European Contract Law (2nd Edition)

✍ Scribed by Hein Kötz; Gill Mertens; Tony Weir

• Publisher: Oxford University Press
• Year: 2017
• Tongue: English
• Leaves: 401
• Category: Library

✦ Synopsis

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.

✦ Table of Contents

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