Understanding Civil Law Systems

• Civil law systems are influenced by Roman law and canon law.
• Most Continental European countries use it, with key codes like the Napoleonic and Germanic Codes.

Main Areas of Law in Civil Law Countries

• Public law
• Civil Law (contracts & torts)
• Business law (corporate laws)
• Private law
• Administrative law
• Civil & commercial codes

Main Features of Civil Law

• Written laws are the primary source.
• Laws originate from parliamentary acts, rather than judicial decisions.
• Civil law experienced historical discontinuity due to university revolutions and national code development.
• Common law maintains uninterrupted legal continuity since 1066, avoiding radical changes.

Historical Background of Civil Law

• Roman law significantly influenced Continental Europe.
• Roman law did NOT replace local laws.
• Common law replaced all local law systems in England.
• Continental Europe initially had legal particularism, leading to legal uncertainty and calls for simplification.

Continental Europe's Legal Sources:

• Local laws
• Custom collections (France)
• Sovereign edicts
• Civil law (common law) rules
• Canon law
• Merchant & commerce laws (lex mercatoria)
• Simplification efforts led to political and social revolutions with new philosophical movements

New Philosophical Movements & Schools of Thought:

• Jusnaturalism (17th-18th centuries): Natural rights prevail over sovereign's positive law.
• Rationalism: Emphasized reason to create rational rules over particularism.
• Liberalism: Reacted against special privileges, focusing on property and contracts.
• Statualism: Prioritized state and individual, opposing intermediate bodies (except family).
• Nationalism: Linked legal systems to national identity, promoting national civil codes.

French Legal System and Civil Code

• French Civil Code: First modern code, introduced in 1804 (enforced 1806).
• Based on guarantism, property and will dogmas, natural law, and sovereign's respect for immutable rules.
• Droit ⇒ Loi: Law was seen as the only source capable of expressing the general will and the spirit of the nation.
• Marked a shift from bottom-up (custom-based) to top-down (state-developed) law.

Rejection

• Customary law
• Extraterritoriality of law to national law
• It’s a mix between Roman Law and Customary Law with the principles of liberty and equality
• Code development resulted from revolution, Napoleon's rise, and new intellectual forces.

Code Development

• French Revolution
• Napoleon Seizure of Power
• New intellectual forces (natural law, etc.)
• Evolution / reorganization of previous laws (incorporates old Ordonnances - laws related to the private sphere)
• Development of a powerful and respected class of practical jurists
• Development of a highly prestigious legal scholarship movement and development of respected practical jurists.

Evolution of French Law in the Ancien Régime

• France was divided with different legal systems
• The revolution (period of 10 years)
• It was a very liberal period
• Ancien Régime system was abolished, establishing civil registers and equal inheritance.
• Separation of Powers was introduced
• Parental authority was limited
• Civil marriage Introduced
• Divorces became possible since they were contracts.

French Civil Code Development

• 3 project proposals by Cambacerès
• Final draft developed by a commission with members from the north AND the south
• Code style emphasized simplicity for non-jurists, formulating broad rules for specification.
• Reflected bourgeois values with books on persons, property, and acquisition.
• It had 3 books and an introduction
• Article 4: Obligation of the judge to decide the dispute
• Article 5: The judge CAN’T issue general rules of conduct
• Article 8: Any French citizen is a holder of civil rights
• The code affirms ownership dogma and contractual freedom, still in use today with adaptations.
• Code needed adjustments due to decodification in areas like commercial, family, and employment law.

French Court system

• Judicial / Ordinary Courts: civil law/private law matters
• Administrative Courts: disputes related to administrative law (public law)
• Constitutional Council: Reviews laws prior to and after passing (since 2008).
• Judicial courts organized in three levels: major/minor systems, Appeal Court, and Cassation Court.

Commercial Courts

• For first-instance level disputes
• Made up of judges and experts
• Employee/employer representatives

German Legal System Pre-Unification

• Different codes applied in different regions
• Including Prussian, Austrian, and French codes, plus Roman law.
• Superior court was needed to unify application of laws.

