Private Law

Private law is the name commonly given to that vast area dealing with the legal relations between persons. It covers matters of pure status (marriage, divorce, kinship and so on); matters involving assets of some sort (property, succession, contracts); and commercial activities in the wider sense. Its essential feature is that the participants are presumed to be juridically equals (unlike the public law structure where relations are hierarchical) so that one cannot give orders to another, unless so authorized under some previous contractual or family arrangement. Its essential technique is that much of it is not automatically binding (jus cogens in lawyers' language) but serves to cut down the cost of legal transactions by providing a set of patterns which citizens may use if they wish. For instance the intestacy rules operate only if a person dies without having made a will. The rules on sale, lease, loan, partnership and so on are there as models which can be adopted in full, or modified if the parties so desire.

In countries of the Civil Law group these three areas of status, assets, and business may be dealt with in separate codes of Family Law, Civil Law (using the word in a narrower sense) and Commercial Law. In the common-law world the basic system is laid down by case-law, although there are many modern statutes which often re-state and systematize the work of the judges.

Despite the many differences on the surface and in particular detailed rules, the overall structure of private law in both civil and common-law systems can be stated quite simply in a formula derived ultimately from the Roman jurists: private law deals with persons, property, obligations and liability.

Persons

Private law defines who counts as a person able to enter into legal relations and deals with their legal capacity (so as to protect the very young or the mentally ill). Since the abolition of slavery, all human beings count as persons. Furthermore, these natural persons may set up other 'artificial' legal persons such as associations, foundations, and - most important - business corporations.

Property

All these persons may own property and hold it for its own sake (house, clothes etc) or as a business or investment (office blocks, factories, shares, savings accounts). Only the socialist systems attempted to prevent this second function of property by forbidding private persons to own 'the means of production'. The property involved may be tangible, and is often divided for legal purposes into immovable and movable (or 'realty' and 'personalty' in the obscure jargon of the common law). It may also be intangible, such as debts in the hands of a creditor, stocks and shares, copyrights, patents and so on. If the owners have full legal capacity (i.e. are sane adults) they may normally deal with their property as they please, subject of course to rules of public policy, zoning regulations and the like. They can deal with their property during their lifetime or by will, although many systems ensure that some of the deceased's property goes to near relatives.