Cases, Materials and Text on Contract Law PDF
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IUS COMMUNE CASEBOOKS FOR THE COMMON LAW OF EUROPE CASES, MATERIALS AND TEXT ON CONTRACT LAW IUS COMMUNE CASEBOOKS FOR THE COMMON LAW OF EUROPE Steering Committee W van Gerven (Chair)†, Professor Emeritus at the University of Leuven and at Maastricht University, former Advocate General at the CJEU The Rt Hon Lord Bingham of Cornhill†, Senior Law Lord X Blanc-Jouvan, Professor Emeritus at the University of Paris I The Rt Hon H Danelius, former Justice of the Supreme Court of Sweden R Errera†, Conseiller d’État honoraire, Paris T Koopmans†, former Judge of the CJEU H Kötz, former Director Max Planck Institute for Comparative and International Private Law and Professor at the University of Hamburg F Jacobs, Professor at King’s College London, former President of the European Law Institute, former Advocate General at the CJEU J Schwarze, Emeritus Professor at the University of Freiburg M Faure, Professor at Maastricht University and at Erasmus University Rotterdam B de Witte, Professor at Maastricht University D Droshout, Research Coordinator, University of Leuven and Maastricht University Management Committee W Devroe, University of Leuven and Maastricht University J van Erp, Maastricht University P Larouche (Chair), Tilburg University J Smits, Maastricht University S Stijns, University of Leuven J Wouters, University of Leuven Cases, Materials and Text on Contract Law Third Edition Hugh Beale, Bénédicte Fauvarque-Cosson, Jacobien Rutgers and Stefan Vogenauer HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2019 Copyright © The authors severally 2019 The authors have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/ open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2019. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication data Names: Beale, H. G., author. | Fauvarque-Cosson, Bénédicte, author. | Rutgers, Jacobien W., author. | Vogenauer, Stefan, 1968- author. Title: Cases, materials and text on contract law / Hugh Beale, Bénédicte Fauvarque-Cosson, Jacobien Rutgers and Stefan Vogenauer Description: Third edition. | Oxford, UK ; Portland, Oregon : Hart Publishing, 2019. | Series: Ius commune casebooks for the common law of Europe Identifiers: LCCN 2018040271 (print) | LCCN 2018041415 (ebook) | ISBN 9781509912582 (Epub) | ISBN 9781509912575 (paperback) Subjects: LCSH: Contracts—Europe. | BISAC: LAW / Comparative. | LCGFT: Casebooks (Law) Classification: LCC KJC1720 (ebook) | LCC KJC1720 .B43 2018 (print) | DDC 346.402/2—dc23 LC record available at https://lccn.loc.gov/2018040271 ISBN: PB: 978-1-50991-257-5 ePDF: 978-1-50991-259-9 ePub: 978-1-50991-258-2 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters. PREFACE In the Preface to the second edition of this book, we wrote that the new edition came ‘at an exciting moment for “European” contract law’. At that time the European Commission was consulting on whether the fragmentary European contract law con- tained in the various directives should be replaced or supplemented by European rules on contract law in general, possibly in the form of an ‘Optional Instrument’. The third edition comes at a more difficult and less hopeful moment. In 2011 the European Commission proposed a ‘Common European Sales Law’ for sales where one party is a consumer or a small or medium-sized enterprise. It would have dealt with most issues that are likely to arise in the life of such sales contracts. The proposal received strong support from the European Parliament but it foundered in the European Council and in 2014 the Commission withdrew it. The contract law measures now proposed by the Commission are important but much narrower, dealing only with certain aspects of the supply of digital content and the sale of goods to consumers. In the current climate, with debates raging over such matters as what to do about asylum seekers and refugees, the Eurozone, right- and left-wing populism and Brexit, there seems no prospect of more general contract law developments in the foreseeable future. Even if European legislation on contract law remains sectoral and fragmented, the case law of the Court of Justice of the European Union (CJEU) interpreting it contin- ues to develop at a fast pace. Many of the recent decisions are quoted or referred to in this new edition. National decisions are also relevant to European legislation, not only because they show how European law is interpreted (or possibly misinterpreted) in Member States but also because European solutions are heavily influenced by the case law and legislation of the Member States. The President of the CJEU, Koen Lenaerts, has stressed the importance of comparative law to the work of the Court,1 even if the contribution is not always acknowledged or even identifiable;2 and its contribution seems to be as important in contractual matters as in the fields of comparative constitu- tional law and tort law to which the President referred. In addition, ‘European’ contract law and comparative contract law have had major impacts on national laws. Among the systems that are covered in this book – English, French and German law, and to a lesser extent Dutch Law – the reform of the BGB in 2002 was in part based on the provisions of the 1980 Vienna Convention on Contracts for the International Sale of Goods (CISG) and the Consumer Sales Directive of 1999; also 1 In his address to the Annual Conference of the European Law Institute in 2016, cited below, p 6 n 9; see also K Lenaerts, ‘La Cour de justice de l’Union européenne et la méthode comparative’ in B Fauvarque- Cosson (ed), Le droit comparé au XXIème siècle: Enjeux et défis (Paris: Société de législation comparée, 2015) 35. 