Transcript The private right

Contractual Relationship and
Alteration of Private Rights
Core Subject of Civil Relationship
The Concept of Private Rights
Meaning of legal relationship or privities
Concept of private rights
– German scholar V. Tuhr said: A right is the core concept of
private law and the ultimate abstract expression for diversified
life.
– A right is a legal power entitled by law to protect a specific
interest.
The function of private rights
– The function of rights is to protect the extent of individual
freedom and to allow individual to organize or create its social
life, especially to achieve autonomy in private life.
– A right is a subjective law and a law is an objectified right.
Enjoying a right is the struggle for the law. (Rudolf von Jhering)
Classification and System of Private Rights
Categorized by their contents or interests
protected
– Personality rights
the right to life
the right to the inviolability and integrity of his person
the right to the respect of his name, reputation and privacy
– Rights arising from obligation
The right to claim prestation
– Rights in rem (rights of thing)
– Intellectual property rights
– Other rights
Classification and System of Private Rights
Categorized by their power or function
entitled by law
– The right of claim
– The right of defense
– The right to form a legal relationship
– The right to control or to manage
The right of claim
Definition:
– A right of claim is a right entitled a specific person
(claimant) to carry out a specific act (including to do
or to refrain from doing) .
– Subject to extinctive prescription
– A legal ground to launch a litigation.
– Developed by German scholar Winscheid based on
the concept of Actio under Roman Law.
– The buyer’s right to claim the seller deliver the goods
sold and the title of goods sold. (ROC Civil Code§348I,
Korea Civil Code§568I, Japan Civil Code§560, and
China Contract Law§135)
The right to defense
Concept of defense
– Defense can be defined as an opposing or
denial from a party against the other party
when the other party exercises its right.
Category of defense
– Defense in narrow meaning
Proposing inexistence of the right of claim
–
–
–
–
Contract is never formed.
Contract is valid.
Impossibility
Failure to acknowledge indeterminate contract.
The right to defense
Proposing extinction of the right of claim
– Compensation (set off)
Where two persons are reciprocally debtor and creditor of
each other, the debts for which they are liable are
extinguished by compensation, up to the amount of the
lesser debt
– confusion
Where the qualities of creditor and debtor are united in the
same person, confusion is effected, extinguishing the
obligation. Nevertheless, in certain cases where confusion
ceases to exist, the effects cease also.
– Release
Release takes place where the creditor releases his debtor
from his obligation.
– Invalid of right (Verwirkung)
The right to defense
– The right to defense
Concept
– A private right which owns by a individual, not the State.
Category
– The eternal right to defense
A defense right arising from extinctive prescription.
– The provisional right to defense
A defense right on reciprocal performance
ROC Civil Code Article 264: A party to a mutual contract may
refuse to perform his part until the counter-prestation has been
performed by the other party, except he is bound to perform first.
A defense right on beneficium excussionis
ROC Civil Code Article 745: A guarantor may refuse performance
to the creditor, so long as the creditor has not filed proceedings for
compulsory execution, against the property of the principal debtor,
without results.
Japan Civil Code 453, Korea Civil Code China Contract Law,
German Civil Code 771-773, French Civil Code 2021-2024, Swiss
Obligation Code 495
The right to form a legal
relationship
Definition:
– A right to create, alter, or extinguish a legal
relationship upon exercising such a right.
Category:
–
–
–
–
–
The right to rescind a contract
The right to annul a declaration of intention
The right to recognize a declaration of intention
The right to deny a declaration of intention
The right to choose a subject matter under selective
obligations.
Effect of a valid contract
Concept of the rights arising from a contract (Obligationright?)
– the prestation: the right entitle to enjoy the interest of prestation
– contractual duty: obligation
Main obligation
– The seller of a thing is bound to deliver the thing to the buyer and to
make him acquire its ownership.
The seller of a right is bound to make the buyer acquire the right sold. If,
by virtue of such right, the seller can possess a certain thing, he is also
bound to deliver the thing.
– The buyer is bound to pay to the seller the agreed price and to accept
delivery of the object sold.
Incidental obligation
If performed, contractual duty discharged;
if in default or breach, it gives rise to a right to claim
damages or the right of rescission
Questions
Why is is so important to learn the concept
and system of private rights before we get
into the rules of contract in civil law
countries?
What relationship between variations of
private rights and the structure in the Civil
Code?
Rights arising from obligation
Obligation (zhai)
– A legal relationship that one party can claim
the other party to do or not to do specific
behavior.
– Parties:
Obligor (debtor): the person who has engaged to
perform some obligation.
Obligee (creditor): the person in favor of whom
some obligation is contracted, whether such
obligation be pay money or to do or not to do
something.
