BASIC PRINCIPLES OF LAW (I)

What is law?:

● Definition of a rule: “a general norm mandating or guiding conduct or action in a given type
of situation” (Twining and Miers)
○ Rules may forbid certain activities; e.g. murder and theft
○ Rules may impose certain conditions under which activity may be carried out; e.g. car
drivers must have valid licenses

● Features common to a legal system:

○ Rules forbid certain behaviour
○ Rules require people to compensate those they injure
○ Rules specify steps required to make a will, contract, or create obligations
○ Courts exist to determine what the rules are, apply them, and fix compensation or
penalties
○ Legislature exists to make new rules and abolish old ones

“Law may be regarded as a benign facilitating mechanism, making transactions possible between
men and solving awkward problems as they arise; it may, alternatively, be seen as a mechanism of
social control, regulating activities and interests in the name of either the community, a ruling class
or the state. The state itself may be defined as either a ‘neutral arbiter’ or ‘interested party’ in the
solution of disputes and the balancing of interests. Again, law may be seen as an institution for the
furtherance and protection of the welfare of everyone, or it may be seen, crudely, as an
instrument of repression wielded by the dominant groups in society.”- P. J. Harris and J. D. Buckle

● Relationship of law and morality:

○ Share vocabulary (rights, duties, etc.)
○ Content of some laws reflect moral values

Legal rules = obedience + acceptance that those rules are legitimate and authoritative

● Supremacy within territory

● Independence from other territories
● Sovereign (Austin):
○ The laws of any country will be general orders backed by threats which are issued
either by the sovereign or subordinates in obedience to the sovereign

● A master rule for distinguishing law from non-law: rule of recognition- the fundamental rule
by which all other rules are identified and understood.
○ Primary rules prescribe how a person should act in society. Secondary rules are rules
by which the primary rules are created, identified, changed, and understood.
○ A rule of recognition is a secondary rule that instructs citizens on when a
pronouncement or societal principle constitutes a rule of obligation. (Rule of
recognition arises out of a convention among officials whereby they accept the rule's
criteria as standards that empower and govern their actions as officials.)
 ● Any rule that complies with the rule of recognition is a valid legal rule.
○ The Rule of Recognition is but a factual acknowledgement of what is indeed law; as
per the classic illustration of a bill passed by the legislative authority and assented to
by a Head-of-State.
○ The fact that the bill has been made law in accordance with proper parliamentary
procedure shall, in accordance with the Rule of Recognition, render it valid law

● SOURCE OF LAWS
○ Constitution
○ Statutes
○ Executive Orders
○ Administrative Rules
○ Court decisions
○ Custom

Distinction between moral and law:

● Law: Set of rules of inexorable compliance that prescribe an order in the coexistence
● Moral: Set of behaviour rules that define the correct (good) performance in a certain society
(Social/positive/empirical moral). Leading dictators of (good) behaviour from the individual
autonomous conscience (Critical moral)
● Classical Distinction:
○ Moral: Internality – Individuality – Autonomy
○ Law: Externality – Otherness – Heteronomy

A SYSTEM OF RULES:
● Legal rules are normally enforced by collective means and in particular by organs of the State
● Legal rules have very specific sanctions
● Most laws are explicitly created by means of legislation or judicial decisions (positivism)
● Positive law offers legal certainty (If the issue at stake is not what the positive law is, but
rather what is «really» right, it may be much harder to reach an agreement)
○ Certainty about the content of the law (Predictable)
○ Certainty that the law will be enforced: Collective support for the enforcement of
legal duties (If people are left to their own devices when it comes to enforcing their
rights, this decreases the certainty that the rights will be respected)
○ Certainty that the law will be applied consistently (similar cases are treated in a
similar fashion)

THE LEGAL SYLLOGISM

“IF somebody acted wrongfully toward another person, and if he thereby caused damage to this
other person, THEN he must compensate this damage”
- Pierre acted wrongfully toward his neighbours and thereby he caused damage to his
neighbours. Pierre must compensate for the damage to his neighbours

Both the main argument, leading to the conclusion that Pierre must compensate the damage to his
neighbours, and the classificatory arguments, leading to the intermediate conclusions that Pierre acted
negligently and unlawfully toward his neighbours, are based on rules.
 - The official sources of a modern legal system are: legislation, and (in the case of the common
law) precedents

“IF a rule can be found in an official legal source, THEN this rule holds (is valid)”

INTERPRETATION:

The texts by which legal rules are created are sometimes ambiguous.
● The Literal Rule or Grammatical Interpretation
● The Mischief Rule or Legislative Intent
● Purposive or Teleological Interpretation
○ Assume that the legislator created the prohibition of dogs in butcher shops in order to
prevent unhygienic situations in food stores. If a legal decision-maker recognizes this
interest but finds the interest of visually handicapped persons more important, she
might interpret the rule teleologically to make guide dogs fall outside the rule’s scope

LEGAL REASONING:

● A rule is applicable to a case only if the facts of the case after classification satisfy the
conditions of the rule
● There is no guarantee that all legislation brought about by one body will be consistent:
○ Lex Superior: in case of conflict, the superior rule overrides the inferior rule
○ Lex Specialis: more specific rule prevails over the more general rule
○ Lex Posterior: newer rule prevails over the older one

FIELDS OF LAW: PUBLIC AND PRIVATE

Law is not a homogeneous body of rules; it consists of many «fields of law» that sometimes exhibit
large differences
● Public law is that part of the law in which the government as such plays a role
○ Criminal law, constitutional law, administrative law, public international law

● Private law is that part of the law in which the government as such does not play a role
(mutual relations between citizens)
○ Property law and contract law, tort law or family law

● EU law
○ Treaties in which the main institutions of the EU are regulated (similar to
constitutional Law)
○ The institutions of the EU also make law themselves and deal with the relationship
between citizens and companies within the EU (private law)

FIELDS OF LAW: SUBSTANTIVE AND PROCEDURAL

● Substantive law consists of rules that give people rights and determine what people should do
○ Civil law
○ Criminal law
○ Administrative law
○ EU law
 ● Procedural law provides the rules for court procedures and for the organization of the
judiciary. It also includes rules that specify how judicial orders can be enforced
○ Civil procedure law
○ Criminal procedure law
○ Administrative procedure law
○ EU procedure law

LEGAL SUBJECTS, RULES AND LEGAL CONSEQUENCES

● Legal rules impose duties (deberes) upon and attribute competences and rights to legal
subjects: natural and legal persons
● Legal rule is applicable to a case if the facts of the case satisfy the conditions of the rule. The
facts of a case that match the conditions are called operative facts. A fact can only be an
operative fact if a rule attaches legal consequences to it. EXAMPLES:
○ Someone passes away. This has the legal consequence that the property of the
deceased person is inherited by his heirs
○ A court sentences a criminal suspect. This has the legal consequence that it becomes
allowed to incarcerate this person.
○ A legislator creates a statute. This has the legal consequence that new rules come into
existence.
○ Someone is the owner of a book. This has the legal consequence that this person will
be competent to move ownership to somebody else.

JURIDICAL ACTS

A juridical act is an act performed with the intention to bring about legal consequences,
specifically one where the law connects legal consequences to the act for the reason that they were
intended
- If Daniel contracts with Rebecca that he will paint her house, he does so with the intention to
undertake a legal obligation. Because of this intention, Daniel is bound by the contract.
- If Johnnie commits a murder, it does not matter whether he had the intention to bring about
the legal consequence that he is criminally liable, because the law attaches the legal
consequence independently of his intention. This shows that murdering someone is not a
juridical act, even though it has legal consequences

Formalities: Sometimes the performance of a juridical act requires that formalities are respected:
- A legislator must follow precisely specified steps in order to create a valid law. However,
most come into existence merely through the exchange and the intention to create legal
consequences

Competence: one can only bring about particular legal consequences by means of a juridical act if one
has the competence to do so
● If an organization is the parliament of a country (a legal status), a legal rule may attach to this
status the fact that this body has the competence to legislate
● If somebody owns a house (another legal status), a legal rule attaches to this right of
ownership the competence to sell the house to somebody else
 ● ATTENTION! Sometimes the act has legal consequences, despite the incompetence of the
agent, because the act has created justified expectations
○ If a public servant has granted a building permit without having the relevant
competence, legal certainty may nevertheless require that the permit remain valid, at
least until it has been avoided

Nullity, Validity, and Avoidance

● If a person or an organization attempts to perform a juridical act for which they lack the
relevant competence, the act in question will normally not have the intended legal
consequences. The act is null and void
● If the intention of an agent to create a particular legal consequence was brought about in the
wrong way the juridical act is typically still valid
○ However, the law often gives such an agent the competence to avoid the juridical act.
○ If a juridical act is avoided, its legal consequences are taken away retrospectively.
○ This means that the law treats the juridical act as if it never had been valid and never
had any legal consequences

DUTIES, PROHIBITIONS & PERMISSIONS

● Every duty has two elements:

○ The agent who has the duty
○ The kind of action which the agent is obligated to perform
■ John has the duty to stop when the traffic light is red
● If an agent is permitted (allowed) to perform some kind of action, this means that the agent is
not forbidden to perform that kind of action. It is generally assumed that everybody is allowed
to do anything that has not been explicitly forbidden
● ATTENTION!
○ Competence is a precondition for the intentional creation of a legal consequence by
means of a juridical act. If one tries to perform a juridical act for which one lacks the
required competence, one will normally not succeed in bringing about any legal
consequence. However, an attempt to do so is not necessarily illegal
○ Permission has to do with what one is allowed to do. If an act is done without having
the necessary permission to do so, this amounts to a norm violation or perhaps an
unlawful act.

