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Articles 1 - 30 of 32
Full-Text Articles in Law
Diapositives Versus Movies – The Inner Dynamics Of The Law And Its Comparative Account, Mauro Bussani, Ugo Mattei
Diapositives Versus Movies – The Inner Dynamics Of The Law And Its Comparative Account, Mauro Bussani, Ugo Mattei
Mauro Bussani
The paper is the introduction to the Cambridge Companion to Comparative Law. The book (as well as its introduction) goes through the variety of possible nuances of comparative law. Acknowledging that diverse working comparative methods can all be useful tools to the understanding of the legal phenomena, this preface sets up two provisos. One is that any method one relies on should enable the researcher to stay close to what the law is, to how the law lives in the different settings – regardless of what one would like (i.e. regardless of what any kind of personal and cultural bias …
Democracy And The Western Legal Tradition, Mauro Bussani
Democracy And The Western Legal Tradition, Mauro Bussani
Mauro Bussani
The availability of democracy is usually presented as a pre-requisite of any evaluation – be it political, economic or legal – of any country, and as an imperative to pursue (with or without Western help) for all societies that do not enjoy it. Yet, discussions about non-democratic systems, and the Western aspiration to transform them, often fail to take into account – as they actually should – the basic elements of Western democratic societies, the very fabric with which democracy is woven. The paper adopts a comparative law approach to the issue. It takes into account the historical, technical, and …
The Frontier Between Contractual And Tortious Liability In Europe: Insights From The Case Of Compensation For Pure Economic Loss, Mauro Bussani, Vernon V. Palmer
The Frontier Between Contractual And Tortious Liability In Europe: Insights From The Case Of Compensation For Pure Economic Loss, Mauro Bussani, Vernon V. Palmer
Mauro Bussani
Recoverability of pure economic losses stands at the cutting edge of many crucial questions, such as: To what extent should tort rules be compatible with the market orientation of the legal system? How far can tort liability expand without imposing excessive burdens upon individual activity? As a matter of policy should the recovery of pure economic loss be the domain principally of the law of contract? The paper pursues the goal of sketching possible answers to these questions as far as European jurisdictions are concerned. Thus, it first outlines the factual situations where a pure economic loss is likely to …
A Pluralist Approach To Mixed Jurisdictions, Mauro Bussani
A Pluralist Approach To Mixed Jurisdictions, Mauro Bussani
Mauro Bussani
The paper claims that ‘mixity’ is an inherent quality of almost any legal systems, and not only of those that, for historical reasons, inherited legal features from the civil and common law traditions. From this ‘pluralistic’ point of view, all the experiences where Western legal models interact among themselves, or with religious, indigenous or customary laws, deserve to be included into the ‘mixed’ category. Such an approach reveals itself as a powerful cognitive tool to advance comparative knowledge about legal systems. In particular, it enables one to better understand: (a) the dynamism of any given legal system – be it …
Faut-Il Se Passer Du Common Law (Européen)? Réflexions Sur Un Code Civil Continental Dans Le Droit Mondialisé, Mauro Bussani
Faut-Il Se Passer Du Common Law (Européen)? Réflexions Sur Un Code Civil Continental Dans Le Droit Mondialisé, Mauro Bussani
Mauro Bussani
No abstract provided.
