Derecho Civil II (GED70001)

General information

Type:	BAS	Curs:	2	Period:	S semester
ECTS Credits:	7 ECTS

Teaching Staff:

Group	Teacher	Department	Language
Ed: 1	Rebeca Carpi Martín	Derecho	ESP
Ed: 1	Sergio Llebaría Samper	Derecho	ESP

Group	Teacher	Department	Language
Ed: 2	Rebeca Carpi Martín	Derecho	ESP
Ed: 2	Sergio Llebaría Samper	Derecho	ESP

In addition to the knowledge gained in Civil Law I, the knowledge acquired in the other first year courses is particularly useful, especially those related to legal theory, sources of law and legal-private institutions.

Workload distribution:

Proposed training activity:
Classroom-based: 50%. Lectures 28% and Participatory classes 22%.
Guided activities and independent study: 50%.

Civil Law II allows students to prepare themselves in order to go on to make further progress through the consolidation offered by the other Civil Law courses (III and IV). Moreover, its two general theories (on contracts and obligations) provide the knowledge and foundations that are essential for tackling other disciplines (e.g. Commercial Law, Administrative Law, International Law, Finance Law). In short, this is a discipline that is closely linked to the core elements of the Spanish legal system (or any legal system), and it is this characteristic, along with its abstraction, its secular value and the scope it grants to civil liberty (private autonomy), which make it a key element of any attempt to undertake a rigorous, thoughtful and critical training in Law.

The course's specific aims will enable students that pass to:
1. Acquire a vision and global understanding of the programmed course content. Specifically:
a) Students are not asked to simply memorise content.
b) They have to assimilate the content through reflection, focused on conceptual relations while avoiding pigeonholing said content and giving greater emphasis to the foundations and iams of the norms and institutions than the form of an enacted law which is contingent by nature.
c) Students need to further explore the coure content of this course, selected by faculty based on the programme.
2. Develop their ability and use of appropriate techniques to deal with, read and understand legal texts.
3. Make progress in developing an instrumentalist and utilitarian vision of Law, while placing a special emphasis on its abstract nature and the exercise of autonomy in the area covered by the content of the course programme.

3. Taking decisions / making judgments

2. Application of knowledge to achieve results

1. STRUCTURE OF THEMATIC SECTIONS The Civil Law II course is organised into four parts that are grouped into three thematic sections: General Contract Theory (lessons 1 to 6), General Obligations Theory (lessons 7 to 13), and Specific Contracts (lessons 14 to 23). Reference will be made to the specific aims of each block before commenting on the activities and methods that are common to all three of them. Section 1 (General Contract Theory) It addresses a general part that has as its focus one of the most common legal businesses in modern society. Beginning with the theory of the contract it enables us to apply abstraction to the study of obligation. In this first section students have to attain an understanding of the genesis and structure of the contracts, its legal function and the treatment of its pathologies. The importance and representative nature of sale/purchase and donation contracts means that lessons 14 to 16 are addressed and considered in relation to the second section. The rhythm of the course should allow us to have (approximately) completed this first section in November. Section 2 (General Obligations Theory) It addresses a general part of the course, which means that it is essential for it to be learnt in order to address other sections, whether general or specific, linked to it. In this second section students must attain a dynamic and unitary understanding of the birth, development and extinction of the obligatory legal relationship. Of special importance is how the tension between creditor's interests (the right to satisfaction), and that of the debtor (the right to be released from obligations) are resolved through a functional and critical perspective. The framing of the obligation within a contractual relationship (which is the most common sort) will enable the understanding of its dynamic. The rhythm of the course should allow us to have (approximately) completed this second section by February. Section 2 (Specific contracts) This section is less intense, which is justified so long as the two previous sections are learnt well: the better they are understood the easier the understanding of any particular contract will be (and vice versa). As has been stated above, due to their importance as representative icons of the rest, the sale/purchase contract (lesson 14) and the donation contract (lesson 16) will be addressed in the "general part".

