Martin Shapiro
- Published in print:
- 2002
- Published Online:
- November 2003
- ISBN:
- 9780199256488
- eISBN:
- 9780191600234
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199256489.003.0009
- Subject:
- Political Science, Comparative Politics
The two papers in Ch. 5 examine how lawyers and law professors, operating in private arenas, successfully revived a pre-modern legal system, the Lex Mercatoria – the international body of trade law ...
More
The two papers in Ch. 5 examine how lawyers and law professors, operating in private arenas, successfully revived a pre-modern legal system, the Lex Mercatoria – the international body of trade law derived from merchant practice. Shapiro’s paper, which was originally published in The State and Freedom of Contract (ed. Harry Scheiber, Stanford University Press) in 1998) first introduces the Lex Mercatoria (the law of merchants) in relation to freedom of contract and contract law, and then discusses globalizing tendencies in contract law, doctrine, and jurisprudence, before moving on to globalizing tendencies in contract practice, using the legal doctrine of conflict of laws as a baseline for measurement of globalization tendencies. Here, Lex Mercatoria (or general principles of law) often play a substantial part in the resolution of contract disputes, particularly where arbitration is involved. Shapiro goes on to deal with the unification of private law in the United States in the 1920s (the trans-state harmonization of contract law), which he uses as a benchmark to assess the massive post-Second World War movement to a global law of contract. Aspects addressed include the globalization of contracting practice and law, the American-style contract (in relation to franchising law and mineral (non-oil) development contracts), and developments in business organization and law institutions.Less
The two papers in Ch. 5 examine how lawyers and law professors, operating in private arenas, successfully revived a pre-modern legal system, the Lex Mercatoria – the international body of trade law derived from merchant practice. Shapiro’s paper, which was originally published in The State and Freedom of Contract (ed. Harry Scheiber, Stanford University Press) in 1998) first introduces the Lex Mercatoria (the law of merchants) in relation to freedom of contract and contract law, and then discusses globalizing tendencies in contract law, doctrine, and jurisprudence, before moving on to globalizing tendencies in contract practice, using the legal doctrine of conflict of laws as a baseline for measurement of globalization tendencies. Here, Lex Mercatoria (or general principles of law) often play a substantial part in the resolution of contract disputes, particularly where arbitration is involved. Shapiro goes on to deal with the unification of private law in the United States in the 1920s (the trans-state harmonization of contract law), which he uses as a benchmark to assess the massive post-Second World War movement to a global law of contract. Aspects addressed include the globalization of contracting practice and law, the American-style contract (in relation to franchising law and mineral (non-oil) development contracts), and developments in business organization and law institutions.
Hiroshi Oda
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199232185
- eISBN:
- 9780191705335
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199232185.003.0008
- Subject:
- Law, Comparative Law
This chapter discusses Japanese law of obligations and contracts. Topics covered include general rules of law and obligations, the law of contract, and the management of another person's unjust ...
More
This chapter discusses Japanese law of obligations and contracts. Topics covered include general rules of law and obligations, the law of contract, and the management of another person's unjust affairs and unjust enrichment.Less
This chapter discusses Japanese law of obligations and contracts. Topics covered include general rules of law and obligations, the law of contract, and the management of another person's unjust affairs and unjust enrichment.
MARK R. FREEDLAND FBA
- Published in print:
- 2005
- Published Online:
- January 2010
- ISBN:
- 9780199298631
- eISBN:
- 9780191719400
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199298631.003.0009
- Subject:
- Law, Company and Commercial Law
This chapter argues that the law of personal employment work contracts has developed in such a way and to such a point that it is extremely difficult to provide a clear and logical overall account of ...