Schools of Thought

• Historical School of Jurisprudence: Advocated basing law on "Volksgeist" (spirit of the people) from customary law, opposing codification.
• Pandectist School: Aimed to elaborate and systematize legal materials using Roman law and a mathematical approach, supporting codification.

Pandectist school key points

• Dogmatism
• Systematic organization to create coherent system
• Systematic Interpretation of the Law: If there are multiple ways to interpret a law, it needs to be interpreted in a way that remains in harmony with the rest of the system
• The elaboration of definitions of legal concepts
• The creation of categories for legal concepts
• They support the codification of the law
• Historical School sort of evolved into the Pandectist School, which became the main school of thought

Creation of Codes

• Germany followed France's separation of civil and commercial codes, influenced by the Pandectist school.
• German Civil Code (BGB): Heavily influenced by Pandectist school.

The BGB (German Civil Code)

• Style: complicated; NOT literary
• Structure: 5 books
• 1st Book: General section defining terms.
• 2nd Book: Obligations (crucial for study)
• Philosophy:
• Reflected the bourgeois (but more modern than the French Civil Code)
• It’s a conservative code
• Aim to be complete and the sole instrument for private law. The BGB is applicable today, surviving German history.
• It has been updated to include social approaches and adapt to evolving definitions of family.

Influence Difference

• It has limited influence & didn’t have widespread international usage (unlike the French Civil Code) the because the German school of thought had more influence

Private Law Jurisdiction:

• Ordinary Jurisdiction (civil & criminal law)
• Specialized Courts (administrative courts, tax courts, social security courts, etc.)
• Constitutional Courts

Federal Jurisdiction:

• First-instance court
• Court of appeal
• Federal court (?)

Italian Legal System

• Pre-Unification: Divided into states, used codes inspired by French Civil Code.
• Unification:
• Made easier due to French Civil Code influence
• Italian Civil Code (1863?) = basically a translation of the French Civil Code (so heavily heavily inspired by it)
• Commercial Code (1882) = also like the French Commercial Code
• NO LONGER USED since it’s now included in the reformed Italian Civil Code
• Italian Civil Code (reformed 1938 - 1942): The Italian Civil Code was reformed
• reformed in 1938-1942, liberal, inspired by French code and German thought, including commercial code content.
• It now also includes the content of the Commercial Code

Italian Court Jurisdictions:

• Civil Courts: Court of First Instance ⇒ Court of Appeal ⇒ Court of Cassation (?)
• Administrative Courts
• Common Law System Court Layers
• Getting an appeal is more complicated
• Not necessarily 3 layers (unlike the Common Law courts)

English Common Law:

• Unwritten constitution
• Laws derived from precedents (judge decisions)
• Established post-1066, expanded via royal court writs, challenged by barons.
• Equity Court: Developed for contract/private law.

American Common Law:

• Based on English system but evolved differently, with regional differences (e.g., Louisiana), and the US wrote a constitution whereas the UK doesn’t have a written constitution.

Common Law General Basics:

• Originated in England, spread with empire, evolves differently in each country.
• Applicable mainly in Commonwealth, US version more influential than English.
• Applicable (completely) in England, Wales, and the Isle of Wight

"Common Law"

• Used variously, opposing Equity/Statute Law.
• The Calvin Case (1608): Determined English law applies in uncivilized territories.
• It was also the birth of the Ius Soli concept
• The Privy Council: Previously unified Common Law judicial review across Commonwealth.
• During the Colonization Period, it was a court responsible for judicial review for the laws of the entire Commonwealth

More About Common Law:

• An open system offering judge discretion for new cases, considering precedents from other Common Law countries.
• Laws arise from case law (judges).