VÍDEO DEL CALVO DE HARVARD

Los primeros 10 mins no sirven de nada porque habla de 2 casos, uno de un tren sin frenos
que si va por un camino mata a 5 personas y si va por otro mata a 1, entonces cuál es el
correcto.
Moral principle: the right thing to do depends on the consequences that will result from your
action (at the end of the day, better that 5 should live and 1 must die). This is an example of
consequentialist moral reasoning
Consequentialist moral reasoning: locates morality in the consequences of an act
Categorical moral reasoning: locates morality in certain absolute moral requirements
(duties and rights regardless of the consequences).
Preguntas de reflexión para ver si te sabes el tema cerda
- What is law?
- How do we distinguish between a legal rule and a moral rule?
- Which are the main features of law?
- How are the rules interpreted?
- Which are the different fields of law?
- Define legal subjects
- What is a juridical act?

EU LAW (2)

● Member States:
○ 28 sovereign and independent states that pooled some of their sovereignty in order to
gain strength and unity from their cooperation.
○ The EU institutions take in charge the decision-making power the Member States
delegate.
○ The EU is in between a fully federal system and an intergovernmental cooperation
system

● EU Achievements
○ A single and unified market for goods and services around the EU.
○ Freedom of movement for all EU citizens as part of the Schengen Area.
○ The establishment of the eurozone

DECISION-MAKING IN THE EU

● The EU Parliament:
○ Represents the EU's citizens and is directly elected by them.
○ It is the legislative arm of the EU.
○ 751 members (MEP: Members of the European Parliament)
○ Location: Strasbourg (France), Brussels (Belgium), Luxembourg city (Luxembourg)
○ President: David Sassoli
 ○ Seats allocated among the Member States on the basis of their share of the EU
population (Germany 96, and Luxembourg and Malta 6).
○ Most MEPs are associated with a national political party in their home country. In the
EP, the national parties group into EU-wide political groupings and most MEPs
belong to one of these.
○ VIDEO:
■ The European Parliament currently has 751 members, headed by a president
and a whopping 14 vice presidents
■ Seats are divided among member states proportionately to their population,
with a minimum of six seats, and a current maximum of 96 seats, while the
larger countries are big players as a state.
■ Every five years MEPs are elected in their home country and sent to Brussels
■ The work of parliament takes place in three different countries. All of the
administrative work is done in Luxembourg, while three weeks every month
the plenary meetings are held in Brussels, the remaining week each month
meetings are held in Strasbourg.
■ Parliament has three main tasks or powers: first, the legislative power. In the
standard way New EU Law is always made, all proposals for new EU
legislation must be checked by Parliament. Parliament may then choose to
approve, amend or reject a proposal. As such, Parliament can stop every new
law from being implemented, except it can't. Parliament as EU, is only a
directly elected body, strangely doesn't have a say in legislation on all
subjects. This is often pointed out as a democratic deficit in the EU, which in
a way it truly is.
■ Parliament, as the legislative branch, makes sure the Commission, as the
executive branch, doesn't get too powerful. If Parliament is very unhappy
with the actions of the Commission, it can cast a vote of no-confidence,
effectively firing the College of Commissioners
■ Voting is usually done by simple show of hands, at which point the president
determines if there is a majority
■ In some cases, Parliament decides by simple majority; this means that a
majority of the MEP is present and voting during the plenary must be in favor
■ MEPs that are not present in the plenary at a time of the vote, all who choose
not to vote, are not counted in the total.
■ A single MEP could win a simple majority vote, as long as the rest of the
MEPs are not present or not voting for important decisions and absolute
majorities needed however.
■ When it comes to a vote of no-confidence, Parliament needs ⅔ majority of
the voting members on top of the absolute majority

● The European Council:

○ Consists of the Head of State or Government of the EU Member States + the
President of the European Council + the President of the European Commission.
○ Does not negotiate or adopt laws.
○ It sets the EU political direction and priorities. It is made up of the heads of state or
government from each EU country.
○ Location: Brussels (Belgium)
○ President: Charles Michel
 ○ It represents the highest level of political cooperation between Member States. At
their meetings, the leaders decide by consensus on the overall direction and priorities
of the Union.

● The Council of the EU:

○ Represents the governments of the EU Member States.
○ It negotiates and adopts EU legislation together with the EU parliament.
○ It is made up of NATIONAL GOVERNMENT MINISTERS grouped together by
policy area (for example: economic and finance ministers meet to discuss financial
affairs). One minister from each Member States
○ Location: Brussels (Belgium), and Luxembourg City (Luxembourg)
○ President: The Presidency changes every 6 months between the Member States
○ Which ministers attend which Council meeting depends on the subject on the agenda.
If, for example, the Council is to discuss environment, all the environment Ministers
from each Member States will attend

● The EU Commission: represents the interests of the EU as a whole.

○ Executive arm of the EU that proposes laws, policies agreement and promotes
the Union.
○ Members: A College of Commissioners, one from each Member States.
○ Location: Brussels (Belgium)
○ President: Ursula Von der Leyen
○ It is the politically independent institution that represents and upholds the interest of
the EU as a whole.
○ It proposes legislation, policies and programmes action and is responsible for
implementing the decision of the European Parliament and the Council.

EU LAW

Every action taken by the EU is founded on the treaties. These binding agreements between EU
member countries set out EU objectives, rules for EU institutions, how decisions are made and the
relationship between the EU and its members.

- Primary Law: Treaties are the starting point for EU law and are known in the EU as primary
law.
- Secondary Law: The body of law that comes from the principles and objectives of the treaties
is known as secondary law; and includes regulations, directives, decisions, recommendations
and opinions.
- Case Law: Case law is produced by the European Court of Justice (or the ECJ) and the
General Court (GC) (formerly the Court of First Instance).
EU LAW: TREATIES

VIDEO

● Only the Commission may propose new laws (right of initiative)

● Both Parliament and the Council can cause new common legislation to be created. However,
it is always the Commission to draft and propose laws, and in both cases the Commission can
choose not to do so, as long as it explains why.

● Once the consultation has ended the College of Commissioners adopts the proposal. After the
Commission drafts a proposal of the new legislation, they send it to Parliament, to the Council
and to all national parliaments. If both the Council and Parliament simply accept the proposal,
it is passed. If Parliament does not fully agree, it may amend it. The Council then considers
the amended version of the proposal and can either accept it, passing the proposal, or amend it
itself, sending it back to Parliament for a second look. Parliament may then accept or again
amend it, and send it back to the Council. If the two haven’t worked it out by then, a
commission consisting of Members of Parliament and the Council agree on a new version, if
they can’t come together the process ends here. If, however, they make a new version, both
Parliament and the Council have a third look. Here they may only accept or reject and can no
longer make any changes. This is to make sure the process does not go on forever.

● The principle of subsidiarity prevents the EU from unnecessarily infringing the national
governments’ legislative power. If one third of national parliaments object, the proposal
receives a yellow card and it must be reviewed. Based on this review, the Commission may
choose to maintain, amend or withdraw the proposal. If maintained or amended, the process
continues, if it chooses to withdraw, the process ends. If more than half of the national
parliaments object, an orange card is drawn and a similar process of review is started.

● The Commission, with the help of all kinds of experts, drafts a proposal. After that, the
proposal is reviewed by the Council and Parliament and is open for objection from national
parliaments. If the proposal manages to get through the process, it is passed and comes into
force immediately. If that’s not complicated enough, there are three forms a new EU-law can
come in: a Decision, a Regulation or a Directive.

