Lecture 1: general principles of private and private IL
Private law governs interactions between individuals, companies and organisations. There Is a focus
on the individual interests of parties through voluntary and involuntary relationships.
English common law:
No civil code, only dispersed acts (e.g., the Sale of Goods Act, the Family Law Act), Judicial
precedent (stare decisis), no general rules, Case law development.
French and German civil law:
Based on a civil code, Judicial precedent is relevant, but judges have to apply the law, General rules.
§ French system:
o Code Napoléon based on French ‘customary law’
o Intention that it would be accessible for citizens
o Supreme Court decisions are short and lack arguments and references
§ German system
o Based on Roman law as developed by German scholars (Von Savigny)
o More academic and abstract (Professorenrecht)
o General part with principles that apply to all parts
o Technical, leaving less room for judges (open norms)
Contract law
Parties voluntarily enter into an agreement, enforceable by law. With the leading principle of contract
law, “freedom of contract,” does “freedom of contract’ leave the legislator (in cases where mandatory
laws are not required)?
§ Providing default rules, parties cannot cover all topics possibly relevant; not possible and not
sensible.
o Example: giving notice; damages
§ Most legislative provisions can be set aside by the parties
o Example: the obligation for giving notice can be set aside
Formation of a contract
§ Is there an intention to be bound? Acceptance of an offer?
Example: an ad in a newspaper in which a house is offered for € 400,000,-
§ Is there a sufficient definition of the parties’ obligations?
Example: you will sell to me your future business for the amount X
§ Vitiating factors, voiding contracts due to lack of consent.
Example: mistake, duress, deceit
Pre-contractual liability
The contents of the contract
§ Interpretation of contract: how would a reasonable person understand the term? Only the
wording? Or subjective intentions also?
§ Gap filling, default rules
Example: next slide
§ Can unfair contract terms be set aside?
Example: exemption clause
§ Illegal and immoral contracts
Remedies and enforcement
§ Performance
§ Damages for breach
§ Termination of the contract
,Property law
Property law is not only about ownership. The owner may create new rights.
Example: putting a mortgage on a house, right of way in favour of the neighbour, right of usufruct to
children.
Property rights are absolute rights that can be invoked against third parties (contrary to contract,
which only has effect between parties)
Standardising types of real rights and some sort of publicity before any effect against third parties.
Example: public registry of real estate
Three dimensions of property rights:
§ Not only the right of ownership, there are other property rights as well
§ Rights of use
Example: renting out an apartment, living in an apartment
§ Rights as security
Example: mortgage
§ The right to transfer property rights
Example: you can sell your house
Property rights can be exerted against the entire world. Three limitations:
§ Administrative regulations
Example: AIRB&B; renting out an apartment in Amsterdam
§ A right ends where another man’s right begins
Example: building a structure on you property simply to annoy the neighbour
§ Must not go against community interests
Example: expropriation
Family law
Main themes of family law
§ Marriage and cohabitation
§ Parents and parental responsibilities
§ Divorce and its consequences matrimonial property regimes
Matrimonial property regimes
§ Provide default rules for what happens to the assets of spouses when they get married
§ Often, not always (see English law), possible to deviate by prenuptial agreement
§ Three systems:
o Total separation of property (England)
o (Limited) community of property (France)
o Deferred community of property (Germany)
General principles of private law
Autonomy, Equality of parties (formal), Good faith and fair dealings, Prohibition of abuse of rights,
Unjust enrichment, Freedom of contract, Protection of property rights, Liability for wrongs
Aims of private law
Instrumental view
§ Can serve different purposes, private law as a means to an end
§ Economic efficiency: to maximise welfare
§ Incentives for ‘right’ behaviour, penalise ‘wrong’ behaviour
§ Social justice (distributive justice), protection of weaker parties, e.g. tenants, employees
§ Enabling persons to lead the life they value (enhancing autonomy)
Normative view
§ System of principles defining the rights and duties of parties
, § Autonomous system; self-contained, coherent rules and principles, internal logic
§ Interpersonal justice, ‘right’ outcomes between individuals (formal, focus on procedure
rather than substantive), e.g. ‘qui dit contractuel, dit juste’ (who says contractual, says fair)
§ Provides a standard for interpersonal conduct
§ No social/distributive justice: public law (e.g. progressive income tax, wealth tax, capital
gains tax, sustainability, etc.)
