Private Law Scholarship Research Articles

평등의 원칙과 사법 (私法)

The principle of equality has traditionally been a topic in public law scholarship. In recent years, however, it is increasingly discussed in private law scholarship. This paper discusses how the principle of equality operates in private law. The conclusions are as follows: First, private law legislation as well as private law interpretation have been undoubtedly bound by the principle of equality. However, private law relationships between private persons are not. In this area, the so-called horizontal effect of principle of equality or rights thereto shall be denied. Second, there are examples in private law where the principle of equality appears to be applied. Resolutions, decisions, or di spositions by or in corporations, associations or long-term contractual relationship can be illegal if they are discriminatory; refusal to deal, suspension of dealings, or refusal of admission to an organization or long-term contractual relationship can be illegal if they are discriminatory; the exercise of ownership rights or the operation of an organization can be i llegal if it has been open to the publi c while excluding certain persons or groups of persons in contradiction to that practice. These are manifestations of the inherent limits of private autonomy, of the principle of good faith and fair dealing, of abuses of rights, and of the general right to personality, however, rather than of the principle of equality, especi ally constitutional equality. Finally, legislators can still impose obligations on private persons to treat other private persons equally, and many do. Given the inherent tension between private autonomy and equality, however, such legislation should be limited to specified traits and/or specified areas and should not be too broad. Relevant legislations in the United States and Germany demonstrate it. It is questionable whether the drafts for the general equal
 treatment act currently being discussed strikes such a balance.

Time for a pluralist approach? Judicial review of non-state decision makers in Canada

The doctrinal project of delineating the supervisory jurisdiction of the common law courts and the scholarly project of elucidating the public law–private law divide have had a long and close relationship. The Supreme Court of Canada strengthened this relationship in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall, establishing a bright-line test for the availability of judicial review that takes a presumed state/non-state dichotomy as its organizing principle. In this article, I build on existing critiques of the decision, describing how Wall’s categorical paradigm has reduced the judicial oversight of powerful decision makers that have historically been subject to standards of fairness and rationality. However, I also use Wall to raise a more fundamental question, which is whether the public law–private law divide continues to provide the best vocabulary and framework for determining judicial review’s boundaries. I explore legal pluralism, a project that has developed in parallel with the public law–private law scholarship and consider whether it might provide a superior framework for understanding the challenges to practices of normative decision making that lie at the heart of cases like Wall. I argue that legal pluralism is more phenomenologically correspondent than the public law–private law divide with cases involving norm-generating communities and more coherent with the values that the common law supervisory jurisdiction should be seeking to promote.

The Place of Philosophy in Private Law Scholarship

The Place of Philosophy in Private Law Scholarship

Contracts scholarship beyond Materialisierung

AbstractThis comment aims to show how Klaus Eller's paper on ‘The Political Economy of Tenancy Contract Law’1 raises the stakes of private law scholarship and contributes to the larger project of remodeling legal institutions in a progressive direction. The comment starts by contextualising the rapid spread of the Law and Political Economy (LPE) movement; illustrates through examples the generative impact of LPE on contemporary contracts scholarship; and highlights two strands of Eller’s original contribution to such literature: a welcome reflection on the value and limits of Materialisierung, and a radical widening of the private law inquiry to include institutional dimensions of legal reform. The point of fostering such new directions is not to ditch the very logic of private law and its endogenous mechanisms of justice, which are still essential to progressive legal work. What is no longer tenable is to keep seeking socially oriented solutions exclusively within the private law arsenal of possibilities, even when it has become obvious that only a synergic approach can produce accurate diagnoses of – and perhaps cures for – the structural predicaments of the market economy.

At the origins of the domestic civil theory of legal relations: sociologism and formalism in the concept of civil legal relations and subjective private law D.D. Grimm

The fundamental tenants of the concepts of “legal relationship” and “subjective right” of the prominent pre-revolutionary Russian legal scholar and private law theorist prof. David D. Grimm have been analysed in this article. David Grimm’s concept is the earliest comprehensive Russian contribution to the theory of subjective right. David D. Grimm has established a long-standing tradition within the Russian private law scholarship to prioritise legal relationship over subjective right. It has been demonstrated that Grimm’s concept of legal relationship is an original and innovative attempt to synthesise sociological understanding of the genesis of private law with legal formalism, which has shown its best in David D. Grimm’s treatment of the concept of legal institution.

