Dissertations / Theses on the topic 'Force obligatoire du contrat'
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Juillet-Regis, Hélène. "La force obligatoire du contrat, réflexion sur l'intérêt au contrat." Thesis, Paris 2, 2015. http://www.theses.fr/2015PA020034.
Full textThe binding force of the contract has a universal effect. This consensus contrasts sharply with the debates that affect the rules governing the binding force : what is the basis of contract ? Should the “cause” and the subject matter (“l’objet”) of the contract remain conditions of its validity ? How to adapt the protection of the consent to standard form contracts ? Should the regime against unfair contract terms be part of ordinary law ? What role should “good faith” play ? What role should the judge play ? Should we accept judicial revision for unforeseeability ? What role should objective interpretation play ? What importance should article 1135 of the French Civil Code have ? What sanctions should be associated to the termination of contract ? Is there a hierarchy between these sanctions ? How to reconcile the proliferation of the exceptions to the principle of intangibility of contract and the overall consistency of the binding force ? To all of these questions, among others, the study intends to answer by uncovering the link that ties together consistently all the rules on the binding force: the point to the contract, which refers to the essential (and “essentialized”) elements that are key to the consent of the parties. Structured around this link, the binding force promotes and ensures the protection of the point to the contract, pursuant to the utilitarian and the social functions assigned to it. Being both the basis and the measure of the binding force, the point to the contract unifies the body of law that governs it
Mylonas, Théodora. "La force obligatoire du contrat de travail." Toulouse 1, 2001. http://www.theses.fr/2001TOU10064.
Full textThe study of the compulsory side of work reveals its double dimension. Last adjustement of the law rule to the needs of contracting party, the contract is both a security vector and an adaptation factor
Lafaurie, Karl. "La force obligatoire du contrat à l'épreuve des procédures d'insolvabilité." Thesis, Bordeaux, 2017. http://www.theses.fr/2017BORD0696.
Full textWhile some opinions of the modern legal scholarship tend to a renewal of the classical contract law analysis, especially with regard to freedom of contract which formation is submitted to numerous legal limitations, the prevailing view is still that sanctity of contract is an absolute principle. The traditionnal presentation leaves room for very few adjustments of contract once concluded, these alterations being deemed to be infrigments to sanctity of contract, so that the respect of the principle would necessarily require a faithful performance of what was intended and determined at the formation of the agreement. Nevertheless, confrontation of sanctity of contract with rules of insolvency (i.e. the law relevant to companies and individuals in situation of bankruptcy) impose to reconsider the theoretical conceptualisation of the former. Indeed, this law substantially affects both irrevocability and immutability of contract, two principles classically considered as consequencies of sanctity of contract. By the way, noteworthy is the extension of the scope of exigibility to insolvency proceedings thereupon permitting every juridical person to benefit from contractual modifications they give rise to, provided that legal requirements are fulfilled. As a result, any party to a contract is conversely exposed to the risk of his co-contractor being subjected to an insolvency proceeding. The absolute doctrine of sanctity of contract must therefore be rejected and the relativity of the concept ascertained, technically this proposal is substantiated with a new approach of allocation of contractual risks, including the specific risk of insolvency
Ouelhazi, Rafik. "Le juge judiciaire et la force obligatoire du contrat." Université Robert Schuman (Strasbourg) (1971-2008), 1997. http://www.theses.fr/1997STR30015.
Full textThe obligatory force of the contract is the constraining character that the contract take on. And whitch by virtue its execution is imposed. And its admitted that this rule of the law of the contract is imposed not only on the parties but also on the judge who has to assure the execution of the available contract he is seised upon. So, must the judge impose on the parties the litteral execution of agreement, or can he, specially on the presence of a contract manyfestly unjust, to change the content? Owing to the classical concept, the contract gets its obligatory force from the will of the parties, the judge is banned from interferring in conventions in order not to oppose the so called will. For this concept, every deliberate contract is necessarily a fair contract. However, the idea that the contract is faire by definition is contradicted with the reality of facts. And its in the frame of this concept that injustice prospered. Indeed, the idea of this concept which tells that the autonomy of the will constitutes the foundation of the obligatory force and justifies the interdiction of the interference of the judge in the contract is disputable. Actually, the contract draws its obligatory force in the low which cover it by this character for its social utility which supposes not only the security but olso justice in the exchange of relation ships. Consequently, since it is the foundation of the contract, and since the role of the judge is to give his full effect to this principle, when hi is to make it into practice, it is the judge s duty to whatch over the imperatives wich are at its origin. Indeed, the satisfaction of this imperatives frequently passes through the interference of the judge in the contract wich is revealed, consequently, conforming with the principle evoked
Lemay, Pierre. "Le principe de la force obligatoire du contrat à l'épreuve du développement de l'unilatéralisme." Thesis, Lille 2, 2012. http://www.theses.fr/2012LIL20011.
Full textSaidani, Hariz. "La rupture du contrat." Thesis, Toulon, 2016. http://www.theses.fr/2016TOUL0101/document.
Full textContractual litigation arises when one of the parties fails to fulfill its obligations. Its main concern is to fight against abusive and arbitrary breach of contracts. In the French civil law, the judge occupies a very important place when debating breach of contracts. It is impossible to alienate the judge when it comes down to contract breaches. In fact, he insures that the interests of every concerned party are protected. He also guarantees that fair and equitable sanctions will be applied. Traditionally, the judge was very important when discussing breach of contracts. However, this trend is beginning to dissipate. In general, the judge plays a very important role in contract law, but his role is primordial when disputing contract termination. Effective protection of the parties would give the intervention of the judge a greater utility. It is essential that the judge remains an important actor when it comes to breach of contract as his role is to guarantee that the law is respected and that every party is adequately protected. On the contrary, it could reduce the importance of the current Civil Code to a mere catalog of laws governing the annulment contracts
Charpentier, Elise M. 1965. "L'équilibre des prestations : une condition de reconnaissance de la force obligatoire du contrat?" Thesis, McGill University, 2001. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=38446.