More
This chapter argues that the law of personal employment work contracts has developed in such a way and to such a point that it is extremely difficult to provide a clear and logical overall account of the law relating to the evolution, termination, and transformation of those contracts. The case law and legislation, upon which such an account would have to be based, have become intractably complex, to the point where it can be considered impossible to resolve all the intricacies, ambiguities, and inconsistencies to which they give rise. The first part of the chapter proposes a general theory of termination and transformation, which seeks to explain the causes of those difficulties, and presents a conceptual scheme which may help minimize them. The remainder of the chapter develops and applies the general theory in relation to the specific aspects of termination and transformation.Less
This chapter argues that the law of personal employment work contracts has developed in such a way and to such a point that it is extremely difficult to provide a clear and logical overall account of the law relating to the evolution, termination, and transformation of those contracts. The case law and legislation, upon which such an account would have to be based, have become intractably complex, to the point where it can be considered impossible to resolve all the intricacies, ambiguities, and inconsistencies to which they give rise. The first part of the chapter proposes a general theory of termination and transformation, which seeks to explain the causes of those difficulties, and presents a conceptual scheme which may help minimize them. The remainder of the chapter develops and applies the general theory in relation to the specific aspects of termination and transformation.
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 ...
More
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.
Hugh Beale
- Published in print:
- 2012
- Published Online:
- September 2012
- ISBN:
- 9780199593880
- eISBN:
- 9780191745362
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199593880.003.0001
- Subject:
- Law, Law of Obligations
This chapter tries to determine whether English law is right to adopt an individualist attitude, or whether it should shift towards the German position, which is generally representative of most ...
More
This chapter tries to determine whether English law is right to adopt an individualist attitude, or whether it should shift towards the German position, which is generally representative of most continental legal systems. It provides some background information on the ‘European’ principles of contract law, and then identifies the actual differences between ‘European’ and English laws. It also describes the provisions on mistake and non-disclosure of fact that are found in the Principles of European Contract Law (PECL). This chapter also discusses English and German cases related to the law on mistake and non-disclosure of fact.Less
This chapter tries to determine whether English law is right to adopt an individualist attitude, or whether it should shift towards the German position, which is generally representative of most continental legal systems. It provides some background information on the ‘European’ principles of contract law, and then identifies the actual differences between ‘European’ and English laws. It also describes the provisions on mistake and non-disclosure of fact that are found in the Principles of European Contract Law (PECL). This chapter also discusses English and German cases related to the law on mistake and non-disclosure of fact.
Hugh Beale
- Published in print:
- 2012
- Published Online:
- September 2012
- ISBN:
- 9780199593880
- eISBN:
- 9780191745362
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199593880.003.0002
- Subject:
- Law, Law of Obligations
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 ...
More
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.Less
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.
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 ...
More
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.
Andrius Smaliukas and Gintautas Šulija
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199594559
- eISBN:
- 9780191595714
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199594559.003.0017
- Subject:
- Law, Comparative Law, EU Law
This chapter discusses suretyship contracts in Lithuanian banking practice. Topics covered include commercial suretyships and consumer suretyships, suretyships and indebtedness of individuals and ...
More
This chapter discusses suretyship contracts in Lithuanian banking practice. Topics covered include commercial suretyships and consumer suretyships, suretyships and indebtedness of individuals and families, unfair suretyships of non-professional guarantors, laws for surety protection, impact on the guarantor's position of changes in the debtor-creditor relationship, the most effective means of protection for non-professional sureties, and proposals to improve the protection of non-professional sureties.Less
This chapter discusses suretyship contracts in Lithuanian banking practice. Topics covered include commercial suretyships and consumer suretyships, suretyships and indebtedness of individuals and families, unfair suretyships of non-professional guarantors, laws for surety protection, impact on the guarantor's position of changes in the debtor-creditor relationship, the most effective means of protection for non-professional sureties, and proposals to improve the protection of non-professional sureties.
Stephen A. Smith
- Published in print:
- 1993
- Published Online:
- March 2012
- ISBN:
- 9780198765615
- eISBN:
- 9780191695308
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198765615.001.0001
- Subject:
- Law, Law of Obligations
This book is both an examination of, and a contribution to, our understanding of the theoretical foundations of the common law of contract. Focusing on contemporary debates in contract theory, the ...