The New Formalism in Private Law

Abstract: Private law scholarship is experiencing a reawakening in the United States with the rise of the New Private Law. New Private Lawyers have emphasized our common commitment to the scholarly interest and practical importance held by legal concepts; a belief that private law ought to be analyzed (in part) from an internal point of view; and a conviction that functionalist and conceptual analyses of private law doctrines, procedures and institutions are, or can be, complementary. We are also joined in criticism of aspects of American legal realism and in lament over some of its continuing legacies in private law. However, New Private Law scholars have yet to articulate a scholarly methodology that defines and differentiates our work. I argue that the New Private Law is rooted in a shared—if implicit—new formalist methodology and provide the first programmatic explanation of it. The Article does several things. It provides a clear statement of methodological tenets of the new formalism. It relates these to wider developments in general jurisprudence, with particular attention to scholarship on law and practical reason. It explains the sense in which the new formalism is novel, especially relative to older varieties of legal formalism. It distances the new formalism from foolish and implausible claims prominent in pejorative renderings of legal formalism. It shows how the new formalism is reflected in New Private Law scholarship. And it explains how a clear grasp of new formalist methodology enables reconciliation of the otherwise baffling eclecticism in the New Private Law while promising new and fruitful avenues for its future development.

VI. The Brazilian civil code of 1916: principles, method and institutional conditions of private law modernization

Abstract The article analyzes the elaboration of the Brazilian civil code of 1916 as part of a broader political project of Republican modernization, focusing on the relation between private law, politics and economics in Brazil at the turn of the 20th century. The basic argument is that the consolidation of the Republican regime during the presidency of Campos Sales (1898–1902) provided the institutional conditions that paved the way for the codification of civil law. From the political perspective, parliamentary debates indicate that the civil code draft quickly turned into an instrument of political bargain and opposition to the president’s authority. From the legal point of view, the paper argues that, contrary to the prevailing view in Brazilian private law scholarship, the code represented a real attempt to break with the old order and create the conditions for a private law system based on equal juridical freedom. Finally, the paper explores the connections between the reform of legal methodology and legislative modernization, pointing both at the normative principles guiding the civil code elaboration and at the opposition it was faced with in Brazilian society.

The New Formalism in Private Law

Private law scholarship is experiencing a reawakening in the United States with the rise of the New Private Law. The New Private Law is an intellectual movement characterized by a confluence of different non-legal methodologies and diverse normative commitments. Its eclecticism gives it a perplexing, if not paradoxical, appearance, and the ties that bind those of us allied to it might seem tenuous. New Private Lawyers have emphasized our common commitment to the scholarly interest and practical importance held by legal concepts; a belief that private law ought to be analyzed (in part) from an internal point of view; and a conviction that functionalist and conceptual analyses of private law doctrines, procedures and institutions are, or can be, complementary. We are also joined in criticism of aspects of American legal realism and in lament over some of its continuing legacies in private law. However, New Private Law scholars have yet to articulate a scholarly methodology that might define, motivate, and differentiate our work. This Article fills that gap. In it, I argue that the New Private Law is rooted in a shared – if implicit – new formalist methodology and provide the first programmatic explanation of it. The Article does several things. It provides a clear statement of methodological tenets of the new formalism. It relates these to wider developments in general jurisprudence, with particular attention to scholarship on law and practical reason. It explains the sense in which the new formalism is novel, especially relative to older varieties of legal formalism. It distances the new formalism from foolish and implausible claims prominent in pejorative renderings of legal formalism. It shows how the new formalism is reflected in New Private Law scholarship. And it explains how a clear grasp of new formalist methodology enables reconciliation of the otherwise baffling eclecticism in the New Private Law while promising new and fruitful avenues for its future development.

A decolonial critique of private law and human rights

Two approaches to private-law scholarship are critiqued in this article. The first problematic approach identified is that of ‘private-law purism’ that aims to segregate so-called ‘proper’ dominant private law from everything else. In its classical form, private-law purism involved purifying South African private law (which is largely built on Roman-Dutch foundations) from English influences. In its contemporary form, private-law purism involves shielding dominant South African private law from human rights. The key issue with classical and contemporary purism illustrated in this article is that purism is built on a racist ideology that promotes epistemicide, originally brought about by conquest. The second potentially problematic approach identified is ‘transformative private law’ that aims to push private law in a more egalitarian direction through infiltrating the discipline with human rights. Although transformative private law is a significant rebellion against purism, the epistemic roots of human rights are perhaps as Western as dominant private law. Transformative private law thus has a neo-colonial flair. For that reason, a fusion of human rights with dominant private law will not necessarily result in a decolonial system of private law. Instead of the purist and transformative approaches to the study of private law, it is argued that Africanisation through conceptual decolonisation – a critical study of private law through African philosophy, not limited to the invocation of ideas with legal authority – could be one way of ensuring a more forceful response to the colonial problems of dominant private law and human rights.

