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Journal articles on the topic 'Indemnity clauses'
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1
Mock, Rodney P., Arline Savage, and Mark G. Simkin. "The Ethics of Indemnity Clauses in Academic Publication Contracts." Issues in Accounting Education 25, no. 2 (May 1, 2010): 267–78. http://dx.doi.org/10.2308/iace.2010.25.2.267.
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ABSTRACT: Publishers ask authors to sign publication agreements with “indemnity clauses” to defend themselves from third-party lawsuits. When academics sign such agreements, who is liable if a third party sues the publisher—the author, the author’s university, the author’s faculty union, or only the publisher? This article uses a stakeholder approach to analyze the ethical implications that indemnity clauses have in academia on authors, publishers, universities, and unions. The article concludes that indemnification clauses are most advantageous to the publishers and universities involved, while the authors and unions are most disadvantaged by such provisions.
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Kratenko, Maxim V., and Luik Olavi-Juri. "The precautionary measures clauses in indemnity insurance contract." Vestnik of Saint Petersburg University. Law 13, no. 3 (2022): 740–58. http://dx.doi.org/10.21638/spbu14.2022.310.
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Precautionary measures clauses impose on a policyholder or an insured person the obligation to perform certain acts or to refrain from certain activities until the occurrence of the insured event. Traditionally, the function of preventing negligent behavior by the policyholder is performed by rules on aggravation of risk or policyholder’s fault in the occurrence of the insured event. However, if they are ineffective, for example due to the inability to take into account the negligence in all cases (para 1 of Art. 963 of the RF Civil Code), the insurer is inclined to transfer some of the negligent acts onto the category of insurance exclusions in order not to pay compensation at all. As a consequence, the “all-or-nothing” principle prevails in resolving insurance disputes. The precautionary measures clauses, provided for in the Principles of European Insurance Contract Law (PEICL) and the legislation of Scandinavian countries (Sweden, Finland), makes it possible to reach a compromise: the insurer may consider the negligent behavior of the policyholder when paying compensation, but only insofar as it has affected the occurrence of the insured event or the amount of loss. This is more in line with the “proportionality rule”. In order to ensure the consumer rights, the authors propose to supplement insurance legislation (in particular, Chapter 48 of the RF Civil Code) with the legal institute of precautionary measures on the basis of the relevant rules of the PEICL.
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Watson, Jack. "Indemnities and modern corporate structures." Trusts & Trustees 26, no. 5 (May 21, 2020): 414–19. http://dx.doi.org/10.1093/tandt/ttaa036.
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Abstract This article considers the issue of trustee indemnity clauses and their interaction with the corporate structures which underlie many modern trusts. It considers the problems which can arise in relation to such clauses and the recent decision of First National Trustco (UK) Ltd v McQuitty [2020] EWCA Civ 107, in which the Court of Appeal gave guidance as to the construction of such clauses. Finally, it will conclude by addressing the wider impact of the decision on the ability of trustees to compel beneficiaries to make payment in respect of liabilities of underlying companies in order to ensure that taxes and other liabilities are paid.
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McClurg, Leanne. "Liability in oil and gas: what happened in the case of Deepwater Horizon?" APPEA Journal 51, no. 2 (2011): 668. http://dx.doi.org/10.1071/aj10048.
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Disasters such as the explosion of the Deepwater Horizon oil rig and the consequential pollution in the Gulf of Mexico have heightened awareness surrounding liability for such events. It is an opportune time for all companies—whether owners, operators or contractors—to closely examine their contracting regimes to ensure their interests are protected to the maximum extent possible. It is commercial reality in all industries that parties negotiating contracts seek to limit their liability. Unique to the oil and gas industry, contracts for services usually contain reciprocal indemnities, often referred to as knock for knock clauses, where each party is responsible for loss or damage to its own people and property, regardless of the cause. Such clauses have the effect of altering the common law position where liability is usually based on the cause of any loss or damage. In this session the speaker discusses some tips and traps for drafting reciprocal indemnity clauses, and looks at how they have been interpreted by the courts. Consideration is given to how an incident like Deepwater Horizon would be treated if it occurred in Australia and an update on the US Senate Committee’s inquiry into the disaster is provided.
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Petritsi, E. "Warranty/indemnity clauses in Sales and Purchase Agreements: State aid per se or invalid?" European State Aid Law Quarterly 6, no. 4 (2007): 10. http://dx.doi.org/10.21552/estal/2007/4/111.
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Weir, Tony. "SUBROGATION AND INDEMNITY." Cambridge Law Journal 71, no. 1 (March 2012): 1–7. http://dx.doi.org/10.1017/s0008197312000190.
