Ch02 Sources of Law

II. HALLMARKS OF CIVIL LAW A. Sources of Law Chapter 4 - The Sources of Law In the period of revolutionary change ... the social and economic injustices of the old order were brought into direct conflict with the desire for egalitarianism. The awkward, highly decentralized, inefficient structure of feudal government fell before the need for a more efficient, centralized governmental systemthe modern nationstate. Both in order to bring about this kind of transformation and in order to consolidate the accomplishments of the revolution, an ideology was needed, and nationalismthe ideology of the statemet this need. And if nationalism was the prevailing ideology, sovereignty was the basic premise of its legal expression. The concept of sovereignty had existed for several centuries. Its development as a legal concept can be traced to the work of certain Europeans, notably Hugo Grotius, who are often called the "fathers of international law." These scholars employed sovereignty as a fundamental concept for ordering international affairs between nations. During the period of colonialism and the foundation of empires, they built a school of international law that both supported the claims and attempted to control the conduct of the colonial and empirebuilding powers. During the emergence of the nationstate the same concept was put to new, somewhat different uses. Another dimension of the movement toward state positivism was provided by the secular character of the European revolution. Although there were variations in form and degree from nation to nation, the idea that law was of divine originwhether expressed directly, as in divine (i.e. scriptural) law, or expressed indirectly through the nature of man as created by God, as in Roman Catholic natural lawnow lost most of its remaining vitality. Formal respect might still be paid to the deity in the lawmaking process (as, for example, in the American Declaration of Independence), but henceforward the operating theory was that the ultimate lawmaking power lay in the state. Roman Catholic natural law had lost its power to control the prince. Secular natural law, while providing many of the ideas that were the intellectual fuel of the revolution, was ineffectual as a control on the activity of the state. It was backed by no organization and had no sanctioning power. The perennial controversy between natural lawyers and legal positivists (familiar to all students of legal philosophy) thus was decisively resolved, for operational purposes at least, in favor of the positivists. Consequently, although this debate still goes on, it has had a distinctly academic flavor since the emergence of the modern state. All Western states are positivistic. The emergence of the modern nationstate destroyed the legal unity provided by common acceptance of the Romancanonic jus commune in feudal Europe. The jus commune, associated in many minds with the concept of the Holy Roman Empire, was a law that transcended the diversities of local tribes, communities, and nations. With the decay of feudalism, the advent of the Reformation, and the consequent weakening of the authority of the Holy Roman Empire, the centralized monarchy began to emerge as the principal claimant to men's loyalty. The centralized state stood in opposition both to the medieval autonomy of classes and lands commonly associated with feudalism and to every kind of power outside the state. The state tended to become the unique source of law, claiming sovereignty for itself both internally and internationally. Thus national legal systems began to replace the jus commune, which became a subordinate or supplementary law. Roman law itself was quoted as providing, in the maxim quod principi placuit habet vigorem (the prince's pleasure is law), justification for the legal autonomy of the state that led eventually to its displacement in favor of national legal systems. The authority of the prince replaced that of the jus commune. The content of national law might continue to be drawn largely from the jus commune, but its authority came from the state. So the age of absolute sovereignty began. Where the jus commune was formally received, as it was in part of Germany, it was by the will of the prince, and its continued force within the state also depended in theory on his will. But where, as in most of Europe, there was no formal reception of the Roman law, the process of building a national law (usually in the national language) took place under conditions and on the basis of assumptions that presaged European legal positivism. The legislative act was subject to no authority, temporal or spiritual, superior to the state, nor was it subject to any limitation from within the state (such as local or customary law). From a time when lawmaking was distributed along a spectrum running from the local lord or town council through the emperor and the Universal Church, the West had moved to lawmaking at only one point: the centralized nationstate. Sovereignty had two faces, an outer face that excluded any law of external origin and an inner face that excluded any law of local or customary origin. It is important to understand that state positivism was much more sharply and consciously emphasized on the Continent than it was in England during this period of revolutionary change. One reason, of course, was the milder, more gradual, and