ICP Core Course – European Contract Law
Workshop 1: Europeanisation of Contract Law
Reading: Ius commune book chapters 1, 3.1
PECL Article 1:101: Application of the Principles
(1) These Principles are intended to be applied as general rules of contract law in the European Union.
(2) These Principles will apply when the parties have agreed to incorporate them into their contract or that their
contract is to be governed by them.
(3) These Principles may be applied when the parties:
(a) have agreed that their contract is to be governed by "general principles of law", the "lex mercatoria" or the
like; or
(b) have not chosen any system or rules of law to govern their contract.
(4) These Principles may provide a solution to the issue raised where the system or rules of law applicable do
not do so.
1.
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5.
6.
What is the purpose and role of comparative law? Is it becoming more or less
important?
What are the techniques of comparative law?
What is PECL really? To what extent does it represent the "common core"? We will
consider (a) remedies and (b) mistake/non-disclosure. How does the answer fit with the
purposes of PECL?
What is the DCFR really? How does this fit with the purposes of the DCFR as a toolbox?
What practical use is the DCFR in drafting Directives? How much influence has it had on
the draft Directive on Consumer Rights?
Would it be useful to have one or more Optional Instruments? For what purpose?
Covering what? How would they work in practice?
ICP Core Course – European Contract Law
Workshop 2: Notions of contract. Categories of Contract.
Formation I: offer and acceptance
You’ll work in groups. Each group is to prepare a particular topic and to present it in the workshop.
The groups should be prepared to explain the cases and materials to the class and to draw
comparisons between them. They may wish to consider to what extent there are common principles
and whether these are represented by the relevant provision of PECL, where there is one.
Reading for all: ch. 2, pp. 40 -67 and ch. 6, pp. 279-322, 410-422 and 427-430
Group A: Agreement: pp 47-59 (5 cases)
The Hannah Blumenthal, BGH 7 June 1984, Stichting Postwanorder, Cass com 15 Feb 1961, Cas com
14 Jan 1969
Group B: Preliminary dealings and offers: pp 281-304 (7 cases)
Gibson v Manchester CC, Hugin Sweda, BGH 8 March 1984, Cass civ 3, 28 Nov 1968, Carlill v Carbolic
Smoke Ball, Pharmaceutical Soc v Boots, Cass civ 1, 20 October 1964
Group C: Revocability: pp 306-322 (4 cases)
RG 25 October 1917, Cass civ, 17 December 1958, Dickinson v Dodds, Daulia v Four Millbank
Nominees
Group D: Agreements in principle: pp 410-419 (4 cases), 427-430 (1 case)
Cass com 4 February 1986, Cas soc 24 March 1958, BGH 8 June 1962, Eccles v Bryant, Walford v
Miles (Please note that this covered here because of what it suggests about whether an express
agreement to negotiate would be binding.)
ICP Core Course – European Contract Law
Workshop 3: Formation II: cause and consideration; intention to create legal relations
Read all: ch. 5, pp. 192 – 234. We are not going to discuss questions of form.
ch. 7 no. 7.1 (informal agreements). We will not be dealing with the rest of the
chapter
PRESENTATION 1: on promissory estoppel, ch. 5 pp. 235 – 241 (High Trees case)
PRESENTATION 2: on gentlemen’s agreements, ch. 7 no. 7.2
Questions to consider:
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What are the differences between cause and consideration? To what extent do the two
doctrines overlap. Which function do they serve?
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Is there anything in German law taking the role of either cause or consideration? Why has
German law no equivalent doctrine?
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To what extent have cause and consideration subject to major developments recently? Are
they expanding in scope or rather contracting?
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Do all three countries have a similar notion of “intention to create legal relations”?
ICP Core Course – European Contract Law
Workshop 4: Incorrect information and its effect on the contract (fraud, mistake,
misrepresentation)
Before the class, please read ALL the material set out below and come prepared to discuss it. You
may also want to look at your English textbook to remind yourself of the English law of mistake.
PRESENTATIONS: The reading list does not include materials an (i) fraud (ch. 9.2), and (ii) cases of
non-disclosure (ch. 9.4). These two areas will be presented by one student each in form of an
electronic presentation.
Read all: pp. 517-533, 534-543, 546-575
Have a look at the following statutory provisions: Arts 1109, 1110 Code civil, §§ 119, 122 BGB, Art
6:228 BW (Please explain the basic structure of each set of provisions)
And read the following cases: Shark meat, Raffles v Wichelhaus, Bottle openers (For these cases,
think about how they fit with the various notions of “agreement” which we covered earlier), Two
sellers, bank guarantee, BGHZ 91, 324 (ch. 2 p. 51), Hartog v Colin & Shields, Wine to Algiers, Cass.
