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ITL Private Law Class 1&2
ITL Private Law Class 1&2
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Outline Part 2: Private Law
1. Introduction
2. Basics of Contract law
3. Basics of Property law
4. Basics of Tort law
5. Basics of Commercial and Corporate law
6. Basics of Tax Law + Basic Procedural Law
General approach
• No focus on a national (private) law
• No focus on EU (private) law
• But:
o bird’s eye perspective on principles of private law common
to the European legal traditions
o focus on selected problems and their different solutions in
French/Belgian Civil Code, German Civil Code and
Common Law
o with Textbook and Sourcebook as course materials
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Chapter 1. Introduction
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A. What is Private Law?
• “Private persons”:
o (legal) subjects, bearer of rights and duties
o can be either “natural person” = human being, physical
person (flesh, blood and bones)
o or “legal person” = intangible (legal) subject, not
composed of flesh, blood and bones, created through a
“deed of incorporation” / “registration”
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A. What is Private Law?
• Private law in the civil law “legal family”:
o written systematic codifications; codified private law
o origins in continental Europe
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B. The Civil Law Tradition
• Downfall and revival of Roman law
o Decline of Roman law in the Western Roman Empire
(eventually destroyed by barbarian invasions in the 5th
Century) but preserved in Eastern Roman Empire
under Corpus iuris civilis (“CIC”)
o Emergence of Customary law (tribal law) and Canon law
(Corpus iuris canonici, “CICc”) in Western Europe
during Early Middle Ages/Dark Ages (400-1000)
o Medieval Revival of Roman law during High Middle Ages
in the university of Bologna (Irnerius, 11th century) with
unprecedented economic growth following a series of
barbarian invasions: Rediscovery of CIC “ius
commune”, influence on/of CIC and rise of customary
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commercial law (“town law” in Munich, Paris, Leuven)
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B. The Civil Law Tradition
• High Middle Ages and Early Modern Times (1200-1800):
o Humanists (14th century) called for a renaissance of
ancient classical learning thereby introducing a studia
humanitatis. But minimal influence on legal practice
o Late scholastics (F. De Vittoria) the University of
Salamanca (16th century) made a first attempt to reconcile
Roman and Canon law with Aristotelian Philosophical
principles, and introduced a systematic doctrinal structure
(Natural law/positive law – Natural law school)
o Northern natural law school (H. Grotius, 17th century)
sought to make law part of the studia humanitatis
o In sum: Irnerius wrote for other jurists, De Vittoria wrote
for other philosophers, Grotius wrote for Gentlemen fit for
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public life
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B. The Civil Law Tradition
• Codifications (around 1800): examples:
o General State Laws for the Prussian States, 1794
o Code Civil, France, 1804
o Civil Code, Austria, 1811
o Civil Code, Germany, 1900
o Swiss Civil Code and Code of Obligations, 1912
o etc.
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B. The Civil Law Tradition
• French “Code Civil” – reception:
o went into force in e.g. Belgium (“Burgerlijk Wetboek” until
today with later alterations and amendments) and
Germany (Western parts of Germany until 1900)
o inspired → Code Civil as model:
• Switzerland: French speaking cantons in the 19th century
• Italy
• Spain
• Colonies and Middle East
• Northern America: Louisiana, Quebec
o in sum: French Code Civil is (possibly) the most influential
codification of private law of the last 200 years
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B. The Civil Law Tradition
• Private law in the civil law tradition: traditional distinction
between civil and commercial law: e.g.
o French “Civil Code” (1804):
• part of private law that applies generally to (legal) relationships
between private persons
o French “Commercial Code” (1807):
• part of private law that applies to (legal) relationships between
(those engaged in) “trade & commerce” = “merchants” (→ defined
through an exhaustive list of “commercial acts”)
• those engaged in activities that were not on the list of “commercial
activities”, were not “merchants” (e.g. farmers, liberal professions,
craftsmen (unless if combined with sale of goods), mining
companies, artists, …)
→ consequently, only civil law,19
not commercial law, did apply to them
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B. The Civil Law Tradition
• German “Bürgerliches Gesetzbuch” – Content:
o First Book: General Part
o Second Book: Law of obligations
o Third Book: Law of property
o Fourth Book: Family law
o Fifth Book: Inheritance law
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B. The Civil Law Tradition
• In 19th Century, both in France and Germany:
o Positivism: Jurists perceived the legal texts in force in a
jurisdiction (Code civil/Roman law) as the only source of
law
o Conceptualism: Jurists saw it as their task to identify and
define the fundamental concepts on which the law rest.
