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INTRODUCTION TO LAW SUMMARY

Law is the most important instrument to realize social order and usually the most effective one. Law varies in relation to TIME and SOCIAL CONTEXT. Central feature of law (def.): A system of sanctionable rules whose violation is punished with a sanction inflicted by a Public Authority, if necessary with the legitimate use of force.

COMMON LAW Historical English legal system Case Law or Judge

made law uniform rules system of PRECEDENTS: a case that presents the same characteristics of a precedent case already decided by another judge, must be decided in the same way.

CIVIL LAW Legal system deriving from the ancient Roman Law

Codified body of written law The judges are submitted only to the WRITTEN LAW: general and abstract (universal) rules applicable, as such, to all the cases that the judge will be asked to resolve. The two systems tend to converge in recent times. PRIVATE LAW The law governing the relationship between individuals, both natural and legal persons, acting on the same level. PUBLIC LAW The law governing the relationships between citizens and public authorities. CIVIL LAW An aspect of private law, it relates to the legal mechanisms through which individuals can assert claims against others and have those rights adjudicated and enforced. The purpose of Civil Law is to settle disputes between individuals and to provide remedies; it is not concerned with punishment as such. CRIMINAL LAW An aspect of public law, it relates to conduct which the State considers with particular disapproval and which it seeks to control and/or eradicate. The purpose of criminal law is to enforce behaviors, and the State acts positively to ensure compliance. CONSTITUTIONAL LAW The law concerning with the fundamental rules and principles that characterize a legal system, setting the nature and the extent of the government, the relationships between state powers and within them. EUROPEAN LAW The law concerning with the rules coming from the European Institutions in the matters delegated by the Member Countries.

RIGHT An interest protected by the law: the holder of a right is entitled to


ask the judge to enforce it against anyone who violates the right. The sources of right can be the law or the wills of individuals. 1) the individuals can settle their interests by creating new rights or by

transferring/acquiring already existing rights. 2) When on the contrary rights are created by the law, we are in front of rights that belong to all the members of a community or to a particular group into the community (indistinct and general number of persons, not previously individuated). Rights are usually opposed to complementary duties (in public law) or obligations (in private law). FUNDAMENTAL RIGHTS Codified in national constitutions. Those rights that are supposed to be inviolable. HUMAN RIGHTS Held in international treaties or declarations (Universal Declaration of Human Rights 1948, European Declaration of Human Rights 1950, Declaration des droit de l'homme et du citoyen 1789). The basic rights and freedoms to which all humans are supposed to be entitled. UNIVERSALISTIC APPROACH: Human rights are not the product of a single or few legal systems, but are those basic and fundamental principles that any modern society is made of; they are rights perceived as written in the DNA of every men and women in the world. In the universalistic perspective, even when a state has not ratified an international declaration on human rights, the infringement of human rights practiced in those states or not punished in those states has to be condemned by the international community. RELATIVISTIC APPROACH: Any legal rule, even those that recognize the so called human rights, are the product of the history and the political approach of their times, of the people that contributed to set up the international declaration, no matters their intentions of creating rights to be considered universal. The nature of law doesn't change when human rights are involved. The proponents of relativism argue for acceptance of those cultures which may have practices conflicting with human rights as carried by an international treaty. Universalistic approach replies that: in many cases these positions hidden chagrin or exploitation of the freedoms and liberties of the people of those countries. Declarations like UDHR has been drafted not only by people coming from western countries and cultures, but also by people belonging to different traditions, including Far East and Arab League representatives, and received advices from independent thinkers like Mahatma Gandhi. CONSTITUTION: the legal document that holds the set of rule for government, usually codified as a written document. Source of fundamental rights, rules of functioning of the main powers of the State: Legislative, Administrative and Judiciary powers. CODE A set of legal rules that regulates as a whole an entire area of law.

