Ilse Samoy, E. Terryn, Frederik Peeraer, François Auvray, Paul Verbiest
Legal ignorance typically refers to a situation where one is ignorant of the existence of a certain legal prescript or is ignorant of the precise understanding of a prescript or its consequences. In Belgian law, there is no general provision dealing with legal ignorance or its effects. In principle, one cannot escape the application of law based on the mere fact that one does not know the law or its consequences. However, in specific situations Belgian law and case law deviate from this basic principle, provided that strict conditions are fulfilled. The authors of this article report on the application of the concept of legal ignorance in the areas of contract law, tort law and prescription. As for contract law, the article examines whether a mistake as to the law may qualify as an excusable error leading to the nullification of a contract. Although the Cour de Cassation applies a very strict interpretation and states that mere legal ignorance cannot be an excusable error, some lower courts seem to apply a more lenient interpretation. In tort law, the starting point remains that mere legal ignorance is not excusable. To escape liability despite the infringement of a specific rule, one will have to overcome the difficult task of proving that the mistake was ‘unavoidable’. Lastly, the general provision for prescription periods does not deal explicitly with the issue of legal ignorance. In principle it is not necessary that the person subject to prescription is aware of the fact that the prescription started to run. In specific situations, some statues and case law deviate from this principle.
{"title":"Legal Ignorance in Belgian Private Law","authors":"Ilse Samoy, E. Terryn, Frederik Peeraer, François Auvray, Paul Verbiest","doi":"10.54648/erpl2021011","DOIUrl":"https://doi.org/10.54648/erpl2021011","url":null,"abstract":"Legal ignorance typically refers to a situation where one is ignorant of the existence of a certain legal prescript or is ignorant of the precise understanding of a prescript or its consequences.\u0000In Belgian law, there is no general provision dealing with legal ignorance or its effects. In principle, one cannot escape the application of law based on the mere fact that one does not know the law or its consequences. However, in specific situations Belgian law and case law deviate from this basic principle, provided that strict conditions are fulfilled.\u0000The authors of this article report on the application of the concept of legal ignorance in the areas of contract law, tort law and prescription.\u0000As for contract law, the article examines whether a mistake as to the law may qualify as an excusable error leading to the nullification of a contract. Although the Cour de Cassation applies a very strict interpretation and states that mere legal ignorance cannot be an excusable error, some lower courts seem to apply a more lenient interpretation. In tort law, the starting point remains that mere legal ignorance is not excusable. To escape liability despite the infringement of a specific rule, one will have to overcome the difficult task of proving that the mistake was ‘unavoidable’. Lastly, the general provision for prescription periods does not deal explicitly with the issue of legal ignorance. In principle it is not necessary that the person subject to prescription is aware of the fact that the prescription started to run. In specific situations, some statues and case law deviate from this principle.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45164649","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Under Portuguese law, the general principle according to which ignorance of law is no excuse is strictly interpreted, so as to refer exclusively to the validity of statutes. It does not preclude the relevance of mistakes of law in contract and in tort. In contract law, all mistakes are treated alike, irrespectively of whether they refer to facts or to legal norms. In tort law, ignorance of relevant legal norms will normally exclude the tortfeasor’s liability for wilful, intentional misconduct. In what concerns forfeiture and prescription, Portuguese law combines longer, objective, and shorter, subjective prescription periods, such as the three-year prescription period applying to claims on tort and unjust enrichment. In general terms, the shorter, subjective prescription periods start running from the moment the holder knew of the existence of his or her right.
{"title":"Legal Ignorance in Portugal","authors":"Nuno Manuel Pinto Oliveira","doi":"10.54648/erpl2021017","DOIUrl":"https://doi.org/10.54648/erpl2021017","url":null,"abstract":"Under Portuguese law, the general principle according to which ignorance of law is no excuse is strictly interpreted, so as to refer exclusively to the validity of statutes. It does not preclude the relevance of mistakes of law in contract and in tort. In contract law, all mistakes are treated alike, irrespectively of whether they refer to facts or to legal norms. In tort law, ignorance of relevant legal norms will normally exclude the tortfeasor’s liability for wilful, intentional misconduct. In what concerns forfeiture and prescription, Portuguese law combines longer, objective, and shorter, subjective prescription periods, such as the three-year prescription period applying to claims on tort and unjust enrichment. In general terms, the shorter, subjective prescription periods start running from the moment the holder knew of the existence of his or her right.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45498383","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Legal Ignorance in Private Law: A Comparative Overview","authors":"A. Verheij, Emil F. Verheul, Grietje T. De Jong","doi":"10.54648/erpl2021010","DOIUrl":"https://doi.org/10.54648/erpl2021010","url":null,"abstract":"","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48943648","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This contribution considers the role of legal ignorance in French private law. After a short description of how the issue of legal ignorance has been approached by French academic writers, the article focuses on three areas: the law of contract, limitation periods and tort law. With respect to contracts, the article demonstrates that ignorance of the law has principally been approached through the perspective of contractual consent. The study considers the extent to which ignorance of the law can vitiate contractual consent before turning to examine the role played by informational duties in strengthening contracting parties’ rights in the event of legal ignorance. The study then looks at how legal ignorance can impact on the application of limitation periods. This includes examining the issue of whether the fact that a new type of claim has only recently been recognized by the courts should mean that the starting point for the limitation period should only run from that moment. On the role of legal ignorance in tort law, the contribution in particular highlights the link between legal ignorance and issues relating to the retroactivity of case law rules. The article concludes by considering the prospects for legal change in this area.
