Unit COMPARATIVE PRIVATE LAW
- Course
- Law
- Study-unit Code
- 05A80009
- Location
- PERUGIA
- Curriculum
- In all curricula
- Teacher
- Giovanni Marini
- Teachers
-
- Giovanni Marini
- Hours
- 63 ore - Giovanni Marini
- CFU
- 9
- Course Regulation
- Coorte 2017
- Offered
- 2019/20
- Learning activities
- Caratterizzante
- Area
- Comparatistico
- Academic discipline
- IUS/02
- Type of study-unit
- Opzionale (Optional)
- Type of learning activities
- Attività formativa monodisciplinare
- Language of instruction
- Italian
- Contents
- The course aims to offer students, in the first place, the indispensable 'technical' detailed information on doctrinal styles, operating rules, arguments and conceptual schemes in the main experiences of Western and non-Western legal tradition; secondly, it aims to offer a vision of the transnational and dynamic nature of most legal discourses.
- Reference texts
- AT THE CHOICE OF THE STUDENT, one of the following texts:
1a) V. VARANO - V. BARSOTTI, La tradizione giuridica occidentale, volume I, Testo e materiali per un confronto civil law common law, IV ed., Torino, Giappichelli 2010; (with the exclusion of chapter IV, The legal tradition of Nordic countries and appendices of each chapter)
OR
1b) A. GUARNERI, Lineamenti di diritto comparato, VII ed., CEDAM, 2016;
For attending students, in any case, ALL materials and readings which, together with the case law, will be distributed during the course and made available on the faculty website will form an integral part of the program.
STUDENTI NON FREQUENTANTI
R. SACCO P.ROSSI, Introduzione al diritto comparato, VII ed., Torino 2019, Utet VOLUME INTERO (p.233)
AND
A. GAMBARO - R. SACCO, Sistemi giuridici comparati, IV ed., Torino 2018,
Utet VOLUME INTERO
Non-attending students we have to prepare also:
M. R. MARELLA, G. MARINI, Di cosa parliamo quando parliamo di famiglia. Le relazioni familiari nella globalizzazione del diritto, Bari-Roma, Laterza, 2014. - Educational objectives
- The course aims, based on the most recent methodological acquisitions of comparative analysis, to develop:
- the ability to orient oneself in multilevel systems, that is, characterized by the pluralism of orders, rules and interpretations;
- critical knowledge of the various taxonomies of private law in order to evaluate their historical relativity and the objectives that have been reached in other systems with their use;
- the way in which similarities and differences have been outlined and what the strategies and ideological projects of such legal discourses can be. - Prerequisites
- For the study of comparative private law it is essential to a sound understanding of the institutions of the Italian private law.
- Teaching methods
- frontal classes; seminars; tests
- Other information
- frequency is not mandatory but strongly suggested
- Learning verification modality
- The final test consists of an oral exam, aimed at assessing, alongside the knowledge of the legal data, the logical-legal skills and the technique of the legal language. The duration of the exam varies according to the progress of the questions.
- Extended program
- The aim of the course is to study those elements, explicit and implicit, which characterize the various legal traditions (operational rules, conceptual structures, relevant classifications, argumentative techniques, representations of identities), their diffusion on a global scale, the methods of their circulation and their redistributive effects with respect to individuals and groups in the various geographical areas.
The course is structured in such a way as to complement the classic forms of so-called frontal teaching, a more seminar approach, during which cases and materials will be presented, analyzed and discussed in order to bring students closer to styles and languages ¿¿typical of different legal experiences, to encourage discussion of the various aspects of the course, both between teacher and students, both among the students themselves, to reason on the use of the concepts and legal instruments presented and to stimulate the problematization of cases and materials by students.
The course will be dedicated to individual institutions and problems in the development of different legal traditions.
(A) The first phase will deepen the formation and diffusion of classical legal thought (CLT). The characters of the new order and its pillars: ownership and contract. The diffusion of the model beyond European borders: its reception in the colonies.
Common law isolation? Forms of actions and Roman formular system. The legacy of the writs system in the configuration of rules and doctrines in private law. The construction of the theory of being decisis and the use of the previous one: the construction of civil liability, the atypical nature of the offense and non-pecuniary damage. The torts. The Donoghue case v. Stevenson. The 'after Donoghue': the construction of the English judges to limit the application of the tort of negligence. The jurisprudential creations of pure economicloss and shock damage. Style and role of common law jurisprudence: the continuous search for balance between the resolution of the single case and the search for general principles. The "Italian" precedent: the Meroni case and the 500/1999 judgment. On the reception of the classic model in common law. The channels of penetration: the jurisdiction of Equity, the great judges (Mansfield, Holt) and Jurisprudence.
Style and role of French jurisprudence: the evolution of civil liability, from guilt to strict liability. Continuity and discontinuity with the German model and the BGB. Savigny and the debate on codification. German legal science continues and perfects the French model. The system and the contrast between public and private law. The diffusion of dogmatics and classical thought in the colonies.
The circulation of the classic method in America: Langdell and the creation of the "casuistic" method. After Langdell in the American Law Schools. The construction of a contract theory. Cause and consideration. (1) Consideration in the UK and U.S. The historical origin of the English consideration: from the remedy to the contractual requirement. (2) Consideration in the United States of America: case law from Langdell to Cardozo. The consideration will be analyzed from its elaboration in the formalist context to the subsequent evolution in the realistic approach.
The constitutional dimension of private law: classical contract theory and the American constitution: contract and contractual freedom before the Supreme Court, the Lochner case and the lochner era.
(B) The second phase: the diffusion of sociological and realistic thinking (SLT). Saleilles and Gèny. The influence of Jhering and the jurisprudence of interests. The inspiring motives of criticism: the social instance and anti-formalism. Some "news", in particular the abuse of the law, the contractual balance, the circumstances that have arisen and the special legislation. American sociological jurisprudence and legal realism. O. W. Holmes, the precursor. Pound, Llewellyn, Cohen and Franck. Judge Cardozo. The New Deal and control of the economy through law. Due process, Restaments and Uniform Commercial Code. Standards vs. rule in the contract: promissoryestoppel and unconscionability.
(C) Penetration of the second globalization. The construction of the new private law in the ex-colonies: tradition and modernization. The injury contracted as an example of how the social body combines with local traditions. A) The Egyptian civil code and its diffusion in the Islamic world. The great rules of sharia and the secularization of private law: controls on contracts (ordrepublique) and abuse of law. B) The Latin American legal systems. Characteristics of the different civil codifications. Continuity and discontinuity with European models. C) The diffusion in Eastern Europe, Eastern Asia and Africa.
(D) The creation of a western legal tradition and the relationships with other traditions. Law of property and situations of belonging: the irreducibility (apparent) of the differences. The feudal origins of the law of property and the doctrine of the estates. The splitting of the property according to the utilities and its breakdown over time. The (limited) possibility of breaking down the property into Italian law. I. The distinction between ownership and possession between civil law and common law.ll transfer of ownership in civil law and common law. Le New properties: from Reich's conception to the judgments of the Federal Supreme Court U.S.A. New properties as a legal model that circulates from the United States to Europe, between the second and third globalization. The trust: structure, origins and remedies. The functional equivalents of the trust and the 1985 Hague Convention. Some applications of the trust in Italian jurisprudence.
The globalization of fundamental rights: human rights and privacy. Consumer protection and the market. The general clauses in contemporary legal thought: the principle of dignity. The harmonization process of European law. The consolidation of a western legal tradition and the relationships with other traditions.
A brief final introduction to the study of some approaches to law developed in the United States: Law and.