Common law countries have no codes, since in every field of law the point of reference are the case law and the customs. They can have restatements of law, that are treaties on legal subjects that seek to inform judges and lawyers about general principles of the common law of that country but they are not a legal product. Every civil law country has at least one Code in common with the other civil law country: the Civil Code. The most important civil codes are the French Code Civil (1806) and the German BGB (1900); the Italian Civil Code (1942) is the result of a mixture of the French and the German civil codes. EUROPEAN UNION LAW A unique system which operates alongside the laws of the Member States of the European Union. EU law has direct effect within the legal systems of its Member States, and overrides national law in all the areas that have been reserved to its competence. The member states have agreed to switch part of their sovereignty to the European Institutions in order to create and implement a Single Market and strengthen this way Europe as a whole in the international market. the level of integration does not cover all the fields over which a proper federation rules (criminal offenses or common foreign policy are subsidiary goals; military defense is not included in the competences of EU). There is a lack of democratic representation in the European institutions. The European Parliament has limited powers in the law making processes and the leading institution, the European commission, is made of representatives of the Member States governments, governments, not citizens. EU has the structure of an international organization. The EU has been created as a level of economic integration among the Member States, and implementing the Single European Market is still the main goal of EU Law. MAIN STEPS: 1985-1993 Free movements of people and capitals among the Member States and coordination of the monetary and economic policies. 1994-1998 renunciation of financing the public deficit and adoption of rules to protect the independence of the central banks. 1999-2002 introduction of single currency (euro), which definitely replaced the national currencies from March 1 st 2002 (except G.B., Denmark and Sweden). 2003-today attempts to create a Constitution for Europe and strengthening the powers of the European Parliament. THREE MAIN PILLARS: European Economic Community Foreign policy Criminal law and judicial cooperation The first pillar (EEC) is still the most important and European law refers mainly to economic related subjects, the main goal is to reduce the differences and

imbalances among the national markets of the Member States that still hinder the free circulation of capitals, goods, services and workers inside the single market. SOURCES OF LAW IN EUROPEAN UNION TREATIES They are created by governments from all the EU Member States acting by consent. They: lay down the basic policies of the Union establish institutional structure, legislative procedures and powers of the Union. REGULATIONS They are binding upon the Member States and are directly applicable to the European citizens and domestic institutions. Each regulation is therefore intended to be part of the domestic legal system of the Member States automatically, without the need for separate and subsequent implementation by the governments. DIRECTIVES They are binding upon the Member States, but are not directly applicable to the citizens. The Member States are supposed to adopt measures to implement into their legal systems the minimum content of the Directives within a given period of time. If not, an infringement procedure can be brought before the European Court of Justice against the Member State that has not implemented the Directive and can lead to adoption of sanctions and fines for the infringement. Even if a directive is not implemented, individuals may nonetheless rely on it, at least in actions against their National State for not having implemented the Directive. DECISIONS They are binding on those to whom they are addressed. The EU institutions are free to proceed by way of decisions in many areas (competition law, agricultural matters, implementation of directives, etc.) RECCOMENDATION AND OPINIONS They have neither binding force nor direct effect. Their force of persuasion on the so called soft law level is indisputable. As far as the European institutions provide for recommendations or opinions, the states or the enterprises or in general the addressee of these acts are strongly suggested to behave accordingly.

EUROPEAN COURT OF JUSTICE

The ECJ is the judicial authority of the EU and it ensures the application and uniform interpretations of the EU law together with the national courts and tribunals. 1) review the legality of the acts of the institutions of the European Union 2) ensure that the Member States comply with their obligations under the EU law 3) interpret EU law at the request of the national courts and tribunals of the Member States. The ECJ is composed of three judicial institutions: the Court of Justice, the Court

