Private law

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Private law is that part of a legal system that governs interactions between individual persons. It is distinguished from public law, which deals with relationships between both natural and artificial persons (i.e., organizations) and the state, including regulatory statutes, penal law and other law that affects the public order. In general terms, private law involves interactions between private individuals, whereas public law involves interrelations between the state and the general population. In legal systems of the civil law tradition, it is that part of the jus commune that involves relationships between individuals, such as the law of contracts and torts [1] (as it is called in the common law tradition), and the law of obligations (as it is called in the civil law tradition).

Contents

Concept

One of the five capital lawyers in Roman law, Domitius Ulpianus, (170–223) – who differentiated ius publicum from ius privatum – the European, more exactly the continental law, philosophers and thinkers want(ed) to put each branch of law into this dichotomy: Public and Private Law. [2] "huius studdii duæ sunt positiones: publicum et privatum. Publicum ius est, quod statum rei Romanæ spectat, privatum, quod ad singulorum utilitatem; sunt enim quædam publice utila, quædam privatim". (Public law is that which concerns the Roman state, private law is concerned with the interests of citizens.)

In the modern era, Charles-Louis Montesquieu (1689–1755) amplified supremely this distinction: International (law of nations), Public (politic law) and Private (civil law) Law, in his major work: (On) The Spirit of the Law (1748). "Considered as inhabitants of so great a planet, which necessarily contains a variety of nations, they have laws relating to their mutual intercourse, which is what we call the law of nations. As members of a society that must be properly supported, they have laws relating to the governors and the governed, and this we distinguish by the name of politic law. They have also another sort of law, as they stand in relation to each other; by which is understood the civil law."

Private law in common law jurisdictions

The concept of private law in common law countries is a little broader, in that it also encompasses private relationships between governments and private individuals or other entities. That is, relationships between governments and individuals based on the law of contract or torts are governed by private law, and are not considered to be within the scope of public law.

European Union law

The European Commission and the European Council have stated a desire to achieve greater approximation of private law across its (now) 27 member states of the European Union, including within the fields of contract law, property law and family law. In regard to contract law, it the Commission and Council have argued that there are problems resulting from divergences in this field of law across the EU, and in regard to family law, the Council suggests that this field is "a possible subject for a discussion on ... approximation". [3]

Areas of private law

See also

Related Research Articles

The following outline is provided as an overview of and introduction to law:

<span class="mw-page-title-main">Roman law</span> Legal system of Ancient Rome (c. 449 BC – AD 529)

Roman law is the legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables, to the Corpus Juris Civilis ordered by Eastern Roman emperor Justinian I. Roman law forms the basic framework for civil law, the most widely used legal system today, and the terms are sometimes used synonymously. The historical importance of Roman law is reflected by the continued use of Latin legal terminology in many legal systems influenced by it, including common law.

A tort is a civil wrong, other than breach of contract, that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable by the state. While criminal law aims to punish individuals who commit crimes, tort law aims to compensate individuals who suffer harm as a result of the actions of others. Some wrongful acts, such as assault and battery, can result in both a civil lawsuit and a criminal prosecution in countries where the civil and criminal legal systems are separate. Tort law may also be contrasted with contract law, which provides civil remedies after breach of a duty that arises from a contract. Obligations in both tort and criminal law are more fundamental and are imposed regardless of whether the parties have a contract.

Public law is the part of law that governs relations and affairs between legal persons and a government, between different institutions within a state, between different branches of governments, as well as relationships between persons that are of direct concern to society. Public law comprises constitutional law, administrative law, tax law and criminal law, as well as all procedural law. Laws concerning relationships between individuals belong to private law.

<span class="mw-page-title-main">Law of India</span> Legal system of India

The legal system of India consists of civil law, common law, customary law, religious law and corporate law within the legal framework inherited from the colonial era and various legislation first introduced by the British are still in effect in modified forms today. Since the drafting of the Indian Constitution, Indian laws also adhere to the United Nations guidelines on human rights law and the environmental law. Personal law is fairly complex, with each religion adhering to its own specific laws. In most states, registering of marriages and divorces is not compulsory. Separate laws govern Hindus including Sikhs, Jains and Buddhist, Muslims, Christians, and followers of other religions. The exception to this rule is in the state of Goa, where a uniform civil code is in place, in which all religions have a common law regarding marriages, divorces, and adoption. On February 7, 2024, the Indian state of Uttarakhand also incorporated a uniform civil code. In the first major reformist judgment for the 2010s, the Supreme Court of India banned the Islamic practice of "Triple Talaq". The landmark Supreme Court of India judgment was welcomed by women's rights activists across India.

The ius gentium or jus gentium is a concept of international law within the ancient Roman legal system and Western law traditions based on or influenced by it. The ius gentium is not a body of statute law nor a legal code, but rather customary law thought to be held in common by all gentes in "reasoned compliance with standards of international conduct".

