for evaluating legislation, such as the need for amendments, litigation, and failed enforcement.
This document summarizes Roscoe Pound's 1941 essay on the legal doctrine of stare decisis. Some key points:
1. Stare decisis explains how cases are decided in common law based on precedence. It provides continuity and defends against political/judicial absolutism by allowing some change over time.
2. Strict rules alone cannot capture stare decisis - it requires seasoned judicial minds to determine family resemblances between cases. Precedents have a persuasive rather than binding function.
3. Both law and economics involve balancing rules with discretion. A reductive, rules-only approach does not work given the need to address unforeseen issues. Precedents and monetary interventions cannot be reduced
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This document provides a review of an article on the limits of judicial lawmaking and prospective overruling. It discusses how courts increasingly take on a lawmaking role, as the Blackstonian view of courts merely declaring existing law has diminished. It analyzes several cases where courts established new legal principles or overturned prior doctrines. While courts are not suited to implement institutional reforms, they do initiate basic legal changes through reinterpreting constitutions or innovative rulings that pave the way for later legislative action. The conclusion examines whether courts should intrude to change unjust principles or remain passive, noting there is no simple answer.
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Law of the Future 2011
23 & 24 June 2011, Peace Palace, The Hague, The Netherlands
title:
Opening Law of the Future Conference 2011
www.lawofthefuture.org
Similar to Analyzing chris willett’s the functions of transparency in regulating contract terms : uk and australian approaches (19)
This document appears to be a last will and testament. It names executors to administer the estate and outlines how the testator's assets and property should be distributed after their death. The bulk of the estate is to be divided into equal parts and held in trust for various beneficiaries, with detailed provisions governing the operation and management of the trusts. The will was signed by the testator in the presence of two witnesses.
The central rationale for trademark protection is and ought to be the need of...Chenoy Ceil
This document argues that the central rationale for trademark protection has always been and should continue to be the need for businesses to protect their brand value, rather than public interest. It discusses how trademarks originally served to indicate commercial origin and courts denied relief even if consumers were confused, showing public interest was secondary. Today, trademarks allow businesses to distinguish their products and services in order to build brand recognition and goodwill. While ostensibly protecting consumers, trademark law inherently focuses on protecting business interests in establishing and maintaining brand value.
This document is a tenancy agreement between a landlord and tenant. The landlord owns a multi-story house and is leasing the ground floor to the tenant for residential purposes. Key terms of the agreement include:
1) The tenant will pay a monthly rent of a specified amount, along with a security deposit, and is responsible for electricity charges.
2) The tenancy commenced on a specified date and the tenant will use the space solely for residential purposes.
3) The landlord is responsible for property taxes and will provide water to the tenant free of cost.
4) Notices between the parties must be in writing and the courts of a specified jurisdiction will handle any disputes arising from the agreement.
Status of the coal controller and its functions vis à-vis coal industry indiaChenoy Ceil
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This notice letter informs the tenant that their monthly tenancy of the [property details] measuring [square footage] that was let to them [years ago] for commercial use at Rs. [rental amount] per month will be terminated in 15 days. It requests that the tenant quit, vacate, and deliver peaceful possession of the property to the owner within 15 days, or they will be treated as a trespasser and legal proceedings will be initiated against them to recover possession of the property. The notice is being issued under Section 106 of the Transfer of Property Act 1882.
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Note on custodial interrogation in indiaChenoy Ceil
Custodial interrogation allows police to detain and interrogate suspects for up to 15 days initially. Under certain laws like the Unlawful Activities Act, this can be extended to 180 days. However, several safeguards exist like producing the accused before a magistrate, not handcuffing without cause, and prohibiting torture. While lengthy detention may aid investigation, it also risks violating civil liberties and runs counter to standards in other democracies where detention periods are much shorter.
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2) The Act establishes ceilings on the amount of vacant urban land an individual can own, varying based on the urban area's classification.
3) The Competent Authority is empowered to acquire lands exceeding the ceiling limits and determine if lands recorded as agricultural are actually being used as such.
Domestic violence complaint format under section 12Chenoy Ceil
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This document is a development agreement between several owners of a property and a developer company. The key points are:
1) The owners appoint the developer to construct residential buildings on the owners' land, with the goal of commercial exploitation.
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Deconstructing west bengal thika tenancyChenoy Ceil
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This document is a lease agreement between a lessor (landowner) and lessee (company) for a parcel of land. Some key details:
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- The lessee will pay a monthly rent of Rs. Z, subject to escalation every 3 years, for use of the land.
