Search

In Makate v Vodacom (Pty) Ltd 2016 (4) 121 SA (CC) the Constitutional Court had to consider the difficult question whether an agreement to negotiate compensation at a later date for an employee who had invented something for his employer was enforceable, where in the absence of later agreement the issue would be referred to the Chief Executive Officer of the employer for final determination. Although the court answered this in the affirmative, the more pressing issue for present purposes was whether the representative of the employer who had negotiated the agreement with the employee had the necessary actual or apparent authority to conclude the agreement. In dealing with the matter of authority, the apex court took an unconventional approach to ‘ostensible’ or ‘apparent’ authority: Whereas the basis of such authority has traditionally been seen as the doctrine of estoppel, the court held that the expressions ‘apparent authority’ and ‘ostensible authority’ have no bearing on estoppel as such, but rather refer to a form of actual authority arising from a representation of authority by the principal in respect of the agent. This article examines the court’s approach in that regard and concludes that, although the decision attracts criticism from a conceptual viewpoint, there is merit in such an approach if it is adapted and defined purely in terms of the reliance theory.

“What remedy is available to creditors seeking to exercise diligence over corporeal moveable property in the possession of their debtors, but the ownership of which lies with another? The presumption of ownership from possession offers some relief to creditors faced with an action for vindication by the true owner of the goods. But the presumption can be overcome. However, reputed ownership seeks to permit creditors to proceed with diligence when the moveables have been fraudulently, carelessly or unnecessarily left in the possession of the relevant debtor. This article will explain that the true owner is personally barred from recovering the goods, as a result of such “fraudulent” or careless conduct. Lengthy academic discussion of the doctrine in Scotland is scarce. To analyse its legal basis, reference is made to South Africa and England, which recognise the reputed ownership context as part of the general law of estoppel. This article will also explain that despite its mostly historical significance, reputed ownership still survives in the current law, within the statutory framework of the Debt Arrangement and Attachment (Scotland) Act 2002.”

This article analyzes the concepts of such legal principle as estoppel. This principle is relatively new for national legislation, and was borrowed from the countries with Anglo-Saxon legal system. The subject of this research is the correlation of rule of estoppel in the Russian and foreign law, as well as its comparison with the relinquishment of right. Its appearance and normative consolidation in the national legislation is the implementation of an important stage in the concept of development of civil legislation. The article also distinguishes between the two similar concepts of civil law: relinquishment of right and waiver. The authors raise a relevant question on the absence of uniform law enforcement practice thereof. Only few scholars within the Russian science are dealing with this topic. Based on the analysis of the aforementioned legal principles and case law, the authors come to a logical conclusion on the need for a clear delineation between the concepts of estoppel and relinquishment of right for achieving uniformity of judicial practice of the Russian Federation. The purpose the examines in the article legal institutions consists in minimization or complete elimination of negative consequences caused by inconsistent behavior of one party, as well as full protection of rights and interests of other party.

This article is devoted to the analysis of current legislation and its application in the field of consumer protection in consumer lending and its insurance coverage. The author considers the questions publicly-legal protection, including, analyzes the powers of the Central Bank of the Russian Federation, Rospotrebnadzor of the Russian Federation, the Financial Ombudsman of the Russian Federation and concludes that despite the fairly extensive scope of their rights in the field of consumer protection, they, in practice, be insufficient for proper legal protection for stakeholders. In addition, the author touches on topical issues of judicial practice in the field of private legal protection of consumer rights, including the compliance of the instructions developed by the Supreme court of the Russian Federation on the application of current legislation to the interests of consumer protection. The issue of applying the principle of estoppel in disputes involving consumers in this category of disputes is highlighted separately.

Traditional Covenant Law theory has characteristics emphasizing the importance of legal certainty and predictability. The main function of one of the contracts is to provide certainty about the binding of an agreement between the parties so that the principles of good faith in the civil law system and promissory estoppel in the common law legal system. which in this article the author will discuss PT ADEN's contractual agreement with PT Well Harvest Winning Refinery Alumina in the catering contract for employees of PT Well Harvest Winning Alumina Refinery which discusses whether the agreement made between the customer and the catering party has qualified the validity of the agreement and the issues contained in the valid agreement.Keywords: Treaty Law Theory, Civil Law, Agreement.

