Business Law Summary Endterm

Arianna Angrisano Bonetti
Business Law and Ethics Summary
CH. 7 The EU
7.1 Economic integration in Europe
Key takeaway after WW2: economic integration would be a key to lasting peace.
 European Coal and Steel Community Belgium (1952): mutual dependence on trade in
these basic materials would guarantee peaceful relations, France, (West)-Germany, Italy,
Luxembourg and the Netherlands.
 European Atomic Energy Community (1985): based on similar ideas.
 Creation of a common market in 1958
 A single market in 1987,
 An economic union in 1993
 A monetary union in 1999
Member states increased from 6 in 1958 to 28 in 2015. Not all EU member states are
simultaneously a member of the monetary union, the UK is a EU member (for now at least) but is
not part of the monetary union.
The EU legislative bodies and the European Court of Justice have played a profound role in the
forming of European Law: a field of law in its own right that is applicable in the domestic legal
orders of its member states.
7.1.1 Supranational law

The European Court of Justice (ECJ) ruled that European law is supranational.
This means two things.
 European law is directly applicable in its member states. This means that each citizen may
invoke European law effectively.
 European law is superior to domestic law. This means that all domestic legislation that is
not in compliance with European law may not be applied. Instead, the European standard
should be used. 7.2
7.2 Free trade under the EU

In the European Union, the concept of free trade is organized in three main areas:
1. The four freedoms;
2. Harmonization of law;
3. Competition rules.
7.2.1 The four freedoms

In the European Union, free trade is realized by recognizing four fundamental freedoms:
1. The free movement of goods

2. Personnel
3. Services
4. Capital
The free movement of goods

The free movement of goods is in fact built around two concepts: a ban on all fiscal restrictions,
and the elimination of all quantitative restrictions to trade in goods.
Ban on all fiscal restrictions

Article 30:
 All import and export duties are forbidden, even if they are not intended to protect a market,
but instead should serve a social cause. For example, an Italian export tax on products of an
artistic, historical and archaeological nature to protect their cultural heritage was considered in
contradiction with Article 30.
 All charges having an equivalent effect are equally prohibited. Sometimes a Member State
charges a fee when a product enters or leaves their country but does not name it an import or
export duty.
 The only exception to the above is any fee that is used to directly cover the costs of services
provided for by a member state to an importing/ exporting company, such as the storage of
goods, or the carrying out of inspections.
Article 110: Internal (national) taxation may not be abused to discriminate against foreign
products.
Ban on physical restrictions

Articles 34 and 35 also prohibits quantitative restrictions, such as quotas, on imports and exports.
In the rare occasion in which a quota, directly discriminating foreign goods, is upheld, this will
probably fall under the regime of Article 36 which justifies quantitative restrictions to trade under
strict conditions.
A Measure Having Equivalent Effect (MEE) is a domestic rule that has the same effect as a
quantitative restriction and therefore has a discriminatory effect.
In the Cassis de Dijon ruling the Court dictates two principles:
 The principle of mutual recognition: when a product is lawfully put into circulation in one-
member state, this product may be sold in other member states under the same conditions.
 The rule of reason doctrine: the principle of mutual recognition does not apply when a
member state may invoke a rule of reason, which are for example the effectiveness of fiscal
supervision, the protection of public health, the fairness of commercial transactions and the
defense of the consumer.
A sales modality is a trade rule about the circumstances under which a product can be sold. For
example, rules on opening hours, dumping, or rules on advertisement.
The free movement of persons

The general idea is that free movement of persons contributes to the establishment of a free
market economy. After all, one needs workers and self-employed people to produce and sell
goods. It would not make sense to regulate the free trade of goods in such a profound way as
described above on the one hand and restrict free movement of persons on the other hand.
 The right applies to all European citizens, and is not restricted to (potential) workers or
self- employed people.
There are four degrees in which European citizens may enter and reside in another country:
1. The first three months of residence: every EU citizen is entitled to enter any other EU
country, without any formal requirement.
2. More than three months up to five years: every citizen is entitled to reside in any other EU
country, as long as she/he fulfils one of the following conditions:
I. Either the migrant works or is self-employed

II. Has a healthcare insurance and is sufficient resources for themselves and their
family not to become a burden on the social assistance system of the host Member
State.
III. Is a student meeting the same requirements (healthcare insurance and sufficient
resources).
3. Five years or more: if a migrant has resided lawfully in the host state for a period of five
years, he and his family have the right to permanently reside in the host state.
Dating back to 1985, the BENELUX, Germany and France signed the Schengen agreement.
The Schengen Area consequents in the removal of border controls between EU members, and
thus contributes to the free movement of persons.
The free movement of services

While in essence, the free movement of service is separately regulated in EU law, there is a strong
connection with the before mentioned freedom of establishment. Service providers may need to
establish themselves in another EU country to be able to offer their services.
The difference between the freedom of establishment and free movement of services is that in
case of the first, a service provider crosses the border and establishes himself on a more
permanent basis in the other country. Trade barriers to this establishment are forbidden.
In case of the latter, the service provider crosses the border from one EU Member State to
another to provide the service. There is no permanent establishment involved. Trade barriers to
the providing of such services are forbidden.
The free movement of capital

In a true free economy, the financing of economic activity is not restricted to country borders. For
this reason, Article 63 TFEU prohibits restrictions on the free movement of capital and payments.
This includes for instance the sales of mortgages, investments in real property and the purchase of
shares of a company
7.2.2 Harmonization of law

European laws and policies on economics have been harmonized profoundly in order to ban trade
barriers.
In law, this is done on two levels, by primary and secondary legislation:
 Primary legislation are the treaties that are signed and ratified by the EU Member States.
The most important document for now is the Treaty on the Functioning of the European Union
(TFEU). The TFEU lays down the general fundaments of European economic integration.
 Secondary legislation are the laws produced by the European legislature, based on and
authorized by the primary legislation. Secondary law is more detailed and further specifies
the primary law.
There are different types of secondary legislation:
 A regulation is legislation that applies within the European Union without the interference
of national parliaments.
 A directive is legislation in which a certain goal or principle is adopted that should be
implemented by the EU Member States the way they see fit.
 A decision is legislation that only applies to an individual case.
 Recommendations and opinions: legally non binging “suggestions” on what is to be done.
7.2.3 Competition law

To realize a free market economy, it is necessary that not only Member States act in compliance
with its principles, particularly, fair competition. To this end, the TFEU and secondary legislation
establish three main rules that apply to companies in the context of fair competition: the
prohibition of cartels, the prohibition to abuse a dominant position, and rules on concentrations.
The prohibition of cartels

Cartels are agreements or practices that have the same effect: distorting fair competition. This can
be done by a classic written agreement, but may also follow from evidence that secret meetings
have been held to facilitate the cartel
The distortion of competition is:
 The fixing of purchase or selling prices.

 The limitation or control of production, markets, technical development, or investment to
only a few.
 The sharing of markets or sources of supply.
 Applying dissimilar conditions to the same transactions with other trading parties, thereby
placing them at a competitive disadvantage.
 Forcing the other party to accept contractual terms with obligations that are not related to
the actual contract.
There are exemptions to the prohibition of cartels. The Commission may exempt certain individual
cartel agreements when they fulfil all the following criteria:
 improve the production or distribution of goods or contribute to technical or economic
progress;
 it benefits the consumer;
 the cartel must be indispensable to realize the intended goals;
 the cartel must not distort competition substantially.
The commission will usually not fine any cartels whose impact on the market is insignificant.
The abuse of a dominant position

According to Article 102, abuse may include:
 the fixing of purchase or selling prices;

 the limitation or control of production, markets, technical development, or investment to only
a few;
 applying dissimilar conditions to the same transactions with other trading parties, thereby
placing them at a competitive disadvantage;
 forcing the other party to accept contractual terms with obligations that are not related to the
actual contract.
Violations of this article might imply huge fines or even worse punishment.
Concentrations
When two formally independent undertakings become one economic entity, this might have
undesirable effects regarding free competition
A concentration is the result of two or more independent economic entities that merge into one.
According to the regulation, a concentration can be a merger, a takeover, and a joint venture. In
case of a merger, two or more previously independent undertakings merge into one. In case of a
takeover, one undertaking purchases another undertaking. In case of a joint venture, two or more
undertakings cooperate on a lasting basis and de facto function as an autonomous economic
entity.
7.3 The organizational structure of the EU

On the highest level, there is the European Council. This body is composed of all heads of the EU
Member States. The Council convenes four times a year on high-level summits. During these
summits, the general direction of European policies is discussed and established. However,
technically, this body does not adopt laws, but instead is responsible for pointing out the general
direction of European integration.
The European Commission is the highest executive organ of the EU. They enforce European law by
slapping fines on those who do not obey EU law. Next to that, the Commission supervises and
allocates the EU budgets. The Commission proposes new laws that can be adopted by the Council
of Ministers and the European Parliament. While the Council and Parliament are the actual
lawmaker, they cannot act without the initiative of the European Commission. The Commission is
composed of 28 commissioners, one from each Member State. However, it is assumed that the
Commission is a true supranational body that transcends national politics. A commissioner is
appointed for a five-year term. In a manner of speaking, the Commission represents the EU in
itself.
The Council of Ministers is composed of a representative on the ministerial level of each EU

government. Usually, the minister or state secretary of each Member State that is responsible for
the debated topic will attend the Council. The Council drafts and adopts new legislation together
with the European Parliament. Next to that, the Council adopts the EU budget, together with the
European Parliament. Furthermore, the Council is responsible for the foreign policies and the
closure of agreements between the EU and other entities. In a manner of speaking, the Council of
Ministers represents the governments of the EU Member States.
The European Parliament is directly elected by the European Citizens. The 751 parliamentarians
therefore represent most of the political flavors in each Member State. Its core responsibility is to
draft and adopt – together with the Council of Ministers – new legislation. Next to that, the
Parliament elects the Commission President, and approves of the other commissioners.
Furthermore, the Parliament adopts the EU budgets, together with the Council of Ministers. In a
manner of speaking, the European Parliament represents the European citizens.
CH. 8 CONTRACT LAW