Social justice v interpersonal justice
§ Distributive justice means justice in the distribution of whichever divisible goods there are in
a society (often reduced to wealth and income). Different standards can be considered for
determining the justice of distributive shares, for example, distribution in proportion to merit,
contribution, or need.
§ Rawls on social justice: the responsibility of societies to deliver justice through their
institutions. Social justice is wider than distributive justice: societies can be unjust in different
respects than the mere distribution of resources. Social justice also includes the right to a set
of basic liberties (and equal access to positions).
§ Moreover, when it comes to the distribution of resources, the focus is on ‘primary goods’,
which include not only income and wealth but also, for example, the social bases of self-
respect.
§ Commutative (voluntary/exchange) and corrective (involuntary/restorative) justice; focus on
the restoration of equality after it was disturbed, which brought one party a loss (and might
have brought another a corresponding gain). The determination of equality in exchange can
be either substantive (e.g. the idea of a fair price) or formal (e.g. grounded in consent: ‘qui dit
contractuel dit juste’).
§ Interpersonal justice; the focus comes to lie on just and unjust interpersonal conduct. Here,
the question of whether interpersonal justice should be understood more substantively (taking
into account certain personal characteristics of the parties) or more formally (ignoring all
personal differences).
§ It is illegitimate to treat parties in private law transactions as mere means to achieve some end
that is considered socially desirable. Ends may relate to the private parties themselves,
facilitating them in leading better lives by some objective standard (e.g. autonomy understood
as self-authorship), or ends may also be more collective, e.g. economic growth, or halting
climate change.
Private law v Public law
§ Private is coercive; it forces people to do what they do not (or no longer) want to do
o E.g.: comply with a contractual obligation, pay damages based on tort law,
respect the property rights of others, spousal maintenance, and spouses share
assets
o Exercise of State power: warranted by the State that claims the monopoly for the
legitimate exercise of force
§ Private law has distributive effects; the content of private law is not neutral in this regard
o E.g.: protection of weaker parties (consumers, employees, tenants), the choice
not to protect them also has distributive effects, spouses share assets, sets out
rules on private property rights and protects them
§ Private law determines what belongs to whom, not merely what should belong to whom (both
coercive and has distributive effects); the State creates rights
§ Private law provides a public standard for interpersonal conduct; it tells people how to behave
vis-à-vis each other and what kind of conduct they are entitled to expect from each other in
their private dealings
§ E.g.: obligation and expectation that a person will perform contractual duties,
obligation and expectation not to trespass on the land of a neighbour, obligation and
expectation of due care when taking part in traffic, obligation and expectation that
spouses will support each other
, § Private law facilitates transactions (in particular contract law and property law), and is a
social/public goal for a properly functioning marketplace
§ Private law is only partly optional; many rules are mandatory, and optional rules become
mandatory when not set aside by parties
Private international law
§ Provides rules for international relations between individuals
§ Three main topics:
o Jurisdiction: legal proceedings in the court of which country?
o Applicable Law: the law of which country is appliable?
