European Contract Law

European Contract Law: Scots and South African Perspectives

Hector L MacQueen
Reinhard Zimmermann
Copyright Date: 2006
Pages: 400
https://www.jstor.org/stable/10.3366/j.ctt1r1zks
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  • Book Info
    European Contract Law
    Book Description:

    This book will inform Scots and South African lawyers about the substance of international developments in the field, and suggest ways in which their still vigorous and vital national laws may continue to be developed.

    eISBN: 978-0-7486-2648-9
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Preface
    (pp. vii-xi)
    Hector L MacQueen and Reinhard Zimmermann
  4. List of Contributors
    (pp. xii-xii)
  5. List of Abbreviations
    (pp. xiii-xxii)
  6. 1 Ius Commune and the Principles of European Contract Law: Contemporary Renewal of an Old Idea
    (pp. 1-42)
    Reinhard Zimmermann

    This paper will focus on a key document within the process of the Europeanisation of private law legal scholarship, the Principles of European Contract Law. I would like to demonstrate that these Principles can be seen as a contemporary manifestation of a genuinely European tradition – a tradition which used to be labelled ius commune. And I would like to argue that they can serve as a catalyst for a Europeanisation of private law “from within” and “from below” (as opposed to European legal unification by means of legislation, i.e. unification “from outside” and “from above”). In a way, therefore,...

  7. 2 Good Faith
    (pp. 43-73)
    Hector L MacQueen

    Good faith is a powerful concept in PECL. Almost from the outset, Article 1:201 PECL declares that “each party must act in accordance with good faith and fair dealing”, and that this “duty” may not be excluded or limited by the parties. Comment A says that the Article “sets forth a basic principle running through the Principles”, while Comment B adds: “Its purpose is to enforce community standards of decency, fairness and reasonableness in commercial transactions.” Even the recognition of parties’ freedom to enter into a contract and determine its contents is made “subject to the requirements of good faith...

  8. 3 Offer, Acceptance and the Moment of Contract Formation
    (pp. 74-97)
    Geo Quinot

    It was the Natural lawyers of the seventeenth century, especially in France, who developed the concept of consensus as the basis of modern contract law.¹ Roman-Dutch authorities embraced this notion and further accepted that consensus can be analysed in terms of two declarations of will, i.e. offer and acceptance.² These Civilian concepts also had a profound influence on the development of contract law in the Common Law. In England, especially, Pothier’s writings on the subject became influential and resulted in the adoption of the offer and acceptance analysis.³ English jurists in turn further developed and refined offer and acceptance to...

  9. 4 The Battle of Forms
    (pp. 98-122)
    A D M Forte

    A battle of forms arises where each of the parties to what they at least perceive as a contract have employed their own standard terms of trading or business. In the case of an anticipated sale of goods, the buyer’s purchase order and the seller’s acknowledgment of order will be on terms drafted in advance: perhaps by a representative trade association or by the parties’ respective legal advisers. If all goes well the goods will be dispatched and paid for and nothing more will be heard of the matter. If this happy scenario does not ensue, however – perhaps, for...

  10. 5 Agency
    (pp. 123-150)
    Laura Macgregor

    A chapter on agency occupies a somewhat unique position in a book of this type. First, agency is often considered to be more properly part of commercial rather than contract law. This commercial background must be borne in mind. Agency transactions are increasingly likely to be international in nature, particularly as agents cross borders within Europe, benefiting from the protection of European Directives as they do so.¹ This international context makes the prospect of uniform rules for agency transactions throughout Europe an extremely important one for agency lawyers. It is not difficult to see the pressing argument in favour of...

  11. 6 Threats and Excessive Benefits or Unfair Advantage
    (pp. 151-175)
    Jacques du Plessis

    Chapter 4 of PECL deals with certain factors that affect the validity of a contract. These include¹ threats (Article 4:108 PECL) and excessive benefit or unfair advantage (Article 4:109 PECL).² The close relationship between these factors has been appreciated for some time – as long ago as 1937 Professor John P Dawson argued forcefully that the problem of economic duress in particular cannot be divorced from the larger problem of the fair exchange.³ In that essay Dawson stressed that an appreciation of the development of these concepts in Civil Law systems could help Common lawyers understand certain developments in their...

