Browsing by Author "Teshome, Tilahun (professor)"
Item Form of Contracts Relating to Immovables in Ethiopia: Analysis of the Position of the Federal Supreme Court Cassation Division(Addis Ababa University, 2014-02) Alemnew, Workneh; Teshome, Tilahun (professor)The justifi cations for the importance of the doctrine of precedent rest on the need for certainty, reliance, equality and efficiency in the law. Hence, cases involving similar legal issues are expected to have similar outcome in all COUl1s. When the Ethiopian Federal Supreme Court Cassation Division (FSCCD) tries to hold on its deci sions of prior cases, its credibility will increase. This paper, however, finds that the Cassation Division rendered many contradictory interpretations on Article 1723 of the Civil Code of Ethiopia which deals with form ofa contract relating to an immovable. The FSCCD neither clearly follows nor overrules its own interpretation rendered in Cassation File No. 21448 (the Gorfie Case) and this creates a conflict within its jurisdiction. It, in this case, held that the requirement of regi stration before a court or a notary as embodied in Article 1723 is binding thereby rendering unregistered contract of sale of an immovable a mere draft that is non-enforceable. The debate that arises after this interpretation partly lies in the fact that the Cassation division has departed from settled practices to enter into a contract relating to an immovable. The judges in the FSCCD state that this interpretation is the governing principle as to form of contracts relating to immovables so far. However, in the opinion of the writer, registration is not a formal requirement for the validity (ad validitalem) of a contract relating to an immovable. The sole purpose of regi stration is publicity as envisaged under Articles 2877 and 2878 of the Ethiopian Civil Code. The prevailing practices proved that contracts relating to an immovable were not registered with a court or a notary. The writer has not observed a consistent approach in the other interpretations of the Cassation Division which he has examined as to form of a contract relating to an immovable. The Cassation Di vision rendered clashing interpretations with the Gorfie Case in Cassation File Numbers- 36887 (Alganesh v.Gebru), 39336 (Nyala Insurance S.C v. Adugna and Tenaye), 38666 (Development Bank of Ethiopia v. Ato Tesfay) and others. Almost all of the inconsistent interpretations of the Cassation Division are rendered within two years time span, i.e. from 1999 to 200 I E.e. Hence, the decisions of the FSCCD on form of a contract relating to an immovable have not stayed for reasonable long period of time without being overruled. As a result, trial courts, lawyers and other planners of transactions find themselves in untenable position where they are bound by conflicting decisions of the Cassation Division. In the present Ethiopian situation, it is hard for lawyers to advise their clients with a confidence that the law as to form of a contract relating to an immovable is settled. Such inconsistent interpretations of laws, if allowed to persist, forfeit the benefits of certainty, stability and predictability of the law which the doctrine of precedent is intended to foster. Consequently, there is a need for further reform of the position of the FSCCD on form of a contract relating to an immovable. The Cassation Division should clearly overrule its blameful interpretation rendered in the Cassation File No. 2 1448 (the Gorfie Case) since the interpretation has departed from settled practices. Every ruling of the FSCCD has far reaching implications on the legal system of the country. Therefore, the cassation judges should criti cally consider the impacts of their interpretation on social , economic, political, cultural and moral contexts of the people. They have to make sure that their decision would exist and applicable relatively for a reasonable long period of time. The FSCCD should follow one fairly reasoned position and clearly overrule other contradictory decisions. Every interpretation has to be made in accordance with the concept of hori zontal stare decisis that the Cassation Division should refrain from creating conflicting interpretation of laws.Item The Legality of E-commerce and E-signature under Ethiopian Law(Addis Ababa University, 2017-02) Ashenafi, Tigist; Teshome, Tilahun (professor)The purpose of this study is to assess the existing legislation governing e-communication and storage of information in Ethiopia, which is inadequate or outdated because it does not give recognition to electronic commerce. Ethiopia has not yet set a comprehensive legal framework for e-commerce in general and electronic signature in particular. Ethiopia’s e-signature and e-commerce laws are still at draft stage. The research design for this study is a descriptive survey with a critical and analytic approach. The research will describe existing situations in the selected study area. The study revealed that the absence of laws dealing with electronic commerce and e-signature , cause uncertainty as to the legal nature and validity of the information presented in a form other than a traditional paper document. This undermines the prospects for the successful development of e-commerce. Finally, recommendations were made on the current e-commerce and e-signature laws.Item The Regulation of Related Party Transactions in the Ethiopian Financial Sector: With Special Focus on Banks(Addis Ababa University, 2013-02) Redae, Getachew; Teshome, Tilahun (professor)The main purpose of the research paper is to examine whether or not the regulation of related party transaction in the financial sector in general has got due attention and whether the regulation of related party transactions in the Ethiopian financial sector was adequate or not in particular. In this regard, it can be said that though we may get many researches and literatures dealing with corporate governance issues, there are relatively a few researches and literatures which deal with the regulation of related party transactions. Even, the available materials provide with the related pm1y transactions in the nonfinancial sector in general. However, the regulation of related pm1y transactions in the financial sector is different from non-financial sector. Even if related party transaction has a great effect on a company, financial sector and the economy of a given country, the attention given to it was relatively little. Companies and countries began to regulate related party transactions after the occurrences of several financial company collapses thought to be mainly affected by abusive related pm1y transactions. Besides, the discussion in the regulation of related party trmlsactions in the Ethiopian financial sector comes to the conclusion that its regulation is not given proper attention and is not adequate in general. For example, the important legal regulation instruments in the regulation of related party transactions in the financial sector such as the requirements of di sclosure and approval of related party transactions m'e not available in Ethiopia. Besides, the concepts of materiality and immateriality of related pm·ty transactions and their distinction is not provided in the existing Ethiopian laws. Even if an attempt is made to define related parties from the context of commercial banks, there is no definition for related party transactions. In addition, the available relevant law in Ethiopia is simply concerned with the limitation of lomls of commercial banks to their related parties. Hence, other types of related pm1y transactions are not regulated well in the existing Ethiopian laws. On the other hand, the remedies and sanctions in case of violations of regulations of and abusive related party transactions are not provided in Ethiopia. Pm·ticularly, the application of class action and/or derivative suits to the claims of abusive related party transactions in the Ethiopian finmlcial sector is not provided clearly.Finally, it should be remembered that great effOtts we re exelted to indicate the concerns, gaps and problems in relation to the regulation of related party transactions in the financial sector in general and in the financial sector in Ethiopia in particular and finally come up with some possible solution s. Key words: related party, related paliy transactions , abusive re lated party transactions, arms length basis, disclosure and appro val