scholarly journals Defining Wrongful Dismissal: The Alberta Schism

2019 ◽  
pp. 95
Author(s):  
Dennis D. Buchanan
Keyword(s):  
Case Law ◽  
The Law ◽  
The Moment ◽  
Wrongful Dismissal

The law in Alberta regarding wrongful dismissal is at odds. The source of this schism is the moment of breach when an employee is dismissed with insufficient notice. The “Mandatory Notice” doctrine holds it is at the moment of termination, while the “Contractual Option” doctrine holds that the breach occurs on failure to provide reasonable notice or pay in lieu of notice. While the Mandatory Notice doctrine is considered trite law in other jurisdictions, Alberta has continued to develop case law supporting the Contractual Option. However, the Contractual Option doctrine suffers from several fatal flaws which highlight illogical theoretical and practical results flowing from its application. Therefore, this trend must reverse and Alberta must return to the Mandatory Notice doctrine.

scholarly journals RIGHTS OF WOMEN DURING PRE-MARRIAGE FROM QUR’ANIC PERSPECTIVES WITH CROSS-REFERENCE TO THE LAW IN MALAYSIA: AN ANALYSIS

2020 ◽  
Vol 5 (19) ◽  
pp. 01-09
Author(s):  
Nadzrah Ahmad ◽  
Rahmawati Mohd Yusoff ◽  
Mohammad Hidir Baharudin
Keyword(s):  
Women's Rights ◽  
Case Law ◽  
Women’S Rights ◽  
Cultural Interpretation ◽  
The Law ◽  
The Moment ◽  
Cross Reference ◽  
Rights Issues

Women’s rights issues have marked their spot as one of the most debated issues throughout the centuries. Whenever the issue is raised, the topic of marriage is the most highlighted concerning the discussion. Marriage is regularly portrayed as an “oppressive sphere” for women, with their rights being oppressed since the moment of pre-marriage, especially in Islam. However, further reflection on the issue has shown that Islamic matrimony liberates women, preserves their honor and place in society, and abolishes injustice when guided in principle from the Qur’an and the Sunnah of Prophet Muhammad (PBUH) which will be examined in this research. The paper will also analyse the issue in the law of Malaysia and supported by the case law if any. In addition, reference will also be made to the opinions of the scholars regarding the conflicting issue of the rights of women during pre-marriage. Regrettably, Muslims’ misunderstanding due to cultural interpretation and mispractice of original Islamic teachings have tainted the true Islamic ideal. It is hoped that the study may provide a clear reference and guideline regarding the rights of women during pre-marriage from both the Islamic and Malaysian laws as this topic is highly significant and beneficial to numerous parties in the present day.

Theoretic and Practical Aspects of Protection of the Right of Ownership in the Hereditary Relations

2020 ◽  
Vol 27 (3) ◽  
pp. 95-108
Author(s):  
Iryna Dzera
Keyword(s):  
Negative Impact ◽  
Case Law ◽  
Effective Mechanism ◽  
Hereditary Property ◽  
Judicial Practice ◽  
The Subject ◽  
The Law ◽  
The Moment ◽  
State Registration ◽  
The Right

The relevance of the subject matter lies in the fact that inheritance is one of the most common grounds for acquiring property by individuals. Considering the fact that the heirs are often relatives of the testator, to avoid disputes between them, the law should contain an effective mechanism for resolving relations between heirs over the redistribution of inheritance or change of the order of inheritance, and a mechanism to protect the rights and interests of heirs in case of disputes. The purpose of this study is to identify gaps and inconsistencies in civil legislation and case law in the study of the main ways to protect the rights of heirs in hereditary relations, and ways to resolve them. It is noted that in the presence of disputes between the heirs, it is not the protection of property rights that is carried out, because the heirs have not yet acquired the right of ownership, but the protection of the right to inheritance, according to which they will be able to acquire ownership of the inherited property. There is a lack of a particular list of ways to protect the rights of heirs in the legislation of Ukraine, which has a negative impact on judicial practice, as they often use inappropriate methods of protection. The study analyses the case law of hereditary disputes and identifies the main mistakes that courts make in resolving such cases. Particular attention is focused on the study of such methods of protection as the recognition of the certificate of inheritance as invalid, the hereditary recognition of the property that belonged to the deceased, but was not part of the inheritance. The study investigates the moment of ownership of the hereditary property of the heirs and a critical analysis of the provisions of Article 1268 of the Civil Code, which determine the moment from which the inheritance belongs to the heir – namely from the moment of opening the inheritance. There is a conflict between the rules of Article 1268 and Article 3 of the Law of Ukraine "On state registration of real rights to immovable property and their encumbrances" in terms of establishing the moment of ownership of immovable property by inheritance

Оскарження рішень, дій чи бездіяльності публічної адміністрації як вид гарантії забезпечення надання публічних послуг у судовому порядку