more evolutionary nature of the English revolution. In England many of the forms of feudalism were retained, while their substance was transformed. The trappings of an established church survived, while that church's influence on the form and content of lawmaking diminished to the vanishing point. Most important of all, the indigenous common law of England, which had developed along lines quite different from those taken by the jus commune on the Continent, was not rejected in the interest of statism, nationalism, positivism, and sovereignty. On the contrary, the common law of England was a positive force in the emergence of England as a nationstate, and was vigorously embraced as evidence of national identity and national genius. On the Continent the revolution seemed to require a rejection of the old legal order; in England it seemed to require acceptance and even glorification of it. The implications of this difference for the attitudes toward codification in the civil law and common law worlds are obvious. On the Continent, where it was thought necessary to reject the jus commune, it was natural that new legal systems were codified; in England, where it was thought necessary to retain the common law, no need for codification was felt. On the Continent the rejection of the old order proceeded along the lines indicated by a vision of the world as properly organized into secular, positivistic nationstates. Consequently, the natural law of the Roman Catholic Church, like other externally derived theories of law and justice, and the canon law, like other external bodies of rules and institutions, could not have effect as law within the state. The Western school of international law, which is based on a kind of absolute sovereignty of the state that permits it to be bound only when it agrees to be, treated even accepted principles of international law as operative within the state only if the state itself decided that they should be. The law produced by international organizations and the obligations of members of such organizations again affected the state only if it had agreed to be subject to them. The laws of one state could only be enforced within another state if the latter chose to permit their enforcement. A judgment rendered by a court of one state would or would not be enforced by the courts of another state at the latter's option. The outward face of state positivism was thus uniform and unbroken: nothing outside the state could make law effective on or within the state without the state's consent. The inner face of the school of state positivism was equally unbroken. Only the state had lawmaking power, and hence no individual or group within the state could produce law. The ability of individuals to bind themselves by contracts and of the members of organizations to adopt effective rules governing their internal relations did not give them lawmaking power. These were considered to be private arrangements, which had legal effect only to the extent that the state chose to recognize and enforce them. Books and articles written by scholars (although much more influential than legal scholarship in common law countries, as will be explained in a subsequent chapter) also were not law, for the same reasons. Thus state positivism, as expressed in the dogma of the absolute external and internal sovereignty of the state, led to a state monopoly on lawmaking. Revolutionary emphasis on the strict separation of powers demanded that only specifically designated organs of the state be entitled to make law. According to that doctrine, the legislative and judicial powers of the government were different in kind; in order to prevent abuse, they had to be very sharply separated from each other. The legislative power is by definition the lawmaking power, and hence only the legislature could make law. As the only representative, directly elected branch of the government, the legislature alone could respond to the popular will. Some of the consequences of this dogma for the civil law judge will be discussed in the next chapter. For now it need only be said that the familiar common law doctrine of stare decisis - i.e. the power and obligation of courts to base decisions on prior decisionsis obviously inconsistent with the separation of powers as formulated in civil law countries, and is therefore rejected by the civil law tradition. Judicial decisions are not law. What, then, was law? The basic answer, which is the essence of legislative positivism, is that only statutes enacted by the legislative power could be law. However, it was common in civil law nations for the prince to have lawmaking power within certain limits. After the various Western revolutions, such decrees derived their force as law not from any inherent lawmaking power in the executive, but from the delegation of lawmaking power to the executive by the legislature, which was the sole repository of that power. By the same reasoning, the legislature could delegate the power to promulgate regulations having the force of law to administrative organs of the government. Such delegated legislative and administrative regulations were effective as law only within the limits of the power delegated by the legislature. Anything that exceeded that power would be "illegal," and consequently not law. In addition to statutes (including legislation promulgated by the executive