Business Law Flashcards
(116 cards)
1
Q
What is good and bad law?
A
Good law:
- Attracts business. Business exists because of the Law.
Bad law:
- Does not attract new business, and stifles
business that already exists. Business exists despite the Law.
2
Q
Jus
A
Law
3
Q
Corpus Juris
A
Body of law
4
Q
Ubi societas ibi jus
A
Where there is society, there is law.
5
Q
Habeas Corpus
A
A legal recourse through which a person can report unlawful detention or imprisonment to a court. The court then orders the custodian (usually a prison official) to bring the prisoner before the court to determine the lawfulness of the detention.
6
Q
Ab origine or Ab initio
A
From the origin or the beginning.
7
Q
Abundantia Cordis
A
With magnificence of heart, with abundance of sincerity and frankness.
8
Q
De lege ferenda
A
The abstract solution or the law as one believes it should be, if they were in charge.
9
Q
In claris non fit interpretatio
A
When the meaning of the law is clear, no interpretation is needed.
10
Q
Erga omnes
A
A legal obligation that everyone must respect, such as the ownership relationship between a person and their possessions.
11
Q
What are the two disparate factions in defining law?
A
Natural Lawyers: Law is defined as universal moral principles in accordance with nature. Law is only law if it is fair. This view dates to ancient Greece.
Example: No abortion, No Adultery…
Legal Positivists:
Law is just a collection of valid rules, commands, and norms that may lack any moral content. The law is law because it has been constructed by the appropriate body and if it is just or not it is totally irrelevant (not totally but it may be).
12
Q
How is law different from social and market rules?
A
Even though Law may include some social and market rules, it is broader than that.
13
Q
Explain the genesis of law
A
3000 BC – 1st traces of codes
1760 BC – Code of Hammurabi (King of the Babylonian Empire): codes are now visible (accessible) and people make policy choices for strict liability.
600 BC – Athenian Statesman Solon: divided society into 5 financial classes and rules were made separately for each class.
455 BC – Roman Twelve Tables (Decemviri 10 + 2)
100 BC – 300 AD Classical Roman Jurists
529-534 AD – Corpus Juris Civilis (3 books): Digest, Codex & Institutes
1088 AD – University of Bologna (CJC + Canon Law side by side)
1700 AD – Concise Codes:
1804 – Napoleonic: Western + Southern Europe, Latin America
1900 – BGB Germany: China, Japan, Greece, Baltic States
14
Q
What was the code of Hamurabi?
A
This Code is considered the 1st code as a legal landmark, which was written in a Black Stone Slab around 1760BC (in the Louvre Museum). There are 282 Laws carved into it.
The Ruler proclaims a systematic (organized) corpus of law to his people so that they can know their rights & duties.
This is a first appearance of the principle of publicity – no one is responsible to obey a law that they have not been able to take cognizance of.
The Code is almost devoid of defenses or excuses. This a very early example of strict liability (Responsabilidade objetiva).
15
Q
What is custom?
A
Custom is the unwritten rule that all who know it feel that it is mandatory. It cannot reach beyond a small group.
16
Q
What is he principle of publicity?
A
This case clearly shows the Principle of Publicity which states that the law has to be published in a public place for everyone to see, furthermore it cannot be altered without being republished. This ensures that man shall not be prosecuted with a law he was not aware of.
This concept first appeared in the Code of Hammurabi.
Case 1: The Heinrich Case
A tennis player that wants to take his racquet to a plane. The security officers said that this action was “against the law”, therefore Mr. Heinrich would have to leave his racquet behind to get the plane. Consequently, Mr. Heinrich was suspicious of this law and asked to confirm it. Since the code where that was stated was not published, the officer was obliged to authorize the man to get the plane with its racquet.
17
Q
Functions of law - What are laws for?
A
Order:
Without Law, society is barely conceivable. The restrain the law imposes on our liberty is the price we pay for living in a community. As Cicero put it: ‘we are slaves of the law so that we may be free’. Law is needed to preserve security and order.