Full textNiki, Bokanga. "La force obligatoire de la Convention collective de travail en droit français et anglais." Université Robert Schuman (Strasbourg) (1971-2008), 1992. http://www.theses.fr/1992STR30004.
Full textThis study highlights the legal means assuring the enforcement of the collective agreements in french and in english law. However, the non contractual nature admitted for the collective agreement in Great Britain made vain the undertaking of a pure study of the positive law. Legal theory has enabled the overcoming of epistemological obstacles the theory of plurality of legal orders, has been used as a grate for for analysing the sanctions provided by the state and the autonomous (industrial relations) legal orders. These sanctions have been distinguished as negative and positive
Receveur, Bee. "La Force obligatoire du contrat de société : contribution à l'étude des relations entre droit des contrats et droit des sociétes." Phd thesis, Université de Cergy Pontoise, 2013. http://tel.archives-ouvertes.fr/tel-00949391.
Full textEl, Harti Mohammed. "Le juge et la force obligatoire du contrat : étude comparative du droit français et du droit marocain." Thesis, Paris Est, 2012. http://www.theses.fr/2012PEST0045.
Full textThis study is a research of comparative law about one of the problems that arise concerning the role of the judge in resolving some problems related to the binding force of contracts.This topic leads us first to examining the judge's discretionary power in the determination of the parties' obligations by virtue of the contract by comparing two approaches, seemingly distinct from each other. One pertains to the French legal system favouring a subjective interpretation of wills. The other pertains to the Moroccan legal system where the objective interpretation is required.Anyway, the violations generated by the penal clauses made the legislator authorize the judge to reform the penal clauses that are manifestly excessive or derisory. Another reform came ten years later to reinforce the evaluation power of the judge. This 1985 French law has no equivalent in the Moroccan law. Therefore, the Moroccan judge, unlike the French one, cannot intervene to moderate the penal clauses that are manifestly excessive or derisory.Concerning the theory of frustration of purpose, the Moroccan law, like the French one, adopts a very classical position about the issue of revision for frustration of purpose.Finally, the comparative study reveals the principal role of the judge concerning the issue of contract dissolution. The legislator requires the creditor who wishes to obtain the dissolution to refer to the judge imperatively. In order to facilitate the task of the creditor, other forms of dissolution have been created by the French and Moroccan systems, mainly the dissolution clause by which the role of the judge is reduced to noticing the dissolution rather than declaring it, as is the case for judicial dissolution. Still, the growing influence of objective factors such as lack of good faith, make us reconsider the primary role of the judge which tends to impede the dissolution clause by favoring contractual efficiency.If the French judge may modify the execution chronology in contract violation, the classical conception of the Moroccan law maintains its strict position despite the most absurd situations
Attias, Benjamin. "La survie du contrat." Thesis, Paris 11, 2015. http://www.theses.fr/2015PA111005.
Full textFrom a reform of law of obligations standpoint, and while contractual relationships become evermore complex and are meant to last, the contract may need to be protected. Respect for the word given by the contractors, due to the trust that the parties have mutually granted, is not always an easy task for the parties, who may see the contract be extinguished without any satisfaction.The nullity of the contract, by way of invalidity, but especially the risk of default, which can lead to the resolution or the lapse of the contract, threatens the existence of the contract that must be saved. Such survival of the contract, which is intended to enable the achievement of the contractual objective, is foreseen by implementing remedies for the deficiencies of the contract and, more generally, the risk of treatment failure. This right to remedies, already present in positive law, must be extended by a systematization of survival so that it may be possible to integrate a remedy into a new version of the contract.For this, it is essential that preexisting obligation, for which execution is possible, be maintained in order to overcome the threat of default. This prior condition, extensively applied and designed to preserve the satisfaction of the creditor, is possible. From the pre-contractual period to full termination of obligations, including post contractual obligations, through the preservation of the execution, then survival is possible. But at what price?The systemization of contract survival can fix the limits of the mechanism. Implementation difficulties must be addressed by a change, for a breach of the inviolability of the contract, but this achievement is sometimes synonymous with protection of binding and legal security contractors. Loyalty and good faith sometimes provide some ways out for the creditor, but will achieve the contractual objective. However, limits should be incorporated to protect the interests of creditors, whom should not have to endure the painful contractual situation
Jabbour, Rita. "La bonne foi de l'article 1134 alinéa 3 du code civil." Thesis, Paris 1, 2015. http://www.theses.fr/2015PA010302.
Full textDespite having a simple and concise formulation, Article 1134, paragraph 3, of the Civil Code has been the subject of great controversy in recent years. Via confusion and distortion, good faith gained a distended scope, destabilizing the binding commitment. A refinement of the concept was therefore required. It reveals a contained notion, bound to a specific function : the control of contractual behavior. In reality, good faith acts to secure the relational/interpersonal frame of the contract. Transforming mistrust into trust, this provision reflects the renewed recognition of the bond to a law that the parties have freely created. This justified the reconsideration of the basis of the mandatory power of commitment by virtue of a new founding principle : the alliance. The breach of good faith is then objectively assessed in the light of legitimate expectations generated by the alliance. Invigorated, good faith uncovers a specific legal content, and its events are categorized where before casuistry seemed to triumph. The analysis of the good faith regime has likewise helped to discover its variations. Owing to the fact that not all conventions share the same strength, the fluctuations of article 1134, paragraph 3, are measured according to their sole evaluation criterion, that being legitimate expectations. Another key held in theorizing sanctions pertinent to good faith achieving its return to the contract. Restored to its very essence, this legal standard finds its way, that of the right measure
Van, Haecke-Lepic Sabine. "La distinction entre la formation et l’exécution du contrat : contribution à l’étude du contrat dans le temps." Thesis, Paris Sciences et Lettres (ComUE), 2017. http://www.theses.fr/2017PSLED051.
