Summaries for Private Civil Law

Part I Connecting Factors

Connecting Factors
Connecting factor determines three things:
1. Rules of jurisdiction
2. Choice of laws
3. Recognition of foreign judgments
Examples of CFs
1. Domicile, residence or place of incorporation of the parties
2. The place or conclusion of performance of the contract
3. The place where the tort or delict was committed
4. Flag or country registry of ship; ship owners base of operations
Three forms of Domicile
1. Domicile of Origin (DoO) acquired at birth and depends on domicile of one
parent at the time of birth
NOT where person is born or where parents were residing at time of
birth
DoO understood as never totally lost (Revival of Domicile of Origin)
Upon acquiring a new domicile, domicile of choice remains in
abeyance
In a period where DoC lost or persons lacking domicile, DoO revives
2. Domicile of Choice (DoC) acquired by residing in country with the intention
to remain permanently or indefinitely
Two tests have to be fulfilled
I.
Objective test of residence factum (factual residence)
II.
Subjective test of intent
3. Domicile of Dependence (DoD) conferred on legally dependent persons by
operations of law and for certain classes of persons (children, mentally
incapable
Advantages of Domicile as CF
More natural, appropriate to subject law of home rather than law of
country he may have left years ago
Domicile only practical test in certain political units (UK, US, et cetera)
Disadvantages of Domicile as CF
Legal domicile out of touch with reality as law may regard person domiciled in
country he is not residence in
Person may be regarded as not domiciled because intention dependent on
future occurrence
Certainty of proof of intention difficult to prove without recourse to courts
Habitual Residence a general alternative to domicile/nationality. Compromise both
domicile and nationality.
Preferable CF for personal matters (education, health, family)
Person may have more than one ordinary residence, but only one habitual
residence

Ordinary Residence main abode in particular place or country.

Question of fact: may be ordinary resident of more than one country
Nationality most common CF in Civil law jurisdictions
Advantages easier to ascertain because it is more difficult to change (ergo,
harder to evade law)
Disadvantages citizen of two countries; unrealistic if person left country
and not naturalized in new country
Domicile of Companies personal law is that of place of incorporation. Note:
company cannot change its domicile or nationality
Absence legal status when person cannot be located
Three Stages of Absence
I.
Granting of defense for a missing person
II.
Legal declaration of absence
III.
Dead in absentia
Nationality by birth
Parentage (Latin: jus sanguinis) determined by that of his parents
regardless of where born
Place of birth (Latin: jus solis), regardless of parents nationality
Acquired Nationality- by elected nationality or naturalization
Statelessness international refusal to accept some as stateless (nationality is an
inalienable (and in this case, universal and absolute) right protected by ICHR

Part II Legal Persons

Legal person non-human entity, treated as person for limited legal purposes
An LP can be sued over property and enter into contracts (as a person would)
LP are excluded from voting, marrying, or holding public office, as well as many
constitutional rights which are reserved solely for natural persons (e.g. companies
may be excluded from the right to free speech). Therefore, the concept of legal
personality is not absolute.
Acquiring Legal Personality
For natural persons, natural from birth
For legal persons, acquired by juristic person by meeting essential, official, and
publicized criteria required by law
4 Consequences of Incorporation
1. Companys property is companys property
2. Companys debt is companys debt
3. LP can contract with their members and outsiders (and vice versa)

4. LP can commit tort and crimes

LP is an acting subject of private law therefore, an LP can act lawfully or unlawfully
LPs governed by the laws that created them (think of these as internal laws)
Object of an LP purpose and range of activities carried out by company. NOTE:
legal capacity is limited by LPs object
Contractual liability responsible for the its undertaking (as a person would be)
Non-contractual liability LP responsible for damage caused to third parties by the
actions of natural persons that make up the bodies and employees without prejudice
to the rights of recovery
NOTE: LP unable to acts on its own behalf. It may only act through individuals who
may be bodies or representatives
Merger union of two (or more) LPs of the same type
Three types of Mergers:
1. Merger by absorption
2. Merger by creation
3. Demerger (split)
Extinguished LP
Expiration of terms (can be external)
Achievement of the purpose it was created for
The existence of a cause for extinction does not automatically lead to the
termination of the LP

