Foundations of Private Law - Appunti

U0 - introduction

course objectives and methodology

the scope and boundaries of private law within the legal discourse

practical example

definition

to sum up

the structure of the course

course objectives and methodology

understanding the main concepts and general principles of private law through the lenses of western legal

tradition and EU law

understanding the role played by private law in addressing concrete problems occurring in private relations

within society and global markets

grasping some of the basic tools for comprehension of private law matters from the perspective of a

transnational lawyer in both purely domestic (national) and cross-border situation

understanding the possible role played by EU law (and to a minor extent international law) in providing

principles and rules applicable inn private law contexts or influencing national systems under these aspects

functional approach - mapping legal sources and legal foundations - common cores of the different systems - EU

dimension

the exam: open and case based written questions + complementary oral part

the scope and boundaries of private law within the legal discourse

practical example

The hospital Alpha, located in country A, purchases a large relationships

stock of antiviral pills from the pharmaceutical company Beta, state - hospital (public and hierarchal)

whose headquarters are located in country B. Since the hospital - pharmaceutical company

availability of this treatment is still very limited in the market, (paritarian)

the State requires by law that hospitals shall adopt an internal

plan defining criteria for the best allocation of this treatment, hospital - patients (practically hierarchal)

taking in due consideration the patients' vulnerability and the in abstract terms in private law the situations are

expected effectiveness of the treatment in the given all paritarian and free to negotiate (look at

circumstances hospital - pharmaceutical company)

The Alpha allocation plan provides that the treatment shall be in reality the two parties might not be on the

ensured on a “first come first served” basis, in case of same playing field and a hierarchal situation is

shortage, priority should be given to the most aged patients. present (look hospital - patient) it is not

Where patients are admitted to the hospital, they (or their grounded on the law but on private autonomy

family members on their behalf) are asked to accept hospital's (which the state does not have)

terms and conditions, including the treatment allocation plan

mentioned above the allocation plan itself is trickier, was it a copy

Based on this plan. Mrs Brown, a chronic disease patient, paste of the law it would be public, but if space

resident in country C, is refused the antiviral treatment despite

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her vulnerability. Whereas other treatments are provided, Mrs for private autonomy was given to the hospital

Brown cannot survive the infection and passes away when it would be considered as private law

By contrast, Mrs Green, a 78 yrs old patient resident in country instruments

D, receives the antiviral treatment and just afterwards, is contracts (agreement between private

affected by a severe allergic reaction that is not reported in the parties based on private autonomy)

information provided by the pharmaceutical company

what are the main actors in this story? (private, public or both? individuals organisations or both?)

private law matters can also extend to public entities in some circumstances, it is relevant to the happenings of

the case but not to the general usage of private law in this situation

is the law infringing the rights of the patients? is the state liable?

what are the main interests at stake? (individual, collective, general interests, economic, non economic)

not confined to individual interests it can also be considered on the basis of collective economic interests and/or

general wellbeing

if we look at the roman definition public encompasses everything that regards the public

also can the allocation plan not be followed in some way?

as a consequence of the adopting of an “unlawful” act the life of a patient is put at risk

is then the allocation plan a private or public act (difficult to understand)

private law can be found by looking for the type of relationship and the type of instruments used to regulate

parties interests

definition

it can be viewed as either the regulation private law

of everyday life or as the cement that law that deals with the rights and duties of individuals with

holds the different parts of society respect to one another, it thus allows people to shape their own

together by suppling pre-constitutional legal relations with others by choice so private interests are only

ground rules of respect for others and created and maintained if private individuals wish to do so

their interest (Collins) (possible conflict with countervailing considerations such as

interests of third parties or public concerns)

it has five major branches: property, contract, tort, family and

succession which are most of the time treated as isolated

compartments

but what are the aims of private law? there are two main schools of thought (Smits)

private law works primarily as an instrument to private law provides legal rules on how individuals

reach some external goals must conduct themselves vis-à-vis others (normative

view)

usually this goal is economic efficiency (but lack of

arguments for it) makes the focus go on the question of how people

should legally treat each other, which opens the door to

or making the successfulness of a rule dependant on involving social norms and to the fact that people owe

whether it influences behaviour in the way desired each other duties without the state telling then that is

thanks to incentives and penalties (but no empirical the case

basis)

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or categorising it as distributive justice making it really and it gives pride of place to legal doctrine, as it is what

public law (but this means that all interactions should judges and practitioners turn to when in need, a source

be evaluated by the state and this is not correct) of information on how to behave

(distributive justice should play a role in private

relationships but not such an extensive one)

the roles of private law can be:

the acknowledgement of rights and freedoms (including fundamental rights and freedoms) related with private

autonomy

the limitation or regulation parties’ autonomy to accomplish social justice

the enabling and fostering of parties’ autonomy so to reach different outcomes

the balancing conflicting interests and tuning social and market interactions

but what gives private law the legitimate authority it has, and what makes it so broadly accepted by the community?