Should New Zealand Shirk Its Obligations? A Critical Perspective on Private Law Scholarship

This article concerns the role of the private law scholar in New Zealand, and how such scholars use their skills to improve the law. It argues that while an obligations scholar's preference may be to engage with the courts and other academics in their scholarly activities, a focus on statutory reform better suits New Zealand conditions. Scholars should share their talents with policy makers, law reform bodies and legislators, helping to explain the importance of a coherent system of private law, and how this may be achieved. The authors then go a step further by suggesting that, in the New Zealand context, the preferable approach to reform may be one involving policy-based solutions exemplified by the accident compensation scheme, as opposed to approaches based on traditional private law principles such as party autonomy.

'All the World's a Stage': The Seven Ages of Unjust Enrichment

This paper was delivered as a key-note address at the Society of Legal Scholars annual conference at the University of Oxford in September 2016. It reflects on the state of the law of unjust enrichment, with reference to recent decisions of the Supreme Court and the writings of commentators relating to the theoretical foundations of this body of law. Whilst aspects of the judicial interpretation of the law of unjust enrichment are a cause of significant concern, it is clear that the law of unjust enrichment is firmly embedded in English law. Further, despite some commentators arguing that this body of law has no sound theoretical basis and does not operate as a coherent body of law, the papers argues that it is both coherent and theoretically sound. But the paper identifies shortcomings in private law scholarship and in the interaction with the judiciary, and suggests a clearer analysis of what constitutes unjust enrichment. Further, whilst some have argued that this body of law is in its final age and ‘mere oblivion’ beckons, to quote Shakespeare, that body of law called unjust enrichment is mature and remains relevant.

Nieprzedawnialne roszczenia majątkowe w prawie cywilnym

The text deals with the question of proprietary claims in the Polish civil law, which are exempted from prescription. The existence of such claims is a clear exception from the general rule set forth in Article 117 of the Civil Code (hereinafter: “CC”), which embraces all the proprietary claims with the general concept of prescription after the elapse of particular term (specified further in the following provisions). The article tries to explore the premises behind the general concept of lack of prescription, as well as to identify particular reasons for disapplication of Article 117 CC on the grounds of particular types of claims. The statute exempts explicitly two types of claims from prescription. It is the case of Article 223 § 1 CC, declaring lack of prescription for the damage claims supplementary to vindicatory claim. Similarly, according to Article 220 CC prescription does not embrace a claim for dissolution of co-ownership. In the other instances, the similar conclusion is derived in interpretation, mainly upon functional and systematic arguments. The case-law and the private law scholarship identify five examples of such claims. In all of these instances, the main reason behind disapplication of prescription rules is the close link of this claims with real property. Prescription of these claims and, hence, the possibility to transform them into natural obligations, seem from this perspective counter-functional and difficult to reconcile with the other principles and provisions of property law. It pertains, first of all, to the claims for establishing a way of necessity ease (Article 145 and 146 CC). Secondly, the same view is adopted for art. 151 CC, regarding another type of easement – available in the case of unintentional introducing a building or another facility behind the border of the somebody else’s ground. Thirdly, in the similar case of the intruding with a construction into another real property, the lack of prescription is adopted as regards the claim for transfer of title to the occupied part of the ground (Article 231 § 1 CC). Fourthly, the lack of prescription has been approved for the claim for establishing a transmission servitude (art. 3052 CC). Fifthly, the same solution has been proposed for the claim for transfer of title in performance of the contract with solely obligatory effects. This interpretation has been, however, rejected in the subsequent case-law and does not seem to be acclaimed currently.

The Role of Competition Law in Regulatory European Private Law

In the last years we have seen the emergence of a new methodology in European private law, which (finally) dared to shift away from a classical comparative approach to one, which takes European Union law as its proper starting point. Classical European private law scholarship has mainly been backwards looking insofar as the law of the Member States, and predominantly the old codifications, determined both form and substance of new regulatory attempts. Today, this traditional approach still remains the predominant working method of the acquis group. But recent improvements in the academic debate surrounding European private law suggest a more European approach to questions of harmonisation. Taking the Treaties, secondary legislation and jurisprudence of the ECJ as its premise, academics have attempted to extrapolate common ‘European’ principles and rules to provide desperately needed substance in the search for more coherence in the continuing harmonisation process of private law. Some characteristics should be stressed as far as this new scholarship is concerned. First, it is heavily influenced by an idea which can be called ‘Europeanisation of law through hybridisation of remedies’. Second, the methodology and reasoning on which this scholarship relies can only be explained on the basis of the European Economic Constitution. Alongside these main aspects we also find a more functionalistic approach as to how modern private law should be shaped in general. Last, new forms of governance allow for more flexibility in the law-making process, also in view of the actors involved in that process. It is against this background that this contribution seeks to demonstrate in what way competition law can serve as a tool to directly or indirectly influence and regulate private law in the Member States; and, more generally, how it can further the Europeanisation of law. In terms of methodology, I mainly rely on the idea that developments in European private law can be explained by aid of those areas which lie at the periphery of classical private law but at the core of the law of the internal market. To this end, it is necessary to first and foremost understand when and how competition and private law interact in the Union. The aim is to identify both instances in which competition and private law overlap substantially and in what way they complement each other.

