FELIX HOUPHOUET BOIGNY UNIVERSITY OF COCODY

Dr. ATTA Kouamé François

atta.kouamefrancois@univ-fhb.edu.ci

INTRODUCTION

Law is a term which does not have a universally accepted definition, but one definition is that law is a system of rules and guidelines which are enforced through social institutions to govern behaviour. Laws can be made by legislatures through legislation (resulting in statutes), the executive through decrees and regulations, or judges through binding precedents (normally in common law jurisdictions). Private individuals can create legally binding contracts, including (in some jurisdictions) arbitration agreements that exclude the normal court process. The formation of laws themselves may be influenced by a constitution (written or unwritten) and the rights encoded therein. The law shapes politics, economics, and society in various ways and serves as a mediator of relations between people.

A general distinction can be made between civil law jurisdictions (including canon and socialist law), in which the legislature or other central body codifies and consolidates their laws, and common law systems, where judge-made binding precedents are accepted. Historically, religious laws played a significant role even in settling of secular matters, which is still the case in some religious communities, particularly Jewish, and some countries, particularly Islamic. Islamic Sharia law is the world's most widely used religious law.

The adjudication of the law is generally divided into two main areas. Criminal law deals with conduct that is considered harmful to social order and in which the guilty party may be imprisoned or fined. Civil law (not to be confused with civil law jurisdictions above) deals with the resolution of lawsuits (disputes) between individuals or organisations. These resolutions seek to provide a legal remedy (often monetary damages) to the winning litigant. Under civil law, the following specialties, among others, exist: Contract law regulates everything from buying a bus ticket to trading on derivatives markets. Property law regulates the transfer and title of personal property and real property. Trust law applies to assets held for investment and financial security. Tort law allows claims for compensation if a person's property is harmed. Constitutional law provides a framework for the creation of law, the protection of human rights and the election of political representatives. Administrative law is used to review the decisions of government agencies. International law governs affairs between sovereign states in activities ranging from trade to military action. To implement and enforce the law and provide services to the public by public servants, a government's bureaucracy, military, and police are vital. While all these organs of the state are creatures created and bound by law, an independent legal profession and a vibrant civil society inform and support their progress.

I. GENERAL OVERVIEW OF THE CONCEPT OF LAW

1.Etymology

The etymology of the term law, derives from the mediaeval English word lawe, which in turn was derived from the Old English form of lagu, relating to a word of Scandinavian origin denoting the designation of due place and order.

2.Definition

One definition is that law is a system of rules and guidelines which are enforced through social institutions to govern behaviour. In The Concept of Law Hart argued law is a "system of rules"; Austin said law was "the command of a sovereign, backed by the threat of a sanction"; Dworkin describes law as an "interpretive concept" to achieve justice; and Raz argues law is an "authority" to mediate people's interests. Holmes said "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law." Aquinas said that law is a rational ordering of things which concern the common good that is promulgated by whoever is charged with the care of the community. This definition has both positivist and naturalist elements.

3.Legal subjects

All legal systems deal with the same basic issues, but jurisdictions categorise and identify its legal subjects in different ways. A common distinction is that between "public law" (a term related closely to the state, and including constitutional, administrative and criminal law), and "private law" (which covers contract, tort and property). In civil law systems, contract and tort fall under a general law of obligations, while trusts law is dealt with under statutory regimes or international conventions. International, constitutional and administrative law, criminal law, contract, tort, property law and trusts are regarded as the "traditional core subjects", although there are many further disciplines.

3.1.International law

International law can refer to three things: (a) public international law, (b) private international law or conflict of laws, and, (c) the law of supranational organisations.

· Public international law concerns relationships between sovereign nations. The sources for public international law development are custom, practice and treaties between sovereign nations, such as the Geneva Conventions. Public international law can be formed by international organisations, such as the United Nations (which was established after the failure of the League of Nations to prevent the Second World War), the International Labour Organisation, the World Trade Organisation, or the International Monetary Fund. Public international law has a special status as law because there is no international police force, and courts (e.g. the International Court of Justice as the primary UN judicial organ) lack the capacity to penalise disobedience. However, a few bodies, such as the WTO, have effective systems of binding arbitration and dispute resolution backed up by trade sanctions.

· Conflict of laws (or "private international law" in civil law countries) concerns which jurisdiction a legal dispute between private parties should be heard in and which jurisdiction's law should be applied. Today, businesses are increasingly capable of shifting capital and labour supply chains across borders, as well as trading with overseas businesses, making the question of which country has jurisdiction even more pressing. Increasing numbers of businesses opt for commercial arbitration under the New York Convention 1958.

· Law of supranational organisations concerns organisations such as the UN, the World Trade Organisation, and the European Union. European Union law is the first and, so far, only example of an internationally accepted legal system other than the UN and the World Trade Organisation. Given the trend of increasing global economic integration, many regional agreements—especially the Union of South American Nations—are on track to follow the same model. In the EU, sovereign nations have gathered their authority in a system of courts and political institutions. These institutions are allowed the ability to enforce legal norms both against or for member states and citizens in a manner which is not possible through public international law. As the European Court of Justice said in the 1960s, European Union law constitutes "a new legal order of international law" for the mutual social and economic benefit of the member states.

