GOOD BYE, WINDSCHEID? Missing and Non-Missing Legal Concepts in
the DCFR Prof. Dr. Antoni Vaquer Aloy University of Lleida
Amsterdam, Bernhard Windscheid Art. I-1:103 Draft CFR I. 1:103:
Definitions (1) The definitions in Annex 1 apply for all the
purposes of the CFR unless the context otherwise requires. (2)
Where a word is defined, other grammatical forms of the word have a
corresponding meaning. DCFR Intr 49 An attempt has been made to
avoid technical terms from particular legal systems and to try to
find, wherever possible, descriptive language which can be readily
translated without carrying unwanted luggage with it Rechtsgeschft
SUMMARY LEIPOLD AT BGB 10 RECHTSGESCHFT UND WILLENSERKLRUNG 13 DER
WIDERRRUF VON WILLENSERKLRUNGEN 14 DER ABSCHLUSS EINES VERTRAGES 15
DIE AUSLEGUNG VON WILLENSERKLRUNGEN UND VERTRGEN 17 BEWUSSTE
WILLENSMNGEL 18, 19 ANFECHTUNG 20 GESETZLICH VERBOTENE,
SITTENWIDRIGE UND WUCHERISCHE RECHTSGESCHFTE 22 FF STELLVERTRETUNG
USW SUMMARY BOOK II DCFR CHAPTER 1: GENERAL PROVISIONS CHAPTER 2:
NON-DISCRIMINATION CHAPTER 3: MARKETING AND PRE- CONTRACTUAL DUTIES
CHAPTER 4: FORMATION CHAPTER 5: RIGHT OF WITHDRAWAL CHAPTER 6:
REPRESENTATION CHAPTER 7: GROUNDS OF INVALIDITY CHAPTER 8:
INTERPRETATION CHAPTER 9: CONTENTS AND EFFECTS OF CONTRACTS Art.
V-I:106 V. 3:106: Authority of intervener to act as representative
of the principal (1) The intervener may conclude legal transactions
or perform other juridical acts as a representative of the
principal in so far as this may reasonably be expected to benefit
the principal. (2) However, a unilateral juridical act by the
intervener as a representative of the principal has no effect if
the person to whom it is addressed rejects the act without undue
delay. PEL Benevolent Int. Article 3:106(1) embraces legal
transactions of all types. In particular, it is not limited to the
conclusion of a contract by way of offer and acceptance; it also
covers unilateral declarations of the principals will (e.g. a
notice to quit). Juridical Act Book II: Contracts and other
Juridical Acts. Juridical Act Any voluntary act intended to produce
legal effects (Rechtsgeschft) Juridical acts other than contracts
(offer, notice of termination, unilateral promise) FRANCE Fait
juridique Acte juridique: toute manifestation de volont destine
produire des effets de droit Unilateral
(Testament)Bilateral/Plurilateral Art Rapport Pierre Catala Les
actes juridiques sont des actes de volont destins produire des
effets de droit. Lacte juridique conventionnel ou convention est
laccord conclu entre deux ou plusieurs personnes en vue de produire
de tels effets. Lacte juridique unilatral est un acte accompli par
une seule ou plusieurs personnes unies dans la considration dun mme
intrt en vue de produire des effets de droit dans les cas admis par
la loi ou par lusage. Gerard Cornu: le contrat est et demeure la
figure centrale Book II Contracts and other juridical Acts Chapter
4.- Formation Section 1.- General provisions Section 2.- Offer and
acceptance Section 3.- Other juridical acts II. 4:301: Requirements
for a unilateral juridical act The requirements for a unilateral
juridical act are: (a) that the party doing the act intends to be
legally bound or to achieve the relevant legal effect; (b) that the
act is sufficiently certain; and (c) that notice of the act reaches
the person to whom it is addressed or, if the act is addressed to
the public, the act is made public by advertisement, public notice
or otherwise. II. 1:101: Definitions (2) A juridical act is any
statement or agreement or declaration of intention, whether express
or implied from conduct, which has or is intended to have legal
effect as such. It may be unilateral, bilateral or multilateral.