8.1 The Forming of a Contract
Contract: an agreement between two (or more) parties, in which the contracting parties promise
to do something in exchange for something in return.
It is assumed that ‘just a promise to do something’ is not enough for being a legally binding offer
or acceptance. The law mostly requires something beyond a mere promise.
8.1.1 A valid contract

Determinability: It is widely assumed that an offer should be specific enough to consent to. It has
to be clear enough in order to be enforced by law.
Contracts in Common Law

In the common law approach, a contract should comply with the doctrine of consideration.
Consideration is the principle that in a contract something of legal value must be exchanged for
something else of legal value.
So, for example, you can’t sue your friend Jeff simply because he promised he’d go out tonight but
didn’t show up.
In a traditional understanding, this means that a contract is per definition a so-called quid quo pro
agreement: one exchanges something for something else.
The bargain theory implies that consideration exists when the promise and return promise are
bargained for. Meaning that both the two parties must be aware of what is offered in exchange of
what.
As we have seen above, one-sided promises are in principle never enforceable. However, this
might lead to quite some undesirable situations.
The Principle of Promissory Estoppel implies that a one-sided promise is enforceable when the
promisor should reasonably expect the other party to rely on the promise.
Contracts in Civil Law

In civil law systems, there is no such thing as a consideration theory. There is usually a strong
emphasis on the willingness of the contracting parties to be bound to the agreement. This is also
referred to as ‘contractual intention’. This means that a valid contract is the result of two parties
expressing their will to be bound by their promises.
For example, consider the situation in which Suzy sells her bike (worth $1000), to Winny but in an
email she writes $10, forgetting two zeros.
In a common law country therefore, Suzy is bound to deliver the bike to Winny.
In a civil law system on the other hand, she would not be bound by her offer since she doesn’t
consent to it (according to art. 3:33).
The requirement of consent in civil law implies some confusion. After all, one can always claim
that he communicated something else than intended.
Because of this, article 3:35 was created. The consequence of this Article is that when a party
could reasonably expect the declaration to be in conformity with the will of the other party, this
other party cannot invoke Article 3:33 Civil Code. In other words, Article 3:35 protects against a
too generous usage of Article 3:33 Civil Code.
Basically:
 Article 3:33 protects consent of both parties.
 Article 3:35 helps a reasonable use of article 3:33 and prevents the abuse of it.
8.1.2 The time an offer or acceptance is legally binding
In the negotiation process, it is important to know:

1. Until what time an offer can be revoked without consequences.
2. When an acceptance has legal effect, because from that moment onwards, the contracting
parties are in agreement.
There are three distinct approaches in law that regulate all this:
 The Anglo/American model
 The Romanistic model
 The Germanic model
The Anglo/American model originates in the UK and is widely applied in the common law
countries. In this approach, an offer is revocable until accepted. Furthermore, the receiver of the
offer may accept the offer once the offer is arrived until the moment the offer transpires.
The moment at which the party sending the acceptance has no control over the message
anymore, or when it was sent, is decisive. Due to this last element, this model is also referred to as
the postal theory or mailbox theory, since the contract is valid from the moment the acceptance
was sent.
The Romanistic model originates in France and is applied in those countries that used the French
Civil Code as a model to their own, such as Italian law. The Romanistic model holds a middle
ground between the Anglo/American model and the Germanic model. The offer is not as non-
committal as the Anglo-American model. In the Romanistic approach, an offer is revocable until
accepted. However, when the offeror revokes the offer before the offer expires, the other party
may claim damage compensation. A contract is legally valid when the offering party is aware of
the fact that an acceptance has been sent.
The Germanic model originates in Germany and is applied in those countries that used the
German Civil Code as a model to their own, such as the Netherlands, Portugal, Greece, and with
some modifications, Japan. In the Germanic model, the offer is in principal irrevocable. This
means that an offer may not be revoked until the offer transpires. In the absence of a specified
date, a reasonable period applies. This means that an offeror has to take in consideration that the
offer may be accepted, and therefore will be bound by the offer he made. An offer has legal effect
when received by the other party. In the same line, the acceptance is generally considered to be
effective when it is received by the offeror.
8.2 The content and interpretation of a contract

In most legal systems, the contracting parties are in principal free to choose what they agree upon.
However, contractual freedom is never completely unlimited. Three main exemptions are
commonly apparent in most legal systems.
 Consumers are additionally protected since they are considered a ‘weaker’ party compared to
a professional business;
 In line with this, General Terms mustered by a business should not be unreasonable;
 A contract may never have the aim of violating (mostly penal) laws.
The primary message here is that contracting parties are free to choose what the content is of
their contract, with some exceptions. As we read this provision carefully, we can conclude that the
freedom of contract means:
• The freedom to enter into a contract.
 The freedom to choose the contracting party.
 The freedom to determine the content of the contract.’
The Russian Civil Code restricts contractual freedom on three grounds.
1. First, there are exemptions when a contract is a so called ‘public contract’. A contract is
‘public’ when the selling party is a professional organization whose core activities are to
sell products or services.
2. Second, there are exemptions when one of the parties uses a standard form contract, the
so-called ‘contract of affiliation’. This type of contract usually is a ‘take it or leave it’ type of
standardized contracts.
3. Third, not surprisingly, a contract may not violate the law. 8.3
8.3 The form of a contract

Contracting parties choose the form of their contract. This also means that in principle, oral
contracts have the same legal weight as written contracts. however, the evidence that an oral
agreement exists will be harder to deliver than in the case of a written agreement. Therefore,
when the sum or content of the contract becomes more serious, contracting parties will most
likely prefer a written agreement.
There is a serious problem with evidence in case of an oral agreement. Therefore, it might be
advisable to use a written agreement when things got more serious than buying groceries or
ordering a drink.
8.4 Factors affecting the validity of a contract

While a contract may be formed and agreed upon in conformity with the law, there might still be
reason to doubt its validity. This is mostly so when there are special circumstances that result in a
certain unfairness, and consequentially affect the validity of the contract.
We can subdivide these factors in internal and external factors. In case of internal factors, the
unfairness is created by something that happens in the sphere of the disadvantaged party. In case
of external factors, the unfairness is created by something external to the disadvantaged party.
If one of those factors is apparent, the consequence might be that the contract is null, or voidable.
This means that a contract has never existed by law, as a result of a factor affecting the validity of
a contract. Voidability means that a contract that is lawfully concluded may be rescinded by the
disadvantaged party as a result of a factor affecting the validity of a contract.
This means that one contracting parties may choose to rescind the contract due to the unfairness
he suffers.
Internal factors affecting the validity of a contract:
 Legal capacity: In most legal systems, for certain individuals, their legal capacity to
conclude contracts is restricted. This is due to the fact that they are considered to be, or
should be, incapable to close a contract. This is usually the case with minors and mentally
ill people.
 Unilateral mistake: A person may make a mistake in concluding a contract. This mistake
may be one sided, so that only one of the two contracting parties errs in the interpretation
or understanding of the contract.
 Ostensible Authority: The power of an individual or company to conclude contracts may
be restricted by law or by the statues of a company. This is especially relevant when an
individual represents a company and closes a contract with another party.
External factors affecting the validity of a contract:
 A bilateral mistake occurs when both parties of a contract are mistaken regarding the nature
or content of a contract. This means that both parties had a different understanding regarding
the nature or content of the contract compared to the actual nature or content. In common
law systems, one usually distinguishes between a common mistake and a mutual mistake.
 Misrepresentation occurs when the disadvantaged party is mistaken regarding the nature or
scope of a contract while this is caused by the action of another party. There are three
different types of misinterpretation: I
 In case of fraudulent misrepresentation, the misrepresenting party is dishonest on purpose.
 In case of negligent misrepresentation, the misrepresenting party is not necessarily dishonest,
but certainly negligent in providing information about the contract.
 In case of innocent misrepresentation, the misrepresenting party is not dishonest nor negligent
but provides for false information nevertheless.
Usually, in civil law countries, such a subtle subdivision in types of misrepresentation does not
exist. In general, cases of innocent and negligent misrepresentation can be solved by applying the
general provisions in which contractual intent is a prerequisite for a valid contract.
 Duress is the situation in which a party consents to a contract under threat.
8.5 Performance of the contract

Of course, one would like to make sure that the other party sticks to the agreement. To this end,
in some legal systems, the principle of good faith is recognized. This means, amongst others, that
the contracting parties have the responsibility to deal with one another in an honest and fair
way.
However, the principle of good faith is not always respected. Then, how do you bind someone to a
contract when the other appears to be unwilling or unable to perform? One general rule of an
almost universal scope is that in case of non-payment: it is ultimately possible to request the
authorities to seize and sell property of the debtor in order to settle the payment.
In most common law systems, the preferred approach is to grant damage compensation
immediately instead of enforcing the particular contractual obligation
8.6 International contract law