Justice:
The pursuit of justice is the second column of any legal system. Aristotle argues that “Justice consists in treating equals equally and ‘unequals’ unequally, in proportion to their inequality.”.
18
Q
What are judges?
A
Judges: officers appointed or elected to implement the law
19
Q
What are lawyers?
A
Lawyers: are not state officials, they owe a strong duty to their clients. Their duty is to utilize the law, not to dispense justice.
20
Q
What are the distinctive features of the Western Legal Tradition?
A
- Demarcation between institutions
- Legal doctrine as a source of law
- Law is a coherent body of rules with its own internal logic
- Specialized training of legal personel
21
Q
What is the rule of law?
A
The requirement that the access to and exercise of power is subject to accountability and must be able to be checked by Parliament and (especially by) the Courts.
In our days, any constitution serves as an equivalent text: a list of basic requirements that government - whichever its form - must respect.
22
Q
How did Albert Dicey define the rule of law in 1885?
A
- Supremacy of regular law vs arbitrary power
- Equality before the law of all classes of persons and subjection of all persons to the jurisdiction of the ordinary Courts
- The idea of the “Constitution” as the rights of individuals as defined and enforced by the Courts. The living Constitution as the reality of Law.
23
Q
What is common vs civil law?
A
Common law (Origin: Anglo-Saxon)
- England, USA, Canada…
- Not Codified
- Adversarial system / Trial by battle.
- Based on rules that have evolved from other court cases and living tradition. Essentially unwritten.
- Judge: interpreters + custodians of distinct body of law. Have a more neutral part. After the jury’s decision, decides on the punishment.
- “Where there is a remedy, there is a right.”
Civil law: (Origin: Roman)
- French; German; Scandinavian; Chinese.
- Codified
- More inquisitorial/accusatorial system.
- Based on statutes, texts: civil and penal codes. Interpret the same law for every case
- Judge: interpreters + applying the Codes; “Play a more active role in the trial.”
- “Where there is a right, there is a remedy.”
24
Q
What are some other types of legal traditions?
A
Religious law, customary law, mixed legal systems, Chinese law
25
What is the main problem with legislation?
The words of legislative statutes are rarely conclusive: they are susceptible to different construction (by lawyers) so inevitably it falls to judges to construe the meaning of words.
26
What are the sources of law?
1. Legislation
2. Common sense and moral values
27
Describe the process of creating a law?
These are created following procedures laid down in the Constitution:
1. Statute is introduced as a Bill
2. Then, approved by the Parliament
3. Finally, it is satisfied the formality of obtaining the President's Assent
4. Although, in National Law, once a Law has been passed it may eventually be impeached by the Constitutional Court
5. The Court may also intervene before the President’s assent
The Constitutional Court is able to give further law-making powers to other bodies.
28
What are the 2 pillars that courts mostly deal with?
1. FACTS - the establishment of the Facts of the case: what actually took place, at what time, who was involved...
2. LAW - the choosing of the appropriate legal framework that rules the facts.
The higher we climb in the Pyramid of Courts, the less is the attention paid to (establishing) facts.
29
How are courts divided by function?
- Trial Courts (Facts): First Instance Courts
- Appellate courts (Facts & Law): (more than one judge)
- Supreme Court (Law)
In Portugal: STJ (Justice), STA (administrative)
- Constitutional courts
30
What are trial courts?
First Instance Courts.
Some trial courts operate with a judge and a jury: juries are responsible for making findings of fact under the direction of the judge, who decides the law. This combination constitutes the judgment of the court. In other trial courts, both fact and law are decided by the judge. If you want European law to be considered in your case, you can appeal and ask for it to be considered but it can be ignored by the judge.
31
What are appellate courts?
(Facts & Law): (more than one
judge) to consider the application of the legal rules to a case that has already been heard by a lower court.
(Did the trial court, for example, apply and interpret the law correctly?); sometimes it also deals with questions of fact: new evidence have emerged, an appeal court may evaluate it in order to determine whether the case should be remitted to a court of first instance to be retried.
32
What is a supreme court?
- The court that only reconsider the application of legal rules, therefore it is only possible to appeal for the supreme court with points of law.
