Summary Chapters (overview):
Chapter 1: General Introduction
Chapter 2A & 2B: Constitutional Law & Belgian Institutions
Chapter 3: European & International Law
Chapter 4: Persons & Family Law
Chapter 5: Success, donations & wills
Chapter 6: Property Law
Chapter 7: Law of obligations
Chapter 1: General Introduction
Chapter 2A & 2B: Constitutional Law & Belgian Institutions
Chapter 3: European & International Law
Chapter 4: Persons & Family Law
Chapter 5: Success, donations & wills
Chapter 6: Property Law
Chapter 7: Law of obligations
1
,CHAPTER 1: GENERAL INTRODUCTION
1. What is law ?
Definition :
- Enforceable: you can be pressured to follow the rules (can be punished or sued)
- Rules of conduct: law is about how we act, interact, how we conduct, how we treat others… we have
the habit to drive at the right side of the streets (code/rule of conduct), in the UK is this different
- Imposed by the public authority: one authority: parliament, national, federal…
- Structuring civil society: we want our civil society to work, it has to be structured to live together with
other people (small community: not a lot of rules to make it work)
o “Entering into a contract is binding” the principle is a rule of law
o “It is an unwritten rule that one should always arrive on time at an appointment” the principle is a
rule of civility and decent behaviour
- Entering into: unforceable/rules/imposed/structure = rule of law
- It is an unwritten: not a rule of law: it contains elements, but not all of them
2. Distinction !!
A. Mandatory rules of law
- = laws that purport to apply irrespective of the law chosen by the parties to govern their contractual
relations
B. Default rules of law
- = rules of law that can be overridden by a legally effective agreement (“gap filler”)
Mandatory = Rules that you cannot deviate from, you can deviate from some rules of law default
- Ex. Imagine that you have a house and want to lease it, you will live in it, it’s a lease-agreement, this si
subject to mand rules of law, practically the whole part of the civil code to home-lease are always
mandatory (you cannot deviate from it, not possible) (we want to protect the people living in that house)
- Ex. Leasing contract for a garage: you can hire that, but those rules are not the same as home-lease rules,
if there is no duration, ex oral agreement, it is valid but it’s not written, so there is no agreement of the
duration, non-home leaseagreements, then you can terminate it every month (default rules of law)
C. Subcategories of mandatory rules of law: Public policy rules vs. Mandatory protective rules
1 Public policy rules (French: ordre public)
= Body of principles that underpin the operation of legal systems in each state. This addresses the social, moral and
economic values that tie a society together: values that vary in different cultures and change over time.
- Mandatory (rules of law - cannot deviate from it)
- Default (rules of law – parties made not other arrangements)
- Public policy rules
o Openbare orde
o If we have those, then we talk about: body of … in each state …. Over time.
o Rules that we find important that we say if you do not repsect these rules, it makes your contract
invalid, then it can not be applied, then it is corrupted
o Basic values that are laid down by rules that we cannot deviate from
o Ex. In Belgium: you cannot have decently live together with another person that was not a relative
without being married (vroeger!!), this had consequences, if one died and made a will and it goes to
the person you live with (invalid, because it’s not a relative, undescent) (this was againts the ordre
public) (now this is possible) (can change over time)
o It is not always in the legislation, but the court says if it is descent or not
o Ex. Sometimes you only can have one spouse, some people want more spouses (not marry with, but
together), it is forbidden in Belgium to be married with more than 1 person, you can be prosecuted,
2
, in some parts of the world it is legal, what is the basic social value in Belgium is not a basic value in
another country in the world (here against public policy rules)
2 Mandatory protective rules
= Rules that purport to apply with the aim to protect the economic weaker party to a contract
Once a conflict has arisen, the parties to a contract may deviate from such mandatory rules by a
separate agreement
Protective: protect the weak parties in the contract (employees or buyers)
Terms are decided by the employers, the employee is the weak party, bcs they cannot change anything or
decide anything soo you are protected
3. Sources of law
Where can the rules of law be found?
A. Legislation
Legislation “sensu stricto”
Act (of Parliament)
The law as the decision by an act of parliament
Wet = act of parliament
You have to follow the law (all types of law, not per se act of parliament)
Legislation “sendu lato”
Treaties, Constitution, Acts, Presidential/Royal Decrees, Governemental decisions, European regulations or
directives …
They make legislation
Explained next class
B. Jurisprudence (case law)
- = Interpretation and application of a general rule of law by a judge or a court of law on an individual
situation
- In Continental European Law:
o no precedent or authority ( Common Law)
o only binding for litigating parties
- General rule of law = legis
- Law on an individ = jurisprudence
- Judge will focus on the legisl on a personal case = jurisp
- Continental european law: decision is only binding for the litig parties
- The judge is not bound because of the europ law
- Common law :
o Possible to say that court has to make the same decision of the higher court
o Set of decisions that can be applied on actual cases
o Who changes the law? Supreme courts
C. Legal doctrine
- = The systematic, analytically evaluative exposition of the substance of private law, criminal law, public
law, etc.
- Legal doctrine picks up questions from legal practice and discusses them in a more general and profound
manner.
o Not legal doctorine: lawyer writing a small article about neighbours
o All what is written in legal books (by lawyers), research of use it by other lawyers
3
, D. Customary law and legal principles of law!!
a. What is customary law?
- = Customary law is, by definition, intrinsic to the life and custom of indigenous peoples and local
communities.
o Actual importance in modern legal systems is limited
o Application of written law rule of law of local communities (say how they do things around here)
o When you bring this together it is not customary law anymore
o Napoleon result of a long work of people (lawyers) collecting difficult rules and then brought it
together into a new text
o Influence in belgium of this law: non existing
o Vroeger wel, nu niet mer; they have been dissapeared
o Vroeger: Leasee-agreements of customary rules, could be different in Gent and Bruges, not
anymore, everything is the same now
b. What are (unwritten) legal principles of law?
- = They are mostly derived from existing elements of the legal system:
o with statutory support
E.g.: general principal of “good faith”
o without statutory support
E.g.: reasonableness principle
- Principles of law
o Unwritten, because they are flowing above us like clouds, basic logic principles that we use and
approve
o Some of them connected with law = with stat support (princ of good faith = principle that can be
found in an article of the civil code: formation and conclusion of a contract: when you make an
agreement, disagreement is for the parties is as binding as a law) (it is connected to law) (everyone
should connect and handle with good faith – has a general influence)
o Without stat support (reasonableness – we don’t find this in the text, but it is logic)
4. Legal systems
A. Civil law systems
- A body of law derived and evolved directly from Roman Law, the primary feature of which is that laws are
struck in writing, codified, and not determined, as in the Common Law, by the opinions of judges.
o Bring text together and applied by judges
o Continental
o Statutory law = basic of a law (civil law system)
B. Common law systems
- A body of law based on the opinions of judges and historic customs
o Basis of the law
o Statutory law = exceptional
C. Religious law system
- Stated that have a legal system based on a religious book (vb Koran, not based on a civil law system)
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