Owner of
Right
Exercise of
Right
Private Rights
Object
(subject matter)
of Right
Legal effect
The facts caused
legal effect
Occurrence,
change,
and extinguish
of right
Juristic Facts
(Juristische
Tatsache)
Legal relationship
Juristic Facts
Human conduct
Illegitimate act
Legitimate act
Torts
Expressive act
Default
Qusai Juristic
Act
Juristic Act
Contract
others
Non-expressive
Act
Management of
affairs
without
mandate
Public right
Freedom of assembly, Freedom of speech
Freedom of religion
Rights
Private rights
Classified by its contents
Classified by its function
Property right
Right to claim
Right to defense
Right arising from
obligation
Right in rem
Right to form
a legal relationship
Intellectual property
right
Right to control
Other property rights
Non-property right
Right of personality
Right of family Status
Juristic Act (Rechtsgeschäft)
Definition
– An act by which the party or parties declare
their intention of effecting changes in legal
relations and to which the law attaches the
power of producing such changes.
– A lawful act composed of a declaration of
intention by which a legal effect in private law
arises.
Category of Juristic Act
Unilateral Juristic Act
– Property Act
Obligatory act:
– Definition: A juristic act that create an obligation in personam between
the parties whereby one party is entitled to demand the other party to
perform a particular act.
– Examples: the establishment of a foundation, the promise of a reward,
the issuance of a instrument payable to the bearer
Dispositive Act
– Definition: A juristic act that creates or alters a right in rem that is
effective not merely between the parties but also against the world at
large.
– Examples: Relinquishment of a property right
– Status Act: making a will, bequeathment
– Act to form legal relationships: rescission of a contract, a notice
to quit given to a tenant, a notice to recognize juristic act, a
promise to offset payment. annulment of a juristic act
Category of Juristic Act
Multilateral Juristic Act
– Bilateral Juristic Act (contract; agreement)
Property Act
– Obligatory act (Obligatory contract)
Sale, Lease, Gift, Mandate, Loan…
– Dispositive Act (Contract regarding the right in rem)
Conveyance of the right in rem, create a lien, create an
easement, create a hypothecary right.
Assignment of the right arising from obligation or
intellectual property right.
Status Act: engagement, marriage, divorce, adoption
– Common Juristic Act: Vote of stock holder in share
holder’s meeting, establishment of an association.
Questions
Are there any similarities and differences
between a promise and a declaration of
intention?
Could you describe the relationship
between a contract and a declaration of
intention or a contract and a juristic act?
Constituent elements of formation of Juristic Act
General requisites for formation
– The Parties
Declarant (offeror as to offer, offeree as to
acceptance)
– Subject Matter
– Declaration of intention
offer and acceptance; mutual assent.
Special requisites for formation
– Delivery of object (real contract), written
formation (formal contract)
Questions
What are the differences between “formation of contract”
and “effectiveness of contract”?
What is the reasons behind the dichotomy of “formation
”and ”effectiveness ” of contract ?
If a contract without any consideration has been formed,
is it an enforceable contact in Civil Law countries?
Where the contract is formed but not effect, can the party
claim the other party to carry out the prerequisite
elements to effect the contract?
If the contract is formed but not effect, is this contract a
preliminary contract? What is the effect of a preliminary
contract? Can you distinguish a main contract from a
preliminary contract?
Case Study
X promised to lend $10,000 for six month
with interest to Y on Jan 1. At the same
time, X promised to transmit the said
amount of money to Y’s account at the
date of Jan 10. However, X didn’t honor
his promise due to economic hardship?
Rules regarding formation of loan for consumption
Japan Civil Code 587
– A loan for consumption becomes effective when one of the parties receives from
the other party money or other things and agrees to return things of the same
kind, quality, and quantity.
ROC Civil Code Article 474
– A contract of loan for consumption is a contract whereby one of the parties shall
transfer to the other the ownership of money or other fungible things, and the
parties agree that the latter shall return things of the same kind, quality and
quantity.
PRC Contract Law
– Article 196: A contract for loan of money is a contract whereby the borrower
borrows a sum of money from the lender, and returns the sum borrowed and
pays interest thereon at the prescribed time.
– Article 197: A contract for loan of money shall be in writing, except where the
loan is between natural persons who have agreed otherwise.
A contract for loan of money includes terms such as the loan's type, currency,
purpose, amount, interest rate, term and method of repayment, etc.
– Article 210 : A contract for loan of money between natural persons becomes
effective at the time the lender tenders the amount of loan to the borrower.
Rules regarding preliminary contract of loan
Japan Civil Code art. 589
– A preliminary contract to make a loan for consumption shall
cease to be effective if one of the parties has subsequently been
adjudged bankrupt.
ROC Civil Code Article 475-1
– Under a preliminary contract to make a loan for consumption, if
interest or other remuneration has been agreed upon for a loan
for consumption and one of the parties becomes incapability to
pay after the preliminary agreement constituted, the lender of the
agreement may revoke such agreement.
– Under a preliminary contract to make a loan for consumption, if it
is without remuneration, the provisions of Article 465-1 shall be
mutatis mutandis applied.