- Only court that is obligated to consider the European law.
33
What is the role of the constitutional court?
It has a very specific function: In most cases, it makes sure that the law we apply, mostly Statute Law does not breach the principles of the National constitution
In case of conflict, Constitutional law is stronger than ordinary Statute Law.
34
Where are the ECJ and ECHR located?
Luxembourg and Strasbourg respectively.
35
How cal law be classified into 3 types along a timeline?
➢ First-generation (negative rights): for example, not to be interfered with speaking freely or physical integrity rights
➢ Second generation (positive rights): for example, a claim to education, health, or justice
➢ Third generation (rights of solidarity): for example, participation in development and the enjoyment of natural resources, a healthy environment, and disaster relief
36
Who has rights?
Legal Person: A natural person (i.e. a human being) or a juristic person.
➢ Natural person: A person having legal status as an individual, as distinguished from a corporate body, representative, etc.
➢ Juristic Person (artificial person): An entity such as a corporation that is recognized as having a legal personality. It is contrasted with a human being that is known as a natural person
37
What does having a legal personality mean?
To have a Legal Personality means to be capable of having legal rights and duties within a certain legal system. It is a qualitative concept and is a prerequisite to Legal Capacity, which is a quantitative concept
38
When does one acquire legal capacity in Portugal?
At birth with life and loose it upon death.
39
How does personality of unborn children work?
There will be a national LAW that regulates abortion and that provides after how many days since conception is the so-called “right to life” acknowledged
In certain cases, the legal system protects the “conceived but yet unborn” child, by attributing personality to the unborn child (the so-called nascituro). To be the holder (titular) of a legal expectation to inherit, there is a future yet uncertain event (a condition) that must occur: birth (with life).
40
What is capacity of enjoyment?
The ability to be the holder of rights.
For example: Anyone may benefit from the situation of sitting outside in their own garden on a sunny day even someone who has a severe mental disability or less than 18 years.
41
What is capacity to exercise?
The extent of one’s ability to exercise rights and comply with duties, without assistance.
For example: should we allow a minor to sell property? And should we validate a transaction in which one of the parties suffers from a mental disability
42
What are some limitations to capacity to exercise?
❖ Minority: <18 years old do not enjoy Capacity of Exercise, instead they require representation from a legal guardian. There may be exceptions.
❖ Individuals judicially disabled, such as mentally disabled individuals, deaf, mute, blind, senile, etc:
I. Interdictions: In the case of someone with Legal Personality, Capacity of Enjoyment but with no ability to exercise willingly and freely a TUTOR will be appointed.
II. Inabilities: Sometimes the inability is less extreme, and a CURATOR will be chosen instead
43
What are some examples of exceptions to limitations of capacity to exercise?
* Acts of governance over assets that a minor > 16y previously acquired through the outcome of his/her work.
* Acts related to a job that a minor was previously authorized to exercise.
* Arrangements of his everyday life that imply minor costs
44
Does someone who is deaf-mute have a Legal Personality?
Someone blind/deaf-mute/handicapped does have a legal personality. They might however have diminished legal capacity of exercise but only if sanctioned through a court of law.
45
What are the requirements for juristic persons to have legal personality?
* Organized substrate: Existence of people/assets to achieve certain goals worthy of legal protection.
* Registration: e.g. Portuguese Registry of Corporate Entities.
* Recognition: Acknowledgment of Legal Personality to the Organized Substrate.
46
What are the intrinsic elements of collective entities?
Substrate, formal organisation, legal personality
47
What is "substrate" in relation to collective entities?
A social organism subject to a certain kind of organization. Two main types:
- Personal substrate: corporations (for profit) and associations (non-profit)
- Patrimonial substrate: foundations (altruistic, or for the allocation of a mass of assets)
48
What are the extrinsic elements of collective entities?
➢ Scope → Determines the special capacity
➢ Corporate Purpose: profitable economic purpose:
- Corporations of civil law ex. statutory firms, law firms
- corporations of commercial law e.g. partnerships, LLCs
49
Are there exceptions to the principle of special capacity?
