private law: glossary chapter 7: private law and its sources

administrative law

• branch of public law

• regulates the structure and aims of public bodies belonging to the administration (primarily government)

• rules the activity of the administrations that pursue the public interest and the relationship between public powers and the citizens subject to them

authoritative power

power granted to public bodies belonging to the administration (primarily government) to make authoritative decision to pursue the public interest

case law

law as it is applied by courts

civil codes

• statutory acts in civil law jurisdictions

• collect general rules and principles of civil law and in some countries also commercial law

• first civil code = french civil code 1804

• cultural archetype = corpus iuris civilis that in Middle Ages grew from Justinian compilation

codification of commercial law

• the process of codifying customary law that merchants has developed in trading

• traditionally = parallel with civil law, creating two distinct codes

• 20th c.: Italian codice civile absorbed commercial code => unified model adopted also by other civil codes

commercialization of civil law

the policy of generalizing some of the rules of commercial law to applY to all citizens irrespective of their profession => enhance efficiency of civil law (one of goals aimed by unification of private law)

commercial law

• special branch of private law

• dictates businesses law = body of rules applicable to businesses and other professionals

• => company law = regulates competition, bankruptcy, financial services

constitution

• preeminent source of law

• lays down the foundations of the state and provides protection of human rights

• often in written document of provisions (charter) but may also consist in collection of other acts and practices acknowledged to exist from immemorial time

• in most countries: rigid consitution = cannot be amended or repealed by means of ordinary laws

• constitutional test = if ordinary laws do not meet this they can be struck down by courts in judicial review

constitutionalization of private law

impact of fundamental rights and other constitutional principles on private law

customary law

• law created by usage accompanied by the belief that it is legally binding

• hold the lowest position in the hierarchy of the sources of law

• may be put into writing and published in official journals (only repositories of said law)

declaration theory of common law

traditional explanation of role played by common law courts => ascertain and declare already existing legal rules without power to change or amend them

decriminalization

the policy of shrinking criminal law and abolishing criminal sanctions previously provided for certain issues

desuetude

the repeal or amendment of statutory acts by means of customary law, which is not permitted (customary law = lowest position in hierarchy of sources of law)

development or supplementation of law

• rechtsfortbildung

• creative interpretation by courts and legal scholars directed to adapt the law and to extend it to new cases not envisaged by the lawmaker

• aids and limits set out by core tenets of legal methodology

distinguishing

technique used by common law courts to adjudicate a case differently form a binding precendent assuming that the latter did not deal with the same facts or legal issue

drittwirkung

• application of constitutional principles by courts adjudicating private law cases

• milder version = shaping the interpretation of the ordinary laws to constitutional principles

• more direct version = grounding rights and duties between the parties directly from constitutional principles

golden rule

• common law jurisdictions

• aid to statutory interpretation that allows the interpreter to depart from the literal meaning of a provision but only provided that its wording is unclear

grammatical (or literal) interpretation

aid to statutory interpretation binding the interpreter to adhere to the wording of a provision and shaping the interpretation to its plain text

handelsgesetzbuch

• german code that regulates commercial law

historical interperetation

• aid to interpretation according to which the interpreter draws on the objective intention of the lawmaker (mens legis) as it is laid down in preparatory works, “whereas clauses”, explanations of vote,…

• civil law = allowed but less important than other aids for interpreting the law

• common law = not allowed

horizontal precedent

case adjudicated by a common law court which has an absolute binding force for the same court who rendered it or for another court at a similar level

incoterms

• international commercial terms

• published by international chamber of commerce in 1936 and periodically revised

• standard contract terms relating to international commercial law

• largely used in international business transactions or procurements

inns of court

• London professional associations for barristers

• 4 inns of court: lincoln’s inn, inner temple, middle temple, gray’s inn

• barristers must belong to one of these inns which provide all the necessary facilities and by which they are supervised

