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LAW QUESTIONS - MIDTERM1. Why do we say that the code of Hammurabi is intimately linked with the Principleof Publicity?The principle of publicity states that “it is essential for subjects to understand the true grounds of sovereignty, authority and political obligation, and to submit themselves to a...

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LAW QUESTIONS - MIDTERM 1. Why do we say that the code of Hammurabi is intimately linked with the Principle of Publicity? The principle of publicity states that “it is essential for subjects to understand the true grounds of sovereignty, authority and political obligation, and to submit themselves to authority for the right reasons”. Or by other words, rules and legislation must be public, and everyone should know the rights and duties by which they are ruled. Regarding the code of Hammurabi, the king proclaimed a systematic corpus of law to his people so that they were able to know their rights and duties. This code was written in stone and made public, and it contains rules which have as consequence severe punishment. The code is almost devoid of defences or excuses (strict liability). With this, Hammurabi was showing people their rights and duties, as well as inflicting the law in a severe way to make sure everyone respects it, thus following the Principle of Publicity.

2. Codes are written on stone, metal and even in the electronic era still published in paper hard copy, why? Which kind of legal system does this contrast with? Since the beginning of history, when people’s rights and duties are defined, they normally feel the necessity of registering it in some physical place. It happened with the Hammurabi code, Roman Tables, Corpus Juris Civilis, Napoleonic code, BGB, etc. This is due to the fact that people need to have physical proof of the law, they don’t trust word of mouth. Thus, it is possible that one day we can go back to the code and see the rules as they were written in the first place, instead of saying “someone said me…”. Moreover, it is also easier to forget or to delete the code if we don’t save a physical evidence of it. We call this system the Civil Law. However, there are countries where this doesn’t happen, for example the UK or USA. These countries follow the so-called Common Law, which relies essentially in unwritten, non-textual law and is based on an oral tradition. In fact, in these countries they use precedents (previous similar cases) instead of quoting books, and they trial by jury (the jury decides on the facts and the judge decides on the law applied).

3. The Corpus Juris Civilis is considered a comprehensive and systematic codification. Which system came before that in Roman Law? Before the Corpus Juris Civilis, only the Roman Tables existed in the Roman Law. These tables were built with the objective to comprise all the information about the Roman Law and to be binding on all; at first, there were 10 tables but later 2 more were built because more space was needed to include all laws. However, these soon became a problem: they were so extensive and so sophisticated that the output ended up being hopelessly unwieldy (it caused different interpretations). This called for a code that must contain all aspects regarding the law, easier to read and to interpret. That was when the Corpus Juris Civilis was created, a comprehensive and systematic codification which contained 3 books (Digest, Codes and Institutes).

4. Are the Napoleonic Code 1800 and BGB in Germany 1900 more extensive or more concise codes than the Corpus Juris Civilis? In the CJC there were more than 1 billion words and too detailed to be of any useful application. Also, with the establishment of the University of Bologna the corpus and the cannon law (church law) were taught together, the roman civil law was spreading throughout most of Europe. Napoleon thought he should have his own set of rules which should be respected wherever he went, thus he replaced the Corpus Juris Civilis for one single and more practical book that people could easily read and interpret: the Napoleonic Code. Germany followed the same path and created the BGB, a more technical and abstract code that lacked user-friendliness but had an astonishing comprehensiveness. These two codes were more concise than the Corpus Juris Civilis (CJC).

5. What are the distinctive features of the Western Legal Tradition? The Western Legal Tradition (WLT) can be divided into Common Law (in which precedents are used) and Civil Law (in which we quote books). The WLT is obsessed with the Rule of Law and presents some distinctive features. The first one is the clear demarcation between legal institutions and other type of institutions, the so-called separation of powers, which defends that the courts must be independent from all the other institutions. Another feature is the nature of legal doctrine, which comprises the principal source of the law and the basis of legal training, knowledge and institutional practice. Thirdly, law is a coherent body of rules with its own internal logic. Finally, there is a need for specialized training of lawyers and other legal personnel.

