JUS5240JUR1240 Comparative Private Law Going over outline and reading once again Any questions Next lecture 09 October12 NOTE NO LECTURES 12 18 or 25 September Lecture Outline Autumn 2011 ID: 595452
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Slide1
Professor Mads AndenæsJUS5240/JUR1240
Comparative Private Law Slide2
Going over outline and reading, once again
Any questions?Next lecture:09 October12NOTE: NO LECTURES 12, 18, or 25 September Slide3
Lecture Outline Autumn 2011
1. Introduction2. The proposal for a common European sales law 3. Overview of the topics of the course. Placing the proposal for a common European sales law and the DCFR in an international perspective.
4. The discipline of comparative law. Legal transplants and convergence of legal familiesSlide4
Lecture Outline Autumn 2011
5. European Contract Law and international contract law conventions6. Applying comparative method in private law and contract law in particular.7. Formation of contracts.
8. Interpretation, Reasonableness, Good faith.
9. Liability and other Remedies.Slide5
Updated reading list (on the web site)
With web links and other features that may be helpful.Moss, G.C.: Lectures on Comparative Law (160 pages) (to be found in the bookstore Akademika published in "
Stensilserien
for
Institutt
for
Privatrett
-nr 166
IfP
" and
http://folk.uio.no/giudittm/PCL_Vol15_3%5B1%5D.pdf
M Andenas and D
Fairgrieve
, ‘There is A World Elsewhere’ — Lord Bingham and Comparative Law in M Andenas and D
Fairgrieve
(eds) Tom Bingham and the Transformation of the Law (Oxford University Press 2009), 402 (Available as
ebook
from the University Library by using "BIBSYS ASK" online-system and on
http://works.bepress.com/mads_andenas/5/
)
Sacco, R.: Legal Formants: A Dynamic Approach to Comparative Law, in 39 American Journal of Comparative Law (1991), pages 1-34,343-402 (Available from the University Library by using "BIBSYS ASK" online-system)
Sacco, R.: One Hundred Years of Comparative Law, in 75 Tulane Law Review (2001) 1159-1176 (Available from the University Library by using "BIBSYS ASK" online-system)Slide6
Updated reading list
Sir Basil Markesinis, Jørg Fedtke, Engaging With Foreign Law (Hart Publishing, Oxford 2009, Comparative Law in Commercial Practice, Ch 10, ISBN-10: 1841139475) p 323-350 (Available as
ebook
from the University Library by using "BIBSYS ASK" online-system).
Moss, G.C.: International Commercial Law, Institute of Private Law, Oslo 2010, pages 101-205
(to be found in the bookstore
Akademika
published in "
Stensilserien
for
Institutt
for
Privatrett
"/"copy series from the Institute of Private Law" no 185)
Kåre
Lilleholt
, «European Private
Law
:
Unification
,
Harmonisation
or
Coordination
», i Roger
Brownsword
, Hans-W. Micklitz, Leone
Niglia
and Stephen Weatherill (eds.),
The Foundations
of
European Private
Law
, Oxford 2011, s. 353–361.
Hans-W. Micklitz and Norbert
Reich
’The Commission
Proposal
for a “
Regulation
on
a
Common
European
Sales
Law
(CESL)” –
Too
Broad
or
Not
Broad
Enough
?’, EUI
Working
Paper LAW 2012/04.
