What "it's the law" means
What "it's the law" means
"For me, when something seems compulsory, I say that "it's the law", but a friend of mine recently took me up on the subject with some subtle distinctions that I'm afraid I didn't quite understand. Could you enlighten me for our next discussion on the subject?"
François, Vaud
"The law governs all matters to which the letter or the spirit of one of its provisions relates" announces article 1 paragraph 1 of the Civil Code, a work in which the legislator has taken care to explain the basic mechanisms of the law in a few preliminary articles.
When faced with a legal problem, it is therefore necessary to examine whether a legal text provides a rule that applies to everyone, whether it is written in the Constitution, the Civil Code, the Code of Obligations, the Criminal Code or in one of the very many specific laws that make up Swiss law, or even in the ordinances that set out the details. When the text of the law does not provide a precise answer to the question, we must ask ourselves whether the answer nevertheless follows naturally from what the legislator has written, given the spirit in which the rule was enacted. If there is no applicable legal provision, it is up to the judge to make up for it by drawing on custom or creating a new legal solution, based on judicial precedents (case law) and the opinion of legal scholars (doctrine).
However, not all duties derive from a law that applies to everyone. In fact, two or more persons may enter into a contract that has the force of law between them if they have reciprocally and in agreement, as stated in article 1 of the Code of Obligations. A contract can therefore establish rights and obligations between the parties to it, with possible penalties for failure to comply with these rules, which are not, however, binding on third parties. It is no doubt in this sense that your friend will have taken you up on the subject of the law, even though compliance with a contract freely entered into is indeed guaranteed by the law, which also allows the parties to agree on solutions different from those recommended by the legislator!
On this last point, it should be noted that the law excludes agreements between the parties when it lays down a strict rule of law or when a derogation from its text would be contrary to morality, public policy or the rights attached to personality.