{"title":"Legal Ignorance: France","authors":"S. Taylor","doi":"10.54648/erpl2021013","DOIUrl":"https://doi.org/10.54648/erpl2021013","url":null,"abstract":"This contribution considers the role of legal ignorance in French private law. After a short description of how the issue of legal ignorance has been approached by French academic writers, the article focuses on three areas: the law of contract, limitation periods and tort law. With respect to contracts, the article demonstrates that ignorance of the law has principally been approached through the perspective of contractual consent. The study considers the extent to which ignorance of the law can vitiate contractual consent before turning to examine the role played by informational duties in strengthening contracting parties’ rights in the event of legal ignorance. The study then looks at how legal ignorance can impact on the application of limitation periods. This includes examining the issue of whether the fact that a new type of claim has only recently been recognized by the courts should mean that the starting point for the limitation period should only run from that moment. On the role of legal ignorance in tort law, the contribution in particular highlights the link between legal ignorance and issues relating to the retroactivity of case law rules. The article concludes by considering the prospects for legal change in this area.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46677649","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Book Review: Markesinis’S German Law Of Torts, Basil Markesinis, John Bell & André Janssen Eds. 5Th Ed., Hart 2019.","authors":"N. Coggiola","doi":"10.54648/erpl2021019","DOIUrl":"https://doi.org/10.54648/erpl2021019","url":null,"abstract":"","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42728013","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In times of ever-increasing complexity of the legal system, legal errors are inevitable. While the German Criminal Code lays out that a legal error leads to impunity of the perpetrator if unavoidable, legal error in private law has always remained a vague concept. In principle, the Bundesgerichtshof (Federal Court of Justice) excuses a wrongdoer who acted under legal error only in exceptional cases. According to this stringent approach, a party must not only be aware of the existing legal framework, but also anticipate future changes in case law. If the legal situation is unclear, a party must not assume that her own position will ultimately be upheld by the court, but that she will be found liable for a wrong. Under this doctrine, the only circumstances where legal error will be excused are unanticipated and unforeseeable revisions of case law by the supreme court. However, there is a general trend in all areas of private law to soften this stringent approach. In contract law, courts tend to be more lenient on the parties. In the context of contractual liability of the debtor, legal errors are more and more frequently excused under ‘special circumstances’. On the other hand, a creditor who sues for performance is not liable to the debtor for damages incurred in the course of proceedings if he carried out a ‘plausibility check’ regarding his own legal position before filing suit. In tort law, where courts are generally stricter when it comes to legal ignorance, individual judgments point to a more generous stance towards legal error and excuse tortfeasors more easily. In the area of prescription, courts hold that the limitation period only begins to run when the creditor can reasonably be expected to file an action in view of an uncertain legal situation. German case law on legal ignorance in private law resembles a potpourri of different legal standards, all of which aim to govern the exoneration of legal errors. A bright and clear line is not discernible and, therefore, a return to a more stringent standard seems desirable. This does not rule out a balancing of interests in each individual case nor taking into account the idiosyncrasies of the parties involved. We should not strive for a ‘one-size-fits-all solution’ but seek to formulate nuanced liability standards that are able to distinguish, e.g. between consumers and businesses. However, the aim here must always be to develop clear and stringent criteria, thus providing for legal certainty.certainty
{"title":"Legal Ignorance in German Law: The Decline of a Once Stringent Standard","authors":"G. Wagner, Greta Körner","doi":"10.54648/erpl2021014","DOIUrl":"https://doi.org/10.54648/erpl2021014","url":null,"abstract":"In times of ever-increasing complexity of the legal system, legal errors are inevitable. While the German Criminal Code lays out that a legal error leads to impunity of the perpetrator if unavoidable, legal error in private law has always remained a vague concept. In principle, the Bundesgerichtshof (Federal Court of Justice) excuses a wrongdoer who acted under legal error only in exceptional cases. According to this stringent approach, a party must not only be aware of the existing legal framework, but also anticipate future changes in case law. If the legal situation is unclear, a party must not assume that her own position will ultimately be upheld by the court, but that she will be found liable for a wrong. Under this doctrine, the only circumstances where legal error will be excused are unanticipated and unforeseeable revisions of case law by the supreme court.\u0000However, there is a general trend in all areas of private law to soften this stringent approach. In contract law, courts tend to be more lenient on the parties. In the context of contractual liability of the debtor, legal errors are more and more frequently excused under ‘special circumstances’. On the other hand, a creditor who sues for performance is not liable to the debtor for damages incurred in the course of proceedings if he carried out a ‘plausibility check’ regarding his own legal position before filing suit. In tort law, where courts are generally stricter when it comes to legal ignorance, individual judgments point to a more generous stance towards legal error and excuse tortfeasors more easily. In the area of prescription, courts hold that the limitation period only begins to run when the creditor can reasonably be expected to file an action in view of an uncertain legal situation.