What is Private Law

What is Private Law
Private law is the body of law which govern the relationship between private
individuals. It covers various key areas of law; contracts, property, equity and trusts,
torts, succession and family law are the most imperative of these areas. While a
significant number of the fundamental standards of private law stem from the judge-
made common law, the private law also progresses as legislative enactments that
expand upon or rebuilds, the common law. A number of relationships administered by
private law are isolated in nature; for example, the family relationships. However, the
private law covers private relationships arising out of business and financial
transactions as well. Accordingly, the basic categories of private law can be illustrated
as follows (Figure 1).
The private law, sometimes called as civil law, is concerned with the duties and
obligations of private individuals towards each other. It is important to understand the
significant features of the private law, before exploring the contents of the private
law.
Features of Private Law

The body of private has its legal doctrines defined in legal teaching, the law in the
textbooks, legal enactments, and statutes. The private parties generally enjoy the
freedom to enter into a legal relationship with the other, while also being able to
mutually influence the contents of their legal relationship i.e. the rights and
obligations of each other. Thus, each party entering into a relationship under private
capacities can propose or disagree on what the other party might suggest; thus,
equality between the parties is adhered to, in a number of areas in the private law.
This area of law is termed private law or civil law since the parties involved are able
to act freely in their private interest as private individuals or citizens.
The private law is characterized by the evidential, procedural and doctrinal guidelines
that oversee any issue between particular parties: claimant, and defendant. The
claimant, the party who claims to have been wronged, brings an action against the
defendant, who is alleged to have committed a wrong. If the court discovers that the
defendant is in charge of wronging the claimant, the defendant is obliged to make
good for the claimant’s damage/harm, generally by providing a pecuniary
compensation or restitution.
In private law, the claimant is not ready to bring an action against anybody other than
the defendant. Thus, private law forms a relationship between the claimant and
defendant for having purportedly wronged the other. The claimant and defendant,
under the private law, can be private individuals, business organizations or any party
acting in the capacity of a private person, and such disputes must have occurred only
between the claimant and defendant, where they could either confirm or repudiate the
alleged wrongdoing. Thus, the state’s role in the area of private law is limited to
providing a systematic mechanism for resolving disputes between the claimant and
defendant. Hence, a civil litigation would be initiated by an aggrieved private person
(citizen) and not by the state.
However, the state as the legislator sets out the legal framework including the legal
principles and rules that govern the private relations among individuals. These
doctrines of private law are formed by mandatory and optional standards in forming
such private relations. The non-compulsory standards of private law allow the parties
to determine the rules that can be applicable in their relationship. For instance, in
contract law, the legislative enactment sets out the general guidelines and the cases
are generally governed by these provisions, especially in situations where the parties
may not be able to accommodate all possibilities in their agreement or predict certain
outcomes of the contract. However, the parties have the freedom to formulate their
contract on the terms agreeable to the parties within the normative rules provided by
law.
Another instance where the state plays a role in the private law would be instances
where one or more of its organs carry out certain functions under a private capacity.
Such actions of the state organ/institution would be governed by the private law. For
example, if a state department makes a contract with a private supplier for certain
goods, the body of private law would be applicable to disputes arising out of this
contract. Here, it is important that the state acts in the capacity of a private legal
person or company and its relationship with the other are private in nature as if it were
between private bodies.
Remedies / Sanctions in Private Law
The remedies of the private law are prescribed for the injured party, who claims to
have been wronged, and the law tries to administer justice to the injured party
(restitution or monetary compensation), instead of imposing a penalty or a
disciplinary action. Most of the remedies in private law are of a pecuniary / monetary
nature and the party who has infringed the law needs to pay some amount of cash, as
determined by the courts, to the injured party and not to the state. These private law
classifications of remedies/sanctions include
1. Restitution (in integrum restitutio): The party alleged to have breached the law
will have to restore any matter to the /state condition as of the breach of law had never
happened. For example, if the supplier of certain goods hasn’t received the payment
for a buyer on a specified date as stated in their contract, the court might order the
buyer to return the goods bought to the supplier since the buyer had breached the
contract.
2. Damages/ Compensation: An amount determined by the court will have to be paid
to the other in order to compensate for the actual damage or loss of profit by the
injured party.
3. Returning Enrichment: Where the party who has breached the law has benefited
unjustly it is known as unjust enrichment. The court will determine the amount for
unjust enrichment to be paid as compensation.
4. Specific Performance: At times, the private law may recommend a remedy to be
of a non‐pecuniary nature. In these circumstances, it is not the payment of money that
is required but the other party ought to do or give up something i.e. specific
performance. For example, if the supplier of certain goods had breached the contract
to deliver “X”, they will be ordered by the court to honor the contract and have the
good “X” delivered to the buyer.
The law particularly lays down the use of every one of these types of remedies: it
portrays the circumstance in which one or more of the remedies can be made
available, and the conditions whereupon the sanctions might be granted to the harmed
party.
Sources of Private Law

A number of sources of private/civil law can be found throughout the history. There
is evidence to indicate that various civil codes have been used to govern the private
relationship of people in the past. The Code of Hammurabi in the Roman Corpus Juris
Civilis is one such example. Similarly, religious and personal laws have also played a
role in laying down the principles to administer the private relationship of people,
throughout various aspects of life such as governing family, marriage, property, trade,
etc. Some of the religious codes that have regulated private human life include the
Canons of the Apostles, the Qur’an, and Sunnah or the Code of Manu.
In civil law jurisdictions, attempts have been made to codify and bring a single
legislation that covers various fields of private law. The Austrian Civil Code (1812),
the French Civil Code (1804), Swiss Civil Code (1904) are some illustrations of such
single civil law models, incorporating a number of areas of private law. Today, the
use of the civil code is widely seen in many countries like Turkey, Japan, South
Korea, and some South‐American countries. Australia, New Zealand, South Africa,
India, Pakistan, Malaysia, Singapore, Sri Lanka, Ghana, Cameroon and Hong Kong
too have statutory laws enacted to govern various areas of private law.
Reference:
“Private Law.” UNSW Law. Accessed August 23, 2016.

Lucy, William. Philosophy of Private Law. Oxford: Oxford University Press, 2007.
Palásti, Gábor P. Lecture Notes on the Introduction to Private/civil Law. PDF. 2011.

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What is Private Law

Features of Private Law

Sources of Private Law

“Private Law.” UNSW Law. Accessed August 23, 2016.

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