Private law Study Guide

📖 Core Concepts Private Law – Governs relationships between private persons (individuals, companies, NGOs). Public Law – Governs relationships between the state and persons (regulatory, penal). Law of Obligations (civil law tradition) – The umbrella term for contracts, torts, unjust enrichment, and quasi‑contracts. Historical Roots – First distinguished by Ulpian (Roman law); later refined by Montesquieu into three branches (international, public, private). Legal Traditions – Civil law: “law of obligations” = private law. Common law: contracts & torts = private law; also covers private relationships between governments and individuals when based on contract/tort. 📌 Must Remember Private law ≠ public law; the split is state vs. private‑person focus. Law of obligations = contract + tort + unjust enrichment + quasi‑contract. Ulpian’s definition: public law = state affairs; private law = interests of citizens. Montesquieu’s threefold: international law, public (politic) law, private (civil) law. Major private‑law domains: Agricultural, Business/Commercial, Trust, Agency, Property, Family, Succession, Consumer Protection, International Private, Labour. 🔄 Key Processes Formation of a Private Law Relationship (general): Identify parties (individuals, entities). Establish legal basis (contract, tort, trust, agency, etc.). Determine applicable private‑law branch (e.g., contract vs. tort). Apply the relevant rules (obligations, duties, remedies). Scope Expansion in Common Law – Private law can extend to state‑private interactions when the relationship is contractual or tortious. 🔍 Key Comparisons Private Law vs. Public Law – Focus: private persons vs. state. Typical Issues: contracts/torts vs. regulatory/compliance. Civil‑Law Tradition vs. Common‑Law Tradition – Civil: “law of obligations” as core private‑law concept. Common: same substantive areas (contract, tort) but also includes government‑private contracts/torts. Contract Law vs. Tort Law – Contract: duties arise from mutual agreement. Tort: duties arise independently of agreement (duty of care). ⚠️ Common Misunderstandings “Private law only covers individuals” – false; it also covers companies, trusts, agencies, and even government‑private contracts in common‑law jurisdictions. Confusing “law of obligations” with only contract law – it also embraces torts, unjust enrichment, and quasi‑contracts. Assuming civil‑law and common‑law private law are unrelated – both treat contracts & torts as private law, just label them differently. 🧠 Mental Models / Intuition “State vs. Private Lens” – Ask: Is the rule protecting the state’s authority or regulating a private exchange? If private, you’re in private law. “Obligation Triangle” – Visualize three sides: Contract, Tort, Unjust Enrichment; any dispute about duties or remedies falls on one side. 🚩 Exceptions & Edge Cases Government‑Private Contracts/Torts – In common‑law countries, these are still private law because the relationship is contractual/tortious, not regulatory. International Private Law – Cross‑border private relationships may invoke choice‑of‑law rules that differ from domestic private‑law analysis. 📍 When to Use Which Contract issue? → Apply contract law (part of the law of obligations). Wrongful act without agreement? → Apply tort law (also under obligations). Enrichment without legal basis? → Use unjust enrichment / quasi‑contract principles. Dispute involving a trust instrument? → Turn to trust law for creation/administration rules. One party acting for another? → Apply law of agency. Cross‑border private dispute? → Consult international private law for jurisdiction & choice‑of‑law. 👀 Patterns to Recognize “Who is the party?” – If a state actor is enforcing a regulatory rule → public law. If a private entity is seeking performance or compensation → private law. “Source of duty” – Agreement → contract; breach of duty of care → tort; absence of contract but benefit taken → unjust enrichment. “Scope of relationship” – Presence of trust instrument or agency authority signals the corresponding private‑law branch. 🗂️ Exam Traps Distractor: “All government‑related disputes are public law.” – Wrong; many are private law when based on contract or tort. Distractor: “Unjust enrichment is a separate field from private law.” – Incorrect; it is a sub‑branch of the law of obligations. Distractor: “Private law only exists in civil‑law jurisdictions.” – Misleading; common‑law jurisdictions also have a robust private‑law framework. Distractor: “Family law is part of public law because it involves the state’s interest in children.” – Wrong; family law is a private‑law area dealing with personal relationships.