A B C D E F G H I J K L
1 2A 2B 3A 3B 4A 4B 5A
PRINCIPLES OF
EUROPEAN
CONTRACT LAW
Master Summary
Formation of the Contract Defects of Consent Fundamental Rights Interpretation
Tahrim Ramdjan Has a contract been formed? Can the contract be challenged? Any applicable rules determining the contract's content? What have the parties agreed
2
version: 270318.1230 upon?
3 Pre-contractual liability Offer and acceptance Fraud / Duress Mistake Non-disclosure Illegality Immorality Fundamental Rights Unfair Terms
Art. 1128 CC: Necessities for concluding a Art. 1113 CC, since Oct 2016: A contract is Art. 1130 CC: Mistake, fraud and duress vitiate consent when Art. 1162 CC: A contract cannot derogate from public policy either by its Throughout general clauses, Art. 1188 CC: A contract is to be
Statutes
France
valid contract: formed by meeting of offer and acceptance in without them, one of the parties would not have contracted or spiluations or by its purpose, whether or not this was known by all the as in public policy. interpreted according to the parties'
which parties demonstrate their will to be would have contracted on substantially different terms. parties. common intention rather than
a) Consent of the parties bound by a person's declaration or stopping at the literal meaning of its
b) Capacity of the parties to contract unequivocal conduct. Art. 1131 CC: Defects in consent are a ground of relative nullity Regardless of what the parties think of a contract, even if they acted in good terms. If this intention cannot be discern
c) Lawful and certain content of the contract. faith - if it is illegal or immoral, then it will be declared void. a contract is to be interpreted as a
If you cannot clearly pinpoint the moment of reasonable person would.
Not in use anymore since Oct 2016: offer/acceptance, the conclusion of the Vitiate leads to relative nullity: contract is valid, but one of the Also see Art. 1128 CC ad 3: for the validity of a contract, content must be
'cause', contract is confirmed when one party performs parties claims lawful. Subjective starting point
taking common goals (objective) and goals under obligations arising from the contract. there was a defect of consent. The party then tries to avoid
of partners into account. contract and
Public advertisements are offers. the contract was cancelled, but the contract had legal effect during
Emphasis on subjective elements. the
4
period it was in force (contrary to absolute nullity, in which the
Art. 1104 CC: Contracts must be Art. 1116 CC: An offer cannot be withdrawn Art. 1137 CC: Fraud is an act of Art. 1132 CC: Mistake of law or Art. 6 CC: Statutes that relate Art. 1194 CC: Contracts create
negotiated in before the expiry of a time period fixed by a facts, if it is not inexcusable, to public policy and morals obligations not merely in relation to wha
good faith. Pre-contractual law borderlines the offeror, or else, a reasonable time party in obtaining consent of the is a ground of nullity of contract may not be derogated from they expressly provide, but also to all the
between tort and contract law. period. The person who still withdraws an other by scheming or lies. when it bears on the essential by private agreements. consequences which are given to them
offer incurs extra-contractual liability set out Intentional concealment by qualities of the act of equity, usage or legislation.
by general law (tort), but has no obligation to one party of information, performance owed or of the
compensate expectation loss. where he knows its decisive other contracting party. On implied terms.
character for the other party, is
Revocation is still effective. also fraud. Not inexcusable = as long as
party that claims to be mistaken,
Absolute dishonesty, intention to can excuse its mistake,
mislead. Sanction: avoidance. reasonable person standard.
Main obstacle is proving intent,
which can also be on basis of
lack of knowledge.
5
Art. 1112 CC: Commencement, Art. 1115 CC: An offer may be withdrawn Before October 2016
continuation freely as long as it has not reached the Art. 1133 CC: A cause is unlawful when it is prohibited to legislation,
and breaking-off of pre-contractual person to whom it was addressed. contrary to public morals or to public policy.
negotiations is free from control but
must satisfy requirement of good faith. If Art. 1117 CC: An offer lapses on the expiry of
fault is committed, the party cannot claim the period fixed by the offeror or, if no period
expectation (positive) interest. is fixed, at the end of a reasonable period. It
also lapses in case of incapacity or death of
offeror.