3.2.Constitutional and administrative law

Constitutional and administrative law govern the affairs of the state. Constitutional law concerns both the relationships between the executive, legislature and judiciary and the human rights or civil liberties of individuals against the state. Most jurisdictions, like the United States and France, have a single codified constitution with a bill of rights. A few, like the United Kingdom, have no such document. A "constitution" is simply those laws which constitute the body politic, from statute, case law and convention. A case named Entick v Carrington illustrates a constitutional principle deriving from the common law. Mr Entick's house was searched and ransacked by Sheriff Carrington. When Mr Entick complained in court, Sheriff Carrington argued that a warrant from a Government minister, the Earl of Halifax, was valid authority. However, there was no written statutory provision or court authority. The leading judge, Lord Camden, stated that,

The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole ... If no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment.

The fundamental constitutional principle, inspired by John Locke, holds that the individual can do anything except that which is forbidden by law, and the state may do nothing except that which is authorised by law.[32][33] Administrative law is the chief method for people to hold state bodies to account. People can apply for judicial review of actions or decisions by local councils, public services or government ministries, to ensure that they comply with the law. The first specialist administrative court was the Conseil d'État set up in 1799, as Napoleon assumed power in France.

3.3.Criminal law

Criminal law, also known as penal law, pertains to crimes and punishment. It thus regulates the definition of and penalties for offences found to have a sufficiently deleterious social impact but, in itself, makes no moral judgment on an offender nor imposes restrictions on society that physically prevent people from committing a crime in the first place. Investigating, apprehending, charging, and trying suspected offenders is regulated by the law of criminal procedure. The paradigm case of a crime lies in the proof, beyond reasonable doubt, that a person is guilty of two things. First, the accused must commit an act which is deemed by society to be criminal, or actus reus (guilty act). Second, the accused must have the requisite malicious intent to do a criminal act, or mens rea (guilty mind). However, for so called "strict liability" crimes, an actus reus is enough. Criminal systems of the civil law tradition distinguish between intention in the broad sense (dolus directus and dolus eventualis), and negligence. Negligence does not carry criminal responsibility unless a particular crime provides for its punishment.

Examples of crimes include murder, assault, fraud and theft. In exceptional circumstances defences can apply to specific acts, such as killing in self defence, or pleading insanity. Another example is in the 19th-century English case of R v Dudley and Stephens, which tested a defence of "necessity". The Mignonette, sailing from Southampton to Sydney, sank. Three crew members and Richard Parker, a 17-year-old cabin boy, were stranded on a raft. They were starving and the cabin boy was close to death. Driven to extreme hunger, the crew killed and ate the cabin boy. The crew survived and were rescued, but put on trial for murder. They argued it was necessary to kill the cabin boy to preserve their own lives. Lord Coleridge, expressing immense disapproval, ruled, "to preserve one's life is generally speaking a duty, but it may be the plainest and the highest duty to sacrifice it." The men were sentenced to hang, but public opinion was overwhelmingly supportive of the crew's right to preserve their own lives. In the end, the Crown commuted their sentences to six months in jail.

Criminal law offences are viewed as offences against not just individual victims, but the community as well.[36] The state, usually with the help of police, takes the lead in prosecution, which is why in common law countries cases are cited as "The People v ..." or "R (for Rex or Regina) v ...". Also, lay juries are often used to determine the guilt of defendants on points of fact: juries cannot change legal rules. Some developed countries still condone capital punishment for criminal activity, but the normal punishment for a crime will be imprisonment, fines, state supervision (such as probation), or community service. Modern criminal law has been affected considerably by the social sciences, especially with respect to sentencing, legal research, legislation, and rehabilitation.[43] On the international field, 111 countries are members of the International Criminal Court, which was established to try people for crimes against humanity.

3.4.Contract law

Contract law concerns enforceable promises, and can be summed up in the Latin phrase pacta sunt servanda (agreements must be kept).[45] In common law jurisdictions, three key elements to the creation of a contract are necessary: offer and acceptance, consideration and the intention to create legal relations. In Carlill v Carbolic Smoke Ball Company a medical firm advertised that its new wonder drug, the smokeball, would cure people's flu, and if it did not, the buyers would get £100. Many people sued for their £100 when the drug did not work. Fearing bankruptcy, Carbolic argued the advert was not to be taken as a serious, legally binding offer. It was an invitation to treat, mere puffery, a gimmick. But the Court of Appeal held that to a reasonable man Carbolic had made a serious offer, accentuated by their reassuring statement, "£1000 is deposited". Equally, people had given good consideration for the offer by going to the "distinct inconvenience" of using a faulty product. "Read the advertisement how you will, and twist it about as you will", said Lord Justice Lindley, "here is a distinct promise expressed in language which is perfectly unmistakable".

"Consideration" indicates the fact that all parties to a contract have exchanged something of value. Some common law systems, including Australia, are moving away from the idea of consideration as a requirement. The idea of estoppel or culpa in contrahendo, can be used to create obligations during pre-contractual negotiations. In civil law jurisdictions, consideration is not required for a contract to be binding. In France, an ordinary contract is said to form simply on the basis of a "meeting of the minds" or a "concurrence of wills". Germany has a special approach to contracts, which ties into property law. Their 'abstraction principle' (Abstraktionsprinzip) means that the personal obligation of contract forms separately from the title of property being conferred. When contracts are invalidated for some reason (e.g. a car buyer is so drunk that he lacks legal capacity to contract) the contractual obligation to pay can be invalidated separately from the proprietary title of the car. Unjust enrichment law, rather than contract law, is then used to restore title to the rightful owner.

