Comparative Law 4 PDF

Comparative Private Law II Created @September 27, 2023 3:13 PM Reviewed Lesson 1- 27.09.2023 BRITISH COLONIAL EXPERIENCE- HONG KONG EXAMPLE Circulation of common law models: domination m...

Comparative Private Law II Created @September 27, 2023 3:13 PM Reviewed Lesson 1- 27.09.2023 BRITISH COLONIAL EXPERIENCE- HONG KONG EXAMPLE Circulation of common law models: domination mass migration -Indıa, africa, hong kong north america, australia Colonial Expansion: Construction of colonial settlements, managed according to the model of social organization British Model: real imposition of British empire Circulation and enforcement vary in time and place enforcement of the rules changed a lot i time Comparative Private Law II 1  the attitute of the brtisish empire was quite free: the citizens were free to decide how important the model. these rules did not erase the local populations’ rules as long as they are not freaction of the common law model. If the problem is between to locals, they could apply on their law. British-local citizen: common law legal pluralism Indıan law is a mixture of common law, hindi law, sheria law, etc.: Anglo-Indian law its a new legal culture. FEATURES: non centralized structures: there are officiers from the UK to be the link between london and colonie. the locals pursued their applications there was a strong formation of self-sufficient government direct involvement of elites STRATEGIES AND TECHNIQUES Government based on the pyramidal structure Top: Governer North America: Governor + legislative assembly GOVERNMENT Legal basis: Royal Charters: Constitutional document of the colony, with different contents for each posession. the king granted his subjects (companies) the right to settle in a foreign territory, establish a local government and create a court ……. JUSTICE: Local Supreme Courts Top level: privy council. was part of the house of lords. established in london. competent for all the colonies moreover the deicison of coulcil are binding for all the colonies. The council guarantee of cohesion and certainty mechanism to report to the king the disputes that arose in the colonies APPLICABLE LAW: Comparative Private Law II 2  its not the automatic extension of british law. very slow process Malaysia: direct reception with local laws + civil law enactment of 1937 India: ….. Natural birth-right of english citizens: directly applicable law Preclude: Cut off date: time limit after which the britsh parliament legislative acts were no longer applied automatically application limit: compatibility with local conditions above informations are regardig the statutory law COMMON LAW: the colonial courts were supposed to the apply common law and acuity principles. (so transpose) besides privity councils, local british court decisions must be followed. however there were a few limitations: local circumstances, but no cut off date is foreseen. as soon as a number of precedent is created there is no longer to need to check british common law. after the first period, a local common law was created. EXISTING LAW ( before the British empire) principle: the existing law is pursued until they were modified or repealed by the colonial legislation. the same principle applies also comes from the previous colonial experience. coexisting of pluarality of rules. outcomes of colonization: today the outcome of this legal transplant is commonwealth and the inheritance of common law system. the model we see today is the common law and local law combination. common law’s capacity to adapt MIXED JURSDICTION: Comparative Private Law II 3  contact between common law and civil law but mostly the conclusion of colonization HONG KONG EXPERIENCE Before British empire hong kong was a aprt of the han empire British objective: the idea was not the conquests of chinese empire. they wanted to create free trade with china. british thought one way perspective. due to the limitations they did not satisfiy. As a reaction the brisitsh introduce the opium into the chinese markets. the outcome was the signature of free trade agreements. INSTITUTIONAL STRUCTURE legal system: extension of english law (common and statutory law); colony legislation; institutional apparatus; English matrix royal charter 1843 - administrative and political structure until 1997 1917: royal instructions+letter patents (constitutuion of the colony) governer+executive council+legislative council:vertical structure Governer. head of the politic and administrative structure head of the colony appointed by the queen within the suggestion of primeminister. centralization to ensure internal order more easily the governer could not work alone. executive and legislative council executive: propose something to the governer. their suggestions are not binding for the governor if the Governer intended to depart from it, musr inform the brisish government legislative council: legislative assembly of the colony. create written law. role of government acitivity through the possibility of porposing questions to the executive organ regarding actions taken. JUDICIAL SYSTEM: Follows the british model. there are different levels of courts. - magistrates courts, specialized courts Comparative Private Law II 4  Supreme court of judicature (court of