Comparative Contract Law: Cases, Materials and Exercises [2 ed.] 1788975464, 9781788975469

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COMPARATIVE CONTRACT LAW

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Comparative Contract Law Cases, Materials and Exercises Second Edition

Thomas KADNER GRAZIANO University of Geneva, Switzerland Translations of materials by Christopher BOOTH, Eleanor MERRETT, Rachel HARRISON et al.

Cheltenham, UK + Northampton, MA, USA

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© Thomas Kadner Graziano 2019 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA

A catalogue record for this book is available from the British Library

Library of Congress Control Number: 2018960583

This book is available electronically in the Law subject collection DOI 10.4337/9781788975476

ISBN 978 1 78897 546 9 (cased) ISBN 978 1 78897 548 3 (paperback) ISBN 978 1 78897 547 6 (eBook)

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Contents

About the author Preface Acknowledgements Translations List of abbreviations Table of provisions of codes, statutes, and principles of law reproduced

vii viii xi xvi xxi xxxi

PART A INTRODUCTION 1. 2. 3. 4.

Contract law in the 21st century – the purpose of this book A case-oriented and multilateral approach to the teaching, studying and learning of comparative law: the approach used in this book Is it legitimate and beneficial for judges to compare? An introduction to the principles of contract law: the needs to which they respond and the purposes for which they are designed I. OLE LANDO/HUGH BEALE (eds.), Principles of European Contract Law, Parts I and II, Deventer/Boston: Kluwer Law International, 2000, Preface II. MICHAEL JOACHIM BONELL (ed.), An International Restatement of Contract Law: The UNIDROIT Principles of International Commercial Contracts, 3rd ed., Unidroit: Rome, 2009, Chapters 1 and 2 III. The development of supranational contract law instruments – an overview

PART B

2 5 20 50 50

56 72

CASE STUDIES

I. Formation of contracts 1. Offer or invitation to treat (invitatio ad offerendum) 2. Conditions for the formation of a contract – agreement or more? (cause and consideration) 3. Obligation to maintain an offer or freedom to revoke it? 4. Modification of contracts – the free will of the parties or limits on the freedom to contract (consideration revisited)? 5. The battle of forms

75 122 172 208 238

II. Performance of contracts 6. 7.

Right to receive performance of a contract or just a right to receive damages? Damages and the role of fault in the event of delivery of goods not in conformity with the contract

281 334

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8.

9.

Termination or alteration of a contract in the event of a fundamental change of circumstances? (clausula rebus sic stantibus or imprévision) Contracts and the transfer of ownership in movable property

384 440

III. The law applicable to cross-border contracts and the future of European contract law 10. 11.

The law applicable to cross-border contracts (introduction) The future of European contract law

Index

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About the author

Thomas KADNER GRAZIANO is Professor of Law at the University of Geneva and Visiting Professor at KU Leuven. He holds a doctoral degree from Goethe-University Frankfurt, an LL.M degree from Harvard Law School, and a professorial degree from Humboldt-University Berlin. He was a faculty member of the DUKE-Geneva Institute in Transnational Law (2004, 2010), has held visiting professorships, teaching comparative law at the Universities of Potsdam, Poitiers (2006), Florida (2006, 2007–2008, 2008, 2010), Exeter (2007–2008), Kaunas (2009, 2014, 2015), Vilnius (2014), Lausanne (2015), Leuven (2015–) and Renmin (People’s) University of China (Beijing and Suzhou) (2016), and has taught seminars in comparative law at the Universities of Johannesburg (2015) and Luxembourg (2016, 2017). He was a member of the Swiss delegation to the Hague Conference on Private International Law, as well as the Working Group on International Contracts and the Drafting Committee at the Hague Conference on Private International Law. He has acted as an expert on comparative law and comparative private international law, including for the European Parliament and in international proceedings before the UN Security Council’s Compensation Commission. He is Fellow of the European Centre of Tort and Insurance Law (ECTIL), Vienna, and acts as speaker for the European Law Academy, Trier.

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Preface

“In order to achieve more convergence of national contract laws, one solution would be for the Commission to promote comparative law research and co-operation between – amongst others – academics and legal practitioners (including judges and experts).”1

In 2016, the provisions of the French Code civil governing the law of obligations underwent their greatest reform since the entry into force of the code in 1804. The civil codes in other countries have also recently been reformed, fully (e.g. Romania, the Czech Republic), or partially (e.g. Poland). The second edition of this book fully integrates these reforms. With the fundamental reform of 2016, French law has distanced itself from other members of the former French legal family, notably from the law of Belgium, which now occupies a greater presence in this second edition as a result. More generally, the range of jurisdictions presented in this book has been enlarged and the comparative basis broadened. The material was updated and a new chapter on the topic of the “battle of forms”, a frequent occurrence in contractual practice, was added. Among many further changes, the new Directive (EU) 2015/2302 of 25.11.2015 on package travel and linked travel arrangements has been integrated into the chapter concerning “change of circumstances” and the relevant national laws updated. In its second, completely revised edition, the book remains faithful to its objective to provide an introduction both to comparative contract law and to the use of comparative methodology. The case studies in Part B address fundamental and highly topical issues of contract law and provide solutions to these issues from various national systems, the Principles of European Contract Law (PECL), the UNIDROIT Principles of International Commercial Contracts, and the Draft Common Frame of Reference (DCFR). The reader is invited to study both contract law and comparative methodology using a case-oriented, and problem-based approach.2 The sources provided (e.g. extracts from national civil codes or statutes, court decisions and extracts of academic writing from different countries) set out the law as it applies in a large range of jurisdictions. The book is based on the firm conviction that to discuss and analyse the issues on a truly European level, it is necessary to compare not only English, French and German law, but also as many other jurisdictions as feasible, useful, manageable and beneficial. Limiting our comparison to the European “big three” is even less justifiable once we enter into, or continue with, an exchange of ideas with lawyers and colleagues in other parts of the world, such as China and the USA. The jurisdictions in each case study were chosen as they were considered to be representative of the range of solutions that are currently applied. Similar approaches and solutions may also be found in other countries. 1

Communication from the Commission to the Council and the European Parliament on European Contract Law, Brussels, 11.07.2001, COM(2001) 398 final, n 52. 2 For more information on the approach used, see Part A, Chapters 1 and 2, pp. 2 ff. and 5 ff.

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Preface | ix

I am grateful to MICHEL BOUDOT (Poitiers) for information on the reform of French law in 2016, SOPHIE STIJNS (Leuven) for information on the current reform of Belgian law, NATALIA HENCZEL (Warsaw and Geneva) for information on Polish law (Case studies 1, 3, 7, 8), MARTIN HREN and MARTA ŠARIC´ (Zagreb) for information on the law in former Yugoslavia (Case studies 1, 3, 8), BIANCAMARIA CAMPASSO (Milan and Leuven) and MARTINA GUARRACINO (Pisa and Leuven) for information on Italian law (Case studies 3, 6), CÉCILE ODEURS (Leuven) for information on Belgian law (Case study 3), YANJI ZHENG (Beijing and Geneva) for information on Chinese law and FELIX ADEN (Frankfurt), IVAN ALADYEV (Frankfurt) and ERIK KVARCHIYA (Geneva) for information on Russian law (Case study 5), ERNST MARAIS (Johannesburg) for information on South African law and PASCAL ANCEL (Luxemburg) for information on several jurisdictions (Case study 9). The code provisions, statutes and extracts of court decisions are provided in their original language version accompanied by an English translation. Extracts of academic literature in languages other than English are reproduced in English translation only. With a view to concentrating on the main issues, most of the academic literature and some case law has been reproduced without the original footnotes. Readers who wish to possess further information and references are invited to consult the books and case reports cited. French- and German-language versions of this edition of the book, published by Helbing Lichtenhahn, Basel, will follow. In order for the publication of this book to succeed, it was essential to have precise translations of the materials. Some of these materials (in particular extracts of civil codes and statutes) were already available in English. Many other texts, in particular court decisions, much of the academic literature, and some of the code provisions and statutes, needed to be translated into English. Most of these materials were translated by CHRISTOPHER BOOTH (LL.B. Sheffield, and research assistant at the University of Geneva since 2015), ELEANOR MERRETT (LL.B. Sheffield, research assistant at the University of Geneva from 2007 to 2008), and RACHEL HARRISON (LL.B. Sheffield, research assistant at the University of Geneva from 2013 to 2015). Their work notably included translating decisions of the French Cour de cassation and the German Bundesgerichtshof. Due to the very cryptic drafting style of the former, and the complexities often exposed by the latter, these translations required a perfect understanding of not only English law and legal language, but also the respective foreign law. In addition, since many of these legal terms and notions have no linguistic counterpart, it was necessary at times to transpose (often complex) legal ideas to produce an accurate translation of the text. This task is certainly one of the most demanding aspects of legal translation. With a perfect understanding of the foreign materials, CHRISTOPHER BOOTH, ELEANOR MERRETT and RACHEL HARRISON succeeded brilliantly in this highly demanding task. Their contributions as well as the work of BIANCAMARIA CAMPASSO, MARTINA GUARRACINO, NATALIA HENCZEL and ERIK KVARCHIYA, who translated selected materials from their respective jurisdictions, were absolutely fundamental to the success of this book.3 I would like to express my particular gratitude to the members of my research team at the University of Geneva for having organised this second edition with me and for their most valuable contributions and critical comments, fundamental to the success of this 3

For a list of the translations and the respective translator, see below, pp. xvi ff.

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book: CHRISTOPHER BOOTH (Sheffield and Geneva), NIKOLAS HERTEL (Freiburg and Geneva), HANNES MEYLE (Munich and Geneva), ADELINE MICHOUD (Paris and Geneva), RACHEL NGO NTOMP (Geneva), and student assistant STÉPHANIE LOMBARDI (Geneva). I owe many thanks to my secretary VERA BELARBI for her most reliable multilingual corrections of the text. I would also like to extend my gratitude to the team at Edward Elgar – LUKE ADAMS, FIONA BRIDEN, JOHN HEWISH, KATE PEARCE, KAREN JONES, ROSE CAMPBELL and SUE SHARP – for our successful collaboration. Working with the production team was a smooth process and they always provided flexibility in accommodating our ideas concerning the presentation of foreign and comparative material in the book. I would also like to thank the University of Geneva, our Faculty, our librarians and, last but not least, the citizen (and taxpayers) of Geneva for having offered to me and my research team such a wonderful environment for comparative law studies. The materials in this book were last updated in spring 2018. The book is part of a new kind of pedagogic material and of a new educational comparative strategy. I would be grateful for any comments regarding the users’ experience and for any suggestions, criticism or further information.4 Thomas KADNER GRAZIANO Geneva, May 2018

4

The author can be contacted at [email protected].

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Acknowledgements

The author and the publisher wish to thank the following persons and institutions for permission to reproduce extracts of copyright material: American Law Institute for: – The American Law Institute, Restatement of the Law – Contracts (Second), Vol. 1, 1981, §§ 17, 25, 26, 42, 63, 71, 73, 79, 86, 89. C.H. Beck for: – Heinz G. Bamberger/Herbert Roth (eds.), Kommentar zum Bürgerlichen Gesetzbuch, Vol. 1, 3rd ed., 2012, § 305, nos. 81–82 (comment by JÖRN BECKER). – Wolfgang Krüger (ed.), Münchener Kommentar zum Bürgerlichen Gesetzbuch, Vol. 2, 7th ed., 2016, § 305, nos. 102, 105 (comment by JÜRGEN BASEDOW). – Harm P. Westermann (ed.), Münchener Kommentar zum Bürgerlichen Gesetzbuch, Vol. 3, 7th ed., 2016, § 516, nos. 24, 30, 31 (comment by JENS KOCH). C.H. Beck and Diana Wallis for: – Diana Wallis, ‘Is It a Code?’, ZEuP 2006, 513–514. C.H. Beck and Pavel Svoboda for: – Pavel Svoboda, ‘The Common European Sales Law – Will the Phoenix Rise from the Ashes Again?’, ZEuP 2015, 689. Comares for: – Miguel Pasquau Liaño (ed.), Jurisprudencia Civil Comentada – Código Civil, Vol. 1, 2000, Art. 464 (comment by ANA LÓPEZ FRÍAS). Dalloz for: – Georges Holleaux, Case Note, Cour de cassation, 1re civ., 20.10.1959, D. 1959, 537. – Roger Perrot/Philippe Thery, Procédures civiles d’exécution, 3rd ed., 2013, nos. 73, 75, 77, 98, 99. – François Terré/Philippe Simler, Droit civil: Les biens, 9th ed., 2014, § 2. – François Terré/Philippe Simler/Yves Lequette, Droit civil – Les obligations, 11th ed., 2013, nos. 109–111, 121–122, 331, 336–340, 346, 349. – Philippe le Tourneau et al., Droit de la responsabilité et des contrats. Régimes d’indemnisation, 11th ed., 2017, no. 3124.252. Dalloz and François Chénedé for: – François Chénedé, Le Nouveau Droit des obligations et des contrats, 2016, nos. 28.91, 28.101, 28.111.

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Dalloz and Philippe Malaurie for: – Philippe Malaurie, Case Note, Cour de cassation, 1re civ., 20.02.1973, D.S. 1974, p. 37. Dalloz and Philippe Malinvaud for: – Philippe Malinvaud, Réponse – hors délai – à la Commission européenne: à propos d’un code européen des contrats, D. 2002, no. 33, 2542. De Gruyter for: – Thomas Kadner Graziano/Dirk Wiegand, ‘Kaufrechtliche und deliktische Haftung für “Weiterfresserschäden”’, Jura 2013, 510 at 525–526. Die Keure and Sophie Stijns for: – Sophie Stijns, Verbintenissenrecht, Boek 1, 2015, nos. 161, 162, 217–219. Otto Schmidt Verlag for: – Thomas Kadner Graziano, ‘The CISG before the Courts of Non-Contracting States? Take Foreign Sales Law as You Find It’, YbPIL 2011–12, 165, at 181–182. Giuffrè Editore for: – Elisabetta Panzarini, ‘La proposta irrevocabile e l’opzione’, in: Antonio Gambaro/ Umberto Morello, Lezioni di diritto civile. Casi, questioni e tecniche argomentative, 2012, pp. 64–65. – Pietro Rescigno (ed.), Codice Civile, Vol. 1, 9th ed., 2014, Art. 1336, nos. 1, 2, 5, 6.4. Guiffrè Editore and Pietro Trimarchi for: – Pietro Trimarchi, Istituzioni di diritto privato, 21st ed., 2016, no. 256. Hart Publishing for: – Hugh Beale/Bénédicte Fauvarque-Cosson/Jacobien Rutgers/Dennis Tallon/Stefan Vogenauer (eds.), Cases, Materials and Text on Contract Law, 2nd ed., 2010, nos. 3.2, 3.2.A.2. Helbing Lichtenhahn for: – Heinrich Honsell/Nedim Peter Vogt/Wolfgang Wiegandt, Basler Kommentar, Obligationenrecht I, 6th ed., 2015, Anh. Art. 1. – Luc Thévénoz/Franz Werro (eds.), Commentaire Romand, Code des obligations I, 1st ed., 2003, Art. 7, nos. 5, 9–14 (comment by FRANÇOIS DESSEMONTET). – Luc Thévénoz/Franz Werro (eds.), Commentaire Romand, Code des obligations I, 1st ed., 2003, Art. 17 of the Swiss Federal Act on package holidays, no. 6 (comment by BERND STAUDER). Kluwer Law International for: – Herbert Bernstein/Joseph Lookovsky, Understanding the CISG in Europe, 2nd ed., 2003, pp. 14–16.

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Acknowledgements | xiii

–

Danny Busch et al. (eds.), The Principles of European Contract Law and Dutch Law: A Commentary, 2002, Arts. 2:201–2:208 (pp. 105 ff.), Art. 6:225 (pp. 123– 124). – Jeroen M.J. Chorus/Ewoud H. Hondius/Wim Voermans, Introduction to Dutch Law, 5th ed., 2016, pp. 139–141. – Ole Lando/Hugh Beale (eds.), Principles of European Contract Law, Parts I and II, 2000, Art. 2:201 with commentary and annotations.

Kluwer Law International and Jürgen Basedow for: – Jürgen Basedow, ‘Codification of Private Law in the European Union: The Making of a Hybrid’, ERPL 2001, 35, at 43–48. Kluwer Law International and Stephen Weatherill for: – Stephen Weatherill, ‘Reflections on the EC’s Competence to Develop a “European Contract Law”’, ERPL 2005, 405 at 411–418. Kluwer Law International and Harry M. Flechtner for: – Harry M. Flechtner (ed.), Uniform Law for International Sales under the 1980 United Nations Convention (by John O. Honnold), 4th ed., 2009, Art. 14. Kluwer Law International (Utet Giuridica/Wolters Kluwer Italia) and Paolo Gallo for: – Paolo Gallo, ‘Art. 1329 – proposta irrevocabile’, in: Emanuela Navarretta/Andrea Orestano (a cura di), Dei contratti in generale (Artt. 1321–1349), 2011, p. 346. Oxford University Press for: – Peter Shears/Graham Stephenson, James’ Introduction to English Law, 13th ed., 1996, pp. 23–28. – Konrad Zweigert/Hein Kötz, An Introduction to Comparative Law, translated by Tony Weir, 3rd ed., 1998, pp. 470–474. Oxford University Press and Michael P. Furmston for: – Michael P. Furmston, Cheshire, Fifoot and Furmston’s Law of Contract, 17th ed., 2017, pp. 76, 100–104. Oxford University Press and Guenter Treitel for: – Guenter Treitel, An Outline of the Law of Contract, 6th ed., 2004, pp. 312–314, 408–416. Oxford Academic and Christine Chappuis for: – Christine Chappuis, ‘Le renoncement à la cause et à la consideration dans l’avant-projet d’Acte uniforme OHADA sur le droit des contrats’, Unif. L. Rev. 2008, pp. 253–291.

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Oxford Academic for: – Thomas Kadner Graziano, ‘The Hague Solution on Choice of Law Clauses in Conflicting Standard Terms – Paving the Way to More Legal Certainty in International Commercial Transactions?’, Unif. L. Rev. 2017, pp. 351, at 364–365. Palgrave Macmillan and Ewan McKendrick for: – Ewan McKendrick, Contract Law, 12th ed., 2017, nos. 3.3, 4.6. Pearson Education Limited for: – W.T. Major/Christine Taylor, Law of Contract, 9th ed., 1999, pp. 1, 47–64, 255–265, 288 ff. Stämpfli and Heinz Rey for: – Heinz Rey, Grundriss des schweizerischen Sachenrechts, Vol. 1, 3rd ed., 2007, nos. 1688 ff. Sweet & Maxwell and Edwin Peel for: – Edwin Peel (ed.), Treitel on the Law of Contract, 14th ed., 2015, nos. 2-019, 2-020, 2-021, 2-024–2-036, 19-037. Sweet & Maxwell and Bing Ling for: – Bing Ling, Contract Law in China, 2002, nos. 3.015, 3.039, 8.030–8.033, 8.039, 8.071, 8.073, 8.078. Sweet & Maxwell and Michael G. Bridge for: – Michael G. Bridge, Benjamin’s Sale of Goods, 10th ed., 2017, no. 7-001, 7-069 to 7-071. Sweet & Maxwell and Roger Halson for: – Roger Halson, ‘Sailors, Sub-Contractors and Consideration’, L.Q.R. 1990, pp. 183– 185. Tecnos for: – Luis Díez-Picazo/Antonio Gullón, Sistema de Derecho Civil, Vol. III: Derecho de cosas y derecho inmobiliario registral, 7th ed., 2005, pp. 59–62. Unidroit for: – Michael Joachim Bonell (ed.), An International Restatement of Contract Law, The UNIDROIT Principles of International Commercial Contracts, 3rd ed., Unidroit: Rome, 2009, Chapters 1 and 2. West Group/Thomson Reuters for: – James J. White/Robert S. Summers, Uniform Commercial Code, 5th ed., 2000, Chapters 9 and 10. – E. Allan Farnsworth/Carol Sanger/Neil B. Cohen/Richard R.W. Brooks/Larry T. Garvin, Contracts – Cases and Materials, 8th ed., 2013, pp. 134–136.

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Acknowledgements | xv

Every effort has been made to trace copyright holders and to obtain their permission for the use of copyright material. The author apologises for any omissions in the above list and would be grateful to be notified of any addition that should be incorporated in future reprints or editions of this book.

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Translations

CHRISTOPHER BOOTH Case study 1 – Code civil français, Arts. 1101, 1113, 1114, 1118, 1121, 1582 Case study 2 – Code civil français, Arts. 1128, 1162, 1169, 1376 – Rapport au Président de la République relatif à l’ordonnance n° 2016-131 du 10 février 2016 portant réforme du droit des contrats, du régime général et de la preuve des obligations – Allgemeines Bürgerliches Gesetzbuch, § 861 – Código civil, Arts. 1254, 1261, 1262(1), 1275, 1276, 1277 – Codice civile, Arts. 1325, 1343, 1344, 1345, 1418 – Bürgerliches Gesetzbuch, §§ 780, 518, 534, 125 Case – – – –

study 3 Code civil français, Arts. 1112, 1115–1118 Bürgerliches Gesetzbuch, §§ 130, 145, 146, 147, 148 Allgemeines Bürgerliches Gesetzbuch, § 862 Relazione del Ministro Guardasigilli Dino Grandi al Codice Civile del 4 aprile 1942, Testo e Relazione Ministeriale, Istituto Poligrafico dello Stato, Roma 1943

Case study 4 – Code civil français, Arts. 1101, 1193 Case – – – – – – – – –

study 6 Burgerlijk Wetboek, Art. 3:296 Zivilprozessordnung, § 888, 890, 897 FRANÇOIS CHÉNEDÉ, Le Nouveau Droit des obligations et des contrats, 2016, 28.81 ff. Cour de cassation, 1re civ., 20.10.1959 (Soc. X … c. P … ), D. 1959, 537 note G. Holleaux Code des procédures civiles d’exécution, Art. L. 111-1, 131-1, 131-2 ROGER PERROT/PHILIPPE THÉRY, Procédures civiles d’exécution, 3rd ed., 2013 Código civil, Art. 829A Code de procédure civile, Art. 343 Message du Conseil fédéral relatif au Code de procédure civile suisse, 28 juin 2006

Case study 7 – Bürgerliches Gesetzbuch, § 433 – Obligationenrecht, Arts. 97, 197, 205, 208 xvi

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Translations | xvii

– – –

Bundesgerichtshof, 28.11.2006, BGE 133 III 257 Code civil français et belge, Arts. 1641, 1642, 1645, 1646 THOMAS KADNER GRAZIANO/DIRK WIEGANDT, ‘Kaufrechtliche und deliktische Haftung für “Weiterfresserschäden”’, Jura 2013, 510, at 525–526

Case – – –

study 8 Bürgerliches Gesetzbuch, §§ 651h, 651i, 651l Code civil français, Arts. 1103, 1104, 1193, 1195, 1218, 1231-1 Rapport au Président de la République relatif à l’ordonnance n° 2016-131 du 10 février 2016 portant réforme du droit des contrats, du régime général et de la preuve des obligations – Codice civile, Art. 1467

Case study 9 – Code civil français, Arts. 1196, 1198, 1582 – Rapport au Président de la République relatif à l’ordonnance n° 2016-131 du 10 février 2016 portant réforme du droit des contrats, du régime général et de la preuve des obligations – Cour de cassation, 1re civ., 20.02.1996, n° 93-18799, Bull. 1996 I n° 96 – Codice civile, Arts. 922, 1376, 1378, 1153, 1154, 1147 – Código civil, Arts. 1445, 1461, 1462, 609 – LUIS DÍEZ-PICAZO/ANTONIO GULLÓN, Sistema de Derecho Civil. Vol. III, Tomo 1, Derechos Reales en general. Posesión. Propiedad. El registro de la Propiedad, 9th ed., Madrid: Tecnos, 2016, pp. 54–57 – ANA LÓPEZ FRÍAS, Arts. 430–466, en Miguel Pasquau Liaño (dir.), Klaus Jochen Albiez Dohrmann/Ana López Frías (coord.), Jurisprudencia Civil Comentada – Código Civil, Tomo I, Arts. 1–608, 2nd ed., Granada: Comares, 2009, Art. 464

ELEANOR MERRETT Case study 1 – Tribunal fédéral/Bundesgericht, 20.02.1979 (Nussberger c. K.), ATF 105 II 23 – LUC THÉVENOZ/FRANZ WERRO (eds.), Commentaire Romand, Code des obligations I, 1st ed., Basel: Helbing Lichtenhahn, 2003, Art. 7, nos. 5, 9–14 (by FRANÇOIS DESSEMONTET) – Bundesgerichtshof, 16.01.1980, NJW 1980, 1388 – Bundesgerichtshof, 26.01.2005, NJW 2005, 976 – Cour de cassation, 3e civ., 28.11.1968 (Maltzkorn c. Braquet), JCP 1969.II.15797 – FRANÇOIS TERRÉ/PHILIPPE SIMLER/YVES LEQUETTE, Droit civil – Les obligations, 11th ed., Paris: Dalloz, 2013, nos. 109–111 – PHILIPPE LE TOURNEAU et al., Droit de la responsabilité et des contrats. Régimes d’indemnisation, 11th ed., Paris: Dalloz, 2017, n. 3124.252 – PIETRO RESCIGNO (ed.), Codice Civile, Tomo, 9th ed., Milan: Giuffrè, 2014, Art. 1336 – Hoge Raad, 10.04.1981 (Hofland/Hennis), NJ 1981, 532