The main treaties are:

● Treaty of Lisbon
● Treaty of Nice
● Treaty of Amsterdam
● Treaty on European Union - Maastricht Treaty
● Single European Act
● Merger Treaty - Brussels Treaty
● Treaties of Rome: EEC and EURATOM treaties
● Treaty establishing the European Coal and Steel Community
Explicación de vero:

mira te lo explico fácilmente vale:

hay 3 readings para cuando se propone 1 ley
en el 1st reading the european commision proposes a text (una ley pero el lo llama text en clase) and
it's sent to the parliament, if the parliament agrees with it it's sent to the council and if they agree too,
the law is APROVED

QUE PASA SI EL PARLIAMENT NO ESTA DE ACUERDO? AQUI VIENE EL SECOND

READING:
we have the text proposed by the commision, which is sent to the parliament and the parliament
makes AMENDMENTS (q son cambios), they send it to the council again, and it can do two things:
aprove the law, or make more amendments. In the case of making more amendments, the text is sent
again to the parliament, and we have 3 options: the law is not adopted, the law is adopted, or the
parliament makes MORE amendments. In the last case, we would have to go to a THIRD READING,
q consiste basicamente en que la european commission, el parliament y el council se juntan para llegar
a un common text o un deal

EU LAW: SECONDARY LAW

● Regulations - A "regulation" is a binding legislative act. It must be applied in its entirety

across the EU.
● Directives - A "directive" is a legislative act that sets out a goal that all EU countries must
achieve. However, it is up to the individual countries to devise their own laws on how to
reach these goals.
● Decisions – A "decision" is binding on those to whom it is addressed (e.g. an EU country or
an individual company) and is directly applicable.
● Recommendations - A "recommendation" is not binding. A recommendation allows the
institutions to make their views known and to suggest a line of action without imposing any
legal obligation on those to whom it is addressed.
 ● From 1 January 2015, the numbering of EU legislation has changed. For all regulations,
directives, decisions and recommendations published after this date, the legislation number is
cited as: year/number
○ e.g. Council Regulation (EU) 2015/159

● For EU legislation published before this date, the legislation number is cited as follows:
○ Regulations - the running number precedes the year
■ e.g. Council Regulation (EC) 1984/2003

○ Directives - the year precedes the running number

■ e.g. Council Directive 2002/60/EC

EU LAW: PREPARATORY ACTS

● These are documents used to prepare EU legislation and include:

○ Commission legislative proposals
○ Council positions
○ Legislative proposals from the European Parliament
○ Opinions from the European Economic and Social Committee and the Committee of
the Regions.
● These contain working documentation of the EU and include reports, communications and
draft legislation. Each document is coded by document type, year and serial number.
● COM documents, often known as 'COM docs', are a series of publications produced by the
European Commission for the attention of other EU institutions. They have reference
numbers prefixed 'COM' (standing for 'Commission'), e.g. COM (2000) 529.
● They include numerous different types of publication, such as proposals for legislation, green
papers, white papers and reports on the implementation of policy.
● EUR-Lex has all COM documents from 1999 onwards, together with selected earlier ones.

EU LAW: CASE LAW

● The Court of Justice of the European Union ensures that EU law is respected throughout the
EU. It consists of three courts:
○ Court of Justice:
■ It is the higher Court.
■ It is made up of one judge from each EU member state.
■ Not all judges hear every single case, each case is allocated to a chamber.
The number of judges present reflects how important or complicated the case
is.
■ The judges are supported by Advocates General. As judges, the Advocate
General sits on the bench and hears the parties. They then give their own
impartial opinion on a legal solution to the case, before the judges themselves
decide.
■ A fundamental role of the Court is to answer questions from national judges
about how EU law should be interpreted; this allows all national courts to
apply EU law in the same way.
 ■ Another of its main functions is to settle disputes that occur between different
EU institutions.
■ The European Commission can also bring cases against a Member State who
it believes has infringed EU law

○ General Court (created in 1988)

■ The General Court has more judges than the Court of Justice.
■ The GC hears cases brought by individuals or companies wanting to overturn
a decision made against them by an EU institution
■ It also deals with cases brought by the Member States against decisions taken
by the Commission

○ Civil Service Tribunal (created in 2004)

● The Court constitutes the judicial authority of the European Union and, in cooperation with
the courts and tribunals of the Member States, ensures the application and uniform
interpretation of European Union law.
● The Reports are an official publication of the case-law of the jurisdictions which form the
Court of Justice of the European Union.
● These Reports of Cases are composed of general Reports, setting out the case-law of the
Court of Justice and the General Court, and the Reports of Staff Cases, setting out the case-
law concerning civil service matters of the General Court and the Civil Service Tribunal.
● Case numbers:
○ When cases are referred to the European Court they are given a case number. This
consists of a running number allocated by the court, and the year the case was
registered. After the creation of the Court of First Instance in 1989, the letter C was
added in front of case numbers for EUCJ cases and T was added before case numbers
for CFI (now GC) cases, for example:
■ C-251/88 Re VAT on Telecommunications: EC Commission v Germany

○ The Case number is very useful when searching online databases such as Eurlex and
Westlaw. It can also be used to search the indexes to the European Court Reports and
Common Market Law Reports.
○ In 2014, the EU introduced the European Case Law Identifier (ECLI) to make it
easier to identify and locate cases. The ECLI is composed of a number for each
judgment that identifies the originating jurisdiction, the code of the court that
rendered the judgment, the year of the judgment and its number. Each component is
separated by a colon.

- EUR-Lex: It is the place where the Official Journal of the EU is published. It also serves as
the official database of EU law and related documents. It contains EU law dating back to
1951. The EU database includes: EU Treaties, EU Legislation, such as regulations or
directives, Case Law of the EU Court of Justice, International Agreements and many more
such as: documents that are part of the legislative process, consolidated versions of acts and
summaries of EU legislation
- CURIA: The CURIA database includes the full text of judgments, opinions of the Court,
Advocate General's opinions and orders of the EU courts. You can search the database by
case number, date, name of the parties, reference words in the text, etc. It also contains
 summaries of decisions, information on decisions which have not been published in the court
reports and notices in the Official Journal of the European Union.
INTERNAL MARKET

GOODS

FOUR
SERVICES FREEDOMS CAPITAL

PERSONS

The Single Market comprises all the members of the EU plus Iceland, Liechtenstein and Norway.
There are over 500 million people in it. In monetary terms, it is the largest market in the world. The
Single Market is a regulatory union, it works to ensure that all members have the same regulations
and equivalent standards. Most goods and virtually all services are regulated to ensure their safety and
quality. This means that goods and services do not need to be checked and tested when entering
another member country, so trade can flow freely. For example, banks in one EU country can provide
services in every other member country without any further regulation.

The Single Market also has rules on things like the environment, health and employment. These aim
to create a level playing field between producers of different European countries. So firms cannot
reduce their costs by say, lowering environmental standards. The SM also aims to ensure that EU
firms and citizens can recruit from and work anywhere in the EU. This opens up opportunities and
allows UK firms to recruit the necessary skills for key parts of the UK economy such as universities
(ahora con el Brexit ya no).

There are rules that all members of the EU must follow; these rules are negotiated and agreed by the
European Commission, the Parliament and the Member States and enforced by the Court of Justice.
EU governments and citizens are sure they are all playing by the same rules because they can appeal
directly to the Court if they suspect otherwise.

The three countries that are members of the SM but outside the EU play virtually no role in setting the
common rules.

● Basic elements of the stages of economic integration:

 ○ Free Trade Agreement (FTA): Zero tariffs between member countries and reduced
non-tariff barriers
○ Customs Union (CU): FTA + common external tariff
○ Common Market (CM): CU + free movement of capital and labour, some policy
harmonization
○ Economic Union (EU): CM + common economic policies and institutions

● The principle of non-discrimination:

○ Art 18 TFEU prohibits "any discrimination on grounds of nationality“; it is prohibited
to treat imported goods differently to domestic goods etc.
○ Discrimination is understood as meaning different treatment, on the basis of
nationality, under the same circumstances and vice versa

● Mutual recognition (derives from the case law)

○ The principle claims that the legislation of another Member State is equivalent in its
effects to domestic legislation
○ This principle was laid down by the Court of Justice in the Cassis de Dijon judgment.
○ Although this principle of mutual recognition applies chiefly to products, it has also
had an impact on the other freedoms, particularly those involving the performance of
services, where it underlies the concept of the recognition of diplomas.

FREE MOVEMENT OF GOODS

● Obstacles to Inter-State Movement of Goods

○ Custom duties and charges having equivalent effect (Arts. 28-33)
○ Discriminatory taxation (Art. 110)
○ Quantitative restrictions on imports and exports (quotas) and all measures having
equivalent effect (Arts. 34-36) shall be prohibited between Member States.
■ Procureur du Roi v. Dassonville (case 8/74): All trading rules enacted by MS
which are capable of hindering, directly or indirectly, actually or potentially,
intra-Community trade are to be considered as measures having an effect
equivalent to quantitative restrictions

● Categories of Measures Possibly Caught in Violation of Art. 34 by the Dassonville Formula

○ Discriminatory measures on the ground of nationality – applying only to imports or
differently than to national products (German Quality Products case C-325/00); it is
not only discrimination alone but also discriminatory effect
○ Non-discriminatory measures: so-called product requirements, related to the
production and marketing of goods that apply without distinction to both foreign and
domestic goods but it is usually more burdensome for foreign companies/goods
(Casis de Dijon case 120/78)
○ Selling arrangements: category created by Keck case C267/91 related to socio-
economic measures as to how goods should be sold (manner of sale) – WHERE;
WHEN; HOW

● Cassis Principles:
 ○ Mutual Recognition: There is no valid reason why, provided that goods have been
lawfully produced and marketed in one MS, they should not be introduced into any
other MS.
● The Rule of Reason:
○ Certain measures, even if within Dassonville formula, will not breach Art. 28 if they
are necessary (proportionality) to satisfy mandatory requirements (objective
justification) relating in particular to the effectiveness of fiscal supervision, the
protection of public health, the fairness of commercial transactions and the defence of
the consumer.