appeal+high court) 1953: ESTAMBLİSHMENT OF A DİSTRİCT LAW appeal to the judicial committee del Privy Council 02.10.2023 British attitude was expand of trade insated of government. the judicial system based on the British model: Magistrate courts Specialazed courts wherever the colony is, the case comes to the Privy council as the last solution. SOURCES OF THE LAW: 1. British law 2. Law enacted directly in the colony 3. Customary Chinese law Its a slow evolution and stratification. legal pluralism. In 1841, english law was applied to britisih citizens and coexisted with local law applied to the premises. local law applied to locals shifted this: the law of england should be full force in Hong Kong, except where the same shall be inapplicable to the local circumstances of the same colony or of its inhabitants. the local citzens felt they are still belong to Chinese empire. need to cope with increasing crime, ensure british sovereignty and the superiority of english law over the chinese one. SUpreme court ordinance 1873: the limitation of application of english law. the cut of date established by ap. 5 1842. The posibility to maintain chinese rules whe they are not contrast with british common law and legislation. Under english law, only statutory law was understood, the common law enacted after april 5 1842 was regularly applied by local courts. Comparative Private Law II 5  Ordinance 1966: there is an idea of a better way for adapting. keep the framework of the common law, ….. Application of english law ordinence elimination of the recall to april 5 1843 the statutes issued by the British palrliement could only be applied if formally received by the local government. local law rules are really pluralistic: customary rules+ rules approaved by legilsative council+ some rules enacted by the british parliement that translated by the local council 2ndary sources of law: law produced by the colony the first oridannces regarded mainly commercial law. proposal of the executive council, the legislative need to analyze of this proposal, after the eventual approval this bill will be published in the legal journal. it will enact the ordinance. not all the topics can be covered by local jurisdiction. limitations: subject matter contained in the Royal ınstructions, extraterritoriality, modification of common law, jurisdiction of the judicial committee, contrary to the laws of the english parliment. 3rd sources of law: Chinese Customary Law rules that have a customary nature and applied only where the circumstances could accept this application. -absence of colonial loegislative preovisions on the point -absence of common law in these cases can be applied. topics: family law, local property transfer, local uses, rules handed down in the dynastic codes. more related to local and personal transactions. judges were coming from britain they were formed before the common law courts. thats why customary law for a while only applied by local courts., before creating a mixed society with common law basis Comparative Private Law II 6  HANDOVER TO CHINA Hong Kong was given back to the chinese government. China was amongs of the winning countries during ww2. after ww2: decolonization phase the unequal traties need to be revised, as well as the one that contained the sale of HK. 1982 Revision of the Chinese Constitution: possibility to establish special administrative regions in the chinese territory. one country, two methods. Sino-British negotiations starting in 1960s until 1979) 84. joint declaration between great britain and chine in the hong kong issue The SAR (SPECİAL ADMİNİSTRATİVE REGION) DİRECTLY DEPENDENT ON THE CENTRAL CHİNESE GOVERNMENT. Chinese government ggred on keeping status quo for 50 years. One china, two system. China-Civil law, HK- Civil and common law country keep contiunity also from a legal point of view. 1990: the national assembly of the poeple approves the basic law of HK, with entry into force on july 1 1997. ONE COUNTRY TOW SYSTEM PRINCIPLE: There are local authorities that deal with local issues. it includes the capitalizm as a form of social organization. protection of fundamental freedom. BASIC LAW of HONG KONG SAR drafted by a commitee included chinese and hong kong scholar. then approved by the national people congress in Beijing in 1990. it is the constitutional document for HKSAR. The principle included basic law high degree of autnonmy, hk people running hk, one country to systems the common law shall be maintaned except for any law that contrevene the basic law and subject to amendment by legislature. Comparative Private Law II 7  HKSAR ejoys executive, legislative and independent judicia power including that of final adjudication the court of final appeal. but it can be a higher court to apply in China. Central People’s Government the HKSAR government is resposnsible for forreign affairs and defence. There are 11 chinese laws- written statutory law directly applied to HK. (common law-civil law) Magistrate Court-District court-High Court: court of first ………. the law applied in HKSAR: Basic Law-Constitution law national laws listed in annex ııı to the basic law the laws including common law and the rules of equity in force before 1 july 1997 laws enacted by HKSAR BILINGUALISM Rules are