http://cadmus.eui.eu/bitstream/handle/1814/20485/LAW_2012_04_ERPL_03.pdf?sequence=3
and VI) and C (ca 430 pages).Slide7
Supplementary reading
Principles, Definitions and Model Rules of European Private Law, Draft Common Frame of Reference, DCFR See also: http://ec.europa.eu/justice/policies/civil/policies
civil
intro_en.htm
Proposal for EU Regulation on Common sales law with other materials on
http://ec.europa.eu/justice/newsroom/news/20111011_en.htm
The EU Consumer Rights Directive,
http://register.consilium.europa.eu/pdf/en/11/pe00/pe00026.en11.pdf
Sir Basil Markesinis, Jørg Fedtke, Engaging With Foreign Law (Hart Publishing, Oxford 2009, ISBN-10: 1841139475). (Available as ebook from the University Library by using "BIBSYS ASK" online-system)
C (ca 430 pages).Slide8
Supplementary reading
Moss, G.C.: Contract or Licence? Regulation of Petroleum Investment in Russia and Foreign legal Advice, in Journal of Energy & Natural Resources Law, 1998, pages 186-199Moss, G.C.: INTERNATIONAL CONTRACTS BETWEEN COMMON LAW AND CIVIL LAW: IS NON-STATE LAW TO BE PREFERRED? THE DIFFICULTY OF INTERPRETING LEGAL STANDARDS SUCH AS GOOD FAITH, Global Jurist: Vol. 7: Iss. 1 (Advances), Article 3 pp.1-38
Gordley, J., Von Mehren, A., An introduction to the comparative study of private law, Cambridge University Press, 2006.
Tetley, W.: Mixed Jurisdictions: Common Laws vs. Civil Law (Codified and Uncodified), part I and part II, (56 pages)
http://www.mcgill.ca/maritimelaw/comparative/mixedjur-1/
http://www.mcgill.ca/maritimelaw/comparative/mixedjur-2/
Joint network on European Private Law, with further links:
http://www.copecl.org
Schulze, R. (ed), “New Features in Contract Law”, Sellier European Law Publishers, 2007Slide9
Supplementary reading
Introduction to the Principles of European Contract Law, with further bibliographic references:http://www.cisg.law.pace.edu/cisg/text/peclintro.html UNIDROIT Principles of International Commercial Contracts, with further bibliographic references:
http://www.unidroit.org/english/principles/contracts/main.htm
Vogenauer, S., Weatherill, S., The Harmonisation of European Contract Law, Studies of the Oxford Institute of European and Comparative Law, 2006
Wilhelmsson, T., Paunio, E., Pohjolainen, A. (eds), “Private Law and the Many Cultures of Europe”, Kluwer Law International, 2007
Zimmermann, M., Reimann, The Oxford Handbook of Comparative Law, Oxford University Press, 2006
Zweigert, K. and H. Kötz: Introduction to Comparative Law, 3rd ed Clarendon Press, Oxford 1998: Parts B (except chapter V and VI) and C (ca 430 pages).Slide10
Examination and past papersSlide11
The main topics: 2. The proposal for a common European sales law
The European Commission proposal for a Regulation on a Common European Sales Law (COM(2011) 635 final). Background and reactions‘Legal base’ in the EUThe Internal Market, consumers, business and contract lawSlide12
3. Overview of the topics of the course. Placing the proposal for a common European sales law and the DCFR in an international perspective.
Follow up from first lecture and Professor
Lilleholt’s
lecture
on
European Sales
Law
.Slide13
4. The discipline of comparative law. Legal transplants and convergence of legal families.
What is comparative law and what functions may it serve?Law making: legislation, case law
Understanding law and legal rules
The normative and the factual, effects and context
Legal transplants
Legal families
Convergence of legal familiesSlide14
5. European Contract Law and international contract law conventions
Return to the conventions, model laws, EU legislation, and different iniatives. What do they cover or let out?Some differences between international and EU instruments: the international focus on the commercial/professional
EU law on consumer protection
Conventions optional/declaratory/derogable (freedom of contract), EU directives mandatorySlide15
6. Applying comparative method in private law and contract law in particular.
The role of comparative law and method in private lawContract law: commercial and consumer lawThe autonomy of the nationalSlide16
7. Formation of contracts.
8. Interpretation, Reasonableness, Good faith.9. Liability and other Remedies.Slide17
7. Formation of contracts.
Offer, accept, binding contractDo offers bind, is ’consideration’ required?To what extent is a universal model found in the conventions and model laws?EU law and the formation of contracts.Slide18
8. Interpretation, Reasonableness, Good faith.
Interpretation in different national traditions.The role of reasonableness and good faith.Slide19
Reading for the next lecture: 4. The discipline of comparative law. Legal transplants and convergence of legal families:
Moss, G.C.: International Commercial Law or Lectures on Comparative LawM Andenas and D Fairgrieve
, ‘There is A World Elsewhere’ (Available as
ebook
)
Sir Basil
Markesinis
,
Jørg
Fedtke
, Engaging With Foreign Law (Hart Publishing, Oxford 2009, Comparative Law in Commercial Practice, Ch 10, ISBN-10: 1841139475) p 323-350Slide20
Placing the proposal for a common European sales law and the DCFR in an international perspectiveSlide21
A Common European Sales Law?
