In Ḥanafī legal thought, ta‘ātī (mutual delivery of goods and price) has been seen as a sales contract without the need for an additional legal transaction. This situation raises the question of whether the delivery transaction took place after a void (bāṭil) or invalid (fāsid) sales contract can be considered as a new contract that is revealed through ta‘ātī. In this study, which we aim to answer the aforementioned question, first of all, the issue (...) of what kind of relationship is established between the definition of the sales contract and the legitimacy of the ta‘ātī is discussed. Secondly, the relationship between the principles of “When something is void, what is implicit in that thing is also void.”, “What builds on what is invalid is also invalid” and the delivery transaction that took place after a void or invalid contract is discussed. Thirdly, it has been discussed whether the acceptance of the delivery transaction after a void or invalid contract as a new contract is dependent on the fact that the first contract has been legally terminated. In Ḥanafī thought two approaches have emerged regarding the relationship between ta‘ātī and void or invalid contract. According to Ḥanafī jurists based on the above-mentioned two principles, the delivery transaction that took place after a void or invalid contract is not a new contract. The fact that the delivery transaction becomes a new contract depends on the fact that the first contract was terminated in a legal way. In the approach of Ḥalvānī and Kāsānī, the fact that the delivery transaction that took place after a void or invalid contract gains the quality of a new contract is not dependent on the fact that the first contract is legally terminated. This approach is very important in terms of making it possible for the idea that “Delivery that took place after a void or invalid contract has the quality of a new contract.” to attribute the classical Ḥanafī thought. (shrink)

In society, people need some properties themselves (the same) or for their own benefits. According to Islamic law, while people acquire the same properties they need through a bay' (sale) contract, they gain access to the benefits of the properties as a means of contracts such as idjâra (rent) or âriyya (lending). Muslims must conclude all kinds of contracts in accordance with the principles and conditions determined within the framework of the Quran and Sunnah. Otherwise, the contracts will be (...) invalid or void. In terms of Islamic law, in a sales contract, the location which subjects to the contract must be existing, and possible to deliver. Since the sale of something that does not exist is prohibited, such a sales contract is void. However, some types of contracts, including the idjâra contract, are exempt from this rule based on some special evidence. Because the idjâra contract, which has been implemented since the time of legislation, is a mandatory need in human life, and also occupies an important place. For this reason, according to some jurists, the idjâra contract was not considered within the scope of the sale of the non-existent through istihsân, contrary to the general rule, and was accepted as legitimate on the grounds of istihsân. The fact that the İdjâra contract is established in a way that is contrary to analogy does not make it possible to compare other contracts with this contract. Since the contract of idjâra is one of the most frequently referred contracts after the contract of sale, it has been discussed in all its aspects by Islamic jurists and examined under separate headings. In this context, the impact of natural disasters on the idjâra contract has not been disregarded. In principle, a rent contract duly established with its provisions and conditions, as well as a sales contract, is binding on both parties. However, in unforeseen circumstances, especially during unexpected disasters, legal problems such as continuation of the rent contract, benefiting from the benefit of the rented property and refund of the paid fee arise. In our study, first of all, after briefly presenting what natural disasters mean in Islamic law literature, the nature of the idjâra contract will be focused on, and then only the consequences of natural disasters on the rent contract will be detailed. As a result, in such disasters cause partial or total loss to the rented property, the possibility of continuation of the contract and the responsibilities of the parties will be revealed. (shrink)

Futures contracts in agricultural commodities are an agreement to buy or sell a predetermined amount of agricultural commodities (such as wheat, corn, cotton, soybeans, live pork, live cattle, cocoa, etc.) at a specific price depending on the price on a specific date in the future. Futures contracts in agricultural commodities are carried out under “commodity futures contracts” on the futures exchange. These contracts are executed in two ways in terms of the delivery of the contract subject; physical delivery and (...) cash settlement. In the physical delivery, the underlying asset is physically received at the end of maturity. In our country, physical delivery method is used in futures contracts made on commodities. In the second contract method that results in cash settlement, there is no physical delivery of the underlying asset at the end of maturity. The transaction takes place over the settlement price at the end of maturity. Futures contracts in agricultural commodities can be analyzed in two categories in terms of Islamic law. First, within the scope of sales where both the goods and the price are on credit; the second is a combined contract that includes a promise to sell and a contract of sale when due. It is more convenient to analyze in the former because the agricultural commodities in the warehouse are kept ready to be delivered when due and the commodities price is also delivered on time. In this category, it resembles the sale of a credit on credit, which is prohibited in Islamic law. We can see that there are five parties within the exchange organization regarding the futures contracts in agricultural commodities; futures and options exchange, clearing house, brokerage houses, market participants, supervisory institutions. When the transactions of the related parties are examined in terms of legal capacity and power of representation; it is observed that brokerage houses transacting on behalf of sellers and customers operate by proxy. On the other hand, the Exchange, the Clearinghouse (Takasbank) and the custody warehouse within the scope of the exchange system; carries out transactions on behalf of the parties both as a proxy and a guarantor. Therefore, this futures transaction has the nature of containing more than one contract. When analyzed in terms of the establishment of the contract; if there are agricultural commodities that are considered as legitimate property of the Islamic law (mütekavvim), there is no objection regarding the parties and the offer-acceptance. In addition the delivery time of the commodity subject to the contract must be equal to the amount sold and the amount in the warehouse, which is guaranteed to be in the warehouse. In terms of invalid condition, one-sided benefit causing conflict for the parties contains something prohibited by the legal order. It is seen that it does not contain conditions contrary to the content of the contract and established practices. However, except for the condition that the collateral is retained with interest income in direct proportion to the period of stay in the Clearinghouse (Takasbank), in order to obtain the highest return. In terms of enforcement conditions, after the approval of the buyer and seller, transactions are carried out within the exchange system without asking for the right and approval of another person. Therefore, this contract can be considered as a running contract. In terms of the bindingness of this contract; at first glance, it can be seen as a mutual promise and non-obligatory promise based on the fact that the commodity and its price are not cash. But when the subject is examined in depth, it turns out to be a different situation. Because both parties are under mutual obligation by paying the guarantee stipulated by the Exchange, one party is obliged to deliver the commodity on time and the other party to deliver the price. In addition, the contract does not allow the parties to imagine the right. So, this contract can be considered as an obligatory contract. However, based on the current functioning futures contracts in agricultural commodities as a whole, it is considered unappropriate to Islamic law. In this study, first, the nature of futures contracts in agricultural commodities that are not deemed suitable for Islamic law in its current form are determined. Then, an analysis from the point of view of Islamic law was made and some offers were made for a model that was reconfigurated according to Islamic law. (shrink)

Termination in international contracts is considered a harsh sanction that harms international trade for each breach of contract or its provisions. The interest of international trade is fulfilled in maintaining and completing performance of contract, even if with a breach rectifiable by remedy. The termination destroys the contract and results in returning goods after their dispatch in addition to the accompanying new freight and insurance expenses and administrative and health procedures necessary for the entry and exit of (...) goods and to pay then refund the price. Moreover, the goods are exposed again to damage and perishing risks. Furthermore, the international sale contract is inherently associated with other international contracts such as goods transport contract, insurance contract and documentary credit through which the price is paid. If the sale contract is terminated, its effect will apply to all other associated contracts, if not performed, which produces many issues and hardships. (shrink)

This paper presents an argument for the democratic (or 'labor-managed') firm based on ordinary jurisprudence. The standard principle of responsibility in jurisprudence ('Assign legal responsibility in accordance with de facto responsibility') implies that the people working in a firm should legally appropriate the assets and liabilities produced in the firm (the positive and negative fruits of their labor). This appropriation is normally violated due to the employment or self-rental contract. However, we present an inalienable rights argument that descends from (...) the Reformation and Enlightenment which argues that the self-rental contract, like the self-sale or voluntary slavery contract, is inherently invalid. The key intuition of the inalienable rights theory is that one cannot in fact voluntarily transfer de facto responsibility for one's actions to another person. One can only voluntarily co-operate with another person, but then one is de facto jointly responsible for the results. Just as the legal authorities legally reconstruct the criminous employer and employee as a partnership with shared responsibility, so justice demands that every firm be legally reconstructed as a partnership of all who work (working employers and employees) in the enterprise, i.e., as a democratic firm. (shrink)

Deferred sale, in the Islamic Banking and Financeworld widely known as Bai’ bi thaman ajil, is used as an extension toProfit-sale ; both sales complement each other. The Profitsalesells the commodity with profit over the cost price, and BBA plays the roleof receiving that payment on deferred or instalment basis. BBA has becomethe “premier consumer financing facility” for the Islamic financial institutions. This paper deals with deferred sale precisely. It looks into its origin andits transition from void to valid (...) sale. Its application as trade contract and itsmodern application as financing tool is analysed in the light of the maqāṣidSharīʿah. (shrink)