express by bilingual way. -The law making in bilinualism all the statutory law must be written and published in two languages. the general rule is bilingualism. HK citizens can choose the language of the court. once they choose the language, it must be that one until the end. 03.10.2023 TRANSLATING LEGAL CONCEPTS The Role of Comparative Law All the text should have the same authority. but the ultimate aim of european legaislation legal terms come with the legal tradition Translating Legal Concepts: Comparative Private Law II 8  legal translation aims at finding equivalents, but this is not an easy task since cathegorizing and conceptualizing is a cultural bound issue. we should know which one the exact limitations of that concept. every transplation imply very important intellectual work. undertsand the deep meaning, identyfiyng a possible correspondence, an equivalent in the language in which we want to translate. connect to the find equavailent but only only the words, also the atmosphere. translation imply an interpretation. legal concepts have a regulatory value and the mere juxtaposition of legal concepts is a very dangerous operation. foreign law is focourse expressed in a languageç abd this language is not only langugae itsself also the culutre, history, particular sets of value also the lawyers mentality. information of foreign law is “imbedded” in the language which is: culture, history, particular sets of value also the lawyers mentality. sometimes its necessray to consider the deep meaning of the concept than the langugae. Obstacles in translationg legal concepts: Obstacles: the tradtitional ones that arise out of legal translation from one language to another the new ones that arise in the field of multilingual communication Technical Problems in translating 1. Stratification of different meanings the concept even within law can change internally. time,the environment (civil or public), interest of collectivity ie: eigentum in BGB 1900 is not the same concept that we find in the GG 1948 2. Demarcation function the concept need to be considered within the context. Comparative Private Law II 9  contract (does not include promises, nor marriage) - contrat (includes marriage) - vertrag (promises) 3. False Friends ie. decadenza and decheanche decadenza. general concept to determine deadline to exercise a right. can be translated with delais prefix in french the legal concept sounds or seems to same but they are not. 4. The problem of immanent values In our immediate perception of legal rules, they seem inseperable from their written form written way is not the only way to express the law. sometimes we use rules and concept that we dont know they are written or not. non verbalize elements of legal systems help to systematize legal system. the connception between law and culture and deeply understand law is a cultural….. Invasioni barbariche (barbaric invasions) v. Völkerwanderungen (migrations) Translation problems in the comparative law experience functiol translation is the best option than the litreal trranslation. because functional translatiın takes in to consideration reffered by the literal translation Unstransalatability of legal concept: From myth to chimera hte myth of equivalence in legal stranslation seems bo…. THE PROBLEMS OF LEGAL TRANSLATION IN A MULTILINGUAL CONTEXT Multilingualisn on europe sets numerous challenges to the problem of translation In the EU all 24 official languages are afforded equal status as an expression democracy Multilingualism is considered a value Comparative Private Law II 10  equivalent originals and authentic texts in different langugaesare ‘a courgaeous statement that there are no dominant languages or cultures in the european union’ on the other side, multilingualism is the source of innumerable problems when it comes to draftin trnaslating and interpreting legal acts produced in all 24 official languages and aimed at harmonizing law in al 28 member states the aim of the secondary legislation of community law-makers is to harmonize rules, in order to guarantee to all citizens the same situations. numerous problems of achievenig a harmonized rule because of translation problems existing at eu level: lack of definitioın lack of coherence linguistic discordance 1. Lack of Definition at european level there is no uniform legal terminology. lack of legal culture that pre-exists for the european legal culture. concern of the encatmnet process, legal terminology will be interpreted according to the national background. 