Václav Janeček

Commerce in some data is, and should be, limited by the law because some data embody values and interests (in particular, human dignity) that may be detrimentally affected by trade. In this article, drawing on the Roman law principles regarding res extra commercium, we investigate the example of personal data as regulated under the EU Charter and the GDPR. We observe that transactions in personal data are not forbidden but subject to what we call a dynamically limited alienability rule. This rule is based on two dynamic variables: the nature of data and the legal basis for commercially trading such data (at primary or secondary level). Accordingly, in order to deal with such dynamism and the uncertainty it poses, we propose a general two-stage reasonableness test that should help legal practitioners, judges and law-makers in considering when trade in data is illicit and who (if anyone) shall be held responsible for this mischief. Finally, we show how the two-stage test and the limited alienability rule can advance European contract law and help enforce legal principles associated with such data extra commercium in automated and autonomous data trading systems.

The monograph seeks to answer the questions of how juristic persons—as artificial legal entities with no distinct intellect or will of their own—can perform legal acts (i.e. engage in legal conduct) and in what way they can become legally liable (not only for their conduct). To develop these issues, the monograph explores the concept of a juristic person and this person’s legal acts from a general jurisprudential point of view, then from the perspective of fundamental rights, and finally from the viewpoint of contemporary law, with a particular emphasis on Czech law. The book addresses juristic persons’ legal acts not only in relation to substantive law, but also in respect of procedural rules that enable these persons to perform acts in civil proceedings. Several sections of the monograph deal with issues of liability and responsibility of juristic persons while analysing their “no-fault” and “fault-based” liability. The monograph also introduces a novel approach to vicarious liability of juristic persons. Finally, it explores juristic persons’ liability for administrative offences.

This note critically comments on the Court of Appeal’s decision in OMV Petrom SA v Glencore International AG [2017] EWCA Civ 195. By introducing a penal element to the enhanced interest rate pursuant to CPR Pt 36, the Court of Appeal has extended the justificatory reasons for those awards beyond compensation. This note argues that Petrom-like awards should not be ordered in the future and that the Civil Procedure Rule Committee should amend the CPR accordingly. One issue is that the Petrom award was based on analogical application of the CPR, which implies that the Court of Appeal’s reasoning was in fact not governed by CPR Pt 36. Another issue is that the existing common law principles—as the next best source of law for the Court of Appeal’s decision—do not support the ruling either. This is because, first, the Petrom award was made in respect of the defendant’s malicious defence even though malicious defence does not constitute a common law tort. Secondly, the penal element in Petrom functioned as punitive damages even though the existing common law principles regarding punitive damages prevent courts from making such awards in similar cases.

This paper explores why it matters that we distinguish between private and public reasons in their role of justifying reason for damages awards. The aim of this paper is to assess whether the test for legally protected interests differs in relation to private and public interests and, therefore, whether we shall seek to implement the distinction between private and public interests in our reasoning about damages awards. It is argued that the distinction matters and that two ideals of the rule of law (the rule of reason and the rule of authority) pose exceptional requirements on damages awards that can be justified by violations of public interests. The paper thereby suggests that we need a distinct category of public interest damages in the law of damages.

Commerce in some data is, and should be, limited by the law (data extra commercium) because some data embody values and interests (in particular, human dignity) that may be detrimentally affected by trade. In this article, drawing on the Roman law principles regarding res extra commercium, we investigate the example of personal data as regulated under the EU Charter and the GDPR. We observe that transactions in personal data are not forbidden but subject to what we call a dynamically limited alienability rule. This rule is based on two dynamic variables: the nature of data and the legal basis for commercially trading such data (at primary or secondary level). Accordingly, in order to deal with such dynamism and the uncertainty it poses, we propose a general two-stage reasonableness test that should help legal practitioners, judges and law-makers in considering when trade in data is illicit and who (if anyone) shall be held responsible for this mischief. Finally, we show how the two-stage test and the limited alienability rule can advance European contract law and help enforce legal principles of data extra commercium in automated and autonomous data trading systems.