西方对待过失侵权法的态度：一项比较性的批判研究 (Western Attitudes Towards Negligence Law: A Comparative Critique), Mauro Bussani
西方对待过失侵权法的态度：一项比较性的批判研究 (Western Attitudes Towards Negligence Law: A Comparative Critique), Mauro Bussani
Mauro Bussani
Black-letter tort law world is in motion. The United States is re-stating its rules of liability for physical and emotional harm, European scholars have been preparing different drafts of tort law ‘principles’ in view of a European codification, China is on the eve of a comprehensive reform of its tort liability rules, and in the middle of a lively debate on which model better fits the Chinese society’s legal needs. To modestly contribute to the latter debate, the paper addresses some methodological attitudes as against negligence liability that are widespread in the Western legal culture, and, nevertheless, are worth being …
The Common Core Sounds. Short Notes On Themes, Harmonies And Disharmonies Of European Tort Law, Marta Infantino, Mauro Bussani, Franz Werro
The Common Core Sounds. Short Notes On Themes, Harmonies And Disharmonies Of European Tort Law, Marta Infantino, Mauro Bussani, Franz Werro
Mauro Bussani
The goal of this paper is to present aims, methods and features of the research carried out by the ‘The Common Core of European Private Law” project in the field of tort law. Accordingly, we will first depict the immediate and long-term goals of the ‘Common Core’ endeavour, as well as its methodology and organisation. We will then illustrate the four tort law volumes that have been so far published within the project. This will lead us to find out the distinctive tenets of the Common Core approach as applied to tort law issues, and to put forward some remarks …
Orient Express Law, Mauro Bussani
Orient Express Law, Mauro Bussani
Mauro Bussani
For comparativists, the ‘Europeanization’ of tort law raises a plethora of questions with no clear right or wrong answer. Is European tort law going to be molded by a common law and civil law convergence? Is there an Americanization of European tort law going on? Should comparative law be forward-looking and trying to build European tort law on new bricks, or should it be backward looking, struggling to find evidence of a common past to be restored? While it is beyond the scope of the contribution to offer a definite answer to all these questions, the paper aims to clarify …
European Tort Law – A Way Forward, Mauro Bussani
European Tort Law – A Way Forward, Mauro Bussani
Mauro Bussani
In the last years, there have been growing efforts of building a common European tort law. Leaving aside any positive or negative bias vis-à-vis the reasons underpinning these efforts, the paper aims to highlights the overall implications of reframing this field of law, implications that are often forgotten, or undernoted in the debate about the harmonization of European laws of tort. In particular, the paper points out the problems that any integrative enterprise focusing on this field may face, and sketches the possible outcomes that such enterprises are likely to produce in both the short and the long run.
Le Garanzie Reali Al Servizio Dello Stato, Mauro Bussani
Le Garanzie Reali Al Servizio Dello Stato, Mauro Bussani
Mauro Bussani
In the last decades, many Western countries have undergone economy-wide reforms generally aimed to reduce the role of the State in the economy, by limiting public ownership of land and infrastructures. Privatization programs concerning States’ immovables have taken many forms, and have often been coupled with the alleged benefits of the securitization of immovable property-related assets. In many cases, however, these programs have been carried out with no or little awareness of the variety of instruments that the law of security rights makes available to the privatizing State. The comparative survey conducted in this paper provides an overview of the …
Las Diversidades Y El Derecho, Mauro Bussani
Las Diversidades Y El Derecho, Mauro Bussani
Mauro Bussani
The paper tackles some of the most crucial issues concerning individuals’ diversity under the law. In the first part, the paper presents the idea that has attracted most of the attention of the legal debate on diversity, that is, the idea that people should be conceived by the law as (formally and abstractly equal) right-holders. The second part of the paper analyzes the critiques that have been addressed against this view, focusing in particular on the reduced capacity of formal/abstract equality to confront, not with an equally formal/abstract idea of diversity, but with the actual stratification and inner dynamics of …
Los Modelos De Las Garantías Reales En Civil Y En Common Law. Una Aproximación De Derecho Comparado, Mauro Bussani
Los Modelos De Las Garantías Reales En Civil Y En Common Law. Una Aproximación De Derecho Comparado, Mauro Bussani
Mauro Bussani
