3. Private and public law

Question 1

What is private law?

Answer 1

Private law deals with the mutual relations between citizens; it is divided into:

• Civil law, applicable to the generality of legal subjects (e.g. contract law, tort law, property law, family law, inheritance law)
• Commercial law, specifically applicable to enterprises (e.g. companies, fair competition, industrial and intellectual property).

Question 2

Important remark about state and private law

Answer 2

If the state acts not for the sake of its own authoritative power, but like any other legal subject, private law is perfectly applicable to its legal relations: the state is said to act iure privatorum

Question 3

Define legal transactions

Answer 3

• are concluded through a declaration of will (be it through language, or by conduct), which is intended to perform a change in rights and duties of who is acting (the party)
• legal transactions -> priv. autonomy
• Any legal subject is given the power to produce a legal effect on her/his own patrimony or personality, to the extent to which the law does not pose any mandatory prohibition on doing so

Question 4

Types of legal transactions

Answer 4

• unilateral: mostly produce their own legal effects when they come into someone else’s knowledge. e.g. wills
• bilateral: Along some jurisdictions, mutual will suffices to conclude a contract of sale, along others it is moreover required delivery. e.g. sales contracts
• multilateral. e.g. companies

Question 5

2 types of content of legal transactions

Answer 5

• Patrimonial: The party’s or the parties’ will pursues an interest which can be economically assessed
• Non-patrimonial: The party’s or the parties’ will pursues an interest which cannot be economically assessed. e.g. marriage, It has also a patrimonial content, but it is very limited and does not properly characterize it

Question 6

What is public law?

Answer 6

• Administrative law pertains to the executory, and it covers the many interactions between the government agents and civilians;
• Criminal law deals with the prosecution of crimes or criminal offences: unlawful acts which are punished by the state because of their harmfulness towards individuals or the community;
• Constitutional law lays the state’s foundations, both concerning protection of citizens’ fundamental rights and liberties, and the structural and functional organization of its powers;
• Procedural law regulates the proceedings for the judicial application of private law, criminal law and administrative law;
• Tax law regulates taxation.

Question 7

2 types of norms

Answer 7

• Mandatory norms are those which may not be set aside through an agreement between their addressees; most public law consists of mandatory norms as the paramount of public law is the supremacy of public interest towards individual interests.
• Default norms, which may be set aside through an agreement between addressees, represent nearly the entire private law. A major role is then played by default norms which supplement agreements concluded by the parties. (rule of law that can be overridden by a contract)