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Case study 2 – Cour de cassation, 1re civ., 20.2.1973 (Caillet c. Dame Nivesse), D.S. 1974, 37 note PHILIPPE MALAURIE – FRANÇOIS TERRÉ /PHILIPPE SIMLER/YVES LEQUETTE, Droit civil: Les obligations, 11th ed., Dalloz: Paris, 2013, nos. 331, 336–340, 346, 349 – Reichsgericht 23.2.1920, RGZ 98, 176 – HARM P. WESTERMANN (ed.), Münchener Kommentar zum Bürgerlichen Gesetzbuch, Band 3, Schuldrecht – Besonderer Teil I, §§ 433–534 […], 7th ed., Munich: C.H. Beck, 2016, § 516 nos. 24, 30, 31 (comment by J. KOCH) – CHRISTINE CHAPPUIS, ‘Le renoncement à la cause et à la consideration dans l’avant-projet d’Acte uniforme OHADA sur le droit des contrats’, Revue de droit uniforme 2008, 253–291 Case study 3 – Cour de cassation, 1re ch., 09.05.1980, Pas. 1980 I 1127 Case study 7 – Cour de cassation française, ch. com., 27.11.1973, n° 71-12.364, Bull. Comm. n° 345, p. 308 – Tribunal fédéral/Bundesgericht, 17.11.1953 (Cofrumi S.A. c. Transatlanta S.A.), BGE 79 II 376 Case study 8 – LUC THÉVENOZ/FRANZ WERRO (eds.), Commentaire Romand, Code des obligations I, Basel: Helbing Lichtenhahn, 2003, Art. 17 of the Swiss Federal Act on package holidays, n. 6, p. 2385 (by BERND STAUDER) – Tribunal fédéral suisse, 4.5.1922, ATF 48 II 242 – Landgericht Köln, 28.3.2001, NJW-RR 2001, 1064 – Amtsgericht Dachau, 22.11.2005, RRa 2006, 78 – Österreichischer Oberster Gerichtshof, 26.8.2004, 6Ob145/04y, RIS-Justiz, RS 0111961 – PIETRO TRIMARCHI, Istituzioni di diritto privato, 21st ed., Milano: Giuffrè, 2016, n° 256 – Cour de cassation, ch. civ., 6.3.1876 (De Galliffet c. Commune de Pélissanne ou “Canal de Craponne”), in: HENRI CAPITANT/FRANÇOIS TERRÉ/YVES LEQUETTE, Les Grands Arrêts de la jurisprudence civile, Tome 2, 13th ed., Paris: Dalloz, 2015, no. 165 – Cour de cassation, 1re civ., 8.12.1998 (Sté Castorama c. Sté ICEV Lid’air voyages), Bull. Civ. 1998 I n° 346 p. 238 Case study 9 – Cour d’appel de Paris, 15.2.1961 (Dame Morel d’Arleux c. Desourtheau et autres), D. 1961, sommaires, p. 43 – FRANÇOIS TERRÉ/PHILIPPE SIMLER, Droit civil: Les biens, 9th ed., Paris: Dalloz, 2014, n° 426 – Reichsgericht, 21.4.1906, RGZ 63, 179

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Translations | xix

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Bundesgericht/Tribunal fédéral, 29.11.1929 (Grimm gegen Konkursmasse Näf), BGE 55 II 302 – HEINZ REY, Grundriss des schweizerischen Sachenrechts, Band I, Die Grundlagen des Sachenrechts und das Eigentum, 3rd ed., Bern: Stämpfli, 2007, nos. 1688 ff. Case study 10 – Tribunal cantonal vaudois, 08.12.2000 (G. & L. c. I.), SZIER/RSDIE 2002, 147 – Bundesgericht/Tribunal fédéral, 20.12.2005, BGE 132 III 285

RACHEL HARRISON Case study 5 – Cour de cassation, ch. com., 20.11.1984 (Société des constructions navales et industrielles de la Méditerranée c. Société Freudenberg), Bull. 1984 IV n. 313, J.C.P. 1987 II 20832 – FRANÇOIS TERRÉ/PHILIPPE SIMLER/YVES LEQUETTE, Droit civil, Les obligations, 11th ed., Paris: Dalloz, 2013, nos. 121–122 – Bundesgerichtshof, 20.03.1985, NJW 1985, 1838 at 1839 – HEINZ G. BAMBERGER/HERBERT ROTH (eds.), Kommentar zum Bürgerlichen Gesetzbuch, Band I, 3rd ed., Munich: C.H. Beck, 2012, § 305, nos. 81–82 (by JÖRN BECKER) – WOLFGANG KRÜGER (ed.), Münchener Kommentar zum Bürgerlichen Gesetzbuch, Band 2, Schuldrecht – Allgemeiner Teil, 7th ed., Munich: C.H. Beck, 2016, § 305, nos. 102, 105 (by J. BASEDOW) – Obergericht Thurgau, 29.02.2008, ZBO.2007.13, RBOG 2008 Nr. 8 – HEINRICH HONSELL/NEDIM PETER VOGT/WOLFGANG WIEGAND (eds.), Basler Kommentar, Obligationenrecht I, 6th ed., Basel: Helbing Lichtenhahn, 2015, Anh. Art. 1 (by CORINNE ZELLWEGER-GUTKNECHT/EUGEN BUCHER) nos. 66–69 – Bundesgerichtshof, 09.01.2002, NJW 2002 1651, 1652 f.

NATALIA HENCZEL Case – – – –

study 1 Kodeks cywilny, Arts. 71, 543 STd Najwyższy, 17.06.2010, III CSK 297/09 STd Najwyższy, 31.07.1985, III CZP 36/85 STd Najwyższy, 21.12.1976, I PR 98/76

Case study 3 – Kodeks cywilny, Arts. 66, 66[1], 66[2] Case study 5 – Kodeks Cywilny, Art. 385[4] Case study 6 – Kodeks PostVpowania Cywilnego, Arts. 1041, 1050, 1050[1], 1051, 1051[1]

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ERECIN´SKI TADEUSZ (red.), Kodeks postVpowania cywilnego. Komentarz, Tom V, PostVpowanie egzekucyjne, wyd. V, 5th ed., Warzawa: Wolters Kluwer Polska, 2016 (comment by ERECIN´SKI TADEUSZ/PIETRZYKOWSKI HENRYK)

Case study 8 – Kodeks cywilny, Art. 357[1] Case study 9 – STd Najwyższy, 11.02.1999, III CKN 178/98 – Kodeks cywilny, Arts. 535, 155(1), 169(1)

ERIK KVARCHIYA Case study 5 – Federal Arbitration Court of the Central District, 12.03.2008, Case no. A36-957/ 2007

MARTINA GUARRACINO Case study 3 – ELISABETTA PANZARINI, ‘La proposta irrevocabile e l’opzione’, in: Antonio Gambaro/Umberto Morello, Lezioni di diritto civile. Casi, questioni e tecniche argomentative, Milano: Giuffré Editore, 2012, pp. 64–65 – PAOLO GALLO, ‘Art. 1329 – proposta irrevocabile’, in: Emanuela Navarretta/Andrea Orestano (a cura di), Dei contratti in generale (Artt. 1321–1349), Milano: UTET giuridica, 2011, p. 346 Case study 6 – Codice di procedura civile Art. 614-bis

BIANCAMARIA CAMPASSO Case study 3 – Relazione del Ministro Guardasigilli Dino Grandi al Codice Civile del 4 aprile 1942

THOMAS KADNER GRAZIANO Case study 1 – SOPHIE STIJNS, Verbintenissenrecht, Boek 1, Brugge: die Keure, 2015, n. 161 Case study 3 – SOPHIE STIJNS, Verbintenissenrecht, Boek 1, Brugge: die Keure, 2015, nos. 161, 162 Case study 8 – SOPHIE STIJNS, Verbintenissenrecht, Boek 1, Brugge: die Keure, 2015, nos. 217–219

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Abbreviations

ABGB

Allgemeines Bürgerliches Gesetzbuch (Austrian General Civil Code)

AC

The Law Report Series, Appeal Cases (England)

AcP

Archiv für die civilistische Praxis (German law journal)

AD

Appellate Division Reports (South Africa)

AGB

Allgemeine Geschäftsbedingungen (Standard terms and conditions)

al.

Alinéa (Section)

ALI

The American Law Institute

All ER

The All England Law Reports

All S.A.

All South African Law Reports

Am. Bus. L.J.

American Business Law Journal

Am. J. Comp. L.

The American Journal of Comparative Law

Ann. Surv. Int’l & Comp. L.

Annual Survey of International & Comparative Law

Art.

Article

Arts.

Articles

Asper Rev. Int’l Bus. & Trade L.

Asper Review of International Business and Trade Law

ATF

Arrêts principaux du Tribunal Fédéral (Decisions of the Swiss Federal Supreme Court of Justice, Official Collection)

Az.

Aktenzeichen (reference number)

A.2d

Atlantic Reporter, Second Series

B&Ald.

Barnewall & Alderson’s King’s Bench Reports

Baylor L. Rev.

Baylor Law Review

BB

Der Betriebsberater (German law journal)

BBl.

Bundesblatt (Swiss reporter of Federal law)

BG

Bundesgericht (Swiss Federal Supreme Court of Justice)

BGB

Bürgerliches Gesetzbuch (German Civil Code)

BGBl.

Bundesgesetzblatt (German Federal Law Gazette) xxi

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xxii | Comparative contract law

BGE

Entscheidungen des Schweizerischen Bundesgerichts, amtliche Sammlung (official collection of the case law of the Swiss Federal Supreme Court of Justice)

BGH

Bundesgerichtshof (German Federal Supreme Court of Justice)

BGHZ

Entscheidungen des Bundesgerichtshofs in Zivilsachen (Decisions of the German Federal Supreme Court of Justice, official collection in civil matters)

Bing.

Bingham’s Common Pleas Reports

Brook. J. Int’l L.

Brooklyn Journal of International Law

Build. L.M.

Building Law Monthly

Build LR

Building Law Reports

Bull.

Bulletin des lois (French law reporter)

Bull. Civ.

Bulletin des arrêts de la Cour de cassation, Chambres civiles (Official collection of the case law of the French Cour de cassation)

BVerfG

Bundesverfassungsgericht (German Federal Constitutional Court)

BVerfGE

Entscheidungen des Bundesverfassungsgerichts (Official collection of the decisions of the German Federal Constitutional Court)

BW

Burgerlijk Wetboek (Dutch Civil Code)

c.

Contre (versus)

Camp.

Campbell’s Nisi Prius Cases

Can. Bus. L. J.

Canadian Business Law Journal

CB

Common Bench Reports

CC

Code civil (Civil Code)

C. cass.

Cour de cassation (French Court of Cassation)

C. civ.

Code civil (Civil Code)

CEDH

Cour européenne des droits de l’homme (European Court of Human Rights)

CESL

Common European Sales Law

Ch.

Chapter

Ch. com.

Chambre commerciale (Commercial Chamber)

CHF

Swiss Francs

Chi. J. Int’l L.

Chicago Journal of International Law

CISG

United Nations Convention on Contracts for the International Sale of Goods

civ.

Chambre civile (Civil Chamber)

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Abbreviations | xxiii

CJ/C.J.

Chief Justice

C.L.J.

Cambridge Law Journal

C.L.P.

Current Legal Problems

CMLR

Common Market Law Reports

CO

Obligationenrecht (Swiss Code of Obligations)

Colum. J. Eur. L.

Columbia Journal of European Law

Colum. L. Rev.

Columbia Law Review

Com. L.R.

Commercial Law Reports

Const. Comment.

Constitutional Commentary

Const. L. Int’l

Construction Law International

Const. L.J.

Construction Law Journal

C.&P.

Carrington & Payne’s Nisi Prius Reports

Ct. Cl.

Court of Claims Reports (1863–1982) (USA)

C.T.L.R.

Computer and Telecommunications Law Review

CUP

Cambridge University Press

D.

Recueil Dalloz de doctrine, de jurisprudence et de législation, 1945–1964 (French law journal)

DCFR

Draft Common Frame of Reference

De G.M.&G.

De Gex, Macnaghten & Gordon’s Chancery Reports

DÖV

Die Öffentliche Verwaltung (German law journal on public and administrative law)

D.S.

Recueil Dalloz Sirey de doctrine, de jurisprudence et de législation, since 1965 (French law journal)

E.B.L.Rev.

European Business Law Review

EC

The European Community

ed.

Edition/editor

Edin. L.R.

Edinburgh Law Review

eds.

Editors

e.g.

For example

EGBGB

Einführungsgesetz zum Bürgerlichen Gesetzbuch (German Civil Code, introductory rules)

EJLE

European Journal of Legal Education

ELJ

European Law Journal

E.L.Rev.

European Law Review

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E.R.

English Reports

ERA

European Law Academy, Trier

ERCL

European Review of Contract Law

ERPL

European Review of Private Law

et al.

Et alii/et aliae (and others)

et seq.

And what follows

EuR

Europarecht (legal journal on European law)

EWCA Civ

England & Wales Court of Appeal, Civil Division

EWS

Europäisches Wirtschafts- und Steuerrecht (Journal on European commercial and tax law)

Ex Ch

Exchequer Reports

f.

Following

F./Fr.

Franken (Swiss Francs)

ff.

Following pages

FF

Feuille fédérale (Swiss reporter of Federal law)

FSR

Fleet Street Reports

F. Supp.

Federal Supplement (USA)

Gaz. Trib

Gazette des Tribunaux (French journal for jurisprudence of French courts)

G.P.R.

European Union Private Law Review

Harv. Int’l. L. J. (Online)

Harvard International Law Journal (online version)

Harv. L. Rev.

Harvard Law Review

H.C.A.

High Court of Australia

HGB

Handelsgesetzbuch (German Commercial Code)

HL

House of Lords (England)

I.B.L.J.

International Business Law Journal

ICLQ

International & Comparative Law Quarterly

ICSID

International Centre for Settlement of Investment Disputes

Int. Enc. Comp. L.

International Encyclopedia of Comparative Law

Int’l Jud. Observer

International Judicial Observer

IPRax

Praxis des Internationalen Privat- und Verfahrensrechts

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Abbreviations | xxv

IPRG

Bundesgesetz über das Internationale Privatrecht (Swiss Federal Act on Private International Law)

J.

Justice

JBl.

Juristische Blätter (Austrian Law Journal)

J.C.L.

Journal of Contract Law

J.C.P.

Juris-Classeur périodique, La Semaine Juridique (French law journal)

JdT

Journal des Tribunaux (Swiss journal on the jurisprudence of the Swiss Federal Supreme Court of Justice)

J.L. & Com.

The Journal of Law and Commerce

J. Leg. Ed

Journal of Legal Education

JORF

Journal officiel “Lois et Décrets” (Official journal “Laws and Decrees”, France)

JRP

Journal für Rechtspolitik (Austrian journal for legal politics)

JTL

Journal of Tort Law

Jur.

Jurist Reports

Jura

Juristische Ausbildung (German law journal)

JuS

Juristische Schulung (German law journal)

JW

Juristische Wochenschrift (German law journal)

JZ

Juristen-Zeitung (German law journal)

Kan. L. Rev.

The University of Kansas Law Review

K.B.

King’s Bench Division

KG

Kammergericht (Court of Appeal in Berlin, Germany)

La. L. Rev

Louisiana Law Review

LDIP

Swiss Private International Law Act

Lewis & Clark L. Rev

Lewis & Clark Law Review

LG

Landgericht (German court of first instance and court of appeal, depending on the value in dispute)

LGR

Local Government Reports

L.J.

Lord Justice

L.J.Ch.

Law Journal Reports, Chancery New Series

L.J.C.P.

Law Journal Reports, Common Pleas New Series

L.J.K.B.

Law Journal Reports, King’s Bench New Series

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Lloyd’s Rep

Lloyd’s Law Reports

LMCLQ

Lloyd’s Maritime and Commercial Law Quarterly

Loy. L.A. Int’l & Comp. L. Rev.

Loyola of Los Angeles International & Comparative Law Review

L.Q.R.

Law Quarterly Review

L.T.

Law Times Reports

LTF

La Loi sur le Tribunal fédéral (Federal Supreme Court Act)

L.T.O.S.

Law Times Reports, Old Series

Mass.

Massachusetts Supreme Judicial Court

Md.

Court of Appeals, Maryland Reports

MDR

Monatsschrift für Deutsches Recht (German law journal)

Mich. L. Rev.

Michigan Law Review

Minn.

Minnesota Reports

Minn. J. Int’l. L.

Minnesota Journal of International Law

MLR

The Modern Law Review

M.&P.

Moore & Payne’s Common Pleas Reports

N.

Number

NCCUSL

National Conference of Commissioners on Uniform State Laws

NCPC

Nouveau Code de procédure civile (French Code of Civil Procedure)

N.E.2d

Supreme Judicial Court Massachusetts, North Eastern Reporter

NILR

Netherlands International Law Review

NJ

Nederlandse Jurisprudentie (Collection of Dutch court decisions)

NJW

Neue Juristische Wochenschrift (German law journal)

NJW-RR

Neue Juristische Wochenschrift – Rechtsprechungs-Report (German law journal)

nos.

numbers

Notre Dame L. Rev.

Notre Dame Law Review

N.W.2d

North Western Reporter, 2nd series (USA)

N.Y.S.2d

West’s New York Supplement

OGH

Oberster Gerichtshof (Austrian Supreme Court of Justice)

OHADA

Organization for the Harmonization of Business Law in Africa

OJ

Official Journal of the European Union

OJLS

Oxford Journal of Legal Studies

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Abbreviations | xxvii

OLG

Oberlandesgericht (German court of appeal)

OLGE

Rechtsprechung der Oberlandesgerichte (Jurisprudence of the German Courts of Appeal)

OR

Obligationenrecht, see CO

OUP

Oxford University Press

p.

Page

Pas.

Pasicrisie belge (collection of Belgian case law)

Peak

Peake’s Nisi Prius Reports

PECL

Principles of European Contract Law

Penn St. J. & Int’l. Aff.

The Penn State Journal of Law & International Affairs

PETL

Principles of European Tort Law

PIL

Private International Law

PILA

Swiss Private International Law Act

pp.

Pages

Q.B.

Queen’s Bench Division

RabelsZ

Rabels Zeitschrift für ausländisches und internationales Privatrecht (German comparative law journal)

RBOG

Rechenschaftsbericht des Obergerichts des Kanton Thurgau

RDIC

Revue de droit international et de droit comparé (Belgian comparative law review)

Regent U.L. Rev.

Regent University Law Review

Rev.

Revised

Rev. Const. Stud.

Review of Constitutional Studies

Rev. int. de droit comparé

Revue internationale de droit comparé (Legal journal on international comparative law)

RGZ

Sammlung des Reichsgerichtsrechtsprechung in Zivilsachen (Official collection of the case law of the Imperial Court of Justice)

R.I.

Supreme Court, Rhode Island Reports

RIS

(Austrian) Rechtsinformationssystem (http://www.ris.bka.gv.at/)

RIW

Recht der Internationalen Wirtschaft (German law journal)

R.J.T.

Revue juridique Themis

R.R.

Revised Reports

RRa

ReiseRecht aktuell – Zeitschrift für das Tourismusrecht (German tourism law journal)

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xxviii | Comparative contract law

RTDCiv.

Revue trimestrielle de droit civil

s./Sect.

Section

San Diego L. Rev.

San Diego Law Review

SC

Supreme Court

Sent.

sentence

SGA

Sale of Goods Act, England

SJZ

Schweizerische Juristenzeitung (Swiss Law Journal)

So.

Southern Reporter (US)

SR

Systematische Sammlung des Bundesrechts (systematic collection of Swiss statutes)

StGB

Strafgesetzbuch (Criminal Code)

St. Louis U. L. J.

St. Louis University Law Journal

Suffolk U. L. Rev.

Suffolk University Law Review

S.W.

South Western Reporter

Syracuse J. Int’l L. & Com.

Syracuse Journal of International Law and Commerce

SZIER

Schweizerische Zeitschrift für internationales und europäisches Recht (Swiss comparative law journal)

Tex. Rev. Law & Pol.

Texas Review of Law & Politics

TF

Tribunal fédéral (Swiss Federal Supreme Court of Justice)

T.L.R.

Times Law Reports

Trib. comm.

Tribunal de commerce (Commercial Court)

Tr Law

Trading Law & Trading Law Reports

Tul. L. Rev.

Tulane Law Review

UCC

Uniform Commercial Code

U. Ill. L. Rev.

University of Illinois Law Review

UK

United Kingdom

UKHL

United Kingdom House of Lords

UKSC

United Kingdom Supreme Court

UNIDROIT

International Institute for the Unification of Private Law (https://www.unidroit.org/)

Unif. L. Rev.

Uniform Law Review/Revue de droit uniforme (UNIDROIT)

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Abbreviations | xxix

U. Penn. J. Int. Econ. L.

University of Pennsylvania Journal of International Economic Law

U. Rich. L. Rev.

University of Richmond Law Review

USA

United States of America

U.S.C.

United States Code

U. St. Thomas L. J.

University of St. Thomas Law Journal

v.

versus

Va. L. Rev.

Virginia Law Review

Vand. J. Transnat’l L.

Vanderbilt Journal of Transnational Law

VersR

Versicherungsrecht (German law journal)

VJIL

Virginia Journal of International Law

Vol.

Volume

Willamette L. Rev.

Willamette Law Review

Wis. L. Rev.

Wisconsin Law Review

WLR

Weekly Law Reports

WM

Wertpapier-Mitteilungen (German law journal)

Wm & Mary L. Rev.

William & Mary Law Review

W. Va L. Rev.

West Virginia Law Review

YbPIL

Yearbook of Private International Law

ZaöRV

Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (German law journal on foreign public law and international law)

ZEuP

Zeitschrift für Europäisches Privatrecht (German comparative law journal)

ZfRV

Zeitschrift für Rechtsvergleichung (Austrian comparative law journal)

ZGB

Zivilgesetzbuch (Swiss Civil Code)

ZPO

Zivilprozessordnung (German Code of Civil Procedure)

ZRP

Zeitschrift für Rechtspolitik (German law journal)

ZSR

Zeitschrift für Schweizerisches Recht (Swiss legal journal)

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xxx | Comparative contract law

ZVglRWiss

Zeitschrift für Vergleichende Rechtswissenschaft (German comparative law journal)

ZVR

Zeitschrift für Verkehrsrecht (Austrian law journal)

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Table of provisions of codes, statutes, and principles of law reproduced European Union Consolidated version of the Treaty on European Union Art. 5 ......................................................... 541 f. Consolidated version of the Treaty on the Functioning of the European Union Art. Art. Art. Art. Art. Art.

26 .......................................................... 542 67(1), (4) ............................................... 542 81 ....................................................... 542 f. 114(1), (3) ............................................. 543 115 ........................................................ 543 352 ........................................................ 543

Regulation on the law applicable to contractual obligations (Rome I)

Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art.

4 ............................................................ 447 6 ............................................................ 493 8(1), (2) ................................................. 111 14 .......................................................... 112 16 .................................................. 195, 493 19 .......................................................... 266 28 .......................................................... 287 29(1) ...................................................... 213 30 .......................................................... 447 35 .......................................................... 367 36 .......................................................... 367 45(1) ............................................. 287, 367 45(2) ...................................................... 367 46 .......................................................... 287 74 .......................................................... 367 79 .......................................................... 368 95 .......................................................... 493

Hague Convention of 1955 on the Law Applicable to International Sales of Goods

Recital 13 ..................................................... 505 Art. 1(1) ........................................................ 494 Art. 2 ............................................................ 494 Art. 3(1) ........................................................ 494 Art. 4(1) ........................................................ 494 Art. 10(1) ...................................................... 494 Art. 19(1) ...................................................... 494 Art. 20 .......................................................... 494 Art. 25(1) ...................................................... 494 Directive (EU) 2015/2302 on package travel and linked travel arrangements Recital 30 ..................................................... 392 Recital 31 ..................................................... 392 Art. 2(1), (3) ................................................. 392 Art. 3(1)(a), (b), (2)(a), (12) .................... 392 f. Art. 4 ............................................................ 393 Art. 9(1) ........................................................ 393 Art. 12(1), (2) ............................................... 393 International Conventions

Art. 1(1), (3) ................................................. 498 Art. 2(1), (2) ................................................. 498 Art. 3(1) ........................................................ 498 UNIDROIT International Convention on Travel Contracts Art. Art. Art. Art. Art. Art.

2 ............................................................ 391 3 ............................................................ 391 8 ............................................................ 391 9 ............................................................ 391 10(1), (3) ............................................... 391 16 .......................................................... 392

National Statutes Austria Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB) § 861 ............................................................. 129 § 862 ............................................................. 181

United Nations Convention on Contracts for the International Sale of Goods (CISG) Art. 1(1) ........................................................ 493 Art. 2(a) ........................................................ 493 Art. 3 ............................................................ 493

Federal Act on Package Travel (Bundesgesetz über Pauschalreisen) § 10(2) .......................................................... 407

xxxi

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xxxii | Comparative contract law Property Law Act (人 

Belgium Civil Code (Code civil) Art. Art. Art. Art. Art. Art. Art. Art. Art. Art.

1108 ...................................................... 139 1131 ...................................................... 139 1138 ...................................................... 481 1149 ...................................................... 339 1150 ...................................................... 339 1151 ...................................................... 339 1641 ................................................... 339 f. 1642 ...................................................... 340 1645 ...................................................... 340 1646 ...................................................... 340

Art. 23 479

Croatia Act on the Law of Obligations (Zakon o obvenzim odnosima) Art. Art. Art. Art.

254 255 256 369

........................................................ 105 ........................................................ 105 ........................................................ 105 ........................................................ 413

Czech Republic

Bosnia and Herzegovina Civil Code (Obcˇanský zákoník) Act on the Law of Obligations (Zakon o obligacionim odnosima)

§ 1751(2) ...................................................... 259

Art. Art. Art. Art. Art. Art.

Denmark

36 .......................................................... 183 37(1), (4) ............................................... 183 133 ........................................................ 412 134 ........................................................ 412 135 ........................................................ 413 136 ........................................................ 413

Sale of Goods Act (Købeloven) § 21(1) .......................................................... 289 England and Wales

People’s Republic of China Sale of Goods Act Contract Law Act of the People’s Republic of China (人  Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art.