The paper offers a comparative overview of the law of security rights in movable property in the civil and common law worlds. To this purpose, the paper first examines black-letter provisions, case-law, scholarly doctrines, and practices on which the laws of security rights over movables are grounded. It then proceeds to investigate the cultural, socio-economic, and policy factors that, more or less overtly, have a practical impact on the operative rules applied in the jurisdictions surveyed. As the paper shows, the consideration for these ‘hidden’ factors proves indeed crucial to the understanding of the (similarities and differences between the) ways …
The Many Faces Of Equity. A Comparative Survey Of The European Civil Law Tradition, Mauro Bussani, Francesca Fiorentini
The Many Faces Of Equity. A Comparative Survey Of The European Civil Law Tradition, Mauro Bussani, Francesca Fiorentini
Mauro Bussani
The paper investigates the meaning of, and the role played by equity in the continental European legal tradition. In this perspective, the article outlines the historical origins of the Western notion of equity in the Greek and Roman world, and examines how equity became a core instrument of law-making in the age of ius commune. Through the survey of French, German, and Italian law, the paper then clarifies the place of equity in the private law codes. In particular, this comparative analysis shows that, in spite of the wave of legal positivism affecting European legal thought in the XIXth-XXth centuries, …
La Propriété-Sûreté. Rapport Général, Mauro Bussani
La Propriété-Sûreté. Rapport Général, Mauro Bussani
Mauro Bussani
The aim of the paper is twofold. On the one hand, its goal is to offer a comparative overview of the rules and techniques on the use of ownership as security, with particular regard to retention of title and transfer of title for security purposes. On the other hand, the paper aims to illustrate the harmonization efforts which have been undertaken in this field, and to evaluate the promises and challenges arising from such integrative enterprises in light of the findings highlighted by comparative law studies.
La Corte Costituzionale, L’Illecito Ed Il Governo Della Colpa, Mauro Bussani, Marta Infantino
La Corte Costituzionale, L’Illecito Ed Il Governo Della Colpa, Mauro Bussani, Marta Infantino
Mauro Bussani
Under Italian law, the (only) court competent to solve constitutional questions – the Constitutional Court – is often required to verify the constitutionality of tort law rules. Focusing on the Constitutional Court’s pronouncements about the notion of fault in tort liability, the paper aims to investigate how the Court performs its role in a field where judicial review is seldom aimed to the scant legislative tort law rules, and most of the times targets the way in which ordinary courts, including the Court of Cassation (i.e. the Supreme Court in civil matters), apply tort law rules, and set the fault …
Intention Et Lien De Causalité Dans Le Droit Comparé De La Responsabilité Civile (La Fable Très Peu Convenue De La Malice Qui Accroche), Mauro Bussani
Intention Et Lien De Causalité Dans Le Droit Comparé De La Responsabilité Civile (La Fable Très Peu Convenue De La Malice Qui Accroche), Mauro Bussani
Mauro Bussani
The goal of the essay is to discuss the role that a person’s malice may play in Western tort laws. To this purpose, the paper examines how the finding of the defendant’s malice may: (i) make the victim’s or a third party’s contribution to the injury appear negligible; (ii) blur the distinction between acts and omissions; (iii) relax the notions of proximity and remoteness; and (iv) extend the range of consequences for which the defendant can be held liable.
Liability For Pure Financial Loss In Europe: An Economic Restatement, Mauro Bussani, Vernon V. Palmer, Francesco Parisi
Liability For Pure Financial Loss In Europe: An Economic Restatement, Mauro Bussani, Vernon V. Palmer, Francesco Parisi
Mauro Bussani
As generally understood in the law and economics literature, the economic loss rule states that a plaintiff cannot recover damages for a pure financial loss. The comparative study of the recoverability in tort of pure economic losses, however, reveals that the recognition and significance attributed to the economic loss rule and to the notion of "economic loss" varies considerably across Western legal systems. This paper therefore revisits recent findings of comparative law about the recoverability of pure economic losses, and demonstrates that legal notions of pure economic loss encompass several types of situations, with little or no correspondence with the …
Colpa E Responsabilità Della P.A. Nella Lesione Di Interessi Legittimi, Mauro Bussani
Colpa E Responsabilità Della P.A. Nella Lesione Di Interessi Legittimi, Mauro Bussani
Mauro Bussani
This paper discusses recent Italian developments about the liability of public authorities for their unlawful acts, and set these ‘new’ rules against the comparative framework of tort liability rules which apply to public authorities in Western (European and United States) jurisdictions.
