civil law

Question 1

civil law originates out of?

Answer 1

Roman law

Question 2

where were the 12 tables located

Answer 2

central rome

Question 3

why were the 12 tables established

Answer 3

the plebeians thought the patricians were lording over them so by recording the laws in public the idea was the patrician magistrates would make more consistent judgments

Question 4

what did the 12 tables say about ownership in the roman republic

Answer 4

“By the law of the Romans, this man is mine according to his condition and as I have spoken, you see, I lay my claim upon him”

Question 5

the word ‘claim’ in the 12 tables could also be translated to ? which symbolises?

Answer 5

staff, using staff rather than spear indicated this disputes should be settled peacefully rather than by force

Question 6

describe the praetors edict

Answer 6

the praetor used to tell the junior judges what law to apply in cases on an ad hoc basis. he decided to make general rules that cover more areas so he doesn’t always have to submit ad hoc rules. the collection of directions, the edict, was applicable in a number of cases. at first it was updated every few years, but it eventually became a fixed set of rules in 129 CE

Question 7

what did the praetors edict add to the ideas about ownership in the empire

Answer 7

same ideas but emphasises judgment should be for restoration of the things wrongfully taken away but if this doesn’t happen there should be damages

Question 8

what categories were used in institutes by gaius

Answer 8

things, persons and actions

Question 9

did the institutes of gaius have the force of law? why/why not

Answer 9

no, it was scholarly writing only

Question 10

what things were a part of justinians code

Answer 10

codex (all the laws), digest (academic writing on what the law was), institutiones (student textbook that explained what the law was to students)

Question 11

why did europe accept the civil law after the roman empire

Answer 11

there was a lack of stability throughout europe so they looked to what the roman law said as it was the only strong and stable source. eventually the states became stable enough to codify by enacting their own statutes that gave their writings the force of law

Question 12

who were the main players in ownership in contintental european law and what did they do

Answer 12

bartolus - looked at what roman law said about ownership in the 12 tables, justinian code, praetorian edict and what the courts had said and how they decided cases

napoleon - promulgated the code napoleon by looking at the writing of european jurors from the middle ages who got their ideas by looking at the roman law sources

Question 13

what is the order of things that developed the civil law

Answer 13

twelve tables (roman empire), praetors edict, institutes by gaius, justinian code (byzantine empire), code napoleon

Question 14

describe the case: victoria park racing and recreation grounds company ltd v taylor 1937 - common law case

Answer 14

Taylor owned property adjacent to the racecourse in Sydney, and rented out a spot in his back yard for journalists to watch the horse races and broadcast the results. This meant people could get the results without having to pay an entrance fee to the park. This was a problem for the owners of the racetrack as they were experiencing a loss of income. They sued Taylor. The plaintiff (racecourse) argued that by the expenditure of money the plaintiff has created a spectacle and that it therefore has what is described as a quasi-property in the spectacle which the law will protect. The starting point for the Australian High Court was to look for any cases that would give Victoria Park Racing and Recreation Grounds Company Ltd that kind of right, that they could then extend and apply to this case. The majority rejected the plaintiff as there were no cases that would give the raceway this right.

Question 15

describe the french hotel case - civil law case 1

Answer 15

A hotel in France was a historical landmark of the newly liberated France. Someone decided to take picture of the hotel, and included the picture on postcards and other items to sell. The owner of the house sued, saying that the photographer was getting commercial benefit from their property. These pictures were taken from somewhere outside of the property itself. The plaintiff lost in the first court, but appealed to the highest court in France that they should be entitled to commercial benefits as it is a picture of something on their land. Article 544 of the French Civil Code was the starting point. This states (Code Napoleon):

“Ownership is the right to enjoy and dispose of things in the most absolute manner, provided one does not do so in a manner prohibited by the laws or regulations.”

In considering that only the owner has a right to exploit the good in whatever form and given the exploitation of a thing by way of photography violates the right of enjoyment held by the owner, the appeal judgment held in favour of the appellant, saying the court of appeal misunderstood art. 544.