1 ......................................................... 212 f. 2 ......................................................... 212 f. 13 .......................................................... 110 14 .......................................................... 110 15 .......................................................... 110 17 .......................................................... 204 18 .......................................................... 204 19 .......................................................... 204 30 .......................................................... 262 31 .......................................................... 262 107 ................................................ 330, 364 110 ........................................................ 330 117 ........................................................ 364 118 ........................................................ 364 121 ........................................................ 364

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Sec. 2(1), (4), (5), (6) .................................. 474 Sect. 14 ......................................................... 357 Sect. 17 ......................................................... 474 Sect. 18 ......................................................... 475 Sect. 20 ......................................................... 482 Sect. 21(1) .................................................... 475 Sect. 23 ......................................................... 475 Sect. 25(1) .................................................... 475 Sect. 27 ......................................................... 474 Sect. 52(1) .................................................... 322 Sect. 53 ......................................................... 357 Estonia Code of Obligations (Võlaõigusseadus) § 40 ............................................................... 257

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Table of provisions of codes, statutes, and principles of law reproduced | xxxiii Finland

Code de commerce (Commercial Code)

Sale of Goods Act (Kauppalaki)

Art. L 441-6(I) ............................................. 249

§ 23 ............................................................... 288

Code of Civil Procedure (Code de procédure civile français)

France

Art. 1496 ...................................................... 510

Civil Code (Code civil)

Code on Execution Procedures in Private Law (Code des procédures civiles d’exécution)

Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art.

711 ........................................................ 447 1101 ................................................ 96, 212 1103 .............................................. 295, 422 1104 ...................................................... 422 1108 ...................................................... 130 1112 ...................................................... 184 1113 ........................................................ 96 1114 ........................................................ 96 1115 ...................................................... 184 1116 ...................................................... 184 1117 ...................................................... 184 1118 ................................................ 96, 184 1119(2) .................................................. 249 1121 ........................................................ 96 1128 ...................................................... 168 1131 ...................................................... 130 1134 ........................................... 416 fn. 11 1162 ...................................................... 168 1169 ...................................................... 168 1193 .............................................. 212, 422 1195 ...................................................... 422 1196 .............................................. 447, 481 1197 ...................................................... 481 1198(1) .................................................. 447 1217 ...................................................... 295 1218(1) .................................................. 422 1221 ...................................................... 296 1231-1 ................................................... 422 1231-2 ................................................... 339 1231-3 ................................................... 339 1231-4 ................................................... 339 1240 ...................................................... 184 1241 ...................................................... 184 1376 ...................................................... 168 1582(1) ........................................... 96, 448 1583 ...................................................... 448 1610 ...................................................... 296 1641 ................................................... 339 f. 1642 ...................................................... 340 1645 ...................................................... 340 1646 ...................................................... 340 2274 ...................................................... 450 2276(1) .................................................. 448

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L. L. L. L. L.

111-1 ................................................ 301 131-1 ................................................ 301 131-2(1) ............................................ 301 131-4(1) ............................................ 302 222-1 ................................................ 302

Germany Civil Code (Bürgerliches Gesetzbuch, BGB) § 125 ............................................................. 153 § 130(1) ........................................................ 179 § 145 ....................................................... 93, 180 § 146 ............................................................. 180 § 147 ............................................................. 180 § 148 ............................................................. 180 § 150(2) ........................................................ 250 § 154(1) ........................................................ 250 § 155 ............................................................. 250 § 241(1) ........................................................ 290 § 276 ............................................................. 345 § 280(1) ........................................................ 345 § 306(2) ........................................................ 250 § 313 ............................................................. 406 § 433 ............................................ 290, 344, 454 § 434(1) ..................................................... 344 f. § 437 ............................................................. 345 § 516(1) ........................................................ 153 § 518 ............................................................. 153 § 534 ............................................................. 153 § 611 ............................................................. 290 § 651h ........................................................... 399 § 651i ............................................................ 399 § 651l ........................................................ 399 f. § 780 ............................................................. 153 § 929 ............................................................. 454 § 932 ............................................................. 457 Code of Civil Procedure (Zivilprozessordnung, ZPO) § 883(1) ........................................................ 291 § 884 ............................................................. 291

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xxxiv | Comparative contract law § 887(1) ........................................................ 291 § 888(1), (3) ................................................. 291 § 890(1) ........................................................ 291

Art. 6.171(1), (3) ...................................... 107 f. Art. 6:178 ..................................................... 256 Art. 6:179 ..................................................... 256

Greece

Montenegro

Civil Code (Aστικο´ ς Kω ´ δικας)

Act on the Law of Obligations of Montenegro (Zakono o oblicacionim odnosima)

Art. Art. Art. Art. Art. Art. Art. Art. Art.

168 ........................................................ 181 185 ........................................................ 181 186 ........................................................ 181 388 ........................................................ 414 513 ........................................................ 457 522(1) .................................................... 479 1034 ...................................................... 457 1036(1) .................................................. 458 1037 ...................................................... 458

Italy Civil Code (Codice civile) Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art.

922 ........................................................ 452 1147 ...................................................... 452 1153(1) .................................................. 452 1325 ...................................................... 142 1328 ...................................................... 186 1329 ...................................................... 186 1336(1) .................................................. 101 1343 ...................................................... 142 1344 ...................................................... 142 1345 ...................................................... 142 1376 ...................................................... 452 1378 ...................................................... 452 1418 ...................................................... 142 1453 ...................................................... 289 1467 ...................................................... 415

Code of Civil Procedure (Codice di procedure civile) Art. 614bis ................................................ 308 f.

Art. 128 ........................................................ 413 Netherlands Civil Code (Burgerlijk Wetboek) Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art.

3:37(1) ................................................... 102 3:84(1) ................................................... 456 3:86(1) ................................................... 456 3:90(1) ................................................... 456 3:118 ..................................................... 456 3:119(1) ................................................. 456 3:296(1) ................................................. 288 6:217(1) ........................................ 102, 130 6:219 ..................................................... 202 6:225 ..................................................... 253 6:258 ..................................................... 411 7:503 ..................................................... 411

Poland Civil Code (Kodeks cywilny) Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art.

66 .......................................................... 202 66[1] ...................................................... 202 66[2] ...................................................... 203 71 .......................................................... 104 155 § 1 .................................................. 453 169 § 1 .................................................. 453 357[1] .................................................... 413 385[4] .................................................... 258 535 §1 ................................................... 453 543 ........................................................ 104 548 §1 ................................................... 482

Lithuania Civil Code (Civilinis kodeksas)

Code of Civil Procedure (Kodeks PostVpowania Cywilnego)

Art. 4.49(1) ................................................... 480 Art. 4.52(1) ................................................... 480 Art. 6.169 ..................................................... 203

Art. 1041 § 1 ................................................ 305 Art. 1050 §§ 1 and 3 .................................... 305 Art. 1050[1] .................................................. 305

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Table of provisions of codes, statutes, and principles of law reproduced | xxxv Art. 1051 § 1 ................................................ 305 Art. 1051[1] § 1 and 2 ................................. 305 Art. 1052 ...................................................... 306

Art. Art. Art. Art.

459(1) .................................................... 480 483(1), (3) ............................................. 260 443 ........................................................ 260 494 ........................................................ 108

Portugal Serbia Civil Code (Código civil) Art. 230 ........................................................ 182

Act on the Law of Obligations (Zakon o obligacionim odnosima)

Quebec, Canada

Art. Art. Art. Art. Art. Art. Art.

Code civil/Civil Code Art. Art. Art. Art. Art.

1385 1390 1410 1411 1590

...................................................... 143 ...................................................... 204 ...................................................... 143 ...................................................... 143 ...................................................... 287

33 .......................................................... 106 34 .......................................................... 106 35 .......................................................... 106 133 ........................................................ 412 134 ........................................................ 412 135 ........................................................ 413 136 ........................................................ 413

Slovenia

Roman Law

Code of Obligations (Obligacijski Zakonik)

Codex Iustinianus (Code of Justinian) 2.3.20 ............................................................ 473

Art. Art. Art. Art. Art. Art. Art.

Institutiones Iustiniani (Institutes of Justinian) 2.1.40,41 ....................................................... 473 Digesta seu Pandectae (Digest or Pandects) D 41.1.36 ...................................................... 473 D 50.17.54 .................................................... 474

22(3) ...................................................... 107 23 .......................................................... 107 24 .......................................................... 107 112 ........................................................ 412 113 ........................................................ 412 114 ........................................................ 413 115 ........................................................ 413

Spain Romania Civil Code (Código civil) Civil Code (Codul civil) Art. 1202(4) .................................................. 258 Russian Federation

Civil Code (Гражданский кодекс Российской Федерации) Art. Art. Art. Art. Art.

223(1) .................................................... 480 420 ........................................................ 212 432 ..................................................... 259 f. 435(1) .................................................... 108 437 ........................................................ 108

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434 ........................................................ 471 464 ........................................................ 471 609 ........................................................ 468 1254 ...................................................... 140 1261 ...................................................... 140 1262(1) .................................................. 140 1274 ...................................................... 141 1275 ...................................................... 141 1276 ...................................................... 141 1277 ...................................................... 141 1445 ...................................................... 467 1461 ...................................................... 467 1462 ...................................................... 468 1950 ...................................................... 471

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xxxvi | Comparative contract law Sweden

USA

Sale of Goods Act (Köplag)

Uniform Commercial Code (UCC)

§ 12 ...................................................... 442 fn. 4

§ 2-205 .......................................................... 194 § 2-207 .......................................................... 264 § 2-209(1), (3) .............................................. 222 § 2-313 .......................................................... 360 § 2-314 .......................................................... 360 § 2-315 ...................................................... 360 f. § 2-714 .......................................................... 361 § 2-715 .......................................................... 361 § 2-716(1) ..................................................... 322

Switzerland Civil Code (Zivilgesetzbuch, Code civil) Art. Art. Art. Art.

2(1) ............................................... 254, 397 3(1) ........................................................ 460 714 ........................................................ 460 933 ........................................................ 460

Code of Obligations (Obligationenrecht, Code des obligations) Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art.

1 ...................................................... 89, 129 2 ............................................................ 254 3 ............................................................ 178 4 ............................................................ 178 5 ............................................................ 178 7 ...................................................... 89, 178 9 ............................................................ 178 10(1) ...................................................... 178 97(1) ...................................................... 349 184(1) .................................................... 460 197 ..................................................... 349 f. 205 ........................................................ 350 208 ........................................................ 350 243 ........................................................ 156 373 ........................................................ 396 377 .........................................................396

Code of civil procedure (Code de procédure civile) Art. 343 ........................................................ 310 Federal Act on Package Travel Art. Art. Art. Art.

1(1) ........................................................ 394 8 ............................................................ 394 10 .......................................................... 394 17 ....................................................... 394 f.

Federal Act on Private International Law (Schweizerisches Bundesgesetz über das Internationale Privatrecht) Art. Art. Art. Art.

1 ............................................................ 497 116 ........................................................ 497 118(1) .................................................... 497 187 ........................................................ 510

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Restatement of the Law Second, Contracts § 17 ............................................................... 220 § 25 ............................................................... 194 § 26 ................................................................. 86 § 42 ............................................................... 193 § 63(a) ........................................................... 193 § 71 ................................................... 151, 220 f. § 73 ............................................................... 221 § 79 ............................................................... 221 § 86 ............................................................... 151 § 89(a) ........................................................... 222 § 357(1) ........................................................ 322 § 359(1) ........................................................ 322 § 360 ............................................................. 323 § 366 ............................................................. 323 § 367 ............................................................. 323 Louisiana, Civil Code Art. 1906 ...................................................... 213 Art. 1927 ...................................................... 152 Art. 1928 ...................................................... 194 New York, General Obligations Law § 5-1105 ........................................................ 152 Contract Principles Hague Principles on Choice of Law in International Commercial Contracts Preamble ....................................................... 505 Art. 2(1) ........................................................ 505 Art. 3 ............................................................ 505 Art. 6(1) ........................................................ 274 Principles of European Contract Law Art. 1:101 ..................................................... 504 Art. 1:102 ..................................................... 157

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Table of provisions of codes, statutes, and principles of law reproduced | xxxvii Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art.

2:101 ..................................................... 157 2:201 ..................................................... 115 2:202 ..................................................... 198 2:204(1) ................................................. 268 2:208 .................................................. 268 f. 2:209 ..................................................... 269 4:103 ..................................................... 159 4:106 ..................................................... 159 4:107 ..................................................... 159 4:108 ..................................................... 160 4:109 ..................................................... 160 6:111 ..................................................... 433 8:101 ..................................................... 376 8:108 ..................................................... 376 9:102 ..................................................... 329 9:501 ..................................................... 376 9:502 ..................................................... 376 9:503 ..................................................... 376

UNCITRAL Model Law on International Commercial Arbitration Art. 28(1) ...................................................... 510 UNIDROIT Principles of International Commercial Contracts Preamble ....................................................... 504 Art. 2.1.2 ...................................................... 113 Art. 2.1.4 ...................................................... 196 Art. 2.1.11 .................................................... 272 Art. 2.1.22 .................................................... 272 Art. 3.2 ......................................................... 163 Art. 3.4 ......................................................... 164 Art. 3.5 ......................................................... 164 Art. 3.8 ......................................................... 164 Art. 3.9 ......................................................... 164 Art. 3.10 ....................................................... 164

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6.2.1 ...................................................... 437 6.2.2 ...................................................... 437 6.2.3 ...................................................... 437 7.1.1 ...................................................... 379 7.1.7 ................................................... 379 f. 7.2.2 ................................................... 323 f. 7.2.4 ...................................................... 327 7.4.1 ...................................................... 379 7.4.2 ...................................................... 379 7.4.4 ...................................................... 379

Draft Common Frame of Reference (DCFR) II, Art. 1:102(1) ............................................ 160 II, Art. 1:107 ................................................. 160 II, Art. 4:101 ................................................. 161 II, Art. 4:102 ................................................. 161 II, Art. 4:201 ................................................. 116 II, Art. 4:202 ................................................. 201 II, Art. 4:208 ................................................. 271 II, Art. 4:209 ............................................. 271 f. II, Art. 7:101(1) ............................................ 161 II, Art. 7:201(1) ............................................ 161 II, Art. 7:204 ............................................. 161 f. II, Art. 7:205(1) ............................................ 162 II, Art. 7:206 ................................................. 162 II, Art. 7:207(1) ............................................ 162 II, Art. 7:301 ................................................. 162 II, Art. 7:302(1), (2) ..................................... 162 III, Art. 1:110 ............................................... 436 III, Art. 3:101 ............................................... 378 III, Art. 3:102 ............................................... 378 III, Art. 3:104 ............................................... 378 III, Art. 3:302 ............................................... 329 III, Art. 3:701 ............................................ 378 f. III, Art. 3:702 ............................................... 379 III, Art. 3:703 ............................................... 379

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PART A INTRODUCTION

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Chapter 1

Contract law in the 21st century – the purpose of this book

The situation in contract law is currently characterised by, firstly, diversity of the traditional national contract law systems and, secondly, by the coexistence of, on the one hand, the national systems of contract law and, on the other hand, uniform law, harmonised law, and soft-law instruments which are available to the national and international communities to be adopted by legislators, used as sources for inspiration by judges, or integrated into their contracts by parties The present book provides an introduction to contract law in all its diversity. It invites the reader to study both comparative contract law and comparative methodology by using a case-oriented and problem-based approach. Chapter 2 of Part A first introduces the approach to comparative law and comparative methodology that is used throughout the book, sets out the choice of jurisdictions included in Part B of the book, and makes some proposals of how to work with the book.1 The following chapter of Part A addresses the questions of who might use comparative law in practice and, in particular, whether it is legitimate and beneficial for judges (and, as the case may be, for lawyers) to use comparative law in their daily practice.2 The final chapter of Part A provides a brief introduction to the Principles of European Contract Law (PECL) and the UNIDROIT Principles for International Commercial Contracts (UNIDROIT Principles), the needs which they serve, and the purposes for which they are designed.3 Today these sets of principles, alongside the contract law provisions of Book II of the Draft Common Frame of Reference (DCFR), serve as a rich source of inspiration for legislators, courts and legal practitioners. The 11 case studies of Part B, the central part of the book, each start with a case scenario taken from the case law of a European country that raises a highly topical issue of contract law. Targeted questions follow, guiding the readers in their work with each case. The questions are followed by materials that allow the reader to solve the case scenario under different national jurisdictions as well as under the PECL, the UNIDROIT Principles and the DCFR. The materials (extracts from national civil codes, statutes and court decisions) are provided in the original version with English translations. They present the current state of the law in a large number of jurisdictions. Where necessary for the understanding of the materials, they are accompanied by extracts from academic writing, provided in English translation. Case study 10 of Part B addresses the question of how the different contract law systems are coordinated in cross-border cases and provides some basic information on 1 2 3

Part A., Chapter 2, pp. 5 ff. Chapter 3, pp. 20 ff. Chapter 4, pp. 50 ff.

2

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1. Contract law in the 21st century – the purpose of this book | 3

Private International Law (or Choice of Law) in contractual matters, and points to the strengths and weaknesses of dealing with legal diversity using the tools provided by the rules on Private International Law (or Conflict of Laws).4 Lastly, Case study 11 addresses the role of contract law in common markets and regional organisations of states and, in particular, the question of the future of contract law in Europe.5 The first step in each case study is to analyse and solve the case scenario under the different national laws, the PECL, the UNIDROIT Principles and the DCFR. The second step is to compare the approaches to the issue found in the materials and to discover if any common principles exist for the issue in question. Where the national approaches and solutions diverge, the reader is, in a third step, invited to compare them, to analyse their respective pros and cons, and to discuss which of the approaches and solutions might be the most appropriate to resolve the problem at hand from a comparative and international perspective. The book invites the reader to work with legal materials from different countries such as continental civil codes, statutes and court decisions (decisions for example of the English High Court, Court of Appeal, and the House of Lords, now the Supreme Court, the French and Belgian Courts of Cassation, the German and Swiss Federal Supreme Courts of Justice, the Dutch Hoge Raad, the Supreme Courts of Justice of Austria and of Poland, the Arbitration Court of Russia, courts in the US (both state courts and federal courts), the Supreme Court of Appeal of South Africa, as well as decisions of lower courts of some of these and other countries, and – last but not least – of the Court of Justice of the European Union), in addition to the relevant provisions of the Principles of European Contract Law, the UNIDROIT Principles for International Commercial Contracts, and the Draft Common Frame of Reference. The choice of materials is guided by the interest that the respective materials present for the approach to, and the solution of, the issue under examination. The materials further allow the reader to directly encounter any particularities in the form and style of foreign legal materials. In current comparative literature, one often still finds the presumption that, despite all differences in form and style, when facing the same legal issue, different jurisdictions usually eventually reach similar results.6 The work with the materials in this book shows that this presumption is wrong – even in comparable societies that share the same basic political, moral and economic values. When working with the book, the reader is offered the opportunity to reflect on the differences and similarities inherent in contract law in the 21st century, to compare the different approaches and solutions for the given problem, to analyse the pros and cons of different approaches, and to choose between these options and hereby obtain a comparative perspective. The comparative approach taught in the book prepares the student to take inspiration from the laws of different countries and jurisdictions when working as a future lawyer or judge, and prepares him or her to work in an international environment that is 4

Part B., Case study 10, pp. 487 ff. Case study 11, pp. 523 ff. 6 This statement is usually accompanied by a reference to the groundbreaking work of K. ZWEIGERT/H. KÖTZ, An Introduction to Comparative Law, 3rd ed. (translated by T. WEIR), Oxford: OUP, 1998. 5

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4 | Part A Introduction

characterised by legal diversity. The book is based on the firm conviction that comparative law and comparative methodology cannot be taught with a purely theoretical approach. The book therefore promotes the approach of learning by doing, which is as close as can be to practical work in the field of comparative law. Last but not least, working with the book should also help students to better understand their foreign colleagues and their legal backgrounds, and to feel at home in a world populated with very diverse legal thinkers.

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Chapter 2

A case-oriented and multilateral approach to the teaching, studying and learning of comparative law: the approach used in this book1

I. INTRODUCTION Comparative law is a well-established discipline today.2 However, uncertainties remain regarding the teaching and learning method as well as the content of courses on comparative law and on comparative methodology. Roscoe Pound, famous former Professor and Dean at Harvard Law School, wrote in the first half of the 20th century that comparative law is a discipline for legislators, academics and teachers eager to shape their minds but that “it has no place in the ordinary curriculum for the first degree in law. That curriculum is too crowded already.” Nor did he think that “it has a place in a graduate curriculum”.3 In the 1980s, Karl H. Neumayer wrote that “[i]n no other discipline […] does such uncertainty reign as in comparative law regarding the teaching method and the content of the courses”.4 A few years ago, Matthias Reimann, comparatist at the 1

The following text was first published in: ERPL 2015, 927–944. For the situation in Europe, see E. HONDIUS, ‘Comparative Law in the Court-Room: Europe and America Compared’, in: A. Büchler/M. Müller-Chen (eds.), Festschrift für Ingeborg Schwenzer zum 60. Geburtstag, Vol. 1, Bern: Stämpfli, 2011, p. 759: “The increasing legal co-operation within Europe has led to a growing awareness of foreign law”; p. 765: “From an esoteric elective course, Comparative Law has developed into a mainstream subject”; see also M. REIMANN, ‘The Progress and Failure of Comparative Law in the Second Half of the Twentieth Century’, Am. J. Comp. L. 2002, 671 at 691 f.; R. MICHAELS, ‘Im Westen nichts Neues? 100 Jahre Pariser Kongress für Rechtsvergleichung – Gedanken anlässlich einer Jubiläumskonferenz in New Orleans’, RabelsZ 2002, 97 at 112: “Rechtsvergleichung ist en vogue. […] Auch in der Praxis ist die Rechtsvergleichung wichtig geworden; sie wird von Gesetzgebern (etwa in den osteuropäischen Transformationsstaaten) und Richtern in zunehmendem Masse genutzt. Schliesslich ist auch die Rechtsangleichung und vereinheitlichung wesentlich von der Rechtsvergleichung inspiriert worden”; see already R. BUXBAUM, ‘Die Rechtsvergleichung zwischen nationalem Staat und internationaler Wirtschaft’, RabelsZ 1996, 201: “Europa [erlebt] eine Blüte der Rechtsvergleichung, die in diesem Jahrhundert ihresgleichen sucht”. 3 ROSCOE POUND, ‘The Place of Comparative Law in the American Law School Curriculum’, Tul. L. Rev. 1933–1934, 161 at 162. See also p. 168: “I should feel that comparative law is for the research workers; for the relatively few who are specially and immediately engaged in advancing knowledge”. Since Roscoe Pound’s article was published, the curricula of law schools all over the world have become even more overloaded, and the argument of overcrowded curricula has again often been heard in recent years. 4 K.H. NEUMAYER, ‘Rechtsvergleichung als Unterrichtsfach an deutschen Universitäten’, in: H. Bernstein/U. Drobnig/H. Kötz (eds.), Festschrift für Konrad Zweigert zum 70. Geburtstag, 2

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University of Michigan at Ann Arbor, expressed the view that “[w]hile comparative law has been a considerable success in terms of producing a wealth of knowledge, it has […] failed to mature into an up-to-date, well-defined, and coherent discipline”.5 “Comparatists still have no overall theoretical framework explaining, what kind of ‘law’ to compare for what purpose, what to prove or disprove through comparison, and, most embarrassingly, how exactly to go about it”.6 Other authors have noticed a lack of manuals and casebooks intended for a modern and interactive7 teaching of comparative law. Edith Friedler has written on the situation in the USA that “recent efforts to give comparative law a facelift are directed more towards scholars than classroom teachers. They bring to mind Roscoe Pound’s insistence that this is a discipline for academics and legislators, not for law school class”.8 Antoine Bullier, comparatist at the University Paris 1, Panthéon Sorbonne, has recently observed that for students and future lawyers and judges, it is often not evident that using comparative methodology can lead to immediate and tangible results, or that comparative law knowledge can really be useful for the students’ future careers.9

Tübingen: Mohr Siebeck, 1981, p. 501 at 507. Translated from the German: “An den deutschen Universitäten wird kein Lehrgebiet durch eine so große Divergenz in den Methoden des Unterrichts und der Auswahl des Vortragsstoffes verunsichert wie die Rechtsvergleichung”. 5 REIMANN (fn. 2), at p. 686. He continues: “Witness, for example, the structure and content of our standard books. They usually begin by talking about the character, history, goals, benefits, and tools of comparative law; almost suddenly, they lay these matters completely aside and launch into descriptions of legal families and traditions; then they add discussions of particular substance topics, and, along the way, they provide a fair amount of information about foreign law. The unifying theme in all this is hard to see. […] When comparatists reiterate their standard lists of their subject’s necessity, purposes, tools, and benefits, these mantras are too imprecise and long as to be virtually all-inclusive. The only agreement, it seems, is that anything goes, a few basic prohibitions aside.” See also MICHAELS (fn. 2), at p. 106. 6 REIMANN (fn. 2), at p. 689. 7 It seems that only specialised courses offer students the opportunity to work with an active and case-oriented comparative method, while most general comparative law courses are still taught ex cathedra. Courses on comparative methodology still seem to be rare. 8 E.Z. FRIEDLER, ‘Shakespeare’s Contribution to the Teaching of Comparative Law – Some Reflections on The Merchant of Venice’, La. L. Rev. 2000, 1087. She continues: “[proposals for] new approaches to comparative law […] contain exciting ideas about new ways to look at comparative law, but a case book or other teaching tool has yet to materialize as a result of these efforts”. See however the Ius Commune Casebooks for the Common Law of Europe, ed. by W. VAN GERVEN et al., aimed at advanced comparative law students, or the books by the author of the present book. Friedler refers to ROSCOE POUND, ‘The Place of Comparative Law in the American Law School Curriculum’, Tul. L. Rev. 1933–1934, 161–170. According to Pound, a course on comparative law “has no place in the ordinary curriculum for the first degree in law. That curriculum is too crowded already.” Nor did he think that “it has a place in a graduate curriculum”. See also p. 168: “I should feel that comparative law is for the research workers; for the relatively few who are specially and immediately engaged in advancing knowledge”. 9 A. BULLIER, ‘Le droit comparé dans l’enseignement – Le droit comparé est-il un passe-temps inutile?’, RDIC 2008, 163 at 164: “cette matière souffre d’un déficit d’image […] Les juristes sont avant tout des internistes. Ils veulent donner des solutions immédiates et tangibles à leurs étudiants ou clients. La spéculation intellectuelle, si elle est appréciée, ne correspond plus à un monde où l’efficacité et le rendement sont considérés comme essentiels et aller voir ailleurs relève de la

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Added to these uncertainties are new challenges stemming from greater mobility of people and the internationalisation of trade and law. On this point, Michael Waxman noted in the Journal of Legal Education that “the inexorable shift to transnational and global legal practice demands a comparable shift in our methods of teaching Comparative Law”.10 There is thus a need for discussion as to the subject and the method of comparative law teaching. In fact, with a small number of exceptions,11 in comparative law there is generally no predefined knowledge that each student is supposed to have acquired at the end of his or her studies. The content of the comparative law course, as well as the methodology, are left to the appreciation of the teacher, who, on the one hand, benefits, in that regard, from a large educational freedom. On the other hand, he or she faces the challenge of making, among the vast amount of foreign and comparative materials, a selection that is manageable for the students, and of using a teaching method that meets the needs of students and that adequately prepares them for their future professional practice. With regard to the question of how to teach and learn comparative law, it appears appropriate to first analyse the practical requirements and challenges comparatists are facing today (sections II and III). On this basis, it is then considered how students can be prepared for these practical challenges and what consequences might be drawn when it comes to teaching and learning the subject (sections IV and V).

