Lesnota's - Basisbegrippen van recht.docx

## Introduction to the Fundamentals of Law This study guide prov #### Section 1 - Definitions * The concept of law varies across different European continental regions and throughout time, with no universally accepted definition. * Despite differing opinions, central points are emphasized: * Law is a set of behavioral rules and enforcement rules. * Its purpose is to order society. #### Objective Law versus Subjective Rights * **Objective Law:** The entirety of behavioral rules that exist in a particular society at a specific time. * **Subjective Rights:** Rights of legal subjects (natural persons and legal entities); claims of a legal subject that are validated by the law, relating to fellow persons or objects, with the intention of realizing them in legal transactions. #### Public Law versus Private Law * **Private Law:** Regulates relationships between equals, between individuals. It governs legal relationships between peers, citizens, such as contract law, inheritance law, etc. (horizontal relationships). * **Public Law:** Concerns the relationship between citizens and the government, or between different government bodies. Examples include criminal law, tax law, social security law, administrative law, etc. (vertical relationships). * **Blurring of Distinctions:** * The distinction between public and private law is increasingly becoming blurred. * Sources of private law are increasingly found at the international treaty level. * Traditionally, private law was considered supplementary, but it increasingly contains mandatory provisions. * **Multi-layered Legal Order:** Regulation is possible at various levels (international, national, regional, municipal). * **Government Increasingly Using Private Law:** Public authorities are increasingly engaging in private law transactions. #### Sources of Belgian Private Law * **Legal Articles Notation:** `(art. 1.1 BW)` * The number before the dot indicates the book. * The number after the dot indicates the article. * **BW = Civil Code (NOT the New Civil Code):** The current Civil Code, enacted on April 13, 2019, is not fully in effect. It is divided into books. * **Old BW = Old Civil Code:** Largely based on the Napoleonic Code and still largely in effect. * **Coexistence:** Both the Old and New Civil Codes exist side-by-side during this transition phase of codification. * **Tip:** Understanding which books of the new Civil Code are in effect and how they interact with the old code is important for exam questions regarding the timing of codification. * **Special Laws:** Laws not codified in the Civil Code or Old Civil Code exist alongside them. * Examples include regulations concerning notaries, nationality law (found in BWN), market practices and consumer protection (WER - Code of Economic Law). * Legislation enacted by communities (e.g., youth protection law, parts of adoption law) and regions (e.g., cemeteries, human remains, environmental protection, housing) also form sources of law. * **Custom:** A source of law. * Definition: A rule derived from consistent practice, the binding character of which is supported by a general conviction. (Cass. February 16, 1979, Arr. Cass. 1978-79, 717). * **Example:** Every custom is a practice, but not every practice is a custom. * **General Legal Principles:** Also a source of law. * The Court of Cassation can declare something a legal principle (some are codified). * Examples: Prohibition of forced execution on a person (through violation of integrity), prohibition of unjust enrichment, prohibition of abuse of rights. #### Material and Formal Law * **Material Law:** Pertains to the content of the law. * **Formal Law:** Pertains to the form of the law and serves to enforce material law (e.g., procedural law). * **Blurring:** Distinctions between procedural law branches (e.g., public procedural law and civil procedural law) are also blurring. #### Legal Facts, Legal Acts, and Legal Consequences * **Legal Subject:** A "person" (natural or legal entity) for whom a legal norm creates rights and obligations. * **Legal Fact:** An event that brings about legal consequences. * Example: Birth immediately grants rights to the mother (e.g., parental authority) and child, and inheritance rights. * **Incorrect Example:** Driving through a red light is a legal act (a deliberate human action). * **Legal Act:** A human declaration of will whereby a legal subject performs an act with the aim of legal consequences. The legal consequences are intended by the person performing the legal act. * Examples: Recognizing a child, entering into marriage, buying a laptop. #### Personal Status * **Personal Status:** The set of specific qualities of a person that determine their legal position (status) in society and family, distinguishing them from others (art. 6, § 2 Old BW). * **Legal Position in Society (Highest Level):** * Example: Nationality, which can be relevant for voting rights, and is often governed by special legislation. * **Status