Study guide: Introduction to Private Law

📋 Course Outline

1. Characteristics of Legal Rules
2. Legal Constraint and Soft Law
3. Law, Religion, Morality, and Norms
4. Natural Law and Legal Positivism
5. Functions and Values of Law
6. Codification and Public-Private Law
7. Courts and Judicial Organization
8. Branches of Private Law
9. Objective Law and the Constitution
10. Constitutional Rights and Review
11. International Treaties
12. European Union Law

📅 Key Dates

1. 3 janvier 1972The law strengthened equality among children in law, including distinctions previously made between categories of children.
2. 1994The Constitutional Council recognized the principle of safeguarding the dignity of the human person as having constitutional value.
3. 27 octobre 1995The Conseil d’État prohibited the Morsang-sur-Orge dwarf-throwing show in the name of human dignity.
4. 2004Adultery ceased to be considered contrary to good morals, although it could still be considered immoral.
5. 10 février 2016The ordinance reformed obligations law and incorporated concepts such as unfair terms and the pre-contractual duty to inform into the Civil Code.

📖 1. Characteristics of Legal Rules

🔑 Key Concepts & Definitions

• General and impersonal character: General, abstract, and impersonal because it addresses an indefinite number of people without designating particular individuals.
• Permanent character: Remains in force despite changes of government or Parliament and applies to each new qualifying situation, but can be amended.
• Prescriptive character: States what ought to be rather than describing what is, either by prescribing conduct or by defining legal acts.
• Conditional character: Derives a legal effect from defined conditions and can be expressed as “if…then.”

★ Must-know

• A legal rule has four cumulative characteristics: it is general, permanent, conditional, and prescriptive.

Further detail

• Article 1101 of the Civil Code defines a contract as an agreement of wills between two or more persons intended to create, modify, transmit, or extinguish obligations.

📖 2. Legal Constraint and Soft Law

🔑 Key Concepts & Definitions

• Legal sanction: A consequence whose execution may rely on state coercive power, including imprisonment, a fine, damages, or contract annulment.
• Soft law: Takes the form of advice, recommendations, or resolutions and seeks to guide through encouragement rather than impose obligations.
• Imperfect law: A legal rule for which no sanction is provided, as may occur in constitutional or public international law.

📝 Essential Points

• State coercion may make a legal sanction effective through forced execution by a judge and the state, and its threat often has a preventive role.

• The ARCOM can impose financial sanctions on certain media outlets or programmes despite relying largely on advice and recommendations in its regulatory activity.

💡 Memory Hook

Hard law can be enforced by the state; soft law guides through recommendations

📖 3. Law, Religion, Morality, and Norms

🔑 Key Concepts & Definitions

• Legal principle: A highly general rule capable of applying across many situations, filling gaps in specific rules, and influencing legal interpretation.

★ Must-know

📌 Religious and legal rules may share content, such as prohibitions on killing or theft, but religion sanctions the relationship with divinity while law sanctions in the name of the social group.

• Good morals assess the social acceptability of conduct, evolve over time, and form part of the legal order through Article 6 of the Civil Code.

📌 A legal rule is a general norm, whereas an individual norm governs a specific situation defined in time and space and is not capable of unlimited repetition.

📌 A contract is an individual, concrete norm based on an agreement of wills, whereas a unilateral decision imposes authority without the subject's participation in its creation.

Further detail

• French law permits:
  • divorce
  • contraception
  • voluntary termination of pregnancy
  • same-sex marriage
  • self-defence

📌 Social morality responds to the needs of the group, while individual morality concerns an individual's own moral judgments.

• In the Gleeden advertising case, the Court of Cassation held that advertisements commercially promoting marital infidelity could be immoral without being unlawful.

• Individual norms include: court judgments, administrative decisions such as building permits, private unilateral decisions such as an employer's decision

• Examples of legal principles include:

  • the adversarial principle
  • equality before the law
  • separation of powers
  • the maxim that fraud corrupts everything

💡 Memory Hook

A norm is the broad category; legal rules are general, unlike individual norms

📖 4. Natural Law and Legal Positivism

🔑 Key Concepts & Definitions

• Natural law: The belief that immutable and universal unwritten laws exist above positive law and should inspire the rules enacted by societies.
• Positive law: The law laid down in a particular society at a particular time.