This chapter outlines some of the key developments regarding publication and communication of legal rules and standards (i.e. legal information) to show that dissemination of legal information is reliant on how we design the entire model of its publication. In doing so, it analyses paradigmatic models of publication as they appeared in the prehistorical, historical, and hyperhistorical stages of human evolution. These models demonstrate how legal information was delivered to its intended addressees, i.e. to those who were expected to obey the published laws. It also demonstrates that the progress regarding these publication models was driven by efficiency and sustainability considerations. The currently prevailing model of publication is, however, inefficient and unsustainable due to an unnecessary multiplication of intermediaries facilitating communication of legal information. This problem is even more apparent in the context of increasing digitalisation of legal information and emerging information and communication technologies (ICTs). The chapter argues that, in this light, it is appropriate to consider revising the entire publication model and not only some aspects of it. An addressee-centric publication model is outlined as a potential solution to the problem. The proposed model requires active delivery of a relevant subset of digitalised legal information to its intended addressee in a similar way as targeted online advertising. Unlike the existing research that promotes personalisation of law (personalised legal information), this chapter advocates personalisation of the publication model.

The aim of this paper is to survey the methods of distinguishing between private and public law in a comparative perspective. Many scholars tried to answer the question of what amounts to private law and public law, almost as if the domains of public and private law were hermetically separated from each other. They tried to define the divide. At the same time, most scholars conclude that there is no single compelling distinction between private and public law. This paper tries to push these discussions further by trying to unravel a single method by which the moving target of the divide could be identified. To date, there has been no systemic exploration of the methods of distinguishing private from public law in English literature, although the distinction now has several important implications when it comes to legal remedies for public and private wrongs. By analysing cases and the literature, the paper unveils the existing English methods of distinguishing between private and public law, and suggests how we may advance them in the light of some continental methods and theories (mainly German).

A proper functioning of any legal system requires people to know the law. Our knowledge of the law, however, depends on how legal information are communicated. Currently, however legal information are communicated rather poorly. We are still missing opportunities that Big Data and algorithms offer in relation to how the law is published, disseminated, and accessed. This Chapter focuses on dissemination of legal information. It argues that we should strive for personalised dissemination. By highlighting and analysing examples from the history of legal publication, it argues that the shift to personalised dissemination of legal information does not pose a threat to the existing legal systems. Instead, it could enhance the overall efficiency and sustainability of our legal communication, increase our knowledge of the law, while reducing the total costs. The Chapter therefore makes a case for a new era in publication and communication of the law – the era of personalised dissemination of legal information.

This chapter advances two claims regarding vicarious liability. First, that every legal system must be capable of theoretically devising the idea of vicarious liability (as opposed to direct liability and responsibility). Second, that juristic persons and other artificial legal entities may be liable only vicariously for wrongs committed by other persons, who ultimately must be human beings. To cast new light on the concept of vicarious liability, this chapter analyses the changing relationship of the terms liability (in Czech: “ručení”) and responsibility (in Czech: “odpovědnost”) in the historical development of Czech law from the beginning of the 19th century until mid-20th century. This development was marked not only by radical changes in the posited law and by the problematic connections of the Czech legal terminology with the German one (especially with the terms Haftung and Verantwortung), but especially by the normative theory of law, internationally known especially thanks to Hans Kelsen’s writings. A peculiarity of the Czech tradition in the normative theory of law (analysed in this chapter primarily through the pioneering work of František Weyr, whose publications are mostly unknown in English-speaking countries) is that it has arrived at the concept of vicarious liability by analysing the abstract nature of legal duties, i.e. regardless of any positive legal system. This happened already in the 1930s, although the Czech normative theory of law did not take into account any developments in the common law systems with which the concept of “vicarious liability” is typically associated. This chapter presents and develops the “normativist” theory of vicarious liability to arrive at the two main claims set out above.

Slavic languages are generally unable to differentiate between responsibility and liability. Where English or German use responsibility/Verantwortung and liability/Haftung, Slavic languages capture both meanings by only one expression. If we mix this with the historical fact of how legal thinking evolved during the Cold War period, it gives us quite interesting results. The book combines the methods of historical, doctrinal, and philosophical comparative legal analysis to unveil how analyse the distinct models of thought regarding legal responsibility have developed in selected European jurisdictions. By critically looking at the concept of legal responsibility in common law, Germanic and socialist legal traditions this book addresses a specific problem of the post-socialist (namely Czech) philosophy of private law which, as far as responsibility is concerned, is still rooted in the materialist legal philosophy as it was advocated by the theorists of the so-called Eastern bloc. One of the main aims of the book is to re-establish and facilitate intellectual debate between the Czech and West-European legal scholars.