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A Ford employee named Roberts carelessly drove a forklift truck into Morris, a person employed by Ford's cleaning contractor, Cameron. Morris sued Ford. Ford admitted vicarious liability for Roberts' negligence, and claimed against Cameron under a clause in the cleaning contract whereby Cameron had agreed to indemnify Ford against any loss or liability arising out of the cleaning operation. Cameron conceded liability to Ford under this clause and now sought an indemnity from Roberts, the careless employee of Ford: Morris v Ford Motor Co. [1973] 2 W.L.R. 843. The trial judge upheld Cameron's claim, but the Court of Appeal (Stamp L.J. dissenting) allowed Roberts' appeal on the ground that an implied term in the indemnity clause (or, per Lord Denning M.R., equitable considerations) excluded Cameron's normal right, as indemnitor, to be subrogated to Ford's right of recourse against Roberts, their careless employee, this right of recourse having been held by the House of Lords in Lister v Romford Ice & Cold Storage Co. [1957] A.C. 555 to enure even to the insured employer. Cameron has been granted leave to appeal, so the House of Lords has a good opportunity to reconsider Lister. While, at the technical level, Morris turns on the implications of a contract of indemnity and Lister deals with the implications in a contract of employment, the situation underlying both cases raises basic questions about the interaction of tort and that most familiar of indemnity contracts, insurance.
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Barrymore, S. J. "RISK ALLOCATION IN PETROLEUM JOINT VENTURES." APPEA Journal 36, no. 1 (1996): 580. http://dx.doi.org/10.1071/aj95036.
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This paper will consider aspects of contractual risk allocation in the energy industry.The industry is a mature one, with sophisticated and experienced contractors and operators. Hydrocarbons have uniquely hazardous characteristics making all parties, the State and the community acutely aware of the need to control the means of its discovery, appraisal, production and transportation.The Exxon Valdez and Piper Alpha disasters are paradigm examples of the drastic consequences and the magnitude of the risk, that can flow from what might otherwise be considered 'a minor act or omission'.Risk management is based on the premise that it is in the interest of any project that certain risks be borne by certain parties, normally the person in the best position to control the risk concerned. A realistic approach to allocation of risk will reduce costs and claims and prevent over or under insurance. Where a risk which can be efficiently absorbed or covered by one party is passed to another, the short-term gain may be more than offset by the other party's increased charges or defensive practices for absorbing the risk or its inability to perform following a liability arising from that risk.As noted above, the risk allocation and management technique dealt with in this paper is contractual. Parties seek to distribute and allocate risks by the use of clauses of indemnity, limitation, exclusion, insurance and force majeure. Each of these contracts allocate risk to one party or the other for matters such as personal injury, property loss and damage, public liability, pollution, negligent workmanship and indirect loss or damage.This paper will examine the structure of these clauses (other than insurance) in the context of offshore development projects, centring around the joint operating agreement made between an operator and the licence holders, and a consideration of contracts entered into between the operator and its participants and the project contractors and project insurers. It will also address the issue of conduct in breach of statute and the effect of such conduct on indemnity and insurance agreements.
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Ambar, Rocky Marciano, Budi Santoso, and Hanif Nur Widhiyanti. "Kajian Yuridis Pengesampingan Pasal 1266 dan Pasal 1267 Kitab Undang-Undang Hukum Perdata Sebagai Syarat Batal Dalam Perjanjian Kredit Perbankan." DIVERSI : Jurnal Hukum 3, no. 1 (May 20, 2018): 70. http://dx.doi.org/10.32503/diversi.v3i1.157.