3.5.Tort law

Torts, sometimes called delicts, are civil wrongs. To have acted tortiously, one must have breached a duty to another person, or infringed some pre-existing legal right. A simple example might be accidentally hitting someone with a cricket ball. Under the law of negligence, the most common form of tort, the injured party could potentially claim compensation for their injuries from the party responsible. The principles of negligence are illustrated by Donoghue v Stevenson. A friend of Mrs Donoghue ordered an opaque bottle of ginger beer (intended for the consumption of Mrs Donoghue) in a café in Paisley. Having consumed half of it, Mrs Donoghue poured the remainder into a tumbler. The decomposing remains of a snail floated out. She claimed to have suffered from shock, fell ill with gastroenteritis and sued the manufacturer for carelessly allowing the drink to be contaminated. The House of Lords decided that the manufacturer was liable for Mrs Donoghue's illness. Lord Atkin took a distinctly moral approach, and said,

The liability for negligence ... is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay ... The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.

This became the basis for the four principles of negligence: (1) Mr Stevenson owed Mrs Donoghue a duty of care to provide safe drinks (2) he breached his duty of care (3) the harm would not have occurred but for his breach and (4) his act was the proximate cause of her harm. Another example of tort might be a neighbour making excessively loud noises with machinery on his property. Under a nuisance claim the noise could be stopped. Torts can also involve intentional acts, such as assault, battery or trespass. A better known tort is defamation, which occurs, for example, when a newspaper makes unsupportable allegations that damage a politician's reputation. More infamous are economic torts, which form the basis of labour law in some countries by making trade unions liable for strikes, when statute does not provide immunity.[

3.6.Property law

Property law governs ownership and possession. Real property, sometimes called 'real estate', refers to ownership of land and things attached to it Personal property, refers to everything else; movable objects, such as computers, cars, jewelry or intangible rights, such as stocks and shares. A right in rem is a right to a specific piece of property, contrasting to a right in personam which allows compensation for a loss, but not a particular thing back. Land law forms the basis for most kinds of property law, and is the most complex. It concerns mortgages, rental agreements, licences, covenants, easements and the statutory systems for land registration. Regulations on the use of personal property fall under intellectual property, company law, trusts and commercial law. An example of a basic case of most property law is Armory v Delamirie [1722]. A chimney sweep's boy found a jewel encrusted with precious stones. He took it to a goldsmith to have it valued. The goldsmith's apprentice looked at it, sneakily removed the stones, told the boy it was worth three halfpence and that he would buy it. The boy said he would prefer the jewel back, so the apprentice gave it to him, but without the stones. The boy sued the goldsmith for his apprentice's attempt to cheat him. Lord Chief Justice Pratt ruled that even though the boy could not be said to own the jewel, he should be considered the rightful keeper ("finders keepers") until the original owner is found. In fact the apprentice and the boy both had a right of possession in the jewel (a technical concept, meaning evidence that something could belong to someone), but the boy's possessory interest was considered better, because it could be shown to be first in time. Possession may be nine tenths of the law, but not all.

This case is used to support the view of property in common law jurisdictions, that the person who can show the best claim to a piece of property, against any contesting party, is the owner. By contrast, the classic civil law approach to property, propounded by Friedrich Carl von Savigny, is that it is a right good against the world. Obligations, like contracts and torts, are conceptualised as rights good between individuals. The idea of property raises many further philosophical and political issues. Locke argued that our "lives, liberties and estates" are our property because we own our bodies and mix our labour with our surroundings.

3.7.Commercial law

Commercial law, also known as business law, is the body of law that applies to the rights, relations, and conduct of persons and businesses engaged in commerce, merchandising, trade, and sales.[1] It is often considered to be a branch of civil law and deals with issues of both private law and public law.

Commercial law includes within its compass such titles as principal and agent; carriage by land and sea; merchant shipping; guarantee; marine, fire, life, and accident insurance; bills of exchange and partnership. It can also be understood to regulate corporate contracts, hiring practices, and the manufacture and sales of consumer goods. Many countries have adopted civil codes that contain comprehensive statements of their commercial law.

In the United States, commercial law is the province of both the United States Congress, under its power to regulate interstate commerce, and the states, under their police power. Efforts have been made to create a unified body of commercial law in the United States; the most successful of these attempts has resulted in the general adoption of the Uniform Commercial Code, which has been adopted in all 50 states (with some modification by state legislatures), the District of Columbia, and the U.S. territories.

Various regulatory schemes control how commerce is conducted, particularly vis-a-vis employees and customers. Privacy laws, safety laws (e.g., the Occupational Safety and Health Actin the United States), and food and drug laws are some examples.

