Comparative Private Law Insights
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Questions and Answers

What is the primary condition under which a person's legal sphere should not be negatively altered?

Without their consent.

What legal concept is being explored when silence is interpreted as acceptance?

The meaning of 'will'.

In what situation does the text suggest that the 'true rule of law' does not rely on the offeree's consent through silence?

When it is a fiction or not a real consent.

According to the French Civil Code, what is the essential element needed for an agreement?

<p>Consent of the party who obligates himself.</p> Signup and view all the answers

What scenario does the French Civil Code use as an exception where acceptance is required?

<p>Certain formal contracts.</p> Signup and view all the answers

What is the schism referred to in the text that occurs with Article 1108 of the French code?

<p>A conflict between the Code and its interpreters.</p> Signup and view all the answers

What is the scholars' interpretation of the article that clashes with the literal wording of Article 1108?

<p>That both parties must give consent.</p> Signup and view all the answers

How did French scholars in the 19th century further their interpretation of required consent?

<p>They expanded their arguments.</p> Signup and view all the answers

What is one way the imitation of foreign legal models can manifest?

<p>A selective adoption of particular legal institutions or rules.</p> Signup and view all the answers

What is the activity that earns the respect we accord to enlightened practical activity, according to the text?

<p>When a legislator borrows from a foreign legal system aided by the sophisticated analysis of a jurist.</p> Signup and view all the answers

Besides uniformity, when else does the text say the comparative study of law can be helpful?

<p>Whenever foreign legal models are imitated.</p> Signup and view all the answers

In what way does the text compare comparative law to linguistics?

<p>Both are independent of political and ethical science.</p> Signup and view all the answers

What is one thing that comparative law presupposes?

<p>The existence of a plurality of legal rules and institutions.</p> Signup and view all the answers

What activity does the text describe as a 'genuine contribution' that is 'cognitive', 'critical' and 'scientific'?

<p>Recognizing similarities in old laws rather than enacting new uniform laws.</p> Signup and view all the answers

What topic has been a subject of inquiry for jurists for half a century regarding the comparability of legal systems?

<p>Whether socialist and non-socialist systems are comparable.</p> Signup and view all the answers

Besides linguistics, what other field is comparative law like according to the text?

<p>Cultural anthropology.</p> Signup and view all the answers

Besides being a professor, what other role do scholars use to influence the law?

<p>author</p> Signup and view all the answers

Who primarily guided the interpretation of law in the medieval period?

<p>Medieval doctors of Roman law.</p> Signup and view all the answers

What is the primary way a civil law student learns the law?

<p>through textbooks and lectures</p> Signup and view all the answers

Besides the medieval doctors, who else contributed to the development of law?

<p>Judges and practitioners.</p> Signup and view all the answers

What crucial step often precedes a student's criticism of a professor's teachings?

<p>listening to a second professor with different views</p> Signup and view all the answers

What was the reason some Sudanese judges were applying common law instead of the written code?

<p>they were more familiar with it</p> Signup and view all the answers

What was extended from the Roman legal text to the scholarly interpreter?

<p>Legitimacy.</p> Signup and view all the answers

In Islamic law, who is considered the architect of the immense framework of rules?

<p>The scholar.</p> Signup and view all the answers

After the Code Napoleon, why did some French Judges continue to apply old French rules?

<p>they were trained in those rules</p> Signup and view all the answers

What did the kings of England, Poland and Hungary do to protect their legal traditions?

<p>prevented judges from studying Roman law</p> Signup and view all the answers

Why is there little room for a cult of judicial precedent in Islamic Law?

<p>Islamic judges do not give reasons for their decisions.</p> Signup and view all the answers

In England, how do legal professors generally approach the law?

<p>They write about what judges do.</p> Signup and view all the answers

What was one of the key reasons for the success of Roman law in Germany?

<p>university education in Roman law was the only path to legal jobs</p> Signup and view all the answers

What action may inhibit the creation of laws by scholars?

<p>nationalization of law</p> Signup and view all the answers

How do scholars approach the law in the United States, given the multiple state judicial systems?

<p>They compare solutions using logical methods.</p> Signup and view all the answers

What are the two roles a scholar plays in guiding the interpretation of law?

