Civil Law

Questão	Responda
Characteristics of Law	Rules - What you are allowed to do... Positive Law - Rules created through government action Collective Enforcement - Rules enforced by the government
Definition of Law	Laws are the rules that we as a society specifically set up to govern our lives, enforced by the government.
What is Civil Law (two basic categories)	Public Law - Where the government is involved. Private Law (Civil Law) - Where the government is not involved.
Basic Structure of Civil Law	Law of Obligations - (Schuldrecht) Contract Law Tort Law Law of Things - (Sachenrecht) Property Law
Rechtsfähigkeit	Capacity to have rights & duties - all humans have this - Begins at birth, sometime earlier
Handlungsfähigkeit	Capacity to perform legal acts - Varies by age
Deliktsfähigkeit	Capacity to be liable for the consequences of one's own actions
Geschäftsfähigkeit	Power to undertake legally binding actions and contracts.
Who else may have some form of legal capacity	Natural Persons - Us.... Legal Persons - Entities that gain legal capacity through the law
Legal Transactions (Das Rechtsgeschäft)	All legal acts that bring about a legal consequence or effect
Basic Parts of a Legal Transaction	Declaration of Will Realakt
Declaration of Will	Statement or action aimed at achieving some legal consequence
Realakt	Any act which the legal system attaches legal consequences regardless of the actor's intent
Legal Transactions =	One or more Declarations of Will or Realakt + Declaration of Will
Elements of a Declaration of Will	Objective vs Subjective
Objective	The outward act of expressing one's intent. What people actually see happen, or what they think happend...
Subjective	The Person's actual intent behind the outward act. Must: 1) desire the act 2) be aware of it 3) know its consequence
Limitations of Legal Transactions	Void Voidable
Void	Transactions that are without legal effect from the very beginning Outcome - A void contract may not be enforced by either party. Legally, it never happened...
Voidable	Transactions which are initially valid, but may be voided once challenged. Outcome - A voidable contract may be enforced by the "innocent" party, if they so choose
Agency	Where one individual (agent) legally acts on behalft of another individual (principal)
Compulsory vs Non-compulsory	Agency created by law vs. Agency created by transaction, voluntary
Active vs. Passive	agent gives the declaration of will vs. agent receives the declaration of will
Direct vs. Indirect	agent acts using the principal's name vs. agent acts in his own name, but for principal
Spezialvollmacht	Authority for a single, specific transaction
Generalvollmacht	Authority for generally anything and everything
Untervollmacht	Authority given from an agent to a subagent
Duldungsvollmacht	Authority where the principal knows the agent is actiong on his behalf (but beyond his actual authority) but does nothing about it. The actions become legally enforeable against the principal
Anscheinsvollmacht	Authority that arises where the principal should have know that the agent was acting outside his authority. Theses actions also become enforceable against the principal.
Within Authority	The transaction is immediately valid and has legal effect for and against the principal
Beyond Authority	The transaction is not valid (unless the principal ratifies it afterwards)
Unclear Authority	Where the agent does not make it clear that he is acting on behalf of a principal, then the agent is personally liable for the transaction
contracts	legal act consisting of two or more Delcarations of Will, corresponding with each other, aimed at bringing about a specific legal effect. Every contract requires an offer and an acceptance
Freedom to conclude a contract	can conclude or not conclude a contract with anyone... - May not disciminate upon age, gender, race or disability - Allowed monopolies must contract with everyone
Freedom to Decide Contract Contents	Individuals may decide their own content and form. Limitations: - Anti trust law - not contract for anything illegal... - Consumer Protections laws. etc.
Offer	Declaration of will that must be received by another party, offering the conclusion of a contract
Details of an Offer	- must contain all the essential aspects - other party must be able to just say "yes" - person making the offer is bound by the details of the offer until it lapses - only open to the person to whom it is addressed. - the offerer can avoid being bound be inserting: subject to change; revocable; without obligation
Timing of an Offer	An offer is effective and valid once it enters a person's "sphere of control" and they could have been expected to take notice of it.
Acceptance	Declaration of Will accepting the offer of a contract
Details of an Acceptance	- must be unreserved and unconditional - not effectiv if the offer was timely revoked - only effective by the person to whom the offer is made - Acceptance need not always to be overt - An acceptance is effective once it enters a person's "sphere of control"
Open Lack of Agreement	The parties know that they are not in agreement... - lack of agreement on fundamental points of the contract, then the contract fails ab initio. - Lack of agreement on side issues, it depends on whether the parties' still want to go forward regardless of the disagreement
Hidden Lack of Agreement	Where the parties do not know of a disagreement or ambiguity in the contract -Disagreement on fundamental aspects leads to no contract -Disagreement on side issues or secondary aspects allow the contract to go ahead, but ONLY IF the contract would have gone ahead if the parties knew of the disagreement beforehand
Standard Form Contracts	Many contracts now have a "fine print" - Accepting party need to have had a reasonable opportunity to take notice of it and accept it. -the law protects against certain unfair practices or illegal acts.