Yes. Collective entities may also practice acts convenient to the pursuit of its purposes which may occasionally move away from its corporate purpose.
Examples:
A non-profit organization is not precluded to practice occasional acts of commerce to raise funds to practice its charitable purposes
50
How do collective entities decide what they want?
They have a Document known as “The Articles of Association” which settles:
I. The procedures of Governance.
II. The establishment of the board.
III. The terms of the decision-making process
51
What is an agenda?
Document sent to the component members of a meeting, specifically describing what issues are to be discussed during it.
If an issue that is not on the agenda is discussed in the meeting, this issue is not legally valid. This is so that the members present can prepare the meeting and avoid unfair advantages.
52
What are minutes?
A written description of every meeting of the Corporate Body is recorded and filed in an appropriate standard.
If a point is not in the minute, it doesn’t count as a point already discussed. These are useful to maintain order in meetings and to protect the members involved.
53
What is a quorum?
Number of persons present as a % of the entire body of the meeting. It has two types:
o Functioning Quorum: number of persons needed for a meeting to happen, i.e. what´s the percentage of the total body that must attend a meeting, for it to take place.
For example: for the meeting to take place at least 60% of the members should be present. This cuts the need for a full board to perform a meeting while also protecting the majority by requiring a certain number of members.
o Deliberation Quorum: number of persons needed in a meeting take a specific decision, i.e. what´s the percentage of the total body for a meeting to take place.
For example: A valid decision must be taken by at least 60% of members present. If we have 5 out of 7 members present (functioning quorum) and 3 of them vote favorably, the decision is valid (deliberation quorum).
54
What is a staggered board?
Consider the following assumption: the board is composed of 7 members and member renewal takes place every 3 years, to ensure the continuity of decisions and to protect shareholders from abrupt policy changes (such as a character):
o Year 3, a maximum of 4 members are renewed
o Year 6 a maximum of 3 members are renewed
o Year 9 a maximum of 4 members are renewed and so on.
55
To get as close to reality as we can, when using the law (and especially in contractual relationships), we use a formula that has 5 parts. What are these 5 parts?
* The subject - who is involved?
* The content - what kind of legal positions?
(subordinate and prevalent)
* The object - what is the relationship about?
(immediate and mediate)
* The fact - what events trigger legal change?
* The warranty - how is the rule going to be
enforced
These all make up the legal truth
56
What can be a subject's advantages?
Rights, demand for an attitude
57
What can be a subjects disadvantages?
Duties, general obligations of respect, burdens
58
What does erga omnes refer to? give an example
Erga omnes – everyone is involved. Every person must respect the ownership relationship of someone with their possessions.
Example: in my relationship of ownership with my cellphone.
59
What does demand for an attitude mean?
In law, "demand for an attitude" refers to the right or claim a legal subject has to expect or demand a certain type of behavior or response from another party. This usually applies in situations where one person holds a legal right, and the corresponding party (who may have a duty or obligation) is expected to act or refrain from acting in a specific way.
60
What are the types of rights in the content of legal truth?
- Subjective Rights
- Credit rights
- Potestative rights
61
What are subjective rights?
Rights that fall directly upon things or other realities treated as things.
The holder (titular) have power over things and can demand an attitude of respect. Very often they are therefore absolute rights (they may be upheld by their holder against anyone - erga omnes).
Example: The Right of Property
By pure chance, all the week-end cottages in a village are white with yellow doors. Tomás paints his white weekend cottage purple. His neighbor, a rural purist, is quite disgusted and wants to go over and tell him that purple is an “inadequate” color for the neighborhood. But Tomás has an absolute right..
62
What are credit rights?
It is the active position in a situation regarding DEBT.
The holder has the right to demand a certain type of behavior from someone else.
Employee
Passive: Duty to perform task
Active: Credit to receive wages
Employer:
Passive: duty to pay salary
Active: credit right to receive performance of the task assigned
63
What are potestative rights?
These rights are linked to the concept of POWERS.
The holder may exercise them out of free will and the passive subject is not required to cooperate and may do nothing to impede the exercise of these rights.