Once defined the outcome in particular cases could be
deduced from these concepts
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C. The Common Law Tradition
• Dispute settlement in common law courts: three-step
procedure based on writs with three actors (Royal chancellor,
judge, jury)
o no more new writs being created by the end of 14th
Century
o English common law characterised by a procedural
thinking in actions / claims and not in a dogmatic system
(like in civil law tradition)
o Precedents as source of law
o Courts of chancery providing remedies in equity in unfairly
decided lawsuits or if no writs existed (informal process)
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C. The Common Law Tradition
• Reception of Common law:
o Settled colonies:
• Australia
• Northern America (United States and Canada; however, Louisiana
and Québec remained under French influence)
o Conquered colonies:
• India
• Sierra Leone
• Gambia
• Nigeria
• Etc.
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D. Since late 19th - early 20th Century
• Emergence of Comparative Law:
o Analyising legal systems across different jurisdictions to identify
similarities, differences, and patterns to gain deeper understanding of
legal rules
o Functional method: similar legal outcomes arise in different legal
systems what matters are the common problems being addressed
and not the formal rules/authoritative sources as such
o Cultural approach: different outcomes even when the problems are
the same can be explained by dominant values in a given society
(Freedom of speech v protection of privacy)
o Historical approach: different outcomes to common problems can also
be explained by path dependency
o Approaches are not in conflict, all are concerned with what problem
the law wishes to solve
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E. Since mid 20th Century
• Belgium:
o Civil Code ° 1804 – New Civil Code in statu nascendi
o Commercial Code ° 1807 - † 2018
o Code of Economic Law ° 2013 (applies to “undertakings” >
merchants)
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E. EU perspective
• “The Union shall establish an internal market. It shall work for the
sustainable development of Europe based on balanced economic growth
and price stability, a highly competitive social market economy, aiming at
full employment and social progress, and a high level of protection and
improvement of the quality of the environment. It shall promote scientific
and technological advance.” (Art. 3(3) TEU) +
• “The Union shall establish an economic and monetary union whose
currency is the euro.” (Art. 3(4) TEU)
• EU market integration:
o internal market: free movement of goods, persons, services and capital (= negative
integration)
o + harmonisation (= positive integration – Art. 114 TFEU)
o + competition law (Art. 101 e.s. TFEU)
o + Economic and Monetary Union
• Economic advantages! Yet, no pure liberalisation, due account of non-
economic interests (environmental protection etc.)
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E. EU perspective
• Negative integration before the Court of Justice
o Principle: prohibition of barriers to free movement rights
o Exception: justification ground that is proportionate (appropriate and
indispensible)
• Postive integration through harmonisation typically through
EU Directives
o Threefold compromise
o Minimum harmonisation + gold plating
o Full harmonisation
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E. EU perspective
• Spillover effect of harmonisation: EU Directives in field of
private law:
o corporate law:
• as regards limited liability companies
• as regards public limited liability companies
• as regards listed public limited liability companies
o commercial agency agreements
o business-to-consumer contracts:
• unfair terms
• sales contracts (conformity and remedies)
• contracts concluded “outside of business premises” (e.g. doorstep selling)
+ “distance contracts” (e.g. online sales)
• package travel, consumer credit, mortgage credit, …
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E. EU perspective
• 2001: Communication by European Commission on European
Contract Law (also touching more generally on Private Law)
• 2009: publication of academic Draft Common Frame of
Reference (“DCFR”):
o projected started in the context of political project to make
European Contract Law “more coherent”
o Cf. earlier academic attempts to harmonize European
Private Law, e.g.
• “Lando-Commission”: “Principles of European Contract Law” (PECL,
since 1995)
• UNIDROIT: “Principles for International Commercial Contracts” (1994)
o based on EU acquis and earlier academic work
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E. EU perspective
• Purpose of DCFR:
o possible model of a political CFR
o awareness of the existence of a European private law;
demonstration that in just a small number of cases the
different legal systems produce substantially different
answers to common problems
o source of inspiration for the revision of EU and national
private law (“tool box”)
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E. EU perspective
• Structure of DCFR:
o Book 1: General Provisions
o Book 2: Contracts and other juridical acts
o Book 3: Obligations and corresponding rights
o Book 4: Specific contracts and the rights and obligations arising from
them
o Book 5: Benevolent intervention in another’s affairs
o Book 6: Non-contractual liability arising out of damage caused to
another
o Book 7: Unjustified enrichment
o Book 8: Acquisition and loss of ownership of goods
o Book 9: Proprietary security in movable assets
o Book 10: Trusts
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E. EU perspective
• ‘Reception’ of DCFR?
o no binding legislation, just draft
o partly critically, partly well-received as academic tool
o relevance in practice?
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