DIRITTO PRIVATO COMPARATO
- Overview
- Assessment methods
- Learning objectives
- Contents
- Bibliography
- Delivery method
- Teaching methods
- Contacts/Info
Adequate knowledge of private and constitutional law.
The assessment will take place by an oral examination on the whole course program.
The final exam for non attending students will be based on the reference texts.
Attending students have the possibility to take part to written test, consisting in two parts: a) multiple choice questions (aimed at assessing the general knowledge of the subject); b) open-ended questions (aimed at assessing the writing and critical skills of the students and their knowledge of the legal terminology).
Both in the oral and in the written examination, the questions could focus on the analysis of materials available on the e-learning platform (or in the book “Casi e Materiali per un corso di diritto privato comparato”, for non attending students), in order to assess the ability of the students to apply the comparative methodology.
The final score will depend on the precision and quality of answers (50%), the adequate use of legal terminology (25%), and the capacity of critical analysis and reasoning (25%)
The course aims at introducing students to the knowledge of comparative private law subjects, providing access keys to legal systems and legal structures other than the domestic one, with particular attention to the dichotomy “civil law-common law”, through the acquisition of the basics of the comparative law methodology.
The experiences taken into account will those that can be considered the most illustrative of the two traditions, and then the English and U.S. systems, as examples of the common law tradition, the French, the German and the Italian systems, as examples of the civil law tradition. Particular attention will be devoted to the current sources of private law in the different legal systems considered and to the phenomenon of legal transplants.
The students will have demonstrate that they are able to deal with the different systems in an historical-comparative perspective, distinguishing on the one hand, the interaction between different formants of law - doctrine, case-law and legislation - in the creation of legal rules and major classifications of private law, and on the other hand the diversity in the education and in the way of thinking between common lawyers and civil lawyers.
The final part of the course will be specifically devoted to the topic of the construction of a European private law, with the aim of providing students with some tools to deal with the possible future structure of private law in the European countries.
The course is divided into the following modules:
1. Introduction to comparative law. (5 hours)
1.1 Concept of comparative law and systemology. 1.2 Comparative law methodology.
2. Common law tradition – The English model (16 hours)
2.1 The origins of the common law and the writs system. 2.2. The equity system. 2.3. The lawyers education. 2.4. The reforms of the XIX century. 1.5. The current system of the sources of law: the case-law and the binding precedent; the role of statutes
3. Common law tradition –The U.S. model. (15 hours)
3.1. The origins of the common law in the United States. 3.2 The characteristics of the U.S. system: the federal structure; the Constitution; 3.3. The role of the courts: the judicial review; the general federal common law. 3.4. Langdell, the case-method and the role of legal scholars. 3.5.. Statutes, Restatements and UCC. 3.6 The current situation
4. The civil law tradition (3 hours)
4.1. The origins of the civil law model. 4.2 The first codes: the Prussian ALR and the Austrian ABGB.
5. The civil law tradition – The French model (12 hours)
5.1. From medieval times to Enlightenment. 5.2. The Civil Code of 1804: structure and style; 5.3. The implementation of the Code by courts and legal scholars; 5.4. The current situation.
6. The civil law tradition – The German model (12 hours)
6.1. The origin of German system. 6.2. The historical school and the Pandectists. 6.3. The German Civil Code of 1900. 6.4. The updating of the Code by courts and legal scholars. 6.5. The current situation.
7. The initiatives for the harmonisation of private law (7 hours)
7.1. The initiatives at international level. 7.2. The initiatives at European level. 7.3. The initiatives of the European Union.
Reference texts
1. A. Gambaro, R. Sacco, Sistemi giuridici comparati, UTET, Torino, 2018, chapters I-II-III-IV-V-VI-VII-VIII-IX.
2. Casi e Materiali per un corso di diritto privato comparato, Le tradizioni di Common law e Civil law, (ed. by Candian, Gambaro) Giappichelli, 2015
Students attending the course are requested to study the teaching materials (power-point presentations, case-law materials, etc.) that will be up-loaded on the e-learning platform and that will be discussed during lessons.
The course will be held in the second semester and will last 70 hours.
It will take place through:
- Theory lectures aiming at explaining the topics of the course, with the support of power-point presentations
- Analysis of cases and materials that will be made available on the e-learning platform and discussed during the course in order to allow students to acquire a critical perspective
- The view of films on legal subjects connected with the topics of the course, aiming at providing a different method of approaching legal topics
- The discussion of cases by students, individually or in groups, with the aim of developing their problem solving capacity
- Conferences by Italian and foreign professors and legal practitioners on specific subjects (e.g. trust, multilingualism, etc.) in order to provide the students with different approaches
During lectures students will be invited to actively participate to the discussion, in order to stimulate their reasoning skills, their analysis capacity and their oral expression skills.
Office hours after lectures by appointment via email.