Rule of Binding Precedent (Stare Decisis):

• Gave continuity to the system

Equity Law and Statute Law

• A parallel legal system (?)
• Equity Law rules were created to be less stringent than Common Law rules
• Equity Law was made to help find solutions in cases that couldn’t be addressed by Common Law
• Statute Law: is written law from parliament; statues clarify laws but doesn't eliminate Common Law.
• Statutes were introduced to clarify & elaborate on laws BUT not to eliminate Common Law

UK VS US Common Law Contradictions

• US: Judicial review validates constitutionality (Marbury v Madison)
• Compliance with the constitution CAN be reviewed
• UK: There is formal judicial review
• BUT there can be declarations of incompatibility where the judges declare that certain laws go against human rights conventions

Civil Law Similarities Between Civil Law and Common Law:

• Binding precedents are NOT a rule
• BUT in recent times, the decisions of the higher courts are often considered to be binding and need to be followed by inferior courts

Converging Between Civil Law and Common Laws:

• This started since WW2
• Common Law countries are having more and more statutes
• Higher courts’ precedents in Civil Law countries are becoming more and more “persuasive” (binding)

Civil Law and Common Law Education Differences:

• Civil Law: Trained based on the idea of the “learned jurist” University to study law
• Judges and Lawyers: There are different exams for lawyers and for judges
• Common Law: UK: You don’t need to go to law school Because the training of jurists is a practical education (not an academic education)

Common Law Court System Differences

• UK: Judges appointed from lawyers, without public exams
• US: Mix between UK and Civil Law paths, requiring a Juris Doctor degree that emphasizes practical case-based training.
• Judges: Can also be appointed through general elections or by state governors or by the president

Settlement Differences

• Common Law
• Most cases are settled (through negotiations between both parties) before the trail starts
• Civil Law:
• NO pre-trial settlements

Judgement Style Differences

• Common Law:
• Often a personal judgement
• Different judges’ decisions and their reasoning are published
• Each judge can publish their opinion in the decision even for dissenting opinions
• The final decision is the majority’s decision
• Civil Law:
• The court’s final decision doesn’t contain any dissenting judges’ ideas
• Impersonal judgement

3 Layers of Feudalism in England

• King: Owner of all land.
• Lords: Right to use lands.
• Serfs: Linked to lords for land use.

Centralization of Justice:

• Unified with royal court/writs. Westminster Courts:
• King's Bench: Criminal offenses.
• Common Pleas: Private law.
• Other courts = Ecclesiastical Court
• Maritime courts
• Itinerary Justice: The king travelled around the country, bringing the courts with him to give justice

Writ System and Consequences (Before & After)

• Were formal letters with the king’s seal on them
• Used to direct sheriffs/lords to administer justice.
• Provisions of Oxford (1258): Restricted new writ creation.
• 2nd Statute of Westminster (1285): Allowed new writs with parliament approval.
• Action on the Case Procedure: Created justice for unprotected situations using similar existing writs.

The Writ of Trespass Evolution

• Protects against the “unlawful and violent invasion of the personal and patrimonial legal sphere of a subject”
• Writ of Trespass on the Case (Tort Liability): No force/violence needed. (Negligence, harmful behavior)
• Writ of Trespass on the Case in Assumpsit: The use of force (the violent act) was no longer a requirement
• Specific Performance & Injunction (introduced by the Equity Court)

Equity Court: Administered in parallel to Common Law, introducing new Performance and Remedies

• Remedies for undue influence
• Courts unified in 1875
• System: Courts apply equity and common law.

Court System

• Multiple layers, not always three, appealing requires permission.
• Layers are:

1. Aside from courts of first instance.
2. High courts
3. The court of appeal
4. The supreme court
5. County courts (for small claims relating to private law)
6. Magistrate courts (local courts for minor crimes)

Rule of Binding Precedents

• Vertical Perspective: Hierarchy and Courts must follow their precedents
• Horizontal Perspective: Same ranked courts less stringent (US) VS Stringent courts ARE obliged to follow their own precedents

Ratio Decidendi:

• What's followed by
• legal rule from judgement; judges avoid precedents.

1. Distinguishing
2. Overruling

Sources of Law

1. Statutes - But relies on presence of Common Law
2. Case Law

Brief Overview of The US System Key Features

• Constitution, federal system, more statutes, one attorney type, judges elected, law degree required
• Article 1: Federal government’s legislative power
• Copyrights (intellectual property) ⇐ part of private law
• Bankruptcy law
• Maritime law
• Contract law
• Amendments 1-10: Bill of Rights Protect individual freedoms

US Judiciary System

• Two types of systems Federal Court System
• Federal Supreme Court
• Federal Courts of Appeal
• First-instance Federal Courts (District Courts) State Court System: Different in each state Solution: There have been harmonization & standardization standards Restatement of Law and UCC aimed to harmonize laws. It’s a Model Law categorized as Soft Law

Public Law VS Private Law

• They can be considered as 2 complementary branches of law

1. Private Law: Governs horizontal relationships between equals, emphasizing freedom and private autonomy and private interests regulation
2. Public Law: Governs vertical relationships (state/individual), emphasizing “Command & Control Logic” and individual interests being subject to restriction.