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Civil suit for damages and vicarious liabilityChenoy Ceil
The plaintiff, an employer, has filed a civil suit against the defendants seeking damages for injuries suffered by its employee in a traffic accident. [The plaintiff's employee was injured when he was hit by a vehicle owned by the first defendant and driven by the second defendant. As the employee's employer, the plaintiff has had to pay the employee's salary and medical costs. The plaintiff alleges the accident was solely due to the negligent driving of the second defendant and seeks reimbursement from the first defendant, as the second defendant's employer, for payments made to its injured employee.] The plaintiff seeks a decree for damages, interim interest, injunctions, receivership, attachment of property, costs, and any other relief.
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2) It is proposed to reorganize and reconstruct Company A by transferring its proposed new facility/project assets and liabilities to Company B on a going concern basis.
3) Meetings of shareholders of both companies were held where the Scheme of Arrangement was approved unanimously by shareholders without modification.
4) The petition seeks the Court's sanction of the Scheme of Arrange
This document is an agreement for the sale of a property between two vendors and a purchaser. The vendors agree to sell a property measuring [size] located at [address] to the purchaser for Rs. [price]. The purchaser pays an initial earnest money and agrees to pay the remaining balance upon execution of the deed of conveyance and delivery of possession. The agreement outlines various terms regarding documents, taxes, repairs, possession and timeline for completion of the sale.
1) The document is a legal notice from a law firm to a company regarding an outstanding loan amount plus interest that is due to their client.
2) The client had provided a loan of [amount] to the company which had terms of repayment after [time period] days at an interest rate of [percentage].
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Analyzing chris willett’s the functions of transparency in regulating contract terms : uk and australian approaches
1. Analyzing Chris Willett’s “The Functions of Transparency in Regulating
Contract Terms - UK and Australian Approaches”
Question 1:
What is the purpose of comparative legal research? Why does the author undertake such
research in this article?
Answer 1:
The importance of comparative law in the ever increasing globally linked world cannot be
ignored or denied. The essence of comparative law is to compare the law of one country to
that of another to understand the differences and try to draw a conclusion there from1
.
Generally, the author tries to juxtapose the law of one country to that of another or the
researcher may even compare the law of several jurisdictions, such as common law and civil
law countries. The essence of comparison of law from several different countries is to find
out the similarities and differences2
. The author of such work generally tries to assess such
data with a particular purpose of establishing the differences or similarity in development of
law in different jurisdictions. Comparative legal research is also undertaken to search for
universal principles of law that transcend culture and provide a meeting point of law3
.
Sometimes, comparative legal research also serves the purpose of solving important public
policy questions regarding consumer law, anti-trust law or intellectual property law. It also
helps in shaping new law and providing legislators and the judiciary with an overview of the
development of law in foreign countries4
. Overall, comparative legal research tries to find
answers to the differences and similarities between the legal developments in different
countries.
The author undertakes comparative legal research in this article because he tries to
understand the uncertainty in both the UK and Australian approaches to unfair contract terms
1
Edward Eberle, ‘The Method and Role of Comparative Law’ (2009) 8 (3) Washington University Global
Studies Law Review 452.
2
Ibid 452.
3
Ibid 453.
4
Ibid 456.
2. and the scope of transparency to legitimize such unfair terms in UK and Australia5
. The
author compares the development of consumer law in UK and Australia as well as in the
European Union (EU) and Germany to establish that there is still uncertainty about whether
transparency can legitimize unfair terms of consumer contracts. The author questions the
legal tension between the ethics of informed freedom of choice that needs to be provided to
the consumers and the “irreducible substantive rights” of consumers when it comes to trader-
consumer relationship6
. Thus, the author tries to imply that the legislators of the two
jurisdictions, UK and Australia should make it clear whether transparency is capable of
legitimizing unfair terms. Further, the author argues that voluntarily used terms must be
transparent to allow post contractual justice so that consumers can easily assert and bargain
their rights after entering into the contract. Lastly, the authors undertake this research to
assert the importance of transparency in consumer legal rights and compares UK and
Australia law to conclude that the UK “misleading omissions” concept provides better
transparency compared to the “misleading practice” concept used in Australia7
.
Question 2:
Explain the ‘presumption of similarity’ and the ‘presumption of difference’. Where do you
think the author might stand in this methodological debate?
Answer 2:
Comparative law serves a functionality which aims at discovering the unity of thought and
similarities between different jurisdictions8
. Methodology of legal research varies from one
scholar to another and there are certain differences in their assumptions and presumptions.
The presumption of difference was enumerated by Pierre Legrand and according to him legal
research must always set out with the presumption that there is no similarity between the
5
Chris Willett, ‘The Functions of Transparency in Regulating Contract Terms: UK and Australian Approaches’
(2011) 60 (2) International and Comparative Law Quarterly 384.
6
Chris Willett, ‘The Functions of Transparency in Regulating Contract Terms: UK and Australian Approaches’
(2011) 60 (2) International and Comparative Law Quarterly 384.
