Comparative Law and Civil Law System

Comparative Law and Civil Law System

• Understanding the definition of Comparative Law
• Identifying the different Legal Families in the Legal World
• Defining the Civil Law system or family

Concept of Comparative Law

• Comparative Law began in Paris, France in 1900, attributed to French scholars Edouard Lambert and Raymond Saleilles.
• These scholars founded the International Congress of Comparative Law.
• Comparative Law has seen continuous development since its inception.

Methods of Comparison

• Comparative Lawyers compare the legal systems of different nations
• Comparisons use two distinct methods: The Macro-comparison The Micro-comparison

Macro-comparison

• This compares the spirit and style of different legal systems
• Also the methods of thought and procedures they employ
• Research focuses on handling legal materials, procedures, and individual roles in the law.
• Example include comparing different techniques of legislation, styles of codification, and the judge's role

Micro-comparison

• Focuses on specific legal problems and issues.
• It deals with rules used to solve particular conflicts.
• An example is determining manufacturer liability for harm caused by defective goods
• Other examples can be rules for loss allocation in traffic accidents and factors in child custody in divorce.

Classification of Legal Systems (Legal Families)

• Several attempts have been made to categorize worldwide legislation into legal families or systems.
• The division into 5 legal families categorizes legal systems into: The Romanistic, Germanic, Anglo-Saxon, Slav, and Islamic Families.
• This division was proposed by French scholar Paul Esmein.
• The division into 3 legal families distinguishes between the Romanistic-German family, The Common Law family, and The Socialist Family.
• This was proposed by René David.
• There is another division into 7 legal families (by Arminjon/Nolde/ Wolff) which considers originality, derivation, and common elements.
• The seven are The French, German, Scandinavian, English, Russian, Islamic and Hindu.

Concept of Civil Law System

• National legal systems are often grouped into families with countries like France, Germany, Italy, and Switzerland.
• Also including Argentina, Brazil, and Chile, known as "Civil Law" nations.
• This contrasts legal systems of England, New Zealand, India, USA, and Canada, called "Common Law" systems.
• Civil Law is a legal family rooted in Western Europe, dating back during the Roman Empire in the 6th Century.
• The 19th Century marked the Enlightenment Period, which saw the body of law organized and distributed across the continent.

Two Pillars of Civil Law System

• The French Civil Code of 1804 (Code of Napoleon).
• The comprehensive German BGB of 1896.
• They are prime examples of codification efforts from the 20th century.
• "Civil Law System" (Romanistic-German family) differs from "Civil Law," which deals with contract law, tort, unjust enrichment, and property.
• It is governed by civil codes like the Civil Transaction Law in UAE.

Roman Law as primary source

• The term "Civil Law" in English translates to the Latin term Ius Civile relating to law applicable to all Roman citizens.
• Roman law is found in the compilation called "The Corpus Juris Civilis".
• This was a comprehensive codification of Roman Law in a single written text, established in the 6th Century by Emperor Justinian.
• This code was divided into three sections that mirror today's subdivisions with: Law of Persons (Family Law) Law of Things (Property Law), Law of Obligations (Contracts and Torts).

Canon Law of Roman Catholic Church

• A distinction was drawn between Secular (Human) and spiritual (Religious) authority/
• Canon Law was the law of the Church and dealt with the election and authority of Christian leaders.
• The «Corpus iuris civilis» were written by Roman jurists, while «Corpus iuris canonici» was mostly written by non-lawyers
• Both texts influenced each other.

The Modern Civil Law Codification in the 19TH CENTURY

• In the Enlightenment Period, Civil Law countries contributed to codification, with France and Germany leading
• The French Civil Code was started in 1800, and resulted in the Code Civil Français (Code of Napoléon) in 1804 with 2000+ articles structured in three books: Book I (Arts. 7-515) covers status of persons, constituting Family Law on marriage, divorce, and paternity, based on Bonus Pater Familia. Book II (Arts. 516-710) addresses real and personal property and is based on the Right of Property. Book III (Arts. 711-2281) on obligations, covers contracts, torts, based on principles like Fault and Pacta Sunt Servanda for Freedom of Contract.
• 1873 saw the establishment of a German commission
• In 1896 a German Civil code known as (The comprehensive Burgerliches Gesetzgebuch (BGB). was established.
• This was structured into five books

German Civil Code structure

• Book I - General Principles with definitions, prescriptive periods, and legal classification.
• Book II - Contracts and torts.
• Book III - Addresses Real and Personal Property.
• Book IV - Family law including marriage.
• Book V - Law of succession, wills, etc.