<p>Writer of authoritative works and university lecturer.</p> Signup and view all the answers

Under what circumstance has Section 151 case law held a party to a contract due to silence?

<p>When the party is silent after receiving an offer and should have spoken due to previous relations.</p> Signup and view all the answers

In the context of Section 151, when is an individual's silence considered an acceptance?

<p>When the individual's consent is deemed 'obvious'.</p> Signup and view all the answers

According to Article 1333 of the Italian Civil Code, under what condition will an offer that only burdens the offeror be binding?

<p>If the offeree does not reject it in the manner required by the nature of the business or by custom.</p> Signup and view all the answers

How do Italian scholars reconcile the rule of Article 1333 with their traditional views on contract formation?

<p>By asserting that the silence of the offeree constitutes a 'tacit acceptance'.</p> Signup and view all the answers

According to the provided text, what type of contracts specifically require both parties' consent in the codes examined?

<p>Contracts with consideration and, in some cases, formal contracts.</p> Signup and view all the answers

What is a key principle that scholars in the countries discussed tend to ignore, according to the text?

<p>Rules that contradict the principle that both parties must consent.</p> Signup and view all the answers

When will courts enforce a promise which only burdens the promisor even if it isn't explicitly accepted?

<p>Unless there are special reasons for requiring an acceptance.</p> Signup and view all the answers

How do scholars 'square' their conclusions regarding contract law with codes and court practice, according to the provided text?

<p>By asserting that the silence of the offeree constitutes an acceptance.</p> Signup and view all the answers

What is a key characteristic of the 'legal formants' within a legal system?

<p>They are never in complete harmony.</p> Signup and view all the answers

How do countries like Germany, France, and Italy typically frame their 'sources of law' as indicated in the text?

<p>They suggest that the sources of law provide a single answer to every legal problem.</p> Signup and view all the answers

What concept does the text use to describe the evolving nature of civil law through judicial decisions?

<p>droit pritorien</p> Signup and view all the answers

Why do French constitutional lawyers, according to the text, not typically acknowledge the influence of 'droit pritorien'?

<p>They focus on the constitutionally recognized sources of law.</p> Signup and view all the answers

What is the key difference the text identifies between 'enacted legal formants' and those that have grown up without formal enactment?

<p>Enacted legal formants are formalized in ways that other formants are not.</p> Signup and view all the answers

What is the relationship between the reasons supporting a legal conclusion and the conclusion itself?

<p>The reasons have a life of their own independent of that of the conclusions.</p> Signup and view all the answers

In the context of legal systems, what does the text imply about the validity of two systems that reach the same conclusion but through different justifications?

<p>They cannot be regarded as identical.</p> Signup and view all the answers

Based on the text, how does the French legal system acknowledge 'droit pritorien' within private law?

<p>French discussions of private law acknowledge this contribution, while the same contribution is typically denied in constitutional law.</p> Signup and view all the answers

Flashcards

Comparative Law

The study of similarities and differences between legal systems across cultures and jurisdictions.

Uniform Law Creation

The process of identifying and analyzing the similarities and differences between existing laws to create new, uniform legal frameworks.

Selective Adoption

The practice of adopting legal institutions or rules from another legal system to address specific needs.

Global Reception

The global spread of legal ideas resulting from a major political movement, often leading to widespread legal changes.

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Sophisticated Analysis

The process of using comparative law research to gain insights into the differences between legal systems, resulting in a deeper understanding of their unique features.

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Comparability of Legal Systems

The assumption that legal systems share fundamental similarities that allow for meaningful comparisons, despite differences in their origins and development.

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Comparability of Socialist and Non-Socialist Systems

The debate about whether socialist and non-socialist legal systems can be effectively compared due to their distinct political and economic foundations.

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Homogeneity for Comparability

Legal systems must share certain fundamental principles or concepts to allow for meaningful comparisons.

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Independent Reasons for Legal Conclusions

The idea that the underlying reasons for a legal decision are distinct from the conclusions they support, leading to different interpretations of rules and laws.

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Distinct Legal Systems with Similar Outcomes

Different legal systems with similar formal conclusions can still be considered distinct due to the variation in the underlying justifications used to reach those conclusions.

