All entries for Friday 07 May 2010

May 07, 2010

Why to study comparative law

As we have learned in the ICP Workshop, comparative law is the only true juridical science. Because instead of just noticing actual law as it is, by studying comparative law you understand that law is no absolute given fact that is to learn by heart.

It becomes very clear that law is relative. Law is made by human beings to satisfies the needs of society. It therefore varies from country to country and even from community to community (where there is an Selbstverwaltungsrecht der Gemeinden at least, coercively less in an État centraliste). There is no absolute law we should obey as the foundation of ultimate justice.

Looking at other countries law helps understanding other cultures. Comparative lawyers seek to understand the reasons for a certain legal system or a certain norm. When you are surprised about the apparent unfairness or exaggerated protective effect of a single norm you will find that this norm is perfect as it is when put into its contextual legal system. There is a harmony of norms inherent to each legal system.

Searching the reasons for the existence and the content of a norm is maybe the most important quality a lawyer should have. Because juridical skills like interpreting a norm and apply it in a dogmatically and logically correct sense and in the respect of fairness and justice are skills that derive from the ability to understand the background of a norm and what this norm is meant to effect.

With the skills of understanding the relationship between norm and objective, to critically wonder whether a norm fulfills the aim, you are competent to create law that is reasonable and understandable, because you thought a lot about terms and notions also.

Comparing your national legal system to the law of another country helps understanding your own legal system. When you place terms and instruments in the context of different regulations the differences between the instruments appear and therefore the characteristics proper to each instrument become evident. It is like a negative definition, a a contrario description. How describe black? It`s very dark. And it is the opposite of white.

And when you know black and white you can understand what grey is like. Or PECL or UNIDROIT, a mixture. You can then proceed to try to find common points and even harmonise different systems.

Although I have sometimes the impression that studying different legal systems at the same time lead to me not knowing any norm anymore due to confusion, I found it helpful to study parallely French and German law. Not only the law itself but also the method . The French have a very strict binary approach -based on the philosophy that everything in the world can be split into two, like ying and yang or male and female or good and bad- putting the answer to every problem into two parts. It seems strange at the beginning, but somehow it is just the same as the German "es kommt darauf an", the so typical answer of lawyers who then differentiate their answer. "ja, aber" or "nein, aber". There`s always a principle and always an exception. But often there is an exception of the exception and this fits not easily into a binary plan. Anyway, the combination of different methods has turned out to be very helpful. One can adapt the approach to the nature of the problem. And the most acceptable solutions, acceptable by all parties, are those based on compromises, on combinations of solutions.

Therefore it is worth getting a bit confused by doing comparative law. In the end there are moments when you notice that you have actually learned something. And I think the ICP Workshop was useful, because it brought together once the three different regulations about specific legal problems and clarified confusions.

Assessment VIII – Privity of Contract

The concept of privity of contract exists in the French, English and German legal system. But the extent of its application is different. This can be shown by comparing the quantity and nature of the exceptions to the principle of privity of contract. I would like to focus on three legal instruments being listed as exceptions to the principle of privity in England, that exist also in the other 2 countries but are classified differently. We will see why they are not exceptions in the strict sense of the principle that is : a contract can not impose obligations on a third party and a contract can not create a benefit for and be enforced by a third person.

Land law, agency and assignment are mentioned as some of the exceptions to the principle of privity in Common Law. In my opinion these instruments are no exceptions in a narrow sense.

Because the the effect of agency is that he contract is formed between the represented party and its co-contractor, and not between the agent and the co-contractor. For me, this problematic is more about the subject of formation of the contract and the question "who is party to the contract?" than about the effect of a formed contract.

As to assignment, there is usually a substitution of at least one of the parties. The contract itself stays bilateral between two parties, only the parties will be others. Only when ot the whole contract but one of the rights out of the contract is conferred I would eventually say that there is a trilateral situation presenting an exception to the principle of privity. Because two parties, say A and C, can  invoke one contract, the original one, say the one between A and B, in order to obtain performance of B. But still C needs t invoke in combination his or her contract of assignment with A. The original contract does not directly create a right for him or her. 

As to land law, the fact, that the rights third persons have concerning a territory can not be rescinded by a contract of the owner of the territory with his or her co-contractant, appears to be logical from the German and French pont of view. In France and Germany this question belongs to droit de biens or Sachenrecht, that English lawyers do not know. Due to the distinction droit de biens or Sachenrecht makes between usus, fructus and abusus, between pure property (nue-proprieté/Eigentum) and possession (Besitz) and exploitation. Une servitude (637-710 Code civil), administrative (there are for instance Baulasten in German Baurecht) or private, that exists as a right another person or the State has concerning a territory, sticks to the territory when it is, for example, sold. If third persons have the right of usus and fructus, then the Eigentümer can only transfer to a co-contractant the nackte Eigentumsrecht, without Besitzrecht und Ertragsrecht. I don`t see these land law rules as exceptions to the principle of privity. Because, having studied law in Germany and France first, it is dogmatically completely different from contract law (Vertragsrecht, droit des obligations). In German law concerning property and possession there is also the protection of possession (e.g. of the Mieter) by the Grundrechte. Because the Grundgesetz protects the privacy of the Mieter as if he or she were the owner. Also there is also the principle Eigentum verpflichtet playing a role it situations where the owner might be obliged to respect another party having usus, for example a poor citizen living in one of the owner`s houses. In my opinion in land law or in  a wider approach in droit de biens in general, existing rights, founded by contracts or by law, are more faits juridiques. For me they are not cases where a third party benefits from a contract formed between other parties or that an obligation is imposed upon a third. There is rather an existing right or an existing obligation that has to be respected by the contracting parties. So it`s more the application of the principle of privity of contract, because the contracting parties (e.g. owner and buyer of a house) can not by their contract oblige a third party to do something, for instance the tenant to leave his flat. And it is not an exception to  the principle.

Although for English lawyers, without distinction between law of obligations and law of things, land law might to be treated as an exception to the principle of privity of contract.

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