Comparative Law PDF

Comparative Law Lecture 1 1\. Introduction to the Common Law and Civil Law traditions - **[Differences]** Common law relies on statutes (or codes), it is largely based on precedent and development of case law. Civil law is codified. The main source of law is to be found in different codes. Th...

Comparative Law Lecture 1 1\. Introduction to the Common Law and Civil Law traditions - **[Differences]** Common law relies on statutes (or codes), it is largely based on precedent and development of case law. Civil law is codified. The main source of law is to be found in different codes. There is no doctrine of stare decicis unlike the common law which is largely based on the precedence and development of case law (I.e. iterative interpretation). This is the Core difference. Civil law systems offer a formalised framework for contract law laying out the rules governing the agreements. More importantly, like common law, civil law is not static. Such codes distinguish between different categories of law, and they are intended to be comprehensive and deal with all legal issues that could arise from different relationships. case law or judgments do not carry the same weight or importance as the provisions of the code. **[2. The Civil Code in Indonesia]** 1\. Book One: about **[persons]** that cover subjects of law, legal capacity, marriage and matrimonial assets. 2\. Book Two deals with **[goods (tangible and intangible)]**; - 3\. Book Three regulates **[contracts (including breach of contract)]**; and 4\. Lastly, Book **[Four]**, that sets out **[statutory limitation periods]** and some aspects of civil evidence law. Generally speaking, there is **[no extra statutory notion of tortious liability]**, at least not as understood as in common law jurisdictions. No striking out like in Common law jurisdiction **[Supplementary laws and Implementing Regulations]** Other than the code and statutes, many civil jurisdictions like Indonesia also have **[supplementary laws]**. For example, many government bodies are able to issue what are known as the implementing regulations, and typically, a law will be passed, and relevant ministries will then issue further guidelines under certain regulations that can be changed and updated from time to time. **[Implementing regulations]** can be thought of as supplementary legislation, where the actual detail of the steps intended, or procedures intended by the law are clarified. Governing language = Indonesian **[3. The Civil and Commercial Code in Thailand (CCC)]** **Civil law** regulates property relations and personal relations between private persons. **Commercial law** input doesn't include governing business and commercial contracts between merchants during the course of their business, as well as the instruments they have at their disposal. CCC is only the main laws, and need to be: Cross interpretation needed Consultant with relevant ministries and agencies Book One: general principles, the provision on national and legal person, things among others. Book Two, obligations. Book Three, specific **[contracts.]** Book Four, **[property.]** Book Five, family law. Book Six, succession. s420 Wrongful acts - **[Almost all cases allege wrongful acts]** Purple section = fines / imprisonment s480 = **[Limitation period is ten years from the tortious act]** 4\. Minimal stare decisis: the practical significance = **[persuasiveness only]** Constant jurisprudence is a principle from the French civil law that continues to apply across civil law jurisdictions. This means that **a court is required to take past decisions into account only if there is sufficient uniformity in previous case law.** No single decision binds a court, and no relevance is given to case law where there have been competing views or decisions Lecture 2 **[1. Contract formation]** Under general civil law, three requirements need to be met: (i) consent, (ii) capacity and (iii) a lawful and certain content. consent = Only sane individual can give valid consent capacity = Duly empowered Certainty of content = consistent with public interest **[2. contract interpretation]** s1342 = **[interpretation shall not deviate contract, if clear]** s1343 to 1351 = **[9 canons of interpretation = find the common intention informed by nature or usage; when the words in the clause or the contract are clear, article 1343 wants you to discern the intention of the parties at the time the contract was entered into.]** **[s171 CCC]** and Supreme Court decision Judgement 11107 - true nature of a contract should be determined by the parties' intentions and actual terms, not just its name **[s368 CCC]** Interpretation in accordance with **[good faith]** Supreme Court Judgement 1375 = **[Custom shall be deemed part of the contract]** Supreme Court Judgement 2210 = **[Objective interpretation before subjective interpretation, if the former is not clear]** Gaps in the statutory rules (s10 to s14 CCC): **[general rule in Thai law is that an unexpressed intention cannot form a contract or part of a contract.]