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The change of circumstances and its impact upon the duration of obligations
Kašpar, Jakub ; Elischer, David (advisor) ; Dvořák, Jan (referee)
Change of circumstances and its effect on a duration of an obligation In particular cases, an unexpected supervening event may substantially affect original equilibrium of a contract, or make the performance for one of the parties much more burdensome, so that it would be greatly unjust to hold the parties to their obligations. In such situations, when the performance of one of the parties has become much more onerous, a conflict may rise between the classical principles of contractual freedom, sanctity of the contract, certainty of the law and pacta sunt servanda, on the one hand, and principle of contractual fairness, equity and good faith on the other. Pacta sunt servanda, principle accepted by most of developed legal systems, determines that obligations which are validly concluded, must be fulfilled, parties are bound by their agreement. In case of change of circumstances, this may lead to situations, when it would be unjust to hold the debtor to the obligation. This makes the topic of the thesis very controversial and polemic. The topic of this thesis is a change of circumstances and its impact on an existing obligation. The aim of the thesis is to focus and describe relevant legal doctrines, institutes, and possible solutions of the problem. Another purpose is to analyze different legislations and...
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Testamentary succession
Pospíchal, Jiří ; Dvořák, Jan (advisor) ; Elischer, David (referee)
The law of succession has been changed a lot by enacting the new Civil Code in many ways but its main purpose is still to regulate the succession of inheritance from testator to heirs and related problems. This thesis makes an analysis of testate succession, which is one of the three possibilities of inheritance succession. The second is an intestate succession, which applies in the situation, when testator did not wrote last will. The last possibility is a contract between testator and heirs distributing inheritance between the latter. This contract has bigger legal force than last will and intestate succession is used, if there is none of them. The thesis consists of five chapters. Chapter One provides a brief introduction to history of the law of succession in our territory and presents the purpose of the thesis. Chapter Two deals with the questions common to the whole law of succession, it is divided in three subchapters, which talk about the main principles of the law of succession and legal rules regulating it and also about preconditions of succession, which include death of testator, subjective law of succession, existence of inheritance and legal ground to the succession. It also names possibility of heirs to reject inheritance. Chapter Three is concerned with the main theme of the thesis, which is...
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Loss of chance theory and possibility of its application in the Czech Law
Korejzová, Jitka ; Dvořák, Jan (advisor) ; Elischer, David (referee)
The aim of this work was to introduce the loss of chance theory, to research its theoretical grounds and to find out whether it would be possible to apply the theory in the Czech law system and whether such application would be beneficial. Since the theory was first applied in common law system, I have decided to use some cases from the past and show the way the theory evolved and how the courts justified its application. Reflecting on cases from various jurisdictions I tried to point out the variety of possibilities of its application not only in health care law, but also in other areas of law. I have concentrated my attention mainly on argumentation of courts - not only those, who assented, but also to those refused the concept. The theory is related to liability for damage and issue of proving the casual link, which are both subjects of research of other theories as well - e.g. theory of adequate cause, proximate cause theory and mainly proportional liability issue, which shares some common aspects with loss of chance theory. These theories offer help with evidence in complicated cases, where classical approach to issues of causality would lead to an ineffective and possibly unjust solution. In international context it is interesting to learn how the European Court of Justice applies the theory....
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Assignment od Contract
Zach, Tomáš ; Elischer, David (advisor) ; Dvořák, Jan (referee)
Assignment of Contract The purpose of this master's thesis is to analyze the assignability of contracts under Czech law in the light of comparative, historical and theoretical aspects of this phenomenon. Relevance of this subject matter was recently highlighted by adoption of the new Czech Civil Code, which expressly authorizes this operation but leaves important issues open to interpretation. The thesis is composed of an introduction, two main parts and a conclusion. First two chapters of the first part deal with historical development of this legal concept. In the roman law, a contractual obligation was conceived as a "bond of law" (iuris vinculum), which implied a strictly personal nature of this relationship. However, this view started to change as soon as the roman economy shifted from agriculture towards trade and business, resulting in assignability of a contractual right. In the codification era of the 19th century, the concept of a delegation of contractual duty came in, establishing a theoretical foundation for the assignment of contract as such. The third chapter moves our attention to the modern times, focusing primarily on the assignement of contract in various European countries, United States and Japan. The emphasis is put on the theoretical discussions this legal concept has seen in...
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Superficies solo cedit
Gabrielová, Andrea ; Dvořák, Jan (advisor) ; Elischer, David (referee)
SUPERFICIES SOLO CEDIT English Abstract Andrea Gabrielová The topic of my master thesis is represented by an ancient roman principle called superficies solo cedit. This principle is gowerning the ownership of the land and is closely linked to the legal institutes as component parts, immovables, the right of superficies.. According to this principle, buldings and plants form part of the main legal object, which is land the superficies solo cedit principle leads us to the ancient Rome, which has been giving complex legal base to the current continental system of law untill nowadays. Therefore I dedicate my first chapter to the origin of the principle in roman law. Second chapter is dedicated to the ABGB Code, which is basicly inspired by roman law and as itself is the main source of the new Civil Code Nr. 89/2012 Sb. New civil code is the core of this thesis. Above all because it reestablished the superficies solo cedit principle and after many years brought it to life. Reestablishment of the principle has uncountable consequences not only in the area of private law. The most important consequence brought to the frame of private law is the unification of the legal régime of constructions and land.