With increasing market competition and rapid development of service economy, more and more enterprises are shifting from providing products or services to providing product-service systems that integrate products and services, in order to improve competitiveness and profitability. Meanwhile, consumers have strategic delayed purchasing behavior when purchasing the PSS and high requirements for service quality. This paper investigates the two-period pricing and service quality decisions of product-service supply chain considering consumers’ strategic behavior under decentralized and centralized scenarios. The equilibrium results are (...) compared in two scenarios. In order to eliminate performance loss under the decentralized scenario, we design two-period dynamic contracts to coordinate the PSSC. Furthermore, numerical simulation is provided to verify the feasibility of the contracts. The following conclusions can be drawn: the higher the service input-efficiency, the more beneficial for alleviating consumers’ strategic purchase behavior under two scenarios, but this mitigation effect is more obvious under the centralized scenario. Compared with the centralized scenario, the service quality is lower, the two-period PSS sales prices are higher, and the two-period profit is lower under the decentralized scenario. The proportion of service valuation will promote the widening of the service quality gap under two scenarios, but in some cases, the service input-efficiency will weaken the promotion effect of the proportion of service valuation. The design of the two-period combined contracts depends on the proportion of service valuation. When the proportion of service valuation is high, the “two-period revenue sharing + service-cost sharing” combined dynamic contract can achieve PSSC perfect coordination. However, when the proportion of service valuation is low, it is necessary to design complexity combined dynamic contract which can achieve PSSC perfect coordination. (shrink)

Contracts play an important role in business management where relationships among different parties are dictated by legal rules. Electronic contracts have emerged mostly due to technological advances and electronic trading between companies and customers. New challenges have then arisen to guarantee reliability among the stakeholders in electronic negotiations. In this scenario, automatic verification of electronic contracts appeared as an imperative support, specially the conflict detection task of multi-party contracts. The problem of checking contracts has been largely addressed in the literature, (...) but there are few, if any, methods and practical tools that can deal with multi-party contracts using a contract language with deontic and dynamic aspects as well as relativizations, over the same formalism. In this work we present an automatic checker for finding conflicts on multi-party contracts modeled by an extended contract language with deontic operators and relativizations. Moreover a well-known case study of sales contract is modeled and automatically verified by our tool. Further, we performed practical experiments in order to evaluate the efficiency of our method and the practical tool. (shrink)

The article examines how the rules on formation of contract and on mistake, contained in the various transnational model rules that have been published over the past two decades, have taken shape. The approach adopted here is based on an analysis of the ‘textual stratification’ of European private law. The relevant instruments (Convention on Contracts for the International Sale of Goods, Principles of European Contract Law, UNIDROIT Principles of International Commercial Contracts, Draft Common Frame of Reference, Principes contractuels (...) communs) are analysed and compared in their historical sequence. To what extent and why have the texts been transformed in the process? The article demonstrates that there is a very considerable common ground reflecting the state of the art of comparative research in these fields over the past hundred years. It also highlights issues on which consensus must still be reached and it suggests patterns towards reaching such consensus. It is argued that the Principles of European Contract Law, rather than the Draft Common Frame of Reference, should provide the point of departure for future discussions. The scene for the article is set by a critical examination of the concepts of contract and legal act, as used in the Draft Common Frame of Reference. (shrink)

As a fiqh (Islamic jurisprudence) term, the concept of “ignorance” ex-presses uncertainties in legal transactions and, in Islamic law, is accepted as a situation that negatively impacts the legitimacy of contracts. If the sale is deferred, clarification of the delivery time of the price to be paid for the goods sold, the number of installments, etc. during the contract is considered essential for the validity of the transactions in order not to damage the principle of mutual consent in purchase (...) and sale transactions and to avoid conflicts between the parties. However, not every uncertainty is considered an obstacle to the validity of the contract, and minor uncertainties that do not lead to disputes are tolerated. The fiqh sources of four Islamic sects contain many examples of these uncertainties. This study firstly examines the effect of ignorance on the validity of purchasing contracts in Islamic law using the issues in classical fiqh sources and then analyses the housing sales contract of TOKI’s (housing development administration of Turkey) “my first house social housing project” in this context from a fiqh perspective. In addition, the study addresses the related housing sales contract in terms of the juristic preference method by considering the aspect of meeting an important need of society and realizing the purpose of this project. Then, while evaluating the issue from a juris-prudential point of view, the study discusses that the absolute and strict interpretation of the rule of “ignorance renders the contract void,” which is adopted by ignoring the public interest, does not produce favorable results. (shrink)

The Colombian Civil Code regulates the theory of risk in the contractual relationships that arise from the sale. The buyer is not the owner and bears the fortuitous loss of the thing, having to execute the payment provision knowing that the debtor will not meet theirs, in a situation that threatens the contractual balance of act. The theory is taken from French law, George Ripert (n. d) and adopted by the Colombian law. It is proposed that the cause of the (...) contract, element of formation, and execution of the act is accepted in order to restrict the threat that puts the legal stability of the act at risk. (shrink)

While previous literature provides evidence of the positive relationship between ethical climate and job satisfaction, the possible mechanisms of this relationship are still underexplored. This study aims to enhance scholars’ and practitioners’ understanding of the ethical climate–job satisfaction relationship by identifying and testing two of the possible mechanisms. More specifically, this study fills an existing research gap by examining social and interpersonal mechanisms, referred to in this study as workplace isolation of colleagues and salesperson’s teamwork, of the ethical climate–job satisfaction (...) relationship. This is vital for the selling profession because job satisfaction is known to drive higher levels of salespeople’s performance. The arguments for such mechanisms are built on the foundations of social/psychological contract theory and ethical climate literature. Empirical testing using a large sample of salespeople shows higher levels of ethical climate to decrease workplace isolation and increase teamwork. Findings support hypothesized model where ethical climate positively relates to job satisfaction as partially mediated by workplace isolation and teamwork. Ethical climate is negatively related to workplace isolation and positively to teamwork. Further, findings indicate negative effect of workplace isolation on teamwork and sales performance. Job satisfaction is found to be key factor in driving performance of salespeople. (shrink)

The paper deals with Forward exchange contracts and Swap exchange contracts, These two types of contracts are among the most prominent types of financial derivative contracts that arose after the collapse of the Bretton Woods system in 1971 or the so-called Nixon shock, where the convertibility of the dollar into gold was stoped, which led to turmoil in the exchange rates of the currencies of many countries and the emergence of the need to stabilize the exchange rate Currencies in transactions (...) where the delivery of the two exchanges is delayed. This research has studied forward exchange contracts and swap exchange contracts in four sections. The first section defines the Forward exchange contract, which is a contract in which the two parties commit to exchange a specified amount of foreign currencies on a forward date, at a price agreed upon in advance. The elements and elements that must be mentioned in this contract, such as the seller and buyer, the size of the contract, the date of delivery and the forward exchange rate, were mentioned in this section, with an illustrative example of the mechanism of conducting this contract. In addition to addressing the differences between forward exchange contracts and future exchange contracts, the characteristics of forward exchange contracts and the purposes of those dealing with them from hedging and speculation are mentioned in this section. The second section has been devoted to the definition of swap exchange contracts, it is for the two parties to the contract to agree that one of them buys from the other a specific amount of a currency in exchange for a specific amount of another currency and at the current exchange rate, provided that the two exchanges are delivered immediately, and in the same contract, the two parties agree to make a forward reverse exchange contract, at a price determined within Contract, and to clarify the picture of swap exchange contracts, an example has been given to illustrate the mechanism for conducting this type of contract. In the third section, the views of contemporaries scholars regarding the İslamic law of the forward exchange contract were discussed, where the opinion of the objectors was mentioned at all and the evidence they inferred from it. And then the opinion of those who advocate the permissibility of forward exchange contracts that are in the form of a dating that is not binding on both parties together, provided that there is nothing in the dating that indicates that it is a contract of sale and provided that a new contract is delivered independent of the dating. Then I discussed the opinion and evidence of the impediments in four points, and I concluded that the most correct opinion at the first is the impermissibility of the forward exchange contract in the form such as the traditional banks do it because of the deception it contains. But I recanted and permitted this type of contract in two cases, the first: the case of need with the absence of an alternative, and the second: the case that transaction is not binding dating for both parties and on some terms. Some contemporary scholars suggested conducting buying and selling operations in the same currency as an alternative to forward exchange contracts, and some of them suggested that Islamic banks should have a common unit of account to settle accounts between the parties to commercial transactions. But in my opinion two solutions are often not feasible. As for the fourth section, I dealt with the opinions of contemporary scholars in the swap exchange contract. it seems likely to me that swap currency exchange contracts are nothing but a usurious loan that is prohibited by Sharia. Because when examining the mechanism of conducting this type of contract, it turns out that one of the parties lent the other an amount in one currency in exchange for the other lending him an amount in another currency under the name of the spot exchange contract. Since one of the two parties requires the other to increase what he lent - if the exchange rate of the Forward exchange contract is different from the Spot exchange rate, which is predominant - under the name of the Forward exchange contract, then this process is nothing but a usurious loan. I supported the proposal to exchange loans in different currencies as a İslamic alternative to transaction contracts, provided that there is no preference for one party over another, and there is no usurious increase. And in order to solve the problem of the high rate of currency inflation of one of the two loans more than the other, the researcher suggested adding the inflation rate to the two loans when they are performed. (shrink)

