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Princípio constitucional da celeridade processual; Celerity of procedure constitutional principle

Prado, João Carlos Navarro de Almeida
Fonte: Biblioteca Digitais de Teses e Dissertações da USP Publicador: Biblioteca Digitais de Teses e Dissertações da USP
Tipo: Dissertação de Mestrado Formato: application/pdf
Publicado em 20/12/2010 PT
Relevância na Pesquisa
75.46%
O constituinte reformador decidiu tratar do problema da morosidade da justiça, à semelhança de outros países e de diversos tratados internacionais a respeito. A presente dissertação tem por fulcro a análise do novo inciso LXXVIII do art. 5º da Constituição Federal que instituiu a celeridade processual como direito fundamental. É feita cuidadosa abordagem de todos os princípios constitucionais pertinentes à matéria, especialmente o devido processo legal, desde o seu surgimento, na common law inglesa, com a Magna Carta de 1215, evoluindo pela interpretação da Suprema Corte nos Estados Unidos, de modo a conhecer sua vertente substantiva, até ser consagrado no Brasil, de modo expresso, cerca de 200 anos depois, pela Constituição de 1988. Outros princípios apresentam-se igualmente de grande relevância, como o acesso à justiça, eficiência e igualdade. Constata-se que não era imprescindível a positivação de regra específica para que a Justiça estivesse jungida ao dever de julgar com rapidez. Revela-se, porém, profícua a abordagem do tema na Constituição, dentre os direitos fundamentais. Verifica-se a ocorrência de eventuais conflitos no plano concreto envolvendo a celeridade processual e os princípios do contraditório e da ampla defesa...

O acesso a Justiça no Brasil : a atuação dos Juizados Especiais Federais Civeis; Access to Justice in Brazil : the role of the Special Civil Courts of Federal Sphere

Celly Cook Inatomi
Fonte: Biblioteca Digital da Unicamp Publicador: Biblioteca Digital da Unicamp
Tipo: Dissertação de Mestrado Formato: application/pdf
Publicado em 09/09/2009 PT
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65.45%
Os Juizados Especiais Federais Cíveis (JEFs Cíveis) despontam como uma das mais recentes instituições do Judiciário criadas para ampliar o acesso à Justiça no Brasil. Eles são responsáveis por solucionar conflitos entre cidadãos e agências estatais, constituindose num espaço de possível resistência contra as ilicitudes e descaso das agências do Estado responsáveis pela administração dos direitos sociais. A gratuidade de seus serviços, seus procedimentos simples e informais e as promessas de uma Justiça célere possibilitaram que muitos cidadãos desassistidos recorressem às suas instâncias, ampliando-se, assim, o acesso à Justiça. Porém, ao mesmo tempo em que a grande procura aos JEFs Cíveis possibilitou mostrar a realização da ampliação do acesso, ela também explicitou as fragilidades e as deficiências do modelo de resolução de conflitos adotado, através do qual a efetividade dos direitos pleiteados passou a se dar de modo precário e dependente de inúmeras circunstâncias. A realização dos direitos passou a se adaptar às precárias condições do modelo e da infra-estrutura de funcionamento, resultando numa distribuição desigual e particularizada dos direitos. Frente a isso, faz-se necessário repensar o perfil institucional de atuação dos JEFs Cíveis...

On the need for reform of the portuguese judicial system - does data envelopment analysis assessment support it?

Santos, Sérgio Pereira dos; Amado, Carla
Fonte: Elsevier Publicador: Elsevier
Tipo: Artigo de Revista Científica
Publicado em //2014 ENG
Relevância na Pesquisa
65.54%
The Portuguese judicial system has attracted considerable criticism in recent years and demands for reforms have gained prominence. By using the Data Envelopment Analysis technique and focusing on the performance of 223 Portuguese first instance courts during the period of 2007 to 2011, this research has found evidence that supports some of this criticism and justifies the calls for reforms, better performance and accountability of the judicial system. In particular, our results found a sector with considerable scope for improvement with less than 16 percent of the 223 courts analysed making an efficient use of their resources in each year and with only one third of the courts being considered efficient in at least one of the five years assessed. Whilst the results suggest that improvement can be achieved with better case management, scale factors also seem to play an important role in explaining inefficiency, with most of the inefficient courts being smaller than optimal and with smaller courts being, on average, less efficient than larger ones. The existence of a statistically significant relationship between courts’ efficiency and size was confirmed by the Mann-Whitney test. These results indicate considerable scope for improvement and that some of the planned reforms are timely and seem well targeted. However...

