Bar Part I Legal System cheat sheet

Hierarchy of norms: constitution > statutes and treaties > delegated legislation > case law interpretation > custom and general principles; a lower norm conflicting with a higher norm is inapplicable.

Statute prevails over case law; a court may interpret but not displace clear statutory text.

Delegated legislation is valid only within the enabling statute's scope, procedure, and purpose; excess of power renders it void.

Custom applies only where written law is silent, the practice is long-standing, general, and consistently observed, and it is accepted as binding.

General principles of law (good faith, unjust enrichment, no liability without fault) fill gaps and guide interpretation but yield to statute.

Treaties bind the state internationally; domestically they take effect per constitutional rules on ratification and publication.

Lex specialis derogat legi generali; lex posterior derogat legi priori - apply specialty first, then chronology, among norms of equal rank.

Interpretation methods in order: literal text, systematic context, purpose, then travaux préparatoires as subsidiary aid.

Constitution is the supreme norm: any act contrary to it is invalid; constitutional review is typically concentrated in a constitutional court or reserved to a supreme court chamber.

Separation of powers: legislative (rule-making), executive (implementation), judicial (adjudication); each organ may not exercise another's core function.

Legality of administration: every administrative act must have a legal basis, pursue a lawful purpose, and respect proportionality.

Fundamental rights bind all public authority and, where the constitution so provides, have indirect horizontal effect between private parties.

Proportionality test: legitimate aim, suitable means, necessity (least restrictive), and balancing in the narrow sense.

Equality: like cases treated alike; distinctions require objective and reasonable justification proportionate to the aim.

Rule of law requires publicity of norms, non-retroactivity of criminal and punitive provisions, and access to an independent tribunal.

Emergency powers must be time-limited, subject to parliamentary control, and cannot suspend non-derogable rights.

Jurisdiction has three dimensions: subject matter (ratione materiae), territory (ratione loci), and person or amount (ratione personae/valor).

Competence is the court's legal power to hear a specific case; lack of jurisdiction is a matter of public order, raised at any time and examined ex officio.

Ordinary courts hear civil and criminal matters; administrative courts review public-body acts; constitutional court handles norm review and rights complaints.

Territorial rules in civil matters: defendant's domicile as general forum; contract (place of performance), tort (place of harm), property (situs) as special fora.

Forum non conveniens or lis pendens rules prevent parallel proceedings; first-seised court generally retains control within integrated systems.

Hierarchy of instances: first instance, appeal (law and sometimes fact), cassation (law only); remand to a lower court follows quashing.

Recusal is mandatory where a judge has a personal interest, prior involvement, or relationship with a party; breach vitiates the judgment.

Arbitration excludes ordinary court jurisdiction where a valid arbitration agreement covers the dispute, subject to review of the award.

Burden of proof: the party asserting a fact must prove it; the other party benefits from the failure of proof (actori incumbit probatio).

Standard of proof in civil matters is the balance of probabilities or high probability, lower than the criminal standard beyond reasonable doubt.

Admissibility: relevance plus lawfulness; evidence obtained in violation of fundamental rights may be excluded proportionally.

Documents, party testimony, witness evidence, expert opinion, inspection, and presumptions are typical means of proof; written evidence generally prevails over testimony.

Res judicata attaches to the operative part of a final judgment and bars re-litigation of the same claim, parties, and cause.

Default judgment requires proper service and expiry of the defence period; the defendant may later challenge within a strict time limit.

Interim measures (attachment, injunction) require fumus boni iuris and periculum in mora; they are provisional and do not decide the merits.

Judgment must be reasoned; failure to address a decisive argument is a ground of appeal or cassation.

Legality of prosecution: no crime or punishment without a prior statutory definition (nullum crimen, nulla poena sine lege).

Presumption of innocence places the burden of proof on the prosecution; doubt is resolved in favour of the accused (in dubio pro reo).

Rights of the accused: information of charges, access to a lawyer, adequate time and facilities, interpretation, silence, and appeal.

Coercive measures (detention, search, seizure, interception) require a judicial warrant or immediate judicial review within a statutory period.

Exclusionary rule: evidence obtained through torture or serious violation of rights is inadmissible; lesser violations trigger proportional balancing.

Chain of custody and authentication are required for physical and digital evidence; breaks in custody affect weight.

Ne bis in idem bars second prosecution for the same facts; double jeopardy protection applies across integrated jurisdictions.

Time limits for investigation and pre-trial detention are mandatory; expiry compels release or termination of proceedings.

Valid contract requires capacity, consent free of defect, certain object, and lawful cause; defect of consent (error, fraud, duress) permits annulment.

Offer plus acceptance forms the contract at the moment acceptance reaches the offeror; revocation must arrive before or with acceptance.

Breach remedies: specific performance, cure, price reduction, damages (expectation interest), and termination for material breach.

