Journal articles: 'Exemption clauses'

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McBride, Nicholas J. "Trustees' Exemption Clauses." Cambridge Law Journal 57, no. 1 (March 1998): 33–36. http://dx.doi.org/10.1017/s0008197300134336.

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Blackshield, Tony, and Rosemary Huisman. "Exemption and exegesis: Judicial interpretation of exemption clauses in England, Australia, and India." Semiotica 2016, no. 209 (March 1, 2016): 77–97. http://dx.doi.org/10.1515/sem-2016-0006.

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AbstractA feature of the modern consumer economy is the so-called “standard form contract,” printed in advance to establish the terms on which a corporate supplier deals with its customers. Typically these terms include an “exemption clause,” seeking to limit the supplier’s liability for loss or damage, and often to exclude legal liability altogether. Sometimes such clauses are given effect according to their apparent intention, but in other cases judges may endeavor to avoid that result – either by denying the clause any legal effect whatsoever, or by reading it so as not to apply to the precise kind of liability that has in fact arisen. We illustrate these varied responses by reference to judicial decisions in England, Australia, and India. The analysis suggests different expectations within these different judicial discourse communities: in England, from 1980 onwards, the renewed ideological emphasis on freedom of contract led judges to retreat from the creative solutions of earlier decades, returning to an emphasis on the actual words of such clauses; in Australia, in contrast, judges declined to take part in such a retreat; in India, a prevailing insistence on the need to interpret contracts strictly according to their literal terms has failed to prevent occasional attempts at ingenious interpretive solutions.

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Tallon, Denis. "Damages, Exemption Clauses, and Penalties." American Journal of Comparative Law 40, no. 3 (1992): 675. http://dx.doi.org/10.2307/840593.

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Mupangavanhu, Yeukai. "Exemption Clauses and the Consumer Protection Act 68 of 2008: An Assessment of Naidoo v Birchwood Hotel 2012 6 SA 170 (GSJ)." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 17, no. 3 (April 24, 2017): 1194. http://dx.doi.org/10.17159/1727-3781/2014/v17i3a2291.

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Exemption clauses are a rule rather than an exception particularly in standard-form contracts. Consumers are usually forced to accept such terms on a "take-it-or-leave-it" basis. This state of affairs shows that freedom of contract is theoretical and could lead to injustices. In Naidoo v Birchwood Hotel 2012 6 SA 170 (GSJ) the Court refused to uphold the exemption clauses based on the fact that it would have been unfair and unjust to the plaintiff who had sustained serious bodily injuries during his stay at the hotel. The article discusses this court decision in the light of the provisions of the Consumer Protection Act 68 of 2008 (CPA) against the background of the previous jurisprudence regarding exemption clauses, including the position of exemption clauses in a new constitutional dispensation.

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Höög, Magnus. "Specialization Agreements under the EEC Competition Rules; A Commentary on Regulation No. 417/85." Nordic Journal of International Law 56, no. 4 (1987): 380–413. http://dx.doi.org/10.1163/157181087x00183.

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AbstractEach case depends on its own facts. Still, the decided cases give considerable guidance to the Commission's approach to granting individual exemptions. The Commission seems to be concerned primarily with the activities of only the parties subject to the specialization agreement, not with unrelated pursuits of corporate relations of the parties94. The Commission also attributes to th especialization agreements an increase of production with a concomittent lowering of unit costs. The exclusivity will thus help to provide the necessary expanded market. The parties to the agreements discussed above are of different sizes, some have very significant shares of the markets in question. A considerable size of the parties, i.e. substantial turnover or large market shares, normally will make it more difficult to obtain an individual exemption. Still, the individual decisions make it clear that even quite substantial undertakings can obtain the benefit of an individual decision under the right circumstances. This leads to the conclusion that size per se is not a concern to the Commission. Of concern is the restrictive clauses in, to some extent, conjunction with the size. Together, the restrictive clause and the considerable size bring the agreement far within the scope of Article 85(1). That the agreement can be granted an individual exemption due to inherent advantages is another side of the coin. A significant example is Re Lightweight Papers. Once the most rigid clauses in the agreement were withdrawn, an exemption was granted no matter the huge market shares in Benelux and France (70% and 80% respectively). The existence of effective competition is the all important element. No matter the size, an exemption can be had if effective competition prevails.

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Boeuf, Blandine, Oliver Fritsch, and Julia Martin-Ortega. "Justifying exemptions through policy appraisal: ecological ambitions and water policy in France and the United Kingdom." Water Policy 20, no. 3 (March 16, 2018): 647–66. http://dx.doi.org/10.2166/wp.2018.108.

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Abstract The Water Framework Directive aims to achieve ‘good status’ for all water bodies in the European Union. However, exemption clauses enable member states to delay protective measures and to lower water quality objectives. The ambiguity of exemption clauses has led to a plurality of approaches across the continent. They differ as to their political objectives, i.e., the overall ambition displayed in implementing the Directive, and to their methodological choices, i.e., the analytical tools used to justify exemptions. This article argues that those political and methodological dimensions influence each other. Relying on a framework of analysis that integrates key recommendations from the literature, we explore the usage and justification of exemptions in two countries, the United Kingdom and France. Our analysis suggests that analytical methods were often decided so as to reflect the ecological ambitions of a country, and some methodological choices seem to have had unintended consequences for water quality objectives. We conclude that economic methods should be adapted so that they take into account, rather than ignore, the political ambitions of a country in the field of water.

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Mark Tait. "Judicial Guidance on the Application of Section 49 of the Consumer Protection Act, 2008 – Van Wyk t/a Skydive Mossel Bay v UPS SCS South Africa (Pty) Ltd [2020] 1 All SA 857 (WCC)." Obiter 41, no. 4 (March 24, 2021): 948–60. http://dx.doi.org/10.17159/obiter.v41i4.10497.