2. Lack of coherence 09.10.2023 TRANSLATING LEGAL CONCEPTS ecj of 1982: Cilfit Case 3 principles: since the community of that time is drawn up different languages and since all these verisons are equally important the relevant interpreation the relevant interpreation should be carried out through the comparison of these versions. the european law must used a particular terminology. the language used in european level may not jave the eaxct comment as the legal systems where the language is used. Comparative Private Law II 11  every provsiiosn of european law must be pplaced in its proper context and interpreted in the light….. the principle cannot be dışlanmak from its concept. this multilingual text whenever interpreting a rule we need to cponsider and interpreted th legislation according to these principles. In order to create a harminozed system, standardization of a terminology that should achieve equivalnece in all MS. COMMON FRAME OF REFERENCE avoid the use of general abstract legal terms in directives which are either not defined or too broadly defined. provide clear definitons of legal terms, fundamental principles and coherent model rules of contract law. aim: reach codified equivalences. DRFAT COMMON FRAME OF REFERENCE english becomes neutral or descpritive language which is associated with a classical civil law background. english has undergone a process of hybridizaiton. we will keep using english for the international context but this new translate has been effected by different historical and legal systems. this will leed to creation of new words. different from the common law concept. ie. unilateral withdrawal - rückritt collaboration - Mittater und Beteiligte the use of neogoloism must me updated and monitored in order to maintain equivalences. these equivalences will have to be tested in relation to all other languages, in the context of a “circular” and not purely “bilateral” logic. Canada-Quebec: without a constant monitoring of the standardşzed terminologies in the various languages, these will diverge in the long run. Quebec is multilingual. might ben an interesting area to analyze these issues. the translation of quebec code in english and french they are both valid. Comparative Private Law II 12  STYLE OF JUDGEMENTS: COUR DE CASSATION, CORTE DI CASSAZIONE AND SUPREME COURT OF THE UNITED KINGDOM Cour de Cassation: an instrument of emancipation of the third state. the obligation for the judge to motiveate the decision was introduced by the law of 16 and 24 august 1790, approved during the french revolution. direct expression of the principle of popular sovereignty and the subjection of the judge to parliament. today this idea is lighter. judge expresses what was already expressed by the law. absolute loyalty to the legislative text. cassation do not cite….. 10.10.2023 actual law doctrine case law are present in all the legal systems even in common law its not possbile to say they use only case law. there is a statutory law. besides that before the brexit, europe is also using written law. the fact that complex legal systems requieres legal doctrine. even though its effect is less, still in english common law there is doctrinal part. 2 parts: premise and decision premise: contain the facts and questions of the parties. what are fact that final decision can lean on. decision: motives. what is the binding and actual decision part. (attendu que, considerant) (dit, declare, prononce) its not easy to identify what is the actual decision and all the rest in common law. the binding part of the decision. case law: there is no case law as a format in french law. even though the highest court still follows its previous decisions. ITALY- CORTE DI CASSAZIONE Features of Italian Decision: Comparative Private Law II 13  impersonality: they use past tense and passive forms. long winded style: sectoriality: you can access the highest courts only in the specified conditions. strict distinction between motivations and decision+mandatory elements prohibiton to cite doctrine. followed by lower courts, but not by cassazione. SUPREME COURT OF THE UK since 2009 it was House of Lords. the consitution chaged becuasethere was o sufficinecy in seperation of powers. the house of lords were in the parliament. not there is a body that should select the judges. Style of Case Law: due to the reason that common law is based on case law, its very importat to express celarly the reasoning the legal basis behind the decisions. the fact must be constructed. each jusge will express their opinion on the personal percaption. highlighting the fact on their perspective. what is neded is to rewirtr the gact and to express legal basis on which conquşerred opnion is taken. desenting opinion must be written in deatiled. because that opinion can be rule the future decisions. it distingusihes the british system from the american system. dissenting opinion preparing the legal reasoining for the overilling the principles. each jusge shoukd be writting down its decision from beginnig to the end. use of the first person: the judge explains the mental procedure, through whşch he landed a decision of reasonabless. there is no seperation of the ratio decidendi which constitutes the binding part of the decision. it must be extracted from the whole text by the following judge. Style of Statues: statutory law is not the main legal format. the comon statutry law has very particualr way of writting. the legislator needs to be precise and try to see every Comparative Private Law II 14  kind of possibility and interpreatition. the style is so long and analatical. extremely detailed dispositions. the least possbile should be left to the interpreatiton. the courts duty to protect citizen, look for the loophole they way to escape. the jusdge should fomarlly provide the interpreation of the legal text, risking to distort the legislator’s intent. Parliament might be forced to modify the lgeal text in order to ameliorate the law. Plain meaning rule. The Language of Contracts Parole evidence rule: the court and jusge when interpreting a text shoula ttştutde to the şebgauge its natural and appropriate meaning. even if borh parties agree and say we did not mean this, it does not matter. the rule wins. whatever is written on the contract, its not matter what did parties think when they were wirtting the contract. if there is a different meanin g mentioned on the contract, that meaning overcomes. Interpreatition Act 1889: the plural includes the singular, and the singular the plural, unless a contrary intention appears. Simplification of English Language: since the 1980ies “plain english movement” the ultşmate aim of eu diractives are drafted in better and clearer legal prose than traditional legislation in our common law world. no big room for interpreatitons. 