Dissertations / Theses on the topic 'Principes du droit des contrats'
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Goubinat, Marine. "Les principes directeurs du droit des contrats." Thesis, Université Grenoble Alpes (ComUE), 2016. http://www.theses.fr/2016GREAD001/document.
Full textThe notion of guiding principle appeared in the field of civil procedure forty years ago and has been since then used as a guide establishing fundamental guarantees for fair justice in the civil trial. Later on, it was implemented in the criminal and administrative matters. Enthusiasm for this notion made it emerge recently in the field of contract law at a double layer: firstly in the domestic legal order, the different reform projects for contract law have been innovating since 2008 because guiding principles have been determined as a new legal category in this matter. According to the project, including in this category contractual freedom, binding force, good faith and coherence has been proposed. Secondly, from a European perspective, Brussels authorities have been questioning for quite a long time the opportunity to elaborate a European contract law common to all member States. As a consequence, some guiding principles can be identified in several sources, scientific codifications and proposals to come. Since then, this concept has generated a great interest and commentators have mainly severely criticised a hypothetic introduction. More rarely, it has been significantly supported. Therefore the purpose of the research is to study in depth the concept of guiding principles in contract law since after the first questions relying on scientific curiosity, researches related to the science of guiding principles in contract law must come. Even though the notion is today often used, its concept remains an enigma, no consensus has been found on its sense or effects. The notion carries many shadowy aspects that will have to be enlightened, especially as after several oppositions from the Senate, the Act adopted on the 16th of February in 2015 authorised the Government to reform contract law by executive orders. Nonetheless, the latest projects recognise some guiding principles so it is time to evaluate the relevance of the notion and determine its potential effects
Moura, Marie-Elisabeth de. "L' inexécution du contrat en droit français et dans les principes de droit européen des contrats (principes Lando)." Clermont-Ferrand 1, 2008. http://www.theses.fr/2008CLF10004.
Full textAcosta, Joaquin Emilio. "La constitutionnalisation du droit colombien des contrats : contribution à l'étude du droit transnational des contrats." Thesis, Bordeaux, 2016. http://www.theses.fr/2016BORD0274.
Full textTraditionally, the law of contracts of Romani tradition has basically had its source in the law and in particular in the Civil Code. Thus the contracting parties had a great deal of legal discretion, since most of the laws governing contracts had a residual character of the individual will. However, this primacy of the legislature has been limited by the promulgation of the post-war Constitutions. Indeed and incontestably, human rights are the fashion, and this vogue leaves its imprint in the law of contracts. From now on, it is no longer possible for the legislator to violate certain principles having constitutional value. Moreover, this system allows the contemporary constitutional judge to annul statutory provisions that violate such imperatives. Similarly, the guardians of the new constitutions give themselves the power to indicate the interpretation that ordinary judges must adopt of the legislative texts. In this way the constitutional judge becomes an important actor of contract law in the Romanist family. Thus, an event marks a new stage in the development of private contract law: its constitutionalization. This new episode gives rise to the debate on a possible questioning of the contractual civil order
Khoriaty, Rita. "Les principes directeurs du droit des contrats : regards croisés sur les droits français, libanais, européen et international." Thesis, Paris 2, 2011. http://www.theses.fr/2011PA020042.
Full textThe comparison of the guiding principles of contract law in French, Lebanese, European and international laws reveals on one hand a convergence in terms of identifying the guiding principles of contract law and on the other hand a divergence interms of implementing these principles.The convergence arises from the same principles - namely the principles of contractual freedom, contractual security and contractual “loyalty”2 - underlying the general theory of contracts in all three laws. This convergence is due to two mainfactors: firstly, a logical factor that is the inductive reasoning that allows extracting the guiding principles of contract law, and, secondly, a political factor based on the similarity of the general objectives of contract law in the three laws. As for the divergence in terms of guiding principles implementation, it is revealed through reinforcing in European and international laws, the guiding principles of contractual freedom and contractual “loyalty” as well as the adjustment of the guiding principle of contractual security. This divergence could be explained by the existence of specific needs of international trade. However, it should rather be related to the influence of foreign national laws different from French and Lebanese laws
Ngwanza, Achille André. "La "Favor Contractus" dans les Principes Unidroit et l'avant projet d'acte uniforme sur le droit des contrats en OHADA." Thesis, Paris 11, 2011. http://www.theses.fr/2011PA111026.
Full textThe UNIDROIT Principles of International Commercial Contracts were drafted with the aimof creating universal rules based on a pragmatic approach, and not in defense of a particularlegal tradition. In the OHADA area, a preliminary draft Uniform Act on contract law wasdrafted using the Unidroit Principles as a model, which took up nearly all of the provisions.Given the cultural neutrality of the UNIDROIT Principles, one may wonder whether thisinstrument was indeed an appropriate source of inspiration for a predominantly civil law area.A proper analysis of this issue implies to scrutinize the philosophy underlying the UnidroitPrinciples. In this regard, and contrary to concepts such as freedom of contract, good faith andfair dealings, due consideration given to usages and fight against unfairness which have aclear axiological orientation, favor contractus provides a good lens for analysis. Focusing onthe protection of the contract, it will be easily understandable whether the UNIDROITPrinciples are an assault to the legal tradition of the majority of OHADA countries. With aview to controlling the variety of risks bearing upon the contract, the Unidroit Principles dealwith the protection of the contract under a temporal perspective, keeping it in existence andensuring its performance. In so doing, they do not make a choice between economicefficiency and contractual fairness, but integrate both. As a result, and despite theimperfection of some of their rules, the UNIDROIT Principles provide a valuable source ofinspiration for the OHADA legislator, who could also benefit from certain improvements tobe drawn from the contract law reform projects in France
Boureghda, Borhan. "L'obsolescence des principes directeurs du Code civil en matière criminelle." Paris 10, 2004. http://www.theses.fr/2004PA100096.
