The methodology of private law : or on how to make private law recover its lost character
Title: The methodology of private law : or on how to make private law recover its lost character
Author: HABIB, Javier I.
Citation: Florence : European University Institute, 2016
Series/Number: EUI PhD theses; Department of Law
This PhD proposes a method for making private law doctrine. The introduction defines private law, argues that the way in which private laws are dealing with new cases is causing them a crisis and introduces the method that jurists should follow to make private laws exit their crisis. The chapters of the dissertation illustrate an application of the method. The first step of the method is to identify a new case. Mine is the case of revoked (firm) promises. The second step is to criticize laws and decisions. Private laws imply collateral contracts, apply the reliance theory and enact special provisions to sanction the revocation of promises. These solutions may serve to tackle the injustice arising from unduly revoked promises but compromise the integrity of, respectively, contract law, the division freedom\obligations and private law in general. The third step of the method is to think of the case's best possible private law form. I ask: If promise were to be a private law concept, what should that concept be? The form for promise is that of contract, tort and unjust enrichment. The fourth step is to construe a legal proposal. Here I construe promise as another cause of obligation. The "unilateral promise", as the new concept is called, enables judges to find an exchange of rights in certain promises and conclude their irrevocability. The last step is to evaluate the construction. I neutralize the arguments against construing promise as a (voluntary) cause of obligation and suggest that my proposal is better than the possible alternatives, which are revocability and regulating revocation as a tort. In the conclusion I show that my proposal does the work of the current laws of promises but without compromising the conceptual integrity of private law. I finish suggesting other applications of the method.
LC Subject Heading: Civil law; Contracts; Contracts -- Philosophy
Defence date: 28 May 2016; Examining Board: Professor Dennis M. Patterson, European University Institute; Professor Hans-W Micklitz, European University Institute; Professor Ernest Weinrib, Toronto University; Professor Roger Brownsword, King's College London
Type of Access: embargoedAccess