o Enforcement: which requirements for recognition of foreign judgments (not
relevant for this course)
§ Focus on EU-law (harmonisation), not national law (which every country has) of EU
countries or other countries
Jurisdiction Civil and Commercial matters
§ Regulation Brussels I on jurisdiction in civil and commercial matters (all EU countries,
including Denmark)
§ Applies to civil and commercial matters (art. 1 Brussels I)
§ General rule: persons in a Member State shall, whatever their nationality, be sued in the
courts of that Member State (art. 4 (1) Brussels I)
o Equal treatment for persons who are not nationals of the Member State in which
they are domiciled; they are governed by the rules of jurisdiction applicable to
nationals of that Member State (art. 4 (2) Brussels I)
§ Exceptions:
o Matters relating to contract; the place of performance of the obligation in
question (art. 7 (1 a) Brussels I)
o Matters relating to tort; where the harmful event occurred (art. 7 (2) Brussels I)
o Rights in rem in immovable property or tenancies of immovable property (art.
24 Brussels I)
EU Law example
§ Parties conclude a contract. Party A resides in Brazil, party B resides in
Germany. Party A has to deliver 100.000 kilo of soybeans in Berlin and party
B has to pay 120.000 euro (60.000 euro upon concluding the contract and
60.000 euro upon delivery. Party B is not happy about the quality of the
soybeans and refuses to pay the remaining 60.000 euro. Where can party A
start proceedings?
§ In Brazil? Unknown, we only focus on EU private international law
§ General rule Regulation Brussels I: party B can be sued in a court, Berlin, in
Germany (art. 4 (1)
§ Exception: yes, though the answer is the same. Matters relating to contract;
the place of performance of the obligation in question (art. 7 (1 a) Brussels I)
§ This is only about jurisdiction, not about the applicable law
Jurisdiction of matrimonial property regimes
§ Regulation 2016/1103, jurisdiction and applicable law in matters of matrimonial property
regimes (18 EU countries, excluding Denmark, Estonia, Hungary, Ireland, Latvia, Lithuania,
Poland, Romania, Slovakia)
§ General rule: the country where the spouses are habitually resident at the time
the court was seised (art. 6 (a) Regulation 2016/1103).
§ Failing that, the country the spouses were last habitually resident, insofar as
one of them still resides there at the time the court is seised; or failing that in
whose territory the respondent is habitually resident at the time the
Private law governs interactions between individuals, companies and organisations. There Is a focus
on the individual interests of parties through voluntary and involuntary relationships.
English common law:
No civil code, only dispersed acts (e.g., the Sale of Goods Act, the Family Law Act), Judicial
precedent (stare decisis), no general rules, Case law development.
French and German civil law:
Based on a civil code, Judicial precedent is relevant, but judges have to apply the law, General rules.
§ French system:
o Code Napoléon based on French ‘customary law’
o Intention that it would be accessible for citizens
o Supreme Court decisions are short and lack arguments and references
§ German system
o Based on Roman law as developed by German scholars (Von Savigny)
o More academic and abstract (Professorenrecht)
o General part with principles that apply to all parts
o Technical, leaving less room for judges (open norms)
Contract law
Parties voluntarily enter into an agreement, enforceable by law. With the leading principle of contract
law, “freedom of contract,” does “freedom of contract’ leave the legislator (in cases where mandatory
laws are not required)?
§ Providing default rules, parties cannot cover all topics possibly relevant; not possible and not
sensible.
o Example: giving notice; damages
§ Most legislative provisions can be set aside by the parties
o Example: the obligation for giving notice can be set aside
Formation of a contract
§ Is there an intention to be bound? Acceptance of an offer?
Example: an ad in a newspaper in which a house is offered for € 400,000,-
§ Is there a sufficient definition of the parties’ obligations?
Example: you will sell to me your future business for the amount X
§ Vitiating factors, voiding contracts due to lack of consent.
Example: mistake, duress, deceit
Pre-contractual liability
The contents of the contract
§ Interpretation of contract: how would a reasonable person understand the term? Only the
wording? Or subjective intentions also?
§ Gap filling, default rules
Example: next slide
§ Can unfair contract terms be set aside?
Example: exemption clause
§ Illegal and immoral contracts
Remedies and enforcement
§ Performance
§ Damages for breach
§ Termination of the contract
,Property law
Property law is not only about ownership. The owner may create new rights.
