Principles of Law. Prof. Dr hab. Artur Nowak-Far

Transcription

1 Principles of Law Prof. Dr hab. Artur Nowak-Far

2 Your teacher professor at WSE head of the Chair of European Law vice-minister of foreign affairs (legal and treaty portfolio) member of the College of the Supreme Chamber of Control advisor to the Minister of Agriculture on EU matters member of Advisory Council of the Minister of Foreign Affairs member of Special Task Force for Technical Harmonization member of the Warsaw Bar

3 Your textbook any texbook on Law in general (of international character) maybe Wade Mansell/Belinda Meteyard, A Critical Introduction to Law, Routledge, London 2015 or later edition

4 Law: concept and structures lubrication function of law allocation function of law

5 BL: concept and functions Hobbes theorem Coase theorem

6 Sources of law international treaties constitutions statutes model/uniform laws judicial decisions stable, accepted habit

7 Lex mercatoria

8 Lex mercatoria customs prevalent in the business world invocable before courts desuetudo

9 Common law/equity vs. Continental law system different concepts of sources of law different functions of judicial decisions different origins and role of statutory law

10 Basic structures Private law Public law

11 Subject and divisions of subject matters within law is highly conventional eg. Francovich case eg. Faccini Dori case

12 Basic concepts: Branches of law (general) constitutional administrative civil criminal procedural: administrative, civil, criminal

13 International aspect: national law international law: public/private PIL: generally about the national law applicable/the jurisdiction of a national forum

14 Basic concepts: Branches of law (more specific concept) constitutional administrative/financial/environmental civil: pertaining to things/pertainging to contracts/pertaining to non-contractual obligations criminal: pertaining to serious crimes, pertaining to petty offences

15 Law: The Actors

16 Individuals: legal roles natural persons transactors consumers business people plaintiffs/defendants

17 Individuals: Legal capacity general legal capacity capacity to act: to make legal actions

18 Individuals: Legal capacity differentiated fetus (nasciturus) minors and limited capacity adult incapable adults

19 Legal persons: Partnerships and corporations unlimited vs. limited liability

20 Legal persons (with limited liability) creation: upon registration acting: through their organs liability: their own separate from that of their shareholders/stockholders extent of liability: all their assets

21 Limited Liability Partnerships partners liability for one partner s professional malpractice limited to the extent of the partnership assets no unlimited liability of partners

22 Joint and several liability each person liable for the entire debt creditor s recourse to each and/or every person liable paying the debt by any person liable relieves other presons liable of the debt

23 Post-mortem (after death) liability creditors can be paid from the assets left heirs thus liable heirs will not be liable: if they reject bequest if they the accept bequest, but make official reservation of the acceptance to the limits of bequest

24 Property and other rights

25 Property vs. possesion property involves holding a title possession refers to any situation where something is held in someone s hands ( as if this person was the owner ) but with no information about who holds the title Possesion ppo Ownership

26 Legal protection of property rights property rules: rightholders can enjoin all attempts to acquire the right on terms that they deem unacceptable liability rules: rightholders can seek monetary compensation for seizures of the right

27 Acquiring property a result of the owner s own activity a product of the owner s property a result of an legally enforceable transaction a special case of swarm of bees

28 Special cases for consideration pond fish/river fish/see fish wild animals finding a hoard finding money finding apparel/accessories finding money prescription

29 Registred vs. Unregistred Property ship/motor vehicle/aircraft/house/piece of land/appartment book/clothing/bicycle special cases: museum artifacts/tv- radiosets/drones

30 Use and Disposal of Property reasonable use owner s disposal: destruction/abandonment (but consider environmental issues) a special case: escaped animals/sworm of bees transfer of title

31 Dependent rights Representing a lawfully created burden of third person(s) with respect to the property

32 Use the right to use somebody s property and appropriate benefits out of it

33 Servitude The right to use somebody s real property because this makes it possible to fully enjoy the ownership of another property

34 Collateral offering property as a surety of fulfilling one s own obligations enforceable with regard to anybody

35 Mortgage a specific type of collateral on real property registered reverse mortgage

36 Legal Actions

37 Basic division of actions having legal ramifications unilateral legal actions bilateral legal actions multilateral legal actions non-legal actions having legal effect A question: What type of action is making a gift?

