Summary: Mandatory Law: Fundamental Principles

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Read the summary and the most important questions on Mandatory Law: Fundamental Principles

  • 1 Characteristics and Distinctions

  • What do the terms mandatory law and non-mandatory law refer to?  

    They refer to the relationship between a rule of private law and the agreement between the parties.

  • 1.1 Definition

  • What is the relationship between the general primacy of party autonomy and the mandatory and non-mandatory rules?

    Pursuant to the GPoPA, mandatory rules will generally contain explicit reference to their mandatory character and will be an exception in most law systems. The other rules (non-mandatory) will not contain this clarification.

  • What must be done whenever a rule lacks express determination to whether it is mandatory or not?

    The character of the rule must be set according to the general principles of interpretation, paying attention to the purpose of the rule.

     

  • 1.2 Party autonomy and validity requirements

  • Which rules are often excluded from parties' discretion?

    Rules on capacity, mistake or formal requirements.

  • What must the law do in order to provide recognition for individual declarations of intention?  

    It needs to provide a definition of conditions under which such declaration will be binding.

  • What is the difference between these procedural/functional mandatory rules and the other types?

    The former determine the reqs of self determination, while the latter puts substantive restrictions on acts of self determination. 

  • 1.3 Mandatory rules and the principle of good faith

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  • When isn't the principle of good faith mandatory law?

    When it is being used for the interpretation of contractual agreements or to set limits to them on basis of particular situations neglected by parties.

  • What are its characteristics as mandatory law?

    Its compulsory application is determined by courts rather than by the legislative.

     

  • 2 Functional Background

  • 2.1 Definition and Types of Legal Purpose

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  • When do the purposes and effects of mandatory and non-mandatory rules need to be taken into account?

    Both in the assessment of a legislative decision about the nature of a given rule and in the determination of the character of a provision in priv law by way of interpretation. 

  • What is the essential purpose of non-mandatory rules?  

    Relieving parties from regulating their relation in every single detail. Thus non-m rules save costs.

     

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