Search Results

This chapter examines contract law and theory in England in 1770. It discusses the concepts and principles of the evidentiary role of promises, fair exchange, quasi-contract, detrimental reliance, and enforcement of contractual duties. It states that during this period a clear and relatively simple model of contract has dominated the thinking of common lawyers. The lawyers lacked a general theory of contractual liability and most laws related to contracts involved a confusing mixture of ideas.

This chapter discusses how the structure of contractual liability was laid down by the end of the 13th century and remained fundamentally the same through the 14th and 15 centuries. Liability depended on the voluntary agreement; whatever form of action was in issue, only the parties to the agreement were affected by it; whatever the form of action, the purpose of the plaintiff's claim was to obtain the value of the intended performance; and in informal contracts, the law was concerned only with relationships of reciprocity.

The modern doctrines of State responsibility and reparation are the result of more than 2,000 years of human thought. This chapter traces the history of some of the most important components of State responsibility and reparation. The origins of these concepts are found in the historical roots of the civil law doctrines of extra-contractual liability and the remedy of restitutio in integrum, from Roman times until their entry into European civil codes. It explains how the private law notions discussed entered into international law and how, from the fusion of these notions and concepts with those supplied through the evolving doctrines of reprisals, denial of justice, and diplomatic protection, the modern doctrines of State responsibility and reparation were born.

This chapter focuses on pre-contractual liability and pre-contractual information duties (PCIDs). Some aspects of the pre-contractual negotiation phase are regulated in the proposed Common European Sales Law (CESL). If the parties opt to contract under it, certain obligations will be imposed on them in relation to conduct and the information which has to be given. German and English law also police certain behaviour by the parties before the contract conclusion. EU consumer legislation has also introduced a number of PCIDs in relation to certain types of contract into the national laws of the Member States. The chapter addresses the interactions among these different provisions.

This chapter presents the French model of contractual liability, which includes three categories. The first requires the use of reasonable care. The second imposes strict liability to achieve a result, subject to possible exemption if the failure was due to a cause for which the party not responsible and could not surmount. The third category includes cases of absolute liability. The common law contractual liability is analysed against this model, and it is pointed out that there are analogues to the three categories of liabilities in French law. The chapter discusses the common law technique of implied terms, which was employed to base liability on fault as well as the doctrine of frustration.

This chapter shows how the 17th and 18th centuries marked a period of consolidation of the law of contract, the fleshing out of the skeletal structure that had been locked in place at the end of the 16th century. The most important developments occurred in the Chancery, which had begun to operate along clearly defined, rule-based lines by the time of the Chancellorship of Nottingham (1673-81). The 18th century saw the first attempts to articulate a theory of contractual liability, largely based on the writings of non-lawyers, at least non-Common lawyers. Although these attempts were neither sophisticated nor successful, they did begin the work of accustoming English lawyers to the fact that there were not several sets of rules applicable to different forms of action in Common law and Chancery, but a single body of definable rules that could be called the ‘law of contract’.

The doctrine of consideration provides the principal criterion of contractual liability in the common law. Redefining the contents of consideration will effect a consequential shift in the boundaries of contractual liability. Williams v Roffey Brothers and Nicholls (Contractors) Ltd heralds such a redefinition in the most far-reaching manner: This chapter explores the nature and desirability of this redefinition, the reasons motivating it, and how these reasons might have been alternatively accommodated in the law.

This introductory chapter explains the coverage of this book, which is about the rise and fall of the freedom of contract in England during the period from 1770 to 1970. This book describes the intellectual and legal background of the freedom of contract in 1770, discusses the provisions of the contract law and theory, and evaluates the role of the individual and government in the freedom of contract. It explores the perception of the freedom of contract in the courts and in parliament, analyses the changing legal and intellectual condition in 1870, and identifies the factors that contributed to the decline of the freedom of contract from 1870 to 1970. It concludes that the nature of contractual and promissory liability have been largely misunderstood by lawyers, philosophers, and policy-makers.

This chapter examines issues concerning the formation of contract under Thai law. It discusses the background to the Thai Civil and Commercial Code 1925 and the French and German influences on its drafting. The chapter examines the interpretation of intention, which is integral to the notion of a juristic act for creation of contractual obligations. The direction to discern true intention, combined with notions of fictitious intention and concealed juristic act, enables a court to re-characterize transactions according to their true intention. Through the power to ‘transform a void act’, a court may also declare an act valid otherwise void for non-compliance with formalities governing one kind of juristic act, if it complies with the requirements of another juristic act. The chapter discusses the German concept of Vorvertrag or pre-contract in the context of transactions that do not comply with the formality requirements, and explains why the Thai judges have not embraced this concept. It also examines how a court imposes pre-contractual liability on a party breaking off from contract negotiations.

This chapter examines the nature and function of contract law in England in the 18th century and the process of change it was experiencing. It suggests that wholly executory contracts did not perfectly recognize the enforced and they did not match the paradigm case of contract theory at all. The findings reveal that during this period, the enforcement of contractual liability by way of claim for damages for loss of bargain, which is the typical mode of enforcing an executory contract today, was almost completely unknown.

This chapter examines the principles of contractual liability under the law of contract in England during the Tudor period. During this period, the law of contract was dominated by the law of evidence. A case was only considered valid if there was a written evidence of a contract in the form of a document under seal. This chapter discusses some cases related to contractual liability during this period and analyses the legal bases of court decisions. It also describes the factors that led to the evolution of the laws governing contractual liability.

This chapter examines the comparative law method of the Court of Justice of the European Union in light of recent institutional and jurisprudential developments. The first part presents a general overview of the comparative law method in the EU judicial framework, thereby addressing the different expressions, sources, and actors involved, the legal bases in the Treaties governing the Union courts’ potential recourse to this method, and the overarching aim or approach underpinning it, with illustrations from recent case law concerning the Union’s non-contractual liability regime. The second part reflects on the conceptual framework or typology of the comparative law method in EU adjudication in terms of the three main situations in which the comparative law method arises in the case law of the Union courts—gap-filling, interpretation, and compatibility review— taking account of salient case law in several burgeoning areas, with particular regard to fundamental rights and other general principles of EU law.

This chapter analyzes English tort law, which is characterized by its traditional approach based on its roots in medieval times. The area of non-contractual liability is not governed by rules but by torts which provide a remedy (e.g., damages) if something has gone wrong in a particular way. There are a multitude of specific torts, but the most important and most general is the tort of negligence. This tort imposes liability on an individual who has not acted carefully, but only if that person owed another person a duty of care. This latter aspect is the most characteristic feature of the tort of negligence, and in a number of areas it is still an important obstacle for liability.