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Banks in the redit agreement use more standardized credit agreements, the use of standard contracts in the banking credit agreement is based on 2 (two) things, (1) The existence of unbalanced position (berganing position) between banks and the debtor, the bank has a more dominant position than the debtor. (2) There is an understanding of the principle of freedom of contract absolutely and indefinitely so that the bank has absolute freedom to determine the form and content of the agreement. So banks can freely to determine the form and contents of the agreement included in the clause of the terms of void wanprestasi arranged to include mengesaampinkan Article 1266 and Article 1267 Civil Code in the agreement. Whereas the provision of Article 1266 of the Civil Code provides that in the event that the revocation of the treaty must be requested by the court and the judge through the decision of the court may determine the types of compensation for the parties. Based on the background, then as for the formulation of the problem of writing is (1). Whether the inclusion of clause 1266 and Article 1267 of the Civil Code in the credit agreement of the banking system has fulfilled the principle of equilibrium and justice. (2) What is the juridical implication of the inclusion of clauses which exclude Article 1266 and Article 1267 of the Civil Code in the credit agreement pertaining to the debtor's right in the process of settling the interpretation as a condition of cancellation of the agreement. The research method used is normative juridical research. The result of this research is the waiver of Article 1266 and Article 1267 of the Civil Code which regulates the waiprestasi void in the agreement and the types of indemnity is contrary to the principle of fairness and the principle of equilibrium. The principle of justice according to Rawls is that it is unfair to sacrifice the right of one or more persons only for the sake of greater economic gain and even justice must be understood as fairness, in the sense of "equality of positions and rights" not in the sense of "commonality of results" people, in other words justice as intended is justice that provides a guarantee of equality and rights between the bank as a creditor with the customer as a debtor in the credit agreement of the bank. As for the juridical implication of the inclusion of clauses that exclude Article 1266 and Article 1267 of the Civil Code of credit agreement relating to the debtor's right in the process of settling the interpretation as a condition is to remove the legal rights as well as the debtor's legal efforts in seeking justice and the equilibrium position which is not dominant by the decision maker due to the unbounded imbalance of the parties to the agreement. The act of wanprestation brings consequences to the adversity of the disadvantaged party to prosecute the defendant to indemnify, so that by law it is expected that none of the parties will be harmed by the default.
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Nadorff, Norman, and Maria Beatriz Gomes. "Look before you leap: are your oil patch liability clauses enforceable?: (An analysis under civil law jurisdictions with emphasis on Brazil)." Journal of World Energy Law & Business 14, no. 1 (February 22, 2021): 49–66. http://dx.doi.org/10.1093/jwelb/jwab004.
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Abstract The oil and gas industry requires huge investments involving extraordinary financial, environmental and safety risks. Dramatic images of the Deepwater Horizon (Gulf of Mexico, 2010), Alpha Piper (Scotland, 1988), P-51 (Brazil, 2001) and Campeche (Mexico, 1979) disasters offer chilling reminders of the monumental loss of life, property and environmental integrity that can quickly result from human error. With this backdrop, industry participants and their insurers learned early on that the normal fault-based approach to wellsite liability did not fit the nature and needs of the petroleum business. This article analyzes the risks inherent in applying the laws of a civil law jurisdiction to an oil and gas wellsite contract based on common law principles, with special emphasis on Brazil. It first briefly describes the traditional common law approach to liability allocation in wellsite contracts, including “knock-for-knock” principles (“K4K”). Next, it outlines the traditional civil law approach to liability (responsbilité) through French and Brazilian prisms. The authors do not deeply discuss the pros and cons of K4K clauses nor the policy implications of anti-indemnity statutes. Rather, they assume the reader is contemplating the negotiation of a wellsite services contract subject to the laws of a civil law jurisdiction, and describe the relevant risks and possible mitigation strategies.
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Mathieu, Kenneth, and Vincent Schmeltz. "Dispute Resolution as a Part of Your Merger or Your Acquisition Agreement." Michigan Business & Entrepreneurial Law Review, no. 1.1 (2012): 61. http://dx.doi.org/10.36639/mbelr.1.1.dispute.
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Often overlooked until invoked, the dispute resolution provisions of an acquisition agreement frequently mirror the terms of a lawyer’s last deal. Yet such provisions—including purchase price adjustment clauses, the terms of governing earn-out disputes, and the contract sections outlining the indemnification claims process—often have long-term economic ramifications on the buyers and sellers. In working with corporate lawyers over the years, we have noted that corporate lawyers understand (and give intense thought to) the leverage their clients have, what their clients hope to accomplish in a transaction, and what makes long-term economic sense in drafting an agreement and negotiating more advantageous deal terms. In this article, we hope to bring the same analytical intensity to dispute resolution provisions. While every deal is different and perspectives will vary between buyers’ and sellers’ counsel, we have attempted to inform practitioners of the issues that can arise depending on how the parties design their dispute resolution provisions. Accordingly, we have first set out our views on the current transactional environment and its implications on deal leverage and terms. Then, we have described each of the key deal provisions that we believe fall under the broad rubric of “dispute resolution” provisions. In particular, we have analyzed: (i) Purchase Price Adjustments; (ii) Earnouts; and (iii) Indemnity for Breach of Representations and Warranties.
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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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Skowrońska-Bocian, Elżbieta. "KARA UMOWNA - KOMPENSACJA CZY REPRESJA?" Zeszyty Prawnicze 3, no. 2 (May 10, 2017): 179. http://dx.doi.org/10.21697/zp.2003.3.2.08.