II. PRACTICAL REQUIREMENTS: FROM A NATIONAL AND BILATERAL METHOD TO A MULTILATERAL COMPARATIVE LAW METHODOLOGY Comparative law has always been employed for the study of different legal cultures, to gain further knowledge and broaden one’s own horizons, as a means for the better understanding of one’s own law, to relativise the solutions in force in one’s own jurisdiction, and as a tool for identifying notions of justice existing across borders (comparative law in its capacity as école de vérité).12 During large parts of the 20th century, when jurists used comparative methodology, their starting point was often one curiosité intellectuelle comme pour les digressions élégantes et stimulantes de la philosophie ou de la théorie générale du droit”. 10 M. WAXMAN, ‘Teaching Comparative Law in the 21st Century: Beyond the Civil/Common Law Dichotomy’, J. Leg. Ed. 2001, 305. 11 In particular, the different legal cultures and traditions, their historical origins and particularities, usually form a part of any macro-comparative law course, see K. ZWEIGERT/H. KÖTZ, An Introduction to Comparative Law, 3rd ed. (translated by T. WEIR), Oxford: OUP, 1998; R. DAVID/M. GORÉ/C. JAUFFRET-SPINOSI, Les Grands Systèmes de droit contemporains, 12th ed., Paris: Dalloz, 2016; A. GAMBARO/R. SACCO, Sistemi Giuridici Comparati, 3rd ed., Turin: Utet Giuridica, 2008; A. GAMBARO/R. SACCO/L. VOGEL, Le Droit de l’occident et d’ailleurs, Paris: L.G.D.J., 2011; G. CUNIBERTI, Grands Systèmes de droit contemporains, 3rd ed., Paris: L.G.D.J., 2015; H. P. GLENN, Legal Traditions of the World: Sustainable Diversity in Law, 5th ed., Oxford: OUP, 2014. 12 ZWEIGERT/KÖTZ (fn. 11), at p. 15; DAVID/GORÉ/JAUFFRET-SPINOSI (fn. 11), at nos. 3 et seq.

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single jurisdiction or one single system of law, usually the one in which they were trained, which then served as the point of reference for the comparison. In practice, the purpose of comparison was often to fill in gaps in national law, to improve it or to reform it. The jurisdiction(s) for comparison was (or were) traditionally chosen amongst the main representatives of the ancient ‘legal families’, namely French law, German law and common law (in particular English or American law), occasionally also Swiss law. One could call this traditional method a national13 and bilateral approach to comparative law. It is still used in numerous comparative law theses published today. In recent years and decades, however, further challenges and tasks have been placed at the centre of debate and the horizon for comparatists has broadened accordingly. 1. Range of jurisdictions to be compared A first shift concerns the jurisdictions to take into account when making comparisons – even when the comparison is made with the traditional purpose of improving a single domestic law. The distinctions between the major codifications that have marked a whole ‘legal family’, such as the French Code civil or the German BGB, and the other members of those families have significantly increased in many respects over the last decades. Even in the early 1970s, Léontin-Jean Constantinesco stated that “it is obvious that some derived legal systems may achieve a level of originality which requires them to also be taken into account when comparing”.14 In Europe, for example, this is true today of Belgian, Italian, Spanish and Portuguese law, in relation to French law, and most notably of Dutch law since the reform of the Civil Code of the Netherlands. The same is true of Swiss and Austrian law with respect to German law. Many jurisdictions have recently modernised their codifications, or even put entirely new codifications into force, stemming from important comparative work, with provisions that are often more finely shaded than those of the main representatives of the traditional legal families.15 These new codifications contain new solutions and cover certain issues 13 See ZWEIGERT/KÖTZ (fn. 11), at p. 29: “This presents comparative law with a challenge. No longer can it confine itself to making proposals for the reform of national law, valuable though that is, for as long as it does so, it will inevitably be tainted with nationalism, regarding national legal systems as given and fixed, and looking to divergences and convergences only to see what can be of use to them”; H. KÖTZ, ‘Alte und neue Aufgaben der Rechtsvergleichung’, JZ 2002, 257 at 259; G.P. ROMANO speaks of a “comparaison […] nationaliste, puisqu’elle sert la cause du seul législateur national qui la pratique”, ‘Les justiciables face à la comparaison des droits: vers la démocratisation d’un droit savant’, in: E. Cashin Ritaine/L. Franck/S. Lalani (eds.), Legal Engineering and Comparative Law, Vol. 1, Zurich: Schulthess, 2008, p. 95 at 101 (original emphasis). 14 L.-J. CONSTANTINESCO, Rechtsvergleichung, Bd. 2: Die rechtsvergleichende Methode, Köln: Carl Heymanns Verlag, 1972, p. 50: “Tatsächlich ist es offensichtlich, dass manche abgeleiteten Rechtsordnungen einen Stand der Originalität erreichen können, der den Vergleicher zu ihrer unmittelbaren Untersuchung verpflichtet”. 15 To mention just a few examples: the Dutch Civil Code (Burgerlijk Wetboek) of 1992 or the recent codifications in the three Baltic States, see e.g. R. SCHULZE/F. ZOLL (eds.), The Law of Obligations in Europe: A New Wave of Codifications, Munich: Sellier, 2013; beyond Europe, see for example the Quebec Civil Code of 1994, the Chinese Contract Act of 1999, which is widely

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for the first time explicitly in black-letter rules. To give just one example: in contract law, the problem of conflicting standard terms and conditions is not regulated explicitly in any of the traditional codifications. The Dutch Civil Code, the Polish Civil Code, the Estonian Law of Obligations, the Lithuanian Civil Code, the new Romanian Civil Code, and the new Civil Code of the Czech Republic, on the contrary, contain modern rules on that question; these rules differ significantly from one another, thereby making them even more interesting for comparison.16 Case law in these countries has also gone its own ways in many aspects. In 2016, French contract law experienced its largest reform since the entry into force of the French Code civil in 1804. With respect to numerous fundamental issues of contract law, French law has hereby considerably distanced itself from other jurisdictions of the former French legal family. Limiting the comparison to the principal representatives of the traditional legal families disregards these developments. Today, restricting the comparison to for example French, German and English law ultimately leaves it to pure chance whether the comparison actually produces the most stimulating or convincing solution with regard to the issue under examination.17 In addition, a number of internationally recognised sets of “principles” (or restatements) have been developed over the last three decades containing legal rules of high quality compiled through comparative research. To avoid having to reinvent the wheel again and again, there should be a widespread consensus that these principles are now also to be included in the comparison, alongside national or international legal provisions and case law. Restricting comparison to one or a small number of jurisdictions is thus hard to justify in today’s world, even if the comparison pursues the traditional purpose of optimising one single domestic law. When it comes to dealing with such a variety of jurisdictions, it is necessary to employ a multilateral comparative method that allows the comparative lawyer to take into consideration, and draw conclusions from, the most recent and modern developments on an international and comparative scale and allows him or her to benefit from the considerable legal diversity existing today. 2. Transnationalisation or even globalisation of trade and legal practice A second change follows from the transnationalisation, or even the globalisation, of trade, legal practice, and legal issues and challenges. In numerous situations today,18 jurists are inspired by the UNIDROIT Principles of International Commercial Contracts, or the Chinese Property Act of 2007 and the Chinese Tort Law Act of 2009. 16 See for this issue below, Part B, Case study 5, pp. 238 ff., and namely Art. 6:225(3) of the Dutch Burgerlijk Wetboek, § 40(1) of the Law of Obligations of Estonia, and Art. 6.179 of the Lithuanian Civil Code, the latter being strongly inspired by Art. 2.1.22 of the UNIDROITPrinciples on International Commercial Contracts. See also § 385 of the Polish Civil Code; Art. 1202 of the Civil Code of Romania, and § 1751(2) of the new Civil Code of the Czech Republic. 17 Indeed, the “Principles of European Contract Law” and the 2009 draft “Common Frame of Reference” often do not follow the traditional solutions known of the main representatives of the ancient legal families, but have chosen more differentiated solutions, which are inspired by those found in smaller jurisdictions. For examples, see below, Part B: Case Studies. 18 See the examples below, pp. 11 ff.

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required, together with colleagues from other jurisdictions, to act in a context of legal diversity and to analyse legal issues in a European or even worldwide context, to compare a wide range of different solutions in force in different jurisdictions, to research international tendencies, to identify the most convincing solution on an international level, or to suggest solutions acceptable for actors with various legal backgrounds. There is in fact an increasing “necessity of collaboration amongst jurists of all traditions in the resolution of many problems in the world”.19 With respect to these challenges, traditional bilateral comparison is an inadequate tool. To rise to this challenge, and to cope with a multitude of laws and information, it is necessary to replace the bilateral approach with a multilateral comparative method. 3. Search for common principles of law and renewal of the ius commune Europaeum Last but not least, there are the projects of a variety of research groups aimed at renewing the ius commune Europaeum or even searching for globally accepted, or acceptable, principles of law. In this work, from the outset, the national law loses its role as a reference point for the comparison. On the contrary, these research groups operate a multilateral comparison par excellence. With respect to this research, Matthias Reimann has stated from a US perspective: “In Western Europe, comparative legal studies have […] gained a momentum and a significance unprecedented in the last hundred years. […] From an American perspective, one may […] look across the Atlantic with envy these days. Comparative law in Europe is a hot topic. It is practically relevant, self-confident, and enjoys a high profile.”20

In order to research common principles of law and establish a multilateral comparative overview, it is necessary for the comparatist to adopt, from the beginning of the analysis, the view that the solution provided by each jurisdiction for a legal question has, in principle, the same value as the others. To reach this objectivity, one must abandon the national point of view and adopt a bird’s eye perspective of the compared objects, or, in other terms, one must adopt a supranational comparative perspective while doing multilateral research. 4. Objective: contributing to mutual understanding and allowing an informed choice while being fully aware of all possible solutions and their pros and cons The purpose of the use of a multilateral comparative method is, on the one hand, to contribute to a mutual understanding between jurists, judges and lawyers across borders. On the other hand, the purpose is not necessarily to harmonise or unify law. Applying a multilateral methodology from a supranational perspective allows us to work with numerous laws in order to identify a convincing solution for the issue under examination. The outcome of the comparative research could, where necessary or useful, be introduced 19

GLENN (fn. 11), at p. xxvi, continuing: “[T]here now appears to be no area of law free of the possibility of extra-jurisdictional complication”. 20 REIMANN (fn. 2), at pp. 691–692.

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in international legislation or case law,21 but it could also be used as a source of inspiration for national legislation or domestic court decisions,22 or for parties when looking for a solution that is acceptable at a transnational level. Whether the multilateral comparative research method is used by a judge, a legislator or private parties, and whether it is used on a national or international level,23 the method is, and the benefits to be derived from it are, largely the same. To resolve a specific legal issue, this method reveals a diversity of possible solutions as well as their respective advantages and disadvantages, and it allows us to discover developments and tendencies on an international and comparative scale. It thus allows us to make an informed choice while being fully aware of (ideally, all) possible solutions and their pros and cons for the legal issue under examination.

III. THREE EXAMPLES FROM INTERNATIONAL AND COMPARATIVE LEGAL PRACTICE Multilateral comparison from a supranational perspective is not limited to the activity of a (national or international) legislator. The method can also be helpful, or even necessary in deciding a specific dispute. The range of situations which require a multilateral and supranational comparative method is vast: it extends from armed conflicts of our time to situations raising fundamental private law issues. In the following paragraphs, three practical examples from the author’s practice as a comparative law expert will be presented. They all required a multilateral comparison from an international perspective.24 1. The first example is related to the most important damages claim that was ever made: in breach of international law, one State invaded another and caused widespread damage. An international force intervened and compelled the first State to withdraw from the occupied territories. Once the war was over, the State that had been invaded as well as neighbouring States asked the occupying State for reparation of the damage suffered during the war. This case concerned the invasion of Kuwait by Iraq and the subsequent Gulf war in 1990–91. The case was brought before the United Nations Security Council which set up a subsidiary organ, the United Nations Compensation Commission, in 1991 at the European headquarters of the United Nations in Geneva.25 According to the regulation established for this procedure, the occupying State was obliged to compensate the neighbouring States and their nationals, in particular regarding health impairments. However, the regulation did not specify in detail the conditions under which the neighbouring States could claim compensation for the injuries and damage done at 21

See the first and second examples, below section III paras. (1)–(3). See the example of the Australian case raising the issue of the “loss of a chance”, below, section III, para. 3. 23 The parties to a litigation can also benefit from this method. On this subject, see ROMANO (fn. 13). 24 The cases are reproduced with the consent of the parties concerned. 25 https://uncc.ch/ 22

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distance and suffered by their nationals (e.g. damage related to post-traumatic stress disorder, PTSD). To resolve this issue, it was necessary to undertake a multilateral comparison from a supranational perspective. The aim was to research whether there existed common legal principles for compensation of damage suffered at distance in the different tort law systems in the world. Such common principles could thereafter serve as sources of inspiration to guide the United Nations Compensation Commission when applying the regulation governing its decision. 2. The second example is also related to public international law. A State occupies neighbouring land; in breach of international law, colonies are built in the occupied territories and infrastructure is created. After several decades, the occupying State withdraws from these territories. The question then is what the rights and obligations of the occupying State are with respect to the colonies and the infrastructure created there. The issue presented itself when Israel withdrew from the Gaza strip. It had to be resolved through application of the Hague Convention (IV) respecting the Laws and Customs of War on Land of 1907 and its annex26 and the 1949 Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War.27 According to Article 55 of the 1907 Hague Convention, the occupying State shall be regarded as usufructuary of the occupied territories.28 There was no international case law specifying the notion of usufructuary and the usufructuary’s rights and obligations. However, the national laws that had served as models for Article 55 of the 1907 Hague Convention have detailed provisions on usufructuary and a rich body of case law interpreting the rights and obligations of the usufructuary. There again, a multilateral comparison of as many jurisdictions as possible which recognise the notion of usufructus offered an interesting perspective into the research of an appropriate solution. In this second example regarding interpretation of international law, the option of only taking one single jurisdiction as a point of reference for comparison was ruled out from the beginning. When interpreting international law, the comparative perspective is necessarily multilateral and supranational. 3. The third example raises a fundamental issue of tort law. A six-year-old girl is admitted to hospital. Through negligence, the doctors delay the necessary exams. When the exams are finally carried out, a brain tumour is diagnosed. The girl is operated on, but suffers severe and permanent brain damage. She claims damages from the doctors. The question is whether the doctors’ negligence was the cause of her irreversible brain damage. According to the applicable law, the girl had to establish that it was more probable than not that the damage could have been avoided but for the doctors’ negligence. The girl could not fulfil this requirement and so, according to the traditional rules, the claim could 26

In particular Arts. 42 to 56 of the Hague Convention. In particular section III of the Geneva Convention. 28 Art. 55 states: “The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct”. 27

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not succeed. The doctors’ fault had nevertheless prevented her from having a chance to avoid the damage. This case was brought before the Australian courts. It raised, for the first time in Australian law, the issue of whether it is possible to claim damages for the “loss of a chance”.29 This question had already been discussed, and decided, in a number of foreign jurisdictions. During the procedure before the High Court of Australia, the judges invited the lawyers to present the solutions to the problem found in other jurisdictions, in particular in the USA, the UK, Canada, and jurisdictions on the European continent. In this third example, comparison was used with a traditional purpose which is to find inspiration to deal with and solve an issue raised in a national legal framework. However, to carry out the research required by the Court, the lawyers and comparative law experts had to analyse and compare not only one, two or three, but a large number of jurisdictions worldwide. To manage such a multitude of information and solutions with the greatest possible objectivity, it was necessary to master a multilateral method and adopt, when comparing, a supranational vision of comparative law.30 Such extensive multilateral comparison is not restricted to court practice in Australia. In the case law of the UK House of Lords (or, since 2009, the Supreme Court for the UK), approximately one quarter to one third of rulings since 1995 have resorted to the comparative method.31 As in the High Court of Australia ruling, English case law rarely confines its comparison to only one foreign jurisdiction; quite the contrary, courts look for inspiration in as large a number of foreign jurisdictions as possible. Since about 1995, the House of Lords has frequently made comparisons not only with jurisdictions belonging to the common law tradition, but also with continental laws. This research is carried out first and foremost in order to discover and demonstrate the diversity of solutions from which the courts may choose; another purpose is to know if there exist common principles on the international level which could later serve as a source of inspiration for the solution of the issue in domestic law. If a solution found abroad is adopted or domestic case law overruled, reference to foreign law provides further legal support for the court’s judgment. If, on the other hand, a solution applied abroad is eventually rejected, this decision is made in full awareness of all options and their respective pros and cons, i.e. on a higher level of knowledge and with greater insight.32 4. Numerous other situations require a multilateral comparison from a supranational perspective: in the European Union, during the preparation of every substantive legislation project, the European Commission asks for comparative work taking into account the laws of all 28 (or, from early 2019 onwards, 27) EU Member States. For the Court of Justice of 29

High Court of Australia, Tabet v. Gett, 21.04.2010, [2010] H.C.A. 12. For comparative information on this subject, see T. KADNER GRAZIANO, Comparative Tort Law: Cases, Materials and Exercises, London/New York: Routledge, 2018, Chapter 10, pp. 277 ff., and – with many further references, idem, ‘Loss of a Chance in European Private Law – “All or Nothing” or Partial Liability in Cases of Uncertain Causation’, ERPL 2008, 1009–1042; idem, ‘“Alles oder nichts” oder anteilige Haftung bei Verursachungszweifeln – Zur Haftung für “perte d’une chance” und eine Alternative’, ZEuP 2011, 171–200; G. MÄSCH, Chance und Schaden, Tübingen: Mohr Siebeck, 2004; C. MÜLLER, La Perte d’une chance, Bern: Stämpfli, 2002. 31 See M. NOUNCKELE, ‘Aux frontières de la comparaison’, RDIC 2012, 393–420. 32 For the purposes and the benefits of judicial comparison, see below, Chapter 3, pp. 20 ff. 30

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the European Union and the European Court of Human Rights, multilateral comparison is daily work. One could also mention the work of the International Institute for the Unification of Private Law (UNIDROIT), the work of the Commission on European Contract Law (or “Lando Commission”), the work of the groups that have prepared the Draft Common Frame of Reference (DCFR), or the work of the European Group of Tort Law (EGTL), which has culminated in the publication of the Principles of European Tort Law (PETL). The works of these and many more groups researching European or even worldwide common principles of law, as well as a number of national legislation projects, were all preceded by vast multilateral comparative research. Finally, on a smaller scale: any choice of law in an international case may require the carrying out of a multilateral and supranational comparison to identify the most appropriate system for the issue at hand.

IV. CASE-ORIENTED COMPARATIVE LAW TEACHING AND LEARNING – THE APPROACH USED IN THIS BOOK These practical requirements on the national, as well as international, level should have repercussions on the teaching, studying and learning of comparative law. The question is how to prepare today’s students, who are tomorrow’s lawyers, judges and jurists, to face the challenges posed by these situations and by the internationalisation of law and the legal practitioner’s work. How can they be prepared to use a multilateral approach to comparative law? Such an approach to comparative law requires future comparatists to have specific methodological abilities and experiences (section 1), to have some basic knowledge of different legal cultures, to know about their historical development and particularities (section 2), and – ideally – to have good language skills (section 3). 1. Methodological abilities The multilateral method requires the ability to research, to work with, and to benefit from information and materials from many jurisdictions at the same time. One does not learn such a method with a purely theoretical approach, or, as Denis Tallon has stated: “il est difficile d’enseigner une méthode dans l’abstrait”.33 On the contrary, it is arguably only 33 Translation: “It is difficult to teach a method in the abstract”, in: ‘Quel droit comparé pour le XXIème siècle?’, Unif. L. Rev. 1998, 703–709; see also A. FLESSNER, ‘Die Bedeutung der Rechtsvergleichung im Kollisionsrecht’: “Die Rechtsvergleichung muss zunehmend der internationalen Rechtsberatung und Rechtsgestaltung dienen; sie muss deshalb auch die rechtsberatenden Praktiker erreichen. […] Insgesamt muss der akademische Unterricht vom Erzählen und Staunen über die juristischen Weltwunder mehr auf das Üben, die […] Eigenarbeit mit ausländischen Quellen und Texten umgestellt werden”, in: A. Gamber/B. Verschragen (eds.), Rechtsvergleichung als juristische Auslegungsmethode, Vienna: Jan Sramek Verlag, 2013, p. 1 at 20; see also CONSTANTINESCO (fn. 14), at p. 29: “Nur wer selbst eine sich auf fremdes Recht erstreckende Untersuchung durchgeführt hat, wer sich selbst darum bemüht hat, die Geheimnisse fremder Rechte und ihrer Rechtsterminologie zu enträtseln, kann etwas Gültiges über die rechtsvergleichende Methode aussagen. Alle, die Rechtsvergleichung ohne Fremdsprachenkenntnisse und ohne die

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by way of learning by doing that these abilities can be acquired, i.e. through the students’ active work with foreign legal materials on practical case scenarios. The functioning of the multilateral and supranational comparative teaching method, i.e. the method used in this book, shall in the following be illustrated by taking contract and tort law as examples. To teach the multilateral and supranational comparative method, contract law and tort law are particularly appropriate, given the number of materials that these fields offer for comparison, namely: + national laws; + international or interregional law (in contract law and with respect to sales: the United Nations Convention on Contracts for the International Sale of Goods, CISG); + international non-State rules and principles (in contract law: in particular, the “Principles of European Contract Law”, the “UNIDROIT Principles of International Commercial Contracts” and the “Draft Common Frame of Reference (DCFR)”; in tort law: the “Principles of European Tort Law” and, again, the “Draft Common Frame of Reference (DCFR)”). The materials used in any basic course on comparative law and on (multilateral) comparative methodology may thus be drawn from contract or tort law, but they may also very well be drawn from any other field of law, including family law, inheritance law, administrative law or criminal law. In a case-oriented approach to comparative law, such as the one used in the present book, the starting point for the analysis may very well be a case scenario raising one of the above-mentioned issues that then guides the students through their work with the legal materials. The students are thus placed in a situation that is as close to practical comparative work as possible. The following considerations are based on my experience of teaching comparative law at universities in several Eastern and Western European countries, the USA, China and South Africa. The relevant teaching materials used in Geneva34 do not give preference to any particular jurisdiction and can thus be used in any country or jurisdiction. In comparative contract law, for example, our first case is inspired by a Swiss Federal Supreme Court decision. The latest computers are displayed in a shop window at a very Kenntnis des fremden Rechts, d.h. ohne eigene rechtsvergleichende Studien betreiben und die sich nur auf rechtsvergleichende Monographien stützen, die andere Autoren in ihrer eigenen Sprache geschrieben haben, improvisieren lediglich über eine Sache, die sie nicht kennen. […] Einzig und allein die persönliche Erfahrung in der Anwendung der rechtsvergleichenden Methode kann die wirklichen methodologischen Probleme aufdecken. Vorstellungskraft und Spekulation sind hier keine Hilfe. Die methodologischen Erkenntnisse, die durch persönliche Erfahrung erworben werden, sind eine Sache; die Vergleichung durch eine Zwischenperson ist eine andere.” See also MICHAELS (fn. 2), at p. 111: “Über Nutzen und Berechtigung all dieser [theoretischen] Ansätze mag man geteilter Meinung sein. Vor allem fehlt bei allem theoretischen Niveau dieser neuen Ansätze häufig die Rückbindung an praktische Rechtsvergleichung. Kritiker herkömmlicher und Proponenten neuer Methoden verzichten viel zu häufig darauf zu zeigen, wie ihre Methoden praktisch angewandt werden können und zu welchen – vielleicht neuen – Ergebnissen sie führen”. 34 See the present book and KADNER GRAZIANO, Comparative Tort Law: Cases, Materials and Exercises (fn. 30).