Full textWhile studying the distinction between the preparation and the execution of a contract, a reflection on a new alternative to the contract of instantaneous performance imposed itself: an adjustable circumstance-based contract. Devoted to a timeless model of contract, contract law has built itself on a pipe dream. Indeed, the negation of time’s infiltration in a contract led the boundaries between preparation and execution to crack apart. In front of this situation the expectations for clarification with the reform were numerous. However, the 2016 reform of contract law, although systematising the scattered provisions of case law, did not drew the needed conclusions by sanctioning the possible incompleteness of a contract in its preparation. Still ignoring time’s impact in time-based contracts, the 2016 reform has worsened the splitting of concepts and prevented the evolution of common right. Thus the author focused on embracing the whole of contractual reality and developing alongside the swap contract: the adjustable circumstance-based contract. Contract law has indeed been confronted to types of contract that struggled to integrate duration but which, in the need to happen alongside a unique swap model, distorted its concepts. This is why the offer of an adjustable circumstance-based contract would be able to reconcile, in contract law, the contract culture of swap and the contract culture of cooperation which arise in duration
Van, Den Bavière Aurélie. "La prévision contractuelle." Thesis, Paris 1, 2019. http://www.theses.fr/2019PA01D058.
Full textIs contract an act of forecast ? This question does not seem to raise an interest. Often seen as attached to a classic and subjective vision of contract, marked with rigidity, contractual forecast would belong to the past. Facing the contemporary evolution of law, less and less closed to judiciary and legal interventionism, the idea of a contract which is “la chose des parties” – meaning it rests exclusively on the parties will – seems outdated. The development of contractual patterns needing some kind of flexibility would seem to demonstrate this clearly. Moreover, even if the idea of forecast is tempting, it does not fit the reality: the eventuality of breach or revision of the clauses of the contract questions the idea of an act fixing the future. Following this logic, contractual forecast would seem to belong to an outdated and unrealistic idea of contract.However, this conclusion may seem hasty, because forecasting in contract law has not been deeply studied. It seems therefore impossible to determine if contract is an act of forecast or not. Therefore, this study aims to precisely identify the notion of contractual forecast before looking to study and analyse if the law tends to it.This study's results imply that, surprisingly, contractual forecast belongs to a very modern vision of contract. Both subjective and objective, it covers every contractual pattern and is not opposed to flexibility. In addition, as a purely legal notion cleared of any natural uncertainty, it promotes security and trust, and contractual law assures its realisation
Le, Bideau Clément. "Engagement et désengagement contractuel, étude de droit de la consommation et de droit civil." Thesis, Université Grenoble Alpes (ComUE), 2015. http://www.theses.fr/2015GREAA006/document.
Full textOn one hand, the commitment is at the heart of the social link, therefore the civil lawyers granted it a crucial place within the sphere of the law. It is particularly true for contract law. On the other hand, it is not possible any more to ignore the phenomenon of the right of withdrawal. The increasing place of the latter, led the doctrine to deal with it, to be interested in the rules, which plan regarding contract law a faculty to regret. Considering it, it seems to us particularly interesting to deal with the "commitment", by confronting it with its contrary, the "right of withdrawal". It could, we believe, change the way both can be apprehended. Therefore, we focus on the consumer law, which is, for us, the highest expression of the right of withdrawal
Lefer, Camille. "Les droits potestatifs dans le contrat de travail." Thesis, Paris 2, 2016. http://www.theses.fr/2016PA020039/document.
Full textA potestative right allows his holder to create, modify or extinguish another’s legal situation. The employment relation, as for it, is marked by a logic of power(s). How, in these conditions, does the concept of potestative right enter the employment contract? How does the latter receive the potestative right ? What sacrifices should be made by the potestative rights ?If potestative rights are accepted in the employment contract, it is only in a framed, supervised and limited way. Potestative rights are then controlled and sanctioned by judges willing to enforce both its spirit and limits.However, since the potestative right is applied through a unilateral act, because it concerns the ability to impose one’s will upon others, shouldn’t the interests of the recipient be preserved, at the very least? The object of the employment contract, the subordination of the employee, therefore leads towards the question of the place to begiven to the employee’s fundamental rights and freedoms
Elineau-Yannakis, Christelle. "La substance de l'obligation contractuelle." Thesis, Lyon 3, 2014. http://www.theses.fr/2014LYO30066.
Full textBy the much acclaimed decision of July 10, 2007, since reiterated, the Commercial Chamber stated that “if the rule according to which conventions must be executed in good faith allows the judge to sanction unfair use of a contractual prerogative, it does not allow it to undermine the very substance of the rights and legal obligations agreed between the parties”. It has opposed the substance of the obligation to the prerogative. This innovative solution arouses some questioning. The aim of this study is to incorporate the concept of substance of the obligation under the common law of obligations. Firstly, it is essential to define the concept. Considered as the intangible heart of a contract, it must be understood as the legitimate expectation of the reasonable creditor of the essential obligation. Confronted to notions of cause and compulsory value of a contract, it shows its ability to rethink the law of obligations. It highlights the articulation of the first and third paragraphs of article 1134 of the civil Code, and the hierarchy even within the first paragraph of that article. Secondly, the originality of its regime must be assessed. The concept of substance of the obligation intervenes in the conclusion of the contract, as well as during its execution. It completes the system of error-barrier allowing the sanction of the error on the economic profitability of the contract. It also simplifies the system of the clause relating to its detriment. It allows a rethinking of the system of vagueness, opening the way to futility and judicial review of the contract. Interpretive powers and judicial intervention in the contract are refined. It is ultimately the guiding principles of contract law that are redesigned. The concept of substance of the obligation therefore falls out with the independent willpower. Lastly, it restructures the compulsory value of a contract
Cassiède, Marc. "Les pouvoirs contractuels : étude de droit privé." Thesis, Bordeaux, 2018. http://www.theses.fr/2018BORD0278/document.