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Contractual Indemnity - Compensation or Reprisal?SummaryA contractual indemnity has been regulated in article 483 and 484 of the Civil Code. Parties may decide that a damage resulting from non-performance or improper performance of a non-pecuniary obligation shall be redressed in such a way that a debtor shall pay a creditor a specified amount, even if its extent differs from an extent of a damage incurred by a creditor.There is a discrepancy between the doctrine and judicial decisions as to the possibility of claiming a contractual indemnity by a creditor who did not incur a damage as a result of non-performance or improper performance of an obligation. Those in favour of an opinion according to which a creditor may claim a contractual indemnity even if he did not incur a damage stress its repressive character. The supporters of a notion that a damage on the side of a creditor constitutes a prerequisite for a claim to pay a contractual indemnity invoke the substance of the article 483 § 1 of the Civil Code. Pursuant to the provision the aim of a contractual indemnity is to redress a damage resulting from non-performance or improper performance of an obligation.The author of this study takes a position that a creditor is entitled to a contractual indemnity only if he sustained a damage as a result of non-performance or improper performance of an obligation. It is indicated in the substance of articles 483 § 1 and 484 § 1 of the Civil Code. Such an interpretation neither impairs a protection of an interest of a creditor nor excludes the repressive function of a contractual indemnity. The other interpretation, shaped many years ago, is no longer up-to-date due to socio-economic and legal changes effected in Poland after 1989.Notwithstanding, within the confines of a binding principle of liberty of contract (article 3 5 3 1 of the Civil Code), a contractual clause is admissible, according to which a debtor obligates himself to pay a specified amount in the event of non-performance or improper performance of an obligation, also if a creditor does not sustain any damage. However, such a clause does not constitute a contractual indemnity in the light of the article 483 § 1 of the Civil Code. It is a clause of a guarantee character. A contractual provision is also admissible, according to which a creditor, in the event of non-performance or improper performance of an obligation, may claim from debtor an amount specified in an agreement, beside an indemnity on general principles.
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Rowland, Stephanie, and Bethwyn Douglas. "Why your operator does not always love you: some observations on gross negligence, wilful misconduct and consequential loss." APPEA Journal 50, no. 2 (2010): 682. http://dx.doi.org/10.1071/aj09046.
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Due to the nature of the role of operator under a joint operating agreement (JOA), the operator is potentially exposed to a large magnitude of risk. As a result, JOAs typically include clauses intended to allocate and limit liability between the parties. A JOA may also include clauses that release the operator from liability and provide that the participants must indemnify the operator for liability that arises in performing its functions as operator. However, such clauses often contain carve-outs that attempt to make the operator liable if loss is caused where the operator’s conduct, or that of its senior personnel, constitutes gross negligence or wilful misconduct. Given the magnitude of loss that may potentially be incurred by participants under a JOA, it is vital that participants understand the impact of their JOA on their exposure to liability and, in particular, the current interpretations of the terms gross negligence and wilful misconduct likely to be applied by Australian courts. This paper considers the practical operation of such clauses and explores: the ability of a participant to claim consequential loss against the operator and what type of loss is likely to constitute consequential loss; and, practical avenues available to participants of a JOA to minimise the risk of liability by way of drafting, including the effect of a limitation of liability clause on the ability of a JOA participant to recover from the operator.
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Caplicki, Edmund V. "Limitation of Liability Clause Violates Anti-Indemnity Statute." Journal of Legal Affairs and Dispute Resolution in Engineering and Construction 1, no. 3 (August 2009): 154–55. http://dx.doi.org/10.1061/(asce)la.1943-4170.0000011.
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Fontaine, Marcel. "Les clauses exonératoires et les indemnités contractuelles dans les Principes d’Unidroit: Observations critiques." Uniform Law Review 3, no. 2-3 (April 1, 1998): 405–16. http://dx.doi.org/10.1093/ulr/3.2-3.405.
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Parra-Barrera, Sandra M., María del Mar Sánchez-Fuentes, Carlos Fuertes-Iglesias, and Miguel Ángel Boldova. "Sexual Abuse vs. Sexual Freedom? A Legal Approach to the Age of Sexual Consent in Adolescents in Spanish-Speaking Countries." International Journal of Environmental Research and Public Health 18, no. 19 (October 5, 2021): 10460. http://dx.doi.org/10.3390/ijerph181910460.