UAE CIVIL TRANSACTION LAW structure

• Including Private international law provisions. Introductory Chapter (Art. 1- Art. 123): Book 1: (Arts. 124-487): THE LAW OF OBLIGATION - Governs obligation with contracts, unilateral acts, torts, unjust enrichment, laws, and rules of obligation. Book 2: (Arts. 488-1132): THE LAW OF CONTRACT with nominated contracts. Book 3: (Arts. 1133-1398): ORIGINAL RIGHTS IN REM with (Law of Ownership). Book 4 (Arts. 1399-1528): SECURITIES OVER PROPERTY with The Pledge, mortgage, Possessory pledges or mortgages and priority rights.

Civil Law System Worldwide Today.

• Europe includes regions like Germany, Austria, Scotland, Spain, France, Italy, Portugal, Romania, Switzerland, and Nordic countries.
• North, Central and South America includes Mexico, Chile, Quebec, Canada, and Louisiana in the United States.
• North Africa to South Africa Cameroon, Arab includes countries like (Egypt, Morocco, Tunisia, Libya, Algeria, (Except Family Law which is governed by Islamic Law). Togo and Tanzania, Libya, Congo.
• Asia includes: Turkey and Japan.

Core Characteristics of Civil Law System:

• Roman law has had three major consequences.
• It emphasizes crucial importance of (Written Law) and (Codification).
• Courts (Judge and Case Law (Jurisprudence) have a secondary position.
• A significant distinction (Dichotomy) lies between Private and Public Law.
  • It recognizes three legal professions: Lawyers or advocates, notaries, and nonlawyers.

Primary Role of Codification in Civil Law System

• Civil and Common Law systems differ in their approach to codes and case law.
• Civil Law hinges on Codes
• Common Law relies on Case-law (Jurisprudence).
• The origin of codes in Civil Law systems comes from the Roman Emperor Justinian's codification project, the (Corpus Juris Civilis) in the 6th century.
• Common law generally remains uncodified, relying on scattered statutes as legislative decisions.
• Civil Law is codified with comprehensive, updated legal codes
• There are mainly all written legislations which can be classified in two categories
• Substantive Law: creates, defines, and regulates rights, obligations, and liabilities in all areas.
• Iit includes Civil Code, Commercial Code, The criminal code, The Labour Code etc.
• Procedural Law: governs the process by which law is enforced, including all procedures followed in trials and in appeals.
• They include Civil Procedure, Criminal Procedure, The Civil Procedure Code and The Criminal Procedure Code.
• The judge's decision is less crucial than legislators who draft codes in Civil Law systems.

Distinction between (Private Law) and (Public Law)

• Civil law's main division is into public and private law.
• This distinction is fundamental compared to common law systems.
• The origin of division is uncertain but dealing with legal relations between State and Citizen was taboo.
• For centuries, Roman law disregarded Constitutional Law and Administrative Law.

Differentiation

• Public and private law vary in content and purpose.
• Private Law governs individual relations and interrelations between State and citizens.
• Public Law aims to exercise public power and satisfy the general interest, with the state protecting public interests.
• Private Law focuses on equality, individual and private rights, The state was a referee and ensures equality of the parties.
• Administrative, Constitutional, and Criminal Law.
• Commercial Codes And Civil Codes;

Two sets of courts

• There exist two different Courts.
• Especially in France, public and private law are divided between two (jurisdictions).

The administrative and ordinary jurisdiction

• Ordinary Courts handles Private law cases litigation that arises between individuals (Civil cases, Commercial cases, Criminal Cases, Labour Cases).
• Administrative Courts handle public law cases such as Administrative and Financial cases., keeping criminal law cases uniformly with the ordinary jurisdiction.

Legal Professions in Civil Law Countries

• Legal systems vary between The Civil Law Countries, and The United States Lawyers in Civil Law Vs. Lawyers in Common Law: Unlike U.S. the Term “Lawyer“ is Broad, and U.S. is normal.
• American lawyers can move between positions easily, without particular training.

Variety of Careers

• Four Legal Professions:

1. Judge
2. Advocate (lawyer strictly speaking)
3. Legal advisor
4. Notary.

Judges

• Judges play a central role in civil law without case precedents.
• Types of Judges is: First Instance Judges: (Trial judges) which makes determinations of facts. Appellate Judges: Hear appeals from lower courts. Specialized Judges: Handle dedicated areas of expertise.