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In South Africa, the legislature’s response to the negative consequences resulting from the pervasive use of disclaimers by suppliers has been to regulate the use of these terms through the enactment of a number of provisions in the Consumer Protection Act 68 of 2008 (CPA), including sections 48, 49 and 51. A number of publications have considered the meaning of these provisions and the impact they may have on the use of disclaimers in consumer contracts. As a consequence of the widespread use of disclaimers and the adverse consequences they may hold for consumers, any judicial pronouncement on the impact of the CPA on these clauses is significant. In Van Wyk t/a Skydive Mossel Bay v UPS SCS South Africa ([2020] 1 All SA 857 (WCC) (Skydive v UPS)), the Western Cape High Court was afforded the opportunity to consider the impact of aspects of section 49 specifically on the use of a clause in a consumer agreement excluding the risk or liability of suppliers (referred to as an “exemption clause” in this note).Section 49 of the CPA applies to four distinct types of clause enumerated in section 49(1) – namely, clauses limiting the risk or liability of suppliers in respect of any other person; clauses constituting an assumption of risk or liability by the consumer; clauses imposing an obligation on the consumer to indemnify the supplier for any cause; and clauses requiring a consumer to acknowledge a particular fact. As indicated, in Skydive v UPS, the contentious clause was one excluding the risk or liability of the supplier. The focus of this note then is on the interpretation and application by the court in Skydive v UPS of the relevant provisions of section 49 of the CPA to an exemption clause.

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Durbach, Nadja. "Class, Gender, and the Conscientious Objector to Vaccination, 1898–1907." Journal of British Studies 41, no. 1 (January 2002): 58–83. http://dx.doi.org/10.1086/386254.

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In 1898, after forty-five years of enforcing mandatory infant smallpox vaccination, the British parliament passed an act to allow parents to “opt out” of the compulsory system. The 1898 Vaccination Act introduced a conscience clause that entitled parents who objected to the practice of vaccination to claim certificates of conscientious objection by applying to a magistrate for an exemption. This provided working- and lower-middle-class anti-vaccinationists a measure of relief from the repeated fines they had suffered for noncompliance with the law, and from the threat of imprisonment. By the end of 1898, over 200,000 certificates of conscientious objection had been issued. Many of these were granted in anti-vaccination strongholds where exemptions outnumbered vaccinations, but conscientious objection to vaccination was by no means limited to these regions. Once an amended conscience clause was passed in 1907, which made conscientious objector status much easier to attain, the national exemption rate grew to 25 percent of all births.The vaccination conscience clauses were controversial. As most of the applicants who applied for these exemption certificates came from the working classes, and many were women, these acts generated a national debate over the classed and gendered nature of the conscience and the meanings of conscientious objection. The years between 1898 and 1907 thus mark a significant moment in the making of the modern subject and citizen. For, as the debate over conscientious objection to vaccination reveals, who exactly was entitled to make a claim to possess a conscience, with its concomitant rights, was itself a contested issue.

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Yasmin, Munnie. "Legal Liability in Standard Form of Contract." International Research Journal of Engineering, IT & Scientific Research 2, no. 9 (September 3, 2016): 39. http://dx.doi.org/10.21744/irjeis.v2i9.233.

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The validity of standard form of contract is not necessary to be disputed. Standard form of contract has become a business necessity in relation to efficiency and effectiveness. The aspect of problems arising in the standard form of contract is the aspect of imbalance position of the parties. Standard form of contract is potential to be abused by parties having stronger bargaining power. One of the forms of the imbalence is the inclusion of exemption clauses which aims to limit or release the liability of one of the parties. Currently, the rules governing the exemption clause exists only in the Law No. 8 of 1999 on Consumer Protection (LCP). Article 18 of LCP governing the standard form of clause is limited to the extent of prohibited form and content, and only aimed at final consumer contracts. In reality, the standard form of clause is also found in commercial contracts which are not only on final consumers but also midst consumers. Based on this matter, it is necessary to elaborate the liabilities of the parties and state in drawing up standard form of contacts.

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Gothard, C. "Watch out trustees!: Trustee exemption clauses - Law Commission Consultation Paper." Trusts & Trustees 9, no. 9 (September 1, 2003): 24–26. http://dx.doi.org/10.1093/tandt/9.9.24.

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Bradley, Conor. "Seamen, Railroad Employees, and Uber Drivers: Applying the Section 1 Exemption in the Federal Arbitration Ace to Rideshare Drivers." University of Michigan Journal of Law Reform, no. 54.2 (2021): 525. http://dx.doi.org/10.36646/mjlr.54.2.seaman.

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Section 1 of the Federal Arbitration Act (FAA or the Act) exempts “seamen, railroad employees, [and] any other class of workers engaged in foreign or interstate commerce” from arbitration. In 2019, the Supreme Court held in New Prime Inc. v. Oliveira that this provision exempted independent contractors as well as employees. This decision expanded the reach of the section 1 exemption and may affect the relationship between ridesharing companies, such as Uber, and their drivers. Previously, ridesharing companies argued that courts must enforce the arbitration clauses in their employment contracts because their workers were independent contractors and, therefore, section 1 was inapplicable. Since this argument is now prohibited by the holding in New Prime, rideshare drivers have an opportunity to avoid arbitration using the section 1 exemption. But they still face legal difficulties because of the narrow construction of the exemption employed by courts. This Note argues that the current interpretation of the exemption, which focuses on the physical movement of goods across state lines, is incongruent with the text and history of the FAA and that courts should broaden the exemption to include rideshare drivers.

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IL SEOK, OH. "A Study on Amending Library Exemption Clauses in the Korean Copyright Code." Journal of hongik law review 14, no. 3 (September 2013): 579–618. http://dx.doi.org/10.16960/jhlr.14.3.201309.579.

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Martins, António. "Tax avoidance, anti-abuse clauses and arbitration courts: a note on capital gains’ exemption." International Journal of Law and Management 59, no. 6 (November 13, 2017): 804–25. http://dx.doi.org/10.1108/ijlma-05-2016-0050.

