COMPARATIVE CONTRACT LAW
COMPARATIVE LAW
LLM
KUWAIT INTERNATIONAL LAW SCHOOL
SPRING 2013
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DR MYRA WILLIAMSON
OVERVIEW
This section of the course is called “Comparative Contract Law”
It has 5 main parts:
1. Introduction – to contract law, its relation to the law of obligations, some
general differences between common and civil law legal systems
2. The law of contract in common law jurisdictions – main elements of
contract law & some key cases
3. A particular contract law problem: “boilerplate clauses” (reference The
Anglo Project at University of Oslo)
4. A particular area of contract law: consumer goods and services
5. Comparison: the Kuwait perspective
Kuwait and common law
Kuwait and other civil law jurisdictions
 Islamic contract law and other legal systems
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International conventions relevant to contract law in Kuwait.
METHODOLOGY
Parts 1-4 will be teacher-led whereas part 5 will be studentled (more info in class)
I will prepare material to introduce you to the main ideas; I
will provide reading material to discuss in-class and on the
blog; I will try to bring a guest lecturer
During Parts 1-4, you will need to keep your mind open to the
comparisons that can be drawn between Kuwaiti law and the
ideas that we discuss
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As we progress through parts 1-4, please conduct your own
research into Kuwaiti contract law to obtain points of
comparison
ASSESSMENT
The mid-term exam in week 9 or 10 will contain a
question/questions on comparative contract law
The question(s) will ask you to draw comparisons between
Kuwait law and other jurisdictions
To help prepare for the exam, begin drawing comparisons
from the outset – take notes as you see
connections/similarities/differences
For example: when we learn about common law principles,
think about what Kuwaiti law says about this
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We will also have some blog entries on this topic
COMPARATIVE CONTRACT LAW
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PART 1: INTRODUCTION
PART 1 – INTRODUCTION
TO CONTRACT LAW
The relationship between the law of obligations and common
law contract law - your experience at law school:
• Civil law countries teach “The Law of Obligations” at university
which covers contract, delict, quasi-contract and quasi-delict
• Common law countries teach “The Law of Contract” and “The
Law of Torts” and within those subjects students learn about
related concepts such as ‘unjust enrichment’, ‘restitution’, ‘equity’
etc
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• Roughly, “delict” in civil law legal systems is approximately
equivalent to “torts” in common law countries
METHODS AND AIMS OF
COMPARATIVE CONTRACT LAW
What are the methods and aims of comparative contract law?
See Hugh Collins, “Methods and Aims of
Comparative Contract Law” 1 Oxford J. Legal Stud. 396
(1991)
(available on www.drmyrawilliamson.com/students)
• Collins lists 4 main aims of comparative contract law:
2.
3.
4.
The international unification/harmonisation of laws based
on common fundamental principles;
Social theory perspective – understanding changes in legal
systems and societies
Seeking the best solutions to legal problems – look at
foreign laws and incorporate their solutions into domestic
law
Understanding one’s own legal system better, through
studying other legal systems
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1.
WHY STUDY COMMON LAW
CONTRACT LAW IN A CIVIL LAW
JURISDICTION?
You might ask: what is the point of studying the “Law of Contract” from
the common law system if Kuwait is mainly a civil law country?
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• Because Kuwait is a mixed jurisdiction – so it’s interesting to see where
Kuwait’s laws are from and what the similarities/differences lie
• Because contracts often have a choice of law clause so its important to
know about other jurisdictions to make a good choice of the applicable
law
• Because it’s good to know how other courts will interpret the contract
• Because lots of contracts have English terms in them, even though the
governing law is not England so its important to understand what those
terms mean
• For other reasons: Transnational contracts, public private partnerships,
law firms with foreign partners, judges needing to understand foreign
laws, general interest in understanding contract law
SOME DIFFERENCES BETWEEN
COMMON LAW AND CIVIL LAW
LEGAL SYSTEMS
COMMON LAW
CIVIL LAW
Former British colonies
(including the US)
Former French, Dutch, German or
Portuguese colonies (ie Central and
South America, large part of Europe,
parts of Asia)
Judicial decisions are binding
on lower courts
Extensive freedom of contract
(few provisions are implied
into the contract)
Contracts are, therefore, often
longer
Generally, everything is
permitted that is not
prohibited
Codified system of law
Usually a constitution – most areas of
law covered by comprehensive code
Less scope for judge-made law
Legislative enactments
Courts specific to the underlying
codes (eg constitutional court,
administrative court)
Less freedom on contract, many terms
implied & parties can’t contract out of
many provisions
Shorter contracts
Source: World Bank “PPP In Infrastructure Resource Center” available at:
http://ppp.worldbank.org/public-private-partnership/legislation-regulation/framework-assessment/legalsystems/common-vs-civil-law (last accessed on 27 February 2013)
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There is not always a written
constitution or codified laws
GENERAL OBSERVATIONS FOR A
CIVIL LAWYER STUDYING COMMON
LAW
•
Most of the contract law in common law legal systems comes
from judge-made law (although there are statutes that are
relevant, too). So, whilst there are general principles of
contract law they have come from the courts
•
There is no difference between private and public contracts:
if the government (state or local) is a party to a contract, the
contract is still the same (no “public contracts law”)
•
There are significant differences between common law and
European civil law but a Justinian wrote, ‘nearly all
contracts…are common to all people”
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Source: Whincup, M., Contract Law and Pratice – The
English System with Scottish, Commonwealth and
Continental Comparisons (Kluwer Law: the Netherlands,
2006)
NEXT: THE LAW OF
CONTRACT
In the next slideshow we will consider questions such as:
What is contract law all about?
Why are we looking at contract in the English common law?
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What are the main elements of the contract?