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Child and adolescent sexual abuse (CSA) is an international public health problem. Despite the importance of CSA, there is no consensus definition, and the lack of consensus is related to difficulties in conducting prevalence studies as well as research in other areas. To establish a consensual definition, legal aspects such as the age of sexual consent and the difference in age or power between victim and aggressor as well as aspects related to sexual freedom and sexual indemnity must be considered. Therefore, the main goal of this research was to analyze the age of sexual consent in the legal systems of Spanish-speaking countries and to examine whether the Romeo and Juliet clause is established. To achieve the proposed aims, we employed the legal interpretation method, and we analyzed the current Criminal Codes of the 21 Spanish-speaking countries. From the results, it is found that the age of sexual consent varies between countries, establishing valid sexual consent between 13 and 18 years. In addition, only six countries have the Romeo and Juliet clause that protects sexual freedom in adolescents. Finally, we discussed the lack of consensus on the age of sexual consent and the limitations presented by the Romeo and Juliet clause.
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Li, Luo. "Reconsidering the Reinsured’s Damages and Costs for Late Payment: A Comparative Analysis Between English and American Law." Business Law Review 43, Issue 6 (October 1, 2022): 237–47. http://dx.doi.org/10.54648/bula2022035.
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The reinsured (original insurer) would face liability by section 13A of the Insurance Act 2015 in the UK and incur the costs or expenses of investigating and defending against the insured’s valid claims, where the reinsured withholds or delays paying insurance proceeds to the insured. The reinsurer generally would not be held liable for the unreinsured contractual liability and costs unless special requirements are met. The critical points for the reinsured to recover the reimbursement of damages and expenses from the reinsurer are to confirm the reinsurer’s actual participation or intention in refusing to indemnify the original assured timeously or in defending against the insured’s valid claims by way of proving the reinsurer’s compulsion or identifying them as a joint enterprise. The follow-the-settlements clause cannot render the reinsurer liable for the unreinsured liability. It is more reasonable that the policy limits only restrict the sums reinsured but do not cap the unreinsured damages and costs. Reinsurance, contractual liability, late payment, joint enterprise, policy limits
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., Vunieta, and Walida Ahsana Haque. "LEGAL PROTECTION AGAINST THE FAILURE TO COMPENSATE ON INTERNATIONAL INVESTMENT DISPUTE." Yustisia Jurnal Hukum 8, no. 2 (October 1, 2019): 205. http://dx.doi.org/10.20961/yustisia.v8i2.28490.
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A dispute between two or more countries involved in a foreign investment may arises<br />from investment agreement agreed upon by the parties. If one of the parties breaches<br />the agreement, the parties will automatically agree to resolve the dispute to the agreed<br />arbitration forum based on the dispute settlement clause on the agreement, those<br />forum such as the ICSID arbitration. Therefore, the existence of dispute settlement<br />clause on an investment agreement (Bilateral Investment Treaty) is very necessary.<br />The result of the above-mentioned arbitration proceeding is a binding and final<br />decision for the parties. An arbitral award, should contain relief or compensation<br />set by the arbitrator as the result of the proceeding. The reliefs are given as orders to<br />indemnify the damages obtained by Claimant. Issues arises when Respondent has been<br />proven to have done detrimental damage to the Claimant yet Respondent deliberately<br />neglected his/her obligation to compensate Claimant accordingly based on the relief/<br />compensation specified in the award. The non-compliance of the Respondent to<br />fulfill the compensation obligation is due to the fact that the party habitually assume<br />that the arbitration award does not have the legal force equivalent to the decision<br />of general court, even though the nature of the award is final and binding. Thus the<br />interests and rights of the Applicant who has been declared entitled to compensation<br />based on the arbitration award must be protected so that their rights can be fulfilled<br />according to the law.
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Garger, Andrew J., and Richard H. Hobbie. "Development of a New Insurance Protocol for Marine Casualty Response." International Oil Spill Conference Proceedings 2003, no. 1 (April 1, 2003): 1239–42. http://dx.doi.org/10.7901/2169-3358-2003-1-1239.
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ABSTRACT Marine casualty response has become increasingly complex. Many responsible parties (R.P.'s) do not have the financial resources to fund the potentially high cost of spill response and other aspects of a casualty and they must rely on their various marine insurers, including hull, protection and indemnity, and pollution to cooperate in a timely and effective response. While underwriters have traditionally worked together to coordinate their response and solve response issues, clear responsibility for certain aspects of response has become blurred because environmental concerns are playing a greater role in salvage, firefighting and other aspects of marine casualties. The pollution liability insurers are increasingly being asked to both finance and oversee aspects of marine casualty response that have traditionally been part of the responsibility of other insurance interests. Increased environmental sensitivity, however, should not lead to a shift in the traditional roles of marine insurers in responding to marine casualties. Instead, the marine insurance industry must look to new ways to address the interplay of their coverages to ensure timely casualty response and funding of all necessary operations. This paper will outline possible approaches to address this issue and explore the problems of establishing a market protocol. The protocol could address initial funding of the casualty response and the use of dispute resolution mechanisms such as arbitration. There may also be value in developing a United States agreement along the lines of the Special Compensation P & I Clause (SCOPIC) and there may also be a need to create a new open salvage contract.