Internationally, several initiatives have been undertaken to unify the law of contracts.
This is done with regard to the content of international contract law, such as the UNIDROIT
Principles, the CISG and INCOTERMS. This is done with regard to the form of international
contracts, such as the ICC model contracts.
CH. 9 LIABILITY LAW

9.1 Contractual Liability
Civil codes inspired by the civil law legal family usually adopt a legal remedy to enforce fulfilment
of the obligations of a contract as a primary legal remedy. In common law systems, there is a
stronger emphasis on damage compensation rather than demanding the specific performance that
was agreed upon.
9.1.1 Civil Law

The general approach seems to be that:
 When performance is impossible, damage compensation is awarded;
 When performance is still possible, performance can be demanded within a reasonable time.
When justified, additional damage compensation can be awarded;
 When performance still does not occur, damage compensation can be awarded.
In case of impossibility, it is normally so that the non-performing pays damage compensation to
the disadvantaged party. This is not only the sum of money that reflects the value of the agreed
performance, but additionally also damage that was caused by the non-performance.
Most civil law systems however make an exception when the impossibility is a result of a so-called
‘force majeure’. These are extraordinary things that in the course of normal business normally do
not happen, such as a natural disaster, a terrorist attack, a fire, or a hurricane.
If the performance is still possible in a civil law approach the promised performance may be
demanded by the disadvantaged party. Situations in which this occurs are usually when a
contracting party did not perform satisfactory in view of the other party, or the performance was
delayed.
In many legal systems, it is required to formally inform the other party that he is in breach of
contract, and why. It is mostly required to do this in written form. The formal notice is mostly a
prerequisite for any further legal actions.
9.1.2 Common law

The focus is not so much on enforcing the promised performance, but rather on determining the
damage compensation that should be paid.
In general, it is not so relevant why the contracting party is in breach. Personal motives or
incapability do not play a significance role. Neither does it make that much of a difference
whether or not fulfilment of the obligations is still possible. Not performing is not performing!
Therefore, damage compensation is rewarded.
To avoid these rather drastic forms of liability, it is not unusual to negotiate a so called ‘force
majeure clause’ in the contract itself, so that both contracting parties may rescind the contract
when such event occurs, without the need to pay a damage compensation.
Also, it is quite normal to include a clause in the contract that determines the sum of money to be
paid in case of breach of contract beforehand. Damage compensation will be paid nevertheless,
even when the other contracting party did not suffer any real damages.
To conclude, also in common law systems, it is usual to send a formal notice to inform the other
party he is in breach of contract. In the common law family this is known as a ‘breach of contract
notice’ or a ‘notice of breach’.
9.1.3 Islamic law

In Islamic law, a breach of contract may only result in a financial compensation that equals the
price paid in exchange for the promised goods or services.
This means that:

1. Enforcing fulfilment of the contract as is possible under civil law systems is not an option.
2. Additional damages such as the loss of income, paid interest to finance goods, or image
damage are not compensated for.
9.1.4 The CISG

In the Convention on Contracts for the International Sale of Goods, a compromise was found
between especially the civil and common law approach: the disadvantaged party may choose
between demanding the specific performance or damage compensation.
However, choosing one of them explicitly does not prevent claiming the other.
9.1.5 Other Remedies

To encourage the performance of the other party, there are two more or less generally accepted
additional legal remedies: suspense of the performance, and the retention of title clause.
When it becomes obvious that the other party will not perform as agreed in the contract, the
disadvantaged party may choose to suspend his own performance.
A retention of title clause means that the ownership of supplied goods will transfer from the seller
to the buyer at the moment of payment instead of delivery.
9.2 Non-contractual liability

Not all liability stems from a breach of contract. Liability may also result from non-contractual
relations. Every day, people interact. Sometimes, this interaction results in damage. For instance,
someone is violent and injures someone else. Or someone fails to press the break of a car in time
and causes a traffic accident.
General idea: if someone causes damage to another, the causer of the damage is bound to pay for
it.
There are two types of non-contractual liability: fault-based liability and strict liability.
9.2.1 Fault-based liability

Two major starting points: a general approach and a specific approach.
General Approach
General features that can be distinguished:
 One needs to violate a rule or right;
 One needs to be culpable for this violation;
 There must be damage;
 There must be a causal link between the violation of the rule or right and this damage.
Culpability: Violating a right or rule in itself is not enough for being liable under fault- based
liability. One also needs to be blamed for this. The legal word for this is culpability.
Culpability is assessed using an objective test. The question is raised whether a reasonable person
could foresee the risk he took by violating the rule or right, and what this person could reasonably
do to avoid the violation to happen.
The only exception to applying an objective test in German law is when the violator would be a
minor or mentally ill. In such cases, the German law applies a subjective test, and the question is
raised whether the minor could foresee the consequences of her actions.
A violator of a rule or right is not culpable when he can invoke an excusing circumstance. Both the
French and German legal systems excuse such as self-defence, the defence of the interest of
others, or an emergency situation.
Damage: The mere violation of a rule or right for which someone is to blame will not lead to any
liability. After all, for claiming damages, we need actual damage that can be claimed.
When someone holds someone else’s smartphone and accidently drops it, but the smartphone
remains entirely intact, there is no way this could lead to any damage compensation.
In France, damage compensation is awarded if:

 There should be actual damage.
 The damage should be suffered in a legitimate context. This means that damage resulting from
illegal interest cannot be compensated.
 The damage should be very certain. This is obviously the case when something is damaged, or
when there is physical injury.
 The damage must be suffered personally. One cannot demand damage compensation for the
damage inflicted on someone else. However, the suffering of someone else may also cause
damage to others: when someone is killed, the relatives may demand compensation damage
since they suffer from their grief.
In Germany, the Civil Code is much more explicit in what kind of damages may be compensated.
he general rule is that: “A person who is liable in damages must restore the position that would
exist if the circumstance obliging him to pay damages had not occurred.”
In essence, the violator of the rule or right should pay for all costs that are involved with restoring
the situation to before the violation occurred.
Additionally, when restoration seems to be inadequate to compensate for the damage, additional
damage compensation may be awarded. This does not include non-financial damage.
Causality: Last but not least, the damage must be a result of the violation of the rule or right.
Imagine someone damages your car, and you are so angry that you throw your smartphone
through the room. In that case, we have to conclude that there hardly is any causality between the
violation to property by damaging your car, and the damage to the smartphone.
The Specific Approach

In the common law systems, the starting point of non-contractual liability is not centrally
organized but is built around precedents in case law that deals with specific types of liability.
Tort System: the complaints of people who wanted to sue one another were submitted using
standardized types of ‘torts’ that would reflect the particular nature of the complaint.
A distinction can be drawn between intentional and unintentional torts.
In intentional torts, someone intentionally injures someone or damages property. There is usually
a very direct link between the intentional action and the damage done.
In Canada here are at least four main types of intentional torts: trespass to the person, trespass to
land, nuisance and defamation. Only recently, in some states, a new tort is added: the invasion of
privacy.
Trespass to the person is the interference with a person’s body or freedom.

Trespass to land is the entering of someone’s land without permission of the owner.
Nuisance is the use of property in such a way that it substantially interferes with the use of
someone else’s property.
Defamation is the inflicting of harm on someone’s reputation by spreading false statements.
In unintentional torts, someone is negligent, and as a result is to blame for the damage done. It is
generally accepted that this tort consists of three elements:
 there is a duty of care;
 this duty is breached;
 the breach results in damages.
In unintentional torts, someone is negligent, and as a result is to blame for the damage done.
Therefore, unintentional tort is usually referred to as the tort of negligence. It is generally
accepted that this tort consists of three elements:
 there is a duty of care;
 this duty is breached;
 the breach results in damages.
For each type of tort, the courts have developed defences that may be invoked by the committer
of the tort in his defence. An example in defence of negligence is when the victim was also
negligent, and the damage would have been avoided if the victim would fulfil his own duty of care.
The most notable types of damage compensation are compensatory damages, nominal damages
and punitive damages.
Compensatory damages are the damages awarded to compensate for the actual loss that results
from the tort.
Nominal damage is damage that is awarded while there is no actual damage. However, the mere
fact that someone committed a tort is in itself a ground for a (small) damage compensation.
Punitive damage is a sum of money awarded to the victim of the tort with the sole purpose to
punish the violator, and deter her/him from doing it once more.
9.2.2 Strict liability

It is not always very practical or desirable to require evidence of the fact that someone is ‘to
blame’ for caused damage.When a manufacturer produces a defective product that causes injuries
to some of their consumers, it is very hard to figure out which employee or which manager in
what stage of the production process made a mistake and is therefore to blame for the damage.
The European Product Liability Directive
The core idea is stipulated in Article 1, that reads: ‘The producer shall be liable for damage caused
by a defect in his product.’
A couple of questions need to be answered:

 What is a product?
 Who is producer?
 When is a product defect?
 For what damage can the producer be held liable?
Products covered by this directive are all movables, with the exception of agricultural products
and game. So, this means that immovable property and agricultural products are not covered by
this directive.
Producer: the manufacturer of an end product. However, also the producer of the raw materials
or component parts may be held liable when the defect is caused by their creation.
Any retailer that puts his name on the product is considered to be as liable as a producer.
A product is defective when it does not provide the safety which a person is entitled to expect,
taking all circumstances into account, including:
 the presentation of the product;

 the use to which it could reasonably be expected that the product would be put;
 the time when the product was put into circulation.
A product shall not be considered defective for the sole reason that a better product is
subsequently put into circulation.’
Presentation: the presentation of the product is essentially what the manufacturer communicates
on the package, information leaflet or manual. The consumer is then informed about the
(im)possibilities of the product and cannot use this against the manufacturer in a later stage.
Reasonable usage: the term reasonable is quite a subjective concept. In practice, the European
courts will consider whether the average, reasonable thinking person would consider a certain
usage of the product as normal. On the one hand, a manufacturer should produce products that
meet reasonable expectations.
Age of product: The third criterion is the time in which a product was put into circulation. One
may simply have higher expectations of a brand-new car, than a second-hand car that is twenty
years old.
Legal remedies manufacturer: Article 7 provides for some legal remedies for the manufacturers. If
the manufacturer can invoke one of the provisions laid down in this Article, he is not liable for the
defective product. For instance:
 Manufacturers are excused from product liability when they can prove that they did not put the
defective in circulation.
 Another remedy is when the manufacturer can prove that the defect that caused the damage
did not exist at the moment the product was put into circulation.
 Another important remedy is the situation in which the state of scientific and technical
knowledge at the time when the product was put into circulation was not such as to enable
the existence of the defect to be discovered. In other words: if even the smart brains of
mankind did not know something was damaging, then a manufacturer cannot be held liable for
that.
Burden of proof consumer: the consumer suffering damage from a defective product needs to
prove three things, as is stipulated in Article 8: the damage, the defect and the causal relationship
between defect and damage.
Damage compensation: When it is proven that the manufacturer is liable for a defective product,
one needs to establish the scope of this liability. In general, Article 16 stipulates that the EU
member states may adopt a maximum liability of damage compensation of a defective product,
but that maximum may not be lower than 70 million euros. Article 9 specifies what kind of damage
should be compensated by the manufacturer.
Result damage is the damaged to other products intended for private usage, caused by a defective
product.
This means that other products than the defective product are damaged as a result of the defect,
and these products are also in the sphere of normal consumer usage.
In the U.S.A. there are three major approaches in product liability: the negligence theory, the strict
liability theory, and the breach of warranty theory.
The negligence theory is the oldest approach in product liability, and should be classified of a form
of fault based liability. In short, the theory implies that a victim of a defective product has to prove
that the manufacturer breached a duty of care towards the consumer. In essence, it means that
when a manufacturer could reasonably foresee that the product would lead to damages suffered
by the consumer, the manufacturer is liable.
The strict liability theory leaves out the culpability part that can still be found in the negligence
theory: it is not relevant whether or not a manufacturer could reasonably foresee that a product
would be defective as a result of breaching a duty of care towards the consumer. Instead, the
courts will use two types of tests to figure out whether or not a product is defective.
Lastly, there is the breach of warranty theory. In short, this means that a product should be able
to do as is specified by the manufacturer. In practice, this means that whatever the manufacturer
communicates regarding the product, or what can be reasonably deduced from this falls within
the scope of this theory.
CH.10 LABOUR LAW

10.1 The Industrial Revolution and the Emergence of Labour Law
Labour Law is inextricably linked to the industrial revolution, which started around 1760 in
England, and initially spread throughout Western Europe, North America and Australia.
Before this, the concept of being employed by someone else was always in the contexts of slavery
or apprenticeship, with a master/servant relation.
The industrial revolution changed societies significantly. Both in a positive and negative way.
In a positive way, it was now easier to produce products on a large scale and offer them for a
lower price. In that sense, the industrial revolution led to an increase in creativity, ideas and
scientific progress
On the negative side:
 The working class moved from the countryside to the greater cities. This is called
urbanization. The problem was however that the cities could not house all these
inhabitants, and therefore ‘slums’ were built at the borders of these cities, where people
lived in poor conditions.
 People lost their jobs since machines took over manpower. This led to an increasing
income gap between the company owners and the working class.
 Increasing damage to the environment. For the first time in history, mankind was
confronted with the boundaries of mass production, including the effects of using fossil
fuels and pollution.
In this period, monarchs started to lose power. This resulted in an increasing power of the working
class, which started having a huge say in law making.
Elsewhere in the world, countries industrialized considerably later, though also here, there seems
to be a link between industrialization and the creation of labour laws.
The Asian industrialized countries mostly share a colonial past, in which concepts of law were
already exported from Europe. Furthermore, the ongoing trend of globalization played a
significant role in the debate on labour law in Asia. It has been recognized in fact that in labour
standards in Asia are way lower than in Western societies.
In Islamic countries, the context is different: also here, industrialization is a trigger to adopt labour
laws, and these laws are usually inspired by European concepts for various reasons. However, in
Islamic countries lawmakers attempt to unite principles of Islam, which are God given, with
codified labour standards founded on a European model, which are secular.
10.2 International Labour Law

Since the emerge of international institutions after the Second Wold War, also on an international
level, labour standards were adopted by organizations such as the United Nations and the
affiliating International Labour Organization.
The International Covenant on Economic, Social and Cultural Rights (IVCESCR) was adopted in
1966, which recognizes many rights for workers. On top of that, a specialized agency was installed,
with the aim to protect and promote labour rights in the world: The International Labour
Organization (ILO). This organization has drafted many thematic conventions to improve the
recognition of employees’ rights that may also serve as a source for inspiration for domestic labour
laws.
The European Social Charter is a European treaty in which economic, social and cultural human
rights are recognized. he Charter recognizes a series of rights: the right to safe and healthy
working conditions (Art. 3), the right to a fair remuneration and a decent living standard (Art. 4),
the right to organize (Art. 5), and the right to collective bargaining and to strike (Art. 6), the right
to social security (Art. 12) and the right to benefit from social welfare services (Art. 14).
On a national level, it is up to the courts to enforce such rights. However, this is not always easy,
and pretty much depending on the kind of monism or dualism that exists in the Member State
10.3 Proper labour conditions

In different areas law can be adopted to protect employees against their employers. These areas
are most notably rules on the nature of a labour contract, the duration of a contract, minimum
wage, labour conditions, non-discrimination, the right to organize and collective bargaining, and
social security.
10.3.1 The nature of labour contracts

Mostly, on top of normal contract law, being an employee gives access to certain rights and
guarantees. Examples could be paid maternity leave, pension rights, sick leave, the right to benefit
from social benefits, or paid holidays. Lastly, being employed by someone usually results in a
certain stability regarding someone’s income, securing the livelihood of the employee.
A company or employer may also hire self-employed people. What they have in common is that
they are mostly hired for a particular task or short period as an external employee, and when this
task or period is completed they leave the organization.
There are some shades of grey between employee on the one hand, and self-employed on the
other.
Employee: In German case law, an employee is defined as someone who is obliged to work for an
employer based on a private contract, and the relationship with the employer is of personal
subordination. This suggests that the employee is an integrated person in the organization of the
employer, and the employer stands hierarchically above the employee.
Employee-like person: the worker is free to determine his own work within the organization.
There is no hierarchy between this worker and the employer. On the other hand, the employee-
like person is to a certain extend economically depending on the employer, since she/he works
for 50 per cent or more for the same organization. The employee-like person is not as protected
as the employee.
Executive staff member: they might work in employment comparable to an employee but have a
managerial function. Due to this, they practically act as an employer. As a result, the protection
for employees only partly applies to executive staff members.
Self-employed person: A self-employed person is not in a hierarchical relation with an employer,

and free to organize his activities as they see fit. They usually work for an organization only to
complete a specific task. They are therefore not economically depending on one employer only.
There is hardly any protection for the self-employed under German labour law.
Contracts of service: In the common law legal family, an employment contract is often referred to
as a contract of service.
Contract for service: a labour contract with a self-employed is named a contract for service.
Control test: The test establishes whether or not there is a hierarchical relation between the
employer and the worker. This is a useful test in jobs where it is clear that a ‘superior’ gives
direction to his personnel on a daily basis, but less useful in professions where employees enjoy a
great deal of freedom in determining their daily activities.
Integration test: the courts will assess to what extent the worker forms an integral part of the
organization of the employer. This test is rather useful in case of a worker who enjoys a great deal
of freedom in his daily work but seems to work rather permanently for the organization. However,
this test is less useful in the context of sub-contractors.
Economic reality test: In applying this test, the courts assess who bears the financial risks in
performing the job: the organization or the worker. In practice, the application of the test might
include elements of the control test and/or the integration test.
10.3.2 Duration of the contract

One possible way to protect or guarantee a permanent income for employees is to manage the
expectations regarding the duration of an employment contract.
Most legal systems balance between two extremes. On the one hand, there is the employment-
at-will doctrine, meaning that an employee can be fired or can quite the job at any time for any
reason.
On the other hand, there is the assumption that when an employee is in the employment of an
employer, this job is a lifelong position.
10.3.3 Minimum wage

The idea is that an employee should be entitled to a certain life standard that a minimum wage
should at least guarantee. This entitlement is then established by law, and it is not possible to
deviate from this minimum standard by a collective or individual agreement.
The matter of a minimum wage has always been a delicate issue in politics, and it has advantages
and disadvantages:
Arguments in support:
 Since companies try to produce for the lowest possible cost in a ‘race to the bottom’, they
cut in the costs of wages, which go down unrestrictedly, due to the fact that there is plenty
of labour force, and fewer jobs as a result of the fact that machines replace manpower.
 When one would enforce a minimum wage, the working class will most likely spend more
money, the economy will improve, and even more jobs will be created.
 Due to the creation of more jobs, the government will have to spend less on social security
systems, which encourages the economy in itself.
 People with a guaranteed minimum income will lead to innovation so jobs that are not
worth paying the minimum wage will disappear and replaced by more efficient or clever
processes.
Arguments against:
 Employers are forced to hire personnel for an amount that may exceed their market value.
IN other words: an employee earns more than supply and demand would dictate. This is
costly for firms.
 Consequences of the above include economic obstruction, the loss of employment, and as
a result, more people who depend on social benefits.
 At some point, the consumer price will go up, since the company is bound to pay a higher
price for production costs compared to a situation without the minimum wage. When
consumer prices go up unnecessarily, sales will drop, and the economy is yet again
obstructed.
It is important to note that the implementation of a successful minimum wage highly depends on
how strictly it is enforced. Furthermore, a minimum wage is not synonymous of developed
countries, some of the wealthiest countries in the world, in fact, do not set minimum wages
(Norway, Sweden, Finland, Denmark, Iceland).
10.3.4 Labour conditions

