Unidroit and Al-Majalla Term Paper

Pages: 9 (2252 words)  ·  Bibliography Sources: 2  ·  File: .docx  ·  Level: Master's  ·  Topic: Economics

ARTICLE 6.1.12

(Imputation of payments)

When a debtor owes multiple debts to a creditor, at the time of payment he/she may stipulate to which debt a payment applies. In general, payments are applied to expenses, interest, and principal-in that respective order. (Art. 6.1.12(1)). If a debtor or obligor has not stipulated where the payment ought to be applied the creditor or obigee may decide. On the imputation of payments the Principles give creditors a lot of flexibility. If neither subsections 1 nor 2 apply, creditors may apply payment to obligations due first through obligations incurred first. (Art. 16.1.12(3)).

In provision 698 the Al-Majallah states that a debt incurred in silver must be paid in silver. This suggests a degree of symmetry to the nature of debts being paid, that which is incurred first is discharged first and in the form in which it was incurred, unless labor is involved in the transaction where the debt is incurred.

ARTICLE 6.1.13

(Imputation of non-monetary obligations)

If the obligations cannot be discharged through financial remuneration, then the principles hold that Article 6.1.12 must be adapted before it can be applied to non-monetary obligations. The principles give an example of delivery of cement to illustrate what an adaptation would look like. In this instance company A is deliver multiple order of cement to company B. The comments suggest that when the obligation is a delivery, the obligor is required to stipulate which specific order of delivery it should fulfill.

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Though the Al-Majalla does not include an equivalent provision, there is nothing in the text to suggest that this would be a prohibited solution. Flexibility and freedom to contract seem to be large overriding principles which would apply here to allow the parties to find alternative means of discharging their financial obligations. In subsection 2 of Provision 698 the Codes make it clear that even if the transaction occurred in part in goods or services when obligations need to be discharged the monetary value of the goods and services can be used to full obligations.

Term Paper on Unidroit & Al-Majalla in a Assignment

ARTICLE 6.1.14

(Application for public permission)

With respect to gaining clearance from government regulatory agencies when performing, the Principles hold that if the laws of the State are silent on who should gain permits etc., the party located in the state of business shall obtain the necessary permits. (Art. 6.1.14(a)) If on the other hand, both parties are located in the state of business, the expense and efforts of gaining permission fall on the party whose performance necessitates the permit. (Art. 6.1.14(b)).

In the Al-Majalla, in order for a sale to even occur the nature of the thing to be contracted around must already be complete. In Provisions 197-202, the authors state that the contract is void unless the item being contracted around is in existence, is deliverable, its state and description are known entirely to the parties etc. This would suggest ambiguities and the hinging of an existing agreement on government or the like would make such an agreement invalid. Under the Al-Majalla that would be a necessary precondition to contracting rather than a precondition of fulfillment.

ARTICLE 6.1.15

(Procedure in applying for permission)

The Principles hold that the application to obtain permission and the necessary costs association with the process proceed without delay, additionally the outcome of the application must be communicated to the other party with all due haste. (Art. 6.1.15(1-2)).

Based on the analysis of Provisions 197-202, which require goods and services to be executable before they can be contracted around, the obligation to apply for permission and ensure that the service or good being for sale is free of encumbrances would fall upon he or she who was providing the service or produce.

ARTICLE 6.1.16

(Permission neither granted nor refused)

If during the application for government approval, the obligated party has taken all reasonable steps required, after an agreed upon period or within a reasonable amount of time, each party is entitled to terminate the contract. (Art. 6.1.16(1)). Note that if the contract is still materially sound and can be upheld even with the refusal of the responsible government agency to grant permission, than the contract is still enforceable and the parties may not cancel without being in breach. (Art. 6.1.16(2)).

There is no equivalent provision in the Al-Majalla. However, it is important to note that contracts would likely never reach this stage of recession, because they would not initially have come into valid existence without the prior approval of the… [END OF PREVIEW] . . . READ MORE

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