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Purpose In Portugal, between 1989 and 2010, capital gains from corporate shares were exempted, while gains from other instruments, like limited liability companies (LLC) equity stakes, were taxed. Inevitably, this non-neutral tax treatment originated a notorious tax arbitrage, consisting in the transformation of the legal status of a LLC into a corporation, the subsequent share sale and tax exemption. In tax litigation, many arbitration rulings were delivered, with widely divergent decisions. The purpose of this paper, using a blend of the legal research method and case analysis, is to discuss three research questions. Should the general anti-abuse clause (GAAC) be applied to this tax planning operation? Why the divergence in arbitration rulings? Is this anomalous arbitration outcome because of the wording the GAAC and its complexity or, contrarily, does it emerge from the disconnection between the set of rules governing capital gains taxation and the legislative intent that is behind such rules? Design/methodology/approach The methodology used in this paper is based on a mix of the legal research method and case analysis. In the case of legal research, a hermeneutic approach – meaning that documents, texts and their interpretation can produce important fruits to the development of the field – is a tested and fruitful approach. Besides being a hermeneutic discipline, it is an argumentative one. By exposing arguments that confirm or deny particular solutions, legal research (e.g. in criminal, business or administrative law) can influence better legislative choices by political actors. Advantages of case analysis include lessons learned from observation. The author discusses if the application of the GAAC to an arrangement that originated a tax exemption can be validated by the usual interpretative lines that doctrine sustains should be observed when a GAAC is used to void legal schemes. The pros and cons of tax arbitration are also highlighted. Findings The conclusion of this paper is that the GAAC is not the crux of the problem. Instead, a contradictory or, at least, disconnected relation between the expressed intent of legislators and the wording of capital gains tax clauses is, in our view, the main reason for such divergent arbitration rulings on the same issue. Practical implications The author believes that the paper is a contribution to the literature, given the global use of anti-abuse clauses and the interpretative complexities they originate. Moreover, the analysis in this paper is carried out in a legal setting where a disconnection is detectable between the expressed legislative intent and the legal drafting of personal income tax rules related to the exemption of capital gains. Studying the complexity added by this feature of the Portuguese legislation serves as a reminder of the importance of careful and well-crafted wording to achieve consistent court outcomes. Originality/value The paper has value to governments, tax authorities and tax managers, given the ever-increasing use of anti-abuse clauses in many countries, and the potential use of arbitration in similar settings.

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Nebel, Jens U. "MED's Position Paper on Digital Technology and the Copyright Act: Legislation without a Solution?" Victoria University of Wellington Law Review 36, no. 1 (May 1, 2005): 45. http://dx.doi.org/10.26686/vuwlr.v36i1.5592.

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Courts in various jurisdictions have had to deal with the question of whether Internet Service Providers (ISPs) can be held liable for infringing acts committed by their subscribers. It is perhaps the most controversial legal issue emerging in the digital environment. Although New Zealand courts have yet to deal with the issue of ISP liability for copyright infringement, the Ministry of Economic Development (MED) has suggested a statutory solution for this apparent problem, which was put down in the 2002 Digital Technology and the Copyright Act 1994 Position Paper. In the Position Paper, MED proposes to exempt ISPs from liability for primary and secondary infringement under certain requirements. The suggested amendment to the Copyright Act 1994 raises several issues and questions, which will be addressed in this paper. The author argues that a total liability exemption fails to take all relevant policy factors into account and favours ISPs unilaterally. The paper suggests that ISPs do not need an exemption clause, because New Zealand's copyright law, although full of uncertainties, appears to be relatively narrow compared to other jurisdictions. The proposed reform causes more problems than it addresses. The constructive knowledge standard, which ISPs have to meet in order to fall under the liability exemption clauses, is difficult to determine and amplifies the existing uncertainties. The author suggests that instead of curing the symptoms, the legislator should get at the root of the problems, which is the cluttered secondary infringement provisions and the nebulous concept of authorisation, which is the true reason for the legal uncertainty copyright owners and ISPs are currently facing.

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McDERMID, KIRK. "A reply to Robert Larmer." Religious Studies 44, no. 2 (May 2, 2008): 161–64. http://dx.doi.org/10.1017/s0034412507009286.

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AbstractThe metaphysics of miracles put forward in my article, ‘Miracles: metaphysics, physics and physicalism’, above (125–147) are, argues Robert Larmer, both unnecessary and unworkable. Here, I try more clearly to explain that my goal of saving important physicalist intuitions that are incompatible with both the ‘open-systems’ and ‘exemption’ approaches’ use of powerful ceteris paribus clauses. I also defend the two mechanisms proposed in the paper from Larmer's criticisms.

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Grover, Samuel T. "Religious Exemptions to the PPACA's Health Insurance Mandate." American Journal of Law & Medicine 37, no. 4 (December 2011): 624–51. http://dx.doi.org/10.1177/009885881103700404.

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Arguably the most controversial change to the U.S. healthcare system written into the Patient Protection and Affordable Care Act (“PPACA” or the “Act”) is what has been colorfully termed the Act’s “individual mandate,” the provision that establishes tax penalties for those who do not maintain health insurance in 2014 and beyond. Though the health insurance mandate does not go into effect until 2014, it has already faced numerous constitutional challenges in district and circuit courts, with entirely inconsistent results. Conflicting decisions regarding the Act’s constitutionality at the circuit court level cry out for Supreme Court review. But while the individual mandate’s validity under either the Commerce Clause or Congress’s taxing power has been the focal point of litigation thus far, another aspect of the individual mandate may undermine the goal of establishing universal, affordable healthcare coverage for all Americans. As currently written, the religious conscience exemption from the PPACA’s individual mandate threatens the efficacy of the Act and potentially exposes it to legal challenges under the Constitution’s Religion Clauses.

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Janssen, André, and Christian Johannes Wahnschaffe. "COVID-19 and international sale contracts: unprecedented grounds for exemption or business as usual?" Uniform Law Review 25, no. 4 (December 1, 2020): 466–95. http://dx.doi.org/10.1093/ulr/unaa026.