The concept ‘proper conditions’ is rather differently understood around the world, and
furthermore may be different per sector.
10.3.5 Non-discrimination
It is the core principle of most UN human right treaties, as well as ILO conventions. Furthermore,
most constitutional law stipulates the prohibition to discriminate.
Discrimination is the unequal treatment in similar cases based on irrelevant factor.
According to the ILO, discrimination based on race, colour, sex, religion, political opinion, national
extraction or social origin are such irrelevant variables. Furthermore, it is observed by the ILO that
increasingly, age, sexual orientation, HIV/AIDS status and disability, are protected under anti-
discrimination laws.
There are three types of discrimination: direct, indirect and positive discrimination.
Direct discrimination is to explicitly disadvantage someone based on an irrelevant factor.
An example of this can be found the Wal-Mart policy regarding spousal health insurance coverage.
Until 2014, this coverage was not accessible for same-sex couples, also when married.
Indirect discrimination is when a non-discriminatory standard or practice disadvantages someone

based on an irrelevant factor.
For example: there’s a clause in your contract which says you may have to travel around the UK at
short notice. It’s difficult for you to do this because you’re a woman with young children. This
clause therefore places you at a particular disadvantage. It also places women generally at a
disadvantage, as they’re more likely to be the carers of children.
Positive discrimination is to explicitly advantage someone who is disadvantaged based on

irrelevant factors. This can have a positive impact if implemented in the right way.
An example of this can be setting quotas to guarantee a minimum number of women in firms,
congresses and public institutions.
10.3.6 The right to organize and collective bargaining

To offer some counterweight to the power position of employers, the right of employees to use
their collective strength is recognized in most industrialized countries. This includes the right to
form Trade Unions, the right to collective bargaining, and the right to jointly strike.
10.3.7 Social security standards

Due to various reasons, an employee may not be able to make a living for himself and his family
anymore. Causes could be sickness, disability, old age, maternity, the death of a family member, or
simply losing a job.
States usually regulate a system of social benefits to create a safety net for those individuals. Such
a system of social benefits is then designed to secure that an employee is unable to provide for
their and their family’s basic needs.
CH. 11 COMPANY LAW

11.1 The legal form of a company
Here is a difference between unincorporated and incorporated companies. In the first case, the
company is composed of natural persons, while in case of the latter case the company has a
separate legal identity.
An unincorporated company is composed of natural persons and has no separate legal identity.
These natural persons are the company. This also explains why in most legal systems the liability
of these natural persons is unlimited. After all, when that which you are goes bankrupt, you go
bankrupt.
An incorporated company is composed of shares owned by natural or legal persons but has its
own legal identity.
People or other companies may own an incorporated company by obtaining shares. However, the
owned company has a legal identity of its own. This explains why in most legal systems the liability
of the owners is limited. When that which you own goes bankrupt, you only lose that which you
own, but nothing more.
11.1.1 Unincorporated Companies

The company is no separate legal entity. Instead, the owners are the company. As a result of that
they are personally liable for any company debt.
Personal liability means that the individuals of which the company is composed are unrestrictedly
liable for any company debts.
The simplest form of an unincorporated company is that of a sole proprietorship, also known as a
sole trader.
A sole proprietorship is a legal form of an unincorporated business that is composed of one

individual who is personally liable for the company’s debts.
The added value of this type of business is that there are hardly any formalities involved, and it is
therefore quite easy to set up the business. Furthermore, in terms of taxation, there is no
separate tax obligation on behalf of the business.
Employees: A sole proprietorship may hire employees. In practice, the number of employees will
be limited, since it will mostly be more convenient to choose another legal form for the company
when the business grows
Husband and Wife sole-proprietorship: Technically, husband and wife can choose to be a
qualified joint venture. The consequence is that the International Revenue Service (the Federal tax
agency) will not consider the couple as a partnership, but as two sole traders.
A partnership is a legal form of an unincorporated business that is composed of more than one
individual who are personally liable for the company’s debts.
General partnership: This legal form is used for medium and small companies in which the
partners play a very active role in the organization of the company.
All partners are authorized to manage the company and represent the company externally. In a
partnership contract however, this authority can be limited to some of the partners, and the scope
of their authority may be specified.
This partnership contract mainly governs the relation between the partners. External parties are
not bothered too much by its content. When one of the partners exceeds its competency and this
cannot reasonably be known by the third party, the legal consequences will be borne by all the
partners.
Limited partnership: the same rules apply as in a general partnership. However, next to the
normal partners, there may be partners with limited liability. These partners are not involved in
the management of the business, but merely contribute financially.
11.1.2 Incorporated Companies

Five main features:
 A company is a legal personality, and has therefore the same rights and duties as a natural
person.
 There is limited liability. This means that the shareholders may at the most lose their
investment in the company in case of bankruptcy, nothing more. This also means that the
board of directors in principle is not liable on behalf of the company. This is the reason why an
incorporated company is also referred to as a limited company.
 There are transferable shares: shareholders may sell their share in the company to someone
else. This can be in a private transfer, or through stock exchange.
 There is a centralized board of directors, who govern the company on behalf of the
shareholders.
 The ownership of the company is shared amongst the shareholders, in proportion to the value
of the share.
Management board: A limited company has its own managing board that operates separately
from their shareholders. This is mainly the legal structure, in which there is a group of
shareholders that appoint a board of directors.
The financing of the company is done through shareholders. One may limit the financing to
internal shareholders (in case of the private limited company) or raise many through public
financing (a public limited company).
The essential feature of a private limited company is that the shares are privately owned by a
particular group of shareholders. This means that shares are not funded by public means, but by
private means. In contrast, a public limited company is financed by public means. Actually, it is a
legal form of ‘crowdfunding’ in which anyone who would be interested may buy a share of the
company and consequentially become a shareholder.
A private limited company is in some legal systems also referred to as a limited liability company.
Yuhan Hoesa: a hybrid company form that finds middle ground between a partnership and a
limited company. This legal form has the characteristics of a partnership, but the partners are
limitedly liable, as in a limited company.
A public limited company is the legal form used for bigger companies which are financed through
public means. The shareholders of such a company could be anyone, or any organization.
11.1.3 Special legal forms

Foundation: A foundation is usually composed of predominantly financial means that are to be
used for a defined (social) purpose. These means usually result from gifts and donations and are
controlled by the foundation. The foundation as such does not have any shareholders, as in a
limited company, but is most certainly a separate legal personality.
The economic power of foundations should not be underestimated. It is not unusual that banks or
multinationals invest significantly in a foundation as a part of their corporate social responsibility
programme. Next to that, massive donations by private individuals to tackle a certain problem or
find a cure for a disease results in huge organizations, in size and management comparable to a
multinational company.
Company limited by guarantee: A variation to a limited company. In essence, the shareholders do

not necessarily invest in the company in the form of stocks, but instead promise to be liable for a
certain amount of money in case of bankruptcy. This company form is mostly used for companies
outside the trading profession and are more likely to be used in case of non-profit organizations.
Societas Europaea: The main idea is that companies in different legal systems can run their affairs
under the wings of one single European company form.
 The SE can be installed in four situations: An existing public limited company with subsidiary
establishment in another Member State of the European Union.
 Two or more existing limited companies who want to merge into one legal entity: the SE.
 Two or more public limited companies in different Member States of the European Union who
wish to enter in a joint venture. The joint venture is then registered as a SE.
 Two or more limited companies who establish a holding company for their national companies
in the form of an SE.
Joint venture: Sometimes, two or more businesses want to join the forces for a particular project.
Usually, a joint venture is a temporary cooperation between companies to share a certain
expertise or resources in the expectation of joint profit
Concerns: A shareholder is not necessarily a natural person, but could also be another company, a
bank, the state or an investment fund. As a result, companies can own companies, especially in
the case of public limited companies.
11. 2 Regulatory competition

Legal systems have different grades of flexibility in company law. In case of the larger public
limited companies it may make a difference in which country the company is registered.
Also regarding taxation, there might be regulatory competition. It is no secret that the Netherlands
is a tax haven for many multinationals. This attracts a lot of companies who are registered in the
Netherlands, but do not necessarily employ business activities in that country. Such companies are
also called ‘mailbox companies’.
11.3 Foreign companies

When someone wants to run a business in another country, the entrepreneur will not always have
the luxury to choose between all the legal forms of a company. In general, therefore, it will not be
surprising that foreign entrepreneurs will mostly use an incorporated form to run a business
abroad.
Another issue arises when an existing company wants to do business in another country. Usually,
legal systems also regulate how foreign businesses may conduct economic activities in their
country.
CH. 12 THE RIGHT TO PRIVACY AND DATA PROCESSING