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16 | Part A Introduction

attractive price; a customer enters the shop and declares that he is buying a computer. Another customer has seen the computers advertised in promotional material (or on the Internet) that gives all the relevant information including the price. He contacts the salesperson and states that he would like to buy one of the computers. The salesperson no longer wants to sell the computer at the advertised price. Has a contract been formed?35 In torts, our first case is inspired by the English case Spartan Steel v. Martin Contractors. A construction company is doing work on a road in the vicinity of a factory producing stainless steel. The construction company carelessly damages a cable that supplies electricity to the steel factory. The cable is owned by a third party. The power is off for 14 hours, disrupting the steel company’s 24-hour-a-day operations. The steel factory claims compensation for (a) physical damage to melted material which was in the furnace when the power supply was cut; (b) loss of profit that would have been made had this melt been properly completed; (c) loss of further profit caused by the standstill of the factory.36 With regard to all issues dealt with in our case scenarios, the laws differ considerably from one jurisdiction to the other. The first question in each exercise invites the students to look for the rules and solutions to the case scenario that are applied in the different national and international legal systems and in the soft-law principles, and then solve the case under the diverse sources. In each case study, the students will discover information on the current state of the law in as many legal systems as was considered useful to fully grasp the variety of solutions available for the issue under examination in a comparative perspective. The material provided is composed of legal provisions as well as extracts from court rulings and academic writings, which allow the case to be solved in relation to each system of law.37 The materials give no priority or preference to any particular jurisdiction.38 The diversity of legal provisions and case law, as well as the layout of the materials, invites the student to distance him or herself from the law of his or her own country and adopt a supranational view. The second question in each exercise invites the reader to regroup the solutions which fundamentally differ from one another and to systematise them accordingly. By doing this, the complexity of working with 10, or even 15 systems of law, is reduced or focused in each exercise on three or four solutions that fundamentally differ from one another.39 The students are thereafter, in a third step, invited to compare these solutions and to identify possible common principles for the issue under examination. In cases where the national solutions diverge, the students are invited to weigh up their respective advantages and disadvantages and to finally suggest a solution which seems most appropriate to them. 35

For the topics of the further exercises, see below, Part B: Case Studies. See the book on Comparative Tort Law (fn. 30), Chapter 5, pp. 71 ff. 37 It goes without saying that it is the responsibility of the authors of the relevant literature to ensure that all necessary information is provided for the respective jurisdictions to address the issue under examination. 38 One of the consequences of this approach is that the manuals used for teaching can easily be used in many different countries. 39 Experience shows that for a single question of law rarely more than three or four fundamentally different solutions are applied. 36

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2. Acquiring a basic knowledge of the fundamental characteristics of different legal cultures: combining micro- and macro-comparison40 When working with the case scenarios, students are introduced to identifying, applying and then comparing the approaches and solutions provided by different jurisdictions to a single case and legal issue. They are also invited to analyse and compare the rules, principles and reasoning on which these solutions rely (micro-comparison). Each time that two or three cases have been addressed and worked with, an ex cathedra lecture might be offered where the students receive basic information on the different legal cultures. This helps them to understand the materials provided and grasp the reasons for the diversity of the laws, and to better understand the statutes and case law they are working with. In those parts of the course, information and explanations can be provided on the different legal cultures and traditions, on their historical origins and particularities, as well as on different styles in legislation and case law (macro-comparison). In those more theoretical parts of the course, students will benefit from the experience they have already gained when actively working with the case scenarios and with foreign law.41 3. Challenges due to the diversity of languages The multilateral method ideally requires good knowledge of foreign languages. Solid reading skills in English, French and German, for example, allow the comparative lawyer to access materials from nine European jurisdictions, as well as legal materials from the United States, many other common law jurisdictions, and many members of the ancient French legal family. Adding Spanish gives access to one more European, and numerous Latin American, jurisdictions. In the present book, information on common law jurisdictions is provided solely in its original English-language version, whereas materials from other countries (codal or statutory provisions and court rulings) are accompanied by a translation, and extracts of academic writings are provided in English translation only. To better grasp and understand the particularities of the different legal systems, students are invited to read the materials, whenever possible, in the original language version. Doing comparative law thus offers

40 Macro-comparison is about general issues of comparative law such as classification of the different jurisdictions, their historical developments and particularities, the organisation of their respective judicial processes, different legislative techniques and styles of codification, etc., see for instance, ZWEIGERT/KÖTZ (fn. 11), at p. 4. Micro-comparison, on the contrary, deals with rules and principles of law which allow us to solve specific issues and problems, and the comparison of the solution of these problems under different laws, see, e.g., ZWEIGERT/KÖTZ (fn. 11), at p. 5. 41 It is in these parts of the course, given ex cathedra, that micro- and macro-comparison will merge. See also E. ÖRÜCÜ, ‘Developing Comparative Law’, in: E. Örücü/D. Nelken (eds.), Comparative Law: A Handbook, Oxford: Hart Publishing 2007, p. 57: “Ideally macro-comparison and micro-comparison should merge, since the micro-comparative topic must be placed within the entire legal system.” For more information, students are advised to read or consult an introduction to comparative law (see the references cited supra fn. 11).

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18 | Part A Introduction

them, at the same time, the opportunity to improve their knowledge of foreign legal languages.42

V. BENEFITS OF THE PRESENTED APPROACH The proposed method of teaching, studying, and learning comparative law offers several benefits and advantages:43 + Students study comparative law with a learning by doing approach and actively train themselves using comparative methodology. + They hereby overcome their discomfort when approaching foreign materials and when working with materials from jurisdictions unknown to them up to that point. + When solving case scenarios under different laws, students learn to take a step back from the jurisdiction in which they are rooted and they learn to favour a critical view, putting the solution in force in their country into perspective. They experience that the rule provided in their own jurisdiction for a specific legal issue is not the only reasonable rule to follow, but just one of several ways to address and solve the specific legal problem. Students hereby obtain a “vaccination […] against the error that the dogmatic figures of their own law are identical with ‘natural law’”.44,45 + Students thus get familiar with many different jurisdictions and with different styles of legal reasoning. This enables them to better understand foreign colleagues, to 42

See also A. BULLIER, ‘Le droit comparé dans l’enseignement – Le droit comparé est-il un passe-temps inutile?’, RDIC 2008, 163 at 166: “Le droit comparé ne peut, en aucun cas, faire l’impasse sur le problème de la langue qui véhicule concepts, traditions, réflexes et façons de dire et de comprendre les choses. Le cours de droit comparé sait-il initier les étudiants à la traduction juridique?”; see also CONSTANTINESCO (fn. 14), at p. 29. 43 Experience shows that this approach works not only in seminars with a small number of participants, but also in larger classes. In Geneva, between 60 and 160 students take the comparative law course which is taught with this method; at the KU Leuven some 200 students follow the course. 44 KÖTZ (fn. 13), at p. 262. (Translated from the German: “Die Studierenden erhalten so eine Schutzimpfung […], die [sie] gegen den Irrtum feit, es seien die dogmatischen Figuren ihrer Rechtsordnung mit dem Naturrecht identisch”). 45 In comparative contract law, i.e. the topic of the present book, students having studied in the UK, the USA or Germany learn for example that – contrary to the rules in force in their countries – it is indeed possible to regard the exposure of goods in shops or even advertisements as binding offers, and that some (good) arguments may be made in favour of this solution. Students having studied in Belgium, Luxemburg, Italy or Spain, and students having studied in common law countries have the experience that the formation of contracts need not necessarily be made to depend on the existence of a “cause” or “consideration” – and that more targeted devices to control contractual agreements may work just as well or even better while fully respecting the intention of the parties and achieving a maximum of legal certainty. With respect to the transfer of property of movables, students having studied in Germany, Greece or South Africa learn that the abstraction principle, deeply rooted in these jurisdictions, is a rare exception from a comparative perspective. Students having studied in Belgium, Switzerland or Germany learn that, contrary to the laws of Belgium, Switzerland and Germany, the seller’s liability is strict in France, England, the USA and China, and that (very) good reasons speak in favour of this solution; etc.

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better exchange with colleagues trained in a number of other jurisdictions,46 and to have discussions on legal issues in an international context (e.g. European or even worldwide). In fact, the proposed methodology teaches a comparative legal science which is detached from the contingencies related to one or the other local law. By the end of the course, students should have acquired the ability and skill to work with materials from many jurisdictions at the same time and to look for, and bring to light, ideally, a range of possible solutions to any issue under examination, or, as the case may be, to possibly discover common principles of law regarding this issue that exist throughout Europe or other parts of the world. During the work with the case scenarios and the discussions about the pros and cons of the approaches and solutions found in the materials, students will learn to benefit from learning experiences from other jurisdictions. They can hereby make an informed choice, ideally, amongst several available options, when required to solve a specific legal issue. The proposed method thus emphasises the practical benefits that may be associated with the use of the comparative method. It shows that the use of this method can generate immediate and tangible results and that comparative law can be truly efficient. Last but not least, the students will be prepared, and will dispose of the necessary methodological tools, to handle scenarios such as the two public international law cases or the civil liability case described above47 as well as many other domestic or transnational legal scenarios.

Mastering a multilateral and supranational comparative method should thus facilitate the students’ future work in a multi-jurisdictional world, populated with very diverse legal thinkers – be it in their work as lawyers, judges or jurists in a national framework or institution, or in an international organisation and context. James Gordley, comparatist at Tulane University in New Orleans, has written: “A student confronted with only one solution to a legal problem has a tendency to assume it is the right one. When he is confronted with two, he is encouraged to think.”48 One could add: when he has acquired the capacity to compare the solutions of three, four or even more jurisdictions and to give these jurisdictions equal weight in his analysis, he is enabled to think internationally.

46 47 48

ÖRÜCÜ (fn. 41), at pp. 43–45: “Comparative law gives [them] a tool of communication”. Above, section III paras. (1)–(3), pp. 11 ff. J. GORDLEY, ‘Comparative Law and Legal Education’, Tul. L. Rev. 2000–2001, 1003 at 1008.

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Chapter 3

Is it legitimate and beneficial for judges to compare?1

The comparative method taught in this book allows us to compare solutions from different countries and jurisdictions and to use them as a source of inspiration when looking for solutions to legal problems. In the legislative process, a purely domestic perspective has long been considered insufficient. In fact, national and international legislatures have always relied on, and benefitted from, significant comparative research during the drafting stage of private law legislation. When interpreting domestic law, courts in a certain number of jurisdictions also draw inspiration from foreign solutions and increasingly from “common principles” of law derived from comparison. In other jurisdictions, it is still less common for the judge to take inspiration from the comparative approach when deciding cases according to their domestic law. The question of whether it is legitimate for the judge to use the comparative method is fundamental to the role that this method can play in practice. If the use of the comparative method is legitimate for the judge, and if judges take inspiration from foreign law and “common principles” derived from comparison, the comparative method becomes not only a precious tool for the judge, but also for lawyers who could also find inspiration in foreign legal systems when it comes to interpreting the law, filling its gaps or suggesting solutions to new legal problems in the interest of their clients. Before getting to the heart of the comparative law exercises that constitute Part B of this book, it seems appropriate to give some thought to the question of who could use this method and, notably, whether it is legitimate and useful for the judge to compare. This chapter thus analyses the arguments for and against the legitimacy of judicial comparison when it comes to applying domestic law. It further considers the benefits that may be derived from comparison by the judge.

I. INTRODUCTION In the early 21st century, it might seem surprising to still ask the question whether it is legitimate for judges to use the comparative method in their reasoning. The experience of teaching comparative law shows, however, that students – i.e. the judges and lawyers of tomorrow – despite the insights and the intellectual pleasure they derive from comparing laws, often doubt whether it is legitimate for courts to use comparative methodology. They also have doubts concerning the benefits they might be able to derive from the comparative method in their future practical life as lawyers. In contrast, they quickly 1

This chapter was first published in ERPL 2013, 687–716. It was reprinted (with permission of Kluwer Law International) in an extended version in: D. Fairgrieve/M. Andenas (eds.), Courts and Comparative Law, Oxford: OUP, 2015, pp. 25–53.

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recognise the use of comparative law with regard to legislation, whether on a national or international level, given that national and international legislators regularly rely on comparative studies when preparing legislation. Judges and lawyers2 in some countries also still question the legitimacy of the use of comparative methodology by the courts. The following reflections address the question of whether it is legitimate for the judge to resort to the comparative method in addition to the classic methods of determining and interpreting domestic law. If it is legitimate, is it beneficial for the courts to use the comparative method? And if so, do the benefits of the comparative method justify the sometimes considerable effort that the comparative approach demands? A practical example serves to illustrate that these questions are far from purely theoretical: The economy of a central European state undertakes privatisation. A foreign investor buys one of the largest companies in that country. The company, which is of national importance (and too big to fail), risks bankruptcy but is saved by State investment in the region of several billion dollars. The State accuses the foreign investor of not having taken the necessary measures to save the company, measures that the investor had been obliged to take under the privatisation contract. The State therefore claims damages in the region of several billion dollars for the investments made to save the company. The case is to be decided on the application of provisions of the civil code of the State concerned. There is little doctrine and no case law interpreting the applicable articles (provisions concerning contractual and tortious liability). That being said, in neighbouring countries’ codes, there are similar provisions which have been widely commented on and often applied by their courts. These codes served as an inspiration to the State’s legislator at the time of codification of its domestic civil law.3 In such a case, is it legitimate for the court to take inspiration from foreign codes, statutory law, case law and legal doctrine when dealing with the issue under the applicable domestic law? Would lawyers be able to use, in the interest of their clients, other legal systems as a source of inspiration and support when proposing a certain interpretation of the law to the judges? These questions are not limited to Europe. A very animated discussion among judges of the Supreme Court of the United States has helped in putting this issue on the agenda of judges, comparatists and lawyers.4 This chapter analyses the arguments for and against the legitimacy of the comparative method when it comes to applying domestic law (section II), and the benefits that may be 2

When teaching comparative law to lawyers, their scepticism regarding the use of comparative law frequently vanishes only when studying cases in which the courts used this method in their reasoning. 3 For more case scenarios, see above, Chapter 2, section III paras. (1)–(3), pp. 11 ff. 4 The discussion in the USA focuses on the comparative method in constitutional law. In Europe, the legitimacy of judicial comparison has hardly ever been discussed. See e.g. C. MCCRUDDEN, ‘A Common Law of Human Rights? Transnational Judicial Conversations on Constitutional Rights’, OJLS 2000, 499 at 503: a topic “relatively ignored in the theoretical literature”; R. REED, ‘Foreign Precedents and Judicial Reasoning: The American Debate and British Practice’, L.Q.R. 2008, 253 at 259: The current discussion in the USA “has no parallel in the United Kingdom or elsewhere in the common law world”. In the USA, the topic is also regarded as “under-theorized”, R. HIRSCHL, ‘The Question of Case Selection in Comparative Constitutional Law’, Am. J. Comp. L. 2005, 125.

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22 | Part A Introduction

derived from comparison by the judge. Numerous decisions from courts around Europe illustrate the reasons that lead to the use of comparative methodology and the multiple aims that the courts pursue by using this method (section III).

II. COMPARATIVE LAW – A METHOD AT THE DISPOSAL OF THE COURTS? 1. Is it legitimate to use comparative law? Arguments against the use of comparative methodology by courts Some arguments seem to speak against the use of the comparative method by the courts when interpreting national law.5 a) A lack of democratic legitimacy A first argument highlights that the judge is bound by the law, but only his domestic law as well as international law in force in his country. Only the national legislator and, where required, an international legislator, would have the necessary democratic legitimacy to guide the judge in his decision. Foreign law fails to respect this democratic legitimacy and would not, in light of this fact, be capable of either binding, convincing or even serving as an inspiration to the national judge, in the interpretation of his own domestic law.6 b) The legal system – a national system According to a second argument, every domestic legal provision or precedent should be interpreted within its own context, that of a national system.7 In many continental legal systems, civil law is codified in a coherent system, the system of the national code, 5

For an emphatic statement against the use of comparative law by US Federal courts, see A. SCALIA, ‘Keynote Address: Foreign Legal Authority in the Federal Courts’, in: American Society of International Law, Proceedings of the 98th Annual Meeting (American Society of International Law), 2004, 305; available also at http://www.jstor.org/pss/25659941. 6 A. SCALIA, ‘Commentary’, St. Louis U. L. J. 1996, 1119 at 1122: “[we] judges of the American democracies are servants of our peoples, sworn to apply … the laws that those peoples deem appropriate. We are not some international priesthood empowered to impose upon our free and independent citizen supra-national values that contradict their own.” In the USA, some critics have argued that an “unchecked comparative practice” was “subversive of the whole concept of sovereignty”, see: Appropriate Role of Foreign Judgments in the Interpretation of American Law: Hearing on H.R. Res. 568 before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 108th Cong., 2nd Sess. 77, 2004, at 72 (testimony of Prof. J. RABKIN, Cornell Univ.); see also E. YOUNG, ‘Foreign Law and the Denominator Problem’, Harv. L. Rev. 2005, 148 at 163: “[I]mporting foreign law into the domestic legal system through constitutional interpretation circumvents the institutional mechanism by which the political branches ordinarily control the interaction between the domestic and the foreign”; D. PFEFFER, ‘Depriving America of Evolving Its Own Standards of Decency? An Analysis of The Use of Foreign Law in Eighth Amendment Jurisprudence and Its Effect on Democracy’, St. Louis U. L. J. 2007, 855 e.g. at 879; Z. LARSEN, ‘Discounting Foreign Imports: Foreign Authority in Constitutional Interpretation and the Curb of Popular Sovereignty’, Willamette L. Rev. 2009, 767, e.g. at 784. 7 In this sense see SCALIA, ibid.

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whereas in common law countries, case law constitutes a body of jurisprudence with its own coherence. It is claimed that an interpretation that takes inspiration from foreign sources is potentially harmful to national legal systems. c) Specificities of the national situation According to another argument, each legal provision as well as each judgment interpreting a provision and applying the law in a specific case is always the result of a weighing of interests. It is argued that this weighing of interests necessarily takes place within the national context, taking into account the specificities of the situation in the country concerned and the cultural context in which the decision will take effect. In this sense, Antonin Scalia, judge of the Supreme Court of the United States, in a judgment concerning US constitutional law, expressed the opinion that looking at foreign law is, at best, of no importance, and, at worst, dangerous. According to him, the Supreme Court of the United States “should not impose foreign moods, fads or fashions on Americans”.8 In the majority opinion of the Court, Justice Kennedy, who frequently uses the comparative method, had referred to English law and the case law of the European Court of Human Rights. According to Scalia, in his dissenting opinion, such considerations of foreign law would be “meaningless dicta”.9

8

In Lawrence et al. v. Texas 539 U.S. 558, [2003], 598 (on the constitutionality of a statute of the State of Texas prohibiting certain sexual acts between persons of the same sex; the Court held that this law violates the “Due Process Clause” of the US Constitution), at p. 598: “The Court’s discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is therefore meaningless dicta. Dangerous dicta, however, since ‘this Court … should not impose foreign moods, fads, or fashions on Americans.”’ With reference to Foster v. Florida, 537 U.S. 990, note (2002) (J. THOMAS): “Justice Breyer has only added another foreign court to his list while still failing to ground support for his theory in any decision by an American court”. Ibid., at 990: “While Congress, as a legislature, may wish to consider the actions of other nations on any issue it likes, this Court’s Eighth Amendment jurisprudence should not impose foreign moods, fads, or fashions on Americans”. 9 Ibid, at p. 573; see also L. BLUM, ‘Mixed Signals: The Limited Role of Comparative Analysis in Constitutional Adjudication’, San Diego L. Rev. 2002, 157, e.g. at 163; B. LUCAS, ‘Structural Exceptionalism and Comparative Constitutional Law’, Va. L. Rev. 2010, 1965; E. YOUNG (fn. 6), at p. 148. The US Supreme Court has, however, a long tradition when it comes to using the comparative method, see e.g. M. MINOW, ‘The Controversial Status of International and Comparative Law in the United States’, Harv. Int’l. L. J. Online, 27.08.2010, at section I: “[N]o one disagrees that United States judges have long consulted and referred materials from other countries as well as international sources; yet for the past nine or so years, citing foreign and international sources provoked intense controversy”; V. JACKSON, ‘Constitutional Comparisons: Convergence, Resistance, Engagement’, Harv. L. Rev. 2005, 110; G. CALABRESI/S. DOTSON ZIMDAHL, ‘The Supreme Court and Foreign Sources of Law: Two Hundred Years of Practice and the Juvenile Death Penalty Decision’, Wm. & Mary L. Rev. 2005, 743. See on the debate in the US also A. BARAK, ‘Comparative Law, Originalism and the Role of a Judge in a Democracy: A Reply to Justice Scalia’, The Fulbright Convention, 29 January 2006 (Speech delivered at the Fulbright Israel/ USIEF 50th Anniversary Symposium: International Influences on National Legal Systems, The Hebrew University of Jerusalem, 29 January 2006); M. ROSENFELD, ‘Le constitutionnalisme comparé en mouvement: d’une controverse américaine sur les références jurisprudentielles au droit étranger’, in: P. Legrand (ed.), Comparer les droits, résolument, Paris: PUF, 2009, p. 561;

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24 | Part A Introduction

d) Legal science – a largely national science Over the last years, certain courts have once again emphasised the fact that, although comparativa est omnis investigatio and “all forms of higher knowledge consist of comparison”,10 the law remains a largely national science. The Federal Supreme Administrative Court of Germany accordingly declared in a 1992 judgment that “[d]ie Rechtswissenschaft ist eine national geprägte Wissenschaft”11 (legal science is a nationally characterised science). A German court of appeal expressly supported this view in a judgment in 2004. This case related to the legitimacy of an agreement reached between a lawyer and his client concerning legal fees calculated according to the final result – Erfolgshonorare or contingency fees,12 valid in US law but prohibited and hitherto deemed contrary to moral and legal standards by German law. e) Lack of knowledge of foreign law and linguistic barriers According to yet another argument, it is evident that the national legislator would not expect courts to have knowledge of foreign law. This knowledge would, however, be necessary to correctly employ the comparative method. Given that judges did not know or, at best, only knew a little foreign law, use of the comparative method would open the door to error, to the danger of an incorrect understanding, and to a false interpretation of foreign law.13 Added to which, there were often also linguistic barriers that have made understanding foreign law particularly difficult and multiplied the risks of error.14 Because I. EISENBERGER, ‘Wer fürchtet sich vor einem Verfassungsrechtsvergleich? Gedanken zur Rechtsvergleichung in der Judikatur des US Supreme Court’, JRP 2010, 216 at 217: “Rechtsvergleichung am SC ist beinahe so alt wie die Institution selbst. Ebenso alt wie die Rechtsvergleichungspraxis ist die Kritik daran”. 10 M. FREELAND, ‘Introduction: Comparative and International Law in the Courts’, in: G. Canivet/M. Andenas/D. Fairgrieve (eds.), Comparative Law before the Courts, London: BIICL, 2005, p. xvii. 11 BVerwG, 30.06.1992 (on the recognition of a Polish Master of Laws degree), NJW 1993, 276. 12 OLG Celle, 26.11.2004, NJW 2005, 2160 f.: “Rechtsvergleichung kann Gemeinsamkeiten und Unterschiede der Rechtsordnungen deutlich machen. Sie kann auch dem Richter eine Auslegungshilfe im Sinne einer ‘fünften Auslegungsmethode’ … sein. Die praktische Bedeutung einer solchen Vorgehensweise ist freilich bislang sehr gering geblieben. Außerhalb des durch Kollisionsnormen bestimmten Bereichs können im Wege der Rechtsvergleichung gewonnene Erkenntnisse nur dort einfließen, wo das eigene Recht ‘offen’ ist und damit Interpretationsspielräume lässt … Auch darf die Bindung des Richters an Recht und Gesetz (Art. 20 III GG) nicht in Frage gestellt werden und muss weiter bedacht werden, dass mit der Übertragung von Rechtsgrundsätzen einer fremden Rechtsordnung, und zwar besonders dann, wenn diese einer anderen Rechtsfamilie angehört, in die eigene Rechtsordnung vorsichtig umzugehen ist”. 13 See on this argument E. HONDIUS, ‘Comparative Law in the Court-Room: Europe and America Compared’, in: A. Büchler/M. Müller-Chen (eds.), Festschrift für Ingeborg Schwenzer zum 60. Geburtstag, Vol. 1, Bern: Stämpfli, 2011, 759 at 769: “The high quality of the [foreign] expert opinions is apparent from the reports on Dutch law. And yet … when reading the expert opinion on Dutch law, I sometimes know almost for certain that a Dutch court would decide differently now”; MCCRUDDEN (fn. 4), at p. 526; REED (fn. 4), at p. 264. 14 REED (fn. 4), at p. 264: “[M]any British judges (and counsel) are effectively monolingual, so that decisions must either come from an English-speaking jurisdiction or be translated … [M]ost of the world’s case law is in reality inaccessible to most British lawyers”; YOUNG (fn. 6), at p. 166:

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of language barriers one US author (and comparatist) has made the proposal to leave aside “foreign-language law” when comparing.15 Last but not least, the judge would simply not have the time and resources necessary to systematically carry out comparative research.16 f) The danger of cherry picking Some have voiced criticism regarding the courts’ over-selective citing of foreign law. It would always be possible to find support in some countries for a solution that is favoured by the courts. In contrast, diverging solutions in other countries would not always be invoked. In certain cases, the courts relied on the comparative argument, whereas they rejected comparison when the solution found in foreign law differs from that which was preferred by the court. Here the argument in question is that of cherry picking. It has been used frequently by critics of the comparative approach in recent discussion in the USA and notably by judge Antonin Scalia.17 All of these arguments therefore seem to speak against the use of the comparative method by the courts.

both decision costs and error costs “seem likely to be high for American courts dealing with foreign materials, given language and cultural barriers and most American lawyers’ lack of training in comparative analysis”. See on this issue also J. BELL, ‘Le droit comparé au Royaume-Uni’, in: X. Blanc-Jouvan et al., L’Avenir du droit comparé, un défi pour les juristes du nouveau millénaire, Paris: Société de Législation comparée, 2000, p. 283; B. MARKESINIS/J. FEDTKE, ‘The Judge as Comparatist’, Tul. L. Rev. 2005–2006, 11 at 114. 15 J. STAPLETON, ‘Benefits of Comparative Tort Reasoning: Lost in Translation’, JTL 2007, 6 at 33, introducing the notion of “comparative foreign-language law”: “[T]he general indifference of North American and Australasian courts and practitioners to the tort law of foreign-language jurisdictions seems a wise response from inescapable phenomena. For them there is no more to be reliably derived from foreign-language jurisdictions than from English-speaking ones […]: moreover, there are added perils of misinterpretation”; published also in: M. Andenas/D. Fairgrieve (eds.), Tom Bingham and the Transformation of the Law: A Liber Amicorum, Oxford: OUP, 2009, p. 773. 16 See the example given by HONDIUS (fn. 13), p. 759 at 773. 17 SCALIA (fn. 5), at p. 309: “Adding foreign law […] is much like legislative history, which ordinarily contains something for everybody and can be used or not used, used in one part or in another, deemed controlling or pronounced inconclusive, depending upon the result the court wishes to reach […] The Court’s reliance has also been selective as to when foreign law is consulted at all”; ibid.: “To invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decision-making but sophistry”, dissenting opinion in Roper v. Simmons, US SC, 543 U.S. 551 [2005], 627; see also Chief Justice of the US SC J. ROBERTS: “In foreign law, you can find anything you want. If you don’t find it in the decisions of France or Italy, it’s in the decisions of Somalia or Japan or Indonesia or wherever. As somebody said in another context, looking at foreign law for support is like looking over a crowd for support and picking out your friends […] And that actually expands the discretion of the judge. It allows the judge to incorporate his or her own personal preferences, cloak them with the authority of precedent […] and use that to determine the meaning of the Constitution”, in: US Senate Judiciary Committee, Hearing on the Nomination of John Roberts to be Chief Justice of the Supreme Court, Transcript, Day Two, Part III, 13.09.2005; see also R. POSNER, Legal Affairs, July/August 2004, at http://www.legalaffairs.org/ issues/July-August-2004/feature_posner_julaug04.msp.