General Forms of a Contract	No basic form necessities are required by statute, however with respect to certain types of contracts, specific forms may be required by statute in order to provide increased certainty that the parties understand the legal consequences of their actions Example - Sale of land, donation
Breaches of Requirements = Void	Breach of formal requirements Breach of a Law - Where a contract itself violates a statutory provision Breach of Good Morals - Where a contract is against public morality
Defects of the Declaration of Will = Void	Mental Reservations - Both parties know that the declared intent by one side was not real Sham Transactions - Actual agreement is fake, to cover a different agreement Joke Declaration - one party is making a joke about their intent to enter into the agreement = void. However they must clarify the situation as soon as possible
Defects of the Declaration of Will = Voidable	Content mistake Characteristic Mistake Declaration Mistake Deceit Duress
Creditor and Obligor	Creditor - Person to whom an obligation is owed. Obligor - Person who owes the performance of the obligation
Primary Duties	Arises from the contract itself, and is generally the entire point of the contract
Secondary Duties	Arise generally when the primary duty has not been fulfilled
Types of Performance Obligations	Individual Obligations Generic Obligations Quasi Generic Obligations
Obligations as the Place of Performance	Holschuld Bringschuld Schickschuld
Ending the Obligation to Perform	Timely performance of the obligation Some substitute is accepted in lieu of performance by the Creditor
Partially Fulfulling the Obligation to Perform	Some alternative is accepted "on account of fulfillment". The obligation to perform continues A set-off of performance obligations. This occurs where both parties owe the other something form a prior transaction.
Impossibility	Where it has become impossible for the Obligor to perform
Collapse of the Foundation of the Contract	Where circumstances have changed to an extend that the contract cannot reasonably be upheld
Impossibility Basic Concepts	Impossibility does not invalidate a contract Impossibility is a defence or and excuse Creditor may still have a claim for monetary damages from the Obligor
Objective Impossibility	Impossible for anyone to perform
Subjective Impossibility	Impossible for the Obligor specifically to perform
Initial Impossibility	Where it was already impossible to perform at the time the contract was made
Subsequent Impossibility	Where it only became impossible to perform after the contract was concluded
Unreasonableness	Where the actual performance is possible, but would impose a disproportionate cost on the Obligor
Factual Impossibility	Where the performance is actually, factually impossible
Temporary Impossibility	Where the Performance is currently impossible, but may be possible at a later date
Permanent Impossibility	Where the performance is and will always be impossible
Delay	Where the Obligor does not perform in time
Positive Breach	Where the contract was poorly performed and that substandard performance resulted in unexpected damage
Pre-Contractual Duties	Where one party in a contract negotiation causes damage to the other party
Creditor Delay	Obligor offers to perform, but the performance is refused by the Creditor. The obligor is generally entitled to compensation for the delay
Obligor Delay	The Obligor does not perform by the original set date....the creditor is generally entitled to claim compensation for the delay (unless the Obligor can prove that he was not responsible). The Creditor must eventually accept performance when tendered, even if it is late.
Damages in Lieu of Performance	The damages necessary to make the Creditor whole as if the Obligor had actually performed
Damages caused by the delay	The damages that result from the delay, to compensate the Creditor for waiting for performance
What elements are necesssary in order for a party to claim damages through a "positive breach" ?	-A contractual duty has been breached -The Creditor has suffered damages, -The breach caused the Creditor's damage, and -The obligor was at fault for the breach
Damage	Every disadvantage a person suffers as a result of action on property, belongings, or to a lawfully protected right.
Causation	Damage must have been caused by an action or omission carried out or omitted under a contract
Two Basic Types of Compensation	Natural substitution - Substituition as compensation Schadenersatz in Geld - Money as compensation
Direct Damage	Actual impairment of the injured object or right
Indirect Damage	Any further consequences of the original damage
Material Damage	Any damage that money can naturally compensate
Non - Material damage	Damage that money cannot easily compensate
Two Goals for Compensation	Expectancy (Schadensersatz statt Leistung) - Placing the person in the position they would have been in had the deal been completed with no breach Reliance (Vertrauensschaden) - Placing the person in the position they were in before the deal and breach

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	Criado por daniel kuhr quase 9 anos atrás