An Introduction to the Comparative Study of Private Law

Abstract

This collection of readings places side by side the principal doctrines of contracts, torts, unjust enrichment, and property in the cases of the United States, England, France, Germany and China. It presents code provisions, cases, and other legal materials that describe the law in force, and places each doctrine in its historical context to enable an understanding of the development of law as an ongoing process, in which the resolution of current issues depends upon how past issues were resolved. It both provides a road map of the private law of these jurisdictions, and illustrates how private law has been shaped by history, by the effort to solve common problems, and by differences in culture. This new edition reflects changes in the law, and includes the addition of Chinese Law as a comparative study.

Gaps and Analogies in the Legal Definition of the Lease Facility in Russia

“…The tendency of development of civil law regulation towards integration and unification of methods of influence on similar economic relations in Russia and abroad led to inclusion of elements of comparativist analysis (Gordley and Mehren, 2006), i.e. reference to foreign experience of legal perception of some objects of lease and assessment of the role of the analogy in the mechanism of overcoming legal gaps in this sphere.…”

“…Despite the fact that in the theory of law and civil law science, the use of the analogy of the law is considered effective (Romanenko, 2016) and a traditional (Malyushin, 2015) legal instrument to bridge legal gaps, the existence of which in the field of civil law is recognized as immanent to the rulemaking process (Gordley and Mehren , 2006), and despite the fact that (contrary to the above judgment) the "wholesale" analogy (or the legal regime analogy) is by no means anomalous, the attempt of the Plenum of the Supreme Arbitration Court of the Russian Federation to seal the legal gap in question with the help of analogy (and not through the improvement of existing legislation or broad interpretation) actually led to the fact that the analogy was used as a tool for designing proprietary encumbrances. So, since the Plenum of the Supreme Arbitration Court of the Russian Federation, using analogy, has vested the rights of third parties using the structural elements (parts) of the building with the proprietary qualities of "sticking" to the object (according to Clause 1, Article 617 of the Civil Code of the Russian Federation, transfer of ownership of the leased facility to another person does not constitute a basis for amending or terminating the lease contract), since there was a clear unlawful intrusion into the principle of an exhaustive regulatory list of property rights "numerus clausus" (Merrill, 2000), directly enshrined in Art.…”

The influence of the Ius-naturale conception of ABGB on the regulation of personality protection and compensation for non-proprietary damage in the Czech Civil Code

“… Lucke (2012) 7-38. 4Gordley and von Mehren (2006) 15.5 Horák et al (2019) 333-48. 6 Husa (2015) 9-11.7 Gelter and Siems (2014) 35-85.Hungarian Journal ofLegal Studies 62 (2021) 3, 185-197 …”