Full textThe contemporary evolution of the private law of contracts is marked by the multiplication of the hypotheses in which one or other of the parties has the possibility of acting alone on the content or fate of a definitively formed contract. For example, since 1995, it has been accepted that one of the parties to a framework contract can only fix the price. Similarly, in the event of a serious breach by one of the parties, the other party may, at his own risk, proceed to the termination of the contract. These two types of contractual prerogatives belong to a broader category that the doctrine commonly refers to as "contractual powers". However, contractual powers disrupt the traditional rules of private contract law in two respects. On one hand, contractual powers introduce a unilateralist logic, synonymous with inequality, in the contract that traditionally responds to a consensualist logic synonymous with equality. On the other hand, the mechanism of contractual powers implies a redefinition of the judge's place in contractual disputes since the latter will no longer necessarily be seized to settle disputes between the parties relating to the performance of the contract. It will be seized after the modification of the effects of the contract decided unilaterally, and this, by the party who intends to contest the regularity. To devote a study to the contractual powers therefore presupposes seeking to identify more precisely this mechanism that introduces into the contract a logic of power that is not its own, and then attempts to define the contours of the judge's intervention
Davant, Jérôme. "Les incidents liés à la protection juridique des investissements étrangers en Chine : effectivité des voies de recours." Thesis, Montpellier 1, 2010. http://www.theses.fr/2010MON10050.
Full textThe objective of this thesis is to bring insights into the understanding of the evolution of business law in China and in particular on the tools of investment protection used by foreigners in this country. This paper analyses the events related to the protection of foreign investments as well as the efficiency of arbitrative solutions in the case of problems
Gabayet, Nicolas. "Les contrats publics à l'épreuve de l'aléa en droit anglais et français." Thesis, Aix-Marseille, 2013. http://www.theses.fr/2013AIXM1004.
Full textThe question of the treatment of uncertain/unforeseen events affecting public contracts seems to oppose in an immeasurable way English and French laws. While, in French law, general rules provide, in the public interest, the treatment of uncertain/unforeseen events affecting public contracts without the consent of the contractors, no such provisions exist in English law, where the sanctity and intangibility of contract prevails. Thank to this antagonism, the proposed comparison enables to highlight the deep motivations of the treatment of uncertain/unforeseen events affecting public contracts, through the theoretical opposition between sanctity of contract and public interest. In this respect, the general rules allowing, in French law, the treatment of the uncertain/unforeseen events without the consent of the parties appear to be based on an economic and teleological approach of the contract and its biding force. Surprisingly, the latter approach can also be noticed, in some respects, in the English law of contracts. Moreover, the priviledged mean to treat uncertain/unforeseen events in England as well as in France is the agreement of the parties – whether ex ante or ex post. Nonetheless, the possibilities of variating the contract in the course of its performance have been drastically limited by the European Union law. By contrast, the intial terms which tends to erect an autonomous regime of treatment of uncertain/unforeseen events through the spreading of standard terms appear to be the major and indispensable mean of adaptation of public contracts in the course of their performance
Kolimedje, Yelian Léonce Frédi. "La théorie générale des contrats d'affaires dans l'espace OHADA." Thesis, Paris 1, 2018. http://www.theses.fr/2018PA01D002.
Full textThe business Law in Africa appears as a labyrinth in front of which we show vague desires to get. Actually we notice a superimposing of resulting standards from a diversity of legal instruments. The diversity is the resultant of an outfit of economic zones (UEMOA,CEMAC, ECOWAS, in particular), a kind of several European unions based on two fundamental legal systems which coexist : Civil Law and Common law. So, there is a difficulty considerably reduced, but far from being finished inherent to the even judicial legal insecurity. With the aim of establishing a point of attraction to the foreign investors especially, and in a concern of contribution to the work of «standardization» and not simple harmonization of the business law which the legislator of OHADA has begun since October 17th 1993, at Port-Louis in Ile-Maurice, by setting up the Treaty of the Organization of the harmonization of Busines law in Africa, it seems to us imperative and convenient to develop and strenghen a general theory relative to contracts. The general theory within the framework of our researches will limit itself to business contracts because we start from the postulate that this category of contracts constitutes the base of any economic operations. The general theory of business contracts would then mean setting up a common law of business contracts in OHADA area. The aformentionned general theory of business contracts has to fin its anchoring in the pre-existent measures without giving up the introduction of new rules susceptible to contribute to its success. However they have to remain compatible with the various uniform Acts of the OHADA, the ingenious work already achieved by the legislator ofthe OHADA and especially not reject the inheritance of the french legal system in order to be effective. Our reflection will find its base in the study of substantive law of the OHADA and French, and, the forward-looking law emanating from drafts from the contract law on one hand, but also from miscellaneous other legal instruments on the other hand, which will allow us to establish the legal rules even the measures that must prevail in the contractual business relationsof the OHADA, to highlight the homogeneity, the uniqueness or the diversity of this contractual business system, to point out the faithful relation or not that the OHADA with the french legal system maintains
EL, Ghafloul Eid Ahmed. "L'insertion et la force obligatoire des normes internationales conventionnelles en droit interne égyptien." Paris 2, 1995. http://www.theses.fr/1995PA020159.
Full textLabarthette, Davy. "Contrat et prévision : contribution à l’étude des fonctions du contrat." Pau, 2004. http://www.theses.fr/2004PAUU2006.