6. Provide a definition/explanation of the ideal of the Rule of Law. The Rule of Law is the main focus of the Western Legal Tradition, translated in Portuguese as “Estado de Direito”. It consists in three principles: the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power; the equality before the law or the equal subjection of all classes to the ordinary law of land administrated by the ordinary courts; the law of the constitution is a consequence of the rights of individuals as defined and enforced by the courts. By other words, the Rule of Law must guarantee that the arbitrary exercise of power is restricted by subordinating it to well-defined laws and that everyone must be subjected to the same set of rules.

7. Give an example of a Negative Right. A negative right is a right not to be subjected to an action taken by another person or group. It can be referred to as a first generation right, “the right not to be…”. Some examples of negative rights can be the right not to be forced a religion (freedom from religion), the right not to be jailed without trial, or the right not to be prevented from expressing opinion (freedom of speech).

8. Explain what a Juristic Person is. A juristic person can be defined as an abstract entity with legal personality, meaning it is capable of holding legal rights and duties within a legal system. Legal personality was acknowledged to these entities in order to protect some legal interests. These entities must be allowed a certain capacity of enjoyment plus their capacity to exercise must be technically articulated (with a high degree of detail). By other words, juristic persons enjoy special capacity of exercise, meaning that this capacity to hold rights and to comply with duties will be shaped only on the scope of the entity (it will be only allowed to do what it was meant to do). Hence, juristic persons’ rights and obligations are only the ones necessary to the pursuit of its purposes and exclude those prohibited by law or inseparable from natural persons (family relationships, marriage, adoption, etc). Examples of juristic person can be companies or states. This definition differs from the one of natural person, which is a human being with legal personality and full capacity of exercise (with some exceptions).

9. How / at which moment is a Human being vested with legal Personality (within the current Portuguese Legal System? In Portugal, human beings are normally acquired with legal personality with complete birth (and alive) and loose it upon death. However, in some cases the legal system protects the conceived yet unborn child, the so-called nascituro, by attributing them legal personality for the purpose of being the holder (titular) of a legal expectation to inherit. There is, though, an uncertain future event (condition) that must occur: birth (with life). There are still some systems in the WLT that argue against this protection, defending that a nascituro doesn’t have the status of legal person, thus being morally irrelevant.

10. Is Legal Personality the same as Capacity of Exercise? Legal personality and capacity of exercise are different concepts. The first is defined as the capacity of holding legal rights and duties within a legal system and it is a quality, meaning either you have it or you don’t. Capacity of exercise, however, is a quantitative measure of to what extent you are able to handle your own rights and duties without assistance. In Portugal, comprehensive capacity of exercise is achieved at 18 years old. However, it is possible that a person has legal personality but not capacity of exercise. This is the case of minors, judicially disabled individuals (blind, hearing loss, muteness, mentally disabled) and senile people, who are unable to govern themselves or her personal assets.

11. Is it true that Undertakings (corporations, companies etc..) do not have Legal Personality? Is this because they are not human beings? In order to protect certain interests, although they are not human beings, the legal system has acknowledged legal personality to undertakings, since they are able to enjoy and be subjected to rights and duties. However, these rights and duties must be compatible with, and only with, their nature (meaning they can´t for example marry or adopt).

12. Is Capacity a quality or a measure? Capacity is a measure, contrasting with legal personality which is a quality. It is important to subdivide capacity into two different subjects: capacity of enjoyment and capacity of exercise. The first measures the capacity of enjoying rights and duties (closely related with legal personality) and the second measures to what extent you are able to handle your own rights and duties without assistance. In Portugal, comprehensive capacity of exercise is acknowledged at 18 years old. There are, however, some cases in which the capacity of exercise is conditioned. This is the case of minors, judicially disabled individuals (blind, hearing loss, muteness, mentally disabled) and senile people, who are unable to govern themselves or her personal assets. The legal system created a substitution mechanism to protect people with diminished capacity of exercise (through tutors and curators).