Damages cover loss suffered and gain foregone, limited by foreseeability at conclusion and by mitigation; fault-based in delict.

Force majeure requires unforeseeable, irresistible, external event; it suspends or excuses performance but does not create a right to damages.

Solidary liability: each debtor liable for the whole; contribution among co-debtors is pro rata unless otherwise agreed.

Unjust enrichment requires enrichment, impoverishment, absence of cause, and no other remedy; restitution is limited to the lesser amount.

Limitation periods extinguish the action, not the right; they begin when the creditor knows or should know of the damage and debtor.

Actus reus requires conduct (act or culpable omission), causation, and a result where the offence so requires; mere thoughts are not punishable.

Mens rea levels: intention (dolus directus, indirectus, eventualis) and negligence (conscious or unconscious); dolus eventualis means foreseeing and accepting the risk.

Causation is tested by conditio sine qua non, then limited by objective imputation (foreseeability, protective purpose of the norm).

Justifications negate unlawfulness: self-defence (proportionate, necessary, against present unlawful attack), necessity, consent, lawful authority.

Excuses negate culpability: insanity, minority, duress, mistake of law where unavoidable; mistake of fact negates intent.

Attempt is punishable where the actor has the intent and begins execution; voluntary abandonment before completion excludes punishment.

Participation: perpetration (direct, co-perpetration, indirect via another), instigation, and aiding; each participant's liability is assessed individually.

Corporate criminal liability attaches where an organ or representative commits an offence for the entity's benefit; penalties include fines and compliance orders.

Administrative act = unilateral, authoritative decision by a public body on a concrete case under public law; it is presumed lawful until annulled.

Grounds of review: lack of competence, defect of form or procedure, misuse of power, and violation of law including proportionality.

Standing requires a personal, direct, and legitimate interest affected by the act; associations may act where statute allows.

Time limits to challenge are short and peremptory (often 30–60 days from notification or knowledge); expiry makes the act final.

Effects of annulment are generally ex tunc; the court may order the administration to restore the position or pay compensation.

Silence of the administration beyond a statutory period may be treated as an implied refusal, challengeable in court.

Full jurisdiction review covers facts and law for sanctions and rights; planning discretion is reviewed for procedural and substantive limits only.

Public procurement and licensing decisions are subject to mandatory pre-litigation review or standstill periods in many systems.

Legal personality: a company acquires it on registration; shareholders' liability is limited to their contribution save for abuse of the corporate veil.

Corporate organs: general meeting (reserved matters, appointment, accounts), board (management), auditor; conflicts of interest require disclosure and abstention.

Directors owe duties of care and loyalty; the business judgment rule shields informed, disinterested decisions taken in good faith.

Share transfers: registered shares transfer by endorsement and registration; the company may refuse only on statutory grounds.

Capital maintenance: distributions only from distributable profits; unlawful distributions must be repaid and may trigger director liability.

Insolvency: directors must file when liabilities exceed assets or debts are due; wrongful trading exposes them to personal liability.

Commercial transactions: good-faith purchaser protection, retention of title, and set-off rules govern sale of goods and security.

Competition rules prohibit cartels, abuse of dominance, and merger without clearance; fines are turnover-based and contracts void.

Duty of loyalty: the lawyer must avoid conflicts of interest; a former client's confidential information may bar a new adverse mandate.

Confidentiality covers all information learned in the mandate and survives termination; disclosure is permitted only with consent or legal compulsion.

Independence requires refusal of instructions that would make the lawyer an instrument of illegality or deception of the court.

Duty to the court prevails over client interest: no false evidence, no misleading submissions, disclosure of adverse authority where required.

Fees must be agreed in writing, be reasonable, and may not be contingent on the outcome in criminal matters.

Client funds must be held in a separate trust account; commingling and unauthorised withdrawals are disciplinary offences.

Mandatory withdrawal applies where the client persists in fraud or the lawyer's continued service breaches the law; withdrawal otherwise requires notice.

Advertising is permitted only if truthful and not misleading; solicitation of vulnerable persons and champerty are prohibited.

IRAC structure: Issue (legal question), Rule (applicable norm and precedent), Application (facts to rule), Conclusion (outcome and remedy).

Ratio decidendi is the binding rule necessary to the decision; obiter dicta are persuasive only.

Distinguishing turns on material factual differences; overruling addresses legal error; reversing addresses the same case on appeal.

Deductive reasoning applies the rule to facts; analogy extends a rule to similar cases; a contrario excludes unregulated cases.

Systematic interpretation reads a provision within its chapter and the whole statute; teleological interpretation pursues the statutory purpose.

Burden analysis: identify who bears the burden on each element, then test whether the evidence satisfies the applicable standard.

Counter-argument method: state the strongest opposing construction, test it against text and purpose, and explain why it fails.

Precedent hierarchy: higher courts bind lower ones; a court may depart from its own precedent only for strong reasons, stating them.