Dalhuisen on Transnational Comparative, Commercial, Financial and Trade Law Volume 2: Contract and Movable Property Law

850 Pages·2019·4.097 MB·English

by  Jan H Dalhuisen

DALHUISEN ON TRANSNATIONAL
COMPARATIVE, COMMERCIAL,
FINANCIAL AND TRADE LAW
VOLUME 2
This is the seventh edition of the leading work on transnational and comparative
commercial, fi nancial, and trade law, covering a wide range of complex topics in the
modern law of international commerce, fi nance and trade. As a guide for students and
practitioners it has proven to be unrivalled. The work is divided into three volumes,
each of which can be used independently or as part of the complete work.
Volume 2 deals with the transnationalisation of contract; movable and intangible
property law; and the transformation of the models of contract and movable property
in commercial and fi nancial transactions between professionals in the international
fl ow of goods, services, money, information, and technology.
In this transnational legal order, the emphasis in the new law merchant or mod-
ern lex mercatoria of contract and movable property turns to risk management, asset
liquidity, and transactional and payment fi nality. Common law and civil law concepts
are compared and future directions indicated. The potential, effects and challenges of
the blockchain are noted, especially with regard to the carriage of goods by sea. All
three volumes may be purchased separately or as part of a single set.

Dalhuisen on Transnational
Comparative, Commercial, Financial
and Trade Law Volume 2
Seventh Edition
Contract and Movable Property Law
Jan H Dalhuisen
Professor of Law, Dickson Poon School of Law
King ’ s College London
Chair in Transnational Financial Law
Catholic University Lisbon
Visiting Professor UC Berkeley
Corresponding Member
Royal Netherlands Academy of Arts and Sciences
Member New York Bar
Former ICSID Arbitrator
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To my Teachers and my Students