in the Family (Middle Level):** * Unique to each individual. * Relates to one's position concerning descent and cohabitation/marriage. * Can change, primarily through legal acts. * **Status as an Individual (Lowest Level):** * **Physical Elements:** Age (reaching majority and thus capacity to act). * **Psychological Elements:** Mental state (e.g., mental illness, dementia) can lead to legal incapacitation by a judge, resulting in fewer rights. * **Civil-Law Elements for Identification:** Name, domicile. * Changes in one level of personal status can affect the underlying levels. * **Acquisition of Elements of Personal Status:** Dependent on legal facts, material legal acts, judicial decisions, or laws. * **Civil Status Records:** Municipal administration that records changes in personal status (art. 6, § 1 Old BW). This is distinct from marital status. #### Possession of Status (Bezit van Staat) * Social behavior that establishes a relationship with another person. * Example: A person acting as a father and being recognized as such by society, even if not biologically related. * Can serve as proof of parentage. * **Ground for Non-Receipt:** Historically, possession of status could be a ground for establishing paternity, but this has been found unconstitutional due to its absolute nature, requiring a balancing of interests. * **Characteristics:** * **Singular Character:** A child can only have possession of status with respect to one man at a time. * **Dual Character:** A child can have possession of status with respect to one man and one woman (or one woman and a female partner). #### Capacity * **Actual Capacity:** The factual possibility of performing a specific act. * **Legal Capacity (Enjoyment Capacity):** The authority to be the holder of rights and obligations. * **Capacity to Act:** The authority to exercise rights and obligations independently and on one's own behalf. #### Section 2 - Central Elements in the Concept of Law * Law is a set of behavioral rules with an institutional and conceptual framework, imposed by society, with the aim of ordering society. * **Behavioral Rules:** Can be commands, prohibitions, or permissions, varying in intensity and applicability. They can be mandatory (cannot be deviated from) or supplementary (allowing for alternative agreements). * **Institutional and Conceptual Framework:** Refers to the structures for formulating (legislative), applying (executive), and enforcing (judicial) laws. * **Imposed by Society:** Through legislative bodies elected via elections. * **Goal of Legal Rules:** A qualitative ordering of society. * **Quality of Ordering:** Dependent on legal certainty, justice, and effectiveness. * **Legal Certainty:** Requires predictability (ignorance of the law is no excuse), stability of laws, generality, and internal consistency. * **Justice:** Law must appear just and is evolutionary. It includes a hard core of values that must always be respected (e.g., respecting another's life). * **Effectiveness:** Means must be adapted to objectives. Evaluation of whether the intended goal is achieved is often lacking. * **Enforcement of Legal Rules:** By or under the authority of society's governing bodies (executive and judicial branches). * **Initiative for Enforcement:** In private law, it rests with the individual; in public law, it rests with the state. #### Synthesis * (Continental) law is: a set of behavioral rules and related institutional provisions enacted and enforced by or under societal authority, aiming for a legally certain, just, and effective ordering of society. ### Chapter 2 - Relativity of this Approach * Other legal systems, like the US, derive rules from precedents (previous rulings). * Some cultures emphasize reconciliation or human dialogue (e.g., Japan). * The primary function of law in Belgium is ordering society. * The ideal functioning of a jurist involves client-centered practice rather than rigid adherence to rules, encouraging alternative solutions like mediation and reconciliation for better behavior. #### Legal Theory * **General Legal Theory:** Ontological (concerning the nature of being). * **Legal Reasoning:** Epistemological (concerning the nature and scope of knowledge), explaining and interpreting rules. ## Part II - Basic Concepts ### Chapter 1 - Legal Subjects #### Section 1 - Concepts #### Section 2 - Natural Persons * **Living and Viable Persons:** Every living and viable born human being, without exception. * Living = not stillborn. * Viable = capable of survival according to medical consensus. * Essential for legal capacity. * **Not all Living Beings are Legal Subjects:** Animals, for instance, are not legal subjects but enjoy legal protection. They lack legal personality, meaning they cannot hold rights and obligations. * **Embryo:** From the moment of conception, an embryo is not a legal subject but enjoys legal protection. * **Deceased Person (Corpse):** The remains of a person. A deceased person is no longer a legal subject