2. I. GENERAL THEORY OF THE CONTRACT LESSON 1. THE CONTRACT. REQUIREMENTS (I): CONSENT. Concepts and phases. The principle of private autonomy. Contractual typicality and atypicality. Contract elements and requirements. Capacities and prohibitions. Preliminary processes: negotiations and rupture. Contract structure and perfection. Will and declaration of the parties: nonconformity and vitiated consent. The consensual principle: structure and documentation. LESSON 2. CONTRACT REQUIREMENTS (II). OBJECT AND CAUSE. Contract object. Presentation (remission). Contract cause: 1. approach; 2., concept; 3. causal flaws, in particular, simulation. Causalisation due to accidental elements: 1. unilateral, bilateral and multilateral; 2. onerous and gratuitous; synallagmatic; 3. commutative and random; 4. obligatory and for transmission; 5. negotiation and adherence; 6. civil, mercantile and consumption; 7. declarative and adherence; 8. complex and conjoined. LESSON 3. CONTRACT INTERPRETATION AND INTEGRATION. Interpretation: concept and function. Interpretative principles criteria and means. Integration: self and hetero-integration. Qualification. LESSON 4. CONTRACT EFFECTIVENESS. The principle of finality: foundations of finality and unilateral waiver. Objective contract modification: change in circumstances. Special links: 1. pre-contract; 2. promise of contract; 3. option contract. Principle of relativity: 1. third-party beneficiary contract; 2. contract transferal; 3. sub-contract. LESSON 5. CONTRACT NULLITY AND INEFFECTIVENESS. Categories. Nullity: 1. concept and foundation; 2. cases; 3. characteristics; 4. action; 5. conversion. Annullability: 1. concept, foundations and causes; action; 3. validation. Consequences of nullity: 1. partial nullity; 2. Action for restitution; 3. other effects. Recindment in the Spanish and Catalan civil codes. Other causes of ineffectiveness (termination, revocation, suit, waiver, mutual dissent). LESSON 6. ADHERENCE AND CONSUMPTION CONTRACTS. Categories and concepts. Contracts with general conditions: 1. concept; 2. adherence; 3. controls: regarding incorporation, interpretation and content (abusive clauses): 4. Registry of Contract General Conditions.

3. II. EFFECTS OF THE CONTRACT: THEORY OF OBLIGATIONS LESSON 7. THE OBLIGATION: CONCEPT AND STRUCTURE. The (civil) obligation. The principle of universal asset liability. Natural obligation. The sources of obligations. The subjects: 1. capacity; 2. organisation of plurality: several and joint; 3. passive, active and mixed solidarity. The object: 1. prestation; 2. generic and specific obligations; 3. alternative and optional obligations; 4. pecuniary prestation; interest debt. LESSON 8. THE FULFILMENT OF THE OBLIGATION. The payment: concept, function. Subjects: debtor and creditor. Objective requirements. Giving in payment ("datio in solutum"). Payment elements: 1. place; 2. time (expiry, liquidity and enforceability); 3. expenses. Effects: 1. payment allocation; 2. Surrender of goods by a debtor to its creditors ("cessio bonorum"). LESSON 9. NON-FULFILMENT OF THE OBLIGATION. Meaning and types of non-fulfilment. Debtor arrears. Creditor arrears. Allocation criteria: 1. fraud and negligence; 2. unforeseeable events of force majeure (Acts of God); 3. subsequent impossibility of the prestation. Recourse against non-fulfilment: 1. obligatory fulfilment; 2. fulfilment in an equal manner; 3. compensation for damages and losses; 4. resolution in the synallagmatic obligation. LESSON 10. CREDIT PROTECTION. Pressure to comply: 1. the deposit (down payment); 2. the penalty clause; 3. The power to withhold. The debtor's insolvency and bankruptcy proceedings: principles and criteria. Facilitating liability: 1. direct action; 2. subrogatory action; 3. Paulian or revocatory action. LESSON 11. MODIFICATION AND TERMINATION OF THE OBLIGATION. The so-called novation by amendment. Credit transfer: assumptions. Passive transfer and change of debtor. Causes of termination: 1. compensation; 2. confusion; 3. remission; 4. novation.

4. III EXTRACONTRACTUAL RESPONSIBILITY LESSON 12. EXTRA-CONTRACTUAL LIABILITY. Concept and domain. Contractual and extra-contractual liability. Liability assumption: 1. action or omission; 2. damages; 3. chance; 4. the allocation criterion: subjective liability, exemption, objective liability and risk liability. Action to claim liability: 1. legitimation and exercise; 2. compensation for damages. LESSON 13. LIABILITY FOR THIRD-PARTY ACTIONS. SPECIAL REGIMES. Liability for third-party actions: foundation. Liability of parents and guardians; of schools, of entrepreneurs. Exemption and right of recovery. Special cases and systems.

