Understanding Law: Concepts and Definitions
What is Law?
Law is the policy and institutional order of human conduct in society, based on principles of justice. Its foundation lies in the social relations that determine its content and character. In other words, it is the set of rules governing social life and settling interpersonal conflicts.
Objective Law
Objective Law can be defined as the set of rules governing the coexistence of men in society. It comprises norms or sets of rules, which, on the one hand, grant rights or powers and, on the other, impose obligations.
Subjective Law
Subjective Law is the ability of a person to do or not do something, or to compel or inhibit another to do something. It is the power granted to persons under the law, allowing them to perform certain acts. This power is given to people by legal standards to satisfy interests that deserve legal protection. A legal right arises from a legal norm, which may be a law or a contract, through an agreement of wills that can enforce this right over another individual.
The Legal Norm
A legal norm is a rule of human behavior or management issued by the competent authority, with a criterion of value. Failure to comply with it results in a penalty. Generally, it imposes duties and confers rights.
Legal norms are:
- Heteronomous (imposed by another)
- Bilateral (versus the obligated to observe the rule, there is another empowered to compel compliance)
- Coercible (enforceable through tangible sanctions)
- External (compliance matters of the rule, not being convinced thereof)
Jurisprudence
Jurisprudence is the set of judgments of courts that serve as precedents. All sentences are under the law, although not a mandatory source of law. Jurisprudence is binding on the parties but not against third parties outside the dispute. When it has been rendered by the court of last resort, it makes a final decision. Jurisprudence is not binding on judges. Even if it is consistent and uniform, judges may depart from it and interpret the law according to their knowledge and belief.
Domicile
Domicile is the place where a person (natural or legal) resides with the actual or constructive intent to remain in it.
Capacity
In law, capacity is the ability to have rights and obligations, to exercise the former and enter the latter personally, and to stand trial in one’s own right.
Types of Contracts
- Unilateral Contract: This contract generates obligations for only one of the parties.
- Bilateral Contract: This contract generates reciprocal obligations for both parties (e.g., a sales contract).
- Consensual Contract: Both parties have formed consent, i.e., agree on the legal act to be performed (e.g., a contract for work).
- Real Contract: The legal act comes to life upon delivery of the thing (e.g., mutual lending of money).
- Solemn Contract: The legal act comes to life when the public deed is signed (e.g., the sale of real property requires a notary).
- Principal Contract: A contract that does not require any other legal act to exist within the law.
- Accessory Contract: A contract that requires another legal act (e.g., pledge, mortgage).
Requirements of Existence
These are necessary for the existence of a legal act.
Will
Will means the unequivocal expression of the wishes and intentions of a person; that is, it is part of a legal act.
Collateral
Collateral are guarantees based on tangible assets, where specific assets are specifically affected by the success of the operation. The subject of credit secures certain assets to meet its obligation.
Law of Persecution
The Law of Persecution signifies that things given as a guarantee in favor of a creditor remain encumbered even if they are in the power of third parties.
Right of Preferred Payment
Right of Preferred Payment means both the pledgee and the mortgagee are entitled to preferential payment on the proceeds of the mortgaged or pledged property.
Guarantees
Guarantees are those made available to the creditor; other assets ensure compliance with the obligation (e.g., bond, surety, penalty clause).
Penalty Clause
A penalty clause is one in which a person is liable to a penalty, which may consist of giving or doing something to ensure the fulfillment of a principal obligation in the event of non-execution or delay in delivery.