AN EXPERT'S OPINION ON THE DRAFT LAW ON OBLIGATIONS OF THE REPUBLIC OF SRPSKA/FEDERATION OF BOSNIA AND HERZEGOVINA, VOLUME 1, GENERAL PART, SITUATION ON JAN. 28, 2003.
The expert's opinion regarding this part of the Draft Law that refers to individual obligations, primarily covered general questions and then views about each individual contract included in this draft (50). As regards the general questions, first of all, emphasis was placed on the structure and content of this part of the Draft, which is usually called the special part/section of the Law on Obligations, and then the author dwells particularly on questions of nominate and innominate contracts and on the question of simple and mixed contracts. In that respect, the author gives a comparative review especially in the legislations of the former Yugoslav republics, now independent states that have (almost enitrely) retained the systematisation and content of the clauses of the Law on Obligations from 1978, which was in effect in the former Yugoslavia. Special attention is paid to contracts of autonomous commercial law from the aspect of whether they should be included in this codification or whether they should be regulated by other laws or, perhaps left to commercial practice with the indication only of the general principles of contractual law. These are primarily contracts: franchising, leasing, factoring, forfeiting, time sharing, and then contracts on the transfer of know-how, contracts on long-term production cooperation, contracts on commercial and technical cooperation, and many other contracts from the domain of the exchange of goods and services concluded among economic subjects, particularly with the element of foreign origin. In all these contracts the question arises as to whether they should be regulated by the Law on Obligations in the sense of nominate contracts and in this context, it was pointed out that there are different interpretations in comparative law. Where it concerns individual contracts of obligation the question arose as to whether the directives of the EU regarding different questions (often even technical ones) should be entered in the Law on Obligations. The answer to the question raised, according to the text of this expert opinion, cannot be uniform for all legal situations that make up the subject of the relevant directive. In that sense, concrete solutions were presented. As for individual contracts of obligation, an expert opinion was given for each individual contract envisaged in the Draft Law, with numerous observations or objections, which were based on the comparative, expert and scientific aspect/view in this section of contractual law/ the Law on Obligations.
Key words: Obligationsverträge. -- Verkauf. -- Miete. -- Versicherung. -- Bankgeschäfte.
AUTONOMY: NOTION AND FORMS ON THE MEANING, TYPES AND SCOPE OF AUTONOMY
Autonomy and its autonomous law is an extremely significant phenomenon. The idea of autonomy contains the idea of the right to self-organisation, which also encompasses the right to relatively independent i.e autonomous normative activity. But if autonomy were independent, i.e. independent of state authority, then it would not be autonomous, but new state authority. That means that autonomy, despite its origin, is possible only as a correlative or as an appendage of state authority, which permits and defines it. For that reason autonomy, in comparison to state authority, is always relative and proportionate. The existence of the appropriate measure of autonomy and the autonomous forms adapted to it -- no matter when and where -- is a sign of the assessment and decision within the state that autonomy is necessary as a measure of proportionate and relative freedom within the given borders. Autonomy in the sense just described, therefore, is not only a matter of the will of a person, nor is it only a matter of the decision, assessment or relevant legal measure, it is also the result of the development of state communities in which decentralisation, deconcentration and devolution -- as synonyms for the said assessment and change, are accompanied by simultaneously integrative and disintegrative trends and processes -- represent a clear intimation of the need to satisfy in the mentioned sense only those reasons that are conducive to legal and not false autonomy.
Key words: Autonomy. -- State. -- Decentralisation. -- Corporation. -- Self-government.
PRELIMINARY AGREEMENTS IN THE LAW OF CONTRACTS
The conclusion of a contract is the ultimate goal to which the negotiating parties aspire. As opposed to the ultimate contract, preliminary agreements are concluded in the course of negotiations. The ultimate contract defines the final form of the rights and obligations of the contracting parties. Where it concerns preliminary agreements, the assent of the parties does not encompass everything that is necessary for the existence of the contract.Hence, the preliminary agreements imply the fact that the process of negotiating is not finished and that the parties still have to reach further consensus so as to arrive at the desired goal, if they ever do. Among preliminary agreements, we distinguish the three following types: 1. An agreement to negotiate, 2. a partial agreement and 3. an agreement on form (which accompanies the agreement on the substance). One should mention that neither the classification nor the legal terminology is uniform in this field, and that different types of preliminary agreements occur in our law, as well as in other legal systems, and that different terms are used for almost the same types.
In the agreement to negotiate, the two parties mutually agree to start or continue negotiations in the aim of signing an ultimate contract. In a partial agreement, the parties that have reached consensus on individual, secondary points (an agreement can also embrace some of the essential elements of a future contract, but not all of them) and, to continue negotiations in the aim of concluding the ultimate contract. As we can see, this kind of agreement has two features: the first is that the parties have managed to reach accord on certain matters (but not all), and the second is that the parties agree to continue the negotiations so as to conclude the ultimate contract. The third type is an agreement on the form (in which the ultimate contract should be concluded), which is concluded at the same time as the agreement on the substance. Namely, if, while reaching assent on the all-essential elements, the parties sign an agreement on its form either previously or simultaneously, the ultimate contract will not be concluded until the said form is accomplished.
Key words: Preliminary Agreements. -- Agreement to Negotiate. -- Partial Agreement. -- Agreement on Form.
CHANGES REGARDING LIMITATIONS IN THE GERMAN CIVIL CODE
With the Law on the Modernisation of the Law of Obligations, which came into force on January 1, 2002, the provisions on limitations contained in the general part of the German Civil Code underwent thorough changes. The former regulations were a compromise of rules that were valid in different areas (Partikularrechte), prior to the unification of Germany until January 1, 1900. The new changes rely less on European law, (which contains only provisions on the limitation of claims for defects in goods sold to consumers), than on comprehensive discussions, which started early in the eighties, with suggestions for conducting a thorough reform of the German Civil Code. With regard to the duration of limitation, the new rules substantially simplify the previous provisions. Whereas in the former, attention was mainly focused on the interruption of the limitation period, and which was regulated in a comprehensive form, now, in contrast, the phenomenon of the suspension of the limitation is the predominant idea. The introduction of the subjective element, that is to say, the knowledge of the claim and of the defendant, changed the entire system. This gave rise to several problems, not least procedural ones that were not reviewed in cases, till now. Whereas the German system considers knowledge as an objection (exceptio), the Lando Commission, on the contrary, takes the lack of knowledge as grounds for suspension of the limitation period. To avoid injustices, which could arise from the radical shortening of the terminal date, different periods were introduced for a set of claims, in keeping with various rights. It is obvious that this could complicate procedure because different periods could apply even within a single case if a series of rights is affected in the same case. Notwithstanding the frequently declared intention to focus rather on harmonising German Civil Law with evolving European law, the drafters have opted instead for a specific German path in legislating.
Key words: Germany. -- Law of Obligations. -- Limitations. -- German Civil Code. --