7
Ibid 385.
8
Antonios Platsas, ‘The Functional and Dysfunctional in the Comparative Method of Law: Some Critical
Remarks’ (2008) 12 (3) Electronic Journal of Comparative Law 11.
3. legal outcomes of different jurisdictions9
. Presumption of difference goes to the root of legal
knowledge of any particular country and states that there can be no similarity in such
knowledge due to the different culture, historical background and development of law in such
two different countries. According to Legrand, comparative legal research should set out with
a presumption of difference instead of a presumption of similarity. He argues that comparison
of two different elements and legal systems must logically imply difference and deny
sameness10
. Presumption of difference always sets out legal research with the thought that
two opposing legal systems can have no similarities. Difference is at the root of the legal
system because development of law has occurred under different circumstances in the two
countries.
However, Legrand’s treatise is in stark comparison to the seminal work of K Zweigert and H
Kotz “An Introduction to Comparative Law”11
, in which they have proposed the thesis idea
praesumptio similitudinis, which implies that there is a presumption of similarity of practical
legal results amongst different legal systems12
. According to the “presumption of similarity”,
although jurisdictions, legal methods, approaches may vary in domestic laws of different
countries, but inherently the practical results are broadly similar13
. Modern legal scholars and
researchers believe in the idea of “presumption of similarity” because in the age of
globalization and convergence, legal systems of different countries bear more resemblance to
each other than to their own history14
. Present day legal researchers have negated the theory
of Legrand and adopted the idea of Zweigert and Kotz because they believe that the end
result of legal research is to look for similarities in the legal purposes of two different
jurisdictions15
. The presumption of similarity sets out that although there might be cultural,
political, religious and economic or even legal differences in two different countries but the
purpose of law cannot be held to be much different in two different jurisdictions.
The methodology of the author of the present article is that of presumption of similarity. The
author sets out to find whether transparency has a legitimizing effect on unfair terms of a
consumer contract. To this effect the author tries to understand the development of consumer
law in UK and Australian jurisdictions and alterations in unfair terms. However, in the
9
Geoffrey Samuel, Law of Obligations and Legal Remedies (2nd
edn Cavendish Publishing 2001) 538.
10
Ibid 538.
11
K Zweigert and H Kötz, An Introduction to Comparative Law (3rd
edn Oxford University Press, Oxford 1998)
12
Ibid 40.
13
Ibid 40.
14
Antonios Platsas, ‘The Functional and Dysfunctional in the Comparative Method of Law: Some Critical
Remarks’ (2008) 12 (3) Electronic Journal of Comparative Law 12.
15
Ibid 12.
4. introduction of the article itself, the author sets the tone that he presumes that the law in UK
and Australia is confusing when it comes to whether transparency is capable of legitimizing
unfair terms. Thus, the author looks to start his comparative legal research on a set hypothesis
and presumption of similarity and later concludes that his hypothesis is true on analysis of the
legal developments in UK and Australia.
Question 3:
Evaluate the author’s choice of jurisdictions to be compared.
Answer 3:
In the present research article, the author compares the unfair terms in consumer contracts
and the role of transparency in legitimizing such unfair terms. The main purpose of this
research work is not just to elaborate that transparency has failed to legitimize unfair terms
but also to establish that the role of transparency in legitimizing unfair terms has been much
clouded by judicial interpretation, legislations and legal developments in UK and Australia.
The author compares the development of law in two common law jurisdictions in the context
of EU level regulation with references to civil law approaches. However, the development of
consumer law and interpretation of unfair terms has been very confusing in UK and
Australia. Through this comparative legal research, the author tries to set out the need for
certain changes in public policy and consumer law so that the legislators of the corresponding
countries would alter the law accordingly. Further, the author also compares the development
of law in the European Union and its impact on the development of law in UK. Lastly, the
author also compares consumer law and law relating to unfair terms in the civil law country
Germany, to remark that at least the German law explicitly states that transparency is not
necessarily a legitimizing factor since unreasonable disadvantage may be caused to the
consumer in substance, irrespective of transparency16
. This form of clarity is required in the
UK and Australian law. The author’s choice of countries for comparative legal research is
limited to common law countries and very few civil approaches. This is one major drawback
for this research work because it sets out with a basic premise about how transparency is
important but fails to expand the comparison of consumer law and unfair terminology in
16
Chris Willett, ‘The Functions of Transparency in Regulating Contract Terms: UK and Australian Approaches’
(2011) 60 (2) International and Comparative Law Quarterly 365.