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Abstract The year 2020 has witnessed a health crisis of unparalleled dimensions that has triggered ongoing complications on a global scale. Through restrictions on economic activities and disruptions in supply chains, COVID-19 has severely impeded global trade. Among the ensuing problems, the question of excusing a party’s failure to perform its contractual obligations is of key interest. This contribution analyses the conditions for exemption from liability with view to contracts for the international sale of goods subject to the 1980 UN Convention on Contracts for the International Sale of Goods. It revisits the statutory requirements and illustrates COVID-19 scenarios that might satisfy the relevant thresholds. This article further examines the particular legal consequences following from an exemption from liability, including the controversial discussion as to the adequate remedies in cases of economic hardship. Finally, this contribution addresses the newly revised International Chamber of Commerce’s clauses on force majeure and hardship.

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Jerrentrup, Lars, Bastian Lotz, Silvana Tiedemann, and Lion Hirth. "Technology-Neutral Auctions for Renewable Energy: EU Law vs. Member State Reality." Journal for European Environmental & Planning Law 16, no. 4 (December 6, 2019): 386–406. http://dx.doi.org/10.1163/18760104-01604005.

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European Union competition law, intended to thwart subsidies paid out by national governments, plays an important role in shaping EU Member States’ support schemes for renewable energy. The Environmental and Energy State Aid Guidelines 2014–2020, which formalize the European Commission’s take on subsidies in the electricity sector, prescribe technology-neutral auctions as the standard mechanism to determine support levels. In this study, we have assessed the formal decisions of the Commission with respect to technology-neutrality between July 2014 and May 2018. It turns out that 16 out of 18 schemes are not technology-neutral and figure high degrees of technology-differentiation. We have also studied the exemption clauses invoked to justify technology-discrimination, finding that the most ambiguous clause is used most frequently, and that the application and level of scrutiny varies strongly from case to case. The State Aid Guidelines are meant to increase transparency and legal certainty. We find that with respect to technology-neutral auctions for renewable energy, the Guidelines fail to deliver on their purpose.

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Shandi, Yousef Mohammad, and Osama Ismail Mohammad Amayreh. "Depriving the Debtor’s Essential Obligation of its Substance and its Remedies under the Provisions of Article 1170 of the French Civil Code." Journal of Politics and Law 13, no. 2 (May 25, 2020): 129. http://dx.doi.org/10.5539/jpl.v13n2p129.

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In 1994 and thereafter, the French judiciary set a trend by utilizing the causation theory to revoke the exemption clauses of liability that constitute a violation of the contract’s essential obligations. This utilization was intended to restore economic equilibrium to the contract, in order to achieve the benefit each party seeks from concluding a contract. However, in 2016, the new amendments of the French civil code -which were issued by decree no: 131-2016- abolished the causation theory in general. Nevertheless, they retained the previous French judicial trend based on causation theory, where Article 1170 of the new amendments states clearly “any contract term which deprives a debtor’s essential obligation of its substance is deemed not written”. However, Article 1170 of the new amendments did not specify what is meant by an essential obligation? When does the contract’s term result in depriving the debtor’s essential obligation of its substance? Moreover, Article 1170 consolidates an individual penalty which may cause many legal problems. These problems are: the matter concerns an essential clause in the contract and not a secondary one, the other clauses of the contract remain valid as they have been, without any modifications or replacements and, in some cases, abolishing the clause itself might lead to further imbalance in the contract. Therefore, the legal provisions of Article 1170 should be analyzed in an analytical approach along with the previous French judicial trend with respect to these provisions. As a result, the research illustrates the urgent need to amend Article 1170 of the new amendments, in order to contribute to the stability of the economic contractual equilibrium.

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Jiang, Zixin. "Unifying and defining ‘dishonesty’ in the law of trusts." Trusts & Trustees 26, no. 5 (May 17, 2020): 429–44. http://dx.doi.org/10.1093/tandt/ttaa021.

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Abstract In this article, I argue that ‘dishonesty’ should be unified and defined in the law of trusts. I argue: (1) the UK Supreme Court in Ivey v Genting Casinos was correct to reject the Ghosh test for dishonesty and to endorse the Royal Brunei test for all legal contexts; (2) the present law on trustee exemption clauses is inconsistent with Ivey, and Walker v Stones must accordingly be overruled; (3) the subjective factors relevant to dishonesty are reducible to a person’s intentions and beliefs; and (4) ‘dishonest’ assistance of a breach of trust should be defined more precisely in terms of what knowledge is required to hold a defendant liable.

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Abdullah, Farhah. "Consumer Protection on Unfair Contract Terms: Legal Analysis of Exemption Clauses in B2C Transactions in Malaysia." International Journal of Asian Social Science 8, no. 12 (2018): 1097–106. http://dx.doi.org/10.18488/journal.1.2018.812.1097.1106.

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McIntyre, Juliette. "Bermuda Triangle: the supply of services (implied terms) act 2003 and the competing theories of exemption clauses." Commonwealth Law Bulletin 44, no. 2 (April 3, 2018): 279–301. http://dx.doi.org/10.1080/03050718.2019.1612258.

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Tushnet, Mark. "Introduction." Journal of Law and Religion 7, no. 2 (1989): 257–60. http://dx.doi.org/10.1017/s0748081400011255.

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The essays that follow were originally presented at a conference held in connection with the bicentennial of Georgetown University. The topic, the constitutional status of claims for exemption based on religion from general legislation, fit well into the bicentennial's theme “Learning, Faith, Freedom.” The connection between claims based upon faith and the freedoms we exercise could be illuminated by a scholarly examination drawing upon the disciplines of law, history, and theology.The historical studies provide an overview of the background of the religion clauses of the first amendment, and a case study of the implementation of the principles of those clauses in the nineteenth century. Father Curry's essay stresses the inconsistency between the articulated principles of nonestablishment and free exercise, and the actual practices in the colonies and early republic. By bringing the historian's sense of the complexity of experience to the subject, he provides a useful corrective to the lawyer's usual effort to rely too heavily on historical experience to justify contemporary positions about the meaning of the first amendment. At the same time, Father Curry does not hesitate to say that the inconsistencies between historical practice and principles should probably be resolved in favor of principles, on the ground that practices were unreflective and habitual, whereas principles were articulated in the midst of controversies that required Americans to think seriously about the nature of their most fundamental commitments.