More
This book is both an examination of, and a contribution to, our understanding of the theoretical foundations of the common law of contract. Focusing on contemporary debates in contract theory, the book aims to help readers better understand the nature and justification of the general idea of contractual obligation, as well as the nature and justification of the particular rules that make up the law of contract. The book is in three parts. Part I introduces the idea of ‘contract theory’, and presents a framework for identifying, classifying, and evaluating contract theories. Part II describes and evaluates the most important general theories of contract; examples include promissory theories, reliance-based theories, and economic theories. In Part III, the theoretical issues raised by the various specific doctrines that make up the law of contract (e.g., offer and acceptance, consideration, mistake, remedies, etc.) are examined in separate chapters. The legal focus of the book is the common law of the United Kingdom, but the theoretical literature discussed is international in origin; the arguments discussed are thus relevant to understanding the law of other common law jurisdictions and, in many instances, to understanding the law of civil law jurisdictions as well.Less
This book is both an examination of, and a contribution to, our understanding of the theoretical foundations of the common law of contract. Focusing on contemporary debates in contract theory, the book aims to help readers better understand the nature and justification of the general idea of contractual obligation, as well as the nature and justification of the particular rules that make up the law of contract. The book is in three parts. Part I introduces the idea of ‘contract theory’, and presents a framework for identifying, classifying, and evaluating contract theories. Part II describes and evaluates the most important general theories of contract; examples include promissory theories, reliance-based theories, and economic theories. In Part III, the theoretical issues raised by the various specific doctrines that make up the law of contract (e.g., offer and acceptance, consideration, mistake, remedies, etc.) are examined in separate chapters. The legal focus of the book is the common law of the United Kingdom, but the theoretical literature discussed is international in origin; the arguments discussed are thus relevant to understanding the law of other common law jurisdictions and, in many instances, to understanding the law of civil law jurisdictions as well.
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 ...
More
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.
D. J. IBBETSON
- Published in print:
- 2001
- Published Online:
- February 2010
- ISBN:
- 9780198764113
- eISBN:
- 9780191709852
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198764113.003.0012
- Subject:
- Law, Law of Obligations, Legal History
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 ...
More
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’.Less
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’.
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 ...
More
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.
P. S. Atiyah
- Published in print:
- 1990
- Published Online:
- March 2012
- ISBN:
- 9780198254447
- eISBN:
- 9780191681493
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198254447.003.0007
- Subject:
- Law, Law of Obligations
This chapter aims to discover whether the present law of contract strikes the right balance between formal and substantive reasons. It attempts to answer the question of whether, in a wholly ...
More
This chapter aims to discover whether the present law of contract strikes the right balance between formal and substantive reasons. It attempts to answer the question of whether, in a wholly executory contract, should such a contract be binding, the only kind of damages that would be awarded would be damages for loss of expectations since, by hypothesis, there would be no reliance and no benefit which could form the basis of damages. The chapter also examines the extent of expectation damages that should be awarded in cases of executory contracts. Furthermore, this chapter also seeks to study various economic issues on contract law to determine its economic efficiency, as well as discover if economics provides a solid argument for the moral and legal rules underlying executory contracts.Less
This chapter aims to discover whether the present law of contract strikes the right balance between formal and substantive reasons. It attempts to answer the question of whether, in a wholly executory contract, should such a contract be binding, the only kind of damages that would be awarded would be damages for loss of expectations since, by hypothesis, there would be no reliance and no benefit which could form the basis of damages. The chapter also examines the extent of expectation damages that should be awarded in cases of executory contracts. Furthermore, this chapter also seeks to study various economic issues on contract law to determine its economic efficiency, as well as discover if economics provides a solid argument for the moral and legal rules underlying executory contracts.
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 ...
More
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.
V.C. Govindaraj
- Published in print:
- 2019
- Published Online:
- September 2019
- ISBN:
- 9780199495603
- eISBN:
- 9780199097821
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780199495603.003.0005
- Subject:
- Law, Private International Law
The law of obligations consists of the law of contracts and the law of torts. The law of obligations, whether it be contract or tort, is the outcome of the act of parties which gives rise to a legal ...