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26 | Part A Introduction

2. Widening horizons – arguments in favour of the use of comparative methodology by the courts The question thus is, on the one hand, whether, and to what extent, these arguments are convincing; and on the other hand, whether there are arguments favouring the use of comparative law by the judge when interpreting and applying domestic law. a) Cherry picking – an apprehension that has not been confirmed by court practice The danger of cherry picking is not unique to the comparative argument. The risk exists equally in relation to differing opinions in doctrine and case law which can also be used and cited very selectively by courts.18 Therefore, provided that the comparative method is used as seriously and in an equally balanced manner as every other method of interpretation, the danger of cherry picking does not question the legitimacy of comparison. In fact, numerous examples show that courts choose the jurisdictions for comparison very carefully and do not hesitate to cite foreign law in situations where the solution under foreign law differs from that preferred by the court. In these cases, comparative law is used in order to highlight the specificities of one’s own domestic law.19 b) Information on foreign law increasingly accessible In order to avoid error and misunderstanding as to the content of foreign law, and so that the court has a solid basis for the use of the comparative method, it is effectively essential that the judge is provided with trustworthy, sound and reliable information on the substance of foreign law.20 This information is now available for numerous points of law. First of all, and most obviously, the Internet makes access to information on foreign law and foreign case law much easier. Moreover, several institutions and research groups, and numerous comparatists substantially contribute to the circulation of knowledge on foreign law. To name just some of the particularly active institutions and groups, it is possible to mention the International Institute for the Unification of Private Law (UNIDROIT), the Commission 18 See R. GLENSY, ‘Which Countries Count? Lawrence v. Texas and the Selection of Foreign Persuasive Authority’, VJIL 2005, 357 at 401 ff.; MCCRUDDEN (fn. 4), at p. 517: “[T]here are also increasing numbers of judges in particular jurisdictions who appear to consider it important to distinguish judgments of foreign courts if they go against the conclusions that the judge intends to reach”; S. BREYER, ‘Judge of the US Supreme Court’, in: U.S. Association of Constitutional Law Discussion: Constitutional Relevance of Foreign Court Decisions (2005), transcript by Federal News Service, Washington D.C., at http://www.freerepublic.com/focus/f-news/1352357/posts. 19 For examples and references see below section III.2.d), pp. 41 f. For criteria for choosing the jurisdiction for comparison, see e.g. MCCRUDDEN (fn. 4), at pp. 517 ff.; REED (fn. 4), at pp. 264, 271; GLENSY (fn. 18), at pp. 401 ff.; A. FRIEDMAN, ‘Beyond Cherry-Picking: Selection Criteria for the Use of Foreign Law in Domestic Constitutional Jurisprudence’, Suffolk U. L. Rev. 2011, 873. 20 MCCRUDDEN (fn. 4), at p. 527: “(in general) a judge or court in one jurisdiction will not use case law from another jurisdiction unless it is considered to be comparable, and unless the judge or court feels adequately informed about the other jurisdiction”; see also T. BINGHAM, Widening Horizons: The Influence of Comparative Law and International Law on Domestic Law, Cambridge: CUP, 2010, p. 5, who reminds us incidentally that “few human activities are free from the risk of error and judicial decision-making is no exception”.

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on European Contract Law, the Study Group on a European Civil Code, the Research Group on Existing EC Private Law, the Academy of European Private Lawyers, the Trento Group working on a Common Core of European Private Law, the European Group of Tort Law, and the European Centre of Tort and Insurance Law (ECTIL), as well as the Leuven and Maastricht group of researchers working under the leadership of Walter van Gerven on the “Ius Commune Casebooks for the Common Law of Europe”. Some of these groups count among their members researchers from all European jurisdictions, others, researchers from around the world. They seek to make available entire libraries containing reliable and up-to-date information on foreign laws. A large majority of this information is published in English, thus facilitating access.21 It is also possible to mention the numerous comparative analyses that are published in European law journals, such as the European Review of Private Law (ERPL), the Maastricht Journal of European and Comparative Law, the Columbia Journal of European Law, the Zeitschrift für Europäisches Privatrecht (ZEuP), and the Rivista di diritto pubblico comparato ed europeo, published in English, German and Italian respectively. Providing reliable information on foreign and comparative law, in easily accessible languages, is therefore the responsibility of comparatists and researchers using a comparative approach in their publications. English judges have expressly noted that without these publications, comparison would not have been possible for the court.22 In a case brought before the court, it is also possible for this comparative research to be carried out on an ad hoc basis by comparative law institutions and lawyers23 (or their trainees) trained in comparative law.24 Christopher McCrudden recalls that when “lawyers appearing before the courts, or clerks assisting the judge, give the judge confidence, then the decisions of foreign systems are more likely to be cited”.25

21

A reading proficiency in English, French and German gives access to the law of nine European jurisdictions in the original language, and beyond that to further common law jurisdictions as well as to further jurisdictions belonging to the French legal tradition. 22 See e.g. Lord GOFF OF CHIEVELEY, White v. Jones [1995] 2 AC 207, All ER 691 at 705 (HL): “[I]n the present case, thanks to material published in our language by distinguished comparatists, German as well as English, we have direct access to publications which should sufficiently dispel our ignorance of German law and so by comparison illuminate our understanding of our own”. 23 This was the case e.g. in Tabet v. Gett [2010] H.C.A. 12; or in the English case A and others v. The National Blood Authority [2001] 3 All ER 289. See also H. KÖTZ, ‘Alte und neue Aufgaben der Rechtsvergleichung’, JZ 2002, 257 at 259: lawyers “sind sich offenbar noch nicht genügend des Umstands bewusst, dass ein für ihre Mandanten günstiger Rechtsstandpunkt sich in vielen Fällen auf rechtsvergleichende Argumente stützen lässt” (apparently lawyers are not yet sufficiently aware that they can use comparative law in order to further the interests of their clients); HONDIUS (fn. 13), p. 759 at 777; for England e.g. Lord STEYN, The Constitutionalisation of Public Law, London: Constitution Unit, 1999, p. 51 at 58: “Law Lords expect a high standard of research and interpretation from barristers … For example, if the appeal involves a statutory offence we would expect counsel to be familiar with … comparative material from, say, Australia and New Zealand”. 24 For a method of teaching comparative law that prepares the students for this task, see above, Chapter 2, pp. 5 ff., and the method taught in this book. 25 MCCRUDDEN (fn. 4), at p. 526.

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28 | Part A Introduction

Thanks to this information on foreign law, error and misunderstanding in the substance of foreign law can be avoided. Consequently, this argument does not question the legitimacy and practicability of comparison either. Ruth Bader Ginsburg, judge at the US Supreme Court, has stated in this respect: “[W]e should approach foreign legal materials with sensitivity to our differences, deficiencies, and imperfect understanding, but imperfection, I believe, should not lead us to abandon the effort to learn what we can from the experience and good thinking foreign sources may convey”.26 c) Access to foreign law – the private international law argument In cross-border cases which present closer links with a foreign legal system than with the law of the jurisdiction in which a legal action is brought, the forum’s private international law sometimes obliges the court to resolve the case solely on the application of foreign law. The existence of private international law rules clearly shows that the legislators believe it is possible for the national judge to be informed about the substance of foreign law in a reliable and trustworthy way.27 d) The comparative methodology – a method of interpretation like any other It is clear that the national legislator does not expect courts or lawyers to know foreign law as they know domestic law. It is equally clear that judges and lawyers cannot resort to the comparative method in every case. In situations where such knowledge is not available or accessible, the court cannot be expected to use the comparative approach. However, in cases where content of foreign law is brought to the attention of the court, the judges are in a position to build on this knowledge and to use the comparative arguments when interpreting domestic law.28 The fact that the comparative method can be used in some cases and not in others is not unique to this method. While the literal rule and perhaps also the purposive approach are methods of interpretation that are always available to the court, this is not the case for other methods of statutory interpretation. This is true notably in relation to the historical interpretation, which draws inspiration from the legislative history of the law, and the systematic interpretation, both of which will assist the judge, much like the comparative method, in his or her search for a solution to specific problems in some cases and not in others.

26

R. BADER GINSBURG, ‘“A Decent Respect to the Opinions of [Human]kind”: The Value of a Comparative Perspective in Constitutional Adjudication’, C.L.J. 2005, 575 at 580. 27 In some jurisdictions, such as Switzerland, the judge establishes the content of foreign law ex officio, see Art. 16 sect. 1 LDIP; in other jurisdictions, he or she can require that the parties contribute to the establishment of the content of foreign law or, for certain areas of law, that they establish its content altogether, see LORD COLLINS OF MAPESBURY et al. (eds.), Dicey, Morris & Collins on the Conflict of Laws, 15th ed., London: Sweet & Maxwell, 2016, Vol. 1, §§ 9R-001 ff.; see also E. ÖRÜCÜ, ‘Comparative Law in Practice: The Courts and the Legislator’, in: E. Örücü/ D. Nelken (eds.), Comparative Law: A Handbook, Oxford: Hart, 2007, p. 411 at 414, 418. 28 For the important role that lawyers might play in this respect, see above, section II.2.b), p. 27 (fn. 23).

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e) Revival of a European legal science The argument that legal science is a largely national science is another argument against the use of comparative law that barely convinces. Throughout a large part of the 20th century, in countries such as Germany and France, legal science was effectively a widely national science. However, in other countries, notably the UK as well as some countries in continental Europe, such as the Netherlands, Belgium, Austria and Switzerland, legal science has never been limited to a single national law. On the contrary, the doctrine in these jurisdictions, and to some extent also the court practice, has a long history of using the comparative approach.29 In the second half of the 20th century, more and more legal scientists argued in favour of an internationalisation (or more accurately, a re-internationalisation30) of legal science.31 These pleas were eventually successful and we observe today a renaissance of a truly international science of law in Europe. In law, ideas and solutions are circulating across borders again. f) The judge’s freedom to choose his or her methods of determining the law – revival of the idea of justice that transcends borders Another argument against the use of the comparative method asserts that every law and judgment is the result of a weighing of interests which would necessarily have to take place within each country’s own cultural context.32 This argument overlooks the fact that, these days, the national legislators themselves rely on extensive comparative research in practically every important legislative procedure and, at any rate, in matters of private law. Here just a few recent examples are cited. The recent codifications in the Baltic States have largely taken inspiration from comparative studies. The Estonian legislator has followed the example of the German Civil Code in his new codification of the law of obligations (and introduced, for example, a general part in the new Law of Obligations and, in torts, codified the essence of a century of German case law). The legislator has also widely taken inspiration from Swiss law, Dutch law, the laws of Quebec and Louisiana, the United Nations Convention on Contracts for the International Sale of Goods (CISG), the Principles of European Contract Law and the UNIDROIT Principles of International Commercial Contracts.33 The new Lithuanian Civil Code of 2000 takes inspiration, amongst others, from the codifications and statutes of the Netherlands, 29

References below, section III, pp. 36 ff. See also HONDIUS (fn. 13), at p. 759 at 765: “It has been suggested that, if one wishes to consider legal research a science, [focusing on domestic developments] is the wrong attitude. Science knows no borders, and legal science is no exception.” 30 Before the period of the codification of the law started on the continent, legal discourse on the continent was truly European in using the same language, Latin; see e.g. R. ZIMMERMANN, The Law of Obligations: Roman Foundations of the Civilian Tradition, Oxford: Clarendon Press, 1996; idem, ‘Das römisch-kanonische ius commune als Grundlage europäischer Rechtseinheit’, JZ 1992, 8; H. COING, Die ursprüngliche Einheit der europäischen Rechtswissenschaft, Wiesbaden: Franz Steiner Verlag, 1968, pp. 10, 17; for the situation in private international law, see T. KADNER GRAZIANO, Gemeineuropäisches Internationales Privatrecht, Tübingen: Mohr Siebeck, 2002, pp. 46–59. 31 For references see e.g. T. KADNER GRAZIANO, Comparative Contract Law: Cases, Materials and Exercises, Basingstoke/New York: Palgrave Macmillan, 2009, pp. 7 ff. 32 See above, section II.1.c), p. 23, with references. 33 P. VARUL, ‘Legal Policy Decisions and Choices in the Creation of New Private Law in Estonia’, Juridica International 2000, 104 ff.

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30 | Part A Introduction

Quebec, Germany, France, Italy, Switzerland, Sweden, Latvia, Japan and Russia, as well as from the CISG and the UNIDROIT Principles.34 Polish law has recently taken inspiration from German and Dutch law, as well as the CISG and the Principles of European Contract Law. In Central and Eastern European countries, the comparative method plays such an important role in modern legislation that it was affirmed that “the main method used for private law in today’s legislative drafting is the comparative method”.35 In 2002, the German Civil Code (the BGB) experienced the most important reform since it came into force in 1900.36 Initiated by a European Directive, the drafting process of this reform took inspiration from a wide range of European jurisdictions.37 In China, important law reforms have taken place over the last 15 years, in particular with the adoption of the Chinese Contract Act of 1999, the Law of Property Act of 2007 and the Tort Law Act of 2010. Among the sources of inspiration for the Contract Act were the codifications of Germany, Japan and Taiwan, the English common law and US law, as well as the CISG, the UNIDROIT Principles of International Commercial Contracts and the Principles of European Contract Law.38 The new Law of Property Act drew inspiration from the laws of Germany, France, Japan and Taiwan and from some aspects of English and US law.39 In 2010, a first draft version of a Chinese Civil Code was presented. The structure of the draft code was inspired by the example of the Pandects and by Dutch law.40 These varied examples show that preparing legislation in the field of private law does not take place in a context that is purely specific to each state, but within the context of a European-wide discussion, or, in the case of Chinese law, the CISG and the UNIDROIT Principles, on a worldwide scale. The fact that the legislator himself uses the comparative method in the preparation of domestic law has an important implication for its interpretation: if the legislator takes inspiration from foreign law, because he is inspired by an idea of justice existing beyond state borders, the judge must be able to follow this approach when applying the law. In this sense, Art. 1(2) of the Swiss Civil Code expressly states that “à défaut d’une disposition applicable, le juge prononce selon le droit coutumier et, à défaut d’une coutume, selon les règles qu’il établirait s’il avait à faire acte de législateur” (in the absence of a provision, the court shall decide in accordance with customary law and, in the absence of customary law, in accordance with the rule that it would make as legislator). This provision expresses a general idea according to which the judge is invited to resort to the same sources of 34

S. SELELIONYTE-DRUKTEINIENE/V. JURKEVICIUS/T. KADNER GRAZIANO, ‘The Impact of the Comparative Method on Lithuanian Private Law’, ERPL 2013, 959. 35 VARUL (fn. 33), at p. 107. 36 Gesetz zur Modernisierung des Schuldrechts, BGBl. 2001, I, 3138. 37 See U. HUBER, ‘Das geplante Recht der Leistungsstörungen’, in: W. Ernst/R. Zimmermann (eds.), Zivilrechtswissenschaft und Schuldrechtsreform, Tübingen: Mohr Siebeck, 2001, pp. 104 ff.; P. SCHLECHTRIEM, ‘Das geplante Gewährleistungsrecht’, in: ibid., pp. 205 ff. 38 L. HUIXING, The Draft Civil Code of the People’s Republic of China, English Translation, Leiden/Boston: Martinus Nijhoff, 2010, p. XIX with examples. 39 Ibid., p. XX. 40 Ibid., p. XXII.

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inspiration and methods used by the legislator, notably including the comparative method.41 This is true, as is explicitly stated in Art. 1(2) of the Swiss Civil Code, in the absence of a legal provision. In many jurisdictions, it is recognised today that this also applies in cases of uncertainty of the law and when interpreting it, since filling gaps in the law and interpreting it are merely two sides of the same coin.42 The Swiss Federal Court has consequently stated that “when interpreting the law, all traditional methods of interpretation are to be taken into consideration (systematic, purposive, and historic […] as well as comparative), all of which are used by the Federal Court in a pragmatic way without giving priority or preference to one of these methods over the others”.43 In the same spirit, the highest court in Germany, the Federal Constitutional Court, has repeatedly confirmed that the judge is not bound when it comes to choosing his methods of determining the law. In the 1990s the Constitutional Court held: “Article 20(3) of the Fundamental Law [Grundgesetz, i.e. the German Constitution] requires that the judge decide ‘according to law and justice’. The Constitution does not prescribe a particular method of interpretation (or even a purely literal interpretation).”44 The court further held that: “The courts are bound only by the law and they are not required to follow an opinion that is prevailing in legal doctrine, nor are they obliged to follow the precedents of higher courts; on the contrary, they can follow their own legal opinion and perception of the law […] The judge is required to decide according to law and justice (Art. 20(3) of the Constitution); with respect to the prohibition of arbitrary decisions, the judge has to give reasons for his decision […] In any case, the judge must show that the decision is based on an in depth legal analysis; his view also must not be deprived of objective reasons.”45

In a 1953 ruling, the Federal Constitutional Court expressly recognised the use of the comparative method by the courts to fill gaps in domestic law and to interpret it.46

41 Article 1(2) of the Swiss Civil Code was inspired by the works of the French legal scientist François Gény and thus is itself the fruit of an influence across borders, see F. GÉNY, Méthode d’interprétation et sources en droit privé positif, Vol. 2, 2nd ed., Paris: L.G.D.J., 1919, pp. 326 ff., no. 204; see also T. HENNINGER, Europäisches Privatrecht und Methode, Tübingen: Mohr Siebeck, 2009, p. 80, with further references. 42 K. ZWEIGERT, ‘Rechtsvergleichung als universale Interpretationsmethode’, RabelsZ 1949, 5 at 9. 43 Swiss Federal Supreme Court, 13.01.1998, ATF 124 III 266: “4. […] bei der Auslegung [sind] alle herkömmlichen Auslegungselemente zu berücksichtigen (systematische, teleologische und historische […]; auch rechtsvergleichende […]), wobei das Bundesgericht einen pragmatischen Methodenpluralismus befolgt und es ablehnt, die einzelnen Auslegungselemente einer Prioritätsordnung zu unterstellen […];” French translation in JdT 1999 I 414. 44 BVerfG, 30.03.1993, BVerfGE 88, 145; NJW 1993, 2861 at 2863. 45 BVerfG, 19.07.1995, NJW 1995, 2911. 46 BVerfGE 3, 225 at 244: “Im Übrigen haben die Gerichte sich der erprobten Hilfsmittel, nämlich der Interpretation und Lückenfüllung, unter Verwertung auch der rechtsvergleichenden Methode bedient.”

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In other jurisdictions on the continent, legal provisions defining methods of statutory interpretation by the judge are limited to stating general principles, emphasising the freedom of the judge to interpret and, if necessary, to develop the law.47 For common law and mixed jurisdictions, Robert Reed, judge at the Supreme Court of the United Kingdom, has noted with respect to the freedom of judges to choose their sources of inspiration: “Scottish and English judges have for centuries drawn on ideas developed in other jurisdictions (both common law and civilian) […] Judicial reasoning has been seen as a process of rational inquiry, in which there are not in principle any sources of ideas which are off-limit. Judicial reasoning in this country has not been thought of in national terms, with non-national sources of ideas being regarded as suspect: on the contrary, it has long been thought sensible to consider how others, from Ancient Rome onwards, have resolved similar problems. If judges are free to take account of the views of academic lawyers writing in law reviews, whether they are based in Cambridge, England, or Cambridge, Massachusetts, there would seem to be no reason why the opinions of foreign courts should be off-limits.”48

The courts consequently benefit from a substantial freedom in the choice of the methods they apply to determine the law and they are free with respect to the choice of their sources of inspiration. Numerous examples cited in the third part of this chapter show that in many jurisdictions, judges use the comparative method to fill gaps in domestic law and when interpreting it, without questioning the legitimacy of comparison.49 g) Choice of the most convincing solution while respecting the national legal system The argument that the use of the comparative method risks harming the national legal systems also remains unconvincing. It is true that, in every interpretation of domestic law, the system of the domestic law (be it a national codification or a case law system) must be respected as far as possible. This aim can be achieved through systematic interpretation, which is one of the principal methods of interpretation of law. Indeed, like every other method of interpretation, the comparative interpretation must allow an interpretation and development of the law so that, out of the possible solutions, the most convincing is chosen while preserving coherence within the domestic system of law.50 47 See e.g. §§ 6 f. of the Austrian General Civil Code (ABGB), Art. 1 f. of the Spanish Civil Code (Código civil), Art. 1 f. of the Portuguese Civil Code (Código civil), Art. 1 of the introductory provisions of the Italian Civil Code (Codice civile), Art. 6 of the Russian Civil Code, Art. 1.3 ff. of the Lithuanian Civil Code, Art. 4 f. of the Latvian Civil Code; see also T. HENNINGER (fn. 41), e.g. at pp. 437 ff. with further references. 48 REED (fn. 4), at p. 261 f.; MCCRUDDEN (fn. 4), at p. 527: “the decision whether to use foreign judicial decisions seems largely in the realm of judicial discretion”. 49 For references see below section III, pp. 36 ff. 50 See e.g. G. CANIVET, ‘The Use of Comparative Law Before the French Courts’, in: Canivet/Andenas/Fairgrieve (fn. 10), p. 181 at 183 ff.; ZWEIGERT (fn. 42), at pp. 16 ff.; H. UNBERATH, ‘Comparative Law in the German Courts’, in: Canivet/Andenas/Fairgrieve (fn. 10), p. 307 at 316; see, however, A. FLESSNER, ‘Juristische Methode und Europäisches Vertragsrecht’, JZ 2002, 14: in a period of a renaissance of a common European legal science and of a European ius commune, the systematic interpretation of domestic law should lose its importance when it comes to determining the law.