Full textThe contract as an act of prevision. The drawing-up of the contract plays and essential part of the agreement itself : it organises the action by forsight, and in doing so endows the contract with security by respectfully guaranteeing the execution of its anticipations. In as far as circumstances allow in modern private law, it is the function of the act which is the object of the present study. In this respect, it appears that the duty of prevision is fully assumed by the contract although, at the same time, it seems to be neglected by the general theory of contract. Today, the parties have the means to fight against personal weaknesses thanks to the use of purely voluntary mechanics. Certain negotiated procedures allow them to face outside risks equally in order to protect the permanence of the agreement. Their use reveals itself as indispensable as since positive law, which carries a rigid conception of time, does not systematically have the concern of safe guarding relationships. The theory of unforseeability which favorises their durability is not always admitted, despite resources of the required good faith. The act of God's theory is unreliable. Although the agreement allows for the setting-up of methods of survival as protection of the parties, they are nonetheless not always respected sufficiently
Waterlot, Maxence. "L'effet réel du contrat." Thesis, Bordeaux, 2015. http://www.theses.fr/2015BORD0348.
Full textFor the dominant legal doctrine, a contract is an act creating obligations between parties. This subjective approach, centered on the parties’ personal liability tends to preclude any justification of a potential effect in rem – i.e. a limit to the free exercise of legal powers on the subject matter of the contract. By agreeing to the contract, the contractor not only takes on an obligation, but also pledges to allow the completion of the contract, which implies his submission to a limitation of his rights, especially those relevant to the subject matter of the contract. In addition, as it may carry an assignment of property, a contract cannot be reduced to a simple creation of obligations. The admission of effets in rem makes it possible to establish the duties of an owner bound by a unilateral promise to sell and to explain the commitment of a lessor or of a shareholder bringing assets into the business. Ignored by law and by doctrine, the in rem effect of a contract cannot be fully understood through pre-existing notions. The subject of the study therefore consists in developing an entire theory of effect in rem of contract. In conclusion, it will appear that its recognition is a necessity to fully measure the scope of contractual liability
Thibierge, Louis. "Le contrat face à l'imprévu." Paris 1, 2009. http://www.theses.fr/2009PA010323.
Full textGrosser, Paul. "Les remèdes à l'inexécution du contrat : essai de classification." Paris 1, 2000. http://www.theses.fr/2000PA010286.
Full textBissaloue, Sylvie. "La renégociation contractuelle en droit français et en droit de l'OHADA." Thesis, Aix-Marseille, 2016. http://www.theses.fr/2016AIXM1051.
Full textRenegotiation remains one of the most exciting but also the most controversial judicial mechanisms of the last two centuries. In long-term relationships, which are more sensitive to changes in circumstances, contract efficiency and flexibility are linked. Since the Craponne Canal 1876 legal judgment, it was assumed that renegotiation could arise only when supported by the parties or the contractual term. In France, the 2016 civil code reform breaks with this case law and definitively establishes the doctrine of unforeseeability. Although important progress has been made, the duty to renegotiation still remains unclear. This is also the case for the recognized importance of contractual autonomy. The OHADA law is favorable for renegotiation. Launched as part of a set of uniform judicial acts on contract law, the legislator intends to devote renegotiation for hardship. This law could well learn from the reform of French law, but also from the experience of African courts. African judges, quickly became aware of the inadequacy of a rigorous application of the civil code of 1804 to legal cases consistent with the African socio-economic context which is different from that of a french defendant. As a consequence, these judges, using various strategies, would often impose contract renegotiation when necessary. Nowadays, renegotiation is commonly used in trade and this might well strengthen the OHADA legislator in developing the future uniform act on contract law. For this, information provided by the arbitral jurisprudence on the matter will be valuable
Berthelot, René, and Marie-Hélène Salin. "L'enseignement de l'espace et de la géométrie dans la scolarité obligatoire." Bordeaux 1, 1992. http://www.theses.fr/1992BOR10663.
Full textRevet, Thierry. "La force de travail : étude juridique." Montpellier 1, 1991. http://www.theses.fr/1991MON10018.
Full textOriginally an economic notion, the work-force is a much debated subject as far its juridical situation is concerned. This is because it corresponds to an ambivalent reality : it refers as well to human person as to personal property, to subjects as to objects of law, etc. Some of its main characteristics may however be identified : the work-force can be subject of contract and source of value. A contract of employment deals with the work-force. Through subordination, that work-force turns into object, for it is mentally dissociated from the person itself because of the modification of the debtor's subjectivity. The principle of freedom of of employment validates this process. As an instrument of objectivization of the work-force, subordination establishes too the agreement concerning of the work-force : placing something at somebody's disposal. Source of value, the work-force has not usually an effect on the jurudical situation of the products of exploitation or of the transformation of preexistent goods. In return, the work-force influences in principle the juridical situation of the products coming out only from the display of labour. One can infer from the sole quality of product of work an outline of privative reservation
Guessoum, Ahlam. "Force exécutoire et obligation : essai sur l'exécution forcée en droit privé." Thesis, Grenoble, 2014. http://www.theses.fr/2014GRENA011.
Full textThe breach of duty by the debtor is a crucial moment in the "life" of the obligation. The force of the obligation to provide effective remedies to the creditor arises with the more acute at this time. Analyze the obligation in terms of its practical effectiveness leads to an immediate conclusion. The obligatory (or binding) force that permeates the system of obligation , is assigned a function whose effectiveness is , however, in the context of the failure , residual . Ineffective , at this moment, the binding force is not, in any way, the basis of assent required by enforcement . But without withdrawing this force any utility, binding force can cause spontaneous payment of the obligation without any conflict related to execution. However, both the definition of punishment that duress evoke the concept of force and enforceability. Enforceable obligation, therefore, appears when economic efficiency is searching consecutively to a finding of non-performance. Taking into account the obligation in its forceable systemen prompt to think the concept of enforceability beyond its traditional meaning : the enforceability is not defined exclusively as a skill. Thus, embodied in an enforceable act , enforceability is, and beyond a simple condition of this act, a force in relation to the obligation. The effectiveness of enforcement depends entirely on the effectiveness of the enforceability of which is attached to the writ of execution. The enforcement act is not a simple instrumentum matching the probative value of authentic instruments and its enforcement, but it is also a negotium, which enforcable obligation is an element.No execution can be implemented in the absence of enforceable , no enforceable act can be implemented without enforceable obligation
Celebi, Özgün. "La répartition des risques dans le contrat." Paris 1, 2010. http://www.theses.fr/2010PA010317.