According to some commentators of the Iranian Civil Code, the definition of sale stated in Article 183 is influenced by Article 1101 of French Civil Code. They have concluded that the essence of sale is confined to mutual consent, i.e. the sale would not be valid without the consent of either party. They have taken even a step further and considered the contents of Article 338 of the civil code, which describes contract of sale, contradictory to Article 183 and (...) argued that the sale of a specified concrete object is not contained in Article 183 while the sale of unascertained goods is obliged to that article. They believe that the definition of Article 183 of civil code excludes not only all commitments, but also swap contracts because there are two mutual commitments and two agreeing legal contracts in a swap contract while there is no mentioning of them in Article 183. However, the objections are not rightfully lodged because first, the contracts and obligations are not incompatible with the definition of Article 338 as the seller and the buyer within a contract of sale are obliged to give authority to the other party over the object of sale or the price. It means that there are two commitments and the obligation of the seller to give authority over the object of sale appears in two ways: dominion over concrete object while making a transaction and dominion over non-specified object with the obligation that it does not attend to fulfil possession by the time of the sale. Secondly, Article 183 contains the phrase “their acceptance” which includes swap contract too because this phrase indicates that the acceptance is mutual. (shrink)

Several commentators have tried to ground legal prohibitions of kidney sales in some form of Kant’s moral arguments against such sales. This paper reconsiders this approach to justifying laws and policies in light of Kant’s approach to law in his political philosophy. The author argues that Kant’s political philosophy requires that kidney sales be legally permitted, although contracts for such sales must remain unenforceable. The author further argues that Kant’s approach to laws, such as those governing (...) kidney distribution, was formed in part by considering and rejecting an assumption frequently employed in the bioethics literature, namely, that legal duties can be grounded directly in moral duties. The author explains some of Kant’s reasons for rejecting this assumption and concludes that arguments pertaining to the legality of kidney sales developed on the basis of Kant’s moral philosophy should no longer be considered tenable. (shrink)

On 10 February 1947, A.C. Buehler, the president of the Victor Adding Machine Company presented Norden Bombsight #4120 to the Smithsonian Institute. This sight was in service on board the Enola Gay when it dropped the first atomic bomb on Hiroshima. Through this public presentation, Buehler forever linked his company to the Norden Bombsight, the Enola Gay, and to history. Buehler’s ultimate goal, however, was the sale of adding machines, and while significant, the presentation to the Smithsonian was essentially the (...) final step in a long running advertising campaign designed to sell adding machines. During the War, Victor was the Army’s main contractor for the production of Norden Bombsights. This work is an investigation into the dysfunctional relationship that existed between Victor Adding Machine Company, the Army, the Navy Bureau of Ordinance (BuOrd). Wartime shortages demanded that pre-war arrangements between the Army and BuOrd be reconsidered and it was agreed that the Army be allowed to build its own units. Within a year of production Victor sights were scrutinized for their inaccuracies, and ultimately Victor’s contract was cancelled ending the Army’s short sojourn into bombsight production. (shrink)

Resumen. En México, la mercadotecnia promocional se ha erigido como la segunda más grande inversión demercadotecnia, principalmente debido a que las compañías tienden con más frecuencia a subcontratar laresponsabilidad de los aspectos operativos de la mercadotecnia. Las empresas contratantes exigen cada vezmás la garantía de seguridad y certidumbre en la prestación de los servicios, por lo que la calidad de éste seha convertido en un factor determinante en la elección de una agencia de promociones. El presentedocumento técnico busca compartir un (...) caso de estudio relacionado a una empresa de promoción de ventasque enfrenta una alta tasa de deserción de clientes con su consecuente contracción en las ventas, pero quecontradictoriamente está inmersa en un mercado que tiene un crecimiento sostenido del 15 por ciento en losúltimos años. El problema fue abordado desde la perspectiva de la calidad en el servicio y la satisfacción delcliente a través de la aplicación de encuestas Servqual a algunos clientes de la compañía. Dichas encuestaspermitieron: identificar las dimensiones de calidad relevantes en el servicio, detectar las áreas de oportunidadentre el servicio esperado y el servicio real, y la elaboración de un plan de acción que posteriormente fuesistematizado e implementado. Los resultados muestran que la implementación del sistema de calidad redujola deserción de los clientes; además, se descubrió que las dimensiones de calidad del Servqual afectan enproporciones diferentes a la satisfacción del cliente.Palabras Claves. Calidad en el servicio, deserción de clientes, mercadotecnia promocional, promoción deventas, QFD, satisfacción del cliente, Servqual, sistema de calidad.. In Mexico, the promotional marketing has emerged as the second largest marketing investment,mainly because companies tend to outsource most often the operational aspects of marketing. Thosecompanies are increasingly demanding security and certainty in the delivery of services. As a consequence,service quality has become a determining factor in the election of a sales promotion agency. This technicalpaperwork shares a case study related to a sales promotion company facing high customer defection rate withits consequent contraction in sales, but ironically immersed in a market that has a sustained growth of 15 per cent in recent years. Approach of the problem was from quality service and customer satisfaction perspectivethrough the use of Servqual surveys applied to some customers. These surveys allowed: to identify relevantdimensions of quality service, to identify opportunities between the expected service and the actual service,and the development of an action plan which was later systematized and implemented. Results show that theimplementation of the quality system reduced customer desertion. Also, found that the quality dimensions of SERVQUAL affect customer satisfaction in different ways.Keywords. Customer defection, customer satisfaction, quality service, quality system, QFD, sales promotion,Servqual. (shrink)

The widespread abandonment of frozen embryos by the gamete providers or intentional parents urgently demands a solution. Most centres react by requiring patients to enter a prior agreement governing the future disposition of their embryos in all foreseeable circumstances. These dispositional directives are inappropriate and self defeating in the event of contingencies in which the patients remain competent to execute an updated directive. Internal and external changes may invalidate the prior directive by altering the situation as represented by the couple (...) at the initiation of treatment to such an extent that it no longer corresponds with the actual situation at the time of the execution of the disposition. The prior agreement should only be considered binding if the agreement among the partners on a specific option was a material condition for one of the partners to start treatment. (shrink)

Business models for biomedical research prescribe decentralization due to market selection pressures. I argue that decentralized biomedical research does not match four normative philosophical models of the role of values in science. Non-epistemic values affect the internal stages of for-profit biomedical science. Publication planning, effected by Contract Research Organizations, inhibits mechanisms for transformative criticism. The structure of contracted research precludes attribution of responsibility for foreseeable harm resulting from methodological choices. The effectiveness of business strategies leads to overrepresentation of profit (...) values versus the values of the general public. These disconnects in respect to the proper role of values in science results from structural issues ultimately linked to the distinct goals of business versus applied science, and so it seems likely that disconnects will also be found in other dimensions of attempts to combine business and science. The volume and integration in the publishing community of decentralized biomedical research imply that the entire community of biomedical research science cannot match the normative criteria of community-focused models of values in science. Several proposals for changing research funding structure might successfully relieve market pressures that drive decentralization. (shrink)

Within the context of the insurable interest in cargo insurance contracts, in this publication the writer analyses the theoretical aspects of the insurable interest and the relevant laws. Dealing with the problems of determining the insurable interest in cargo insurance contracts the writer has examined the possible options of insurance of the cargo in transit, and while analysing the law governing transport and the sale of goods he examines a person‘s insurable interest in the cargo insured and legal remedies to (...) protect such an interest by concluding a cargo insurance contract. The writer believes that the legal regulation of the insurable interest in Lithuania, interpreting the insurable interest as a loss sustained by a policyholder, the insured or the beneficiary upon an event insured against, fails to guarantee the protection of proprietary and economic interests of persons engaged in the circulation of commodities. Laws governing cargo insurance contracts in Lithuania do not provide a flexible protection of interests of the participants in trade operations and impedes the development of trade and transit, therefore the legal regulation of cargo insurance, especially of the insurable interest should be improved. (shrink)