Table of Contents
Table of Cases xix
Table of Legislation and Related Documents xxvii
Chapter 1: Transnational Contract Law 1
Part I General
1.1 Introduction 1
1.1.1 Modern Contract Law: Nature of the Parties
or Type of Contract? Relationship Thinking
and the Professional Contract 1
1.1.2 The Effect of Globalisation. Transnationalisation
of the Contract Law Concerning Professional Dealings 7
1.1.3 Content and Coverage of this Chapter. Formal
Transnationalisation Efforts 14
1.1.4 Modern Contract Law. Will Theories and the Relevance
of Intent. Non-intentional Aspects of Contract Law.
The Meaning of Party Autonomy 16
1.1.5 The Formation and Operation of the Professional Contract
Standard Contracts 22
1.1.6 A New Model of Contract Law among Professionals?
Modern Contract Theory 26
1.1.7 Modern Contract Theory and the Normative Interpretation
Technique in Civil Law 31
1.1.8 The Contribution of Law and Economics 35
1.1.9 The Challenge of E-commerce 39
1.1.10 The Smart Contract 41
1.2 Formation of Contracts in Civil and Common Law 45
1.2.1 The Development of Contract Law and the Role of Parties’
Intent in Civil Law. The Notion of Consensus as the Basis
for Contract Validity 45
1.2.2 The Notions of Consideration, Exchange or Bargain
in the Common Law of Contract. Meaning of Intent,
Offer and Acceptance 49
1.2.3 The Development of the Consideration Notion
in Common Law. The Modern Alternative
of Detrimental Reliance 53
viii TABLE OF CONTENTS
1.2.4 Contracts: Construction and Remedies in Civil
and Common Law. The Parol Evidence Rule 59
1.2.5 The Practical Significance of the Consideration
Requirement in Common Law 62
1.2.6 The Common Law Notion of Consideration
and the Civil Law Notion of Causa Compared 64
1.2.7 Other Aspects of Contractual Validity: Capacity
and Authority 67
1.2.8 Other Aspects of Contractual Validity: Formalities 68
1.2.9 Other Aspects of Contractual Validity: Definiteness 70
1.3 The Normative Interpretation Technique in Practice: The Civil Law
Notion of Good Faith, the Common Law Alternatives, Liberal
Interpretation and the Role of Other Sources of Private Law 71
1.3.1 The Modern Normative Approach and the Concept
of Dynamic Contract Law 71
1.3.2 Roman Law, Ius Commune, Nineteenth-century Thinking,
and the Modern Revival of Multiple Sources of Contract Law
in Civil Law Behind the Good Faith Notion 75
1.3.3 Interpretation and the Notion of Good Faith in Civil Law 78
1.3.4 Good Faith as a Multifaceted Notion 82
1.3.5 Institutional Aspects of the Operation of the Notion
of Good Faith in Civil Law 88
1.3.6 Good Faith, Legal Positivism and System Thinking
in the Codification Manner. The Bridge to the Common
Law and the Connect with the Transnationalisation Process
of Private Law in the Professional Sphere 90
1.3.7 Good Faith in Common Law. Alternatives. Equity
Distinguished 94
1.3.8 EU Notion of Good Faith 98
1.3.9 Good Faith and Sources of Contract Law in the CISG,
UNIDROIT and European Contract Principles. The DCFR 100
1.3.10 When is Good Faith a Mandatory Concept? 102
1.3.11 Practical Effects of Good Faith or Normative Thinking:
The Nature of Pre-contractual Information and Disclosure
Duties, Meaning of Consensus, Mistake, Misrepresentation
and Gross Disparity 105
1.3.12 Practical Effects of Good Faith or Normative Thinking:
Pre-contractual Negotiation Duties, Contractual Co-operation
Duties, and Abuse of Contractual Rights 108
1.3.13 Practical Effects of Good Faith or Normative Thinking:
The Status of Commercial Letters of Intent. ‘Best and
Reasonable Endeavour’ Clauses 111
1.3.14 The Practical Effects of Good Faith or Normative Thinking:
Force Majeure and Change of Circumstances in Professional
Dealings 112
TABLE OF CONTENTS ix
1.4 Performance of the Contract, Defences, Default, Excuses,
Termination 114
1.4.1 Performance in Kind/Specific Performance 114
1.4.2 Lack of Consensus in Civil Law and Defences to Performance
in Common Law: Invalidity and Rescission 118
1.4.3 Excuses of Performance and the Meaning of Conditions
and Warranties, Covenants and Representations 124
1.4.4 Default or Breach and Damages 128
1.4.5 The Excuses of Force Majeure and Change of Circumstances 131
1.4.6 Change of Circumstances, Frustration and Economic
Impossibility. Development in Civil and Common Law 134
1.4.7 Unforeseen Circumstances and the Balance of the Contract:
Hardship and Renegotiation Duties 135
1.4.8 Modern Legislative Approaches to a Change
in Circumstances 141
1.4.9 Contractual Hardship Clauses 143
1.4.10 How to Secure Contractual Rights and Obligations
in Common and Civil Law? 144
1.5 Privity of Contract 149
1.5.1 Privity of Contract or Third-Party Rights and Duties
under a Contract 149
1.5.2 Development of Contractual Third-Party Rights
and Duties in Civil Law 157
1.5.3 The Situation in Common Law and the Developments
in the US and England 160
1.6 The UNIDROIT and European Principles of Contract Law.
The Vienna Convention and UCC Compared. The Draft
Common Frame of Reference in the EU and the Draft
EU Regulation on a Common European Sales Law 162
1.6.1 Unification of Contract Law. Academic Texts
and the EU Activity in this Area 162
1.6.2 The Unitary Codification Approach 168
1.6.3 The UNIDROIT Principles for International Commercial
Contracts 171
1.6.4 The Principles of European Contract Law (PECL) 177
1.6.5 The Draft Common Frame of Reference 179
1.6.6 Interpretation and Supplementation in the Principles
and the DCFR. Sources of Commercial and Financial Law,
Hierarchy, and Lex Mercatoria Compared 183
1.6.7 Approach to Contract Formation: Consensus, Reliance,
and Exchange Notions, Capacity, Formalities and Specificity 186
1.6.8 Defences. The Question of Continued Validity
of the Contract 190
1.6.9 Performance, Breach and Excuses 192
1.6.10 Privity of Contract 193