Abstract
This paper aims at providing an account of juridical acts that forms a suitable starting point for the creation of computational systems that deal with juridical acts. The paper is divided into two parts. This second part of the paper deals in some detail with the operation of juridical acts. Topics dealt with include: power and competence, capacity, form requirements, partial validity, avoidance and representation.
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Notes
This explains the common mistake (at least in the civilian tradition) that judges would apply a statute, instead of a rule created by means of that statute.
Notice that this is merely a terminological point, not a proposal on how the consequences of juridical acts should be established. The terminological point does imply, however, that if the interpretation of a juridical act is primarily focused on what are desirable legal consequences instead of the intention of the performer(s), the ‘juridical act’ is not treated as a juridical act in the doctrinal sense anymore. Whether this is good or bad is a different issue.
Sartor’s distinction between generic powers and potestative rights (2005, Chap. 22) goes in the same direction as the present distinction between powers and competences, be it that Sartor only considers powers based on norms, while the present notion of a power can both be based on norms and causal laws.
This does not exclude that sometimes judges can grant licenses as part of their decision making tasks, but that would be exceptional.
In this paper we will ignore this last possibility, because an adequate account of non-invocability requires a dialectical setting (Hage 2005a, 256/7).
In the Netherlands, it depends on the purpose of the prohibition whether the sanctions of the transgression include nullity of the juridical act.
It sometimes happens that a particular state of affairs cannot be changed by means of one kind of juridical act, but can be changed by means of another type. For instance, the interests of laborers are protected by mandatory law, which cannot be set aside in a labor contract, but which can be set aside through legislation. This may seem so obvious to lawyers that they would not pay attention to it. From a logico-analytical point of view, it is, however, important to notice that it depends on the kind of juridical act whether a particular pre-existing legal state of affairs can be modified. It is also possible that juridical acts need to take a special form (e.g. in writing) if they are to bring about particular consequences.
That this is impossible is because of the constraints imposed on legally possible worlds. See part 1, section 5.2.
It is also imaginable that the time from which the juridical act is considered invalid differs from both the time at which the act was performed and the time at which it was avoided, but I am not aware of any such situation.
The inclusion in an act description of the way in which the act was performed also comes in useful for the avoidance of certain variants of the contrary-to-duty paradoxes, such as Forrester’s paradox (gentle murder). These paradoxes result from the phenomenon that it is not a particular kind of action that is forbidden or prescribed, but ‘only’ a particular way to perform that action.
This analysis assumes that the propositional content of a juridical act is timeless, and not—for instance-that the buyer will after a week become of the sold good. If the propositional content contains a time clause, the legal consequences will normally only take effect after the time mentioned in the clause. I will further ignore this complication.
It is practically impossible to specify the relation between on the one hand competence and capacity to perform a particular juridical act and on the other hand the validity of this juridical act, without taking recourse to notions relating to defeasibility.
Notice that the mentioned invalidity conditions need not be the same in both rules.
It would be more realistic to assume that the laborer is entitled to at least ten holidays a year. This would complicate the formalization, however, without allowing the illustration of something that is important for the present purposes. Therefore, the unrealistic assumption is made that exactly ten holidays conform to the default regulation.
Because the issue of time is not at stake here, the clause about the time at which the juridical act was performed is skipped.
I use the traditional prolog-notation for the representation of lists with more than one element.
This is not a necessary condition in every legal system. Sometimes acts by an incompetent ‘representative’ are still ascribed to the allegedly represented person. This can be handled by means of counts as rules, analogous to the way in which competently performed representation is handled by means of counts as rules.
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Acknowledgments
The author thanks Torben Spaak and the anonymous reviewers for Artificial Intelligence and Law for their useful comments on the draft version of this paper. Hester van der Kaaijdeserves credit for influencing large parts of this paper through her work on her master thesis. The usual disclaimer applies.
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Hage, J. A model of juridical acts: part 2: the operation of juridical acts. Artif Intell Law 19, 49–73 (2011). https://doi.org/10.1007/s10506-011-9106-3
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DOI: https://doi.org/10.1007/s10506-011-9106-3