Example: putting a mortgage on a house, right of way in favour of the neighbour, right of usufruct to
children.
Property rights are absolute rights that can be invoked against third parties (contrary to contract,
which only has effect between parties)
Standardising types of real rights and some sort of publicity before any effect against third parties.
Example: public registry of real estate
Three dimensions of property rights:
§ Not only the right of ownership, there are other property rights as well
§ Rights of use
Example: renting out an apartment, living in an apartment
§ Rights as security
Example: mortgage
§ The right to transfer property rights
Example: you can sell your house
Property rights can be exerted against the entire world. Three limitations:
§ Administrative regulations
Example: AIRB&B; renting out an apartment in Amsterdam
§ A right ends where another man’s right begins
Example: building a structure on you property simply to annoy the neighbour
§ Must not go against community interests
Example: expropriation
Family law
Main themes of family law
§ Marriage and cohabitation
§ Parents and parental responsibilities
§ Divorce and its consequences matrimonial property regimes
Matrimonial property regimes
§ Provide default rules for what happens to the assets of spouses when they get married
§ Often, not always (see English law), possible to deviate by prenuptial agreement
§ Three systems:
o Total separation of property (England)
o (Limited) community of property (France)
o Deferred community of property (Germany)
General principles of private law
Autonomy, Equality of parties (formal), Good faith and fair dealings, Prohibition of abuse of rights,
Unjust enrichment, Freedom of contract, Protection of property rights, Liability for wrongs
Aims of private law
Instrumental view
§ Can serve different purposes, private law as a means to an end
§ Economic efficiency: to maximise welfare
§ Incentives for ‘right’ behaviour, penalise ‘wrong’ behaviour
§ Social justice (distributive justice), protection of weaker parties, e.g. tenants, employees
§ Enabling persons to lead the life they value (enhancing autonomy)
Normative view
§ System of principles defining the rights and duties of parties
, § Autonomous system; self-contained, coherent rules and principles, internal logic
§ Interpersonal justice, ‘right’ outcomes between individuals (formal, focus on procedure
rather than substantive), e.g. ‘qui dit contractuel, dit juste’ (who says contractual, says fair)
§ Provides a standard for interpersonal conduct
§ No social/distributive justice: public law (e.g. progressive income tax, wealth tax, capital
gains tax, sustainability, etc.)
Social justice v interpersonal justice
§ Distributive justice means justice in the distribution of whichever divisible goods there are in
a society (often reduced to wealth and income). Different standards can be considered for
determining the justice of distributive shares, for example, distribution in proportion to merit,
contribution, or need.
§ Rawls on social justice: the responsibility of societies to deliver justice through their
institutions. Social justice is wider than distributive justice: societies can be unjust in different
respects than the mere distribution of resources. Social justice also includes the right to a set
of basic liberties (and equal access to positions).
§ Moreover, when it comes to the distribution of resources, the focus is on ‘primary goods’,
which include not only income and wealth but also, for example, the social bases of self-
respect.
§ Commutative (voluntary/exchange) and corrective (involuntary/restorative) justice; focus on
the restoration of equality after it was disturbed, which brought one party a loss (and might
have brought another a corresponding gain). The determination of equality in exchange can
be either substantive (e.g. the idea of a fair price) or formal (e.g. grounded in consent: ‘qui dit
contractuel dit juste’).
§ Interpersonal justice; the focus comes to lie on just and unjust interpersonal conduct. Here,
the question of whether interpersonal justice should be understood more substantively (taking
into account certain personal characteristics of the parties) or more formally (ignoring all
personal differences).
§ It is illegitimate to treat parties in private law transactions as mere means to achieve some end
that is considered socially desirable. Ends may relate to the private parties themselves,
facilitating them in leading better lives by some objective standard (e.g. autonomy understood
as self-authorship), or ends may also be more collective, e.g. economic growth, or halting
climate change.
