ICP Presentation – Withdrawal Rights
Below are the slides of my presentation on withdrawal rights in the European Union.
Below are the slides of my presentation on withdrawal rights in the European Union.
In this final blog, I wish to look at vicarious liability in German law, and specifically, the liability for harm caused by employees. Under the relevant paragraphs of the BGB, liability of an employer arises for any injury, unlawfully caused to another through the accomplishment of a task set in the course of one’s business. The liability of the employer can only be rebutted if reasonable care has been exercised in choosing the employee, or if the injury would have occurred anyway, regardless of a higher standard of care.
In itself, this definition differs fundamentally from those provided by English and French law, which generally offer no particular way of escaping liability once it has been established vicariously for employers. In Germany, liability can be escaped through the lack of fault or the lack of causation, according to §831 (1) BGB. This therefore means that a distinct regime of workers liability is not present, as it is in France or England. Instead, a slightly differing regime for presumed fault operates for employers and employees, within standard German tort law.
Such an exclusion clause may seem very much at odds with English and French law. However, the prevalence of employers indemnity insurance often allows for a bit of flexibility in English law, as noted in academia. This does blur the lines between true liability in tort law cases involving employers, and I feel that excluding factors such as on offer in the BGB could help to clarify certain situations and provide similar levels of protection where necessary. The English system seems reluctant to admit any defences once the necessary criteria have been established, bar subsequent developments such as contributory negligence or because of the assumption of some risk.
For this blog, I would like to focus on the division between the spheres of tort law and contract law in the English legal system. Indeed, some law students study both simultaneously as ‘civil law’ or ‘the law of obligations’. In some ways, contract and tort share some similarities: both form legally binding relations, are borne out of human interaction and often financial or economic transactions, and can give rise to a legal duty before the civil courts. However, in reality and practice, both areas have extremely nuanced and separate distinctions at their foundations.
The classical and perhaps overly simplistic distinction lies firstly in the idea that, in tort law, liability arises from the breach of an obligation fixed by law. Contract law meanwhile revolves around an idea of liability set by the parties themselves. However, such claims have little resonance with modern contract law, which does not seek to define contracts purely on prior promises – as suggested in this definition.
An alternative difference is therefore not the existence of the duty, but its content. In tort law, the content of an obligation is defined in law, whereas contracts are specified by the parties. However, this is not always entirely convincing, as statute law and jurisprudence increasingly influence the shape and content of contracts, and conversely, tort duties can be changed through consent.
Another commonly cited division between the two is that tortious duties are owed to everyone – whilst obligations in contract law are only owed to contractants, because of the guarantee of contractual freedom. Yet again, this definition falls as further restrictions from legislators - such as the Compensation Act 2006 and Contracts (Rights of Third Parties) Act 1999 for tort and contract law respectively – have further muddled the waters between distinctions previously set in stone.
What I would see as the closest and most fitting definition comes from Markesinis, who highlights that tort law serves mainly to protect life and property, whilst contract is to some extent more concerned with promoting the further development of a person’s interests: that is, protection versus production. Whilst some exceptions do of course remain here, I believe that this abstract image, alongside the above illustrations, help to clarify the situation of the differences between the two branches of civil law.
I would like to focus my blog this week on the issue of cause. This Romantic construction is a feature of the laws of Quebec, Italy and most relevantly for us, France. The idea of cause attempts to find the interest in which parties have in making the contract – and to ensure that this interest is both serious and legal.
This is particularly relevant with regards to the legality of a contract. In cases where the object of the contract is illegal in criminal law, the law of contract intervenes and holds the contract to be void through lack of necessary cause. Sales of drugs or weapons for example are voided, not because of the criminal law, but because of the failure to adhere to contractual requirements. I find it interesting to see that other jurisdictions would highlight the issue of public policy to prevent this contract’s enforceability – whilst French jurisprudence in this field (such as the Hocus Pocus case) bases its reasoning on the foundations of the obligation.