12.1 Privacy: a clash of rights
The idea that someone should have the right to live in privacy is internationally recognized in the
International Covenant on Civil and Political Rights, Art. 17:
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family,
home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.
Although, people cannot live in full privacy, exceptions are necessary in order to realize other
rights.
To what extent the government may interfere with somebody’s right to privacy to protect public
security, morality, or health? When the police brakes into a criminal’s house to arrest him/her,
the criminal’s right to have privacy is sacrificed for the public’s safety.
It becomes a bit more complicated when a government as a precaution tracks everyone’s internet
behaviour, including emails, in order to track potential terrorists.
In the private sphere, other issues play a role. To what extent for instance may the sexual
preference play a role in hiring new employees? When the employer finds homosexuality
offensive, is it then his good right to use sexual preference as a selection criterion? Or is the right
of free speech more important?
In the context of private law, consumer data is a difficult issue. On the one hand, companies would
like to know as much as possible about their potential customers in order to offer them the most
suitable products for the best price. On the other hand, this may lead to practices that data is
gathered about consumers while they do not always know exactly who is processing that data, and
what will be done with that data.
Freedom of speech: the right to freedom of speech includes publishing information about
another party without their necessary consent, this also includes freedom of the press. This may
however result in a violation of someone else’s right to privacy.
There are obvious cases in which it is generally accepted that the right to privacy should prevail
over the right to freedom of speech. For example the right to privacy of a celebrity prevails on the
right to free speech of a paparazzi that wants to publish nude pictures of him/her.
The situation is more delicate when the police decides to publish a video of suspected criminals,
and social media users are able to track and trace those suspects, publicly naming and shaming
them. Especially when the data of one of the subjects appears to be incorrect and leads to an
innocent man.
All in all it will be clear that privacy laws are amongst the most delicate ones because they
regulate a very important fundamental right and may result in a violation of other very
important rights when applied too drastically.
12.2 Privacy laws around the world

1. The USA
the U.S. presents one of the strongest constitutional protection of individual privacy rights
against the government.
Tort law protects citizens against direct and obvious violations of privacy.
The processing of personal data by companies in order to get more insight in how to approach
their customers falls usually outside the scope of the torts. This is dealt with by federal and state
Statues, which are specific to each particular state.
The U.S. Constitution

First Amendment for the Freedom of Speech: The U.S. Constitution contains no general
recognition of the right to privacy. This is in strong contrast with one of the ‘competing’ human
rights: the right to freedom of speech: This right is firmly embedded in the First Amendment to
the Constitution.
Several attempts by the federal legislature to restrict or ban explicit adult material in the sphere of
child porn and restrict the access of minors to explicit materials were declared unconstitutional by
the Supreme Court (lol). The reason for this was that they were too broadly formulated, and
therefore potentially have a broader coverage than strictly necessary to protect the wellbeing and
privacy of children. This could result in restricting freedom
While such a case might seem bizarre in the eyes of someone who is more interested in morality
than in adult movies, the example should be understood in a more principal context: the idea that
people should be able to express what they want is highly valued, even when it may offend
people, as long as it is not against the law.
Fourth Amendment for Privacy: ‘The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable* searches and seizures, shall not be violated, and no
warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.’
When a citizen has a reasonable expectation to be private, a government may not in principle
interfere with this privacy, unless it is authorized by special means such as a search warrant in
case of suspicion of criminal activities.
* The word ‘reasonableness’ is a rather flexible concept and may be understood differently.
Because of this, subjective and objective tests are used.
The subjective test establishes whether the individual involved feels that his privacy is violated.
The objective test reviews this against what society in general would think about that.
Amongst others, the Supreme Court recognized the following locations as private areas:
 someone’s home, or temporary place of residing, such as a hotel room;

 a business office;
 designated areas in public places which are intended to offer privacy, such as a restroom;
 someone’s property, such as a trunk, a briefcase, or someone’s luggage;
 the content of correspondence, the content of someone’s smartphone, and to a certain
extent a car.
The Fourteenth Amendment for Liberty: the Fourteenth Amendment recognized the right to
liberty, which encompasses privacy aspects in the sphere of family life and self-determination. For
instance, the Court has declared some state laws unconstitutional: ones that violated the right to
choose the type of school you prefer, the free choice to use contraception or not, the right to
terminate medical treatment, and the right to express your sexual preference.
Federal laws
Federal laws regulate both public and private law aspects of privacy but always in separate acts.
As opposed to the constitution which only regulates public aspects.
The General Privacy Act (1974) requires government employees to only collect the private data of
citizens when it is proportionate to its legitimate goal. This means amongst others that the
government should obtain the data preferably directly from citizens and only use the information
that is absolutely necessary.
Furthermore, there are specialized laws on various topics, such as the Driver’s Privacy Protection
Act, protecting personal data of motor vehicle records stored by state authorities, and the Family
Educational Right and Privacy Act, protecting the data of students in educational records.
The privacy of internet behavior

In the context of ICT and data protection, there are federal laws around three main topics: the
privacy of communication, the privacy of financial information, and the privacy of medical records
In general, it is recognized that the content of email correspondence is a private affair and is
protected by the Fourth Amendment. However, this is not always the case when email addresses
are used for public affairs (working for the government) or in the employment of an employer. In
both cases it is quite common for the government or a private employer to notify the employee
through terms of use that their internet behavior may be monitored. In such a case, the employee
has no reasonable expectation of privacy regarding the contents of his email correspondence
However, in case of suspected terrorism, the possibilities to gather digital information – including
the content of digital communication – are much broader as a result of the so-called Patriot Act
(2001).
In the Electronic Communications Privacy Act, a prohibition to install pen registers or trap and
trace devises without a courts permit is included. However, Internet Service Providers are
excepted from this prohibition when tracing internet traffic is necessary to protect the provider or
users of the provider from unlawful or abusive use of the service provider.
Tort law and the right to privacy

Tort law is used to enforce the right to privacy. Four types of invasion of privacy can be found in
the U.S. case law: intrusion on seclusion, appropriation, public disclosure and false light.
Intrusion on seclusion applies when someone intentionally intrudes the privacy of someone else.
Four main elements should be considered:
1. The intrusion must be unauthorized.

2. A reasonable person should find the intrusion objectionable.
3. The intrusion should concern a private matter.
4. The intrusion results in some form of suffering.
Appropriation applies when someone uses someone else’s name or likeliness without permission
for commercial purposes.
The tort of appropriation protects such celebrities or well-known figures against the commercial
exploitation of their name or image against their will, or the will of their trademark holders.
Public disclosure applies when someone publicly discloses private fact of someone else.
A claim based on the tort of public disclosure is composed of the following elements:
1. The information that is disclosed should be publicly disclosed.

2. The information should be private.
3. The information should be offensive to a reasonable person.
4. The information should not be newsworthy.
Defamation is the inflicting of harm on someone’s reputation by spreading false statements.

2. The EU
Processing personal data
Regulation 2016/679 regulates the privacy protection of individuals in private legal relations,
where Directive 2016/680 regulates this protection in public legal relations. Only personal data is
protected.
Personal data: any information relating to an identified or identifiable natural person. This means
that the data involved leads directly or indirectly to the identification of an individual.
Direct identification it is not that complex: usually the name of an individual is then involved, and
we know who the data subject is.
In case of indirect identification, the data involved does not explicitly identify the data subject.
However, the data will ultimately lead to the identification of a person. The combination of data
can only lead to one individual.
Processing: The Regulation only applies if one uses that data in some way. In the terminology of
the Regulation, this is called ‘processing’.
As long as there is only access to data, the Regulation does not apply. Only when something is
done with that data, the Regulation should be taken into consideration.
Controller: The controller is the one who determines the purposes and means of the processing of
personal data.
Processor: The processor is the one (natural or legal person) who actually processes the personal
data on behalf of the controller.
Recipient: A recipient is the one (natural or legal person) to whom the personal data is disclosed.
Principles
In general, data procession should at all times be in compliance with several basic principles:
1. Lawfulness, fairness and transparency means firstly that data procession should at all time
be in compliance with European and domestic legislation. Secondly, it means that a data
subject should be made aware of the data processing and understand what will happen
with the personal data.
2. Purpose limitation means firstly that data is collected for specified, explicit and legitimate
purposes. Secondly, data should not be further processed in a manner that is incompatible
with this legitimate purpose.
3. Data minimization implies that the processed data should be adequate, relevant and
limited to what is necessary in relation to the purposes for which they are processed.
4. Accuracy means that personal data which is processed should be accurate and, where
necessary, kept up to date.
5. Storage limitation means that the data must be kept in a form which permits identification
of data subjects for no longer than is necessary for the purposes for which the personal
data are processed.
6. Integrity and confidentiality means that personal data must be processed in a manner that
ensures appropriate security of the personal data. The more sensitive the personal data is
to the data subject, the more safety measures are expected.
7. Accountability basically means that at any time, the controller is responsible for the data
processing, and liable for any violations of privacy laws.
Justification
Next to acting in compliance with the principles discussed above, each and every data processing
should be justifiable. This means that the controller should be able to justify the data processing
invoking one of the justification grounds as stipulated in Article 6. In essence,
‘ the data subject has given consent to the processing of his or her personal data for one or more
specific purposes.’
Consent should be given actively by the data subject, and not passively. Therefore, on EU
websites, the user will always have to ‘tick the box’ when agreeing to a privacy policy or general
terms. The opposite, in which consent is assumed to be given when a consumer visits a website or
makes use of a service, is called a ‘browse-wrap agreement’(like Amazon). In the EU such an
agreement, when it leads to the procession of personal data, is illegal.
‘processing is necessary for the performance of a contract to which the data subject is party or in
order to take steps at the request of the data subject prior to entering into a contract.’
‘Processing is necessary for compliance with a legal obligation to which the controller is subject.’
‘Processing is necessary in order to protect the vital interests of the data subject or of another
natural person.’
‘Processing is necessary for the performance of a task carried out in the public interest or in the
exercise of official authority vested in the controller.’
‘Processing is necessary for the purposes of the legitimate interests pursued by the controller or by
a third party, except where such interests are overridden by the interests or fundamental rights
and freedoms of the data subject which require protection of personal data, in particular where
the data subject is a child.’
Special data types