Full textThe contract in its classic way is roughly handled by an equality wind that blow on the contract. Through a various series of notions raised to the rank of remedial mechanism, the judge is highly charged to realize the commutativity. However, by using and abusing those remedial, the judge force the contract, distort and break the contract. Many explanations are given to explain this movement. If they are different by their justifications, they all converge to the same solution. The contract that bind, has to be tempered, because of the classic conception that forbid it. This is to affirm the modern conception of contract. The general theory or more precisely the general principles will they know to face to that dilemma, or should we conclude to the funeral of the classic way of contract and to the obsolescence of its principles ? To find a solution, will we have to built a new codification, to reformulate its main articles attracted to the contract, to refurnish the Civil code or to create a code exclusively dedicated to the obligations theory and the general contracts
François, Gwennhaël. "Consentement et objectivation : l'apport des principes du droit européen du contrat à l'étude du consentement contractuel." Clermont-Ferrand 1, 2006. http://www.theses.fr/2006CLF10296.
Full textThe contractual consent cannot be apprehended from a voluntarist point of view, through the psychism of the parties. Fist, because the psychological will is unsoundable. Then, because such an analysis is dangerous, in what it supposes that the judges will determine the existence of the consent or will assess the quality of the consent while being interested so that the parties wanted certainly to express, which is fuzzy and dubious. The contractual consent, as a condition of formation of the contract, must thus be apprehended in the light of the objective theories. To determine if the consent of one of the parties exists or to know if it is healthy, it will be advisable to carry out a serious induction, on the basis of the rule of law and concepts more easily palpable for the lawyer, the such principle favor contractus or the bona fides. This objective approach is that which adopt, precisely, European Principles worked out by the Lando Commission
François, Gwennhaël. "Consentement et objectivation : l'apport des principes du droit européen du contrat à l'étude du consentement contractuel /." Aix-en-Provence : Presses universitaires d'Aix-Marseille - PUAM, 2007. http://catalogue.bnf.fr/ark:/12148/cb41150033s.
Full textGinon, Anne-Sophie. "La recherche biomédicale en quête de principes." Paris 10, 2002. http://www.theses.fr/2002PA100157.
Full textThe law relating to biomedical research is an excellent indicator of the development of a new ordre public (public policy) understood as being a body of inalienable rules. Applying equally to the legally capable person, to the body parts and products and even to the human in vitro embryo, this law brings into question the concept of person as a legal entity. In the Civil code, articles 16 and the articles that follow constitute concrete terms in research contracts that limit or even prevent the carrying out of experiments on human resources that have already been carried out on other living species. Human person implies a different dimension to that of person understood as differentiating between the individual human being and other living organisms. Moreover, the conditions necessary for legitimate research are legislative standards, the aim of which only becomes clear when they are actually applied. The creation of ad hoc administrative bodies charged with examining the legality of each research protocol, represents a new type of regulation that distributes constitutional powers differently. Confrontation with the constitutional case-law illustrates that these administrative bodies provide an essential guarantee of respect for the conditions laid down in the Public Health Code and that not only their creation, but also their composition and working, originate in statute. However, the law of biomedical research also expresses the conditions of the legal relationship that is formed between the investigator and the research subject. Prohibition of payment, the right to withdraw at any moment and lack of reciprocal duty are the characteristics of a beneficence contract, the basis of which has had to be reviewed to take into account the research relationship. As a tool to respond to the legislation, the beneficence contract is also useful in evaluating the current reform proposals as well as in covering the abandonment of human body parts and products. The promoter is therefore under certain duties. These duties represent a contractual justice that is not present in the general law because they are distributive in nature corresponding to the service provided. By rendering acceptable the inherent asymmetry of a unilateral contractual relationship, these rules indicate the presence of an inalienable ordre public particular to unilateral contracts (contrats gratuits) except where more favourable provisions may already exist
Zein, Sarah. "La place du droit anglo-américain dans les contrats internationaux." Thesis, Aix-Marseille, 2017. http://www.theses.fr/2017AIXM0078.
Full textThe analysis of international texts shows that the rules of Anglo-American law are the most used to regulate International contracts from their formation until their extinction. The combination of various factors explains this current phenomenon of influence of Anglo-American law and reveals its magnitude. On the one hand, the phenomenon of globalization, which is expressed essentially by the internationalization of the economy, has led to competition between nations for the attractiveness of their norms. The flexibility and pragmatism of Anglo-American law, on the other hand, seem to have prevailed over the legitimacy of civil law. Finally, the expansion of the tools resulting from the economic analysis of the law in the different cosmopolitan legal systems undoubtedly materializes this Anglo-American phenomenon of penetration of the economic dimension in the legal sphere. In addition, several Anglo-American contractual mechanisms are imported into the the projects of unification of the law of international contracts ; the effectively convey the legal philosophy of the common lawyers. The integration of Anglo-American rules has resulted in a strengthening of the guiding principles of freedom and contractual loyaulty, as well as weakening of the principle of contractual security
Maisonnat, Bérangère. "Etude sur le renouvellement normatif du droit des contrats." Thesis, Paris 2, 2018. http://www.theses.fr/2018PA020091.
Full textThe study of the normative renewal of contract law requires a general presentation of the phenomenon before taking an in-depth look at its impact. Firstly, this phenomenon is easily noticeable and calls attention to two crisis : a “growth crisis” and a “normative crisis”. Both highlight a tendency to exploit norms by making them instruments of harmonization, protection, standardization or persuasion. The innovation comes from their substance, their elaboration or their enforcement, however, the articulation of the various contract law norms and their integration within the domestic legal order raise many issues that need to be addressed. Secondly, this renewal’s potentiality to influence and impact contractual models needs to be questioned. Taking the recent reform into account, it seems that the normative renewal has taken a major role in the modernization of the Civil code. Indeed, converging movements towards both contractual flexibility and legal security are visible. However, this normative renewal movement is still unable to promote a modelling of contract law that would allow it to maintain its coherence in spite of the major transformations taking place. As such, the normative renewal of contract law shows its limits
Dandrade, Gilbert. "La conquête du droit des contrats du commerce international par les principes UNIDROIT, une réalité ?" Phd thesis, Université de la Réunion, 2004. http://tel.archives-ouvertes.fr/tel-00512020.
