Module Identifier LA36520  
Module Title CIVIL AND COMPARATIVE LAW  
Academic Year 2001/2002  
Co-ordinator Ms Anne Barlow  
Semester Semester 1  
Other staff Ms Anne Barlow, Mr Richard Ireland  
Pre-Requisite LA10110 or LA30110 or LA15710  
Co-Requisite LA15830 or LA35830 and either LA31420 or LA36030  
Course delivery Lecture   40 Hours one two hour and two one hour lectures per week  
  Seminar   8 Hours four two hour seminars during the semester  
Assessment Essay   Assessed Essay of 2000 words (required in week 8)   33%  
  Exam   2 Hours Students are permitted to take unmarked translated extracts from both the French Code Civil and the German Burgerliches Gesetzbuch into the examination room.   66%  
  Resit assessment   Resit - By retaking the failed element (ie written assignment or examination or both, as applicable)    
Professional Exemptions Not Required for Professional Purposes  

Module description


Reasons for Offering the Course


Most of the legal systems of the modern Western world are based on one of two legal traditions. The first is that of the English Common Law, on which the systems of most Commonwealth countries and the United States are based. The other is that of the Civil Law which has its origins in Roman Law. Today, Civil Law forms the basis of the legal systems of most European countries, as well as many in Africa, Asia, North and South America and the Middle East. It has also been very influential in relation to the development of European Law. Accordingly, the course offers students, who will largely come from the common law tradition, the opportunity firstly to study Roman Law, and goes on to compare the legal reasoning, structure and substantive law of some modern day Civil Law legal systems with our own. The study of comparative law is important for two obvious reasons. First, it allows us to consider the law in other systems. This includes an examination not merely of the rules of substantive law but a consideration of the historical, social, economic and political factors which have influenced the shape and content of the law in those jurisdictions studied. Secondly, the study of law on a comparative basis provides an opportunity critically to examine the principles of the common law and their practical effects. There is a particular, and increasing, need for British lawyers to understand the principles and the detail of civil law systems. This arises from our membership of the European Union and the opportunities presented for greater trade a commerce between Union members.


Knowledge of French or any other foreign language is NOT required for the course.


Summary of Course Content


The course begins with an historical introduction to the Civil Law. It will examine the Roman Legal system, and explain its significance as a foundation for the systems of modern continental Europe. The Roman Law of Obligations will then be considered. In the second part of the course, we consider the function of comparative law. We then examine the history and current day structure of the French legislature, legal profession and hierarchy of courts and comparisons made with Britain and some other modern European countries. Difference of approach in Legal Reasoning and statutory interpretation will be considered as well as the different sources of law. The significance of the more inquisitorial Civil Law approach to Criminal Justice issues in France will be examined and compared with those within the adversarial British system against the background of both systems facing mounting criticism from the public and the European Court on Human Rights. In the final part of the course compare the substantive law of obligations in France and Germany. This is done by examining a range of special topics within the French and German law of contractual and delictual obligations. Throughout students will be expected to compare, and evaluate, not only French and German law but also civilian approaches with those of the common law.

Aims of the module


To introduce students to the history of and principal features of, and the intellectual contribution made by, the modern civil law tradition To equip students for further legal study elsewhere in Europe and enable them to appreciate the diversity of modern legal systems within Europe. To provide an understanding of the intellectual influence of Roman Law upon the legal traditions of modern Europe and beyond and develop the skills of comparative analysis and through the comparative method of legal study and research, to analyse the strengths and weaknesses of the common law

Module objectives / Learning outcomes


To give students an insight into the intellectual influences on the Civil Law tradition, from its Roman Law origins to the modern day. It also hopes to underline the difference in approach between adversarial and inquisitorial legal systems, assess their relative advantages and disadvantages and provide students with an appreciation of not only the substantive French and German law of obligations but also the techniques by which the civil law is made responsive to technological and socio-economic developments. By this study students should come to appreciate the diversity of legal systems and gain a better understanding of the nature of law and its development, gain a deeper insight into our own legal system and better appraise the merits and deficiencies of the common law.


At a practical level, the course aims to introduce students to the Civil Law systems for students who wish to work or study further in this area in Britain or abroad.

Syllabus


PART I - ROMAN LAW AND ITS RECEPTION IN EUROPE


1. The historical development of Roman Law and its significance in the development of modern legal systems


2. The sources of Roman Law


3. The Roman Law of Obligations - the nature of obligations - the classification of obligations - obligations ex contractu: general - a law of contract or contracts - general contractual principles - the types of contract - obligations ex maleficio: general - the nature and role of delicts - furtum and rapina - iniuria - damnum iniuria datum


PART II - COMPARATIVE LAW AND THE MODERN DAY CIVIL LAW SYSTEM


1. Reasons for the study of comparative law


2. Introduction to Different Legal Families


3. Introduction to and the origins of the French system


4. The influence of the French Civil Law system elsewhere in Europe


5. The civil courts and civil procedure in France with some comparison with other Civil Law jurisdictions


6. Legal reasoning and statutory interpretation in France and Germany.


7. Sources of law in the French and some other Civil Law systems: a comparison with the Common Law systems


8. The legal profession in France and Germany


9. French criminal procedure: inquisitorial versus adversarial approach


Part III THE COMPARATIVE LAW OF OBLIGATIONS


1. Special Topics in the Contractual Law of Obligations in France and Germany (a) contract formation (b) breach of contract (c) privity and contracts for the benefit of third parties (d) good faith in contractual performance


2. Special Topic in the Delictual Law of Obligations (a) principles of delictual liability (b) recovery for economic loss (c) vicarious liability (d) strict liability

Reading Lists

Books
** Recommended Text
Borkowski. Textbook 0n Roman Law. 2nd.
Nicholas. Introduction to Roman Law.
Stein. Legal Institutions.
Youngs. (1997) English, French and German Comparative Law.
Bell. (1998) Principles of French Law.
Zweigert and Kotz. (1998) Introduction to Comparative Law. 3rd.
** Supplementary Text
Gutteridge, H.C.. (1946) Comparative Law. Cambridge UP
Dadomo & Farran. (1996) The French Legal System. 2nd.
West. (1998) The French Legal System.
Dickson. (1994) Introduction to French Law.
De Cruz, P. (1999) Comparative Law in a Changing World. Cavendish
Ryan, K.W.. (1962) An Introduction to Civil Law. Law Book Company
T G Watkin. (1999) An Historical Introduction to Modern Civil Law.
Varga. (1992) Comparative Legal Cultures.
** Reference Text
Zimmermann, R.. (1996) The Law of Obligations. Oxford
** Recommended Consultation
Lawson, F.H. & Markesinis, B.S.. (1982) Tortious Liability for Unintentional Harm in the Common Law and the Civil Law. Cambridge UP
Marsh, P.D.. (1994) Comparative Contract Law. Gower
Markesinis, B.S.. (1994) The German Law of Torts. 3rd. Clarendon
Nicholas, B.. (1992) French Law of Contract. 2nd. Clarendon
Rudden, B.. (1991) Source-Book of French Law. 3rd. Clarendon
Von Mehren, A.T. & Gordley, J.R.. (1977) The Civil Law System. 2nd. Little Brown & Co
Youngs, R.. (1994) Source Book on German Law. Cavendish
Pollard, D.. (1996) Source Book on French Law. Cavendish
Markesinis, B.S.. Foreign Law and Comparative Methodology: A Subject and a Thesis, 1997.
Markesinis, B.S.. et al The German Law of Obligations, 1997.