Hierarchy Sources of Private Law in Civil Law Countries:

• Constitution
• Civil Codes: Formal Laws/Statues, central (organized) to private law systems.
• Commercial Codes: Enacted a few years after the Civil Codes were
• Regulations: Rules issued by states / public authorities / local authorities
• Customary law: Recognized by law but requires a certain number of individuals following a certain kind of behavior for that behavior to be considered legitimate

Decodification

• From the 1970s onward
• It weakened Civil Codes (?):
• Certain things that were regulated only by the Civil Codes started being regulated by special statutes and other specific codes Ex.) Birth of consumer codes ⇐ protection of consumers vis-à-vis businesses

Ways of Interpreting a Written Law in Civil Law Countries (Ranked by Order of Usage):

• 1. Literal Rule
• 2. Logical / Historical Interpretation
• 3. Systematic Interpretation of the Law
• 4. Teleological Interpretation of the Law (the “Golden Rule”)

Common Laws:

• Hierarchy includes constitution, precedents, statutes, regulations

Formal Sources of Private Law in Civil Law Countries:

• The constitution (unwritten constitution in the UK)
• Precedents (case law) ⇐ though practically, statutes are a higher source than case law

Statutory interpretations and Influence

• At the beginning, statues were only considered exceptions to case law
• EU Membership made courts interpret with literal rule; converge civil & common law
• Interpreting using the literal rule in a milder way

Interpreting a Written Law in Common Law Countries (Ranked by Order of Usage):

• 1. Literal Rule
• 2. The Reasonability Parameter of the Golden Rule
• 3. The “Mischief Rule”
• 4. (USA only): Laws need to be interpreted in accordance with the constitution
• 5. Legal scholars (just recently became relevant in the UK; was always relevant in the US)

Link Between Private Law & Commercial Codes

• Started as trading principles for merchants on a transnational level, developed into state codes

International Law

• Treaties harmonize, address cross-border trade barriers
• International Chamber of Commerce (ICC) tries to unify contracts.
• It aims to collect best commercial practices
• To provide uniform standard contract clauses
• The EU: Regulates competition among EU businesses. Regulations & antitrust.
• UNCITRAL, Vienna Convention regulate cross border sales.

Contract Definitions

• Tort: Wrongful acts/infringements of a right that leads to legal liability.
• Injunction. Order from courts
• Obligation:
• Formal Obligations: Recognized by the law
• Property types/ definitions

Common "Contract" Types

• Clicking “accept” on websites’ terms of services
• Making purchases (ex. Buying groceries
• The word “contract’ has different meanings

US Private Law

• Not based on a Private and Public Law distinction
• Lawyers call themselves lawyers "who work for private clients"
• And Corporate lawyers get paid for their experience to the companies

Most Important Sources of US Private Law

• Constitutions
• Statutes (codes)
• Administrative Regulations
• Contracts
• Courts & the Common Law ⇐ MOST IMPORTANT

Shareholder Agreements

• Makes sure that shareholders all agree to vote in the same way
• Protects minority shareholders

4 Important Common Civil Principles of Law

• Freedom of Contract: Autonomy but standard forms of contract are an issue
• Binding Force of Contracts must be upheald: Each party must perform all the obligations arising from the contract
• Principle of Informality contracts don't need a specific form: It’s the intention that makes the contract
• Contractual Fairness: Contract MUST Adhere

Common & Standard Civil Distinctions

• Procedural Fairness: The court can ONLY intervene to protect one of the parties if the contractual autonomy exercised under imperfect conditions
• Substantive Fairness

Sources of Rules structure on a Multilevel Legal System

• Party Agreement
• Official Legislations: Domestic legislations, European legislations, supranational / International Legislations
• Rules Made by Non-state Organizations