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Mariani, Giulia. "Failed and successful attempts at institutional change: the battle for marriage equality in the United States." European Political Science Review 12, no. 2 (March 16, 2020): 255–70. http://dx.doi.org/10.1017/s1755773920000090.

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AbstractBy focusing on the legislative process underpinning marriage equality in the American states, this article identifies the combinations of conditions under which attempts at institutional displacement succeed or fail. Hitherto, few scholarly works have empirically examined displacement and whether, and how, actors can preserve institutional stability in the face of organized efforts to change institutions. Taking causal complexity into account, the analytical model factors in the resources of both change and status quo actors as well as the political context that enables or constrains their strategies. The results of the comparative analysis show that states have followed different paths to the displacement of heterosexual marriage in favor of marriage equality. Yet, most crucially, the findings pinpoint that the inclusion of religious exemption clauses is a condition sine qua non for marriage equality laws to be effectively passed, thus challenging the widely accepted notion that morality policies are foreign to compromise.

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Gothard, C. "Old dogs and new tricks? The Law Commission's July 2006 Report on Trustee Exemption Clauses and the new STEP Rule of Practice." Trusts & Trustees 13, no. 2 (March 8, 2007): 43–45. http://dx.doi.org/10.1093/tandt/ttl051.

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Shearman, Jennifer, and Robert Pearce. "Spread Trustee Company Ltd v Hutcheson." Denning Law Journal 23, no. 1 (November 26, 2012): 181–91. http://dx.doi.org/10.5750/dlj.v23i1.369.

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EXEMPTING A trustee for gross negligenceCan an exemption clause exclude a trustee’s liability for gross negligence? That was the question which the Privy Council was required to consider in this appeal from the Guernsey Courts. Guernsey has developed substantial activities in finance and trusts, and now has legislation (the Trusts (Guernsey) Law 2007) creating a legal framework for this business. The legislative framework was first introduced in 1989, and amended in 1990. The effect of an exemption clause had never been considered in litigation in Guernsey prior to the introduction of legislation.

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Conis, Elena, and Jonathan Kuo. "Historical Origins of the Personal Belief Exemption to Vaccination Mandates: The View from California." Journal of the History of Medicine and Allied Sciences 76, no. 2 (February 24, 2021): 167–90. http://dx.doi.org/10.1093/jhmas/jrab003.

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Abstract A number of states, starting with California, have recently removed all non-medical exemptions from their laws requiring vaccinations for schoolchildren. California was also one of the earliest states to include a broad non-medical, or personal, belief exemption in its modern immunization law, which it did with a 1961 law mandating polio vaccination for school enrollment, Assembly Bill 1940 (AB 1940). This paper examines the history of AB 1940’s exemption clause as a case study for shedding light on the little-examined history of the personal belief exemption to vaccination in the United States. This history shows that secular belief exemptions date back further than scholars have allowed. It demonstrates that such exemptions resulted from political negotiation critical to ensuring compulsory vaccination’s political success. It challenges a historiography in which antivaccination groups and their allies led late-nineteenth and early-twentieth century opposition to vaccination mandates while religious groups drove mid-twentieth century opposition. It also complicates the historiographic idea of a return to compulsion in the late 1960s, instead dating this return a decade earlier, to a time when belief exemptions in polio vaccination mandates helped reconcile the goal of a widely vaccinated population with the sacrosanct idea of health as a personal responsibility.

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Ditrih, Stefan, Svetlana Marković, and Olgica Milošević. "Change of Circumstances and Force Majeure Clauses in Serbian Legal System and Sources of International Uniform Law." Economic Themes 57, no. 1 (March 1, 2019): 67–86. http://dx.doi.org/10.2478/ethemes-2019-0005.

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AbstractThe effects of globalisation are many. One of them is the effect that globalisation has on commercial contracts and contractual relations between contracting parties. Due to a fast pace of economy and the speed and volume of the conclusion of contracts in international trade, participants must rely on stable and reliable legal framework for contractual obligations. In globalised economy, traders from different countries bring with them individual trade practices and norms of national legislation, often diametrically opposed, and sometimes the legal institutes that are regulated in one country don’t even exist in another. This is the case with the institutes of force majeure and a change of circumstances. Due to large differences in the regulation of these two institutes in national legal systems, there have been demonstrated some attempts of standardisation and creation of a unified system of exemption from liability for non-performance, due to force majeure or a change of circumstances. This problem becomes even more evident when dealing with the long term contracts, which are prone to the effects of unforeseen circumstances. This paper aims to explore the nature of the above mentioned legal institutes in some of the most important sources of international commercial law. With a special attention paid to the Serbian regulatory solutions, in order to further understand the similarities and differences between the national legal systems and sources of international law. The first part of the paper deals with applicable legal framework in Republic of Serbia, concerning force majeure and a change of circumstances. The second part of the paper deals with the international sources of commercial law, such as UN Convention on Contracts for the International Sale of Goods of 1980; UNIDROIT Principles of International Commercial Contracts; Principles of European Contract Law; Draft Common Frame of Reference; and Common European Sales Law.

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Maggs, Peter B. "Exemption Clauses and Implied Obligations in Contracts. By John Livermore. Sydney: The Law Book Co., Ltd., 1986. Pp. xxxviii, 290. A$45.00 (paperbound)." International Journal of Legal Information 15, no. 3-4 (August 1987): 157–58. http://dx.doi.org/10.1017/s0731126500020837.

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Mazurkiewicz, Szymon. "Judge as Conscientious Objector – Analysis Based on Cultural Exemptions Theory and U.S. Law." Polish Review of International and European Law 6, no. 1 (September 4, 2018): 73. http://dx.doi.org/10.21697/priel.2017.6.1.03.

