Danish Business Law an educational textbook

Transkript

1 Bent Iversen Lars Lindencrone Petersen Danish Business Law an educational textbook DJØF Publishing

2 Danish Business Law

3 Bent Iversen & Lars Lindencrone Petersen Danish Business Law DJØF Publishing Copenhagen 2012

4 Bent Iversen & Lars Lindencrone Petersen K Danish Business Law 5 th edtion 2012 by DJØF Publishing Jurist- og Økonomforbundets Forlag All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means electronic, mechanical, photocopying, recording or otherwise without the prior written permission of the Publisher. Cover: Bo Helsted Print: Narayana Press, Gylling Binding: Jysk Bogbind, Holstebro Printed in Denmark 2012 ISBN Published with support from Sold and distributed in Scandinavia by: DJØF Publishing Copenhagen, Denmark forlag@djoef.dk Sold and distributed in North America by: International Specialized Book Services (ISBS) Portland, USA orders@isbs.com Sold in all other countries by: The Oxford Publicity Partnership Ltd Towcester, UK djof@oppuk.co.uk Distributed in all other countries by: Marston Book Services Abingdon, Oxon, UK trade.orders@marston.co.uk

5 Contents Contents Preface Chapter 1. Introduction by Bent Iversen 1. Business law as a branch of law The concept of legal rule General substantive content The legal system Various types of legal rule Introduction Obligation rules and competence rules Written and unwritten law The hierarchy of rules Non-mandatory and mandatory rules Precise and imprecise rules Sources of law and law source factors The legal decision Chapter 2. National source of law factors by Bent Iversen 1. Introduction The Constitution Legislation The statutory process and the importance of legislation as a source of law Reference places Travaux preparatoires Ministerial orders and other statutory instruments Origin and importance as a source of law Reference places Case law Origin and importance as a source of law Reference places

6 6. Other forms of unwritten practice Legal customs and usage Codes and practices of specific lines of trade etc Administrative practice Practice from private dispute resolution boards Ombudsman s practice The circumstances of the case General on the concept of circumstances of the case The possible importance of law and economics Legislative interpretation The need to interpret legislation and the basis of interpretation Aids to interpretation Introduction Linguistic analysis The importance of travaux preparatoires The object of a legislative measure When statutory provisions are contradictory Various types of interpretation results Introduction Narrow interpretation Wide interpretation Contrary inference Chapter 3. EU law and other international source of law factors by Bent Iversen 1. The EU law. Nature of legal basis Some fundamental EU law principles The central EU institutions and their competence The Community institutions: General The European Council The Council of the European Union The European Commission The European Parliament The European Court of Justice EU law as a source of law factor Introduction Written sources The Treaties Regulations

7 Directives Decisions Recommendations and opinions Other types The hierarchy of rules. The language Unwritten sources Decisions by the European Court of Justice Other unwritten source of law factors Interpretation of EU law Reference places for EU law The supremacy of Community law and direct effect The concepts of direct applicability and direct effect Which EU rules are directly applicable? Which parts of Community law have direct effects? Supremacy of EU law The duty to apply EU interpretational practice to national law interpretation Co-operation outside the EU scope Other international source of law factors Introduction Ordinary public international law Subject-matter and nature of ordinary public international law The incorporation of public international rules in Danish law Source of law importance of non-incorporated public international law Other conflicts between public international law and national law Interpretation of rules of a public international law background International customs Other international materials Foreign court decisions Nordic legislative co-operation Reference places for international source of law factors

8 Chapter 4. Survey of the Danish court system by Bent Iversen 1. Introduction Organisation of the courts Procedure in civil cases Parties and their claims Procedural principles The question of venue Procedural steps in first instance cases Appeals Legal assistance and free legal aid Arbitration Complaints boards hearings of consumer cases Chapter 5. The law of non-contractual damages by Bent Iversen 1. Introduction Non-contractual damages The basis of liability Fault liability (culpa liability) Vicarious liability Strict liability Presumption of negligence Children s liability and mentally disordered persons liability General justification defence The injured party s loss Which losses will be recovered? Limitation of plaintiff group May the injured party recover both from the insurance company and from the tortfeasor? Contributory negligence Joint tortfeasors Product liability The product liability developed in case law The Products Liability Act The concept of damage The concept of product The concepts of producer and intermediary The concept of defect