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Monteiro Fonseca Perdomo, Raphael, and Luis Augusto Stumpf Luz. "OS DIREITOS ECONÔMICOS DOS ATLETAS PROFISSIONAIS DE FUTEBOL." Revista Gestão e Desenvolvimento 16, no. 3 (September 9, 2019): 178. http://dx.doi.org/10.25112/rgd.v16i3.1801.
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RESUMOO Brasil é considerado referência mundial na prática do futebol, tendo como consequência uma grande valorização dos clubes e atletas que protagonizam o esporte. Gestão e profissionalização são destaques no meio desportivo, em consequência dos altos investimentos. O futebol acompanhou a evolução histórica brasileira, tendo mais autonomia com o passar dos anos. Assim, o objetivo do trabalho é examinar o conceito de direitos econômicos nos contratos especiais de trabalho desportivo e verificar as hipóteses em que o referido tema produz efeitos no campo jurídico com a cláusula indenizatória e compensatória. A pesquisa possui caráter explicativo e exploratório. A estrutura jurídica que envolve os clubes e atletas é importante, pois os direitos econômicos são considerados um ativo financeiro, haja vista que as transferências envolvendo os jogadores de futebol geram receitas que garantem o sustento dos clubes ao longo da temporada. O resultado obtido nesta pesquisa é de que a alteração promovida pela Lei nº 12.395/11 findou com uma divergência doutrinária e jurisprudencial que havia acerca do entendimento da antiga redação do artigo 28 da Lei Pelé, já que a aplicação da cláusula penal desportiva era unilateral ou bilateral, ou seja, podendo ser devida tanto ao clube como ao atleta. Assim, o novo texto legal institucionalizou os direitos econômicos do atleta profissional de futebol ao clube com quem ele possui vínculo empregatício ativo e, ao mesmo tempo, protege o atleta profissional garantindo-lhe por meio de mecanismos administrativos e constitucionais o princípio da dignidade humana na relação contratual com os clubes de futebol.Palavras-chave: Direito Desportivo. Direitos Econômicos. Futebol. ABSTRACTBrazil is considered a world reference in the practice of soccer, resulting in a great appreciation of the clubs and athletes that play the sport. Management and professionalism are highlights in the sports environment, as a result of high investments. Soccer followed the Brazilian historical evolution, having more autonomy over the years. Thus, the objective of the study is to examine the concept of economic rights in special sports contracts and to verify the hypotheses in which this topic has effects in the legal field with the compensatory and indemnity clause. The research has explanatory and exploratory character. The legal framework involving clubs and athletes is important because economic rights are considered a financial asset, since transfers involving soccer players generate revenues that ensure the livelihood of clubs throughout the season. The result obtained in this research is that the amendment promoted by Law No. 12,395/11 ended with a doctrinal and jurisprudential divergence regarding the understanding of the old wording of article 28 of the Pelé Law and if the application of the sporting penal clause was unilateral or bilateral, that is, it may be due to both the club and the athlete. Thus, the new legal text institutionalized the economic rights of the professional soccer athlete to the club with whom he has an active employment relationship and, at the same time, protects the professional athlete by ensuring, through administrative and constitutional mechanisms, the principle of human dignity in contractual relationship with soccer clubs.Keywords: Sports Law. Economic Law. Soccer.
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Sh,mkn, Rita. "Analisis Yuridis Akta Pernyataan Nafkah Terhadap Istri dan Anak Yang Dibuat di Hadapan Notaris (Studi Putusan MA RI No.3002/K/Pdt/2015)." Jurnal Perspektif Hukum 2, no. 1 (March 19, 2021): 116–44. http://dx.doi.org/10.35447/jph.v2i1.319.
