Introduction to Law Flashcards
Name the three branches of government and their tasks?
In most modern states, there is a seperation of power to avoid one person/group of persons of having too much power. The three branches of government are:
1. Legislative (making laws)
2. Executive (governing and enforcing laws)
3. Judicial (enforcing laws, legal rights and obligations objectively)
Name the five different types of courts
- Civil court (private person vs private person)
- Commercial courts (business disputes, business vs business)
- Administrative courts (entry to market, market governance)
- Constitutional courts (legal rights)
- Criminal courts (crimes being committed, what do we accept as society)
Name two reasons we need the law?
- In order to survive & grow, people need to trade
- In order to do business, people need trust, protection of their interests and reliance on the system
What are the four types of public law and their main themes?
- Constitutional law: organization of states
- Administrative law: relationship between states and legal subjects; functioning of the market
- Criminal law: safeguarding our society and its values
- Procedural law: organizing procedures before courts and tribunals
What are the four types of private law and their main themes?
- Law of obligations and contract law: organizing unilateral and/or multilateral obligations between legal subjects
- Property law: rules on ownership and possession (and security rights)
- Commercial law: relationship between 2 or more businesses
- Consumer law: relationship between business and consumer
What is party autonomy?
right to self-govern his own legal position within the limits of the law. Includes freedom of contract.
What are the three elements of freedom of contract?
- Freedom to enter into agreement
- Freedom to choose the contracting parties
- Freedom to determine the content of the agreement
Name the central idea both party autonomy and freedom of contract are based on?
Rely on Quid pro quo – idea of mutual gain. The contract, concluded by free individuals, creates prosperity for all, especially for the parties involved.
In which three situations does real freedom (freedom in practice) need to be protected?
- Duties to inform: material freedom of contract
- Right to withdrawal: material freedom of contract
- Substantive contractual justice
What is meant with the socialization of (contract) law?
Make someone behave in a way that is acceptable to society.
Name the four basic restrictions to party autonomy
- Rules of Public Order
- Rules regarding the validity of a contract
- The protection of fundamental rights of others
- The principle of non-discrimination
Name the 7 sources of commercial contract law?
- International conventions and model laws
- EU law
- Secondary EU-law: directives and regulations
- Domestic legislation
- Contract (express terms of the agreement, implied terms, principle of good faith)
- Uncodified customary law and trade practices
- Codified customary laws and trade practices
Name the four primary freedoms of European law
free movement of goods, persons, services and capital
Name the two elements of soft law?
- Voluntary codes of best / good practices / codes of conduct
- Transnational contract law
There is a hierarchy of norms in law. Name four hierarchical distinctions in these norms?
- Supranational law exceeds national law
- Law exceeds ministerial/royal decrees
- Codified law exceeds trade practices
- Specific rules exceed general rules
Name the multi-layered system caused by a hierarchy of norms in law?
Consumer (credit/sales) law on top
Commercial and contract law, and common rules on agreements below.
Name the two types of legal subjects?
- Natural persons
- Legal persons
What are natural persons?
legal subjects that are either:
- Acting for private purposes
- Acting for commercial purposes (business)
One-man business, craftmanship, liberal professions
What are the two types of legal persons?
- Without legal personality (partnerships)
No full separations of personal and business assets - With legal personality (companies)
Limited liability or not; we differentiate whether shareholder’s personal assets can be seized.
Name the two different views on who the consumer is?
- Consumer notion
- Consumer image
What is the consumer notion?
a natural person who is acting for purposes which are outside his trade, business, craft or profession
Name the two conditions of the consumer notion?
- Limited to natural persons
- Limited to a specific goal
What is the consumer image?
(Benchmark consumer)
What is the level of knowledge we can expect from a consumer?
An average consumer who is reasonably well-informed and reasonably observant and circumspect.
However, certain groups of consumers (children, elderly etc.) can be given special attention.
The weakest consumer can be protected, or judicial rulings are applied only to the ‘average consumer’
Has an evolutionary character
What are legal assets?
Goods and services legal subjects can have possession, control and/or ownership over
Name the two types of legal assets?
- Goods
- Tangible vs intangible
- Movable vs immovable
- Unascertained vs ascertained goods - Services
- Consultancy
- Commercial agency
- Obligation to build/construct a house
What was the consequence of the darbo-case for the view on consumer law and the consumer image?
There is an information-paradigm in consumer law. As long as the information is accurate and adequately mentioned, the consumer will make an informed decision.
What is the view and the consequence of the Teekanne-case on consumer law and the consumer image?
Same setting as Darbo-case, but it was ruled that consumers can be misled by imaging etc. and make uninformed decisions despite information being accurately and adequately mentioned. Shift away from the information-paradigm.
Name the two views on the Teekanne case?
- Court finally took into account behavioral law and economics and admitted cognitive biases etc. exist. The average consumer isn’t always rational
- Court didn’t take behavioral factors into account; the overall compilation of marketing elements misled the consumer. Even if information is accurate and clear, the rational consumer can be misled.
What is the difference between ascertained and unascertained goods?
Ascertained goods refer to goods that have been identified and agreed upon by both the buyer and the seller, while unascertained goods refer to goods that have not yet been identified or agreed upon.
