Introduction to Law & Contract Law PDF

Introduction to law & contract law Continuous assessment grade: 1 group practical case around sessions 8/9 + 1 MCQ 20 questions around sessions 5/6 (50% of your grade) Partials: 1 practical case + questions on notions (50% of your grade) I- Introduction to law: Law: means any rule that is general...

Introduction to law & contract law Continuous assessment grade: 1 group practical case around sessions 8/9 + 1 MCQ 20 questions around sessions 5/6 (50% of your grade) Partials: 1 practical case + questions on notions (50% of your grade) I- Introduction to law: Law: means any rule that is general and impersonal resulting from collective will and endowed with strength binding (force contraignante). In a more precise sense, the law designates legal standards who come from legislative authority. Decrees and orders (décrets et arrêtés): they mean any rule that is general and impersonal resulting from governmental or local will endowed with the binding force. Decrees and orders are the norms taken either by executive power or administrative authorities or even town halls (decrees only issued by the Prime Minister & the President/ orders issued by the Minister or Prefect) Courts decisions/Case law (jurisprudence): All the legal decisions given by a competent jurisdiction. The law is to manage & regulate human relationships. The law is different from morals. The law is mandatory (facing sanctions by bailiffs = huissiers), the law is general (every person however the law is only going to be applied to a certain category of people/and positive discrimination). The law is permanent (has no expiration date), the rule of law applies consistently and uniformly to all situations that it regulates until it be repealed (abrogée/supprimée la loi). Private law: governs the relationship between private individuals (associations, human beings, companies). ➔ Commercial law: only applies to individuals who carry out acts of commerce between merchants/commercial companies. ➔ Civil law: (contract law, legislation about family, legislation about liability, legislation about property/obligations) all the rules are written in the French civil code of 1804 by Napoleon. It applies in principle to all private reports. Public law: governs the relationship between one individual and the state. ➔ Constitutional law: which sets the basic rules organization of the state ➔ The administrative law: that regulates the structure of the administration and its relations with individuals, public finances and tax law  Introduction to law & contract law The law is national, regional and international International public law: governs the relationship between states and organize the competences and the powers of international organizations (ONU, OMS, FMI) International private law: governs the relationships between private individuals when there is a foreign element (for example two spouses from a different country) The law is hierarchical: ➔ constitutionality value: constitution of 1958 + preambule of 1948 + DDHC 1789 ➔ International conventions/treaties: European law ➔ Parliamentary laws/ ➔ Case laws (jurisprudence) ➔ Decrees/ordinances ➔ Individual contracts II-French law overview French law belongs to the family of civil law systems, we have written and codified rules. It differs from Common law systems (UK and USA) that are based on judicial precedents (jurisprudence/case law) The French legislature consists of two chambers: The National Assembly (577 seats/ directly elected by citizens for 5 years) and the Senate (331 seats/elected for 6 years by electoral colleges) Parliament passes laws (lois). Bills (projets de lois) are initiated by the government or by members of either chamber. A bill must be adopted in identical terms by each chamber to become final.  Introduction to law & contract law If no agreement is reached after two readings in each chamber, the bill is sent to a joint committee to find a compromise. In case of failure to reach an agreement, the government may grant the final say to the National Assembly France has a dual system of courts with judicial courts (civil/criminal courts) on the one hand and administrative courts on the other hand. Each court system is headed by a supreme court. I-French National Sources of the law 1.1 The Constitution The Constitution of October 4, 1958, is the fundamental law of the Fifth French Republic. It has a Preamble and a hundred articles in it which was adopted through a referendum (when the President ask a question to the citizens, and you can answer only by “yes” or “no”) on September 28, 1958. The preamble refers to three fundamental texts: the Declaration of the Rights of Man and of the Citizen of 26 August 1789, the Preamble of the Constitution of 27 October 1946 and the Charter of the Environment of 2004. = forms the bloc of constitutionality  Introduction to law & contract law Two Institutions for laws: Project of law: by the Government (projet de loi) Proposition of law: by the Parliament (proposition de loi) Firstly, sent to the National Assembly, must attempt the majority (50% + 1) and then the text is sent to the senate and secondly must attempt the majority (50% + 1). Amendment: modification on a text by the two chambers (National Assembly and Senate must be equal and vote for the exact same text). They can send back and forth projects and proposition of law 3 times and the National Assembly has the last word as the citizens have voted for the deputies. 49.3: article of the constitution used by the Government only about finances and public budgets (to pass a budget) that can be used by avoiding the Parliament and validate the law. Counter-power as we are in a democracy: The National assembly can apply/vote a motion of censure to remove the actual Prime Minister and find a new one. 1.2- The Law Parliamentary law (national assembly/senate) is opposed to Constitutional law and to Referendum law (yes/no) The Scope of the Law: The Constitution will delimit the legislative domain= all the subjects/domain and themes where the parliament is competent to vote the laws (article 34 of the Constitution). If a subject is not written on the list, will not be of the competence of the Parliament but of the regulations (orders/decrees) such as the Government (prefects, ministers) will deal with the rest. The Constitutional council (cannot seize itself) does not have the power to seize every law, so they have to transfer them to other institutions. ➔ President of The Republic ➔ Prime Minister ➔ President of the National Assembly ➔ President of the Senate They can all seize the Constitution Issue: the president might be in the same political branches than the constitutional council and this is not really great for the democracy.  Introduction to law & contract law Constitutional council ➔ 3 members appointed by the president of the republic ➔ 3 members appointed by the president of the national assembly ➔ 3 members by the president of the senate The last presidents can seat at the council for life After promulgation: The Constitutional Act of 23 July 2008 opened a large gap in this principle - QPC is a priority ruling that can seize the constitution if the law might sentence you (to use it: be in a middle of a trial and be a citizen) and the law can be reviewed The binding force of the law The law is binding from its entry into force (A) until is repeal (B) Two stage process for the act comes into force: The Enactment/Promulgation, then The publication 1-Express repeal of the law (does not mean fast) 2-Tacit repeal 3-Repeal by obsolescence 1.2 Case Law as a source of law A-The prohibition of rulings Judges: prohibition to create laws (article 5 of the Constitution) and obligation to judge even if the law is incomplete (the judge have to use creative inspiration and have to complete the law time to time)