2019 ◽  
Vol 24 ◽  
Author(s):  
О. В. Бойко
Keyword(s):  
Public Administration ◽  
Judicial Review ◽  
Public Services ◽  
Legal Regulation ◽  
Scientific Article ◽  
Preliminary Stage ◽  
The Law ◽  
The Moment ◽  
Court Hearing

The scientific article identifies the peculiarities of appealing the decisions, actions or omissions of public administration subjects on the provision of public services at the stage of initiation and preparation for judicial review of an administrative case. The author substantiates the feasibility of improving the legal regulation of the procedure for holding a preliminary hearing before the court hearing of the case. In particular, it is considered expedient to set the terms of the preparatory meeting from the moment of receipt of the administrative claim, as well as to determine the cases when the parties are not reconciled.It is established that the preliminary stage of the court hearing often ends with the conclusion of the preliminary proceedings and the appointment of the case to trial in the field of public services. This is not against the law. However, it should be borne in mind that in accordance with Art. 121 of the CAS of Ukraine such a decision is delivered by the consequences of preparatory proceedings, not the previous court hearing. Obviously, preparatory proceedings are not limited to, and do not always end at, a previous court hearing. Preparation may continue after a preliminary hearing. Therefore, the decision to close the preliminary proceedings and assign the case to trial after the consequences of the previous court hearing can only be made if the judge has taken all the measures necessary to hear the case. If during a previous court hearing in the field of public services, to which all persons involved in the case have arrived, the issues necessary for its consideration have been resolved, then, with the written consent of these persons, a court hearing may be initiated on the same day. In this case, the termination order is also delivered.

Romans 8: Dead to the Law, Alive in the Spirit

2013 ◽  
Vol 9 ◽  
Author(s):  
Tyler Lohse
Keyword(s):  
Case Law ◽  
Legal Interpretation ◽  
Philosophy Of Law ◽  
Interpretive Theory ◽  
The Law ◽  
Interpretive Strategies ◽  
Civil Death ◽  
Romans 8

This essay comments on the nature of the language of the law and legal interpretation by exam- ining their effects on their recipients. Two forms of philosophy of law are examined, legal positiv- ism and teleological interpretive theory, which are then applied to their specific manifestations in literature and case law, both relating to antebellum slave law. In these cases, the slave sustains civil death under the law, permissible by means of these legal interpretive strategies.

The Constitutional Principle of Accountability: A Study of Contemporary South African Case Law

2018 ◽  
Vol 33 (1) ◽  
Author(s):  
Chuks Okpaluba
Keyword(s):  
Judicial Review ◽  
Police Officers ◽  
Public Procurement ◽  
Case Law ◽  
The State ◽  
Constitutional Principle ◽  
Starting Point ◽  
The Law ◽  
Constitutional Right ◽  
The Many

‘Accountability’ is one of the democratic values entrenched in the Constitution of South Africa, 1996. It is a value recognised throughout the Constitution and imposed upon the law-making organs of state, the Executive, the Judiciary and all public functionaries. This constitutional imperative is given pride of place among the other founding values: equality before the law, the rule of law and the supremacy of the Constitution. This study therefore sets out to investigate how the courts have grappled with the interpretation and application of the principle of accountability, the starting point being the relationship between accountability and judicial review. Therefore, in the exercise of its judicial review power, a court may enquire whether the failure of a public functionary to comply with a constitutional duty of accountability renders the decision made illegal, irrational or unreasonable. One of the many facets of the principle of accountability upon which this article dwells is to ascertain how the courts have deployed that expression in making the state and its agencies liable for the delictual wrongs committed against an individual in vindication of a breach of the individual’s constitutional right in the course of performing a public duty. Here, accountability and breach of public duty; the liability of the state for detaining illegal immigrants contrary to the prescripts of the law; the vicarious liability of the state for the criminal acts of the police and other law-enforcement officers (as in police rape cases and misuse of official firearms by police officers), and the liability of the state for delictual conduct in the context of public procurement are discussed. Having carefully analysed the available case law, this article concludes that no public functionary can brush aside the duty of accountability wherever it is imposed without being in breach of a vital constitutional mandate. Further, it is the constitutional duty of the courts, when called upon, to declare such act or conduct an infringement of the Constitution.

Formation of Contract and Third Parties in Cambodia

2018 ◽  
Author(s):  
Ly Tayseng
Keyword(s):  
Academic Writing ◽  
Case Law ◽  
Civil Code ◽  
Third Parties ◽  
Third Party ◽  
The Third ◽  
Contract Formation ◽  
The Law ◽  
The Right ◽  
Formal Requirements

This chapter gives an overview of the law on contract formation and third party beneficiaries in Cambodia. Much of the discussion is tentative since the new Cambodian Civil Code only entered into force from 21 December 2011 and there is little case law and academic writing fleshing out its provisions. The Code owes much to the Japanese Civil Code of 1898 and, like the latter, does not have a requirement of consideration and seldom imposes formal requirements but there are a few statutory exceptions from the principle of freedom from form. For a binding contract, the agreement of the parties is required and the offer must be made with the intention to create a legally binding obligation and becomes effective once it reaches the offeree. The new Code explicitly provides that the parties to the contract may agree to confer a right arising under the contract upon a third party. This right accrues directly from their agreement; it is not required that the third party declare its intention to accept the right.