under delegated powers) and administrative regulations, nations within the civil law tradition still commonly recognize a third source of law, called custom. Where a person acts in accordance with custom under the assumption that it represents the law, his action will be accepted as legal in many civil law jurisdictions, so long as there is no applicable statute or regulation to the contrary. The amount of writing on custom as law in civil law jurisdictions is immense, far out of proportion to its actual importance as law. The main reason for so much writing (in addition to the importance of custom as a source of law in the earlier history of the civil law tradition) is the need to justify treating as law something that is not created by the legislative power of the state. To give custom the force of law would appear to violate the dogma of state positivism (only the state can make law) and the dogma of sharp separation of powers (within the state only the legislature can make law). Some very sophisticated theories have been developed to explain away this apparent inconsistency. Meanwhile the importance of custom as a source of law is slight and decreasing. The result of all this is that the accepted theory of sources of law in the civil law tradition recognizes only statutes, regulations, and custom as sources of law. This listing is exclusive. It is also arranged in descending order of authority. A statute prevails over a contrary regulation. Both a statute and a regulation prevail over an inconsistent custom. This may all seem very technical and of dubious importance, but in fact it is basic to our understanding of the civil law tradition, since the function of the judge within that tradition is to interpret and to apply "the law" as it is technically defined in his jurisdiction. Both state positivism and the dogma of separation of powers require that the judge resort only to "the law" in deciding cases. It is assumed that whatever the problem that may come before him, the judge will be able to find some form of law to applywhether a statute, a regulation, or an applicable custom. He cannot turn to books and articles by legal scholars or to prior judicial decisions for the law. This dogmatic conception of what law is, like many other implications of the dogmas of the revolutionary period, has been eroded by time and events. Perhaps the most spectacular innovation has been the strong movement toward constitutionalism, with its emphasis on the functional rigidity, and hence the superiority as a source of law, of written constitutions. Such constitutions, by eliminating the power of the legislature to amend by ordinary legislative action, impair the legislature's monopoly on lawmaking. They insert a new element into the hierarchy of sources of law, which now must read "constitution, legislation, regulations, and custom." In addition, if a court can decide that a statute is void because it is in conflict with the constitution, the dogma of sharp separation of legislative from judicial power is impaired. The power of judicial review of the constitutionality of legislative action has long existed in Mexico and most other Latin American nations (though it is not always aggressively exercised). And since World War II, judicial review, in one form or another, has appeared or reappeared in Austria, France, Germany, Italy, Yugoslavia, and Spain. ... These and other modern tendencies have been noted by scholars, who often recognize their implications for the orthodox theory of sources of law, but they do not seriously impair the more generally prevailing view of what law is. To the average judge, lawyer, or law student in France or Argentina, the traditional theory of sources of law represents the basic truth. It is a part of his ideology. In the common law world, on the other hand, a world less compelled by the peculiar history and the rationalist dogmas of the French Revolution, quite different attitudes prevail. The common law of England, an unsystematic accretion of statutes, judicial decisions, and customary practices, is thought of as the major source of law. It has deep historic dimensions and is not the product of a conscious revolutionary attempt to make or to restate the applicable law at a moment in history. There is no systematic, hierarchical theory of sources of law: legislation, of course, is law, but so are other things, including judicial decisions. In formal terms the relative authority of statutes, regulations, and judicial decisions might run in roughly that order, but in practice such formulations tend to lose their neatness and their importance. Common lawyers tend to be much less rigorous about such matters than civil lawyers. The attitudes that led France to adopt the metric system, decimal currency, legal codes, and a rigid theory of sources of law, all in the space of a few years, are still basically alien to the common law tradition. ______________________________ B. Codes and Codification O. F. Robinson et al., European Legal History (3rd ed. 2000) 263-267 The Code Civil The process of codification in France took a somewhat different course. The idea of unity went back to Dumoulin, Coquille and Loysel in the sixteenth century. It had been continued in the seventeenth century by Domat, Fleury and his friend and close collaborator, Gabriel Argou, and Lamoignon. In the eighteenth century the most notable