and does not possess rights or obligations, although their remains receive legal protection. * **Stillborn Child:** A child born deceased without breathing. They are not the holder of rights and obligations. Civil status documents can be issued for stillborn children, but they have no legal consequences. * **Conceived Child:** A child conceived enjoys rights (but no obligations) before birth. * **Prenatal Recognition:** Possible even if the father dies during pregnancy, allowing the child to inherit. * **Presumption of Conception:** Legally presumed to occur between the 300th and 180th day before birth (art. 326 Old BW). This is a \_juris tantum presumption (rebuttable). * **End of Legal Personality:** Death. This is a factual matter to be determined by a doctor. * Certain aspects of legal personality may be retained or modified after death (e.g., posthumous recognition of a child, copyright). #### Section 3 - Legal Persons * **Definition and Rationale:** A group of legal subjects, or an segregated pool of assets, that can be the holder of rights and obligations. They are abstract legal creations. * **Legal Persons vs. Partnerships Without Legal Personality:** * **Partnership Without Legal Personality:** A partnership that does not acquire its own legal personality. It lacks a segregated pool of assets. * **Legal Person:** Acquires its own legal personality and can perform legal acts. It has its own assets, separate from those of its individual members. * **Creditor Recourse:** * **Against a Legal Person:** Creditors of individual members can only pursue the private assets of the shareholder, which includes their shares in the legal person. * **Against a Partnership Without Legal Personality:** Creditors can pursue the debtor's undivided share in the assets designated for the partnership. * **Types of Legal Persons:** * **Public Law Legal Persons:** Established by the government for public service provision (e.g., the Belgian State, regional governments, Bpost, NMBS). * **Private Law Legal Persons:** Established through private initiative for purposes other than exercising state authority (e.g., companies, associations, foundations). * **Associations and Foundations:** * **Association:** Private law legal persons pursuing a non-profit objective. * **VZW (ASBL - Non-profit Association):** Can organize profit-making activities, but profits must be used for their objective. Has members. * **Private Foundation (PS):** A segregated pool of assets dedicated to realizing a non-profit objective. Has no members, only directors. * **Public Benefit Foundation (SON):** A segregated pool of assets dedicated to philanthropic, ideological, religious, scientific, artistic, pedagogical, or cultural objectives. * **Foundations:** * **Public Benefit Foundation (SON):** A segregated pool of assets intended to achieve a philanthropic, ideological, religious, scientific, artistic, pedagogical, or cultural purpose. * **Companies:** Private law legal persons aimed at generating profit to distribute to participants (shareholders). * **Forms:** Vary in terms of limited liability and legal personality. * **Companies with Unlimited Liability:** Creditors have recourse to both the company's assets and the members' assets. However, they have less stringent internal organization and accounting rules. * **Companies with Limited Liability:** Only recourse to the company's assets, but subject to various formation and maintenance requirements. * **Principle of Legality for Legal Persons:** Legal personality can only be granted in cases provided for by law to prevent proliferation. * **Origin and End of Legal Personality:** * **Origin:** On the day an extract of the founding deed is filed with the registry of the company court of the jurisdiction where the entity has its seat. * **End:** Through voluntary or judicial dissolution, followed by liquidation of assets. * **Opposability of the Existence of Legal Persons to Third Parties:** Only after publication of an extract of the founding deed in the Belgian Official Gazette. ### Chapter 2 - Capacity #### Section 1 - Concepts #### Section 2 - Capacity of Natural Persons * **Legal Capacity (Enjoyment Capacity):** * **Principle:** Full legal capacity for all Belgians (art. 1.3, second paragraph BW). * **Exceptions:** * **General Limitations:** Non-Belgians (regarding civil rights like becoming a notary) and severely convicted individuals (deprivation of certain political and/or civil rights). * **Specific Legal Incapacities:** Imposed by law (e.g., marriage prohibitions) or by a court judgment (e.g., prohibition from practicing a profession, forfeiture of parental authority). * **Capacity to Act:** * **Principle:** Everyone is presumed to have capacity to act (art. 1.3, second paragraph BW). * **Limitations:** Incapacity to act. * **General Incapacity:** Inability to act independently in legal transactions without assistance (e.g., unemancipated minors, protected adults). * **Partial Incapacity:** Incapacity only for