Full textCanahuate, Camacho Juanita Maria. "Application des principes d'Unidroit par les tribunaux arbitraux et étatiques." Paris 2, 2009. http://www.theses.fr/2009PA020094.
Full textWaked, Rita. "La notion de contrat administratif international à travers l'exemple du contrat BOT (Build, Operate, Transfer) : étude comparée Droit français-Droit libanais." Thesis, Paris 2, 2011. http://www.theses.fr/2011PA020005.
Full textBouleghlimat, Widad. "L'arbitrage commercial international dans les pays arabes et les principes Unidroit relatifs aux contrats du commerce international." Thesis, Paris 2, 2014. http://www.theses.fr/2014PA020013.
Full textInternational commercial arbitration is the Alternative Dispute Resolution (ADR) the most used in the world. Which contributes in particular to make the main actor of the diffusion of a-national rules as the general principles of law, usages of international trade, or the lex mercatoria, often chosen by the arbitrators as the law applicable to the substantive of the dispute. This choice was extended to the new rules developed by private international institutions such as the UNIDROIT Principles of International Commercial Contracts. A doctrinal codification conceived as a soft law instrument, which is increasingly applied in arbitration practice. Our study shows, however, that few awards rendered in cases in which one of the parties is Arabic made a reference to UNIDROIT Principles. The explanation is not to look for in an incompatibility between them and contract law in Arab countries but in the ignorance of this doctrinal codification by Arab jurists and lawyers. Added to this, a feeling of distrust a manifestation of soft law. It is therefore necessary to consider the ways in which the UNIDROIT Principles to find their place in the law and practice of the Arab countries
Hallier, Cécile. "La connexité en droit international privé." Nice, 2003. http://www.theses.fr/2003NICE0033.
Full textThe question : The related actions, protean concept, concerns both the form and the substance of law. The effects at the stage of the execution of the judgements reveal the interest of the notion: the existence of a risk of contradictory decisions questioning the international legal security. Handled in a indirect way in the international order through its effects, the notion does not offer a solution corresponding to its nature. From then on, it was necessary to envisage the method under a new angle: the function of guarantee at the same moment within the legal operations and in the good administration of the justice. This entails taking into account the coherence from the arising of the dispute to integrate it into the method of resolution of the private international law and restore its effectiveness. On the theoretical plan, the interest of a direct treatment of the notion of related actions allows to notice not only its compatibility with the objectives of harmonisation and co-ordination of the private international law but also the positive action which it can exercise in this domain
Hasquenoph, Isabelle. "Contrats publics et concurrence." Thesis, Paris 1, 2019. http://scd-rproxy.u-strasbg.fr/login?url=https://www.dalloz-bibliotheque.fr/pvurl.php?r=http%3A%2F%2Fdallozbndpro-pvgpsla.dalloz-bibliotheque.fr%2Ffr%2Fpvpage2.asp%3Fpuc%3D5442%26nu%3D237%26selfsize%3D1.
Full textThis thesis aims to thoroughly investigate the relationship between public contracts and competition. Analysing the confrontation of public contracts with competition highlights that these contracts represent a market economy activity. This confrontation takes shape in both dimensions of the competition : inside and outside the contractual framework. The award and performance of public contracts have an impact on the market, leading to a reassessment of the distinction between public authority and undertakings. This confrontation entails amendments within the rules of law applicable to competition and public contracts. On the one hand, competition rules are adjusted towards more flexibility in order to take into account the general interest impregnating the contract or the presence of a public person ; on the other hand, they are also reinforced in order to better appreciate the behaviour of public persons. As for public contract law, it appears to be a supply law, complementary to competition law. The general interest that has traditionally permeated the public contract regime does not appear to have been weakened : competition is indeed one of its components that must be reconciled with others. Historical analysis also helps putting into perspective the disruption brought about by European Union law : since the 19th century, the French administrative judge had the means to guarantee competition in the public contractual framework
Berthiau, Denis. "Le principe d'égalité et le droit civil des contrats." Paris 2, 1997. http://www.theses.fr/1997PA020042.
Full textMustafa, Bashar. "La Perturbation des principes contractuels en raison de la survenance d'une crise politique internationale : l'exemple du Proche Orient à partir de 1945." Reims, 2001. http://www.theses.fr/2001REIMD003.
Full textThe political crisis influence the contract in its formation and its execution. In cas of political crisis in the international law there is two principles. The first one is the interdiction of commerce with the enemy. The other one is the interdiction of commerce with the agressor. The distinction is that for the first one there isn't an intervention of U. N and with this intervention for the second principle. In the other hand there is two principles wich made the basis of contract. The first one is with one accord, and the second one is the licitly of this accord. All of this principles find there places in the formation and execution of contract. The contractor can use an interior mechanism or an extern mechanism of his contract to draw aside the consequences of the political crisis
Houtcieff, Dimitri. "Le principe de cohérence en matière contractuelle." Paris 11, 2000. http://www.theses.fr/2000PA111001.
Full textBramban, Bernard. "Le principe pacta sunt servanda en droit du commerce international. : Etude critique d'un principe de droit transnational." Phd thesis, Université Nice Sophia Antipolis, 2013. http://tel.archives-ouvertes.fr/tel-00956171.
Full textDudezert, Franck. "De l'existence d'un principe de confiance légitime en droit privé." Thesis, La Rochelle, 2016. http://www.theses.fr/2016LAROD003/document.
Full textThe expression "Principle of legitimate expectation" is generally used, within the French legal literature, as a principle under public law which has already been established in several countries as well as exercised in the Court of Justice of the European Union jurisprudence. Beyond this classic area, some authors argue that such a principle does exist in private law. It would be, for a fraction of them, an explanatory and orientative principle. For another author, there would be several principles. These uncertainties justify interrogation on the basis of the existence of one, or even several principles of "legitimate expectation". Assuming that the answer would be positive, the function of the above-mentioned principle must be ascertained so as to determine if that or these principle(s) have for unique function orientation – or interpretation – and explanation. The present thesis tries to answer in the affirmative for the first question and to give a negative answer to the second one. The first part of this thesis highlights the principle. It argues that the legal frame of defective products regulations as well as the civil liability does punish, through several ways, the breach of the legitimate expectation. This observation assumes that there is a legal norm which requires to respect this legitimate expectation. This norm can only be considered as a general principle of law to the extent that, by virtue of its generality, it shall inspire other norms. The second part of the present thesis deals with the consequences of the principle of legitimate expectation. Several have been identified and two of them are subject to more detailed and substantial development : the forced execution related regulations and the satisfactory function of civil liability
Rojas, Tamayo Daniel Miguel. "Le droit applicable au contrat en droit international privé colombien. Etude comparée, critique et prospective." Thesis, Paris 2, 2017. http://www.theses.fr/2017PA020006/document.
