Contracts and obligations law Flashcards
Type of rules: physical rules
describe a phenomenon, can be verified (right/wrong).
Type of rules: behavioural rules
prescribe a behaviour, cannot say if they are right/wrong. relative to a particular time and place in history.
legal rules
behaviour rule and produced by a source of law. If A then B, A is the model situation B is the effect
source of law
any act or fact fit to produce legal rules pursuant to the legal system
directives
it is mandatory for each member state to achieve the specified result. However, the directive doesn’t dictate exactly how each country should do it; instead, it allows each country to decide on its own methods and forms to fulfill the directive.
domestic regulations
instruments for the implementation of statuses
antinomy
a situation where two conflicting rules are defined
vertical antinomy
among sources of a different rank (hierarchy)
horizontal antinomy
among sources of the same rank (chronology)
model situation
a hypothetical situation
Universal model fact
you can apply a model situation to anyone
Abstract model fact
you can apply a model fact to any case
effects
are the legal consequences that a rule attaches to a model situation
servitude
a burden imposed on a field for utility of another field belonging to a different owner (slavery)
teleological interpretation
the aim of the rule (why was the rule adapted, what is the goal?)
gaps
if a case can’t be attached to a model situation
cardinal principles
jugdes can’t deny to solve a case
analogy
judges have to look for similar cases
legal fact
any fact fit to produce legal effects, a legal fact is any fact provided for by a legal rule.
natural legal facts
earthquake, flood, birth, death
human legal facts
legal acts (the will is relevant for the statute, sale of goods, marriage, tort, default)
negoti
sales of goods, marriage, last will (these acts produce not only effects provided for in provisions, but also effects set out by who carries out these acts)
People
are the subjects of law in our legal system
legal capacity
to be able to be a right holder, it is acquired at birth
Capacity to act, majority
fixed at 18 years old, you are able to carry out acts
incapacity to act
- minors who are less than 18 years old
- juridical interdiction: mental illness
- legal interdiction: sentenced to five or more years in prison
guardian to carry out acts in the name and on behalf of the incapable person
natural incapacity
a person wo. was proved to be incapable of understanding at the time acts were performed
examples:
1. mental illness but not prohibited (lasting reason)
2. occasionally uses alcohol or drugs (transient reason, temporary short term)
legal enitities
recognised by a public authority (registered associations and foundations)
association (people)
private non profit organisation group of people who get together in order to pursue a legal purpose through a common asset
foundation (assets)
private non profit organisation. assets are dedicated to a purpose established by the founder (assets, purpose, founders, organisation)
not recognised entities
The assets of the unregistered association can be used to pay creditors. If the assets of the unregistered association are not sufficient, people who have acted in the name of, and on behalf of the association, are personally and jointly liable with their own assets.
obligation
relationship between debtor and creditor
debtor carries out certain performance towards creditor
creditor needs the debtor to achieve goal
effect of the due performance
obligation is satisfied and is no longer in effect
patrimonial nature of performance
performance must be capable of economic evaluation and correspond to an interest of the creditor
capable of economic evaluation
capable of being transformed into money
who has to perform?
debtor and third person
civil obligation
obligation has a juridical nature
contract liability
debtor who does not render due performance is liable for damages, with their present and future assets
enforcement proceedings
legal actions to make sure that what a court decided actually happens
natural obligations and three conditions
moral or social duties to perform conditions:
- spontanity of performance
- capacity of performer
- moral/social duty to perform
