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Public Law Summary (Intro to Law)
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Public Law Summary (Intro to Law)
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Fanny EverardBBA I – Public Law
Introduction to Law
Chapter 1 – Law in an objective & subjective sense
Dirige – Organizing enacting legislation through state authority
=
LAW – enacting legislation in order to organize society
Focus on the legal system
Introduction to the law
Not the law or a legal system (Belgian, French, English, US law,…)
System instead of rules
Relativity of the law
Abstract introduction, but irrespective background?
1. Fault/ tortious act
Objective component = the act
Þ Breach of a specific rule
Þ Breach of the general duty of care
Criterion: Bonus Pater familias-rule
Subjective component = tortious nature of the act
Þ Mental capacity: Are mentally disturbed persons legally accountable? Art. 1386bis C.C
Þ Age ((power of) discernment)
Þ When you go to court, you always have to ask what you want, you have to make clear
on what article of the code your claim is founded
Þ It’s the judge’s responsibility to assess whether you have the right to compensation or
not.
2. Loss/ detriment
Þ Both material and moral detriment
Þ Loss has to be appraisable in money
Þ What is acting wrongfully, what is causing damage? The definition is not that clear
Lawyers use rules in the civil code and adapt them to each situation.
Þ If the average person would not do something, then if you’re act is not “normal”, you
are breaching the general duty of care
3. Causality
Þ Would there be a loss without that tortious act?
Þ What about predestination (see The Netherlands’ Case Below)
If I bump into someone, Did my actions cause your death?
Þ What about tortious acts of other people?
Theory of the equivalent causes vs. theory of the adequate cause
How do you define causal relationship?
Would the person have suffered the same, without a specific person?
Therefore; you are liable to the total damage.
To define whether there is a causal relationship; they don’t distinguish between small and big
wrongful acts.
1
, Fanny Everard
BBA I – Public Law
You can try and involve other people within the picture: Always look around, and try to find other
parties that are liable as well
It’s up to the judge to decide whether not putting a lid on the coffee (bartender that sold the
coffee) was a significant part of why you spilled the coffee on the person
Suing the institution: if the staircase had been cleaned properly, the tortious act might not
have been committed, it’s up to the judge to decide whether the institution is sufficiently
(somehow) responsible
Þ Sometimes, the person is way too far away form the action. If a barrier is not drawn, the
whole world would sue the rest of the world all the time…
If you are the only one with money, you will pay everything – the tortious act committed would not
have happened in the same way without you à There is a causal relation
Þ You’re liable to having committed the tortious act, if you’re involved
(somehow) in the tortious act.
There is a supermarket, you can park on the roof of it as well as an underground parking. After
closing hour, young people climb on the roof of the supermarket and have fun, have a drink, and
raced down the slope bring cars up to the roof in shopping carts. One day, there was this old lady who
walked back to her apartment and suddenly she heard something and she was hit by 2 of them.
If the same accident would have happened with you, there would not have been an accident, you’re
young, you would have heard noise before, you are quicker, therefore there would not have been an
accident. The lady was too slow, too hold, didn’t hear well enough…
Þ If you’re victim happens to be old, slow, etc… then it’s too bad for you. Because you
caused the accident. But the condition of the victim is not relevant, you caused the
accident, you are liable.
Some people, because of their condition, are more predestined to suffer, but the condition of the
victim is not a causal act, your action is.
The Netherlands, 1950s boys were playing football in a street with few traffic. A diligent person
would not have been playing football. A guy who was walking his dog, was hit by the soccer ball in his
head. This person was born with a medical condition, were his skull remained soft after his birth.
Being hit by the ball killed the guy.
1. There is loss: death
2. Tortious act: playing football in a street where you couldn’t
3. Causality: without playing in the street, the guy wouldn’t have died
But the Dutch court, has a different view on causal relationship, but if the
Up till today courts wonder what the true response, the right response is. The professor thinks the
Belgian, French, German, systems is better because it makes people more responsible for their
action, you are more careful about how you behave. People are the ones who bear the burden
should be held accountable because they are; at least somehow, to blame.
Law is relative, how judges interpret the law depends from country to country.
Essence of Art. 1382 C.C
“Any act whatever of man, which causes damage to another, obliges the one by whose fault it
occurred, to compensate it.
1. Ban on causing loss to others through tortious acts
2. Duty to compensate for the loss
You have the right to claim damage, compensation, because there is this rule. You go to
court and base your claim on a specific act.