The Use of the Functional Method In European Union Property Law

The influence of EU law on the law of property adds a vertical dimension to the otherwise horizontal dimension employed by comparative property lawyers. The traditional functional method can no longer answer the need for modern private law scholarship, especially not EU property scholarship. The traditional functional method is a descriptive method that allows the comparison of functional equivalents at the same level. The dynamics of European integration, however, change the nature of private law by adding a European Union type of functionalism. EU law is focused on the further completion of the internal market and rules that govern the internal market – also known as rules of European economic constitutional law – focus on the effective implementation of EU law in the national legal order. Differences between legal systems of the Member States, how functional equivalent in the traditional sense, cannot survive if they lead to a market access problem. We are therefore in need for a renewed functional method, guided by European economic constitutional law rather than by national law, that better answers to the needs of this new reality.

Promise and Private Law

This essay was part of a symposium on the thirtieth anniversary of the publication of Charles Fried’s Contract as Promise and revisits Fried’s theory in light of two developments in the private law scholarship: the rise of corrective justice and civil recourse theories. The structural features that motivate these theories – the bilateralism of damages and the private standing of plaintiffs – are both elements of the law of contracts that Contract as Promise sets out to explain. I begin with the issue of bilateralism. Remedies – in particular the defense of expectation damages – occupy much of Fried’s attention in Contract as Promise, and he insists that this particular remedial response flows from a commitment to promissory morality. I am skeptical of this claim and seek to show the implausibility of grounding compensatory damages in a duty to keep a promise. Rather, to explain this feature of contract law the duty to keep a promise must be joined with principles of corrective justice. I next turn to the issue of private standing. First, I seek to demonstrate that our plaintiff-centered system of contract law is a genuine puzzle. We cannot dismiss the issue of private standing as a pragmatic and ad hoc response to problems of enforcement. Rather, I argue that a better candidate can be found in the work of civil recourse theorists who seek to elucidate the value of victims in a liberal society holding wrongdoers accountable for their wrongs. Finally, I address some of the problems associated with the arguments presented in this essay. How exactly do promissory morality, corrective justice, and civil recourse relate to one another? My conclusion is that at best there is an uneasy and ill-defined relationship between these different goals. On the other hand, I hope to show that promissory theories of contract nevertheless must take the issue of private law seriously. The bilateral structure of liability and the system of private standing are major institutional features whose existence must be acknowledged and accounted for in future efforts to defend a promissory vision of contract.

The Question Concerning the Common Frame of Reference

AbstractThe many directives on private consumer law enacted in the last three decades have met with considerable neglect and resistance amongst domestic judges, legislatures and scholars, bringing about less legal unity and more ‘legal fragmentation'—to say it in the words of the Commission. The Draft Common Frame of Reference is one more attempt, on the part of certain strands of European private law scholarship, at imposing a formal break on, and at overcoming, such fragmentation. Presented as a ‘comprehensive and self‐standing’ document, its ambition is to definitively implement the Commission‐generated, market‐orientated agenda of private law reform, so much resisted at the national level. The article argues that the EU legislative institutions should not go ahead with the plan of incorporating the Draft's content in EU law, by adopting a CFR. A CFR would confer an unprecedented degree of authority on a range of contested directive‐generated rules, from the test of fairness to the risk development defence in product liability. In creating a climate in which CFR‐based legalistic arguments promote unity over fragmentation, a CFR would emasculate public debate by implementing, under the spell of legal necessity, exactly those partisan, Commission‐initiated policies that have been, and still are, openly opposed in domestic legal circles. The Draft embodies a grammar of imposition that should be questioned.

