Lucinda Miller
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199606627
- eISBN:
- 9780191731716
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199606627.001.0001
- Subject:
- Law, EU Law
The emergence of a European contract law is one of the more significant legal developments in Europe today. The complexities that lie at its heart also make it one of the more fascinating areas of ...
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The emergence of a European contract law is one of the more significant legal developments in Europe today. The complexities that lie at its heart also make it one of the more fascinating areas of legal study. European Contract Law: Exploring Europeanization examines the origins of the discipline and its subsequent evolution. It brings the discussion up-to-date with full analysis of the debate on the Common Frame of Reference and the future that this ambiguous instrument may have in the contemporary European legal framework. One of the central themes of the book is exploration of the multi-level, open architecture of the EU legal order and the implications of such governance arrangements for the EU’s private law programme. The book demonstrates that the key to understanding European contract law in the 21st century lies in adopting a perspective and mechanisms suitable for a legal order populated by multiple sources of private law. Legal pluralism is offered as a theoretical construct in relation to which the future of European private law might be shaped. Legal pluralism forces consideration of diversity’s normative appeal and readjusts the analytical spotlight beyond the traditional, centralised, legislative, ‘command and control’ means of regulation. In so doing, softer mechanisms are introduced for the governance of contract law; mechanisms that enable coordination between the different sites at which contract law operates. This reorientation in thinking about European contract law, indeed about Europeanization itself, enables the inevitable diversity and pluralism that is a feature of multi-level Europe to be captured within a framework that maximises the opportunities for mutual transformations and learning.Less
The emergence of a European contract law is one of the more significant legal developments in Europe today. The complexities that lie at its heart also make it one of the more fascinating areas of legal study. European Contract Law: Exploring Europeanization examines the origins of the discipline and its subsequent evolution. It brings the discussion up-to-date with full analysis of the debate on the Common Frame of Reference and the future that this ambiguous instrument may have in the contemporary European legal framework. One of the central themes of the book is exploration of the multi-level, open architecture of the EU legal order and the implications of such governance arrangements for the EU’s private law programme. The book demonstrates that the key to understanding European contract law in the 21st century lies in adopting a perspective and mechanisms suitable for a legal order populated by multiple sources of private law. Legal pluralism is offered as a theoretical construct in relation to which the future of European private law might be shaped. Legal pluralism forces consideration of diversity’s normative appeal and readjusts the analytical spotlight beyond the traditional, centralised, legislative, ‘command and control’ means of regulation. In so doing, softer mechanisms are introduced for the governance of contract law; mechanisms that enable coordination between the different sites at which contract law operates. This reorientation in thinking about European contract law, indeed about Europeanization itself, enables the inevitable diversity and pluralism that is a feature of multi-level Europe to be captured within a framework that maximises the opportunities for mutual transformations and learning.
Nils Jansen
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199588763
- eISBN:
- 9780191723315
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199588763.003.0003
- Subject:
- Law, Philosophy of Law
The American Restatements of the law have become a major textual authority of the American common law. Today, large parts of the law have been restated, and the Restatements are taken by the ...
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The American Restatements of the law have become a major textual authority of the American common law. Today, large parts of the law have been restated, and the Restatements are taken by the participants to the legal discourse as a valid expression of the law. This chapter shows that the American restatement approach has also influenced the developments of transnational restatements of the law. The International Institute for the Unification of Private Law (UNIDROIT) has largely applied the terminology and formal style of the American Restatements for its Principles of International Commercial Contracts; and a similar approach was taken, on the European level, by the Lando Commission on European Contract Law. Today, the Restatements' formal style is used by the Study Group on a European Civil Code and by the Acquis Group, the main non-legislative actors in the current political process of unifying European private law.Less
The American Restatements of the law have become a major textual authority of the American common law. Today, large parts of the law have been restated, and the Restatements are taken by the participants to the legal discourse as a valid expression of the law. This chapter shows that the American restatement approach has also influenced the developments of transnational restatements of the law. The International Institute for the Unification of Private Law (UNIDROIT) has largely applied the terminology and formal style of the American Restatements for its Principles of International Commercial Contracts; and a similar approach was taken, on the European level, by the Lando Commission on European Contract Law. Today, the Restatements' formal style is used by the Study Group on a European Civil Code and by the Acquis Group, the main non-legislative actors in the current political process of unifying European private law.