More
The law of obligations consists of the law of contracts and the law of torts. The law of obligations, whether it be contract or tort, is the outcome of the act of parties which gives rise to a legal obligation. This chapter discusses the following: foreign contracts and the conflicts resolution process; express choice of law; informed or implied intention; inferred choice of law; inference as to the validity of a contract in case of conflict; absence of express or inferred choice of law; presumptions relating to the proper law doctrine; whether the proper law signifies connection with a country or with the system of law; time factor as an aid to interpretation; the doctrine of renvoi vis-à-vis the proper law; and foreign torts.Less
The law of obligations consists of the law of contracts and the law of torts. The law of obligations, whether it be contract or tort, is the outcome of the act of parties which gives rise to a legal obligation. This chapter discusses the following: foreign contracts and the conflicts resolution process; express choice of law; informed or implied intention; inferred choice of law; inference as to the validity of a contract in case of conflict; absence of express or inferred choice of law; presumptions relating to the proper law doctrine; whether the proper law signifies connection with a country or with the system of law; time factor as an aid to interpretation; the doctrine of renvoi vis-à-vis the proper law; and foreign torts.
Eva Steiner
- Published in print:
- 2018
- Published Online:
- April 2018
- ISBN:
- 9780198790884
- eISBN:
- 9780191833342
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198790884.003.0013
- Subject:
- Law, Comparative Law
This chapter examines the law of contract in France and discusses the milestone reform of French contract law. While this new legislation introduces a fresh equilibrium between the contracting ...
More
This chapter examines the law of contract in France and discusses the milestone reform of French contract law. While this new legislation introduces a fresh equilibrium between the contracting parties and enhances accessibility and legal certainty in contract, it does not radically change the state of the law in this area. In addition, it does not strongly impact the traditional philosophical foundations of the law of contract. The reform, in short, looks more like a tidying up operation rather than a far-reaching transformation of the law. Therefore, the chapter argues that it is questionable whether the new law, which was also intended to increase France's attractiveness against the background of a world market dominated by the Common Law, will keep its promise.Less
This chapter examines the law of contract in France and discusses the milestone reform of French contract law. While this new legislation introduces a fresh equilibrium between the contracting parties and enhances accessibility and legal certainty in contract, it does not radically change the state of the law in this area. In addition, it does not strongly impact the traditional philosophical foundations of the law of contract. The reform, in short, looks more like a tidying up operation rather than a far-reaching transformation of the law. Therefore, the chapter argues that it is questionable whether the new law, which was also intended to increase France's attractiveness against the background of a world market dominated by the Common Law, will keep its promise.
P. S. Atiyah
- Published in print:
- 1985
- Published Online:
- March 2012
- ISBN:
- 9780198255277
- eISBN:
- 9780191681578
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198255277.003.0003
- Subject:
- Law, Law of Obligations
This chapter provides an intellectual background to the freedom of contract issue in England in 1770. It suggests that the modern law of contract and its underlying principles appear to have had no ...
More
This chapter provides an intellectual background to the freedom of contract issue in England in 1770. It suggests that the modern law of contract and its underlying principles appear to have had no relationship to the ideas which underlay the concept of social contract. It discusses several issues relevant to social contract. These include the notion of a contract as the creation of a voluntary agreement, the impact of the Revolution settlement of 1688 on political theories, and the cohesiveness of the governing class.Less
This chapter provides an intellectual background to the freedom of contract issue in England in 1770. It suggests that the modern law of contract and its underlying principles appear to have had no relationship to the ideas which underlay the concept of social contract. It discusses several issues relevant to social contract. These include the notion of a contract as the creation of a voluntary agreement, the impact of the Revolution settlement of 1688 on political theories, and the cohesiveness of the governing class.
Irit Samet
- Published in print:
- 2018
- Published Online:
- February 2019
- ISBN:
- 9780198766773
- eISBN:
- 9780191821042
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198766773.003.0003
- Subject:
- Law, Philosophy of Law
This chapter challenges the argument that one of Equity’s most distinctive doctrines, fiduciary law, must be fused with a common law doctrine—the law of contract. In particular, it highlights the ...