III. 3:503: Termination after notice fixing additional time for
performance (1) A creditor may terminate in a case of delay in
performance of a contractual obligation which is not in itself
fundamental if the creditor gives a notice fixing an additional
period of time of reasonable length for performance and the debtor
does not perform within that period. (2) If the period fixed is
unreasonably short, the creditor may terminate only after a
reasonable period from the time of the notice. Right Definition of
right (Annex II) Right, depending on the context, may mean (a) the
correlative of an obligation or liability (as in a significant
imbalance in the parties rights and obligations arising under the
contract); (b) a proprietary right (such as the right of
ownership); (c) a personality right (as in a right to respect for
dignity, or a right to liberty and privacy); (d) a legally
conferred power to bring about a particular result (as in the right
to avoid a contract); (e) an entitlement to a particular remedy (as
in a right to have performance of a contractual obligation
judicially ordered) or (f) an entitlement to do or not to do
something affecting another persons legal position without exposure
to adverse consequences (as in a right to withhold performance of
the reciprocal obligation). TO BE ENTITLED TO Subjektive Rechte
Absolute Rechte Herrschaftsrechte an Sachen (z.B. Eigentum,
Pfandrecht) Immaterialgterrechte (z.B. Patentrecht, Urheberrecht
Persnlichkeitsrechte Allgemeines Persnlichkeitsrecht Besondere
Persnlichkeitsrechte (z.B. Namensrecht, Recht am eigenen Bild)
Relative Rechte Schuldrechtliche Ansprche (=Forderungen) Andere,
z.B. sachenrechtliche Ansprche Gestalungsrechte (z.B.
Anfechtungsrecht, Rcktrittsrechtt) Leipold, BGB AT (a) the
correlative of an obligation or liability (as in a significant
imbalance in the parties rights and obligations arising under the
contract); (b) a proprietary right (such as the right of
ownership); (c) a personality right (as in a right to respect for
dignity, or a right to liberty and privacy. Leipolds Classification
of rights: Subjective: Absolute Rights Relative Rights Egg and
chicken dilemma Book III: Obligation and corresponding rights (d) a
legally conferred power to bring about a particular result (as in
the right to avoid a contract); GESTALTUNGSRECHTE Subjektive Rechte
Absolute Rechte Herrschaftsrechte an Sachen (z.B. Eigentum,
Pfandrecht) Immaterialgterrechte (z.B. Patentrecht, Urheberrecht
Persnlichkeitsrechte Allgemeines Persnlichkeitsrecht Besondere
Persnlichkeitsrechte (z.B. Namensrecht, Recht am eigenen Bild)
Relative Rechte Schuldrechtliche Ansprche (=Forderungen) Andere,
z.B. sachenrechtliche Ansprche Gestalungsrechte (z.B.
Anfechtungsrecht, Rcktrittsrecht, Aufrechnungsrecht) Right and
action but not claim (e) an entitlement to a particular remedy (as
in a right to have performance of a contractual obligation
judicially ordered) (f) an entitlement to do or not to do something
affecting another persons legal position without exposure to
adverse consequences ( as in a right to withhold performance of the
reciprocal obligation). BEFUGNIS Claim Annex 1: A claim is a demand
for something based on the assertion of a right. 194 BGB: The right
to demand that another person does or refrains from an act (claim)
is subject to limitation. Claim II III. 7:101: Rights subject to
prescription A right to performance of an obligation is subject to
prescription by the expiry of a period of time in accordance with
the rules in this Chapter. Art. 14:101 PECL: Claims subject to
prescription A right to performance of an obligation ("claim") is
subject to prescription by the expiry of a period of time in
accordance with these Principles. III. 7:304: Postponement of
expiry in case of negotiations - If the parties negotiate about the
right, or about circumstances from which a claim relating to the
right might arise, the period of prescription does not expire
before one year has passed since the last communication made in the
negotiations. OBLIGATION III.- 1:101: An obligation is a duty to
perform which one party to a legal relationship, the debtor, owes
to another party, the creditor Obligation Must Is obliged toRequire
UNDERTAKING Duty A person has a duty to do something if the person
is bound to do it or expected to do it according to an applicable
normative standard of conduct. A duty may or may not be owed to a
specific creditor. A duty is not necessarily an aspect of a legal
relationship. There is not necessarily a sanction for breach of a
duty. All obligations are duties, but not all duties are
obligations (Annex 1). Eric Clive: a duty is rather vague and
general. It need not involve a specific creditor one can, for