6
Bonaparte v. Monoprix. Chalet for sale. The Pig Farm. (ECtHR) Dwarf tossing: Surrogate motherhood.
Case law
⎯Facts. Contractor Bonaparte constructed ⎯Facts. Isler planned to sell his chalet on ⎯Facts. Buyer was from the city Wackenheim. ⎯Facts. French couple went to the US to find a
a building with special premises on request Chastan on 11 August. A price was included in wanted to buy a house on the ⎯Facts. Dwarf tossing surrogate for the husband's child, had twins and
of Monoprix, but Monoprix then withdrew their agreement, which validly constitutes an countryside, and found out only became popular in France, but returned to France. They wanted to register the
from negotiations (after construction of the offer rather than an invitation to treat. Chastan after conclusion of contract that infringes on human dignity. child, but that was refused.
building) since it found another place. wanted to see it on 15 August or 16 August, there was a pig farm behind the Wackenheim is the dwarf in ⎯Claim. The child to be registered.
⎯Claim. Contractor wanted compensation confirmed by Isler. Third party showed up house. Did not want to buy it this matter and got a terrific ⎯Held . Surrogacy of mothers violates two
for loss of income. offering more money on 14 August and Isler anymore because of the smell. salary for being tossed. The principles: a) the inviolability of the body of
⎯Held. Monoprix did not intend to do harm. sold his chalet to this third party. Seller had included a clause in the Conseil d'Etat however the surrogate, since a body should not be
Cour d'appel held that no compensation is ⎯Claim. Chastan wanted compensation since contract, saying it was not liable prohibited this practice since it hired to give birth to a child; b) the inviolability
necessary if there was no intention to harm. there was a time period in this offer. during the sale of hte house and infringes on ordre public (boni of the parental status of the child. The
Cour de Cassation reversed this ruling, said ⎯Held. It was implicit that the offer would be that buyer had to pursue mores). implication is that the couple could not get the
7 ⎯Claim. Wackenheim claimed
entering negotiations was sufficient to held valid until 16 August and thus that it could completion of contract. child and the child ended in foster care.
require compensations. Often, party of first not be revoked anymore. The revocation of the ⎯Claim. Buyer argued that it would his labour rights were
offer does need to be compensated, but offer was wrongful, but the chalet is already never have concluded the contract, discriminated.
then only for costs incurred during pre- sold, so conclusion of the contract no had he known about the pig farm. ⎯Held . The European Court of
contractual phase (so no positive interests). possibility: however Chastan could be ⎯Held. Fraudulent non-disclosure: Human Rights argued that the
Contractor received reliance interest. compensated under tort law. seller knew about the pig farm and human dignity of Wackenheim
only included clause in the contract is violated and thus that labour
so buyer couldn't get out of it after rights of Wackenheim are not
discovering about the pig farm. discriminated here.
8
9
10
§ 311 BGB: (1) For obligations to come into § 145 BGB: Any person who offers to another § 123 BGB: A person who has § 119 BGB: (1) Person who, § 134 BGB: A legal § 138 BGB: (1) A legal transaction contrary to Indirect horizontal effect: interpreting § 133 BGB: Interpretation of a
Statutes
ny
existence, a contract is necessary. (2) But to enter into a contract is bound by the offer, been making transaction that violates a public policy is void. (2) In particular a legal private law declaration of intent requires the
obligations with duties under § 241(2) also unless he has excluded being bound by it. induced to make a declaration of declaration of intent, is statutory prohibition is transaction is void by which a person, by in light of fundamental rights. ascertainment of true intention rather
come into existence through the intent by deceit or unlawfully mistaken about contents or void, unless that statute exploiting the predicament, inexperience, than adhering to literal meanings.
commencement of contract Public advertisements are invitations to by had no intention to declare prescribes otherwise. lack of sound judgment or considerable
negotiations. treat. duress may avoid his with this content, may avoid weakness of will of another, causes himself or Subjective parameter
1 2A 2B 3A 3B 4A 4B 5A
PRINCIPLES OF
EUROPEAN
CONTRACT LAW
Master Summary
Formation of the Contract Defects of Consent Fundamental Rights Interpretation
Tahrim Ramdjan Has a contract been formed? Can the contract be challenged? Any applicable rules determining the contract's content? What have the parties agreed
2
version: 270318.1230 upon?