of First Instance, The Civil Service Tribunal. THE COURT OF JUSTICE It is composed of one judge per Member State (27) although it normally hears cases in panel of three, five or fifteen judges. The judges are appointed for a renewable period of six years. The treaties require that they are chosen from legal experts whose independence is beyond doubt and who possesses the qualifications required. They must be approved by any other Member State. The court is assisted by 8 Advocates General, who are responsible for presenting a legal opinion on the cases assigned to them. They can question the parties involved and then give their opinion on a legal solution to the case before the judges deliberate and deliver their judgment. Five of the eight Advocates General are nominated as of right by the 5 big member states of the EU: Germany, Italy, France, the United Kingdom and Spain. The other three positions rotate in alphabetical order between the 22 smaller states. Competences include: rule on applications for annulment or actions for failure to act brought by a Member State or an institution actions against Member States for failure to fulfill obligations references for a preliminary ruling appeals against decisions of the Court of First Instance. THE COURT OF FIRST INSTANCE(European General Court) Composition is the same of the Court of Justice, but there are no permanent Advocates General. However, the task of an Advocate General may be performed in a limited number of cases by a judge nominated to do so. The Court of First Instance has jurisdiction to hear and determine at first instance all the direct actions that individuals and Member States can bring to the ECJ, with the exception of some specific claims reserved to the competence of the Court of Justice. The direct actions that can be brought to the Court of First Instance are mainly: actions for annulment of EU institutions acts actions for failure to act of the EU institutions actions for damages caused by unlawful conduct on the part of a Union institution. Subject matter: from agriculture to competition, from state aids to commercial policies, from trade mark law to transports. The decision of the Court of First Instance can be appealed to the Court Of Justice on matter of law

HOW DO THE RULES OF LAW WORK IN PRACTICE?


CIVIL LAW COUNTRY: the rules of law work by describing general and abstract facts that produce legal effects to one or more persons. COMMON LAW COUNTRY: the rules of law are concrete provisions taken from judiciary decisions of cases brought before judges. In natural language fact is any occurrence or event, both natural and artificial. In legal language a fact is only that occurrence directly or indirectly considered by the law as productive of legal effects. Legal acts or voluntary acts: manifestations of human will that produce

rights and duties over personal or economic interests of the author or of a third person (contracts, marriages, wills, etc.). Legal acts can be divided into two groups: lawful acts: mandatory or permitted acts unlawful acts: prohibited acts that lead to sanctions. Mere human actions: human actions relevant for the law regardless if committed voluntarily or involuntarily (payments). There are rules that take into account only proper human acts (voluntary), and others that consider even the mere human actions (voluntary or involuntary). PERSON IN LEGAL LANGUAGE: any recipient of the rules of law; any holder of rights and/or duties. The two principles of formal and substantial equality concur to determinate the scope of the discipline of Persons in Private Law: 1) formal equality gives every man the possibility to be entitled of the rights that at the same conditions are granted to any other persons, without any social or economic distinction LEGAL CAPACITY 2) substantial equality asks the legal system for protection of those persons incapable to act with the same degree of comprehension of the other persons CAPACITY TO ACT. LEGAL CAPACITY any individual in the society, for the simple fact of being, is eligible to have rights and duties, with no exceptions or privileges. CAPACITY TO ACT Everyone achieves the power to perform legal acts at the age of majority, apart from those legal acts for which the law provides a different (prior) age. All individuals have rights but only those who have capacity to act can exercise them. protection of weaker persons. Legal capacity and capacity to act are expressions of the two principles of formal equality and substantial equality. LEGAL PERSONS Legal persons are recipients of law, entitled to have rights and duties, different from persons in biological sense. (associations, corporations, foundations, etc.). The legal persons get legal capacity as soon as the requirements to create the single legal person are met; once they are in force they get also capacity to act.

THINGS AND GOODS


Persons are character of any legal relations. We relate to other people to comply with our personal interests and desires. to have at our disposal or to move in the market things (money, properties,etc.). A material thing is any material object that surrounds us. Most of these things that we see around us can be somehow purchased, sold, borrowed, possessed, etc. Some things cannot freely circulate in the market but we perceive that in principle material things owns to someone and can be somehow put into the

