5. Rights and duties Flashcards
Concept of legal relations
- The link between any position of “can do” and a matching position of “shall, shall not do”
- A credit is a juridical position of “can do”, which entitles its holder to claim a performance by someone else
- This very “someone else” holds a correlative position of “shall do”, obliging her/him to render a performance in the interest of the creditor
Define obligation
one of the main legal relations, which ties together the holder of a credit (the creditor) and that of a debt (the debtor)
Categories of rights
rights may be either patrimonial, or non-patrimonial, depending on whether or not the utility, in which the rightholder is vested, may be exchanged
for money
Disposable rights
Non-disposable rights
Disposable rights
can be haggled over and bargained about
e.g. ownership of goods
Non-disposable rights
are protected through an inalienability rule
e.g. human rights or personality rights
Case: Dwarf tossing
an activity in which dwarfism-affected persons wearing special padded clothing are thrown onto mattresses or at Velcro-coated walls. Participants compete to throw the dwarf the farthest
Question:
- Are dwarfism-affected persons disposing of their absolute (non- patrimonial) right to dignity?
- Should they be entitled to excercise their private autonomy in this way?
Relative rights
the claim of the holder may be raised solely towards one or many a single legal subject (rights in personam)
Absolute rights
the claim of the holder may be raised erga omnes, i.e. towards any other legal subject (rights in rem)
Absolute rights (in rem)
A right in rem entitles its holder to a claim towards anyone interfering with the possession over the good vested to her or him
Rights in rem are essentially relations between the right holder and the object of the right, but they may also be understood as based on legal relations: rights in rem as rights are valid erga omnes (against the world) as they can be invoked against potentially anyone
Relevant patrimonial rights in rem are:
- Property (intangibles) (e.g. ownership, Eigentum, proprietà)
- Intellectual property (e.g. copyright)
- Industrial property (e.g. patent, trademark)
Relevant non-patrimonial rights in rem:
- Rights of personality (droits de la personalité, Persönlichkeitsrechte, diritti della personalità), which are encompassed in the broader genre of human rights (e.g. privacy, image, likeness, name)
=> absolute rights branch into personality rights (non-patrimonial) and property rights (patrimonial)
Define statutes of limitations
Extinction of rights due to the lapse of a certain time determined by the law (prescription)
Rationale (reasons) for statutes of limitation
- Facilitating resolution within a fixed length of time (which varies from legislation to legislation)
- Certainty in legal relationships
- Difficulties involved in the proof of facts
- Protecting the debtor’s confidence
When does statute of limitation cannot be applied?
- Ownership
- Non-disposable rights
Tolling provisions of statutes of limitations
The statute of limitations is tolled when the running of time period is suspended by the law until some event takes place (e.g., if it is a minor who has to bring suit, the time limit is generally tolled till she/he reaches the age of majority)
Define statutes of repose
Also known as nonclaim statutes
Statutes of repose bar actions from being commenced after a certain number of years
Rationale for statutes of repose
- Immunizing the alleged wrongdoer from long-term liability
- product liability: statutes of repose bar action of compensation from being commenced after a certain number of years from the date of the initial delivery of the product
- administration of decedents’ estates: the claims by creditors of the estate must be submitted within the prescribed period of time, otherwise they are barred by statutes of repose
- Note: has no tolling provisions