11.10.2023 MIXED JUSRISTICTIONS Common law - Civil Law - Mixed Jurisdictions legal systems where there is the coexistence of common law and civil law. a legal system where we have civil law and religious, customs, etc. law each legal systems did some borrowings during their legal evaluations. Scotland - oldest 1707 Comparative Private Law II 15  Israel - youngest 1950 most of the exytended family consşst of the former colonial possessions transferred to: great britain, usa, france, spain, italy, etc. COLONIAL EXPERIENCE: FRENCH GROUP the hallmark of the french groups was modernity and codification code civil: emphasis upon bourgeois individualism and liberty. chosen to replace the outdated custom of Paris exported in the colonies. codified civil law considered to be stronger and more resistant to common law şncursion than uncodified civil law (scotland and south africa) DUTCH GROUP sri lanka, south africa, botswana and several the common futures of this group is dutch is arrived uncodified. uncodified roman-dutch law. there was strong doctrinal experience. authorative writers like Grotius. COMMON LAW GROUP British v. American influence they are received in the legal cultures in different ways. America: they have constitution, statutory law, doctrinal thinking, state law, federal law. the necessity of organization of law is greater England: there is no official definiton for mixed jurisdiction. CHARACTERISTIC FEATURES: 1. specificity of the mixture the system has been built upon the dual foundations: common and civil law all legal system is outcome of transplanting different legal systems. Comparative Private Law II 16  2. quantitative and psychological the degree of the influence make the difference between other legal systmes that influenced by other legal rules. high number of rules that transplanted. the reader would expect to recognize the dual character of law- psychological affect the person is already prepared for the complexity of the system. 3. structural civil law will be linked to the field of private law. thus creating a distinction between private continental law and public anglo american law. the content of the sphere is nevere purely civil nor purely common, but predominantly. THE QUESTION OF A THIRD LEGAL FAMILY Legal Systems for David: German-Roman system common law system socialist system philosophical- religious systems A THIRD LEGAL FAMILY the systems resemble to each other in bot the circumstances of their birth and in the reason for their existence. common historical origins unifying trait peculiar to these systems is the special cultural alignment of its jurists and the legal literature they produce. coupling of substantive civil law to an anglo american institutional framework the judiciary power in all mixed jurisdiction is a powerful institution based on the american models. Comparative Private Law II 17  linguistic factor displays crucial role. extensive use of english as a lingua franca. mixed jurisdictions resample one another in their approach to legal sources and legal reasoning common law has fused and penetrated civil law 16.10.2023 LAW OF TORTS any repsponsibility that can arise from non contractual liability. it can or cannot be based on a specific duty. the idea is protecting interest Law of torts: we cannot talk about just one tort. in common law tradition there is not one tort. whenever there is damage. it corresponding the tort. in civil law tradition, there are some correspondence in german law. we dont have a geberal tort but the german system is called typical system because there one general definiton about civil liability but there is a list of right the violation which arise a similar liability. common law- plural LAW OF TORTS AND LAW OF CONTRACT Cases often involve elements of both. function of tort. compensate victims for damages suffered. function of contract. to make sure that the party engaged in a promise, enjoy the benefit of the bargain. protect premises. if one of the partied breach the contract there is contractual liability. tort was born first. contract is direcrlty coming from the tort. both areas seek kind of compansating. the evolution of the law of torts is a feature of the history of common law.. TORTS: Tort of nuisance: for damages caused to the enjoyment of the goods the term nuisance emerged in the 13th century. referred to actions that took place on the land of the defendant. a writ of nuisance could be obtained to take action against the defendant. Comparative