market. It is less simple to make similar thoughts about incorporeal things. Incorporeal things that can be transferred or acquired are as example industrial inventions or the share of a public company. In legal language things are usually referred to as material objects. It is used the word good to refer to both material things and immaterial values that are considered by the law objects of individual rights. Persons subject of individual rights. Good object of individual rights. things are object of rights not all the things can be object of right nothing is said about incorporeal values as goods MARKETABILITY If rights can be created over incorporeal values and if the values and rights circulate in the market, we can say that the incorporeal value is a good. material things are considered with no doubts things to the law in all the legal systems, with possible exceptions. Incorporeal values can be considered goods at some conditions, case by case provided for by the law. MARKETABILITY Economic evaluation Market evaluation. IMMOVABLE THINGS Are the soil and all the other things naturally or artificially annexed to the soil. MOVABLE THINGS are all the other things (incorporeal things are considered movable things and legally treated as such). DEBATED CASES: ANIMALS AND HUMAN BODY ANIMALS some argue that they have some rights but others argue that rights are creation of humans for humans in a human society, it is a strain to consider animals recipients of legal rule and therefore holders of a right. Finally there is a logic obstacle in considering an animal both object and subject of rights. In some legal system a specific rule is provided for to answer to the question. HUMAN BODY certainly the human body as whole is not a good to the law, for it is what a natural person is made of. Therefore, protection of human dignity prevents from considering the human body as such a good to the law. Moreover, as we said about animals but with the opposite outcome, a subject of law cannot be at the same time an object to the law. Some parts of human body can be marketed and traditionally are marketed (for example hairs for wigs).

Constitutions and International Declarations of Human Rights health protection and protection of human dignity and human right to self determination. DIGNITY A Concept that has an object consideration of a minimum standard of protection of a value or a principle. It can be differently appreciated by different cultures and in different periods of time. It is the product of common sense. SELF-DETERMINATION the possibility given to anyone to freely do, behave and determine the course of actions and life without respecting any external constraint. It prevails over the common standard perception of right and wrong. remember The Moore case.

PROPERTY RIGHTS
REAL RIGHTS What a person can do with a good at his disposal, where real means over things.

CIVIL LAW COUNTRIES

The concept of ownership in civil law countries is derived from Roman Law, and in particular from the idea of dominium. It comes from the principle that there is only one person who has all the rights over one good. Other people are not entitled to have any faculty or power over the good owned by another person with exception for those possible limited rights explicitly given by the current owner or his predecessors. These rights usually called lesser real rights (lesser than the right of property), are thought as a close list of exceptions to the right of property, in the sense that no other lesser real rights can be created than those listed by the law and in the specific case provided for.

PATRIMONY The bundle of all the economic relations, both positive and negative, pertaining to one person. In particular, all goods owned by that person are part of his patrimony. Also liabilities and debts are part of the patrimony and also goods which the person will have in the future. the economic personality of a human being. INHERITANCE LAW The heirs continue the economic personality of the deceased. Compulsory inheritance the patrimony is the single set of all the economic relations pertaining to one person in case of failing to fulfillment of the debt, the assets of the debtor are at the creditor's disposal.

COMMON LAW COUNTRIES

In common law countries, the position regarding property is due to the feudal system in early English history, when the only person who owned the land, in

Roman Law sense was the king. This is still true in England as far as land or other land-related goods are concerned; no more as far as the so called personal goods are concerned. All other persons had only certain rights to use of the land. In English law the word used to indicate the tenant's interest in the land is estate. As a result of this way of thinking lawyers kept on regarding ownership as being in principle something which does not belong necessarily to one person. Instead they consider that many people could each have separate rights in relation to the same land and in general to the same good. This bundle of separate rights is still called estate in the legal language of common law systems. In common law we distinguish grades of powers and faculties with respect to single rights of use of a good. LACK OF THE CONCEPT OF PATRIMONY common lawyers are not used to think about assets and debts of one person as a single bundle of economic relations, since they don't have the idea of the right of property as an absolute dominance over a good and the other real rights as limitations over the right of property. Complete freedom of testastion. The idea of having heirs to get a compulsory share of a single patrimony is not coherent with the idea of property rights in the common law legal systems. Owner autonomy is the key word in inheritance law.