Multi-Level Judicial Trade Governance without Justice? On the Role of Domestic Courts in the WTO Legal and Dispute Settlement System

PETERSMANN, Ernst-Ulrich
Fonte: Instituto Universitário Europeu Publicador: Instituto Universitário Europeu
Tipo: Trabalho em Andamento Formato: 229502 bytes; application/pdf; digital
EN
Relevância na Pesquisa
65.46%
The fragmented nature of national and international legal and dispute settlement regimes, and the formalistic nature of the customary international law rules on treaty interpretation and conflicts of laws, offer little guidance on how national and international judges should respond to the proliferation of competing jurisdictions and the resultant incentives for forum shopping and rule shopping by governments and non-governmental actors in international economic law. Due to their different jurisdictions, procedures and different rules of applicable laws, national and international judges often interpret international trade law from different (inter)national, (inter)governmental, constitutional and judicial perspectives. This paper explores the judicial functions of national and international judges to reach justified decisions based on positive law, on the basis of transparent, predictable and fair procedures, and to interpret international treaties “in conformity with principles of justice.” Chapters I to III explain some of the “principles of justice” underlying international trade law and argue that international rules for a mutually beneficial division of labour among private citizens should be construed with due regard to the human rights obligations of governments. Chapters III and IV propose to strengthen international cooperation among national and international courts...

Seeking the Political Role of the Third Government Branch: A comparative approach to high courts in Central America

MARTINEZ BARAHONA, Elena
Fonte: Instituto Universitário Europeu Publicador: Instituto Universitário Europeu
Tipo: Tese de Doutorado
EN
Relevância na Pesquisa
75.61%
Until recently, Courts were not an important component of political science research on Latin America. The quantity of research on the judiciary does not compare even remotely to the vast literature on others institutions. However, despite the relative inattention to their role, courts are institutions whose performance has concrete and relevant effects on the socio-political system. Indeed, Courts have currently emerged as active participants in the political process offering new opportunities to citizens, social movements, interest groups, and politicians. Focusing on three countries of Central America (Costa Rica, Nicaragua and Guatemala), this dissertation illustrates how far the political system in these countries is shaped in significant ways by the role of Courts as political institutions. Throughout a comparative approach, this study offers what may be the first cross-national analysis explicitly designed to serve as a comprehensive measure of the political role of High Courts.; Defence date: 22 January 2007; Examining board: Prof. Pilar Domingo (Universidad de Salamanca) ; Prof. Carlo Guarnieri (Università di Bologna) ; Prof. Donatella Della Porta (European University Institute) ; Prof. Philippe C. Schmitter (European University Institute)(Supervisor)

Seeking the Political Role of the Third Government Branch: A comparative approach to High Courts in Central America

MARTINEZ BARAHONA, Elena
Fonte: VDM Verlag Publicador: VDM Verlag
Tipo: Livro
EN
Relevância na Pesquisa
65.6%
Until recently, Courts were not an important component of political science research on Latin America. The quantity of research on the judiciary does not compare even remotely to the vast literature on others institutions. However, despite the relative inattention to their role, courts are institutions whose performance has concrete and relevant effects on the socio-political system. Indeed, Courts have currently emerged as active participants in the political process offering new opportunities to citizens, social movements, interest groups, and politicians. Focusing on three countries of Central America (Costa Rica, Nicaragua and Guatemala), this book illustrates how far the political system in these countries is shaped in significant ways by the role of Courts as political institutions. Throughout a comparative approach, this study offers what may be the first cross-national analysis explicitly designed to serve as a comprehensive measure of the political role of High Courts.; (Published version of EUI Ph.D. thesis, 2007.)

Terrorist Listings and the Rule of Law: The Role of the EU Courts

ROSAS, Allan
Fonte: Instituto Universitário Europeu Publicador: Instituto Universitário Europeu
Tipo: Trabalho em Andamento Formato: application/pdf; digital
EN
Relevância na Pesquisa
75.51%
Although the terrorist attacks on New York and Washington, D.C., on 11 September 2001, were not the first acts of terrorism on a major scale, they triggered a host of counter-terrorism measures, without due regard for the principle of the rule of law. While rule of law concerns have subsequently received more attention, the UN is still continuing its practice of terrorist listings, without any right of judicial review. The response of national and regional courts has been varying. The European Court of Justice, through its Kadi case law, has assumed a leading role in the exercise of judicial control of terrorist listings made by the UN. In addition, the EU judicial system provides for remedies with respect to listings made unilaterally by the EU. The main thrust of the paper is on the role of the European Court of Justice in safeguarding respect for fundamental rights and the rule of law with regard to both UNbased and autonomous EU terrorist listings.

