Law Summary

First Exam

Unit 1:

• Law
• Souces of law
• Principles of law
• Legal systems
• Branches of law
• Lawmaking

What is Law?

• Law is the system of rules that a particular country or community recognizes

as regulating the actions of its members and that may enforce by the
imposition of penalties.
• It is a body of rules of action or conduct prescribed by controlling authority and
having binding legal force.

Sources of Law

Sources of law are a mean of creation and formation of mandatory norms of a state.
Sources refer to the origin of the law, the causes that create and shape it, together
with the mode in which it´s represented.
Primary souces of law are consitutions, statutes, regulations, and cases.

Lawmaking Powers:
• The executive branch creates administrative law, which is published as
regulations or executive orders and directives.
 • The legislative branch creates laws that are passed and published as
statutes.
• The judicial branch creates law in the form of decisions, also called
‘opinions’ and ‘cases’.

• Statutory Law: a law or statue is a written rule created by state institutions

(often a legislature) which enacts laws through the authority of the state. The
laws have sanctions which are recognized by the state and enforced by state-
authorized bodies (the judiciary).

• Case Law:

▪ It is the law that is stated in specific cases decided by courts. So,

courts are competent bodies that decide disputes and make decisions.
▪ Case law is in written form and generally contains a brief synopsis of
the facts of the case, an analysis of the legal principles that apply, and
a statement of the court’s decision.
▪ The prior decided cases create “precedent”: other courts must follow
the rules created by the judicial decision when deciding later cases that
are similar or identical to the case that created the rule.

• Legal Doctrine: analyses and interpretations of the law made by scholars

and legal experts.

• Custom: custom is a regular course of conduct observed uniformly and

voluntarily by the people.

Principles of Law

Since all areas of human life- in one way or another- are governed by laws, almost
any kind of human/social problem can be submitted to a legal analysis.

Law vs. Morality

• Laws regulate external human conduct whereas morality mainly regulates
internal conduct.
 • Laws are universal; morality is variable.
• Laws are definite and precise while morality is variable.
• Laws are upheld by the coercive power of the state; morality simply enjoys the
support of public opinion or individial conscience.
• Laws are studied under Jurisprudence but morality is studied under Ethics.

Legal Systems

A legal system is the organization of the laws within one single nation state. The
system varies according to state’s socio-cultural traditions.
Two most common kinds of legal systems:
• Common law tradition (the Anglo-American tradition)
• Civil law tradition (the majority of the world’s states)

Branches of Law

Private law: deals with the rights and obligations people have in their relationships
with one another.

• Commercial and contract law:

▪ Commercial law is the branch of law that regulates and governs

commercial transactions and business deals. It deals with the sale and
distribution of goods. Commercial law includes all aspects of business,
including advertising and marketing, collections and bankruptcy,
contracts, negotiable instruments, secured transactions, and trade.
▪ Contract law (as a subdivision of commercial law) is the body of rules
that relates to making and enforcing agreements. A contract is an
agreement that a party can turn to a court to enforce. Contract law is
the area of law that governs making contracts, carrying them out and
fashioning a fair remedy when there’s a breach. It deals with the rights
and obligations of people who make contracts.

• Tort
 ▪ Tort is a wrong or injury that a person suffers because of someone
else’s action.
▪ Tort law governs the remedies for civil wrongs. A person is liable
(responsible) for the wrongful act, whether done accidentally or
intentionally. The injured is compensated by the payment for damages.
▪ Damages may include compensation for loss of property, medical
expenses, mental or physical incapability, pain and suffering, and
punitive damages to punish the wrongdoer.
▪ The intention of the tort law is to provide relief from wrongful acts of
others through monetary compensation.
▪ The compensation by way of damages is awarded by the Court.

• Property law: governs the ownership and use of property. Property may be
real, such as land and buildings, or personal, such as a car and clothing. The
law ensures a person´s right to own property. However, the owner must use
the property lawfully. People also have the right to sell or lease their property
and buy or rent the property of others. This law determines the rights and
obligations involved in such dealings.

• Inheritance or succession law: concerns the transfer of property upon the

death of the owner. Nearly every country has basic inheritance laws, which list
the relatives or other persons who have first rights of inheritance. But in most
occidental states, people may will their property to persons other than those
specified by law. In such cases, inheritance law also sets the rules for the
making of wills.

• Family law: determines the legal rights and obligations of husbands and
wives and of parents and children. It covers such matters as marriage,
divorce, adoption and child support.

