My experience with comparative private law

The comparative private law course shows me at first that for a same problem the solution, in particular the legal solution can be absolutely different. Sometime only the ground is different, sometime it is also the consequences. The comparative study shows that the legal world is not separate from the others area, and that the culture, the politic, the history, etc have a actual influence on the legal process.

The second element I pulled from this experience is the importance to refer to the foreign law to find a solution to a problem. the comparative private law becomes a major source for the doctrine.

Thirdly I understood the issue of the existence of non harmonized law, especially for the consumer and the professionel. The fact that a gela situation or contract under a certain law can become illegal under another is a fact we have to take into account in the daily life, and must be prevented by the European Union in order to make the Union more and more coherent.

Thank to all of this, I want to improve my knowledge in comparative law, and continue this experience.

Ugo Dallemagne : 04 Jan 2013 11:56 |  Comments (0) |  Close comments |  Report a problem

Toward a soulless European contract law ?

This issue came to me when I was considering the particularities of the national contract laws as the 'cause', the consideration and the 'abstractionsprinzip'.

I was thinking that these particularities are what I call the 'soul' of the contract law. These principles are explained by the contractual theory selected by a country, they are the foundations of the contract law, and determine how a contractual conflict must be solved.

The doctrine of the consideration shows that in England the contract is considered as a bargain. And that explains that the judge cannot not control the bargain, and adjust the contract.

The doctrine of the abstraction seems to show that a contract is most an instrument to transfer the property. This explains why the German law abandoned the doctrine of the cause. According to this theory the act of transfer of property should have a cause which would have been the contract of sale. If the contract of sale would have been voided, so the transfer of property would have lost its cause.

In France the doctrine of the cause showed the important place of the moral in the contractual relationship under the Canon law. And now the cause, toward its 'subjectivisation' can be used to ensure a certain balance between the parties, that shows the evolution of the contract law.

But these doctrines are really specific, and controversial. This is the reason why the European contract law could not incorporate one of them. But are we developping our doctrines ? If we are not, the European contract law would be only a toolbox for the businessmen, and it will be impossible or really difficult to extend it to an European civil code.

Sources

Beale, H., Fauvarque-Cosson, B., Rutgers, J., Tallon, D. and Vogenauer, S., Casebook on the Common Law of Europe: Contract Law(Hart, ed. 2, 2010).

Collins, H. The European Civile Code : The Way Forward (Cambridge University Press, 2008)

Ugo Dallemagne : 05 Dec 2012 20:39 |  Comments (0) |  Close comments |  Report a problem

Essay about the application of the theory of the 'imprevision' in European contract law

For the essay in European contract law, I decided to work on the hardship in European contract law. This is the situation where the performance of a contractual obligation become more onerous, radically different because of a supervening event.

I will study the rules elaborated by the different groups of research and try to understand which compromises they did, and how. Indeed, the hardship is a particular situation in contract law which is not ruled in the same way in England, and in Germany. Concerning the France, the so-called 'Théorie de l'imprévision' is still refused.

The question is how did the groups elaborated the rule, and is that possible to do something else ? That for I will deal with the three national laws, and I will argue that they did not created a theory as the french theory of 'Imprevision', in which the judge can modify the contract, neither the English theory of frustration according to which the contract is automatically discharged. But that their rule may resemble to the German theory where an obligation of renegotiation stands.

I will choose what we could call the best solution, which can be approved by the national legal orders, including France.

Indicative bibliography :

Book

Beale, H.G., W.D. Bishop, and M.P. Furmston, Contract (OUP Oxford 2007).

H Beale, B Fauvarque-Cosson, J Rutgers, D Tallon and S Vogenauer, Casebook on the Common Law of Europe: Contract Law(Hart, ed. 2, 2010).

Markesinis, B.S., H. Unberath, and A.C. Johnston, The German Law of Contract: A Comparative Treatise (Second Edition) (Hart Pub. 2006).

Terré, F., P. Simler, and Y. Lequette, Droit civil: Les obligations (Dalloz-Sirey 2005).

Zimmermann, P.R., The New German Law of Obligations: Historical And Comparative Perspectives (Oxford University Press 2005).

Articles

Hay, P., ‘Frustration and its solution in German law’ (1961) 10 The American Journal of Comparative Law, 345–373.

Rösler, H., ‘Hardship in German Codified Private Law: In Comparative Perspective to English, French and International Contract Law’ (2007) 15 European Review of Private Law (ERPL), 483–513.

Ugo Dallemagne : 14 Nov 2012 22:30 |  Comments (0) |  Close comments |  Report a problem

The protection of the bona fide third party in a voidable transfer of property

There are some cases where a contract between a seller and a buyer is avoided even though the latter sell it again to a bona fide third party. Is the second contract voidable ? Does the third party have to return the object ?

The questions introduce two issues. The first issue concerns the equity, do we have to protect the bona fide third party, and consider the second contract is still valid ? It would be fair to ensure a protection, but it would be against the contractual principle under which the first transfer has not been executed, so the buyer would not have been entitled to sell the object again.

