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Transcript of Rechtswissenschaftliches Institut Seite 1 Comparative Private Law Theories and Technique of Contract...

  • Slide 1
  • Rechtswissenschaftliches Institut Seite 1 Comparative Private Law Theories and Technique of Contract in Europe Prof. Dr. Ulrike Babusiaux 20th October 2014.
  • Slide 2
  • Preliminaries -Teaching in English without being a native speaker: a very difficult task both for speaker and listeners; please, dont hesitate to ask for further explanation (or vocabulary); the slides are designed in order to facilitate understanding -Master course, not a beginner course: students are kindly requested to play an active part, i.e. to prepare the texts in the handout at home, to answer my questions and to express their ideas on a topic Comparative Private Law HS 2014, Prof. Dr. iur. Ulrike BabusiauxSeite 2
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  • Preliminaries Comparative Private Law HS 2014, Prof. Dr. iur. Ulrike BabusiauxSeite 3 Gary Larson, The Far Side.
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  • Comparative Private Law HS 2014, Prof. Dr. iur. Ulrike BabusiauxSeite 4 Theories and Techniques of Contracts in Europe I. The Place and Sources of Contract Law II. Definitions of Contract Offer and Acceptance III. Additional Requirements
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  • Comparative Private Law HS 2014, Prof. Dr. iur. Ulrike BabusiauxSeite 5 I. The Place and Sources of Contract Law France: -Basically in the Code civil (1804) -Some provisions in the Code de commerce -Growing number of provisions in the Code de la consommation (since 1993) Germany: -Brgerliches Gesetzbuch (German Civil Code, 1900) -special legislation on consumer protection was incorporated in the Code in 2002 (Schuldrechtsmodernisierung) England: -Common law -legislation: Misrepresentation Act 1967, Unfair Contract Terms Act 1977, Contracts Rights of Third Parties Act 1999
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  • Comparative Private Law HS 2014, Prof. Dr. iur. Ulrike BabusiauxSeite 6 The French Civil Code (Reader p. 6f.) Structured in three books: Book I: Of Persons Book II: Of Property and of Various Modifications of Property Book III: Of the Various Ways, how Ownership is acquired [Book IV: Of Securities Book V: Provisions applicable in Mayotte]
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  • Comparative Private Law HS 2014, Prof. Dr. iur. Ulrike BabusiauxSeite 7 The Place of Contracts in French Law Contract law is part of book III: Of the Various Ways How Ownership is acquired Title 1: Of Successions Title 2: Of Gifts inter vivos and of Wills Title 3: Of Contracts and of Conventional Obligations in General (art. 1101 to 1369-11) Title 4: Of undertakings formed without an agreement And so are the special types of contract: Title 6: Of Sales (art. 1582 to 1701) Title 7: Of Exchanges (art. 1702 to 1707) Title 8: Of Hiring (art. 1708 to 1831)
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  • Comparative Private Law HS 2014, Prof. Dr. iur. Ulrike BabusiauxSeite 8 Observations: - the place of contract is not prominent in the French Code: it only appears in book III it is one way to acquire ownership - Code civil is often described as the owners code a very old model, already known in Roman Law (Gaius Institutes are divided in personae, res, actiones) indeed property is in the centre of this codification, not contract - unchanged since 1804 until recently projects for a major reform of the law of obligations were proposed - reform projects are a consequence of the vivid discussion about the European Civil Code pressure to modernise the old Civil Code
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  • Comparative Private Law HS 2014, Prof. Dr. iur. Ulrike BabusiauxSeite 9 Change of paradigms in French law projects: Ex.: Avant-Projet Catala (name of the president: Pierre Catala) new title to book III: obligations and a completely changed structure of book III : Preliminary Chapter: The sources of obligations Sub-Title I: Contracts and Obligations Created by Agreement in General Chapter I: General Provisions Section 1: Definitions Section 2: Formation of Contract Chapter II: The essential conditions for the validity of Contracts Chapter III: The effects of Contracts (.)