Full textColombian private international law remains in thrall to a public-law inspired approach resting on the principles of territoriality and sovereignty. These principles, which have been abandoned since the beginning of the twentieth century in comparative private international law, still form the basis of the choice-of-law rules for contractual matters found in positive law. Even though the courts have also used methods that are similar to others put forward more recently in the United States and France, the Colombian system does not offer satisfactory solutions to the issues raised by international situations, particularly in contractual matters. Colombian private international law therefore needs to be rethought. In this respect, it is possible, on the basis of existing texts in Colombian law, to justify both the transformation of the approach and the adoption of new solutions. As far as contracts are concerned, a favorable trend towards the consecration of the freedom of choice of the applicable law as a solution of principle can actually be identified within the Colombian legal order. Indeed, this solution aligns with the constitutional principle of internationalization and is compatible with the role recognized to private initiative in Colombian law. Choice of law, which is widely used in comparative international private law, is also favored by international institutions. In 2015, The Hague Conference thus published its Principles on the choice of law applicable to international commercial contracts. This non-binding instrument can provide inspiration for the development of a choice of law regime in Colombian law
Apsokardou, Eirini. "Le domaine de la loi et du règlement dans le droit des contrats administratifs." Thesis, Paris 2, 2012. http://www.theses.fr/2012PA020004.
Full textAccording to the case law of the Constitutional Council and the administrative courts as well as to some public law theorists, the definition of the rules governing the award and the performance of Government administrative contracts, administrative contracts of State-depended public bodies and public contracts of local authorities falls within the scope of the regulatory powers of Government. More specifically it is argued that public procurement law is part of the rules governing the procedure of administrative decision making and the organisation of public services which are matters traditionally reserved to the autonomous regulatory power. The lack of coherence within the legislative and regulatory sources of public procurement law is mainly due to the predominant role of regulations. Despite the latter’s consolidation by the French courts, the growing number of legislative texts intended to build a coherent set of rules in this field has become a source of complexity. The transformation of the sources of the law of administrative contracts in the last few years – including the Community law dimension – requires the prior intervention of the Legislature. Therefore, the provisions governing the law of public procurement contracts should necessarily be restructured. This could be achieved through the redefinition of the constitutional basis of legislative and regulatory powers in the field of public contract law and consequently through a new balance between law and regulation with the intention of safeguarding the predominance of the former. Drafting the rules on the basis of Article 34 of the French Constitution which enables the Legislature to define the fundamental principles of civil obligations will clearly contribute to a more coherent and systematic approach regarding the sources of public procurement law.. Should the powers of the Legislature be safeguarded, the regulations will then be confined to their usual role, which is secondary and subordinate to Parliamentary Acts
Daio, Pascoal Lima Dos Santos. "L'État et ses contrats internationaux : contribution à l'étude des contrats d'État conclus par la République de São Tomé et Príncipe." Paris 1, 1992. http://www.theses.fr/1992PA010293.
Full textThis thesis is aimed at the analysis of the above subject based on the theory of contracts on the north-south level. A preliminary title is centered on the analysis of the concept of states contracts. It is discovered that this is an incertitude on terminologies studies while the mono disciplinary approaches did not allow a proper appraisal of the complexity of the phenomenon of states contracts. This being so, it seems to us that a pluridisciplinary approach should be adopted which pleads in favour of parallelism among states contracts and other categories of administrative contracts withen the legal existence of such categories in the country. The first part examine the legal aspects of states contracts in the first place, it examined the economic aspects of the constitution. And on the other hand, it analysed the different instruments for the investment promotion. At the internal level it concerns the decree n° 14 86 on investment codes. On the internal level, it covers the CEE ACP convention on the economic integration for the states in central africa. This will also extend to the Washington state convention of 18 3 65 concerning the settlements of disputs among states and the nationals of other states with the insertion of an arbitration clause (cirdi). In the second part, the questions relative to the legal system of these contracts. Their formation is a fact for an initial development. Finally the execution of the contract could encurve in its perspective, the difficulties of contract arbitration through the international mechanism. The settlement could be on the interpretation of the basic law of investment promotion or on the interpretation of contractual stipulations due to a compensatory clause fixed within the contract
Bernat, Cédric. "L'exploitation commerciale des navires et les groupes de contrats ou le principe de l'effet relatif dans les contrats commerciaux internationaux." Bordeaux 4, 2003. http://www.theses.fr/2003BOR40012.
Full textBusseuil, Guillaume. "La notion de contrat en droit privé européen." Thesis, Paris 10, 2008. http://www.theses.fr/2008PA100110.
Full textThe foundations of contract law continue to evolve under the initiative of the European Union, the Council of Europe and doctrine. Their presentation was arranged around the distinction between a European law based on institutions –European Union law and the European Convention on Human Rights – and transnational law dictated by doctrine. The fresh and original interaction between these two sources created a European private law that is likely to shape new thinking about the notion of contracts. Because contract law had been based in national legal systems, developing a European notion of contracts that transcended these different sources was difficult. A contemporary understanding required revisiting the historical construction of the notion of contracts, from Roman law to national forms of civil law (the French Code civil, the German Bürgerliches Gesetzbuch). Each national legal system examined here (German, English and French) developed a distinct forms of contract law. However, contemporary doctrinal codifications, particularly the Principals of European Contract Law offered new ways of thinking about contract law by deconstructing its various national bases. Discovering the notion of contracts in European private law required putting forth a solid theoretical foundation. Indeed, the theory of relational contracts is at the heart of this study. Whether founded in transnational or European law, it serves to explain, among other evolutions, the extension the notion of the contract such that it finds greater acceptance than in national law. The relational contract, with the concepts of good faith and reasonable expectation, now situates the notion of the contract at the crossroads of Common and continental law. Further enriched by the concepts of contractual balance and incompleteness, the notion of contract has become a pluralistic one
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 textMarie, Soazic. "Le principe de mutabilité et le droit de l'urbanisme." Caen, 2009. http://www.theses.fr/2009CAEN0660.