The creativity of judges here is also seen with the use of cause in relation to unfair clauses. The notable 1996 case of Chronopost shows the innovation of cause being used to restore a sense of fairness through a failure to carry out a fundamental duty under the contract. Since this case, cause has been further developed around the idea of fundamental duty, to the point where all limiting clauses applying to fundamental obligations are disregarded. I feel personally that such an extrapolation is a far cry from the original conception of the notion, which is continued with cases such as The Video Club. Here, the contract was annulled because the advantages did not correspond to those which were sought on the basis of the same doctrine – which I believe is perhaps too far removed from the idea of seriousness in cause
All three legal systems have been confronted with the issue of the communication of acceptance in contract law, and whether it is necessary for a binding obligation. Whilst this is not problematic for contracts concluded face-to-face or via phone, it is particularly challenging to ascertain communication of acceptance for contracts made at distance. Whilst Community law has had some effect in these areas, the law of the postal rules in each jurisdiction is seen as the root of determining communication of acceptance.
France has seen the conclusion of a contract as matters that are left for the lower courts to decide, as disputes were seen to be based on fact and not law. The Cour de Cassation has held that the lower courts are entitled to generally exercise “unfettered discretion” in this field, yet there have been some judicial hints towards acceptance being allowed on dispatch of a letter. Interestingly, however, academic works such as the Avant-Projet Catala and the Terré Commission have recommended the inverse and stated that acceptance is only valid once received.
Such a position has been adopted in Germany. Communication is needed, as the idea of the irrevocability of offers is of central importance in German law– as highlighted by the Reichsgericht in 1917. The exact moment of acceptance is thus less significant, in comparison with the law of France in this area.
Conversely, English law has held that acceptance by post is binding as soon as it is sent, and regardless of when it is received. As soon as the letter leaves the offeree’s control, the acceptance is seen to be communicated in English law. However, a distinction is made on the communication of the revocation of an offer. Byrne v Van Tienhoven held that an offer is only revoked once notification has been received, with Lindley J highlighting that any other conclusion in this scenario would produce “extreme injustice and inconvenience”. To counter any claims that the English system favours the offeree in this situation, the classical and uniquely English doctrine of consideration must be borne in mind. As a result, it is not the case that offerors would be left at a loss in these contractual arrangements, as the doctrine of consideration provides some protection from total loss.
In terms of offer and acceptance in contract law, shops and window displays pose an interesting set of issues – which are notably divergent across European jurisdictions.
French law sees the display of goods as a full offer – which has been construed widely across supermarkets, stores and self-service businesses. Malaurie highlights how drivers parked in taxi ranks have been held to been making an offer, reflecting the low threshold for this status. The Cour d’appel also stressed this in the case of Mme Dehen’s exploding lemonade bottle, where the victim of faulty goods was held to have a contract after placing the object in her basket – and not before paying.
Such a construction of an offer would not be well-received by English lawyers. The French situation is seen as preventing the contracting parties from changing their minds, or the chance to substitute an item with another. English case law such as Boots here indicates that, instead of the French conceptualisation, the item on a shelf is an invitation to treat (invitatio ad offerendum). No contract is therefore concluded when a customer takes the goods from the shelf under English law. Were Mme Dehen to live in England, it might have been the case that she was not able to seek redress through contract law for her exploding lemonade bottle.
German law seemingly has no authority on this subject, but academic debate has tended to hint at being closer to English law, backed up by the possibility of changing one’s mind. Emphasis has also been placed in German law on securing the creditor’s right to refuse to conclude a contract.
A closer inspection of offer and acceptance shows differences between the precise technicalities – but a question remains as to their actual significance. Why do we really need to differentiate so much in this field? Indeed, either way, by the time the party has left the business, the contract has been completed - and for those that don't make it out of the shop (such as Mme Dehen’s, perhaps) a solution in tort law could be viable. However, the case of Fisher v Bell reflects the importance of terminology in this area – with the seller of a prohibited item escaping criminal sanction, as he was providing it as an invitation to treat and not as a full offer. Under French law, he might have been less fortunate: illustrating the importance of the nuanced definitions in this area.