Human rights and the rule of law

CORSTENS, Geert
Fonte: Instituto Universitário Europeu Publicador: Instituto Universitário Europeu
Tipo: Outros Formato: application/pdf; digital
EN
Relevância na Pesquisa
95.56%
This paper examines the role of the Courts in ensuring that human rights that exist on paper are ‘practical and effective’ in application. The author conducts this examination by considering the important role of the rule of law in the application of human rights. The author argues that the written law, which enshrines human rights, only becomes legally enforceable if there exists a functioning and proper government structure. That structure includes an independent and impartial judiciary which is capable of ensuring proper implementation of the rule of law. In a democracy governed by the rule of law, the government is also bound by the law and that law contains safeguards protecting everyone’s individual freedoms. The author sets out five developments which explain the great increase in the importance of fundamental rights in recent years - proliferation, horizontal effect, internationalisation and a broadening of perspective. The final part of the paper takes two topics which emanate from consideration of the first of these five developments, proliferation. The first topic is the scope for a national approach versus European uniformity and the second is the difference between destructive and constructive criticism of the case-law of the European Court of Human Rights. This paper concludes by again underlining the important role of the rule of law in ensuring government accountability and the implementation of human rights and argues that because of the acceptance by national Courts of the aforementioned developments...

Children's Socio-Economic Rights, Democracy and the Courts

NOLAN, Aoife
Fonte: Hart Publishing Publicador: Hart Publishing
Tipo: Livro
EN
Relevância na Pesquisa
65.55%
(Published version of EUI PhD thesis, 2005.); Despite the significant growth in academic interest in both children's rights and socio-economic rights over the last two decades, children's socio-economic rights are a comparatively neglected area. This is particularly true with regard to the role of the courts in the enforcement of such rights. Aoife Nolan's book remedies this omission, focussing on the circumstances in which the courts can and should give effect to the socio-economic rights of children. The arguments put forward are located within the context of, and develop, long-standing debates in constitutional law, democratic theory and human rights. The claims made by the author are supported and illustrated by concrete examples of judicial enforcement of children's socio-economic rights from a variety of jurisdictions. The work is thus rooted in both theory and practice. The author brings together and addresses a wide range of issues that have never previously been considered together in book form. These include children's socio-economic rights; children as citizens and their position in relation to democratic decision-making processes; the implications of children and their rights for democratic and constitutional theory; the role of the courts in ensuring the enforcement of children's rights; and the debates surrounding the litigation and adjudication of socio-economic rights. This book thus represents a major original contribution to the existing scholarship in a range of areas including human rights...

The Legal Effect of Community Agreements: Lessons from the Court

MENDEZ, Mario
Fonte: Instituto Universitário Europeu Publicador: Instituto Universitário Europeu
Tipo: Tese de Doutorado
EN
Relevância na Pesquisa
65.49%
Defense date: 18/06/2009; Examining board: Gráinne de Búrca (former EUI, now Fordham University - supervisor), Marise Cremona (EUI), Pieter-Jan Kuijper (University of Amsterdam), Marc Maresceau (University of Ghent); This thesis assesses the legal effect of Community Agreements, explored through the case-law of the Community courts. It places this issue within the broader setting of the legal effect of treaties in domestic legal orders and how we think about the role of domestic courts in treaty enforcement. It proposes a basic dichotomy between automatic and non-automatic treaty incorporation in preference to the commonly employed, but analytically unhelpful, language of monism and dualism. And it emphasises the need for greater empirical work as to how courts in automatic treaty incorporation states actually deal with treaties when they are invoked; rather than relying on the untested assumption that the particular phrasing of a constitutional provision providing the port of entry for treaties into the domestic legal arena and/or seminal judicial assertions on their legal effect is matched by existing judicial practice. To this end, a data-set of the existing Community Agreements jurisprudence of the Community Courts was created. It is an assessment of this data-set that provides the core empirical work of this study. This study illustrates how the foundational Community Agreements jurisprudence signalled an attachment to an automatic treaty incorporation model and thus erected a central plank of the Community's external relations constitution with profound constitutional ramifications for the Member States. This constitutes a neglected dimension of the constitutionalisation debate...