3.8.Equity and trusts

Equity is a body of rules that developed in England separately from the "common law". The common law was administered by judges. The Lord Chancellor on the other hand, as the King's keeper of conscience, could overrule the judge-made law if he thought it equitable to do so. This meant equity came to operate more through principles than rigid rules. For instance, whereas neither the common law nor civil law systems allow people to split the ownership from the control of one piece of property, equity allows this through an arrangement known as a 'trust'. 'Trustees' control property, whereas the 'beneficial' (or 'equitable') ownership of trust property is held by people known as 'beneficiaries'. Trustees owe duties to their beneficiaries to take good care of the entrusted property. In the early case of Keech v Sandford [1722] a child had inherited the lease on a market in Romford, London. Mr Sandford was entrusted to look after this property until the child matured. But before then, the lease expired. The landlord had (apparently) told Mr Sandford that he did not want the child to have the renewed lease. Yet the landlord was happy (apparently) to give Mr Sandford the opportunity of the lease instead. Mr Sandford took it. When the child (now Mr Keech) grew up, he sued Mr Sandford for the profit that he had been making by getting the market's lease. Mr Sandford was meant to be trusted, but he put himself in a position of conflict of interest. The Lord Chancellor, Lord King, agreed and ordered Mr Sandford should disgorge his profits. He wrote,

I very well see, if a trustee, on the refusal to renew, might have a lease to himself few trust-estates would be renewed ... This may seem very hard, that the trustee is the only person of all mankind who might not have the lease; but it is very proper that the rule should be strictly pursued and not at all relaxed.

Of course, Lord King LC was worried that trustees might exploit opportunities to use trust property for themselves instead of looking after it. Business speculators using trusts had just recently caused a stock market crash. Strict duties for trustees made their way into company law and were applied to directors and chief executive officers. Another example of a trustee's duty might be to invest property wisely or sell it. This is especially the case for pension funds, the most important form of trust, where investors are trustees for people's savings until retirement. But trusts can also be set up for charitable purposes, famous examples being the British Museum or the Rockefeller Foundation.

3.9.Jurisprudence

Jurisprudence is the study and theory of law. Scholars in jurisprudence, also known as legal theorists (including legal philosophers and social theorists of law), hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions. Modern jurisprudence began in the 18th century and was focused on the first principles of the natural law, civil law, and the law of nations. General jurisprudence can be broken into categories both by the type of question scholars seek to answer and by the theories of jurisprudence, or schools of thought, regarding how those questions are best answered. Contemporary philosophy of law, which deals with general jurisprudence, addresses problems in two rough groups:

· (1.) Problems internal to law and legal systems as such.

· (2.) Problems of law as a particular social institution as it relates to the larger political and social situation in which it exists.

Answers to these questions come from four primary schools of thought in general jurisprudence:[2]

· Natural law is the idea that there are rational objective limits to the power of legislative rulers. The foundations of law are accessible through human reason and it is from these laws of nature that human-created laws gain whatever force they have.[2]

· Legal positivism, by contrast to natural law, holds that there is no necessary connection between law and morality and that the force of law comes from some basic social facts. Legal positivists differ on what those facts are.[3]

· Legal realism is a third theory of jurisprudence which argues that the real world practice of law is what determines what law is; the law has the force that it does because of what legislators, judges, and executives do with it. Similar approaches have been developed in many different ways in sociology of law.

· Critical legal studies is a younger theory of jurisprudence that has developed since the 1970s. It is primarily a negative thesis that holds that the law is largely contradictory, and can be best analyzed as an expression of the policy goals of the dominant social group.

Also of note is the work of the contemporary Philosopher of Law Ronald Dworkin who has advocated a constructivist theory of jurisprudence that can be characterized as a middle path between natural law theories and positivist theories of general jurisprudence.

A further relatively new field is known as therapeutic jurisprudence, concerned with the impact of legal processes on wellbeing and mental health.

The English term is based on the Latin word jurisprudentia: juris is the genitive form of jus meaning "law", and prudentia means "prudence" (also: discretion, foresight, forethought, circumspection; refers to the exercise of good judgment, common sense, and even caution, especially in the conduct of practical matters). The word is first attested in English in 1628, at a time when the word prudence had the now obsolete meaning of "knowledge of or skill in a matter". The word may have come via the French jurisprudence, which is attested earlier.

From Wikipedia, the free encyclopedia

II.Legal personality

There are two types of legal person: natural persons and juristic persons.

1.Natural Persons

These are individuals with their full legal rights and legal duties. In jurisprudence, a natural person is a real human being, as opposed to a juristic person, which may be a private (i.e., business entity) or public (i.e., government) organization. In many cases, fundamental human rights are implicitly granted only to natural persons. For example, the Nineteenth Amendment to the United States Constitution, which states a person cannot be denied the right to vote based on gender, or Section Fifteen of the Canadian Charter of Rights and Freedoms, which guarantees equality rights, apply to natural persons only. Natural persons can enter into contracts which must then be performed.

2.Juristic Persons

Juristic personality is the characteristic of a non-living entity regarded by law to have the status of personhood.

A juristic person (Latin: persona ficta) (also commonly called a vehicle) has a legal name and has certain rights, protections, privileges, responsibilities, and liabilities under law, similar to those of a natural person. The concept of a juristic person is a fundamental legal fiction. It is pertinent to the philosophy of law, as it is essential to laws affecting a corporation (the law of business associations).

Legal personality allows one or more natural persons to act as a single entity (a composite person) for legal purposes. In many jurisdictions, legal personality allows that composite to be considered under law separately from its individual members or shareholders. They may sue and be sued, enter contracts, incur debt, and own property. Entities with legal personality may also be subjected to certain legal obligations, such as the payment of taxes. An entity with juristic personality may shield its shareholders from personal liability.