A European Legal Method? On European Private Law and Scientific Method

AbstractThis article examines the relationship between European private law and scientific method. It argues that a European legal method is a good idea. Not primarily because it will make European private law scholarship look more scientific, but because a debate on the method of a normative science necessarily has to be a debate on its normative assumptions. In other words, a debate on a European legal method will have much in common with the much desired debate on social justice in European law. Moreover, it submits that, at least after the adoption of the Common Frame of Reference by the European institutions, European contract law can be regarded as a developing multi‐level system that can be studied from the inside. Finally, it concludes that the Europeanisation of private law is gradually blurring the dividing line between the internal and external perspectives, with their respective appropriate methods, in two mutually reinforcing ways. First, in the developing multi‐level system it is unclear where the external borders of the system lie, in particular the borders between Community law and national law. Second, because of the less formal legal culture the (formerly) external perspectives, such as the economic perspective, have easier access and play an increasing role as policy considerations.

Public Law, Private Law, and Legal Science

This essay explores the historical and conceptual connections between private law and nineteenth century classical legal science from the perspective of German, American, and Jewish law. In each context, legal science flourished when scholars examined the confined doctrines traditional to private law, but fell apart when applied to public, administrative and regulatory law. Moving to the contemporary context, while traditional private law scholarship retains a prominent position in German law and academia, American law has increasingly shifted its focus from the language of substantive private law to a legal regime centered on public and procedural law. The essay concludes by raising skepticism over recent calls to reinvigorate the Euro-American dialogue by focusing on traditional private law and scholarship. 2009] PUBLIC LAW, PRIVATE LAW AND LEGAL SCIENCE 691

Of combats livrés and combats livresques

RésuméÀ partir d'une lecture de mélanges publié en hommage à Claude Masse, professeur de carrière à l'Université du Québec à Montréal et avocat engagé, l'auteur étudie les publications de recherche ayant pour objet la justice sociale en tant que genre de la littérature juridique québécoise. Portant le sous-titre ‘en quête de justice et d'équité’, les Mélanges Claude Masse offrent au lecteur l'occasion de réfléchir au rôle de la doctrine en tant qu'instrument d'évolution sociale en la comparant à la doctrine n'ayant que des ambitions spéculatives. La recherche en droit privé a subi des influences particulières au Québec pendant les trente dernières années – la jeunesse relative de la vocation de professeur de carrière, l'impact de la Révolution tranquille sur la théorie des sources du droit, et le poids massif de la révision du code civil dans la culture juridique. Ces influences expliquent, en partie, l'importance des publications ayant pour objet la réforme du droit au cours de cette période. Toutefois, les Mélanges Claude Masse et l'homme que l'ouvrage met en valeur soulignent un deuxième aspect de la recherche en droit visant la justice et l'équité. L'auteur prétend que la recherche juridique peut être vue comme une forme de résistance en soi, abstraction faite de ses finalités, puisqu'elle implique, par sa nature, une prise de parole dans la cité au nom de la différence. L'équilibre entre ces deux thèmes – la recherche en droit comme instrument de changement social, d'une part et, d'autre part, la recherche en droit comme acte de justice sociale en ellemême – est un aspect marquant de la culture universitaire du droit au Québec.

Individualism, Cooperativism and an Ethic for European Contract Law

It was at a meeting held at the University of Trento in June 1994 that Reinhard Zimmermann suggested that good faith in contracts might make an interesting and fruitful topic for the so-called 'Common Core of European Private Law' project.' Six years later, with the publication of Good Faith in European Contract Law,2 Zimmermann's suggestion has been brought through to a successful completion. Whether one's interest is in comparative law or its methodology, the harmonisation of European private law, or good faith in contracts, the publication of this book is a major event and, whatever one makes of the product of this study, there is no question that Zimmermann, his co-editor Simon Whittaker, and the team of contributors are to be congratulated for conceiving of such a book and then delivering it so impressively. The book is a mine of informed analysis. Readers who want an introduction to good faith doctrines in German, French and (in its limited way) English contract law, will be considerably assisted by the co-editors' own opening contribution to the book. Similarly, if one's interest in good faith relates to its place in Roman law, or in contract law in the medieval ius commune, or in US contract law, then the contributions by, respectively, Martin Josef Schermaier, James Gordley, and Robert Summers will be required reading. However, the centrepiece of this book its distinctive contribution to comparative private law scholarship in general and to an understanding of good faith doctrines (or their cognates) in particular is the set of 30 case studies, discussion of which takes up the greater part of this volume. The purpose of the study, focused on the 30 hypothetical cases, is not so much to compare doctrinal technique and resource in contract law regimes across Europe; rather, the project is designed to reach beyond surface doctrinal difference to see how far there is a core of agreement as to good faith outcomes in Europe.