figures are three near contemporaries – Daguesseau (1668-1751), Louis XV's chancellor, Francois Bourjon (d.1751), an advocate before the Parlement of Paris, and Robert Joseph Pothier ( 1699-1772) who held hereditary judicial office in Orleans, where he also studied, was admitted to the bar and, in 1749, became professor of French Law. [Daguessseau was responsible for three codifying ordinances on gifts, wills, and substitutions, which were incorporated largely intact into the Code Civil. Bourjon was interested in the customary law. He applied rationalist principles and also drew on royal legislation, the arrêts of the parlements, the decisions of the Châtelet (the ordinary court for Paris and its surrounding area) and French legal literature of all schools. Pothier published a treatise on the custom of Orleans, a treatise on obligations and a dozen or so books on specific contracts. He also published a book on marriage and various other works on all aspects of marital relationships. In the last two years of his life he wrote on ownership and possession. His work on obligations and property was influenced by Roman law, although he accepted much from the customary law.] This was the state of the law at the outbreak of the Revolution in 1789, and it seems clear that nothing less than a revolution would have sufficed to sweep away the traditional rights of the ancient provinces and the customs of their parlements. Not only law reform but codification was a demand of the Constituent Assembly in 1790; the first written constitution, that of September 1791 which was preceded by the Declaration of the Rights of Man, envisaged the preparation and promulgation of a civil code. Sufficient time, however, was not allowed for any serious draft, and the legislation which was actually passed in the next decade was concerned with particular reforms. The ancient provinces together with the bailliages and sénéchaussées were abolished; the modern départements were introduced as administrative units. The parlements were sent on indefinite vacation – from which they never returned. All Frenchmen became citizens, without differentiation of status, where formerly there had been the nobility and the commoners (roturiers), and the latter had themselves been classed by legal prescription into bourgeois or serf. All feudal burdens on land were abolished, as were all feudal privileges, such as the right of hunting over another's land and primogeniture; substitutions by means of trusts were set aside. Civil marriage and divorce were introduced. During the 1790s three draft codes were put forward by Cambacérès (1753-1824), but they were all rejected, usually as being insufficiently revolutionary; these outline codes were very brief because Cambacérès recognized that it would be impossible to have a code which could provide for all cases, and he also accepted that bulky laws were useless for informing the populace of their legal rights. The actual achievement of codification only became possible after 1800 when Napoleon Bonaparte became First and Cambacérès Second Consul. In August 1800 a commission of four senior practitioners of law – Tronchet, Bigot-Préameneau, Portalis and Maleville – was appointed to produce a suitable code. Their records reveal that all these men were politically moderate, preferring Napoleon's rule to the uncertainties of Revolutionary fervour, but able to adjust to the restoration of the Bourbons in 1815. They had all studied Roman law at university in the normal way before going on to qualify for practice. As their libraries reveal, all four were cultivated jurists, acquainted with Grotius, Vinnius, Pufendorf, Thomasius and Heineccius among foreign writers, and with French legal literature from Domat to Pothier and Olivier, a professor of law and judge in the appeal court at Nîmes. It was the authority of Napoleon himself (who admired Montesquieu's writings) which made possible the production of an enduring code, enduring because it had adequate links with the legal past. An outline of the proposed code was rapidly produced and published for comment from various courts and from the public. The commission then settled to the detailed discussions. Napoleon took a great interest in the scheme and presided over 57 of the 102 sessions which were devoted to the draft; he is recorded as having intervened frequently and effectively in the debates. Adoption in the full sense, divorce by consent, a general hypothec over the property of guardians as security for the proper performance of their duties, and unfavourable treatment of foreigners all seem due to Napoleon's own views. It was certainly because of his energy and his ambition to be remembered as much as a law-giver as a general that the code was pushed through the reluctant legislative body and issued in March 1804 as the Code civil des Français in three books with 2281 articles. (It was re-issued as the Code Napoléon in 1807, became again the Code civil after Napoleon's fall, was re-entitled the Code Napoléon between 1852 and 1870 under Napoleon III and after the latter's fall reverted to its original and present title.) The arrangement of the Code civil is firmly in the French Natural Law tradition of the previous half-century as compared with the rationalist and scientific approach of the Prussian code. The model is essentially the Institutions of Justinian, as interpreted