Introduction to law

Bachelor of Business Administration &

Business Engineering
KU Leuven, campus Brussel

Academic year 2023 – 2024

Prof. dr. G. Hernández

Guest Prof. C. Uwayo
Part 2: Private Law
Bachelor of Business Administration &
Business Engineering
KU Leuven, campus Brussel

Academic year 2023 – 2024

Guest Prof. C. Uwayo

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

= 24 hours = 1 full day 

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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

• READ THE COURSE OUTLINE PRIVATE LAW 2023-2024

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Chapter 1. Introduction

A. What is Private Law?

B. The Civil Law Tradition
C. The Common Law Tradition
D. Since late 19th - early 20th Century: Revolt
against Positivism and Conceptualism +
Emergence of Comparative Law
E. Since mid 20th Century: Emergence of Socio-
Economic Legislation + The Rise of the EU and
of EU Harmonization of Private Law
A. What is Private Law?
• Ubi societas, ibi ius:
o Law: set of general (mandatory) rules for outward behavior of persons
living in a social context, enforceable by authorities
• Private law:
o part of the law dealing with (legal) relationships between
private persons
o includes property law, contract law, tort law, …
o but also commercial law (trade & commerce, banking, insurance,
transport etc.), corporate law, …
• As opposed to public law:
o part of the law dealing with (legal) relationships between the State and
private persons
o includes constitutional law, tax law,
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criminal law, …
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?

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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

• Private law in the common law “legal family”:

o based on English Common law concepts derived from
decisions of judges (i.e. case law and no codification of
private law)
o origins in the UK

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B. The Civil Law Tradition
• Origins of Western society: Greek philosophy and Roman
Law
• Dispute settlement in Ancient Rome: Two-step procedure
(admissibility/merits) with three actors (praetor, iudex,
oratores)
• Roman Jurists:
o distinct class of men who cultivated a flourishing culture of
(private) law
o developed a comprehensive body of law using a
sophisticated and pragmatic method of reasoning
o not concerned with the underlying principles of justice in
law but rather in identifying legal concepts to settle factual
situations
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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)
B. The Civil Law Tradition

• Medieval jurists were a distinct class of men who had

obtained a specialized education in university
o Applied the scholastic method to the CIC (reconciliation
of every text with every other)
o Early scholastics: Glossators (notes in the margins of
CIC manuscripts) and Commentators (commentaries on
the CIC)
o Like Roman jurists not concerned with explaining the
larger principles of justice that justified the legal solutions
they reached

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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
public life
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B. The Civil Law Tradition
• Codifications (around 1800):
o Emerged during Enlightment period (reason and rationality)
o A codification is an exhaustive collection of legal rules that
are logically coherent and enacted as law in a
systematically organized book.
• Not in Latin but in language of the nation
• Exhaustive: no supplementary sources of law necessary
• Law: promulgated by legislator

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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” – foundation:
o The French revolution sparked ideals (nationalism &
republicanism) that underpin the French civil code,
though drafters (Portalis) refuted the republican ideal of a
code (but 19th century positivism imposed an exegetical
interpretation of the code)
o legislative process influenced by Napoleon himself!
• Napoleon: “It is not in winning 40 battles that my real glory lies, for
all those victories will be eclipsed by Waterloo. But my Code Civil
will not be forgotten, it will live forever.”

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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
• French “Code Civil” – content:
o Drafted by four practitioners from Southern and Northern
France (“droit écrit” –“written law”, “droit coutumier”
–“customary law”) in just three months
o First Book: On Persons
• family law, marriage law, divorce, parental power, guardianship, etc.
o Second Book: On goods and property law
• movables and immovables, ownership, etc.
o Third Book: On how to acquire ownership (“wealth”)
• inheritance law, law of donation, contract law, unjustified
enrichment, law of torts, matrimonial property law, lease
agreements, deposit, etc.
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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, not commercial law, did apply to
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them
B. The Civil Law Tradition
• German “Bürgerliches Gesetzbuch” – Foundation:
o Von Savigny’s “German Historical School of Law”
opposed codification: unlike Roman texts which
expressed the German Volksgeist, codifications did not
possess any underlying unity
o Tried to carve out concepts of German private law using a
historical and empirical approach to texts of Roman law
o Following unification of the German Empire (1871)
codification no longer faced the same level of
opposition: nationalism & comprehensive work of
Historische Schule as basis for codification

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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
• German “Bürgerliches Gesetzbuch” – reception:
o generally, theoretical reception rather than practical
reception (precise and accurate but very complicated, a
code for lawyers and professional jurists but not for the
citizens)
o Most countries already had a code of private law in 1900
but partly received in Greece, Japan, and China

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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
• History of Common law:
o in 1066, England was conquered by Normans who
established a strict feudal system with the King at the top
of the “Feudal pyramid”
o centralisation of justice (traveling judges representing the
king followed by king’s courts; local judges lost
importance)
o courts judged according to the unified royal law = writ
system
o Not much influenced by Roman law (ius commune)
o No codification wave (no upheal to overturn Ancien
Regime contrary to France)
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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
• Rationalisation of the Common Law (19th Century):
o No tradition of identifying general concepts
• Common law judges used practical cases to determine the
boundaries of writs instead of identifying and categorizing general
concepts
• Substantive law never sharply seperated from the procedural
question of which writs were applicabel in a case
o Abolishment of the Writ System and writs recognized as
branches of law (e.g. Covenant writ became contract law,
writs of assault or battery became remedies in tort)
o Emergence of Positivism and Conceptualism based on
precedents
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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
• Early 20th century jurists turned against Positivism and
Conceptualism:
o Rejected the idea of law as an exact science
o Rise of teleological interpretation: explain law in terms of
the purposes that it serves
• E.g. K. Marx perceived law as a tool of the ruling class to maintain
power over the working class

• Emergence of Comparative Law:

o e.g. K. Zweigert and H. Kötz
o functional method of comparative law
o Many alternative approaches
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do exist
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
• Emergence of Socio-Economic Legislation
(esp. post-WW II):
o State intervening in the economy and welfare state as opposed to a
“laissez-faire” approach
o Economic law
• “regulatory law” regulating economic activities for a smooth functioning of
the market
• cross-cutting legislation, across traditional boundaries of private and public
law (e.g. competition law)
• applicable to the widest possible range of economic operators (no
distinction between ‘civil’ and ‘commercial’ operators)
• e.g. anti-trust, price control, consumer protection, commercial planning
policy, authorisation regimes, etc.
o Different from commercial law
• Deals with commercial transactions and relations
• Private law and applicable to merchants
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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. Since mid 20th Century
• Rise of the EU:
o European Coal and Steel Community (Paris, 1952)
preceded by Schuman Declaration (1950)
o European Economic Community (Rome, 1958)
o European Union (Maastricht, 1992)

• Four stages of regional market integration:

o Free Trade Area (EFTA)
o Customs Union (since 1968)
o Common Market / Internal market (since 1993)
o Economic and Monetary Union (1992)
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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?

• [Optional reading: B. Keirsbilck,

An EU perspective on contract law harmonisation. Research
Handbook on International Commercial Contracts; 2020; pp.
86 - 109 Publisher: Edward Elgar]

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