2 See K Lenaerts, ‘Interlocking Legal Orders or the European Union Variant of “E pluribus unum”’ (2003) 52 ICLQ 873, 874, 876. v PREFACE ‘soft’ European principles profoundly influenced the reforms of the French Code civil in 2016. The 2016 reforms (and the ‘reform of the reforms’ that took place in 2018 when the original Ordonnance was confirmed) are considered in detail in this new edition. Indeed it can be argued that the failure to adopt a general contract law measure for Europe makes it all the more important to compare and contrast the national laws that, for the most part, will continue to apply to both domestic and cross-border contracts in Europe. And that is the main purpose of this collection of cases, materials and texts on contract law. The book covers the nature and extent of European measures, and the detailed provisions of European soft law (referring mainly to the Principles of European Contract Law, but where relevant drawing contrasts with the provisions of the Draft Com- mon Frame of Reference, the proposed Common European Sales Law, the CISG and the UNIDROIT Principles of International Commercial Contracts). However, the bulk of the material continues to focus on the four national systems, with the aim of exploring their similarities and differences, and the extent to which the ‘soft law principles’ are (as is often claimed) a restatement of a common core of shared solutions. This approach means that though the book necessarily concentrates on European laws, it will be of world-wide interest, particularly to lawyers in systems that are to some extent inspired by one of the systems covered in detail. We have been delighted to discover that previous editions of the book have been used in, for example, both Latin America and Asia; we hope that the new edition will be of even wider interest, particularly because of the coverage of the new French law. The book continues to concentrate on cases, legislation and ‘black-letter’ rules of law. We remain very aware that such an approach has serious limitations; there may be deeper differences of philosophy, of mentalité, which may be masked by a superficially similar result. A good comparatist should explore these, which requires a much more rounded study of the traditions and institutions of each legal system than can be offered here. However, we continue to think that a comparison of black-letter rules is the best place to start. Users of the previous edition will notice that the third edition contains more chapters, as we have added new material to the introductory chapters and have re-organised them to make them easier to follow. To accommodate the new material we have had to sacrifice some older cases, or the book would have become too long and too expensive, but we have kept everything that we think is really important. We hope readers will agree. We have also tried to make the book more reader-friendly by working with a bigger variety of font sizes and by introducing grey-scale boxes to identify the Notes in which we com- ment specifically on the preceding extract. We hope that readers will find it easier to navigate the text. As always, we owe many debts of gratitude. First, we wish to thank those copyright holders who granted us permission to quote extracts from their work in the first edi- tion of this book and whose permission to do so in this edition is once again gratefully acknowledged. Secondly, Professors Andrew Burrows and Edwin Peel granted us per- mission to use (in chapter 18) extracts from Professor Vogenauer’s essay ‘Interpretation of Contracts: Concluding Comparative Observations’ which first appeared in the vol- ume C ontract Terms (OUP, 2007). We also wish to express our deepest gratitude to the research assistants who have helped us at various stages of the process: at the Max-Planck vi PREFACE Institute in Frankfurt, Thorben Klünder, Christoph Resch, Grigorij Tschernjawskyj, Luca von Bogdandy, Simon Willaschek and Sarah Zimmermann; in Paris, Maxime Cormier, Léah Faust-Taïeb and Louis-Marie Morin and, previously, Adrien Tehrani; in Warwick, Marie Pillon and Simon Thorpe; and, previously, at the Oxford Institute of European and Comparative Law, Klaus Wiedemann and Susanne Zwirlein. Lastly, many thanks are due to Sinead Moloney and her staff at Hart Publishing for their patience with us and their skill and understanding in dealing with a long typescript and a difficult process of re- ordering and updating. Sadly, since the last edition was published we have lost two wonderful colleagues and friends: Denis Tallon, who contributed to the first and second editions of the book; and Walter van Gerven, who founded the Ius Commune Casebook series. We would like to dedicate this edition to their memory. Hugh Beale Bénédicte Fauvarque-Cosson Jacobien Rutgers Stefan Vogenauer December 2018 vii CONTENTS Preface v Abbreviations xi Table of Cases xxi Table of Legislation xlvii PART 1 INTRODUCTION 1. GENERAL TRENDS IN MODERN CONTRACT LAW 3 2. EUROPEAN UNION LAW ON CONTRACTS 35 3. PRINCIPLES, SOFT LAW AND LEGISLATIVE PROPOSALS IN EUROPEAN CONTRACT LAW 53 4. NATIONAL CONTRACT LAWS IN A EUROPEAN CONTEXT 77 5. NOTIONS OF CONTRACT 93 6. CONTRACT AND ADJOINING AREAS 121 7. CATEGORISATION OF CONTRACTS ACCORDING TO PARTIES 169 PART 2 FORMATION 8. OFFER AND ACCEPTANCE 203 9. SUFFICIENCY OF AGREEMENT 283 10. INTENTION TO CREATE LEGAL RELATIONS 301 11. CAUSE AND CONSIDERATION 343 12. FORMAL REQUIREMENTS 395 13. PRECONTRACTUAL NEGOTIATIONS 423 PART 3 FRAUD, ABUSE, IMMORALITY 14. FRAUD, MISTAKE AND MISREPRESENTATION 483 15. THREATS 597 16. ABUSE OF CIRCUMSTANCES 629 17. IMMORAL AND ILLEGAL CONTRACTS 663 ix
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