Regulation 2016/679 specifies particular types of data that may not be processed at all, except in
occasional circumstances. These data are data revealing racial or ethnic origin, political opinions,
religious or philosophical beliefs, or trade union membership, and the processing of genetic data,
biometric data for the purpose of uniquely identifying a natural person, data concerning health or
data concerning a natural person’s sex life or sexual orientation.
Data subject rights

The data subject has various rights towards the data controller. These rights are listed in Articles
16-21 of Regulation 2016/679. These rights include:
 The right to ratification of inaccurate data (Art. 16);
 The right to erasure of data when there is no legal ground for the processing (Art. 17, the so
called ‘right to be forgotten’);
 The right to restrict data processing when data processing seems inaccurate, disproportionate
or unlawful (Art. 18);
 The right to receive the data which is processed by the controller (Art. 20);
 The right to object to the processing of data (Art. 21).
Jurisdiction challenges
While a state may regulate the procession of data within its territory, it is harder to create
enforceable rules for data processor operating from outside its borders.
According to Russian privacy law for instance, any organization, company or individual that stores
personal data of Russian Federation citizens must do so on Russian territory. This means that
when the data is in a physical form, it must be stored in Russia, and when it is in a digital form, it
must be stored on a Russian internet service provider.
Another option is to make an agreement between countries in which privacy principles are
harmonized. A famous example is the so-called ‘safe harbour principles’. These principles would
enable U.S. companies to process personal data of EU citizens in line with EU privacy laws
CH. 13 Intellectual Property

13.1 The Forms of Intellectual Property
When someone has a great idea and wants to exploit this idea economically, they want to prevent
others from making use of this great idea. In law, this protection of creative work is done by
intellectual property.
Intellectual property is the exclusive ownership of a creative work.
This kind of ownership can also be sold or licensed so that others may also use the idea for their
benefit. Not only natural persons but also companies can own intellectual property.
For different kinds of creative works, there are different kinds of intellectual property.
A distinction is made between copyrights, which are not necessarily intended for industrial usage
and, on the other hand industrial property, which is intended for industrial usage.
Copyrights are going to be discussed in this chapter.

Copyrights and related rights

The oldest form of intellectual property is copyright.
The Berne Convention is the most important agreement that generally regulates copyright law
around the world. With 171 members, this agreement has a wide reach.
This convention defines the works that may be copyrighted as ‘literary and artistic works’. This
includes books, pamphlets and other writings, monologues, dramatic works, choreographies,
music, films, drawings, photographic works ecc..
The owner of a copyright is in principle the author. This can be a natural person or a legal person.
When more than one author created the work, the ownership is usually shared. In general, the
ownership of copyright can be split into two different rights: moral rights and economic rights.
Moral rights are usually considered to be independent from the economic rights, and imply that
the author of work has the right to be recognized as the author of the work, and has the right to
object toany unwanted modification of the work.
Article 6 of the Berne Convention refers to the first as the right of paternity, while the latter is
called the right of integrity. These rights cannot be sold and are therefore intangible.
It is the creative achievement that counts, and not the physical creation of the work. It is the
architect who holds the copyright of the design of a building, and not the construction workers
who physically built the building.
There are rights that may be exploited in order to gain profit from the literary or artistic work. The
idea is that these rights are transferrable. For instance, the authorof a book will transfer the rights
to reproduce and distribute to a publisher, since the average writer will not have a book press in
his backyard.
When someone holds the economic rights to an artistic or literary work, he holds the exclusive
rights to commercially exploit this work. Of course, this does not mean that this right is limited to
one person or company: such rights can be owned by more right holders.
There are however also limitations to copyright:
 Not all creative ideas fall under the scope of artistic and literary work. It is generally
accepted that one cannot own the copyright to facts and things that are generally known.
 The author is not in all circumstances protected against the usage of his work.
Duration: copyright is protected for a relatively long period. The TRIPS agreement recognizes a
term of 50 years after the first publication, where in the U.S. this period may be up to 120 years. In
Europe, copyright is protected as long as the author lives, and for another 70 years after his death.
Related rights
Two related rights are important to discuss in the context of copyrights: neighboring rights and
database protection.
Neighbouring rights are the rights to the fixation of a unique interpretation or context to existing
work.
With the term ‘fixation’ we basically mean that someone ‘performs’, ‘produces’, or ‘broadcasts’
existing work in a unique manner, and this manner is protected by neighbouring rights.
A database is a collection of independent works, data or other materials arranged in a systematic

or methodical way and individually accessible by electronic or other means. (Art. 1, Directive
96/9/EC, 1996)
The European Database Protection Directive furthermore stipulates that not any random
collection of data is subject to database protection. It should be data of which the owner should
have done a substantial investment in either the obtaining, verification or presentation of the
contents.
Patents, semi-conductors, industrial design and breeders’ rights

Patents
“European patents shall be granted for any inventions, in all fields of technology, provided that
they are new, involve an inventive step and are susceptible of industrial application.”
An inventionis therefore something industrial, which can be produced.
A discovery or a scientific theory or method are usually not patentable. One cannot patent
Pythagorean theorem but one can patent a device or product in which this theory is applied.
Furthermore, it is generally recognized that one cannot patent things that are contrary to public
morality. It is therefore very unlikely that one will be able to patent weapons of mass destruction.
Also, living things cannot be patented. The human body can never be patented, since that would
imply that human species are owned by someone else.
 The invention should be a novelty. This means that a similar invention is not filed yet.
 The invention should involve an inventive step. ‘An invention shall be considered as
involving an inventive step if, having regard to the state of the art, it is not obvious to a
person skilled in the art.’ This means that an expert in the field will not consider the
invention as an obvious solution to the problem.
 Last, an invention should be susceptible to industrial application. This simply means that
the invention ‘can be made or used in any kind of industry’
There is a different understanding of the concept of industrial applicability in the U.S. and Europe
when it concerns software. In the U.S. software is patentable, while in Europe, this is generally
considered not to be industrially applicable. The only way to patent software in Europe is when
the software is such an integrated part in an industrial application, that the application would not
be meaningful without the software.
Through treaties such as the Patent Cooperation Treaty and the European Patent Convention,
countries try to harmonize the content and the procedures of their patent laws. Some
characteristics are more or less shared.
1. The so-called ‘prior art search’. When one wishes to file a patent, the relevant patent
agency will conduct a research to the prior art that relates to the patent. The goal is to find
out if the invention is indeed a novelty, or perhaps already exists.
2. When a patent is properly filed, the owner has guaranteed a monopoly in the commercial
exploitation of that patent. This means that the owner may sue each and every company
or individual that violates this patent for any commercial usage.
3. A patent is not everlasting, but has a limited duration. As a result of the WTO TRIPS
agreement, in most legal systems the duration of a patent is now 20 years. After that, there
is no further legal protection of the invention.
The protection of semiconductors

The technology that relates to semiconductors or microchips is often highly advanced. Companies
invest heavily in the development of new chips that lead to better operational machines.
The problem however is that it is not always easy to protect such a chip under traditional patent
or copyright law. Especially the demand that something must be a novelty will sometimes be hard
to proof.
On an international level, Article 35 specifies that:
‘Members agree to provide protection to the layout-designs of integrated.’
Industrial design
In today’s industries, not only the application of an invention, but also the looks of a product need
to be protected
Article 25 of the TRIPS-agreement recognizes that:
‘Members shall provide for the protection of independently created industrial designs that are new
or original. Members may provide that designs are not new or original if they do not significantly
differ from known designs or combinations of known design features. Members may provide that
such protection shall not extend to designs dictated essentially by technical or functional
considerations.’
From this we can learn two things. First, this intellectual property protection is about industrial
design. Second, the design should be new or original. This means that the design may in practice
not lead to confusion amongst a reasonable consumer.
The TRIPS Agreement recognizes the duration of designers right for at least ten years. In practice,
most countries adopt a longer term. For instance, design patents in the U.S. may have a term of 15
years, while in the BENELUX, a maximum term of 25 years is recognized.
Breeders rights
As we have seen, plant species are usually exempted from patent protection, since one cannot
own nature. However, sometimes new plant species are created by breeders who experiment or
use particular techniques. Internationally breeder’s rights are recognized in the TRIPS Agreement
The International Convention for the Protection of New Varieties of Plants instead seeks to
harmonize the national legislation of its member states in this context. In the convention we can
read that one can file a breeder right only when the new plant species is new, distinct, uniform
and stable.
 A plant species is new when a similar plant has not been filed earlier.
 A plant species is original if ‘it is clearly distinguishable from any other variety whose
existence is a matter of common knowledge at the time of the filing of the application’
 A plant species is uniform when the new species has clear and distinguishable
characteristics
 A plant species is stable when the breeding process leads to similar results
While it differs around the world, the duration of breeders rights is usually between 20 and 30
years.
Trademark and company name

