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Damage caused by a defective product - Analysis of the European union regulation in the light of its Czech and French transposition
Mocek, Ondřej ; Elischer, David (advisor) ; Dvořák, Jan (referee)
This diploma thesis quite thoroughly deals with - at present a very topical - theme "liability for damage caused by a defective product"; thus, with an obligation to compensate for the damage caused by the defective product to its user (or third party), generally imposed on the person who is designated as the "producer" of the product, originally based on the Council Directive of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (85/374/EEC) (hereinafter 'Directive 85/374/EEC'). However, this work is not limited only to the (thorough) description of the currently valid and effective Czech implementing legislation. The thesis also compares the Czech legislation with the French implementing regulation, which is of a significantly higher legislative quality and much more faithful to its Union model. In fact, it was specifically France which shaped the final form of this responsibility regime, since it was the French transposition, and the French decision-making (judicial) practice, which was most often the subject of the Court of Justice's, as it ruled on the interpretation of the individual provisions and principles in the text of the previously mentioned directive contained. Nevertheless, France,...
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Pre-Emptiv Right in the Civil Code
Harapát, Jakub ; Elischer, David (advisor) ; Dvořák, Jan (referee)
Pre-Emptive Right in the Civil Code Abstract This thesis deals with the institute of pre-emptive right both in theoretical terms and in valid legislation. The main objective of this work is to describe the institute of pre-emptive right in such a way that it is possible to draw attention to the issues which arise in connection with this institute and to outline possible solutions where appropriate. However, in order to describe the practical aspects of the pre-emptive right, it is also necessary to describe the pre-emptive right in theoretical level. Following the objectives set, the work is divided into five chapters. The first chapter of the thesis deals with the theory of pre-emptive right where space is left to some theoretical constructions, with the theory defining five possible constructions in particular. The work also describes possible motives leading to the negotiation of the pre-emptive right, which can be divided into motives of the defence and motives leading to the acquisition. Furthermore, the elements of the pre-emptive right and its division are described. The second chapter serves as the theoretical basis for the next chapters. The second chapter deals with the origin of the concerned institute and its historical development in civil codes, and part of this chapter discusses other pre-...
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Causation in the European Context
Hrycejová, Markéta ; Elischer, David (advisor) ; Dvořák, Jan (referee)
Causation in the European Context Abstract The aim of this thesis is to provide an insight into the issue of causal link legislation in the European context. The author does not limit herself to an applicable Czech legislation, but also to the regulation pursuant to Principles of European Tort Law (PETL). An important part of this thesis is devoted to the relevant case law concerning causal link. The first part of this thesis contains an interpretation of the concept of causality in the context of non-legal sciences. Furthermore, the author generally deals with liability for damage and each of its presumptions. The second chapter analyses the legislation pursuant to the Civil Code, respectively the Code of Civil Procedure. It also includes a detailed analysis of the Czech courts' case law and recourse into the loss of chance doctrine. The third chapter deals with legislation under PETL, the fourth chapter provides an insight into the concept of causality in selected European countries (England, France and Germany). Finally, the author compares the legislative differences between the "European" and Czech regulation and she also deals with the issue of legislation de lege ferenda. The focus of this thesis is mainly the analysis of case law related to the causal link matter, since the relevant decision-making...
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Direct representation in civil law - general remarks
Kříž, Josef ; Elischer, David (advisor) ; Thöndel, Alexandr (referee)
1 DIRECT REPRESENTATION IN CIVIL LAW - GENERAL REMARKS Abstract The subject of this theses are general remarks to direct representation as a historical and fundamental institute of private (substantive) law. The thesis is therefore devoted to the interpretation of general provisions of the Civil Code concerning direct representation (contained in Sections 436 to 440). These fundamental issues include, in particular, the nature of the direct representation, as an institute, and the authority to represent, as the power of one person to act for another. Furthermore, the author of this work concerns the distinction between different types of direct representation, the distinction between legal relationship between agent and principal concerning representation and the other potential legal relationship that may exist between those two, and the requirement to prove authority to represent to a third party. An extensive part of the thesis is devoted to the scope of the agent's authority to represent the principal and the consequences of acting without a such authority. This part includes issues related to acting with a conflict of interests, the personal acting of the agent and requirement of collective action of several agents. The aim of this thesis is to interpret relevant legal provisions consistently and at...
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Rights from defective performance in consumer contracts
Nováková, Kristýna ; Elischer, David (advisor) ; Dvořák, Jan (referee)
1 Rights from defective performance in consumer contracts Abstract This diploma thesis deals with rights from defective performance in consumer contracts, with both the general regulation of the rights of defective performance in the contract between the entrepreneur and the consumer, as well as the specific rights of defective performance in this contract in the case of the purchase contract and contract for work. The thesis contains definitions of the basic subjects of consumer law, as well as legal terms, which are often associated with the application of legal rules of consumer law. Such terms are defective performance, as well as individual types of defects, or even the disputed warranty under the law or voluntary contractual guarantees provided by the seller. This thesis deals in detail with the rights of defective performance, which belongs to the buyer in case of conclusion of the purchase contract. A special focus is given to the special subsection of civil code on the sale of goods in the shop. The part of this thesis is also the definition of the term of complaint, the exercise of the right from defective performance in terms of its content, manner or form, or the work also represents the persons entitled or compulsory to complain. The thesis also solves problems with proper application of the...