In view of the continuing interest of the legal community in the problem of the prohibition of contradictory behavior or in the Anglo-American tradition of law – estoppel, the subject of this study is an attempt to determine the legal nature of the so-called norms of the Civil Code of the Russian Federation on estoppel. The topic chosen for the study becomes particularly relevant, since there is no consensus among representatives of legal science regarding the nature of estoppel; it is considered as an intersectoral principle, doctrine, institution of law, sanctions for violation of the principle of good faith, one of the manifestations of the principle of good faith, legal mechanism, etc. The author has attempted to consider estoppel from different angles: through the prism of English contract law (promissory estoppel), from the standpoint of the continental maxim "venire contra factum proprium", in relation to the principle of good faith. The research uses general scientific methods of analysis and synthesis, a systematic approach; special legal methods (comparative legal, formal legal). As a result of the conducted research, we came to the following conclusions. The so-called norms of the Civil Code of the Russian Federation on estoppel are a special case of the doctrine of consistent behavior, known to the continental legal order by the maxim "venire contra factum proprium", which acts as a manifestation of the principle of good faith. Proceeding from this, it is incorrect to designate the above norms as estoppel, because, firstly, even in the Anglo–American tradition, the diversity of types of estoppel does not allow it to be considered as a universal principle, and, secondly, what is understood by estoppel in this system of law does not correspond to its Russian interpretation. In addition, being part of the Romano-Germanic legal family, the domestic legal order does not need to borrow alien legal phenomena, especially when similar legal constructions can not only be found in the depths of centuries, but also trace their evolution in the bosom of the continental legal system, to which Russia belongs.

Отсылки к добросовестности содержатся в большом количестве статей Гражданского кодекса Российской Федерации и специальных законах. Однако из анализа положений гражданского законодательства и правоприменительной практики следует вывод о том, что в каждом отдельном случае термин «добросовестность» следует понимать по-разному. Для того, чтобы разобраться в специфике и множественности проявлений добросовестности, следует изучить ее в историческом развитии и сравнительно-правовом контексте. Изучение добросовестности в динамике позволяет выработать адекватные способы правоприменения добросовестности как системы.

This article focuses on an Australian piece of legislation and interesting case law, as well as how the Federal Court of Australia has applied Australia’s Corporations Act 2001, to characterise a person as a de facto director – that is, as a professed director whose appointment as such was defective. In this regard, the decisions of that Court will, as envisaged in the Constitution of the Republic of South Africa 1996, constitute persuasive authority. The Australian decision to be discussed in this article is significant in that the South African Companies Act 71 of 2008 does not contain substantively similar provisions to those of Australia’s Corporations Act 2001. For example, section 66(7) of the Companies Act 2008, contains the phrase “entitled to serve” as a director. This article explains the legal implications relevant to that expression, including whether it imposes a statutory condition precedent. This article also considers the validity of decisions taken by a person who is not “entitled to serve” as a director.

This article argues that, as tutors, we are bound not only by the rules of contract law (i.e. to avoid breaching the terms of that which was agreed to) but also by our duty of care, and the principles of human rights law that protect the right to education. We must strive to avoid negligent acts and any potentially harmful practices or policies. Looking to recent litigation, we are bound also to provide useful, meaningful guidance on how learners might best achieve - and subsequently evidence - high levels of intellectual attainment and wider ‘learning gains.’ The concepts of fairness and equitable treatment are key, especially where Universities have agreed to widen access, and improve opportunities. With the protection of vulnerable learners increasingly leaning towards the provisions - and promises - of human rights law, a sort of estoppel-led ‘trusteeship’ (over shared knowledge and learning processes) can perhaps also be inferred.

The paper is devoted to the study of the legal construction of the prohibition of conflicting behavior. The author conducted a comparative study of the legal structures of venire contra factum proprium and estoppel. It is concluded that the indicated legal phenomena differ by their legal nature, although they have a common goal — to protect the rights and interests of the weak party. The paper indicates that the prohibition of conflicting behavior should consider a rule aimed at protecting a bona fide party by refusing to satisfy claims (material aspect) and (or) refusing to satisfy a procedural motion (procedural aspect) if the actions of the party that filed the claim, are aimed at refuting their own pre-trial behavior (material aspect) and (or) behavior in the framework of the trial (procedural aspect). The author highlights elements of the venire contra factum proprium rule, which form the subject of proof when referring to this doctrine, in particular: 1) the contradiction of secondary behavior to the original behavior; 2) the presence of dishonesty in the actions or intentions of a person acting in contradiction; 3) causing or intention to cause damage to the opposite side.

The subject of this research is legal relations emerging as a result of unlawful, inconsistent and contradictory behavior of one of the parties. As one of the most common version of such behavior cited the temporary failure of one of the sides in the situation to exercise the right, while the other side reasonably relies on permanent failure to exercise the right. The article examines the examples of unlawful irregular and contradictory behavior that can be observed in the general and special parts of the Civil Code of the Russian Federation, as well as Russian case law and legal doctrine. Analysis is conducted on the position of foreign research on estoppel as a principle of law. A conclusion is made that in the Russian law estoppel represents prohibition of unlawful, inconsistent and contradictory behavior, being a private case of prohibition for unscrupulous behavior. Such approach allows applying the rule of “estoppel” to a situation that is not directly designated in legislation, which can be observed in case law. It is substantiated that the rule of “estoppel” is also contained in the Part 3 of the Article 1044 of the Civil Code of the Russian Federation. Correspondingly, this rule is also applied in a case where one of the parties acted without proper right, while the other party reasonably expected its presence.

