Private Law

Analogia Legis

• An existing norm is found and applied to a case

Analogia Iuris

• Lacking an applicable norm, the general principles of the state are applied to the new case (ex. Englaro case)

Antinomy

Two or more norms contrast/ cancel one another, then 3 principles may be applied:

• Hierarchical: Constitution > Statute (ex.)

• Content Based: More specific > Broader

• Time Based: Newer norm > Older Norm

Interpretations of Law

• Teleological- Scope of Law

• Systematic- General principles of Law

• Grammatical- Grammatical meaning of Norm/wording

• Historical- Background-based

Common Law

• Based on Stare Decisis/ Rule of Precedent;

• No written statutory code to base decision on;

• Customary law systems —> Court Cases as doctrines;

• Typical of Anglican Countries

• Judge decision binds outcome of future similar cases.

Civil Law

• Based on a written text/ statutory code (ex. Constitution/ Statute), which should be followed/interpreted by Court (Analogia Legis);

• Not based on case-law;

• Judge doesn’t take binding decisions for future trials;

• Judge applies written code to case;

• Typical of South America & Continental Europe;

Stare Decisis

Common Law foundation acc to which:

• Court ruling is influenced by previous similar court decisions

• Lower Courts are subject to Higher Courts

Ratio Operandi

Final decision of a court case, which might shape/inspire another case’s outcome

Doctrine of the Precedent

Ratio operandi of a previous, similar case, shapes final decision of new case

Ius quia iussum vs ius quia iustum

Positive Law —> What is is; Natural Law —> What it ought to be

Principles of Free-Market

• Good-Faith Obligations- Honesty

• Spontaneous Cooperation- Self-organisation of State & citizens

• Mutual Promises

What a firm is

A cluster of:

• Financial Property- Capital;

• Intellectual Property: Copyright;

• Industrial Property: Patents/Trademarks;

• Outside Contracts: btwn Buyers & sellers;

• Inside Contracts: Btwn workers/shareholders & firms.

Private Law addresses

• Stipulation of contracts

• Regulation of familyhood- ex Adoption of children

• Damages/ individual & collective

Bounded Rationality

• ex. Accepting Terms & Conditions w/o reading

Asymmetric Information

• 1 party knows more info than other (ex. Market for Used cars, where lemons are usually sold at more than value)

Negative Externalities

• ex. Firm polluting and causing damages to health (indiv+collective)

Primary Sources of Law

• EU Law: Founding Treaties- Rome, Maastricht, etc

• National Law: Statutes/Constitution

Secondary Sources of Law

• In EU Law are binding & non-binding decisions

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Acts v Facts

Binding & Non-binding decisions in EU Law

Sources of Cognition v Sources of Production?

• Which outlet/ source shares the law to the public (ex. Gazette of the Country)

• Which organs/sources issue the law (ex. Parliament, Administration, etc)

Negotiation in Common Law vs # in Civil Law

• In common law, parties may back out w/o necessarily liability/ ex. Request of compensation of costs by other party (ex. employee time, travel expenses, etc)

• Civil Law systems may request compensation for costs incurred, and not lost potential profit

Preliminary contract (pre-contractual phase)

• Non-Disclosure Agreements:

• Declaration of Intents

• Memorandum of Understanding

• Heads of Terms

• Functional Agreements: -Lock In; -Lock Out; -Option Agreements; -Preemption Agreements

NDAs

DOIs

MOU

HoT

FA

Lock-In

Lock-Out

Option Agreements

Preemption Agreements