COMPARATIVE CIVIL AND COMMERCIAL LAW
NRU-HSE
SYLLABUS
Prof. Christopher OSAKWE
Course Contents:
This course will compare the civil and commercial laws of five paradigmatic
Romano-Germanic and Anglo-American legal systems (France, Germany, Russia,
England and United States), against the backdrop of Roman private law and the
emerging Common European Law of Commercial Transactions (Ius Commune
Europae).
Classroom Teaching Technique:
This course will employ the well-tested and highly effective American “Socratic
Dialogue” teaching method. Students will be expected to have read the
assignments for each class and to come to class well prepared to engage the other
students in a rigorous intellectual exercise that is carefully orchestrated by the
professor.
Textbook For This Course:
1. Stephen A. Smith, Atiyah’s Introduction To The Law Of Contract.
Clarendon Press. Oxford 2005
2. James Gordley, Arthur von Mehren, An Introduction To The Comparative
Study Of Private Law – Readings, Cases, Materials. Cambridge University
Press 2006
3. Кристофер Осакве, Сравнительное Правоведение: Схематический
Комментарий. Москва Юристъ 2008
PART ONE. INTRODUCTION TO COMPARATIVE CIVIL AND
COMMERCIAL LAW
1. Concept, Definition and Substance of Comparative Civil and Commercial
Law: Theoretical Foundations of the Comparison of Laws.
2. Sources of Civil and Commercial Law: Juxtaposed Comparison of RomanoGermanic and Anglo-American models.
PART TWO. COMPARATIVE CIVIL LAW
A. Law of Obligations (Emphasis will be placed on Contract, Tort, Quasi-Tort,
Unjust Enrichment, Unauthorized Agency, Promissory Estoppel and Culpa in
Contrahendo).
B. General Principles of Law of Obligations
3. General Theory of Obligations in Romano-Germanic and Modern Civil Law
4. Unjust Enrichment
5. General Theory of Remedies in Romano-Germanic and Anglo-American Law
6. Damages in Anglo-American Law: Concept, Classification, Nominate Types
C. Tort Law: Law of Torts v. General Law of Tort
7. Introduction to Comparative Law of Torts: General Theory of Tort
8. Concept, Nature and Requisites of a Tort
9. Dichotomous Classification of Tort in Romano-Germanic and AngloAmerican Law
10. Moral Harm: Concept, Nature and Compensation
11. Doctrine of Nominate Torts in Anglo-American Law
12. Defamation in Modern Russian Law
13. Defamation in Modern American Law: Slander, Libel
14. Governmental Tort Liability in Russian and American Law: A Juxtaposed
Comparison
15. Conclusion: Comparison of Russian, French, German, English and American
Laws of Torts
16. Reflections of New Trends in Law of Torts: Past, Present and Future
Developments
D. Contract Law: Law of Nominate Contracts v. General Law of Contract
17. Introduction to Comparative Law of Contract: Concept, Nature and
Requisites of a Contract
18. Economic Philosophy of Contract in Anglo-American Law: Contract as
Economic Engine
19. Classical Theory of Contract in Anglo-American Law: Contract as Promise
20. Classification of Contract in Romano-Germanic and Anglo-American Law
21. Architecture of Contract: Romano-Germanic v. Anglo-American Models
22. Anatomy of Contract: Pre-contractual, Contractual and Post-contractual
obligation
23. Avoidance of Contract: Grounds for Avoidance and Legal Consequences of
Avoidance
24. Contract Remedies: Comparative Analysis
25. Economic Analysis of Efficient Breach of Contract: Chicago School of Law
and Economics
26. Substitutions of Parties in a Contract
27. Termination, Modification and Rescission of Contract
28. Conclusion: Comparison of Russian, French, German, English and American
Laws of Contract
29. Reflections of New Trends in Contract Law: Past, Present and Future
Developments
E. Devices for Securing the Performance of an Obligation: Security Devices
30. Liquidated Damages, Mortgage
31. Withholding, Suretyship, Bank Guarantee, Security Deposit
PART THREE. COMPARATIVE COMMERCIAL LAW
F. Comparative Law of Corporations
I. Legal Persons: Theory, Origins, Modern Trends
32. Legal Persons: Concept, Requisites and Functions
33. Legal Persons: Classifications and Types
II. Forms of Enterprise Organizations: Incorporated and Unincorporated
Forms
34. Basic Form of Enterprise Organization: Preliminary Theoretical Questions
III. Forms of Enterprise Organizations in Romano-Germanic Law
35. Forms of Enterprise Organization in the Modern Civil Code of CIS Republics
and the Russian Civil Code
36. Forms of Enterprise Organization in German and French Law
37. Forms of Enterprise Organization in American Law: General Theory
IV. Forms of Enterprise Organization in American Law
38. Forms of Enterprise Organization in American Law: Unincorporated Forms
39. Forms of Enterprise Organization in American Law: Incorporated Forms
V. Reflections on Comparative Commercial Law
40. Conclusion: Comparison of Russian, French, German, English and American
Laws of Corporations
G. A Detailed Examination of Some Core Aspects of Anglo-American Law
of Corporations
VI. Mergers and Acquisitions Transactions Under English Law: Law and
Policy
41. Negotiating, Drafting and Documenting the Transaction.
42. Pre-contractual Agreements : Scope and Contents
43. Warranties, Indemnities, Representations, Covenants and Insurance.
44. Damages in Mergers and Acquisitions Transactions: Types and Yardsticks
For Measurement.
45. Governing Law.
46. Language of a Mergers and Acquisitions Contract.
47. Model Share Purchase Agreement in English and Russian Languages (with
12 Schedules).
VII. Fiduciary Principle in Anglo-American Law of Corporations: Duty of
Loyalty.
48. Fiduciary - Principal Relationship.
49. Fiduciary As Trustee And Alter Ego.
50. Red-Flag Situations.
51. Shareholders Derivative Suit (Shareholders Derivative Action, Shareholders
Derivative Action Suit).
52. Shareholders Derivative Suit v. Corporation's Direct Suit.
53. Remedies.
54. Sources of Law: Binding and Non-Binding.
VIII. Doctrine of Piercing the Corporate Veil in Anglo-American Law of
Corporations
55. Sum and Substance of the Doctrine.
56. The Legal Nature of the Doctrine.
57. The Purpose and Functions of Piercing the Corporate Veil Lawsuit.
58. Grounds For Piercing the Corporate Veil.
IX. Ultra Vires Doctrine and Corporate Powers in Anglo-American Law of
Corporations.
59. Traditional Ultra Vires Doctrine and the Numerous Exceptions Thereto.
60. Modern Abolition of the Ultra Vires Doctrine : MBCA Paragraph 3.4 (a).
61. Corporate Powers Today.
X. Shareholders Agreement: Concept, Types and Governing Law
62. Agreements to Limit Shareholders' Discretion as Shareholders.
63. Shareholders Agreements to Restrict the Board's Discretion.
XI. The Business Judgment Rule
64. The Relation Between "General Duty of Care" and "Business Judgment
Rule"