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A divorce is not a goal in a marriage; however a marriage sometimes ends with it, as experienced by AH and YR. YR filed a lawsuit against her husband AH to Muara Enim District Court after a divorce. YR felt financially injured by the action of AH for having violated the content of Statement Deed No.72 dated November 23, 2012 concerning Ah’s obligations to provide support for her and their children after their divorce took place. At District Court level, the judge in Ruling No.14/PDT.G/2014/PN.ME dated August 19, 214 granted parts of YR’s lawsuit. The judge stated that the Statement Deed is valid before the law, and is more valid by the issuance of the Higher Court Ruling No.114/PDT/2014/PT.PLG; which strengthens the District Court Ruling. However, the judge at cassation level granted the cassation application filed by AH. I the concern of the Supreme Court Judge, the Statement Deed is legally defective because it contradicts Article 45 paragraph (2) of the Marriage Act. The research problems are how about the legal force of the Deed of Statement to provide support for wife and child that was drawn up before a Notary, how about the legal consideration of the judge in the Supreme Court Verdict No.3002K/PDT/2015 and how about the legal liability of the Notary for the revocation of the Deed of Statement pursuant to the Supreme Court Verdict No.3002K/PDT/2015.
Thic is a normative juridical research which analyzes the law, It employs descriptive analysis approach. The data are analyzed qualitatively.
The Deed of Statement No.72 dated November 23, 2012, that was drawn up before Notray AD contains a statement of promise or a clause that does not fulfill the ojective requirements for an agreement. It bocomes null and void and has no legal force. It has been degraded in to an underhanded deed.
The Supreme Court Verdict lacks of consideration because the judge was not sufficiently conscientious and has no evident legal ground. The degraded Statement Deed may become the ground to the injured party to file a lawsuit for indemnity such as compensation for all costs, fine and interests incurred to the Notray AD. It is suggested that a deed be carefully and conscientiously drawn up by noticing all prevailing legal aspects. It is recommended that judges have extensive knowledge, be update with the development of prevailing positive laws, so that they will produce responsible ruling with evident and obvious legal consideration. It is also suggested that notaries excercise their role well to provide legal certainty and legal protection for the person appeaering before them.
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Hayton, David. "Safeguarding trustees’ interests." Trusts & Trustees, November 18, 2019. http://dx.doi.org/10.1093/tandt/ttz099.
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Abstract The recent Sofer case shows how trustees can safeguard their interests via exoneration clauses, deeds of indemnity and even estoppel by convention. It also makes clear how beneficiaries faced with an exoneration clause, which they seek to oust due to the dishonesty of the trustee, bear the onus of fully particularising the dishonesty or their claims may be struck out.
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Frans Marx and Avinash Govindjee. "REVISITING THE INTERPRETATION OF EXEMPTION CLAUSES Drifters Adventure Tours CC v Hircock 2007 2 SA 83 (SCA)." Obiter 28, no. 3 (June 15, 2022). http://dx.doi.org/10.17159/obiter.v28i3.14134.
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The influence of the Constitution on the enforceability of exemption clauses contained in contracts has received some attention in the recent jurisprudence and literature on the subject. (Tladi “One Step Forward Two Steps Back for Constitutionalising the Common Law: Afrox Healthcare v Strydom” 2002 2 SA Public Law 473-478; Young “Indemnification Clauses in Multiple Contract Transactions” March 2002 IBL 115-118. Van der Heever “Exclusion of Liability in Private Hospitals” April 2003 De Rebus 47-48; Richardson “Managing HIV/AIDS Impact No Easy Task; Interpreting an Indemnity Clause: Insurance” Jun-Jul 2005 Executive Business Brief 28-29; Hopkins “Exemption Clauses in Contract” June 2007 De Rebus 22-25; and Visser “Drifters Adventures Tours CC v Hircock [2006] SCA 130 (RSA)”2007 1 De Jure 188-193.) In particular, decisions of the Supreme Court of Appeal, the traditional upper custodian of the common law, have drawn much interest and criticism for their apparent failure to approach contractual issues from a constitutional perspective. The recent case of Drifters Adventures Tours CC v Hircock (2007 2 SA 83) provides a further opportunity to obtain some insight into that court’s approach in interpreting exemption clauses in contracts. This note endeavours to analyse the court’s approach and decision in the Drifter’s case against the background of the well-established traditional approach to contractual interpretation as well as recent cases which have raised the role of the Constitution with respect to exemption clauses. A further objective of this paper is to consider the impact of the court’s decisions on the wording which drafters of such clauses choose to use when seeking to protect their clients or themselves.
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Chukwu, Febechi. "The breach of contractual indemnities under English law – a debt claim or a damages claim?" IALS Student Law Review, March 2, 2020, 3–14. http://dx.doi.org/10.14296/islr.v7i1.5119.
