Prof. Avv. Bruno Tassone
Docente di Principles of Civil Law
LUISS Guido Carli
Prof. Avv. Bruno Tassone
Docente di Principles of Civil Law
LUISS Guido Carli
The main purposes of the course are the following:
Improve the awareness of the problems related to the use of legal English terminology;
Acquire the basic tools and methods of the legal comparison;
Analyze the main principles of contract law in common law systems, focusing on the U.S. one.
For the said purposes, at least the following issues of U.S. Law have to be taken into account:
The binding force of precedents;
The interaction between state and federal law;
The (related) structure of the Courts’ system.
One of the main differences between Civil and Common Law countries is traditionally seen in the stare decisis: Courts cannot decide a dispute applying a rule different from the one stated by previous decisions for the “same” case(s).
Stare decisis is mandatory for courts located at the same level and the overruling – that is the express change of a precedent - is relatively exceptional (even though U.S. judges feel generally speaking less bound than their English colleagues and there is an ongoing debate about the real degree of compliance with the said duty).
To avoid the implementation of a rule deemed obsolete, courts often re-define its rationale (and sphere of application) or use a distinguishing approach when dealing with a new case.
Furthermore, the stare decisis is “horizontal” or “vertical” (among courts of the same or a different level): while the latter is applied by all judges, the former is mainly followed by intermediate courts deciding on matters of law (courts of appeals).
On the contrary, the U.S. Supreme Court is not bound by its precedents and also trial courts tend not to follow their previous decisions.
A more modern approach underline that Civil Law and Common Law systems are not so distant as to the binding force of precedents (and the duty is rather similar to a well-established custom).
In the former, “precedents” are becoming more and more important (see the new art. 118 disp. att. c.p.c. “La motivazione della sentenza […] consiste nella succinta esposizione dei fatti rilevanti della causa e delle ragioni giuridiche della decisione, anche con riferimento a precedenti conformi”).
In the latter, statues are nowadays playing a more relevant role and the idea of a law which is totally “judge-made” does not stand anymore.
Nevertheless, important differences still exist:
Courts and lawyers develop their legal reasoning looking for precedents - on a case-by-case basis - and not browsing into the codes and statutes;
If the solution to a case is sought through the precedents, judges are “oracles” of the old tradition and wisdom of the land (common law = unwritten law). Therefore, they have a great power and legitimacy to “state” the law as policy makers accountable for “collective decisions” independent from (temporary) parliamentary majorities (as the judicial review doctrine shows).
The said role of courts is related to the way judges are recruited: they are usually appointed by political bodies or elected by local communities, being requested to give “sound” answers to social problems and not simply to play a “bureaucratic” function in the application of the law;
Therefore, Common Law systems are more flexible and open to change than Civil Law ones, as every legal doctrine – whatever its age - is constantly tested and re-shaped (then being abandoned when a new one, deemed to be suitable, is found).
Pursuant to the X Amendment of the U.S. Constitution “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”.
The U.S. Supreme Court has interpreted the said (broad) clause so as to enlarge from time to time the sphere of federal law the Houses could enact.
Almost all private law is state law – including contract law – even though there are certain areas disciplined by federal law (e.g., for our purposes: maritime law, intellectual property and financial instruments).
Federal courts have jurisdiction over “federal questions” or in cases involving citizens of different States, so that they also deal with state law, contributing to its formation provided that they defer to state decisions if the point has been decided in state courts.
Therefore, while there is a state common law (a judge-made law), substantial room for a “federal common law” exists only in areas not covered by state law.
On the other hand, federal jurisdiction is exclusive only when so established and many legal relationships are disciplined both by state an federal law, so that also state courts might be called to apply federal law.
The organization of the system of courts shows a great variety from State to State.
Usually there are trial courts – solving both matters of fact and matters of law – and appellate courts deciding just the latter.
Matters of fact are left to the jury, which is not always compulsory or present at the state level.
Special courts are created to deal with the small claims litigation or with specific subjects (taxation, patent law, military law, etc.).
A the apex of the system there is a supreme court, which in certain States discretionally accepts the cases coming from lower courts.
Federal Courts are divided into 95 District Courts and 13 Courts of Appeals (located on 11 state circuits plus 1 for the District of Columbia and 1 for the Federal Circuit).
The U.S. Supreme Court is at the apex of the federal system of courts and then it does not have jurisdiction over all the matters covered by state courts.
Nevertheless, the Supreme Court has the power to reverse a decision issued by a state supreme court when the latter violates a principle of federal law or the Constitution.
The Supreme Court discretionally decides which case to accept, giving rise to periods of judicial activism and judicial self-restraint.
The hierarchy of common law sources - valid for contract law as for other areas of the system – is formally the following:
The Constitution (Art. I, sec. X: “No State shall […] pass any […] Law impairing the Obligation of Contracts”);
Statutes;
Statutory Instruments;
Case-law.
The relationship between statutes and case-law is still different than the one present in Civil Law countries: bills of the Parliament have often a special role with regard to the general rules developed in common law and judges (especially in the United States) enjoy a remarkable freedom in interpreting them according to the underlying policies (while English judges prefer a more literal construction).
Therefore, case-law is still a main source of contract law.
With the exception of Louisiana, there are no “civil codes” used to rationalize the U.S. case-law.
Apart from the works of law professors – who still teach the law in very general terms and departing from the details of the single jurisdiction - an important role is played by the “Restatements of the Law” published by the American Law Institute.
ALI is an organization made up of 4000 lawyers, judges, and law professors producing scholarly work to clarify, modernize and improve the law, working to achieve these goals from the beginning of XX Century.
Restatements are comprehensive works which expose each subject matter through sections drafted in a statute-style way (accompanied with comments and the quotation of scholarly works and cases).
Restatements distil the “black letter law” from cases to indicate a trend in common law and, occasionally, to recommend what a rule of law should be: in essence, they restate existing common law into a series of principles or rules.
E.g., pursuant to § 1 of the Restatement 2nd on Contracts “A contract is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty”.
The three volumes of the Restatement 2nd on Contracts of 1981 (revising the original version of 1932) cover:
the meaning of terms; formation of contracts – parties, capacity, mutual assent and consideration; the Statute of Frauds; mistake; misrepresentation, duress and undue influence;
unenforceability on grounds of public policy; the scope of contractual obligations; performance and non-performance; impracticability of performance and frustration of purpose; discharge by assent of alteration; joint and several promisors and promisees; contract beneficiaries;
Assignment, delegation and remedies.
ALI’s work has also lead (together with the National Conference of Commissioners on Uniform State Laws) to the Uniform Commercial Code, embodying a uniform discipline of commercial relations.
UCC first draft dates back from 1952 and after the revisions of 1958 and 1962 by 1966 all States had adopted it (with some modification to make it consistent with their domestic systems).
Article 2 is particularly important as contains the discipline of the sale of goods (while article 2A is devoted to the lease of goods).
UCC is mainly addressed to commercial transactions but the discipline of Article 2 also applies to the sale of movable goods between consumers, though some specific provisions are applicable only when at least one party is a “merchant” .
The said discipline is divided as follows:
Part 1. General Construction and Subject Matter
Part 2. Form, Formation and Readjustment of Contract
Part 3. General Obligation and Construction of Contract
Part 4. Title, Creditors and Good Faith Purchasers
Part 5. Performance
Part 6. Breach, Repudiation and Excuse
Part 7. Remedies
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