Search Results

This chapter examines a selection of other laws of contract, particularly models found in national systems that supposedly form the basis of the PECL provisions. It first studies the Commonwealth laws, where it identifies two cases that have deviated from the doctrine of unconscionability. The next section deals with European models, specifically Dutch, French, Scandinavian, and German laws. The laws of individual states in the U.S. are discussed in the final part of the chapter.

This chapter examines specific performance and special damage, two remedies commonly available after a breach of contract in Scotland and South Africa. It explains that specific performance provides an instance where the civil law and the common law depart from directly opposing points of view, while the rules on special damages provide an instance where there is a large measure of convergence between common law and civil law. The chapter compares these remedies under the contract law in Scotland and South Africa, and considers the relevant provisions of the Principles of European Contract Law (PECL).

This chapter considers termination as a remedy for breach of contract under the Principles of European Contract Law (PECL). The PECL provisions on termination for non-performance are similar to Scots and South African law in a number of important respects, not surprisingly in view of the common law influence in all three systems. Under all three systems, a non-fundamental delay may be elevated into a fundamental one by an ultimatum, and all three know the concept of anticipatory breach.

This chapter considers how an assignment is effected under the Principles of European Contract Law (PECL), and evaluates its consequences and the extent to which the divergence between systems based on notice and those that do not require it is resolved. It compares assignment under PECL with those under Scots and South African laws, and explains its practical utility and theoretical nature. The chapter also discusses the obligatory and proprietary aspects of assignment under the PECL.

This chapter explores the issues of capitalisation of interest under the Principles of European Contract Law (PECL), discussing the nature and function of interest and the history of rules of capitalisation. It explains that the legal rules on capitalisation indicate circumstances where the taking of interest on interest is tolerated in terms of a statute, agreement or trade usage. The chapter analyses Article 17:101 of PECL and compares it with the positions in Scotland and South Africa.

This chapter focuses on a key document within the process of the Europeanisation of private law legal scholarship, the Principles of European Contract Law (PECL). It suggests that these principles can be considered as a contemporary manifestation of a genuinely European tradition which used to be called ius commune and argues that they can also serve a catalyst for a Europeanisation of private law ‘from within’ and ‘from below’. The chapter contends that these principles should be taken into consideration not only by comparative lawyers but, particularly, by all those engaged in shaping and elucidating national legal doctrine.

This chapter considers good faith in the Principles of European Contract Law (PECL). It explains that Article 1:201 of PECL declares that each party must act in accordance with good faith and fair dealing, and that this duty may not be excluded or limited by the parties. The chapter argues that the contract laws of the world's uncodified mixed legal systems – in which Common Law and Civil Law sources, rules, concepts and methods have interacted for long periods – often show striking parallels with the results of PECL.

This chapter examines the issues of offer, acceptance and contract formation under the Principles of European Contract Law (PECL). It explains that the offer and acceptance model is a standard feature of modern contract law in South Africa and Scotland, and that PECL embraces the offer and acceptance model for contract formation found in most Western legal systems today. The chapter argues that in rejecting both consideration and causa as requirements for contract formation, PECL endorses the offer and acceptance model as the primary and sole vehicle for analysing the parties' interaction to establish whether, and when, a contract has come into existence. In this sense, PECL is closely aligned to both Scots and South African law.

This chapter discusses the issue of battle of forms in contract law. It explains that a battle of forms arises where each of the parties to what they at least perceive as a contract have employed their own standard terms of trading or business. The chapter investigates whether the nature of battle is based on consensus or content and explores orthodox formation theory. It describes the process of fighting the battle of forms under the contract law of Scotland and compares potential model solutions to the battle of forms including the Uniform Commercial Code and the Principles of European Contract Law (PECL).

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.

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.

This chapter evaluates whether the Principles of European Contract Law (PECL) are predominantly civil law, predominantly common law, or mixed. It considers the PECL rules on interpretation from this point of view and examines whether they are acceptable, and how they compare with the rules in Scots and South African law. The chapter specifically provides an interpretation of the PECL rules in Articles 5:101 and 5:102.

This chapter focuses on the performance of payment obligations under the Principles of European Contract Law (PECL). It considers two questions relating to payment dealt with in PECL – the form and manner of payment and payment by a third party – compares the PECL to South African and Scots law, and suggests that while they all have a mixed character, they differ in the manner and process by which this mix has come to fruition.

Chapter 17 of the PECL consists of only one single rule, entitled ‘When Interest to Be Added to Capital’. That rule has been moved to Chapter 9, Section 5 on ‘Damages and Interest’, where it appears as Art 9:508-4. That is, therefore, also the place where the reader will find the other textual layers and a commentary on the problem of capitalization of interest. The shift from Chapter 17 to Chapter 9 is in line with the intentions of the draftsmen of Part III of the PECL, for in the Introduction to that volume (page xvii) they indicated that ‘in any future combined volume covering Parts I, II and III the treatment … could be incorporated at the appropriate [place] earlier in the volume’.

In the autumn of 2010 the editors of this volume ran a seminar within a summer school organized by the Studienstiftung des deutschen Volkes in the French Maritime Alps. The aim of that seminar was a comparative assessment of the various ‘restatements’, ‘model laws’, ‘reference texts’, or ‘non-legislative codifications’ on European contract law that had by then been published. That assessment turned out to be much more interesting than we had originally envisaged, for we discovered that those texts were genetically related in unexpectedly complex ways. We had known before, of course, that some rules and formulations in later texts had been taken over or adapted from older texts and that a number of the restatements were also connected to the European Union’s acquis communautaire. But we had not been aware of the extent to which the texts were interrelated; nor had we appreciated the changes of wording and systematic context that had occurred. The mixture of complex genetic relationships, of correspondence and differences in formulation, and of shifts in approach and policy thus became more interesting, but also more difficult to understand.