European Contract Law
Part I
Laura M. Franciosi
Fall Semester – a.y. 2010-2011
Introduction to the Course
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Structure
Purpose
Content
Assignments
Final Exam
Basic Knowledge
• Comparative Law
• Legal traditions:
- civil law
- common law
• Legal formants
• Areas of Law
European Legal Framework
• National Laws
• European Law
• International Law (i.e. International
Conventions)
• Soft Law (e.g.: Unidroit Principles)
• Projects of unification
EU Law
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B.
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“Original” European Law
“Derivative” European Law:
Regulations
Directives
Decisions
Recommendations and Opinions
Life of a contract
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Negotiation
Formation
Execution
(Termination)
(Breach)
(Litigation)
Key Issues
A. Has been a contract entered into?
B. Kind of contract
C. Governing law
Governing Law
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Parties’ will (complying with mandatory
law provisions)
National law (parties’ choice or conflict of
laws)
EU law
International Conventions (for example:
CISG)
Soft Law (for example: UNIDROIT
Principles and DCFR)
Governing Law
• EU Law:
- so far: mandatory rules for certain
contracts (i.e. Directives for consumer
contracts)
- for the future: Project of an European
Contract Law ( DCFR, PECL)
Has been a contract
entered into?
In order to provide an answer to such an issue, we
have to take into account:
(i) The definitions of contract;
(ii) The fact that the formation of a contract is not
a static process but, rather, a dynamic one;
(iii) According to points (i) and (ii) above, when all
the requirements of a contract are fulfilled,
and, therefore, the formation process is
completed, a contract is entered into.
Definitions
• French Civil Code - Art. 1101
“A contract is an agreement (convention)*
by which one or more persons obligate
themselves to or more other persons to
give, or to do, or not to do, something”.
* Agreement (Convention)= Any agreement intended to produce legal effects
Definitions
• Italian Civil Code - Art. 1321
“A contract is an agreement between two
or more parties for the purpose of creating,
providing for or extinguishing amongst
themselves a legal patrimonial relation”.
Definitions
• Dutch Civil Code – Art. 6:213
“A contract … is a multi-lateral juridical act
whereby one or more parties assume an
obligation towards one or more other parties”.
• German Civil Code (BGB) - § 305
“For the creation of an obligation by a juristic act,
and for any alteration of the substance of an
obligation, a contract between the parties is
necessary, unless otherwise provided by law”.
Definitions
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a)
b)
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English Law: there is no legal definition
of contract, but, according to the caselaw, a contract exists when the following
requirements are fulfilled:
Offer
Acceptance
Consideration
Intent to create legal relationship
Definitions
• U.S. – Restatement 2nd of Contracts, §1
“A contract is a promise or a set of
promises for the breach of which the law
gives a remedy, or the performance of
which the law in some way recognizes as
a duty” .
Kind of Contract
1. According to the status of the parties:
- Consumer Contract, or
- Business Contract
2. According to the nature/effect/object of
the contract:
- sale; franchising, leasing, insurance
contract, etc.
Consumer Contracts
• No General Definitions
• Main characteristics:
- from a subjective perspective;
- from an objective perspective.
Assignment (Mandatory)
• NEXT Class: look for comparative
advertising (TV commercials, advertising
in newspapers, …) and bring it in class (if
possible). Be ready to discuss about it.