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

Course Regulation

Coorte 2018

Offered

2020/21

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

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

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.

Learning verification modality

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 economic loss 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) The third globalization: the constitutionalization of private law, the fragmentation of the subject and the protection of identity. The transformation of private law institutions into neoliberal law. In particular, the law of property and the situations of belonging, the dematerialisation and the breakdown of property. Ownership and possession. The new properties. The trust and its equivalents set. Balancing of interests and principle of proportionality.