OWNERSHIP/PROPERTY AND POSSESSION


The owner of a good is the person who has in the fullest degree the rights of use and enjoyment, of destruction and disposition, subject to the rules of law which protect the rights of others to certain limited rights granted by the owner or his predecessors. In any case ownership is a right. Possession, on the contrary, is a matter of fact. It is the fact that one person is using a good for his own benefit, even if not the owner of that good, if not the holder of the right of property over that good. Possession can be lawfully or unlawfully acquired. In the first case it can be accompanied by ownership. LAWFUL POSSESSION 1) the owner of a good has it at his disposal. In this basic situation the owner is at the same time the possessor of the good. 2) An owner who delivers a car by way of a loan or hire to another person gives him lawful possession of the good, but does not cease to be the owner, to be the only one entitled to property right on the good. Such voluntary transfer of possession creates rights of use of one good in favor of the possessor, whose consequence is that the owner cannot use freely the good. UNLAWFUL POSSESSION If the owner of a car is robbed of it by a thief, the owner's right remain intact. The thief acquires no right, and in particular no right of property to the car, for the owner remains the robbed. But the owner's possession and consequently the power to exercise the content of the right of ownership are gone till the

moment of the possible restitution of the car. Possession power of control over the good possessed + intention to maintain that control on the part of the possessor. Actual possession in the most of the cases is evidence of ownership except the cases in which ownership is based upon a system of public registration, it is hard to see how an ownership can be proved otherwise than by going back to some prior possession. Possession creates presumption of ownership. Possession is not merely an evidence of property, but it is itself an for its own sake entitled to legal protection . The wrongful possession of a good, but in good faith from the possessor, if continued for a certain significant length of time turns into something that may be considered ownership. Active use of a good leads the factual situation (possession) into an interest protected by the law as a right (ownership) and can destroy or make possession to prevail over the right of ownership of the current inactive owner of the good. This situation is called prescription. Prescription enables the possessor to acquire the ownership of a good as effect of long-lasting possession for a given period of time. In particular to be considered the owner of a good after continuous possession it is necessary: the passage of a consistent period of time that differs in consideration of the nature of the good possession must be continuous and non-violent or concealed prescription is therefore difficult to acquire. Prescription is provided for stimulating productive uses of the goods and discouraging inactive ownership.

TRUSTS
Trust is one of the most characteristic institutions of English law and in general common law systems. Trust is a relationship whereby a good of any kind is held by one person for the benefit of another. More specifically, in the tradition structure of a trust the good is transferred bay one party to another to be held for the benefit of a third party or for a specified purpose. It is possible to create a trust without transferring the good just by declaring that the good will be held for the benefit of the beneficiary and no more for the benefit of its owner. The settlor who is the owner of the good to be transferred the trustee who holds the so called trust property the beneficiary who is the person for whose benefit the trust has been settled (the settlor himself may be the beneficiary). The trust sets out the detailed powers and duties of the trustee. The trustee is obliged to administer the trust in accordance with both the terms of the trust and the governing law of the trust. MAIN LEGAL EFFECTS protection of the trust property the personal creditors of the trustee cannot satisfy their interests over the trust property. Fiduciary administration of the trust property trust is an instrument

used to give a professional or an experienced person the administration of the good; the trustee must manage the trust property carefully because otherwise he will be held responsible for wrong management of the good in trust. MAIN REASON TO CREATE A TRUST protection of minors or disabled persons preservation of assets for the heirs charity

In civil law country it is not simple to create a trust because it is difficult to think of separating the use of a good to its property, as it happens in trusts. With a trust the owner is merely qualified as the holder of a right of property and has no powers of control over the good anymore. This is against the Roman Law concept of dominium on which the property rights are conceived in civil law.