Reinhard Zimmermann
- Published in print:
- 2005
- Published Online:
- March 2012
- ISBN:
- 9780199291373
- eISBN:
- 9780191700613
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199291373.003.0006
- Subject:
- Law, Law of Obligations
More than by any other component of the reform process, the face of the German Civil Code (BGB) has been changed by the incorporation of a number of special statutes aiming at the protection of ...
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More than by any other component of the reform process, the face of the German Civil Code (BGB) has been changed by the incorporation of a number of special statutes aiming at the protection of consumers. The draftsmen of the new law have thus made an effort to streamline, or harmonise, general contract law and consumer contract law. While it had been on the initial reform agenda of 1978, it had no longer been part of the brief of the Commission charged with the reform of Germany's law of obligations. The incorporation into the BGB of the special legislation concerning consumer protection was not required by any fiat on the European level. The issue is very much on the agenda mapped out by the action plan for a more coherent European contract law and it also still has to be considered by the draftsmen of the Principles of European Contract Law who, while providing a blueprint for general contract law, have so far failed to take account of the acquis communautaire in the field of consumer contracts.Less
More than by any other component of the reform process, the face of the German Civil Code (BGB) has been changed by the incorporation of a number of special statutes aiming at the protection of consumers. The draftsmen of the new law have thus made an effort to streamline, or harmonise, general contract law and consumer contract law. While it had been on the initial reform agenda of 1978, it had no longer been part of the brief of the Commission charged with the reform of Germany's law of obligations. The incorporation into the BGB of the special legislation concerning consumer protection was not required by any fiat on the European level. The issue is very much on the agenda mapped out by the action plan for a more coherent European contract law and it also still has to be considered by the draftsmen of the Principles of European Contract Law who, while providing a blueprint for general contract law, have so far failed to take account of the acquis communautaire in the field of consumer contracts.
Walter van Gerven
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199219032
- eISBN:
- 9780191711862
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199219032.003.0023
- Subject:
- Law, EU Law
Experts in contract law from different Member States have drafted two volumes of Principles of European Contract Law, which are based on ‘rules’ contained in the contract laws of the EU Member ...
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Experts in contract law from different Member States have drafted two volumes of Principles of European Contract Law, which are based on ‘rules’ contained in the contract laws of the EU Member States. But contrary to the (unformulated) principles referred to in Article 288(2) EC, they are worded in very precise terms, and structured and numbered in the same way as articles are in a ‘civil code’. This chapter argues that the aforementioned Principles of European Law are rules, not principles. Moreover, taken together they form a fully fledged European Code of Contract Law — or, more appropriate, it would seem, a European Contract Law Act.Less
Experts in contract law from different Member States have drafted two volumes of Principles of European Contract Law, which are based on ‘rules’ contained in the contract laws of the EU Member States. But contrary to the (unformulated) principles referred to in Article 288(2) EC, they are worded in very precise terms, and structured and numbered in the same way as articles are in a ‘civil code’. This chapter argues that the aforementioned Principles of European Law are rules, not principles. Moreover, taken together they form a fully fledged European Code of Contract Law — or, more appropriate, it would seem, a European Contract Law Act.
Walter van Gerven
- Published in print:
- 1993
- Published Online:
- March 2012
- ISBN:
- 9780199296040
- eISBN:
- 9780191700743
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199296040.003.0002
- Subject:
- Law, EU Law
The European Commission was able to publish a Communication regarding European contract law in July 2001 that presented four alternatives for taking on Community policy. Such options involve the ...