The concept of juristic personality is not absolute. This is looking at the individual natural persons acting as agents involved in a corporate action or decision; this may result in a legal decision in which the rights or duties of a corporation are treated as the rights or liabilities of that corporation's shareholders or directors. Generally, juristic persons do not have all of the same rights—such as the right to freedom of speech—that natural persons have, although the Republic of Iran has become an exception in this regard.

·

Some examples of legal persons include: Cooperatives, Corporations, corporation aggregate, Municipal corporations, economic interest groupings, Companies, associations, partnership, unions, joint stock companies, trusts, and funds., sole proprietorship, Sovereign states .In the international legal system, various organizations possess legal personality. These include intergovernmental organizations (the United Nations, the Council of Europe) and some other international organizations (including the Sovereign Military Order of Malta, a religious order),Temples,

Not all organizations have legal personality. For example, the boards of directors of a corporation, legislature, or governmental agency typically are not legal persons in that they have no ability to exercise legal rights independent of the corporation or political body which they are a part of.

3.Creation and history of the doctrine

In the common law tradition, only a person could sue or be sued. This was not a problem in the era before the Industrial Revolution, when the typical business venture was either a sole proprietorship or partnership—the owners were simply liable for the debts of the business. A feature of the corporation, however, is that the owners/shareholders enjoyed limited liability—the owners were not liable for the debts of the company. Thus, when a corporation breached a contract or broke a law, there was no remedy, because limited liability protected the owners and the corporation wasn't a legal person subject to the law. There was no accountability for corporate wrongdoing.

To resolve the issue, the legal personality of a corporation was established to include five legal rights—the right to a common treasury or chest (including the right to own property), the right to a corporate seal (i.e., the right to make and sign contracts), the right to sue and be sued (to enforce contracts), the right to hire agents (employees) and the right to make by-laws (self-governance).

Since the 19th century, legal personhood has been further construed to make it a citizen, resident, or domiciliary of a state.

4. Limitations

There are limitations to the legal recognition of legal persons. Legal entities cannot marry, they usually cannot vote or hold public office, and in most jurisdictions there are certain positions which they cannot occupy. The extent to which a legal entity can commit a crime varies from country to country. Certain countries prohibit a legal entity from holding human rights; other countries permit artificial persons to enjoy certain protections from the state that are traditionally described as human rights.

Special rules apply to legal persons in relation to the law of defamation. Defamation is the area of law in which a person's reputation has been unlawfully damaged. This is considered an ill in itself in regard to natural person, but a legal person is required to show actual or likely monetary loss before a suit for defamation will succeed.

Usually a natural person perpetrates a crime, but legal persons may also commit crimes. Conversely, at least under U.S. Law, nonpersons such as animals cannot commit crimes.

From Wikipedia, the free encyclopedia

5.In-Class Activities

Objectives: by the end of this lesson, students should be able to identify the different types of legal persons and talk about their specificities.

Activity one

How many types of legal rights do legal persons enjoy?

Activity two

Read the text and find words corresponding to the following:

1)personnalité juridique 2)personne morale 3)personne physique 4)devoirs légaux 5)droits légaux 6)accorder (un droit) 7)dire, indiquer, disposer (un règlement, une loi) 8) refuser (un droit à quelqu’un) 9)négocier un contrat, contracter 10)exécuter (un contrat) 11)raison sociale 12)responsabilité (civile) 13)buts légaux 14) poursuivre (en justice) 15)contracter (dettes) 16)protéger, couvrir 17)agir 18)impliquer 19)action menée par une entreprise 20)liberté de parole 21) groupement d’intérêt économique 22)société par actions 23)conseil d’administration 24)avoir la capacité de 25)exercer des droits légaux 26)être responsable (civilement) 27)trait 28)jouir de 29)rompre un contrat 30)méfait 31)embaucher 32)statut, (Am),arrêter municipal (Br), 33)sceau 34)illégal, abusif, illicite

Activity three

Read the text aloud.

Activity four

Read the text and answer yes or no and justify.

1-A natural person is a real human being who has only legal duties.

2-From a legal personality point of view, individual members are not considered separately from the entity they belong to.

3-All organisations have legal personality.

4-the legal personality of a corporation does not enable it to sue.

5-Legal entities hold human right in all countries.

Activity five

Read the text and answer these questions.

1-What is a natural person?

2- What is a juristic person?

3-What are the characteristics of a natural person?

4-What are the characteristics of a juristic person?

5- Are there limitations imposed on juristic persons? Which are they?

Activity six

Write about legal personality.

III.THE CONTRACT OF EMPLOYMENT

A contract of employment is a category of contract used in labour law to attribute right and responsibilities between parties to a bargain. On the one end stands an "employee" who is "employed" by an "employer". It has arisen out of the old master-servant law, used before the 20th century. Put generally, the contract of employment denotes a relationship of economic dependence and social subordination. In the words of the controversial labour lawyer Sir Otto Kahn-Freund,

"the relation between an employer and an isolated employee or worker is typically a relation between a bearer of power and one who is not a bearer of power. In its inception it is an act of submission, in its operation it is a condition of subordination, however much the submission and the subordination may be concealed by the indispensable figment of the legal mind known as the 'contract of employment'. The main object of labour law has been, and... will always be a countervailing force to counteract the inequality of bargaining power which is inherent and must be inherent in the employment relationship."