CONTRACTS
Contract is an agreement by which two or more individuals create an economic relation among them in order to transfer or create a right or in order to give birth to obligations to give, to do or not to do something. a bilateral or multilateral act a legal act in proper sense, for it must be intentional it has binding effects over the parties involved (privacy of contract). The law recognizes the power of people to create such relations and offer protection to the rights that emerge from the contract. As a consequence, the law rarely interfere in the content of the contracts only when protection of the weaker parties is considered necessary. If one party do not respect the obligations coming from the contract, the other party can find protection in the courts. A contract gives rise to legal effects: transfer/creation of rights creation of obligations bilateral effects: rights and duties to all the parties (market oriented sense) unilateral effects: rights to one party an duties to another (inconsistent with the market logic). COMMON LAW COUNTRIES The word contract is more frequently used for bilateral transactions. CONTRACT A bilateral transaction that creates legally binding promises or set of promises. CONVEYANCE a bilateral transaction whose effect is to just transfer a property right or a property interest. DEED Any transaction that has written form, must be witnessed and needs to be delivered from the grantor to the receiver. CIVIL LAW CONTRIES

Both a unilateral and a multilateral transaction, and even the transaction which does not generate any relation between the parties, is called contract. In German based systems contract refers also to personal relations even those without any economic effects. In French based systems contract is used only with reference to the transactions that involve economic values. Only agreements that aim to create a relation between the parties with respect to their economic interests can be addressed to as a contract agreement. It is therefore necessary that any contract has some degree of objective and ascertained content to be considered as such source of transfer/creation of rights and source of obligations. The agreement is what makes a contract different from unilateral acts. the parties must have capacity to act in order to conclude a contract the consent of the parties may take on different shapes: written document, gestures, spoken communications, etc. sometimes just behaving in a way that is inconsistent with the intention of one of the parties not to conclude any contract can be considered as an agreement. What is important is to understand when the parties actually wanted to enter into a contract and detect the existence (or not) of a minimum degree of content. People are free to: enter into contracts give any content to their relation pursue whatever end they wish freedom of contract has been restricted: to protect weaker parties in the market (consumer protection, protection of employees) to protect competition (unlawful exploitation of market power from monopolists or anti-competitive agreements. OFFER AND ACCEPTANCE OFFER the proposal to enter into a contract that one individual addresses to another one, or to general public, in order to get acceptance of the proposed agreement. In order to be an offer, the communication coming from the offeror must include all the essential elements of the contract proposed and must express the actual and serious will to create a contractual relation in case of acceptance. ACCEPTANCE the communication of agreement on the proposed contract from the recipient to the offeror. In order to be considered a proper acceptance, the communication of the consent to the proposal must not carry any modification of the proposal itself; otherwise it is considered a counter-proposal (a new proposal). CIVIL LAW COUNTRIES The contract is concluded when the one who made the proposal has knowledge of the other party's acceptance. Revocation has no

effect if its knowledge comes after the conclusion of the contract. COMMON LAW COUNTRIES proposal, acceptance and revocation of both proposal and acceptance are effective if posted to the receiver before the knowledge of the act revoked. In some cases, a consumer has a cooling-off period following the formation and conclusion of the contract, during which a change of mind is permitted. In civil law tradition we find the concept of cause THE CAUSE is the justification of the movement of wealth, and therefore: the prospect of a counter-performance to be given by the other party in bilateral or multilateral contracts. The intention to give something without getting in return in gratuitous contract. Justifiable means that a minimum logical reason for exchange of utilities must be present. In common law tradition we have the concept of consideration CONSIDERATION a promise must be reciprocated by another promise that confers some benefit to the other party or leads to detriment of the first party, otherwise there is no bargain, and thus no contract. In English law there is no consideration if the gift-giver gets nothing in return. Gratuitous promise can be binding only if it is made under a deed. THE RIGHT OF WITHDRAWAL Sometimes the law or in any case the agreement of the parties can give one or both the parties the power to withdraw. the will of the parties in the contract the parties provide for attributing this power to one or all the parties. The law labor contracts, professional service contracts, consumer contracts, etc. When the power of withdrawal comes from the wills of the parties, the withdrawal can be subject to the payment of a sum of money, the earnest from the person whom the power is given. The party who suffers the withdrawal can keep the earnest.