Week 1
Cases and legislation
French law
Art 1103. –Contracts which are lawfully formed have the binding force of legislation for those who have
made them.
German law
Civil Code (BGB)
Section 311 Legal and similar obligations
(1) A contract between the parties involved is required to establish an obligation through a legal
transaction and to change the content of an obligation, unless the law prescribes otherwise.
(2) An obligation with obligations under Section 241 (2) also arises through
1.the start of contract negotiations,
2.the initiation of a contract in which one party grants the other party the opportunity to influence its
rights, objects of legal protection and interests or entrusts these to the other party with regard to a possible
legal relationship, or
3.similar business contacts.
(3) An obligation with obligations under Section 241 (2) can also arise with persons who are not
themselves to become a party to the contract. Such an obligation arises in particular if the third party
claims to have a high degree of trust and thereby significantly influences the contract negotiations or the
conclusion of the contract.
DCFR
II. – 1:103: Binding effect
(1) A valid contract is binding on the parties.
(2) A valid unilateral undertaking is binding on the person giving it if it is intended to be legally binding
without acceptance.
(3) This Article does not prevent modification or termination of any resulting right or obligation by
agreement between the debtor and creditor or as provided by law.
What is contract law?
Contract law: area of private law that deals with “contracts”:
- Legally enforceable agreements that create, define and govern mutual rights and obligations
among its parties
Differences-> need for supranational and comparative approach
- Definitions, basic, elements, and various technicalities… they all differ among legal systems
1) Mutual agreement and/or unilateral juridical acts?
2) Subjective/ objective version of agreement?
,- Systematization and related concepts / legal culture
Different ways of studying contract and contact law
- Internal perspective
1) Positivist, doctrinal, practice- oriented
2) Theoretical input: interpretative or pragmatist theories
- External perspective
1)Social phenomena
2) Historical, political, critical, empirical, etc
Contract in modern society
- Contract as a fundamental ordering device of modern society and core of all individualist social,
moral and political theories
Maine, Ancient Law: “The movement of the progressive societies has been uniform in one
respect. Through all its course it has been distinguished by the gradual dissolution of family
dependency and the growth of individual obligation in its place. ... It (is not) difficult to see what
the tie between man and man is which replaces by degrees those forms of reciprocity in rights and
duties which have their origin in the Family. It is Contract ‘.
- Contract law constitutes and reflects particular features of a society
Eg.: contract as ‘legal side of market society’ (Weber, Sociology of Law)
Realm of contract law growing with privatization: education, health care, welfare aid, digital
services
Why do contracts have binding force?
- moral justification(s):
promise out of free will binds itself (Fried, Contract as Promise) –
- economic justification
efficiency gains of bilateral agreements (Calabresi, One view of the Cathedral) –
- social justification
- new forms of social and economic cooperation (Campbell-Vincent Jones, Contract and
Economic organization)
- political justification
need for democratic deliberation (Hesselink, Democratic contract law)
What is European Contract Law?
Here, we will identify “European Contract law” as the variable and pluralist set of rules which
regulate contracts within the normative space which corresponds, geographically, to Europe
- Sources:
1) National, European, and international
2) Public- made or private- made, etc
- Scope of application
, 1) Horizonal/ Sectional
- Approach
1) Codification
2) Constitutionalization
3) Marketization
- Normative value
1) Binding/non-binding, mandatory disposable
ECL as comparative contract law?
Rationale § contract law, common core, common principles
Methodology § Structuralism, functional, culturalism
Focus § General contract law § …But occasional forays into specific issues when problem-based
Aquis communaire as a basis for debate on harmonization
PECL, DCFR, as blueprints for adjudication and harmonization § Main actors: academics
(private lawyers, comparative lawyers); ELI
ECL aka European law & its impact on contract law?
Sources of EU contract law
- Primary EU law
TFEU (market freedoms, competition)
CFREU (horizontal effect)
- Secondary EU law Directives Regulations
CJEU decisions
- How to make sense of these sources?
Eg in terms of objectives, system, or justice £
No “system”, hardly general principles
, WEEK 2
Mandatory readings:
Offer & Acceptance
German law:
§ 145 Binding to the application
Whoever applies for the conclusion of a contract with another person is bound by the application
unless he has excluded the binding nature.
§ 146 Expiry of the application
The application expires if it is rejected in relation to the applicant or if it is not accepted in good
time in accordance with Sections 147 to 149.
Section 147 Acceptance Period
(1) 1An application made to someone present can only be accepted immediately. 2 This also
applies to an application made by telephone or another technical device from person to person.
(2) An application made to an absentee can only be accepted up to the point in time at which the
applicant can normally expect to receive the answer.
§ 148 Determination of an Acceptance Period
If the applicant has specified a deadline for the acceptance of the application, the acceptance can
only take place within the deadline.
Section 149 Delayed declaration of acceptance
If a declaration of acceptance that the applicant received late was sent in such a way that it would
have reached him in good time if he had been transported regularly, and if the applicant should
have known this, he must notify the applicant of the delay immediately after receipt of the
declaration, unless this was done beforehand happened.
If he delays sending the notification, acceptance is deemed not to be late.
Section 150 Late and Altered Acceptance
(1) The late acceptance of an application is considered a new application.
(2) An acceptance with extensions, restrictions or other changes is considered a rejection
combined with a new application.
Section 151 Acceptance without explanation to the applicant
The contract comes into existence through the acceptance of the application without the
acceptance having to be declared to the applicant if such a declaration is not to be expected
Cases and legislation
French law
Art 1103. –Contracts which are lawfully formed have the binding force of legislation for those who have
made them.