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The European Commission was able to publish a Communication regarding European contract law in July 2001 that presented four alternatives for taking on Community policy. Such options involve the following: 1) letting the market forces act on contract law; 2) advocating contract principles that are non-binding; 3) improving legislation, specifically consumer law; and 4) implementing binding and comprehensive legislation at the Community level. While a majority opposed the fourth option, the majority supported the third option while private stakeholders moved that the second option be imposed. As the Council emphasized the need for improving the then present acquis communautaire, the Commission released a new Communication in 2003 that advocated a common frame of reference and also presented two proposals — promoting the drafting of standard contract terms for the EU and the drafting of an optional code.Less
The European Commission was able to publish a Communication regarding European contract law in July 2001 that presented four alternatives for taking on Community policy. Such options involve the following: 1) letting the market forces act on contract law; 2) advocating contract principles that are non-binding; 3) improving legislation, specifically consumer law; and 4) implementing binding and comprehensive legislation at the Community level. While a majority opposed the fourth option, the majority supported the third option while private stakeholders moved that the second option be imposed. As the Council emphasized the need for improving the then present acquis communautaire, the Commission released a new Communication in 2003 that advocated a common frame of reference and also presented two proposals — promoting the drafting of standard contract terms for the EU and the drafting of an optional code.
Gerhard Dannemann and Stefan Vogenauer
- Published in print:
- 2013
- Published Online:
- May 2013
- ISBN:
- 9780199678907
- eISBN:
- 9780191758157
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199678907.003.0001
- Subject:
- Law, EU Law, Law of Obligations
This book explores the interactions between a European contract law instrument and national legal systems, using English law and German law as examples. This introductory chapter sets out the ...
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This book explores the interactions between a European contract law instrument and national legal systems, using English law and German law as examples. This introductory chapter sets out the background to the enquiry and the methodology employed. The first part gives an overview of the ‘European contract law initiative’, which has resulted in various drafts for a European contract law regime, culminating in the two instruments: the European Commission's Proposal for a Regulation on a Common European Sales Law of October 2011 and one of its precursors, the 2009 Draft Common Frame of Reference. The second part describes the Anglo-German research project which led to the present book.Less
This book explores the interactions between a European contract law instrument and national legal systems, using English law and German law as examples. This introductory chapter sets out the background to the enquiry and the methodology employed. The first part gives an overview of the ‘European contract law initiative’, which has resulted in various drafts for a European contract law regime, culminating in the two instruments: the European Commission's Proposal for a Regulation on a Common European Sales Law of October 2011 and one of its precursors, the 2009 Draft Common Frame of Reference. The second part describes the Anglo-German research project which led to the present book.
Kathleen Gutman
- Published in print:
- 2014
- Published Online:
- March 2015
- ISBN:
- 9780199698301
- eISBN:
- 9780191748882
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199698301.003.0005
- Subject:
- Law, EU Law, Constitutional and Administrative Law
Chapter 4 details the beginnings of the debate about European contract law, showing that discussion as to the approximation of private law in Europe began even before the founding of the European ...
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Chapter 4 details the beginnings of the debate about European contract law, showing that discussion as to the approximation of private law in Europe began even before the founding of the European Communities in the 1950s. The contract law debate has since then evolved particularly through the following three interlocking elements: first, the work of certain academic projects (the Commission on European Contract Law, the Study Group on a European Civil Code, and the Network of Excellence); secondly, the European Parliament’s early resolutions; and thirdly, the European Council’s Tampere Conclusions, with primary focus placed on exploring their impact on the constitutional assessment of European contract law.Less
Chapter 4 details the beginnings of the debate about European contract law, showing that discussion as to the approximation of private law in Europe began even before the founding of the European Communities in the 1950s. The contract law debate has since then evolved particularly through the following three interlocking elements: first, the work of certain academic projects (the Commission on European Contract Law, the Study Group on a European Civil Code, and the Network of Excellence); secondly, the European Parliament’s early resolutions; and thirdly, the European Council’s Tampere Conclusions, with primary focus placed on exploring their impact on the constitutional assessment of European contract law.
REINHARD ZIMMERMANN, DANIEL VISSER, and KENNETH REID
- Published in print:
- 2005
- Published Online:
- March 2012
- ISBN:
- 9780199271009
- eISBN:
- 9780191699481
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199271009.003.0007
- Subject:
- Law, Comparative Law
So long as contracts are observed according to their terms there is little call for the law to intervene. Problems arise when a party fails to perform. This situation is known in both Scottish and ...
