Private law & Public law (1 of 2 & both are U) = Commercial law --------------------------------------------------------------------------------------------------- Private law -is that part of a civil law legal system which is part of the jus commune that involves relationships between individuals, such as the law of contracts or torts[1] (as it is called in the common law), and the law of obligations (as it is called in civil legal systems). It is to be distinguished from public law, which deals with relationships between both natural and artificial persons (i.e., organizations) and the state, including regulatory statutes, penal law and other law that affects the public order. In general terms, private law involves interactions between private citizens, whereas public law involves interrelations between the state and the general population. --------------------------------------------------------------------------------------------------- Public law -(lat. ius publicum) is that part of law which governs relationships between individuals and the government, and those relationships between individuals which are of direct concern to the society.[1] Public law comprises constitutional law, administrative law, tax law and criminal law,[1] as well as all procedural law. In public law, mandatory rules (not optional) prevail. Laws concerning relationships between individuals belong to private law. The relationships public law governs are asymmetric and unequal – government bodies (central or local) can make decisions about the rights of individuals. However, as a consequence of the rule of law doctrine, authorities may only act within the law (secundum et intra legem). The government must obey the law. For example, a citizen unhappy with a decision of an administrative authority can ask a court for judicial review. Rights, too, can be divided into private rights and public rights. A paragon of a public right is the right to welfare benefits – only a natural person can claim such payments, and they are awarded through an administrative decision out of the government budget. The distinction between public law and private law dates back to Roman law. It has been picked up in the countries of civil law tradition at the beginning of the 19th century, but since then spread to common law countries, too. The borderline between public law and private law is not always clear in particular cases, giving rise to attempts of theoretical understanding of its basis --------------------------------------------------------------------------------------------------- Commercial law Commercial law, also known as business law, is the body of law that applies to the rights, relations, and conduct of persons and businesses engaged in commerce, merchandising, trade, and sales.[1] It is often considered to be a branch of civil law and deals with issues of both private law and public law. Commercial law includes within its compass such titles as principal and agent; carriage by land and sea; merchant shipping; guarantee; marine, fire, life, and accident insurance; bills of exchange and partnership. It can also be understood to regulate corporate contracts, hiring practices, and the manufacture and sales of consumer goods. Many countries have adopted civil codes that contain comprehensive statements of their commercial law. In the United States, commercial law is the province of both the United States Congress, under its power to regulate interstate commerce, and the states, under their police power. Efforts have been made to create a unified body of commercial law in the United States; the most successful of these attempts has resulted in the general adoption of the Uniform Commercial Code, which has been adopted in all 50 states (with some modification by state legislatures), the District of Columbia, and the U.S. territories. Various regulatory schemes control how commerce is conducted, particularly vis-a-vis employees and customers. Privacy laws, safety laws (e.g., the Occupational Safety and Health Act in the United States), and food and drug laws are some examples. --------------------------------------------------------------------------------------------------- Outline of commercial law The following outline is provided as an overview of and topical guide to commercial law: Commercial law – body of law that governs business and commercial transactions. It is often considered to be a branch of civil law and deals with issues of both private law and public law. It is also called business law. --------------------------------------------------------------------------------------------------- Civil law (common law) In England and Wales, civil law means non-criminal law.[1] The law relating to civil wrongs and quasi-contracts is part of the civil law.[2] Civil law can be divided into substantive law and procedural law.[citation needed] Civil law is the branch of law dealing with disputes between individuals or organizations, in which compensation may be awarded to the victim. For instance, if a car crash victim claims damages against the driver for loss or injury sustained in an accident, this will be a civil law case.[3] Civil law differs from criminal law, which emphasises more upon punishment than on dispute resolution. --------------------------------------------------------------------------------------------------- Quasi-contract A quasi-contract (or implied-in-law contract or constructive contract) is a fictional contract created by courts for equitable, not contractual, purposes. A quasi-contract is not an actual contract, but is a legal substitute formed to impose equity between two parties. The concept of a quasi contract is that of a contract that should have been formed, even though in actuality it was not. It is used when a court finds it appropriate to create an obligation upon a non-contracting party to avoid injustice and to ensure fairness. It is invoked in circumstances and is connected with the concept of restitution. Generally the existence of an actual or implied-in-fact contract is required for the defendant to be liable for services rendered, and a person who provides a service uninvited is an officious intermeddler who is not entitled to compensation. Would-be plaintiffs cannot deliver unordered goods or services and demand payment for the benefit....A corollary is that one who does have an enforceable contract is bound by the contracts terms: subject to a few controversial exceptions, she cannot sue for restitution of the value of benefits conferred... [1] However, in many jurisdictions under certain circumstances plaintiffs may be entitled to restitution under quasi-contract (as in the example of Oklahoma below). They are used as remedies for unjust enrichment, management of anothers affairs, or restitution of the undue. Quasi-contracts are defined to be the lawful and purely voluntary acts of a man, from which there results any obligation whatever to a third person, and sometime a reciprocal obligation between the parties.