Proposal for regulation: COM(2011) 635 finalAn optional “2nd regime” for cross-border contracts
Scope: sales of goods, supply
of digital content, related services
Relevance for comparative lawSlide22
Contract law in EuropeVaries from country to country
Private international lawUniform lawCISGEU legislation, minimum harmonisation, total harmonisation
Model
laws etc.: UNIDROIT Principles, PECL, DCFRSlide23
The process up to CESL
The Commission’s Action Plan (2003)CoPECL Network (2005)Draft Common Frame of Reference (2009)Study Group on a European Civil Code
Acquis
Group
French texts on terminology and principles (2008)
Feasibility Study (2011)
CESL (2011)Slide24
The DCFRBlack letter rules
CommentsComparative notesSlide25
Contents DCFR
Book I General provisions
Book II Contracts and other juridical acts
Book III Obligations and corresponding rights
Book IV Specific contracts and the rights and obligations arising from them
Book V Benevolent intervention in another’s affairsSlide26
Contents DCFR (ctd.)
Book VI
Non-contractual liability arising out of damage caused to another
Book VII
Unjustified enrichment
Book VIII Acquisition and loss of ownership in movables
Book IX Proprietary security rights in movable assets
Book X
TrustsSlide27
EU legislation on contracts
Primarily on consumer contractsMost recent: Consumer Rights Directive (2011/83)deadline 13 December 2012contracts concluded after 13 June 2014Slide28
CESL – a second regime
Norwegian law
German
law
French
law
Existing
law
Existing
law
Existing
law
CESL
CESL
CESLSlide29
Application of CESLChosen by the parties
Cross-border contract (unless otherwise decided)At least one party in a Member StateContract for the sale of goods, for the supply of digital content, related servicesTrader and consumer or SMB (unless otherwise decided)Slide30
Recourse to other law?Autonomous
interpretationIssues with the scope of CESL must be settled without recourse to national lawSlide31
Content of CESL
Making a binding contractInterpretationObligations and remediesDamages and interestRestitutionPrescriptionSlide32
Conclusion of contractDefinition of contract
Offer and acceptanceRight to withdrawDefects in consentSlide33
Voidability due to mistakeArticle 48
Inaccuracy in communicationSlide34
InterpretationCommon intention
Particular meaning known to the other partyMeaning that a reasonable person would give to itRelevant matterscircumstances
practices
good faith and fair dealingSlide35
35
DCFR, CESL and the Common Law
DCFR
Relationship to national legal systems and traditions
Special issues relating to the Common Law.Slide36
36
DCFR: its general reception
Some support from participants
Critical approaches typified by Zimmermann and Hugh CollinsSlide37
37
CESL and its general reception
Some support from participants
Critical approaches typified by Zimmermann and MicklitzSlide38
38
The autonomies of lawThe autonomies of law as a challenge to a European Civil Code or DCFR
National legal systems
Private law, public law
Commercial law, private law
European law in the national traditions of private law
A set of false dichotomies?Slide39
39
European law and the challenge of common law
Common law contracts in areas such as finance, IP
Common law practice with US and London firms. Slide40
40
The efficiency of the common lawWorld Bank: Doing Business
Understanding regulation 2004
Removing obstacles to growth 2005
Réponse de l’Association Henri Capitant aux Rapports "Doing business" de la Banque Mondiale - Les droits de tradition civiliste en question Slide41
41
How the common law sees itselfTennekoon and WoodSlide42
42
The role of legislation in the common law of commerce
Contract, case law and default rules in legislation.
Limited.
No general codifications.