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The issues of marriage divorce and its consequences
Němeček, Eduard ; Dvořák, Jan (advisor) ; Elischer, David (referee)
Mr. Eduard Němeček, MD Divorce issue and its consequences Diploma Thesis 5. Summary: This work proposes a closer look at the divorce-related topics with consequential impacts both on financial situation of divorced spouses and destinies of minor children as resulting from divorced marriages in Czech Republic. Till date, this issue has been solved in different ways at both district and regional courts. In our republic, a more unifying element is represented by decisions of the Supreme and Constitutional Courts. This is a very serious social phenomenon which, according to statistics affects a large number of parents, children, but also childless partners. Yet from ancient times this phenomenon is known to be socially undesirable being almost entirely rejected by the Catholic Church in its canon law. The increase in divorces has resulted namely from the advancement procedure of society. It is a societal phenomenon known to occur irrelatively of the states and political systems, from the totalitarian regimes through those autocratic, up to highly democratic systems of developed countries worldwide. During the creation of this work, up to 40% of marriages have been critically monitored as expected to be ended in divorce. It's a long-term social phenomenon that surpassed all political systems from the...
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Security interest in relation to insolvency proceedings
Novopacký, Lukáš ; Dvořák, Jan (advisor) ; Elischer, David (referee)
The thesis titled `Security interest in relation to insolvency proceedings' aims to describe the legal institute of lien through its manifestation in insolvency proceedings. It is built on the assumption that the fundamental value of securing a payment of a debt using lien manifests primarily in a scenario when the debtor becomes insolvent and the insolvency proceedings are initiated. Out of all the methods of resolving insolvency present in the Czech legal system this thesis only deals with bankruptcy and it focuses on the lien granted over real estate. Apart from the Introduction and the Conclusion, the thesis is divided into 4 chapters. The first chapter aims to give a general introduction into the law regarding security interests. The second chapter is dedicated to the fundamental principles of law relating to liens outside of the insolvency proceedings. It describes process of granting of a lien and its purpose. The third, essential chapter deals with the execution of a lien in the insolvency proceedings resolving bankruptcy. The main focus is put on the legal position of lienor in the bankruptcy proceedings. The fourh, final chapter presents statistics dealing with insolvency proceedings recovery rate in the Czech republic during the period of 2008-2012.
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Autonomy of will in private law
Schubertová, Zuzana ; Dvořák, Jan (advisor) ; Elischer, David (referee)
68 Abstract The principle of autonomy of will is a fundamental principle of private law. It is impossible to imagine the functioning of private law without it. The principle is primarily based on the principles of equality and freedom, the key principles on which the foundations of a democratic legal system and free society are built. The aim of my thesis is to define the autonomy of will, compare the principle of autonomy of will with other fundamental doctrines and principles from which it arises and/or principles which are closely related to. I believe that most of the legal relationships based on private law are founded on the principle of autonomy of will, therefore, I decided to describe some of these institutes in more detail in my dissertation as well. The thesis is divided into a general part and a specific part. In the general part I deal predominantly with the inclusion of the principle of autonomy of will into the principles of private law. This part also contains some theoretical concepts and is closely linked to constitutional law, the Bill of Fundamental Rights and Freedoms and the principles on which the Civil Code is built. I further deal with the interpretation of certain terms, then the principle of autonomy of will itself and how it is perceived by several authors. In addition to that, I...
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Intestate Succession.
Kučerová, Eva ; Dvořák, Jan (advisor) ; Elischer, David (referee)
Intestate Succession Inheritance law is a very important part of civil law, because it ensures transfer of rights and obligations of the deceased to his successors and to preserve the values for future generations. Our inheritance law is characterized by its essential feature is the influence of the state in probate proceedings through the judicial commissioner (notary). This thesis focuses on the regulation of intestate succession in our legal system and in particular to the regulation contained in the Civil Code, 40/1964 Sb. and regulation in the new Civil Code, 89/2012 Sb. I'm trying to refer the changes that with the new Civil Code in our law occur and the possible positive or negative consequences of these changes. My work consists of four main parts, which are further divided. In the first part of my work I try to show to preconditions that are needed to make the inheritance ever happen. These preconditions are the death of a natural person, the existence of heritage, capacity of heir or legal reason inheritance (inheritance titles) and finally rejection heritage. Individual preconditions are divided into chapters and there is every precondition described in more detail. In the second part of my work is contained regulation of inheritance law now effective, thus regulation in the Civil Code, 40/1964...
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Non-material claims in the case of harm to health
Budková, Ilona ; Elischer, David (advisor) ; Dvořák, Jan (referee)
This diploma thesis deals with the personal injury in the Czech legal order according to the current legislation in the current Civil Code and in the new Civil Code. The work is divided into six chapters. The first chapter provides a basic introduction to the legal liability. The second chapter gives an interpretation to each of the assumptions of liability and describes some of the changes that the new Civil Code brings to these legal institutions. The third chapter discusses some general institutes with damages related, as is the way and the extent of damages, limitation of the claims for the compensation with regard to the new civil code. The fourth chapter is devoted to each of the non-pecuniary claims for damage to health and life, which can be found in the Civil Code, which include pains and suffering, aggravation of social position, compensation after the death of the close person and the satisfaction provided in the case of the intervention in the right to the protection of the personality. The subject of this chapter is also the issue of compensation for personal injury and determining the amount of compensation. The fifth chapter provides interpretation of each immaterial claims according to the new Civil Code. The sixth chapter summarizes the basic changes, that the new Civil Code brings...
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