Contract Law as Fairness

Klijnsma, Josse

doi:10.1111/raju.12067

Cited by 12 publications

(5 citation statements)

References 41 publications

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“…Em comparação com o neoinstitucionalismo e a análise econômica do direito, a literatura sobre igualitarismo contratual (no sentido recém-explicitado) é muito menos volumosa, embora conte com obras importantes (ACKERMAN, 1971;KRONMAN, 1980;KENNEDY, 1982). Mais recentemente, uma particular concepção de igualitarismo contratual, baseada na teoria da justiça de Rawls (1999Rawls ( [1971), tem sido defendida (KORDANA;TABACHNICK, 2005;SCHEFFLER, 2015;KLIJNSMA, 2015).…”

Section: Teorias Distributivistas Corretivistas E Deontológicasunclassified

Direito Contratual, Justiça Distributiva E Virtudes Cívicas

Zanitelli

2018

Sapere Aude

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O artigo responde a uma crítica de Seana Shiffrin ao direito contratual. Nela, a autora afirma que certa leniência com o inadimplemento contratual leva o direito a divergir da moral respeitante a promessas, o que atenta contra o interesse dos cidadãos em se desenvolverem moralmente e conspira contra uma cultura igualitária. Afirma-se que Shiffrin erra ao supor que leis mais severas forjem cidadãos mais virtuosos, mas que sua crítica tem o mérito de ressaltar a influência do direito sobre as preferências dos cidadãos, ponto negligenciado por teorias do direito contratual associadas à justiça distributiva.

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Section: Teorias Distributivistas Corretivistas E Deontológicasunclassified

Direito Contratual, Justiça Distributiva E Virtudes Cívicas

Zanitelli

2018

Sapere Aude

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“…Justice as fairness has clear normative implications for the institution of contract law (Klijnsma, 2015). The fairness also has become an important basic principle in Indonesian contract law, and the principle in the legal norms of insurance contracts must be in the nature of respecting and guaranteeing legal protection to both parties without any discriminatory treatment, especially when deliberately designed to harm one of the parties.…”

Section: Introductionmentioning

confidence: 99%

Utmost good faith principle in Indonesian insurance law as a legal reason to harm the insured party

Mulhadi

Harianto

2022

Insurance Markets and Companies

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The principle of utmost good faith has been recognized as one of the essential principles in insurance, and its practice in other countries has been fairly applied to both parties. It is suspected that this insurance principle in regulation and its implementation in Indonesia only burdens one unilateral. Therefore, this study aims to prove the allegation that the principle of utmost good faith favors only the insurer and its application in dispute resolution directed at harming the insured party. This study uses a case study approach, with five insurance legal cases in the form of court decisions as purposively selected objects. Qualitative analysis (content analysis) was then carried out to obtain data: data codification, data presentation, and conclusions/verification. The principle of utmost good faith is regulated by the following documents of Indonesian insurance law: Indonesian Commercial Law Code, Act No.7/1992 and Act No.40/2014. The results showed that the utmost good faith principle in several Indonesian insurance regulations is more in favor of insurance companies. The insurance company always utilizes Article 251 of the Indonesian Commercial Law Code or the utmost good faith principle as a shield to commit fraud, and refuses to fulfill its legal liability with the aim of harming the insured. AcknowledgmentsWe thank to the Ministry of Education, Culture, Research and Technology of the Republic of Indonesia for supporting and funding this research until it was completed on time.

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“…For a passage similar to the one reproduced in the text, see Rawls (2001, 53-54). 6 Among those advocating for the broad conception are Kordana and Tabachnick (2005;2006) and Klijnsma (2015). Scheffler (2015) also argues for the broad conception, but denies the existence of more than one meaning for the basic structure in Rawls's writings.…”

Section: Introductionmentioning

confidence: 99%

“…For the purposes of the article, private law encompasses traditional branches of law such as property law, contract law, torts, family and inheritance law.3 See e.g Kordana and Tabachnick (2005),Klijnsma (2015). andScheffler (2015).…”

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confidence: 99%

Rawls and private law

Zanitelli¹

2019

Revista Juris Poiesis

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The paper assesses the place of private law in John Rawls's theory of justice. A considerable part of the literature on that issue tries to ascertain whether private law belongs to the basic structure of society, the set of major social institutions to which Rawls's principles of justice apply. Here it is argued that more important than determining the basic structure's scope is to clarify the role that private law, once conceived as part of that structure, plays in Rawlsian justice. Such role is, in some sense, secondary, which explains why Rawls sometimes suggests, against the most usual broad definition of basic structure, that private law is alien to his principles of justice.

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Contract Law as Fairness

Cited by 12 publications

References 41 publications

Direito Contratual, Justiça Distributiva E Virtudes Cívicas

Direito Contratual, Justiça Distributiva E Virtudes Cívicas

Utmost good faith principle in Indonesian insurance law as a legal reason to harm the insured party

Rawls and private law

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