Suchergebnisse

In reference to a topical issue, the Note examines the conceptual confusions that rage on the mass media and that are reflected in the lexicon of the Italian legislator when it has to issue measures to face the Covid-19 epidemic. With reference to the case-law of the ECtHR which ruled on vaccination obligations, it is specified to what extent one can speak of a legal duty to be vaccinated.

The Note reports about the Mexico Seminar 2013 organized by the International Association of Legal Sciences (International association affiliated with UNESCO). The Seminar has focused its attention on the state of implementation of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, followed by the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects of 24 June 1995 and the 2011 UNESCO-UNIDROIT Model Provisions on State Ownership of Undiscovered Cultural Objects. In the Mexico seminar jurists and officials of various parts of the world have pointed out the weakness of the legal framework created by the conventions and therefore the difficulties in the exercise of restitutionary remedies by the States from which a cultural object has been removed.

Abstract: The final contribution to the 10th anniversary of the ERPL presented in this issue moves away from the core-topic, i.e. case law. Instead, the author takes a wider view on harmonization of European Private Law by analysing the Action Plan on a more coherent contract law issued by the Commission at the beginning of 2003. In his critique, he focuses on the issue of abstract legal notions in establishing legal categories.

Abstract. The doctrine of abuse of rights has a long history but little future. The jurists who developed the jus commune could draw on Roman sources to support the principle that the exercise of one's rights could not be relied on to justify intentional harm to another. In mediaeval times this principle was mainly used to prevent unsuitable use of building rights and assist in town planning. The requirement of intention was diluted by reference to numerous presumptions. The Napoleonic code avoided the need to rely on the doctrine by including certain zoning and town criteria within the code, but it was called upon later in the nineteenth century as a way of dealing with conflicting interests in the way land was used and the activities allowed on the land. This use of the doctrine was in turn rendered otiose when the tort provisions of the civil code began to be interpreted in an extensive manner which allowed conflicting interests to be weighed in determining the existence of fault liability. The doctrine of abuse of rights has thereafter played only a restricted role in the French legal system. It has been codified in relation to abuse of procedural rights within the justice system.
The experience of other legal systems is similar. Although the principle prohibiting the abuse of rights was codified in Switzerland, Germany and Italy, these provisions have only rarely been relied on in practice. The need to prove intention is too onerous. Other provisions of the codes, such as the requirement of good faith in §242 BGB have enabled an equitable result to be achieved without resort to the doctrine of abuse of rights. It has also been subsumed within traditional principles such as venire contra factum proprium and unconscionability. Indeed the abuse of right theory is too rigid to provide an adequate resolution of the underlying problem: the balancing of conflicting interests. More flexible approaches have rendered the doctrine largely superfluous.