1.Terminology

A contract of employment usually defined to mean the same as a "contract of service". A contract of service has historically been distinguished from a contract for the supply of services, the expression altered to imply the dividing line between a person who is "employed" and someone who is "self-employed". The purpose of the dividing line is to attribute rights to some kinds of people who work for others. This could be the right to a minimum wage, holiday pay, sick leave, fair dismissal,[3] a written statement of the contract, the right to organize in a union, and so on. The assumption is that genuinely self-employed people should be able to look after their own affairs, and therefore work they do for others should not carry with it an obligation to look after these rights.

In Roman law the equivalent dichotomy was that between locatio conductio operarum (employment contract) and locatio conductio operis (contract for services). The terminology is complicated by the use of many other sorts of contracts involving one person doing work for another. Instead of being considered an "employee", the individual could be considered a "worker" (which could mean less employment legislation protection) or as having an "employment relationship" (which could mean protection somewhere in between) or a "professional" or a "dependent entrepreneur", and so on. Different countries will take more or less sophisticated, or complicated approaches to the question.

2.Criticism

Anarcho-syndicalists and other socialists who criticise wage slavery, e.g. David Ellerman and Carole Pateman, posit that the employment contract is a legal fiction in that it recognises human beings juridically as mere tools or inputs by abdicating responsibility and self-determination, which the critics argue are inalienable. As Ellerman points out, "[t]he employee is legally transformed from being a co-responsible partner to being only an input supplier sharing no legal responsibility for either the input liabilities [costs] or the produced outputs [revenue, profits] of the employer's business." Such contracts are inherently invalid "since the person remain a de facto fully capacitated adult person with only the contractual role of a non-person" as it is impossible to physically transfer self-determination. As Pateman argues:

The contractarian argument is unassailable all the time it is accepted that abilities can 'acquire' an external relation to an individual, and can be treated as if they were property. To treat abilities in this manner is also implicitly to accept that the 'exchange' between employer and worker is like any other exchange of material property . . . The answer to the question of how property in the person can be contracted out is that no such procedure is possible. Labour power, capacities or services, cannot be separated from the person of the worker like pieces of property.

The labour market, as institutionalised under today's market economic systems, has been criticised, especially by both mainstream socialists and anarcho-syndicalists,who utilise the term wage slavery as a pejorative for wage labour. Socialists draw parallels between the trade of labour as a commodity and slavery. Cicero is also known to have suggested such parallels.

According to Noam Chomsky, analysis of the psychological implications of wage slavery goes back to the Enlightenment era. In his 1791 book On the Limits of State Action, classical liberal thinker Wilhelm von Humboldt explained how "whatever does not spring from a man's free choice, or is only the result of instruction and guidance, does not enter into his very nature; he does not perform it with truly human energies, but merely with mechanical exactness" and so when the labourer works under external control, "we may admire what he does, but we despise what he is."[15] Both the Milgram and Stanford experiments have been found useful in the psychological study of wage-based workplace relations.

The American philosopher John Dewey posited that until "industrial feudalism" is replaced by "industrial democracy," politics will be "the shadow cast on society by big business".Thomas Ferguson has postulated in his investment theory of party competition that the undemocratic nature of economic institutions under capitalism causes elections to become occasions when blocs of investors coalesce and compete to control the state.

As per anthropologist David Graeber, the earliest wage labour contracts we know about were in fact contracts for the rental of chattel slaves (usually the owner would receive a share of the money, and the slave, another, with which to maintain his or her living expenses.) Such arrangements, according to Graeber, were quite common in New World slavery as well, whether in the United States or Brazil. C. L. R. James argued that most of the techniques of human organisation employed on factory workers during the industrial revolution were first developed on slave plantations.

Additionally, Marxists posit that labour-as-commodity, which is how they regard wage labour,[20] provides an absolutely fundamental point of attack against capitalism. "It can be persuasively argued," noted one concerned philosopher, "that the conception of the worker's labour as a commodity confirms Marx's stigmatisation of the wage system of private capitalism as 'wage-slavery;' that is, as an instrument of the capitalist's for reducing the worker's condition to that of a slave, if not below it."

Contemporary, or modern, slavery refers to the institutions of slavery that continue to exist in the present day. Estimates of the number of slaves today range from 12 million to 29 million.

Modern slavery is a multi-billion dollar industry with estimates of up to $35 billion generated annually. The United Nations estimates that roughly 27 to 30 million individuals are currently caught in the slave trade industry. The Global Slavery Index 2013 states that 10 nations account for 76 per cent of the world’s enslaved. India has the most slaves of any country at 14 million; over 1% of the population. China has the second-largest number with 2.9 million slaves, followed by Pakistan with 2.1 million, Nigeria with 701,000, Ethiopia with 651,000, Russia with 516,000, Thailand with 473,000, Congo with 462,000, Myanmar with 384,000, and Bangladesh with 343,000.

Mauritania was the last nation to officially abolish slavery, doing so in 2007; yet 4.3% of the population still remains enslaved. Despite being illegal in every nation; slavery is still prevalent in many forms today.