in the light of reason. Domat had adopted this pattern in his systematization of the Corpus Iuris. Vinnius, the Humanist and moderate Natural Lawyer who was most influential in France, had earlier stayed close to it, simply dividing rights over things into either ownership and possession or obligations. This structure was used by Bourjon and the general title on obligations was indebted to Pothier since Bourjon had found no such treatment in the Custom of Paris. Pothierhas frequently been described as the father of the Code and this is true as to content; there is relatively little in the Code that was not acceptable to or even drawn from Pothier. The arrangement of the Code, however, owes more to Bourjon. Moreover, when there was conflict between Roman and customary rules, it is clear that the compilers did not aim at producing a compromise solution but rather, in the spirit of the age, sought to take whichever was closer to reason and to the law of nature. It is probably because the Code civil was not affected by any highly conceptualized theory of Natural Law but was simply designed to conform with the Declaration of the Rights of Man that it was found suitable in the individualistic, utilitarian, bourgeois, nineteenth century. It was also possibly advantageous that the model of the Institutions meant that commercial law was excluded from the Code civil; although a commercial code was produced under Napoleon this did not attract the same emotional loyalty among Frenchmen and so it could more readily be adjusted to the new economic world. Book I opens with six articles – the Code is normally cited by article alone, consecutive articles from the start of Book I to the end of Book III – on the publication, effects and application of the law; for example, laws are not to have retrospective effect. The main part of the Code then begins, dealing with persons; it includes titles (subdivided into chapters) on civil rights and the formalities of status, on marriage, divorce and paternal power. Book II, that is, articles 516-710, deals with property, both moveable and immoveable, with ownership and with lesser real rights. Book III, which is more than twice as long as the other two together, deals with modes of acquisition of ownership, starting with succession and proceeding to obligations. Ownership is acquired immediately on perfection of the contract in the case of sale, without need for delivery or payment of the price (article 1483). The law of obligations covers both the generalities applicable to obligations, and specific contracts, quasi-contract and delict. Security rights and prescription also occur in Book III, as does the property regime of marriage, since it is viewed as a matter of acquisition of property. The style of the Code is very clear; the compilers sought for a simplicity of statement which would make the law accessible to everyone. At one level this was achieved; nevertheless the apparent simplicity has often led to the need for explanatory case law. For example, article 1382 which provides that everyone is obliged to make reparation for the damage caused by his fault has given rise to an enormous quantity of case law on the law of reparation. The Code itself has been much amended and supplemented by later legislation, as is inevitably necessary with all codes, but it has never been subject to a full revision, despite discussion. The Code Civil dealt only with that part of private law which was considered in Justinian's Institutions, excluding the final titles on procedure and the criminal law. The Code de procédure civile came into effect on 1 January 1807; it dealt with procedure before the courts, execution of judgment, and also with the formalities necessary for proving and giving effect to wills, and with arbitration. It embodied such revolutionary ideas as the freedom of the parties to determine the scope of the case, the right of immediate access by the parties to the judge, oral pleading and an independent judiciary. The Code de commerce came into force the following year; its four books dealt with commerce in general, with maritime law, with bankruptcy and with mercantile jurisdiction. It drew heavily on the royal ordinances which had been the work of Colbert, the Code marchand of 1673 and the Ordonnance de la marine of 1681. It defined the status of merchant and dealt, for example, with the duty to keep books, with companies and partnerships and with bills of exchange. It did not innovate, but produced a clear and rational statement of the existing law merchant. The Code d'instruction criminelle or code of criminal procedure and the Code penal both came into force on 1 January 1811; the Code penal was a revision of an earlier code of 1791, dealing with serious crimes and dominated by the idea that both crimes and penalties should be precisely defined by law without room for any judicial discretion. The code promulgated in 1810 was rather more flexible but retained the principle that crimes and punishments must be clearly defined in advance; its penalties, however, were severe as well as inflexible. The influence of the Code Civil and of the accompanying codes was enormous. This was partly due to its introduction into much of Europe as a consequence of Napoleon's conquests, and partly to its use in the French colonial empire. It was also widely imitated or borrowed, because of its quality as a piece of legislation, because it was accessible and because it expressed more generally, and therefore more attractively than its rivals, the ideals of the codification movement which continued in civil law countries throughout the nineteenth century. It was imposed on Belgium and the Netherlands, on those Italian states which fell to the French, on Baden and the Rhineland. Belgium kept it (as did the Rhineland until 1900); the Dutch code of 1838 drew much from it; the Italian codification movement, which was finally successful after the creation of a united Italy, was based on it. In Egypt, Syria and the Lebanon, in Algeria, Tunisia and Morocco, and in Indo-China it was the law of the colonial settlers and affected, profoundly in most cases, the law that followed the end of colonialism. In Louisiana and Quebec the direct impact was of the French law of Pothier's time, but the Code civil had indirect influence. In Spain and the Spanish Americas, in Portugal and most of the Portuguese colonies and in the Balkans the Code civil was admired and largely absorbed. Its dominance has lessened in this century for ideological or political reasons, and because some countries, like Brazil or Turkey, preferred to take the more modern German or Swiss code as a model, while others, like Italy and the Netherlands, have felt the need to produce a new code. Napoleon, however, was right to think he had produced an enduring monument. French Code Civil Preliminary title Article 1. The laws are executory throughout the whole French territory, by virtue of the promulgation thereof made by the first consul. Article 2. The law ordains for the future only; it has no retrospective operation. Article 3. The laws of police and public security bind all the inhabitants of the territory. Article 4. Immoveable property, although in the possession of foreigners, is governed by the French law. Article 5. The laws relating to the condition and privileges of persons govern Frenchmen, although residing in a foreign country. Article 6. The judge who shall refuse to determine under pretext of the silence, obscurity, or insufficiency of the law, shall be liable to be proceeded against as guilty of a refusal of justice. The judges are forbidden to pronounce, by way of general and legislative determination, on the causes submitted to them. Private agreements must not contravene the laws which concern public order and good morals. French Civil Code Delicts and Quasi-Delicts Art. 1382. Any act whatever of man which causes damage to another obliges him by whose fault it occurred to make reparation. Art. 1383. Everyone is liable for the damage which he causes not only by his act but also by his negligence or imprudence. Art. 1384. One is liable not only for the damage which one caused by his own act, but also for that which is caused by the act of persons for whom he is responsible, or by things which he has in his keeping. Art. 1385. The owner of an animal or he who avails himself of it while it is being put to his use is liable for the damage which the animal causes, whether the animal was in his keeping or whether it had strayed or escaped. Art. 1386. The owner of a building is liable for the damage caused by its collapse if this happens as a result of default of maintenance or through a defect in its construction. Decision of the Cour de Cassation Civil Chamber, 15 June 1977 Mr. Cueff v. Ms. Pivaut The Court: – On the single ground for appeal, examined at its third subdivision: – In view of article 1384, sec. 1 Code civil; – Considering that the keeper of the thing which was the instrument of inflicting damage (outside the case where it constituted a completely exonerating event of higher force) is obligated, in his relations to the victim, to provide full compensation, regardless of his potential recourse against the third party that had contributed in causing the damage; – Considering that the statement of facts in the contested invalidating judgment, namely, that in an urban area a young child, Thomas Cueff, stepped out of the car his mother had stopped in front of her house on the other side of the street, crossed the street, was hit by the car of Ms Pivaut and was hurt; that his father Armand Cueff, acting as his legal representative, demanded from Ms Pivaut compensation of the damage suffered by his son; – Considering that in order to partially exonerate Ms Pivaut from liability incurred by her under art. 1384 , sec. 1 Code civil, the Court of Appeal maintains that Ms Cueff in unloading her automobile committed a certain fault by not applying all attention necessary to the acts and movements of her child and that this fault was no more unforeseeable than that committed by the victim; – Considering that by thus viewing as cause that partially exonerated the keeper from liability the fault of a third party, the judges on appeal violated the abovementioned text; For these reasons, and without any need to pronounce on the other subdivisions of the ground for appeal: – Quashes and annuls the decision rendered as between the parties on 18 November 1975 by the Court of Appeal of Rennes, and remands the case to the Court of Appeal of Angers. Annotations to article 1384 para 1 Code civil (Codes Dalloz, 93rd edition 1993-1994) Cause étrangère (extraneous cause) Force majeure (act of God) (29) La présomption de responsabilité établie par l’art 1384, al. 1er, à