Money, the most important element of economic life, has attracted the attention of many branches of science throughout history. As a result, various disciplines have examined the issue of money and made some determinations about it. One of the disciplines that deals with the money issue is jurisprudence. Jurisprudence has examined the position of money vis-à-vis commodities and other currencies and has tried to establish a fair and just relationship between them. Islamic jurists have also dealt with the legal status (...) of money and discussed the conceptual framework of money in legal terms. The monetary value of gold and silver is accepted in Islamic law and a verdict has been reached on this acceptance. However, there is divergence of opinion on the legal status of the counterfeit money that has been used by many societies and states in history. While Abū Ḥanīfa and, according to one opinion, Abū Yūsuf accepted that fals (coin) are not money, Muḥammad maintained that fals are money. As in many areas of law, sales and debt contracts are also judged according to this assumption. However, if we look at the details of Abū Yūsuf's opinion, we see that some of the contracts accept the monetary value of fals. So, if we assume that we lend 1000 Turkish Liras (TL) with today's coins - according to Abū Ḥanīfa - it means that in case the lent money is withdrawn from circulation, the money should be paid back according to the the weight of the coins that made 1000 TL. Regardless of the weight of the 1000 TL, Abū Yūsuf says that the value of 1000 TL should be repaid. In this case, Abū Yūsuf considers the monetary aspect of these coins. Therefore, it can be stated that there are some differences in the details of the view that counterfeits are accepted as absolute goods in the Hanafi school, and the monetary aspect of counterfeits is also present. Imam Muḥammad dealt with the trade of coins in a special section and examined the position of coins vis-à-vis various goods. He stated several times in this section that fals are in the position of dīnārs and dirhams (gold and silver coin). While Imam Muḥammad evaluated rock as money, he defended this view in practical terms. Namely, he accepted that one of the important features of coins, denomination by signs, is also present in coins and that one can pay with rocks (fals) other than the coin shown in the purchase. However, it should be noted that the coins to be paid must be in circulation. Likewise, the company, salam (forward sale), etc. assumes the monetary value of the rock (fals) and has decided accordingly. There is no complete consensus on this issue within the Ḥanafi tradition. Although in the early works the views of Abū Ḥanīfa and Abū Yūsuf dominate, one sees that in the later works the view of Imam Muḥammad is preferred. This view was also preferred in the recent Medjelle. In commercial life, goods are essential and money is used as a means of transportation for goods. Therefore, it should not be disregarded that money as a means of measuring value is based on the acceptance of people, regardless of what metal it is made of. Therefore, the monetary nature of the goods used as money by society should be accepted. In fact, the Medjelli-yi Aḥkām-i ʻAdliyye, which was established on the basis of the Ḥanafi school, accepted that fals are money and introduced laws in this direction in some areas of the Islamic law. Opinions in this direction have been expressed in some studies written in modern times. In this study, firstly, information about the structure of the fals and their use in Islamic history is given. Then, the Ḥanafi School founding scholars’ assessments of fals are discussed theoretically. In the following section, the disagreements of the Ḥanafi imams in some areas of law are practically examined. (shrink)

The rights granted to individuals by the legal system are examined with a fundamental distinction as regards their economic value as "property rights" and "personal rights". Property rights, which differ from personal rights in terms of their economic value, are characterized as ‘absolute’ if they can be asserted against everyone and as ‘relative’ if they can only be claimed against the convict on behalf of the debtor. If absolute property rights are based on a tangible (physical) subject, they are referred (...) to as real rights. Real rights and rights of claim that have relative characteristics and can therefore only be used through the act of a specific person constitute two important components of a property. Although various attempts have been made to bring these two types of rights closer together in the historical process, these rights have continued to be considered different in terms of both nature and legal implications. The aforementioned difference arises from the form of dominance over the subject of the right, whether it is direct or indirect, the impact of these rights on the ownership of the property, whether the right is absolute or relative, whether it is continuous or not, and priority/superiority, which will be discussed in detail in the article. The conceptual framework and terms belonging to the Continental European legal system are also found in Islamic legal doctrine in similar or equivalent forms. In this context, the term "milk" has been used in the fiqh literature to encompass all property rights, and terms such as "milk al-ayn," "milk al-manfaa," "milk al-dayn," and "milk al-habs wal-yad" have been developed depending on the nature of the property subject to the right. Real rights and personal rights constitute two important parts of the asset. In some cases where legal interests between people are confronted, it may be necessary to choose between these two types of rights. In such cases, considering the authorities it contains, a kind of priority has been given to real rights over personal rights. One of the cases where this priority is most clearly seen is when a leased property is transferred to third parties while the current lease agreement is in effect. In Islamic law, the authorities granted to the person by the lease contract differ from the Continental European legal system. At this point, the powers granted by the lease contract in Islamic law differ from those in the Continental European legal system. This article argues that the right of the tenant in this regard is considered as real right in Islamic law, unlike in the Continental European legal system. To justify this, the authorities granted to the tenant in Islamic law have been examined in cases where the leased property is transferred to third parties through means that can be interpreted as unlawful acts such as sale, lease, or usurpation during the lease period. In addition, the unique approach of Islamic law on this issue has been expressed by considering both classical and modern fiqh works, and by making comparisons with Turkish law. (shrink)

Liberalism is based on the juxtaposition of consent to coercion. Autocracy and slavery were based on coercion whereas today’s political democracy and economic “employment system” are based on consent to voluntary contracts. This article retrieves an almost forgotten dark side of contractarian thought that based autocracy and slavery on explicit or implicit voluntary contracts. The democratic and antislavery movements forged arguments not simply in favor of consent but arguments that voluntary contracts to alienate aspects of personhood were invalid—which made (...) the underlying rights inalienable. Once understood, those arguments apply as well to today’s self-rental contract, the employer-employee contract. (shrink)

This thesis aims to determine whether international gestational surrogacy contracts are exploitative, and whether they should be prohibited. I chose a group of women working as surrogates at Kaival Maternity Home and Surgical Hospital, in Anand, Gujarat, India as a study group. After examining their life circumstances, I argue that these women live in unjust circumstances caused by institutional sexism and poverty. I critically assess arguments launched against surrogacy, organ trade, and prostitution and find that none of these are sufficient (...) for demonstrating that contracts involving the sale of the body are necessarily exploitative. I find that surrogacy is exploitative because of a complex set of social conditions. Further, the contracts are beneficial to both the woman acting as surrogate and to the couple hiring her. I conclude that international gestational surrogacy is exploitative yet mutually beneficial, and prohibiting surrogacy would be harmful unless accompanied by drastic social change. (shrink)

In her recent book Private Government, Elizabeth Anderson makes a powerful but pragmatic case against the abuses experienced by employees in conventional corporations. The purpose of this review-essay is to contrast Anderson’s pragmatic critique of many abuses in the employment relation with a principled critique of the employment relationship itself. This principled critique is based on the theory of inalienable rights that descends from the Reformation doctrine of the inalienability of conscience down through the Enlightenment in the abolitionist, democratic, and (...) feminist movements. That theory was the basis for the abolition of the voluntary slavery or self-sale contract, the voluntary non-democratic constitution (pactum subjectionis), and the voluntary coverture marriage contract in today’s democratic countries. When understood in modern terms, that same theory applies as well against the voluntary self-rental or employment contract that is the basis for our current economic system. (shrink)