(Collins)

cosmopolitan principles (universal) the governance of the nation state (nation)

this philosophy says that there are general principles however, since the rise of nation states in Europe, it has

(sometimes described as natural law) that provide the been national institutions that have determined the

foundations to private law, these principles are derived content of private law and facilitated its evolution

from basic insights into human nature and the through positive laws which supported complex

elementary features of a market society, thus private economic arrangements

law is discovered through the exercise of reason, moral the bottom line is that the state promises its citizens

argument and logical thought peace and prosperity (through institutionalisation and

it always endorses some variant of a market economy stabilisation of social rights) in return for obedience to

(protection of private property and general freedom of its authority

contract), but when it comes to theories of justice in to secure the national goals of social justice (endorsed

private law there is a variety of views, therefore, while through the political process) private law has been

it provides a common foundation, it does not determine continuously modified (e.g. consumer law and labour

precise answers law)

not even the methodology is common (some historical one result has been the production of territorial

some philosophical), what is is the quest for universal diversity, because while differences have always

principles and the rejection of the idea that all law is existed between state, those were always provisional,

grounded in nation states while now each state has what they regard as a

it has now found new foundations in human rights, optimum balance between competing considerations of

however this turn will not solve issues of detail but justice and fair distribution of wealth

might even render legal reasoning more complex as it is a binding force within a geographical boundary

it overlaps with other sources of identity such as

language, culture etc. (nationalism)

based on this interpretation the predominant principles of justice (linked to schemes of welfare and distributive

justice on the basis of social solidarity) and the primary source of legitimate authority derive from the nation state

(Collins)

ideas of social solidarity vary between states and usually have at its core an acceptance of the homogeneity of

members and an obligation of political altruism (Collins)

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while the legitimate sources of private can be constitutional criteria or rule of recognition, the exclusive ones are

parliamentary legislation and judge-made law, therefore the obligations created rest primarily on the authority of

the nation state itself, still a strand of cosmopolitan justification stands as a scheme of relatively timeless principles

(general principles of law, human rights) (Collins)

but could then private law develop at transnational level? (Collins)

the European Union

European private law can be seen in two ways: first there is the cosmopolitan imagination found in the search for a

“common core” (common frame of reference) and international protection of human rights in the Council of Europe

and the European Court of Human Rights, on the other the European Commission gives us a narrower vision of

justice, one that says that the EU lacks the competence to replace nation states as a source

the key idea of Europe’s notion of justice regards the advantages everyone has from the opening up of a single

market, it promises an enlarged scope for choice in regards to the goods that can be readily consumed and in the

legal order to which citizens can submit (even if the full realisation of this vision is blocked by culture, language and

bureaucracy)

still both the theory of justice and the Directives that can be described as European private law are thin, because

while EU private law has the attractive quality of enhancing freedom it lacks the richness of national systems, and

even if it emulated the “optimum balance” each country would have a different one anyway

EU harmonisation inevitably clashes with nationalism and each country’s social justice pattern (to much for some

too little for others) and these disputes can escalate into battles over sovereignty

transnational commercial law

this is mainly customary law, which has been codified and elaborated by trade associations and most of the time

respected and enforced by state institutions, it serves the purpose of cross-border trade and therefore facilitates

commerce and as it is negotiated between market participants, its justice lies in both wealth maximisation and

freedom

this also means it lacks any capacity to take into account the interest of others (externalities and third parties) and it

does not have a credible claim to having the same source and degree of legitimate authority as the nation state

it does take on the qualities of cosmopolitan law in the sense that it is used to supplement law in the event of gaps

and conflicts

while transnational commercial law has yet to escape its sectorial origins and form, EU private law could be a valid

(but not perfect) candidate even if it will encounter nationalist resistance

sources at the basis of private autonomy: article 15,16, 17 of the charter of fundamental human rights

(Freedom to choose an (Freedom to conduct a business)

occupation and right to engage in The freedom to conduct a business in

work) accordance with Union law and national laws

1. Everyone has the right to engage and practices is recognised (art.16 ECHR)

in work and to pursue a freely (Right to property)

chosen or accepted occupation. 2.