specific legal acts as defined by law or a court. * **Ways to Achieve Capacity:** * **Emancipation:** Through marriage or a court decision. * **Protected Adults:** Through out-of-court protection (e.g., lasting power of attorney) or court-ordered protection (guardianship/curatorship). * **Purpose of Exceptions:** Protection of individuals with insufficient will or understanding. * **Functions of Exceptions:** * **Representation:** A person acts on behalf of the protected individual. * **Assistance:** The assisting person acts together with the protected individual, but not without their consent. * **Sanction for Misuse:** Nullity of legal acts performed by an incapacitated person. * **Relative Nullity:** Can only be invoked by the protected person. * **Absolute Nullity:** Can be invoked by any interested party, or declared by the court. * **Moment of Incapacity:** * **Minors:** From birth. * **Adults:** From the date of judicial incapacitation. * **Sanctioning the Performance of Legal Acts During Incapacity:** * **Misuse of Legal Capacity:** Leads to nullity. * **Relative vs. Absolute Nullity:** Based on whether the rule violated is mandatory or public order. * **Nullity by Law vs. Nullity Due to Lesion:** * **Nullity by Law:** Strict nullity upon violation of incapacity rules. * **Nullity Due to Lesion:** Requires proof of disadvantage or harm to the incapacitated person. Minors generally require proof of lesion, except for very young children or acts requiring judicial authorization. * **Acts Requiring Authorization:** Nullity by law if authorization is not obtained. * **Capacity of Legal Persons:** * **Enjoyment Capacity:** Generally full capacity, but limited by their nature, law, or stated purpose (principle of specialty). * **Capacity to Act:** Exercised through their organs (natural persons). ### Chapter 3 - Legal Acts #### Section 1 - Introduction * **Distinction:** Material Acts (legal facts) vs. Legal Acts (human declarations of will). * **Legal Acts:** * **Material Aspect:** The act itself. * **Formal Aspect:** The way the act is expressed. * **Procedural Legal Acts:** Acts within the context of legal proceedings. #### Section 2 - Validity of Legal Acts * **Validity Requirements:** Free and conscious consent, legal capacity, a determinable and lawful object (content), and a lawful cause (motive). * **Conformity with Mandatory Legal Rules:** Legal acts must comply with mandatory legal provisions and public order rules. * **Capacity to Act:** Distinct from imputability (responsibility for one's actions). * **Will Theory vs. Reliance Theory:** * **Will Theory:** The act must conform to the actual will of the person. * **Reliance Theory:** An invalid declaration may be considered valid if it reasonably led the other party to believe it was a genuinely intended act. * **Defects of Will:** * **Mistake (Dwaling):** A misrepresentation of an essential element. Must be excusable. * **Fraud (Bedrog):** Intentional deception through artifice. * **Duress (Geweld):** Unlawful pressure (physical or moral). * **Abuse of Circumstances (Misbruik van omstandigheden):** Exploiting a vulnerable position to create a manifest imbalance in performance. * **Content of the Legal Act (Object):** Must be lawful. * **Cause (Oorzaak):** The individual justification or motive for performing the legal act. It must be lawful, and its absence or unlaw ciation can lead to absolute nullity (e.g., tax evasion schemes). #### Section 3 - Nullity of Legal Acts * A legal act tainted by a validity defect is subject to nullification until it is voided. * **Consequences of Nullification:** Works retroactively (\_ex tunc) and prospectively (\_ex nunc). * **Restitution:** Parties must return what they have received. * **Exceptions:** Favored treatment for incapacitated persons regarding restitution. * **Third Parties:** The validity of subsequent acts may be affected (\_nemo plus iuris transferre potest quam ipse habet - no one can transfer more rights than they have). * **Relative Nullity:** Applies for violations of mandatory rules or defects of will. Can only be invoked by the protected party. * **Absolute Nullity:** Applies for violations of public order rules or lack of essential elements. Can be invoked by any interested party, and the court can declare it on its own motion. #### Section 4 - Opposability of Legal Acts * **Principle of Relativity of Legal Acts:** Contracts generally only bind the parties involved (\_inter partes). * **Exceptions:** Direct action (e.g., a subcontractor's right to claim payment from the main client), third-party stipulations, and "sterkmaking" (a promise by one party that another will perform). * **Relativization:** The existence of legal acts can affect third parties (e.g., factual circumstances, requiring good faith) and may require specific publicity formalities (e.g., registration in public registers). #### Section 5 - Representation in Legal Acts * **Definition:** One person (the representative) is empowered to perform a legal