FREE MOVEMENT OF WORKERS

Article 45 TFEU
1. Freedom of movement for workers shall be secured within the Union.
2. Such freedom of movement shall entail the abolition of any discrimination based on
nationality between workers of the Member States as regards employment, remuneration and
other conditions of work and employment.

3. It shall entail the right, subject to limitations justified on grounds of public policy, public
security or public health:
a. to accept offers of employment actually made;
b. to move freely within the territory of Member States for this purpose;
c. to stay in a Member State for the purpose of employment in accordance with the
provisions governing the employment of nationals of that State laid down by law,
regulation or administrative action;
d. to remain in the territory of a Member State after having been employed in that State,
subject to conditions which shall be embodied in regulations to be drawn up by the
Commission.
4. The provisions of this Article shall not apply to employment in the public service.

Who derives rights from Art 45 TFEU and the secondary legislation:
● Workers
● Their family members
○ ‘parasite rights’
○ spouse + descendants till the age of 21
○ unmarried partner (Reed, 59/85)
○ divorced spouse (Diatta, 267/83)
○ supported ancestors of the worker and spouse
○ other family members – if supported by the worker and lived in common house-hold
○ not need to be EU citizens

Material scope of the freedom

● Accept actual job offers
● Right to enter and reside in another MS (Directive 2004/38)
● Free movement within the MS for job search purposes
● Non-discriminatory chances for employment
 ● Work conditions, social rights, tax benefits
● Right of education retirement and right to stay in the MS.

Article 20 TFEU
1. Citizenship of the Union is hereby established. Every person holding the nationality of a
Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to
and not replace national citizenship.
2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the
Treaties. They shall have, inter alia:
a. the right to move and reside freely within the territory of the Member States;
b. the right to vote and to stand as candidates in elections to the European Parliament
and in municipal elections in their Member State of residence, under the same
conditions as nationals of that State;
c. the right to enjoy, in the territory of a third country in which the Member State of
which they are nationals is not represented, the protection of the diplomatic and
consular authorities of any Member State on the same conditions as the nationals of
that State;
d. the right to petition the European Parliament, to apply to the European Ombudsman,
and to address the institutions and advisory bodies of the Union in any of the Treaty
languages and to obtain a reply in the same language. These rights shall be exercised
in accordance with the conditions and limits defined by the Treaties and by the
measures adopted thereunder
FREE MOVEMENT OF SERVICES

Ways of movement for self-employed

● They can move on the territory of another MS with the purpose to perform economic activity
on permanent basis by establishing there (Art 49 TFEU): FREEDOM OF
ESTABLISHMENT
● They can go for fixed period of time to another MS with the purpose of performing a service
for appropriate payment and after that, they return on the territory of the MS of establishment
(Art 56 TFEU): FREE PROVISION OF SERVICES

Barriers:
● Requirement of nationality
● Non-recognition of professional qualifications
● Single business unit requirement
● Knowledge of language
● Limiting access to social benefits
● Limiting access to various infrastructure (more advantageous loans for nationals; limited
access to real estate)
● Other barriers to free movement.

Article 63 TFEU
1. Within the framework of the provisions set out in this Chapter, all restrictions on the
movement of capital between Member States and between Member States and third countries
shall be prohibited.
2. Within the framework of the provisions set out in this Chapter, all restrictions on payments
between Member States and between Member States and third countries shall be prohibited.

Questions to consider:

What is the EU?

Which are the main Institutions of the EU?
Which are the sources of EUL?
What is the difference between the direct and indirect effect of secondary laws in the EU?
How can EUL be challenged at the CJEU?
What is the EU Internal Market?
Define and compare the principles of non-discrimination and mutual recognition
Why should the free movement of goods, workers, services and capitals be guaranteed in the EU?
What is the EU Internal Market?
Define and compare the principles of non-discrimination and mutual recognition
Why should the free movement of goods, workers, services and capitals be guaranteed in the EU?
CONSTITUTIONAL LAW (3)

SPAIN: A SOCIAL AND DEMOCRATIC CONSTITUTIONAL STATE

On December 6, 1978, a Constitution was approved by national referendum
● Definition of the form of government: parliamentary monarchy
● Relationship between Church and State: “the State has no religion… the public powers
will, however, cooperate with the Catholic Church and other religious faith
● Territorial structure of the State: decentralized state (177 autonomous communities)
● Powers of the Head of State and the Executive in respect of Parliament
● Definition of the fundamental rights and freedoms.

SOURCES OF SPANISH LAW

● Sources of Law: everything that provides rules for the judge to decide a case
● Art.1 Spanish Civil Code: la ley, la costumbre y los principios generales del derecho
● The sources of law in Spain can be divided into 3 categories
○ Primary sources of law: they provide the judges with the law directly applicable to
the case
○ Complementary sources: the power and scope of which derives from a primary
source
○ Explanatory sources: they give guidance to the person applying the law as regards the
meaning of primary sources (e.g. Academic Doctrine)

PRIMARY SOURCES OF LAW: LA LEY

Ley is any written rule of law created by the State
- Types of Ley
➢ Leyes Orgánicas
➢ International Treaties
➢ Leyes Ordinarias
➢ Decretos Leyes
➢ Decretos Legislativos
➢ Reglamentos, decretos and other administrative dispositions

PRIMARY SOURCES OF LAW: LEYES ORGÁNICAS

 ● Leyes Orgánicas are a special type of statute required by the SC for the regulation of certain
matters, subject to special requirements for the procedure of elaboration, approval,
modification and derogation.
● Article 81 SC: leyes orgánicas regulate fundamental rights and civil liberties, approve of the
Estatutos de Autonomía, the general electoral regime and any other matter provided by the SC
● Leyes orgánicas are different from ordinary legislation in two ways:
○ Subject Matter:
■ Exercise of fundamental rights and public liberties
■ Statues of Autonomy
■ The general electoral system
■ …

○ Formal Requirements for their approval

■ Organic laws require an absolute majority of the Congress in a final vote of
the entire bill

LEYES ORGÁNICAS
● Relationship between Leyes orgánicas and Leyes: a question of subject of matter, not
hierarchy
● Problem: when a ley orgánica regulates matters specified in the SC as requiring such
legislation but goes beyond these and regulates other matters not specifically so reserved.
○ SCC: declared that if a ley orgánica regulates any other matter beyond the areas
delimited in the SC it would only have the value of an ordinary ley and such it could
be modified by later ordinary legislation.

PRIMARY SOURCES OF LAW: INTERNATIONAL TREATIES

● Art. 96 SC: international treaties become internal laws once they have been signed ratified
and published in the BOLETIN OFICIAL DEL ESTADO
○ If the Treaty attributes to an international organization or institution the exercise of
competencies derived from the SC, the authorization must be established by means of
an Organic Law (art 93 SC)
○ If the Treaty is of certain matters as political or military nature: affects the integrity of
the State or fundamental rights and duties established at Title I SC; creates financial
obligations for the public treasury or involves modifications or repeals some law or
requires legislative measures for its execution then the treaty shall require Parliament
´s authorization (art 94 SC)
 ○ Any other treaty may be signed for the Government who shall inform the Parliament
(art 94.2 SC).
● As stated in art 95 SC any international treaty which contains stipulations contrary to the
Constitution shall require a prior constitutional revision. The Government or either the
Chambers may request the SCC whether this contradiction exists.

PRIMARY SOURCES OF LAW: LEYES ORDINARIAS

● Ordinary laws are all the laws whose subject matter is not reserved to organic laws by the SC
● They require a simple majority of the Congress and of the Senate, with the Congress adopting
the final decision.