Exceptions, insurance codifications.Slide43
43
Some features of the common law of England: traditional argument
Structure of contract law is different: limited default rules, contract practice aims at providing an autonomous and complete regime.
Interpretation of contracts: exclusionary rules (pre-contractual negotiations and postcontractual behaviour) and literalism. Role of good faith.
Creditor-friendly. Slide44
44
How is the common law developing
Law on interpretation of contracts is changing: exclusionary rules and literalism. Role of good faith.
Creditor-friendliness is less obvious in insolvency but still more freedom in constructing securities.
Structure of contract law remains different in this respect: limited default rules, contract practice aims at providing an autonomous and complete regime. But here many areas follow this direction.Slide45
45
Critical perspectives on these common law features
Structure of contract law: what is the cost of current contract law practice with no default rules to rely on, transaction cost in contracting, quality of contract terms
Interpretation of contracts: did these rules ever provide the benefits envisaged?
Creditor-friendliness: the economic cost benefit analysis. Personal credit and security rights. Creditor protection and access to credit without security. Slide46
46
Absence of principlesP Birks
English Private Law Slide47
How do courts use comparative law?
47Slide48
48
The national paradigm and the closed system
Did
it ever apply?
In legislative reform
In the courts
Current developments: Italian and English courts, the US.
Fairchild v
Glenhaven
Funeral Services Ltd
, [2002] UKHL 22.
Sentenza
n. 21748 del 16
ottobre
2007 (
Sezione
Prima
Civile
,
Presidente
M. G.
Luccioli
,
Relatore
A.
GiustiSentenza
n. 21748 del 16
ottobre
2007 (
Sezione
Prima
Civile
,
Presidente
M. G.
Luccioli
,
Relatore
A.
Giusti
, “
Salute,accanimento
terapeutico,stato
vegetativo,eutanasia
”).
Roper v Simmons
543 US 551 (2005). Slide49
49
The positions in the US debate.
Harold Koh, Sir Basil Markesinis, Jeremy Waldron, the ‘liberal’ justices
Mary-Ann Glendon, The Federalist Society, the conservative justicesSlide50
50
The positions in the English debate.
Sir Basil Markesinis, Lord Bingham: making use of comparative law as a tool
John Bell: limitations of context but still of use in policy reform and legal analysis
Jane Stapleton, Lord HoffmannSlide51
51
Can courts make use of comparative law?
The use of foreign law
The indirect entry points for foreign law and comparative law
Slide52
4. Formation of contracts
In the international instruments, in the DCFRIn national law: different models
52Slide53
The discipline of comparative law.
Legal transplants and convergence of legal familiesSlide54
The discipline of comparative law. Legal transplants and convergence of legal families
The discipline of comparative law. Role of comparative law: law reform, courts (as we just have discussed), the legal practitioner, legal scholarship
Legal transplants; what are they
Internationalisation, fragmentation and “the
convergence of legal
families”
Comparative law methodSlide55
1.The discipline of comparative law.
‘A method’, ‘What lawyers do’Study of foreign law and comparative law, international and comparative lawTo compare one needs to contrast and delineate: what is different and what is the same, the national, legal families, within the national, across the national, international and regional legal orders
Some examples and for discussionSlide56
Comparative law controversiesIs comparative
law possible?Is it an ideological project?(We will return to this under uses for different categories of lawyers.)Some ideological positions for and against comparative law
Some ideological positions
of comparative lawyers
Comparative lawyers and international and European law: and seen the other way roundSlide57
2. Role of comparative law:
law reform, courts
(as we just have
discussed and for further discussion here),
the
legal
practitioner
:
the financial lawyer, the commercial lawyer, the family lawyer, the criminal lawyer etc (for discussion)
legal scholarship: in general and for different disciplinesSlide58
3. Legal transplants; what are they
Student presentation: Chinese and Japanese lawComparing this with Italy and Norway
Two positions:
Alan Watson,
Legal Transplants,
(Edinburgh, Scottish Academic Press, 1974);
Otto
Kahn-Freund, 'On Use and Misuse of Comparative Law' (1974) 37 Modern Law Review 1Slide59