Full textUrban planning laws have drawn sharp criticism concerning their instability and their resulting legal insecurity. As with all regulations, urban planning laws are governed by the principle of mutability which allows, and at times requires, the administration to adapt the law to changes in circumstances of case or law. However the frequency with which it develops raises important issues, impacting on the surroundings, property rights, real estate sector. Legislators are constantly in search of a balance between the need to ensure normal, and even desirable, development for urban planning regulations, and the need to guarantee legal security for those who use this regulation. It has been shown, initially, that to do this, legislators did not choose to curb mutability for urban planning regulations. Urban planning laws present certain characterisics that make a law particularly exposed to changes depending on the circumstances. Taking into consideration these specific endogenous factors of mutability, legislators have set up numerous instruments aimed at allowing this mutability to be fully expressed and which incorporates many exogenous factors. It has been shown, in a second part, that responding to the ever increasing mutability of urban planning regulations are reinforcements and diversifications which provide guarantees against the detrimental effects of the more and more frequent regulatory changes for urban planning law users. Thus, against the backdrop of legal security, the principle of mutability takes on a specificity appropriate to urban planning laws, which in all cases is an expression of the predominant place that this principle occupies
Koehl, Marie. "La négociation en droit des entreprises en difficulté." Thesis, Paris 10, 2019. http://www.theses.fr/2019PA100016/document.
Full textAt first glance, it may seem surprising to focus on negotiation in insolvency law since this branch of law is marked by the seal of public order. However, the logic of dialogue between the debtor and his creditors is increasingly observed in most of the procedures offered to the debtor to deal with his difficulties. The legislator's perspectives have changed: it is no longer just a question of sanctioning, but more of preventing difficulties and safeguarding companies. This evolution has given rise to the desire to understand the current phenomenon of negotiation in its effects on the law of companies in difficulty. The aim was to determine, in the texts, the reality of the negotiations and, as a counterpoint, the real share of the judge's power. The promotion of the negotiation process in dealing with business difficulties has upset, on the one hand, the balances within the procedures. Negotiations appear to have been strengthened in procedures that were originally judicial and collective and in which unilateralism was prevalent. Conversely, mutual agreement procedures are more judicial in nature than before. As a result, the dividing line between amicable and judicial proceedings is less clear than in the past. The development of negotiation has also upset the balances between the players: at the heart of the search for a solution to the company's difficulties, the debtor and his creditors are placed at the forefront of the processing. The changes brought about by the integration of negotiation into the law of companies in difficulty are also changing the values traditionally attached to the subject. Traditional principles such as the equality of creditors are reduced. However, these changes offer above all a more balanced and attractive law. If the judge's traditional office seems to be distorted, his power is strengthened accordingly. The negotiation process requires the establishment of a strict legal framework and significant judicial control to ensure that the fundamental rights of the parties are guaranteed. Above all, the debtor and his creditors will more easily accept a solution in their control. This development shows that the law is more based on the idea of trust. Thus, because of the many advantages known to it, the amicable way could still play its charms with the French legislator
Shi, Yang. "La réglementation des contrats internationaux en Chine." Thesis, Paris 1, 2014. http://www.theses.fr/2014PA010308.
Full textChina’s economy has grown significantly during the past thirty years under a policy of socialist market economy. For the purposes of international trade, Chinese international contract law makes reference to western law, while maintaining distinctive features stemming from political influence and Chinese culture. As trade relations with China intensify, foreign and Chinese economic entities are entering into an increasing number of international contracts. In accordance with the principle of contractual freedom, parties to an international contract may choose which law will govern their contract, so as to enjoy a greater degree of flexibility, legal safety or neutrality. This study, based mainly on Chinese legal developments, aims to provide a practical reference on the regulation of international contracts in China by presenting the general principles of international Chinese contracts, and the negotiation and execution of international contracts, as well as difficulties related to their application. It also analyses the manner in which the United Nations Convention applies to international sale of goods contracts, as well as certain cases of refusal to recognize and enforce foreign arbitral awards in China. By dealing exclusively with international contracts related to international trade, this study will provide foreign investors wishing to invest in China with a comprehensive picture of the current regulation of international contracts in China and will allow the parties to choose which law to govern their contractual relationships in order to achieve their objectives and avoid any unpleasant surprises resulting from their lack of awareness of current Chinese laws and regulations
Lière, Sophie. "L'innovation technologique dans les contrats publics d'affaires." Thesis, Paris 2, 2017. http://www.theses.fr/2017PA020005.
Full textUnder the influence of European Union law, the « business public contracts » (i.e. contracts known as public procurement and concession contracts in EU law) are supposed to be a means of fostering technological innovation. However, the multiplicity of objectives assigned to these contracts, in particular the obligation of maintaining an open competition in awarding them, does not allow them to be an efficient tool for promoting innovation at their formation stage. It is the responsibility of the parties to take into account the main charasteristics of innovation, such as evolutivity and performance, to define their contractual relationships. The contract, taken as a means of anticipation, thus represents an efficient tool for promoting innovation
Dupre, Marc. "Contribution à une théorie générale des contrats spéciaux : apports du principe de liberté contractuelle tempérée." Toulouse 1, 2011. http://www.theses.fr/2011TOU10039.