The intra-school controversies in Hanafī school are remarkable. These controversies pose a risk for legal safety and stability and creates difficulties for muqallīd Hanafī judges and muftīs. In the historical process, different types of literature such as mukhtaṣar and fatwa (legal opinion) books, and applications such as aṣṣaḥ-ı aqvāl and maʻrūdhāt, emerged to solve this problem. One of the last example of these applications is the codification movement. The subject of this study is the relationship between the Majalla al-Aḥkām al-ʿAdliyyah, (...) which is the first product of codification based on fiqh (Islamic jurisprudence), and the intra-school preference. In order to describe this relationship, it is briefly emphasized that one of the aims of codification of Majalla is to satisfy the need for intra-school preference. The function and content of Majallaʼs necessary reasons, (asbāb al-mūjiba) was analyzed in terms of intra-school preference. The interventions on the preferences of the Majalla Commission are also emphasized. The Majalla is a text of the intra-school preference. The analysis of its content in relation to intra-school preference is very important. Therefore, in order to reveal what kind of method is used in intra-school preferences and to determine different aspects of intra-school preference in the Majalla, the chapter about ‘sale’ (Kitāb al-Buyūʿ) of the Majalla are examined.Summary: The intra-school controversies in Hanafī School, which is quite important in terms of freedom of ijtihād (independent legal judgment) and legal wealth, possible to threaten legal safety and stability. These controversies also make difficult for judges to reach a judgment or fatwa in controversial affairs. For this reason, determination of the rājiḥ (preferred opinion) in controversial issues in the school, is a need that must be eliminated.The intra-school preference can be described as "to determine the superior, preponderant of different opinion or narrations about a specific issue in the school". In the historical process different types of literature such as mukhtaṣar and fatwa books, and different applications such as asaḥḥ-ı aqvāl and maʻrūzāt, emerged to meet this need. One of the applications aimed to meet this need is the codifications in the last period of the Ottoman State.The relationship between the Majalla al-Ahkam al-Adliyyah, which is the first example of codification based on fiqh (Islamic jurisprudence), and the intra-school preference; and in this context, while preparing the Majalla how a method was followed in the intra-school preference; at what rate be obeyed the rājiḥ (preferred) opinion; articles contrary to the rājiḥ (preferred) opinion in Majalla and their reasons; whether legal arrangements have been made in all controversial issues; at what rate be met the need of determination of rājiḥ (preferred) opinion are the issues that need to be examined.One of the main reasons for the need for a law text such as Majalla al-Ahkam al-Adliyyah is the multitude of the intra-school controversies in Hanafī School. Therefore, the goal of Majalla is to prepare a code that contains rājiḥ opinion.When Majallaʼs necessary reasons, i.e. asbāb al-mūjiba, are examined in terms of the intra-school preference, it is seen that there are two basic functions of necessary reasons. The first of them is, emphasizing that the code is prepared substantially in accordance with the râjih opinion in the school. In fact, that this issue in the asbāb al-mūjiba of the first ten books of Majalla is expressly stated. The other function of the asbāb al-mūjiba is to justify that why rājiḥ opinion are not be confirmed in some article. In the necessary reasons it is stated that twelve articles are prepared in the direction of unrâcih (unpreferable) opinion. Considering that Majalla is formed of 1851 article, it will be better understood that how the rājiḥ opinions are effective in Majalla's content. Essentially, the conditions of the period also make it necessary. The preference of the non-preferred opinion of Züfer (d. 158/775) in 692nd article of Kitāb al-Ḥavala, caused the reaction of some circles mainly Şeyhülislam Hasan Fehmi Efendi (d.1298/1881) and for this reason Ahmet Cevdet Pasa (d.1895) was dismissed from the ministry of Divan al-Ahkâm al-Adliyyah and the chairman of the Majalla Commission.When the asbāb al-mūjibas of contrary articles to rājiḥ opinions are examined, it is seen that maṣlaḥa and customs are determinative in these preferences. It is also seen that the preferences of some jurists are also mentioned as a reason of preference. The most widespread preference’s reason in Hanafī sources is in congruity with the texts. On the contrary, it is noteworthy that, besides the interdiction of extravagant (safih), it is not operated as a preference’s reason in Majalla.Some preferences of the Majalla Commission were intervened by other institutions. The chapters prepared by the commission were examined both by Majlis-i Wukalā and Mashihat, and these chapters were subject to some revisions at this time. Here, two articles prepared on the basis of the non-preferred opinion were intervened by Majlis-i Wukalā. The first of these is 216th article that written in the direction of opinion of Mashāyikh Balkh, which argues that it is permissible to sell separately ḥaqq al-murūr (the right of passage) and ḥaqq al-shirb (water right), the second is the 611th article which regulates the liability to damage of ajīr al-mushtarak (joint salaried employee).When the content of Kitāb al-Buyū, the first and the most voluminous book of Majalla, is examined in terms of the intra-school preference, it is seen that the rājiḥ opinions in the school are generally taken as basis. It is stated that in the asbāb al-mūjiba of the Kitāb al-Buyūʿ the four issues are prepared basing on the non-preferred opinion and these preferences are justified with custom and maṣlaḥa. However, the contrary articles to the rājiḥ opinion in the Kitāb al-Buyūʿ are not limited to these. According to our research, in addition to these, three articles were prepared with the preference of non-preferred opinion. These are the 118th article regarding that the bayʻ bi-l-wafā is permissible in chattels, 165th article on the definition of al-ghabn al-faḥiş (lesion), and the 309th article concerning the provision of the khiyār al-sharṭ (right of cancellation). These three articles show that the regulations contrary to the rājiḥ opinion in Majalla are not just those explained in the asbāb al-mūjiba and this situation is contrary to the method that is followed when preparing the Majalla.In some controversial issues in the Hanafi School, authorized jurists to preference (asḥāb al-tarjīh) disagreed over which opinion is rājiḥ. It wasn’t explained that how a method would be followed in Majalla when the legal arrangements were made in these matters. When these issues are examined, it can be said that the preferences of the majority, the providing of convenience and the preference by some jurists are effective.Preferences in Majalla have not been occurred only among the sharʻī (related to Islamic Law) provisions. In addition, the definitions and the inscription in the definitions are also the subject of preference. In this context, the preferences related to the definition of the sales contract, the suspended contract (al-ʻaqd al-maqqūf) and the al-ghabn al-faḥiş in Kitāb al-Buyūʿ can be mentioned as an example.Some controversial issues in the Hanafi School are not regulated in Majalla. When considering the multiplicity of controversial issues and therefore the difficulty of making legal arrangements to cover all of them, this situation is natural. Moreover, some of these issues may not have been regulated in Majalla because they are not frequent and necessary. However, it is not possible to explain all the controversial issues that have not been regulated for these reasons. Because some of the controversial issues that have not been legislated are basic, relatively important issues and they are included in the mukhtaṣars. This indicates that when preparing the Majalla, instead of making preference on some controversial issues, the method of non-regulation of these matters is adopted. It can be said that this method is applied as a way of creating law text which is clear of controversy. Thus, the determining of the rājiḥ opinion in these matters has been left to the judges. This situation is not suitable to meet the need of determining the rājiḥ opinion, which is the goal of Majalla. But it is the result of the difficulty of making a law that encompasses all legal issues. (shrink)

So-called climate-ready GM crops can be of great help in adapting to a changing climate. Climate change, caused in great part by anthropogenic greenhouse gases released in the atmosphere since the industrial revolution by the developed world, is felt much stronger in the developing world, causing unexpected droughts and floods that will cause large harvest loss, leading to more hunger and malnutrition, rising death tolls and disease vulnerability. The current intellectual property regime (IPR) strikes an unfair balance between profit oriented (...) seed industry giants and low-acreage farmers. The biotechnology industry, mainly headquartered in the developed world, has started to patent new seed varieties, taking biomaterials from developing countries, with the claim, that they will be more tolerant to flood, drought, heat, and cold. Special sales contracts prohibit saving seeds from the harvest for the next season, thus forcing the farmers to buy them every season anew, which goes against traditional farming. Using a widely accepted concept of global justice, that tackles the fact that around 10% of the world's population profits from 90% of the earth's resources, and by taking into account the feasibility of a fair IPR, we will discuss three issues. First, an ethically acceptable IPR should prevent unjust and unfair assignments of property rights (e.g. patents) that completely ignore small-scale farmers inventiveness and efforts to save agrobiodiversity. As a second task, this regime should encourage globally a just distribution of the objects of innovation that are covered by patents. Third, such a regime should encourage innovations at a rate that is effective to cope with climate change. (shrink)

Due to the shortage of organs, it has been proposed that the ban on organ sales is lifted and a market-based procurement system introduced. This paper assesses four prominent proposals for how such a market could be arranged: unregulated current market, regulated current market, payment-for-consent futures market, and the family-reward futures market. These are assessed in terms of how applicable prominent concerns with organ sales are for each model. The concerns evaluated are that organ markets will crowd out (...) altruistic donation, that consent to sell organs is invalid, that sellers will be harmed, and that commodification of organs will affect human relationships in a negative way. The paper concludes that the family-reward futures market fares best in this comparison but also that it provides the weakest incentive to potential buyers. There is an inverse relationship between how applicable prominent critiques are to organ market models and the increase in available organs they can be expected to provide. (shrink)

This paper discusses how to refine a given initial legal ontology using an existing MRD (Machine-Readable Dictionary). There are two hard issues in the refinement process. One is to find out those MRD concepts most related to given legal concepts. The other is to correct bugs in a given legal ontology, using the concepts extracted from an MRD. In order to resolve the issues, we present a method to find out the best MRD correspondences to given legal concepts, using two (...) match algorithms. Moreover, another method called a static analysis is given to refine a given legal ontology, based on the comparison between the initial legal ontology and the best MRD correspondences to given legal concepts. We have implemented a software environment to help a user refine a given legal ontology based on these methods. The empirical results have shown that the environment works well in the field of Contracts for the International Sale of Goods. (shrink)

The article deals with a specific type of contract that an heir is entitled to conclude—the transfer (or sale) of the rights of succession. As a starting point, the author of the article analyses the formation and further development of the transfer of succession as a whole (hereditas) in the Roman law. Two major proceedings used by Roman lawyers for the purposes of the alienation of hereditas are analysed, one being in iure cessio hereditatis and the second taking the (...) form of emptio venditi hereditatis. The interrelations between this kind of transfer and the recognition of the possibility of the assignment of rights (cessio) under the Roman law are pointed out. The author traces the impact of the principles developed by the Roman law on the legal regulation of the contract in question in modern codification by drawing attention to the French Civil Code and the Civil Code of Quebec. The author states that the legal rules on the sale of the rights of succession contained in the new Lithuanian Civil Code adopted in 2000 have been transposed, to a large extent, from the two abovementioned codes. After analysing the object of this contract, the author concludes that it is the sale of a certain incorporeal property (res incorporales) that is meant by the terms ‘succession’ (hereditas) or the ‘rights of succession’. This feature distinguishes the analysed contract from the ordinary contracts that an heir may conclude for the purposes of the alienation of specific objects making part of the succession. (shrink)