The article applies a comparative approach to the issue of directors’ liability for breach of good faith and unreasonable actions in Russian, UK, and US legislation and case law. During the analysis of Russian case law, the inconsistency in the judicial approach to the application of the law has been established and revealed in the article. The author brings up the issue of whether and to what extent it is possible to apply the objective and subjective tests developed by English Common law judges to solve the matters of a director’s liability for breach of good faith in Russia. However, the author draws the line between the above described Common law perspective and the maxims of the law of equity and offers to restrict the latter. The other common law doctrines such as estoppel, reasonable man standard, and respondent superior are also seen in comparison with Russian law. The broader application of the principle of good faith to corporate relations has been significantly limited in the UK and the USA, the courts tend to apply fiduciary duties under a minimal scope. The directors’ liability for breach of the duty of care and duty of loyalty has been in many cases up to shareholders to decide unless the gross negligence was proven to have caused harm to the company. Generally, however, the directors are not held liable for pure economic loss and unprofitable deals. Russian courts to the contrary in many cases hold directors liable for the loss even though directors’ fault, intent or gross negligence were not proven — the mere fact that the director could not demonstrate that the best possible course of actions was taken is often regarded as a breach of good faith and unreasonable actions.

The article is devoted to the institution of estoppel, which is new for Russian law. Based on the analysis of the opinions of scientists regarding the legal nature of estoppel and its definitions, the author comes to the conclusion that the estoppelеin arbitration (arbitration) is a principle of law that guarantees the fair procedural behavior of the parties to the arbitration. The article analyzes the norms of the federal law on arbitration, which contain the rules of estoppel, which made it possible to define estoppel in arbitration proceedings and classify it into types.

Inadmissibility of controversial conduct (venire contra factum proprium) is a continental functional analog of common law estoppel. It is a special “pitfall” under the rubric for the application of the bona fide requirement when inadmissibility of conduct is derived from its controversial character in regard to previous conduct. The article exposes a lack of necessity in the prohibition under the regimes of early private law codifications of the Modern Age (France, Austria) which is why one may observe its prevalence primarily in Germany after the enactment of German Bürgerliches Gesetzbuch (Civil Code). The author thinks of its prevalence as a result of a drastic change in understanding the legal relationship induced by the restoration of corporate thinking in a renewed form as opposed to individualistic thinking associated with Roman law and the first draft of Bürgerliches Gesetzbuch. For the courts, the inadmissibility of controversial conduct became a convenient means to justify the restatement of rules formally binding for parties in cases where, as a result of the application of formal rules, the connection between the conduct of a party to a legal relationship and its negative outcome, which under said formal rules, totally fall into the other party’s burden. Due to this, the concept of a legal relationship, previously built as mere correlation of a subjective right to liability, is complicated by an element of burden — some of which would be imposed on the entitled party. This revealed the formal side of inadmissibility of controversial conduct, which made it possible to correct what shall be treated in terms of new thinking as a gap of regulation formed by individualistic thinking. In material terms, the inadmissibility of controversial conduct is limited in literature to cases when the previous conduct of a certain person has caused legitimate expectations from the counterparty and the current conduct contradicts these expectations. The author refutes this reduction since from the outset, the founding idea of the rule was to preserve the interrelation between conduct and adverse consequences lost in the formal application of the law. The contradiction of conduct, hence, shall be seen in using a formal legal position to prevent the adverse outcome of one’s own conduct. However, development of this court practice revealed another function of the rule, much more important in the author’s opinion, namely, the acceleration of civil communication governed by private law.