The Europeanisation of Remedies and Procedures through Judge-made Law: Can a Trojan Horse achieve Effectiveness? Experiences of the Swedish Judiciary

ENGSTROEM, Johanna
Fonte: Instituto Universitário Europeu Publicador: Instituto Universitário Europeu
Tipo: Tese de Doutorado
EN
Relevância na Pesquisa
65.49%
Defense date: 28/09/2009; Examining Board: Profs. Ulf Bernitz (External Co-Supervisor, University of Stockholm), Gráinne de Burca (Supervisor, former EUI and Fordham University), Bruno De Witte (EUI), Walter van Gerven (University of Leuven); Author was awarded the European Public Law Group's special distinction 2010 for her PhD thesis.; Through the judge-made requirements developed in its case-law, the Court of Justice has laid down obligations on national courts to provide effective judicial protection for individuals that seek to enforce Community law claims. This thesis will study the Europeanisation of national remedies and procedures that comes about in this process. I will carry out the analysis in two stages. In the first stage, I will look from a European perspective at the principle of effective judicial protection, which I will view as a Trojan horse containing the judge-made requirements, and establish what is understood by effective judicial protection. I will seek to identify more precise obligations incumbent on national courts in relation to different remedies and procedural rules. Moreover, I will seek to establish the rationale of the Court's intervention into national procedural autonomy. In particular, I will consider if the rationale is a concern to protect individual rights or whether the language of 'rights' is rather used as a legitimizing pretext for enhancing the general effectiveness of Community law and for harmonising remedies and procedures. In a second stage...

Children's Socio-Economic Rights and the Courts: Evaluating an activist approach

NOLAN, Aoife
Fonte: Instituto Universitário Europeu Publicador: Instituto Universitário Europeu
Tipo: Tese de Doutorado Formato: Paper
EN
Relevância na Pesquisa
75.57%
Defence date: 28 October 2005; Examining board: Prof. Wojciech Sadurski, EUI (Supervisor) ; Prof. Carol Sanger, Columbia University (External Supervisor) ; Prof. Philip Alston, New York University ; Prof. Geraldine Van Bueren, Queen Mary/University of Cape Town; Despite the significant growth in academic interest in both children's rights and socio-economic rights over the last two decades, children's socio-economic rights are a comparatively neglected area. This is particularly true with regard to the role of the courts in the enforcement of such rights. Aoife Nolan's book remedies this omission, focussing on the circumstances in which the courts can and should give effect to the socio-economic rights of children. The arguments put forward are located within the context of, and develop, long-standing debates in constitutional law, democratic theory and human rights. The claims made by the author are supported and illustrated by concrete examples of judicial enforcement of children's socio-economic rights from a variety of jurisdictions. The work is thus rooted in both theory and practice. The author brings together and addresses a wide range of issues that have never previously been considered together in book form. These include children's socio-economic rights; children as citizens and their position in relation to democratic decision-making processes; the implications of children and their rights for democratic and constitutional theory; the role of the courts in ensuring the enforcement of children's rights; and the debates surrounding the litigation and adjudication of socio-economic rights. This dissertation thus represents a major original contribution to the existing scholarship in a range of areas including human rights...

The interpretation of tax legislation in Great Britain and Australia - a study of the indeterminacy of law

Burton, Mark Andrew
Fonte: Universidade Nacional da Austrália Publicador: Universidade Nacional da Austrália
Tipo: Thesis (PhD)
EN_AU
Relevância na Pesquisa
65.58%
The prevailing view of the history of tax interpretation is one of legal formalism. According to this account of judicial discovery and application of legislative rules, there is no room for judicial law making. Chapter One introduces this mainstream account of tax interpretation over the last three centuries, noting the various permutations of this legal formalist account. The chapter also notes the significance of this account to liberal legal theory. Chapters two, three, four and five examine the merits of the mainstream account in particular contexts. Chapter two examines the interpretation of tax legislation during the eighteenth and early nineteenth centuries, and argues that the evidence does not support the liberal legalist account of that history. It will be argued that the courts were only granted jurisdiction to hear a limited range of tax appeals in order to secure a tactical advantage for the central government in the administration of certain taxes. This tactical advantage was assured as, contrary to the prevailing account of tax history, the courts adopted a pro revenue construction of tax legislation until well into the nineteenth century. Chapter three examines the interpretation of the income tax in the latter years of Victorian England - a statutory right of appeal against tax assessments only having been created in 1874. Although judges of this era occasionally referred to the rhetoric of strict or literal construction of tax legislation...

