Zagrebačka pravna revija, Vol. 3 No. 1, 2014.
Pregledni rad
Comparative Legal Overview of the Principles of Fairness and Diligence
Jadranka Osrečak
; Polaznica poslijediplomskog studija iz trgovačkog prava i prava društava na Pravnom fakultetu u Zagrebu
Sažetak
The principles of fairness and diligence are among the main principles of civil obligations law, going all the way back to Roman law. Their development is closely related to the perception of the principle of fairness, other principles of obligations law, as well as to the Common Law doctrine of equity. This is a legal standard that, in addition to imposing additional obligations on the parties in obligations relations and serving to interpret a contract, may also be applied for the purpose of mitigating strict formalism and achieving the effect of adding flexibility to the legal order so that it can more easily adjust to the speedy development of private law. This always raises the question of at which precise point the division of powers is disrupted by judicial power interfering in legislative power. For this reason, judicial power is not overly keen on applying this principle to mitigate strict formalism and, therefore, there is a tendency to define the legal situations in which this principle should be applied (so-called Fallgruppen). From an analysis of Croatian case law and the Civil Obligations Act, it can be detected that this tendency also exists in Croatian law. Namely, although the obligation to proceed in conformity with the principles of fairness and diligence when concluding and executing a contract is laid out as a general principle, the Civil Obligations Act, in some cases, stresses in particular the need to observe this principle, and this has led to a situation where this principle is more frequently applied in case law in situations where the obligation of its observance is explicitly prescribed. However, case law interprets and applies the principle of diligence as an open legal rule in cases where a decision could lead to an infringement of the principle of fairness. This is also visible in Croatian case law in cases of multiple contracts concerning the alienation of an ownership right, when the subsequent buyer enters into possession of a property (i) or succeeds in registering the ownership right in the land register.
Ključne riječi
contract; diligence; fairness; justice
Hrčak ID:
129514
URI
Datum izdavanja:
16.4.2014.
Posjeta: 8.388 *