Cardilli Exam PDF

# m LESSON 8, 9/12/2020 - FROM NOW ON NOT INCLUDED IN THE MIDTERM- ## PRIVATE LAW * **Modern Civil Codes** * Law of persons * Law of things * Law of property * Law of contracts * Law of obligations * Law of succession * **Roman Law** * Personae * Res * Actiones...

# m LESSON 8, 9/12/2020 - FROM NOW ON NOT INCLUDED IN THE MIDTERM- ## PRIVATE LAW * **Modern Civil Codes** * Law of persons * Law of things * Law of property * Law of contracts * Law of obligations * Law of succession * **Roman Law** * Personae * Res * Actiones ## Roman Perspective In Latin, the word "persona" meant, in the beginning, "mask" in theatre. It is a symbol/representation of the physical human person, not the reality. "Homo, homines" is the real human. In Roman Law, there are 3 kinds of human persons with different conditions: slaves, freemen, freedmen. "Persona" can be the freeman, the freedman, and even the slave. A slave is a person too, not a thing. Romans had the idea that the human person is never perceived alone, but always inside his community (social, political, family, village, universal, etc. → a concept later affirmed by Hegel) * In the family, the human person can be the father, the son, the daughter, the workers, etc. * In the city, the citizens or the foreigners. * In the universal society, the freeman, the freedman, the slave. It is not a matter of individual roles. The communitarian element is more important than the individual nature. The human person cannot live alone. (zoon politikon - Aristotle) For them, it was easy to understand the sense of equality ≠ egalitarianism (absolute equality). For Romans, equality meant that each status had its own equality. The Roman Empire has never fully been an imperialistic power: the idea was not to make a lot of people subjugated to their power, but that everyone should become Roman. There is indeed an imperialistic idea, but the goal was not to have a small leading group of Romans among everyone else, but to bring the foreigners to become part of the Roman population, while being able to maintain their culture. E.g. In this inclusion, the Romans incorporated the gods of everyone. The only problem was monotheism/Christianity: was it possible to make Jesus a god of the Roman empire? It was not a problem for the Romans, but it was for the Christians, who could only accept their own god. Romans see these communities as circles that intersect each other. The role of Roman law was defining the position of the "point" (the individual) in those circles. * Romans: man is a point among circles ≠ Moderns: man is just a point. ## Modern Perspective In the 17th century with the School of Natural Law, came the idea that we had to talk about the human person not only in the community → birth of the ideology of the centrality of human beings as individuals, as alone subjects. The legal content therefore doesn't have the role of managing the relationship of this individual with its communities, but managing every single person in its individualism. The individualism of private law of the 19th century came from this idea. The human person becomes the subject of law (= a person - physical or juridical - who in law has the capacity to realize rights and juridical duties). We have the subject with his will and his representation of reality. The human person is not a part of the reality - the big natural community - anymore, he just represents the reality, and his own point of view becomes important. Very strong subjectivism (= is the doctrine that "our own mental activity is the only unquestionable fact of our experience", instead of shared or communal, and that there is no external or objective truth). Reality doesn't really exist, it is our representation (Idealism). The idea of human rights was based on this individualistic point of view - but are communities getting lost in the process? E.g. kids that immigrate can cross the borders, but the adults of the family must go back to the home country (both in Italy and USA). Kids and parents should not be separated, the family community should be preserved. ### To recap... what is a person? 1. Human person - as for the Romans, for which the community was central. 2. Legal person - an association, a corporation, etc, so a juridical person. Here "person" means just subject of law. We don't care if the person is part of a community. ### 2 matters to address: * **Capacity to act** - when can you can have some duties and rights (e.g. 18 years old in Italy). * **Legal capacity** - when you can act and be considered in a legal view (e.g. in Argentina since conception - in Italy from birth). Both depend on the legal order. ## Relationship between: subject of law - will of the subject of law - object of law In ancient cultures, reality shaped the law, and the things useful for the human person. Now the human person can decide what nature one thing can have. E.g. the sea, for the Romans, was res communes omnium, not owned by a single state. A theatre was a public thing because it had been built with public money and was there for the public. A street is public for the same reason, without the need to pay for using it. Reality shaped the law. In the modern perspective, the law would like to shape reality: but this is not possible. As a country, I can say that part of the ocean is mine, but is it real? It's a utopian view to think