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So long as contracts are observed according to their terms there is little call for the law to intervene. Problems arise when a party fails to perform. This situation is known in both Scottish and South African law as ‘breach of contract’ although the term ‘non-performance’ is preferred by the Principles of European Contract Law. This chapter considers how the main problems thrown up by breach of contract have been solved in the two jurisdictions. In neither jurisdiction has the legislature provided much assistance. In both there has been a certain mixing of civil law and English law influences, combined, most importantly, with continuing attempts to make and keep the law functional and just. The solutions devised by the judges are compared with the quasi-legislative solutions of the Principles of European Contract Law.Less
So long as contracts are observed according to their terms there is little call for the law to intervene. Problems arise when a party fails to perform. This situation is known in both Scottish and South African law as ‘breach of contract’ although the term ‘non-performance’ is preferred by the Principles of European Contract Law. This chapter considers how the main problems thrown up by breach of contract have been solved in the two jurisdictions. In neither jurisdiction has the legislature provided much assistance. In both there has been a certain mixing of civil law and English law influences, combined, most importantly, with continuing attempts to make and keep the law functional and just. The solutions devised by the judges are compared with the quasi-legislative solutions of the Principles of European Contract Law.
Gerhard Dannemann and Stefan Vogenauer (eds)
- Published in print:
- 2013
- Published Online:
- May 2013
- ISBN:
- 9780199678907
- eISBN:
- 9780191758157
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199678907.001.0001
- Subject:
- Law, EU Law, Law of Obligations
European Contract Law unification projects have recently advanced from the Draft Common Frame of Reference (DCFR) to a European Commission proposal for an optional Common European Sales Law (CESL) ...
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European Contract Law unification projects have recently advanced from the Draft Common Frame of Reference (DCFR) to a European Commission proposal for an optional Common European Sales Law (CESL) which is to facilitate cross-border marketing. This book investigates for the how CESL and DCFR rules would interact with various aspects of domestic law, represented by English and German law. Nineteen chapters examine such interface issues, e.g., pre-contractual relationships, notions of contract, formation, interpretation, and remedies, extending to non-discrimination, third parties, transfers or rights, aspects of property law, and collective proceedings. They go beyond a critical analysis of CESL and DCFR rules by demonstrating where and how CESL rules would interact with neighbouring areas of English and German law before English and German courts, how domestic traditions might influence the application, which aspects might motivate sellers and buyers to choose or reject CESL, and which might serve as model for national legislators. The findings are summarized in the final two chapters.Less
European Contract Law unification projects have recently advanced from the Draft Common Frame of Reference (DCFR) to a European Commission proposal for an optional Common European Sales Law (CESL) which is to facilitate cross-border marketing. This book investigates for the how CESL and DCFR rules would interact with various aspects of domestic law, represented by English and German law. Nineteen chapters examine such interface issues, e.g., pre-contractual relationships, notions of contract, formation, interpretation, and remedies, extending to non-discrimination, third parties, transfers or rights, aspects of property law, and collective proceedings. They go beyond a critical analysis of CESL and DCFR rules by demonstrating where and how CESL rules would interact with neighbouring areas of English and German law before English and German courts, how domestic traditions might influence the application, which aspects might motivate sellers and buyers to choose or reject CESL, and which might serve as model for national legislators. The findings are summarized in the final two chapters.
Hector MacQueen and Reinhard Zimmermann
- Published in print:
- 2006
- Published Online:
- March 2012
- ISBN:
- 9780748624256
- eISBN:
- 9780748651429
- Item type:
- book
- Publisher:
- Edinburgh University Press
- DOI:
- 10.3366/edinburgh/9780748624256.001.0001
- Subject:
- Law, Company and Commercial Law
This book sets out initially to test the claim that, as combinations of civil and common law influences, the mixed systems of contract law in Scotland and South Africa have anticipated the content of ...
