Comparative Private Law - UZH

Comparative Private Law

Dr. Anna Plisecka

Theories and Technique of Contract in Europe

The Place and Source of Contract

19.10.15 Dr. Anna Plisecka 2

French Law

• Code civil • Code de consommation • Code de commerce • Code civil, Book III, Title III: Of contracts and of contractual

obligations in general


German Law

• BGB • 2001 Schuldrechtsmodernierungsgesetz • Consumer protection legislation integrated in BGB


English Law

• Based on the common law • Sale of Goods Act 1893 amended in 1979 • Misrepresentation Act 1967 • Unfair Contract Terms Act 1977 • Contracts Act 1999 • House of Lords, Moschi v Lep Air Services Ltd (1973) Lord Diplock: The

law of contract is part of the law of obligations


Definitions of Contract


European Law

• PECL: no definition of contract • UNIDROIT PICC: applies with adaptations to any communication of

intention addressed by one party to the other • DCFR: II-1:101 (1) A contract is an agreement which is intended to give rise to a binding legal relationship or to have some other legal effect. It is a bilateral or multi-lateral juridical act. (2) A juridical act is any statement to agreement, whether express or implied from conduct, which is intended to have legal effect as such. It may be unilateral, bilateral or multilateral.


French Law

Code civil Article 1101: 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.


Italian Law

Codice civile Article 1321: Definition: A contract is an agreement between two ore more parties for the purpose of creating , providing for or extinguishing amongst themselves a legal patrimonial relation.


German Law

BGB § 311: 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.


English Law

Treitel on the Law of Contract: “an agreement giving rise to obligations which are enforced or recognized by law”.


Basic Elements

•Agreement • Intention


PECL Article 2:101: Conditions for the Conclusion of a Contract (1) A contract is concluded if: (a) the parties intend to be legally bound, and (b) they reach a sufficient agreement without any further requirement. (2) A contract need not be concluded or evidenced in writing nor is it subject to any other requirement as to form. The contract may be proved by any means, including witnesses. Article 2:102: Intention The intention of a party to be legally bound by contract is to be determined from the party’s statements or conduct as they were reasonably understood by the other party. 19.10.15 Dr. Anna Plisecka 13

Agreement

• Offer and acceptance • Subjective agreement • Sufficiency of agreement


French Law

• Code civil Article 1101: A contract is an agreement (convention) … • Autonomy of the will • Essential elements:

−The object of the contract −The price


English Law

House of Lords The Hannah Blumenthal The intention of a party should be judged by how it reasonably appeared to the other party.


German Law

• Subjective intention to perform a juristic act is necessary (Erklärungsbewustsein)

• BGB § 118: A declaration of intent not seriously intended which is made in the expectation that its lack of serious intention will not be misunderstood is void.


Sufficiency of Agreement

• The offer must contain the essential elements of the contract • Determination of price • RG 8 April 1929, Precontract without price A precontract which merely fixes the maximum price is not binding.

• Cour de cassation Société Cofratel v Société Bechtel France A framework contract which envisages further contract being made within the framework is not invalid because the prices for the further contracts are not specified.


Sufficiency of Agreement (PECL)

Article 2: 103: Sufficient Agreement (1) There is sufficient agreement if the terms: (a) have been sufficient defined by the parties so that the contract can be enforced, or (b) can be determined under these Principles. (2) However, if one of the parties refuses to conclude a contract unless the parties have agreed on some specific matter, there is no contract unless agreement on that matter has been reached.


Intention

• An intention to create a legal relation is required in each system • Whether a party intended to be legally bounded can be judged either

on the basis of their subjective intention or objectively • The parties can agree that their agreement should not have legal

consequences


Additional Requirements

• Cause • Consideration • Form


French Law: The Doctrine of Cause

Art 1108: Four requirements are essential for the validity of an agreement: The consent of the party who binds himself; His capacity to contract; A definite object which forms the subject-matter of the undertaking; A lawful cause in the obligation. Art 1131: An obligation without cause or with a false cause, or with an unlawful cause, may not have any effect. Art 1132: An agreement is nevertheless valid, although its cause is not expressed. Art 1133: A cause is unlawful where it is prohibited by legislation, where it is contrary to public morals or to policy.


Cass civ (1) 12 July 1986 Hocus pocus

• The Items sold are not unlawful • The occupation of soothsayer is a criminal offence • The cause is therefore illegal • The Cour de cassation distinguishes between the cause supporting

the buyers obligation and the cause underlying the contract


Cass com 22 October 1996 Chronopost

• Failure to perform the fundamental duty under the contract • Non-performance was not due to a serious fraud or fault • The reasoning is founded in the doctrine of cause • The payment for transportation is without the cause


Cass civ (1) 3 July 1996 The video club

• The cause of contract is not just the supply of the cassettes for the payment of hire charge, but opening of a video centre

• The specific goal should be considered • The cause was therefore impossible


Italian Law: doctrine of cause

Codice civile Art 1325: Requirements - The requirements for a contract are: 1.) the agreement between parties; 2.) the cause; 3.) the subject matter; 4.) the form, when prescribed by law, under penalty of nullity. Art 1343: Unlawful causa - The causa is unlawful when it is contrary to mandatory rules, public policy (ordre public), or morals. Art 1344: Contracts in fraud of law - The cause is also considered unlawful when the contract constitutes the means for evading the application of a mandatory rule. Art 1345: Unlawful motive - A contract is unlawful when the parties are led to conclude it solely by an unlawful motive, common to both.


English Law: the Doctrine of Consideration

A valuable consideration, in the sense of the law, may consist either in some right, interest, profit or benefit accruing to one party or some forbearance, detriment, loss or responsibility, given, suffered or undertaken by the other. (Currie v Misa (1975) LR 10 Exch 153, 162)


Court of Appeal Carlill v Carbolic Smoke Ball Co

There will be consideration for a promise if the promisee incurs inconvenience in exchange for it, or if the promisee ’s action results in a benefit to the promisor.


Comparative Private Law - UZH

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