Rules regarding formation of loan for use
ROC Civil Code
– Article 464: A contract of loan for use is a contract whereby one
of parties shall deliver a thing to the other, and agrees that the
latter shall return the thing after gratuitously using it.
– Article 465-1: After a preliminary contract to make a loan for use
is constituted, the lender of the agreement may revoke such an
agreement. Unless otherwise the borrower of the agreement
has demanded to perform the agreement and the lender of the
agreement hasn’t revoked immediately.
Japan Civil Code
– Article 593: A loan for use becomes effective when one part
receives a thing from the other party and agrees to return it after
gratuitously using and taking profits therefrom.
The institute to balance the interest between
contractual parties in non-onerous Contract
Gift in ROC Civil Code
– Article 406: A gift is a contract whereby the parties
agree that one of the parties delivers his property
gratuitously to the other party and the other party
agrees to accept it.
– Article 408: So long as the right of the gift has not
been transferred to the donee, the donor may revoke
the gift. If the thing given has been partially
transferred, the donor may revoke the gift for the
portion has not been transferred.
The provision of the preceding paragraph shall not
apply to gifts notarized or to gifts made for the
discharge of a moral obligation.
Gift in PRC Contract Code
– Article 185: A gift contract is a contract
whereby the donor conveys his property to
the donee without reward and the donee
manifests his acceptance of the gift.
– Article 186: Prior to the transfer of rights to the
gift property, the donor may revoke the gift.
The previous paragraph does not apply to any
gift contract the nature of which serves public
interests or fulfills a moral obligation, such as
disaster relief, poverty relief, etc., or any gift
contract which has been notarized.
Gift in Japan Civil Code
– Article 549: A contract of gift becomes
effective when one party declares his intention
gratuitously to transfer property of his own to
the other party and the other party agrees to
accept it.
– Article 550: A contract of gift which is not in
writing may be revoked by either party;
however, this shall not apply with regard to
any part as to which performance has been
accepted.
Loan
for
ConsuMption
Mutual Assent
Delivery
Japan
&
ROC
Preliminary agreement
(revocable)
Executed and cannot be revoked
PRC
Written Contract required
(formed and effective)
Formed, effective, and executed
Executed
Within Natural person (Formed, effective,
and executed)
Loan
for
use
ROC
Preliminary agreement
(revocable)
Formed, effective, and executed
Japan
gift
Executed and cannot be revoked
Formed, effective, and executed
ROC &
PRC
Formed and Effective
(revocable)
If notarized or made for the
discharge moral obligation
(irrevocable)
Executed and cannot be revoked
Japan
In writing, formed and
effective
Executed
Not in Writing, formed and
effective (revocable)
Executed
Prerequisites to Validate a Juristic Act
The validity of Juristic act
– Valid, Void, Avoidable (voidable), Indefinite (uncertain)
General requisites for validity
– The Parties shall have the appropriate capacity to form (enter
into) a juristic act (contract).
– Subject Matter shall be lawful (illegality), certain (uncertainty),
possible (impossibility), and proper (violate public policy and
good moral)
– Declaration of intention shall be without any defects.
Variances between declaration and intention: mental reservation,
malicious collusion, mistake
Involuntary declaration of intention: fraud & duress
Special requisites for validation
– Register required. A contract subject to a condition precedent or
a time limit for its effective.
Void
ROC Civil Code Article71
A juridical act which violates an imperative or prohibitive
provision of the act is void except voidance is not implied
in the provision.
ROC Civil Code Article72
A juridical act which is against public policy or morals is
void.
ROC Civil Code Article73
A juridical act which does not follow the formality
required by the act is void unless otherwise provided by
the act.
Void
ROC Civil Code Article86
An expression of intent shall not be void for the
expresser did not intend to be bound by it,
except the fact was known to the other party.
ROC Civil Code Article87
A fictitious expression of intent made by the
expresser in collusion with other party is void,
but the voidance can not be a valid defense
against any bona fide third party.
Avoidable (revoke)
ROC Civil Code Article88
If the expression was acting under a mistake as
to the contents of his expression of intent, or had
known the situation of affairs, he would not make
the expression; he may revoke the expression;
provided that the mistake or the ignorance of the
affairs was not due to his own fault.
ROC Civil Code Article92
An expression of intent which is procured by
fraud or by duress may be revoked by the
expresser. If the fraud was done by a third
party, the expression may be revoked only under
the circumstances that the other party knew, or
might know the affairs.
Indefinite
Incapacity and without approval of guardian
– Contract made by a person limited in capacity to
make juridical acts without the approval of his
guardian is valid upon the acknowledgement of the
guardian (ROC Civil Code Article79)
Disposing other’s property without authority
– The disposition of any object which is made by a
person without title is effective only upon the
acknowledgement of the person entitled. (ROC Civil
Code Article 118)
Agency without authority
– A juridical act made in the name of an agent by a
person of no authority of agency shall not be effective
to the principal except it is acknowledged by the
principal. (ROC Civil Code Article 170)
Valid
Avoidable
Indefinite
Void