Private Law II 18  tort of disturbance: for damages to the person tort of libel: defamation-slander WRIT OF TRESPASS TO: dependin on the damages caused to PERSONS, GOODS, LAND writ of trespass upon the case————tort of negligence iif the action taken by a particular relatinship that suffereing by the damages. (?) writ of persons: robbery, beating writ of goods: theft- need of use ohysical force and intentional injury writ in consimili casu: for similar but not identical cases. TORT OF NEGLIGENCE the most general tort. burden of the proof easier for the plaintiff. the defendant has to give evidences to have acted with diligence. duty of care breach of the duty of care damage: direct consequence of the action non remoteness of damage in order to activate the negligence, this elements must be submitted. the plaintiff should the connection between damage and the defendant’s action, the defendant must prove that the action did not cased by him. -DUTY OF CARE: in a general meaning. normally asked only the certain profesions. ie. doctors,lawyers,etc. that implied a particular relationship with clients and those that acted within a public function. Donoghue vs stevenson 1932 the basis of generalizing the duty of care: neighbor principle in law the neighbor is an action that anyone can be affacted. you have to love your neighbor so you must not injure your neighbor. Comparative Private Law II 19  persons whoa re so closely and directly affected by my act that i ought reasonably tı have them in contemplation as being so affected. a manufacturer of products owes a duty to the consumer to take reasonable care. the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer’s life or property. the jusges overviewed the principle that the negligence cannot be limited only in these two situations. it must be generalized. general principle of responsibility for fault based on mere proof of negligence, damage and causal link. still tort of negligence compensation applied in a strict way in order to prevent economic crisis. IN USA———— MacPherson v. Buick Motor Co. 191- Cardozo judgement yukarıdaki davanın legal reasoning değerlendirilmesinde referans oldu. overcome the privity of contract establishes the resposnbility of the producer generalizes the liability for negligence POLICY CONSIDERATIONS practical need to limit the number of cases. arguments used by judges to deny the duty of care do not encumber certain professional categories of charges such as to prevent the pergormance of their activities with consequent damages to the entire comunity. TORT LAW IN CIVIL LAW in continental europe there are French and German approach. FRENCH APPROACH: general principle: nenimem laedere- coming from giusnaturalism, grozio all damages- contractual or non contractual- must be compensated. any damage caused by someone, must be compensated. the outcome of this principle is: responsabilite delictuelle Comparative Private Law II 20  any action of a man, which causes to another man a damage, obliges the one by whose fault it has arrived, to repair it. Conditions of the responsibility for criminal fault: -event -prejudice (perosnal,direct,sure) -Wrongful act / fault: something has been done wrongly -causality/ ex ante probability judgement FAULT: criminal fault-intentional civil fault everyone is responsible for the damage he has caused not only by his own doing but also by his negligence or imprudence. any damage, as long as there is fault, gives rise to liability- france, italy, spain, austria, portugal, holland 17.10.2023 RECOVERED DAMAGES DOMMAGE REPARABLE dommage materiel / physical damage A damage to your assets, physical or material damage. domage moral / non pecuniary damage -biological damage-socially adequate financial compensation for harm to physical and mental health there is distinction between harm on an athlete and professor on the leg determination of the damage is the main problem the “permanent” harm can change the compensation and the importance of damage: bacağın yaralanması veya tamamen kesilmesi gibi this chart based on the percentage of the damage ie. profession, age, etc. -moral damage-pain and sufferings (generally speaking) Comparative Private Law II 21  harder to calculate. hard to give a fix amount. -existential damage-turmoil of everyday life DAMAGES damage=violation of a subjevtive right (superseded by case law)———————— legitimate interest/legitimate expectation: violation of an legitimate expectation: ie. compensation for deaths of the cohabiting partner (more uxorio) chambre criminelle- yes, to compensation for death of the partner chambre civile- no compensation to the surviving partner civil liability: even the definiton seems general, it interpreted in a atrict way. only fundamental rights could be compensated. but after the case law discussion besides the written law, we have to check the precedent in order to see which damages are compensated and the maounts. written law. given general definitons about the damages TORT IN GERMAN LAW obligation is not exist in common law. its kind of a scholary thinking evolution. BGB: german civil liability UNERLAUBTE HANDLUNG 8TORTS9 823 n. 1, BGB anyone who intentionally or unintentionally, unlawfully injures the life, body, health, freedom property or other