** **[s10 CCC]** Where there are two contract interpretations, the Preferred interpretation shall be given effect **[s11 CCC and SCJ 7257 =]** interpretation shall be in favour of the party who **[incurs the obligation]** **[s12 CCC and SCJ 5827]** = **[written contract shall prevail where intent cannot be ascertained]** **[s13 CCC]** = **[lowest amount shall prevail]** s14 CCC = **[Thai language]** shall prevail 3\. Contract negotiation: **[General principle, extrinsic evidence will be relied more in contract interpretation under Civil Law as compared to Common law]** 4\. Doctrine of good faith - **[Doctrine of good faith (taking into consideration customary practice) applies to interpretation of contracts and performance of obligations under contracts]** s6 CCC and SCJ 9158 **[People generally act in good faith]** s368 Contract shall be interpreted as required by good faith taking customary practice into consideration. **[where no customs are known to exist, the term shall be construed as a person of ordinary prudence acting in good faith woul]**d s171 and 368 CCC - **[Good faith interpretation may supersede literal meaning]** s421 CCC **[Bad Faith applies to Liability for torts]** 5\. **[Discharge of contracts]** under Civil law systems There must be a breach of contract before remedies are available. specific performance is only denied if performance is not possible Breach of contract - a fundamental breach or similar material breach may be required for the termination of a contract but not for a claim for damages Amounts of damages that can be allocated according to contributory negligence French courts reject a general duty to mitigate damages in tort law. Contributory negligence - duty to mitigate the damage is enshrined in the mitigation of damages doctrine, according to which the injured party must take reasonable steps to reduce the damages Residual requirement to obtain damages: Non-defaulting party must give defaulting party last chance to avoid a dispute by fulfilling its contractual obligations Lecture 3 1\. Non-Contractual Claims in Indonesian Law Elements of tort Art 1365 - **[Compensation for breach of contract may not be monies; the elements are: I]**. An unlawful act, committed by a legal subject, intentionally or unintentionally which turns out to be against the law. The act must contain elements of error and must have caused a loss. ii. There must be a fault caused by purpose or by negligence. iii. The unlawful act must have caused injury or damages to another party, either material or immaterial. iv. Causality between the unlawful act and the injury must be established. 2\. Non-Contractual Claims in Thai Law s420 Civil and Commercial Code unlawful injuring the body / property s438 Compensation depends on the damage of the wrongful act s193 CCC Limitation period = 10 years Lecture 4 Jurisdiction of the Indonesian Court **[Absolute competence]** - Absolute competence refers to a court\'s authority to decide on a particular type of case based on the subject matter. For example, a Criminal Court has absolute competence to hear criminal cases, while a family court has absolute competence. **[Relative competence]** - Dependent on geographical location and proximity / registration **[Art 118(1) HIR - Jurisdiction of the district court]** based on defendant\'s domicile **[Exception]** to district court\'s competence - If the dispute is a matter that does not fall within the jurisdiction of the district court, then at any time during the examination of the case, it may be requested that the judge declare himself incompetent and the comptroller shall also recognise it by virtue of his office. Jurisdiction of the Thai law 1\. s4 of the Civil Procedure Code jurisdiction of the Civil Court 2\. **[Ex Aequo et Bono]** as a Remedy - This principle allows courts to decide cases based on fairness and morality, even if it means departing from the strict terms of a contract **[Art 10]** Pleaded as secondary remedy because law on the matter is absent or unclear **[Art 56]** Arbitrator shall only render award based on material laws, unless approved by given the power adjudicate based on fairness 3\. Discovery / Document Production - **D[isclosure or discovery processes are not available in civil law jurisdictions.]** Disclosure requests must be specific Spotlight on civil jurisdictions Confidentiality obligations continue after advocate-client relationship has ended No right to claim privilege for in-house counsel under Indonesian law Privilege in Asia-Pacific