★ Must-know

📌 State positivism grounds legal validity in the state's enactment, whereas sociological positivism treats law as a reflection of social facts and collective consciousness.

• Sociological positivism holds that law should follow social aspirations and evolving customs; its risk is that law merely follows society rather than helping it progress.

Further detail

• Thomas Aquinas distinguished (saint Thomas d’Aquin, XIIIe siècle): lex humana, human or positive law, lex naturalis, natural law accessible through reason, lex divina, law revealed by God

• The Enlightenment secularized natural law by making it discoverable through human reason and associating it with inalienable rights.

• Natural-law ideas influenced modern declarations, including the Declaration of the Rights of Man and of the Citizen, and continue to inform recognition of human rights and fundamental freedoms.

• State positivism offers clarity and legal certainty but does not assess whether a law is just and can admit profoundly unjust laws.

💡 Memory Hook

Natural law appeals above enacted law; positivism grounds law in observable sources

📖 5. Functions and Values of Law

🔑 Key Concepts & Definitions

• Imperative law: Imposes a rule that its subjects cannot avoid.
• Supplementary law: Proposes a model of conduct that the parties may displace by expressing a contrary intention.
• Human dignity: Recognizes belonging to humanity and requires that a person not be treated or reduced to a thing or an animal.

★ Must-know

• Law organizes social life and regulates human conduct to establish social peace and harmony.

• The four functions of law are to:

  • organize
  • impose
  • propose
  • express

📌 Distributive justice proportionally allocates common resources according to merit, whereas commutative justice restores balance in exchanges or transfers between people. - Aristote, L’Éthique à Nicomaque

Further detail

• The legal matrimonial regime applies in the absence of a marriage contract, and statutory succession rules apply unless the deceased made a will.

• Distributive justice is geometric and is illustrated by proportionate criminal punishment, whereas commutative justice is arithmetic and is prominent in contract and civil liability law.

📖 6. Codification and Public-Private Law

🔑 Key Concepts & Definitions

• Public law: Comprises rules organizing the state and governing relations involving public authorities, including relations between public entities and private individuals.
• Private law: Comprises rules governing relations between private individuals and between individuals and private entities such as companies or associations.
• Private international law: Determines the applicable law and competent court for private relationships containing foreign elements, including by resolving conflicts of laws or jurisdictions.
• Public international law: Governs relations between states and relations with international organizations.

★ Must-know

📌 Public law primarily serves the general interest and is chiefly imperative and unequal, whereas private law protects individual interests and emphasizes individual will and equality between legal subjects.

Further detail

• Codification gathers texts concerning the same subject into a code, facilitating access to and understanding of legal texts.

• The Napoleonic codes included:

  • the Civil Code of 1804
  • the Code of Civil Procedure of 1806
  • the Commercial Code of 1807
  • the Penal Code of 1810

📌 The public-law administrative order includes administrative tribunals, administrative courts of appeal, and the Council of State, whereas private-law disputes belong to the judicial order.

📌 Publicization brings greater state intervention and mandatory rules into private law, whereas privatization introduces private-law mechanisms into public-law activities, including through industrial and commercial public services.

• Examples of mixed fields are:
  • environmental law
  • labour law
  • European Union law

💡 Memory Hook

Public law serves the general interest; private law governs individual interests

📖 7. Courts and Judicial Organization

★ Must-know

📌 Contraventions are heard by the police court, which cannot impose imprisonment; offences are heard by the criminal court and may carry imprisonment of up to ten years or more in certain cases; crimes are heard by a criminal court or assize court.

• 🔄 The ordinary judicial process proceeds through: first instance examines the facts and law, appeal re-examines the case in fact and law, cassation checks the application of law and procedure without retrying the facts

Further detail

• The tribunal judiciaire is the ordinary court for civil disputes between individuals and also hears matters including personal status, family law, divorce, adoption, and succession.

📌 The tribunal de proximité hears certain everyday civil disputes when the financial stakes are below 10,000 euros and has exclusive jurisdiction in some neighbourhood, rural-life, and funeral matters.

• The conseil de prud’hommes hears individual disputes between employees and employers, with a prior conciliation phase and non-professional judges.