rights of others is obliged to pay compensation for the resulting damage. -there is a specific list other rights: any other property rights Fundamental Elements: human action deceit/intentional wrongdoing or culpa/negligence causation -probability of causing harm Comparative Private Law II 22  -scope of the breached rule wrongfulness of action or omission (linked to the possibility to avoid the damage) existence of an event (injury of life, health, physical integrity, freedom, property or another right of another person) Goods (Rechtsgüter) protected by 823: life, physical integrity, health, freedom property, other rights: ABSOLUTE RIGHTS -Injury to Life Art.2 gg -fundamental life the right to receive an incomme from those who would have been obliged with maitanance (844 BGB) the right is not recognized to the cohabiting partner passive euthanasia is allowed: the patient can refuse treatment (biological will- Patientenestament) -Injury to Physical Integrity Aggression to bodily safety In sports competitions, where caused by the violation of the rules of the game. damage to the unborn child -Injury to health any disturbance of the internal physiological and physchological functions nervous shock, without bodily injury. prescription of wrong medicines, poisoning damages to the unborn child (parents do not respond for any genetic diseases; they respond for the transmission of venereal diseases) -Injury to freedom freedom of movement (ie unlawfuls top by the authority; forced hospitalizasion) -Injury to property deprivation of possession of the asset Comparative Private Law II 23  deprivation of the asset -Other rights any right connected with the concept of property interpreted in a restricted way 826 BGB: anyone who intentionally causes damage to others by violating public order is biliged to pay damages ——- potential a-typicality case law processing where the damage is connected to an unfair behaviour, contrasting with the sense of fairness (social or professional) 823, n.2: anyone who violates a law that aims to protect another is liable for the damage thus caused. the ijured person will only have to prove the damage and the violation of right italian tort law 2043 c.c. unjust damage: taken from swiss civil code requierements of civil liability: any malicious or neglicent act can cause damage. can the creditor strat an action in tort when his righr has been violated by a third party?Superga slaughter decision of cassazione- 1953 football player considered as the company assets. meroni case decision of cassazione-1971 TORT Typical A-Typical Germany France England Italy Comparative Private Law II 24  18.10.2023 LAW OF CONTRACT Contract: legally binding agreement. every contract is an agreement but every agreement is not a contract in Roman law contract was promise. originally———- only agreement bassed on formal aspects were enforcable. ———- delivery fo good ———- roman law (common law) in common law only agreement with specific elements can be enforced. COMMON LAW: in birtitish common law there is no unilateral definiton of contract. contract vs. convention promise (declaration to assume an obligation) obligation (narrower) agreement (element of the contract) bargain (bargain is an agreement between parties to exchange of services) examples given by the bristish scholars in order to do define contract. all these terms including some part of the contract. statutory law, case law, besides common law— creates a higher level of comlexity in us legal system. Restatement article 1 books where the american jurists organized the state organization. state is the rule, federal rule is the excaption REMEDIES WITHIN THE WRIT SYSTEM wrşt of debt: recovery of sums of money, burden of the proof, plaintiff: debt resulting from a tort the debt usually resulting of a tort. someties more specific writs could be enacted. ie. writ of detinue (to recover a sspecified thing) …. Comparative Private Law II 25  writ of trespass writ of trespass on the case writ of assumpsit the first case where assumpsit used instead of trespass was: Slade’s case 1602 (slde v. morley) agreement and consideration: a binding promise the court issues the writ of assumpsit instead of the writ of debt. it was an action to protect the damaged by fraud, deception or malice of another party (tort of deceit) the opinion of lord popham: every contract executory applies a promise or assumpsit. Lord Coke: the first definition of consideration resirprocal only bilateral aggrement can be contract. for the contract two or more party shall be involved and perform their duties. CONSIDERATION: foundation of the binding nature of the promise. its a mutual exchange. distinguish the contract from gratutious promises. consideration need to be present, actual. past consideration is no good consideration ADEQUATE CONSIDERATION (in US COMMON LAW) consideration of the value of the goods that given by the party Whitney v. Steaners 1839 AGREEMENT agreement occurs when an offer has been accepted. can be oral or written INTENTION in order for a contract to take place there must be a willingness and knowledge on both sides they are entering into a contract Comparative Private Law II 26  for agreement to be binding: an offer in details and the content an acceptance. if