PRIMARY SOURCES OF LAW: DECRETO LEY

● Decree-Law (Decreto-ley Art. 86 SC). They are provisional legislative decisions that the
Government may issue for extraordinary and urgent matters and rank as laws
● Decree Laws may not affect
○ Basic institutions of the State
○ Rights, duties and liberties of the citizen regulated in Title I
○ The system of the Autonomous Communities
○ The general electoral law

● Decree Laws must be ratified by Congress, convoked for that purpose if it was not gathered,
within a period of 30 days.
○ The validity of this type of legislation is therefore conditional on the ratification or
rejection by Congress
■ If it is approved, Congress can convert the decreto ley to an ordinary law

PRIMARY SOURCES OF LAW: DECRETOS LEGISLATIVOS

● The Parliament may decide that some legislation would be better drafted by the Executive
because of the nature of the matter
○ Any delegation of power shall be exercised within strict limitations
■ Specific matter
■ Expressly allowed by a ley
■ For a finite period of time
● Legislative decrees are dispositions of the Government containing delegated legislation (art.
85 SC) and also rank as laws.
 ● This legislative delegation must be granted by a Basic Law (Ley de Bases) when ts objective
is the formation of articled texts or by an ordinary law when is a matter of arranging several
legal texts into a single one (Art. 82.2 SC)
● This delegation must be granted to the Government in an express form, for a concrete matter
and establishing a period of time for its exercise (Art. 82.3 SC)

PRIMARY SOURCES OF LAW: REGLAMENTO

● Regulations are legislation of a lower status. The term Regulation is referred to any general
rule dictated generally by the Government
● Art 97 SC gives the Government regulatory power but other constitutional organs of the State
may also have regulatory power in order to regulate their own function
○ Congress and Senate (art 72.1 SC)
○ General Council of the Judiciary ( art 2.2 LOTC)
○ SCC
● Regulations may regulate matters without legislative coverage or develop an existent law
● They also may create or modify rights and duties of the citizens or just organize
administration activities affecting only the citizen who has a special relationship with the
administration.
● Types of regulations
○ Decree (Decreto) from the Council of Ministers
○ Order (Orden) from the Ministers or Delegate Commissions.
○ Instruction (Instruccion) and Orders of Regulation (Circulares) from the inferior
authorities and members of public administration.

COMPLEMENTARY SOURCES: CASE LAW

● La Jurisprudencia (Case Law) will complement the legal system and is the tool by which the
uniform application of the above sources of law is guaranteed
● The Decisions of the SCC: when the SCC declares a statute to be unconstitutional and so null
and void, this interpretation is superior to the interpretation of the legislator
○ This rule places the SCC´s decisions on the same level as the SC.
○ The decisions of the SCC have to be applied by the ordinary courts.
THE RELATIONSHIP BETWEEN STATE LAW AND THE LAW OF THE AUTONOMOUS
COMMUNITIES
● In the Spanish legal system there are two levels of legislation: the rules of law of the State and
the rules created by the autonomous communities
○ Estatuto de Autonomía is the basic institutional rules of each Autono
Community.
○ All the Autonomous Communities have legislative power
■ Ley promulgated and published by the president of the Autonomous
Community in the Official Journal
■ If the Spanish Government challenges the constitutionality of legislation of
an Autonomous Community, application of this legislation is suspended until
the matter is resolved by the SCC.
■ The autonomous Communities can also delegate legislative power—-decretos
legislativos and pass reglamentos. Urgent legislation by decreto ley is not
possible.

THE CROWN
● Spain is a social and democratic State of Law in which sovereignty rests on the nation and the
political form of government is a parliamentary monarchy
● Functions of the King
○ Head of State
○ Stands in a position of neutrality, guaranteeing the regular functions of the institutions
of the State
○ Represents the State
○ Is the Head of the armed forces
○ Guarantees the Constitution and Constitutional order

PARLIAMENT (LAS CORTES GENERALES)

● The Spanish Parliament is the institution that represents the Spanish people
● Functions
○ Legislative: producing the main rules of the system
○ Budgetary: authorizing the expenses of the State
○ Proposes candidates for other constitutional organs

● The Parliament is divided into two chambers (Art. 66.1 SC):

○ The Congress of Deputies (Congreso de los Diputados): the chancer of popular
representation
 ■ The Congress is in a position of clear superiority over the Senate both in the
relationship with the Executive and in the legislative proceedings whereby
the Congress can decide whether or not it accepts any modifications
introduced by the Senate.

● Each chamber has its own organs:

○ A President
○ A Board (Mesa)
○ Board of Spokesperson (Junta de Portavoces)
○ A representative from the Executive, chaired by the President of the Chamber.

● Both Chambers work in Plenary Sessions and in Commission (art.75.1 SC)

○ Due to the difficulty (or impossibility) of discussing each question in a Plenary
Session, Chambers may delegate to the Commissions which study the different
proposed regulations and the technicalities involved therein
○ Commissions have full legislative power in most matters, they can approve bills or
proposals of law although the Plenary Session may require debate and voting on any
bill or proposal of law (art 75.2 SC)
○ As stated in art 75.3 SC, constitutional reform, international affairs, organic and basic
laws and the general budget must be treated in Plenary Session.

THE GOVERNMENT
● The functions and the structure of the Government are regulated by Title IV SC.
○ Direction of the government
○ Executive Power: execution of the laws
○ Control direction of the national politics: economy, agenda, budget, legislative
initiative, decretos leyes…
○ Foreign relations

● The Government is composed by

○ President (He/She has investidura parlamentaria: he /she enjoys the confidence of the
Parliament )
○ Directs the Government
○ Nomination and dismissal of ministers
○ Initiation of the Cuestion de Confianza
○ Dissolution of the Parliament
○ Submission of a decision to popular referendum
 ○ Vice-Presidents
○ Ministers
■ Heads of the Ministerial Departments
■ Chosen by the President and formally nominated by the King

SPANISH CONSTITUTIONAL COURT

● The SCC is composed of 12 members
○ 4 chosen by the Congress
○ 4 chosen by the Senate
○ 2 chosen by the Government
○ 2 chosen by the CGPJ

● Functions
○ Supreme interpreter of the SC
○ Control of the constitutionality of the rules
○ Protection of the FFRR and freedoms
○ Control of the constitutionality of the Autonomous Communities
○ Control the distribution of power between the central autonomic and local
administration

LEGISLATIVE PROCESS: INITIATIVE

● Art.87 SC. Legislative initiative belongs to the Government
○ Government exercises the legislative power on behalf a bill (Proyecto de Ley)
○ Bills are approved in the Council of Ministers (Consejo de Ministros) which shall
submit them to the Congress accompanied by an exposition of motives and the
antecedents (art. 88 SC)
○ Once a bill has been approved by the Congress it will be delivered to the Senate that
may:
■ Veto (by an absolute majority)
■ Introduce amendments into it

○ Congress may or may not accept the amendments

■ If not, Congress must ratify the bill by an absolute majority or by simple
majority once two months have passed since the presentation of the text.
■ Congress may also accept or not the amendments expressing itself whether or
not it accepts them by a simple majority.
LEGISLATIVE PROCESS: INITIATIVE
● Congress and Senate
○ They exercise the legislative power on behalf of a proposal of law (Proposición de
Ley) (art. 89.2 SC)

● Assemblies of Autonomous Communities

○ May request the Government to adopt a bill or send to the Board of the Congress a
proposal of law ( art. 87.2 SC)

● Popular initiative
○ This initiative shall require at least 500,000 signatures and is not applicable to
Organic Laws, taxation, international affairs and the prerogative of pardon

ORDINARY LEGISLATIVE PROCESS

● The bills proposed by the Government of the proposals of law issued by the Senate are
discussed at Congress in a Plenary Session in order to be accepted or to be tabled veto to
amendments.
● The bill or the proposal of law pass to the study of a Commission
○ The Commission designates a “Ponencia '' who will prepare a brief about the text
(Dictamen) which will be discussed and voted on in Plenary Session.
○ Groups can hold up amendments not accepted by the Commission
○ The Commission studies the text section by section and the amendments
● Once the text is approved by the Congress the bill or proposal of law is submitted by its
President to the Senate.
● As in the Congress, work takes place in the Senate in Plenary Sessions and in
Commissions.The Senate may accept, block a veto or introduce amendments
○ Approve the bill or proposal of law by the same majority required at the Senate
○ Wait for two months and approve the text by a simple majority
■ In both cases, the text is the one approved initially by the Congress. Congress
can obviate the veto placed by the Senate.
○ If the Senate introduces amendments, Congress only has to accept or reject them by a
simple majority
○ If the text is accepted without any modification, the text is ready to be sanctioned by
the King.
● The King shall sanction the laws approved by the Parliament within the period of 15 days and
shall promulgate them and order their publication (art 91 SC)
 ○ King´s sanction is required by the SC but has lost its original political and legislative
sense and has only the consideration of a formal requirement nowadays
● Decisions of special importance may be submitted for a consultative referendum of all the
citizens convoked by the King at the proposal of the President of the Government authorized
by the Congress (art.92.SC)

Questions to consider:

What system of governance is provided for in Spain?

Which are the main sources of Spanish law?
What is the difference between Leyes Orgánicas and Leyes?
What is the difference between Decretos Leyes and Decretos Legislativos?
Define the functions of the Parliament
Define the functions of the Government
Briefly describe the legislative process in Spain

CONTRACT LAW (4)

Contracts and obligations

CONTRACT: CONSENTIMIENTO, OBJETO, CAUSA!