Battle of Law Forms - Conflicting Clauses

• Conflicts of rule
• Rule in Dutch Law: Offer Rule - First Rule
• Rule in English Law: Last-shot Rule-Last contract
• Rule in German Law: Knockout Rule General agreement- Law

Official Sources of Contract Law:

• Two types

1. Default Rules: CAN be changed by the parties The law provides rules that are automatically applied IF the parties haven’t addressed already them in the contract
2. Mandatory Rules: CAN’T be changed by the parties

Domestic Law

• It can be changed. 1)Civil Codes - Reforms incorporated doctrines developed by courts 2)Special Statues for Specific Areas of Contract Law. - Rules have civil codes
• Contracts are long and detailed due to lack of law

###European Law influence

• Have +15 directives Directive = a European legislative act that is binding on member states

Main Goal of the EU - European Single Market

• Free movement of persons, goods, services, and capital
• Article 14: The EU has rights over contract law on legislative acts

Supranational / International Law

• The Vienna Convention
• Principles of the agreement
• UN Commission aims to unify contracts
• The idea is to harmonize contract law between states

Informal Rules

• Are sources of rules that regulate contract law
• Also a source of soft law that isn't mandatory
• Evolution in Binding agreements

Definitions

• A legally binding agreement
• Comes from the agreement of 2 or more parties expressing their will and consent

(Civil Law):

• Two parties to establish, regulate, or extinguish a legal relationship amongst themselves - Article 1321

Civil Law - Classification of Contracts

• The French made the Napoleonic code
• Bilateral and Unilateral Contracts - Two party that obligate
• Agreements of 2 parties which reciprocally obligate themselves (the obligation of one party is related to that of the other
• Consensual and Real contracts - If finalized upon agreement or fulfilled

Common Law:

-Contract law developed from the area of torts

• Needs Writ of Trespass by both parties
• Consideration: Essential element of a contract rendering it binding
• It's the essential element of a contract which renders it binding
• The exchange between the parties makes a contracts
• Only bilateral contracts characterized by consideration are contracts
• Need deed to make Unilateral agreements

US - Definition of Contracts:

According to the Restatements of Contract - Breach has reproach Contract = the total obligation in law that results from the parties’ agreement, and affected by this act and any other applicable rules of law

###Process of Offer and Acceptance:

Both need intention, agreement, legal relation, consideration/cause, capacity, formalities and two parts: offer & an agreement Offer: The proposal must show intent to bind

###Types of Perspectives

• French Law: Are offers to the public UNLESS [ ]
• English & German Law: Invitations to Treat

###Carbolic Smoke Ball Case influence

• The court's considerations for offers and contracts
• If reward = it needs to be valid

###Shop offers or Invitations to Treat?

• French Law: Offers need to stick with price tags
• English & German Law: Invitations to Treat

###Can an Offer be Revoked?

• 2 interests All Legal Systems: Offers can usually be revoked IF the withdrawal from the offer reaches the offeree before OR at the same time as the offer itself

###3 Perspectives German and American

• German Law: CAN’T revoke unless specified. If no time limit/expires after a “reasonable amount of time” has passed
• English Law: CAN revoke at any time
• American Law: Firm offers are NOT revocable during the time stated (?)
• French Law: CAN revoke until acceptance BUT offers are protected

###Offer is over

• Offer dies if
• Rejected by the offeree or their counter offer
• Or deadline expired or has perished

###Acceptance of an Offer:

• Must clear offerer with oral, writing. Unless stated for requirements like through the offer. The acceptance must mirror exactly.

###Acceptance by Conduct:

• No Writing needed; when the offeree acts as though they have accepted the contract

###When does the Acceptance Take Effect? Contracts need 2 parties agreeing face to face

• Various theories to prove if the contract is valid 1.1) Actual Notice Theory: Contract = concluded when the acceptance is READ by the offerer 1.2) Expedition Theory (Mailbox Rule): Contract = concluded when the acceptance is SENT / posted (put in a mailbox) 1.3) Receipt Theory: Contract = concluded when the acceptance is RECEIVED 1.4) Externalization Theory: Contract = concluded when the acceptance is WRITTEN

###Why is the Moment a Contract is Concluded so Important?