LP normally performs acts of the law himself, however, he can entrust another
person so that they perform in the formers name
Act of Empowering (a representative) unilateral, does not require the will of
the person appointed
Granting power appreciated the freedom of form does not need to be in
special form, i.e. can be in writing or not
Law requires that power of authority be granted in a public deed for certain
acts (such as marriage, administration of assets, et cetera)
Representation without power performing acts of law in the name of someone
without the necessary powers to do so
Power has expired
Power never existed
Has power, but acting outside scope of power
Acts performed by false representatives not binding by the principal, unless he
ratifies the act
Extinction of Empowering
Fulfillment of task
Revoked by principal

Representative may renounce power himself

Case of death

Individual representation when the representative acts on own behalf,

Principal is not related to the third party who do not know of his existence

Part III Legal Acts

Liability mainly deal with contract and tort
Law of Obligation study of all possible obligations arising from the relationship
Legal fact an event that fits a model fact situation and that has a certain legal
consequence
Legal facts that come into being without participation of the mans intention
Acts deliberately and voluntarily performed by men
Juridical Act declaration of intention directed towards a legal effect that the legal
order recognizes and guarantees
Direction of intention intention to create norms to regulate legal situations
Private autonomy parties may establish the facts, clauses, and conditions they find
suitable
Reflects contractual freedom
Only limit to stipulate freely are the law, morals, and the public order
Note: Common law approach to contract law aims to answer key questions regarding
contracts (What is a contract? or What is necessary to give a promise with legal
implications rather than social or moral effect? and most importantly, What are the
legal consequences of the contractual obligations?). In Civil law, the study is
comprised of these general rules of formation as well as the study of categories and
different categories of contracts.
Formation of a contract
NOTE: The will of parties must be exteriorized in order to have legal effects
Cause of contract obligations need to be justified and recognized by the legal order
known by the parties
AKA the socioeconomic reason for a contract
Consent person has to have full legal capacity to give consent and to assume
obligations
Contractual consent is, therefore, a declaration of will.
Acceptance declaration of will to accept offer
Revocation of offer Civil law binding and cannot be revoked after being given,
Common law countries can always be revoked until the moment it was accepted.

Vices of consent
Mistake/misinterpretation false knowledge of reading at the time of conclusion of
the contract
Has to effect the substance of the contract and be essential
Violence exists when an irresistible force is used to obtain consent
Intimidation, duress exists when a threat of serious harm to person or property to
obtain consent
Dolus use of tricks or bad faith to deceive the other party with the purpose of him
executing a contract
NOTE: all services and things not of trade can be object of a contract (as long as
they are lawful and according to good morals)
Rules of interpretation
1. If terms clear, the literal sense of the terms shall prevail unless contrary to the
intention of the parties.
2. Principle of conservation of contract if both parties want the contract to be,
the preservation of the contract is facilitated by legal means
3. Systematic interpretation of act
4. Words with multiple meanings shall be interpreted in the one that is more in
conformity with the nature and object
5. Usages and costumes must be taken into account.
6. Those terms that are obscure shall not favor the party who caused the
obscurity (consumer protection)
Integration
To integrate a juristic act is the fill the gaps left by the parties by applying the
legislation or any other sources of law.
Ineffectiveness
1. Nullity defect that impedes the act to produce any effect whatsoever. The
contract is stripped of all legal effects and obligations
2. Voidability has defect but is a valid legal act as is not challenged due to the
existence of that defect
Cause of voidability that can be claimed
Vices of consent or lack of capacity that can be fulfilled
3. Rescission prejudice for certain person to whom the law provides and
action to stop the juristic act from being effective (think: fraud)
Otherwise, the contract is having all the essential elements and
lacking any defects
Force Majeure unforeseen and unexpected circulation outside the control of the
parties