5. IV. SPECIAL CONTRACTS LESSON 14. CIVIL SALES/PURCHASES. Concept and characters. Subjective and objective elements. Contents (I): The buyer's obligations: [1] Fulfilment. [2] Non-fulfilment: resolution. Contents (II): The seller's obligations: [1] delivery; [2] The anomalous delivery: differences and errors in land measurements; liability for remedy of warranties of title; liability for remedy of hidden defects; liability for remedy of hidden liens. The transfer of risks. Plurality of sales. LESSON 15. SPECIAL SALES AND TRANSFERS. Mercantile sales/purchases: [1] Area; [2] formation; and [3] effects. The international purchas of goods. Transfers. Cession of lots in exchange for future construction. LESSON 16. GIFTS/DONATIONS. Concept, characters and nature. Subjective and objective elements. Perfection and form. Effects. Special gifts: [1] "Mortis causae"; [2] conditional or with time limit; [3] remuneratory; [4] modal; [5] with reversion clause; [6] with reservations on the right to use; and [7] indirect. The revocation: causes and effects. The reduction: referral. LESSON 17. LEASING/RENTING. Concept, characters and elements. Contents and termination. The urban lease contract: [1] special legislation; [2] residential lease contract; [3] lease for other uses. The rural property lease contract. The "leasing" contract. LESSON 18. WORKS CONTRACT. Concept and subjects. Context of the Spanish Civil Code and of Law on Urban Planning and Construction. Object and contents: [1] the contractor's obligations; [2] the principal's obligations. Termination and defective execution (ruin) of the work. LESSON 19. MANDATE. RENDERING OF SERVICES. Concept and characters. Types. Structure: capacity, object and form. Obligations of the principal and the agent. Efficacy of the mandate. Termination. Revocation and waiver. mercantile commission contract: structure and effects. The mediation contract. The rendering of services contract. LESSON 20. LOANS. DEPOSIT. The loan: concept. Mercantile loan. The gratuitous loan. The revocable loan. The mutual loan (loan with interest). The deposit: concept. Characteristics. Mercantile deposit. Car park contracts. LESSON 21. CIVIL SOCIETY. Concept, characters and types. Constituent elements. Efficacy in external and internal relations. Termination. The sharecropping contract. Integration contracts. LESSON 22. CONTINGENCY AND DISPUTE RESOLUTION. The aleatory contract: [1] life annuity; [2] the regular pension contract; and [3] Gambling and betting. The transaction: budgets, types and effectiveness. Constituent elements. Arbitration and the arbitration agreement. LESSON 23. GUARANTEES (SURETY). Concept and characters. Types. Subjects, object and form. The guarantor/creditor and guarantor/debtor relationships. Termination. Joint and several bond and co-suretyship. Sub-suretyship. Atypicality and new types of guarantees (letter of sponsporship and on-demand guarantees. LESSON 24. QUASI-CONTRACTS. Concept and foundation. Improper payments. Unjust enrichment. The management of third-party businesses without mandate.

Activities and methods used on the course

The organisation of the course and activities used will be applied across the three sections. The training offered by this course depends on students' individual commitment to learn for themselves combined with the classroom based activities. The classroom based activities are divided into lecture classes and participatory classes (practical classes [P], contractual technique [CT] and hermeneutics [H]). With the support of the bibliography and other course materials, an on-going and evolving commitment to the learning process throughout the course is essential to achieve the course's training aims.
The participatory classes will begin once students have acquired the minimum foundation that enables them to make a contribution to them (approximately in the second fortnight of October). The rhythm of the classes and other activities will mark the rhythm of students' study and preparation activities. Students should undertake their own independent preparation of the course content in accordance to the established rhythm as well as the materials that the lecturers set and the instructions they give. This independent preparation should be undertaken so that students are prepared to understand and participate in the weekly lecture sessions (they should attend classes having completed the set reading and attained a basic understanding of the topic). The activities (which will be set out below) will all be classroom based, and so the assessment of any one of these -and from there on- requires students to give without fail an authentic demonstration of their ability to the lecturers.

With regard to the course materials, and independent of any instructions, dossiers or other hand-outs provided by the lecturers, the student must work on and develop their own file of course materials based on one of the text books (see bibliography) complemented with all the information and knowledge provided by and acquired through the range of activities (see section 7.c). To facilitate students' independent study and preparation, faculty will provide them with a Content Learning Orientation Map (MOAC in Spanish). The latter provides tips to guide students' effective study/learning. However, it not only serves to guide and plan students' learning/study but to also put it into practice. Thus, every lesson includes a questionnaire that students should reflect on and answer. Becoming familiar with and completing it serve as an excellent indicator to see if students are on the right path or, contrarily, if their learning has to be further developed.

7.b. Activities for the development of the specified competences

The class room based activity is organised in accordance with the development of four activities. Together with the more classic "lecture class" guided activities are added to foster interest in learning and to consolidate the rate of learning (learning activities: P, CT and H). These latter three teaching modes make up what are called the "participatory classes", which, assessed according to a common grade, will be undertaken on Fridays from a specified date onwards in two subgroups for each section (morning and afternoon); the learning process provided by these classes is essential for the development and assessment of the course. The content of these classes will be as follows.