3-Point

1. Revocation - to determine whether the offer can be revoked
2. Properties - to determine whether the properties / goods & services related to the contract have been transferred
3. Applicable law - to identify which law is applicable

###Entores VS Miles Case - Facts

• Involved communication and the question of what constitutes a valid contract
• Entores Company had a problem with the Miles company over selling a product

###3 Court considerations

Apply - Apply the Receipt Theory (Mailbox Rule) OR the Postal Rule If Mailbox Rule: Use English and Law in the contract If Postal Rule: Use Dutch law in the contract

• The Postal Rule CANNOT be applied for instant communication mediums English law needs to be used

###Intention / Will of the Parties: Essential part of contracts

###Meaning - Analyzing Contracts

• Use common sense, unless a dispute occurs

###Determining Intentions need test

• Look at binding or not

###Agreement Types: A-Commercial Agreement: Usually binding with presumptions B-Gratuitous Agreement / Disadvantageous Transactions: Usually Not binding due to suspicion C-Social Agreement (Friends, etc.): Usually not binding D-Domestic Agreement (Family Agreements): Generally Not binding

###Consideration (Common Law) & Causa (French-based Civil Law): Causa (French-based Civil Law) Originated with the Napoleonic Code

###Criticism of Consideration & Causa: They are unnecessary so it can be substituted by other requirements of contracts

###2 Types of Consideration

• Executory Consideration: Found in BILATERAL contracts
• Executed Consideration: Found in UNILATERAL contracts (deeds)

###5 Doctrines Courts Developed about Consideration:

1. Consideration Must be Sufficient but not Necessarily Adequate - English Law:

Doesn’t Need to be Adequate Ex.) Buying a house for €1,000 when its value was €1,000,000 2) Past Consideration is NOT Good Consideration:

3. No Good Consideration for Partial Payment of a Debt as a Discharge of the Entire Debt

4. Only a Person to Whom a Promise was Made can Enforce the Promise - Because the promisee provided the consideration for it AND

5)An Existing Duty DOESN’T Amount to Valid Consideration - Because the promisee is already obliged to do it

###Presentation Notes(Tweedle v Atkinson Case):

1999-Third parties can’t benefit even if there's an agreement

###Prior Cases: 1)Moral Obligation: Women's rights - Can't offer or be the responsible for the debts 2) Pric V Easton Price

• The concept of Privity starts gaining traction

3. Party C is able to sue because party B worked as an agent for party A
4. An agent is assigned and then C sues and the agent doesn’t get sued

###Exceptions to Privity of Contract: - Agency and Assignment of Debt

###Deeds & Promissory Estoppel

• Act under Seal - A unilateral contract enforced when parties act to it

###Why Consideration Won’t be Abolished in the UK:

• Super Deeply In grained to the English System

###Causa (Continued)

• In German & BGB-based Systems, there is NO Causa

###In French-based Systems

Causa Ex.) Italy, Spain, Belgium — can be covered by intent

2 Types of Causa:

1. Usually Identified by style
2. Rarely

• Function of Causa:* Gives protection to law-compliant

###Presentation Notes - Stilk v Myrik Case (1809) - Captain and the Boat

• 3 Points ###Legal Capacity: Mental State.

2 Aspects needing exceptions:

1. Minors age limit
2. Those who are sick.

###Principle of Informality (Continued):

Unless stated by the law For the form

###Types of Formal Requirements

• Formal Requirements Often Required for Specific Cases:
• Need Natorial Deed

###Can contracts be cured - Cure of formality

• If provided by law

###Principle of Good Faith

• A: Absent from Common of Law
• B: In Contracts and Systems where it is applicable

Pre-Contractual Obligations

3 Duties in contract

Elements Confirming the Existence of Pre-Contractual Liabilities:

Other party and reliance on Conclusion

###What is a claim with Damages

2 Types: A: Negative and Positive interest

Where can the common law be used Negotiating Also damages can be claimed Negotiating and what they do

###Principle of Good Faith in Courts Generally absent in common law, as a principle and is recognized in law.