Civil Law Lawyer

• A Civil Law Lawyer (Advocate) relates better to the U.S. lawyer, The advocate has the right to appear in court to represent clients or to offer legal advice outside the court. Some examples include Avocat (in France), Abogado (in Spain), Avvocato (in Italy), and Rechtsanwalt (in Germany). Training and admission processes vary for becoming an advocate, involving legal education, professional training, and examination requirements. France, Germany, and Italy are civil law system countries.

France

• A lawyer has first complete 5 years of higher education which is a law degree.
• Followed by a Master's degree in law (Master 1 and Master 2).
• The Master's degree (Master 1) is normally the essential qualification for proceeding to legal training.
• After which, a enrolment in the Ecole de Formation du Barreau (Bar Training School) is necessary for a training lasts 18 months.
• A 6-month internship in a law firm as well.
• Lastly a Professional Exam (Certificate of Aptitude for the Profession of Lawyer- CАРА) is needed when candidate has knowledge in legal theory

Germany

• First State Exam: Students must complete a law degree to be an (advocate).
• After this the First State Exam has to be passed, including Law, Civil, and Criminal laws.
• After which, a practical training period lasting 2 years is the standard (Referendariat includes court and prosecutors rotations
• Lastly, A bar examination (The Second State Exam), is taken before getting the degree.

Italy

Avvocato (lawyer) needs a 5-year law degree.

• After which, 18-month practical training is required in in the Judiciary.
• Lastly comes the final Bar Exam Legal Advisors (Legal Counsel):
• Supply Legal counsel to entities, individuals, without court involvement.

Civil Law Notary

• Civil Law Notary: the Civil Law Notary is a person of importance.
• Official role, as public officers recognized by administrative decisions.
• Role: contracts are drafted (draft sales documents) and legal validity have to be ensured. Training has legal requirements for lawyers are also included in notary documents.

Comparison Table for Legal Professionals

• Judges
• Lawyers
• Legal Advisors
• Notaries

The Legal Professions in UAE

• Legal consultants in UAE as lawyers cannot appear in courts
• There are three categories: Advocates: which are court lawyers, can appear in behalf of clients. Legal consultants: not courtroom people. In-house lawyers : not allowed to appear in courts (Federal Law 34,2022).

Law of Contract

• I- The Approach to Contract law. II- The Definition of Contract.
• Formation of a Contract (Conclusion). Effects of Contract.

The Approach to Contract law

• modern civil codes usually treat contracts in two ways: 1- (Lex Generalis) General Law of contracts, elements all apply. 2- Lex Specialis several Contracts, in Particular contract.

French Law Approach

• Title I covers contracts and obligations in general with sections on: Consent Capacity
• Matter of Contracts, Cause including, Termination of Contracts, and Legal Termination.
• Title II is for special contract types
• Includes Exchanges, lease, firms, Loans, and real securities with pledges.

German Law Approach

• Book two is law obligations and has:
• General sections with General 1- Creation 2- Subject matter, 3- Cessation 4- Termination
• Section Two has Particular Kinds (Sales, etc.)
• Section Three has Contract for work included
• Section Four have Lease.

UAE Law Approach

• UAE legal system, Law 1 has Obligation Sources and contracts,
• Under chapter 1 contracts :
• General articles with contracts forming. Subject matter clauses.
• Sects of termination.
• Book 2 has all contracts : 1- SALE AND EXCHANGE
• 5 contracts under it and
• 8 real securities.

Approach of Common Law Systems to Contract

• Common law systems use no explicit rules as such.
• The following is true: Based Case Law Development precedents exist. No Central Codification Statuary (sale of goods , but are not in the same codification way)

UK Law

• Several Nomination and contracts available such as.: Sale goods act and insurance act.

Civil Law Definition of a contract

A contract is is is mutual and in agreement with the parties.

• Consent, subject etc.

Good Law

• An agreement that enforces the Law, consideration and relations. Civil Law
• Legal relationship among parties which consent

Elements of the Civil code

• Consent( agreement and acceptance
• Subject matters
• -Reason for contact
• The formation, the Principle and "God faith"

Distinctive Element

• the parties performance contract Specific performance (contract)
• The main exception,
• The courts follow laws when in performance

Specific Performance

• There is no compensation to debtor
• The buyer buys the action from the seller

When damages

• When contracts cannot happen

Civil Law system

• No specific -The party's need not the events.

Unforeseen

A A supplies contract After some years the prices increase.

The judge is in charge to reduce the obligation.

The parties cannot act contrary.