we can change reality with our will, saying what should be the object of law. Law can affect real social things, but cannot change the nature of things. We are not outside of it, we are not gods. # LESSON 9, 10/12/20 ## PROPERTY ## Relationship between a person and an object: * **Ownership:** I am the owner of the object, I can do what I want with it, whether I choose to use it or not. The strongest legal relationship between the human person and objects. Why is this concept so important? It lets us understand the different kinds of properties that came in our legal history. Inside of ownership, we can speak of property or, even better, properties (because there are different kinds of properties). * **Use:** I use things, even when they are not mine. (e.g. taking the wood and using it for making a fire). Different kinds exist, like the usufruct (usu + fructus) = e.g. if I have a piece of land but cannot work on it, I can give it to another person to work on it. I maintain the ownership but give the right to use it = the right to derive profit from it to somebody else. Connected to the concept of “Iura in re aliena” = real rights on things owned by others (e.g. a road that crosses a private property to reach another property otherwise unreachable. It's like a dependency of pieces of land → Romas used the word servitus even for this kind of rights). ### Roman law has 3 kinds of properties: * **Collective property:** collective ownership + collective use. * **Public property** (the most important) → collective ownership + individual use. Eg. a public land belongs to all citizens and each citizen can occupy a portion of this land in order to use it for himself. Principle of production: fruits belong to the citizen who works the land. * **Private property:** individual ownership + individual use. I can dispose of it how I want (e.g. I can sell it). ## History of private property ### Ownership + use + having the power to sell In the Code of Justinian _dominium / dominia_ (pl.) is mentioned as the most ancient type of right of property, recognized only to the _cives_ (Roman citizens); it described the total and exclusive belonging of a thing to an individual. Other concepts mentioned were property, possession, _iura in re aliena_ → most of these words have a different meaning today. In the Middle Ages, new types of legal ideas came. Feudalism employed just another kind of _iura in re aliena_. ### French Civil Code, 1804 (Code Napoleon) → also called the code of private property (while the German Civil Code is the code of the will, of the juridical act). * **I book:** "Des personnes", rights of people, family law. * **II book:** “Des biens et des différentes modifications de la propriété”. _Biens_= legal goods (whatever the subject of law thinks that could be) ≠ things * Art. 544: "Property is the right to enjoy and dispose of things in the most absolute manner, provided we do not overstep the limits prescribed by the laws and regulations." * Art. 545: No one can be compelled to give up his property, except for the public good, and for a just * **III book:** “Des différentes manières dont on acquiert la propriété”. The only property that they mean with this word is private property → the liberal point of view prevails. Everything revolves around the issue of how I can have private property on things. From this point on, public property means the property of the state (≠ different from the roman public property), so it's just an extension of private property. ## In capitalism A person/subject of law (can be a human person or legal person, like a company) is the capitalistic owner → he holds the private property on the machine used for production: machines in 19th and 20th could not function without human workers. Workers are acquired through a contract, in which the worker is going to give his own time to the capitalist for a salary in return. The products belong to the capitalistic owner, not to the worker who is alienated from what he produces. Here the law that what is produced belongs to the producer does not subsist. [Alienation= according to Marx, in a capitalist society, the worker's alienation from their humanity occurs because the worker can express labour - a fundamental social aspect of personal individuality - only through a private system of industrial production in which each worker is an instrument: i.e., a thing, not a person. He identifies 3 types of alienation: from the product, from the act of production, from human nature.] Two important elements of this phase: * Private property as the central right of the human person. * The contract as a free agreement between the owner and the worker (however, the worker has no choice, he needs to work to survive, he is dependent on the owner. it's not formal slavery but it's similar to it). ### Qn.: Can private property bring more democratization? Or is it democracy that brings private property? The first reform after the fall of the Soviet Union was the introduction of private property → but this didn't immediately bring democracy. In China, the Property Law of the People's Republic of China, passed in 2007, codified property rights, while before there was only collective property. Did this bring democracy? Max Weber affirmed that capitalism can penetrate in every type of political form (monarchy, tyranny, democracy, etc). # LESSON 10, 14/12/2020 ## Historical Recap In our tradition, we have a lot of material about the property of things. In the 19th century, private property was made the fundamental pillar of society by capitalist ideology. The selection of material of legal content is important for the development of capitalist society. The French Civil Code interprets property in just one way → private property, now considered the fundamental right. The owner has full rights on its property, he can dispose of it how he wants. The state cannot limit this relationship between the owner and the property. So many problems were caused by this free use of private property (e.g. putting toxic chemicals from my industry in the environment). There was a change of thought in the 80s of the 20th cent. → → my use of property cannot be an abuse of social well-being. In Marxist theory, the end of the clash between workers and capitalists will be the winning of the workers, with the disappearance also of the state, since its function is that of creating an equilibrium between the 2 classes. The dictatorship of workers is the consequence of the end of the state → the only power existing is the dictatorship (≠ tyranny*) of all the workers together. The dictatorship of the proletariat is the intermediate stage between a capitalist economy and a communist economy, whereby the post-revolutionary state seizes the means of production, compels the implementation of direct elections on behalf of and within the confines of the ruling proletarian state party, and instituting elected delegates into representative workers' councils that nationalise ownership of the means of production from private to collective ownership. In the 20th century, our society changed: it is now a mass society, where we are all consumers, not a society based on classes anymore (true but still debatable); then there are supranational economic powers that sell to everyone in the world the same products. Which is the role of the state here? Can the state defend the people from these strong supernatural powers? [*No negative connotations were attached to the word tyranny in ancient Greece, where rulers of city states traditionally held the title `tyrant', and no negativity was stigmatized to it. In Athens, before democracy set foot there, the last tyrant ruler was particularly unfair in using power, and the term got a bad name. Subsequently, Plato and his followers, by their political discourse, gave permanence to the attachment. In the Roman meaning, a dictator was a magistrate appointed during a crisis to handle a particular set of tasks. His power regarding those tasks was absolute, but when they were completed or six months passed, his dictatorship was over. In modern use we have stretched it, lost the original limitations and basically confused the meaning with that of tyrant. A tyrant is an absolute ruler with no explicit limits on his/her power. Depending on his/her own nature, a tyrant can be benevolent or harsh. Absolute power tends to corrupt so there are a lot more oppressive tyrants in history than benevolent ones. Although the two words are often used interchangeably, just drawing from their origins, a dictator is legitimately appointed for a specific time period to perform a specific job and has absolute powers in the performance of that job. A dictator can become a tyrant by overstepping his legally granted powers. A tyrant is an absolute ruler with no limits and likely rules illegitimately and oppressively.] ## Concept of NUMERUS CLAUSUS on REAL RIGHTS Real rights: "real" from "res" (= object, possession). The real rights in Roman law were: ownership, use, habitation, usufruct, servitudes, pledge, real mortgage, superficies, and emphyteusis. Ownership was a real right in one's own thing, _aius in re propria_. In the Middle Ages, there were like 20-25 real rights on private property. But when private property starts being the pillar of society, private law starts to impose, as much as possible, that private property should be free, and few rights should be imposed on it. Since the French Civil Code, the number of real rights on things of another person were limited → _NUMERUS CLAUSUS_, a result of ideology. If I limit the possibility to create real rights on the things of others, I can make private property stronger. # CONTRACT LAW [Development of capital history: commercial – industrial - financial capital → the contemporary anakyklosis (ἀνακύκλωσις) for what it regards the history of economics, key to understanding the contemporary times] We have to distinguish 2 concepts: agreement (structure)/exchange (function). ## E.g. CONTRACT OF SALE: exchanging goods or services for money; most important contract in the world since the ancient world, it's the 90% of contracts in the world. 1. **Structure of contract:** the role of the will in the agreement with another person. E.g I want to sell a book of mine for 10 euro. The buyer wants to buy it for 5 euro. There is no agreement. I can offer to sell the book for 8 euro. We start negotiating, balancing our will. In the end, we settle for 7.50 euro. This reached will is a new kind of will that is neither mine or yours: it's the agreement → min. 2 or more wills reaching an equilibrium point, in the legal world. 