3 Pre-contractual liability Offer and acceptance Fraud / Duress Mistake Non-disclosure Illegality Immorality Fundamental Rights Unfair Terms
Art. 1128 CC: Necessities for concluding a Art. 1113 CC, since Oct 2016: A contract is Art. 1130 CC: Mistake, fraud and duress vitiate consent when Art. 1162 CC: A contract cannot derogate from public policy either by its Throughout general clauses, Art. 1188 CC: A contract is to be
Statutes
France
valid contract: formed by meeting of offer and acceptance in without them, one of the parties would not have contracted or spiluations or by its purpose, whether or not this was known by all the as in public policy. interpreted according to the parties'
which parties demonstrate their will to be would have contracted on substantially different terms. parties. common intention rather than
a) Consent of the parties bound by a person's declaration or stopping at the literal meaning of its
b) Capacity of the parties to contract unequivocal conduct. Art. 1131 CC: Defects in consent are a ground of relative nullity Regardless of what the parties think of a contract, even if they acted in good terms. If this intention cannot be discern
c) Lawful and certain content of the contract. faith - if it is illegal or immoral, then it will be declared void. a contract is to be interpreted as a
If you cannot clearly pinpoint the moment of reasonable person would.
Not in use anymore since Oct 2016: offer/acceptance, the conclusion of the Vitiate leads to relative nullity: contract is valid, but one of the Also see Art. 1128 CC ad 3: for the validity of a contract, content must be
'cause', contract is confirmed when one party performs parties claims lawful. Subjective starting point
taking common goals (objective) and goals under obligations arising from the contract. there was a defect of consent. The party then tries to avoid
of partners into account. contract and
Public advertisements are offers. the contract was cancelled, but the contract had legal effect during
Emphasis on subjective elements. the
4
period it was in force (contrary to absolute nullity, in which the
Art. 1104 CC: Contracts must be Art. 1116 CC: An offer cannot be withdrawn Art. 1137 CC: Fraud is an act of Art. 1132 CC: Mistake of law or Art. 6 CC: Statutes that relate Art. 1194 CC: Contracts create
negotiated in before the expiry of a time period fixed by a facts, if it is not inexcusable, to public policy and morals obligations not merely in relation to wha
good faith. Pre-contractual law borderlines the offeror, or else, a reasonable time party in obtaining consent of the is a ground of nullity of contract may not be derogated from they expressly provide, but also to all the
between tort and contract law. period. The person who still withdraws an other by scheming or lies. when it bears on the essential by private agreements. consequences which are given to them
offer incurs extra-contractual liability set out Intentional concealment by qualities of the act of equity, usage or legislation.
by general law (tort), but has no obligation to one party of information, performance owed or of the
compensate expectation loss. where he knows its decisive other contracting party. On implied terms.
character for the other party, is
Revocation is still effective. also fraud. Not inexcusable = as long as
party that claims to be mistaken,
Absolute dishonesty, intention to can excuse its mistake,
mislead. Sanction: avoidance. reasonable person standard.
Main obstacle is proving intent,
which can also be on basis of
lack of knowledge.
5
Art. 1112 CC: Commencement, Art. 1115 CC: An offer may be withdrawn Before October 2016
continuation freely as long as it has not reached the Art. 1133 CC: A cause is unlawful when it is prohibited to legislation,
and breaking-off of pre-contractual person to whom it was addressed. contrary to public morals or to public policy.
negotiations is free from control but
must satisfy requirement of good faith. If Art. 1117 CC: An offer lapses on the expiry of
fault is committed, the party cannot claim the period fixed by the offeror or, if no period
expectation (positive) interest. is fixed, at the end of a reasonable period. It
also lapses in case of incapacity or death of
offeror.
