Comparative Law

Professor Pedro A. Malavet

Class Notes Part Eight

(Last Updated: April 5, 2005)

VIII. Substantive Rules

A. Legal Categories, 1127-1149

PRIVATE LAW:

Private law is that area of law in which the sole function of the government is the recognition and enforcement of private rights.

PUBLIC LAW:

The effectuation of the public interest through state action.

Public Law Categories:

1) Constitutional Law, i.e., the law by which the governmental structure is constituted;

2) Administrative Law: the law governing the public adminstration and its relations with private individuals.

Reasons for the Vitality of the Distinction between Private and Public Law:

1) Scholars who emphasize systematic approaches, who can turn the descriptive into prescriptive;

2) Tradition;

3) The ideology of legal science;

4) The division of jurisdiction between administrative and ordinary courts.

"Crisis" [1131-1133]

1) Other Legal Systems Do Not Have It;

2) Not Really Ideologically Neutral.

3) The Nature Of Government Has Changed. "Publicization of Private Law".

4) State Control Of And Participation In The Economy. "Privatization of Public Law".

5) Intermediate Groups, "Private Governments";

6) Constitutional Law Protects Fundamental Individual Rights;

7) Constitutional Judicial Review;

8) Growth Of Administrative Law;

9) Scholarly Debate, less technical, more inter-disciplinary;

10) Fields That Defy Classification.

 

PUBLIC LAW SUB-CATEGORIES:

1) Constitutional Law;

2) Administrative Law;

3) Criminal Law;

4) Criminal Procedure;

5) Civil Procedure (after considerable debate).

PRIVATE LAW:

(1) Civil Law

(2) Commercial Law

French Civil Law Categories [1137-1138]

Persons: Physical And Moral Persons, Attributes Of Personality, Capacity Of Minors And The Insane And The Protection Of Their Interests.

Family: Marriage, Divorce, Separation, Filiation, Obligations Or Support.

Property: Personal And Real Property, Contents And Transmission Of Real Rights.

French Civil Law Categories [1137-1138]

Obligations: Contract In General, Particular Contracts, Torts, Unjust Enrichment.

Matrimonial Property: Statutory Community, Marriage Contracts.

Succession: Intestate And Testamentary Succession.

French Legal Categories [1136-1147]

1) Civil Law

2) Commercial Law

3) Criminal Law

4) Administrative Law

5) Tax Law

6) Labor Law And Social Security Law

7) Law Of Evidence And Procedure

B. Codification and Codes

1. France, 1149-1163

ROMAN LAW:

(1) Persons

(2) Things

(3) Forms of Action

French Decrees:

French Civil Code

(1) Persons

2. Germany and Mexico, 1163-1175, 1184-1187

German Civil Code

(1) General Part

(2) Obligations

(3) Property

(4) Family Law

(5) Succession

Mexican Civil Code

(1) Persons

(2) Property

(3) Successions

(4) Obligations

"It was an inescapable obligation to work for the amelioration of the Mexican proletariat and to crystallize in the new civil code the social justice that had consistently clamored to be recognized, and yet had always remained in the margin of the law. It was also necessary that our civil legislation not remain aloof from the transcendental reforms that other countries had already carried into fruition in their private legislation, made imperative for the activities of daily life by scientific discoveries and economic interdependence."

--Ignacio García-Tellez

"The principal doctrine formulated by the new Civil Code may be briefly expressed in the following terms: to harmonize individual interests with those of society, thus correcting the excess individualism permitted by the Civil Code of 1884."

--President, Plutarco Calles

C. General Principles of Law, 1227-1240

The General Principles of law and even more importantly, the general provisions of the Code, can be used by the Judiciary to establish previously unrecognized legal rights. This might appear odd, in a system without official stare decisis. However, I consider these exceptions to often prove the rule of limited judicial authority. The General Provisions and Principles serve as a safety-valve that allow the legal system to grow to reflect changed circumstances in certain narrow areas not otherwise covered by the code. In tort law, for example, the courts have taken the lead, as we saw in the French Automobile Liability cases, and in the Minamata decease case from Japan. When the French Legislature felt that there was a need for intervention, it passed the automobile liability law, but it left some judicial decisions purposely unchanged.

C. General Principles of Law,
1227-1240
1. The General Principles of law and even more importantly, the general provisions of the Code, can be used by the Judiciary to establish previously unrecognized legal rights.
The General Provisions and Principles serve as a safety-valve that allow the legal system to grow to reflect changed circumstances in certain narrow areas not otherwise covered by the code.