Full textLaw of contracts is part of an ideological, historical and juridical current which gives to this field specific characteristics. The principle of temperate contractual freedom summarizes this specificity of law of contracts, primarily founded on framing the relationship between the different parts rather than on considering the balance of benefits. However, studying common law of contracts allows one to demonstrate the insufficiencies of this relational approach to contracts. The examination of special law of contracts demonstrates the evolution of the special rule in the field of contracts. While most authors advocate developing families of contracts or intermediate rules common to all contracts, this study proposes a prospective view for remodeling both parts of contract law and for contributing to build a general theory of special contracts. The principle of temperate contractual freedom allows pinpointing some ideas to improve this relationship between the criticized common law of contracts and the recently growing area of special law of contracts
Boulaire, Jérémie. "Bona Fides : contribution à l'étude des fondements du principe de bonne foi en droit français des contrats." Lille 2, 2006. http://www.theses.fr/2006LIL20018.
Full textEighty years after the publication of Georges Ripert, The moral rule in the civil obligations ( La règle morale dans les obligations civiles), we are accustomed to presenting the principle of Good Faith as resting on a moral base. Sign of a moral rule spreading in the statute law, the concept of good faith would be the means chosen by the Frenchs courts to moralize the contract law. On the basis of athought about the extraordinary reception which , as of its first edition in 1926, has been reserved for this work, having since then become mythical, the author makes the bet of a historical in-depth setting, to lead to the following diagnosis : within the legal speeches, the assertion of the moral base of principle of Good Faith fulfills a function much more of legitimation than of decision. A moral philosophy should necessarily be chosen and, with examination, it proves that, since its birth at the modern time – i. E. This period that the historians locate after the end of the Middle Ages and which is not the contemporary time – this fundamental principle, which is said to be inspired by a moral rule, has been domesticated, placed at the service of a requirement of security has constitued basically the paradigm on which this principle rests and more generally, as well, the French contract law as a whole. The contemporary evolution of jurisprudence does not call into question this state of affair. The relatively recent topic of a reactivation of the concept of good faith at the end of the 20th century testifies, not to an abandonment of this paradigm of security , heritage of the modern thinkers, but more certainly to a shift in the jurisprudential design of security. We remain in a culture of security ; we simply no longer have one and the same design of security than in former times. Even if this movement is unfinished, it seems that we are passing from a security for the contract to a security for the contracting parties as persons. This assumption in any case provides a possible key of reading for the contemporary transformations of our statute law
Boussofara, Anissa. "Le principe d’interprétation autonome dans la Convention de Vienne sur les contrats de vente internationale de marchandises." Thesis, Université Côte d'Azur (ComUE), 2019. http://www.theses.fr/2019AZUR0010/document.
Full textWhen analyzing the United Nations Convention on Contracts for the International Sale of Goods adopted the 11 April 1980 (CISG), a principle of autonomous interpretation appears. This principle is stated in other legal texts (as United Nations conventions and UNIDROIT Principles). The principle of autonomous interpretation belongs to the transnational law and leads to take into account the international character of the legal provisions to be interpreted and to promote the uniformity of their application as “expressed” in the article 7 of the CISG. General principles underlying the CISG are used for gap-fillings which is the second side of legal interpretation. Using national laws is the ultimate resort.The principle of autonomous interpretation in the application of the CISG will be studied. For this purpose, judicial decisions and arbitral awards will be examined. Dispositions from the Convention have been chosen for their interpretation to be examined. The principle of good faith is also examined in its relation with the CISG interpretation. It will be observed that French case-law doesn’t acknowledge the principle of autonomous interpretation. Arbitral awards show a more important tendency to apply the principle of autonomous interpretation but there is no uniformity. The arbitrators in international trade have multicultural traditions and do not depend on a forum. Therefore they are less likely to be “influenced” by national “references” and so much more capable to interpret autonomously international dispositions. Nevertheless the “express” affirmation of a principle of autonomous interpretation is missing from arbitral awards and judicial decisions. This thesis aims to enlarge the acknowledgement of the principle of autonomous interpretation by the interpreters of uniform law using the CISG as a model. The function of the principle of autonomous interpretation will be fundamental to the expansion and to the correct application of uniform law. This method of interpretation is respectful of the objective of uniform law
Deprez, Emmanuel. "Liberté contractuelle et le droit européen." Thesis, Lyon 3, 2011. http://www.theses.fr/2011LYO30061.
Full textProblem drives to analyze what is European right of contract. First part searches the sources of European freedom of contract. The multiplicity of rules and practices allows seeing a defect of definition. The first chapter underlines that the autonomy of the will is relative because it is subjective and it evolves according to the balances in contract. It determines that this freedom is joined and is partly the result from the Romano-Germanic civil code. The second chapter allows noticing that the autonomy of the will is henceforth a very relative principle in international private law.Pluralism of the law involves that the contractual freedom is a notion without spring neither stable nor established. The European private international law is under construction and organized in a functional waySecond part studies the European contractual freedom from the point of view of the substantive law. This freedom is a relative principle in symbiosis with the necessities of protection of the parties of contract and necessities of the European business. It is about a subjective principle because of the European law and order (it contains the economic law and order, the lois de police and the classic international law and order), and because of principles in the European construction. The first chapter draws the frame and the general structure of the European contractual freedom. It participates in the business and owes respect the essential principles of the Union in the direction of objective right-law (freedom of establishment, just competition, commercial equality); it is characterized by the European principal development and by the commercial practice. Second chapter notes that the freedom is integrated into the European Union. It is functional and finds balance by corresponding with the law and order to the subjective direction (protection of the weakest parties and the fundamental rights)
Diallo, Harouna. "Le principe de bonne foi : (Contribution à la recherche d'un instrument de justice contractuelle)." Thesis, Paris 8, 2015. http://www.theses.fr/2015PA080007.