Guatemala - The Role of Judicial Modernization in Post Conflict Reconstruction and Social Reconciliation

World Bank
Fonte: World Bank, Washington, DC Publicador: World Bank, Washington, DC
Tipo: Publications & Research :: Brief; Publications & Research
ENGLISH
Relevância na Pesquisa
65.46%
The Peace Accords of 1996 brought an end to 36 years of armed conflict in Guatemala, and signaled the beginning of a complex and challenging process of reconstruction and social reconciliation. A central plank of the consensus expressed in the Peace Accords was the overhauling of Guatemala's public institutions, which were seen to exacerbate the social and economic injustices that had contributed to the conflict. The Judicial Branch was identified as one of the key state institutions, in a position to create the necessary conditions to help a divide, and diverse population emerge from decades of conflict, social and economic exclusion, and mistrust in public governance. A Bank-supported Judicial Modernization Project is in its third year of implementation, and helping in this process along with other donors (UNDP, Sweden, Finland, the Inter American development Bank -IDB, Soros Foundation and others).

Gender and Law in Francophone Sub-Saharan Africa : The Role of the World Bank - Gender-Responsive Institutional, Policy and Legal/Regulatory Frameworks; Problematique hommes-femmes et droits legaux en Afrique Francophone : le role de la Banque mondiale - cadres de travail institutionnel, politique et legal/reglementaire axes sur la problematique hommes-femmes

World Bank
Fonte: Washington, DC Publicador: Washington, DC
Tipo: Publications & Research :: Brief; Publications & Research
ENGLISH
Relevância na Pesquisa
65.46%
Law is society's institution which articulates rules to govern legal and non-legal institutions. Rules of legal institutions aim to protect the citizen against discretionary and arbitrary power, ensure equality with others and guarantee procedural fairness. Impartial administration of the law through independent accessible courts and a democratic process of law-making, defines and enforces the limits and powers of state institutions and sets out the scope of legitimate state intervention in the affairs of its citizens. To the extent that the rule of law accomplishes this, a neutral legal order exists, capable of supporting the competitive market economy in the following ways: a) ensuring predictability and security of property rights and transactions; b) limiting arbitrary and discretional rational power of the state and its agents; c) maintaining the independence of the judiciary and at the same time curtailing judicial activism; and d) limiting the retroactivity of rules of law. Because of the lack of a formalized private sector in Africa...

O hiato do direito dentro do direito: os excluídos do BPC; The Hiatus of Law within Law: Exclusion from Continued Benefit Payments

Ivo, Anete Brito Leal; Ucsal - Salvador - BA; Silva, Alessandra Buarque de A.; Ucsal - Salvador - BA
Fonte: Editora da Universidade Federal de Santa Catarina (Edufsc) Publicador: Editora da Universidade Federal de Santa Catarina (Edufsc)
Tipo: info:eu-repo/semantics/article; info:eu-repo/semantics/publishedVersion; ; ; Formato: application/pdf
Publicado em 19/05/2011 POR
Relevância na Pesquisa
75.49%
http://dx.doi.org/10.1590/S1414-49802011000100004Este artigo examina o processo de “seletividade estrutural” desde a concepção do direito constitucional básico à assistência social, advindo do Benefício de Prestação Continuada (BPC), até a efetividade deste pelo gerenciamento da demanda e pela elegibilidade dos beneficiados. Para tanto, analisa, de um lado, a evolução da legislação definidora dos critérios de elegibilidade e as “negativas” do benefício aos demandantes da assistência social, processo marcado por avanços e retrocessos na aplicação do direito. De outro, considera os efeitos dessa evolução sobre os gastos sociais e sobre as tendências do debate contemporâneo, no âmbito do campo político. Nesse movimento, destaca o papel decisivo da justiça na garantia dos direitos da cidadania.; This article examines the process of “structural selectivity” from the conception of a basic constitutional right to the provision of social assistance related to Continued Benefit Payments (BPC), and the effectiveness of the management of this need and the determination of the eligibility for the benefits. To do so, it analyzes the evolution of the legislation that defines eligibility criteria and “denials” of the benefit for those requesting social assistance...