Full textSalama, Saber A. Osman Filali. "L'acte de gouvernement contribution à l'étude de la force majeure dans le contrat international /." [S.l.] : [s.n.], 2000. http://theses.univ-lyon2.fr/sdx/theses/lyon2/2000/salama_s.
Full textSalama, Saber A. "L'acte de gouvernement : contribution à l'étude de la force majeure dans le contrat international." Lyon 2, 2000. http://theses.univ-lyon2.fr/documents/lyon2/2000/salama_s.
Full textThe object of this thesis is the effect of the State restraints on the transnational contracts. In the first part, the restraints measures are firstly analysed via the technical methods used by the public authorities. Secondly, the restraints are analysed in two hypothesis : when the state is a part of the contract (state contract strecto sensu) and when the contract is done by a state corporation (state contract lato sensu). Finally, the act of state is examined in consideration of its sources (lex fori, lex contractus,. ). In the second part, we analyse the legal statute of the act of state i. E. Conditions and legal effects on liability and performance of a contract
Szurek, Sandra. "La force majeure en droit international." Paris 2, 1996. http://www.theses.fr/1996PA020050.
Full textFarnocchia, Serge. "L'excuse contractuelle : étude de l'inexécution fortuite du contrat." Aix-Marseille 3, 1994. http://www.theses.fr/1994AIX32011.
Full textThe aim of this thesis is to study the different causes of exemptions of contractual liability through their nature, their features, and their effects. The features of the excuse can be analysed through the concept of "act of god", but also through other causes of exemption, the existence of which only becomes clear after ascertaining the different degrees of contractual duty. The effects of the excuse can be both an extinguishment or a modification of the obligation : first, the excuse can cause an extinguishment by the cancellation of the different terms relating to the breach of contrat, or by the cessation of the contract itself so that it is no longer binding for any of the parties ; it can also cause a modification when the parties to the contract or a third party decide that the contract will continue while being affected by a delay or a change of the obligation
Ibara, Rochfelaire. "L’aménagement de la force majeure dans le contrat : essai de théorie générale sur les clauses de force majeure dans les contrats internes et internationaux de longue durée." Thesis, Poitiers, 2012. http://www.theses.fr/2012POIT3006/document.
Full textThe statement of force majeure provisions in long-term internal and international contracts is based on the ground of the freedom of contract and promoted by the inefficiency of suppletive risk allocation norms in modern legal systems. The recognition of their enforceability still subject to uncertainty due to the misunderstanding of their drafting and their judicial construction that is commonly said to amount to squaring the circle. Base on the influence of the uncertainty conditioning the subject-matter and the value of the obligation to guarantee underlying force majeure clauses, a fundamental summa divisio is drawn up between risk assessment and risk attribution agreements. The first clauses are subject to the uncertainty of a legal nature and should follow the random legal acts framework. The second are affected by the uncertainty of economic nature and should depend to the commutative legal acts framework even though force majeure clauses are unduly treated in case law as exclusion clauses. De lege ferenda, the force majeure clauses regime is expected to be rationalized with the integration of the reasonable reasoning as a fundamental guiding principal of French contract law so that to implement the summa divisio of force majeure agreements by adjusting distributively the risk assessment clauses unreason through the reasonable compliance test and the risk attribution clauses abuses through the reasonable modulation test
Iye, Ali Moussa. "Le Pouvoir du verbe et la force de la loi : étude du "Xeer", contrat socio-politique des pasteurs Issas." Grenoble 2, 1988. http://www.theses.fr/1988GRE21015.
Full textThe object of this research that can be situated in the context of the work concerning the cuchitic populations of the horn of africa in general and the somali people in particular is the study of the "xeer issa" - the socio-political contract of the issas - the issas tribe is one of the bigest somali tribal groups they have founded what was called the "pastoral democraty" - this work describes and analysises for the first time the structures of the penal law and the political constitution of the issas tribe confederation united by the "xeer" - this study tries to explain the specificity of that contract by localising the issa people in their human, geo-physical and his- torical environnement : the horn of africa -
Iye, Ali Moussa. "Le Pouvoir du verbe et la force de la loi étude du Xeer, contrat social et politique des pasteurs Issas /." Lille 3 : ANRT, 1989. http://catalogue.bnf.fr/ark:/12148/cb37616792f.
Full textLe, Roy Dominique. "La Force majeure dans le commerce international." Paris 1, 1991. http://www.theses.fr/1991PA010267.
Full textThe notion of "force majeure" figuresin all the juridic systems, but these differ as far to the characters which they attribute to it. The international trade agents confronted with this diversity, which is imperfectly resolved by the conflict of laws, had tried to found a solution with specific clauses or by recourse to arbitration in case of dispute. However, it is more by precising the manner to front the consequences of the difficulties created by the "force majeure" than by its definition that the protagonists had put in evidence an uniform procedure. The contractors do not wish to renounce to the contract execution : even when it is greatly compromised, whole is done to preserve a part of it. The solution has been made possible by the development of duties of each party. Two aspects have to be distinguished: mutual information and cooperation to minimize the consequence of the "force majeure"
Jazmati, Ola. "La sécurité de la formation du contrat de vente conclu sur internet : étude comparée en droit français, égyptien et syrien." Thesis, Rennes 1, 2019. http://www.theses.fr/2019REN1G002.