act with a third party on behalf of another (the represented). * **Types:** * **Immediate Representation:** The representative acts in the name and on behalf of the represented. * **Mediated Representation:** The representative acts in their own name but on behalf of the represented. * **Legal Basis for Representation:** Law, court decision, legal act (power of attorney), or statutes of legal persons. * **Consequences of Representation:** Legal consequences are generally attributed to the represented party within the scope of the representative's authority. * **Representation Without Authority:** The represented party is not bound unless they ratify the act. The representative may be liable for damages. * **Apparent Representation (Schijnvertegenwoordiging):** The represented party created a justifiable appearance that the representative had authority, leading to the represented party being bound. * **Conflicts of Interest:** A representative acting against the interests of the represented party can lead to nullity, unless ratified. #### Section 6 - Form of Legal Acts * **Princ of Consensualism vs. Formalism:** * **Consensualism:** The mere meeting of minds is sufficient for validity (form freedom). * **Formalism:** Validity requires adherence to specific legal forms. Non-compliance can lead to nullity. * **Types of Expression of Will:** Express (explicit) and tacit (implicit). * **Types of Formalities:** * **Deed (Akte):** A signed written document serving as proof of a legal act. * **Authentic Deed:** Drawn up by a public or ministerial officer (e.g., notary, registrar of civil status). Offers strong probative value and enforceability. * **Private Deed:** Signed by the parties without public officer involvement. #### Section 7 - Types of Legal Acts * **Classification:** Based on the number of involved parties (unilateral, multilateral), impact on subjective rights (constitutive, extinctive, translatieve, declarative), form (consensual, formal, real), and impact on assets (acts of preservation, use, management, disposition). * **Acts of Disposition:** Significantly alter the composition of assets (e.g., sale, donation, mortgage). ### Chapter 4 - Liability #### Section 1 - Concept and Placement * **Princ:** Individuals generally bear their own damages. * **Transfer of Liability:** Liability can be transferred to another person if damage is caused by their fault or even without fault (objective liability). * **Mechanisms for Spreading Liability:** Insurance, damage funds. * **Liability Law:** A set of rules determining when damage must be compensated, who must compensate it, and how. * **Recodification (Book 6 BW):** Modernizes and clarifies liability rules, incorporating judicial precedent. #### Section 2 - Types of Liability * **Criminal vs. Civil Liability:** Criminal liability arises from violating a norm with a penal sanction, regardless of intent or actual damage. Civil liability concerns compensation for damage caused to another citizen. * **Contractual vs. Extra-contractual Liability:** * **Contractual Liability:** Arises from a breach of contract. * **Extra-contractual Liability:** Arises from any other wrongful act causing damage. * **Concurrence of Claims:** When a single act constitutes both a contractual and extra-contractual breach, the victim generally has a choice of action. The new Book 6 BW largely abolishes the prohibition of concurrence, favoring extra-contractual liability unless the contract states otherwise. * **Simple vs. Composite Liability:** * **Simple Liability:** Liability for one's own actions. * **Composite Liability:** Liability for the actions of others (e.g., parents for their children, employers for their employees) or for things and animals. * **Fault-based vs. Objective Liability:** * **Fault-based Liability:** Requires proof of fault, damage, and a causal link. * **Objective Liability:** Liability imposed regardless of fault, often based on risk (e.g., liability for animals, defective things). #### Section 3 - Grounds for Extra-contractual Liability * **Fault-based Liability:** Requires proof of damage, fault (a socially unacceptable act, breach of a legal norm or the standard of care of a "good householder"), and a causal link. * **Exclusions from Liability:** Force majeure, error, duress, necessity, legal command, lawful self-defense, victim's consent. * **Attributability (Toerekeningsvatbaarheid):** The fault must be attributable to the perpetrator, requiring sufficient mental capacity. Minors under 12 are generally not personally liable, while those 12 and over may be subject to a fairness regime. * **Liability for Others' Acts:** Presumption of fault for parents, teachers, and principals (employers) regarding acts of those under their supervision or employ. * **Objective Liability:** * **Liability for Animals:** The owner or keeper is strictly liable for damage caused by the animal, unless they can prove they are not the owner/keeper or that the victim's fault caused the damage. * **Liability