Liberal thought (in the sense of classical liberalism) is based on the juxtaposition of consent to coercion. Autocracy and slavery were seen as based on coercion whereas today's political democracy and economic 'employment system' are based on consent to voluntary contracts. This paper retrieves an almost forgotten dark side of contractarian thought that based autocracy and slavery on explicit or implicit voluntary contracts. To answer these 'best case' arguments for slavery and autocracy, the democratic and abolitionist movements forged arguments not (...) simply in favour of consent, but arguments that voluntary contracts to legally alienate aspects of personhood were invalid 'even with consent' – which made the underlying rights inherently inalienable. Once understood, those arguments have the perhaps 'unintended consequence' of making the neo-abolitionist case for ruling out today's self-rental contract, the employer-employee contract. The paper has to also retrieve these inalienable rights arguments since they have been largely lost on the Left, not to mention in liberal thought. (shrink)

In English law, there are various ways in which contracts can be invalid or unenforceable because they are immoral — and yet English lawyers know that many contracts are conclusively binding. The first two sources of legal gaps that Joseph Raz identifies do not seem surprising. Vagueness in the sources of law leads to gaps in borderline cases, and there is a gap if the law includes inconsistent rules, with no way of deciding which is effective. In those situations (...) it seems right to say that the law does not tell people where they stand, so that people may need a court to make a decision. But if Raz is right about the third source of gaps, then judges have discretion whenever the law appeals to moral considerations. This chapter discusses the sources thesis, moral considerations, judicial discretion, the social morality of judges, and contract law. (shrink)

Work by Sales and Lavin has suggested that it is possible to improve the moral and ethical thinking of psychologists. In particular, moral and ethical thinking by psychologists could be improved if psychologists learned to use defensible moral metrics. The usefulness of formal training in ethics and morality, with the implicit condemnation of the moral metrics that might be taught in such training, has been challenged by writers such as Justice Holmes. He has alleged that professionals learn how to (...) behave in their professional roles by practicing them. A variety of problems are noted with Holmes' view. Further, psychologists cannot rely on expert advice from Institutional Review Boards or Ethics Committees, even if they wished to do so. Institutional Review Boards, and by implication Ethics Committees, have serious deficiencies. However, psychologists can make considerable progress in their moral and ethical thinking, if they distinguish ethics from morality and also notice the similarities between moral thinking and scientific thinking and theorizing. A controversy over the recovered-memory therapy is employed to illustrate some of these distinctions and similarities. The argument continues by developing two moral metrics. The first begins with ethics and culminates in moral appraisal. The second makes moral appraisal an earlier step than ethical appraisal. With these metrics described, it is then noted that a popular metric in psychology, that of Koocher and Keith-Spiegel, is inadequate. It is then shown that the two moral metrics earlier described are reasonably believed to be adequate. The adequacy of one of them is directly illustrated with an example involving the question of whether persons with serious mental illnesses should be allowed to enter into contracts that would relax the criteria for their involuntary hospitalization and treatment. It is concluded that teachable, intellectually defensible moral metrics are possible, and that their use would improve the moral and ethical thinking of psychologists. (shrink)

The slavery contract is not a rights violation since the right not to be enslaved and the right not to give out a benefit are waivable and the conjunction of their voluntary waiver is not itself a rights violation. The case for the contract being pejoratively exploitative is not clear. Hence given the general presumption in favor of liberty of contract, such a transaction ought to be permitted. The contract is also not invalid on the (...) grounds that the wrongdoer’s consent to it necessarily reflects involuntariness or irrationality or on the grounds that it is logically impossible for the wrongdoer to satisfy the contract. Allowing such contracts may not have desirable consequences, but for the liberal this by itself is not a sufficient reason against allowing them. One case where the slavery contract might be relevant is where a victim’s agent or the state agrees to waive its claim to harsh punishment in return for the offender agreeing to be enslaved. (shrink)

The slavery contract is not a rights violation since the right not to be enslaved and the right not to give out a benefit are waivable and the conjunction of their voluntary waiver is not itself a rights violation. The case for the contract being pejoratively exploitative is not clear. Hence given the general presumption in favor of liberty of contract, such a transaction ought to be permitted. The contract is also not invalid on the (...) grounds that the wrongdoer’s consent to it necessarily reflects involuntariness or irrationality or on the grounds that it is logically impossible for the wrongdoer to satisfy the contract. Allowing such contracts may not have desirable consequences, but for the liberal this by itself is not a sufficient reason against allowing them. One case where the slavery contract might be relevant is where a victim’s agent or the state agrees to waive its claim to harsh punishment in return for the offender agreeing to be enslaved. (shrink)

This essay challenges the coherence of arguments brought in support of prohibiting the sale of human body parts. Considerations of neither social utility nor individual rights nor avoidance of exploitation seem sufficient to ground such a prohibition. Indeed, they may be sufficient to invalidate it.

Love, sex, and physical intimacy are some of the most desired goods in life and they are increasingly being sought on dating apps such as Tinder, Bumble, and Badoo. For those who want a leg up in the chase for other people’s attention, almost all of these apps now offer the option of paying a fee to boost one’s visibility for a certain amount of time, which may range from 30 min to a few hours. In this article, I argue (...) that there are strong moral grounds and, in countries with laws against unconscionable contracts, legal ones for thinking that the sale of such visibility boosts should be regulated, if not banned altogether. To do so, I raise two objections against their unfettered sale, namely that it exploits the impaired autonomy of certain users and that it creates socio-economic injustices. (shrink)

Many if not most sperm donors in the early years of IVF donated under conditions of anonymity. There is, however, a growing awareness of the ethical cost of withholding identifying parental information from donor children. Today, anonymous donation is illegal in many jurisdictions, and some jurisdictions have gone as far as retrospectively invalidating contracts whereby donors were guaranteed anonymity. This article provides a critical evaluation of the ethics and legality of anonymous donation. We defend Australian and British legislation that has (...) outlawed donor anonymity, and we argue for the establishment of a central registry that provides donor children with the ability to easily and reliably access identifying information about their donor parents. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:184 THE ECONOMIC THOUGHT OF DAVID HUME David Hume's views on economics are expressed in his Essays, Moral, Political and Literary, Part II (1752). He was a contemporary of Adam Smith and read Smith's The Wealth of Nations shortly before his death. Some commentators have suggested that Hume exercised some influence over Smith's views on economics; others are not so sure. Hume's commentators over the last 200 years have (...) emphasized his theory of knowledge, doctrine of causality and belief, theory of morals and historical writing. His views on economics have been relatively neglected. The purpose of this essay is to summarize and clarify Hume's views on economics. Commerce and Trade Hume's essay "Of Commerce" is an extension of his view of property rights. Just as government should not impair property rights, it should not impair commerce, which is the freedom to contract between consenting parties. But Hume was not a 'pure' advocate of laissez-faire. He supported the infant industry argument: A tax on German linen encourages home manufacturers, and thereby multiplies our people and industry. A tax on brandy encreases the sale of rum, and supports our southern colonies. The bulk of workers are employed either in argiculture or manufacturing. In the more primitive societies, almost everyone is employed in agriculture (husbandry), and as agricultural techniques are improved, the land becomes able to support more nonagricultural workers, including artisans and providers of luxuries as well as manufacturers. Some of these 185 surplus (i.e., nonagricultural or manufacturing) workers are sometimes appropriated by the sovereign for use in the army or navy (OC 256), which prevents them from producing luxury goods and services, and leads to a different kind of state than would exist if their labor were not so appropriated. Increases in industry, the arts and trade generally increase both the power of the sovereign and the happiness of the people (OC 260). Trade is something that is mutually beneficial -- both parties gain. Hume spends a great deal of time refuting the idea that one nation's gain is another's trade loss. Thus, trade is a win-win rather than a win-lose situation, as some modern-day mercantilists (such as Thurow fThe Zero Sum Gamel and Batra G The Great Crash of 1989l)would have us believe. Hume views everything in the world as purchased by labor, and sees labor as being caused by people's passions (OC 261). In modern language, one could say that wealth is produced either from physical or mental labor, and that it is individual incentive that causes the human action to begin in the first place. Of course, this view overlooks the fact that labor does not exist in a vacuum, but is mixed with land and perhaps capital (which can be seen as the result of accumulated labor). Exchange occurs when producers of a commodity produce more than they can consume. At that point, they trade their surplus for other goods and services (OC 261). In peacetime, the farmers' surplus goes toward the acquisition of manufactures or the cultivation of the liberal arts. In war, the surplus can go toward the support of an army or navy. The state becomes more powerful as it can produce increasingly beyond subsistence, what Hume refers to as employment beyond mere necessities (OC 186 262). But rather than encouraging the increase in state power by force, such increase is best accomplished by allowing individuals to produce as much as they want, which they will do automatically in the absence of coercion, and then appropriate part of the surplus: It is a violent method, and in most cases impracticable, to oblige the labourer to toil, in order to raise from the land more than what subsists himself and family. Furnish him with manufactures and commodities, and he will do it himself. Afterwards you will find it easy to seize some part of his superfluous labour, and employ it in the public service, without giving him his wonted return. Being accustomed to industry, he will think this less grievous, than if, at once, you obliged him to an argumentation of labour without any reward. (OC 262) Countries that engage in... (shrink)

