You are on page 1of 3

CHAPTER 1 LAW AND SOCIETY Law is: - an instrument to organise the society - it establishes rules of conduct as to how individuals

have to act in their relations with others - regulates how the differences have to be solved. Legal rules arise from - the law - the custom - the general principles of law. The more complex a society gets the more complex its legal system is. High complexity-> special bodies of law->legal fields: Civil, Commercial, Tax law - Private Law: regulates legal relations among individuals in the same level (private activities undertaken by individuals) Civil law, Commercial Law - Public Law: regulates the organization of the State and the legal relations where the State acts in its sovereign capacity as the defender of legal order. Its justified by the need to protect the general interest of society. Tax law, Adm., criminal law PATRIMONIAL LAW AS A PART OF CIVIL LAW The Civil law is the part of the legal system made of norms and institutions that rule relations between individuals within the community. It is also called the general Private law because its the Private law that hasnt been assumed by a specialised field. It emerges from the French Revolution changing overtime pure individualism to common interests. This legal renewal comprises the person and its ability to: - hold and exercise legal rights - to acquire and enjoy rights and things - to undertake economic transactions - the familiar relationships, regulation of personal and patrimonial consequences of someones death The most intimate matters regarding the individual The core of Civil Patrimonial law or law of goods is constituted by: 1. Law of obligations: regulates economic relations b/n individuals, mainly credit rights: - obligations - contracts - quasi-contracts - civil or non-contractual liability 2. Law of things: regulates relations b/n individuals and goods, mainly real rights: - right of property - right on someone elses things - registry law

The Civil Patrimonial law is a unity and there are areas which are not clear if they pertain to the law of obligations or the law of things. The unification of Spain did not carry with it a total legal unification The Civil code did not derogate the Civil laws of the different territories Foral laws subsist and they are mainly concerned with family and succession law.

They can be preserved, modified and developed (even a whole Civil Code) Autonomous Communities: rule some fields as urbanism, consumer protection, interior market. Exclusive competence of the State: nationality, immigration, forms of matrimony The Civil Code is supplementary, its rules are applied to supplement deficiencies in matters governed by other laws. ECONOMIC PUBLIC ORDER Organizes the economic structure of the society: measures and legal rules that direct the economy, organising production and distribution of wealth. The economic public order is static and its due by the State but it follows several general legal principles (5): 1. Private property In the sense that economic goods can be attributed to the individuals and not to the State - One of the rights of all citizens, but has limitations due to its social function - The general interest of the community alongside the interest of proprietary Protection: - Spanish Constitution protects certain goods due to their importance for the social welfare and the general interest - To protect the natural resources public authorities control the rational use of all natural resources - The existence of public property is acknowledged in the Spanish Constitution 2. Economic freedom Brings along with it the rights to: - Free market: the means of production can be in private hands and there is freedom in the production and exchange of goods and services. However markets are not absolutely free and the State might intervene in the market to protect the public good. - Freedom of contract: the right to choose ones contracting parties and to trade with them on the terms and conditions they find appropriate. The State may regulate or forbid contracts which may hinder the public good or interest - Free enterprise: the right to create and conduct a business for profit w/o the intervention of the State, in accordance with the needs of the general economy

3. Exchange principle The exchange of goods and services has to be based in a valid and true cause or otherwise it shall be dimed to be unlawful and a case of unjust enrichment. Equilibrium is the natural tendency of every exchange

4. Moral sense and the principle of good faith - Pacta sunt servanda: covenants and agreements have to be performed as they were agreed. - Theres a tendency to moralize acts contrary to the idea of justice, so moral is one of the limits to the freedom of contract. - The moralization of legal economic relations is based on the principle of good faith. Has a double face: -an active manifestation: the honest intention to refrain from taking any unfair advantage of another - a passive manifestation: manifested on the confidence in the correct behaviour of the other party Someone acts in good faith when he acts with an honest purpose and believing in the honesty of the other party. 5. Legal certainty or rule of law To understand the consequences arising from a certain situation, business or project, individuals can plan their business and foresee the consequences and also they are protected from an arbitrary use of power They are confident that the legal order is going to be maintained.