Full textThe dematerialization of the sales contract gives rise to problems of confidence. This has a negative impact on the evolution of e-commerce. International legislation as well as French, Egyptian and Syrian legislation take into account the importance of trust in the digital economy. They adapt their laws to ensure the security of the contract of dematerialized sales. They do not take only measures when forming the sales contract, but they adopt also measures to ensure the probative security of this type of contract. Syrian and Egyptian laws consider only the specificity of the contract of electronic sales in terms of consumption. The peculiarity of e-commerce, however, has been dealt with by Egyptian doctrine, drawing inspiration from French civil law. The French legislator imposes measures during the formation of the contract that are stricter in terms of consumption. In this study, we considered the legal rules relating to the formation of the contract of electronic sales in order to evaluate the measures taken by the legislations which aim to reinforce the confidence in the electronic sales contract. We also analyzed the e-discovery rules for electronic modes of proof to determine whether these rules are effective with regard to the probative security of the contract
Ternynck, Élise. "Le juge du contrat de travail et la preuve électronique : essai sur l’incidence des technologies de l’Information et de la communication sur le contentieux prud’homal." Thesis, Lille 2, 2014. http://www.theses.fr/2014LIL20015/document.
Full textProcedure in labour contentious matters is the most significant place to observe the judicial reception of e-proof. Pragmatism and flexibility of the elected industrial tribunal offers a field of study which is suitable to observe the axiological confrontation between ICT and labour law and to observe the practicalconsequences of the inclusion of such proof in the litigants’ argumentation. This research endeavours to demonstrate that the use of e-proof receives a mixed appreciation from the Judge of the contract of employment. Indeed, he adopts a paradoxical behaviour: on the one hand, he shows boldness and takes part in the recognition of the e-proof during the phase of producing evidence; but on the other hand, he seems to be reluctant to make use of it in an effective manner. The result of this study is disappointing when considering the credibility given to e-proof is not equal to its procedural utility; it deserves to be the subjectof a more ambitious approach and of a general and more in-depth reflexion
Berne, de la Calle Cédric. "Le contentieux de la résolution du contrat au regard de l'article 1184 du Code civil : éléments pour une stratégie du créancier." Thesis, Aix-Marseille, 2014. http://www.theses.fr/2014AIXM1027.
Full textCreditor's strategy in case of breach of contract is often avoided because of full theories.It could be described as a tacit phenomenon. Elements of judicial dissolution are studied in a way to discover a legal institution made by independent mechanisms which each have their own spring. Starting with article 1184 of French Civil Code, the aim of the study was to grasp the spirit of "judicial dissolution" of contract, also the legal institutions it contains, formally or tacitly, checking all the law doctrinal knowledge, supposed to be certain and proposing a perspective for this particular judicial termination of contract.Judicial dissolution composed of eight themes is a study trying to share into a mass knowledge relative to the action's area, the fortuitous event (irresistible force), the breach of contract itself, which is officially established into a formal notice. When the judge is seized, the creditor has a legal option between dissolution or enforced performance offered by article 1184 paragraph 2, which leads to the question of judicial characteristic - involving an important argument - of the dissolution.Finally, judicial dissolution causes apparent consequences : retrospective effect on contract but, overall, there are specific effects : termination of contract involving return of goods, values and performances between parties coming from the judicial decision.If dissolution's concept had been studied before into its fundamentals, its story or its diverse forms, it allows to explore the reverse side of this theory into as a new critical reading which recalls the original function of this legal action : to permit creditor to defend in case of breach of contract
Li, Yingyi. "Des Prérogatives de contrat administratif : comparaisons entre droit chinois et droit français, entre droit administratif et droit contractuel." Thesis, Paris 2, 2017. http://www.theses.fr/2017PA020032.
Full textThe theory of prerogatives of administrative contract transplanted from the French administrative law has triggered such a longtime debate in the judicial community that a unified national legislation has been absent even today. Actually, in the French administrative law, composed mainly by Case Law in this domain, there is not only a series of conditions to enforce each prerogative, but also a protective mechanism to keep a financial balance of contract for the final justice. However, based on a preference to the Power rooted from the legal traditions and the political regime of China, combined with certain contemporary facts, Chinese researchers have partially highlighted the former but ignored the latter, leading to the failure of this legal transplant. Actually, as a type of administrative power, the prerogative should not be considered into the proper system of contract composed by the conventional rights and obligations, but refers to the legal authority of administration that should be controlled by the legal responsibility. In addition, it could be considered as the breach of contract too, so that the administrator should take the contractual responsibility based on the Theory of no-fault, on the Relativity of contract and on the Force effect of contract; thus the administrative responsibility hereof could be assumed for the breach of contract, for the quasi-tort out of contract and for the illegality. No matter which pattern would be followed by the future legislation in China, an independent and influential judicial system should be the final protection of all legal systems including the administrative contract
Baban, Inessa. "La géopolitique de l'énergie en Eurasie Centrale. Rivalités de pouvoirs et rapports de force autour des hydrocarbures de l'Azerbaidjan et du Turkménistan." Thesis, Paris 4, 2013. http://www.theses.fr/2013PA040190.