“Good Faith” in Contracting [1]
[cb. 1227-1228]
If, during the preparations of the contract, one of the contracting parties makes illegitimate statements contrary to good faith about facts which are important and significant for the decision-making of the other party (…) and if these statements lead the second party to enter into a contractual relation which causes him to suffer damages, or …

“Good Faith” in Contracting [2]
[cb. 1227-1228]
… or if one of one of the contracting parties fails in his duty to inquire, notify or explain matters as olibged by good faith, causing the second party to enter into contractual relations and to suffer damages, the first party will be liable for compensation of these damages, even though the contract was effectively concluded …

“General Principles of Law”
For example art. 38(1)(c) of the Statute of the International Court of Justice directs the court to apply inter alia “the general principles of law recognized by civilized nations” and art. 215 of the Treaty of Rome establishing the EEC provides that the noncontractual liability of the Community is to be governed by “the general principles common to the laws of the Member States.”

General Principles of Law:
Ranked ahead of case law (e.g., Art. 1 Spanish Civil Code). From within, implicit in the legal system. Implicit not rules of natural law or some other sort. This is generally derivative, i.e., applicable only in the absence of law or custom. Thus, the argument goes, there is no law-making, but rather gap-filling or interpretation of existing law. Scholars are the prime practitioners of this, because this is a scientific function, but compare page 955.

Contracting ContinuumContract Formation

Civil Code Article 1134
Legally formed agreements have the force of law for the parties.
Declaration of the Rights of Man and of the Citizen, 26 August 1789
Article 4 - Freedom is the power to do anything which does not harm another: therefore, the only limits to the exercise of each person’s natural rights are those which ensure that the other members of the community enjoy those same rights. Legislation only may set these limits.

French Civil Code Article 1101
A contract is an agreement by which one or more persons obligate themselves toward one or more others to give, to do or not to do something.

French Civil Code Art. 1116: Deceit
Deceit is a cause of nullity of an agreement when the artifices used by one of the parties are such that it is evident that, without such artifices, the other party would not have contracted.
It must not be presumed, and must be proved.

French Civil Code Art. 1117: Error
An agreement contracted in error, violence, or deceit is not void as a matter of law; it only gives rise to an action in nullity or rescission, in the cases and in the manner explained in Section VII Action in Nullity or in Rescission of Agreements] of Chapter V [Extinction of Obligations] of the present Title.

Culpa in Contrahendo [1229]

“Good Faith” / Change in Conditions
1] No consent of landowner for sale of building built on rented ground
2] Sale of farmland without the required permission of prefectual governor
3] Tall building produces aggravation of daylight and ventilation conditions
4] purchase of land which became unusable under new land regulation

The contract was not completed: “Failed Negotiation” [1230]
-- Special liability based neither on contract nor on tort?
-- Liability based on reliance interest which is analogous to contract
-- “In general it can be said that courts tend to treat precontractual liability like tort liability”

Informed Consent [1230]
Japanese Civil Code Article 1
1. Private rights shall be exercised in conformity with the public welfare.
2. The exercise of rights and the performance of duties shall be carried out in conformity with the principles of good faith and trust.
3. No abuse of right shall be permitted.

Effects of Obligations [1231]
Japanese Civil Code Article 415
If an obligor does not perform according to the true intents and purposes of his obligation the obligee may demand damages. The same applies where it has become impossible to effect performance for a cause imputable to the obligor.

Mandates [1231]
Japanese Civil Code Article 643
A mandate takes effect when one party commissions the other party to perform a juristic act and such other party accepts the commission.
Japanese Civil Code Article 644
A mandatory [the recipient of a mandate] must report on the matter(s) entrusted according to the true purport of the mandate and with the care of a good manager.

Mandates [1231]
Japanese Civil Code Article 645
A mandatory must report on the matter(s) entrusted at any time upon demand of the mandator, and after termination of the mandate he must, without delay, give a report of its particulars.

Japanese Civil Code Article 656
The provisions of this section apply mutatis mutandis to the commissioning of matters other than juristic acts.

Delicts
Japanese Civil Code Article 709
A person who intentionally or negligently has infringed upon the rights of another person is liable for the resulting damages.

Basis of Liability for Malpractice [1232]
1) Battery: any unwanted touching
2) Negligence: reasonable care
3) Special type of Contract. Not written. A Quasi-mandate
4) Art. 23 of the medical practitioner act
A physician who diagnoses a patient must prescribe the necessary treatment, and give any other instruction for promoting health, either to the patient himself/herself or his/her guardian.

Negligence:
Kumamoto Minamata Disease Case
(A) Liability: Negligence [1234-35]
(B) Foreseeable [1235-36]
(C) Defendant’s Reactions
(D) Negligence, Art. 709

(C) Defendant’s Reactions
1. Unusual Changes in the Environment
2. Disputes over Compensation of Damages to Fisheries
3. Efforts to Determine the Cause of the Disease
4. The Treatment of Wastewater and the Amount of Mercury Discharged
5. Experiments on Cats, Especially Cat Number 400

Delicts
Japanese Civil Code Article 709
A person who intentionally or negligently has infringed upon the rights of another person is liable for the resulting damages.

 

 

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