[citation needed] Quasi-contracts are stipulated in the 3rd Book, Title IV, Chapter 1 of the French Civil Code (articles 1371-1381).[2] One authority defines a quasi-contract as A licit and voluntary act from which derives obligations subject to a regime close to the contractual one imposing on the author of the act and a third party, not-bound by a contract.[3] -------------------------------------------------------------------------------------------------- Legal fiction A legal fiction is a fact assumed or created by courts[1] which is then used in order to apply a legal rule which was not necessarily designed to be used in that way. For example, the rules of the United Kingdom Houses of Parliament specify that a Member of Parliament cannot resign from office, but since the law also states that a Member of Parliament who is appointed to a paid office of the Crown must either step down or stand for re-election, the effect of a resignation can be accomplished by appointment to such an office. The second rule is used to circumvent the first rule. Legal fictions may be counterintuitive in the sense that one might not normally view a certain fact or idea as established in the course of everyday life, but they are preserved to advance public policy and preserve the rights of certain individuals and institutions. A common example of a legal fiction is a corporation, which is regarded in many jurisdictions as a person who has many of the same legal rights and responsibilities as a natural person. Legal fictions are mostly encountered under common law systems. The term legal fiction is not usually used in a pejorative way, and has been likened to scaffolding around a building under construction.[2] -------------------------------------------------------------------------------------------------- Substantive law Substantive law is the statutory or written law that defines rights and duties, such as crimes and punishments (in the criminal law), civil rights and responsibilities in civil law. It is codified in legislated statutes or can be enacted through the initiative process. Substantive law stands in contrast to procedural law, which is the machinery for enforcing those rights and duties. Procedural law comprises the rules by which a court hears and determines what happens in civil or criminal proceedings, as well as the method and means by which substantive law is made and administered. However, the way to this clear differentiation between substantive law and, serving the substantive law, procedural law has been long, since in the Roman civil procedure the actio included both substantive and procedural elements (see procedural law) --------------------------------------------------------------------------------------------------- Procedural law Procedural law or adjective law comprises the rules by which a court hears and determines what happens in civil lawsuit, criminal or administrative proceedings. The rules are designed to ensure a fair and consistent application of due process (in the U.S.) or fundamental justice (in other common law countries) to all cases that come before a court. Substantive law, which refers to the actual claims and defenses whose validity is tested through the procedures of procedural law, is different from procedural law. In context of procedural law; procedural rights may also refer not exhaustively to rights to Information, rights to justice, rights to participation which those rights encompassing, general Civil and Political rights. In environmental law, these procedural Rights have been reflected within the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters known as the Aarhus Convention (1998). --------------------------------------------------------------------------------------------------- Statute A statute is a formal written enactment of a legislative authority that governs a state, city, or county.[1] Typically, statutes command or prohibit something, or declare policy.[1] The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations issued by government agencies.[1] Statutes are sometimes referred to as legislation or black letter law. As a source of law, statutes are considered primary authority (as opposed to secondary authority). Ideally all statutes must be in harmony with the fundamental law of the land (constitutional). This word is used in contradistinction to the common law. Statutes acquire their force from the time of their passage, however unless otherwise provided. Statutes are of several kinds; namely, Public or private. Declaratory or remedial. Temporary or perpetual. A temporary statute is one which is limited in its duration at the time of its enactment. It continues in force until the time of its limitation has expired, unless sooner repealed. A perpetual statute is one for the continuance of which there is no limited time, although it may not be expressly declared to be so. If, however, a statute which did not itself contain any limitation is to be governed by another which is temporary only, the former will also be temporary and dependent upon the existence of the latter.[2] Before a statute becomes law in some countries, it must be agreed upon by the highest executive in the government, and finally published as part of a code. In many countries, statutes are organized in topical arrangements (or codified) within publications called codes, such as the United States Code. In many nations statutory law is distinguished from and subordinate to constitutional law.[citation needed]
Posted on: Thu, 21 Nov 2013 22:45:24 +0000
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