The French Court’s decision was very short, as is a trait common to many civil law countries. However, not all are like this and some are more akin to common law length judgments.

In the Australian High Court case, there was no precedent and so the racecourses case failed. However in France, they looked at how to interpret the principle of ownership, and on that basis, their claim succeeded.

Question 16

describe the german prussian palace case - civil law case 2

Answer 16

Anybody is free to enter the grounds of the Prussian palace at certain times during the day. Pictures are allowed, but for commercial purposes, an agreement is needed from the Prussian cultural heritage foundation. Someone took a picture of the palace and published it in a commercial book about palaces in Germany, so the Prussian cultural heritage foundation sued. Articles 903 and 90 of the German Civil Code were the starting point. Article 903 states:

“The owner may, to the extent that a statute or third part rights do not conflict with this, deal with the thing at their discretion and exclude others from every influence.”

Article 90 states:

“Only corporeal objects are things ….**”

The question was, if the person took the photo for commercial gain, do they later have the right to do anything about that. The German Supreme Court found:

“It is the common position that not only is it an incident of (land) ownership to defend against any interference with the integrity of the thing but also to retain discretion about who may or may not have access to the property. It is, however - and this is an aspect overlooked by many [academic] critics - consequently also an incident of land ownership that the owner of the land can decide who shall retain the economic benefits that result from accessing or using the land.”

By looking at art. 903 and interpreting the principle as the starting point, the German court found for the plaintiff. They seemed to come to the idea that physical access to the property was needed to apply the principle in this way and the accused had taken the photo on the property. This shows the French court above interpreted these similar codes differently, as not even property access was required in that case where the photo was taken from near the property itself. This means though the codes seem to read the same, the interpretation of the two courts was different.

Question 17

compare the two methods of decision making - common vs civil

Answer 17

civil - start with a broad principles, look at what it means and then apply it to the case at hand

common - look at cases, see if they are comparable and apply to the current case

Question 18

describe the railway company case (where a civil law jurisdictions (quebec) case had its final appeal in the PC which is common)

Answer 18

Storms in this area in Quebec were reasonably rare but predictable; the type of thing that would happen every few years. The railway company put up power lines in the area, which were torn down by the storm and created a fire. This fire caused damaged to the plaintiff’s property. At the time, the Supreme Court of Canada appealed to the Privy Council, who had to make their decision under the laws of Quebec.

Firstly, the Privy Council looked at article 1054 of the Civil Code of Lower Canada. Technically, the railway company didn’t necessarily do anything wrong themselves as they didn’t take the power cords down. The question was, did art. 1054 establish a liability without a requirement of fault?

The Privy Council looked at the state of decision making up to this point and found it was unjust to hold a man liable for either delict or quasi-delict (tort) without fault. If the council required some form of fault for the railway company to be liable, the claimant would need to establish an argument for strict liability in order to succeed. The Privy Council looked at the strict liability argument and interpreted the code like a statute as a matter of language. This was showing how they treated the code like a regular statute due to being common law judges. They decided that article 1054 doesn’t carry on 1053, and that paragraph 6 of article 1054, the exculpatory paragraph (evidence in favour of the defendant), applies to the first paragraph and all the others and implies that faute must be proved by the plaintiff.

The claimant tried to make the argument that the code embodies a principle. They said the council can’t just look at the wording of the code like a statute because the code embodies a principle, especially in the French code. They directed the Privy Council to look at decisions of the French court as they ought to be applied since the Civil Code of Lower Canada is founded on the Code Napoleon of France.

Eventually the councils decision was made because they said the statutory character of the Civil Code of Lower Canada must always be borne in mind and although suggestive the reasoning of the French courts, jurists and texts are not binding. In the end, they held that article 1054 raises the presumption of faute.

This decision used a lot of common law practises and ideas, from interpreting the code like statutory interpretation to finding the French decisions to be not binding since they are from a different jurisdiction. They did look at the code, but in the way they would interpret a statute rather than applying the principle.