THE LAW OF OBLIGATIONS

● Article 1088 Civil Code: the obligations consist of giving, doing or not doing something
○ The law of obligations is the branch of civil law that regulates the right that one
person (creditor) has to request from another (debtor) that the latter gives, does or
refrains from doing something. (Es la rama del derecho civil que regula el derecho
que tiene una persona, que se llama acreedor, a solicitar a un deudor a hacer, dar o
abstenerse de hacer algo.)

● Elements:
○ Subjects: creditor and debtor
○ Object: performance that can be demanded by the creditor (doing, not doing, or
giving something)
○ Relationship between the subjects
○ Causa: the reason of the powers of the creditor to demand a performance by the
debtor. (No entiendo muy bien esta definición jaja)
 ● Sources of Obligations: obligations are created by law, by contracts, and quasi-contracts and
by those illegal acts and omissions in which there is fault or negligence.
○ Legales: obligations created by law
○ Contractuales: obligations created by contract

TYPES OF OBLIGATIONS

● According to the number of Subjects

○ Unipersonales: there is only one subject
○ Mancomunadas: each part is liable (responsible) to perform only their own part of the
obligation
○ Solidarias: all the debtors are liable for the whole performance and all creditors have
the right to demand performance of the whole obligation

● According to the Performance Due by the Debtor

○ Obligaciones de dar: physical transfer of a corporeal thing to the creditor
○ Obligaciones de hacer:
■ Obligación de medios: performance of a certain activity without expecting
any precise result
■ Obligación de resultados: requires the obtainment of a specific result
○ Obligaciones de no hacer: imposition to the debtor of an obligation to refrain from
certain behavior.

DEFINITION

● A contract is a legally binding agreement with words or in writing between two or more
parties (people or companies), or a set of legally binding promises made by one party to
another.
○ The law says that these kinds of promises are enforceable. If one party breaches their
legal promises then the other will be entitled to a legal remedy to compensate them
for any loss suffered.

● Contract law is a private body of law. It operates between individuals or companies who owe
the obligations created by valid contracts to other individuals or companies. The role of courts
is to interpret and enforce the terms of the contract that the parties agreed to.

● In most jurisdictions, the law of contract is found in both a mixture of statutory laws passed
by the parliament and common law principles established by the courts and judges when
deciding disputes. It is also known as the law of obligations, from the common law.

HOW DOES A CONTRACT BEGIN? AGREEMENT

● Agreement is made up of two parts including an “offer” made by one party, and “acceptance”
by the other.
○ An offer is an expression of willingness by one party to enter into a contract on the
verbal or written terms as stated. It’s a promise to do, or not to do something in
return.
 ○ Acceptance is an unmistakable statement with words, conduct or in writing, by the
other party to respond and accept the offer made. Through this form of legal
consensus, “agreement” has occurred.

HOW DOES A CONTRACT BEGIN? CONSIDERATION

● Consideration is the price one party pays for the promise of the other party
○ “Consideration” does not need to be money (although it normally is) and could be the
exchange of something of value.
○ For example, this could include assigning a number of shares in a company held, or
even as simple as agreeing to pay for monthly services with a loaf of freshly baked
bread.

HOW DOES A CONTRACT BEGIN? INTENTION

● Intention to create legal relations is another core element

○ Usually, this is not an issue where one party pays the other valuable consideration as
evidence of their intention to be bound by the agreement.
○ However, the law does recognize that in some circumstances the parties are not
presumed to intend to enter a binding contract, such as domestic, social or family
agreements.

HOW DOES A CONTRACT BEGIN? CAPACITY

● Capacity to contract is generally presumed, but there are some exceptions

○ Young people under the age of 18 do not have capacity to enter into binding legal
contracts in many jurisdictions unless they are for ‘necessities’ to maintain the
condition of life of the person under 18.
○ People who are mentally incompetent do not have the capacity to enter into binding
contracts either, where they are not capable of understanding the transaction they are
entering into and the other party knew that they were mentally incompetent at the
relevant time.

HOW DOES A CONTRACT BEGIN? FORMALITIES

● Formalities are required by statute law for some forms of contract, such as the sale of land.
○ This means that the contract must be evidenced in writing and signed for.
○ The purpose of these requirements for some contracts is to reduce fraudulent (untrue)
contract claims and to ensure that it is easier to prove that the parties completed the
contract.

WHAT 'S THE DEAL? CASE GOES HERE WITH AN EXPLANATION

CONTRACTUAL OBLIGATIONS

● An agreement is made up of two parts including an ‘offer’ made by one party, and
‘acceptance’ by the other. An offer is an expression of willingness by one party to enter into
 a contract on the verbal or written terms as stated. It is a promise to do, or not to do something
in return.
● Acceptance is an unmistakable statement with words, conduct or in writing, by the other party
to respond and accept the offer made. Through this form of legal consensus, ‘agreement’ has
occurred, even when buying something online.

WHAT ABOUT WHEN THINGS GO WRONG WITH CONTRACTS?

● In reality, most contracts are performed and completed without any problems, a house is built,
a car is sold or an item of clothing is purchased and worn.

○ But contractual relationships can go wrong, and the disappointed party will want
either the contract enforced and performed, or a legal remedy or compensation for
any loss they have suffered.
○ When this happens, the disappointed party can take their matter to the court to
adjudicate on what the outcome of the dispute should be.

● The Court will look at the contract problem objectively, meaning that they will take the view
of what a reasonable person would understand all the facts, circumstances and the contract at
the time it was entered into, and what were the terms agreed between the parties at the time
the contract was made (both verbally and in writing)

● After assessing all the relevant evidence, and after applying the law of contract, the Court
decides what the outcome between the parties should be.
○ The Court then makes an enforceable decision against one party.
○ For example, it can order that the contract be performed or that the losing party pay
monetary compensation, also known as damages to the party who has suffered the
loss as a result of the breach of contract.

WHAT ABOUT FAIRNESS?

● One problem with contract law is that it assumes that both parties are just as smart as each
other and can freely bargain the terms of the contract between each other
● Many people either do not understand what their contractual rights are, or how to advocate for
their protection and preservation.
● The law of contract is aware of this and has a number of tools in the form of principles
available to even up the playing field when parties enter into contracts

WHAT ABOUT FAIRNESS? RELATIONSHIPS OF UNDUE INFLUENCE AND

ADVANTAGE

● If it can be shown to a Court that one party exerts undue influence over another to enter into a
contractual agreement, the Court can set the contract aside.
○ The influence can be actually such as a violent relationship between a husband and
wife, or even presume where the very nature of the relationship means that there is a
power imbalance, such as between a doctor and a patient, a parent and a child, or
even a lawyer and their client.
 ○ Where a position of undue influence can be established, the onus is on the stronger
party to prove that the weaker party entered into the contract freely and with their full
consent. (La undue influence es una influencia por la cual una persona es inducida a
actuar de una manera que no sea por su propia decisión, esto lo pongo porque soy
retrasada y no lo sabía)

WHAT ABOUT FAIRNESS? ENGAGING IN UNCONSCIONABLE CONDUCT AGAINST A

DISADVANTAGED PARTY?
● Where a stronger party knows and exploits a special disability of the weaker party, then the
contract may be avoided by them on the grounds that it would be unconscionable for the
transaction to proceed.
○ ‘Special disability’ can include age, literacy, language barriers, mental incapacity,
even drunkenness are all relevant factors to assessing the degree or amount of
disadvantage the weaker party had at the time of entering into the contract.

WHAT ABOUT FAIRNESS? MISREPRESENTING INFORMATION OR MISLEADING OR

DECEPTIVE CONDUCT

● When two parties are considering entering into a contract they make statements, discuss terms
and negotiate what is important to each of them
○ But, when one party makes a false statement about an important fact about the deal
which causes the other party to enter into the agreement and suffer loss, they have
wrongly misrepresented a key factor and should not be entitled to profit from that
behaviour.
○ So, if a commercial real estate agent makes a representation to a potential buyer that
the property is “fully let and tenanted for the next two years” that will “guarantee a
great source of income for you”. When it can be shown that the real estate agent had
knowledge that, all the tenants were about to leave the building next month, then the
buyers will have a legal remedy, and can ask the court to set the contract aside, and
put them back in the same position they were in before they entered into the contract.
(NO LO ENTIENDO)

Elements of a valid Spanish contract

VALID SPANISH CONTRACT
=
CONSENT OF THE PARTIES
+
OBJECT OF THE CONTRACT
+
CAUSA OF THE OBLIGATION
Consent

● The agreement of the parties to the contract

● Contracts are valid and enforceable from the time at which the parties’ consent coincides over
the object and the cause of the obligation
● The parties can express their consent in any way they wish
● Vicios del Consentimiento (defects on the formation of the consent): situations in which the
consent of one or more of the parties is vitiated either because of their own mistake or
because of external interference
○ Error: essential or substantial (in respect of the object of the contract)
○ Dolo: One of the parties by words or insidious machinations induces the other party
to celebrate a contract that he would have not celebrated in the absence of those
words or conduct.
○ Violence or intimidation: violence (use of irresistible force in order to exact the
consent of one of the parties), intimidation (a threat that produces in one of the parties
to the contract a rational fear of suffering a serious)