for Things:** The keeper of a defective thing is strictly liable for damage caused by the defect. * **Liability for Dangerous Activities:** Strict liability for harm caused by inherently dangerous activities. #### Section 4 - Causation * **Causal Link:** A necessary element for liability. * **Equivalent Theory (Conditio Sine Qua Non):** A fault is considered a cause if the damage would not have occurred without it. Corrected by principles of legal causality and fairness to avoid absurd results. * **Plurality of Causes:** When multiple faults contribute to the damage, perpetrators are generally jointly and severally liable (\_in solidum). #### Section 5 - Damage * **Definition:** Any violation of a legally protected interest, whether material or moral. * **Types of Damage:** Patrimonial (economic) and extra-patrimonial (non-economic). * **Compensation:** Aims to restore the victim to the position they would have been in had the damage not occurred. Punitive damages are excluded. ### Chapter 5 - Abuse of Right * **Definition:** Exercising a subjective right in a manner that clearly exceeds the normal limits of its exercise by a reasonable person, or applying legal rules or institutions in violation of their purpose. * **Criteria:** No advantage for the right holder, only disadvantage for another; disproportionate relationship between the holder's benefit and the other's harm. * **Sanction:** The exercise of the right is moderated to its normal scope, and damages may be awarded for harm caused. ### Chapter 6 - Subjective Rights * **Definition:** Legally validated claims and powers that a legal subject can exercise over objects (property law) or towards persons (law of obligations) to achieve their objectives. * **Jurisdiction:** Disputes over subjective rights are handled by ordinary courts. * **Classification:** * **Political vs. Civil Rights:** Political rights are vertical (state-citizen), while civil rights are horizontal (citizen-citizen). * **Patrimonial vs. Extra-patrimonial Rights:** Patrimonial rights are economically valuable and part of a person's assets; extra-patrimonial rights relate to non-economic interests (e.g., personal rights, family rights) and are inalienable. * **Objects of Rights:** Things (tangible or intangible), but not animals or persons. * **Types of Patrimonial Rights:** * **Real Rights:** Rights conferring direct power over a specific good, created only by law (numerus clausus principle). Includes ownership, co-ownership, usufruct, servitudes, and security rights. * **Ownership:** The most comprehensive real right. * **Possession:** A factual state of control with the intent to own. * **Detention:** Factual control without the intent to own. * **Claims (Vorderingsrechten):** Rights to a performance from another person. * **Intellectual Property Rights:** Exclusive rights over creations of the mind. * **Extra-patrimonial Rights:** Non-transferable rights concerning personal integrity, name, image, privacy, family relationships (marriage, divorce, parentage). ### Chapter 7 - Sustainable Development * **Definition:** Development that meets the needs of the present without compromising the ability of future generations to meet their own needs. * **International Framework:** UN conferences, Agenda 21, Sustainable Development Goals (SDGs). * **Belgian Legal Framework:** Sustainable development is a policy objective for all levels of government (federal, community, regional), requiring both negative obligations (not to act against it) and positive obligations (to promote it). * **Climate Litigation:** Cases brought by environmental organizations and citizens to compel governments to take stronger climate action, citing human rights and general liability principles. * **Role of Law:** Consolidation, codification, clarification, and implementation of sustainable development principles. ## Part III - Professional Actors in Law ### Chapter 1 - The Magistrate * **Role:** Decides civil and political disputes, has a reconciliation mandate, and represents the nation in judicial matters. * **Appointment:** For life, by the High Council of Justice, ensuring independence. * **Types:** Judges (sitting) and Public Prosecutors (standing), who represent society and advise on cases. * **Access to the Profession:** Through rigorous selection processes, including examinations and internships, ensuring quality. ### Chapter 2 - Judicial Personnel * **Clerk (Griffier):** Assists judges in all official duties, handles administrative and formal aspects of proceedings. * **Referendary (Referendaris):** Provides legal assistance to judges, often requiring significant legal expertise. * **Prosecution Lawyer (Parketjurist):** Assists Public Prosecutors, similar to referendaries. ### Chapter 3 - The Lawyer * **Role:** Advises clients, represents them in court, and has a monopoly on pleading. * **Status:** Independent professional, bound by a strict code of conduct. * **Access to the Profession:** Requires a law degree, a three-year