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The aim of this paper is to analyze whether it is possible for a judge to possess the right to conscientious objection. Firstly, the author provides some conceptual remarks along with distinguishing conscientious objection from other situations concerning conflict between law and morality that involve judges. Next, cultural exemptions/religious accommodations theory is introduced as a conceptual basis for further analysis. W. Ciszewski’s multidimensional view on exemption theory is applied here. It distinguishes three levels of discussion: the general legitimatization of accommodations, secondly, the justification of a concrete exemption and thirdly the scope, process of application and exclusions of the specific exemption. This paper involves the second level and some issues from the third. Five premises given by W. Ciszewski are considered: (1) significance of a goal realized by regulation, (2) formal amenability of a duty to exclusion, (3) significance of one’s world view being in conflict with duty, (4) prohibition of the unjustified privileging of a group and (5) size of a group that may obtain an exemption. The last part involves the problem of applying a conscience clause. In the paper the author analyzes whether the regulation of judicial disqualification, especially judicial recusal, can be regarded as a legal basis for taking advantage of conscientious objection. The author also considers the boundaries of the clause of conscience with special emphasize on the individual’s right to a fair trial.

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Mupangavanhu, Y. "Exemption Clauses and the Consumer Protection Act 68 of 2008: An Assessment of Naidoo v Birchwood Hotel 2012 6 SA 170 (GSJ)." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 17, no. 3 (September 17, 2014): 1167. http://dx.doi.org/10.4314/pelj.v17i3.10.

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Stevanato, Dario. "Taxes as motivators and predictors of company restructuring." Zbornik Pravnog fakulteta Sveučilišta u Rijeci 39, no. 4 (2019): 1601–22. http://dx.doi.org/10.30925/zpfsr.39.4.6.

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There seems to be a common pattern in the way Member States have addressed taxation of company reorganizations. After some uncertainty, operations affecting corporate and shareholding structures were considered as sources of taxable capital gains. As might have been expected, this hindered a more efficient capital allocation, leading to the enforcement of special laws granting limited and conditional exemption aiming to ease the transfer of undertakings, often with extra advantages than what would be necessary. A deeper rethinking about the very nature of corporate finance transactions at a later stage defined the problem and brought an across-the-board enactment of general provisions for corporate restructuring, inspired by tax-neutrality: roll-over relief and tax deferral, further underpinned by Community law, have since become standards for addressing mergers, divisions, and, to some extent, transfer of assets and exchange of shares. It is arguable whether tax neutrality granted to reorganizations does represent a waiver to the realization principle, or whether instead it is a consistent development of the legal concept of taxable income. In the former case there would be some grounds to challenge tax neutrality in company restructuring operations that lack commercial reasons through purposive construction or anti-abuse clauses or principles. In the latter, antiavoidance rules should be limited to thwart circumvention of the statutory scope and the spirit of tax law, irrespective of the business purposes of the transactions carried out.

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Reyes, René. "Common Cause in the Culture Wars?" Journal of Law and Religion 27, no. 2 (January 2012): 231–71. http://dx.doi.org/10.1017/s0748081400000394.

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A significant body of legal academic writing produced in recent years has argued that one of the primary purposes of the First Amendment's Religion Clauses was to protect freedom of conscience. But in the two decades since the Supreme Court's decision in Employment Division v. Smith, a number of commentators have suggested that freedom of conscience has lost its place as the focus of Free Exercise and Establishment Clause jurisprudence. Indeed, some have gone so far as to argue that protection for freedom of conscience has disappeared from the Free Exercise Clause almost entirely, leaving conduct that is motivated by a religious conscience without special constitutional protection. To be sure, some protection for freedom of conscience remains—but its constitutional source is often to be found outside of the Religion Clauses and its concern is often with non-religious activity.This evolution of doctrine has been extensively criticized by scholars of the Religion Clauses, many of whom view these developments as departures from original intent and from long-settled constitutional practice. Michael McConnell, Martha Nussbaum, and others have also advanced normative critiques, arguing that religious conscience is in many ways distinctive and merits distinctive constitutional solicitude under the Free Exercise Clause. At the same time, the Supreme Court's rejection of special privileges for religious claims of conscience has been welcomed by other scholars, some of whom have argued that preferential protection for religiously-motivated conduct is a form of unconstitutional discrimination. Two of the most prominent proponents of this position are Christopher Eisgruber and Lawrence Sager, who maintain that the Religion Clauses should be read to promote equal liberty rather than to provide special exemptions.

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Goldsworth, J. "Draftsman entitled to benefit of exemption clause." Trusts & Trustees 4, no. 10 (October 1, 1998): 27. http://dx.doi.org/10.1093/tandt/4.10.27.

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Hanni, Noona. "Exclusive Distribution and Non-Compete Clause in Trade: Transnational Agreements in European Union and United States." Udayana Journal of Law and Culture 3, no. 2 (July 31, 2019): 141. http://dx.doi.org/10.24843/ujlc.2019.v03.i02.p02.

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Exclusive distribution agreements are commonly used in both European Union (EU) and United States (US) markets to ensure the efficient distribution of products and services. This article compares the competition legislation in the EU and US and focuses on the differences in the treatment of vertical agreements. This topic is addressed also from an economic perspective and focuses on the possible abuse of dominant market position by international multisectoral companies. This article focuses on the following legal and economic questions: how do competition legislations regulating vertical agreements differ in EU and US and, what kind of possible effects do transnational exclusive distribution agreements have on international trade and competition. In EU law exclusive distribution agreements, even those which include a non-compete obligation limited to five years, are considered as lawful restrictions on competition as long as they fulfil certain criteria listed in the Block Exemption Regulation. EU competition law recognizes the terms of block exemption and ‘safe haven’, whereas the US antitrust law does not regulate any exemptions to vertical restraints. Vertical restraints are interpreted in the US common law of antitrust in the light of the principle of Rule of Reason. An important difference in these jurisdictions is the definition of relevant markets, which is taken into consideration when evaluating the legality of a vertical agreement under competition law. Both jurisdictions emphasize the market power of the producer, but the allowed percentage of market share varies between EU and US and only EU legislation gives emphasis to the market power of the distributor. These differences in competition legislations regulating vertical agreements can lead to conflicts when interpreting the legality of a distribution agreement. The definition of relevant product markets might lead to big international multisectoral companies abusing their dominant position by entering into exclusive arrangements.

