B029850 - PRIVATE COMPARATIVE LAW

English

The course explores some core fields of the law of contracts and tortious liability from a comparative standpoint, in light of changes occurred in the technological age (eg, uses and abuses of the so-called "artificial intelligence"). It proposes a comprehensive framework of issues of both theoretical and practical importance, while promoting critical analysis in considering the effectiveness and fairness of the solutions examined, especially in the presence of different grounds of inequality.

FOR STUDENTS ATTENDING CLASSES

- Materials, cases, chapters in e-books and articles in e-journals that will be listed on the Moodle platform to be studied and analysed during classes.

- Introductory recommended reading:
1) Elisabetta Grande, "Development of Comparative Law in Italy", in 'The Oxford Handbook of Comparative Law (I ed.), Mathias Reimann-Reinhard Zimmermann (Eds.), Oxford, OUP, 2006 (Online: Sept. 2012), pgs. 107-130 (https://www.academia.edu/12631998/Development_of_Comparative_Law_in_Italy);
2) Marta Infantino, "Integration through comparative private law: Four lessons from Cappelletti", in 'International Journal of Constitutional Law' (I-CON), Volume 14, Issue 2, April 2016, pgs. 492–497 (online in the data bank 'HeinOnline' accessible via 'OneSearch');
3) Kenneth S. Abraham, G. Edward White, "Conceptualizing Tort Law: The Continuous (and Continuing) Struggle", in 'Public Law and Legal Theory Paper Series 2020-30, University of Virginia School of Law', March 2020 (pgs.1-63, in Social Science Research Network -SSRN-:https://ssrn.com/abstract=3555947);

FOR STUDENTS NOT ATTENDING CLASSES

1) Ermanno Calzolaio, Comparative Contract Law. An Introduction, London, Routledge, 2022 (Ist ed.). The following Chapters: 2 (The sources of contract law); 3 (Promise and contract); 4 (The formation of contract); 5 (Pre-contractual negotiations); 7 (Mistake); 8 (Breach of contract);


2) Mauro Bussani, Marta Infantino, "Tort Law and Legal Cultures", in 63 'American Journal of Comparative Law' (2015), pgs. 77-108 (journal available online via OneSearch, also via Proxy, in the library of the University of Florence)

3) At least one chapter of the book edited by Helmut Koziol, Basic Questions of Tort Law from a Comparative Perspective", Wien, Jan Sramek Verlag, 2015 (Common Creative Licence CC-BY, online at https://www.jan-sramek-verlag.at/fileadmin/user_upload/Koziol_ComparaTortLaw_Eng_0040_2_DRUCK_eBook.pdf)

a) Olivier Moréteau, Chapter 1, "French Perspective", pgs. 3-98;
b) Ken Oliphant, Chapter 4, "England and the Commonwealth Perspective", pgs. 355-429;
c) Michael D. Green - W. Jonathan Cardi, "USA Perspective", pgs. 431-514.

The course tries to develop a wide vision of legal topics, while dealing with core topics of private law (contracts and torts), in various different legal systems. It is aimed equally at Italian students and at students from any jurisdiction and background.
More precisely, the course is focussed on a series of issues, which are analysed by taking into consideration the domestic, European, international and transnational dimension, while paying attention to renewed legal challenges to be coped with in contemporary society by comparative lawyers.
Its main learning outcomes are the following ones: understanding how some important aspects of private law are dealt with both at a state level (by constitutional law, statutory provisions, judicial decisions and practices) and in light of a wider scenario, in which social and cultural influences shape the features of a legal landscape not limited by national boundaries. Thus, the final purpose consists in developing students' capacity of critical analysis of divergencies and analogies between legal solutions, while taking societal trends into account, too.
An innovative method will be adopted, so to improve students' knowledge of private law central issues thanks to a comparative approach. After recalling the paramountcy of a wide cultural background – e.g., by mentioning historical, philosophical, sociological, political and economic studies, all of great interest to have a complete vision of private law and its main areas – the course is aimed at giving students the possibility of being aware of the complexity of a legal framework in constant flux.
Some case studies will be proposed from the start, with the purpose of gradually highlighting both general questions and specific problems – to be tackled from an interdisciplinary standpoint - in respect of certain new situations in the field of contract law and torts in contemporary world (like those concerning the legal regime of “smart contracts”- in banking services, telecommunication, etc.- vis-à-vis the protection of privacy, personal data and digital identity, in light of national legislations and EU law – i.e., of the GDPR and e-privacy Directive- in comparison with non EU jurisdictions; the relationship between health law protection and civil liability for medical negligence in light of state statutory provisions, binding guidelines and professional codes of ethics, in countries in which a universal national health system exists and in those that admit free or compulsory insurance coverage schemes only; etc.). Some specific problems arisen both during and after the COVID-19 pandemic health emergency and recent war times will be taken into account, too. Finally, the course will analyse also the recent phenomenon due to the ongoing expansion of activities based on the use of so-called "Artificial Intelligence"(or, rather, of "last generation" technological devices - robots and internet of things, metaverse, Chatbot, ChatGPT-) in light of the need to protect persons' rights properly, by defining precise borders apt to avoid abuses.