traineeship, and passing a bar exam. * **Fees:** Based on honorariums, often with agreements on fee structures but avoiding "pactum de quota litis" (fees solely dependent on the outcome). * **Professional Organizations:** Affiliated with Bar Associations and the Order of Flemish Bars (OVB). ### Chapter 4 - The Bailiff (Gerechtsdeurwaarder) * **Role:** A ministerial official responsible for serving legal documents (explpoits), enforcing court judgments, and executing seizures. * **Appointment:** Appointed by the King, tied to a specific territory. * **Fees:** Set by royal decree, usually advanced by the client. * **Liability:** Personally and professionally liable, requires a mandatory liability insurance. * **Access to the Profession:** Competitive examination and a five-year traineeship. ### Chapter 5 - The Notary * **Role:** Drafts authentic deeds, acts neutrally to protect the interests of all parties involved. * **Status:** Public official with a legally determined fee structure, also operating as a private professional. * **Access to the Profession:** Requires a law degree, a notarial law master's, a three-year traineeship, and passing a competitive exam. Positions are limited. ### Chapter 6 - The In-house Counsel (Bedrijfsjurist) * **Role:** Provides legal advice to a company. * **Status:** Protected title, members of the Institute of Company Lawyers, subject to a code of conduct. * **Employment:** Typically employed by a company but can also advise multiple companies as an independent consultant. ### Chapter 7 - The Public Lawyer (Overheidsjurist) * **Role:** Works in public administration, with tasks varying by the specific government entity. * **Status:** Statutory or contractual employee, not a protected title. ### Chapter 8 - The Jurist in Academia * **Role:** Works at a law faculty, contributing through research, publications, and teaching. * **Impact:** Influences legal development and codification efforts. * **Career Path:** Involves progression through academic ranks (e.g., assistant, researcher, professor). ## Part IV - Introduction to Civil Procedure ### Chapter 1 - Introduction * **The Case of Leen Puttemans:** A student injured by a defective road surface, highlighting the process of seeking redress for damages. * **Dispute Resolution:** If direct negotiation fails, legal action before a court is an option, but alternative dispute resolution methods are also encouraged. * **Key Concepts:** Legal dispute, court proceedings, jurisprudence, legal protection, enforcement. * **Civil Code of Procedure (Gerechtelijk Wetboek):** Governs the entire process from initiating a case to enforcing judgments. * **Right to a Fair Trial:** A fundamental human right. ### Chapter 2 - Sources of Civil Procedure Law * **Constitution:** Establishes the judicial power, separation of powers, and fundamental procedural guarantees (e.g., right to a fair trial, reasoned judgments, judicial independence). * **Judicial Code (Gerechtelijk Wetboek):** The primary source of procedural rules, aiming for a more efficient and less costly legal process. * **Special Legislation:** Specific procedural rules may exist in other codes or separate laws. * **General Principles of Due Process:** Including the right of access to a court, the right to be heard (adversarial principle), equality of arms, judicial impartiality, and the requirement for reasoned judgments and reasonable timescales. ### Chapter 3 - Organization and Jurisdiction of Domestic Courts * **Hierarchical Structure:** Courts are organized hierarchically, with different levels of jurisdiction. * **Court of Cassation:** Reviews judgments for legal errors, ensuring uniform application of the law. * **Courts of Appeal:** Hear appeals against decisions of lower courts. * **Courts of First Instance:** Handle a broad range of civil and criminal cases. * **Other Courts:** Specialized courts such as labor courts, commercial courts, and peace courts address specific areas of law. * **Public Prosecutor's Office:** Represents the public interest and ensures the correct application of the law. * **High Council of Justice (Hoge Raad voor de Justitie):** Oversees judicial independence, selection, and the proper functioning of the judiciary. * **Judicial Training Institute (Instituut voor Gerechtelijke Opleiding - IGO):** Responsible for the training of judicial personnel. ### Chapter 4 - Legal Proceedings * **From Dispute to Litigation:** A dispute becomes a legal proceeding when a claim is formally brought before a court. * **Conditions for Legal Action:** Legal personality, capacity to act, legal interest, and standing. * **Types of Claims:** Initial claims, interim claims (e.g., counterclaims, third-party interventions), and appeals. * **Initiating Proceedings:** Typically through a writ of summons (dagvaarding) or a court-filed petition (verzoekschrift). * **Stages of Proceedings:** Preparation (exchange of pleadings and evidence), hearing (oral arguments), deliberation, and judgment. * **Role of