64
What are the different types of potestative rights?
- Constitutive: start someting new. Example:
Setting up of an easement: Mr. B who has no other options of passage demands that neighbor A allows him to pass through his land
- Modificative: change something e.g. Change to a contract due to a change of circumstances (raise in rent).
- Extinctive: end something e.g. right to divorce
65
What is legal burden?
Comes before (some) Legal Rights. The non-adoption of a certain behavior, which means if you don't comply with the Burden, you lose an advantage that is within your reach.
Examples:
The State informs you that you may deduct your medical expenses from your IRS statement, IF you attach a scanned copy of them. A Notary informs you that your Uncle has left you a mansion, YET you must inform him in 8 days if you accept the inheritance.
66
What are Duties? What are the 2 types?
The downside of a credit/subjective right. The imposition to adopt a certain type of behavior.
* Obligation: arises between two or more specified subjects
* General duty: respect for private property arises vs everyone (erga omnes)
67
State of subjection
The downside of a Potestative right. Situation of being subject to or constrained by (someone else’s options). Does not presuppose any adoption of any behavior by the subject, yet the subject cannot impede/influence the outcome.
68
What is the object in the context of legal TRUTH?
The thing/behavior that is appropriate and adequate to enforce an interest of the Law.
immediate object - behavior
mediate object - things
69
Immediate object. What is it? What are the 4 types?
Immediate Object: behavior/performance the Players (Legal Persons) are expected to undertake.
Examples: Duty to perform at work; or to deliver; or to pay
Three are 4 types:
- de facere
Positive activity:
To build a house, To draw up a
contract, To write a report
- non facere
Omissive activity: Respect of a
prohibition to build, Refrain from something
- de pati
To suffer the activity of others: To accept that a neighbor builds a disco on his own
land, even if you would prefer a garden
- de dare
conveyance delivery: Delivery of shopping bought.
70
What are mediate object? What are the four types?
Objects onto which you can projection a behavior.
Examples: Assets owned in the Law of Property; Salary; Table
There are 4 types:
- Unreal property (movable property): Car, bicycle, book.
- Real Property: Land, house
- Tangible: Jewel, Pencil
- Intangible (intellectual property)
71
Explain substitute-ability of immediate and mediate objects.
- Substituteable: When they may be replaced by other things/behavior and the beneficiary will not feel damaged.
e.g. António (repairman) is ill so he sends Bernardo to paint the wall instead of him
- Non-substituteable: When such replacement will cause damage to the beneficiary.
e.g Alice is supposed to apologize to Beatriz, she may not send Carla to do so in her place.
72
What is fact in the context of legal TRUTH?
A Fact is a simple event, to which law attaches legal consequences.
73
What is efficacy (effect) in the context of legal TRUTH?
Efficacy is the (legal) result of an existing and valid legal rule. In other words, valid and existing Legal rules can produce results that we call Effects.
74
What is an act in the context of legal TRUTH?
Acts are something that happened because of the interference of human agents. Simple acts are when the Agent may choose whether to act but has no bargaining power over the type of effects produced.
Example: Accepting the terms and conditions on a webpage; simple purchase of some good, you either agree with the price and buy the good or you don't; a confession in court.
Fact: what happens?
Act: what is the intention?
75
What is the difference between facts and acts?
Fact: what happens?
Act: what is the intention?
Facts are something that happened whereas Acts are something that happened because of the interference of human agents.
76
What is a contract?
Contracts is a scenario in which you have the power over the conditions/effects of what he/she is agreeing to or not. Therefore, we consider having true declarations or statements regarding intent - the will of the Persons involved.
This often requires that two adults (natural legal persons) with (comprehensive) legal capacity of exercise determine conditions for a certain situation/relationship.
77
What types of contracts are there?
- Bilateral, multilateral
Exceptio non adimpleti contratus: meaning that you (one of the parties) only must comply when the other parties comply.
It is an exception or defense available in Roman law: a person who is being sued for non-performance of contractual obligations can defend themselves by proving that the plaintiff did not perform their side of the bargain
- Unilateral
When we define a Unilateral Contract, we understand that any deal is necessarily Bilateral, yet observe that sometimes it only generates passive situations for one of the parties involved.