Professor Deirdre Coleman, of the University of Melbourne said,

Slavery is something that’s with us always. We need to keep it in view and think about it when we buy our clothes, to question where they are sourced. Governments and CEOs need to think more carefully about what they are doing and what they are inadvertently supporting.

3. Overview of employment contract

All employees have an employment contract with their employer. A contract is an agreement that sets out an employee’s:

· employment conditions

· rights

· responsibilities

· duties

These are called the ‘terms’ of the contract.

Employees and employers must stick to a contract until it ends (eg by an employer or employee giving notice or an employee being dismissed) or until the terms are changed (usually by agreement between the employee and employer).

If a person has an agreement to do some work for someone (like paint their house), this isn’t an employment contract but a ‘contract to provide services’.

-Accepting a contract

As soon as someone accepts a job offer they have a contract with their employer. An employment contract doesn’t have to be written down.

-Contract terms

The legal parts of a contract are known as ‘terms’. An employer should make clear which parts of a contract are legally binding.

Contract terms could be:

· in a written contract, or similar document like a written statement of employment

· verbally agreed

· in an employee handbook or on a company notice board

· in an offer letter from the employer

· required by law (eg an employer must pay employees at least the National Minimum Wage)

· in collective agreements - negotiated agreements between employers and trade unions or staff associations

· implied terms - automatically part of a contract even if they’re not written down

-Implied terms

If there’s nothing clearly agreed between you and your employer about a particular issue, it may be covered by an implied term - for example:

· employees not stealing from their employer

· your employer providing a safe and secure working environment

· a legal requirement like the right to a minimum of 5.6 weeks’ paid holidays

· something necessary to do the job like a driver having a valid licence

· something that’s been done regularly in a company over a long time like paying a Christmas bonus

-Collective agreements

An employer may have an agreement with employees’ representatives (from trade unions or staff associations) that allows negotiations of terms and conditions like pay or working hours. This is called a collective agreement.

The terms of the agreement could include:

· how negotiations will be organised

· who will represent employees

· which employees are covered by the agreement

which terms and conditions the agreement will cover

-Written statement of employment particulars

An employer must give employees a ‘written statement of employment particulars’ if their employment contract lasts at least a month or more. This isn’t an employment contract but will include the main conditions of employment.

The employer must provide the written statement within 2 months of the start of employment.

If an employee works abroad for more than a month during their first 2 months’ employment, the employer must give them the written statement before they leave.

-What a written statement must include

A written statement can be made up of more than one document (if the employer gives employees different sections of their statement at different times). If this does happen, one of the documents (called the ‘principal statement’) must include at least:

· the business’s name

· the employee’s name, job title or a description of work and start date

· if a previous job counts towards a period of continuous employment, the date the period started

· how much and how often an employee will get paid

· hours of work (and if employees will have to work Sundays, nights or overtime

· holiday entitlement (and if that includes public holidays)

· where an employee will be working and whether they might have to relocate

· if an employee works in different places, where these will be and what the employer’s address is

As well as the principal statement, a written statement must also contain information about:

· how long a temporary job is expected to last

· the end date of a fixed-term contract

· notice periods

· collective agreements

· pensions

· who to go to with a grievance

· how to complain about how a grievance is handled

· how to complain about a disciplinary or dismissal decision

-What a written statement doesn’t need to include

The written statement doesn’t need to cover the following (but it must say where the information can be found):

· sick pay and procedures

· disciplinary and dismissal procedures

· grievance procedures

In Northern Ireland, a written statement must explain what the disciplinary rules and procedures are.

Employers can download a template of a written statement of particulars to fill out.

-Working abroad

If an employee has to work abroad for more than a month, their employer must state:

· how long they’ll be abroad

· what currency they’ll be paid in

· what additional pay or benefits they’ll get

· terms relating to their return to the UK

This information can be given to the employee in a separate document.

An employer may send an employee to another country in the European Economic Area (EEA). In this situation employees must get the terms and conditions that are the legal minimum in that country for:

· working hours and rest breaks

· holiday entitlement

· minimum pay (including overtime)

-Problems with a written statement

If an employee has a problem receiving their written statement, they could:

· Try to solve the problem with their employer informally.

· If this doesn’t work, take out a grievance against their employer (employers can also get advice about handling grievances).

· Take a case to an employment tribunal as a last resort. In Northern Ireland, a case would be taken to an industrial tribunal.

The tribunal will decide what the employment particulars in the statement should have been.

-Compensation

If an employee wins a case about another issue (eg unfair dismissal), the tribunal may award compensation if there’s been a problem with their written statement as well.

Compensation can be 2 or 4 week’s pay although there’s a limit on how much a tribunal will award for a week’s pay.

4.ASSIGNMENT ON CONTRACT OF EMPLOYMENT

TEXT: Contents of an employment contract

The contract of employment contains the following information:

-the name of the employer and the employee

-the date when the employment began, which is important as it determines the period of notice to be given;

-the terms of the employment, which may vary, but among which the following must be given:

-the scale or rate of pay (including commission and bonus if any),

-the date of payment (the salary be paid weekly or monthly),

the hours to be worked (including overtime),

-holyday entitlement and holiday pay,

-sick pay and injury arrangements,

-whether or not there is a pension scheme, which can be contributor or non-contributory,

-the length of notice which the employee must give and the length of the notice of the employee is entitled to receive

-the job title indicating what type of work the employee does, which is important in dealing with redundancy cases;

-disciplinary procedures and grievance procedures (although they are often in a separate booklet to which the written particulars of the contract refer),

-provision for changes in the terms of the contract.