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This book sets out initially to test the claim that, as combinations of civil and common law influences, the mixed systems of contract law in Scotland and South Africa have anticipated the content of the Principles of European Contract Law (PECL), concluded and published in 2003 by the unofficial Commission on European Contract Law. The studies go much further, however. Current official moves towards a European contract law within the European Union lend the critiques of PECL offered in this book an especial urgency and significance. A European contract law is nearer to reality than ever before, and mere policy critiques of that possibility are no longer enough. Technical and substantive assessments of PECL are also essential. This book provides just such assessments from the perspective of Scots and South African contract lawyers, and is offered to the European debate without prejudice as to the deeper policy questions. At the same time it may help to inform Scots and South African lawyers about the substance of international developments in the field, and suggest ways in which their still-vigorous and vital national laws may continue to be developed to remain in step with the needs of the present day.Less
This book sets out initially to test the claim that, as combinations of civil and common law influences, the mixed systems of contract law in Scotland and South Africa have anticipated the content of the Principles of European Contract Law (PECL), concluded and published in 2003 by the unofficial Commission on European Contract Law. The studies go much further, however. Current official moves towards a European contract law within the European Union lend the critiques of PECL offered in this book an especial urgency and significance. A European contract law is nearer to reality than ever before, and mere policy critiques of that possibility are no longer enough. Technical and substantive assessments of PECL are also essential. This book provides just such assessments from the perspective of Scots and South African contract lawyers, and is offered to the European debate without prejudice as to the deeper policy questions. At the same time it may help to inform Scots and South African lawyers about the substance of international developments in the field, and suggest ways in which their still-vigorous and vital national laws may continue to be developed to remain in step with the needs of the present day.
Stephen Weatherill
- Published in print:
- 1993
- Published Online:
- March 2012
- ISBN:
- 9780199296040
- eISBN:
- 9780191700743
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199296040.003.0003
- Subject:
- Law, EU Law
Several questions arise that concern the scope of available competence that is covered by European private law. While it is specified in Article 5(1) EC that the EC functions only within the bounds ...
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Several questions arise that concern the scope of available competence that is covered by European private law. While it is specified in Article 5(1) EC that the EC functions only within the bounds that are set by the founding Treaties, there is no legislative competence that addresses the issues in the particular field of private law. The constitutional landscape is said to be enriched in practice by the competence given by the EC Treaty to impose harmonization. However, certain issues have to be addressed that would not just assess legislative practices imposed in the past, but contemplate what may be adopted in the future of European contract law as well. This chapter attempts to examine the constitutional aspects of European private law, while drawing attention specifically to patterns of legislative harmonization.Less
Several questions arise that concern the scope of available competence that is covered by European private law. While it is specified in Article 5(1) EC that the EC functions only within the bounds that are set by the founding Treaties, there is no legislative competence that addresses the issues in the particular field of private law. The constitutional landscape is said to be enriched in practice by the competence given by the EC Treaty to impose harmonization. However, certain issues have to be addressed that would not just assess legislative practices imposed in the past, but contemplate what may be adopted in the future of European contract law as well. This chapter attempts to examine the constitutional aspects of European private law, while drawing attention specifically to patterns of legislative harmonization.
Kathleen Gutman
- Published in print:
- 2014
- Published Online:
- March 2015
- ISBN:
- 9780199698301
- eISBN:
- 9780191748882
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199698301.001.0001
- Subject:
- Law, EU Law, Constitutional and Administrative Law
This book provides a cohesive assessment of the extent of the EU’s competence in the field of contract law and an extensive comparative study of the American contract law framework. It analyses the ...
