Professor Mads AndenæsJUS5240/JUR1240

Comparative Private Law

Going over outline and reading, once again• Any questions?

Lecture Outline Autumn 2011

1. Introduction2. 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• 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?sequence=3 and VI) and C (ca 430 pages).

Supplementary reading• Principles, Definitions and Model Rules of European Private Law, Draft Common F

rame 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• 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/mixedjur-1/ 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• 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 lawUnderstanding law and legal rulesThe normative and the factual, effects and contextLegal transplantsLegal families Convergence of legal families

5. European Contract Law and international contract law conventionsReturn 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/professionalEU 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 lawThe 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 contractDo 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

• 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

Norwegian lawGerman law

French law

Existing law

Existing law

Existing lawCESL

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

• Making a binding contract• Interpretation• Obligations and remedies• Damages and interest• Restitution• Prescription

Conclusion of contract

• 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

35

DCFR, CESL and the Common Law • DCFR • Relationship to national legal

systems and traditions• Special issues relating to the

Common Law.

36

DCFR: its general reception• Some support from participants• Critical approaches typified by

Zimmermann and Hugh Collins

37

CESL and its general reception• Some support from participants• Critical approaches typified by

Zimmermann and Micklitz

38

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?

39

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.

40

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

41

How the common law sees itself

• Tennekoon and Wood

42

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.

43

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.

44

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.

45

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.

46

Absence of principles

• P Birks English Private Law

How do courts use comparative law?

47

48

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).

49

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

50

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

51

Can courts make use of comparative law?

–The use of foreign law–The indirect entry points for

foreign law and comparative law

4. Formation of contracts

• In the international instruments, in the DCFR• In national law: different models

52

The discipline of comparative law. Legal transplants and convergence of legal families

The discipline of comparative law. Legal transplants and convergence of legal families

1. The discipline of comparative law. 2. Role of comparative law: law reform, courts

(as we just have discussed), the legal practitioner, legal scholarship

3. Legal transplants; what are they4. Internationalisation, fragmentation and “the

convergence of legal families”5. Comparative law method

1.The discipline of comparative law.

‘A method’, ‘What lawyers do’Study of foreign law and comparative law,

international and comparative lawTo compare one needs to contrast and

delineate: what is different and what is the same, the national, legal families, within the national, across the national, international and regional legal orders

Some examples and for discussion

Comparative law controversies• Is comparative law possible?• Is it an ideological project?(We will return to this under uses for different

categories of lawyers.)Some ideological positions for and against comparative

lawSome ideological positions of comparative lawyersComparative lawyers and international and European

law: and seen the other way round

2. Role of comparative law:a) law reform, b) courts (as we just have discussed and for

further discussion here), c) the legal practitioner: the financial lawyer,

the commercial lawyer, the family lawyer, the criminal lawyer etc (for discussion)

d) legal scholarship: in general and for different disciplines

3. Legal transplants; what are theyStudent presentation: Chinese and Japanese

lawComparing this with Italy and NorwayTwo positions:Alan Watson, Legal Transplants, (Edinburgh,

Scottish Academic Press, 1974); Otto Kahn-Freund, 'On Use and Misuse of

Comparative Law' (1974) 37 Modern Law Review 1

4. Internationalisation, fragmentation and “the convergence of legal families.

Legal history and comparative law“Legal families”, the broad generalisations:René DavidKurt Zweigert and Hein Kötz

Montesquieu De l'esprit des lois (1748)

The political and civil laws of each nation should be adapted in such a manner to the people for whom they are framed that it should be a great chance if those of one nation suit another. They should be in relation to the nature and principle of each government; whether they form it, as may be said of politic laws; or whether they support it, as in the case of civil institutions.

Montesquieu De l'esprit des lois

They should be in relation to the climate of each country, to the quality of its soil, to its situation and extent, to the principal occupation of the natives, whether husbandmen, huntsmen, or shepherds: they should have relation to the degree of liberty which the constitution will bear; to the religion of the inhabitants, to their inclinations, riches, numbers, commerce, manners, and customs.

Montesquieu De l'esprit des lois (1748)

To determine which of those systems is most agreeable to reason, we must take them each as a whole and compare them in their entirety.

As the civil laws depend on the political institutions, because they are made for the same society, whenever there is a design of adopting the civil law of another nation, it would be proper to examine beforehand whether they have both the same institutions and the same political law.

4. Internationalisation, fragmentation and “the convergence of legal families.

“Legal families”, the broad generalisations:The common lawCivil lawScandinavian lawCommunist legal systemsIslamic law. Hindu law, Chinese lawProblems and reservations: any utility leftLaw as antropology

4. Internationalisation, fragmentation and “the convergence of legal families (cont.).

InternationalisationFragmentation“the convergence of legal families”European law: EU, ECHR, internationalisationBUT: Pierre Legrand (1996). European Legal Systems are not Converging. International and Comparative Law Quarterly,45, pp 5281

5. Comparative law method

Back to Montesquieu, Alan Watson and Otto Kahn-Freund

• Context and institutions• Different uses? Return to different uses of

comparative law, and the role of legal transplants.

