European Contract Law (2nd Edition)

Description

This new edition of European Contract Law examines the contract rules of several different European jurisdictions, including the most important civilian systems and English common law, while attempting to articulate general principles which are common in all of them. While the first editionwas limited to a comparative analysis of the rules on formation and validity of contracts, agency, third party beneficiaries, and assignment, the second edition now also includes contractual remedies and various updates and revisions of the first edition, especially in the light of the recentchanges to the French Code civil. Furthermore, the book comprises a wealth of translated extracts of legislation, cases, and academic literature, comprehensively covering all aspects of contract law. The book was originally published in German to considerable acclaim. This English edition has beentranslated by Gill Mertens, building on the work done by the translator of the first edition, Tony Weir.This edition will be invaluable to scholars and practitioners in Europe and beyond. Cover European Contract Law Copyright Summary Table of Contents Detailed Table of Contents Table of British Cases List of Abbreviations 1. Development of European Contract Law A. Introduction B. Contract Law and Economic Order C. European Union Contract Law D. A European Code of Contract Law? 2. Negotiation and Formation of Contracts A. The Consent of the Parties B. The Offer I. Definiteness of the offer II. Intention to be bound III. Effect of the offer IV. Termination of the offer 1. Refusal or failure to accept an offer 2. Expiry of time for acceptance 3. Revocation of the offer 4. Death or incapacity C. Acceptance I. Declaration of acceptance 1. Acceptor’s intention to be bound 2. Effectiveness of declaration of acceptance II. Acceptance by conduct 1. Acceptance by commencing performance 2. Acceptance by silence III. Qualified acceptance IV. Delayed acceptance D. Liability for Breaking Off Negotiations 3. The Definiteness of the Contract A. Introduction B. Types of Case I. Agreements to agree II. Unilateral price-​fixing 4. Tests of Earnestness A. Introduction B. Cause as a Requirement for Validity? C. Gifts I. Formal requirements in continental law II. The consideration doctrine in English law III. Executed gifts IV. The enforcement of informal promissory gifts 1. Pledges of contributions 2. Maintenance payments 3. Payment for services rendered D. Other Gratuitous Transactions I. Contracts of guarantee II. Contracts for the use of property III. Contracts for the management of affairs IV. Offers to contract V. Modification of contracts E. The Intention to Enter a Legal Obligation F. Summary 5. Formalities A. Introduction B. Reasons for Formal Requirements C. Types of Formalities D. Sanctions I. Exclusion of oral evidence II. Invalidity 1. Guarantees 2. Sales of land III. Other sanctions E. Enforcement of Contracts Lacking the Requisite Form 6. Interpretation of Contracts A. Introduction B. Intention and Expression: the Two Theories C. Objective Interpretation D. Maxims of Interpretation E. Forms of Constructive Interpretation I. Implication of terms by default rules II. Constructive interpretation III. Collateral duties 7. Unfair, Illegal, and Immoral Contracts A. Introduction B. Inequality between Performance and Counterperformance C. Undue Restraints on Personal or Economic Freedom I. Basics II. Long-​term contractual relationships III. Non-​compete agreements IV. Partial invalidity D. Breach of the Law E. Restitution of Benefits Conferred 8. The Control of Unfair Contract Terms A. Introduction B. Judicial Control C. Legislative Options I. Unfair contract terms in contracts between businesses II. Standard terms and individually negotiated terms III. When is a contract term unfair? IV. Partial invalidation of terms D. Preventive Control I. Criminal sanctions II. Group actions III. Administrative controls 9. Mistake A. Introduction B. Avoidance for Mistake I. There must be a contract II. Avoidance and liability 1. Claims by buyer for non-​conforming goods 2. Other claims for non-​performance C. Preconditions of Avoidance for Mistake I. Historical background II. Mistakes as to the qualities of the thing or person 1. General 2. Causality 3. Mistaken motive 4. Mistake as to the value of the thing 5. Risk in transactions 6. Negligent mistakes 7. Offer to make good the consequences of a mistake III. Mistakes caused by the other party IV. Recognisable mistakes V. Shared mistakes VI. A European law on mistake? 1. Primacy of the contract 2. ‘Special reasons’ for allowing avoidance D. Effecting Avoidance for Mistake 10. Deceit and Duress A. Deceit I. Elements II. Non-​disclosure as deceit 1. Duties to inform in general 2. Attribution of duties to inform 3. Negligent breach of duties to inform 4. ‘Duties of disclosure’ in English law III. Deceit by third party IV. Claims for damages B. Duress I. Duress and exploitation II. Elements of duress III. Duress by third party 11. Rights of Withdrawal A. Introduction B. Basis and Reasons for Withdrawal I. Doorstep selling II. Loan agreements, timeshare contracts III. Distance-​selling contracts C. Consequences of Withdrawal 12. Claims for Performance A. Introduction B. Solutions of National Legal Systems I. Continental law II. Common law C. Harmonised Rules in Europe I. Claims for performance 1. Impossibility of performance 2. Unreasonably high cost 3. Personal performance 4. Concluding a substitute transaction 5. Timely claim for performance II. Claims for supplementary performance D. The Efficient Breach of Contract 13. Termination of Contracts A. Introduction B. Interests of the Parties C. Solutions I. French law II. English law III. German law D. Requirements I. Basic requirements II. Impossibility of performance III. Anticipatory non-​performance IV. Delayed performance V. Incomplete performance VI. Defective performance E. Restitution 14. Damages A. Non-​Performance of the Contract B. Attribution I. Fault principle II. Obligations de moyens and obligations de résultat III. Breach of contract IV. International rules C. Link Between Non-​Performance and Damage I. Liability for remote damage II. Contributory responsibility of the creditor D. Nature and Extent of Damages I. Liability for expectation interest II. Calculating damages for non-​performance of contracts of sale III. Liability for lost profits and lost expectations IV. Liability for disgorgement of profits V. Liability for intangible loss VI. Agreements on limitation of damages 15. The Effect of Unexpected Circumstances A. Introduction B. Solutions I. French law II. German law III. English law C. International Sets of Rules 16. Agency and Representation A. Historical Development and Economic Importance B. Statutory Representatives C. Grant, Extent, and Termination of Authority or the Power to Represent I. Grant II. Implied grant III. Formalities IV. Extent V. Self-​dealing by agent VI. Termination VII. Revocability D. Dealing without Authority I. Ratification II. Apparent or ostensible authority 1. Giving the appearance of authority 2. Justifiable reliance by the third party III. Liability of the supposed agent E. The Effects of Agency I. Disclosed agency II. Undisclosed agency 1. Claims by the principal 2. Claims by the third party 17. Contracts for the Benefit of Third Parties A. Historical Development and Economic Importance B. Requirements I. The intention of the parties II. Contracts protective of third parties III. Claims by third parties not based on contractual intention 1. Action directe 2. Contract chains IV. Limitations of liability and third parties C. Effects I. Rights of the promisee II. Defences available to the promisor III. Modification or termination of third party rights 18. Assignment A. Historical Development and Economic Importance B. Requirements for an Effective Transaction I. Substantive validity II. Non-​assignable rights 1. Rights to wages, maintenance, and support 2. Personal rights 3. Parts of debts 4. Future debts 5. No-​assignment clauses III. Formal requirements IV. Priorities C. Effects I. Between assignor and assignee II. Protection of the debtor 1. Payment to the original creditor 2. Defences available to the debtor 3. Waiver of defences by debtor Index