the Judge:** Increasingly active in managing cases to ensure timely resolution. * **Evidence:** Parties must present evidence to support their claims. * **Judgments:** Court decisions can be rendered on the merits of the case, provisionally, or on procedural matters. ### Chapter 5 - Compulsory Enforcement * **Legal Enforcement:** The process by which a winning party compels the losing party to comply with a court's decision. * **Enforcement Title:** A document that legally allows for compulsory execution (e.g., a court judgment, a notarial deed). * **Methods of Enforcement:** * **Execution in Kind:** Direct fulfillment of the ordered performance. * **Execution by Equivalent:** Monetary compensation or seizure and sale of assets. * **Penalty Payment (Dwangsom):** A financial penalty for non-compliance. * **Seizure (Beslag):** The legal freezing of a debtor's assets to secure a creditor's claim. * **Distribution of Proceeds:** Creditors are generally paid proportionally, unless they have preferential rights (e.g., secured creditors). ## Conclusion The study of law provides a foundational understanding of societal order and individual rights. Mastery of these concepts, from the definition of law to the intricacies of legal procedure and enforcement, is crucial for any aspiring legal professional. Emphasis on accurate terminology, understanding of legal principles, and the ability to apply them to practical scenarios are key for exam success.

## Glossary | Term | Definition | | :-------------------------------------------- | :--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- | | Objective Law | The entirety of behavioral rules that exist in a particular society at a specific time. | | Subjective Rights | Rights of legal subjects (natural persons and legal entities), which are claims of a legal subject that are validated by the law, relating to fellow persons (-> law of obligations) or objects (-> property law) with the intention of realizing them in legal transactions. | | Material Law | Deals with the content of the law. | | Formal Law | Deals with the form of the law; it is subordinate to material law and serves to enforce material law, such as procedural law. | | Legal Fact | A fact that brings about legal consequences. | | Legal Act | A human declaration of will whereby a legal subject performs an act with the aim of legal consequences. The legal consequences are intended by the person performing the legal act. | | Legal Personality | The entire set of rights and obligations of a legal subject, also referred to as legal personality. | | Capacity | The ability to be a holder of rights and obligations, or the authority to exercise rights and obligations independently and on one's own behalf. | | Legal Capacity | The authority to be the holder of rights and obligations, or the capacity to enjoy rights and obligations. | | Capacity to Act | The authority to exercise rights and obligations independently and on one's own behalf. | | Relative Nullity | Nullity that can only be invoked by the protected person or that can be waived by that person. | | Absolute Nullity | Nullity that can be invoked by any interested party, including the public prosecutor, and can also be declared by the court on its own motion. It cannot be confirmed. | | Abuse of Right | The exercise of a subjective right in a manner that clearly exceeds the limits of the normal exercise of that right by a careful and reasonable person in the same circumstances, or the application of legal rules or institutions in violation of their purpose. | | Good Faith (Subjective) | Refers to the knowledge of a person; it is presumed unless the contrary is proven. It means acting without knowledge of the illegality or irregularity of one's actions. | | Enforcement Title | A document that legally allows for the compulsory execution of an obligation, such as a court judgment, a notarial deed, or a dwingend invorderingsbevel. | | Repossession (Verhaalsexecutie) | The legal process by which a creditor seizes and sells the assets of a debtor to satisfy a debt, typically through a court order. | | Judicial Organization | The structure and functioning of the courts and judicial bodies within a country, including their composition, jurisdiction, and procedures. | | Jurisdiction | The authority of a court to hear and decide a case. It can be material (based on the subject matter or value of the dispute) or territorial (based on the location of the parties or the events). | | Preliminary Question (Prejudiciële Vraagstelling) | A question raised by a lower court to a higher court (e.g., the Constitutional Court) concerning the compatibility of a law with the Constitution or other higher-ranking norms, which must be answered before the lower court can rule on the main case. | | Public Prosecutor's Office (Openbaar Ministerie) | The body responsible for prosecuting criminal offenses and representing the public interest in legal proceedings, often referred to as the standing magistracy. |