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ignorantia juris non excusat [Ignorance of the law does not
Transcript of ignorantia juris non excusat [Ignorance of the law does not
[the burden of proof]
Freedom of contract (
Everything, which is not prohibited, is allowed... BUT BEWARE OF LIMITATIONS
Pacta sunt servanda
[agreements must be kept]
Beware of limitations:
[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!
generally, the presumption of existence of good faith applies
everybody has the right to assume that the other party deals in good faith
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)
Greatest extent of Roman empire (under Trajan)
ius in rem
Interference with "status" rules
Interference with state authority
Force majeure (
Available legal remedies
99 year contracts
Frustration (by operation of foreign law)
Beware of reversal in some circumstances in certain countries:
due care (management)
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!
- 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?
lack of good faith has serious legal consequences
July 3, 2015
Roman Kramařík, JŠK
Transactions at undervalue