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h) The authority of foreign law – a persuasive authority It is clear that the judge is bound by domestic law as well as by any provisions of international law in force in his country. Neither foreign statutory law nor foreign case law has democratic legitimacy in the judge’s country. In relation to the use of the comparative method, two consequences follow from this. Firstly, when the text of domestic law in force in the judge’s country is clear and its interpretation does not leave any room for doubt, the judge is bound by his country’s law. In principle, he cannot deviate from the result prescribed by the law in order to reach another result by using the comparative method; this is even true in cases where the judge finds this other result more adequate, appropriate and fair, taking into account all the interests at stake.51 In such a case, it is in principle52 the role of the legislator (national or international) to solve the problem (if there is a problem). But aren’t situations rare where interpretation of domestic law doesn’t leave space for doubt or a margin of appreciation for the judge? Numerous uncertainties in domestic law, the demands of interpretation, as well as, in some cases, conflicts between traditional rules of civil law and constitutional values, make the scope of application of the comparative methodology very large. Secondly, foreign legislation and case law can never bind the national judge. The authority of foreign law can only be a persuasive authority.53 The more the values in two 51 See e.g. Bell v. Peter Browne & Co. [1990] 2 Q.B. 495 (Mustill LJ) with respect to the concurrence of liability in contract and tort: “Other legal systems seem to manage quite well by limiting attention to the contractual obligations which are, after all, the foundation of the relationship between the professional man and his client [citing French law] […] Nevertheless the [English] law is clear and we must apply it”; see for the discussion in the USA, JACKSON (fn. 9), at p. 125: “[T]he legitimacy of looking to foreign experience will vary with the issue, depending on the specificity and history or our constitutional text, the degree to which the issue is genuinely unsettled, and the strength of other interpretative sources”. 52 For this rule and its limits, see e.g. the Swiss Federal Supreme Court, 28.11.2006, ATF 133 III 257 (“parrots case”), 265 cons. 2.4: “Ergibt die Auslegung eines Bundesgesetzes auf eine Rechtsfrage eine eindeutige Antwort, so ist diese gemäss Art. 19 Bundesverfassung für das Bundesgericht und die anderen rechtsanwendenden Behörden massgebend. Diese dürfen daher nicht mit der Begründung von Bundesrecht abweichen, es … entspreche nicht dem (künftig) wünschbaren Recht … Eine Abweichung von einer Gesetzesnorm ist jedoch zulässig, wenn der Gesetzgeber sich offenkundig über gewisse Tatsachen geirrt hat oder sich die Verhältnisse seit Erlass des Gesetzes in einem solchen Masse gewandelt haben, dass die Anwendung einer Rechtsvorschrift rechtsmissbräuchlich wird”. (Translation: If the interpretation of a federal law leads to a clear result, then, according to Art. 19 of the Federal Constitution, the Federal courts and all other law-applying authorities are bound by it. They cannot deviate from federal law arguing that the result under this legal provision is … undesirable. It is however possible to deviate from a legal provision in cases where the legislator has obviously committed an error or when the circumstances have changed since the enactment of the provision to the point that its application would constitute an abuse of right.) 53 See e.g. P.K. TRIPATHI, ‘Foreign Precedents and Constitutional Law’, Colum. L. Rev. 1957, 319 at 346: “When a judge looks to foreign legal systems for analogies that shed light on any of the new cases before him, he is looking to legal material which he is absolutely free to reject unless it appeals to his reason”; JACKSON (fn. 9), at p. 114: “Transnational sources are seen as interlocutors, offering a way of testing and understanding one’s own traditions and possibilities by examining them in the reflection of others”; A. PARRISH, ‘Storm in a Teacup: The U.S. Supreme Court’s Use of Foreign Law’, U. Ill. L. Rev. 2007, 637 at 674: “Foreign law is persuasive authority: nothing

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countries are similar or shared, the more important is the persuasive authority of the other country’s law.54 The more a certain issue is politically sensitive, and the more particular circumstances in a given country led to the adoption of a specific rule or result, the less willing will judges be to draw inspiration from foreign law and experience. This is possibly the reason why the use of comparative law in certain constitutional issues before the US Supreme Court has been particularly controversial and disputed over the last years, whereas the use of this same method goes without saying in matters of private law in the USA.55 i) Soft harmonisation of the law within the context of regional integration Finally, the use of the comparative method is justified nowadays in Member States of the European Union by the membership of these countries in the Union. According to Art. 3(3) of the Treaty on European Union, the Union sets itself the objective, among others, of establishing an internal market and promoting economic cohesion among Member States. The convergence of provisions applicable to economic relations contributes notably to the achievement of this aim, in areas such as contract law, tort law and, for certain questions, property law. In such matters, a comparative interpretation can result in “soft harmonisation” of the law which constitutes, at least for some matters, an interesting alternative to harmonisation through enacting legislation. In relation to this, Walter Odersky, the former President of the German Federal Supreme Court of Justice, has written: “The national judge has not only the right to rely on interpretations from other legal systems and courts in his judgment, but also the right, when applying domestic law, and naturally when weighing up all interests and points of view to be taken into consideration in the interpretation and development of the law, to attach a certain importance to the fact that the solution in consideration contributes to the harmonisation of European law. Following this reasoning, the judge may, if needs be, follow the solution from another legal system as the result of a weighing of interests. With the progressive process of European integration, the judge should use this reasoning more and more often.”56

According to Christopher McCrudden the impulse to use comparative law “will be strongest […] when the integration is set out explicitly as a political programme, with institutional characteristics, such as in Europe. Indeed, the comparative method is there explicitly built into the fabric of judicial decision-making”.57

more, nothing less”; and S. YEAZELL, ‘When and How U.S. Courts Should Cite Foreign Law’, Const. Comment. 2009, 59 at 69: “[I]ts persuasiveness has nothing to do with its origin.” 54 For criteria for choosing the jurisdiction for comparison, see the references in fn. 19. 55 See fn. 9. The persuasive authority of the comparative argument loses weight if the fundamental values differ from one jurisdiction to the other, see e.g. SCALIA (fn. 5), at p. 310: “If there was any thought absolutely foreign to the founders of our country, surely it was the notion that we Americans should be governed the way Europeans are. And nothing has changed.” 56 W. ODERSKY, ‘Harmonisierende Auslegung und europäische Rechtskultur’, ZEuP 1994, 3 (translation from German). 57 MCCRUDDEN (fn. 4), at pp. 521 f. (quote on p. 522).

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3. Intermediate conclusions In the search for a solution to a legal dispute, the judge benefits from substantial freedom to choose his sources of legal knowledge and inspiration. In a large number of countries, judges are nowadays convinced that comparative law is one of the legitimate methods of interpretation of domestic law, and rightly so. The examples cited in the following section will show that national courts draw inspiration from foreign solutions when interpreting domestic law. Indeed, important innovations notably in English, German, Austrian, Swiss and US judicial law have taken inspiration from comparison with solutions that are in force abroad.58 In current US discussion, Ruth Bader Ginsburg, judge of the US Supreme Court, has written: “The US judicial system will be poorer, I believe, if we do not both share our experience with, and learn from, legal systems with values and a commitment to democracy similar to our own […] [W]e are not so wise that we have nothing to learn from other democratic legal systems newer to judicial review for constitutionality.”59

Sonia Sotomayor, appointed in 2009 to the US Supreme Court, stated, in the year of her appointment: “[T]o the extent that we have freedom of ideas, international law and foreign law will be very important in the discussion of how to think about the unsettled issues of our legal system”.60 Sandra Day O’Connor expressed the opinion that the judges on the court will find themselves “looking more frequently to the decisions of other constitutional courts […] All of these courts have something to teach […] about the civilizing functions of constitutional law”.61 Following an analysis of the use of the comparative method by courts in Europe, undertaken at the British Institute of International and Comparative Law, Mads Andenas, Duncan Fairgrieve, Guy Canivet (at that time Premier Président of the French Cour de Cassation), and the English judge of the House of Lords, Lord Goff of Chieveley, summarised the analysis in relation to the current role of the comparative method before European courts: “Comparative law is increasingly recognized as an essential reference point for judicial decision-making”.62 According to Canivet, “the use of comparative law 58

See the references below, section III. BADER GINSBURG (fn. 26), at p. 576. Available also at https://www.supremecourt.gov/ publicinfo/speeches/viewspeech/sp_08-02-10. 60 In: S. GROVES, ‘Questions for Justice Sotomayor on the Use of Foreign and International Law’, The Heritage Foundation, July 6, 2009, at https://www.heritage.org/courts/report/questionsjudge-sotomayor-the-use-foreign-and-international-law, note 12 and accompanying text (transcript of Judge S. SOTOMAYOR’S April 2009 Speech to the American Civil Liberties Union of Puerto Rico). 61 S. DAY O’CONNOR, ‘Broadening our Horizons: Why American Judges and Lawyers Must Learn About Foreign Law’, Int’l Jud. Observer 1997, 2. The following judges of the US Supreme Court have favoured the use of the comparative method by the court in recent years: Justices Day O’Connor, Stevens, Souters, Kennedy, Bader Ginsburg, Breyer and Sotomayor. The following judges have spoken against the use of this method: Chief Justices Rehnquist and Roberts and Justices Scalia, Thomas and Alito. 62 In: G. Canivet/M. Andenas/D. Fairgrieve (fn. 10), at pp. v and vii. 59

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is essential to the fulfilment of a supreme court’s role in a modern democracy”.63 Andenas and Fairgrieve come to the conclusion that “[c]ourts make use of comparative law, and make open reference to it, to an unprecedented extent […] Comparative law has become a source of law”.64 Tom Bingham concludes that: “Judicial horizons have widened and are widening”.65

III. COMPARATIVE LAW IN COURT PRACTICE 1. Introduction If it is legitimate to compare, is it beneficial and appropriate for the courts to resort to the comparative method? Do the benefits of the comparative method justify the sometimes considerable effort that the comparative approach demands? In some countries, judges are nowadays convinced of the benefits of this method. An analysis of around 1500 judgments of the Swiss Federal Court has shown that in around 10 per cent of cases the court refers to one or more foreign legal systems for the purpose of comparison.66 In matters concerning tort law, over the last few years, the percentage of the Federal Court’s judgments that use the comparative approach has exceeded 20 per cent.67 In other countries on the continent, the courts occasionally resort to the comparative method.68 63

Ibid., p. 181. Ibid., p. xxvii. 65 BINGHAM (fn. 20), at p. 3. 66 See the excellent analysis by A. GERBER, ‘Der Einfluß des ausländischen Rechts in der Rechtsprechung des Bundesgerichts’, in: Institut Suisse de Droit Comparé (ed.), Perméabilité des ordres juridiques, Zürich: Schulthess, 1992, pp. 141–163. 67 T. KADNER GRAZIANO, ‘Entwicklungstendenzen im schweizerischen ausservertraglichen Haftungs- und Schadensrecht’, in: P. Jung (ed.), Aktuelle Entwicklungen im Haftungsrecht, Zurich: Schulthess, 2007, p. 1, no. 3. 68 For France see R. LEGEAIS, ‘L’utilisation du droit comparé par les tribunaux’, Rev. int. de droit comparé 1994, 347; CANIVET (fn. 50), at p. 181, in particular pp. 190 ff. Canivet reminds us, however, that the very particular style of reasoning of the French Cour de cassation does not allow the judge to reveal his sources of inspiration, p. 187. For Spain: J. CANIVELL, ‘Comparative Law before the Spanish Courts’, in: Canivet/Andenas/Fairgrieve (fn. 10), at pp. 211 ff. For Germany: H. KÖTZ, ‘Der Bundesgerichtshof und die Rechtsvergleichung’, in: A. Heldrich/K. J. Hopt (eds.), 50 Jahre Bundesgerichtshof: Festgabe aus der Wissenschaft, Vol. II, Munich: C.H. Beck, 2000, p. 825; U. DROBNIG, ‘The Use of Foreign Law by German Courts’, in: U. Drobnig/S. van Erp (eds.), The Use of Comparative Law by the Courts, The Hague: Kluwer Law International, 1999, p. 127, with references for the period from 1950 to 1980; U. DROBNIG, ‘Rechtsvergleichung in der deutschen Rechtsprechung’, RabelsZ 1986, 610; UNBERATH (fn. 50). For the influence of German law on English, Swiss and Austrian law, see: K. SCHIEMANN, ‘Aktuelle Einflüsse des deutschen Rechts auf die richterliche Fortbildung des englischen Rechts’, EuR 2003, 17; H. HONSELL, ‘Rezeption der Rechtsprechung des Bundesgerichtshofs in der Schweiz’, in: 50 Jahre Bundesgerichtshof, supra, Vol. II, p. 927; H. KOZIOL, ‘Rezeption der Rechtsprechung des Bundesgerichtshofs, in: 50 Jahre Bundesgerichtshof, supra, Vol. II, p. 943; for Dutch law: HONDIUS (fn. 13), at p. 764. See also the contributions in: Canivet/Andenas/Fairgrieve (fn. 10); T. KOOPMANS, ‘Comparative Law and the Courts’, ICLQ 1996, 545; MARKESINIS/FEDTKE (fn. 14), at p. 11. 64

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In English law, judgments in which the judges not only cite decisions from other common law jurisdictions, but also the laws, judgments and doctrine from continental Europe, have multiplied over the last few years.69 According to a recent study, for the period 1996–2005, between 25 and 33 per cent of House of Lords decisions included comparative references to other legal systems.70 Some of the judgments that have benefitted from looking beyond borders are among the most prominent cases in English legal history, such as Hadley v. Baxendale,71 which concerned the scope of damages for breach of contract. Tom Bingham, former judge of the House of Lords, wrote in relation to this judgment that “sometimes seen as a fine flowering of common law jurisprudence, the immediate source of the rule [in Hadley v. Baxendale] were the French Code Civil, Pothier’s Treatise on the Law of Civil Obligations, Kent’s Commentaries, and Sedgwick’s Treatise on Damages, none of them works of indigenous origin”.72

69 See M. NOUNCKELE, De la légitimité de la comparaison par les juges – Etude de la jurisprudence de la House of Lords de 1996 à 2005 (study prepared at the University of Louvain-la-Neuve, 2011); E. ÖRÜCÜ, ‘Comparative Law in Practice: The Courts and the Legislator’, in: Örücü/Nelken (fn. 27), at p. 411; ‘Comparative Law in British Courts’, in: Drobnig/van Erp (fn. 68), at p. 253; K. SCHIEMANN, ‘Recent German and French Influences on the Development of English Law’, in: R. Schulze/U. Seif (eds.), Richterrecht und Rechtsfortbildung in der Europäischen Rechtsgemeinschaft, Tübingen: Mohr Siebeck, 2003, p. 189. See e.g. the English cases: Woolwich Building Society v. Inland Revenue Commissioners (No. 2), [1993] AC 70, [1992] 3 All ER 737 (HL): citing German law; Henderson v. Merrett Syndicates Ltd, [1995] 2 AC 145; White v. Jones, [1995] 2 AC 207, 1 All ER 691, comparison with the laws of Germany, New Zealand, California, the USA, France and the Netherlands; Antwerp United Diamonds BVBA v. Air Europe, [1996] Q.B. 317, [1995] 3 All ER 424, comparison with Dutch and Belgian case law; Hunter v. Canary Wharf Ltd, [1997] AC 655; Kleinwort Benson Ltd v. Lincoln CC, [1999] 2 AC 349; McFarlane v. Tayside Health Board, [2000] 2 AC 59; Arthur JS Hall & Co v. Simons, [2002] 1 AC 615, [2000] 3 All ER 673; Alfred McAlpine Construction Ltd v. Panatown Ltd, [2001] 1 AC 518: comparison with German law; Greatorex v. Greatorex, [2000] 4 All ER 769, [2000] 1 WLR 1970; A v. National Blood Authority, [2001] 3 All ER 289; Fairchild v. Glenhaven Funeral Services Ltd, [2003] 1 AC 32, [2002] UKHL 22, [2002] 3 All ER 305 (HL), damage following exposure to asbestos, comparison with the laws of Germany, Austria, Norway, Canada, Australia, Italy, South Africa and Switzerland; Campbell v. Mirror Group Newspapers Ltd, [2004] AC 457, [2004] 2 All ER 995, liability for the invasion of personality rights and the violation of a person’s privacy, comparison with German and French law; The Starsin, [2004] 1 AC 715, [2003] 2 All ER 785; Douglas and others v. Hello! Ltd, [2005] EWCA Civ 595; National Westminster Bank plc. v. Spectrum Plus Ltd, [2005] UKHL 41, comparison with the laws of the USA, India, Ireland and Canada. 70 NOUNCKELE (fn. 69). 71 [1854] 9 Ex Ch 341. 72 BINGHAM (fn. 20), at p. 5. See for the USA e.g. MINOW (fn. 9), at section III. She stresses that Brown v. Board of Education, 347 U.S. 483 (1954), one of the most famous decisions of the US Supreme Court, has benefitted from foreign input; see also GLENSY (fn. 18), at p. 361: “United States Courts have, from the founding of the nation to the present day, referenced foreign legal sources in a variety of different contexts […] [E]xamples can be taken from almost every period of this nation’s history”, with numerous references.

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Comparison is no longer limited to private law.73 An increasing number of public or constitutional law courts have also resorted to the comparative method. In the USA, Justice Scalia, despite being opposed to the comparative approach, has stated: “In many […] cases, opinions for the Court have used foreign law for the purpose of interpreting the Constitution […] I expect […] that the Court’s use of foreign law in the interpretation of the Constitution will continue at an accelerating pace […] [U]se of comparative law in our constitutional decisions is the wave of the future.”74

Based on an international survey, Christopher McCrudden, constitutional lawyer at Queen’s College, University of Belfast, found: “It is now commonplace in many jurisdictions as well as for courts to refer extensively to the decisions of foreign jurisdictions when interpreting human rights guarantees”.75 The Constitution of the Republic of South Africa of 1996 expressly invites courts to use the comparative method in matters concerning fundamental rights. The provision states: “When interpreting the Bill of Rights, a court, tribunal or forum … (b) must consider international law; and (c) may consider foreign law”.76 The Constitutional Court of South Africa is consequently today among the most active actors regarding a transnational judicial discourse.77 2. Benefits of using the comparative methodology The reasons to resort to the comparative method, the aims pursued by the courts by comparing, and the assets of this method are plentiful.78

73

See e.g. C. MCCRUDDEN, ‘Judicial Comparativism and Human Rights’, in: Örücü/Nelken (fn. 27), at p. 371: “Courts are playing an impressive role in the creation of what some see as a ‘common law of human rights’ or, in the context of Europe, ‘a ius commune of human rights’”; MCCRUDDEN (fn. 4), at pp. 499 ff.; A.-M. SLAUGHTER, ‘A Global Community of Courts’, Harv. Int’l L. J. 2003, 191; P. HÄBERLE, ‘Grundrechtsgeltung und Grundrechtsinterpretation im Verfassungsstaat – Zugleich zur Rechtsvergleichung als “fünfte Auslegungsmethode”’, JZ 1989, 913; S. BAER, ‘Verfassungsrechtsvergleichung und reflexive Methode: Interkulturelle und intersubjektive Kompetenz’, ZaöRV 2004, 735; C. FUCHS, ‘Verfassungsvergleichung durch den Verfassungsgerichtshof’, JRP 2010, 183 (for Austria): “Dass Verfassungsvergleichung auch für Verfassungsgerichte ein beachtliches Erkenntnispotential bergen kann, ist […] heute weithin anerkannt. Der VerfGH zieht rechtsvergleichende Argumente in der – unausgesprochenen – Annahme ihrer grundsätzlichen Zulässigkeit und Leistungsfähigkeit zur Problemlösung heran.” 74 SCALIA (fn. 5), at pp. 307 ff.; see also Justice BADER GINSBURG (fn. 26), at p. 591: “Recognizing that forecasts are risky, I nonetheless believe we will continue to accord ‘a decent Respect to the Opinions of [Human]kind’ as a matter of comity in a spirit of humility.” 75 MCCRUDDEN (fn. 4), at p. 506. 76 Full text: “When interpreting the Bill of Rights, a court, tribunal or forum (a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom; (b) must consider international law; and (c) may consider foreign law.” 77 See MCCRUDDEN (fn. 4), at p. 506 with references in fn. 26. 78 See GERBER (fn. 66), at pp. 150 ff. (“Gründe für das Heranziehen ausländischen Rechts”).

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a) Positioning the national law in the international legal landscape In some cases, courts cite foreign and international law in order to show that the national law is fully in line with modern solutions or international trends. This is frequently the case in Central or Eastern European countries that have recently reformed and re-codified their law. An example is the case law of the Lithuanian Supreme Court. The court has frequently referred to the UNIDROIT Principles of International Commercial Contracts, the Principles of European Contract Law, the Principles of European Tort Law and the Draft Common Frame of Reference, usually with the aim of showing that the new Lithuanian Civil Code is fully in line with these modern soft-law principles.79 b) Complementary to the historical method of interpretation Courts often cite foreign law or soft-law principles that have served as an inspiration to the national legislator for their own legislation. In these cases, the comparative method plays a support role which complements the historical method of interpretation of domestic law.80 In two decisions of 2010 and 2011, the Supreme Court of Lithuania stated that the provisions of the Lithuanian Civil Code which were adopted under the influence of the UNIDROIT Principles shall be interpreted in the light of the Principles.81 To cite another example: in a landmark case of 2006, the Federal Court of Switzerland had to rule on the scope of damages for breach of contract. A parrot breeder had bought six parrots for his breeding farm. They were infected with a virus that was subsequently transmitted to the other birds in the breeding farm. As a result, all the birds died and the breeder suffered a loss of around two million Swiss francs. He brought a claim for damages against the seller of the infected birds. The claim raised the issue of the scope and the limits of the seller’s contractual liability. The Swiss Federal Supreme Court of Justice awarded damages and, in defining the scope of contractual liability under Art. 208(2) and (3) of the Swiss Code of Obligations, drew inspiration from the French author Pothier’s Treatise on the Law of Obligations as well as from Art. 1150 of the French Civil Code, which were already known and had inspired the legislator when the Swiss Code of Obligations was being prepared.82 The best 79 The Court has referred to the UNIDROIT Principles on International Commercial Contracts in 20 cases, to the Principles of European Contract Law (PECL) in 11 cases, to the Draft Common Frame of Reference (DCFR) in one case, and to Principles of European Tort Law (PETL) in three cases explicitly, in others implicitly, see SELELIONYTE-DRUKTEINIENE/JURKEVICIUS/KADNER GRAZIANO (fn. 34), with references; MCCRUDDEN (fn. 4), at p. 518, diagnoses a “pedagogical impulse” in comparative constitutionalism; see also A.-M. SLAUGHTER, ‘A Typology of Transjudicial Communication’, U. Rich. L. Rev. 1994, 99 at 134: “The court of a fledgling democracy, for instance, might look to the opinions of courts in older and more established democracies as a way of binding its country to this existing community of states.” 80 GERBER (fn. 66), at p. 151. See e.g. the Swiss cases TF, 03.04.1914, ATF 40 II 249 at 256; TF, 05.04.1938, ATF 64 II 121 at 129, or the German cases BGHZ 21, 112 at 119, and BGHZ 24, 214 at 218 f. 81 See SELELIONYTE-DRUKTEINIENE/JURKEVICIUS/KADNER GRAZIANO (fn. 34), with references. 82 TF, 28.11.2006, ATF 133 III 257. For the opposite situation, see the Swiss case TF, 22.5.2008, ATF 134, 497 c. 4.2.3, 4.3, 4.4.2: Swiss law, notably Art. 418 of the Swiss CO, served as

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known English case concerning the scope of damages for breach of contract, Hadley v. Baxendale,83 dating back to 1854, equally takes inspiration from Pothier’s Treatise on the Law of Obligations and Art. 1150 of the French Civil Code. In 1894, the Supreme Court of the United States in turn adopted the principles from Hadley for US law.84 Pothier’s work, Art. 1231-3 (former Art. 1150) of the French Civil Code,85 the English case of Hadley v. Baxendale, American case law – notably that of the Supreme Court of the United States – and, last but not least, the Swiss Federal Court’s judgment in 2006, are thus all based on the same idea of justice concerning the scope of contractual liability, an idea of justice existing well beyond national borders. c) Discovering the diversity of solutions from which the court can choose Courts use the comparative approach in order to discover and demonstrate the diversity of solutions in force in different jurisdictions and from which the court can choose when interpreting domestic law.86 Recent English case law has given, in some cases, an impressive comparative overview. For example, in Fairchild v. Glenhaven, the House of Lords found inspiration in not only Californian, Canadian, Australian and South African law, and in the US Restatement of the Law, but also cited German, Greek, Austrian, Dutch, Norwegian, French, Italian and Swiss law.87 In Kleinwort Benson Ltd v. Lincoln City Council, the court referred to US law, and notably, the Restatement of the Law, as well as Canadian, Australian, South African, German, Italian, and French law.88 In Arthur Hall v. Simons, the House of Lords compared the case with US and Canadian law and other continental European legal systems, as well as Australian and New Zealand case law.89 In White v. Jones, the House of Lords referred to New Zealand, Australian, US, Canadian, German, French and Dutch law.90 The Federal Supreme Court of Switzerland frequently analyses and cites the laws of countries that border Switzerland, namely, French, German, Austrian and Italian law.91 Sometimes, the comparative overview is established by the court itself. More frequently, the courts rely on comparative studies previously published by comparatists. Comparison thus widens the horizon and completes the picture of possible interpretations a source of inspiration for Art. 89b of the German Commercial Code (HGB); the Swiss Federal Court then took inspiration from German legal doctrine and case law on Art. 89b HGB when interpreting Art. 418 of the Swiss CO. 83 See fn. 72. 84 Primrose v. Western Union Tel. Co., 154 U.S. 1 [1894]. 85 Art. 1231-3 of the Code civil provides: “Le débiteur n’est tenu que des dommages et intérêts qui ont été prévus ou qui pouvaient être prévus lors de la conclusion du contrat, sauf lorsque l’inexécution est due à une faute lourde ou dolosive.” 86 See also SCALIA (fn. 5), at p. 309: “Adding foreign law to the box of available legal tools is enormously attractive to judges because it vastly increases the scope of their discretion.” 87 [2003] 1 AC 32. 88 [2002] 2 AC 349. 89 [2002] 1 AC 615. 90 [1995] 2 AC 207, 1 All ER 691. 91 Out of numerous examples, see e.g. the cases TF, 20.04.1972, Kienast c. Gubler, ATF 98 II 73 (validity of a testament); TF, 23.04.2009, ATF 135 III 433, c. 3.3 (contractual penal clauses): change of case law inspired by Italian and German law and legal doctrine.

