Professor Mads Andenæs

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Presentations text content in Professor Mads Andenæs

Slide1

Professor Mads AndenæsJUS5240/JUR1240

Comparative Private Law

Slide2

Going over outline and reading, once again

Any questions

?

Next lecture:

09 October12

NOTE: NO LECTURES 12, 18, or 25 September

Slide3

Lecture Outline Autumn 2011

1. Introduction

2. 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 families

Slide4

Lecture Outline Autumn 2011

5. European Contract Law and international contract law conventions

6. 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 186-199

Moss, 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, 2007

Slide9

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 papers

Slide11

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 EU

The Internal Market, consumers, business and contract law

Slide12

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 families

Slide14

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 mandatory

Slide15

6. Applying comparative method in private law and contract law in particular.

The role of comparative law and method in private law

Contract law: commercial and consumer law

The autonomy of the national

Slide16

7. Formation of contracts.

8. Interpretation, Reasonableness, Good faith.

9. Liability and other Remedies.

Slide17

7. Formation of contracts.

Offer, accept, binding contract

Do 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 Law

M 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 323-350

Slide20

Placing the proposal for a common European sales law and the DCFR in an international perspective

Slide21

A Common European Sales Law?

Proposal

for regulation: COM(2011) 635 final

An optional “2

nd

regime” for cross-border contracts

Scope: sales of goods, supply

of digital content, related services

Relevance for comparative law

Slide22

Contract law in Europe

Varies from country to country

Private international

law

Uniform law

CISG

EU legislation,

minimum harmonisation, total harmonisation

Model

laws etc.: UNIDROIT Principles, PECL, DCFR

Slide23

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 DCFR

Black letter rules

Comments

Comparative

n

otes

Slide25

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 affairs

Slide26

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

Trusts

Slide27

EU legislation on contracts

Primarily on consumer contracts

Most recent: Consumer Rights Directive (2011/83)

deadline 13 December 2012

contracts concluded after 13 June 2014

Slide28

CESL – a second regime

Norwegian law

German law

French law

Existing law

Existing law

Existing law

CESL

CESL

CESL

Slide29

Application of CESL

Chosen by the parties

Cross-border contract

(unless otherwise decided)

At least one party in a Member State

Contract for the sale of goods, for the supply of digital content, related services

Trader and consumer or SMB (unless otherwise decided)

Slide30

Recourse to other law?

Autonomous

interpretation

Issues with the scope of CESL must be settled without recourse to national law

Slide31

Content of CESL

Making a binding contract

Interpretation

Obligations

and remedies

Damages and interest

Restitution

Prescription

Slide32

Conclusion of contract

Definition of contract

Offer and acceptance

Right to withdraw

Defects in consent

Slide33

Voidability due to mistake

Article 48

Inaccuracy

in communication

Slide34

Interpretation

Common intention

Particular meaning known to the other party

Meaning

that a reasonable person would give to it

Relevant matters

circumstances

practices

good faith and fair dealing

Slide35

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 Collins

Slide37

37

CESL and its general reception

Some support from participants

Critical approaches typified by Zimmermann and Micklitz

Slide38

38

The autonomies of law

The 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 law

World 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 itself

Tennekoon and Wood

Slide42

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 principles

P Birks

English Private Law

Slide47

How do courts use comparative law?

47

Slide48

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 justices

Slide50

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 Hoffmann

Slide51

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

52

Slide53

The discipline of comparative law.

Legal transplants and convergence of legal families

Slide54

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 method

Slide55

1.The discipline of comparative law.

‘A method’, ‘What lawyers do’

Study of foreign law and comparative law, international and comparative law

To 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 discussion

Slide56

Comparative law controversies

Is 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 round

Slide57

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 disciplines

Slide58

3. Legal transplants; what are they

Student presentation: Chinese and Japanese law

Comparing 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 1

Slide59

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

Kötz

Slide60

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)

T

o

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

antopology

Slide63

4. Internationalisation, fragmentation and “the convergence of legal families.

Internationalisation

Fragmentation

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/S0020589300058656

Slide64

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) Agreementa) Offerb) Acceptance2) ConsiderationOther elements: Intention to create legal relations, Capacity, Formalities

65

Slide66

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.

66

Slide67

«Consideration» in common law

1) 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).

67

Slide68

French law and «cause»

Art 1108 of the Code Civil:Consent, Capacity, Object, Cause

68

Slide69

Formation in the international instruments:

UNIDROIT Principles.The Convention on the International Sale of Goods (CISG) adopted by UNCITRAL.PECL.DCFR.EU consumer lawESL

69

Slide70

Formation in the UNIDROIT Principles :

PICC third edition 2010CHAPTER 2 — FORMATION AND AUTHORITY OF AGENTSSECTION 1: FORMATION

70

Slide71

CISG

The Convention on the International Sale of Goods (CISG) adopted by UNCITRALPart II. Formation of the contract

71

Slide72

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?

72

Slide73

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.

73

Slide74

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.

74

Slide75

UNIDROIT PICC and UNCITRAL CISG

No such general part relating to the formation of contract law

75

Slide76

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.

76

Slide77

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.

77

Slide78

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.

78

Slide79

Rejection and acceptance by statement and conduct

An offer also lapses as a result of arejection 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.

79

Slide80

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.

80

Slide81

Differences between PECL and PICC

81

Slide82

DCFR and ESL compared

82

Slide83

5. Interpretation, Reasonableness, Good Faith

In the international instruments, in the DCFRIn national law: different models

83

Slide84

Interpretation, Reasonableness, Good Faith in the Common Law

84

Slide85

Interpretation, Reasonableness, Good Faith in German, French and Italian law

85

Slide86

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.

86

Slide87

In the UNIDROIT Principles :

87

Slide88

CISG

The Convention on the International Sale of Goods (CISG) adopted by UNCITRAL

88

Slide89

In PECL and DCFR :

89

Slide90

6. Liability and other Remedies

In the international instruments, in the DCFRIn national law: different models

90

Slide91

Liability and other Remedies in the Common Law

91

Slide92

Liability and other Remedies in German, French and Italian law

92

Slide93

Interpretation, Reasonableness, Good Faith in the international instruments:

UNIDROIT Principles.The Convention on the International Sale of Goods (CISG) adopted by UNCITRAL.PECL.DCFR.

93

Slide94

In the UNIDROIT Principles :

94

Slide95

CISG

The Convention on the International Sale of Goods (CISG) adopted by UNCITRAL

95

Slide96

In PECL and DCFR :

96


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