9 The liability Producer s liability Intermediaries liability Joint liability and recourse Limitation Choice of law Chapter 6. Insurance by Lars Lindencrone Petersen 1. Introduction What is insurance? Various types of insurance terminology of the Insurance Contracts Act The contract of insurance The duties of the parties The duties of the insurer The duties of the insured and of the beneficiary The duty to pay premiums The duty of disclosure at the taking out of insurance Duty to disclose increased risks The duty to observe safety regulations The duty to refrain from causing the occurrence of the insured event The duty to mitigate the loss/avert the damage The duty to notify the insured event The insurance compensation The amount of the insurance compensation Total loss Partial loss Overinsurance Underinsurance Double insurance Deductible Special rules in respect of life assurance and accident insurance Choice of law issues Chapter 7. Formation of contract by Bent Iversen 1. Introduction Further to the conclusion of the contract

10 2.1. The model of the Contracts Act for formation of contract Offer Acceptance What is an acceptance? The period for acceptance Delayed acceptance Rejection of offer Non-conforming acceptance Who is contract partner? Formation of contract patterns other than that of the Contracts Act Standard contracts the adoption problem Quasi contract Will a party be bound by passivity? EDI Formation of contract on an international level Introduction Dispute resolution through conventions Solutions via choice of law The right to withdraw in valid contracts Interpretation and gap-filling in contract Interpretation Interpretation elements Principles of interpretation Gap-filling Invalidity of contract (promises) Introduction Operative and non-operative invalidating factors Forgery and fraud Incapacity Mental incapacity etc. unsoundness of mind Duress Duress with physical or threatened physical violence and mechanical duress Other constraint Fraud Undue influence Disagreement between the will of promisor and the declaration given The rule in s. 32(1) of the Contracts Act

11 The rule in s. 32(2) of the Contracts Act Pro forma promises s. 34 of the Contracts Act Breach of basic assumptions the general clause in s. 36 of the Contracts Act S. 33 of the Contracts Act S. 36 of the Contracts Act the general clause of contract law The presumption principle Invalidity for contract contents the setting aside of standard terms in particular Competition clauses Legal effects of the invalidity The Consumer Contracts Act Scope of the Act Ban against door-to-door selling Duty of disclosure in relation to distance selling etc Right of cancellation Other provisions under the Consumer Contracts Act Withdrawal rules outside the Consumer Contracts Act Third party promises Formation of contracts via agents Introduction Agency general Agency without special identification Agency of special identification The agent s scope of authority Agency without special identification Agency of special identification Revocation of authority The legal relationship between agent and third party The legal relationship between principal and agent Commission The legal position towards third parties Who becomes liable towards third parties? The property in goods in the commission agent s possession The property in the claim against the third party

12 The property in the money paid by the third party The commission agent s unauthorized resale of the principal s goods The legal relationship between the principal and the commission agent Commercial agents Introduction Will a commercial agent have authority? The parties duty of fidelity The commercial agent s right to commission Competition clauses Termination of the agency contract How far may the rules of the Commercial Agents Act be deviated from? The legal relationship between the commercial agent and the third party Commercial travellers Other intermediaries Chapter 8. Sale of goods by Bent Iversen 1. Introduction The rules on sale The Sale of Goods Act Non-mandatory and mandatory rules Sale of specific goods and generic goods Contracts for the supply of goods to be manufactured or produced Commercial sale and other sale Duties of the parties Duties of the seller (delivery) Place of delivery Transport terms Time of delivery The seller s performance Passing of risk Duties of the buyer Temporal context between the duties of the parties Cash sales Special note on documentary credits

13 3. Seller s breach Delay Affirming the contract Avoiding the contract of sale The remedy of damages The buyer s duty to give notice Defects Proportionate price reduction The remedy of avoiding the sale The right to claim non-defective performance The right to claim damages The seller s right to remedy a defect Notice requirements Defective title Buyer s breach Delay The remedy of affirming the sale The remedy of cancelling the contract of sale The right to claim damages Buyer s inability to pay Right of stoppage Anticipatory stoppage Retaining possession Notice requirements Claimant s default Claimant s default by seller Claimant s default by buyer Special note on avoidance The passing of property The relationship between the buyer and the seller s creditors The relationship between the seller and the buyer s creditors Cash sales Sales with reservation of title Consignment Restitution in sale of goods Where possession is not based on contract Theft Lost property