Full textAt the dawn of this new millennium, the contract such undergoes profound changes, so that it is even legitimate to speak of contractual deregulation, alike the climate change. Is it then all about a deregulation or a new crisis of the contract? Whatever it is, contract has, by profound changes, considerably metamorphosed. That leads to an abandonment of its traditional landmarks, and to rebuilding its paradigms. Therefore, the contract is no longer only influenced by a single ideology, but by many. Thus, the « autonomy of will » principle that was the only ideology the contract relies thereupon, gradually eclipses due to the fierce competition of the theory of « useful and fair ». Other philosophies, such as contractual solidarism and social voluntarism also influence it. The cult of equality, derived from the universalism of the Enlightenment, gives way to a postmodern approach of the contract. In this ideological tumult, the principle of « good faith » arises as a mediation between the past and the present. For, despite its classical appearance, it embodies a reality quite modern. It allows to combine different ideologies. Its protean nature also allows to deal with different realities. While fostering freedom of contract, it also preserves contractual certainty. By suggesting resort to obligation of information and cooperation, the principle of good faith actually contributes to contractual freedom. In parallel, it implies an adjustment of the unbalanced contract, thereby ensuring contractual certainty. Adjustment then allows contract to ever last. By setting a mutual obligation of information among parties who have to readjust the unbalanced contract, the principle of good faith thenceforth highly contributes to contractual justice. Neither impairment is no longer a fatality, nor the imbalance an impossible obstacle. Here only lies a challenge to overcome
Nikonova, Maria. "L'interprétation du droit uniforme du commerce international en Russie : l'exemple de la Convention de Vienne sur les contrats de vente internationale de marchandises." Thesis, Aix-Marseille, 2017. http://www.theses.fr/2017AIXM0020.
Full textThe international trade operations need legal certainty. The uniform substantive law comes as a response to this need, providing parties with uniform legal basis adapted to international transactions. However, the effectiveness of this response will largely depend on how the uniform law is implemented by domestic courts and arbitral tribunals. The objective of this study is to provide a critical analysis of the practice of interpretation of uniform legal texts in Russia by taking as an example the uniform law of the international sale of goods created by the Vienna Convention of 1980. This analysis reveals that the particular characteristics of the Russian legal and judicial systems have significant implications on the interpretation of uniform substantive law. The integration of international conventions in the Russian legal system is supposed to ensure their implementation by state judges, but it can also create confusion between the rules of uniform law and those of domestic law. This confusion brings Russian judges to interpretation of the uniform law on the basis of their national law, thus threatening the goal of international uniformity in interpretation of the uniform substantive law. Since there is no existing transnational precedent rule, the uniform interpretation of international substantive rules can only be achieved by co-operation and discussion between different national courts and arbitral tribunals [...]
Palvadeau, Émmanuelle. "Le contrat en droit pénal." Thesis, Bordeaux 4, 2011. http://www.theses.fr/2011BOR40048/document.
Full textAs a « bedrock of the legal order », the contract is not ignored by criminal law. Unquestionably present in many offences, the contract is the object of specific conceptions that the doctrine find here and there as signs of the autonomy of criminal law.However, the presentation of the contract in criminal law through the statement of fact that autonomous solutions exist, is not sufficient. It doesn’t allow establishment in a positive and rational way, the real definition of the contract in criminal law.By refusing transposition of the entire contractual settlement, current law expresses the principle of a selection and that the purpose of criminal law may clarify it in a decisive way.Then, the contract in criminal law appears, resulting of a functional selection from the dispositions of contractual settlement: only the ones which maintain the aim of criminal law must be distinguished
Bueno, Díaz Odavia. "Franchising in European contract law : a comparison between the main obligations of the contracting parties in the Principles of European Law on Commercial Agency, Franchise and Distribution Contracts (PEL CAFDC), French and Spanish law /." München : Sellier European Law Publ, 2008. http://d-nb.info/989121801/04.
Full textZhang, Zhouxi. "L’influence du droit français sur le droit chinois des sûretés mobilières." Thesis, Perpignan, 2016. http://www.theses.fr/2016PERP0043/document.
Full textThis comparative research between French law and Chinese law is particularly devoted to the tenth anniversary of the French ordinance of 23 March 2006 and the LDR (Chinese property law) of 16 March 2007 which is the first complete Chinese law which reforms the Chinese Security Interest. Departure from guiding principles of different security interest, both preferential than exclusive, an in-depth analysis of the impact of simplification on the security laws, in France as in China, continued while taking account of the rebirth of the properties-securities and the prospective of liens. Moreover, some institutions or techniques of other Western countries have been included in the comparative analysis to show the different aspects and also the attractiveness of the French law.Based on the same legal theory, French and Chinese legislators have certainly chosen different techniques to overcome the same difficulties. But the simplification of guarantee laws, which promotes the safety of "contractualization" of security interest in both countries will remain an undeniable convergence. Thus, there is reason to believe that the Chinese legislator will take into account the French techniques in future reforms in the security rights that are always characterized by safety, simplicity and speed
Sartzetaki, Petroula-Anastasia. "Le droit hellénique de passation des marchés publics à l'épreuve du droit de l'Union européenne." Thesis, Aix-Marseille, 2013. http://www.theses.fr/2013AIXM1019.
Full textThe significance of public contracts amongst the economic activities of the modern state's administration, has led the European Union- for several socio-economic rationales- to establish a uniform regulatory framework so as to ensure fair and unbridled competition between the economic operators of the different Member States. To this end, in addition to the provisions of primary law, the EU has further enacted secondary legislation in the form of exhaustively detailed directives. In order to achieve the effective application of EU law in several public contracts a broad interpretation of the public contracts concept was developed, persistently encouraged by the Court's case law, and a categorisation of the public procurement types was adopted. Furthermore, European procedural rules were introduced with the aim of safeguarding rights that individuals derive from that law. The question thus is what is the impact of this comprehensive regulatory framework on the Greek public law considerations on the subject. It is in the context of national laws' harmonisation on the matter, that EU law is inserted in the Greek legislation ; this insertion is carried out via national regulatory authorities, the legislator and the administration ; moreover, in the procedural field, both the European and the national judge exercise judicial control over the reception of the EU law in the national legal order. By way of the aforementioned structure the contractual discretion of the Hellenic public authorities in the course of fulfilling the requirements imposed by EU law can be thoroughly explored
Jafferali, Rafaël. "La rétroactivité dans le contrat: étude d'une notion fonctionnelle à la lumière du principe constitutionnel d'égalité." Doctoral thesis, Universite Libre de Bruxelles, 2014. http://hdl.handle.net/2013/ULB-DIPOT:oai:dipot.ulb.ac.be:2013/209347.