example, have the duty to be a good citizen or not to harm people
in certain wags [] The debtor has an obligation and the creditor a
corresponding right. Duties Must Pre-contractual stage? II. 3:302:
Breach of confidentiality (1) If confidential information is given
by one party in the course of negotiations, the other party is
under a duty not to disclose that information or use it for that
partys own purposes whether or not a contract is subsequently
concluded. (2) In this Article, confidential information means
information which, either from its nature or the circumstances in
which it was obtained, the party receiving the information knows or
could reasonably be expected to know is confidential to the other
party. (3) A party who reasonably anticipates a breach of the duty
may obtain a court order prohibiting it. (4) A party who is in
breach of the duty is liable to pay damages to the other party for
any loss caused by the breach and may be ordered to pay over to the
other party any benefit obtained by the breach. Duty to give notice
of with holding performance III. 3:401 Right to withhold
performance of reciprocal obligation (3) A creditor who withholds
performance in the situation mentioned in paragraph (2) has a duty
to give notice of that fact to the debtor as soon as is reasonably
practicable and is liable for any loss caused to the debtor by a
breach of that duty Legal effects of breach: liability for the loss
caused to the debtor. No specific performance Obliegenheiten Onere
Carga Burden of proof Examples in the DCFR III.- 3:508 (3): Loss of
right to terminate The creditor loses the right to terminate under
III.- 3:503 (Termination after notice fixing additional time for
performance), III.-3:504 (Termination for anticipated
non-performance) or III.-3:505 (Termination for inadequate
assurance of performance) unless the creditor gives notice of
termination within a reasonable time after the right has arisen
Examples in the DCFR IV. C. 5:110: Liability of the hotel-keeper
(5) Except where the damage, destruction or loss is caused
intentionally or by way of grossly negligent conduct of the
hotel-keeper or a person for whose actions the hotel-keeper is
responsible, the guest is required to inform the hotel-keeper of
the damage, destruction or loss without undue delay. If the guest
fails to inform the hotel-keeper without undue delay, the
hotel-keeper is not liable. Examples in the DCFR IV. G. 4:107:
Limiting security with time limit (1) A security provider who has
provided a security whose scope is limited to obligations arising,
or obligations performance of which falls due, within an agreed
time limit may three years after the security became effective
limit its effects by giving notice of at least three months to the
creditor. The preceding sentence does not apply if the security is
restricted to cover specific obligations or obligations arising
from specific contracts. The creditor has to inform the debtor
immediately on receipt of a notice of limitation of the security by
the security provider. DCFR: Obligation of Co-operation PECL: Duty
of Co-operation Example: Acceptance of performance Josef Kohler
Sale IV. A. 3:101: Overview of obligations of the buyer The buyer
must: (a) pay the price; (b) take delivery of the goods; and (c)
take over documents representing or relating to the goods as may be
required by the contract. IV. A. 5:102: Time when risk passes (1)
The risk passes when the buyer takes over the goods or the
documents representing them. (2) However, if the contract relates
to goods not then identified, the risk does not pass to the buyer
until the goods are clearly identified to the contract, whether by
markings on the goods, by shipping documents, by notice given to
the buyer or otherwise. (3) The rule in paragraph (1) is subject to
the Articles in Section 2 of this Chapter. IV. A. 5:201: Goods
placed at buyers disposal (1) If the goods are placed at the buyers
disposal and the buyer is aware of this, the risk passes to the
buyer from the time when the goods should have been taken over,
unless the buyer was entitled to withhold taking of delivery under
III. 3:401 (Right to withhold performance of reciprocal
obligation). (2) If the goods are placed at the buyers disposal at
a place other than a place of business of the seller, the risk
passes when delivery is due and the buyer is aware of the fact that
the goods are placed at the buyers disposal at that place. Lease
IV. B. 3:107: Obligations on return of the goods The lessor must:
(a) take all the steps which may reasonably be expected in order to
enable the lessee to perform the obligation to return the goods;
and (b) accept return of the goods as required by the contract.