For such an essential and universal concept, analysis of what actually constitutes a contract highlights a surprising amount of difference between countries. The idea of contractual relations and obligations is one of fundamental significance in commercial and personal affairs – yet the way in which jurisdictions define a contract differs markedly; owing to a complex history of legal interaction across a multitude of legal traditions, influenced majorly by Roman law, canon law, common law, and lex mercatoria. This mix has led to the developments of nuanced and varying definitions into what today can be defined as a contract.
France seeks to define a contract based on the notion of agreement, and how contractual obligations arise via this agreement. The system sees the contract defined on the basis of the contractor’s position – as seen in the Code Civil.
Meanwhile, the German BGB shies away from determining what exactly a contract is. Instead, the focus is placed on the obligation created by the arrangement, which is concentrated in turn by a contract. Both French and German contract law achieve naturally the same legal principles, but the methodology used to determine the definition of a contract is noticeably different.
As ever, the English system has evolved without any legislative definition of a contract – with academic writing and jurisprudence here filling the void. It seemingly stands somewhere in between the agreement-based conception borne out of the French doctrine, and the abstract German idea of obligations creating the contract – with academics stating the obligation arises out of agreement, to be enforced by legal remedies. Common law instead seeks to define the constituent parts, for a check-list approach to what a contract is, and how it arises out of a need to remedy a contractual situation. Nevertheless, the English definition of a contract is most definitely the least clear of the three – most probably arising out of the absence of codification.
Whilst the three systems all diverge at the basis of what a contract is, it is interesting to see how the concept still has evolved and become a central and indispensable theme of domestic civil law.
Harmonisation between Member States of the EU in any legal arena can offer a huge amount of security and unity between 27 often disparate legal traditions – yet the Union is often depicted either as the brash bogeyman, disregarding and purging swathes of well-rooted domestic law, or too limp to bring about the change it dreams of.
This is particularly the case in the field of contract law. Academics, the Commission and the Parliament have all highlighted the benefits of how harmonisation in this area would afford a huge degree of convenience and advantage to consumers as well as businesses, who otherwise remain lost in a maze of competing legal systems. Any movement towards harmonisation in this area by an originally economic Union is therefore logical, and a multitude of academic developments and projects reflect its appeal.
However, reality is less kind to these engagements. Putting these proposals into hard law poses a series of insurmountable issues: firstly, codification has been mooted through academic channels as a possible solution, running alongside current domestic codes. The disparate nature of European legal traditions does unfortunately undermine these efforts, especially with the British and Irish trend of shying away from codified law. The vast mix of languages involved also is problematic here when the translation of ‘legalese’ is considered – with legal phrasings often being interpreted strictly and specifically within domestic legal orders. More globally, the fear of a pan-European, homogenised standard of law can strike fear into even the mildest of natural lawyers – with the critique that unification en masse slows legal development and ingenuity in this ever-expanding field of law.
These challenging issues highlight the difficulty of harmonising law in this field – even before any individual civil law constructs and ideas are analysed. Before any complex and varying components of European civil law can be broken down, it can be seen that an uncertain and questionable foundation for harmonisation in this area exists – and remains the reasoning as to why movements in this area are often confined to soft law, ‘opt-in’ works of academic merit, rather than direct hard law of a secure European Union.
The focus of this blog therefore will be a comparative reflection on the civil law of European countries, highlighting the differences, similarities, advantages and disadvantages of individual alternative legal systems throughout the year.
Welcome to my blog on European Civil Law for the ICP Lille-Saarbrucken-Warwick exchange programme, reflecting on the law of tort and contract in England, France, Germany, and within the European Union.
Please feel free to comment on my entries.
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