Chapter 2: The Enforcement of Legal Rules

Question 1

Deductive structure of legal provisions

Answer 1

Legal provisions follow a deductive structure whereby, for a given “base-situation” (if) a legal effect is applied (then).

Question 2

Complex-base situations (definition)

Answer 2

Complex-base situations are those with several distinct factual elements, multiple articles to be applied (articles = statutory provisions).

Question 3

Role of the court (hint: interpretation)

Answer 3

Courts must interpret the meaning of legal rules as well as the material facts provided.

Question 4

Why is the Civil Code divided into books?

Answer 4

The Civil Code is divided into books, to make statutory provisions easily trackable.

Question 5

A interpretation of a word can be according to the X, X or X sense (hint: legal).

Answer 5

The meaning of words depends on their literal, legal and evolutive interpretations. Courts must apply the most relevant according to the context.

Question 6

Interpretation of words must follow three criteria for coherence.

Answer 6

Interpretation of a word must be applied to the context (theological), must make sense with each other (systematic) and with the literal meaning (literal).

Question 7

Differentiate between extensive and restrictive interpretations

Answer 7

One interprets the broader sense than the literal term, the other a narrower sense.

Question 8

Recourse to analogy (hint: gap and AIM)

Answer 8

If no law exists, we find a similar situation by analogy.

o There must be a gap in the legal system (no law exists for specific base-situation).
o The most important thing is the law applied depends on the AIM of the provision. For example, if the aim of a law is to compensate a hotel guest for loss, it cannot be applied to camping sited. If the aim was to make the guest feel safe, then it does apply.

Question 9

Extensive interpretation vs. Analogy

Answer 9

Extensive interpretation can only be applied where a case falls under one provision to be interpreted extensively, it must “subsume” the case. For example, an ostrich cannot be “subsumed” as a quadruped and so this law is applied by analogy, not extensive interpretation.

Question 10

Cases where analogy cannot be applied

Answer 10

Analogy cannot be applied to criminal provisions (nulla poena sine lege) or extraordinary provisions (where the law goes against general principles).

Question 11

General principles (definition)

Answer 11

General principles guide courts decisions e.g. the principle of good faith or due diligence or promote easy circulation of wealth (always!!)