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  • Comparative Private Law HS 2014, Prof. Dr. iur. Ulrike BabusiauxSeite 10 The Place of Contracts in German Law (Handout p. 1/2) - the German Civil Code consists of five books: Book 1: General Part Book 2: Law of Obligations Book 3: Law of Property Book 4: Family Law Book 5: Law of Succession -contract law is dealt with in Book 1 and Book 2, Sect. 3 - peculiarity of the German Law to divide contractual consent according to the general idea of legal transaction/juridical act (Rechtsgeschft) and declaration of intent (Willenserklrung)
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  • Comparative Private Law HS 2014, Prof. Dr. iur. Ulrike BabusiauxSeite 11 The theory of legal transaction/ juridical act: Bernhard Windscheid (1906) The four characteristics of the juridical act: (1) Synonym to declaration of intention (Willenserklrung) (2) Private declaration (private, not public law) (3) Declaration aiming for the creation of legal effects (4) Not necessarily an (immediate) creation of the legal effects this theory is still dominant in German Law and has been adopted by other European civil law systems (Austria, France, Switzerland, Italy) its abstraction juridical act is a kind of substrate of the contractual agreement explains its success even in the German Law of Property (transfer of ownership is due to tradition and joining of the parties juridical acts)
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  • Comparative Private Law HS 2014, Prof. Dr. iur. Ulrike BabusiauxSeite 12 The General Part (Allgemeiner Teil) (book 1 of the German Civil Code, Reader p. 7) -structure: Section 1: Persons Section 2: Things Section 3: Legal transactions/ Juridical acts Title 1: Legal capacity Title 2: Declaration of Intent Title 3: Contract Title 4: Condition and stipulation as to time Title 5: Agency and grant of authority Title 6: Consent and ratification () - contract is seen as a sub-division of legal transactions! - in the general part, the focus is laid on legal transactions, not on contracts
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  • Comparative Private Law HS 2014, Prof. Dr. iur. Ulrike BabusiauxSeite 13 The Law of obligations (Book 2 of the German Civil Code, Reader p. 7) -structure: Section 1: Content of Obligations Section 2: Shaping contractual obligations by means of standard business terms Section 3: Contractual Obligations Section 4: Extinction of Obligations () Section 8: Particular kinds of obligations Title 1 Sale, exchange Title 2 Time-share agreements () contracts are a predominant figure in the German Civil Code; the idea of contract is no longer linked to property but the theoretical idea of legal transaction / juridical act is even more important than the contract itself
  • Slide 14
  • Comparative Private Law HS 2014, Prof. Dr. iur. Ulrike BabusiauxSeite 14 English Law / Common Law (Reader p. 9) - contract is a not a precise concept in English law, which prefers to speak of a promise - contracts and the law of obligations (even later concept) are separated areas of law - Roman law had less influence in the Common Law - it was Pothier, the intellectual father of the Code civil, who influenced the modern english discussion about contracts (and who is cited in judgments at the end of the eighteenth century) - in the centre of the English doctrine is the notion of a promise and the famous theory of consideration.
  • Slide 15
  • Comparative Private Law HS 2014, Prof. Dr. iur. Ulrike BabusiauxSeite 15 II. Definitions of Contract (Reader p. 11): -art. 1102 Code civil: A contract is an agreement (convention) by which one or several persons bind themselves, towards one or several others, to transfer, to do or not to do something. - 311 BGB: Obligations created by legal transaction and similar obligations (1)Unless otherwise provided by statute, a contract between the parties is necessary in order to create an obligation by legal transaction or to alter the content of an obligation () - Treitel (Common Law): an agreement giving rise to obligations which are enforced or recognised by law.
  • Slide 16
  • Comparative Private Law HS 2014, Prof. Dr. iur. Ulrike BabusiauxSeite 16 Basic elements (Reader p. 11-15): - agreement = offer and acceptance in all European systems concepts of offer and acceptance (by the offeree) - sufficent agreement = it must be clear, what obligations are agreed upon differences at least in terminological concepts - validity of a contract
  • Slide 17
  • Comparative Private Law HS 2014, Prof. Dr. iur. Ulrike BabusiauxSeite 17 Conditions of contracts in French Law, Reader p. 16 Art. 1108 Code civil Four conditions: (1) consent = intention to be legally bound (2) capacity to contract, cf. Art. 1223 Code civil (3) object = an ascertained object as subject matter of the promise (4) causa = the foundation of a contract the theory of offer and acceptance is a creation of the French doctrine a good summary of this doctrine can be found in the avant-projet Catala
  • Slide 18
  • Comparative Private Law HS 2014, Prof. Dr. iur. Ulrike BabusiauxSeite 18 Offer and acceptance in French Law: Avant-Projet Catala Offer: Art. 1105 The formation of a contract requires the meeting of the definite and certain will to be bound on the part of more than one person. Art. 1105-1 An offer is a unilateral act defining the essential elements of the contract which the person making it proposes to a particular person or to persons generally, and by which he expresses his will to be bound if it is accepted. Art. 1105-2 An offer may be revoked freely as long as it has not come to the knowledge of the person to whom it was addressed, or if it has not been validly accepted wi