This judgment was not well received in Quebec because treating the code as a statute didn’t give it appropriate respect as a principle, and has since been overruled.

Question 19

what does the Prussian code say about the role of civil law judges

Answer 19

Section 46:
“When deciding disputes, the judge may give no other meaning to the statutes as that which is apparent from their words and context as applied to the facts at hand”

Section 47:
“Where a judge is uncertain about the true meaning of the statute, he must refer the question, without naming to the parties, to the statutory commission and wait for their judgment”

Section 48:
“The requesting judge is obligated to follow the decision of the law commission in his judgment; the parties are free to appeal as usual”

Section 49:
“Where there is no applicable statute, the judge must decide according to the general principles contained in the statute book and on the basis of similar cases, according to his best abilities”

Question 20

what does the civil code des francais say about the role of a civil law judge

Answer 20

article 4:
“A judge who refuses to give judgment on the pretext of legislation being silent, obscure or insufficient, may be prosecuted for being guilty of a denial of justice”

Question 21

describe the case: canadian pacific railway v robinson

Answer 21

A train derailed in Quebec causing someone’s death. Their next of kin (wife) sued for damages. In the English statute Lord Campbell’s Act, on which article 1056 of the Civil Code of Lower Canada was based, the granting of such quantum of solace (for emotional damage done to a next of kin) was excluded. The question in this case was whether these damages for the next of kin would include a quantum of solace (immaterial damages for bereavement).

The Supreme Court of Canada held that there was no difference between the Quebec law and the English law. They said the statute had to be interpreted the same in England, Canada and Quebec. This shows that the Supreme Court of Canada, as a common law court, doesn’t concern itself much with the principles and rather focuses on the construction of the statute and the unity of the law.

The Supreme Court of Canada’s decision was not binding for the courts in Quebec. They said that the next of kin could always bring a claim for damages, though there were restrictions on this. They said quantum of solace claims do exist in Quebec law and that the Supreme Court of Canada interpreted the Fatal Accidents Act (article 1056) and looked at what the extent of damages was. In Quebec, they apply the civil law as it exists. The decision would not have any bearing on what the existing general principles are because quantum of solace should exist and Quebec is not bound by the decision made on false interpretation of the principles as a statute. Quebec can rely on principles as they are in the code.

In this case, stare decisis does not need to be followed and is not very strong.

Question 22

although the higher courts do not have binding authority over the lower ones, there are logical reasons why the apex courts still have a powerful role. why is this

Answer 22

it is much easier to get your case to the supreme courts and the cost of litigation is much cheaper so this is achievable

Question 23

in germany, any wrong decision is ?

Answer 23

a matter of public importance. doesnt have to be of great public importance to get to the supreme court like here

Question 24

describe the case: architect’s drawings

Answer 24

The problem was whether the drawings were to be counted as a service or something constructed. Consistent supreme court case law was that it was the making of something. The court of appeal found they disagreed with the supreme court, which they can do because are not bound by what the supreme court says. They party who lost appealed to the supreme court because of the inconsistency, but in the end the supreme court agreed with the court of appeal and changed their mind to the drawings being a service after looking at it again. This shows that if a lower court comes up with a better reasoning then the supreme court is willing to accept this.

Question 25

describe the case: erectile dysfunction photo ad case

Answer 25

The photo was taken at a show jumping competition and used in an ad for a miracle remedy for erectile dysfunction without permission. The jockey was not happy and sued. Under section 847 of the German Civil Code:

“a claimant who suffers injury to their body or their health as well a claimant who is deprived of their liberty can claim a just and equitable compensation for their non-economic damage”

The question was whether the plaintiff had a right of action. The ridicule of the photo was not an economic damage, but the court said they were not looking at economic loss but rather his satisfaction due to his non-material disparagement. The German legal system protects health and liberty so they can go beyond what this civil code says to include personality. They found the picture violated his personality.

This case shows that there is a role for judge made law where the civil code is incomplete. This improves judicial passiveness.