Full textPremièrement, elle tend à montrer que la rétroactivité n'est pas une notion conceptuelle, dont la signification serait donnée a priori en sorte qu'elle pourrait être déduite sur un mode purement logique de sa définition, mais bien une notion fonctionnelle dont la portée dépend du but en vue duquel elle est utilisée. La portée de l'effet rétroactif varie donc toujours selon l'institution examinée.
Deuxièmement, la thèse vise à établir que le principe constitutionnel d'égalité constitue un instrument efficace permettant de corriger certaines divergences de régime entre les institutions rétroactives, sans pour autant abolir toute différence entre elles.
Doctorat en Sciences juridiques
info:eu-repo/semantics/nonPublished
Barbin, Émilie. "La régularisation des actes administratifs : étude de droit comparé franco-brésilien." Thesis, Lyon, 2019. http://www.theses.fr/2019LYSE3048.
Full textThe regularisation of administrative acts is part of a global search for legal stability, which calls into question the familiar dialectic between legal certainty and administrative legality. It implies that administrative acts can be retained in the legal system despite their original illegality. Yet the French current legal system is characterised by a striking discrepancy between increasing references to regularisation in positive law, and uncertainty around its usage. On the contrary, regularisation has been embedded in Brazil’s legal architecture for twenty years as a power resting with the administration, which provides us with an example of mature use of this process. In this context, comparative law is both a tool to learn more about regularisation and a means to examine the prospects that could accompany its expansion within the French legal system. This approach allows for a definition of this notion as a corrective process with retroactive effects, enabling administrative acts to be kept in the legal order and legality to be restored. This definition helps to specify the scope of the notion, which then enables us to consider its legal effects. In this respect, building a specific system for the regularisation of administrative acts aims at specifying its legal implications. This system rests on a balance between meeting the objectives pursued by regularisation and limiting some of its negative effects, in particular towards third parties
Niel, Paul. "Essai sur les fonctions du juge administratif face aux principes civils du contrat de transaction." Thesis, Aix-Marseille, 2014. http://www.theses.fr/2014AIXM1017.
Full textParticipant of a mixed nature, by its contractual source, legal in its object, the transaction and allows the parties to end a dispute arising or prevent future litigation. It has a remarkable usefulness for administrative matters. The transaction, civil law concept borrowed by the administrative judge, gave rise to various interpretations praetorian. The law is not static, the administrative judge, under cover of a personal philosophy, worked to preserve its interests gradually detaching civilians principles of contract transaction. The term "administrative transaction" refers to the fact that the transaction is entered into by or on behalf of a public entity. This can however be a private contract or an administrative contract. Admittedly, the term "administration" can be interpreted broadly and narrowly. Litigation of the transaction is booming. Has long been public law borrows the civil rules of contract transaction subject to different legal regimes. Serious difficulties remain. Also, it was necessary to demonstrate why and how the administrative judge undertook a clarification of the law of the transaction in administrative matters. The study was an opportunity to distinguish the function of adaptation and systematization of administrative courts, where this differentiation was rarely considered
Dodou, Bienvenue. "Le report des garanties accessoires sur l'obligation de restitution en cas d'anéantissement du contrat principal : étude des droits privés français et de l'OHADA." Thesis, Strasbourg, 2018. http://www.theses.fr/2018STRAA024.
Full textThe postponement of ancillary guarantees on the obligation to return the terminated main contract is a rule of the Civil Code in the version resulting from Order No. 2016-131 of 10 February 2016 related to the reform of contract law of the general regime and the proof of obligations. Specifically, the rule is formulated by article 1352-9 of the Civil Code: "Securities created for the payment of the obligation are automatically transferred under the obligation to return without however depriving the surety of the benefit of the term". It is about the codification of case law handed down first in the field of suretyship, then extended to mortgages, and finally, by generalization, to all securities, including solidarity. The scope of such a rule is therefore general in French law. In the uniform business law of OHADA, the revised Uniform Act on the Organization of Security Interests has not provided for such a rule. On the other hand, the recent draft text of the Uniform Act on the general law of obligations in the OHADA area provides, under the inspiration of the solution adopted in French law, for the adoption of the rule in the form of an "extension" of the accessory guarantees on the obligation to return the terminated main contract. Indeed, Article 210 paragraph 1 of the aforementioned draft uniform text states: "The guarantees stipulated for the payment of the original obligation are extended to the obligation of restitution". The wording of the two texts, Articles 1352-9 of the Civil Code and 210 paragraph 1 of the draft uniform text, are different, but the logic and legislative policy of both legal systems converge. This thesis focuses on the determination of the legal nature of the deferral (or extension) mechanism and its regime. It defends the view that postponement (or extension) is not a technical concept. The deferral is actually a double substitution: a substitution in the main report and a substitution in the bond report
Haïk, Raphaëlle. "Droit pénal des contrats." Paris 11, 2008. http://www.theses.fr/2008PA111017.
Full textChoubani, Salah Saloua. "La promesse de porte-fort : étude comparative en droit français et en droit tunisien." Nantes, 1998. http://www.theses.fr/1998NANT4013.
Full textGrimonprez, Benoît. "L'exigibilité en droit des contrats." Poitiers, 2005. http://www.theses.fr/2005POIT3010.
Full text"Exigibilité" is a notion which represents the moment when the creditor can force the debitor to carry out his undertaking. This trait of the obligation expresses it temporality and binding effect. Broadly speaking, it's role is to ascertain the moment when the contract comes into force. In this respect, overstepping the moment when performance is due amounts to a breach of contract and the stantdrard remedies are then available to the creditor (claim or specific performance, right to withhol performance, claim for termination). "Exigibilité" is traditionnaly perceived as invariable, but in modern contract law it is subject to interferences which show the adjustments made to the contractual bound by the circumstances of the contract's performance. Thus the concept becomes the privileged of the social processing of debt problems and the carrying out of the contract's economic function
Sun, Hanguang. "Les contrats en droit chinois." Aix-Marseille 3, 1992. http://www.theses.fr/1992AIX32012.
Full textThe present study is about two direction : the contract theory in interior law and the contract theory in private international law in china. The auther try to present spcific character in chinese law. The last chapter is interesting for practicians of chinese law