there is a different content consideration capacity of the parties in terms of age and mental ability intent of both parties to carry out the promise legally enforceable terms and conditions (object) 23.10.2023 FRENCH CIVIL CODE It has a very strong revision has changed. the contract is an agreement by which one or more persons oblige one or more others to give, to do or not to do something. the contract is an agreement of wills between two ro more persons intended to create or modify of transmit of extinguish obligations New Book III, Code Civil Contract for mation (new section): freedom of form; confidentiality of the pre- contractual phase Good faith (formation+performance) / information dutyç The party in breach is obliged to compensate damages economic duress (no more hardship, but depdendency) VALIDITY REQUIEREMENTS ar.1108 civil code. agreement ability to contract an object GERMAN BGB like in common law there is no definition of contract in the law but definition given by the scholars: Comparative Private Law II 27  agreement of at least two parties concerning the creation of a right between themselves any legal transaction consisting of the declarations of will of at least two contractors BINDING NATURE OF A PROSOSAL 145 BGB: any person who offers to another to enter into a contract is bound by the offer, unless he has excluded being bound by it. encounter of wills of at least 2 parties; exchange of declaration of wills; no particular form requiered. the contract is cocluded when the acceptance arrived to your address …. - vienna convention. SALE CONTRACT IN GERMAN LAW it split in two parts: 433-establish the obligation of parties and 929 BGB - the delivery the property of the goods delivered in italy and france when you have agreement, property is transferred in german law only the transfer of rights on goods, not the directly goods goods cannot be transferred before the delievery of goods and sell 433: sale contract defiiton -LAW OF PROPERTY- obligation and goods - civil law the owner of a good has usus fructus abusus unity. the role of roman law: -law in the bookn -law in action: the feudal law ehich has many strong characteristics and connection to the germanic customs. the assets of the family was based on movable goods. at the time the main asset was the land included any rights. Dichtomy between real and persoanal property Comparative Private Law II 28  real p: based on movable goods personal p: less valuable real property: connected to the original property of the state. “all lands are owned by the crown” personal property follows a different path. there are multiple rights that enjoyed within the same land. different rights on the land can be belonged to the different lords.the right is fragmanted lord (investiture- grant a domain in fee) ——- vassal-tenant (the vassal buys several property interests on the land) the vassal buys several property interests on the land its fragmantaed concept of property, not unitated concept the fragmantation of property based on holding different rights. after 1290, the position of the tenant became final tpwards the lord.once a lord appointed a tenant within his porperty; that position lasted. it became a limited property right Estate is the right of the tenant on the piece of land there is a lack of uniformity regarding the relationship between the lord and tenent (?) unlimited duration (freehold - free simple absolute) - free and perpetual ownership limited duration (leasehold): nor only possetion, also a property right ESTATES OF FREEHOLD fee: hereditary, following the law of land and not the law of ovable property simple: refers to the transmissibility with respect to all heir absolute: LEASEHOLD beside the freehold estate of feudal character…… 3 conditions to creation of leasehold: Comparative Private Law II 29  an exclusive owenership a rent to pay fixed duration (30 years) during the duration, the tenant can act as an owner. LEASEHOLD CLASSIFICATION: AMBIGIOUS POSITION same protection of the estates and its object are immovable goods: part…….. PERSONAL PROPERTY: deals with things that are considered simple, basic and of little value: movable goods linked directly to the owner it has similar definition as the roman idea of property. can be asolute as in the roman idea. “GOODS” IN CIVIL LAW connected to the law of goods. we have a position between germanic custom and roman law proprius: own, not shared the term of property is completely different in common law. in common law its shared. used alone indicates private proerty, individual property rights and full owership type of real right: the right to enjoy and dispose of a thing in an exclusive and absolute manner, except for the restrictions imposed by the law. classic roman theory of the law: absolutist property concept art.544 code civil. ownership is the right to enjoy and dispose of things in the most absolute anner, within the limits of use imposed by law or regulations 903 BGB: the owner of an asset may, except as otherwise provided by la and except for the rights of third parties, behave towards that asset şn the manner şt deems most appropriate, preventing others from using it art….. Comparative Private Law II 30  Common features: exclusivity and perpetuity Comparative Private Law II 31