More
This chapter challenges the argument that one of Equity’s most distinctive doctrines, fiduciary law, must be fused with a common law doctrine—the law of contract. In particular, it highlights the disadvantages of transforming the equitable duty of loyalty into an ordinary contractual obligation. The chapter first considers the ‘contractarian’ interpretation of fiduciary law according to which fiduciary duties are no more than a species of contractual obligations before explaining why, in contrast with the contractarian argument, Equity was right in claiming that the fiduciary relationship was essentially different from contract. After making the case of why fiduciary law should be treated as a sui generis equitable doctrine, the chapter examines two features of equitable fiduciary law that will change dramatically if the fusion suggestion is adopted (the language in which it is set and the way into the relationship) and shows the adverse consequences of moving in that direction. It concludes with the contention that the concept of ‘conscience’ still has an active role to play in the legal reasoning about fiduciaries.Less
This chapter challenges the argument that one of Equity’s most distinctive doctrines, fiduciary law, must be fused with a common law doctrine—the law of contract. In particular, it highlights the disadvantages of transforming the equitable duty of loyalty into an ordinary contractual obligation. The chapter first considers the ‘contractarian’ interpretation of fiduciary law according to which fiduciary duties are no more than a species of contractual obligations before explaining why, in contrast with the contractarian argument, Equity was right in claiming that the fiduciary relationship was essentially different from contract. After making the case of why fiduciary law should be treated as a sui generis equitable doctrine, the chapter examines two features of equitable fiduciary law that will change dramatically if the fusion suggestion is adopted (the language in which it is set and the way into the relationship) and shows the adverse consequences of moving in that direction. It concludes with the contention that the concept of ‘conscience’ still has an active role to play in the legal reasoning about fiduciaries.
SIR GUENTER TREITEL
- Published in print:
- 2002
- Published Online:
- January 2010
- ISBN:
- 9780199255757
- eISBN:
- 9780191719561
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199255757.003.0001
- Subject:
- Law, Human Rights and Immigration, Legal History
This chapter discusses the difficulty of choosing developments in the law of contract in the 20th century which are important enough to rank as ‘Landmarks’. It explains that the scope of the ...
More
This chapter discusses the difficulty of choosing developments in the law of contract in the 20th century which are important enough to rank as ‘Landmarks’. It explains that the scope of the discussion is almost entirely restricted to developments in English law and to the analysis of primary sources (judicial decisions and legislation) as opposed to secondary literature. It also gives a brief account and evaluation of the project to codify the law of contract, which was initiated by the Law Commission in 1965, and of the reasons why, after considerable work on the project had been done, it was abandoned in 1973.Less
This chapter discusses the difficulty of choosing developments in the law of contract in the 20th century which are important enough to rank as ‘Landmarks’. It explains that the scope of the discussion is almost entirely restricted to developments in English law and to the analysis of primary sources (judicial decisions and legislation) as opposed to secondary literature. It also gives a brief account and evaluation of the project to codify the law of contract, which was initiated by the Law Commission in 1965, and of the reasons why, after considerable work on the project had been done, it was abandoned in 1973.
John Baker
- Published in print:
- 2019
- Published Online:
- September 2019
- ISBN:
- 9780198847809
- eISBN:
- 9780191882456
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198847809.003.0008
- Subject:
- Law, Legal History
This chapter contains cases concerning the action of debt, with particular reference to the modes of proof and pleading. If there was no deed evidencing the debt, but some quid pro quo, the plaintiff ...
More
This chapter contains cases concerning the action of debt, with particular reference to the modes of proof and pleading. If there was no deed evidencing the debt, but some quid pro quo, the plaintiff produced ‘suit’ (which became fictitious) and the defendant could usually wage his law by taking an oath that he owed nothing and producing eleven compurgators to back him up; the working of wager of law, which itself became semi-fictitious, is illustrated. The cases show considerable uncertainty as to the underlying law of contract, if indeed there was any, since it only occasionally surfaced for discussion. Where a deed was used, it usually took the form of a bond: a sealed writing acknowledging the indebtedness. Since a deed was superior to parol evidence, few defences were available to debt on a bond; this was found to cause considerable hardship.Less
This chapter contains cases concerning the action of debt, with particular reference to the modes of proof and pleading. If there was no deed evidencing the debt, but some quid pro quo, the plaintiff produced ‘suit’ (which became fictitious) and the defendant could usually wage his law by taking an oath that he owed nothing and producing eleven compurgators to back him up; the working of wager of law, which itself became semi-fictitious, is illustrated. The cases show considerable uncertainty as to the underlying law of contract, if indeed there was any, since it only occasionally surfaced for discussion. Where a deed was used, it usually took the form of a bond: a sealed writing acknowledging the indebtedness. Since a deed was superior to parol evidence, few defences were available to debt on a bond; this was found to cause considerable hardship.