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This book provides a cohesive assessment of the extent of the EU’s competence in the field of contract law and an extensive comparative study of the American contract law framework. It analyses the limits of Union competence in relation to several relevant Treaty provisions that potentially confer competence on the Union to adopt a comprehensive contract law instrument and the exercise of Union competence through the operation of the principles of subsidiarity, proportionality, and sincere cooperation. It also explores the viability of several alternative and complementary routes to the adoption of such an instrument, such as enhanced cooperation, an intergovernmental treaty, and certain so-called ‘softer’ models, which include the American techniques of Restatements, uniform and model laws, and the Uniform Commercial Code. To lay the groundwork for this analysis, this book sets forth an elaborate account of the context for the debate about European contract law and its chronological development at the European level through present day events, including the Draft Common Frame of Reference, the Consumer Rights Directive, and the proposed Regulation on a Common European Sales Law. Fundamentally, it is an interdisciplinary work cutting across several fields of EU law and a novel comparative work on the approach taken to the approximation of contract law in the EU and the US.Less
This book provides a cohesive assessment of the extent of the EU’s competence in the field of contract law and an extensive comparative study of the American contract law framework. It analyses the limits of Union competence in relation to several relevant Treaty provisions that potentially confer competence on the Union to adopt a comprehensive contract law instrument and the exercise of Union competence through the operation of the principles of subsidiarity, proportionality, and sincere cooperation. It also explores the viability of several alternative and complementary routes to the adoption of such an instrument, such as enhanced cooperation, an intergovernmental treaty, and certain so-called ‘softer’ models, which include the American techniques of Restatements, uniform and model laws, and the Uniform Commercial Code. To lay the groundwork for this analysis, this book sets forth an elaborate account of the context for the debate about European contract law and its chronological development at the European level through present day events, including the Draft Common Frame of Reference, the Consumer Rights Directive, and the proposed Regulation on a Common European Sales Law. Fundamentally, it is an interdisciplinary work cutting across several fields of EU law and a novel comparative work on the approach taken to the approximation of contract law in the EU and the US.
Reinhard Zimmermann
- Published in print:
- 2005
- Published Online:
- March 2012
- ISBN:
- 9780199291373
- eISBN:
- 9780191700613
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199291373.003.0003
- Subject:
- Law, Law of Obligations
Before the revision of Germany's law of obligations it had been, for a long time, a standard complaint that the rules concerning breach of contract were far too complex. Moreover, they were taken to ...
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Before the revision of Germany's law of obligations it had been, for a long time, a standard complaint that the rules concerning breach of contract were far too complex. Moreover, they were taken to be deficient in several important respects. They were based on a classification of various types of breach, that is, impossibility of performance, delay of performance, and defective performance, rather than structured according to the various remedies available. Central to the understanding of the system, so it was said, was a highly artificial concept of impossibility of pandectist vintage. Moreover, the German Civil Code was thought to be characterised by an axiomatic adherence to the outdated fault principle. This chapter discusses the development of German law and remedies for non-performance from the vantage point of the broader European debate that has led to the formulation of the Principles of European Contract Law.Less
Before the revision of Germany's law of obligations it had been, for a long time, a standard complaint that the rules concerning breach of contract were far too complex. Moreover, they were taken to be deficient in several important respects. They were based on a classification of various types of breach, that is, impossibility of performance, delay of performance, and defective performance, rather than structured according to the various remedies available. Central to the understanding of the system, so it was said, was a highly artificial concept of impossibility of pandectist vintage. Moreover, the German Civil Code was thought to be characterised by an axiomatic adherence to the outdated fault principle. This chapter discusses the development of German law and remedies for non-performance from the vantage point of the broader European debate that has led to the formulation of the Principles of European Contract Law.
Reinhard Zimmermann
- Published in print:
- 2005
- Published Online:
- March 2012
- ISBN:
- 9780199291373
- eISBN:
- 9780191700613
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199291373.003.0005
- Subject:
- Law, Law of Obligations
The Principles of European Contract Law constitute the most advanced, and internationally most widely noted, project on the way towards a harmonisation of contract law in Europe. These Principles are ...