Contracts for the Benefit of Third Parties in Japan

2018 ◽  
Author(s):  
Masami Okino
Keyword(s):  
Case Analysis ◽  
Case Law ◽  
Contract Law ◽  
Civil Code ◽  
Third Parties ◽  
Third Party ◽  
German Model ◽  
Recent Debate ◽  
The Law

This chapter discusses the law on third party beneficiaries in Japan; mostly characterized by adherence to the German model that still bears an imprint on Japanese contract law. Thus, there is neither a doctrine of consideration nor any other justification for a general doctrine of privity, and contracts for the benefit of third parties are generally enforceable as a matter of course. Whether an enforceable right on the part of a third party is created is simply a matter of interpretation of the contract which is always made on a case-by-case analysis but there are a number of typical scenarios where the courts normally find the existence (or non-existence) of a contract for the benefit of a third party. In the recent debate on reform of Japanese contract law, wide-ranging suggestions were made for revision of the provisions on contracts for the benefit of third parties in the Japanese Civil Code. However, it turned out that reform in this area was confined to a very limited codification of established case law.

Property Rights, Fiduciary Duties, and the Control of Assets

2018 ◽  
Author(s):  
Aruna Nair
Keyword(s):  
Property Rights ◽  
Case Law ◽  
Property Right ◽  
Formal Structure ◽  
Fiduciary Duties ◽  
Legal Power ◽  
The Law ◽  
Fiduciary Relationships ◽  
Relationship Of

This chapter examines the law governing the availability of claims to traceable proceeds. It argues that the language used in the case law—which uses the terminology of property rights and of fiduciary relationships—cannot fully explain the law, since such claims are often available in the absence of fiduciary duties and are not available to holders of many types of property right. It argues that such claims instead presuppose a relationship of ‘control of assets’: where the defendant has a legal power to deal with some asset, correlating to a vulnerability to a loss of rights in that asset on the part of the claimant, and coupled with a duty not to exercise the power. It argues that relationships that have this formal structure also share normative characteristics that justify the subordination of defendant autonomy that has been shown to be at the heart of the tracing concept.

scholarly journals A tale of two citizens: The Brey-Dano proportionality gap in UK courts and tribunals

2021 ◽  
pp. 138826272110049
Author(s):  
Victoria E. Hooton
Keyword(s):  
Decision Making ◽  
National Level ◽  
Case Law ◽  
Eu Law ◽  
The Law

The role of proportionality and individual assessments in EU residency and welfare access cases has changed significantly over the course of the last decade. This article demonstrates how a search for certainty and efficiency in this area of EU law has created greater uncertainty, more legal hurdles for citizens, and less consistency in decision-making at the national level. UK case law illustrates the difficulty faced by national authorities when interpreting and applying the rules relating to welfare access and proportionality. Ultimately, the law lacks the consistency and transparency that recent CJEU case law seeks to obtain, raising the question of whether the shift from the Court's previous, more flexible, case-by-case approach was desirable after all.

scholarly journals The Principle of Directive-Compliant Development of the Law and the Contra Legem Limit

2020 ◽  
Vol 16 (4) ◽  
pp. 465-488
Author(s):  
Thomas M.J. Möllers
Keyword(s):  
Case Law ◽  
Third Party ◽  
Broad Term ◽  
Legal Texts ◽  
Classical Methodology ◽  
The Law ◽  
Legal Methodology ◽  
The Relationship ◽  
Further Development ◽  
Domestic Law

AbstractThe Europeanisation of domestic law calls for a classical methodology to ‘update’ the established traditions of the law. The relationship between European directives and national law is difficult, since directives do apply, but European legal texts need to be implemented into national law. Whilst directives are not binding on private individuals, there is no direct third-party effect, but only an ‘indirect effect’. This effect is influenced by the stipulations of the ECJ, but is ultimately determined in accordance with methodical principles of national law. The ECJ uses a broad term of interpretation of the law. In contrast, in German and Austrian legal methodology the wording of a provision defines the dividing line between interpretation and further development of the law. The article reveals how legal scholars and the case-law have gradually shown in recent decades a greater willingness to shift from a narrow, traditional boundary of permissible development of the law to a modern line of case-law regarding the boundary of directive-compliant, permissible development of the law.

Sign in / Sign up

Export Citation Format

Share Document