Book review: Children’s socio-economic rights, democracy and the courts

Pillay, Anashri
Fonte: London School of Economics and Political Science Publicador: London School of Economics and Political Science
Tipo: Website; NonPeerReviewed Formato: application/pdf
Publicado em 27/03/2013 EN; EN
Relevância na Pesquisa
85.46%
Despite increased academic interest in both children’s rights and socio-economic rights over the last two decades, children’s social and economic rights remain a comparatively neglected area. This is particularly true with regard to the role of the courts in the enforcement of such social rights. Aoife Nolan attempts to remedy this omission, focussing on the circumstances in which the courts can and should give effect to the social and economic rights of children. Anashri Pillay thinks this book is on the course to becoming the ‘go to’ source on the adjudication of children’s socio-economic rights for human rights scholars and practitioners.

Democracy, judicialisation and the emergence of the Supreme Court as a policy-maker in Mexico

Saavedra-Herrera, Camilo
Fonte: London School of Economics and Political Science Thesis Publicador: London School of Economics and Political Science Thesis
Tipo: Thesis; NonPeerReviewed Formato: application/pdf
Publicado em /08/2013 EN
Relevância na Pesquisa
65.49%
In 1994, four days after taking office, Ernesto Zedillo, the last president to govern Mexico emerging from the once hegemonic National Revolutionary Party, promoted a major redesign of the Supreme Court of Justice that substantially expanded its constitutional review powers and reduced its size from 26 to 11 members. The operation of this more compact and powerful body was left in charge of 11 justices nominated by Zedillo. During the period 1917-1994, the Supreme Court adjudicated only 63 constitutional cases of its exclusive jurisdiction. In contrast, since the reform came into force in 1995, it has been the arena in which more than two thousand constitutional cases have been ultimately settled. Why do courts established under authoritarian rule become effective policy-makers as democracy develops? Using Mexico as a case study and drawing on the strategic approach for the study of courts, this thesis argues that the Supreme Court turned into an effective policy-maker as a result of the convergence of three factors: institutional change (from judicial reform), political fragmentation (from democratisation) and an unprecedented internal stability. Judicial reform set a new institutional framework; political fragmentation triggered the use of constitutional review by political actors; and stability enhanced experience within the Court and prompted justices to more proactively engage in policy-making. Through an appealing case study...

A critical analysis of the majority judgment in F v Minister of Safety and Security 2012 1 SA 536 (CC)

Linscott,JA
Fonte: PER: Potchefstroomse Elektroniese Regsblad Publicador: PER: Potchefstroomse Elektroniese Regsblad
Tipo: Artigo de Revista Científica Formato: text/html
Publicado em 01/01/2014 EN
Relevância na Pesquisa
75.4%
The majority judgment of Mogoeng CJ in F v Minister of Safety and Security 2012 1 SA 536 (CC) purports to be a straightforward application of the reasoning of the Constitutional Court in K v Minister of Safety and Security 2005 6 SA 419 (CC), in which the court updated and constitutionalised the "standard test" for vicarious liability in deviation cases originally set out in Minister of Police v Rabie 1986 1 SA 117 (A) by holding that constitutional and other policy norms now play an important role in deciding questions of vicarious liability. However, it is respectfully submitted that a close reading of the majority judgment in F reveals that the judge misconstrues several key concepts related to the doctrine of vicarious liability. In particular, the judge seems to suggest that there are separate and different tests for vicarious liability in instances where an employee has plainly committed a delict in the course and scope of his employment, and where he has to some extent deviated from his employment duties. In fact, there is a single overarching test for vicarious liability - the course and scope rule - but various subsidiary tests are used by the courts to address difficult or borderline cases. It is also questionable whether F truly is a "typical deviation case"...

Yet another call for a greater role for good faith in the South African law of contract: can we banish the law of the jungle, while avoiding the elephant in the room?

Louw,AM
Fonte: PER: Potchefstroomse Elektroniese Regsblad Publicador: PER: Potchefstroomse Elektroniese Regsblad
Tipo: Artigo de Revista Científica Formato: text/html
Publicado em 01/05/2013 EN
Relevância na Pesquisa
65.46%
This article examines the current approach of the South African courts to the role of good faith or bona fides in contracts, as well as the courts' stated reasons for this approach. The article specifically examines how arguments based on good faith have fared in the Constitutional Court to date, and the prospects for law reform to emanate from that court in the near future. The author suggests an understanding of good faith which he believes is in line with the Constitution of the Republic of South Africa, 1996 and argues that in terms of such an understanding of a robust good faith doctrine the legal fraternity or the courts can avoid some of the dangers that the judges of the Supreme Court of Appeal have warned about in this context in recent years. The author shares some concluding thoughts on the pressing need for law reform with respect to the role and presence of good faith in contracts.