4. Internationalisation, fragmentation and “the convergence of legal families.
Legal history and comparative law“Legal families”, the broad generalisations:
René David
Kurt
Zweigert
and
Hein
KötzSlide60
Montesquieu De l'esprit des lois
The political and civil laws of each nation should
be adapted in such a manner to the people for whom they are framed that it should be a great chance if those of one nation suit another. They should be in relation to the nature and principle of each government; whether they form it, as may be said of politic laws; or whether they support it, as in the case of civil institutions. They should be in relation to the climate of each country, to the quality of its soil, to its situation and extent, to the principal occupation of the natives, whether husbandmen, huntsmen, or shepherds: they should have relation to the degree of liberty which the constitution will bear; to the religion of the inhabitants, to their inclinations, riches, numbers, commerce, manners, and customs
.Slide61
Montesquieu De l'esprit des lois
(1748)To determine which of those systems
is
most agreeable to reason, we must take them each as a whole and compare them in their
entirety.
As the civil laws depend on the political institutions, because they are made for the same society, whenever there is a design of adopting the civil law of another nation, it would be proper to examine beforehand whether they have both the same institutions and the same political law
.Slide62
4. Internationalisation, fragmentation and “the convergence of legal families.
“Legal families”, the broad generalisations:The common law
Civil law
Scandinavian law
Communist legal systems
Islamic law. Hindu law, Chinese law
Problems and reservations: any utility left
Law as
antopologySlide63
4. Internationalisation, fragmentation and “the convergence of legal families.
InternationalisationFragmentation
“
the convergence of legal
families”
European law: EU, ECHR, internationalisation
BUT:
Pierre
Legrand
(1996). European Legal Systems are not Converging. International and Comparative Law Quarterly,45, pp 5281
doi:10.1017/S0020589300058656Slide64
5. Comparative law method
Back to Montesquieu, Alan Watson and Otto Kahn-Freund
Context
and
institutions
Different
uses
?Slide65
Formation in common law
Two main elements:1) Agreement
a) Offer
b) Acceptance
2) Consideration
Other elements: Intention
to create legal
relations, Capacity, Formalities
65Slide66
The offer in common law
Definition – Statement by one person to another person, evincing his/her willingness to enter into contractual relations with that person on
certain terms
.
Distinguish
offer from an “Invitation to Treat” –
auctions,
tenders,
Carbolic
Smoke
Ball.
66Slide67
«Consideration» in common
law1) Must be a connection between the consideration and the
promise
which it is said to support.
2) Must move from the
promisee
, but not necessarily to the
promisor
(
Coulls
v
Bagot’s
Executor and Trustee).
3) Must be sufficient but need not be adequate (Chappell & Co v
Nestle
& Co Ltd)– Illegal consideration is not sufficient, and
excessively
inadequate consideration may not be sufficient.
4) Past consideration is not good consideration (
Lampleigh
v
Brathwait
).
67Slide68
French law and «cause»
Art 1108 of the Code Civil:Consent,
Capacity,
Object,
Cause
68Slide69
Formation in the international
instruments:UNIDROIT Principles.The Convention on the International Sale of Goods (CISG) adopted by UNCITRAL.
PECL.
DCFR.
EU consumer law
ESL
69Slide70
Formation in the UNIDROIT
Principles :PICC third edition 2010
CHAPTER 2 — FORMATION AND AUTHORITY OF AGENTS
SECTION 1:
FORMATION
70Slide71
CISGThe Convention on the International Sale of Goods (CISG) adopted by
UNCITRALPart II. Formation of the contract
71Slide72
Formation in PECL and DCFR :
DCFR: contract as ‘bilateral or multilateral juridical act’. ‘BGB’ translated into English’? Role of legal scholarship.‘Juridical act’ and ‘contract’, Art II.-1:1010(1) DCFR. PECL: less precise?
72Slide73
Formation in PECL: Article 2:101
(1) A contract is concluded if:(a) the parties intend to be legally bound, and(b) they reach a sufficient
agreement without
any further requirement.
