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November 18, 2010

Postal rule: sooooo yesterday…

Thou shalt not wait any longer, Kim's blog is back with all the news and comments on European contract law you've been so desperately craving for.


As I promised at the end of my last entry, this week I want to give my personal perspective on the postal rule and how this rule should refurbished to remain relevant in our present day contractual trade relations.


The postal rule is a Common law principle established by the 1818 English case Adams v. Lindsell which states that a contract, which has to consist of a valid offer an acceptance, and good consideration but that will be treated another time, will come into force at the moment the letter containing the acceptance was posted by the offeree. This is the dispatch theory.


This rule is slightly off these days because only an infinitely small amount of trade transactions in Europe are still conducted in a traditional way by post and without having explicitly excluded the application of the postal rule.


On the other hand, for a common European contract law to work, it would still have to be taken into account and compared to the systems in place in other places such as in continental Europe.


France and Germany, civil jurisdictions, generally don't follow this rule, German law for example states that a contract is concluded as soon as the acceptance reaches it's addressee according to §130 of the BGB, the so-called reception theory.

French Law then again adopts largely the position of English law due to the case L'Aigle/Comase, according to which the dispatch theory has to be applied.


After having presented with the main aspects of the postal rule, I will continue next time and start to explain how this principle can become problematic and even antiquated in the times of growing internet trade within the EU.


So we shall meet again...in a week!


K.S


Solution in sight: CFR to the rescue…

Another week has gone by, but the wait is finally over...


...presenting new exciting news and comments from the glamorous world of European contract law.


As you already know I am person strongly in favour of common European contract law, a legal framework, if it was really put in place, would ease trade between different economic actors a lot.


So after having dealt with an interview conducted with Diana Wallis for the past two entries, which served me as kind of an introduction to the topic, I will start talking business by identifying the core issues that exist among the three main European legal systems, the German, the French and the English ones, from which all the rest of the other European systems more or less derive.


In doing so, I will also comment on the Common Frame of Reference (CFR) on several occasions. The CFR is a project proposed by the European Commission to give the European Union in the long run a common legal framework in the area of contract law, which then could be used by in business or consumer trade relations to give the different parties more legal security without having to turn to private international or consumer law to settle their disputes, given that this can represent sometimes a large financial or time-intensive burden.


Besides national contract laws and the CFR, I will also propose own solutions to particular legal issues, which a strong emphasis on internet trade relations, and how European contract law would have to evolve in order to be up to date with modern developments concerning trade relations.


This will be all for this week, but I'm gonna give already a little preview on next week's topics, it starts with postal... and ends with ...rule. In know it's not that easy to figure out, but not despair.


To be continued...


K.S


MEP Interview: Additional points of view

What up guys,


I'm am back with a fresh batch of new information, views and comments on European contract law to give you some interesting or unusual insight into the sometimes seemingly dull world of contract law.


So here we go.


I want to catch up immediately where I left off last week, because I felt that this subject needed some additional commenting. So here's the continuation of my review of the interesting interview a slovakian website conducted with UK LibDem MEP Diana Wallis.

Therein, Wallis gave her point of view on the question of how to improve trade relations among the economic actors, most notably small businesses, of the different EU member states.

She identifies, as did this blogger already before, the issue of to many different European legal systems which make it difficult for a lot of companies to sell their products or services across their borders, given the uncertainty revolving around the compliance with the laws of each member state, which sometimes can differ substantially from the ones at home.


What Wallis then proposes, and I proposed as well in my first blog, is a common European contract law, which, even though optional, could be applied identically in every single member state regarding cross-border trade relations, but could also be extended to non-commercial relations if politically desired.


Then Wallis puts an option forward that I personally find pretty unrealistic. She suggests that for internet transactions, there could be an “European flag” button on the website which could be pushed if a costumer would like to opt for the European contract law option.

As far as I see this matter, no internet-business would present such a button, already nowadays, customers have little to no choice because internet sellers impose their general terms and conditions including the applicable jurisdiction on costumers, private or small businesses. It would be the task of the European legislative body to impose some rules regarding the Europe-wide enforcement of such an European contract law so that everyone could actually profit from it.


That aside, a common European legal framework in the domain of contract law needs to take into account certain characteristic features the most dominant legal systems in the EU possess, which will be the subject I will be dealing with next week.


Till then, stay legal;-)


K.S


Good news: Blogger's views backed up by British MEP

Hey guys,

I'm back with more interesting news, ideas and comments on how European contract law works, a legal subject which as such is still in development and has to be improved to be able to deal with the challenges of the modern 21st century society.


This week I read an interesting interview form Euractiv Slovakia site with the British LibDem MEP Diana Wallis in what ways the functioning of the European Union and especially the single market could be ameliorated. (http://www.euractiv.com/en/priorities/wallis-mep-eu-budget-must-respect-difficult-times-interview-499438)


At some point in the interview, Wallis is asked what she thinks are the best ways to stimulate the economy within the internal market.

This is exactly the moment where she, in the opinion of this blogger, is spot on, basically saying what I told you in my last entry, that, for boundaries and adversities to cross-border trade to disappear, we need a common legal framework among the different European member, because especially small businesses, and to a lesser extent private consumers, will always hesitate to intensify their trade relations because they cannot always be sure what law will apply to them.

In the end, they might be reluctant if they have to enforce civil or sometimes even criminal claims against their trade partners located in a another member state, because the costs of avoiding legal troubles in another member state, as small businesses often don't have the sufficient money to consult legal advisers to know if they comply with the law of another member state.

Thus they will be hindered in marketing their products or services across their own borders and the main benefit of the internal single market will remain obsolete to them, particularly since the internet would offer them a lot of opportunities to advertise their products or services in the whole European Union.


How this problem can be tackled and what are the main obstacles will be the topics in my next entries by analysing and comparing specific parts of contract law of the three biggest economies in the European Union, Germany, France and the United Kingdom, and showing how these can create problems for cross-border trade, so stay tuned.


See you soon,


K.S


October 14, 2010

Contract issues arising in the domain of private international law: The need for more…

For my first blog entry, even though many interesting points could be dealt with, my focus is going to lay on the challenges that contract law faces in the wake of growing international trade relations between countries and intensifying commercial relations amongst its citizens.

My comment will deal with facts and opinions taken from point 1.4 of Chapter 1, which is in my opinion one of the big portions of contract law that remains to be fundamentally revised due to the almost complete absence of coherent and common rules. This fact is stressed by the nonexistence of, for example, an European Civil code which could create a common framework that would facilitate business and commercial transactions.

So far, I limited myself to abstract ideas and the lack of a cohesive European contractual structure as laws still differ sometimes substantially from country to country as shows for example the existence of the German concept of “Willenserklärung” concerning the fulfillment contractual obligations in property law questions, or the British pre-contractual exigence of “Consideration” which remains relatively unknown within Continental Europe.

All these differences add up to the conclusion that something needs to be done; and although recent attempts such as the Rome I Regulation which came into effect in August 2008, real, more fundamental changes are required to ease business and commercial activities.

Especially since the internet created a lot of unprecedented situations where borders slowly disappear digitally, but remain existent in the real world, and this can lead to a lot of cross-border conflict situations that could hinder trade.

This particular area of interest, how private international law issues create a need for further harmonization, will be the main focus of my future blog entries to come, I will always try to address this issue and its various and varied solutions from different angles, so please stay tuned for more.


K.S



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