Part IV Law of Obligations

Voluntary obligations instituted by an act of the person who assumed the
obligations
Typically performed with the intention to cause legal obligation
Unilateral binding promises require formality (such as a seal) to constitute legally
binding.
Usually require some form of written document or proof
Promises can be legally binding either on condition:
Being accepted by their addressee
At least one condition of not being rejected
Consensual obligations require will of two or more parties to an exchange of rights
or to the insuring of reciprocally beneficial obligations
NOTE: Contracts are the most important species of consensual obligations
Non-voluntary obligations instituted on the occurrence of a legally determined
event (e.g. childbirth)
Obligation of reparation willfully/wrongfully act or breach of duty/obligation and an
event consequential to injury, damage, or loss to another person
Doesnt need to be intentional
Dame/injury/loss essential to the obligation to make reparation
NOTE: injured party should seek remedy within reasonable time or be deemed
lapses
Obligations are relations between persons. One of whom has a right to certain
conduct by the other, which that other owes a duty to the former.
Rights and duties in this context are relational attributes, reflecting to either side of
the obligation relationship.

V Remedies
Context: when a contract is breached, one may go to a court to seek remedy.
Remedies are the steps taken by the court in regards to the debtor to repair the
breach.
Hierarchy of remedies which preference to others and why?
Self-help remedies whether the court necessarily has any role at all. In some
instances, the breach can be taken care of between the parties. In more serious
cases, court needs to intervene.
The party in breach can pay damages rather than performing his obligations
because judges are reluctant to force party to perform.

The breach gives rise automatically to a substitute for secondary obligation

Types of Remedy
1. Specific performance order of the court that the defaulting party perform
the conduct personally and literally according to its terms
2. Injunction an order that the defaulting party personally do a positive act
to remedy a break of contract
Monetary compensation is still the preferred remedy. Specific performance only
applied when compensation is inadequate. Injunction only if specific performance is
inadequate.

VI Law of Things
Law of the things set of rules intended to regulate certain social activities whereby
economic goals of a person are fulfilled
Patrimony totality of the property rights and personal rights of a person
Things any type of property that can be appropriated by a man, being used,
possess, enjoy and transfer from one person to another (and that have economic
value).
Rights in rem (AKA real rights)
Real rights described as an immediate and direct power of a person over a thing
that others have to tolerate.
A real right is a made of faculties that attribute to the holder of the right
Direct power over the thing and exclusion of power and efficacy erga omnes third
parties have to respect and tolerate the exercise of the rights.
Acquisition
* Requires title or mode
Title the legally prescribed set of acts, events, legal acts or juridical acts (contracts)
that suffice to vest that right in such a person (a will, a contract, possession)
A possession is the simplest title of all, the so-called initial acquisition.
The ownership of land will only pass on the delivery (traditio Latin for completion)
giving conclusion to a valid contract.
Transfer

Mortis causa succession - death causes succession; transfer of ownership

along lineage

Transmission by contract a property right passes when certain contracts are

followed by tradition (delivery)

o The contract = the title

Expropriation by operation of the law

Juridical transfers seizure of assets due to insolvency

Protections of rights in rem

Interdictos to protect peaceful possession
Actions of recovery to protect ownership in order to obtain a judicial title that states
that the property is free of the servitudes or other real rights (mortgage)
Types of Real Rights
A. Ownership
B. Limited real rights only confers to their holders part of the faculties, which
can be exercised over a thing which belongs to someone else
a. Right of enjoyment partial use of a thing of another person
b. Use
c. Easement burden imposed upon by real property for the benefit of
another real property belonging to a different person
C. Limited rights of acquisition grant to their holder the faculty to buy a thing,
which belongs to someone else with precedence to others
D. Real rights of guarantee grant the faculty to sell a good in guarantee for the
performance of an obligation

VII Protection
Law of procedure establishes rules and regulations that must be followed while
implementing substantive law
Complement substantive law by laying down framework to be followed by the
law enforcement agencies
Substantives law will define the existence of negligence. Procedural law will law
down the steps that must be followed by enforcement agencies to investigate the act
and conduct the trial.
Prescription the exclusion of an action by lapse of time based from the occurrence
of the facts on which the claim is based
Two kinds of prescription:
1. Extinctive a limit to the exercise of rights that can cause the extinction of
actions
2. Acquisitive a mode of acquiring property rights (usucapio)
Prescription is based on the objectiveness of the silence of the legal relationship.
NOTE: prescription only when it is alleged by the defendant

Prescription commences from the first opportunity the action could have been taken.