In the case of a Donation in its pure form: only the donor (who has decided to give) has to convey (de dare) so only here are there passive situations, whereas the donee (beneficiary) once singled out only has the credit right to receive (the donation). Conflicting Doctrine argues that this is not true: there is always a burden on the donee: to accept the donation.
78
How can facts be classified?
- Facts I: Facts are Natural Events;
Actions of Nature.
e.g. If the flood carries away a piece of riverbank and deposits it further downriver, one owner suffers a sacrifice,
and another gains an advantage.
- Facts II or Involuntary Acts -Unintentional actions of humans (Involuntary acts)
e.g avalanche, falling down and breaking a vase in a shop
- Facts III or Voluntary Acts - qualified
extroversion of human will. We divide these voluntary acts into two main categories: acts or simple acts and contracts
79
What is the difference between a simple voluntary act and a contract?
In summary, a simple voluntary act is typically informal and lacks legal enforceability, while a contract is a formal, legally binding agreement involving mutual obligations and consideration.
80
Explain warranty
How is the rule going to be enforced?
The Law shall be enforced in harmony with the will of individuals; if necessary, against the will of individuals (what is possible).
81
What are the types of traditional punishment?
- Disciplinary: Reprimand, FIring. Imposed by employer
- Administrative: Monetary, impediment to perform an activity. Imposed by public administration
- Civil: Damages, no loss of physical freedom. imposed by court.
- Criminal: Fine, Prison, Death. Imposed by court
82
What are the 5 objectives of punishment / sanctions?
Compulsory, Compensatory, Preventive, Punitive, Reconstructive
- Compulsory: designed to force the culprit to adopt (although late) the behavior requested. The later, the harsher the sanction.
e.g. Monetary sanctions like interest (civil); tax increase (administrative).
- Reconstitutive: designed to reinstate the situation before breach.
e.g. conveyance; replacement of contractor; promise enforced by court.
- Compensatory: provide compensation (Money = “Damages”) trying to make up to the victim. Compensatory sanctions exist within contracts (Contractual Liability) and outside contracts (Extracontractual Liability).
- Preventive: The punishment ensues (takes place afterward) breach but its objective is to prevent further breach.
e.g. parole; impediment to serve (again) in certain (public) capacity.
- Punitive: concept behind this is retribution. Punish culprits for the wrong they did. May be criminal, administrative, or disciplinary
83
What are the forms of self-enforcement of the law?
- Self defense
e.g. A thief asks for A’s wallet and holds a knife to Mr. A’s wife. Mr. A kills him with a gun.
- Imperious necessity
e.g In the middle of a hurricane a burglar enters Mr B’s house, phones are not working, he escapes and breaks a window of a car to go to the police.
Drunk man driving his wife that is having a heart attack to the hospital.
direct action: exercise of a right when the enforcement is needed urgently otherwise the situation will not get solved.
e.g girl forgets her wallet, later she sees it
in a bag of a colleague and without a word she takes it back.
right of resistance : limits to the citizen’s allegiance to the state: refusing to obey a command that you perceive as unlawful.
e.g A soldier is ordered to kill any individual on premises. He finds a 6-year old child. He does not shoot.
84
What is imperious necessity?
An exemption very often triggered by an external natural fact.
e.g In the middle of a hurricane a burglar enters Mr B’s house, phones are not working, he escapes and breaks a window of a car to go to the police.
Drunk man driving his wife that is having a heart attack to the hospital.
85
What is direct action?
direct action: exercise of a right when the enforcement is needed urgently otherwise the situation will not get solved.
e.g girl forgets her wallet, later she sees it
in a bag of a colleague and without a word she takes it back.
86
What is the right of resistance?
right of resistance : limits to the citizen’s allegiance to the state: refusing to obey a command that you perceive as unlawful.
e.g A soldier is ordered to kill any individual on premises. He finds a 6-year old child. He does not shoot.
87
What is a nudge?
