Business Law Flashcards
What is good and bad law?
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.
Jus
Law
Corpus Juris
Body of law
Ubi societas ibi jus
Where there is society, there is law.
Habeas Corpus
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.
Ab origine or Ab initio
From the origin or the beginning.
Abundantia Cordis
With magnificence of heart, with abundance of sincerity and frankness.
De lege ferenda
The abstract solution or the law as one believes it should be, if they were in charge.
In claris non fit interpretatio
When the meaning of the law is clear, no interpretation is needed.
Erga omnes
A legal obligation that everyone must respect, such as the ownership relationship between a person and their possessions.
What are the two disparate factions in defining law?
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).
How is law different from social and market rules?
Even though Law may include some social and market rules, it is broader than that.
Explain the genesis of law
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
What was the code of Hamurabi?
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).
What is custom?
Custom is the unwritten rule that all who know it feel that it is mandatory. It cannot reach beyond a small group.
What is he principle of publicity?
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.
Functions of law - What are laws for?
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.”.
What are judges?
Judges: officers appointed or elected to implement the law
What are lawyers?
Lawyers: are not state officials, they owe a strong duty to their clients. Their duty is to utilize the law, not to dispense justice.
What are the distinctive features of the Western Legal Tradition?
- 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
What is the rule of law?
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.
How did Albert Dicey define the rule of law in 1885?
- 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.
What is common vs civil law?
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.”
What are some other types of legal traditions?
Religious law, customary law, mixed legal systems, Chinese law
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.
What are the sources of law?
- Legislation
- Common sense and moral values
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.
What are the 2 pillars that courts mostly deal with?
- FACTS - the establishment of the Facts of the case: what actually took place, at what time, who was involved…
- 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.
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
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.
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.
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.
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.
Where are the ECJ and ECHR located?
Luxembourg and Strasbourg respectively.
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
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
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
When does one acquire legal capacity in Portugal?
At birth with life and loose it upon death.
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).
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.
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
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
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
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.
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.
What are the intrinsic elements of collective entities?
Substrate, formal organisation, legal personality
