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ignorantia juris non excusat [Ignorance of the law does not

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Roman Kramarik

on 3 July 2015

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Transcript of ignorantia juris non excusat [Ignorance of the law does not

Onus probandi
[the burden of proof]
Freedom of contract (
laissez faire
)
Everything, which is not prohibited, is allowed... BUT BEWARE OF LIMITATIONS
Pacta sunt servanda
[agreements must be kept]
Beware of limitations:
Caveat emptror
[let the buyer beware]
semper necessitas probandi incumbit ei qui agit
[the necessity of proof always lies with the person who lays charges]

Vigilantibus iura scripta sunt
[the laws serve the vigilant]
Timely use and protection of rights is essential in commercial transactions, e.g.:
statute of limitations
timely complaints in contracts for work
priority of registrations
Famous, but not universal rule!
Implied warranties (by law): different scope in different circumstances in different countries! Do not assume anything!
bona fides
[good faith]
generally, the presumption of existence of good faith applies

everybody has the right to assume that the other party deals in good faith
Contra proferentem
rule and construction of contracts
[interpretation against the draftsman]
[Not only] contracts are sometimes unclear; how to deal with discrepancies in their construction?
ignorantia juris non excusat
[ignorance of the law does not excuse]

survival guide to
basic legal principles
in business transactions

www.juriglobe.ca (University of Ottawa)
www.wikipedia.org
Greatest extent of Roman empire (under Trajan)
Antitrust law
Insolvency
Public policy
Consideration
Causa
Contractual penalties
Employment
Regulated industries
Clarity (specificity)
Interference with
ius in rem
Interference with "status" rules
Interference with state authority
Force majeure (
vis major
)
Moderation
Exoneration
Re-classification
Available legal remedies
99 year contracts
Usury
Consumer protection
Frustration (by operation of foreign law)
Beware of reversal in some circumstances in certain countries:
employment (discrimination)
due care (management)
legal assumptions
Note: different standards of evidence in different countries and different circumstances
Test of the "reasonable recipient of the communication"
Context and communication between parties
Behavior of the parties
Typical meaning in the relevant industry
Choice of law
One contract - one governing law
Which law to apply for cross-border transactions?

One of the parties' law? New York? English? Swiss?
Choice of jurisdiction
Courts or arbitration?
ENFORCEABILITY is key!
Secondary considerations:
- costs
- understanding of the industry
- procedural rules
- evidence rules
- availability of temporary injunctions
- professionalism of the body
Language and form of contracts
Is local language a condition to valid contract?
Does the party have to understand the language in which it signs the contract?
Can a contract be bi-lingual?
Different forms: recorded telephone conversation - email - exchange of letters - notarial deed - deed
Contractual warranties / representations of the seller: what if the purchaser knows that they are not true?

Due diligence

Disclosure (letters)
lack of good faith has serious legal consequences
July 3, 2015
Roman Kramařík, JŠK

Transactions at undervalue
Full transcript