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The Principles of European Contract Law constitute the most advanced, and internationally most widely noted, project on the way towards a harmonisation of contract law in Europe. These Principles are designed to facilitate cross-border trade within Europe by making available a set of neutral rules, detached from the peculiarities of any national legal system, to which parties can subject their transactions. In a longer-term perspective, the Principles can be seen to provide a conceptual and systematic infrastructure for community legislation concerning contract law; at the same time, they can even be taken to constitute a first step on the way towards a European Civil Code. By intellectually relating the national laws and the Principles to each other, legal scholarship can create an awareness of the Principles as a model for legislative reform and as a guideline for judicial interpretation of the law. The present chapter on prescription law in Germany has been written in this spirit. Special prescription rules of very considerable practical significance are contained in sections 438, 634 a of the German Civil Code. They relate to claims arising from liability for non-conformity under contracts of sale or contracts for work.Less
The Principles of European Contract Law constitute the most advanced, and internationally most widely noted, project on the way towards a harmonisation of contract law in Europe. These Principles are designed to facilitate cross-border trade within Europe by making available a set of neutral rules, detached from the peculiarities of any national legal system, to which parties can subject their transactions. In a longer-term perspective, the Principles can be seen to provide a conceptual and systematic infrastructure for community legislation concerning contract law; at the same time, they can even be taken to constitute a first step on the way towards a European Civil Code. By intellectually relating the national laws and the Principles to each other, legal scholarship can create an awareness of the Principles as a model for legislative reform and as a guideline for judicial interpretation of the law. The present chapter on prescription law in Germany has been written in this spirit. Special prescription rules of very considerable practical significance are contained in sections 438, 634 a of the German Civil Code. They relate to claims arising from liability for non-conformity under contracts of sale or contracts for work.
Jacques du Plessis
- Published in print:
- 2006
- Published Online:
- March 2012
- ISBN:
- 9780748624256
- eISBN:
- 9780748651429
- Item type:
- chapter
- Publisher:
- Edinburgh University Press
- DOI:
- 10.3366/edinburgh/9780748624256.003.0006
- Subject:
- Law, Company and Commercial Law
This chapter examines the issue of threats and excessive benefits or unfair advantage under European contract law. It evaluates the proposition that many of the solutions found by the draftsmen of ...
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This chapter examines the issue of threats and excessive benefits or unfair advantage under European contract law. It evaluates the proposition that many of the solutions found by the draftsmen of the Principles of European Contract Law (PECL) have been anticipated in the mixed systems of South Africa and/or Scotland, and analyses the laws of contract of these systems from a comparative perspective. The chapter argues that mixed systems and PECL could benefit from reconsidering their refusal to assist weak parties by making use of presumptions of impropriety.Less
This chapter examines the issue of threats and excessive benefits or unfair advantage under European contract law. It evaluates the proposition that many of the solutions found by the draftsmen of the Principles of European Contract Law (PECL) have been anticipated in the mixed systems of South Africa and/or Scotland, and analyses the laws of contract of these systems from a comparative perspective. The chapter argues that mixed systems and PECL could benefit from reconsidering their refusal to assist weak parties by making use of presumptions of impropriety.
Laura Macgregor
- Published in print:
- 2006
- Published Online:
- March 2012
- ISBN:
- 9780748624256
- eISBN:
- 9780748651429
- Item type:
- chapter
- Publisher:
- Edinburgh University Press
- DOI:
- 10.3366/edinburgh/9780748624256.003.0005
- Subject:
- Law, Company and Commercial Law
This chapter explores the law of agency in relation to European contract law. It explains that agency is often considered to be more properly part of commercial rather than contract law and evaluates ...
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This chapter explores the law of agency in relation to European contract law. It explains that agency is often considered to be more properly part of commercial rather than contract law and evaluates the extent of English influence which has operated on contract law in Scotland and South Africa. The chapter discusses the innovations in English law contained within the Principles of European Contract Law (PECL), and how useful those might be for Scots and South African lawyers. It argues that the PECL framework for indirect representation and apparent authority is likely to be acceptable to Scots and South African lawyers, and that it is clear that the Common Law has been highly influential in the modelling of the PECL provisions.Less
This chapter explores the law of agency in relation to European contract law. It explains that agency is often considered to be more properly part of commercial rather than contract law and evaluates the extent of English influence which has operated on contract law in Scotland and South Africa. The chapter discusses the innovations in English law contained within the Principles of European Contract Law (PECL), and how useful those might be for Scots and South African lawyers. It argues that the PECL framework for indirect representation and apparent authority is likely to be acceptable to Scots and South African lawyers, and that it is clear that the Common Law has been highly influential in the modelling of the PECL provisions.