The Study Group on a European Civil Code has taken upon itself the task of drafting common European principles for the most important aspects of the law of obligations and for certain parts of the law of property in movables which are especially relevant for the functioning of the common market. Like the Commission on European Contract Law's "Principles of European Contract Law", the results of the research conducted by the Study Group on a European Civil Code seek (...) to advance the process of Europeanisation of private law. Among other topics the series tackles sales and service contracts, distribution contracts and security rights, renting contracts and loan agreements, negotiorum gestio, delicts and unjustified enrichment law, transfer of property, and trust law. The principles furnish each of the national jurisdictions a grid reference. They can be agreed upon by the parties within the framework of the rules of private international law. They may provide a stimulus to both the national and European legislator for moulding private law. Beyond this, they aim to further discussion about the creation of a European Civil Code, or a Common Frame of Reference in the area of patrimonial law, by submitting a concrete model. The "Principles of European Law" are published in co-operation with Stämpfli, Bern. For other co-operation-partners and for more information see www.sellier.de. (shrink)

Being in force in 70 countries around the world and covering more than two thirds of world trade, the 1980 United Nations Convention on Contracts for the International Sale of Goods is considered to be the most successful convention promoting international trade. According to many commentators, this success is due to the fact that, amongst others, the Convention does not directly impact the domestic law of the various legal systems, as it applies only to international â?? as opposed to purely (...) domestic â?? contracts. The Convention, in other words, does not impose changes in the domestic law, which makes it easier for States to adopt the Convention. This does not mean, however, that the Convention does not have any impact on the domestic law at all. This book analyzes â?? through 24 country reports, as well as a general report submitted to the 1st Intermediate Congress of the International Academy of Comparative Law held in November 2008 in Mexico City â?? to what extent the Convention de facto influences the domestic legal system. In particular, the book examines the Convention's impact on legal education, on the practice of law, as well as on the style of court decisions. (shrink)

The discussion concerning the patenting of academic knowledge is already closed for many people. It has become a type of credo, solemnly intoned at all levels: universities must commercially valorize the knowledge that they generate as extensively as possible.The public means that are reserved for universities can never increase at the same rate as the mounting costs for highly specialized research. So universities, if they want to work at the top level, must increasingly appeal to private resources. Universities are increasingly (...) forced to aim at contract research, sponsorships, commercialised service, the patenting of technical findings, and spin-offs: Cash for knowledge!The pressure for the unfettered commercialisation of academic knowledge does not only come from within the universities. The message also comes from the politicians and those who are committed to economic prosperity. They argue that the commercialisation of intellectual property contributes to new employment because it makes new industrial developments possible and reinforces the competitiveness of ventures. They make it seem that universities form the motor of the knowledge economy.In a country without considerable natural resources and with extremely high personnel costs, innovation is of vital importance. Few convictions are equally as expressly avowed at so many differing forums. The direction of the march seems clear.It was once different. The knowledge that was acquired, deepened, preserved, and transmitted within the universities was not for sale. In fact, its sale could present difficulties because academic knowledge has never answered to the properties of a marketable thing. Use does not deplete knowledge and if you consider it your mission to bring to light knowledge, you do not want to exclude anyone from making use of it.Academic knowledge could thus not be an object of trade, at least so long as nobody was intent on keeping that knowledge secret, and so long as nobody appealed to regulations, whereby one could restrict the legal use of that knowledge. Today neither of these strategies are taboo within academic centres. The patenting of all forms of qualifying knowledge is even encouraged.A patent assumes, on the one hand, that one makes public the knowledge upon which a technique rests, while one, on the other hand, can grant use of that technique exclusively to who one gives a licence, whether or not for a fee. This system is put forth as attractive for all parties. The researchers can keep up with technical details, and the entrepreneur can commercialise the finding. Everyone is happy.Or perhaps not? Are there reasons to be concerned that universities must increasingly submit themselves to the laws of the market? Are there arguments for evaluating academic performance differently than the performance of entrepreneurs? Must one regret that knowledge is commercialised as much as possible?The proponents of the commercial orientation point out that all kinds of new incentives will give a new impetus to the old academic system and will increase the relevance of academic research. They seem to dismiss resistance to the renewal as a nostalgic outpouring of a privileged group that used to have it too good, a group that for too long knew to retreat too safely back into a series of unworldly problems.The opponents of the economically oriented approach fear that the proper character of the academic mission will be lost. They fear that the loss of academic autonomy will make the specific function that a university fulfils within society impossible. In what sense?In our society, there is not one type of sphere, and there is not one valid set of standards, the basis upon which performances are evaluated, functions are judged, or objectives commended. There are strongly divergent spheres and each have their own specific function. The laws that apply in one sphere do not necessarily have authority in another sphere, and the standards that apply in one sort of relationship often have little or no meaning in another relationship.Each sphere recognises its own standards and answers to its own system of exchange for compensation, approval, and recognition. What applies in the sphere of law does not necessarily apply in the sphere of someone’s personal friendships, or is not applicable among family members. What applies in trade does not necessarily apply in the sphere of art.Even more, things go wrong when the autonomy of these spheres is not respected. Within the domain of art, love and friendship, monetary laws are not valid, at least in a healthy situation. That is not to say that the rules that apply within the free market would be wrong or unethical – far from it. It seems self evident that these laws are valid under the condition that they apply in the environment to which they belong, and that one respects these limits.This applies for all spheres. It would be unjust if one would apply the standards of friendship to the spheres of jurisprudence or education. Manifestly, it seems self evident not to define justice as a univocal principle that must be extended with the same consistency in every type of sphere. Rather, it is just to respect the individual character of the normative relationship that applies in the diverse spheres of life, and to prevent one sphere from colonising another.Justice assumes that one prevents the political sphere from stipulating what must be said, or concealed, within the academic sphere. Academics must answer alone to that which is expected of them within the academic sphere. Political pressure may exert no influence on this. Why cannot one say the same about economic pressure?Do we run the risk that the economic sphere will colonise the academic sphere just as the economic sphere previously colonised the sphere of media? What must one imagine in this supposed risk? In what sense should economic laws threaten the academic sphere?In the academic sphere, it is traditional to follow one’s own interests and investigate anything whatsoever without having to ask if this knowledge is useful for something or how the fruits of this research fit within the economic context. The academic search for a better understanding of everything has an unconditional character.The manner in which researchers evaluate the performance of each other seldom has to do with the economic effects that their findings have, but with their reliability, the meticulousness with which they were checked, the scrupulousness with which the sources were collected, and the honesty with which they were communicated. The function of the academic is to collect and refine knowledge, and to bring to light the truth.By doing so, universities offer a type of foot-hold within society. They make it possible that a place exists where one can be obedient to what lets itself appear most truthfully today. Nobody has to fear, at least as long as the autonomy of the academic sphere is respected, that the communication of a particular subject was rhetorically coloured in function of a commercial interest, was applied according to the wishes of the sponsor, was brought into conformity with what was agreed upon by the financiers, or answered to the demands of a patent.It is possible that the influence of the commercial sphere shall be less dramatic than pessimistic academics imagine, but nothing indicates the opposite. Today we are giving a new strategy power, and nobody knows how the magician’s apprentice will bring it off.This forms the context of the questions that we shall try to answer together this number of Ethical Perspectives, and we will restrict our discussion to patents. We are aware that the discussion about patents illuminates just one part of the problems, which have to do with the relation of the worlds of academia and commerce. But there is a reason for confining oneself to an aspect of this problematic relationship. If one were to broaden the scope of inquiry further, one would risk missing the complexity of the subject matter already covered, and be consigned to a far too general and aimless debate.We have brought together a number of specialists, jurists, ethicists, and people with practical experience with the field. They shall introduce us into the problematic, confront us with their points of view, and help to answer our questions: Are there moral limits to the patenting of academic knowledge? Is patenting always the most efficient strategy? Does not perhaps the university sell its soul if it gradually leaves itself subject to the laws of the market?We will begin by asking how in particular a university should proceed with the patenting of knowledge. Modern universities were inspired by the ideals of the Enlightenment, which was characterised by the open distribution of unselfishly pursued knowledge.The privatisation and commercialisation of knowledge would seem to conflict with this traditional vision. Jürgen Mittelstrass and Bart Pattyn provide a theoretical and historical basis for protecting the autonomy of university research from the corrupting aspects of the market economy.But, are there reasons for giving up the traditional outlook? Few or no universities have not chosen to patent discoveries, but how is one to proceed within the framework of the university, once one has obtained patent protection? Can one pursue a policy of using these protected intellectual rights to secure the fruits of knowledge for financially weaker groups, or do circumstances compel the universities to be exclusively driven by market forces?Those are the kinds of questions that Gilles Capart and Geertrui Van Overwalle of the KU Leuven will deal with.Sigrid Sterckx of the university of Ghent will answer the question: can patents be morally justified?Paul Belleflamme of the Université Catholique de Louvan La Neuve writes concerning the economic evidence of patents, and the real effect of incentives. Are there any economic facts that can demonstrate the effectiveness of patenting?Then we give the floor to Christopher May of the University of Lancaster, who looks at the question of how universities have to deal with the global information society. (shrink)