2. **Function of contract:** My purpose is to sell. Your purpose is to buy. I receive your money, you pay me based on the price. This agreement has an exchange function. ### Remarks: * The will does not get expressed when a seller sets a price and I just go there and buy, but it's still a will. * The contract doesn't have to explicitly state the exchange function – it was created as a new way of legal institute. There were ways to express exchange functions without contracts → sales in presence, sales in cash (for example at the market, we make an agreement for the immediate exchange between the money and an animal – it's not a contract). ## Another element: OBLIGATION → a juridical duty to perform in the future. It's a specific characteristic of a contract. The agreement is not to make an exchange now, but to make it in the future. How can I be sure that you will respect this? Thanks to the obligation. In the present, we have just to decide which things we want to buy and how much it will cost. ## Contracts in Roman Law Roman jurists consider important the specific types of contracts, not the general notion of it. ### Typical contracts: sale, loan, hire, transport, etc. #### Roman system of contracts * _Verbis cumtraere_ (formal words contracts) → just formal words are enough. * _Litteris c._ (written words contracts) → the agreement is formalized in a contract. * _Re c._ (contract with the delivery of a thing) → it is immediate, no need for obligation. * _Consensu c._ (consensual contracts) → both parties of the contract will sacrifice something for the other. Bilateral obligation is present (principle of reciprocity). #### General notion of contract → some Roman jurists tried to elaborate general notions of contract. ## Labeo: (Augustean time, I c. BC - I c. AD) Contract should have 3 elements: agreement + bilateral obligation + good faith. Bilateral obligation means having a fair structure, in which each party will sacrifice something for the other (the seller his own thing, the buyer the price paid). This agreement can be defended in the tribunal. All of this happens under the principle of good faith, a mandatory principle in this kind of contract. It's part of _ius gentium_ as a legal system. ## Pedius: (I - II c. AD) Agreement is a fundamental element of all kinds of contracts, also in real contracts, etc. ## Aristo: (I - II c. AD) Contract is agreement + causa. The agreement creates a fair structure, if there isn't it's not a contract but an act. # LESSON 11, 15/12/2020 ## ULPIANUS + PEDIUS ### D. 2.14.1 Ulpianus, On the Edict, Book IV The justice of this Edict is natural, for what is so suitable to the good faith of mankind as to observe those things which parties have agreed upon? 1. The term _pactum_ is derived from _pactio_, and the word _pax_ has also the same origin. 2. An agreement is the consent of two or more persons to the same effect. 3. The term "conventio" is a general one, and refers to everything to which persons who have transactions with one another give their consent for the purpose of making a contract, or settling a dispute; for as parties are said to come together who assemble from different places in one; so, also, the same word is applicable to those who, from different feelings of the mind, agree upon one thing; that is to say, arrive at one opinion. The term "conventio" is such a general one, as Pedius very properly says, that there is no contract and no obligation which does not include it, whether it is made by the delivery of the thing, or verbally; for even a stipulation, which is verbally made, is void, where consent does not exist. 4. The greater number of conventions have names that are peculiar to them, as, for instance, sale, hire, pledge, and stipulation. ### Notes: * To follow what the parts have agreed upon is a question of good faith and justice and peace. * Conventio: cum-venire → reach a common will. The agreement is a fundamental part of every type of contract. If it isn't there, the contract is void. Agreement is the general idea, contract can be a type of agreement. (Consensus: cum-sentire → feel together) * Ulpianus mentions Pedius (who lived about a century before him). ### D. 2.14.5: Ulpianus, On the Edict, Book IV. There are three kinds of conventions, some of which relate to public matters, and some to private affairs. Those which are private are either based upon legislative enactments or upon the Law Common to all Humans (= _ius gentium_) 1. A public convention is one by which peace is made when two military leaders agree upon certain things to that end. ### D. 2.14.7: Ulpianus, On the Edict, Book IV. Some conventions based on the _ius gentium_ give rise to actions, and others give rise to exceptions. 