Professor Mads Andenæs
JUS5240/JUR1240
Comparative
Private Law
Going over outline and reading, once
again
• Any questions?
Lecture Outline Autumn 2011
1. Introduction
2. The proposal for a common European sales
law
3. Overview of the topics of the course. Placing
the proposal for a common European sales
law and the DCFR in an international
perspective.
4. The discipline of comparative law. Legal
transplants and convergence of legal families
Lecture Outline Autumn 2011
5. European Contract Law and international
contract law conventions
6. Applying comparative method in private law
and contract law in particular.
7. Formation of contracts.
8. Interpretation, Reasonableness, Good faith.
9. Liability and other Remedies.
Updated reading list (on the web site)
With web links and other features that may be helpful.
• Moss, G.C.: Lectures on Comparative Law (160 pages) (to be found in the
bookstore Akademika published in "Stensilserien for Institutt for Privatrett-nr 166
IfP " and
• http://folk.uio.no/giudittm/PCL_Vol15_3%5B1%5D.pdf
• M Andenas and D Fairgrieve, ‘There is A World Elsewhere’ — Lord Bingham and
Comparative Law in M Andenas and D Fairgrieve (eds) Tom Bingham and the
Transformation of the Law (Oxford University Press 2009), 402 (Available as
ebook from the University Library by using "BIBSYS ASK" online-system and on
http://works.bepress.com/mads_andenas/5/)
• Sacco, R.: Legal Formants: A Dynamic Approach to Comparative Law, in 39
American Journal of Comparative Law (1991), pages 1-34,343-402 (Available from
the University Library by using "BIBSYS ASK" online-system)
• Sacco, R.: One Hundred Years of Comparative Law, in 75 Tulane Law Review
(2001) 1159-1176 (Available from the University Library by using "BIBSYS ASK"
online-system)
Updated reading list
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Sir Basil Markesinis, Jørg Fedtke, Engaging With Foreign Law (Hart Publishing,
Oxford 2009, Comparative Law in Commercial Practice, Ch 10, ISBN-10:
1841139475) p 323-350 (Available as ebook from the University Library by using
"BIBSYS ASK" online-system).
Moss, G.C.: International Commercial Law, Institute of Private Law, Oslo 2010,
pages 101-205 (to be found in the bookstore Akademika published in
"Stensilserien for Institutt for Privatrett"/"copy series from the Institute of Private
Law" no 185)
Kåre Lilleholt, «European Private Law: Unification, Harmonisation or
Coordination», i Roger Brownsword, Hans-W. Micklitz, Leone Niglia and Stephen
Weatherill (eds.), The Foundations of European Private Law, Oxford 2011, s. 353–
361.
Hans-W. Micklitz and Norbert Reich ’The Commission Proposal for a “Regulation
on a Common European Sales Law (CESL)” – Too Broad or Not Broad Enough?’,
EUI Working Paper LAW 2012/04.
http://cadmus.eui.eu/bitstream/handle/1814/20485/LAW_2012_04_ERPL_03.pdf?s
equence=3 and VI) and C (ca 430 pages).
Supplementary reading
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Principles, Definitions and Model Rules of European Private Law, Draft Common
Frame of Reference, DCFR See also:
http://ec.europa.eu/justice/policies/civil/policiescivilintro_en.htm
Proposal for EU Regulation on Common sales law with other materials on
http://ec.europa.eu/justice/newsroom/news/20111011_en.htm
The EU Consumer Rights Directive,
http://register.consilium.europa.eu/pdf/en/11/pe00/pe00026.en11.pdf
Sir Basil Markesinis, Jørg Fedtke, Engaging With Foreign Law (Hart Publishing,
Oxford 2009, ISBN-10: 1841139475). (Available as ebook from the University
Library by using "BIBSYS ASK" online-system) C (ca 430 pages).