• The tribunal de commerce hears disputes between merchants and commercial acts and assists businesses in difficulty; its judges are volunteer consular judges.

📌 The departmental criminal court is composed only of professional judges, whereas the assize court generally includes a popular jury.

📌 When the financial stakes are below 5,000 euros, a direct appeal to the Court of Cassation may be brought without an appeal; assize-court judgments may be appealed to another assize court rather than a court of appeal.

💡 Memory Hook

First instance examines the case; appeal re-examines it; cassation checks law

📖 8. Branches of Private Law

🔑 Key Concepts & Definitions

• Civil law: The common trunk of private law and covers individuals and their activities broadly.
• Common law: Applies when no special rule governs and informs the specialized branches of private law.

★ Must-know

• The main branches of private law include:

  • commercial and business law
  • social law
  • criminal law
  • civil procedure
  • private international law

• The four main divisions of civil law are:

  • persons and family
  • obligations
  • property
  • security interests

📌 When a common-law rule conflicts with a special rule, the special rule prevails; when the special law is silent or incomplete, common law applies.

Further detail

• Examples of exported abuse-of-right concepts are:
  • abuse of weakness in criminal law
  • abuse of majority in company law
  • abuse of the right to strike in labour law

💡 Memory Hook

Picture civil law as the trunk feeding specialized branches

📖 9. Objective Law and the Constitution

🔑 Key Concepts & Definitions

• Objective law: The set of rules of conduct that govern relations between individuals in a given society.
• Constitution: A set of rules governing the transfer and exercise of power in a society, country, or nation.

★ Must-know

• A constitution principally organizes political institutions and protects citizens’ rights and freedoms.

Further detail

📌 Customary constitutions are based on repeated practices, whereas written constitutions are set out.

• The French Constitution of 4 October 1958 established the Fifth Republic and is brief, solemn, unique, and difficult to amend.

📖 10. Constitutional Rights and Review

🔑 Key Concepts & Definitions

• Constitutional block: The constitutional block comprises texts given legal value by the Constitutional Council through the Preamble to the 1958 Constitution, including the 1789 Declaration, the 1946 Preamble, the 2004 Environmental Charter, and fundamental principles recognized by the laws of the Republic.

★ Must-know

📌 A principle qualifies as a fundamental principle recognized by the laws of the Republic if it was expressed in a Republican law before 1946, conforms to Republican tradition, and has no exception.

Further detail

• The Declaration of the Rights of Man and of the Citizen of 1789 has 17 articles and sets out individual and political fundamental rights.

• The Preamble to the Constitution of 27 October 1946 contains political, economic, and social principles considered necessary for the time.

• The 2004 Environmental Charter recognizes rights and duties including the right to a healthy environment, ecological responsibility, and the precautionary principle.

📖 11. International Treaties

🔑 Key Concepts & Definitions

• International treaty: An international treaty is a written international agreement between states governed by international law, regardless of whether it is called a treaty, convention, agreement, pact, charter, or protocol.
• Pacta sunt servanda: Means that states must perform in good faith the commitments they have undertaken.
• Treaty reservation: Allows a state to exclude or modify the legal effects of certain treaty provisions.

★ Must-know

📌 A bilateral treaty is concluded between two states or between a state and an international organization, whereas a multilateral treaty engages more than two states.

• 🔄 The usual treaty stages are:
  1. negotiation
  2. signature
  3. ratification
  4. entry into force

📌 Under Article 55 of the Constitution, treaties or agreements regularly ratified or approved have authority superior to statutes, subject to reciprocity.

Further detail

📌 Once signed, an international treaty cannot be modified unilaterally.

• Some treaty provisions may have direct effect.

💡 Memory Hook

Negotiation → signature → ratification → entry into force

📖 12. European Union Law

🔑 Key Concepts & Definitions

• EU primary law: Consists of the treaties that established and organized the Union.

📝 Essential Points

• The treaties identified include:

  • the Treaty of Paris of 1951
  • the Treaty of Rome of 1957
  • the Treaty of Maastricht of 1992
  • the Treaty of Lisbon of 2007

• The Treaty of Lisbon reorganized EU primary law around two treaties: the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU).

📊 Synthesis Tables

Main legal theories