Storage IV. C. 5:104: Return of the thing stored (2) The client
must accept the return of the thing when the storage obligation
comes to an end and when acceptance of return is properly requested
by the storer. (4) If the client fails to accept the return of the
thing at the time provided under paragraph (2), the storer has the
right to sell the thing in accordance with III. 2:111 (Property not
accepted), provided that the storer has given the client reasonable
warning of the storers intention to do so. Duties of information
II. 3:107: Remedies for breach of information duties (1)If a
business is required under II. 3:103 (Duty to provide information
when concluding contract with a consumer who is at a particular
disadvantage) to provide information to a consumer before the
conclusion of a contract from which the consumer has the right to
withdraw, the withdrawal period does not commence until all this
information has been provided. Regardless of this, the right of
withdrawal lapses after one year from the time of the conclusion of
the contract. (2)Whether or not a contract is concluded, a business
which has failed to comply with any duty imposed by the preceding
Articles of this Section is liable for any loss caused to the other
party to the transaction by such failure. (3)If a business has
failed to comply with any duty imposed by the preceding Articles of
this Section and a contract has been concluded, the business has
such obligations under the contract as the other party has
reasonably expected as a consequence of the absence or
incorrectness of the information. Remedies provided under Book III,
Chapter 3 apply to non-performance of these obligations. (4)The
remedies provided under this Article are without prejudice to any
remedy which may be available under II. 7:201 (Mistake). Good faith
Duty? Principle? II. 3:301: Negotiations contrary to good faith and
fair dealing (1) A person is free to negotiate and is not liable
for failure to reach an agreement. (2) A person who is engaged in
negotiations has a duty to negotiate in accordance with good faith
and fair dealing. This duty may not be excluded or limited by
contract. (3) A person who has negotiated or broken off
negotiations contrary to good faith and fair dealing is liable for
any loss caused to the other party to the negotiations. (4) It is
contrary to good faith and fair dealing, in particular, for a
person to enter into or continue negotiations with no real
intention of reaching an agreement with the other party. III.
3:203: When creditor need not allow debtor an opportunity to cure
The creditor need not, under paragraph (2) of the preceding
Article, allow the debtor a period in which to attempt cure if: (a)
failure to perform a contractual obligation within the time allowed
for performance amounts to a fundamental non- performance as
defined in III. 3:502 (2); (b) the creditor has reason to believe
that the debtors performance was made with knowledge of the
non-conformity and was not in accordance with good faith and fair
dealing; (c) the creditor has reason to believe that the debtor
will be unable to effect the cure within a reasonable time and
without significant inconvenience to the creditor or other
prejudice to the creditors legitimate interests; or (d) cure would
be inappropriate in the circumstances. III. 1:103: Good faith and
fair dealing (1) A person has a duty to act in accordance with good
faith and fair dealing in performing an obligation, in exercising a
right to performance, in pursuing or defending a remedy for
non-performance, or in exercising a right to terminate an
obligation or contractual relationship. (2) The duty may not be
excluded or limited by contract. (3) Breach of the duty does not
give rise directly to the remedies for non performance of an
obligation but may preclude the person in breach from exercising or
relying on a right, remedy or defence which that person would
otherwise have. An entitlement to do or not to do something
affecting another persons legal position without exposure to
adverse consequences. DFCR concept of obliegenheit A
duty/obligation to do or not to do something affecting another
persons legal position and also the own position with exposure to
adverse consequences. An entitlement to do or not to do something
affecting another persons legal position without exposure to
adverse consequences. Conclusions Omnis definitio in iure civile
periculosa est (Javolen D. 50, 17, 22) Inconsistency BEDANKT!