In his “Freedom, Self‐Ownership, and Libertarian Philosophical Diaspora, “Justin Weinberg attempts to show, by using arguments from G.A. Cohen, that philosophical defenses of libertarian natural rights are doomed to failure, because they are either circular (by basing libertarianism on the value of “freedom") or invalid (by basing libertarianism on a self‐ownership premise that actually leads to some form of egalitarianism). In fact, however, a natural‐rights libertarianism based on the self‐ownership premise is not inconsistent if it holds that the earth (...) is initially unowned, rather than collectively owned by all humanity. Under this thesis, the self‐ownership assumption may lead to libertarianism, though other hurdles (such as social‐contract theory) stand in the way. Finally, ordinary usage of the term ‘freedom” permits its application as a moralized concept to a political philosophy that has been demonstrated true. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:BOOK REVIEWS 273 my judgment, in the fact that he has limited the historical inquiry to the scholarly study of documents and discussions without showing those cultural, social, psychological, and economic motivations which formed an accompaniment to the individual protagonists of the discussions. The motivation for what a philosopher says is not justified by revealing only his most immediate opponent's name and ideas, but by showing, as Goldmann (La (...) communautd humaine chez Kant, Paris, 1948) and, very briefly, Stark (The Sociology of Knowledge) did, the reason for his thinking and his presuppositional needs. In the case of Kant, it is obvious that we cannot leave out his pietist formation, the fears about the French Revolution and Hume's scepticism. The historicity of a study cannot be limited to the history of polemics or to the discovery of documents which, theoretically, add nothing to what an author has already stated in his works. The vast philological material Pupi has gathered, seems to me very good, and it represents, I think, the greatest value of Pupi's work, because of its usefulness in the field of the sociology of knowledge. And to this field I take the liberty of referring Pupi for an example of a method that is historical and not tautological. ANTONELLA GUARALDI Kant und der Friede. By Wilhelm Miiller. (Diisseldorf: Monitor-Verlag, 1962. Pp. 16.) Perpetual Peace records the noble and humane dream of an old man. Such dreams are not without historical precedent, but rarely have they been invested with the earnestness and the conceptual rigor of a Kant--even of a Kant in his declining years. This short essay is at the very least a minor but noteworthy contribution to political theory. Its main thesis call be simply stated. A truly lasting peace can be achieved only through the agency of a world federation of states operating under moral law. The moral law in question is an extension of the guiding principles of Kant's ethics from the private to the public sphere. It is contrary to the dictates of reason as well as of moral conscience to suppose that political order may be conceived or established apart from or even in opposition to moral law. A state or nation, Kant declares, is a free moral person, possessed of an inviolable integrity, not to be exploited as a thing for purposes of aggrandizement on the part of other states. Were that all that Perpetual Peace contained, the essay would stand as testimony to Kant's political idealism. But he pursues with equal seriousness the question of how such an ideal might be realized in practice. Underlying Kant's federalism is his republicanism, his insistence that the only sound civil constitution is one in which each citizen is free, equal, and fully represented under common law publicly promulgated. It is Kant's contention -perhaps less naive today than it might have seemed earlier in this century--that where the consent of the subjects is required, as it is under a republican form of government, to decide whether or not there shall be war, they may be expected to think twice before bringing such sufferings upon themselves. Further, Kant sees in the ever-tightening and expanding web of international relations a natural deterrent to war, since any war will increasingly involve most if not all of mankind. Both considerations appeal, not to the questionable good will of politicians, but to enlightened self-interest. Finally, Kant lays down a series of "preliminary articles" whose purpose is to specify the conditions without which perpetual peace, as things stand, will not even become a real possibility. Among the principles here formulated are that a peace treaty is invalid if made with secret reservations, that the autonomy and constitutional integrity of independent states must be preserved, that standing armies must gradually be abolished, that national debts shall not be contracted externally, and that in the event of war "dishonorable stratagems" such as assassination, 274 HISTORY OF PHILOSOPHY poisoning, spying, etc., which would render postwar mutual confidence impossible, shall not be countenanced. It is mainly with an eye to these preliminary articles that Professor Wilhelm Miiller argues for Kant's relevance to contemporary... (shrink)

[14.18] But if there were to be a contract in which neither of the contractors is obliged to perform immediately, but rather at a definite future date, that covenant in the pure condition of nature (i. e. in war) is invalid if any suspicion about performance should intervene: in the commonwealth, not likewise. For he who performs first is, in the first case, uncertain whether the other will perform; in the commonwealth he is certain, since there is [something] (...) to compel [performance]. Thus, unless there be some common coercive power, the one who performs first betrays himself to an enemy— beyond the natural right of defending himself and his [stuff]. (shrink)

Roman Law is an important legal systematic that contains important codings of world law history. This legal system not only affected Continental Europe, but also the Near East, which was a period under its domination. Especially in the Justinian period, the law collection that emerged as a result of the legal studies starting from the East Roman capital is considered as a monumental work by many historians and jurists. Researchers who praise Corpus Juris Civilis are right. However, this selection, which (...) is one of the most effective law coding, is far from being practical. For this Leo III prepared his law book called Ecloga. Referred to as the first Christian law book, this work was later expanded with some additions. Ecloga was given its final shape during the period of Empress Irene. Irene is one of the strongest female figures in Roman history. Emperor Constantine V married his son Leo (who is from his first wife Çiçek Hatun, the Caspian Princess) to Irene. Irene was the daughter of an ordinary family. She was Athenian as origin. However, Athens was not a city as flashy as it was in ancient times. At the same time, the Athenians were against icon-breaking, which was the official ideology of the empire. It was really interesting that Irene was chosen by Constantine V as wife for his son Leo. After the death of Constantine V, Leo IV acceded to the throne without any problems. The fact that Leo IV had chronic tuberculosis prevented him from state administrations. Actually, it was Irene who filled in this gap. After the early death of Leo IV, due to the aforementioned disease, his 10-year-old son Constantine VI became officially regent. After killing her son by abacina-tion Irene became the sole owner of the throne. In the ongoing process, she abused law and religion to maintain her power. Irene’s first law supplement was on oaths. There were many references to the Holy Book in the annex of this law. It was mentioned that it is not a sin to swear in the Old Testament, but it is now forbidden to swear with the New Testament. In addi-tion, the law stipulates that the oath is the way to deny God precisely after lying. However, it was claimed that the oath tradition to the Roman society passed through the Hebrews. Un-doubtedly, Irene used the text of this law to prove that the oath of devotion of the majority of the eastern Roman army, allegedly to her son Constantine VI, was invalid. Because in the Ro-man army, fulfilling the necessary oath and loyalty to the emperor were in front of everything. It was possible for the empress to take over the throne with this proclaimed law article that the vows of the soldiers who swore in order to remain committed to Constantine VI within the army were void. It is obvious that Irene was trying to prevent a possible coup attempt within the army. The empress’ second annex to the law concerns those who married for the third time. The law was titled “About those who illegally contract to third or later marriages and about those who marry their own slaves”. In Christianity, it was allowed to marry for the sec-ond time after the death of one of the spouses. There were certain phrases that marriages to be held for the third time in the Holy Book were forbidden. It is clear that Irene had a political benefit in reminding this ban. Because her power was based on her marriage with Leo, who was the son of Constantine V from his first wife. Their rivals were the sons of Constantine V from his third marriage. Therefore, with this law, she eliminated her political rivals. (shrink)

Personnel Decision Making of Chosen Czech Banking Subjects During the Economic Recession The article focuses on personnel decision making of important banking subjects during the ongoing economic recession with the specialization on financial crisis in 2008. Main objective of the article is to verify the implicit contract theory and to answer the question of how the selected banks solve problem of reducing labour costs during the crisis. Four important banks in years 2005 - 2010 are examined. To identify the (...) economic crisis, is used model, which is based on the model, indicating the U. S. business cycle, which uses analytical team in Raiffeisenbank. Model used in this article is based on three variables. Employment rate is separate variable. The values of business sales are adjusted to the values of basis indices, for which the year 2005 is the basis. The development of all those three variables is similar and it is possible to determine the period from the graphical representation, in which all variables reached their maximum and reversed their trend. To support this, a trend line was added to the graphs. The trend line was determined as a moving average for the four seasons. Based on the model, the beginning of the economic recession was indentified to the turn of 2007 and 2008. The biggest slumps can be seen during the year 2009. The investigated periods are therefore the years 2008 and 2009.The calculations of other variables, describing the current condition of the studied subject, are adjusted to the values of basis indices in the same way as the business sales. The year 2005 is set as a basis. Data from chosen banks' annual reports were used to study their current condition. The basic monitored data are: labour costs, number of employees and earnings after tax. This article focuses attention on the personal decisions of banks, especially on the monitoring of costs of employees and their evolution over time in the context of economic recession. The essential conclusion is the confirmation of the implicit contract theory of the new Keynesian economics, which appeared at all observed subject. It is possible to see a year delay between the reduction of the employees and reduction of salary costs. This delay causes further costs. The reduction was observed in all subjects. (shrink)