13. Are minors attached with a Tutor or a Curator? Why? In the case of someone with legal personality, capacity of enjoyment but no capacity to exercise willingly and freely (with conscience), a tutor will be appointed. Sometimes, when the inability is less extreme, a curator will be chosen instead. The difference between tutor and curator is mostly the fact that the absence of capacity of exercise is “corrected” by the tutor (interdiction) whilst it is only “constrained” by the necessary authorization of the curator (inabilitation). Basically, a tutor fully decides in the name of the person, whilst the curator takes into account the person’s opinion. People with tutors have no capacity of exercise, but people with curators have some capacity of exercise. In the case of minors, they are represented by a tutor (normally their parents) until they come of age because they do not enjoy capacity of exercise. The legal system has created this substitution mechanism to protect the minors, i.e. they are represented by a tutor because the less they decide the more they are protected.

14. Do juristic persons have Comprehensive Legal Capacity? Y/N and justify with an example. Although juristic persons are acknowledged with legal personality, they don’t have comprehensive legal capacity. Unlike natural persons who have comprehensive legal capacity (with some exceptions), juristic persons shall enjoy rights and are subject to obligations compatible with their nature. In other words, their capacity is limited to the convenient and necessary powers to attain their objectives: principle of special capacity. This excludes, for example, actions prohibited by law or inseparable from natural persons such as family relationships: marriage and adoption.

15. Very often we talk about Mitigation of the Principle of Special Capacity, can you provide an example? The principle of special capacity is the fact that juristic persons’ capacity is limited to the necessary powers to attain their objectives. However, the pursuit of their purposes may occasionally move away from their corporate purpose. In this case, we can talk about a mitigation of the special capacity, which means an increase in the capacity of exercise. This can be seen, for instance, when some non-profit organizations are allowed to sell in order to raise funds to practice their charitable purposes.

16. Within an example of a corporate body with 12 members, relate the following 4 concepts: Functioning Quorum, Deliberation Quorum, Component members and Members Present. Firstly, let us define the concepts of Functioning Quorum and Deliberating Quorum. A Functioning Quorum states the minimum percentage of component members that need to be present for a meeting to take place, otherwise it would be adjourned. A Deliberating Quorum would state that for a valid decision to take place it must be taken by at least a percentage of the members present (percentage of the functioning quorum). For example, in a corporate body with 12 component members, the functioning quorum would be constituted by 9 of them. The deliberation quorum would then be constituted by 7 of that members present, so that every decision is still taken under majority.

17. What is an Agenda? What is a minute? What is, in your opinion, the purpose of these documents for a corporate body? An agenda is a document that specifically describes what issues are going to be discussed during the meeting. If a point is not in the agenda, discussing it has no legal value, i.e. you are not allowed to decide on something that was not in the agenda beforehand. This is very important as it allows the members of a quorum to decide if they want to go to the meeting or not depending on the matters to be discussed and still be assured that no other matters (that they might be interested in) are going to be discussed. A Minute is a written (or recorded) description of every meeting of the corporate body, filed in an appropriate standard. If a point is not in the minute, it doesn’t count as a point already discussed. These documents are very useful to protect members involved.

18. We use the expression ERGA OMNES to qualify certain type of Rights, can you explain what this means and provide an example? When we use the expression ERGA OMNES, which means “towards all”, we are normally referring to subjective rights. These are rights which fall directly upon things or other realities treated as things, conferring on the holder the full power over things and the right to demand an attitude of respect. Very often they are therefore absolute rights, meaning they may be upheld by their holder vs anyone (erga omnes): a right against the world. For instance, a property right is an erga omnes entitlement, and therefore enforceable against anybody infringing that right.