Full textThis dissertation focuses on the energy and geopolitical issues of two Central-Eurasian countries, Azerbaijan and Turkmenistan. At the first level of analysis, the dissertation looks at the place of Azerbaijan and Turkmenistan in the great power rivalries in Central Eurasia. It emphasizes the existence of two types of competition over the energy resources of these two post-soviet countries. Firstly, it analyzes the geopolitical competition among regional and extra-regional actors, Russia, the United States and the European Union. Secondarily, the dissertation emphasizes the commercial competition among major international energy companies. It also identifies the existing tensions between these multinational actors and the political authorities in their home countries. At the second level of analysis, the dissertation is focused on the role played by Azerbaijan and Turkmenistan in the geopolitical and commercial rivalries. The dissertation analyzes the way that the two countries use their energy resources, geographical positions and sensitive geopolitical context in order to promote and defend their foreign policy interests. The dissertation looks at this complex situation through the lens of the New Great Game. This concept is used with a view to underlining the antagonism between regional and extra-regional powers regarding the oil and gas export routes of Azerbaijan and Turkmenistan. In terms of chronology, the dissertation covers the period from the collapse of the USSR until the present day. This period is divided into two so-called epochs: the Age of Oil (1991-2006) and the Age of Gas (2006-present day)
Esmenjaud-Genestoux, Florence. "Fonctionnement didactique du milieu culturel et familial dans la régulation des apprentissages scolaires en mathématiques." Phd thesis, Université Sciences et Technologies - Bordeaux I, 2000. http://tel.archives-ouvertes.fr/tel-00697666.
Full textHajjar, Marwa. "L' intuitus personae dans les sociétés de capitaux." Thesis, Paris 2, 2012. http://www.theses.fr/2012PA020070.
Full textCompanies are traditionally classified into partnerships and joint stock companies. Intuitus personae is the basis for this distinction. Clearly present in partnership companies, intuitus personae is, in theory, absent in joint stock companies. However, this traditional distinction does not correspond today to reality. We are, in fact, witnessing a resurgence of the consideration of the individual in joint stock companies by means of contractual techniques whose aim is to control access to these companies. This resurgence has been further strengthened by the legislator, first by the creation of the status of simplified stock company and also by the recognition in listed companies of the existence of concerted action and a right to voluntary withdrawal benefiting minority stockholders. The admission of the validity of exclusion, either conventional or resulting from mechanisms specific to company law such as a squeeze out or even an “accordion squeeze”, add to the growth of this phenomenon. This presence of intuitus personae has major implications on the functioning of joint stock companies and on company law, in general. Indeed, on the one hand, the primacy of shareholder relationships over capital offers a new perspective of the notion of affectio societatis and the principle of majority rule. On the other hand, the introduction of intuitus personae into companies where this concept should have been absent affects the coherence of company law by destroying the summa divisio basis on which this law is founded and by distorting the legal pluralism long ago adopted by the French legislator which, in the presence of diverse legal structures, necessitates a distinction amongst them based on precise and invariable criteria
Boureima, Soumana Saadatou. "La protection des droits des créanciers dans les opérations de restructuration des sociétés." Thesis, Bordeaux, 2015. http://www.theses.fr/2015BORD0371/document.
Full textRestructuring is a reality that contributes to the development and competitiveness ofcompanies in bonuses. It usually results from a decision taken by the companies executives. Itsimplementation, however, may undermine the enforcement of former creditors’ rights by thecompanies involved in the transaction. To preserve their claims, those creditors have manysafeguards from both the common law and the special law. The identification of the basis of suchprotection, namely the binding commitments made before the restructuring of the debtorcompanies, enable the verification of this protection’s effectiveness
Becker, Caroline. "Identité professionnelle et attitudes au travail des pilotes de l'Armée de l'air." Thesis, Tours, 2019. http://www.theses.fr/2019TOUR2014.
Full textCreated in 1934, French Air Force’s very existence is linked to pilots, whom constitute the chore of its identity. Paradoxically, pilots’ professional identity and its organizational and individual effects are quite unknown. The main objective of our doctoral work was, on one hand, to question the characteristics of the French Air Force’s pilots identity and their effect on organizational attitudes (i.e., job satisfaction and turnover intentions) with the explicative mechanisms underlying that link; and on another hand, to study the intra individual identity impact of a situation of professional uncertainty in this very population. Made of three studies, our work kept an integrative approach of identity. The latter was considered as a multifaceted construct with three reading levels: personal, relational and collective, and was considered through the social identity theory lens in our first two studies, and according to the developmental approach in our third. The first cross-sectional study allowed us to attest the existence of a specific identity of pilots compared to the non-pilots and to delineate three intra-pilots identification profiles. The second cross-sectional study, demonstrated differentiated effects of identification profiles on satisfaction at work and turnover intention, explained by two dimensions of the need fulfillment: the perception of the psychological contract breach and the Person-job fit. At last, our third study brought, through a micro longitudinal protocol via the diary studies method, a first look at the identity dynamics at stake in a period of professional uncertainty for pilots, allowing us to raise hypotheses about the effect of the considered period on the identity at the macro level.Those three studies contribute to extend the scientific literature about the integrative approach of the identity and about a population that was poorly studied until now and start a reflection about the acknowledgement and the possible managements of the pilot’s professional identities by the French Air Force
Ringuette, Josée. "Le hardship : vers une reconnaissance du principe par les tribunaux arbitraux du commerce international." Thèse, 2003. http://hdl.handle.net/1866/2368.
Full textIs the arbitrator of international commerce entitled to adapt the contract when the parties did not provide so expressly and a supervening event provokes a substantiel change in the initial contractual equilibrum? The complexification of contractual schemes and the corresponding emergence of new values in contract theory made the reception of the rebus sic stantibus principle highly probable in international commercial law. These two phenomenas supplied keys for a revised perspective of the traditional objections to the application of the rebus sic stantibus principle. Arbitrators have a role to play in the movement of private harmonization of international commercial law. The international context in which they proceed, the inherent quality of appeasement in arbitration and the particularity of the relation between arbitrator and national law are making it possible for international arbitrators to give priority to adaptation of the contract when the circumstances are right. Many factors will have to be analysed by the arbitrator before he chooses to adapt the contract because adaptation is not always the best solution. Other remedies will have to be devised if it is the case.
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