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Legal Formants

The various components of a legal system, including the constitution, statutes, jurisprudence, and custom, that work together to form its legal framework.

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Disharmony of Legal Formants

The idea that legal formants within a system of law don't always align perfectly, despite efforts to present a cohesive picture.

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Enacted Legal Formants

The legal sources officially recognized by a country's constitution, such as legislation and formal rules.

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Unenacted Legal Formants

Legal sources that have developed organically through judicial practice and custom, without specific legislative enactment.

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Droit Pratorien

The concept that judicial interpretations and legal decisions can contribute to the development of law, even if those interpretations weren't explicitly written down in the formal legislation.

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Constitutionalization

The process by which some elements of a legal system become enshrined in the constitution, while others remain developed through common law and tradition.

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Legal Interpretation

The process of interpreting legal texts and applying them to specific cases.

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Medieval Doctors of Roman Law

Medieval scholars of Roman law who played a key role in interpreting and developing legal principles.

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Scholarly Authority in Law

The reliance on the opinions of legal scholars as authoritative sources in interpreting and applying the law.

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Judicial Precedent

The use of precedents, or past judicial decisions, to guide future rulings in similar cases.

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Scholarly Role in Common Law

The role of scholarly analysis in understanding and comparing legal solutions across different jurisdictions, especially in common law systems.

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Legal Citation

The practice of citing legal authorities, including both primary sources (like legal texts) and secondary sources (like scholarly interpretations), in legal arguments and decisions.

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Sharia Law

The branch of Islamic law that governs religious and social life, based on the teachings of the Quran and Sunna.

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Agreement Requires Mutual Consent

An agreement or contract requires the consent of both parties involved, not just the party making the promise.

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Silence as Consent

Silence can sometimes be interpreted as consent, but only when the circumstances clearly indicate the offeree's will to accept.

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Silence as Fiction

If a judge cannot determine the offeree's will based on their silence, it is considered a fiction to say they have consented.

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Offer as Binding Contract

An offer alone can form a contract if it is not rejected by the offeree, even if there's no express consent.

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French Code: One-Sided Consent

The French Civil Code states that one element necessary for an agreement is the consent of the party making the obligation, thus implying consent is only needed from one party.

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French Scholars' Dispute

French scholars argue that the French Code has an error and that mutual consent is required for valid agreements.

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Schism in French Law

The French Code's approach to consent creates a difference between the code's text and how it's interpreted by legal experts

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Literal Interpretation of Article 1108

French scholars argue for a literal reading of Article 1108 of the French Civil Code to support their claim for mutual consent.

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Scholarly Power

Scholars have the power to influence the law by using their knowledge and persuasive arguments.

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Legal Schools of Thought

Legal scholars often form schools of thought based on their approaches to interpreting and applying the law.

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Professors' Influence on Law

University professors significantly shape the legal landscape by teaching, writing, and influencing future judges.

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Learning Civil Law

The claim that students of the civil law learn exclusively from the code is inaccurate. They learn through a combination of lectures, textbooks, and preparation for exams.

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Judges' Legal Background

Judges are often influenced by their prior education and training when applying the law, sometimes even when a different legal system is in place.

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Nationalization of Law and Scholarship

The extent to which national laws can restrict the development of legal scholarship needs to be considered.

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Shifting Legal Systems

The application of a specific legal system can change over time, influenced by the knowledge and preferences of new generations of judges.

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Roman Law in Germany

University education in Roman law played a crucial role in the development of German legal practice, as it was a prerequisite for legal professions.

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Silence as Acceptance

In contract law, silence can be interpreted as acceptance when the recipient of an offer should have spoken up because of their prior relationship with the offeror.

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Binding Offer Without Acceptance

An offer that only burdens the offeror can be binding without explicit acceptance, unless the offeree rejects it in a clear and customary manner.

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Tacit Acceptance

The concept that silence can be interpreted as tacit acceptance when the offeree's consent is obvious, especially in cases where actions, assumed debts, or benefits are involved.

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Contract with Consideration

A legal agreement between two or more parties where both parties are required to contribute something of value (consideration).

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Formal Contract

A contract that must be written in a specific form or follow legal formalities.