• Company or corporate law: governs the formation and operation of

business corporations. It deals mainly with the powers and obligations of
management and the rights of shareholders.

Public law: concerns the rights and obligations people have as members of society
and as citizens.
 • Criminal law: deals with actions considered harmful to society. Crimes range
in seriousness from disorderly conduct to murder. Criminal law defines these
offences and sets the rules for the arrest, the trial, and the punishment of
offenders.

• Constitutional law: a constitution is a set of rules and principles that define

the powers of a government and the rights of the people. The principles
outlined in a constitution form the basis of constitutional law. The law also
includes official rulings on how a constitution’s principles are to be interpreted
and carried out.

• Administrative law: centers on the operations of government departments.

Governments set up many administrative departments to do the work of
government. They deal with such matters as education, public health,
taxation. Other departments administer social welfare provisions, such as
pensions and social security. Administrative law consists chiefly of the legal
powers granted to administrative departments by the legislature and the rules
that the departments make to carry out their powers.

• International law: deals with the relationships among nations both in war and
in peace. It concerns trade, communications, territorial limits, the uses of the
ocean, and many other matters.

Lawmaking

How is law made?

• In a domestic setting this question is answered by the state’s constitutional
law. Domestic law does not only consist in rules dictating obligations/rights to
govern individual behavior, but it also consists in rules for its own production
and application.
• In an international setting this question is answered by general principles of
international law because there is no international constitution. International
law has no constitutive realm: there is not one official lawmaking body.

Important factors in law-making:

• The authority of the state is needed
• Only certain institutions can make laws
 • The institutions that make law have been given the power to do so
• Sanctions exist for breaking the law
• Sanctions are imposed by those given the authority to do so

Is there state monopoly with respect to lawmaking?

As a starting point there is a monopoly and its supported by the Principle of
Sovereignty. States can confer (agree to give away) their sovereign rights, however,
to each other and international institutions.

Specific words:
• Binding: it’s mandatory, it cannot be avoided.
• Enforced: competent authorities may force people to obey the law.
• Penalties/sanctions: legal consequences.
• To enact/pass a law: to create a law by a legal and authoritative act.
• Bill: a proposal for a new law.

Unit 2:

• Contracts
• Definition and elements
• Contract formation
• Classification
• Interpretation
• Breach
• Termination
• Remedies

Contracts

• An agreement between two or more parties that creates mutual obligations

• Oral agreements suffice
• If a contract is not respected, the suffering party may take legal action for the
loss suffered
Definition and elements

Definition in Argentinian law CCCN:

• Contract is the legal act by which two or more parties express their consent to
create, regulate, modify, transfer or extinguish legal relationships relating to
property rights (Section 957 of the ‘Codigo Civil y Comercial de la RA’)

Elements of a valid contract:

• Consent: Offer + Acceptance

▪ Mutual agreement between the parties that reflects their respective intent
(their minds must meet)
▪ A contract is formed when the acceptance of an offer is received or when
the conduct of the parties demonstrates the existence of an agreement
(Section 971)
▪ An offer is a manifestation directed to a determined person, with the
intention to bind the offeror and with sufficient precision about its effects
(Section 972)
▪ It is binding on the offeror (Section 974)
▪ Acceptance means fully agreeing to the terms of the offer. If an offer is
accepted with changes added, then this is considered as a counteroffer.

• Consideration

▪ Something of value given by both parties to a contract that induces them to

enter into the agreement to exchange mutual performances.
▪ Consideration must have a value that can be objectively determined.

• Legal object

▪ The contract must have the purpose to be of a legal character.

▪ The object of a contract must be a property right. It must have ECONOMIC
VALUE.
 ▪ The contract must be legal. Its object cannot be illegal or contrary to
morals, public order, human dignity or in violation of other rights (Section
1004)

• Legal competence

▪ There are legal criteria determining who holds the legal capacity to
contract.
▪ Minors lack capacity to make most contracts.
▪ Persons with mental incapacity lack contract capacity.
▪ Persons affected by drugs or alcohol may sometimes lack capacity to form
a contract.

Contract Formation

Offer + Acceptance + Consideration = Contract

(Consent)

Classification of contracts

• Unilateral, bilateral and multilateral (Section 966)

▪ A contract is unilateral when only one of the parties has an obligation

towards the other party.
▪ A contract is bilateral when the parties have mutual obligations towards
each other

• Onerous and gratuitous (Section 967)

▪ A contract is onerous when the benefits that a party receives from a

contract are provided to it due to other benefits that this party agrees to
provide to the other party.
 ▪ A contract is gratuitous when one of the parties receives a benefit from the
contract, without having to provide any benefit in return.