Com 15.02.1961 (ch. 2 p. 56), Toilet Paper, The Villa Jacqueline, The Poussin, Mozart Notebooks,
Ultrasonic device
ICP Core Course – European Contract Law
Reading week: good faith in contracting
There will be no class this week (and next week – reading week). Instead you are being asked to do
the reading and bear in mind the questions below
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Compare the statutory provisions at the beginning of the chapter. Are there major
differences between them?
What does the English notion of ‘subject to contract’ mean (as mentioned in Watford v
Miles)? You might also want to try to find out what gazumping means?
What is a collateral agreement (again, as mentioned in Watford v Miles). Do the Continental
systems have to rely on such an idea?
Under which circumstances would English law hold an agreement to negotiate exclusively
with one party enforceable?
Is it true that misrepresentation and fraud cover some of the ground occupied by precontractual good faith on the Continent?
Can there be a general that parties who have started negotiations are bound to complete
them? With which fundamental principle would such a principle conflict?
When reading the case of Tacconi v Wagner have a look at art. 5(1) and 5(3) of the Brussels I
Reg (Reg. EC 44/2001) and bear in mind that the ECJ always stresses under the Brussels Reg
that contract covers obligations that are “freely assumed”, e.g. in the Hadte case referred to
in para 23 of the judgment. Why might the decision have only limited impact for the
purposes of substantive law? And what about the references to Rome I and II? Are they
conclusive for substantive law?
In the notes on Oolitic Stones (GGH, 25.11.1992) you’ll find a reference to the different view
of some German authors, i.e. that liability should not be based on a pre-contractual duty of
good faith but on disappointed reliance. How does this view fit in with some of the topics we
have discussed earlier?
In France, on what basis are damages awarded in cases of breach of pre-contractual good
faith? Is that in line with, or different from, German and English law.
While you don’t have to look at cases from other jurisdictions, you should read the excerpt
from Walton v Mahers. In what respect does it differ from what we heard earlier about
promissory estoppel? Do you think that case goes to far or does it produce a reasonable
outcome?
Compare ch. 8.3 (duty to give adequate information) with the proposed consumer rights
directive (http://ec.europa.eu/consumers/rights/docs/Directive_final_EN.pdf)
Basic Bibliography:
J.Carwright and M.Hesselink, Precontractual Liability in European Private Law (2008)
J.Carwright, S.Vogenauer and S.Whittaker, Reforming the French law of obligations :
comparative reflections on the Avant-projet de réforme du droit des obligations et de la
prescription ('the Avant-projet Catala') (2009)
(“DCFR”): Principles, Definitions and Model Rules of European Private Law: Draft Common
Frame of Reference (Interim Outline Edition) (2008); Outline Edition (2009)
J.Gordley (ed), The Enforceability of Promises in European Contract Law (2001)
P.Haanappel and E.Mackaay, New Netherlands Civil Code (1990)
A.Hartkamp et als., Towards a European Civil Code (1994; 2nd ed., 1998; 3rd ed, 2004)
International Encyclopaedia of Comparative Law (ed. U.Drobnig) (Vols. VII and VIII, passim)
H.Kötz and A.Flessner, European Contract Law (Vol. I, 1997)
B.Markesinis, H.Unberath and A.Johnston, German Law of Contract (2nd ed, 2006)
P. Nebbia, Unfair terms in European Contract Law (2007)
B.Nicholas, French Law of Contract (2nd ed., 1992)
Principles of European Contract Law Parts I and II (ed. O.Lando and H.Beale, 2000)
Principles of European Contract Law Part III (ed. O.Lando and others, 2003)
Radley-Gardner and others (eds), Fundamental Texts on European Private Law (2003)
R.Sefton-Green (ed), Mistake, Fraud and Duties to inform in European Contract Law (2005)
G.Treitel, Remedies for Breach of Contract (1988)
C.Twigg-Flesner, The Europeanisation of Contract Law (2008)
S.Vogenauer and S.Weatherill, The Harmonisation of European Contract Law (2006)
H.Warendorf, R.Thomas, I.Curry-Sumner, New Civil Code of the Netherlands (2009)
R.Zimmermann, The new German law of obligations : historical and comparative
perspectives (2005)
R.Zimmermann and S.Whittaker (eds), Good Faith in European Contract Law (2000)
K.Zweigert and H.Kötz, Introduction to Comparative Law (3rd ed., 1998)