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European Journal of Law Reform

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Issue 3, 2021 Expand all abstracts

    This article refers to the problem of the Roman Catholic Church’s liability for the damages caused by sexual abuse of children by priests. The author points to the base of liability – the respondeat superior principle and analyses the problem of the ‘scope of entrusted duties’. The major problem arises from the fact that sexual abuse can never be the subject of any legally effective contract or the activities entrusted by the superior, but it happens only ‘when the opportunity arises’ – during the performance of actual activities covered by scope of the contract, for example, caring for minors, their education, treatment or spiritual formation. However, the problem is wider because sexual crimes can also occur in non-Catholic churches and other religious institutions, as well as all those places and institutions whose employees enter into special trust relationships with minors or adult people with special needs (for sick or disabled). This article refers to the experiences from various countries and presents two methods of its possible interpretation of the concept of the ‘scope of entrusted duties’ – strict and liberal, as well as the ‘enhanced risk theory’. The author also proposes her own method of solving the problem.


Anna Wilk
Dr. Anna Wilk, WSB University, Dąbrowa Górnicza, Poland.
Article

Sustainability in Global Supply Chains Under the CISG

Keywords CISG, sustainability, supply chains, UN Global Compact, Codes of Conduct, conformity of the goods
Authors Ingeborg Schwenzer and Edgardo Muñoz
AbstractAuthor's information

    In this article, the authors assert that the United Nations Convention for the International Sale of Goods (CISG) can contribute to tackling gaps in statutory legislation and defective business conduct that have been associated with unsustainable trade in Global Supply Chains (GSCs). The authors provide evidence that the CISG contains rules enabling a general legal framework for establishing uniform sustainable standards for goods concerning suppliers, sellers and buyers located in different countries. For instance, the CISG provisions on contract formation ease the incorporation of joint codes of conduct for sustainable trade in GSCs. In addition, the contracting parties’ circumstances and current trade usages are now more relevant to determine what constitutes conformity of the goods under the contract and the default warranties in Article 35 CISG. On the level of remedies, the authors show that best-efforts provisions, possibly included in a code of conduct or inferred from standards applicable to the goods, may redefine the notion of impediment in Article 79 CISG, which could lead to exoneration of liability for the seller. They also demonstrate why fundamental breach and the calculation of damages are at the centre of the discussion regarding the remedies for breach of an obligation to deliver sustainable goods.


Ingeborg Schwenzer
Ingeborg Schwenzer is Dean of the Swiss International Law School (SiLS), Professor emerita of Private Law at the University of Basel (Switzerland) and past Chair of the CISG Advisory Council. Dr. iur. (Freiburg i.Br.), LLM (UC Berkeley).

Edgardo Muñoz
Edgardo Muñoz is Professor of Law, Universidad Panamericana. Facultad de Derecho. Calzada Álvaro del Portillo 49, Zapopan, Jalisco, 45010, México. PhD (Basel), LLM (UC Berkeley), LLM (Liverpool), LLB (UIA Mexico), DEUF (Lyon). This research has been funded by Universidad Panamericana through the grant ‘Fomento a la Investigación UP 2020’, under project code UP-CI-2020-GDL-04-DER.
Article

Legal Tradition and Human Rights

A Quantitative Comparative Analysis of Developing Countries

Keywords comparative law, comparative constitutional analysis, human rights, legal traditions, quantitative constitutional analysis, economic rights, social and family rights, civil and political rights
Authors Dhanraj R. Singh
AbstractAuthor's information

    This analysis examines the relationship between legal tradition and constitutional human rights. It experiments with a quantitative comparative methodology to compare economic rights, social and family rights, and civil and political rights between countries with common law, civil law and mixed law legal traditions. The results show that developing countries with a civil law legal tradition provide more constitutional human rights than their counterparts with a common law legal tradition. Although preliminary and imperfect, the results challenge the notion of superiority of the common law legal tradition and human rights. The quantitative comparative framework used offers a new methodological frontier for comparative constitutional law researchers to examine relationships between legal traditions.


Dhanraj R. Singh
Dhanraj R. Singh is a graduate student at the Institute of Advanced Legal Studies, University of London.
Article

Legislative Effectiveness From a Legislative Drafter’s Perspective

Analysing the Transgender Persons (Protection of Rights) Act, 2019

Keywords Effectiveness Test, legislative quality, drafting process, Transgender persons (Protection of Rights) Act, 2019
Authors Devika Gulati
AbstractAuthor's information

    This article discusses the effectiveness of Transgender persons (Protection of Rights) Act, 2019 and tests the legislation against Dr. Maria Mousmouti’s Effectiveness Test. The author first attempts to trace the real purpose of the Act in terms of specific and broad purposes, and the micro, meso and macro goals. Secondly, the author examines the content of the Act in terms of the legislative techniques used, compliance and enforcement mechanism, and legislative communication. Thirdly, the author studies the context of the Act in terms of its coherence, accessibility and the choice of superstructure.
    Finally, the author checks the Act against the element of result where she examines the monitoring, review and evaluation clauses of the legislation, and the mechanism to collect and assess the legislative results.


Devika Gulati
Devika Gulati is a former Legal Research Associate at the Legislative Department, Ministry of Law and Justice, Government of India. She holds an LLM in Drafting Legislation, Regulation, and Policy from University of London (IALS) The views expressed in this article are her own and do not reflect those of any organization.