Good level of teading and listening comprehension of English.

Classes are held in presence, at the Novoli Social Science univerisity campus. Each class will last one hour and a half (i.e., made of two parts of forthy five minutes with a brief stop after the first part). Seminars with foreign experts will be available in live streaming in order to allow the participation odf students who could not attend because of justified reasons. Moreover, they will be video-recorded. However, download and dissemination will not be possible, being only students attending classes admitted to their vision.

Students who are interested in attending classes are asked to enroll via the Moodle platform, at the beginning of the course, while following the instructions given by the teacher, in order to verify their constant presence. Enrollment is mandatory with a view to having access to detailed Syllabus, to cases and materials examined during classes and to further writings, as well as to taking part in various different learning activities.

FOR STUDENTS ATTENDING CLASSES.
Exam boards are held orally and they are based on a dialogue aimed at verifying the full understanding of topics dealt with during classes, with a special focus on core issues examined by adopting a comparative approach, while studying specific materials (essays, judicial decisions, etc.), expressly analysed during the course and listed in the Moodle platform. Attendance and active participation in all learning activities will be duly taken into account in the final evaluation. It will be possible to deliver a paper in class, too (i.e., a PowerPoint oral presentation, during the second half of the course, in November) to be followed by a brief written essay (to be drafted no later than 10 days before the day of the final exam), which can be devoted to a topic selected freely, with the teacher's approval, among the issues analysed in class.

FOR STUDENTS NOT ATTENDING CLASSES
Examination is oral and it consists of three questions. The first question deals with a broad topic, in order to allow students to show their knowledge as well as their ability to connect the different parts of the program by using the comparative method. The second question might be narrower and deals with a specific, different part of the program. The third question deals with one or more of the contributions listed in the Syllabus, as mandatory reading.

Private Comparative Law is a core area of legal comparison. This course explores some fields of the law of contracts and of tortious liability by adopting a comparative perspective, with a special interest towards interdisciplinary aspects.
More precisely, the course is focused on a series of issues, which are analysed by taking into consideration the domestic, European, international and transnational dimension at the same time, while paying attention to renewed legal challenges to be coped with in contemporary society by comparative lawyers. At the start, all topics will be examined in light of the rise and development of different rules, principles and theories in the selected areas (e.g., on the one hand, the notion of “contract”, of causa and “consideration”, the consequences of “non-performance” in cases of “breach of contractual obligations” and of “frustration of the purposes of contract”, of “hardship”, and on the other hand, the main traits of intentional torts, of fault liability - based on negligence -, of strict liability -and especially of product liability-), while underlying the nature of "civil remedies" and the functions to be attached to compensatory and punitive awards, respectively, as well as the interconnections with property law (i.e., ownership, title and possession), with a focus on the law of trust and fiduciary devices, and a special interest towards intellectual property, artistic and cultural heritage. The common thread is represented by the need of rethinking the role played by private law today in the so-called “technological era” and in detecting the effectiveness and fairness of civil remedies, especially in cases of power imbalances in contractual relations and of civil wrongs implying the violation of fundamental rights.
After recalling the importance of a wide cultural background – e.g., by mentioning historical, philosophical, sociological, political and economic studies, all of great interest to have a complete vision of private law issues – the course is aimed at giving students the possibility of being aware of the complexity of a legal framework in constant flux. Some case studies will be proposed from the start, with the purpose of gradually highlighting both general questions and specific problems – to be tackled from an interdisciplinary standpoint - in respect of certain new situations (like those concerning the legal regime of “smart contracts”- in banking services, telecommunication, etc. - vis-à-vis the protection of privacy, personal data and digital identity, in light of national legislations and EU law, too– i.e., of the GDPR and e-privacy Directive- in comparison with non EU jurisdictions; the relationship between health law protection and civil liability for medical negligence in light of state statutory provisions, binding guidelines and professional codes of ethics, in countries in which a universal national health system exists and in those that admit free or compulsory insurance coverage schemes only; etc.).

This course aspires to fulfill the purposes of the 2030 UN Agenda for Sustainable Development.