ARCHIVE FOR 2018 RUSSIAN
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Июнь 2018
CONTENT
Sergey Budylin Is There a Duty to Negotiate in Good Faith, or The Case about Unlocked Door A Commentary to the Case Walford v. Miles [1992] 1 All ER 453
Traditionally English law has refused to recognise a party’s duty to perform in good faith. The party is
obliged to fulfil the contract — end of story. There are no other good faith obligations like those existing
in civil law systems. Nor has England recognised a duty to negotiate in good faith. This obligation
is believed to be too uncertain to be enforced. Back in 1992 the House of Lords in Walford v. Miles
ruled that a duty to negotiate in good faith (without specifying its content) was unenforceable, which
rule has applied ever since.
Keywords:
England, good faith, inchoate liability, agreement to negotiate
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Kirill Nam History of the Good Faith Principle in Germany from 1900 till 1945 Today, the good faith (Treu und Glauben) principle in the law of Germany is a fundamental one in
practically all legal relations between both equal subjects in private law and individuals in the context
of relations of power and subordination in public law. The knowledge of historical development of this
principle, understanding of social context in which it evolved and of political and economic factors
that influenced it can help us get a better grasp of this new and non-trivial category in Russian law.
The article looks into the theoretical thinking with regard to the good faith principle in the first period
following the adoption of the Bürgerliches Gesetzbuch (the Civil Code of Germany). It then shows
the role of World War I and its aftermath in the development of this principle and how the latter
effloresced to the full in the Weimar Republic. Finally, using the example of the national socialist
period in Germany, the article further demonstrates how the understanding of the good faith principle
can be transformed under the influence of political ideology in a totalitarian state.
Keywords:
good faith principle, Treu und Glauben, Bürgerliches Gesetzbuch, Germany
Natalia Platonova Compensation of Damages Caused by the Filing of a Frivolous Lawsuit: Revisiting the Substantive Significance of Procedural Conduct The article is dedicated to the investigation of the problem of liability for damages caused by the filing
of a frivolous lawsuit. It analyzes the practice of UK courts that elaborated the doctrine of liability for
malicious prosecution. This doctrine was initially used only in the event of unfounded allegations
of criminal misconduct; however, in the case of Willers v. Joyce, the UK Supreme Court extended
liability for malicious prosecution to civil lawsuits. The author reviews the arguments against the
imposition of liability for a frivolous lawsuit that were expressed in the case of Willers v. Joyce and
in the previous practice of UK courts and evaluates them in the context of Russian law. A consistent
analysis of the arguments against recognizing the possibility of compensating for damages caused
by a frivolous lawsuit leads the author to the conclusion that there are no significant obstacles to the
adoption of the doctrine of liability for filing a frivolous lawsuit. This premise, in turn, reflects a more
general idea of the substantive significance of procedural conduct.
Keywords:
causing harm by frivolous lawsuit, liability for procedural conduct, malicious prosecution, substantive significance of procedural conduct
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Dmitry Salmin Revisiting the Conditions for Limiting the Unjust Enrichment Obligation to the Amount of Monetary Enrichment The contemporary literature increasingly argues in favor of implementing the doctrine of loss of enrichment
in Russian law, following the example of foreign jurisdictions; however, no targeted studies dedicated to
this doctrine have been performed until now. This work aims at filling in this gap to a certain extent.
The article arrives at the conclusion that the extension of the scope of obligations arising out of unjust
enrichment within the examined jurisdictions was accompanied by the implementation of the loss
of enrichment defense. The article also contains a systematic review of the elements of the loss of
enrichment defence, as defined in foreign law. In the author’s opinion, the liberal approach to the
conditions of satisfaction of an unjust enrichment lawsuit adopted in Russian law makes the issue of
protecting the interests of a good-faith enrichment debtor under unjust enrichment relevant. However,
the existing mechanisms for such protection are far from perfect.
Keywords:
unjust enrichment, defence of disenrichment
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