86415 - Comparative Private Law (Italian - Spanish Law Individual Study Plan)

Course Unit Page

  • Teacher Marina Timoteo

  • Credits 9

  • SSD IUS/02

  • Teaching Mode Traditional lectures

  • Language Italian

  • Campus of Bologna

  • Degree Programme Single cycle degree programme (LMCU) in Law (cod. 9232)

    Also valid for Single cycle degree programme (LMCU) in Law (cod. 9232)

  • Course Timetable from Sep 20, 2021 to Oct 25, 2021

SDGs

This teaching activity contributes to the achievement of the Sustainable Development Goals of the UN 2030 Agenda.

Quality education Peace, justice and strong institutions Partnerships for the goals

Academic Year 2021/2022

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 is divided into two modules of 30 and 30 hours.

The course program is organized as follows:

1 Introduction to law in historical and comparative perspective

1.1. Time and space in law; 1.2. Diversity in law; 1.3. The study of law in a relational perspective; 1.4 Introduction to grate legal systems.

2. The Common law tradition

2.A. The British Model

2.A.1. The origins of Common law: the writs system and the courts of Westminster; 2.A.2. The birth of Equity; 2.A.3. The formation of the English jurist; 2.A.4. The nineteenth-century reforms; 2.A.5 The binding precedent; 2.A.6. The sources of modern English law and the role of legislation.

2.B. The US Model

2.B.1. The circulation of the common law model: the origins of the US system; 2.B.2. The written Constitution and the organization of powers; 2.B.3. The role of the case law formant: the judicial review and the general federal common law; 2.B.4. The role of the doctrine and of the Universities; 2.B.5. The role of the legislative formant: the restatements and the UCC; 2.B.6. The complex system of sources of the law: federal law vs. state law.

3. The civil law tradition

3.1. The origins of the continental legal tradition: from ius commune to giusnaturalism; 3.2. The codifications of 1700.

4. The civil law tradition – The French Model

4.1. The formation of the French model; 4.2. The Code Civil of 1804: structure and style; 4.3. The implementation of the code by doctrine and case law: style and role; 4.4. The current structure

5. The civil law tradition – The German Model

5.1. The formation of the German model; 5.2. The historical school of law and the study of pandect; 5.3. The 1900 code: the BGB; 5.4. The updating of the code by doctrine and case law; 5.5. The current structure.

6. Micro-comparison: the Contract

6.1. The contract in a comparative perspective: the foundation of the binding nature of contractual promises in common law and in civil law; 6.2. Cause and consideration; 6.3. Disability and vices of consent; 6.4. The contract and the transfer of ownership in common law and in civil law.

7. Micro-comparison: Tort law

7.1. Tort law in a comparative perspective: typicality vs. a-typicality; 7.2. Tort law in common law: from the writ of trespass to the tort of negligence; 7.3. Tort law in civil law: French model and German model.

8. Circulation of legal models and legal reforms in China

8.1. Contemporary Chinese law between tradition and transplant of Western legal models; 8.2. International development and cooperation in the process of modernizing Chinese law; 8.3. Chinese law in the era of globalization.

Readings/Bibliography

Students that attended the course

Marina Timoteo - Grammatiche del diritto. In dialogo con Paolo Grossi, Il Mulino, Bologna, 2020, pp. 1-134. 

Vincenzo Varano – Vittoria Barsotti, La tradizione giuridica occidentale, testo e materiali per un confronto civil law common law, seventh edition, Giappichelli, Torino, 2021, pp. 104 -200, 248-348.

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; 69-144; 155-174; 213-240.

Students not attending the course

Marina Timoteo - Grammatiche del diritto. In dialogo con Paolo Grossi, Il Mulino, Bologna, 2020, pp. 1-134.

Vincenzo Varano – Vittoria Barsotti, La tradizione giuridica occidentale, testo e materiali per un confronto civil law common law, seventh edition, Giappichelli, Torino, 2021, pp. 104 -200, 248-348.

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.


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. The teaching method amis at the involvement of the students and at the cooperative learning in class, combining the classic frontal lessons with the study and critical analysis of cases and writings that played a decisive role in the evolution of modern and contemporary legal systems.

The course is held by prof. Marina Timoteo and prof. Angela Carpi.

The lessons of the first semester of the accademic year 2021/2022 will be held in a mixed method, in presence and online, in order to allow students that are not able to be in class, to follow the course.

The intensity and continuity of participation to the course will be assessed by self-certification.

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, of which 7/8 on the introduction and classification of contemporary legal systems and 8/7 on private comparative law institutes, analysed in the course. 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, on both modules, which can not be object of separate examination.

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.

Thesis

For the purposes of assigning a Bachelor’s degree project in comparative private law, the knowledge of at least one foreign language is required. The level of the foreign language will be verified through a preliminary interview. Interested students are therefore invited to contact the teacher or Dr. Angela Carpi to agree on the date on which the colloquium is to be held.
Once the subject of the dissertation has been identified and approved by the teacher, the students will have to periodically inform the rapporteur on the state of progress of the work, according to a work program agreed upon. Once the thesis is completed and the teacher's permission is received, the students will be able to proceed with the secretarial delivery within institutionally established terms.

Where strictly necessary, the correlation request must be discussed and agreed with the teacher, who will eventually contact the chosen teacher for correlation.

Teaching tools

During the course, additional materials (ie, judicial decisions, academic writings and videos) will be made available for student. Moreover, experts will be invited to hold lectures.

Office hours

See the website of Marina Timoteo