Supplementary reading
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Moss, G.C.: Contract or Licence? Regulation of Petroleum Investment in Russia
and Foreign legal Advice, in Journal of Energy & Natural Resources Law, 1998,
pages 186-199
Moss, G.C.: INTERNATIONAL CONTRACTS BETWEEN COMMON LAW AND
CIVIL LAW: IS NON-STATE LAW TO BE PREFERRED? THE DIFFICULTY OF
INTERPRETING LEGAL STANDARDS SUCH AS GOOD FAITH, Global Jurist:
Vol. 7: Iss. 1 (Advances), Article 3 pp.1-38
Gordley, J., Von Mehren, A., An introduction to the comparative study of private
law, Cambridge University Press, 2006.
Tetley, W.: Mixed Jurisdictions: Common Laws vs. Civil Law (Codified and
Uncodified), part I and part II, (56
pages)http://www.mcgill.ca/maritimelaw/comparative/mixedjur1/ http://www.mcgill.ca/maritimelaw/comparative/mixedjur-2/
Joint network on European Private Law, with further links: http://www.copecl.org
Schulze, R. (ed), “New Features in Contract Law”, Sellier European Law
Publishers, 2007
Supplementary reading
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Introduction to the Principles of European Contract Law, with further bibliographic
references:http://www.cisg.law.pace.edu/cisg/text/peclintro.html
UNIDROIT Principles of International Commercial Contracts, with further
bibliographic
references:http://www.unidroit.org/english/principles/contracts/main.htm
Vogenauer, S., Weatherill, S., The Harmonisation of European Contract Law,
Studies of the Oxford Institute of European and Comparative Law, 2006
Wilhelmsson, T., Paunio, E., Pohjolainen, A. (eds), “Private Law and the Many
Cultures of Europe”, Kluwer Law International, 2007
Zimmermann, M., Reimann, The Oxford Handbook of Comparative Law, Oxford
University Press, 2006
Zweigert, K. and H. Kötz: Introduction to Comparative Law, 3rd ed Clarendon
Press, Oxford 1998: Parts B (except chapter V and VI) and C (ca 430 pages).
Examination and past papers
The main topics: 2. The proposal for a
common European sales law
• The European Commission proposal for a
Regulation on a Common European Sales
Law (COM(2011) 635 final).
• Background and reactions
• ‘Legal base’ in the EU
• The Internal Market, consumers, business
and contract law
3. Overview of the topics of the course. Placing the
proposal for a common European sales law and the
DCFR in an international perspective.
Follow up from first lecture and Professor
Lilleholt’s lecture on European Sales Law.
4. The discipline of comparative law. Legal
transplants and convergence of legal families.
What is comparative law and what functions may it
serve?
Law making: legislation, case law
Understanding law and legal rules
The normative and the factual, effects and context
Legal transplants
Legal families
Convergence of legal families
5. European Contract Law and
international contract law conventions
Return to the conventions, model laws, EU legislation,
and different iniatives. What do they cover or let out?
Some differences between international and EU
instruments:
the international focus on the
commercial/professional
EU law on consumer protection
Conventions optional/declaratory/derogable (freedom
of contract), EU directives mandatory
6. Applying comparative method in
private law and contract law in
particular.
The role of comparative law and method in
private law
Contract law: commercial and consumer law
The autonomy of the national
7. Formation of contracts.
8. Interpretation, Reasonableness, Good faith.
9. Liability and other Remedies.
7. Formation of contracts.
Offer, accept, binding contract
Do offers bind, is ’consideration’ required?
To what extent is a universal model found in
the conventions and model laws?
EU law and the formation of contracts.
8. Interpretation, Reasonableness,
Good faith.
Interpretation in different national traditions.
The role of reasonableness and good faith.
Reading for the next lecture: 4. The discipline of comparative
law. Legal transplants and convergence of legal families:
Moss, G.C.: International Commercial Law
or Lectures on Comparative Law
M Andenas and D Fairgrieve, ‘There is A World
Elsewhere’ (Available as ebook)
Sir Basil Markesinis, Jørg Fedtke, Engaging
With Foreign Law (Hart Publishing, Oxford
2009, Comparative Law in Commercial
Practice, Ch 10, ISBN-10: 1841139475) p
323-350
Placing the proposal for a common European
sales law and the DCFR in an international
perspective
A Common European Sales Law?