The Contract Law Codification Process In Europe: Policies, Targets And Time Dimensions, Mauro Bussani
The Contract Law Codification Process In Europe: Policies, Targets And Time Dimensions, Mauro Bussani
Mauro Bussani
The contribution aims to address the issues implied by the following questions: (a) What is the contract law to be codified? (b) What is the possible impact of a European contract law codification upon the other private law fields? (c) Which are the driving forces behind and ahead of the European codification process? The paper approaches these problems by focusing on the fragmentation in different layers of European contract law within and across national frontiers, and on the bearing that this ‘stratification’ may have on the choice of adopting a code with either a ‘regional’ or a world-wide scope. Moreover, …
L'Intégration Juridique Et Le Droit Des Sûretés Réelles, Mauro Bussani
L'Intégration Juridique Et Le Droit Des Sûretés Réelles, Mauro Bussani
Mauro Bussani
Many inter-governmental and scholarly projects focus on the harmonization of the law of security interests. The aim of the paper is to present and evaluate the goals that these enterprises pursue, as well as the challenges they face. In order to do so, the paper first examines the main features of the above projects. It then proceeds to analyze, from a comparative point of view, what is similar and what is different between Western laws on security interests. Such a comparative survey sheds light, on the one hand, on the variety of legal solutions and (above all) cultural approaches one …
‘Integrative’ Comparative Law Enterprises And The Inner Stratification Of Legal Systems, Mauro Bussani
‘Integrative’ Comparative Law Enterprises And The Inner Stratification Of Legal Systems, Mauro Bussani
Mauro Bussani
The essay deals with the features of, and the challenges posed by the initiatives aiming to harmonize European private laws. The first part focuses on the comparison of (overt) methods and (hidden) implications pursued by research-oriented enterprises – such as ‘The Common Core Project’ or the ‘European Case-books Project’ –, and the initiatives whose goal is the creation of rules – such as the UNIDROIT Principles or the ‘Lando Commission’ –. The second part of the article highlights the existence of multi-level legal systems as one of the most important problems any integrative enterprise has to face. The analysis of …
La Responsabilità Della Pubblica Amministrazione In Diritto Comparato, Mauro Bussani
La Responsabilità Della Pubblica Amministrazione In Diritto Comparato, Mauro Bussani
Mauro Bussani
The paper analyzes and compares the liability rules which apply to public authorities’ wrongful acts under French, German, Italian, and Anglo-American law. More in particular, the paper examines the acts that, in the concerned jurisdictions, may trigger the liability of public authorities, the tort law remedies that may be sought against them, and the courts that are competent to hear such claims.
The Common Core Approach To The European Private Law, Mauro Bussani, Ugo Mattei
The Common Core Approach To The European Private Law, Mauro Bussani, Ugo Mattei
Mauro Bussani
This paper discusses the aim, method, and organization of ‘The Common Core of European Private Law’ project, a scholarly initiative launched by the authors in 1994, and that at the moment this paper was written involved one hundred (and now more than two hundred) scholars, mostly from Europe and the United States. Part I describes both the immediate and the long-term goals of the Project. Part II discusses the methodological evolution that has taken place from Schlesinger's Cornell Project to the Common Core work, and tackles the main differences between the Common Core approach and other "integrative" projects taking place …
Current Trends In European Comparative Law: The Common Core Approach, Mauro Bussani
Current Trends In European Comparative Law: The Common Core Approach, Mauro Bussani
Mauro Bussani
In the last decades, many research groups have been established to support—although through different means—the Europanization of private law. Some of these initiatives are, to use Schlesinger’s terminology, ‘integrative’, that is, they are engaged in ascertaining which solutions may best regulate legal problems in a common way. Other enterprises aim to deepen the knowledge and dialogue between European legal cultures. This is particularly the case with ‘The Common Core of European Private Law’ project, which was launched in 1994 by Ugo Mattei and the author of this article to develop a better knowledge of private law rules within the European …