Private law v Public law
§ Private is coercive; it forces people to do what they do not (or no longer) want to do
o E.g.: comply with a contractual obligation, pay damages based on tort law,
respect the property rights of others, spousal maintenance, and spouses share
assets
o Exercise of State power: warranted by the State that claims the monopoly for the
legitimate exercise of force
§ Private law has distributive effects; the content of private law is not neutral in this regard
o E.g.: protection of weaker parties (consumers, employees, tenants), the choice
not to protect them also has distributive effects, spouses share assets, sets out
rules on private property rights and protects them
§ Private law determines what belongs to whom, not merely what should belong to whom (both
coercive and has distributive effects); the State creates rights
§ Private law provides a public standard for interpersonal conduct; it tells people how to behave
vis-à-vis each other and what kind of conduct they are entitled to expect from each other in
their private dealings
§ E.g.: obligation and expectation that a person will perform contractual duties,
obligation and expectation not to trespass on the land of a neighbour, obligation and
expectation of due care when taking part in traffic, obligation and expectation that
spouses will support each other
, § Private law facilitates transactions (in particular contract law and property law), and is a
social/public goal for a properly functioning marketplace
§ Private law is only partly optional; many rules are mandatory, and optional rules become
mandatory when not set aside by parties
Private international law
§ Provides rules for international relations between individuals
§ Three main topics:
o Jurisdiction: legal proceedings in the court of which country?
o Applicable Law: the law of which country is appliable?
o Enforcement: which requirements for recognition of foreign judgments (not
relevant for this course)
§ Focus on EU-law (harmonisation), not national law (which every country has) of EU
countries or other countries
Jurisdiction Civil and Commercial matters
§ Regulation Brussels I on jurisdiction in civil and commercial matters (all EU countries,
including Denmark)
§ Applies to civil and commercial matters (art. 1 Brussels I)
§ General rule: persons in a Member State shall, whatever their nationality, be sued in the
courts of that Member State (art. 4 (1) Brussels I)
o Equal treatment for persons who are not nationals of the Member State in which
they are domiciled; they are governed by the rules of jurisdiction applicable to
nationals of that Member State (art. 4 (2) Brussels I)
§ Exceptions:
o Matters relating to contract; the place of performance of the obligation in
question (art. 7 (1 a) Brussels I)
o Matters relating to tort; where the harmful event occurred (art. 7 (2) Brussels I)
o Rights in rem in immovable property or tenancies of immovable property (art.
24 Brussels I)
EU Law example
§ Parties conclude a contract. Party A resides in Brazil, party B resides in
Germany. Party A has to deliver 100.000 kilo of soybeans in Berlin and party
B has to pay 120.000 euro (60.000 euro upon concluding the contract and
60.000 euro upon delivery. Party B is not happy about the quality of the
soybeans and refuses to pay the remaining 60.000 euro. Where can party A
start proceedings?
§ In Brazil? Unknown, we only focus on EU private international law
§ General rule Regulation Brussels I: party B can be sued in a court, Berlin, in
Germany (art. 4 (1)
§ Exception: yes, though the answer is the same. Matters relating to contract;
the place of performance of the obligation in question (art. 7 (1 a) Brussels I)
§ This is only about jurisdiction, not about the applicable law
Jurisdiction of matrimonial property regimes
§ Regulation 2016/1103, jurisdiction and applicable law in matters of matrimonial property
regimes (18 EU countries, excluding Denmark, Estonia, Hungary, Ireland, Latvia, Lithuania,
Poland, Romania, Slovakia)
§ General rule: the country where the spouses are habitually resident at the time
the court was seised (art. 6 (a) Regulation 2016/1103).
§ Failing that, the country the spouses were last habitually resident, insofar as
one of them still resides there at the time the court is seised; or failing that in
whose territory the respondent is habitually resident at the time the