l’encontre de celui qui a sous sa garde la chose inanimée qui a causé un dommage à autrui ne peut être détruite que par la preuve d’un cas fortuit ou de force majeure ou d’une cause étrangère qui ne lui soit pas imputable. Il ne suffit pas de prouver qu’il n’a commis aucune faute ou que la cause du fait dommageable est demeurée inconnue. (The presumption of liability established by art. 1384 para 1 against someone who has under his guard the inanimate thing which has caused damage to another cannot be rebutted, except by proof of accident or act of God or of an extraneous cause that might not be imputable to him. It does not suffice to prove that he has not committed any fault or that the cause of the damaging event has remained unknown.) Faute de la victime (fault of the victim) (35) Le gardien de la chose instrument du dommage est partiellement exonéré de sa responsabilité s’il prouve que la faute de la victime a contribué au dommage. (The guardian of the thing intrumental for the damage is partially exonerated from his liability if he proves that the victim’s fault has contributed to the damage.) Fait d’un tiers (act of a third party) (36) Le gardien de la chose qui a éte l’instrument du dommage, hors le cas ou il établit un événement de force majeure totalement exonératoire, est tenu, dans ses rapports avec la victime, à réparation intégrale, sauf son recours éventuel contre le tiers qui aurait concouru à la production du dommage. (Civ. 2e, 15 juin 1977, J.C.P. 1978. II. 18780 note Baudoin. 11 juill. 1977, D. 1978. 581, note Agostini. 5 févr. 1986, Bull.civ. II, no. 11. 26 avr. 1990, ibid. II, no 79.) (The guardian of the thing that has been instrumental in the damage, unless he has proven the occurrence of an act of God which totally exonerates him, is bound with respect to the victim to effect complete compensation, regardless of his eventual recourse claim against the third who may have concurrently caused the damage.) Abbreviations: Civ. = Arrêt d’une chambre civile de la Cour de cassation J.C.P = Juris-classeur périodique (Semaine juridique) D. = Recueil Dalloz Bull.civ. = Bulletin des arrêts des chambres civiles de la Cour de cassation C. Public-Private Distinction Thomas Glyn Watkin, The Italian Legal Tradition (1997) The basic division of Roman law was into public and private law, and this dichotomy remains fundamental to modern civilian systems. Returning to the simple legal sentence: A owes X to B, if both A and B are private individuals and not State bodies, then the legal relationship described in the sentence is governed by private law, but if either A or B is a public body - the State, or any organ of State or local government, then the relationship is governed by public law. Public law can be subdivided into two main types: public international and public domestic. Public international law applies to legal relationships in which both parties are nation States, while public domestic law pertains to legal relationships between a State and a private individual. Within the sphere of public domestic law, different headings of law can be identified. Constitutional law sets out the basic duties of the State to its subjects and vice versa, as well as defining the mode in which the citizens participate in the law-making activity of the State on their behalf. Administrative law regulates the manner in which the State and other organs of public administration prosecute the policies by which they seek to fulfil their duties. Criminal law defines the circumstances in which the State will be entitled to interfere with and curtail the rights of subjects which it should normally uphold, crimes being in effect the circumstances in which and for which the State is so entitled to interfere, and the extent of that interference constituting the lawful punishments the penal law justifies. Procedural law sets out the manner in which the judicial powers of the State are organized to provide civil, criminal and administrative justice, together with the procedures by which the tribunals so set up are to fulfil their tasks. Revenue law defines the State's powers to require contribution from its subjects so that it can finance the achievement of lawfully agreed policies. Ecclesiastical law pertains to those legal relationships which have the State as one of their subjects and the Church for the other. Private law on the other hand is only capable of subdivision under two headings - civil and commercial law. Commercial law relates to those legal relationships in which both parties are entrepreneurs. If either party is not an entrepreneur, the transaction is governed by civil law. Basically, this subdivision recognizes that men of commerce, merchants, have traditionally governed transactions between themselves according to different rules from those which obtain between non-merchants. This was the meaning, for instance, of the rules called the Law Merchant in the mediaeval period. In some civil law countries, such as France and Spain, these rules are still set out in a separate Commercial Code, allowing commercial transactions to be treated differently from those which involve ordinary members of the population, thereby recognizing that they are motivated by different considerations. The businessman buys and sells for profit, while his ordinary customer seeks the provision of goods and services. ________________________________