COMPARATIVE CONTRACT LAW ENGLAND, FRANCE, GERMANY
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1 COMPARATIVE CONTRACT LAW ENGLAND, FRANCE, GERMANY P. D. V. Marsh Gower
2 Contents Preface List of works cited by author only List of cases List of statutes List of abbreviations ix xi xv xxix xxxv 1 Historical introduction 1 General purpose 1 Roman law origins 1 The reception of Roman law 3 The codification of French law 8 German law and its codification 13 The English law of contract 18 2 English common law and the civil law systems of France and Germany - primary distinctions 27 Divisions of the law 27 Conceptualism and pragmatism 33 Sources of law 34 Doctrine 37 Interpretation of contracts and good faith 38 3 Essentials of a valid contract 41 General requirements 41 Elements common to all three systems 42 Offers and invitations to treat 42 German law 49 Uniform law for international sales 54 4 Termination of offers and withdrawal from negotiations 58 Termination of offers under English law 58 Termination of offers under French law 59 Termination of offers under German law 63 Letters of intent - comparative summary 65 The Vienna Convention 65
3 COMPARATIVE CONTRACT LAW 5 Acceptance 69 The fact of acceptance under English law 69 The fact of acceptance under French law 70 The fact of acceptance under German law 74 The battle of the forms 77 The Vienna Convention 79 6 Objet 83 French law 83 English law comparison 87 German law comparison 89 The Vienna Convention 91 7 Cause and consideration 95 Cause - French law 95 Cause - German law - and unjust enrichment 100 Consideration Mistake and misrepresentation - English law 112 Mistake 112 Misrepresentation Mistake, fraud and the obligation to inform - French law 121 Mistake 121 English law comparisons 123 Dol et {'obligation de renseignements 124 English law comparison Mistake - German law 133 General basis 133 Mistake as to expression 133 Mistake as to essential quality 133 Mistake and the formation of the contract 135 Mistake as to the basis of the contract 136 Fraud Performance obligations 140 General 140 Conformity of the goods/work/services with the contract - English law 141 Comparative note on latent defects Performance obligations under civil law - general 150 The particular regimes for vice cache 151 vi
4 CONTENTS The Roman actions 151 Modern code provisions 153 The Roman origins of reception (Abnahme) 153 Liability, whether fault-based or not Contracts for sale - French law 167 Obligations of the seller pre-delivery 167 Remedies of the purchaser 171 Breach of a contractual guaranty 176 Obligation of security Contracts for works-french law 183 Obligations of the contractor 183 Reception 185 Suppliers 194 Sub-contractors 196 Responsabilite solidairement et 'in solidum 197 Assurance 198 Time for performance 199 Remedy of the employer Contracts for sale - German law 205 Sources 205 Obligations of the seller 206 Remedies in damages 211 Time for delivery 216 Positive breach of contract 219 Anticipatory breach Contracts for works-german law 222 Obligations of the contractor {Auftragnehmer) 223 Defects prior to completion (Abnahme) 225 Completion (Abnahme) 227 Remedies of the client after Abnahme 227 Time for performance 232 Responsibility of the architect Transfer of property and risk 238 Specific goods 239 Unascertained goods 242 Future goods 243 Contracts for works 245 The passing of risk 246 vii
5 COMPARATIVE CONTRACT LAW 18 Reservation of title and transfer of title to third parties 250 Reservation of title - English law 250 Reservation of title - French law 253 Reservation of title - German law 257 Passing of title by a non-owner - English law 259 Passing of title by a non-owner - French law 261 Passing of title by a non-owner - German law The contract and third parties: liabilities in contract and tort 268 English law 269 French law 272 German law 279 Comparative conclusions The control of unfair terms 290 The broad issue of unfairness 290 Clauses excluding or limiting liability 293 Comparative summary Remedies and excuses for non-performance 310 English law 310 French law 319 Comparison with English law 325 German law 337 Comparative conclusions 346 Index 351 VIII
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