A company uses a company name to distinguish their company from other companies, and a
trademark to distinguish their product from other products.
Company name: First, most companies also file their company name as a trademark, to be sure it
is well protected. Second, usually the registration of a company name occurs when registering the
company in itself, usually at the involved Chamber of Commerce.Third, it is generally accepted
that a company name may not interfere with an existing trademark, and vise versa.
Trademark:
A trademark aims to distinguish a product or service from competing products and services.Article
15 of the TRIPS Agreement defines a trademark as:
In general, a trademark is something that is usually observable, and considering the examples
provided in the article, graphically displayable. Think about a brand name, a logo, or a sign that
people may recognize and therefore know that this particular product belongs to a certain
company.
Absolute grounds are reasons for a trademark agency to refuse the filing, and therefore,
apparently, the sign is not eligible for trademark protection.
Most of all, a trademark should have a distinctive character. This means that it should be able to
distinguish one product from another. Furthermore, a trademark may not constitute something
that is against the law, public order, or is immoral.
The Benelux Convention distinguishes four grades of protection:
1. The owner of a trademark is protected against the use of a sign that is identical to the
trademark for identical products.
2. The owner of a trademark is protected against the use of identical or similar signs for
products that are identical or similar.
3. The owner of a trademark is protected against the use of a sign that is identical or similar
for completely other products.
4. There is some sort of ‘etcetera’ category. When one trademark at some point causes
damage to another, the trademark of the latter might be violated where ‘where use of the
sign without due cause would take unfair advantage of or be detrimental to the distinctive
character or the repute of the trademark
13.2 Jurisdiction challenges

While legal regimes of Intellectual Property mostly do not cross borders, companies and
individuals who own Intellectual Property do. Therefore, some international attempts have been
made to make international recognition and filing of intellectual property possible.
The Berne Convention establishes a Union for its members in which the copyrights of its citizens
are respected. Article 6 of the Convention stipulates that:
‘Authors shall enjoy, in respect of works for which they are protected under this Convention, in
countries of the Union other than the country of origin, the rights which their respective laws do
now or may hereafter grant to their nationals, as well as the rights specially granted by this
Convention.’
This means that the author of this book, a Dutch citizen, should enjoy the copyright protection as
regulated in the other 170 countries that are a member of this Convention.
The Paris Convention for the Protection of Industrial Property recognizes a priority right for the
filing of a patent in one of its Member States (Art. 4). This means that when an inventor files a
patent in any of the states, competitors are unable to file a similar or likewise type of patent for
the period of one year.
The Patent Cooperation Treaty results in one single procedure to submit an international patent.
In fact, this procedure results in a centrally organized sum of separate national procedures to
grant the patent: the patent will be submitted in each separate state
Similar attempts can be found in the field of trademark protection. For instance, the Madrid
Agreement creates a system in which a trademark can be filed with one procedure at once in all
Member States.
CH. 14 PRIVATE INTERNATIONAL LAW

14.1 International Legal Disputes
Usually, the law does not cross borders (with the exception of international law of course), since it
is nationally determined. People however do cross borders. This leads to complex questions when
two natural or legal persons from different nationalities end up in a legal dispute.
In an international legal dispute, there are three main questions that need to be answered:
1. We should determine what court has jurisdiction on the matter.

2. We should determine what law should be applied by this court.
3. We should determine how the verdict of the court can be executed.
The rules that answer these questions are usually referred to as private international law.
The problem is that most countries have their own reference rules regarding international legal
disputes, which makes this field of law truly a maze.
There are some international initiatives to harmonize such rules, but these agreements are
scattered and diverse. It is therefore recommendable to avoid proceedings based on such
uncertain rules and make use of the generally recognized contractual freedom by deciding
beforehand what type of law will apply.
We distinguish two types of private international law.
1. Rules that create new substantive law for an international setting.

2. Agreements between countries stipulating reference rules. In such rules, a court or a legal
system is prescribed in certain legal disputes. These kinds of rules are labelled as objective
private international rules.
14.2 The Free Choice Principle

In the context of a contract, the contracting parties generally have a free choice to determine
what they agree upon. This free choice means two things:
1. The content of the contract, as long as it is not against the law, is a free choice.
2. The contracting parties may agree on what will happen in case of a legal dispute
concerning the contract.
This freedom of choice is naturally not unlimited. To prevent contracting parties from selecting the
most flexible legal system with the sole purpose of justifying practices that are considered illegal in
other countries, this contractual freedom is firstly restricted to private law only. The other
restriction is that freedom of choice may never lead to a violation of fundamental norms and
values of a country, such as a violation of human rights.
14.3 Substantive Private International Rules

Countries try to avoid the complexities of applying private international rules from domestic legal
systems by adopting treaties with substantive law. Such treaties basically create ‘new’ law that
applies in international disputes, so that it is not necessary to use the law of any domestic legal
system. We call such treaties substantive private international rules.
CISG: The Convention on Contracts for the International Sale of Goods applies to contracts
between two parties whose place of business is not in the same country and these countries are a
member of the Convention.
If only one of the involved businesses is located in a Member State of the CISG, and private
international rules dictate that the applicable law is that of the CISG Member State, the
convention is still applicable.
The CISG provides for uniform rules in closing a sales contract. The Convention specifies the legal
obligations of the seller and the buyer, and what remedies there are in case of non-performance
for both parties.
INCOTERMS: The International Commercial Terms specifies the exact liability of the sender and
the receiver of goods during the transport.
Three things are regulated through these INCOTERMS between the seller and receiver of the
goods:
 Who bears the costs for what part of the transport.
 Who is responsible for the relevant insurances, tax payments legaldocuments and permits
during what part of the transport.
 Who bears the risk for the goods during what part of the transport.
Where INCOTERMS regulate the liability between sender and receiver, other international
instruments regulate the liability of the carrier. For instance, in the America’s, the Inter-American
Specialized uniform through bill of lading for the international carriage of goods by roadspecifies
the liability of the transporter.
14.4 Objective Private International Rules

In bilateral or multilateral treaties, countries may harmonize their international private reference
rules.
An extensive example can be found in the context of the European Union. Through a handful of
regulations, a more or less coherent system of objective private international rules is created.
This leaves us two questions that remain to be answered in case of an international conflict with a
European dimension: what court has jurisdiction and what law should be applied?
The following step approach should work to solve private international issues in a relatively simple
manner:
Step 1 Did the conflicting parties make a choice?
Both the EEX and the Rome Regulations recognize the principle of free choice. This means that
private parties who are in a legal conflict may choose the jurisdiction, and applicable law that
applies to their conflict. When this is done properly, there is usually no problem in this field, and it
is a matter of bringing the case before the court that is agreed upon that will apply the law that is
agreed upon.
There are two things that need to be mentioned in the context of applicable law.
1. Contracting parties do not necessarily have to choose a national legal system. They might
also declare instruments of substantive private law applicable to their contract or case.
2. There is some additional protection for the ‘weaker’ party. This is especially so in a
Business to Consumer relation, and an employer to employee relation. In such cases, the
consumer or employee often has no choice but to accept the general terms of a
consumer contract, or the conditions set by the employer.
Step 2 Does a lex specialis apply?
When no choice of jurisdiction and/or law was made, one needs to establish whether the legal
conflict falls under the scope of a specific law. In legal terminology, we call a more specific law a
lex specialis, in contrast to a general law, which is a lex generalis.
Step 3 Use the lex generalis
If no choice of jurisdiction and/or law was made, and no lex specialis applies, one should turn to
the general rules of the regulations.
It needs to be noted here that as a result of the Rome I, the CISG can be applicable in a business to
business setting. This would be the case when the two contracting parties, that did not make a
legal choice in their contract, would be situated in two countries that are a member of the CISG, or
when Rome I would lead to the application of the law of a country that is a member of the CISG.

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Business Law and Ethics Summary

7.1 Economic integration in Europe

7.1.1 Supranational law

This means two things.

7.2 Free trade under the EU

7.2.1 The four freedoms

1. The free movement of goods

The free movement of goods

Ban on all fiscal restrictions

Ban on physical restrictions

In the Cassis de Dijon ruling the Court dictates two principles:

The free movement of persons

I. Either the migrant works or is self-employed

The free movement of services

The free movement of capital

7.2.2 Harmonization of law

In law, this is done on two levels, by primary and secondary legislation:

There are different types of secondary legislation:

7.2.3 Competition law

The prohibition of cartels

The distortion of competition is:

 The fixing of purchase or selling prices.

The abuse of a dominant position

 the fixing of purchase or selling prices;

7.3 The organizational structure of the EU

The Council of Ministers is composed of a representative on the ministerial level of each EU

CH. 8 CONTRACT LAW

8.1.1 A valid contract

Contracts in Common Law

Contracts in Civil Law

8.1.2 The time an offer or acceptance is legally binding

In the negotiation process, it is important to know:

8.2 The content and interpretation of a contract

The Russian Civil Code restricts contractual freedom on three grounds.

8.3 The form of a contract

8.4 Factors affecting the validity of a contract

Internal factors affecting the validity of a contract:

External factors affecting the validity of a contract:

 Duress is the situation in which a party consents to a contract under threat.

8.5 Performance of the contract

8.6 International contract law

CH. 9 LIABILITY LAW

9.1.1 Civil Law

9.1.2 Common law

9.1.3 Islamic law

This means that:

9.1.4 The CISG

9.1.5 Other Remedies

9.2 Non-contractual liability

9.2.1 Fault-based liability

In France, damage compensation is awarded if:

The Specific Approach

Trespass to the person is the interference with a person’s body or freedom.

9.2.2 Strict liability

The European Product Liability Directive

A couple of questions need to be answered:

 the presentation of the product;

CH.10 LABOUR LAW