Faculty of Law Master and Postgraduate Program International Business Law 2013 / 2014 MMIB/PLIB 003
Contract Law
Fernando Simões
Assistant Professor
fernandodsimoes@umac.mo Course Outline
1st session – International contracts in the XXI century: harmonization of
rules or standardization of clauses? (6 January, 19h00-21h00)
In international trade the differences relating to the applicable legal rules,
namely costs related with the difficulty in finding out about the provisions of
an applicable foreign Contract Law, obtaining legal advice and negotiating the
applicable Law have the effect of a ‘tax’. Hence, the reduction of costs related
to Contract Law in cross-border transactions is one of the main purposes of
several entities that pursue the harmonization and standardization of Contract
Law. In this session we aim to discuss the role of harmonization and
standardization of Contract Law as a measure to promote trade and economic
development. We will also analyse how traders have been dealing with the
diversity of legal regimes through other mechanisms such as the development
of standardized contracts, essentially self-sufficient, which render the
divergence between the default rules of the different national to become
basically irrelevant.
2nd session – Professionals and consumers: should SMEs be treated as
laymen? (7 January, 19h00-21h00)
Although Private Law is based on the assumption that the parties are equal and
free, this is not always the case. In modern Contract Law, the meaning of
“freedom of contract” has changed somewhat when compared to that
prevailing at the time of classical Contract Law. Nowadays, social elements are
widely included in order to maintain contractual fairness in some contractual
relations. This happens not only in contracts between consumers and
professionals but also between Small and Medium Sized Enterprises (SMEs)
and larger companies. Despite being professionals, and thus not benefitting
from the protection of Consumer Law, the position of SMEs deserves
particular attention from European Contract Law, especially when we take into
account the importance of this type of companies to the Internal Market. Our
purpose is to discuss if SMEs should benefit from a special protection when
they conclude a contract based on standard contract terms drafted by a larger
company. Is Contract Law losing its harmony by creating too much specific
rules for special categories of persons?
3rd session – The Principle of Good Faith (8 January, 19h00-21h00)
The Principle of Good Faith (which is linked to the idea of fair dealing) is an
ethical evaluation of the conduct of the parties in legal relationships. Good
Faith is viewed as one of the core values of all Private Law. In this session we
will analyse some of the repercussions of this Principle, especially with regard
to pre-contractual liability.
4th session – Standard contract terms (9 January, 19h00-21h00)
Currently, standard contract terms are a feature of the vast majority of written
contracts. Typically they are not negotiated but are presented to the other party
without any chance of discussion. Their legal importance is that they alter
default solutions provided by traditional Contract Law. In this session, we
discuss the regulation of standard contract terms in the proposal for a
Common European Sales Law, the Unfair Terms Directive, the Draft
Common Frame of Reference and the Vienna Sales Convention.
5th session – Change of circumstances (10 January, 19h00-21h00)
According to the doctrine of change of circumstances, the disadvantaged party
may request for renegotiation of the contract or petition to the courts for relief
where a change taken place subsequent to the formation of the contract has
rendered the contractual obligation so excessively onerous. This is a traditional
and paramount exception to the principle of Pacta sunt servanda. In this session
we compare the provisions of the United Nations Convention on Contracts for
the International Sale of Goods (CISG) that relate to the doctrine of
impossibility of performance and change of circumstances to those of the
Principles of European Contract Law (PECL).
6th session – Legal origins, language and globalisation: Contract Law as
promoter of economic development (13 January, 19h00-21h00)
The enunciation of different classifications and groupings of legal systems into
legal families, legal cultures or legal traditions is a traditional and unavoidable
feature of Comparative Law. The direct link between economic activity and
Contract Law is irrefutable. Legal reform is indispensable for reorganizing and
improving market structures. The normal way to promote legal reform is to
learn from other jurisdictions. ‘Legal transplants’ are the most fertile source of
legal development. In this session we will discuss the importance of legal
origins and legal families, language and international harmonization in a
globalized world.
7th session – Contract Law and Ethics: from Consumer Law to consumer
ethics (14 January, 19h00-21h00)
Consumption patterns influence our quality of life in deep ways, having a
substantial effect on both the individual and the society as a whole. Most
consumption decisions we make on a daily basis may have an ethical content.
Normally our ethical concerns result from personal beliefs and societal
influences, not from the Law. The question then becomes whether public
entities have legitimacy to impose certain dimensions of ethical behaviour and
whether Consumer Law is the appropriate mechanism to achieve such
purposes. Traditionally Consumer Law was aimed at protecting the consumer
himself. Should legal intervention be expanded to guide consumer behaviour
even when the protection of consumers as such is not the goal?
8th session – Economic analysis of Contract Law (15 January, 19h00-21h00)
Contract law governs agreements between parties. In this session we will start
analysing the foundations of Economic Analysis of Law, discussing some issues
concerned with contract formation, that is, with the process through which
parties find contracting partners, with aspects of contract negotiation, and with
the rules governing when an arrangement between parties becomes legally
recognized as a contract.
9th session – Economic analysis of Contract Law (II) (16 January, 19h0021h00)
In this session we will continue the Economic Analysis of Law, focusing on the
interpretation of contracts, damage measures for breach of contract and
specific Performance as the Remedy for Breach of Contract.
10th session – Economic analysis of Contract Law (III) (17 January, 19h0021h00)
In this last session we will conclude the Economic Analysis of Law, focusing
on the renegotiation of contracts, legal overriding of contracts and extra-legal
means of contract enforcement.
READING MATERIALS WILL BE PROVIDED DURING THE COURSE