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Share pledge in a corporation
Pašek, Dominik ; Elischer, David (advisor) ; Frinta, Ondřej (referee)
Share pledge in a corporation Abstract The thesis deals with the share pledge in a corporation. In the beginning I analyse the meaning and purpose of the lien. The following section deals with pledgeability of a share in a corporation. Firstly, I discuss the pledgeability of a share as an intangible movable asset that represents a set of rights and obligations arising from participation in a corporation and, further, the share pledge in each type of corporation, including the association and unit owners' association. The different rules for shares depend on whether they are in a form of a security or not. Subsequently, I deal with the formation of a lien, while focusing on the various titles from which the lien can arise and the question of the moment of creation of the lien. I analyse in detail the creation of a consensual lien, i.e. on the basis of a pledge contract. This is followed by the creation of an ex actu lien on the basis of a court's approval of an agreement of the heirs to divide the estate, and on the basis of a tax administrator's decision pursuant to the Tax Code, where I also provide practical information communicated by the General Financial Directorate. Then I analyse the ex lege lien, and I deduce several options where it could theoretically arise. In the part of the work that I consider...
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Donation mortis causa
Drachovský, Ondřej ; Elischer, David (advisor) ; Dvořák, Jan (referee)
Donation mortis causa Abstract Inheritance law, in its broader concept donation mortis causa falls, is being referred to as the hearth of civil law since it interconnects both proprietary (contractual) and personal (family) aspects. Czech civil law recodification meant significant change of inheritance law legislation, including renaissance of wide range of legal institutions including donation mortis causa. This thesis aims to comprehensively and critically assess legal regulation of donation mortis causa in the Czech Civil Code. The emphasis is primarily put on problematic aspects of this regulation. The submitted thesis endeavours to find answer to the question of practical usability of the donation mortis causa. Its author attempts to provide a reasonable interpretation of provisions of lex lata concerning the subject matter of this thesis. The solution of the most serious legislative problems is proposed within the summary of the submitted text. As for the structure, this diploma thesis is divided into six parts, with each part being split in chapters and sub-chapters. The first part depicts the genesis and further evolution of the legal institution of donation mortis causa. The second part defines the terms fundamental for the thesis. This part also includes the answer to the ancient question, how to...
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Contract for a work
Korefová, Alžběta ; Elischer, David (referee)
The dissertation deals with some areas of the work contract (the scope of the work, the price of the work and the payment terms and the execution of the work). The dissertation consists of two unevenly large parts. The general part briefly introduces the concept of commitment and contract, describes in general the contract for a work including a brief historical and foreign excursion and generalizes the national legislation of contract for a work according to the Civil Code, focusing on its character, form, typical features and essentials. The last subchapter differentiates the contract for a work from some similar contractual types. A special part of this dissertation is divided into four chapters. The first chapter approximates the concepts of "mandatory" and "non-mandatory" provisions as the types of legal nature of a legal rule. The next chapter deals with contract for a work focused on construction work and examines the legal nature of the special provisions. The following and most extensive chapter consists of three subchapters (price for a work, the scope of a work and the performance of a work and payment terms) and deals in detail with both the legal regulation of the part and the legal nature of provisions, as well as the reflection of the parties' interests in the area of the contract...
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Status of creditors of the testator in the estate proceedings
Peřinková, Petra ; Elischer, David (advisor) ; Dvořák, Jan (referee)
The diploma thesis deals with the topic of the status of creditors of the testator in the estate proceedings, which has undergone a major change with the modification of the current Civil Code. Adjustment of inheritance law and, with it, the position of creditors in the estate proceedings during the period of socialism was dismal, so this change was needed. The ability of creditor to protect his debts in the case of the debtor's death has been extended by many new and old-age institutions. Together with that, the responsibility of the heirs for the testator's debts was extended. The diploma thesis deals with the opinions of the professional public, which are often very different or even contradictory. Part of this work is an analysis of these opinions and searching for a suitable starting point. The thesis is divided into six chapters. The first deals with inheritance law as an absolute property right, that is, the law that works erga omnes. It also defines the conceptual difference between inheritance and estate introduced into civil law with the effect of the Civil Code. The second chapter deals with the genesis of the transition of testator's debts to the heirs and the position of creditors in the past. The historical chapter summarizes both substantive and procedural law, without which the...
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Security transfer of ownership
Bodláková, Justina ; Dvořák, Jan (advisor) ; Elischer, David (referee)
Security transfer of ownership Abstract The subject matter of this thesis is the security transfer of ownership as a means of debt security in the Czech Republic. Within five chapters, the thesis analyses the law applicable to the security transfer of ownership while considering the difficulties arising out of its interpretation that were identified by courts, experts and legal practice. The main purpose is to present the difficulties related to the use and interpretation of the security transfer of ownership in a critical manner. The first chapter aims to put the security transfer of title in the context of the law of obligations, to place it among other types of debt securities and to capture its substance. Subsequently, the thesis describes the roots of this type of debt security in Roman law and the evolution of the security transfer of title in the Czech territory. There is a comparative mention of the use of the security transfer of title in Germany and France at the end of the first chapter. The second chapter analyses the security transfer of title under Act No. 40/1964 Coll., the Civil Code and identifies problems related to the imperfect legislation. This chapter also analyses the case law that had fundamental impact on the interpretation of this debt security and that were reflected in the...
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