November 14, 2012

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.




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