1. Lecture classes

These will take place on Thursdays, although it should be noted that until the second week of October they will also take place on Fridays. The group will not be divided for the lecture classes.
The lecture classes will be delivered by the lecturer, who will address a topic that corresponds with one of the set readings (as part of the chronological development of the course) and addresses one or a number of crucial issues in a critical, searching and reflective manner. It is not a case of explaining the sections of the course as used to be done, rather of exploring the complexity of specific aspects through the brief presentation of a problem, a case study, an historical account or the posing of a conceptually transversal principle. This enables the legal complexity to be addressed on the basis of the basic knowledge the students bring to class having undertaken the prior independent study. For this reason participation, discussion and resolution of queries will also be encouraged.

2. Practical activities

These consist of three activities that make up the participatory classes, which will take place on Fridays from the second fortnight of October (approximately) onwards. As a rule for all the participatory activities the class will be divided into two subgroups, for each of which a lecturer will be responsible for their participatory activities throughout the course. When these activities are due to take place students will be given advance notice of the practical activity as well as the questions to be addressed (in a document no more than a page in length). Students will prepare the activity independently so as to be able to comment on it and discuss it in a participatory manner on the set date. In each session the lecturer will assess the degree of contribution and interest and above all the quality and rigour of students' contributions to the discussion and their completion of the practical exercise.

3. Contractual technique

This activity will be undertaken in the Friday participatory classes, for which as indicated above the group will continue to be divided into two subgroups. The aim of this activity is to learn and demonstrate what has been learnt through oral expression and writing. For these sessions students will be provided with in advance a sample of what is referred to as the "Achilles Document". It is a text that consists of a style clause (or not), a declaration of unilateral intent, all or part of a contractual document, etc., which includes errors and mistakes in terms of spelling, syntax and legal content. Following the exercise completion guide students will be tested individually and asked to identify the text-s flaws and correct them appropriately. The lecturer will assess each student's contribution.

4. Hermeneutics

This is the final activity that will be undertaken in the Friday sessions and for it the group will again be divided into two subgroups. The aim of this activity is reading comprehension and the initial development of a complex aptitude for the interpretation of positive precepts. It does not seek to provide a commentary on the precepts, but rather to understand their meaning by applying specific techniques for legal arguments with regard to, above all, the detection and resolution of loopholes, revelation of antinomies, and every sort of error or lapse that arises in this written regulation. Students thereby contribute to delimiting the texts legal significance. It constitutes a complete engagement with legal language. Students will work individually on the set precepts and then be tested on their hermeneutics. They will be graded.

Development of competences through the activities.

Activities that contribute to the development of competence 1: practical activities, contractual technique and hermeneutics.
Activities that contribute to the development of competence 2: practical activities and contractual technique.

7.c. Independent study

To undertake the training offered by the Civil Law II course in an adequate manner it is fundamental that students know how to develop their independent study and learning of the course content. For this purpose they have the recommended bibliography, the course materials that will be provided and the content of the lecture and participatory classes that undertake and integrate the teaching programme. It is essential that students develop an awareness that this independent study and learning requires their on-going attention and dedication to the course and that they should attend the lecture classes having completed the necessary preparation of the lecture classes (by following the lecturers instructions). With the aim of facilitating independent study students will be given appropriate guidance from the lecturer.

ASSESSMENT BREAKDOWN

Short bibliography:
Any of the following text books suffices to complete the short bibliography:
DÍEZ-PICAZO, Luis, & GULLÓN, Antonio: Sistema de Derecho Civil. II. 9th edition. Tecnos. Madrid, 2005 (reprint).
LACRUZ BERDEJO, José Luis (et al.): Elementos de Derecho Civil. II, 1st and 2nd. 4th edition. Dykinson. Madrid, 2007 and 2009 (respectively).
LÓPEZ, A., MONTÉS, V.L., ROCA, E. (et al.): Derecho Civil. Derecho de obligaciones y contratos. Mª Rosario Valpuesta & R. Verdera (editors). Tirant lo Blanch. Valencia, 2001.
MARTÍNEZ DE AGUIRRE ALDAZ, Carlos (el al.): Curso de Derecho Civil. II. 2nd edition. Colex. Madrid, 2008.

Please check to see whether a more recent edition or reprint of the desired book is available.

Group	Teacher	Department
Ed: 1	Rebeca Carpi Martín	Derecho
Ed: 1	Sergio Llebaría Samper	Derecho

Group	Teacher	Department
Ed: 2	Rebeca Carpi Martín	Derecho
Ed: 2	Sergio Llebaría Samper	Derecho