Comparative Private Law

Roughly, private law is that part of the law comprised of rights and duties running between private (i.e. non-State) persons. This module addresses three subjects at private law’s core – tort, contract, and property. It does so comparatively. That is, it studies tort, contract, and property rules of several legal systems side-by-side; seeking, in the first instance, to specify, explain, and determine the significance of those rules’ differences and similarities. By doing so, it looks to explore abiding questions which confront all systems of private law: What is private law for? How, if at all, is private law distinct from other forms of law and regulation? What are private law’s proper limits?

In service of these twin aims, the module supplements close engagement with primary legal materials with insights from philosophy, economics, history, sociology, and so forth. The module thus has both a strong doctrinal or “black-letter” dimension, and a strong “theoretical” one. Moreover, special attention will be paid to comparisons between common law and civilian jurisdictions. For that reason, the module should be of particular interest to students familiar with civilian jurisdictions who are eager to gain insight into the common law’s distinctive methods, and vice versa.

In a course of some 12 weeks, attempting a fully comprehensive coverage of the tort, contract, and property law of any one legal system – let alone several systems – would be futile. As such, we will study selected topics. These have been chosen in part because of their practical importance, in part because of their theoretical interest, and in part because of the notable variations between common law and civilian jurisdictions with respect to them. The topics of the seminars are:

1. General I: What is Private Law?
2. General II: Varieties of Private Rights (The Hohfeldian Scheme)
3. Tort I: Wrongs and Losses (Damnum Absque Iniuria; Iniuria Sine Damno)
4. Tort II: Defamation and Insult
5. Tort III: Motive and Abuse of Right (Abus de droit; Schikaneverbot).
6. Contract I: Consideration
7. Contract II: Interpretation – Objective and Subjective
8. Contract III: Good Faith
9. Property I: Ownership
10. Property II: Trusts
11. Property III: Prescription

The module will be assessed primarily by a single independent research essay, to be completed at the end of the term, and a viva voce examination on the submitted essay and its topic. Students will be given broad discretion to choose an essay question of their own, so long as it addresses or is suggested by some topic(s) covered in class, and is approved in advance by the module lecturer. The viva voce examination will assess (a) the student’s knowledge of their essay’s subject; and (b) their capacity to defend and further develop their essay’s argument against objections and in response to questions.  

The remainder of the marks will go for active participation in module discussion. Teaching will be conducted via interactive, discussion-based seminars, with all students expected to participate on the basis of reading done in advance.   

Learning Outcomes

On successful completion of this module students should be able to:

• Understand the Hohfeldian scheme of jural incidents, and use it to break down and solve complex legal problems;
• Provide a general, theoretically-informed account of the key differences and similarities between civilian and common law systems of private law;
• Identify and critically analyse different perspectives – philosophical, economic, historical, etc – from which a given private law rule might be understood and assessed;
• On the basis of detailed knowledge of the comparative law, develop and articulate their own views on the discrete private law topics covered in seminars 3-11;
• Develop and articulate their own views on the significance for private law of general themes – (a) harm; (b) rights; (c) motive and intention; (d) economic efficiency; (e) formality – common to the selected private law topics covered in seminars 3-11; 
• Engage in comparatively informed, theoretically sophisticated research and writing on private law.

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