International Commercial Chamber

• ICC

• international organization developing and applying a uniform commercial law

• collect and publish commercial best practices and standard contract clauses

interpretation of law

• lawmakers determine the legal significance of the legislative acts

• 3 categories

  • grammatical interpretation = wording of relevant provision

  • historical interpretation = intention of lawmakers

  • teleological interpretation = purpose of the rule

state acts iure privatorum

it pursues the public interest by means of private law (ex.: contractually buying plot of land) instead of public law (ex.: expropriating plot of land)

judicial review

the process that allows a court to assess whether a legislative act is constitutionally legitimate and if it is not to strike it down

leading case

a binding precedent at common law courts

legal scholarship

doctrinal activity of legal research for scientific purposes

lex mercatoria

body of customary law developed in international trade to rule business transactions beyond national borders

maritime law

• law regulating maritime activities

• commercial and non-commercial

• more rooted in private law but also elements of public law

mischief rule

aid to interpretation directed to cure the ‘mischief’ or ‘defect’ of pre-existing common law

obligationenrecht

• swiss legislation 1881

• single legal framework for obligations not distinguishing between civil and commercial law

overruling

technique used by common law courts to depart from leading case, repealing it

private law

• branch of legal system that regulates horizontal relationships between peers

• principle of private autonomy = individuals free to decide which regulatory regime should govern their interest without prejudice to the freedom of others

• <=> public law

public law

• branch of legal system that regulates vertical relationships between state and private individuals or entities

• principle of authoritative power = “command and control” logic

• <=> private law

regulations

civil law jurisdictions: general acts of the administration that amount to sources of law, hierarchically inferior to legislative acts

separation of powers or tria politica principle

• tenet of political philosophy and constitutional law

• late eighteenth century enlightenment

• state maintains 3 powers separated from eachother with different bodies:

  • legislative => parliament

  • executive => government and rest of administration

  • judiciary => courts

privatrechtsgesellschaft

• society based on private law

• German ordoliberalism

• private law provides for the constitution of civil society and is based on individual freedoms, particularly in economics

stare decisis

single precedent has an absolute binding force for a lower-court judge who must align his following decisions

statutes

legislative acts approved by the parliament representing the cornerstone of the civil law system of the sources of law

systematic interpretation

• aid to interpretation

• interpreter must derive meaning of the provision so that it is consistent with the rest of the legal system

teleological interpretation

• aid to interpretation

• interpreter must construe policy underpinning the rule and may even disregard the declarations of lawmakers

• reductive interpretation = narrowing the scope of statutory provision

• expansive interpretation = broadening the scope of statutory provision

unification of private law

process of merging civil law (general private law) and commercial law

vertical precedent

case adjudicated by common law court having an absolute binding force for a court lower than that the one which rendered it

zivilgesetzbuch

• swiss civil code

• adopted in 1907

• incluenced by French and German civil codes

claus-wilhelm canaris

theory of legitimate expectation’s protection and legal lacunae (thoery of legal gap)

albert venn dicey

• constitutional theorist

• personal freedom as the basis of national welfare and dependent on the sovereignty of the parliament, the impartiality of the courts and the supremacy of the common law

• most important theorist of the rule of law = all members of a society are deemed equally subject to legal provisions and processes

friedrich august von hayek

• nobel memorial prize in economic sciences = pioneering work in theory of money and economic fluctuations and penetrating analysis of the interdependence of economic, social and institutional phenomena

• ideal of individual freedom and the close connection between economic freedom and individual freedom in general

• advocated for free market economics = trade as a spontaneous order established thanks to the self regulation of the economy and society

natalino irti

• analysis of legal rules from a conceptual and formal point of view => legal norms as the ecpression of the will of economic, political, technological power groups and their rationality may be found in their functionality related to given purposes

• phenomenon of decodification => creation of legal subsystems (legislative polycentrism) + loss of the certainty of law which can only be filled by strongly authoritative scholars

baron de montesquieu

• satire of french society and institutions from perspective of non-european visitors

  => disenchanted overview of french absolutism, crisis in civil society at the time and religion as increasor of conflicts and divisions between ppl

• theory of separation of powers between legislative, executive and judiciary => guarantee freedom of the citizen by protecting it from absolutism

  => 3 powers exercised by 3 subjects limiting one another to prevent abuse or tyranny

• freedom = right to act within the limits set by the law

pietro perlingieri

personalism = centrality of individual persons in a realistic vision of the human being

pietro rescigno

frequently updated evolution of law in private law handbook => point of reference for students and scholars

angelo sraffa

one of founders of modern italian commercial law

cesare vivante

• great reformer of commercial studies = coordinating dogmatic construction of legal rules, general principles and the whole private law system

• believed in benefit of unification of civil and commercial codes

• legal socialism = legislator should intervene in social matters in order to defend workers’ rights