5. different jurisdictions. However, the author still manages to elaborate the importance of
transparency of unfair terms in consumer law. The author has rightly selected UK and
Australia as the point of discussion because both these countries have developed their law
through judicial precedents and legislations. However, legislations and judicial interpretation
of the two countries has resulted in conflicts and confusion which requires further legislation
to set out clearly whether transparency has any role in legitimizing unfair terms of consumer
contracts.
The author’s choice of jurisdictions to compare development of consumer law is legitimate
and reasonable because the UK law has been much influenced by EU law such as the
UTCCD (Unfair Terms in Consumer Contracts Directive) while the Australian federal law
was passed in 2010 following several suggestions and amendments to New South Wales
Contracts Review Act, the Victorian Fair Trading Act and passing of various important
judgments17
. The role of comparative law is to understand the development of law over time
in different circumstances at different jurisdictions and the author has been able to portray the
same. Further, through the comparison of legal developments in UK and Australia the author
has been able to reach an important conclusion that transparency plays several other roles in
helping consumers to understand terms, in furthering market discipline and in providing
consumers post contractual access to justice18
. Dealing with public policy and enumerating
the importance of transparency in unfair terms, the author has been able to justify selecting
UK and Australia to compare the state of law in these two jurisdictions.
Question 4:
To what extent does this article embody prescriptive legal scholarship, or is it merely
descriptive? Justify your answer and evaluate the approach adopted.
Answer 4:
This article embodies prescriptive legal scholarship because it does not merely describe how
the consumer law is and what is the difference in unfair terms interpretation in UK and
Australian law, but it also prescribes how the law should be and why transparency of unfair
terms is important for the development of consumer law. Understanding legal scholarship is
17
Chris Willett, ‘The Functions of Transparency in Regulating Contract Terms: UK and Australian Approaches’
(2011) 60 (2) International and Comparative Law Quarterly 356.
18
Ibid 357.
6. important for evaluating the importance of any legal research work. The present article sets
out with the development of law in interpreting unfair terms in consumer contracts in UK.
The author’s approach towards the legal research has been appropriate since he tries to
describe how consumer contracts in UK used to be interpreted in the light of the unfairness
test which supported the idea that transparency cannot legitimize substantive unfair terms.
However, by introduction of the good faith doctrine, the role of transparency in legitimizing
unfair terms in UK seemed to have been established, which again was shrouded in confusion
when the good faith doctrine was tossed for the test of significant imbalance to the detriment
of the consumer19
. Similarly, in Australia too, the law relating to transparency could
legitimize substantively unfair terms before the Victorian Fair Trading Act, 1999 was passed.
Once this legislation came into force, the role of transparency in legitimizing unfair terms
became nil20
. However, ever since the introduction of federal law in Australia, a small degree
of uncertainty in the role of transparency in legitimizing unfair terms in consumer contracts
has once again surfaced in Australia21
.
This article can be referred to as prescriptive legal research because the author does not
simply engage in comparative law for the sake of theoretical pursuits but he also tries to bring
forth the importance of transparency in consumer law and seeks legislative changes. The
author seeks a policy change and argues that voluntarily used terms should be transparent
since it furthers market discipline and consumer’s access to post contractual justice22
. The
author suggests that the UK and Australian legislators should improve the unfair terms law by
referring to the previous model of the contract law in the State of Victoria and the current
approach towards transparency taken by the European Union’s Draft Common Frame of
Reference (DCFR)23
. This legal article has the audience of legal scholars, jurists, advocates as
well as legislators so this article represents prescriptive legal scholarship. Further, the
author’s approach towards the subject has been to compare the development of consumer law
and unfair terms in two separate jurisdictions as well as civil law jurisdictions. Thus, the
entire research work and the approach of the author can be said to be justified and reasonable
because the author has been able to point out that transparency of unfair terms is important
while at the same time suggesting that any form of confusion in interpreting unfair terms
should be legislatively rectified in UK and Australia.
19
Chris Willett, ‘The Functions of Transparency in Regulating Contract Terms: UK and Australian Approaches’
(2011) 60 (2) International and Comparative Law Quarterly 366.
20
Ibid 357.
21
Ibid 357.
22
Ibid 357.
23
Ibid 357.
7. Bibliography
Eberle, E, ‘The Method and Role of Comparative Law’ (2009) 8 (3) Washington University Global
Studies Law Review 452
Platsas, A, ‘The Functional and Dysfunctional in the Comparative Method of Law: Some Critical
Remarks’ (2008) 12 (3) Electronic Journal of Comparative Law 11
Samuel, G, Law of Obligations and Legal Remedies (Cavendish Publishing 2001)
Willett, C, ‘The Functions of Transparency in Regulating Contract Terms: UK and Australian
Approaches’ (2011) 60 (2) International and Comparative Law Quarterly 355
Zweigert, K and Kötz, H, An Introduction to Comparative Law (Oxford University Press 1998)