Every citizen of the Union has the 1. Everyone has the right to own, use, dispose

freedom to seek employment, to of and bequeath his or her lawfully acquired

work, to exercise the right of possessions. (...) The use of property may be

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establishment and to provide regulated by law in so far as is necessary for

services in any Member State the general interest (art.17 ECHR)

(art.15 ECHR)

but what is a right in private law and what is its basis? it is created to balance between general interests and third

parties/general interests

private law regulates relationships between individuals there is a distinction between mandatory (to comply

and/or organisations which have private autonomy and with, cannot be changed, protect interests of parties)

who in theory are on the same playing field (equal and default (comply unless decided otherwise,

arms presumption) changeable) rules

mandatory rules are aimed at protecting weaker parties within a given relationship and third parties or general

interests

on powers in private law, the equal arms presumption:

do parties in the story above operate in a level playing field?

do you see any unbalanced relation therein?

the equal arms presumption may be rebutted and mandatory rules may be aimed at limiting these powers, by

private law may adjust rules and principles limiting private autonomy

in respect of power asymmetry between the default rules may also encourage a “fair” use of private powers

parties (eg. employer-employee)

right in private law

an entitlement, an acknowledgement of an interest in favour of an individual/organisation so that its interests are

protected within such a situation, they can be actively protected in court

in case of infringement of a right a remedy (a protection of said rights if they are infringed) is applied, the very

presence of the remedy enforces the right itself by being a deterrent (used a lot in criminal law and procedural)

general principles

Toute Société dans laquelle la garantie A legal right is “nothing but a prediction

des Droits n'est pas assurée, ni la that, if a man does or omits certain things

séparation des Pouvoirs déterminée, n'a he will be made to suffer in this or that

point de Constitution (Art. 16, way by judgment of the court” (O.W

Déclaration des Droits de l'Homme et du Holmes, The Path of the Law, HLR,

Citoyen de 1789) 1897)

Tutti possono agire in giudizio per la tutela dei Member States shall provide

propri diritti e interessi legittimi. La difesa è diritto remedies sufficient to ensure

inviolabile in ogni stato e grado del procedimento. effective legal protection in

Sono assicurati ai non abbienti, con appositi istituti, the fields covered by Union

law (TFEU, Art. 19(2))

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i mezzi per agire e difendersi davanti ad ogni

giurisdizione (Art.24, It. Const.)

Everyone whose rights and freedoms Everyone whose rights and freedoms as

guaranteed by the law of the Union are set forth in this Convention are violated

violated has the right to an effective shall have an effective remedy before a

remedy before a tribunal in compliance national authority notwithstanding that

with the conditions laid down in this the violation has been committed by

Article [fair trial; legal aid] (CFREU. persons acting in an official capacity.

Article 47(1) (Right to an effective (ECHR. Art. 13 (Right to an effective

remedy and to a fair trial)) remedy))

to sum up

private law is a domain of law due to acknowledge, balance and regulate rights or other qualified interests as

emerging within relations between/among individuals and entities (including public ones), which are primarily

grounded on the principle of private autonomy within the limitations established in the law for the protection of

third parties’ and general interests

unlike in the domain of public law, (private) autonomy unlike in the domain of public law, the exercise of

may primarily serve individual and economic interests; private autonomy may entail the emergence of “private

however, general interests do play a role both as powers” dealt by (private) law when balancing between

limitation for private autonomy and as objectives private autonomy and general interests

pursued through private law instruments

not only private law identifies rights but also provides measures (remedies) for their protection, mainly (but not

only) through the intervention of courts awarding some sort of “satisfaction” to the aggrieved party

the structure of the course

The “who” questions

who are the subjects of private law? interests and rights that are universally recognised as fundamentally inherent to

their personhood and human being?

The “what” questions

the main interests protected by private law? are these related exclusively to physical assets or not? how can the

relation between person and goods be framed? how do we know who has right of control over valuable assets?

The “how” questions

how can parties organise their own interests through private autonomy and contracting? What are the limitations of

this autonomy? What are the consequences of the use of contracts in market and society? How are rights and

interests regulated by contracts protected?

how are rights and interests on goods or immaterial values protected? eg. to what extent and in which cases does the

award of damages represent a viable option?

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U1 - the sources of private law for a global

jurist

why is private law mostly grounded on national law

the first trigger was the organisation of power within the national states, insofar as they applied their private law they

felt as they were affirming their identity (code napoleon), private law becomes a distinctive feature of an

economic system and may give competitive advantage

historical reasons are: there are other reasons such as: