Comparative Law

In some legal systems, the offeror is free to withdraw the offer (e.g. England).

In other legal systems, the offeror may withdraw their offer but has to compensate the other party's damage (e.g. France, Italy).

1. The declining relevance of family property (FAMILIENEIGENTUM) as objects of social status

2. Ageing of societies

3. Changing relationship between spouses and unmarried partners (from patriarchic relationship to emotional relationship between equals)

There is no matrimonial property regime under English law. The division of assets in case of divorce is, in principle, at the discretion of the judge.

• Legal precedents are judge-made rules, either, by way of interpretation of written legislative rules, or in an uncodificied terrain.

• They may be factually or legally binding.

• There is no argument in favor. The original owner should be protected if he did not dispose of the object voluntarily (see e.g. § 935 BGB).

• From a law & economics point of view, the possibility of acquisition in good faith in those cases could induce original owners to prevent theft of movables and to search for them after loss. 

For a valid transfer of ownership, not only a valid act of transfer but also a valid underlying contract is required.

The transfer of property constitutes a legal act whose effect is independant from that of the underlying contract (e.g. the underlying contract of sale). 

General clauses don’t protect certain legal interests (Rechte, Rechtsgüter), i.e. they do not differentiate between pure financial losses and losses suffered by a person in respect of their health, property or other legal interests.

However, courts sometimes reach a limitation in case of indirect damage and pure financial loss through the requirements of causality or direction of protection.

• Lawyers' fees 

  • in the US lawyer's fees are usually not based on the amount in dispute but on the time spend 

  • fees are often only due if a party wins the case (success fee)

• No Loser-has-to-pay-the-winner principle

  • Civil proceedings in the US do not generally provide for reimbursement of lawyer‘s costs -- everyone has to bear their own costs

• It means that the transfer of ownership does not automatically take place when a contract is concluded.

• In fact, the contract of sale is entirely separate from the transfer of ownership.

• Lack of consent due to duress (Zwang), deception (fraud) and mistake

• Laesio enormis

• Lack of capacity to contract

• § 138 II

  • An obvious disproportionality in performances is not enough to render the contract invalid under § 138 II BGB; additionally, the advantaged party would have to have exploited the disadvantaged party's inexperience or situation of emergency

• § 138 I

  • There is jurisprudence on "quasi"-usurious transactions (=Rechtssprechung zu Quasi-Wuchergeschäften), where the reprehensibility of the advantaged party's counduct is inferred by the very presence of the grand disproportion in performances

Both are terms for a legal familiy. 

In short: Civil law is based on codified law while common law relies heavily on legal precedents and case law.

Common law is mainly based on English law, that has its roots in the jurisprudence of (royal) English courts. Due to colonialization, English law spread throughout the British colonial empire (Canada, New Zealand, Australia, US...). 

• Historical factors 

  • complexity of legal sources, e.g. ius commune based on Roman law, territorial and local statutes, customs, indigenious law

  • political unification

• Intellectual factors, e.g. law of reason & enlightenment

...assumes that the function of law is to solve social problems and that all legal systems are confronted with the same social problems. 

Therefore, the starting point for functional comparative law is the social problem. 

The legal regulations that serve to solve this problem are then compared.