Introduction to Law

Question 1

Name the three branches of government and their tasks?

Answer 1

In most modern states, there is a seperation of power to avoid one person/group of persons of having too much power. The three branches of government are:
1. Legislative (making laws)
2. Executive (governing and enforcing laws)
3. Judicial (enforcing laws, legal rights and obligations objectively)

Question 2

Name the five different types of courts

Answer 2

1. Civil court (private person vs private person)
2. Commercial courts (business disputes, business vs business)
3. Administrative courts (entry to market, market governance)
4. Constitutional courts (legal rights)
5. Criminal courts (crimes being committed, what do we accept as society)

Question 3

Name two reasons we need the law?

Answer 3

1. In order to survive & grow, people need to trade
2. In order to do business, people need trust, protection of their interests and reliance on the system

Question 4

What are the four types of public law and their main themes?

Answer 4

• Constitutional law: organization of states
• Administrative law: relationship between states and legal subjects; functioning of the market
• Criminal law: safeguarding our society and its values
• Procedural law: organizing procedures before courts and tribunals

Question 5

What are the four types of private law and their main themes?

Answer 5

• Law of obligations and contract law: organizing unilateral and/or multilateral obligations between legal subjects
• Property law: rules on ownership and possession (and security rights)
• Commercial law: relationship between 2 or more businesses
• Consumer law: relationship between business and consumer

Question 6

What is party autonomy?

Answer 6

right to self-govern his own legal position within the limits of the law. Includes freedom of contract.

Question 7

What are the three elements of freedom of contract?

Answer 7

1. Freedom to enter into agreement
2. Freedom to choose the contracting parties
3. Freedom to determine the content of the agreement

Question 8

Name the central idea both party autonomy and freedom of contract are based on?

Answer 8

Rely on Quid pro quo – idea of mutual gain. The contract, concluded by free individuals, creates prosperity for all, especially for the parties involved.

Question 9

In which three situations does real freedom (freedom in practice) need to be protected?

Answer 9

1. Duties to inform: material freedom of contract
2. Right to withdrawal: material freedom of contract
3. Substantive contractual justice

Question 10

What is meant with the socialization of (contract) law?

Answer 10

Make someone behave in a way that is acceptable to society.

Question 11

Name the four basic restrictions to party autonomy

Answer 11

1. Rules of Public Order
2. Rules regarding the validity of a contract
3. The protection of fundamental rights of others
4. The principle of non-discrimination

Question 12

Name the 7 sources of commercial contract law?

Answer 12

• International conventions and model laws
• EU law
• Secondary EU-law: directives and regulations
• Domestic legislation
• Contract (express terms of the agreement, implied terms, principle of good faith)
• Uncodified customary law and trade practices
• Codified customary laws and trade practices

Question 13

Name the four primary freedoms of European law

Answer 13

free movement of goods, persons, services and capital

Question 14

Name the two elements of soft law?

Answer 14

• Voluntary codes of best / good practices / codes of conduct
• Transnational contract law

Question 15

There is a hierarchy of norms in law. Name four hierarchical distinctions in these norms?

Answer 15

1. Supranational law exceeds national law
2. Law exceeds ministerial/royal decrees
3. Codified law exceeds trade practices
4. Specific rules exceed general rules

Question 16

Name the multi-layered system caused by a hierarchy of norms in law?

Answer 16

Consumer (credit/sales) law on top
Commercial and contract law, and common rules on agreements below.

Question 17

Name the two types of legal subjects?

Answer 17

1. Natural persons
2. Legal persons

Question 18

What are natural persons?

Answer 18

legal subjects that are either:
- Acting for private purposes
- Acting for commercial purposes (business)
One-man business, craftmanship, liberal professions

Question 19

What are the two types of legal persons?

Answer 19

• Without legal personality (partnerships)
  No full separations of personal and business assets
• With legal personality (companies)
   Limited liability or not; we differentiate whether shareholder’s personal assets can be seized.

Question 20

Name the two different views on who the consumer is?

Answer 20

1. Consumer notion
2. Consumer image

Question 21

What is the consumer notion?

Answer 21

a natural person who is acting for purposes which are outside his trade, business, craft or profession

Question 22

Name the two conditions of the consumer notion?

Answer 22

1. Limited to natural persons
2. Limited to a specific goal

Question 23

What is the consumer image?

Answer 23

(Benchmark consumer)
What is the level of knowledge we can expect from a consumer?
 An average consumer who is reasonably well-informed and reasonably observant and circumspect.
However, certain groups of consumers (children, elderly etc.) can be given special attention.

The weakest consumer can be protected, or judicial rulings are applied only to the ‘average consumer’

Has an evolutionary character

Question 24

What are legal assets?

Answer 24

Goods and services legal subjects can have possession, control and/or ownership over

Question 25

Name the two types of legal assets?

Answer 25

1. Goods - Tangible vs intangible - Movable vs immovable - Unascertained vs ascertained goods 2. Services - Consultancy - Commercial agency - Obligation to build/construct a house

Question 26

What was the consequence of the darbo-case for the view on consumer law and the consumer image?

Answer 26

There is an information-paradigm in consumer law. As long as the information is accurate and adequately mentioned, the consumer will make an informed decision.

Question 27

What is the view and the consequence of the Teekanne-case on consumer law and the consumer image?

Answer 27

Same setting as Darbo-case, but it was ruled that consumers can be misled by imaging etc. and make uninformed decisions despite information being accurately and adequately mentioned. Shift away from the information-paradigm.

Question 28

Name the two views on the Teekanne case?

Answer 28

1. Court finally took into account behavioral law and economics and admitted cognitive biases etc. exist. The average consumer isn’t always rational 2. Court didn’t take behavioral factors into account; the overall compilation of marketing elements misled the consumer. Even if information is accurate and clear, the rational consumer can be misled.

Question 29

What is the difference between ascertained and unascertained goods?

Answer 29

Ascertained goods refer to goods that have been identified and agreed upon by both the buyer and the seller, while unascertained goods refer to goods that have not yet been identified or agreed upon.