Suchergebnisse

The authors of this paper analyse different approaches to laesio enormis in the modern contract law. The embodiment of laesio enormis – gross disparity – is examined in the context of the whole Lithuanian Civil Code, particularly in relation to general provisions of voidability of legal transactions. The last part of this article is dedicated to practical application of Art. 6.228 of the Civil Code in the case law of the Supreme Court of Lithuania. It is concluded that the draftsmen of the Civil Code took intermediate approach to the implementation of the doctrine of laesio enormis by transposing the concept of the gross disparity from the UNIDROIT Principles. Most of the times it requires qualified criteria for its application, but occasionally a contract might be avoided on the grounds of pure (simple) lesion if there is no justification for significant disproportion. The analysis of the remedy of the gross disparity showed that it is the only ground for avoidance of a contract by notice that is incorporated into Lithuanian contract law. The other classic vices of consent (fraud, threat and mistake) were not transposed from the UNIDROIT Principles. These grounds are embodied in the book I of the Civil Code. However, the contract (or any other legal transaction) might be nullified by the application of these grounds only if there is a court judgment declaring a contract void on one of these grounds. This peculiar approach exposes the lack of systematic coherency in the Lithuanian Civil Code. Taking into account the fact that since the enactment of the Civil Code there is no evidence of practical abuse of the gross disparity remedy, the authors of this paper suggest that the legislator should amend the Civil Code by incorporating provisions which would allow to avoid contracts by notice on the basis of threat, fraud and mistake. The authors also revealed that the case law on application of the gross disparity is not particularly consistent and predisposed to change. There were few questionable decisions concerning interpretation and implementation of the gross disparity. However, the Supreme Court of Lithuania over the years has showcased a better understanding of this remedy. ; Straipsnyje nagrinėjami skirtingi leasio enormis doktrinos įgyvendinimo būdai šiuolaikinėje sutarčių teisėje. Autoriai analizuoja esminės nelygybės institutą kaip vienintelį sutarties atsisakymo pagrindą, įtvirtintą Lietuvos Respublikos civiliniame kodekse, bei jo taikymą ir aiškinimą Lietuvos Aukščiausiojo Teismo praktikoje.

Just as we never get a second chance to make a good first impression, we may equally be deprived of a unique chance to act both as witnesses and evaluators of the centennial after regaining the independence of the Republic of Lithuania if we fail to review and assess this period. Therefore, we have to seize the opportunity and reflect upon the twisting path of our history since regaining the independence of the state until the current situation. The centennial development of law cannot be disembodied from the story of state's development. One can treat law both as a pathfinder and as a legal guide of the state; however it can likewise be applied as an instrument to solely ensure proper functioning of the state. Creating an effective system of law is not a one-day project; it is the process requiring deliberation, constant effort and deep awareness, otherwise the system will be doomed to failure or malfunctioning. Every state or nation is believed to deserve such a legal system as the efforts that the state puts to ascertain and develop it. The centennial period since the restoration of the independence of the Republic of Lithuania can unmistakably be described as a unique one: on the one hand the state was faced with the challenges of restoration and creation in various areas of the state and the society; it later experienced the loss of independence and survived 50 years of occupation; it eventually restored an independent state and was repeatedly faced with fresh challenges of re-establishing a historically-literate, well-structured and well-functioning state-governance system in both national and international levels. On the other hand, the technological and communications progress intensified the recent hundred years to such an extent that it clearly outdistances any previous centennials. Advancement of information technologies intensifies our time, our law, while huge amounts of information and its immense spread accelerate the pace of our life and our history. New forms of social relations and new branches of law emerge all in need of proper legal regulation. The study "The Development of the Lithuanian Law within the Period of 1918-2018: the Centennial Experience and Prospects" is a result of joint research efforts of more than 50 outstanding lawyers representing different areas of law from Mykolas Romeris University, Vytautas Magnus University, and Vilnius University. The study, dedicated to the Centennial of Lithuanian statehood due in 2018, presents the results of scientific research on legal science and major branches of law, covering the period of 1918-beginning of 2018 (information presented in the study covers a period until end-2017); it reflects upon the centennial development of Lithuanian law, discusses its major characteristics, tendencies and preconditions of their formation; it examines its influence on the state and state authorities and envisages possible impact on the development of law in the future. The Lithuanian law of 1918-2018 is analysed from the perspective of three statehood periods. 1918-1940 is the period when the independence of the Republic of Lithuania was declared, the groundwork for the statehood was laid and an independent legal system was being established. 1940- 1990 denotes the period of occupation, when the authentic legal system of Lithuania was destroyed and the Soviet legal system was forcibly entrenched. The latter was based on socialist ideology and the superiority of governmental authority over the civil society. It is not easy to evaluate the span of 1990- 2018 as the impartial assessment of it is seriously hindered by the authors' partial attitude towards the existing surrounding phenomena. [.]

Just as we never get a second chance to make a good first impression, we may equally be deprived of a unique chance to act both as witnesses and evaluators of the centennial after regaining the independence of the Republic of Lithuania if we fail to review and assess this period. Therefore, we have to seize the opportunity and reflect upon the twisting path of our history since regaining the independence of the state until the current situation. The centennial development of law cannot be disembodied from the story of state's development. One can treat law both as a pathfinder and as a legal guide of the state; however it can likewise be applied as an instrument to solely ensure proper functioning of the state. Creating an effective system of law is not a one-day project; it is the process requiring deliberation, constant effort and deep awareness, otherwise the system will be doomed to failure or malfunctioning. Every state or nation is believed to deserve such a legal system as the efforts that the state puts to ascertain and develop it. The centennial period since the restoration of the independence of the Republic of Lithuania can unmistakably be described as a unique one: on the one hand the state was faced with the challenges of restoration and creation in various areas of the state and the society; it later experienced the loss of independence and survived 50 years of occupation; it eventually restored an independent state and was repeatedly faced with fresh challenges of re-establishing a historically-literate, well-structured and well-functioning state-governance system in both national and international levels. On the other hand, the technological and communications progress intensified the recent hundred years to such an extent that it clearly outdistances any previous centennials. Advancement of information technologies intensifies our time, our law, while huge amounts of information and its immense spread accelerate the pace of our life and our history. New forms of social relations and new branches of law emerge all in need of proper legal regulation. The study "The Development of the Lithuanian Law within the Period of 1918-2018: the Centennial Experience and Prospects" is a result of joint research efforts of more than 50 outstanding lawyers representing different areas of law from Mykolas Romeris University, Vytautas Magnus University, and Vilnius University. The study, dedicated to the Centennial of Lithuanian statehood due in 2018, presents the results of scientific research on legal science and major branches of law, covering the period of 1918-beginning of 2018 (information presented in the study covers a period until end-2017); it reflects upon the centennial development of Lithuanian law, discusses its major characteristics, tendencies and preconditions of their formation; it examines its influence on the state and state authorities and envisages possible impact on the development of law in the future. The Lithuanian law of 1918-2018 is analysed from the perspective of three statehood periods. 1918-1940 is the period when the independence of the Republic of Lithuania was declared, the groundwork for the statehood was laid and an independent legal system was being established. 1940- 1990 denotes the period of occupation, when the authentic legal system of Lithuania was destroyed and the Soviet legal system was forcibly entrenched. The latter was based on socialist ideology and the superiority of governmental authority over the civil society. It is not easy to evaluate the span of 1990- 2018 as the impartial assessment of it is seriously hindered by the authors' partial attitude towards the existing surrounding phenomena. [.]