• Proposal for regulation: COM(2011) 635 final
• An optional “2nd regime” for cross-border
contracts
• Scope: sales of goods, supply of digital
content, related services
• Relevance for comparative law
Contract law in Europe
• Varies from country to country
• Private international law
• Uniform law
– CISG
– EU legislation, minimum harmonisation, total
harmonisation
• Model laws etc.: UNIDROIT Principles,
PECL, DCFR
The process up to CESL
• The Commission’s Action Plan (2003)
• CoPECL Network (2005)
• Draft Common Frame of Reference (2009)
– Study Group on a European Civil Code
– Acquis Group
• French texts on terminology and principles
(2008)
• Feasibility Study (2011)
• CESL (2011)
The DCFR
• Black letter rules
• Comments
• Comparative notes
Contents DCFR
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Book I General provisions
Book II Contracts and other juridical acts
Book III Obligations and corresponding rights
Book IV Specific contracts and the rights and
obligations arising from them
• Book V Benevolent intervention in another’s
affairs
Contents DCFR (ctd.)
• Book VI Non-contractual liability arising out of
damage caused to another
• Book VII Unjustified enrichment
• Book VIII Acquisition and loss of ownership
in movables
• Book IX Proprietary security rights in
movable assets
• Book X Trusts
EU legislation on contracts
• Primarily on consumer contracts
• Most recent: Consumer Rights Directive
(2011/83)
– deadline 13 December 2012
– contracts concluded after 13 June 2014
CESL – a second regime
German law
Norwegian law
Existing
law
Existing
law
CESL
French law
Existing
law
CESL
CESL
Application of CESL
• Chosen by the parties
• Cross-border contract (unless otherwise
decided)
• At least one party in a Member State
• Contract for the sale of goods, for the supply
of digital content, related services
• Trader and consumer or SMB (unless
otherwise decided)
Recourse to other law?
• Autonomous interpretation
• Issues with the scope of CESL must be
settled without recourse to national law
Content of CESL
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Making a binding contract
Interpretation
Obligations and remedies
Damages and interest
Restitution
Prescription
Conclusion of contract
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Definition of contract
Offer and acceptance
Right to withdraw
Defects in consent
Voidability due to mistake
• Article 48
• Inaccuracy in communication
Interpretation
• Common intention
• Particular meaning known to the other party
• Meaning that a reasonable person would
give to it
• Relevant matters
– circumstances
– practices
– good faith and fair dealing
DCFR and Common
Law
• DCFR
• Relationship to national legal
systems and traditions
• Special issues relating to the
Common Law.
35
DCFR and its general
reception
• Some support from participants
• Critical approaches typified by
Zimmermann and Hugh Collins
36
ESL and its general
reception
• Some support from participants
• Critical approaches typified by
Zimmermann and Micklitz
37
The autonomies of law
• The autonomies of law as a challenge to a
European Civil Code or DCFR
• National legal systems
• Private law, public law
• Commercial law, private law
• European law in the national traditions of
private law
• A set of false dichotomies?
38
European law and the
challenge of common law
• Common law contracts in areas such as
finance, IP
• Common law practice with US and London
firms.
39
The efficiency of the common
law
• World Bank: Doing Business
– Understanding regulation 2004
– Removing obstacles to growth 2005
• Réponse de l’Association Henri Capitant aux
Rapports "Doing business" de la Banque
Mondiale - Les droits de tradition civiliste en
question
40
How the common law sees itself
• Tennekoon and Wood
41
The role of legislation in the
common law of commerce
• Contract, case law and default rules in
legislation.
• Limited.
• No general codifications.
• Exceptions, insurance codifications.
42
Some features of the common law
of England: traditional argument
• Structure of contract law is different: limited
default rules, contract practice aims at
providing an autonomous and complete
regime.
• Interpretation of contracts: exclusionary rules
(pre-contractual negotiations and
postcontractual behaviour) and literalism.
Role of good faith.
• Creditor-friendly.
43
How is the common law
developing
• Law on interpretation of contracts is
changing: exclusionary rules and literalism.
Role of good faith.
• Creditor-friendliness is less obvious in
insolvency but still more freedom in
constructing securities.
• Structure of contract law remains different in
this respect: limited default rules, contract
practice aims at providing an autonomous
and complete regime. But here many areas
follow this direction.
44
Critical perspectives on these
common law features
• Structure of contract law: what is the cost of
current contract law practice with no default
rules to rely on, transaction cost in
contracting, quality of contract terms
• Interpretation of contracts: did these rules
ever provide the benefits envisaged?
• Creditor-friendliness: the economic cost
benefit analysis. Personal credit and security
rights. Creditor protection and access to
credit without security.
45
Absence of principles
• P Birks English Private Law
46
How do courts use comparative law?
47
The national paradigm and the closed
system
• Did it ever apply?
– In legislative reform
– In the courts
• Current developments: Italian and English courts,
the US.
– Fairchild v Glenhaven Funeral Services Ltd, [2002] UKHL
22.
– Sentenza n. 21748 del 16 ottobre 2007 (Sezione Prima
Civile, Presidente M. G. Luccioli, Relatore A.
GiustiSentenza n. 21748 del 16 ottobre 2007 (Sezione
Prima Civile, Presidente M. G. Luccioli, Relatore A. Giusti,
“Salute,accanimento terapeutico,stato
vegetativo,eutanasia”).
– Roper v Simmons 543 US 551 (2005).
48
The positions in the US debate.
• Harold Koh, Sir Basil
Markesinis, Jeremy
Waldron, the ‘liberal’ justices
• Mary-Ann Glendon, The
Federalist Society, the
conservative justices
49
The positions in the English
debate.
• Sir Basil Markesinis, Lord Bingham: making use of
comparative law as a tool
• John Bell: limitations of context but still of use in
policy reform and legal analysis
• Jane Stapleton, Lord Hoffmann
50
Can courts make use of comparative law?
–The use of foreign law
–The indirect entry points for
foreign law and comparative
law
51
4. Formation of contracts
• In the international instruments, in the DCFR
• In national law: different models
52
Formation in common law
Two main elements:
1) Agreement
a) Offer
b) Acceptance
2) Consideration
Other elements: Intention to create legal
relations, Capacity, Formalities
53
The offer in common law
Definition – Statement by one person to
another person, evincing his/her willingness to
enter into contractual relations with that person
on certain terms.
Distinguish offer from an “Invitation to Treat” –
auctions, tenders, Carbolic Smoke Ball.
54
«Consideration» in common law
1) Must be a connection between the consideration and
the promise which it is said to support.
2) Must move from the promisee, but not necessarily to
the promisor (Coulls v Bagot’s Executor and Trustee).
3) Must be sufficient but need not be adequate
(Chappell & Co v Nestle & Co Ltd)– Illegal
consideration is not sufficient, and excessively
inadequate consideration may not be sufficient.
4) Past consideration is not good consideration
(Lampleigh v Brathwait).
55
French law and «cause»
Art 1108 of the Code Civil:
• Consent,
• Capacity,
• Object,
• Cause
56
Formation in the international
instruments:
• UNIDROIT Principles.
• The Convention on the International Sale of
Goods (CISG) adopted by UNCITRAL.
• PECL.
• DCFR.
• EU consumer law
• ESL
57
Formation in the UNIDROIT Principles
:
PICC third edition 2010
CHAPTER 2 — FORMATION AND
AUTHORITY OF AGENTS
SECTION 1: FORMATION
58
CISG
The Convention on the International Sale of
Goods (CISG) adopted by UNCITRAL
Part II. Formation of the contract
59
Formation in PECL and DCFR :
• DCFR: contract as ‘bilateral or multilateral
juridical act’. ‘BGB’ translated into English’?
Role of legal scholarship.
• ‘Juridical act’ and ‘contract’, Art II.-1:1010(1)
DCFR. PECL: less precise?
60
Formation in PECL: Article 2:101
(1) A contract is concluded if:
(a) the parties intend to be legally bound, and
(b) they reach a sufficient agreement without
any further requirement.
(2) A contract need not be concluded or
evidenced in writing nor is it subject to any
other requirement as to form. The contract may
be proved by any means, including witnesses.
61
Formation in DCFR: Article II.-4:101
PECL Article 2:101 para(2) has been removed:
(2) A contract need not be concluded or
evidenced in writing nor is it subject to any
other requirement as to form. The contract may
be proved by any means, including witnesses.
62
UNIDROIT PICC and UNCITRAL CISG
No such general part relating to the formation
of contract law
63
Offer and acceptance in PICC and
CISG
UNIDROIT PICC and UNCITRAL CISG:
• An offer must be such that, through its
acceptance, a contractcan be brought into
existence. It must therefore be sufficiently
definite and be based on the intention, on the
part of the offeror, to be bound: Art 14 CISG;
Art 2.1.2 PICC; Art 2:201(1) PECL; Art II.–
4:201(1) DCFR.
64
Effectiveness and revocal
• An offer becomes effective as soon as it
reaches the offeree; Art 15(1) CISG; Art 2.1.3
PICC.
• Until that moment the offeror may revoke it at
any time. Art 15(2) CISG; Art 2.1.3 PICC.
65
Revocal
Even an offer that has already reached the offeree, and
has therefore become effective, may however be
revoked as long as the revocation reaches the offeree
before the latter has dispatched his acceptance. This is
not the case if: (i) the offer indicates that it is
irrevocable;(ii) the offer states a fixed time for its
acceptance; or (iii) the offeree can reasonably rely
upon the offer being irrevocable and has already acted
in reliance upon the offer. Art 16 CISG; Art 2.1.4 PICC.
66
Rejection and acceptance by
statement and conduct
An offer also lapses as a result of a
rejection reaching the offeror. Art 17 CISG; Art
2.1.5 PICC.
Acceptance by means of statement or conduct;
the moment when the acceptance becomes
effective and the contract is thus concluded;
time limits for acceptance and the
consequences of late acceptance. Arts 2:204–
2:208 PECL.
67
An offer also lapses as a result of a
rejection reaching the offeror. Art 17 CISG;
Art 2.1.5 PICC; Art 2:203 PECL.
Far reaching agreement on acceptance:
acceptance by means of statement or conduct;
the moment when the acceptance becomes
effective and the contract is thus concluded;
time limits for acceptance and the
consequences of late acceptance; modified
acceptance. Arts 2:204–2:208 PECL; Arts II.–
4:204–4:208 DCFR.
68
Differences between PECL and PICC
69
DCFR and ESL compared
70
5. Interpretation, Reasonableness,
Good Faith
In the international instruments, in the DCFR
In national law: different models
71
Interpretation, Reasonableness, Good
Faith in the Common Law
72
Interpretation, Reasonableness, Good
Faith in German, French and Italian
law
73
Interpretation, Reasonableness, Good
Faith in the international instruments:
• UNIDROIT Principles.
• The Convention on the International Sale of
Goods (CISG) adopted by UNCITRAL.
• PECL.
• DCFR.
• ESL.
74
In the UNIDROIT Principles :
75
CISG
The Convention on the International Sale of
Goods (CISG) adopted by UNCITRAL
76
In PECL and DCFR :
77
6. Liability and other Remedies
• In the international instruments, in the DCFR
• In national law: different models
78
Liability and other Remedies in the
Common Law
79
Liability and other Remedies in
German, French and Italian law
80
Interpretation, Reasonableness, Good
Faith in the international instruments:
• UNIDROIT Principles.
• The Convention on the International Sale of
Goods (CISG) adopted by UNCITRAL.
• PECL.
• DCFR.
81
In the UNIDROIT Principles :
82
CISG
The Convention on the International Sale of
Goods (CISG) adopted by UNCITRAL
83
In PECL and DCFR :
84