Choix Et Défis De L’Herméneutique Juridique. Notes Minimes, Mauro Bussani
Choix Et Défis De L’Herméneutique Juridique. Notes Minimes, Mauro Bussani
Mauro Bussani
The paper focuses on the widespread hetero-referentiality one can witness, especially in certain circuits, between jurists and philosophers: the former trying to base technical arguments on one or the other (most of the times: fashionable) philosophical trends; the latter theorizing about this or that use of a given legal notion – often referring to orientations by now obsolete, or which only partly, or vaguely grasp the law as it is. After examining the modes through which the legal debate selects the philosophical authorities able to serve as auxiliary sources of the jurist’s cultural legitimization, the essay analyzes the most remarkable …
À Propos D’Instruments Protecteurs De La Liberté De Contracter Valablement Dans La Jurisprudence Italienne, Mauro Bussani
À Propos D’Instruments Protecteurs De La Liberté De Contracter Valablement Dans La Jurisprudence Italienne, Mauro Bussani
Mauro Bussani
The paper analyzes Italian contract law with regard to the remedies available to the party who enters into an invalid agreement. The article focuses on how Italian courts have so far interpreted the rules laid down in the civil code, the doctrines developed by scholars alongside these rules, and the actual meaning of the notion of fault when applied to these cases.
Responsabilité Des Sujets Atteints De Troubles Mentaux En Italie Et En Common Law, Mauro Bussani
Responsabilité Des Sujets Atteints De Troubles Mentaux En Italie Et En Common Law, Mauro Bussani
Mauro Bussani
The aim of this paper is to challenge the traditional principle of Western negligence law according to which, whatever a person’s characteristics are, his/her behavior should be judged against the standard of care expected from the so-called ‘reasonable person’. In particular, the paper focuses on a special category of subjects who are ‘weaker’ than the average because suffering from a psychological disability. Through the comparative analysis of Italian, English, and American tort law rules involving these persons, the paper shows how courts are acutely aware of the need to introduce some degree of flexibility into the median fault parameter.
Making The Other Path Efficient. Economic Analysis And Tort Law In Less Developed Countries, Mauro Bussani, Ugo Mattei
Making The Other Path Efficient. Economic Analysis And Tort Law In Less Developed Countries, Mauro Bussani, Ugo Mattei
Mauro Bussani
The aim of this paper is to advance our understanding of whether and to what extent Law&Economics has a future in addressing, both from a positive and from a normative point of view, legal systems which are outside the Western legal tradition. The analysis proceeds in the following way: Part One focuses on general issues of Comparative Law&Economics. We try to explain from an economic perspective what characteristics make Western law homogeneous in order to have a clear picture of which legal systems we are considering. Part Two discusses some of the assumptions of Law&Economics which may limit the possibility …
Perfiles Comparativos Sobre La Responsabilidad Civil. La Culpa Al Servicio De Los Débiles, Mauro Bussani
Perfiles Comparativos Sobre La Responsabilidad Civil. La Culpa Al Servicio De Los Débiles, Mauro Bussani
Mauro Bussani
The purpose of this essay is to present and challenge a cherished tenet of the Western negligence law. This is the idea according to which every person’s behavior should conform to the standard of care expected of the so-called ‘reasonable person’ endowed with conventional knowledge, average musculature, normal reactions, commonplace skills, and ordinary intelligence and memory. In particular, the paper: (i) discusses the flaws of this standard when applied to persons who are weaker than the average, i.e. minors, the elderly, and those who suffer from a psychological disability; and (ii) shows how several functions traditionally attributed to the general …
Tort Law And Development: Insights Into The Case Of Ethiopia And Eritrea, Mauro Bussani
Tort Law And Development: Insights Into The Case Of Ethiopia And Eritrea, Mauro Bussani
Mauro Bussani
The primary purpose of the article is to enrich the understanding of tort laws in Ethiopia and Eritrea and of how these laws deal with environmental issues. Its secondary goal is to clarify the affinities, often hidden, between the issues raised by tort law in developing countries at present times, and the same issues as they emerged in the Western tradition in the past.