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Promise that Burdens the Promisor

A legal promise where only one party is obligated to do something, and the other party does not have to provide anything in return.

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Philological Expedients

Legal scholars may defend traditional views by using arguments based on language or interpretation of legal texts.

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Enforcing Unaccepted Promises

Even though legal codes might not explicitly state it, courts often enforce promises that burden the promisor alone, unless there are specific reasons to require an acceptance.

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Study Notes

Comparative Private Readings

  • Jurists are aware that their work's validity isn't solely determined by its practical application.
  • Comparative private law studies are evaluated based on their contribution to domestic legal reform.
  • Uniformity and particularity, while seemingly opposed, have pros and cons in legal systems.
  • Historical evidence does not support the assertion that uniformity is achieved via comparative legal study.
  • Roman law's spread across Europe in the Middle Ages stemmed more from a lack of quality and prestige in competing legal systems than from a thorough comparison of legal systems.
  • French Code Civil's widespread adoption in Europe was due to the propagation of liberal doctrines rather than comparative legal study.
  • Comparative law can reveal apparent differences between legal systems as merely superficial.
  • This approach to comparative law is cognitive and critical in contributing to legal understanding.
  • Comparative study can be helpful in cases of foreign legal model adoption, even if not part of a large-scale political movement.
  • Comparative law can analyze legal differences (ex: differences between common and civil law, recreations of ethnic law, analysis of Afro-Asian law through contact with European law or analysis of the contrasting legal systems in capitalist and Socialist countries).
  • Comparative law, like comparative linguistics, does not depend on political or ethical considerations.
  • Comparative law's focus relates to the study of the comparability of Socialist and non-Socialist legal systems.
  • Legal systems, though differing in aims, can share certain institutions (ex: international law, international conventions).
  • The translation of legal terms can present difficulties, with words potentially having varied meanings between legal systems and even in the same country.
  • Comparative law, like cultural anthropology, examines the actual use of legal rules and institutions across various legal systems.
  • Legal systems, while seemingly uniform, may differ fundamentally in their underpinnings.
  • It is often acknowledged that certain comparisons of legal systems are partially accurate, but antithetical aims make complete uniformity problematic.
  • Comparing legal systems assists in understanding both similarities and differences in legal rules and institutions.
  • The identification of differences and similarities in legal systems involves examining both legislation and case law.
  • Comparative law, like comparative linguistics, is independent of political and ethical considerations.
  • It is helpful to consult works from different times without immediate translation (e.g., consulting earlier Italian works without translating them).
  • Legal formants of a system are not always in complete harmony, yet the sources of law have often been described as one source.
  • Legal formants of different legal systems may have different contents despite apparently similar names.
  • The study of law recognizes that rules may not be contained solely in the code, but also in scholarship, judicial precedents, and other sources.
  • The relationship between legal formants and their relationship to legal systems is an important part of comparative law.
  • The sources of law are often misunderstood to provide a singular answer to every legal issue.
  • Legal formants, despite the existence of a legislative body, can evolve due to judicial decisions.
  • The study of legal formants reveals that one can recognize different parts of a system, despite its perceived uniformity.
  • The study of judicial activity (judicial precedent) is necessary to understand both legal systems and legal rules that are operative.
  • The study of scholarly works, even though less formal than other formants, also plays an important role in shaping the interpretation and application of law.

The Law of Contract

  • Contract is typically defined by mutual exchange of promises, expressions of consent, or declarations of will from two or more parties.
  • The consent of all parties involved is necessary for a contract to impose obligations on all.
  • The concept of 'cause' (reason for consent) relates to the practical motivation behind consent, not necessarily universally applicable or required.
  • If a contract imposes obligations only on some parties, it may be unclear if consent is required from those having no obligations.

The Transfer of Ownership of Movable Property

  • The transfer of movable property involves certain elements such as consent, cause (reason for consent), and delivery.
  • Roman law required delivery to transfer ownership (real, physical delivery of the object).
  • Modern law, particularly in Italy, often prioritizes consent rather than traditional physical transfer.
  • A significant portion of the material is focused on the differences between the theoretical and practical applications of the law in various countries (ex: France, Germany, Italy, England).

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