“Nudges are interventions that steer people in particular directions but that also allow them to go their own way.”
A nudge is an aspect of the choice architecture (positive reinforcement and indirect suggestions) that influences people’s behavior in a predictable way, without forbidding any options or significantly changing their economic incentives.
To count as a mere nudge, the intervention must be easy and cheap to avoid, they are not mandatory.
88
What is sludge?
Sludge is friction that causes harm. Different to Administrative burdens that are justified (say, for mortgages)
89
What is positive morality?
Positive morality refers to the set of moral principles, values, and norms that are accepted and practiced by a specific society or community at a given time.
The intersection between law and morality
90
What was the classic Nazi case?
In 1934, in the Nazi world “You may be sentenced to death for in the privacy of your home making derisory remarks about the Head of State”.
A woman wishes to dispose of her husband, denounces him to the Political Police for insulting remarks made circa The Head of State’s conduct of the war.
Husband is tried and sentenced to death; sentence converted to service as a soldier on the Russian front. After the war, the wife was prosecuted for procuring her husband’s loss of liberty.
She defended herself claiming that the husband did actually break the rule at the time (Nazi Law of 1934). Nevertheless, Court found her guilty on the ground that the rule under which the husband had been punished, offended the “sound conscience and the sense of justice of all decent human beings”.
91
The classic Nazi case started a debate about morality, what were Hart and Fuller's perspectives on this?
- Hart (Oxford)
Declares that the decision of the court (to convict the woman) is wrong because Nazi law of 1934 was a valid law (valid means here from a procedural point of view).
- Fuller (Harvard)
Since Nazi “Law” deviated so significantly from morality, it failed to qualify as Law.
De lege ferenda – the law as it should be.
92
What are the 8 principles that must be present for legal excellence according to Fuller?
1. General
2. Non-retroactive
3. Non-contradictory
4. Promulgated
5. Possible to comply
6. Clear
7. Constant
8. Congruence between rule and action (law enforcement)
93
What does promulgation refer to?
Laws should be promulgated, that citizens might know the standards to which they are being held.
94
What is justice about?
About obtaining the removal of a “sense of Injustice”. For example, the Enforcement of the “right thing”, the law or certainty.
Objectives of punishment: prizes, retribution, or mere compliance.
95
What are the types of legal fees?
* Flat fee
* Hourly fee
* Pure Success fee (Forbidden by the PT bar association)
* Contingent fee (% Flat fee + % Success fee)
96
What are some options on awarding costs?
a. Loser pays all = Winner pays nothing
b. Loser pays his costs + 100% court costs (PT)
c. Loser pays his costs + ½ court costs (PT)
97
term for a legal action by one person or entity against another person or entity
Suit: costly initial step to further legal proceeding and trial; may be just a formal legal action (like the feeling of a complaint) or merely hiring a lawyer.
98
What is a plaintiff?
the party who brings a suit. Person who initiates litigation
99
When is litigation a profitable economic decision for the plaintiff?
X = stakes
M = probability of winning the case
Cp = Plaintiff's cost
Cd = Defendant's cost
M x X - Cp > 0 (should litigate)
M x X - Cd < 0 (should not litigate)
100
What is an oversuit?
When a Plaintiff contemplates suing, he considers only his costs, he does not consider the Defendant´s costs or the State’s costs that the suit will engender. The Plaintiff may be led to bring suit when the total costs associated with the suit would make that undesirable.
101
What is ownership?
Ownership is the exclusive right to use, possess and dispose of property.
102
What is possession?
Possession is the actual control and use of property, rightly or wrongly, as one’s own.
103
What are liability rules?
A liability right to something means that if it is taken or damaged, the taker is punished in a fashion intended to make it in his interest not to have done so: damages equal to damages done.
104
What are property rules?
Punishment high enough always to deter.
Example: “If a person steals a car and is caught and is convicted, he ends up in jail (not all about money)”
Conclusion: The right to possession of your car is a Property Right, protected by Criminal Law.
105
What are the components of rights to land?
- Mineral estate: Rights to the subsurface minerals and their extraction.