19. What is a Credit Right? A Credit Right is an active position in a situation regarding debt. It is the right that you have to demand a certain type of behavior from someone else who has a debt to you. For instance, in a labor relationship, the employee has at first a passive position (has to work), but later assumes an active position (credit right to receive wages). The employer, however, has at first an active position (needs to receive performance), but later assumes a passive position (duty to pay salaries).

20. What is a Potestative Right? Potestative Rights are normally linked to the concept of power. The holder of these rights may exercise them out of free will, triggering legal change in the legal sphere of others independently of the will of the latter. The passive subject is not required to cooperate and may do nothing to impede the exercise of these rights (it doesn’t imply a duty from another party). These rights are: constitutive, because they start something new; capable of change, because they alter the reality; extinctive, since they put an end to something. A good example of a potestative right may be the right to divorce.

21. Explain and give an example of a Legal Burden. A Legal Burden is the fact that the non-adoption of a certain behaviour (if you don’t comply with the burden) will result in the loss of an advantage that is within your reach. By other words, it is something you must undertake in order to achieve a certain outcome. This is the case of heritages: for example, you may be left an inheritance, however to obtain it you must inform in 8 days if you accept it, otherwise you will not receive it (the legal burden here is to inform if you accept it).

22. What other disadvantage positions exist besides the Legal Burden? Disadvantage positions (or passive) are normally the downside of an advantage position (or active). Besides the legal burden there are two more passive positions, which are: Duties and State of Subjection. A duty is the downside of a credit/subjective right, it is the imposition to adopt a certain type of behaviour. It can be either an obligation (arises between two or more specified subjects) or a general duty (arises vs everyone). The state of subjection is the downside of a potestative right, the situation of being subject to or constrained by someone else’s decision. It does not presuppose the adoption of any behaviour by the subject, yet he cannot impede/influence the outcome.

23. When we speak of the Immediate object of Legal Relationships what do we mean? The immediate object of legal relationships is the activity which some are entitled and others must perform or undertake, it is the behaviour/performance the players are expected to undertake. It may vary in nature:  De facere – positive activity. Ex: to build a house, draw up a contract or write a report;  Non facere – omissive activity. Ex: respect of a prohibition to build or refrain from something;  De pati – to suffer the activity of others. Ex: to accept that a neighbour builds on his own land even if you prefer a garden;  De dare – conveyance/delivery. Ex: of shopping bought.

24. When we speak of the Mediate object of Legal Relationships what do we mean? The mediate object of legal relationships is the projection of the behavior onto something. It can be for example unreal or moveable property (car, bicycle, book), real property (land, house), tangible (jewel), intangible (intellectual property, brand, author’s rights).

25. “Perfect substitutes” is a concept that is also used in Law, we call it substitutability. Give an example of a Substitutable Thing / Substitutable Behaviour in a legal relationship. We can either focus on the behaviour (immediate object) or we may intend a material thing (mediate object). However, both behaviour and things may, or not, be substitutable. They are considered substitutable when they can be replaced by other behaviour/things without the beneficiary feeling

damaged. An example of substitutable behaviour can be when the repairman is ill, so he sends a coworker to paint the wall for him. A substitutable thing can be, for instance, trading money for a watch or jewellery. Behaviour or things may also be non-substitutable, when such replacement causes damage to the beneficiary. If someone is supposed to apologise and instead sends another person in his place, it may cause damage to the beneficiary, thus these actions are non-substitutable.

26. Can nature have a Legal Dimension? Justify. A fact is an event or state of affairs known to have happened or existed which have legal consequence. Any event, natural or human, can actually produce legal consequences. These consequences arise from a (contingent) legal qualification, meaning it is the legal system that converts events into facts. For instance, if it rains a lot and as a consequence my house is destroyed, I will probably need to activate my insurance to cover the damages, thus triggering legal consequence.

27. What is Efficacy? Efficacy is the (legal) result of an existing and valid legal rule. In other words, valid and existing legal rules are capable of producing results that we call effects. Efficacy can be 1) constitutive if it cre...