Legal Traditions Introduction to European Private Law Tutorials Tutors Mr Nathan Cambien amp Mr Stuart MacLennan October 2014 This document has been produced with the financial assistance of the European Union The contents of this document are the sole responsibility of ID: 530257
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Slide1
CESL Master in European and International Law (MEIL)
Legal
Traditions
Introduction
to European Private Law
TutorialsTutors: Mr. Nathan Cambien & Mr. Stuart MacLennanOctober 2014
This document has been produced with the
financial assistance of the European Union. The contents of this document are the sole responsibility of Prof.
Ignacio
Tirado
, Nathan Cambien and Stuart MacLennan
and
can under no circumstances be regarded as reflecting the position of the European Union.Slide2
Private
law vs. Public law
Private law
UnclearPublic law
ContractAntitrust lawAdministrative law
Tort/DelictPrivate ILTax lawRestitutionEU lawConstitutional lawFamily lawInsolvency lawPublic ILLabour lawCriminal law………Slide3
Legal
Families
Common Law
Civil Law
Hybrid
FiqhSource: WikipediaSlide4
Carlill v
Carbolic Smoke
Ball Company
[1892] EWCA Civ 1Slide5
Carlill v
Carbolic Smoke
Ball Company
[1892] EWCA Civ 1
“£100[1] reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic influenza colds, or any disease caused by taking cold, after having used the ball three times daily for two weeks, according to the printed directions supplied with each ball.
£1000 is deposited with the Alliance Bank, Regent Street, showing our sincerity in the matter.”Slide6
Leonard v. Pepsi Co.
88 F. Supp
. 2d 116, (S.D.N.Y. 1999), aff'd 210 F.3d 88 (2d Cir. 2000)Slide7
Donoghue v Stevenson
[1932] UKHL 100Slide8
CONTRACT LAW: ONE DIFFICULT CASEJohn Q. is a director of a petrol company (A). Mary J. is
the director of a
company (B) that
Treats
petrol for
benzine uses. John Q and Mary J sign a contract whereby A assumes the delivery of petrol in the Valencia harbour
on a certain date. Before the date, war breaks out in a petrol exporter country of
the
Middle
East, and A
cannot
fulfill
the
contract
.
That
makes
B lose
some
good
business
opportunities
. Mary J decides
to
sue
A in
the
name
of
her
company
,
claiming
the
damages
caused
by
non
compliance
.
The
contract
does
not
include
consideration
of the outbreak of war in a third country as one of the risks asociated to
The
Contract.
HOW WOULD YOU SOLVE THE CASE?
HOW WOULD THE JUDGE SOLVE THE CASE? Slide9
THE PETROL CASEThe Judge can adopt 2 different perspectives:A)
the perspective
of that who
solves a conflict
B) the
perspective of that who creates a rule in lawTraditional continental law: A) …a retrospective approach: he analyses
facts that have already ocurred (ex post)the transaction seen as a zero-sum game
Judge
distributes
loss
and
gains
They
might
feel
compelled
to
judge
in
equity
and
redistribute
among
the parties in the contract: the party with higher needs or with higher meritsSlide10
THE PETROL CASE(…) most likely: rule in favour of petrol company (
it has already
been damaged
enough
by the
war…-case law with consumers: banks, insurance companies-)Common Law (and possibly civil
law…): an ex ante approach, whereby the judge will try to find a rule
that
solves
not
only
this
specific
case,
but
any
other
case of similar
facts
(
normative
function
of case
law
) What would be the reasonable rule for this facts before the ocurred?How would 2 reasonable parties,
with
all
the info in hand, have decided to distribute the risk of a war outbreak? (…)Slide11
THE PETROL CASE(…) He will consider the transaction as a positive-sum game, where the needs and merits of the parties are irrelevant: he’ll be deciding with a prospective idea of maximising social value; that means making a judgement based on EFFICIENCY: [EASTERBROOK: “Judges should be aware that their decisions create incentives influencing conduct ex ante, and that attempts to divide the stakes fairly ex post will alter or reverse signals that are desirable from an ex ante perspective
”]
Slide12
THE PETROL CASEWhat’s the efficient solution?-The result will be close to the solution the parties would have reached if confronted with the situation ex ante -DEMSETZ: “If Courts are to ignore wealth, religion, or family in deciding such conflicts, if persons before the courts are to be treated with regard only to the cause of action and available proof, then, as a normative proposition, it is difficult to suggest any criterion for deciding liability other than placing it on the party able to avoid the cost interaction more easily
”Slide13
THE PETROL CASE: A SOLUTION(…) The judge (Posner) will award damages against the petrol company…the REASON lies in the answer to the following question:*1)Petrol companies?*2)Industrial companies that buy petrol off them? …Because the operate in the region, have more experience and size and can forsee the events and cope with the situation at a lower cost …
Which
party is
a better
situation to handle
an armed conflict in the Middle East? Slide14
THE SOLUTION (II)They can contract insurance at a lower price than industrial companiesThey can desgin alternative routes, etc. EPILOGUE:*can we ignore integratory interpretation? Where the judge is not worried about setting a general rule, but trying to interpret the will of the parties considering the data given by the contract itself…*Is it correct/valid/fair to adopt a norm to apply it to the past?(Irretroactivity)*Are the judges entitled to solve a controversy based on public incentives/efficiency to a case from the past?