1.2LEGAL PERSONS ARE SUBJECT TO PRIVATE LAW

• / 4

• / 4

Lecture 1 – What is private law? 3 / 4

1.2LEGAL PERSONS ARE SUBJECT TO PRIVATE LAW

IndividualsPrivate Institutions Government bodies Escape from Private Law ▪Allowance made for children oThey cannot enter into contracts unless over necessity but they are subject to tort oThey have no money and are not worth suing ▪Mental disabilities allow them to not enter contracts – still subject to torts Corporate ▪Subject to private law but not as individuals ▪Limited liability (affects how much money we can get from them) ▪Artificial constructs – they don’t exist ▪How do we know when they act to attract the consequences of private law?▪Company’s constitution –rules of operation – see them as a person ▪Federals, states, government agencies, government business enterprises similar organisations

▪Subject to private law:

people didn’t like them hiding behind separation of powers

▪State vs. Territories: states

are there since the constitution, federal governments cannot touch what state government do ▪By and against Crown Proceedings Act 1993 (Tas) s

5:

▪Section 1: “subject to this act”

– can pass other legislation to override this

▪Section 6: “no act shall be

binding on Crown/derogate from any prerogative right of the Crown unless express words are included therein for that purpose”

1.3ROLE OF PRIVATE LAW

*Steve Hedley, ‘Is private law meaningless?’ Embedded values ▪Corrective justice – justice between 2 individuals oNatural law, basis of civil law tradition oShould private law reflect morals?oRights theory: protection of personal basic rights – But conflict of rights? Philosophical in approach. What are rights?oInterpretive theory: descriptive, fitting theory to cases, tells us what law is, not what it should be, to encourage standards and consistency. Helps know what the law is, plan our behaviour around it, and check behaviour of judges. Fairness as we treat like cases alike.▪Distributive justice – look at broader community (see everyone is happy) oTool of economic efficiency, to allocate resources oBreach is determined by courts in terms of cost benefit analysis oPositivist law oProvide civil recourse ▪Tension between 2 (Andrew Robertson) oStart with corrective justice (remedy of private) oPublic policy concerns/distributive (no remedy, interest of state)

• / 4