38 Contracts: basic elements agreement=offer+its acceptance consideration contractual capacity of parties some jurisdiction require also causa (the underlying and legally recognized reason)

39 Failure of assent pretended action error act upon deceit duress threat

40 Express v. implied contracts Express if what is agreed upon has been intended by both parties Implied if whatever significant element not intended

41 Examples of implied elements of contracts purchase of an on-going enterprise (or an organized part of it) giving rise to a purchase of employment contracts associated with that enterprise purchase of a piece land with an implied burden to clear-up its soil of contaminants

42 Quasi-contractual relationships unjust enrichment representation without consent of the represented party

43 Freedom of contracting one can conclude any agreement provided that it is just and has a legitimate reason

44 Rebus sic stantibus rule a significant change in underlying circumstances can be a right title to change the otherwise enforceable contract

45 Value of monetary debts debt to be paid off in the amount agreed parties may agree to update the value courts may intervene if the value of money significantly deteriorated if default, interest/penalties

46 Delicts/torts harmful events giving rise to damages/legal responsibility whoever caused any harm on anybody else is liable to provide adequate redress criminal offences give rise to public responsibility

47 Torts: France, Germany, UK Art Code civil (F): All human conduct of any kind which causes harm to another requires the person by whole fault it occurred to redress it Art Code civil (F): Everyone is responsible not only for the har which he has caused by his conduct but also by his negligence or imprudence

48 Torts: France, Germany, UK 823 para 1 BGB: A person who intentionally or negligently injures the life, body, health, freedom, property or other right of anlother unlawfully is obliged to compensate the other from the harm arising from this 826 BGB: A person who intentionally inflicts harm on another in a manner which offends against good morals is obliged to make compensation to the other for the harm

49 Examples of application of 826 BGB deceitful favourable reference for an employee improper, forceful enforcement of properly obtained court judgment incorrect financial statements by a company distorting investment decisions

50 Torts: France, Germany, UK In UK precedent law; Torts include: trespass (to the person, to goods, to land) negligence, conversion, public and private nuisance

51 Regular liability vs. product liability RL: based on the concept of fault/burden of proof rests with the plaintiff PL: based on the concept of risk/assumption that the product is dangerous PL is a type of strict liability

52 The place of performance can be agreed upon or can arise from the nature of performance if no agreement/no nature of performance indicative: where no money involved: usually the place of debtor s residence where money involved: usually the place of creditor s residence

53 Warranties: types warranty of title (legal conformity) express warranty (physical description conformity being part of a contract) implied warranty (arising by virtue of law under certain circumstances, even if not included expressly in the contract)

54 Implied warranties of merchantability of fitness for a particular purpose of trade usage (packages, wrap-ups, info etc.)

55 Warranties exteded onto third parties Household members Reasonable and foreseeable user Anyone injuried by the product

56 Warranty disclaimers and waivers scope/extend time failures

57 Legal forms (in contracts) a general rule: contracts can be in any form yet, law may require a special form for specifically indicated contracts

58 Examples: England: Bill of Exchange Act 1882 bills of exchange must be in writing. France: form required ad solemnitatem (for the act to be valid) or ad probationem (for the evidence to be accepted)

59 Examples: sales of real estate wills contract pertaining to sales of movable property of significant value

60 Bequests universal succession selective succession (whatever is left when credits have been paid out) decline

61 Bequests by wills by administration

62 Order of inheritance normally spouses and progeny have priority other relatives the souvereign

63 Unusual business law case: Re the Estate of Ira Collins Soper 196 Minn 60, 264 NW 427 (1935) Ira Soper was married with Adeline Westphal (in the US) in 1921 he disappeared leaving a suicide note; no trace of suicide (e. g. body) was ever found because Ira Soper started a new life in Canada; there he married Gertrude Whitby In 1932 Ira Soper committed suicide in the earnest

64 Soper: Court issues Gertrude Whitby was paid $5000 (insurance policy) by a trustee (as a sole heir to Ira Soper s estate) give the monies to my wife Adeline Wesphal (Soper) sued Gertrude for this money arguing that distribution of it was in gross error the court is to choose between the text and intention (and chooses the latter)