Duties of the parties

A. Duties of an employer

An employer has a duty to provide remuneration according to the contract of employment and the collective agreements made between trade unions and employers, to give holidays pay, to provide sick pay (which is a statutory duty), to provide pay during pension (i.e. while the employee cannot work for a reason for which he is not responsible; suspension generally occurs on medical ground) , to comply with maternity provision for ante-natal care, for maternity pay and the right to return to work, to make payments during lay-off (i.e when the employer has to pay o lay off employees because of lack of work), to pay during statutory time off ( for example for carrying out union duties or for redundant employees to look for another job), to give an itemized pay statement showing the gross pay and the net pay or take-home pay and such deductions as income tax or social security contributions.

B. Duties of an employee

An employee has a duty t use reasonable skill and care in his work, to carry out lawful and reasonable instructions, to give faithful service (i.e not to use or disclose trade secrets and confidential information).

Main acts governing employment

There are two main legal sources in Anglo-Saxon countries: the Common Law and the Statute Law? Labour law comes for its part under Statute Law.

The case of the United Kingdom

-The employment Protection (Consolidation) Act 1978: this Act governs the basic requirements of a contract of employment and the duties of the parties.

-Equal Pay Act 1970: This Act implies an equality clause into contracts. This clause means that a man and a woman must be given equally favourable terms when they are each employed on like work, on work rated as equivalent or work which is of equal value in terms of demands made on the worker. The Act covers not only wages and salaries but also other terms such as sick pay, holiday pay and unequal working hours.

This Act states that it is the duty of every employer to ensure the health, safety and welfare at work of all his employees.

-The Factory Act 1961: This Act also deals with health and safety at work. The general rule under the Act is that every dangerous part of any machinery shall be securely fenced and that all floors, stairs and gangways must be of sound construction and properly maintained.

-Act preventing discrimination: Several Acts prevent all sorts of discrimination in employment. The Employment Act 1989 states the cases in which there may be discrimination with a view to protecting mainly women and children. The Sex Discrimination Act 1975 and 1986 prohibit discrimination on the ground of sex in recruitment and selection of employees and once in employment. The race Relation Act 1976 fills the same purpose on the ground of race.

The case in the United States of America

The United States being a federal state, there is no unified legislation. There are federal laws and state laws governing labour relations. However, their purpose is similar to those found in Britain. Many aspect of labour relations come under the National Labor Relations come under the National Labor Relations Act the enforcement of which is supervised by the National Labor Relations.

Termination of the contract of employment

Dismissal: When an employer dismisses an employee, he must send the employee a letter of dismissal and give the reasons for dismissal; which can be for example lack of capability or conduct. If the employee disagrees, he/ she can sue the employer before an Industrial Tribunal for unfair dismissal. The remedy can be the reinstatement of the employee or the employee can be awarded compensation.

Redundancy

When an employee is made redundant, he/she is entitled to a redundancy payment. The procedure followed for handling redundancies must be fair. If not, the employee can sue for unfair dismissal.

Other methods

By notice

A contract of employment can be brought to an end by either party giving notice to the other in accordance with the contract of service.

By agreement

The parties can terminate the contract as long as they agree on the terms and conditions.

ACTIVITIES

Activity one: Read the text and give short answers to the following questions:

1.What is a contract? List the terms included in it.

2.What are the duties included in a contract of employment?

3.List and define the main Acts governing Employment

4.Explain how a contract of employment can terminate?

5.Explain the particularity of the American Legislation?

Activity two: Matching

Match each word from column A to its meaning in column B

Example: 12.m

Column A

Column B

1.Ground

a-Licencié pour raison économique

2.To dismiss

b-Licencier

3.to sue

c-Licenciement abusif

4.On the ground of

d-base légal

5.Compensate

e- Réintegration

6.Unfair dismissal

f-Poursuivre

7.Reinstatement

g-Indemnité de licenciement

9.Compensation

h-Indemnité pour licenciement éconolique

10.Redundancy

i-Licencier

11.Redundancy payment

j- Indeminiser

Activity three: Read the text aloud

Activity four: Translation

Translate the following passage: An employer has a duty…..security contributions.

Activity five: Write about contract of employment( 20 lines max).

CONCLUSION

Law provides a rich source of scholarly inquiry into legal history, philosophy, economic analysis and sociology. Law also raises important and complex issues concerning equality, fairness, and justice. There is an old saying that 'all are equal before the law.'.

The author Anatole France said in 1894, "In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets, and steal loaves of bread." Writing in 350 BC, the Greek philosopher Aristotle declared, "The rule of law is better than the rule of any individual." Mikhail Bakunin said: "All law has for its object to confirm and exalt into a system the exploitation of the workers by a ruling class". Cicero said "more law, less justice". Marxist doctrine asserts that law will not be required once the state has withered away.

As we can notice, law plays a capital role on the socio- economic, cultural and political levels. From the natural law to the social contract, the application of law has the sole view of the well being of man. And no man is supposed to ignore the law in society.

BIBLIOGRAPHY

Martin, Jacques., Business Administration English. Anglais de la Gestion, Edition Marketing, Paris, 145 pages, 1993.

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