German law
Civil Code (BGB)
Section 311 Legal and similar obligations
(1) A contract between the parties involved is required to establish an obligation through a legal
transaction and to change the content of an obligation, unless the law prescribes otherwise.
(2) An obligation with obligations under Section 241 (2) also arises through
1.the start of contract negotiations,
2.the initiation of a contract in which one party grants the other party the opportunity to influence its
rights, objects of legal protection and interests or entrusts these to the other party with regard to a possible
legal relationship, or
3.similar business contacts.
(3) An obligation with obligations under Section 241 (2) can also arise with persons who are not
themselves to become a party to the contract. Such an obligation arises in particular if the third party
claims to have a high degree of trust and thereby significantly influences the contract negotiations or the
conclusion of the contract.
DCFR
II. – 1:103: Binding effect
(1) A valid contract is binding on the parties.
(2) A valid unilateral undertaking is binding on the person giving it if it is intended to be legally binding
without acceptance.
(3) This Article does not prevent modification or termination of any resulting right or obligation by
agreement between the debtor and creditor or as provided by law.
What is contract law?
Contract law: area of private law that deals with “contracts”:
- Legally enforceable agreements that create, define and govern mutual rights and obligations
among its parties
Differences-> need for supranational and comparative approach
- Definitions, basic, elements, and various technicalities… they all differ among legal systems
1) Mutual agreement and/or unilateral juridical acts?
2) Subjective/ objective version of agreement?
,- Systematization and related concepts / legal culture
Different ways of studying contract and contact law
- Internal perspective
1) Positivist, doctrinal, practice- oriented
2) Theoretical input: interpretative or pragmatist theories
- External perspective
1)Social phenomena
2) Historical, political, critical, empirical, etc
Contract in modern society
- Contract as a fundamental ordering device of modern society and core of all individualist social,
moral and political theories
Maine, Ancient Law: “The movement of the progressive societies has been uniform in one
respect. Through all its course it has been distinguished by the gradual dissolution of family
dependency and the growth of individual obligation in its place. ... It (is not) difficult to see what
the tie between man and man is which replaces by degrees those forms of reciprocity in rights and
duties which have their origin in the Family. It is Contract ‘.
- Contract law constitutes and reflects particular features of a society
Eg.: contract as ‘legal side of market society’ (Weber, Sociology of Law)
Realm of contract law growing with privatization: education, health care, welfare aid, digital
services
Why do contracts have binding force?
- moral justification(s):
promise out of free will binds itself (Fried, Contract as Promise) –
- economic justification
efficiency gains of bilateral agreements (Calabresi, One view of the Cathedral) –
- social justification
- new forms of social and economic cooperation (Campbell-Vincent Jones, Contract and
Economic organization)
- political justification
need for democratic deliberation (Hesselink, Democratic contract law)
What is European Contract Law?
Here, we will identify “European Contract law” as the variable and pluralist set of rules which
regulate contracts within the normative space which corresponds, geographically, to Europe
- Sources:
1) National, European, and international
2) Public- made or private- made, etc
- Scope of application
, 1) Horizonal/ Sectional
- Approach
1) Codification
2) Constitutionalization
3) Marketization
- Normative value
1) Binding/non-binding, mandatory disposable
ECL as comparative contract law?
Rationale § contract law, common core, common principles
Methodology § Structuralism, functional, culturalism
Focus § General contract law § …But occasional forays into specific issues when problem-based
Aquis communaire as a basis for debate on harmonization
PECL, DCFR, as blueprints for adjudication and harmonization § Main actors: academics
(private lawyers, comparative lawyers); ELI
ECL aka European law & its impact on contract law?
Sources of EU contract law
- Primary EU law
TFEU (market freedoms, competition)
CFREU (horizontal effect)
- Secondary EU law Directives Regulations
CJEU decisions
- How to make sense of these sources?
Eg in terms of objectives, system, or justice £
No “system”, hardly general principles
, WEEK 2
Mandatory readings:
Offer & Acceptance
German law:
§ 145 Binding to the application
Whoever applies for the conclusion of a contract with another person is bound by the application
unless he has excluded the binding nature.
§ 146 Expiry of the application
The application expires if it is rejected in relation to the applicant or if it is not accepted in good
time in accordance with Sections 147 to 149.
Section 147 Acceptance Period
(1) 1An application made to someone present can only be accepted immediately. 2 This also
applies to an application made by telephone or another technical device from person to person.
(2) An application made to an absentee can only be accepted up to the point in time at which the
applicant can normally expect to receive the answer.
§ 148 Determination of an Acceptance Period
If the applicant has specified a deadline for the acceptance of the application, the acceptance can
only take place within the deadline.
Section 149 Delayed declaration of acceptance
If a declaration of acceptance that the applicant received late was sent in such a way that it would
have reached him in good time if he had been transported regularly, and if the applicant should
have known this, he must notify the applicant of the delay immediately after receipt of the
declaration, unless this was done beforehand happened.
If he delays sending the notification, acceptance is deemed not to be late.
Section 150 Late and Altered Acceptance
(1) The late acceptance of an application is considered a new application.
(2) An acceptance with extensions, restrictions or other changes is considered a rejection
combined with a new application.
Section 151 Acceptance without explanation to the applicant
The contract comes into existence through the acceptance of the application without the
acceptance having to be declared to the applicant if such a declaration is not to be expected