(2) A contract need not be concluded or evidenced in writing nor is it subject to
any other
requirement as to form. The contract may be proved by any
means, including
witnesses.
73Slide74
Formation in DCFR: Article II.-4:101
PECL Article 2:101 para(2) has been removed:
(2
) A contract need not be concluded or evidenced in writing nor is it subject to
any other
requirement as to form. The contract may be proved by any
means, including
witnesses.
74Slide75
UNIDROIT PICC and UNCITRAL CISG
No such general part relating to
the
formation
of
contract
law
75Slide76
Offer and acceptance in PICC and CISG
UNIDROIT PICC and UNCITRAL CISG:An offer must be such that, through its acceptance, a contractcan
be brought into existence. It must therefore be sufficiently definite and
be based
on the intention, on the part of the
offeror
, to be
bound:
Art
14 CISG; Art 2.1.2 PICC; Art 2:201(1) PECL; Art II.–4:201(1) DCFR.
76Slide77
Effectiveness and revocal
An offer becomes effective as soon as it reaches the offeree; Art 15(1) CISG; Art 2.1.3 PICC.Until
that moment
the
offeror
may revoke it at any time
.
Art 15(2) CISG; Art 2.1.3 PICC.
77Slide78
Revocal
Even an offer that has already reached the offeree, and has therefore become effective, may however be revoked as long as the revocation reaches the
offeree
before the latter has dispatched
his acceptance
. This is not the case if: (
i
) the offer indicates that it is irrevocable
;(
ii) the offer states a fixed time for its acceptance; or (iii) the
offeree
can reasonably
rely upon the offer being irrevocable and has already acted
in reliance
upon the offer
.
Art 16 CISG; Art 2.1.4
PICC.
78Slide79
Rejection and acceptance by statement and conduct
An offer also lapses as a result of a
rejection reaching the
offeror
.
Art 17 CISG; Art 2.1.5
PICC.
Acceptance by means
of statement or conduct; the moment when the acceptance
becomes effective
and the contract is thus concluded; time limits for acceptance and
the consequences
of late
acceptance
.
Arts 2:204–2:208
PECL.
79Slide80
An offer also lapses as a result of arejection reaching the offeror
. Art 17 CISG; Art 2.1.5 PICC; Art 2:203 PECL.Far reaching agreement on acceptance: acceptance
by means
of statement or conduct; the moment when the acceptance
becomes effective
and the contract is thus concluded; time limits for acceptance and
the consequences
of late acceptance; modified
acceptance.
Arts 2:204–2:208
PECL;
Arts II.–4:204–4:208
DCFR.
80Slide81
Differences between PECL and PICC
81Slide82
DCFR and ESL compared
82Slide83
5. Interpretation, Reasonableness, Good Faith
In the international instruments, in the DCFRIn national law: different models
83Slide84
Interpretation, Reasonableness, Good Faith in the Common
Law
84Slide85
Interpretation, Reasonableness, Good Faith in German, French and Italian
law
85Slide86
Interpretation, Reasonableness, Good
Faith in the international instruments:
UNIDROIT Principles.
The Convention on the International Sale of Goods (CISG) adopted by UNCITRAL.
PECL.
DCFR.
ESL.
86Slide87
In the UNIDROIT Principles
:
87Slide88
CISGThe Convention on the International Sale of Goods (CISG) adopted by
UNCITRAL
88Slide89
In PECL and DCFR :
89Slide90
6. Liability and other RemediesIn
the international instruments, in the DCFRIn national law: different models
90Slide91
Liability and other Remedies in the Common
Law
91Slide92
Liability and other Remedies in German, French and Italian
law
92Slide93
Interpretation, Reasonableness, Good
Faith in the international instruments:
UNIDROIT Principles.
The Convention on the International Sale of Goods (CISG) adopted by UNCITRAL.
PECL.
DCFR.
93Slide94
In the UNIDROIT Principles
:
94Slide95
CISGThe Convention on the International Sale of Goods (CISG) adopted by
UNCITRAL
95Slide96
In PECL and DCFR :
96