Reviews Jeremias Prassl's book Humans as a Service: The Promise and Perils of Work in the Gig Economy (Oxford University Press 2018) .

Recodification of private law in the Czech Republic resulted in fundamental changes regarding legal acts as well as responsibility (liability) of juristic persons. Indeed, when the Civil Code entered into effect in 2014, the concept of a juristic person entirely changed, as follows both from the explanatory memorandum and from the actual wording of the Civil Code, i.e. especially Section 151(1) of the Civil Code, according to which “[the law] provides, or the [founding] juridical act determines, the manner and scope in which members of a [juristic] person make decisions for and replace the will of the [juristic] person”. If the governing body of a juristic person replaces (through its own will) the will of the juristic person, then it can be inferred from the legislature’s intention expressed in the explanatory memorandum, as well as from the linguistic and systematic interpretation of Section 151 of the Civil Code that a juristic person, in fact, lacks its own will. This however, has a fundamental impact on the construction of legal acts performed by the juristic person and also of its potential unlawful conduct and liability. This is also closely related to the issue of the capacity of a juristic person to be liable for wrongs. Indeed, it follows from Section 24 of the Civil Code that a human being is liable for his/her conduct provided that he or she is capable of assessing and controlling his/her conduct. It can be inferred from the above that liability, in the true sense of the word, can only be borne by a human being – natural person – since only a human being has his/her own reason and will. This construct can then cause doubts regarding the capacity of a juristic person to be liable for a wrong (ex delicto) and its position as a subject of liability under private law. For this very reason, the present monograph aims to answer the question of how juristic persons can perform legal acts (i.e. engage in legal conduct) and in what way they can potentially become legally liable (not only for their conduct) under the Czech laws. This is reflected in its structure and arrangement of the individual chapters.

Can we think about legal norms in apolitical terms? The Venn diagram displayed on this year’s invitation to this conference suggests that law and politics do not fully overlap and some norms thus may be apolitical. In my paper, I will argue against this thesis. By canvassing an unproblematic example of a threefold conditional legal norm structure (hypothesis, disposition, sanction), I will show otherwise. Although the theory of threefold structure of a legal norm may at first glance appear politically neutral, I will defend a controversial position according to which even the structurallylogical reasoning about legal norms essentially is political. The apolitical legal norm thus is an illusion only

The new Czech Civil code (CC) traditionally does not define causation and leaves this task to the judiciary and legal theory. Despite this statutory “silence”, the changes that stand behind the CC may lead to a conception of causation that is very different from that which has been used in the Czech Republic until recently. The aim of this article is to develop this new theory of causation which is based on an analysis of two crucial reformative features of the CC. In particular, the author seeks to answer how our conception of causation might be influenced by the declared (1) departure from materialism and (2) inclination to the idealistic western tradition. He examines the extra-contractual fault-based liability regime (§ 2910 CC) by a historical, doctrinal and comparative method and shows that the causation under current Czech law can be understood as a two phased ideal test of factual and legal causation (i.e. a relation between a breach of a duty and damage). However, the factual causation test is only a negative one. A positive legal causation (adequacy/scope of liability) is then implied by the statute. According to the CC, the causal link can be presumed where the damage was foreseeable by a rational average human, or by a person of average abilities. Each of these two presumptions plays a crucial role when assessing different causation (relating to primary or consequential damage). This theory may then substantially strengthen the procedural position of the claimant.

Czech law of delictual liability can be now interpreted as rights-based (since 2014). Therefore, it is useful to make a clear distinction between primary and secondary duties, i.e. between conditions of liability and remedies. Thanks to this distinction it is easier to understand various functions of remedies under Czech private law and therefore also efficiently eliminate double recovery. Furthermore, it is argued in this article that this distinction helps us identifying specific statutory provisions that give rise to preventively-sanctional damages awards.