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HEMMI, Shin. "Civil Exemption for Pilot : the Present Meaning and Legitimacy of Exemption Clause in Pilotage Covenant." Journal of Japan Institute of Navigation 126 (2012): 123–34. http://dx.doi.org/10.9749/jin.126.123.

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Coenen, Dan T. "Untangling the Market-Participant Exemption to the Dormant Commerce Clause." Michigan Law Review 88, no. 3 (December 1989): 395. http://dx.doi.org/10.2307/1289109.

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Buchholz, Christian J., Ralf Sanzenbacher, and Silke Schüle. "The European Hospital Exemption Clause—New Option for Gene Therapy?" Human Gene Therapy 23, no. 1 (January 2012): 7–12. http://dx.doi.org/10.1089/hum.2011.2529.

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Choi, Byeong Gyu. "A study on the cause of exemption clause of previous illness." Korean Insurance Law Association 11, no. 1 (June 30, 2017): 23–49. http://dx.doi.org/10.36248/kdps.2017.11.1.023.

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Richmond-Coggan, W. "'Judicious breaches of trust': where now for the trustee exemption clause?" Trusts & Trustees 12, no. 4 (March 1, 2006): 24–28. http://dx.doi.org/10.1093/tandt/12.4.24.

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Corpuz, Jeff Clyde G. "No-jab, no-job clause: ethical issues and legal impediments." Journal of Public Health 43, no. 2 (April 7, 2021): e405-e406. http://dx.doi.org/10.1093/pubmed/fdab089.

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Abstract Vaccination is considered to be one of the greatest public health achievements in the 20th century. The coronavirus disease 2019 (COVID-19) has triggered a worldwide debate and legal exemption of vaccination and its possible consequences. Now that COVID-19 vaccination programme has started, there is immense pressure from the general public. Following the recent correspondence where the authors have rightly stated the need to take seriously the ethical issues under the COVID-19 vaccination, this paper highlights the ethical and legal impediments of ‘no-jab, no-job clause’ arising in many countries.

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STOICA, Veronica, and Elena (Rada) GARJAU. "PRACTICAL NOTIONS REGARDING THE CONTRACTUAL PROVISION ON THE WARANTY AGAINST THE EVICTION OF SELLING CONTRACTS." Agora International Journal of Juridical Sciences 12, no. 2 (December 23, 2018): 85–91. http://dx.doi.org/10.15837/aijjs.v12i2.3470.

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The contractual provision on the warranty against eviction is a matter in which the parties involved in the making of a selling contract often have tight negotiations. Many times the seller is looking for the exemption of provision of warranty, but is such a clause legally available? In the following we will present you the procedure in which the parties can limit or extend the provision aginst eviction.

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Rautenbach, Christa. "Editorial." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 17, no. 3 (April 24, 2017): 1. http://dx.doi.org/10.17159/1727-3781/2014/v17i3a2297.

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The third issue of PER contains ten articles and one case note on a variety of themes. Shaun de Freitas shares his views on improper irreligious proselytism in religious rights and freedoms jurisprudence within a public school context and introduces an equitable and accommodative understanding of proselytism, which places the potentially harmful effects of both religious and irreligious beliefs on an equal footing with each other. Yvette Joubert and Juanitta Calitz analyse the role of the so-called private examinations in South African insolvency law and deal with the question of whether or not section 417 of the Insolvency Act 24 of 1936 is adequately and effectively framed in order to fulfil its intended purpose in South African law. Howard Chitimira gives a historical overview of the regulation of market abuse in South Africa. He concludes his contribution with a discussion by isolating certain flaws in the previous market abuse laws that were re-incorporated into the current South African market abuse legislation and makes recommendations in that regard. Juanita Jamneck discusses the contemporary meaning of the word "spouse" and the recognition of the family as an important social institution in the light of the provisions of the Intestate Succession Act 81 of 1987. Shannon Bosch reviews the scope and nature of "direct participation in hostilities" in international humanitarian law in the light of the Interpretive Guide on the Notion of Direct Participation in Hostilities issued by the International Committee for the Red Cross. The primary objective of the article by Vinesh Basdeo is to determine if the asset forfeiture measures employed in the South African criminal justice system are in need of any reform and/or augmentation in accordance with the "spirit, purport and object" of the South African Constitution. Eddie Hurter and Tana Pistorius examine the new .Africa Top Level Domain - an Africa initiative to ensure that Africa gets its rightful place in the global network. Geo Quinot tracks the development of the role of functionality in public tender adjudication as prescribed by public procurement regulation since the enactment of the Preferential Procurement Policy Framework Act 5 of 2000, which spearheaded the development of contemporary public procurement regulation in South Africa. Thino Bekker discusses the scope and application of the integration rule in the South African law of contract and deals with the question if rectification can be utilised to avoid the strict application of the integration rule and consequently serve as an instrument for the (indirect) abolition or modification of the rule in the South-African law of contract. Yeukai Mupangavanhu discusses the case of Naidoo v Birchwood Hotel 2012 6 SA 170 (GSJ) in the light of the exemption clauses in the Consumer Protection Act 68 of 2008 (CPA). The case note, which is also the final contribution, by Martha Radebe evaluates the unconstitutional practices of the Judicial Service Commission under the guise of judicial transformation as they came to the fore in the case of the Cape Bar Council v Judicial Service Commission [2012] 2 ALL 143 (WCC).

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Pratiwi, Heni. "JURIDICAL ANALYSIS OF DISCLAIMER CLAIMS BY ENTREPRENEURS ON ONLINE TRADING (E-COMMERCE)." Indonesian Private Law Review 1, no. 1 (September 9, 2020): 43. http://dx.doi.org/10.25041/iplr.v1i1.2047.

