4. Sources of Private Law

Question 1

Discuss the sources of private law in both civil law and common law jurisdictions. How do they differ?

Answer 1

Civil Law:
- Primary source is codified law (ex: national civil codes, systematic collection)
- Civil codes are subject to constitutional principles and may undergo changes
- Customary law plays little to no role

Common Law:
- Heavy reliance on case law (legal principles developed by judges through decisions)
- Past judicial decisions have binding influence on future cases of similar nature (stare decisis)
- Statutes and written law still play a factor but have been historically less comprehensive and central (U.S Uniform Commercial Code [UCC])

Examples:
- German civil code -> civill law
- U.S judicial decisions -> common law

Question 2

Explain the concept of the unification of private law. Can you provide examples of jurisdictions where this has occurred?

Answer 2

Unification Concept:
- Attempt to unify various areas of private law (civil and commercial) into one
- Hopes to create simplicity and consistency for legal system

Example:
*- Italian Civil Code of 1942
*- Unified commercial and civil law into one, with countries across the world following suit
*- Swiss Obligationerecht (part of the civil code)
*- Provided framework for obligations without distinguish their civil or commercial nature

Common Law:
- Smaller degree of unification

Question 3

Discuss the role of legal scholarship in shaping private law. How does it function as a formant of law?

Answer 3

Civil Law:
- Scholars play big role in developing and interpreting the law
- Scholarly work such as doctrinal research, debates/conferences, and interpretations of legal texts, tends to have an influence in legislative reform and judicial decisions

Common Law:
- Scholars offer critiques and analyses of judicial decisions, shaping future rulings and understandings
- Help with comprehending the application of legal principles

Question 4

Contrast formalistic legal reasoning with realistic legal reasoning in the context of private law.

Answer 4

Formalistic reasoning:
- Strict application of rules
- Systematic and logical approach to how we follow the rules
- More common in civil law systems, codified laws provide clear guides on behavior

Realistic reasoning:
- Considering the context and practical effects of legal decisions
- More common in common law systems, judges consider the social, economic, and moral effects of their decisions
- Greater flexibility and adaptation to changes in society

Question 5

Fairchild v Glenhaven (2002)

Answer 5

Facts:
- Three people developed lung cancer due to being exposed to asbestos during their employment by different employers
- Asbestos exposure, even once, can insert fibers into the lungs that can develop into cancer
- Severity of the cancer is not impacted by length of exposure
- Court had to determine which employer was most liable for the asbestos exposure

Decision & Rationale:
- Liability could not be established and High Court ruled in favor of defendants
- “But for” test used (but for the existence of X, would Y have happened?)
- House of Lords used different test as denying liability due to the failure of the “but for” test was deemed unjust
- New test: did employers materially increase the risk to exposure through their actions?
- Defendants jointly liable with this test

Question 6

Barker v Corus (2006)

Answer 6

Difference
- Parties who contributed to the risk were held severely but not jointly liable
- Each tortfeasor is liable to compensate for the loss only to the extent that each was responsible for the cause

Statutory Law to the Rescue:
- Compensation Act of 2006, Section 3, was made to overturn this ruling
- Sued tortfeasor has the right to seek help in compensating the defendant from all other tortfeasors proportionate to the risk they created in their working environments
- Only for cases of mesothelioma