6
Bonaparte v. Monoprix. Chalet for sale. The Pig Farm. (ECtHR) Dwarf tossing: Surrogate motherhood.
Case law
⎯Facts. Contractor Bonaparte constructed ⎯Facts. Isler planned to sell his chalet on ⎯Facts. Buyer was from the city Wackenheim. ⎯Facts. French couple went to the US to find a
a building with special premises on request Chastan on 11 August. A price was included in wanted to buy a house on the ⎯Facts. Dwarf tossing surrogate for the husband's child, had twins and
of Monoprix, but Monoprix then withdrew their agreement, which validly constitutes an countryside, and found out only became popular in France, but returned to France. They wanted to register the
from negotiations (after construction of the offer rather than an invitation to treat. Chastan after conclusion of contract that infringes on human dignity. child, but that was refused.
building) since it found another place. wanted to see it on 15 August or 16 August, there was a pig farm behind the Wackenheim is the dwarf in ⎯Claim. The child to be registered.
⎯Claim. Contractor wanted compensation confirmed by Isler. Third party showed up house. Did not want to buy it this matter and got a terrific ⎯Held . Surrogacy of mothers violates two
for loss of income. offering more money on 14 August and Isler anymore because of the smell. salary for being tossed. The principles: a) the inviolability of the body of
⎯Held. Monoprix did not intend to do harm. sold his chalet to this third party. Seller had included a clause in the Conseil d'Etat however the surrogate, since a body should not be
Cour d'appel held that no compensation is ⎯Claim. Chastan wanted compensation since contract, saying it was not liable prohibited this practice since it hired to give birth to a child; b) the inviolability
necessary if there was no intention to harm. there was a time period in this offer. during the sale of hte house and infringes on ordre public (boni of the parental status of the child. The
Cour de Cassation reversed this ruling, said ⎯Held. It was implicit that the offer would be that buyer had to pursue mores). implication is that the couple could not get the
7 ⎯Claim. Wackenheim claimed
entering negotiations was sufficient to held valid until 16 August and thus that it could completion of contract. child and the child ended in foster care.
require compensations. Often, party of first not be revoked anymore. The revocation of the ⎯Claim. Buyer argued that it would his labour rights were
offer does need to be compensated, but offer was wrongful, but the chalet is already never have concluded the contract, discriminated.
then only for costs incurred during pre- sold, so conclusion of the contract no had he known about the pig farm. ⎯Held . The European Court of
contractual phase (so no positive interests). possibility: however Chastan could be ⎯Held. Fraudulent non-disclosure: Human Rights argued that the
Contractor received reliance interest. compensated under tort law. seller knew about the pig farm and human dignity of Wackenheim
only included clause in the contract is violated and thus that labour
so buyer couldn't get out of it after rights of Wackenheim are not
discovering about the pig farm. discriminated here.
8
9
10
§ 311 BGB: (1) For obligations to come into § 145 BGB: Any person who offers to another § 123 BGB: A person who has § 119 BGB: (1) Person who, § 134 BGB: A legal § 138 BGB: (1) A legal transaction contrary to Indirect horizontal effect: interpreting § 133 BGB: Interpretation of a
Statutes
ny
existence, a contract is necessary. (2) But to enter into a contract is bound by the offer, been making transaction that violates a public policy is void. (2) In particular a legal private law declaration of intent requires the
obligations with duties under § 241(2) also unless he has excluded being bound by it. induced to make a declaration of declaration of intent, is statutory prohibition is transaction is void by which a person, by in light of fundamental rights. ascertainment of true intention rather
come into existence through the intent by deceit or unlawfully mistaken about contents or void, unless that statute exploiting the predicament, inexperience, than adhering to literal meanings.
commencement of contract Public advertisements are invitations to by had no intention to declare prescribes otherwise. lack of sound judgment or considerable
negotiations. treat. duress may avoid his with this content, may avoid weakness of will of another, causes himself or Subjective parameter
