00232 - Comparative Private Law (A-L)

Learning outcomes

The course introduces students to the knowledge of private law from a comparative perspective, encouraging the acquisition of a critical awareness of the strategic role that this perspective assumes in the contemporary legal context.

The aim of the course is to provide students with the basic methodological knowledge of comparative analysis, applied both to the Western Legal Tradition (and to the two major sub-traditions of common law and civil law) and to non-Western legal traditions (with specific focus on the Chinese experience). Particular attention is paid to the study of the similarities and differences in legal mentality, to the study of the phenomena of circulation of legal models between different legal systems and to the study of the interaction between legal formants - doctrine, case law and legislation in the first place - in defining the norms and the great classifications of private law sector.

The outcome of the course is the development of knowledge and work skills when operating with different rules and regulations, belonging both to the Western and non-Western Legal Traditions, as well as the development of skills that contribute to forming a legal scholar of international dimension.

Course contents

The course program is organized as follows:

1 Introduction to comparative law

- Comparative law as a science - The evolution of comparative law - Comparative methodology - The macro-comparison: the great legal systems of the world - The Western Legal Tradition.

2. The Common law tradition

The British Model

- The origins of Common law: the writs system and the courts of Westminster - The birth of Equity - The formation of the English jurist - The nineteenth-century reforms - The binding precedent -The sources of modern English law and the role of legislation.

The US Model

The circulation of the common law model: the origins of the US system - The written Constitution and the organization of powers - The role of the case law formant and the role of the legislative formant - The complex system of sources of the law: federal law vs. state law.

3. The civil law tradition

- The origins of the continental legal tradition: from ius commune to giusnaturalism - The codifications of 1700.

The civil law tradition – The French Model

The civil law tradition – The German Model

4. Micro-comparison: the Contract

- The contract in a comparative perspective: the foundation of the binding nature of contractual promises in common law and in civil law - Cause and consideration - Disability and vices of consent -The contract and the transfer of ownership in common law and in civil law.

5. Micro-comparison: Tort law

Tort law in a comparative perspective: typicality vs. a-typicality - Tort law in common law: from the writ of trespass to the tort of negligence - Tort law in civil law: French model and German model - Tort law in the Italian model - Punitive Damages

6. Circulation of legal models and legal reforms in China

 

 

It will provide an overview of:

• the topic of international contracts;
• arbitration;
• trust;
• banking guarantee;
• Economic Analysis of law.

Readings/Bibliography

Readings/Bibliography

Students that attended the course

1) Textbooks (written and oral exam)*

Vincenzo Varano – Vittoria Barsotti, La tradizione giuridica occidentale, vol. I, testo e materiali per un confronto civil law common law, sesta edizione, Giappichelli, Torino, 2018, pp. 108 -181, 250-348.

FRANCESCO GALGANO (ed.), Atlandte di diritto privato comparato, con la collaborazione di Franco Ferrari e Gianmaria Ajani, quinta edizione, Zanichelli, Bologna, 2011, pp. 33-54; 69-144; 155-174; 197-240; 245-254; 267-288.

2) In-depth analysis (only oral part of the exam)

MARINA TIMOTEO, La difesa di marchi e brevetti in Cina, Percorsi normativi in un sistema di transizione, Giappichelli, Torino, 2014, pp. 1- 116.

Students not attending the course

1) Textbooks (written and oral exam)*

Vincenzo Varano – Vittoria Barsotti, La tradizione giuridica occidentale, vol. I, testo e materiali per un confronto civil law common law, sesta edizione, Giappichelli, Torino, 2018, pp. 108 -181, 250-348.

FRANCESCO GALGANO (ed.), Atlante di Diritto Privato Comparato, con la collaborazione di Franco Ferrari e Gianmaria Ajani, quinta edizione, Zanichelli, Bologna, 2011, pp. 33-54; 69-174; 197-240; 245-254; 267-288.

2) In-depth analysis (only oral part of the exam)

MARINA TIMOTEO, La difesa di marchi e brevetti in Cina, Percorsi normativi in un sistema di transizione, Giappichelli, Torino, 2014, pp. 1- 126.

Supplement of Private comparative law (3CFU)*

The programme is the following:

1) The property regimes in family law

2) Introduction to the uniform law and the discipline of international sales;

3) The system of debt securities in civil and common law systems;

4) The industrial property

Textbook: FRANCESCO GALGANO (ed.), Atlante di Diritto Privato Comparato, con la collaborazione di Franco Ferrari e Gianmaria Ajani, quinta edizione, Zanichelli, Bologna, 2011, pp. 175-196; 245-288.

Those students that must integrate more or less than 3 credits, should, with reasonable notice, contact the professor or the assistants in order to devise an ad hoc program.

* Please note that students can not prepare the examination on textbooks' editions older than those indicated.

Please note that the exam registration must be made through the almaesami site at least one week before the day set for the exam. No entries will be made via email and outside the deadline.

Teaching methods

The course follows an interdisciplinary approach, aimed at the direct involvement of the students, combining the classic frontal lessons with the study and critical analysis of some case law

Assessment methods

The evaluation takes place only through the final exam, which ensures the acquisition of the required knowledge by conducting a written test, lasting 15 minutes without the help of notes or books, followed by an oral examination. Students must pass the written test in order to be admitted to sit for the oral exam.

The written test consists of 15 multiple choice questions. Each question will be worth 2 points. To be eligible to sit for the oral exam a minimum score of 18 points must be obtained in the written test. The written test has effect only for one oral examination. In the case of passing the written test, but not the oral exam, students will need to retake also the written test.

The oral examination consists of an interview with the teacher and the assistants of the teacher.

The oral examination is designed to appreciate the level of understanding and mastery of the comparative method in the study of private law topics, as well as the ability of active working with the fundamental rules of the different systems. The achievement by the student of an organic vision of the issues addressed, and in particular the ability to capture the dynamic aspects of private law topics, in a comparative perspective, gathering similarities and differences, influences and cohesion, will be evaluated with marks of excellence. The knowledge of the topics covered in the course that is mainly mnemonic and notional and that will lead to an oral colloquium not well supported by reasoning of synthesis and analysis of the issues, and the using an organic and correct language but not always appropriate, will lead to an average pass outcome; training gaps and / or inappropriate language, albeit in the context of a minimal knowledge of the exam material, will lead to just enough mark; training gaps, inappropriate language, lack of guidance within the texts, will be adversely evaluated.

In order to sit for the exam, registration through the electronic platform "Almaesami" is required, in compliance with mandatory deadlines (usually 7 days before the date set for the examination). Those who do not succeed with the enrolling by the due date, are required to report promptly (and in any event before the official closing of the registration lists) the problem to the school's secretary office. The professor, evaluated the problem, will decide about the admission to sit for the exam.

Once passed the written part of the examination, the student will necessarily proceed with a new registration for the oral part of the exam, always through Almaesami.

Registration via email messages and out of the terms, will not be accepted.

The course will be held in the first semester and therefore students who have chosen the course in the current year will be able to sit for the exam starting from the month of January.

Please note that the exam of Comparative Private Law can be taken only after passing the examinations of Constitutional Law and Private Law. No exceptions will be made.

Only students that are regularly enrolled, that payd all the due university taxes, that have already sitted the necessary exams will be able to sit for the examinations. Under no circumstances it will be possible to sit the exmination and proceed with the registration not simultaneousely.

Office hours

See the website of Paola Manes