\u0000German case law on legal ignorance in private law resembles a potpourri of different legal standards, all of which aim to govern the exoneration of legal errors. A bright and clear line is not discernible and, therefore, a return to a more stringent standard seems desirable. This does not rule out a balancing of interests in each individual case nor taking into account the idiosyncrasies of the parties involved. We should not strive for a ‘one-size-fits-all solution’ but seek to formulate nuanced liability standards that are able to distinguish, e.g. between consumers and businesses. However, the aim here must always be to develop clear and stringent criteria, thus providing for legal certainty.certainty","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41684858","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The rule ignorantia juris non excusat constitutes a historical principle in Spanish law as a key pillar of the collective organization of the legal system. The rule embodies the assumption that the effectiveness of the laws cannot rely on subjective elements, such as knowledge or ignorance, interest or carelessness, but it is based on an objective and social component of the legal system aimed to ensure that the enforcement of the laws is general and unconditional. Today, it is still inspiring the legal system and expressly enshrined in Article 6.1 CC, but their meaning must be duly contextualized in the current exuberance of legislation and regulations. Last decades, continuous efforts have been made to enhance the publicity of laws, improve comprehensibility, and implement technological solutions aimed to ensure accessibility of legislation, case law, and public authorities’ decisions. This article traces the origin and the evolution of the principle in Spanish law and the current expressions and applications of legal ignorance in private law. The analysis of the state of the doctrinal debate and the latest case law invites two reflections. First, the excessive use of legal ignorance as an invalidating mistake as a tool to alleviate contractual unfairness, inadequate institutional practices, or commercial abuse blurs its contours, debilitates the principle of contract preservation, deteriorates legal certainty, and discourages transactions. Second, the regulation of increasing information duties as a strategy to attenuate the impact of legal ignorance is making preand contractual processes complex, overinformed, and formalistic, with the risk of inviting purely formal compliance.
{"title":"The Rule of Legal Ignorance in Spanish Law: Relevance, Meaning, and Scope","authors":"Teresa Rodríguez de las Heras Ballell","doi":"10.54648/erpl2021018","DOIUrl":"https://doi.org/10.54648/erpl2021018","url":null,"abstract":"The rule ignorantia juris non excusat constitutes a historical principle in Spanish law as a key pillar of the collective organization of the legal system. The rule embodies the assumption that the effectiveness of the laws cannot rely on subjective elements, such as knowledge or ignorance, interest or carelessness, but it is based on an objective and social component of the legal system aimed to ensure that the enforcement of the laws is general and unconditional. Today, it is still inspiring the legal system and expressly enshrined in Article 6.1 CC, but their meaning must be duly contextualized in the current exuberance of legislation and regulations. Last decades, continuous efforts have been made to enhance the publicity of laws, improve comprehensibility, and implement technological solutions aimed to ensure accessibility of legislation, case law, and public authorities’ decisions. This article traces the origin and the evolution of the principle in Spanish law and the current expressions and applications of legal ignorance in private law. The analysis of the state of the doctrinal debate and the latest case law invites two reflections. First, the excessive use of legal ignorance as an invalidating mistake as a tool to alleviate contractual unfairness, inadequate institutional practices, or commercial abuse blurs its contours, debilitates the principle of contract preservation, deteriorates legal certainty, and discourages transactions. Second, the regulation of increasing information duties as a strategy to attenuate the impact of legal ignorance is making preand contractual processes complex, overinformed, and formalistic, with the risk of inviting purely formal compliance.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49565439","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article was written as part of a comparative law project to consider how different European legal systems (common and civil law) address the problem of legal ignorance in private law, that is, the extent to which the rules of contract, tort and unjust enrichment make allowances for ignorance of the law by legal actors. It also addresses the question of civil procedure and whether legal ignorance can provide a ground for disapplying or postponing the commencement of limitation periods. The aim of this article is to identify both the common law response and the motivation of the courts in this field to facilitate comparison with civil law systems. In seeking to understand common law legal reasoning, the starting point remains that citizens should be encouraged to familiarize themselves with the law. The law needs to set rules for the benefit of society in general. Issues such as security of transactions, legal certainty and efficiency also play a role. Nevertheless, some allowance is made for legal ignorance in the interests of fairness, although such examples are often controversial and subject to ongoing academic debate.