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Disclaimer or exemption clause is a clause or statement used by business actors to restrict or transfer the liability on the rights and obligations of an agreement and legal action. The inclusion of this disclaimer seems to be a freedom for business actors to freely transfer their liabilities which aims to provide protection for them selves, while consumers are being disadvantaged because they cannot file claims or hold accountability in case a default occurs. Therefore, the ease on transferring these liabilities as outlined in the form of a disclaimer is considered a violation of the principle of freedom of contract. This study is a normative research with approach carried out through library study with materials related to the problems of examination. The data sources consisted of primary and secondary data. The collected data were analyzed qualitatively.The results of the study showed that: a). The status of the disclaimer according to the law of agreement was declared null and void because it did not fulfill the objective conditions contained in Article 1320 of the Civil Code, namely legal reasons, containing provisions that contravened the law and violation of the principle of freedom of association. b). The validity of electronic transactions viewed from Article 1320 of the Civil Code was only valid if it fulfilled the four valid conditions of the agreement, both subjective and objective conditions. If these subjective conditions are not met, then as a legal consequence the e-commerce sale and purchase contract would be canceled, and if the objective conditions are not met, the contract would be made null and void, c). The form of legal protection for consumers against the first disclaimer/exemption clause, through preventive protection, UUPK (the Consumers Protection Act) has designed a preventive provision by regulating prohibitions for business actors to include disclaimer clause and it is required to adjust the contents of the disclaimer clause regulated in Chapter V Article 18 of UUPK. Second, through repressive protection which aims to resolve disputes in order to protect consumers. The consumers can resolve the dispute through lawsuit (litigation) and without the intervention of the court (non litigation).

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Gold, Azgad. "Physicians' “Right of Conscience” — Beyond Politics." Journal of Law, Medicine & Ethics 38, no. 1 (2010): 134–42. http://dx.doi.org/10.1111/j.1748-720x.2010.00473.x.

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Recently, the discussion regarding the physicians’ “Right of Conscience” (ROC) has been on the rise. This issue is often confined to the “reproductive health” arena (abortions, birth control, morning-after pills, fertility treatments, etc.) within the political context. The recent dispute of the Bush-Obama administrations regarding the legal protections of health workers who refuse to provide care that violates their personal beliefs is an example of the political aspects of this dispute. The involvement of the political system (motivated by specific interests and values) automatically shifts the discussion regarding physicians’ ROC into the narrow area of “reproductive health laws.” Indeed, the immediate association that comes to mind when thinking about the practical implications of this dispute is related to the reproductive health arena. This is partly because of the historical context of the first “conscience clauses,” initially enacted by Congress and state legislatures in the mid-1970s; in fact, most of these clauses provided specific exemptions for abortion and few exempted sterilization as well.

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Hofmann, Mary Ann. "The Church and the Tax Law: Keeping Church and State Separate." ATA Journal of Legal Tax Research 13, no. 1 (February 1, 2015): 36–53. http://dx.doi.org/10.2308/jltr-51086.

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ABSTRACT In a democracy characterized by the separation of church and state, what role does the federal government play in regulating the activities and the financial transactions of churches and other religious nonprofit organizations? What are the current federal requirements regarding tax exemption for churches, tax deductibility of donations to churches, and political activity by churches, and are these requirements justified? Rather than interfering with the free exercise of religion, does the federal government actually come closer to violating the establishment clause of the First Amendment by providing inappropriate tax benefits to churches and clergy? This paper discusses tax laws and federal court decisions relating to these and other issues.

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Okeke, GN, and CE Okeke. "An Appraisal of the Functional Necessity of the Immunity Clause in the Political Governance of Nigeria." Journal of African Law 59, no. 1 (March 13, 2015): 99–120. http://dx.doi.org/10.1017/s0021855315000030.

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AbstractImmunity is an exemption conferred on a person in order to protect him from litigation or persecution. The Constitution of the Federal Republic of Nigeria 1999 as amended accords immunity to the president, vice-president, governors and deputy governors only. The import of this constitutional conferment is that no civil or criminal proceedings should be instituted against them while in office. This singular feature of the immunity clause emphasizes the functional necessity of the immunity which the constitution canvasses for these political office holders. A trial relating to any crime committed by any of them can commence after their tenure in office expires. This raises the issues that evidence against them might have been destroyed, prosecution witnesses may die before the trial commences and changes in the law can enable them to evade justice.

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Martindale, Jeff, and Carolyn Lehr. "Two Strikes: A History and Analysis of Major League Baseball, Its Antitrust Exemption, and the Reserve Clause." Journal of Legal Aspects of Sport 7, no. 3 (September 1997): 174–80. http://dx.doi.org/10.1123/jlas.7.3.174.

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Delamater, Paul L., Timothy F. Leslie, and Y. Tony Yang. "California Senate Bill 277’s Grandfather Clause and Nonmedical Vaccine Exemptions in California, 2015-2022." JAMA Pediatrics 170, no. 6 (June 1, 2016): 619. http://dx.doi.org/10.1001/jamapediatrics.2015.4856.

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Schmidt, Marlene. "The Principle of Non-discrimination in Respect of Age: Dimensions of the ECJ's Mangold Judgment." German Law Journal 7, no. 5 (May 1, 2006): 505–24. http://dx.doi.org/10.1017/s2071832200004818.

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On 22 November 2005, the European Court of Justice (ECJ) delivered a judgement in a preliminary ruling procedure from the Arbeitsgericht München (Labour Court Munich), answering questions concerning the interpretation of Clauses 2, 5 and 8 of the Framework Agreement on fixed-term contracts, put into effect by Council Directive 1999/70/EC of 28 June 1999, and as regards the construction of Article 6 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. Essentially, the Arbeitsgericht wanted to know whether a statutory provision exempting employees of 52 years of age and older from limitations to the conclusion of fixed-term contracts was compatible with Community law.

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Journal articles on the topic 'Exemption clauses'

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