CONTENTS. PART ONE Introduction 1. Preface Abbreviations Table of cases Table of legislation. vii xxi xxix liii

Size: px

Start display at page:

Download "CONTENTS. PART ONE Introduction 1. Preface Abbreviations Table of cases Table of legislation. vii xxi xxix liii"

Gabriel Hensley
6 years ago
Views:

1 Preface Abbreviations Table of cases Table of legislation vii xxi xxix liii PART ONE Introduction 1 CHAPTER 1 THE EXTENT AND ROLE OF EUROPEAN CONTRACT LAW European contract law A Introduction B Binding rules of European contract law C Soft law EU s current plans concerning European contract law A Introduction B Common frame of reference (CFR) C The process of creating the common frame of reference D The draft common frame of reference (DCFR) E The optional instrument F Europeanisation of contract law, a controversial enterprise Constitutional issues of contract law A Introduction B The Four freedoms and contract law; ex post assessment C Ex ante assessment of the free movement of goods D Horizontal effect of the free movements Private international law issues 36 CHAPTER 2 NOTIONS OF CONTRACT Definitions of contract A Agreements and unilateral juridical acts B Gratuitous promises Basic elements A Agreement B Intention to create legal relations Synallagmatic or unilateral, onerous or gratuitous? Contract and undertaking by unilateral promise Binding nature of contractual obligations A What it means to be bound by a contract B Foundations of the binding force of contract 66 xi

2 2.5.C Historical background D The theory of reliance Conclusion 76 CHAPTER 3 THE PLACE, SOURCES AND SCOPE OF CONTRACT The place and sources of contract law A French Law B German Law C English law The scope of contract A Contract and property B Contract and tort (or delict) C Contract and restitution (quasi-contract, unjust enrichment) D The scope of contract: concluding remarks Contract and national constitutional law 136 CHAPTER 4 CATEGORIES OF CONTRACT Consumer contracts A The definition of consumer B The place of consumer law Business to Business and Commercial contracts A English law Private contracts Administrative contracts A French law: the administrative contract B Administrative contracts in German law C Administrative contracts under Dutch law 167 CHAPTER 5 ADDITIONAL REQUIREMENTS: CAUSE, CONSIDERATION AND FORM The doctrine of cause A General B The classic applications of the cause C New trends in French case law D A Future for cause? A vivid debate in the French reform of contract Consideration (and reliance) A In General German law and Dutch law: neither cause nor consideration Form A German law: moderate formalism, freedom as to proof 217 xii

3 5.4.B 5.4.C English law: limited formalism; rule of almost unrestricted production of evidence 225 French law: a certain formalism, means of proof legally circumscribed 232 PART TWO FORMATION 239 CHAPTER 6 OFFER AND ACCEPTANCE Introductory note Offer A Distinction between preliminary dealings and offers to enter contract B Revocability of an offer C Lapse of offer Acceptance A Form of acceptance B A requirement of communication? C Acceptance that deviates from the offer Rights of withdrawal 314 CHAPTER 7 SUFFICIENCY OF AGREEMENT 319 CHAPTER 8 INTENTION TO CREATE LEGAL RELATIONS Informal arrangements Agreement in honour, gentlemen s agreements Letters of patronage or of comfort Agreement in principle (accord de principe) Conclusion 370 CHAPTER 9 PRE-CONTRACTUAL NEGOTIATIONS Introduction A general duty of pre-contractual good faith Conduct contrary to pre-contractual good faith A No intention to conclude a contract B Parallel negotiations C Breaking off negotiations D Knowingly entering an invalid contract E Duty of confidentiality 425 xiii

4 PART THREE FRAUD, ABUSE, IMMORALITY 427 CHAPTER 10 FRAUD, MISTAKE AND MISREPRESENTATION General introduction Fraud A Fraud as a ground for avoidance of a contract B Particular issues in fraud C Damages for fraud Mistake A Mistake in general B Mistakes and misunderstandings as to the terms C Mistake as to the person D Mistake as to the subject matter or circumstances Non-disclosure A Common law B France C Germany D The Netherlands Adaptation of contracts Comparative summary: mistake and the international restatements A The laws B Duties to disclose: why such differences? 535 CHAPTER 11 THREATS AND ABUSE OF CIRCUMSTANCES Introduction Threats A A physical compulsion as opposed to psychological pressure B The means of compulsion C Threat must be illegitimate D Causation E Serious and imminent threat Laesio enormis Abuse of circumstances and excessive benefit: qualified laesio enormis A General Doctrines: continental law B Specific doctrines: undue influence in English law C Specific doctrines: unconscionability and other rules in English law D An attempt at a general doctrine in English law E International restatements F Causation Other abuse of circumstances Threats or abuse of circumstances by third persons 598 xiv