- Support estate: Rights and obligations related to maintaining the stability of the land (lateral and sub-ajacent support).
- Surface estate: Rights to use and control the surface of the land for various activities.
106
What does usufruct mean under the continental approach?
Right of use and enjoyment of the property, i.e. the right to use it and earn the income from it. In the case of a house or flat, that means the right to live in it or to rent it out.
107
What is bare property under the continental approach?
Right of virtual ownership. Gives you long-term control over the property
For example, the bare owner of a property has no right to occupy it or rent it out. On the other hand, when the usufruct holder dies, full ownership of the property is carried over to the bare owner without any liability for inheritance tax. He can then dispose of it (by sale, gift, bequest, etc.) as he wishes.
108
What are unilateral and bilateral contracts under the Anglo-Saxon doctrine?
➢ Unilateral
In a unilateral contract, there is a promise to pay or give other consideration in return for actual performance
Example: I will pay $500 to anyone that finds my lost dog.
➢ Bilateral
A bilateral contract is one in which a promise is exchanged for a promise
Example: I promise to fix your car by Thursday, and you promise to pay $500 on Thursday.
109
What are unilateral and bilateral contracts under the Continental doctrine?
➢ Unilateral
Unilateral contracts exist when all the advantages seem to be attached to one of the parties and all of the disadvantages attached to another.
Example: Will. The donor only relieves him/herself of the assets (and gets nothing in return), while the donee, once the offer is accepted, only receives benefits.
And still not everyone agrees, there is a dispute on the point that the necessary acceptance of the will requires the meeting of minds. What is true is that there is a severance between the moment in which one mind drafts the offer and the other mind accepts it.
➢ Bilateral
A bilateral contract is one in which a promise is exchanged for a promise.
110
Other than multilateral and unilateral how can contracts be classified?
There are two main forms of contracts.
➢ Written Contracts
➢ Oral Contracts
Oral contracts are more difficult to prove and, in most jurisdictions (may differ across legal systems), the time to sue the contract is shorter - such as two years for oral compared to four years for written.
111
Why is contract law necessary?
* Paternalism: courts believe they know better what the terms should have been.
* to clarify when an agreement is considered a contract
* to interpret the meaning of words
* to clarify incompleteness of contract theory
112
What is the opposite of paternalism?
Freedom of contract
113
When is it good to allow paternalism?
- Under obvious duress ( you were forced into a contract)
- under not so obvious duress: Your 10 million € ship is caught in a storm. Fortunately, a tug comes by and offers to rescue you. The Tug captain (who knows what your ship is worth) proposes a fee of 9 M € but if you refuse, he will take you and the crew to safety and only the ship will sink. You accept to pay the 9 M € as a fee, but once you are at the harbor you refuse to pay because then the Court agrees and re-writes the contract at 1 M € fee.
- Abusive or Unconscionable clauses
114
When is an agreement considered a contract? What are the methods for determining this?
The Contract Law has been developed to help Judges decide whether a contract exists when one party claims that it does and the other claims that it doesn’t.
➢ Solution of formality
To avoid ambiguity one solution would be that all contracts be made to observe a specific form, which would be a signal that the parties had been signaled to and had understood that they were “being bound in contract”.
Example: All Contracts signed with red ink; such rules define the language of “actions”.
➢ Doctrine of Consideration
Only an agreement from which both parties gain something is a contract.
➢ Doctrine of Detrimental Reliance
When a promise was made and relying on the promise was reasonable or foreseeable.
115
How can judges deal with the ambiguity of law?
1) Literal/Textual Approach
2) Purposive/Teleological Approach: seeks the meaning behind legislation
116
Explain coercibility. What are the types of coercion?
Coercibility is the enforcement of the Law. If you don’t obey the law someone will make you obey– there is an implied threat and forced compliance.
In the aim of creating coercibility, the legal system may resort to:
1. Traditional Punishment: Impose a Negative Sanction
2. Premial sanctions: Impose a Positive Sanction, Awards
3. Court procedure: e.g. when a court orders someone to hold off on publishing a book until after a trial to determine if he is legally allowed to share the information in the book.