  12. 7 Interpretation
    (pp. 176-202)
    Eric Clive

    Given the statement in the Introduction to PECL to the effect that one of the benefits offered by them “is to provide a bridge between the civil law and the common law”¹ it is of some interest, particularly for those from so-called “mixed systems” like Scotland and South Africa, to try to detect major influences on parts of PECL. Are the PECL rules predominantly Civil Law, predominantly Common Law, or “mixed”? I will therefore consider the PECL rules on interpretation from this point of view before turning to what are for me more interesting questions – namely whether the PECL...

  13. 8 Third-Party Contracts
    (pp. 203-229)
    Philip Sutherland

    A third-party contract is concluded where one person, the debtor or promisor, agrees with another, the promisee, to perform an obligation to a third party. Third party contracts are now enforced in most jurisdictions.¹ Under the influence of the Civil Law, they are recognised in the two mixed legal systems of South Africa and Scotland as well as in Article 6:110 PECL.

    In the past the doctrine of privity of contract combined with the doctrine of consideration stood in the way of recognition of such contracts in England.² Both mixed legal systems have been contrasted with English law in this...

  14. 9 Payment
    (pp. 230-248)
    Charl Hugo

    Chapter 7 of PECL deals with the performance of obligations. The focus of this contribution is on the performance of a particular type of obligation, namely the obligation to pay money, or, in other words, on payment.¹ Two questions relating to payment dealt with in PECL are considered here in comparative perspective namely: (1) the form and manner of payment; and (2) payment by a third party.²

    The point of departure in both South African and Scots law is that payment must be in legal tender, i.e. notes and coins.³ The amount that the creditor is compelled to accept in...

  15. 10 Specific Performance and Special Damages
    (pp. 249-279)
    Sieg Eiselen

    The interplay and differences between Common Law and Civil Law in mixed legal systems are illustrated very clearly in two remedies commonly available after a breach of contract, namely specific performance, or specific implement, and the rules relating to special damages. Specific performance provides an instance where the Civil Law and the Common Law depart from directly opposing points of view. In Civil Law specific performance is regarded as the natural remedy after breach, whereas in Common Law it is regarded as exceptional, with damages being the prime remedy.

    The rules on special damages, on the other hand, provide an...

  16. 11 Termination for Breach of Contract
    (pp. 280-306)
    Tjakie Naudé

    The remedy of termination¹ for breach of contract was introduced into Scots and South African law under the influence especially of English law.² In neither Roman nor Roman-Dutch law was there a generalised remedy of termination for breach of contract, as it is known to modern law.³ Scots and South African law do not, however, mirror English law on all aspects of termination. In a number of instances, the courts have refused indiscriminately to take over all of English law on the subject.⁴

    It has been said that the rules on termination upon non-performance of PECL also follow the Common...

  17. 12 Assignment
    (pp. 307-330)
    Gerhard Lubbe

    Throughout Europe, assignment is understood as involving a transfer of a personal right of a creditor to a third party (the assignee), the latter, replacing the former (the assignor) as creditor in respect of the related obligation.¹ Common also is an understanding of assignment as an institution that straddles both the law of property and the law of obligations.² As a disposition by a creditor of an incorporeal asset, assignment is an institution of the law of property. Because it in addition effects a substitution of creditors, assignment also reveals affinities with the law of obligations. It is accordingly not...

  18. 13 Capitalisation of Interest
    (pp. 331-366)
    Max Loubser

    Distaste for interest has been pervasive in ethics, religion and law in all of recorded history. The rules against usury are rooted in the idea that interest is by its nature exploitative. If by this reasoning interest is bad, then the taking of interest on interest – that is compound interest or anatocism (the archaic and almost obsolete term for compound interest) – is worse.¹ The word anatocism has a ring about it of something unpleasant.

    From an economic and mathematical point of view it does not matter whether compound interest is seen as the adding of accrued interest to...

  19. APPENDIX: The Principles of European Contract Law
    (pp. 367-414)
  20. List of Cases
    (pp. 415-429)
  21. Index
    (pp. 430-444)