14 8.2. Where possession is based on a void or voidable contract relationship Operative invalidating factors Non-operative invalidating factors Agency Invalidation in bankruptcy Where possession is based on a valid contract with conditional or unconditional duty to return Bailment Pledge Commission Reservation of title Cash sales Double transfer Chapter 9. International sales by Bent Iversen 1. Introduction Scope etc. of the Convention Part II of the CISG Convention: Formation of the contract Proposal or offer Art. 14 of the CISG Convention When is an offer binding? Rejection and acceptance Part III of the CISG Convention: Sale of Goods General provisions The seller s obligations Delivery of the goods and handing over of documents Defects and third party claims The buyer s remedies in the event of the seller s breach of contract The right to claim specific performance The right to avoid the contract of sale The right to claim damages Obligations of the buyer Payment of the purchase price Taking delivery The seller s remedies for breach of contract by the buyer The right to affirm the contract The right to avoid the contract Passing of risk

15 9. Common rules on the seller s and the buyer s obligations Anticipatory breach and instalment contracts The right to claim damages Interest Exemption from liability Effects of avoidance of the contract The preservation duty of the parties Documentary credit The concept Various types of documentary credit Revocable v. irrevocable credits Confirmed v. unconfirmed credits Payment documentary credit v. negotiation credit Sight v. long-term credits The credit documents Export credit schemes Incoterms Introduction The structure of Incoterms The E term F terms C terms D terms The carrier s liability Insurance of goods in international trade Choice of insurance form Insurance terms Chapter 10. Credit agreements by Bent Iversen 1. The Credit Agreements Act Validity of the reservation of title Satisfaction of the creditor Requirements for recovery Computation of the claim Valuation of the goods sold The consumer s redemption and exemption rights Recovery proceedings Recovery without an order of the enforcement court

16 2. Commercial sales Common rules: S. 49 of the Credit Agreements Act Special note on reservation of title Special note on s. 2 of the Credit Agreements Act and credit consignment Chapter 11. Intellectual property rights by Lars Lindencrone Petersen 1. Introduction Copyright What qualifies for protection? Creation Who qualifies for protection? Copyright powers General substance of the copyright Exhaustion of copyright Special note on the right of performance Special note on moral rights Other limitations of the exclusive right The copying right The right to quote Other limitations Infringement of the exclusive right by copying Duration of copyright Related rights Patents What qualifies for protection? The invention concept Exempt areas The requirements of novelty and inventive step Acquisition of right Who qualifies for protection? Patent rights Special limitations of patents Duration of patents Revocation of patents Cross-border patents Utility models The concept Acquisition of right

17 4.3. Scope of the exclusive right Duration of the exclusive right Design What qualifies for protection? The design concept Exempt areas The fundamental requirements for design protection Acquisition of right Scope of exclusive right Duration of protection EU design and international design Semiconductors Trade marks What qualifies for protection? The trade mark concept The distinctive mark requirement etc Acquisition of right Who qualifies for protection? Trade mark rights Special limitations of trade mark rights Infringement of trade mark rights Duration Details on EU trade marks etc Special note on domain names Special note on know-how Remedies for intellectual property infringement Chapter 12. Marketing and competition law by Lars Lindencrone Petersen 1. Introduction The Marketing Practices Act Scope of the Act The Consumer Ombudsman The general clause. General provisions The general clause. Application in practice Disloyal market displacement Indecent etc. marketing means Pyramid selling etc Unfair contract terms Hidden advertising

18 2.5. Misleading and indecent marketing Duty to provide directions for use etc Warranties Distinctive marks Trade secrets Marketing prohibition Direct marketing So-called sales promotion Trading stamps etc Invitations to purchase Labelling and packaging regulations. Price labelling Special note on e-commerce Scope The marketing practices requirements posed on the provider Other rules Enforcement Sanctions Injunctions and orders Damages. Invalidity. Remedies for breach of contract The Competition Act Introduction. Purpose of the Act Scope of the Act Principal rule on activities covered Exemption in respect of certain effects of public regulation Exemption in respect of pay and working conditions Delimitation as towards EU law Special note on groups of companies Administration of the Act The Competition Council and the Competition and Consumer Authority Appeals rules and judicial review General meaning and nature of market definition The prohibition against anti-competitive agreements etc The principal rule contained in s Definition of agreement etc The restriction-of-competition requirement Examples of prohibited agreements/terms