{"title":"Legal Ignorance in England and Wales: A Study of Contract, Tort, Unjust Enrichment and Civil Procedure Law","authors":"P. Giliker","doi":"10.54648/erpl2021012","DOIUrl":"https://doi.org/10.54648/erpl2021012","url":null,"abstract":"This article was written as part of a comparative law project to consider how different European legal systems (common and civil law) address the problem of legal ignorance in private law, that is, the extent to which the rules of contract, tort and unjust enrichment make allowances for ignorance of the law by legal actors. It also addresses the question of civil procedure and whether legal ignorance can provide a ground for disapplying or postponing the commencement of limitation periods. The aim of this article is to identify both the common law response and the motivation of the courts in this field to facilitate comparison with civil law systems. In seeking to understand common law legal reasoning, the starting point remains that citizens should be encouraged to familiarize themselves with the law. The law needs to set rules for the benefit of society in general. Issues such as security of transactions, legal certainty and efficiency also play a role. Nevertheless, some allowance is made for legal ignorance in the interests of fairness, although such examples are often controversial and subject to ongoing academic debate.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47313796","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Conference Report: ‘Frontiers in Civil Justice’, 16 and 17 November 2020, Erasmus University Rotterdam","authors":"Betül Kas, J. Hoevenaars","doi":"10.54648/erpl2021009","DOIUrl":"https://doi.org/10.54648/erpl2021009","url":null,"abstract":"","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":"1 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41483677","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This contribution discusses the first instance decision of the Netherlands Commercial Court between Subsea Survey Solutions LLC and South Stream Transport BV from an English and Dutch law perspective. The principal issue before the court concerned the interpretation of Clause 7 of the Settlement Agreement entered into between the parties and in particular whether or not this release and discharge clause provided South Stream with a defence to the claim which had been brought against it. This contribution discusses in a comparative way the principles of English and Dutch law which govern the interpretation of contracts. The conclusion is that the gap between the English and Dutch approach in relation to contract interpretation, although different in form, does not seem to be as broad as believed by many.
本文从英国和荷兰法律的角度讨论了荷兰商业法院在Subsea Survey Solutions LLC和South Stream Transport BV之间的一审判决。法院面临的主要问题涉及各方之间达成的和解协议第7条的解释，特别是该释放和排放条款是否为South Stream对其提出的索赔提供了辩护。这篇文章以比较的方式讨论了管理合同解释的英国和荷兰法律的原则。结论是，英国和荷兰在合同解释方面的差距，尽管形式上不同，但似乎并不像许多人认为的那样广泛。
{"title":"A NCC Case on Contract Interpretation from an English and Dutch Law Perspective","authors":"Ewan Mckendrick, J.M. Luycks, Alana Hendrikx","doi":"10.54648/erpl2021004","DOIUrl":"https://doi.org/10.54648/erpl2021004","url":null,"abstract":"This contribution discusses the first instance decision of the Netherlands Commercial Court between Subsea Survey Solutions LLC and South Stream Transport BV from an English and Dutch law perspective. The principal issue before the court concerned the interpretation of Clause 7 of the Settlement Agreement entered into between the parties and in particular whether or not this release and discharge clause provided South Stream with a defence to the claim which had been brought against it. This contribution discusses in a comparative way the principles of English and Dutch law which govern the interpretation of contracts. The conclusion is that the gap between the English and Dutch approach in relation to contract interpretation, although different in form, does not seem to be as broad as believed by many.","PeriodicalId":43736,"journal":{"name":"European Review of Private Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46272527","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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