• Aleatory and commutative (Section 968)

▪ In an aleatory contract, the performance of one party is dependent on the

occurrence of a particular event beyond the control of either party.
▪ In a commutative contract, the benefits for all parties are certain from the
time of contract formation.

• Formal and informal (Section 969)

▪ Formal contracts are those that require certain formalities in order to be

valid, or for evidentiary purposes.
▪ Informal contracts are those that do not require any special form in order to
be valid. The parties to the contract decides (Autonomy).

• Nominate and innominate (Section 970)

▪ Nominate contracts are those that pertain to a special category which is

regulated by special contract laws. In these contracts –sales, insurance,
lease, consumer- there are contractual rights that follow without the need
for the parties to have stipulated so in their contract.
▪ Innominate contracts are those that do not pertain to a legal category. In
such contract, it is only the contract that determines the legal obligations
and rights of the parties.

Interpretation

• Good faith (Section 961)

▪ A duty to avoid doing something that will destroy or injure the right of the
other party to receive the benefits of the contract.
▪ ‘Good faith’ can generally be understood as honesty in a person’s conduct
during the agreement.
 • Parties’ common intent (Section 1061)

▪ The parties to a contract have opposite interests, but they come together
for a common business. They must agree on the object of the contract and
the effects they want it to have.

• Plain meaning rule (Section 1063)

▪ The words in a contract must be interpreted according to their usual and

ordinary meaning, unless they are given a special meaning in accordance
with the law, the agreement of the parties or the customs.

• Economic purpose

▪ A contract must be interpreted considering the economic objective that the

parties had in mind when they entered into the contract.

• Contextual interpretation (Section 1064)

▪ A context must be interpreted as a whole, within the general context, not

as isolated clauses. If needed, the interpreter must also consider the
circumstances in which the contract was formed.

• Preservation of the contract (Section 1066)

▪ Principle ‘pacta sunt servanta’: agreement must be kept (principio de

conservación).
▪ If there is any doubt about the efficiency of a clause, it must be interpreted
in a way that prioritizes its validity, according to the object of the contract.

Breach
 • It occurs when a party fails to fulfill its obligation under the contract.
• Sets into movement a new series of legal obligations or liabilities.
• A court of law can decide whether a breach has occurred and what
consequences –new legal obligations- should follow.

Termination

• Rescission
o Unilateral or bilateral:
▪ A party may exercise the right to rescind the contract AT ANY
TIME, discharging all obligations; or
▪ Both parties may rescind the contract by mutual agreement
(Section 1076)

• Resolution
o Only unilateral: a party may be entitled to cancel the contract, in whole
or in part, for cause.
o For cause: in general, when the other party has committed breach of
contract, but other causes include frustration of the purpose.
o Retroactive effects: ALL POSSIBLE RESTITUTIONS MUST BE
MADE. This is done to bring the parties, as far as possible, back to the
position in which they were before they entered into a contract.

• Revocation
o Only applicable to UNILATERAL CONTRACTS
▪ A party unilaterally elects to terminate a unilateral legal act.
Mutual consent is not needed.

Other ways to terminate a contract

• Impossibility of performance: the contractual obligations of one or more
parties cannot be fulfilled under normal circumstances.
o Force majeure
o Frustration
• Nullity: when there is lack or defect of consent (duress, fraud or mistake). A
contract that is void is a contract that never has existed.
Remedies

• When there has been a breach of contract, the non-breaching party can seek
remedies available under the contract law.
• Most remedies will involve monetary compensation, but sometimes non-
monetary relief can be afforded the injured party.

Unit 3

• Sales of Goods
• Argentinian Regulation
• International commercial contex

Definition of a Contract for the Sale of Goods: a contract by which a party agrees
to transfer the ownership of goods and the other party agrees to pay a monetary
value for them. (Section 1123 of the CCCN)

Elements of a Contract for the Sale of Goods:

• Parties:
o Seller: agrees to transfer title over goods.
o Buyer: agrees to pay a price.
• Price: In money. Must be fixed or determinable.
• Property: any property that may be subject matter of a contract. It must be
legal, possible, determinable and have a monetary value.