Glossary entry

Dutch term or phrase:

wilstheorie, verklaringstheorie en vertrouwenstheorie

English translation:

intention (or: consensual/will) theory, declaration theory and reliance theory

Added to glossary by Deborah do Carmo
Mar 14, 2005 07:34
19 yrs ago
Dutch term

wilstheorie, verklaringstheorie en vertrouwenstheorie

Dutch to English Law/Patents Law (general) general
Has anyone an idea of how these are best put into English? The sentence reads: 'Dit geschil wordt daarom beheerst door de algemene beschouwingen rondom het totstandkomen van de rechtshandeling: wilstheorie . . . '

Discussion

Non-ProZ.com Mar 14, 2005:
thanks! Thank you once again, Deborah, for taking the time to look at and consider this during your normal work hours.
Deborah do Carmo Mar 14, 2005:
A lawyer reading your translation would certainly understand what you mean by rejoinder but there is an updated term approved by the law society in the UK - the names of the various docs within the set of pleadings have been changed
Non-ProZ.com Mar 14, 2005:
thank you + notes The version given by EuroDicAutom for 'conclusie van dupliek' is 'further reply in defence', but 'dupliek' is in fact given by Van Dale as 'rejoinder'.

Deborah do Carmo Mar 14, 2005:
REJOINDER (a defendant's answer to the plaintiff's reply or replication)as a term is actually outdated I see now for UK pleadings. Not sure what the law society prescribes now but will look a little later for you when my deadline is out the way.
Non-ProZ.com Mar 14, 2005:
thank you!
Deborah do Carmo Mar 14, 2005:
"conclusie van dupliek" = rejoinder (reply or statement of defence in other words) whereas a "conclusie" van repliek is is in turn the reply to that statement of defence - collectively they are submissions from each party that make up the total pleadings
Non-ProZ.com Mar 14, 2005:
theory No, Deborah, it has to do with an agreement between two companies. The next sentence is 'Bij conclusie van repliek in conventie / antwoord in reconventie heeft Vision reeds genoegzaam duidelijk gemaakt dat gedaagden . . . ' By the way, Deborah, would you be able to explain the difference between 'dupliek' and 'repliek', as in 'conclusie van dupliek' etc. . . ? Thank you!
Deborah do Carmo Mar 14, 2005:
The first one is possibly the volition theory/theory of volition in that case but the others are difficult to place without more context.
Deborah do Carmo Mar 14, 2005:
Morning Brian, are you busy with a piece on criminal law/criminology perhaps and could you post the next sentence please.

Proposed translations

1 hr
Selected

some explanation

These terms are all part of legal theory and can mean slightly different things for different branches of the law. For example in a criminal law context - "wilstheorie" would be the theory of volition.

This is however a contractual context and so what your text is saying is that three factors will be looked at to determine in the case of a dispute whether a juristic act and therefor a contract has come into being (from what I understand) from the text.

In a contractual context - "wilstheorie" would probably therefore relate to the freedom of contract concept - i.e. the extent to which the law assumes that people have economic freedom to enter into a contract.

Secondly the question of declaration of intent would be looked at and this is what is probably meant the "verklaringstheorie" - here those considering a dispute would look how the parties have expressed their intent in the wording of the contract and possibly the surrounding circumstances (depending on the legal system in question)

Finally the theory of (legitimate) expectation will be looked at, i.e. the expectation that one contracting party has to expect the other will perform and fulfils his/her promises.

I can thus tell you what these concepts probably mean in contract law but to find a singular term in English for each is not going to be easy.

I suggest you say something along the lines of :

The dispute will therefore be governed by the general considerations (or debate) pertaining to the establishment of a juristic act, namely the freedom to contract, the contractual declaration of intent and the contractual expectation that obligations by the other contracting party will be fulfilled.

Is a bit long winded but would be more precise than coining phrases that don't really exist as one-worders in contract law otherwise (as far as I am aware)

Hope it helps

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Note added at 1 hr 28 mins (2005-03-14 09:02:27 GMT)
--------------------------------------------------

Finally:

Managed to just find my old study guide of years ago from UNISA (University of South Africa)

The South African system is a Roman-Dutch system and in the chapter on legal theory it refers in fact to the three theories by name:

\"Three identifiable theories were used in this enquiry, namely the INTENTION THEORY, the DECLARATION THEORY and the RELIANCE THEORY

That\'s it!