The second issue concerns the principle of stability of the transaction. According to this principle, everything must be done to ensure the validity of a contract, and its consequences. To void the second contract makes the contractual relationship in generally unstable because a chain reaction can start.

The abstract transfer system will all the time protect the bona fide third party and ensure the stability of the transaction, because the legal act of transfer is independent from the contract. The void of the contract does not have consequence on the transfer of rights, so the seller is still entitled to sell the object again.

The causal transfer system is not as clear as the abstract. A strict application of this system makes both contracts avoided. But in few national laws (as in France), there is an exception when the third party acted in good faith (But in any case, there is an exception to ensure the stability of the transaction.). In Common law, the exceptions are more strict.

I think the abstract transfer system is the system which provides the best solution regarding to the fact that it protects the bona fide third party, and ensure the stability of the transaction.

Source : Erp, S. Van, and B. Akkermans, Property Law: Ius Commune Casebooks for a Common Law of Europe (Hart Publishing Limited 2012)

Ugo Dallemagne : 14 Nov 2012 22:09 |  Tags: Property Transfer |  Comments (0) |  Close comments |  Report a problem

What is the concept of the European contract ?

In England the contract is seen as an exchange of values, as a tool for commercial transaction. At the opposite, in France, the contract is seen as an exchange of consent, protected by the moral. The distinction existing between the two concepts of contract explains many different rules. In France for instance, the doctrine of good faith is the principle rule in contract law, while, in England, it does not exist (even if the bad faith is not encourage as say the writers). Another example could be the remedies in case of breach of contract. In France, the specific performance is the rule, while in England it is an exception, because on the one hand we protect the consent, and on the other hand we protect the bargain.

The question is which concept, supposing there are only two, will be adopted for an European contract law. On the one hand, we have seen that the concept draws the rules, and that there are difference between the countries. On the other hand, we know that groups of research on a European contract law use, as inspiration sources, the law from different 'legal families'. Can we suppose that it is possible to create a new concept by mixing rules, or by summarizing different one ?

Here can emerge a issue, already noticed in the last post. Is the moral concept of contract used in the Romanistic family or also in the Germanic family ? If the moral concept is use in the Continental Europe, and can we suppose to impose it to the Common law countries ? The question is not about only a concept, but apparently one more time, about civilization. This is really interesting to know how the idea of Europe will go over the national, historical foundations to create a new legal family.

Source : H Beale, B Fauvarque-Cosson, J Rutgers, D Tallon and S Vogenauer, Casebook on the Common Law of Europe: Contract Law(Hart, ed. 2, 2010, in library: KN10 C6)

Ugo Dallemagne : 17 Oct 2012 18:29 |  Tags: Concept Contract European Law |  Comments (0) |  Close comments |  Report a problem

Linguistic and culture : two arguments against the an Europeanisation of contract law

The Europeanisation of contract law is an enterprise of the European Commission about creating an European contract law. If the creation of a contract law for the Europe isn't criticised itself, the elaboration of European Civil Code, which is seen as the final aim of this enterprise, is subject to controversy.
The issue isn't about the law itself. The issue is about the creation of a legal monument representing the Europe. In this way that seems impossible according to certain persons.

One of the argument, developed by Gérard Cornu is that the creation of an European Civil Code couldn't be possible because it's a problem of linguistic. « French law can only be the daughter of the French language ». It means that not a law, but a code, as the legal monument of a community, can be created only for people using the same language, and at least sharing the same culture. And because there is no European language, an European Civil Code is impossible.
We can ask if this argument is reliable. The French Civil Code has inspired all of the civil law country around the world, especially in Europe. Because it is an example of unity, it had inspired the German civil code (BGB). In Germany, the code had permitted the unity of the nation, united around the law. And not the opposite. Why the French civil code couldn't be the start of an European legal unity ? Maybe is the concept of European legal unity itself which is controverted.

An other argument, of Pierre Legrand, against the creation of a Civil Code is based on the linguistic and the culture of the EU's member.
Because the law is created by the society, and not the society by the law, the legislative instrument is soaked of the society's aspiration. The history, the psychology, wrote Pierre Legrand, can explain the legal system of a country.
The French Civil Code is, in this way, a unique French creation, and can not be copied for others country. An European Civil Code could be seen as a domination of the civilian society on the common law community. Europe can not impose to common law countries a legal system at the opposite of them.
Here we are in front of the most important problem in Europe, in the legal culture itself. The union of two opposite. This union may prevent the elaboration of a European Civil Code.

Source : H Beale, B Fauvarque-Cosson, J Rutgers, D Tallon and S Vogenauer, Casebook on the Common Law of Europe: Contract Law(Hart, ed. 2, 2010, in library: KN10 C6)

Ugo Dallemagne : 09 Oct 2012 16:40 |  Tags: Contract European Law |  Comments (0) |  Close comments |  Report a problem