The article contains the results of the analysis of the development of res judicata doctrine into a multicomponent doctrine with different meaning in different legal systems of the world, as well as points out the difficulties of distinguishing this doctrine among other doctrines that have claim preclusive or issue preclusive effects. The article focuses on the broad and narrow meaning of res judicata, procedural links that this principle may have with the application of the estoppel rule in court proceedings. The article pays special attention to three doctrines related to res judicata: full faith and credit; election of remedies and law of the case doctrines. The doctrine of full faith and credit in the US procedural law is viewed as a branch of res judicata. In contrast to res judicata, the doctrine of election of remedies is largely based not on respect for the finality of the judgment, but on the principle of estoppel and thus might be applied in order to bar a subsequent cause of action containing claims that are inconsistent with remedies prayed for in the already considered cause of action, rather than to bar the relitigation of already litigated case. The law of the case doctrine, as it has been developed in the US procedural law and adopted in some other countries, in particular India, is related to res judicata in that both are aimed at ensuring legal certainty and the stability of court judgments. However, unlike res judicata, the law of the case doctrine to some degree allows the discretion of the court, or rather its application is discretion based, it is purely procedural and concerns the stability and consistency of the court's rulings in the same case, rather than the conclusive effect of the final judgment for subsequent proceedings. The article argues that these doctrines, especially the election of remedies doctrine and the law of the case doctrine or their elements can be used to address the problems of fairness and consistency of judgments in procedural law., Стаття присвячена дослідженню проблеми еволюції доктрини res judicata у багатокомпонентне вчення, яке має різне наповнення у різних правових системах світу, а також проблем відмежування цієї доктрини від інших доктрин, які унеможливлюють або обмежують можливість перегляду тих самих чи інших вимог або обставин, які суд розглянув під час вирішення іншої справи. Стаття зосереджує увагу на широкому та вузькому значенні res judicata, співвідносить цей принцип із застосуванням правила про естопель у судових провадженнях. Особлива увага у статті приділена трьом спорідненим доктринам: повної віри і поваги; обрання способів захисту та доктрині права справи. Зроблено висновок, що доктрина повної віри і поваги у процесуальному праві США є відгалуженням res judicata. На відміну від res judicata доктрина обрання способів захисту ґрунтується значною мірою не на повазі до остаточності судового рішення, а на принципі естопеля і, таким чином, усуває не перегляд формально ідентичного спору з тими ж підставам і тим же предметом, а інших вимог, конкуруючих з вже розглянутими вимогами, які засновуються на тих же підставах. Доктрина права справи, як вона напрацьована в процесуальному праві США і сприйнята в деяких інших країнах, зокрема в Індії, споріднена з res judicata у тому, що обидві спрямовані на забезпечення правової визначеності, сталості судового рішення. Однак на відміну від res judicata, доктрина права справи передбачає дискрецію суду, є суто процесуальною і стосується сталості висновків суду в ході розгляду тієї ж справи, а не остаточності кінцевого рішення суду з наслідками для наступних проваджень. У статті зроблено висновок, що ці доктрини, особливо доктрини обрання способів захисту та права справи, або їх окремі елементи можуть бути використані для вишення проблем забезпечення справедливості та сталості судових рішень у вітчизняних процесуальних галузях права.

Tytułowa instytucja stosowana jest w celu zapewnienia ochrony prawnej osobom, które spędziły znaczną część swojego życia angażując się w opiekę nad innymi, podjętą w zaufaniu o obietnice uzyskania w zamian korzyści ze spadku. Ich nadzieje mogły okazać się płonne wskutek niespełnienia przez owe obietnice formalnych przesłanek ważności testamentu wyznaczanych przez Wills Act 1837. W takich wypadkach (Re Basham (1986)) sądy sięgały do proprietary estoppel aby zapewniając ochronę opiekunom wypełnić cele equity law: znalezienie słusznego rozstrzygnięcia. Z czasem omawiana instytucja zaczęła być nadużywana. Zdarza się (Suggitt v. Suggitt (2012)) że jest stosowana przez przyszłych spadkobierców, kwestionujących plany spadkowe żyjących jeszcze krewnych. Proprietary estoppel staje się źródłem niepewności – przysłowiowym koniem trojańskim - godzącym w pewność prawa i przewidywalność rozstrzygnięć. Przedstawione zagadnienie zyskuje na wadze w okresie pandemii Covid-19: trudniej dochować formalnych przesłanek testamentu, zaś testamenty cyfrowe nie są dostępne dla wszystkich. W wielu sprawach sądy znowu sięgną do proprietary estoppel. In recent decades the doctrine of proprietary estoppel has been applied to avoid the formalism of the Wills Act 1837. That act sets out the requirements of formal validity of a will. The proprietary estoppel could be applied if a carer has spent a significant part of his or her life taking care for another in reliance of his promise to transfer all or part of the estate to her. Afterwards it frequently turned out that irrespective of the deceased’s promises and the carer’s detrimental reliance the estate passed to distant relatives due to non-compliance with the Wills Act 1837. In such cases the courts often intervened to give a helping hand to such carers thereby fulfilling the goal of equity – as in a case of Re Basham (1986). Over time, the doctrine of proprietary estoppel began to be abused. Today it is applied in cases of prospective heirs contesting the wishes of their relatives who are still alive. Such was the case of Suggitt v. Suggitt (2012). It seems that proprietary estoppel might be doing more harm now as a source of uncertainty, a Trojan horse that undermines legal certainty and the predictability of decisions. The issue in question is becoming more significant as in the current COVID-19 circumstances the requirements of a formal will are much more difficult to meet, and digital wills are not a remedy for all. In many cases, courts will again seek recourse in proprietary estoppel.