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Note added at 1 hr 32 mins (2005-03-14 09:06:22 GMT)
--------------------------------------------------

Legal science was initially characterised by the search for a single common element as the basis of contract. Three identifiable theories were used in this enquiry, namely the intention theory, the declaration theory and the reliance theory. However, no single theory could provide a satisfactory solution and therefore it is chiefly combinations of the intention theory and reliance theory that are propagated today.

The law of the Netherlands has been chosen for comparison since it contains several points of contact with South African law as well as a refinement and extension of the various approaches to the problem.



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Note added at 1 hr 55 mins (2005-03-14 09:29:54 GMT)
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There are three choices for the first one accepted in contract legal theory:
consensual -, will -, or intention theory

The second one is fixed as the declaration theory

The third one is the reliance theory. The materials on trust theory are not related.

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Note added at 2 hrs 2 mins (2005-03-14 09:37:02 GMT)
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Just for completeness and to make sure my source is not only a SA one - from a UK textbook (Textbook on Contract Law - Jill Poole, 7th edition) the reliance theory is the most significant post-classical theory of contract and the main exponent has been Professor Atiyah. Some googling with this detail that will serve to confirm.


Both Fuller and Atiyah’s theory of contracts eliminate expectation interest by ...
www.truthawakens.com/contracts.asp - 13k - Cached - Similar pages

Deconstructive Pracitice and Legal Theory-- Part III
... In essence, Atiyah\'s benefit/reliance theory of promissory obligation must
admit its own \"dangerous supplement\" to explain mutually unrelied upon ...
www.yale.edu/lawweb/jbalkin/articles/decprac3.htm - 71k - Cached - Similar pages

[PDF] DPLT 1 1
File Format: PDF/Adobe Acrobat - View as HTML
... On the other hand, under Atiyah\'s. benefit/reliance theory, the acceptance of
benefits or the creation of reliance. becomes the paradigmatic case of ...
www.yale.edu/lawweb/jbalkin/ articles/deconstructivepractice.pdf -
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4 KudoZ points awarded for this answer. Comment: "Your note to Marijke Mayer's answer cleared the matter up. Thanks again."
1 hr

will theory, declaration theory and trust theory

Brian, there are many hits on "will theory", "declaration theory" and "trust theory" in juridical contexts.

Van Dale:
the·o·rie (de ~ (v.), ~ën)
1 geheel van de grondregels van een kunst of techniek => leer
2 systeem van denkbeelden of hypothesen ter verklaring van iets
3 opvatting in het abstracte, die geen rekening houdt met de praktijk

http://www.columbialawreview.org/articles/index.cfm?article_...
This Article places Fuller's scheme in the context of the critique of the nineteenth-century will theory of contracts and the rise of sociological jurisprudence and legal realism.

OUP: Debate Over Rights: Kramer
... Fragmentation of Rights; 4 Hohfeld and the Kantians; 5 The Interest Theory
of Rights; 6 The Modern Will Theory; Hillel Steiner: Working ...
www.oup.co.uk/isbn/0-19-829899-4 - 19k - In cache - Gelijkwaardige pagina's

OUP: Historical Introduction to the Law of Obligations: Ibbetson
... The Model of Contract; The Theory of Contract; 13 The Rise of the Will Theory;
The Will Theory and the Classical Model of Contract; ...
www.oup.co.uk/isbn/0-19-876412-X - 20k - In cache - Gelijkwaardige pagina's
[ Meer resultaten van www.oup.co.uk ]

Declaration theory
Index . Law . Areas . Legal process and history . Legal process . Doctrine of precedent
. Declaration theory. Declaration theory. Previous . Next . Google . ...
www.law.uts.edu.au/~peteru/lph/f13696.htm - 3k - In cache - Gelijkwaardige pagina's

Trust Theory of Environmental Protection, and Some Dark Thoughts ...... Boulder. TITLE: Trust Theory of Environmental Protection, and Some Dark Thoughts on the Possibility of Law Reform. SUGGESTED CITATION ...
www.bepress.com/ils/iss4/art4/

Best regards,
Marijke
Peer comment(s):

neutral Deborah do Carmo : intention theory, declaration theory and reliance theory - after much flicking through old textbooks etc//not a question of what I or you "want" to use here, I'm afraid - this is term coined and used by the legal academics in this context
19 mins
Why not? They all exist as such. If you want to use 'reliance theory' instead of 'trust theory' fine!
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