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In 2015 the English High Court delivered two important but not widely publicised judgments in the cases of ABM Amro Commercial Finance plc v Ambrose McGinn & others [2014] EWHC 1674 (Comm.) and Durley House Limited v Firmdale Hotels plc [2014] EWHC 2608 (Ch.). Febechi Chukwu reviews those judgments, and several previous rulings by the English courts, concluding that the lack of a single interpretive rule for contractual indemnities in English law is a preferable approach. The English courts should be clearer in accepting the complexity of properly interpreting indemnities and assessing the available remedies for breach. Ultimately that assessment is substantially dependant on how the indemnity in question is drafted and constructed in the contract. The courts should boldly promote the more nuanced approach to determining whether a particular breach gives the innocent party a right to a claim in debt or a claim in damages, and this will be of benefit also to practitioners negotiating indemnity clauses in English law contracts.
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Imam, Wahda Zainal. "LEGAL ANALYSIS OF Default Indemnity DUE TO "FORCE MAJEURE" ON BANKING CREDIT PROVIDERS IN THE COVID-19 PANDEMIC." International Journal of Social Science and Human Research 04, no. 10 (October 28, 2021). http://dx.doi.org/10.47191/ijsshr/v4-i10-52.
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This study examines default due to the covid-19 pandemic, which is a force major that can cancel a banking credit agreement and to analyze the conditions for a force major to cancel a banking credit agreement made by the parties. The study was conducted using the case approach used in this paper, aiming to examine and analyze the application of norms or rules carried out in legal practice, especially cases related to working capital credit agreements that experienced bad credit due to force majoure circumstances. The results show that the cancellation of the agreement on banking credit due to the Pandemic -19 is a relative "force majaure" which means that this relative "force majaure" the debtor is considered capable of returning to its original state or in other words the debtor is considered to still have the ability to fulfill the contents agreement when the Pandemic-19 situation has ended. As for the condition that a force majeure can cancel the banking credit agreement made by the Parties, that is, if the parties in the agreement clause specify using any event that is included as "force majaure" if the Pandemic-19 is stated in the agreement as "force majaure" then one of the parties can postpone or cancel the agreement.
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"Ententes sur le reclassement des travailleurs à l’occasion d’une fermeture d’usine." Informations 21, no. 3 (April 12, 2005): 457–59. http://dx.doi.org/10.7202/027705ar.
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Le Service de Reclassement de la main-d'oeuvre du ministère du Travail a annoncé la conclusion d'ententes qui permettent de reclasser 205 mineurs qui devront quitter leur emploi à la suite de la fermeture de la mine East Sullivan de Val d'Or. Une clause de la dernière convention collective entre la compagnie et les métallurgistes unis d'Amérique prévoyait la formation d'un comité de reclassement. Le Ministère du Travail du Québec dans le cadre de sa politique de main-d'oeuvre, a accepté de constituer un comité de reclassement. Ce comité a étudié la situation des employés et a soumis des recommandations qui ont été suivies de signatures d'ententes entre le Syndicat et la compagnie. Le comité comprenait des représentants des ministères du Travail et des Richesses Naturelles, ainsi que des représentants de la compagnie et de l'union. Quatre ententes ont été signées sur le sujet suivant: les indemnités de licenciement, la récupération scolaire, la formation professionnelle, les subventions et prestations pour les fins de déménagement des employés.
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KAYA, Mustafa İsmail, and Burçak TATLI. "THE EVALUATION OF A CLAIM FOR UNPAID CAPITAL COMMITMENTS IN CORPORATES ON THE BASIS OF A MEDIATION AS A CAUSE OF ACTION." Hacettepe Hukuk Fakültesi Dergisi, June 8, 2022. http://dx.doi.org/10.32957/hacettepehdf.1086165.
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According to the provisions of the Code no. 6325 on Legal Disputes Mediation, disputes that are based on private law and that arise from transactions on which the parties can freely dispose can be resolved through mediation. According to Article 18A of the Code, if the application to a mediator is accepted as a condition of action in the relevant laws, it is obligatory to apply to the mediation process. Pursuant to Article 5A added to the Turkish Commercial Code no. 6102, it is a prerequisite to apply to a mediator before filing a lawsuit about claims for receivables and compensation from commercial lawsuits specified in Article 4 of the Turkish Commercial Code and other laws. According to Articles 127, 128, 129 and 482 of the Turkish Commercial Code, in case the committed capital is not brought to companies, the company or its partners shall require the debtor to perform the debt, pay the default interest, indemnify the damage, if any, and finally pay the penal clause. They also shall demand the exclusion of the debtor from the partnership. As a result, a commercial dispute arises in which claims for receivables and compensation are brought forward. In this context, it is necessary to discuss whether this dispute is within the scope of mediation regarding the parties' powers of disposition.