5 CHAPTER 12 IMMORAL AND ILLEGAL CONTRACTS Introduction Conflicts with principles of sexual morality and family life Contracts in restraint of trade Contracts which involve prohibited conduct Restitution of benefits conferred under an immoral or illegal contract Compensation for loss caused by a contract which violated European law 655 PART FOUR INTERPRETATION AND SUPPLEMENTATION 665 CHAPTER 13 INTERPRETATION Objective and subjective interpretation Ambiguous clauses Unambiguous clauses : literal and contextual interpretation Preliminary negotiations A Recourse to preliminary negotiations for the purposes of interpretation B Recourse to preliminary negotiations in order to add to, vary or contradict a written contract The contra proferentem rule 702 CHAPTER 14 THE PARTIES OBLIGATIONS: SALES AND SERVICES CONTRACTS Introduction A Default rules B Nature of the debtor s obligation C Relationship to impossibility of performance Obligations to achieve a result and lesser obligations A French law B German law C English law D Conclusion on the nature of the debtor s obligation Obligations in typical contracts A Sale: the seller s obligations as to the kind and quality of the goods B Contracts of carriage C Construction contracts 737 xv

6 CHAPTER 15 SUPPLEMENTATION AND IMPLICATION OF TERMS 743 CHAPTER 16 UNFAIR CLAUSES Introduction Controls under the general law A Incorporation tests B Mispresentation etc C Nature of the breach of contract D Interpretation E Good faith and public policy policing substance Legislative controls A Germany: BGB B England: the Unfair Contract Terms Act 1977 and Unfair Terms in Consumer Contracts Regulations B France: The loi scrivener, the Code de la consommation and the 2009 Decree Key issues in unfair contract terms legislation A Consumers and non-consumers B Negotiated and non-negotiated terms C Blacklists and grey lists D Core terms E Fair, reasonable, in accordance with good faith Public law controls Concluding remarks 828 PART FIVE REMEDIES FOR NON-PERFORMANCE 831 CHAPTER 17 THE RANGE OF REMEDIES FOR BREACH OF CONTRACT 833 CHAPTER 18 LITERAL ENFORCEMENT Introduction Non-monetary obligations A Introductory note B The basic rules C Making the defendant himself perform D Performance by a third party E Practical examples 852 xvi

7 18.2.F Comparative summary on basic rules and the international restatements G Limitations on specific performance Monetary obligations 887 CHAPTER 19 WITHHOLDING PERFORMANCE Basic rules The order of performance A Introductory note B Establishing the order of performance Withholding because of defective or partial performance Default can be anticipated Non-performance of other contracts 912 CHAPTER 20 TERMINATION Introduction The meaning and nature of termination Basic rules and the means of termination The seriousness of the default A French law B English law C German law Termination for delay Termination before performance is due Agreed rights of termination A last chance to perform A Right to perform before due date B Requirement of notice C Court may give additional period for performance Effects of termination A The effect of termination on claims for damages for non-performance B The effect on ancillary obligations C Restitutionary claims Loss of right to terminate A Affirmation B Lapse of Time C Impossibility of Restitution 991 xvii

8 CHAPTER 21 DAMAGES Introduction The basic measure of damages for breach of contract The requirement of notice Restrictions on damages recoverable A Unforeseeable or indirect losses B The protective purpose of the norm C Losses which might have been avoided or reduced by the creditor D Contributory negligence E Non-pecuniary loss (prejudice moral) Some typical cases A A seller of goods fails to deliver B A debtor fails to carry out work correctly Plaintiff s loss or defendant s gain Agreed damages and forfeiture clauses A The validity of agreed damages clauses B Deposits and forfeiture clauses 1060 CHAPTER 22 LIABILITY AND REMEDIES FOR NON-CONFORMING GOODS Introduction Remedies A European law B English law C French law D German law E International restatements 1087 PART SIX SUPERVENING EVENTS 1091 CHAPTER 23 IMPOSSIBILITY OF PERFORMANCE Introduction to Part Impossibility French law A The definition of force majeure B Effects of force majeure German law English law A Frustration B Effects of frustration 1124 xviii

9 xix CONTENTS CHAPTER 24 HARDSHIP, IMPRÉVISION Introduction French law English law Recognition of the revising power: German law 1138 CHAPTER 25 CLAUSES DEALING WITH SUPERVENING EVENTS Introduction to hardship clauses Indexation clauses A Indexation clauses under English law B Indexation clauses under German law C Indexation clauses under French law Force majeure clauses Hardship clauses 1165 PART SEVEN THIRD PARTY CONSEQUENCES 1171 CHAPTER 26 CONTRACTS FOR THE BENEFIT OF THIRD PARTIES The general position Requirements for the conferral of a right on a third party A Agreement of the parties in general B Implied stipulations for another and contracts with protective effect for third parties Exemption clauses and other defences for the benefit of third parties Modification and revocation Defences available to the promisor Remedies available to the promisee 1262 CHAPTER 27 AGENCY The notion and the nature of agency The effects of agency A Disclosed agency B Undisclosed agency Agent acting ultra vires A Authority B Ratification C Termination of authority D Liability of agent 1290

10 CHAPTER 28 ASSIGNMENT Introduction Validity of assignment A Agreement B Formal requirements C Notice to the debtor D Further requirements Protection of the debtor A Notice to the debtor B Defences available to the debtor 1318 Index 1327 xx

Table of Contents. The Authors 3. List of Abbreviations 13. Preface 15. General Introduction 17. Introduction to the Law of Contracts 27

Table of Contents. The Authors 3. List of Abbreviations 13. Preface 15. General Introduction 17. Introduction to the Law of Contracts 27 The Authors 3 List of Abbreviations 13 Preface 15 General Introduction 17 1. THE GENERAL BACKGROUND OF THE COUNTRY 17 I. Geography 17 II. Cultural Composition 17 III. Political History 18 IV. Political