1. Those which give rise to actions are not known by their own names, but pass under the special designation of _contracts_; as purchase, sale, hire, partnership, loan, deposit, and other similar terms. ### Notes: * Here we are not talking about agreements in general anymore, but about contracts. We may have an agreement that is not a contract, but in each contract we need an agreement. * There is a difference between public agreements (e.g. international agreements) and private agreements → the latter produce actions (meant as judicial actions) → the possibility to defend in court the agreement. ## LABEO He lived in the Augustan period. His most famous rival, both in politics and in law, was Gaius Ateios Capito. Both founded the 2 most important schools of law in Ancient Rome, with two different approaches to law: * **Sabinian School, by Capito** → more conservative approach. * **Proculian School, by Labeo** → more innovative. He was himself an innovative jurist. Living in the transition period between Republic and Principate, he was in favour of the first. He even refused the role of consul offered to him by the emperor Augustus because he thought that the emperor was destroying the liberty of the Roman Republic. ### Here is another commentary of Ulpian on the Edict: ### D. 50.16.19: Ulpianus, On the Edict, Book XI. Labeo, in the First Book On the Urban Praetor, defines the terms "to act," "to transact," and "to contract," as follows. He says that the word act has a general application, and refers to anything which is done verbally, or with reference to the thing itself; for example, in stipulation or loan. A contract, instead, is a mutual bilateral obligation (ultro citroque obligationem = from one side to the other), which the Greeks call `synallagma` (συνάλλαγμα), as, for instance, purchase, sale, hiring, leasing, partnership. The term "to transact" signifies to do something without words. ### Notes: * If we see it as a unique obligation, the equilibrium of this bilateral obligation must be preserved in the time of the performance - if one party changes, the other changes too to maintain the equilibrium. * Labeo focuses on verbs, not nouns (act, transact, etc). Stipulation (verbal contract) and loan (real contract) are not contracts, but acts. The contract, in his opinion, is a mutual bilateral agreement, called _synallagma_ (σύν, "together" e ἀλλάσσω, "exchange", therefore "mutual exchange") in Greek. * The agreement shall be found at the origin of the contract, at the moment when the parties agree on something: both parties are doing something for each other in the synallagmatic structure. This general idea of contract was useful for Labeo not only to explain better the reality of contract, but also to manage new kinds of agreement outside the typical structure of Roman Law contract. Now it is possible to imagine new contracts that did not exist before. ### 3 elements must be found to consider an agreement to be a contract: * **Agreement**. * **Synallagmatic structure (mutual obligation)** - the only way to recognise and bring into force the agreement. * **Principle of good faith** - mandatory principle. [Difference between bilateral and unilateral contract: A bilateral contract is a legally binding agreement, typically in writing, with terms and conditions negotiated between two or more parties - A unilateral contract is written by one party, which determines all the terms and conditions but is the only party with any obligations under those terms] ## ARISTON ### D. 2.14.7.2: Ulpianus, On the Edict, Book IV. Where the matter has not been placed under the head of some special contract, but there is a "reason" (causa) then, as Ariston very properly stated to Celsus, an obligation exists; as, for instance, I gave you something with the understanding that you would give me something else; or I gave you something with the understanding that you would perform some act, and this is synallagma (συνάλλαγμα), that is to say, a mutual agreement, and a civil obligation will arise therefrom. Therefore I am of the opinion that Julianus was very justly criticized by Mauricianus for his decision in the following case: "I gave you Stichus with the understanding that you should manumit Pamphilus; you manumitted him, but Stichus was evicted by another party." Julianus holds that an action in factum should be granted by the Praetor; but the former says that there is a civil action for an object which is uncertain, that is to say, one in prescribed terms, for there is a contract which Aristo calls συνάλλαγμα, and from this the action is derived. ### Notes: * Ariston tells us that it is possible to bring also an atypical agreement to be an effective contract. * In Ariston's structure you need agreement + reason (causa). * If I gave you something (past) with the understanding that you would perform something for me (future), we have an agreement. But an exchange programmed for the future is not a contract. To have a contract we need that either of the parties gives to the other the object (the “sacrifice” of the object) - only in the moment one of the objects is exchanged, the parties are bound by a civil obligation that can be brought to trial; at this point, parties cannot remove themselves from it anymore. (this is causa?) # LESSON 12, 16/12/2020 ## LAW OF OBLIGATION a tool of civil law legal systems, based on Roman law The idea of obligation in the XIX century → _Savigny_ is a German jurist (the 4 pillars of private law that we mentioned were elaborated by him). He asked himself: how is it possible to have an obligation without losing my freedom? How can duties and freedom exist together? E.g. in slavery, the slaves should perform a lot of duties, but freedom is not present. Instead, obligation cannot impress any kind of minority on the debtor, who he remains free. In the school of natural law, _Grotius_ (Dutch humanist and jurist, XVI-XVII cent.) affirmed, in the book "De Iure Belli ac Pacis” (1625) that performing obligation in favor of another person (like building for him a table for money) means giving away a little part of my freedom (portiuncula libertatis). Savigny