Bar Part I Legal System flashcards

33 cards. Read the term and the definition here. The deck at the top of this page is optional.

Hierarchy of norms

Ordering in which the constitution prevails over statutes, statutes over delegated legislation, and all written norms over custom; a lower norm in conflict with a higher one is inapplicable.

Lex specialis rule

Where two norms of equal rank govern the same matter, the more specific provision prevails over the general one, even if the general rule is later in time.

Delegated legislation validity

Delegated legislation is valid only if the enabling statute authorises it, the prescribed procedure is followed, and its content stays within the statutory purpose and limits.

Proportionality test

A measure restricting rights is lawful only if it pursues a legitimate aim, is suitable, is the least restrictive necessary means, and survives balancing in the narrow sense.

Constitutional supremacy

All legislative, executive and judicial acts are subject to the constitution; unconstitutional norms are annulled or declared inapplicable by the body entrusted with constitutional review.

Non-derogable rights

Fundamental rights that cannot be suspended even in emergency, typically including human dignity, the prohibition of torture, and the core of fair trial guarantees.

Jurisdiction versus competence

Jurisdiction is the court's general power over subject matter, territory and persons; competence is its authority to hear the specific case, examined ex officio if lacking.

General forum rule

In civil matters the claimant normally sues at the defendant's domicile; special fora for contract, tort and property are available alternatives at the claimant's choice.

Cassation review

A supreme court reviews only points of law, not fact; if it quashes the judgment it remands the case to a different lower court for renewed decision.

Burden of proof

The party asserting a fact must establish it; if proof fails, the court decides against that party on the disputed element of the claim.

Res judicata

A final judgment on the merits bars a new action between the same parties on the same cause of action and object, ensuring legal certainty.

Interim measures conditions

Provisional attachment or injunction requires a plausible claim (fumus boni iuris) and a risk of irreparable harm (periculum in mora), and does not prejudge the merits.

Presumption of innocence

The prosecution bears the burden of proving every element of the offence; remaining doubt must be resolved in favour of the accused at trial.

Exclusionary rule

Evidence obtained through torture or grave violation of procedural rights is inadmissible; for lesser violations courts weigh the seriousness against the interest in truth.

Ne bis in idem

No person may be prosecuted or punished twice for the same facts; the protection extends to final acquittals and convictions within the integrated legal order.

Contract validity requirements

A contract is valid where parties have capacity, consent is free from error, fraud or duress, the object is certain and lawful, and the cause is lawful.

Force majeure

An unforeseeable, irresistible and external event that prevents performance excuses the debtor from liability and may suspend or terminate the obligation.

Expectation damages

Damages placing the creditor in the position it would have occupied had the contract been performed, limited by foreseeability at conclusion and the duty to mitigate.

Dolus eventualis

A form of intent where the actor foresees the prohibited result as a possible consequence of conduct and accepts or reconciles itself with that outcome.

Self-defence elements

Justification requires a present, unlawful attack, a defensive act, necessity of the response, and proportionality between the harm threatened and the harm inflicted.

Objective imputation

After factual causation is established, liability is limited to results falling within the protective purpose of the norm and foreseeable to a reasonable actor.

Aiding and abetting

Providing assistance to another's intentional offence without co-perpetration; the aider's liability is assessed on his own intent and contribution, often mitigated.

Administrative act definition

A unilateral, authoritative decision by a public authority under public law, determining a concrete case with binding effect on the addressee.

Grounds for annulment

Administrative acts are annulled for lack of competence, defective form or procedure, misuse of power, or violation of law, including breach of proportionality.

Standing to challenge

The claimant must show a personal, direct and legitimate interest harmed by the contested act; public-interest actions require an express statutory basis.

Corporate veil piercing

Courts may disregard limited liability where shareholders abuse the separate personality to defraud creditors or commingle assets, making them personally liable.

Business judgment rule

Directors who make an informed, disinterested decision in good faith with a rational business purpose are not liable for adverse outcomes of that decision.

Wrongful trading duty

Once insolvency is imminent, directors must file or take protective steps; continued trading increases personal liability for debts incurred thereafter.

Conflict of interest

A lawyer must decline or terminate a mandate where personal interest or a prior client relationship creates a risk of materially adverse effect on the client.

Professional confidentiality

The lawyer may not disclose information learned in the mandate, before or after termination, absent client consent or a legal obligation to speak.

Duty to the court

The lawyer's duty of candour to the tribunal prevails over client instructions; false evidence, misleading submissions and concealment of adverse authority are prohibited.

Ratio decidendi

The legal rule essential to the court's decision, which binds lower courts in later cases with materially similar facts within the same hierarchy.

IRAC method

A structured analysis stating the Issue, the applicable Rule, its Application to the facts, and the Conclusion with the remedy or outcome sought.