This course explores some core fields of the law of contracts and of tortious liability by adopting a comparative perspective. 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.
- Materials, cases, chapters in e-books and articles in e-journals listed on the Moodle platform to be studied and analysed during classes.
- Introductory recommended reading:
- 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).
- 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');
FOR STUDENTS NOT ATTENDING CLASSES
- 1) Mathias Siems, "The Power of Comparative Law: What Types of Units Can Comparative Law Compare?", in 'The American Journal of Comparative Law, 2019, Vol. 67(4), pgs. 861-888 (journal available also online in the data bank HeinOnline, via OneSearch);
- 2) Helmut Koziol, Chapter 8, "Comparative Conclusions", in Helmut Koziol (Ed.), "Basic Questions of Tort Law from a Comparative Perspective", Wien, Jan Sramek Verlag, 2015, pgs. 685-760; 812-825 (Common Creative Licence CC-BY, online at https://www.jan-sramek-verlag.at/fileadmin/user_upload/Koziol_ComparaTortLaw_Eng_0040_2_DRUCK_eBook.pdf)
3) - One of the following Chapters of the above-mentioned book (H-Koziol [2015]):
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.
4) - 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);
5) - Mauro Bussani, Marta Infantino, "Tort Law and Legal Cultures", in 63 'American Journal of Comparative Law' (2015), pgs. 77-108 (journal availble also in the data bank HeinOnline via OneSearch);
6) - Barbara Pozzo," Looking for a Consistent Terminology in European Contract Law," in 'Languages Cultures Mediation (LCM Journal)', 7 (2020) 1, pgs. 103-126 (in the issue devoted to 'Clear Legal Writing: A Pluridisciplinary Approach', edited by Ilaria Cennamo, Agata de Laforcade, Marie-Christine Jullion, Diana Saiz Navarro, online journal available at: https://www.ledonline.it/index.php/LCM-Journal).
Learning Objectives
The course tries to develop a wide vision of legal topics, while dealing with 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 core 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 central topics of private law thanks to a comparative approach. 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 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.).
Prerequisites
Reading and listening comprehension of English.
Teaching Methods
Like all courses scheduled in the first semester of the academic year 2020-21, classes - held on campus - will last eigthy minutes (with a brief stop after the first forthy minutes). The maximun number of students allowed to attend will be established according to regulation in force, so to ensure the utmost level of safety. For students whose residence or domicile is abroad - who are welcome- specific regulations will be adopted by National Erasmus Agencies and by the University of Florence. Please, look at these official links for any further information: https://www.unifi.it/p11753 (in Italiano) and https://www.unifi.it/p11744 (in English).
Each class will be video-recorded and uploaded on the Moodle platform immediately, so to be made available also online to enrolled students. For this purpose, they will receive a password, which will be communicated by the teacher through adequate measures, apt to ensure its use by authorised students only.
In order to promote a direct interaction with foreign experts (i.e., Law Professors of various different nationalities), a series of webinars will take place, in streaming. This is a not mandatory activity, but an optional initiative, which however is warmly suggested to all students who are interested to better focus on topics dealt with during classes and greatly recommended to those whose final dissertation (graduation) thesis will be devoted to a topic of "Private Comparative Law".
Further information
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.
Type of Assessment
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.
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.
Course program
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.).