still has this problem more than one century after. Savigny, however, doesn't focus anymore on that little part of freedom, but on the power of the creditor → an obligation is the power (herrschaft) over another person, yet not over this person overall (in which case his personality would be destroyed), but over single acts which must be conceived as subtracted from his free will and subjected to our will. Since this power concerns only singular acts, the debtor remains free. While the main perspective was the one of the debtor in obligation, Savigny adopted a new perspective by describing the power of the creditor over the debtor. ### Critics: * _Jhering_ (another German scholar of the 19th cent.) argued that this idea of obligation is unreal: it's impossible to speak about a power over something that does not exist in reality. A human act, before acting doesn't exist, after acting it is already done. The only real act is the obligation to do something in favour of the creditor, but power does not exist without a tangible reality (e.g. in property, I have power over my car, an object that exists). * _Marx_ believed that the materialistic meaning of obligation was negatively affecting every kind of relation between subjects of law, as everything will be in the end represented as a problem of money. For Savigny, obligation makes sense only referring to the value of money in that particular context, and there are no other consequences if I don't perform my obligation. Today, in the financial capital society (≠ industrial capital society) that we have been living in for 40 years, the problem is that any type of obligation can be seen as a problem of value and money → everything can be translated in economic value. ## In Roman law We have mention of the obligation in the _Institutes_ of Code of Justinian, not in the Digest. _Institutes_ is a manual to help learners of law grasp the fundamental elements of private law. ### 1.3.13: CONCERNING OBLIGATIONS (1) Now let us pass to the discussion of obligations. An obligation is a legal bond (iuris vinculum) (2) by which we are reduced to the necessity of paying something in compliance with the laws of our city (secundum nostrae civitatis iura) (3). 1. The principal division of all obligations resolves itself into two classes; for they are either civil or praetorian. Civil obligations are such as are created by statute, or at all events are approved by the Civil Law. Praetorian obligations are such as the Praetor has established by virtue of his jurisdiction, and these are also styled honorary. 2. Another division is made into four classes, for they arise either from contract, quasi-contract, an illegal act (tort), or a quasi-illegal act. First, let us examine those arising from contract. Of them there are also four kinds, for they are created either by means of the delivery of things, by words, by writing, or by consent; and these We shall treat of one by one. ### Notes: * (1) This definition is given from the perspective of the debtor. Obligation is the passive part of the relationship. There is however no mention of the power as Savigny intended it. * (2) "Iuris", because the vinculum here is not a material one, but a metaphorical one from the legal point of view. * (3) There is the plural “iura” because, in the classical period, the jurists thought that there were different kinds of law → so, who wrote this must be a classical jurist. The duty of the debtor to pay is expressed by strong words (reduced, necessity, bond, etc.) → the jurist who wrote this put together: duty & necessity; debt & responsibility/liability → together they give payment/performance. If the debt and liability are not together, we are not talking about obligation. I am free not to pay, but in that case there will be a responsibility against me (not a personal one, I am not going to jail) → a patrimonial responsibility* In ancient cultures we had the practice of taking hostages, where duty and responsibility were on 2 different people. Now, with this new concept, duty and responsibility come together in the same person. *Even more evident in capitalistic society. E.g. If you don't pay the loan to your bank, you will have very severe material consequences, even though you don't go to jail (so your liberty is restricted anyways). ## Main sources of obligation 1. **Contract** * Delivery of things * By words * By writing * By consent 2. **Quasi-contract** * Impossible to find an agreement between the parties (e.g. the negotiorum gestio = managing the affairs of another person without agreeing with them). 3. **Illegal act** → a tort mainly produces obligations of money payments. 4. **Quasi-illegal act** → something that is illegal but I have done it without fault, so it's not as bad. [Then there is a section on the extinction of obligation, and all the other parts of private law] In Roman perspective, the debtor should be helped by law (favor debitoris), a heritage that we have lost, mainly thanks to the shift towards liberal ideology. Every day we bind ourselves through legal bonds to multinational corporations. ### Why is debt/obligation so important? It's the only way from a legal point of view to “cheat” on time – it is a bet → I am going to perform my obligation in the next years, since I can't do it now. It's a strong legal tool to manage these relationships in the long term.