<span class="mw-page-title-main">Canadian tort law</span> Aspect of Canadian law

Canadian tort law is composed of two parallel systems: a common law framework outside Québec and a civil law framework within Québec, making the law system is bijural, as it is used throughout Canadian provinces except for Québec, which uses private law. In nine of Canada's ten provinces and three territories, tort law originally derives that of England and Wales but has developed distinctly since Canadian Confederation in 1867 and has been influenced by jurisprudence in other common law jurisdictions. As most aspects of tort law in Canada are the subject of provincial jurisdiction under the Canadian Constitution, tort law varies even between the country's common law provinces and territories.

Sources of law are the origins of laws, the binding rules that enable any state to govern its territory. The terminology was already used in Rome by Cicero as a metaphor referring to the "fountain" of law. Technically, anything that can create, change, or cancel any right or law is considered a source of law.

The European civil code (ECC) is a proposed harmonisation of private law across the European Union.

<i>Ius</i> Rights to citizenship virtue in ancient Rome

Ius or Jus in ancient Rome was a right to which a citizen (civis) was entitled by virtue of his citizenship (civitas). The iura were specified by laws, so ius sometimes meant law. As one went to the law courts to sue for one's rights, ius also meant justice and the place where justice was sought.

Ius publicum is Latin for public law. Public law regulated the relationships of the government to its citizens, including taxation, while ius privatum, based upon property and contract, concerned relations between individuals. The public/private law dichotomy is a structural core of Roman law and all modern western legal systems. Public law will only include some areas of private law close to the end of the Roman state.

Ius privatum is Latin for private law. Contrasted with ius publicum, ius privatum regulated the relations between individuals. In Roman law this included personal, property and civil law. Judicial proceeding was a private process. Criminal law was also considered private matters, except where the crimes were particularly severe.

The following outline is provided as an overview of and introduction to tort law in common law jurisdictions:

<span class="mw-page-title-main">Law</span> System of rules and guidelines, generally backed by governmental authority

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<span class="mw-page-title-main">Contract</span> Legally binding document establishing rights and duties between parties

A contract is an agreement that specifies certain legally enforceable rights and obligations pertaining to two or more parties. A contract typically involves consent to transfer of goods, services, money, or promise to transfer any of those at a future date. The activities and intentions of the parties entering into a contract may be referred to as contracting. In the event of a breach of contract, the injured party may seek judicial remedies such as damages or equitable remedies such as specific performance or rescission. A binding agreement between actors in international law is known as a treaty.

<span class="mw-page-title-main">Law of Italy</span>

The law of Italy is the system of law across the Italian Republic. The Italian legal system has a plurality of sources of production. These are arranged in a hierarchical scale, under which the rule of a lower source cannot conflict with the rule of an upper source.

Civil law – a branch of the law. In common law countries such as England, Wales, and the United States, the term refers to non-criminal law. The law relating to civil wrongs and quasi-contracts is part of the civil law. The law of property is embraced by civil law. Civil law can, like criminal law, be divided into substantive law and procedural law. The rights and duties of individuals amongst themselves is the primary concern of civil law. It is often suggested that civil proceedings are taken for the purpose of obtaining compensation for injury, and may thus be distinguished from criminal proceedings, whose purpose is to inflict punishment. However, exemplary or punitive damages may be awarded in civil proceedings.

Jurisdictional dualism in France is the separation of the French court system into two separate divisions, or "ordres", as they are called in French: the ordinary courts, and the administrative courts. The ordinary courts, also known as the judiciary order, handle criminal and civil cases, while the administrative courts handle disputes between individuals and the government. This dual system allows for a clear separation of powers and specialized handling of cases related to the actions of the government. The administrative courts are headed by the Council of State, and the ordinary courts by the Court of Cassation for judiciary law.

The French code of criminal procedure is the codification of French criminal procedure, "the set of legal rules in France that govern the State's response to offenses and offenders". It guides the behavior of police, prosecutors, and judges in dealing with a possible crime. The current code was established in 1958 and replaced the code of 1808 created under Napoleon.

References

  1. Mattei, Ugo; Bussani, Mauro (18 May 2010). "The Project - Delivered at the first general meeting on July 6, 1995 - The Trento Common Core Project". The Common Core of European Private Law. Turin, Italy: Common Core Organizing Secretariat, The International University College of Turin . Retrieved 8 September 2011.
  2. Vértesy, László (2007). "The Place and Theory of Banking Law - Or Arising of a New Branch of Law: Law of Financial Industries". Collega. 2-3. XI. SSRN   3198092.
  3. EUR-Lex, Communication from the Commission to the European Parliament and the Council: A More Coherent European Contract Law - An Action Plan, 2003/C 63/01, published 15 March 2003, accessed 16 September 2023