Object of the contract

● The object of the contract must be legitimate, possible and determinate

○ Legítimo: the object shall be legal
○ Posible: the object of the contract cannot be impossible
○ Determinado o determinable (ascertained or ascertainable)

Causa

● Objective: socioeconomic function of the contract (the contract of sale has the function of
exchanging things for money)
● Subjective: controlling the conformity of the contract with the law and morals of the
community at a particular time (the causa must be the specific causa for that particular
contract and in this sense, it is very difficult)
● Absence of causa and falsa causa: they will produce no effects
○ If there is no causa, there is no contract
■ The causa is presumed to be existent and legal even if it is not stated in the
contract unless the debtor proves otherwise
○ The causa falsa is a fundamental error on which consent was based

Conditions

● The parties can agree whatever they wish in whatever terms they wish and can subject the
contract to whatever conditions they think fit
● Contracts subject to a condition are perfect contracts but their effects depend on a future an
uncertain event: The fact or event must be possible, legal and independent of the parties
○ Suspensivas: make the effects of the contract subject to a future event
○ Resolutorias: when the future event eventually takes place, the contract ceases to
produce effect.
Apuntes de un ejemplo de clase:
Causa:
La causa subjetiva NO se cuenta como causa en un contrato
Si hay ausencia de causa o causa falsa, no hay contrato
Dad + Mum: Rubén and David
They love Rubén more than David, so they give Rubén a house. If they pass away, according to
Spanish law, ⅓ of the house goes to David. We do a compra-venta with Rubén. The contract of the
parents ‘selling’ the house to Rubén is not valid because there is no causa, they are ‘donating’ the
house because Ruben is not really paying the price. (Alzamiento de Bienes). The real causa would be
a donation, not a venta.

Contracts are open to the negotiation of the parties

Condiciones suspensivas y resolutorias
Suspensivas: you want to sell your house and to buy another one, so you agree that until you sell your
house you are not going to pay the other one.
Resolutorias: Jon is living in your house as a tenant, so as soon as you sell your house, Jon leaves.
(The contract ceases)

DISCHARGE OF THE CONTRACT

- Performance (pago/incumpliento): discharges a contract and extinguishes any obligations
created
- The debtor, or a third party in place of the debtor, is the person obliged to perform the
obligation
- Exception (personal obligations - obligaciones personalísimas: employing a
famous lawyer)
- Caso Fortuito and Fuerza Mayor
- Nobody can be held responsible for those events that could not have been foreseen, or
that if foreseen could not have been avoided
- The debtor must prove that he can no longer perform his obligations and that
the debtor did not contribute these exceptional circumstances to take place
- Breach of Contract and Remedies
- The debtor does not perform his obligations
- Time, inadequacy
- The creditor has the right to request ejecución forzosa of the obligations
- Daño Emergente: damage suffered by the creditor
- Lucro Cesante: loss of earnings or loss of profit

Questions to consider:

What is a legal obligation?

Which elements define the obligations?
Types of Obligations
Contractual Obligations
How does a contract begin?
Define a contract
Define fairness
Which are the elements of a valid Spanish Contract?
BASIC PRINCIPLES OF LAW (5)

WARM-UP

● Everyday, in our community, we all have a duty to take care of our acts and behaviours and to
avoid causing harm or injury to each other that we could just as easily avoid if we were
careful.
● “Tort” is an ancient French word, meaning “twisted” or “wrong”, so legally is a civil
“wrong”, so legally is a civil wrong.
● Tort claims are brought by the plaintiffs, who have suffered harm or injury to either their
personal security and safety, reputation, property, as well as their economic and financial
interests by the defendants, from what they do, or fail to do, either through their negligence,
intention or simply doing something that causes the plaintiff harm
● What is the point of torts?
○ One way of thinking about torts is how it regulates our responsibilities to each other
in the community, even if we don't have a contract, or have any kind of prior
relationship. Tort law can deter people or companies from doing or failing to do
things that place the public at risk of harm or injury.
● What is the difference?
○ Unlike criminal law, torts are private law claims brought by individuals against other
individuals or the state. If the tort is proven on the balance of probabilities by a
plaintiff, a court can order a remedy aimed at putting the plaintiff back in the same
position before the harm occurred, usually in the form of monetary compensation,
known as damages.
● Torts therefore also performs an important compensatory aspect in the wider community for
individuals who have suffered harm. Today, we know that second hand tobacco smoke or
asbestos is dangerous because of tort claims.

CASE: TONY TRESPASSER---VÍDEO

- At 31 Normal Street the gate is open. Tony walks up the path to the front door. Is Tony
trespassing on the owner's land?
- At 33 Normal Street the gate is closed, but not locked. Tony opens the gate and walks up the
path to the front door. Is Tony trespassing on the owner's land?
- At 35 Normal Street the gate is locked. Tony jumps the fence and walks to the front door. Is
Tony trespassing on the owner's land?
 - At 37 Normal Street the gate is open and there's a sign at the front gate that says, “No
advertising material”. Tony knocks on the front door in case someone is home. Is he
trespassing on the owner's land?
- Tony spies a ceramic frog in the front garden of 37 Normal Street and decides to take it with
him. Is Tony trespassing against goods? Would have it made a difference if Tony didn't take
the frog and only briefly looked at it ?
- Private Percy, the owner of 37 Normal Street saw Tony take the ceramic frog and rushed up
to Tony shouting and threatening him. Has Percy committed a tort?
- Percy pushes Tony. Has Percy committed a tort?
- Tony doesn't like being pushed around, so he forces Percy back into a shed, closes the shed
door on him and then places a shovel against the door handle to prevent his escape. Has Percy
been falsely imprisoned and has Tony committed a tort?
- Tony removes the shovel from under the door handle thinking Percy will leave the shed when
he likes as there's nothing stopping the door from opening. Percy doesn't know the shovel has
gone and that he can now escape the shed. Has Tony committed a tort?
- Tony leaves Percy´s property and spies two students sleeping under a tree. He places the
ceramic frog in the open hand of one of the sleeping students and then continues on his way.
Has Tony committed a tort?

CASE:TONY TRESPASSER--VIDEO

CASE: CARELESS COLIN---VIDEO

CASE: CARELESS COLIN

- Colin´s friends were injured during their camping and canoeing trip. Can Colin´s friends sue
him for the tort of negligence? What must they prove to recover compensation from Colin?
- What could have Colin done differently?

NEGLIGENCE CLAIM

A plaintiff will need to establish against a defendant that it:

● Owed the plaintiff a duty of care

● Breached that duty of care by failing below the expected standard of care, actually caused
harm, injury or loss to the plaintiff
● The loss is not too remote from the breach (i.e. it flowed naturally from the breach)
DUTY OF CARE

● A “duty of care” is a common law legal principle. It unites all relationships we can reasonably
foresee that our actions or inactions will affect. It is an obligation the law imposes on people
to take “reasonable care” and to not cause people harm, injury or accident
● We can apply this principle to many environments we go into every day. A school has a “duty
of care” to its students to make sure its buildings are safe for children, for example.

STANDARD OF CARE

● The law applies what is called the “reasonable person” test to assess what this “reasonable
person” would have done at the time of the injury or accident. This test involves an
assessment of the:
○ PROBABILITY of the harm occurring to the plaintiff
○ GRAVITY of the harm that could occur to the plaintiff
○ Social utility or benefit of the activity that the defendant was undertaking, and
practicality of the defendant taking precautions against the risk causing the injuries.
● This test can be adjusted to take into account any special relationships, such as where the
defendant is a member of a profession, as a doctor.

EXTRA-CONTRACTUAL ABILITY IN SPANISH LAW

● Civil Responsibility (arts.1902-1910 Civil Code)

● Extra. contractual responsibility arises when there is no pre-existing legal obligation between
the author of the illicit contract and the victim.
○ Art.1902 CC: whoever causes damage to another with fault or negligence is obliged
to repair the damage caused (these four elements are cumulative, you need to prove
the four of them):
■ Act or omission
■ Damage
■ Causal Link between the act and the damage (if we are not able to prove that
there is a causal link there is no an extracontratual responsibility)
■ Fault or Negligence
● Responsibility for risk
○ Compulsory insurance: motor insurance
● Act or Omission
● Damage
○ It is necessary to prove that some damage has been suffered
 ■ Material damage
● Daño emergente (damage actually cause)
● Lucro cesante (loss of income suffered)
● Moral damage
● Causal Link
○ The Courts shall evaluate all the different concurring causes and their effects in the
casual relationship
● Fault or Negligence
○ The period to demand extra-contractual responsibility is 1 year from the date that the
victim knew of the damage.