• Method in the law generally reflected in comparative law

Two new articles on the web page

Vernon Valentine Palmer ’From Lerotholi to Lando: Some Examples of Comparative Law Methodology’, and

Antonina Bakardjieva Engelbrekt ‘Toward an institutional approach to comparative economic law?’

And as promised:

A PDF of this article on the reading list :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.

Questions for discussion I

• What is the legal discipline of comparative law? Is it more than a method? What is the method?

• What are legal transplants, and can you find some different examples?

• What are legal families, and can one state anything about convergence between them or within them in our times of internationalization?

Questions for discussion II

• What are the main disagreements about the uses of comparative law?

• Are there any special issues in the field of private law, or in commercial or contract law?

• How does this kind of disagreement affect DCFR and CESL?

Vernon Valentine Palmer ’From Lerotholi to Lando: Some Examples of Comparative Law Methodology’No ‘single exclusive method’ that comparativeTeaching, research, of law reform, or historicalinvestigation are too varied ‘a sliding scale of methods and the best

approach will always be adapted in terms of the specific purposes of the research, the subjective abilities of the researcher, and the affordability of the costs.’

Vernon Valentine Palmer ’From Lerotholi to Lando: Some Examples of Comparative Law Methodology’It is also shown that prescriptions about

method must carefully distinguish the principal user groups, for the complex methods of scholars may be unworkable in the practical world where comparisons must be cost-justified.

NOT: comparative law is always forbidding and difficult. The discipline must be accessible and its methods must be flexible.

Antonina Bakardjieva Engelbrekt ‘Toward an institutional approach to comparative economic law?’Critical of the ‘New Comparative Economics’

and its use of institutional economics comparative efficiency analysis of legal institutions across numerous jurisdictions.

In favour of a more sensitive use of institutional theory in comparative economic law.

Antonina Bakardjieva Engelbrekt ‘Toward an institutional approach to comparative economic law?’NOT aggregate statistical approaches, BUT

deep-level comparative institutional analysis, informed by modern theory of comparative law, legal history and comparative jurisprudence.

Discussion of areas where this can contribute ‘to fine-tuning the reform agenda of economic law within the European Union and at the global level’.

Past exam paper

Autumn 2008Please explain the major differences and

similarities between two systems of law of your choice belonging to different Legal Families.

Further questions for discussion

• What are the sources of European Contract Law?

• What are the main international contract law conventions and model codes?

• How do they differ in form or effect?• Or in content: what do they cover and how do

they solutions differ?

Formation in common law

Two main elements:1) Agreementa) Offerb) Acceptance2) ConsiderationOther elements: Intention to create legal relations, Capacity, Formalities

76

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.

77

«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).

78

French law and «cause»

Art 1108 of the Code Civil:• Consent, • Capacity, • Object, • Cause

79

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

80

Formation in the UNIDROIT Principles:

PICC third edition 2010CHAPTER 2 — FORMATION AND AUTHORITY OF AGENTSSECTION 1: FORMATION

81

CISG

The Convention on the International Sale of Goods (CISG) adopted by UNCITRALPart II. Formation of the contract

82

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?

83

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.

84

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.

85

UNIDROIT PICC and UNCITRAL CISG

No such general part relating to the formation of contract law

86

Offer and acceptance in PICC and CISGUNIDROIT 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.

87

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.

88

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.

89

Rejection and acceptance by statement and conductAn offer also lapses as a result of arejection 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.

90

An offer also lapses as a result of arejection 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.

91

Differences between PECL and PICC

92

DCFR and ESL compared

93

5. Interpretation, Reasonableness, Good FaithIn the international instruments, in the DCFRIn national law: different models

94

Interpretation, Reasonableness, Good Faith in the Common Law

95

Interpretation, Reasonableness, Good Faith in German, French and Italian law

96

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.

97

In the UNIDROIT Principles :

98

CISG

The Convention on the International Sale of Goods (CISG) adopted by UNCITRAL

99

In PECL and DCFR :

100

6. Liability and other Remedies

• In the international instruments, in the DCFR• In national law: different models

101

Liability and other Remedies in the Common Law

102

Liability and other Remedies in German, French and Italian law

103

Interpretation, Reasonableness, Good Faith in the international instruments:

• UNIDROIT Principles.• The Convention on the International Sale of

Goods (CISG) adopted by UNCITRAL.• PECL.• DCFR.

104

In the UNIDROIT Principles :

105

CISG

The Convention on the International Sale of Goods (CISG) adopted by UNCITRAL

106

In PECL and DCFR :

107