3. Causality
2
, Fanny Everard
BBA I – Public Law
Link between law in objective and subjective sense
Two sides of the same medal
THE LAW – The legal system – Objective
THE RIGHT – What you win out of the law -- Subjective
à It is a very fundamental thing between having the right to do something, you can claim and what
the law states.
Relevance of this distinction?
Subjective litigation
Asking a judge to be compensated for an act based on a certain provision/ article.
Objective litigation
If you are held liable for your acts, and it is contestable, why hire a lawyer?
Þ You can challenge the law/ the rule itself
Challenging the objective rule itself à Example: Ban on immigration, you can argue that
you are not subject to this ban because of this and this reason. (subjective)
IMAGINE YOU CANNOT ARGUE THAT YOU AREN’T SUBJECT à then there is just one thing
to do: you have to argue that the legislation itself is unfair, unconstitutional, breaching
higher legislation, etc… if it is the case, it should not be there à Legislation should be
abolished
Most fundamental idea of our legal system – it has to do with the type of litigation (see above)
You want to change the RULES themselves –
If you go see a judge to claim my right to be compensated (subjectively sense) and the judge should
give you compensation because there is a rule; if somebody doesn’t respect his contract, and this
leads to damage – there is an article that states objectively that you are entitled to that
compensation.
Asking what you want is not enough, you need to claim the right based on a legal objective
rule.
The law (objective sense) – definition and decisive features
Working definition
"Objectively law is the set of mandatory rules for the outward behaviour of the persons that are
enforced by the authorities”
There are rules in the system which come with a strict liability (they are quite severe) – as soon as
the result is not achieved, you are held liable.
How to distinguish both?
If the result is uncertain, if the creditor is actively involved, and if you accepted any risks. As soon as
those questions are answered with no, it is a care of duty of care, because people cannot be held
accountable for the damage.
If you need to argue that a person is liable, in a case of strict liability, its easy: person promised to do
something, and hasn’t, then the other party is immediately held accountable. In the case of duties of
care, the one who enacted the action has to be proven to be guilty.
3
, Fanny Everard
BBA I – Public Law
1. Law is all about mandatory rule (obligations & prohibitions)
¾ Law is about behaviour that can deviate, but shouldn’t deviate
¾ What does the law oblige to?
¾
a. Rules oblige to achieve a certain result or impose a duty of care
Example: paying your taxes: in this instance, you are not able to argue against it (strict liability)
Rules of duty of care – the fact that you did not act, as consciously as a bonus pater familias
(art. 1382) Your actions were not up to standard
b. How to distinguish both?
Case law clarified the notion: Uncertain nature of the result = will diligence automatically lead to the
result? Is the creditor actively involved? Did the creditor accept any risk?
Importance of the distinction?: Burden of proof, assumed fault of debtor if result has not been
achieved (Strict liability) – Creditor needs to proof negligence (duty of care)
2. Legal rules concern outward human behaviour: your thoughts are free, if you think of what you
want to do to your neighbour, it’s ok for the law, morally not, but for the law yes. As long as you
don’t ACT wrongfully, the law doesn’t care. (The laws do not consider animals anymore)
3. Legal rules are general and impersonal the legal system concerns rules that are general and
impersonal because otherwise it would lead to unfairness, arbitrariness.
Sometimes, people are not in the scope of the legal rule.
Some rules are directed towards specific civilians: the governmental decision to grant a
license to serve alcohol, is personal, doesn’t apply to other business, civilians. These are not
rules though, these are individual decisions à They can be challenged, imagine I asked a
permission to serve alcohol, and the request is denied. A lot of work concerns challenging
legislation coming from public authorities and rules. à The procedure to challenge individual
decision are done in a different way than rules.
Example of individual decisions:
- Not being granted a passport, citizenship
- Building permits
There is an unlimited number of applications (general)
4. Legal rules are enforced by the authorities
The law is enforced and enacted by the public authority. Most of the rules are not LEGAL rules
- Moral rules – principles you consider important in your own life
Ex. Lying to your parents: the sanction is regret
- Religious rules – if according to your belief, you should act a certain way and you
break it, it will be sanctioned
Ex. Not eating certain type of meat: the sanction can be in the after-life
- Social conventions – ex. Rules in school: you cannot eat in this classroom
Washing yourself because there will be sanctions: you won’t have friends
Showing up at a meeting
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