According to the prevailing view the conditions of fault-based liability of a natural person are basically the same as those of a legal entity (juristic person/corporation). In this article the author, however, arrives at a contrary conclusion. By looking at the theoretical underpinnings of the current statutory civil law he concludes that the Civil Code gives rise to an, in principle, unequal liability for fault. The scope of liability differs between the two types of person (natural and juristic) because, according to the Civil Code, any juristic person cannot have its own will nor intellect. Despite this fact, the fictional legal entity can still be negligent, which then substantially affects the scope of its liability.

This article outlines the fundamental consequences for the legal regime of public contracts which result from the substantial modifications of such contracts within the meaning of EU law. The authors conclude that an EU law-compliant understanding of the term “substantial modification to public contracts” may result, in some national legal systems, in the “privative novation” of the original contract, i.e. in its complete discharge and replacement with a new contract. However, this may be associated with a number of negative implications impairing the principle of legal certainty, thereby indirectly affecting the efficient functioning of the EU’s internal market. This conclusion appears to be contrary to the objectives pursued by the doctrine of indirect effect of EU law. The authors show some viable solutions to this problem, both from the position of contracting authorities and courts, and from the perspective of the member states in the forthcoming implementation of the new EU Public Procurement Directives.

According to the recent prevailing case law and academic literature the fact that the Act on Public Contracts (the APC) is special (lex specialis) to the Civil Code (the CC) implies that any transaction that is contrary to the APC cannot be subjected to general provisions on invalidity under the CC. In practice, many offences thus cannot be effectively sanctioned. The authors therefore ask whether such an approach is legitimate. Based on detailed reasoning and interpretation of the European and Czech law they revise the prevailing view and show that, on the contrary, the general provisions of the CC on invalidity of legal transactions shall be applied in some cases (e.g. when granting a power contrary to the APC). The common feature is that the Office for the Protection of Competition cannot impose the prohibition to perform the contract in these cases. The authors claim that the sanction of invalidity under the APC should be interpreted restrictively.

In this article I examine the concept of exemplary damages. Unlike many other studies this paper omits policy reasons and focuses primarily on the very concept of exemplary damages. My aim is thus not to argue for or against this remedy but rather to show whether or not it is a coherent and genuine legal category. Following relevant case law I will develop a conceptual definition of exemplary damages under English law of tort. This, I argue, is subject to three types of critical arguments – an argument from insufficiency, from positive exclusivity and from negative exclusivity – that highlight its incoherence. With respect to problematic aspects of the concept I compare exemplary damages under English law to germane Czech law which helps to show the relevance of ontology to law of damages. I suggest that from certain ontological perspective, we can reinterpret exemplary damages in a more coherent and acceptable manner. I conclude that such an understanding of exemplary damages makes them immune to the previous critique and also to the objection of ‘ordre public’ in private international law.

Recently we can see a significant shift in the understanding of private law damages in the Czech case law. Czech court have recently approved that the amount awarded for damages is not limited by the principle of compensation. In exceptional cases, where the preventive and punitive functions of damages prevail, the injured party may be awarded more than just her loss. However, this leads to some other problems. The aim of this artice is thus to explain these problems and to answer the question if and how they can be resolved.

Czech courts regularly deal with a question of so-called just satisfaction; particularly, when, on what basis, and how much should be awarded. Just satisfaction, as a form of damages, is primarily compensatory. However, there are some indications that it is perfectly legitimate for law of damages to pursue also another aims than compensation such as prevention or punishment. This view was recently upheld by the Czech Constitutional Court and the Highest Court of the Czech Republic. According to doctrinal approach, it is the domain of punitive or exemplary damages as a specific Anglo-American instrument that covers these two principles (prevention and punishment). Still, the Czech Civil courts consistently refuse to award exemplary damages albeit they do not provide us any sound argumentation. The author of this article suggests it is inaccurate and only partial understanding of exemplary damages that causes the current judicial refusal of them. While focusing on current English and Czech law, the author in his article describes exemplary damages in great detail with respect to their theoretical, conceptual and systematic position. Subsequently, he shows that the negative attitude of the Czech courts is not always appropriate. First, looking at relevant case law, the article characterises what the current English law on exemplary damages is, and it also critically compares this law with the Czech legal system. Here we can see come crucial similarities between the two. In the following part, the author characterizes exemplary damages in a broader context, which is necessary for adequate understanding, and he reveals some general aspect of exemplary damages alongside with its position in the system of damages. Besides, the author also looks at applicable European law and its current trends.