EXERCISE

A 20-year-old boy died on October 14, 1995, when he ingested, with the intention of committing
suicide, potassium cyanide that he had previously bought in a shop selling laboratory instruments and
chemical substances.

• Santiago was subjected to psychiatric treatment for suffering paranoid schizophrenia and had
already tried on other occasions to commit suicide, although he did not show external signs of his
illness when he went to acquire the lethal product. In any case, the substance sold was not conditioned
to issue any regulatory requirement for its purchase.

• Relatives of Santiago appeal against Ms. Rita, the owner of the shop and against CASER Grupo
Asegurador, claiming 14 million pesetas, in compensation for damages

- ACT OR OMISSION: SELL OF POTASSIUM CYANIDE TO SANTIAGO

- DAMAGE: DEATH
- CASUAL LINK: AS A RESULT OF IT THE DAMAGE (HIS DEATH) HAS BEEN
CAUSED.SO THERE IS A CONNECTION BETWEEN THE ACTION AND THE
DAMAGE CAUSED
- NEGLIGENCE:

Can we forced rita to think that tht boy commiting suicide is caused by the sell of that product?

https://www.poderjudicial.es/search/
BASIC PRINCIPLES OF LAW (6)
PROPERTY LAW

THE CLASSIFICATION OF PROPERTY

● Bienes muebles and inmuebles

○ Bienes inmuebles (immovable): are all land and buildings or constructions attached to
them (trees, plants and crops), mines and water, any real right over immovable
property
○ Bienes mueble (movables): any property that can be appropriated and moved from
one place to another without detriment to the property itself.
■ Fungible: consumed by normal use (e.g.: vegetable product)
■ Infungible (e.g. Piece of furniture)
● Possession of movables can amount to a title whereas this is not the case with
immovable. Immovable may only be acquired by adverse, unchallenged possession
over a period of time (usucapio or prescripción adquisitiva)
○ It is important to establish whether an item of property belongs to one or the other
category when establishing ownership at the dissolution of a matrimonial regime or at
the time of succession

● Public and Private Property

○ Property owned by public law entities is classified as bienes de uso o dominio público
or bienes patrimoniales
■ Bienes de dominio público: put to public use or to the fulfillment of a public
service
■ Destined for public use: rivers, roads, harbors, public built bridges,
beaches…
■ Property that belongs to the State but is not open to public use: mines,
buildings for the defense of the territory…
○ Bienes de uso público: roads, squares, streets, fountains, public waters, promenades,
public buildings of general use
○ Bienes Patrimoniales: private property of the State

OWNERSHIP V. POSSESSION

● Ownership entails a right of enjoyment, a power of disposition and a right of exclusion of

others
● In principle, the law will protect the possessor over the owner until it is proved that the
possessor has no right to enjoy the property
○ If the person claiming to be the legitimate owner wants a court decision to establish
that the person in actual possession has no right to the property, he/she needs to
exercise an acción reivindicatoria
 ● Possessors enjoy 3 presumptions:
○ The possessor has got good title (good right allowing him to possess)
○ He is a possessor in good faith
○ He has been the continuous possessor of the property

OTHER REAL RIGHTS

1. Usufruct
● Right to use and enjoy the benefit of a thing, which belongs to another person without
altering its substance
● The usufructuario enjoys the sole possession of the thing and has got the power to
exclude the owner
● Example: in succession matters where the parties create an usufruct in favor of the
surviving spouse that will allow him/her to ensure enjoyment and use of the proper

2. Servidumbres
● Servidumbres are limitations on the use of land generally imposed by law.
● E.g.: telecommunications networks, rights of way for the provision of electricity,
water…

3. Rights of guarantee
● Real rights that guarantee the performance of a right of credit by charging the
property of the debtor.
● Hipotecas and prendas
○ Prendas are reserved to movable property – old fashioned (the person
requesting and obtaining the credit must transfer possession of the object to
be charged to the creditor who must keep it safely until such a time when the
debt is satisfied)
○ Hipotecas are reserved to immovable property. Hipotecas are an accessory
guarantee to the main obligation (guarantees for bank loans for the purchase
of land)
■ Acción hipotecaria: in case of default by the debtor

Prenda: me das algo, y si no haces lo acordado me lo quedo :ppppp

4. Rights of preferential acquisition

● Tanteo and Retracto:
○ Ensure that certain persons acquire a particular property with priority to
others (the general open public).
○ The only difference is the time at which they operate: tanteo before the
transfer has taken place and retracto after it.
 ■ Tanteo: gives the holder a right of first refusal or preferential
acquisition of any other share of the property is being offered for
sale, by paying the same price (tanteo) that the property is being
marketed for.
■ Retracto: operates after a sale has taken place and allows the holder
to subrogate and occupy the place of the buyer by his better,
preferential right, by reimbursing to the buyer any price that he paid
plus related expenses.
● Opción de compra:
○ It makes it possible to synchronize buying and selling property in Spain since
it allows the buyer to securely hold the property he wishes to purchase for a
period of time during which he can finalize the sale of his own property.
● The maximum time that a contract of opción de compra can be registered for is 4
years.

ACQUISITION AND TRANSFER OF LEGAL RIGHTS

1. Usucapio: La usucapión o prescripción adquisitiva es el modo de adquirir la propiedad por

posesión de la cosa durante un tiempo determinado. El Código Civil permite que se adquieran
por usucapión el dominio y otros derechos reales. Para ello basta con que el poseedor lo haya
sido por mucho tiempo, de modo que la usucapión funcionaría como una especie de
consolidación del derecho.
● Prescripción adquisitiva: possession of the property “as an owner”, in public,
peacefully and for an uninterrupted period of time. (PUEDE CAER EN EL TEST)
○ Ordinary: good faith + fair title of the property (e.g. Purchase from someone
who appears to be the owner even if later is discovered that he was not the
real owner)
■ 3 years in order to acquire full ownership: movable
■ 10 years in order to acquire full ownership: immovable
○ Extraordinary: without title or good faith just by the mere fact of possessing
the property over 6 years (movable) or 30 years (immovable)
● Prescripción extintiva: rights can be lost if they are not exercised during a period of
time
 2. Derivative Acquisition of Ownership
● By Law: servidumbres, usufructs…
● By Donation
● Mortis Causa (testate and intestate succession)
● Certain contracts

THE SALE OF LAND

● Contract for the Sale of Land:

○ Object (identification of the property)
○ Causa
○ Agreement over the price
● Pre-contractual Negotiations
○ Arras confirmatorias: the deposit is part of the price and therefore the contract already
exists and cannot be terminated by either party without legal consequences
○ Arras Penales: the money of the deposit is a guarantee of performance of the contract
or a guarantee of compensation for damages in the case of non- performance
○ Opción de Compra
● Remedies
○ Hidden Effects: the seller is not liable for obvious defects or for defects that should
have been noticed by the buyer because of his profession or training. He is liable for
hidden defects. Price + damages (this actions can only be exercised within 6 months)
○ Inaccurate description of the dimensions of the property: the buyer may demand a
reduction of the price proportional to the smaller size of the property or repudiate the
contract (this actions can only be exercised within 6 months)
○ Eviction: the buyer may be deprived from the property because somebody with a
better right exercises it

THE LAND REGISTRY

● The Land Registry is a register of ownership and other rights over immovable property
● Registration is voluntary and declarative
○ Publicity of title
○ Gives protection to those involved in real estate transactions
● Principle of Priority
○ Whatever right is registered first (is the real situation), it will have priority against
others registered after it on time
 ● Protection of third parties
○ Those who acquire a right relying on the content of the Register and in turn register
their acquisition are protected by art. 34 LH and can claim title to the property even
more convincingly than the transferor.
○ Requirements:
■ Good Faith
■ Acquire the right from a person that appeared to be the owner according to
the registry
■ Must have given consideration (not received by gift)
■ Must have registered the right or title himself

EXERCISE

- Ana inherited an apartment in Plaza de Indautxu from her sister Juncal, who died single. Ana
registered the property in January 2014 at the Land Registry.
- Does Ana meet the requirements of Article 34 LH?
- Read and analyze STS 144/2015, 19.05.2015 (recurso 530/2013)

Artículo 34 LH: “El tercero que de buena fe adquiera a título oneroso algún derecho de persona que
en el Registro aparezca con facultades para transmitirlo, será mantenido en su adquisición, una vez
que haya inscrito su derecho, aunque después se anule o resuelva el del otorgante por virtud de causas
que no consten en el mismo Registro. La buena fe del tercero se presume siempre mientras no se
pruebe que conocía la inexactitud del Registro. Los adquirentes a título gratuito no gozarán de más
protección registral que la que tuviere su causante o transferente.”

She has inherited the apartment, so she is not protected by art. 34 LH, anyway, by family law, she is
going to get the house

Questions to consider:

What is the difference between bienes muebles and inmuebles?

Ownership v. possession

Explain the usucapio

How is the land sold in Spain?

What is the importance of the land register?

How are third parties protected in the land register?