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and solutions that are available to the courts to resolve a specific question. By using the comparative method, judges complete and improve the quality of their reasoning. Anne-Marie Slaughter observed in this respect: “For […] judges, looking abroad simply helps them to do a better job at home, in the sense that they can approach a particular problem more creatively or with greater insight. Foreign authority […] provides a broader range of ideas and experience that makes for better, more reflective opinions. This is the most frequent rationale advanced by judges regarding the virtues of looking abroad.”92

d) Illustrating the aims and particularities of the domestic solution In numerous judgments, courts cite foreign solutions in order to confront them with the solution that they have found for their own domestic law. They hereby illustrate the aims and particularities of their domestic law.93 By way of example, it is possible to mention a decision of the Federal Court of Germany (BGH) concerning the protection of personality rights and the right to privacy (Caroline de Monaco). Here the court compared German and French law, observing that the scope of the right to privacy is more limited in German law than in French law when opposed to the freedom of press.94 A German court of appeal provides another illustration in which the court cited US practice with respect to contingency fee agreements (i.e. agreements according to which the lawyer’s fees depend on the outcome of the case). The court ultimately sets out that such agreements would be irreconcilable with the role of lawyers in German civil procedure.95 In Kuddus v. Chief Constable of Leicestershire Constabulary, the English House of Lords notes that exemplary or punitive damages do not exist either in continental civil law systems, such as German and French law, nor in mixed legal systems which are influenced by both civil and common laws, such as Scots and South African law. The court therefore observes that, for the matter in question, it is “unhelpful to look at the position in other jurisdictions”.96 In Awoyomi v. Radford, the Queen’s Bench Division of the English High Court refers to case law from the European Court of Justice (ECJ) concerning the immediate or future 92

SLAUGHTER (fn. 73), at p. 201. Compare GERBER (fn. 66), at p. 154; JACKSON (fn. 9), at p. 117: “[C]omparison can shed light on the distinctive functioning of one’s own system … considering the questions other systems pose may sharpen understanding of how we are different”, p. 128: “engagement with foreign law … does not necessarily mean adoption, but thoughtful, well-informed consideration”; MINOW (fn. 9), text following fn. 56: “Looking at what others do may sharpen our sense of our differences rather than produce a sense of pressure to conform”; YOUNG (fn. 6), at p. 158: “If American courts were to conclude that only domestic practice is relevant, then their judges might feel pressure to distinguish American mores … from the views they encounter on their European sabbaticals”. 94 BGH 19.12.1995, BGHZ 131, 332 at 337 (taking inspiration from US law) and at 344 (opposing French law); for this use of the comparative method, see also the Swiss cases TF, 04.06.1981, ATF 107 II 105 at 111; TF, 18.05.1973, ATF 99 IV 75 at 76. 95 OLG Celle, 26.11.2004, NJW 2005, 2160. See, however, the German case: BVerfG, 12.12.2006, 1 BvR 2576/04, BVerfGE 117, 163, NJW 2007, 979 (contingency fees admitted under specific circumstances). 96 [2002] 2 AC 122, [2001] UKHL 29. 93

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effects of a change in case law (the question of prospective overruling), before deciding that the case law of the ECJ could be materially distinguished from English law.97 The question of pre-contractual liability was addressed in the case of Chartbrook v. Persimmon Homes. The House of Lords invoked the Principles of European Contract Law, the UNIDROIT Principles of International Commercial Contracts, and the CISG to highlight that the philosophy on which these regulations are founded differs from English contract law.98 It is also possible to mention judgments from the Swiss Federal Court concerning the conditions for the transfer of personal property. The court decided that, in contrast to German law (expressly indicating § 931 of the BGB), in Swiss law the ownership of movables cannot be passed on by the assignment of an action for recovery of the object.99 The Federal Court therefore demonstrates that another outcome would be possible and practicable, but that there are reasons why it is not favoured by the court. In another, nowadays classic case, the Swiss Federal Court explicitly abandoned a solution formerly taken from German law according to which the transfer of ownership is separate from the validity of the contract of sale. The court thus discarded the abstraction principle, a pillar of German property law.100 In a case concerning a legal action brought by an environmental protection foundation, the Swiss Federal Court came to the conclusion that French legislation and case law, which was cited by the court of first instance, “ne se concilient pas avec l’état actuel de notre legislation”101 (cannot be reconciled with the current state of our legislation). These examples show that the use of comparative law by courts is not at all limited to situations where the foreign solution is the one favoured by the courts. On the contrary, when the court’s solution differs from another country’s solution, the comparative approach can cause the court to expose national particularities and historical and cultural divergences that lead the court to favour one solution over another. In these cases, the comparative method contributes to a greater transparency and a better quality of reasoning. McCrudden concludes with respect to this purpose of judicial comparison: “a use of foreign … law does not mean that the approach taken in the other jurisdiction will necessarily be adopted, just that it is considered […] Even where the result of the foreign judicial approach has not been adopted, it has often been influential in sharpening the understanding of the court’s view on domestic law”.102 97

[2007] EWHC 1671 (Q.B.) no. 15 (per LLOYD JONES J). Chartbrook Ltd v. Persimmon Homes Ltd, [2009] AC 1101, [2009] UKHL 38, no. 39 (per Lord HOFFMANN). See also the case Agnew v. Länsförsäkringsbolagens, [2001] 1 AC 223 (HL): Lord Justice MILLET states that with respect to pre-contractual liability there is a fundamental difference between English law on the one hand and French and German law on the other. 99 TF 02.12.2005, ATF 132 III 155, c. 6.1.1 et 6.1.3: “Das deutsche Recht … anerkennt die Abtretung des Herausgabeanspruchs als Ersatz für eine Übergabe … [Für das schweizerische Recht ist] festzuhalten, dass durch eine Abtretung des Herausgabeanspruchs das Eigentum an einer Fahrnissache nicht übertragen werden kann, da dies mit dem Traditionsprinzip nicht zu vereinbaren ist.” 100 TF, 29.11.1929, Grimm c. Masse en faillite Näf-Ackermann, ATF 55 II 302. 101 TF, 20.02.2004, La Fondation X. c. La Masse en faillite de feu A, ou “Gypaète barbu République V ”, 4C.317/2002/ech. 102 MCCRUDDEN (fn. 4), at p. 512. 98

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e) Countering the argument that a certain solution will lead to harmful results The experiences in other jurisdictions are frequently cited by courts to counter the argument that a certain solution or interpretation of the law would have harmful or disastrous results. Illustrations of this use of the comparative method are particularly common in English and US case law. For example, according to an old common law rule, someone who makes a payment following a mistake of law rather than a mistake of fact cannot seek restitution of the payment. In Kleinwort Benson Ltd v. Lincoln City Council, the House of Lords abandoned this solution. The comparative approach was used to counter the argument that a right to restitution would result in a flood of litigation.103 In the English case Arthur Hall v. Simons, the court considered the question of immunity of legal professionals for conduct during legal procedures. The court referred to the experiences of other countries in order to show that such immunity is not justified by practical needs, and the court subsequently abandoned the immunity.104 This use of the comparative method has furthermore been considered legitimate even by those who are in general opposed to the use of comparative law by the courts. In this respect, Justice Scalia has written: “I suppose foreign statutory and judicial law can be consulted in assessing the argument that a particular construction of an ambiguous provision in a federal statute would be disastrous. If foreign courts have long been applying precisely the rule argued against, and disaster has not ensued, unless there is some countervailing factor at work, the argument can safely be rejected.”105

f) Legal support for value judgments of the court Often references to foreign law also play a role in highlighting that the solution favoured by the court is already recognised by other legal systems as being unbiased and fair, even if the legal approach to reaching this solution may differ from one country to another. This use of the comparative argument is particularly common and useful for the court when the decision is based on value judgments. In these situations, references to foreign legislation and case law provide legal support for the court’s balancing of conflicting values.106 In the 103

[2002] 2 AC 349, 375 C (per Lord GOFF): “For the present purpose, however, the importance of this comparative material is to reveal that, in civil law systems, a blanket exclusion of recovery of money paid under a mistake of law is not regarded as necessary. In particular, the experience of these systems assists to dispel the fears expressed in the early English cases that a right of recovery on the ground of mistake of law may lead to a flood of litigation.” 104 Arthur JS Hall & Co v. Simons, [2002] 1 AC 615 (see the opinions of Lord BINGHAM and Lord HOPE). 105 SCALIA (fn. 5), at p. 306, see also p. 307: “[T]he argument is sometimes made that a particular holding will be disastrous. Here […] I think it entirely proper to point out that other countries have long applied the same rule without disastrous consequences.” 106 See e.g. A. BARAK, ‘Constitutional Human Rights and Private Law’, Rev. Const. Stud. 1996, 218 at 242: Comparative law “grants comfort to the judge and gives him the feeling that he is treading on safe ground, and it also gives legitimacy to the chosen solution”; SLAUGHTER (fn. 73), at p. 201: “Evidence of like-minded foreign decisions could enhance the legitimacy of a particular opinion on the domestic constituency that a particular court seeks to persuade”; JACKSON (fn. 9), at p. 119.

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English case Alfred McAlpine Construction Ltd v. Panatown Ltd, Lord Goff of Chieveley stated in this sense: “I find it comforting (though not surprising) to be told that in German law the same conclusion would be reached as I have myself reached on the facts of the present case”.107 Here it is possible to refer once again to the famous English case of Fairchild v. Glenhaven Funeral Services Ltd. In this case, the court discussed the liability of employers following the exposure of their employees to asbestos.108 Inhaling asbestos fibres caused the employees to develop cancer. However, they had worked consecutively for several employers who had all exposed them to asbestos. This resulted in uncertainty as to where they had contracted the illness. According to traditional rules, the claim would have been rejected because the employees could not prove causation with the probability which is traditionally required. While searching for a solution that was favourable to the claim, the House of Lords found support in numerous foreign jurisdictions. In relation to this litigation, Lord Bingham observed: “Development of the law […] cannot of course depend on a head-count of decisions and codes adopted in other countries of the world, often against a background of different rules and traditions. The law must be developed coherently, in accordance with principles so as to serve, even-handedly, the ends of justice. If, however, a decision […] offends one’s basic sense of justice, and if consideration of international sources suggests that a different and more acceptable decision would be given in most other jurisdictions, whatever their legal tradition, this must prompt anxious review of the decision in question. In a shrinking world … there must be some virtue of uniformity of outcome whatever the diversity of approach in reaching that outcome.”109

This use of the comparative method can also be found in a recent judgment of the Swiss Federal Court which concerned the capacity of beneficiaries of a will. The court found confirmation for its solution in three out of four of its bordering countries’ legal systems (German, Austrian and Italian law, in contrast with French law).110 107 Alfred McAlpine Construction Ltd v. Panatown Ltd, [2001] 1 AC 518 (per Lord GOFF OF CHIEVELEY). For other recent examples of this use of the comparative method, see the English cases Robinson v. Jones (Contractors) Ltd, [2012] Q.B. 44, [2011] EWCA Civ 9, nos. 49 and 78 (LJ JACKSON); D v. East Berkshire Community Health NHS Trust, MAK v. Dewsbury Healthcare NHS Trust, RK v. Oldham NHS Trust, [2005] 2 AC 373, [2005] UKHL 23. The judges refer to foreign laws that reach the same outcome: Australian law (no. 89, Lord NICHOLLS) and the law of New Zealand (no. 113 and 114, Lord RODGER), dissenting opinion by Lord BINGHAM who refers to French and German law (no. 49): “no flood of claims in these countries”. See, on this use of the comparative method, and criticising it, SCALIA (fn. 5), at p. 309: “It will seem much more like a real legal opinion if one can cite authority to support the philosophic, moral, or religious conclusions pronounced. Foreign authority can serve that purpose.” See for Switzerland GERBER (fn. 66), at p. 157. 108 [2003] 1 AC 32. On this and the following cases BINGHAM (fn. 20), at pp. 9 ff. 109 Fairchild v. Glenhaven Funeral Services Ltd, [2003] 1 AC 32, [2002] UKHL 22, [2002] 3 All ER 305 at 334. 110 TF, 06.02.2006, ATF 132 III 305: “Auch in ausländischen Rechtsordnungen wird […] die rechtswidrige Beeinträchtigung des freien erblasserischen Willens als Erbunwürdigkeit erfasst (z.B. in § 2339 des deutschen BGB, in § 542 des österreichischen ABGB und in Art. 463 des

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g) Legal support when changing established case law or when confronting new problems In some of the most famous examples of comparison in case law, courts have resorted to the comparative method in order to justify fundamental changes to domestic case law or to confront new problems and to introduce new institutions or remedies. It is possible to mention many cases where courts have used the comparative method to justify changes to the law: we have already seen the case Kleinwort Benson Ltd v. Lincoln City Council,111 in which the House of Lords abandoned the common law rule according to which it was only possible to claim restitution of money paid following a mistake in fact as opposed to a mistake of law. Here the court also found support in several foreign jurisdictions for overturning the precedent. In White v. Jones, the court considered the question of contractual or tortious liability of a solicitor in relation to pure economic loss suffered by the claimant following the solicitor’s professional negligence. The House of Lords observed that despite the conceptual difficulties, in many jurisdictions (the court cited German, French, Dutch, Canadian, US, Australian and New Zealand law), it is possible to find a favourable solution for the claimant in either the law of contract or the law of tort (“Many jurisdictions have found a remedy in the situation in which the present plaintiffs find themselves”). The court subsequently introduced liability for negligence of legal professionals in English tort law.112 In two landmark cases, the Supreme Court of Austria consecutively allowed, in Austrian law, liability for nervous shock and damages for immaterial harm following the loss of a close relation (damages for bereavement).113 The court cited, as sources of inspiration and to support overruling previous case law, Swiss, French, Italian, Spanish, Scots, Greek, Yugoslavian, Belgian and Turkish law. The court found information on these laws in the writings of comparatists. It seems that the desire to avoid isolation and to support majority trends in Europe was not the least of the motivations for the Austrian Supreme Court. In some decisions, foreign solutions are cited obiter dictum to draw attention to new problems that have not yet been dealt with by the national legislator or by domestic case law. In these situations, the aim is to encourage the legislator and doctrine to examine the problem and to work out a solution.114 More commonly, the court itself will introduce a new solution. A well-known illustration can be found in decisions in Germany that recognised personality rights and the right to privacy as an absolute right, protected by the means of tort liability (§ 823(1) of the BGB and Article 2(1) of the Basic Law for the Federal Republic of Germany). The italienischen Codice civile, nicht hingegen in den Art. 727 ff. des französischen Code civil).” For other examples of the use of the comparative method for the same purpose, see GERBER (fn. 66), at pp. 155 ff. 111 [2002] 2 AC 349. 112 White v. Jones, [1995] 2 AC 207, 1 All ER 691, see the opinion of Lord GOFF OF CHIEVELEY. 113 OGH, ZVR 1995, 46 and OGH, 16.05.2001, JBl. 2001, 660. 114 See GERBER (fn. 66), at p. 152 and e.g. the cases TF, 10.05.1932, ATF 58 II 151 at 156 (company law); TF, 20.01.1981, ATF 107 II 57 at 66 (copyright); TF, 21.12.1982, ATF 108 II 475 at 484 f.

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Federal Supreme Court of Germany115 as well as the German Constitutional Court116 found support in foreign laws when introducing a protection of personality rights and of privacy (“Allgemeines Persönlichkeitsrecht”).117 In an English case in 1991 the court still stated that “[i]t is well known that in English law there is no right to privacy”.118 If the judgments of the Court of Appeal and the House of Lords, notably in Douglas and others v. Hello! Ltd 119 and Naomi Campbell v. Mirror Group Newspapers Ltd,120 were to change the law, it would be largely thanks to the case law of the European Court of Human Rights and – last but not least – the influence of comparative law.121 Another example is provided by the decisions concerning claims brought by parents, and indeed children, against doctors for damages following an unwanted birth. The issue of medical malpractice for “wrongful life”, “wrongful birth” or “wrongful pregnancy” has been considered by the courts in many jurisdictions over the last few years. In Germany, the landmark case in this matter, published in the official collection under the English title “wrongful life”, drew inspiration from the case law of the English Court of Appeal as well as US law.122 The Swiss Federal Supreme Court took inspiration from German and Dutch case law, distinguishing itself from case law of the English House of Lords and the Supreme Court of Austria.123 In another landmark decision, the Supreme Court of Austria in turn took inspiration from French, Italian, Scots and Danish law, while distinguishing German, Dutch, Belgian and Spanish law.124 Dutch case law took German law into consideration, and in turn, exerted an influence on Scots law.125 In France, on the initiative of the judges of the Cour de Cassation, the case “Perruche” was preceded by comparative studies on liability for wrongful life and wrongful birth, from which it drew inspiration.126 In truth, judgments relating to this issue that have not referred to foreign case law are very rare.

115 BGH, 05.03.1963, BGHZ 39, 124 at 132; BGH, 19.12.1995, BGHZ 131, 332 (Caroline de Monaco): protection of privacy, reference to US law. For further examples, see KÖTZ (fn. 68), at pp. 832 ff. 116 BVerfG, 14.02.1973, BVerfGE 34, 269 at 289, 291. 117 See H. EHMANN, ‘Das Allgemeine Persönlichkeitsrecht – Zur Transformation unmoralischer in unerlaubte Handlungen’, in: Heldrich/Hopt (fn. 68), p. 613 at 628, no. 81 and at p. 640. 118 Kaye v. Robertson, [1991] FSR 62 (Glidewell LJ). 119 [2005] EWCA Civ 595. 120 [2002] EWCA Civ 1373. 121 Starting with the case: Von Hannover c. l’Allemagne, no. 59320/00, CEDH 2004-VI. 122 BGH, 18.01.1983 (wrongful life), BGHZ 86, 240 at 249 ff. 123 20.12.2005, ATF 132 III 359; case note J. ESSEBIER, ‘“Wrongful Birth” in der Schweiz’, ZEuP 2007, 888. 124 OGH, 14.09.2006, 6 Ob 101/06f; see also OGH 25.05.1999, 1 Ob 91/99k (comparison with German law). 125 HONDIUS (fn. 13), at p. 764. 126 C. cass., 17.11.2000, D. 2001, 332: report of the avocat général PIERRE SARGOS, J.C.P. 2000 II, No. 10438, p. 2302; conclusions de l’avocat général JERRY SAINTE ROSE, J.C.P. 2000 II, No. 10438, pp. 2308 ff.; CANIVET (fn. 50), at pp. 190 ff.; C. cass. 19.11.2002 (Epoux Brachot c. Banque Worms), J.C.P. 2002 II No. 10201, and avocat général J. SAINTE ROSE, J.C.P. 2002 II No. 10201.

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In Germany, an important procedural innovation, namely the publication of dissenting opinions of judges in the Federal Constitutional Court’s judgments, has drawn inspiration from Anglo-Saxon law.127 h) Legal discourse on an international scale and “soft harmonisation” It is possible to identify an eighth and final effect (and perhaps also a final objective) of comparison by the courts. In the aforementioned decisions, as well as in many others, courts draw inspiration from the laws of jurisdictions sharing the same values. In some cases, the courts adopt in their case law a truly European or even a global perspective. By demonstrating such open-mindedness, judges pave the way for the discussion of legal problems on a European, or indeed a global scale, thus creating a genuine European or even global community of lawyers who are able to comfortably debate with each other.128 In situations where this discussion leads to shared beliefs and solutions, comparison contributes to “soft harmonisation” of the law on a supranational scale.129

IV. CONCLUSIONS From these reflections, a number of conclusions can be drawn: 1.

If the applicable domestic law is clear and does not lend itself to interpretation, the judge is bound and can only with great difficulty and exceptionally deviate from the result prescribed by his domestic law by using the comparative approach. None of the arguments against the legitimacy of the comparative approach are convincing. For the numerous cases in which domestic law has gaps or lends itself to interpretation, the comparative method is at the disposal of judges who may use it to find inspiration when interpreting domestic law. Nowadays, it is possible that the comparative method constitutes (as it already does in a certain number of countries) a fifth method of interpretation, alongside the classical methods of interpretation, namely the literal, historical, systematic and purposive approaches (or, depending on the country, alongside interpretation in conformity with principles of the national constitution or EU law also).

2.

3.

127

P. EGBERT, ‘Für und Wider das Minderheitsvotum’, DÖV 1968, 513. With regard to transnational judicial comparison in the field of human rights SLAUGHTER (fn. 79), at p. 121 f.: “courts around the world [are] in colloquy with each other”; idem (fn. 73), at p. 193: with respect to certain questions she observes a “constitutional cross-fertilization” and an “emerging global jurisprudence”; ibid. at p. 202: “The practice of citing foreign decisions reflects a spirit of genuine transjudicial deliberation within a newly self-conscious transnational community”; see in Europe: C. WITZ, ‘Plaidoyer pour un code européen des obligations’, D. 2000, Chroniques, 79 at 81. 129 See e.g. Cheah v. Equiticorp Finance Group Ltd, [1992] 1 AC 472, [1991] 4 All ER 989 (Lord BROWNE-WILKINSON): “It is manifestly desirable that the law on this subject should be the same in all common law jurisdictions”; Attorney General v. Sport Newspapers Ltd, [1992] 1 All ER 503 (High Court, Q.B.); Smith v. Bank of Scotland, [1997] SC 111 (120) (HL); ÖRÜCÜ (fn. 27), at pp. 415, 421, 425. 128

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4.

5.

6.

7.

8.

9.

Neither foreign legislation nor foreign case law binds the judge when interpreting his country’s law. Consequently, foreign law is only a persuasive authority and may only guide the judge as such. The aforementioned case law bears witness to the fact that courts, and notably supreme courts, pursue several objectives when using the comparative approach. Courts use the comparative approach: + in order to demonstrate that the domestic law is fully in line with modern international trends; + to complement the historical method of interpretation of domestic law; + to discover and demonstrate the diversity of solutions from which the courts may choose; + to benefit from experiences made abroad and to avoid reinventing the wheel again and again; + to sharpen one’s own understanding of certain legal problems and to compare the national solution with differing foreign solutions in order to highlight the particularities of the domestic law; + to counter arguments that a given solution will lead to harmful or disastrous results; + to find legal support for a value judgment by the court; and finally, to justify changes to domestic case law or to confront new problems, introduce new institutions or remedies. In so far as judges agree to take inspiration from foreign law or international principles derived from comparison, the comparative method will also become an important tool for lawyers who wish to use it in court in the interest of their clients. So that the court has a solid base for use of the comparative method, it is essential to provide judges with reliable, solid and trustworthy information as to the content of foreign law. This responsibility falls to the researchers and comparatists who use the comparative approach in their publications. Regarding a case before the court, this comparative research could also be undertaken, and information provided, on an ad hoc basis by comparative law institutions or by lawyers or their staff trained in comparative law. With the progressive programme of European integration, and notably in matters affecting economic relationships, the judge could use the comparative interpretation while pursuing the aim of soft harmonisation which provides an alternative to legislative harmonisation (a “bottom up” instead of “top down” approach to harmonisation). By using the comparative method, courts contribute to the establishment of a legal discourse that transcends borders. They hereby contribute to the creation of a genuine European or even global community of lawyers who are able to comfortably communicate with each other about topical legal issues.

Thus, the widespread belief in the judiciary of the legitimacy and the multiple benefits of judicial comparison is well founded. With respect to this topic, Thomas Bingham has most aptly made the following point:

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3. Is it legitimate and beneficial for judges to compare? | 49 “In no other field of intellectual endeavour – be it science, medicine, philosophy, literature, architecture, art, music, engineering or sociology – would ideas or insights be rejected simply because they were of foreign origin … [I]t would be strange if [in the field of law] alone practitioners and academics were obliged to ignore developments elsewhere, or at least to regard them as of no practical consequence. Such an approach can only impoverish our law; it cannot enrich it.”130

Martha Minow, former Dean of Harvard Law School, has stated along the same lines: “Neglecting development in international and comparative law could vitiate the vitality, nimbleness, and effectiveness of [our own] law or simply leave us without the best tools and insights as we design and run institutions, pass legislation, and work to govern ourselves.”131

130 BINGHAM (fn. 20), at p. 6; in the same sense, e.g., A. BARAK, judge of the Supreme Court of Israel, ‘A Judge on Judging: The Role of a Supreme Court in a Democracy’, Harv. L. Rev. 2002, 16 at 111: “Indeed, the importance of comparative law lies in extending the judge’s horizons”. 131 MINOW (fn. 9) at section III: ‘Reclaiming the Chance to Learn’.

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Chapter 4

An introduction to the principles of contract law: the needs to which they respond and the purposes for which they are designed

The following chapter provides an introduction to the materials that will be used throughout the book. Most scholars and students are aware of the fact that individual nation States have developed their own contract law systems. They are also aware of the United Nations Convention on Contracts for the International Sale of Goods (CISG). Perhaps not all scholars are yet familiar with the non-binding instruments that have been presented since the mid-1990s in the field of contract law, in particular the “Principles of European Contract Law (PECL or Lando Principles)”, which were elaborated and presented by an international group of researchers headed by Ole Lando, and the UNIDROIT Principles of International Commercial Contracts, elaborated and presented by the International Institute for the Unification of Private Law (UNIDROIT) in Rome. For this reason, the present chapter reproduces extracts which provide a brief introduction to the PECL and the UNIDROIT Principles, highlighting the needs to which they respond and the purposes for which they are designed. (For the conditions under which parties to a contract can choose these principles to govern their contract, see Part B, Case study 10. For a presentation of the Draft Common Frame of Reference, DCFR, see below, Part B, Case study 11.)

I. OLE LANDO/HUGH BEALE (eds.), Principles of European Contract Law: Parts I and II, Deventer/Boston: Kluwer Law International, 2000, Preface Preface HOW IT STARTED In 1974 a symposium was held at the Copenhagen Business School. The subject was the EEC Draft Convention on the Law Applicable to Contractual and Noncontractual Obligations. At a dinner in Tivoli Gardens after the symposium I sat next to Dr Winfried Hauschild who was Head of Division in the Directorate General for the Internal Market of the Commission of the European Communities, and who assisted the working group of experts which prepared the Draft Convention. We agreed that the proposed choice of law rules would be insufficient. They would never establish the legal uniformity necessary for 50

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an integrated European market. Uniform substantive law rules were needed. Dr Hauschild said: “We need a European Code of Obligations”. In 1976 another symposium was held in the newly established European University Institute near Florence. Its subject was New Perspectives of a Common Law of Europe. I was asked to present a paper and found here an opportunity to argue for what I then called a European Uniform Commercial Code. In the years that followed efforts were made to find qualified people from all the EC Member States who were interested in preparing what now became the Principles of European Contract Law and to get the necessary funds. This took some time.

Introduction 1. THE NEED FOR UNIFORM RULES The Principles of European Contract Law are the product of work carried out by the Commission on European Contract Law, a body of lawyers drawn from all the member States of the European Union, under the chairmanship of Professor Ole Lando. They are a response to a need for a Union-wide infrastructure of contract law to consolidate the rapidly expanding volume of Community law regulating specific types of contract. There are many benefits to be derived from a formulation of principles of contract law within Europe. A) The Facilitation of Cross-Border Trade Within Europe Both within and outside Europe there is a growing recognition of the need for measures of harmonisation to eliminate those differences in national laws which are inimical to the efficient conduct of cross-border business within Europe. Such harmonisation measures confer particular benefits on contracting parties carrying on business in different States, enabling them to contract with reference to a set of rules which apply uniformly over the territories of the various States, which are detached from any particular legal system, which are available in languages of which at least one is likely to be known to the parties, and which over time will become much more familiar to those who use them than the individual national laws of the various foreign countries in which they transact business. B) The Strengthening of the Single European Market The harmonisation of principles of contract law is of especial importance to the proper functioning of the Single European Market, the very essence of which is a broadly unitary approach to law and regulation that surmounts the obstacles to trade and the distortions of the market resulting from differences in the national laws of Member States affecting trade within Europe.

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C) The Creation of an Infrastructure for Community Laws Governing Contracts The lawmakers of the European Community are increasingly active in the field of contracts. Directives have been issued affecting contracts relating to insurance, employment, commercial agency, consumer credit, consumer safety, doorstep sales and unfair terms in consumer contracts, to mention but a few, and the list is steadily growing. Yet there is no general contract law infrastructure to support these specific Community measures. There are at present considerable disparities between the laws of the Member States governing contracts, including such major matters as formation, formal and essential validity, substantive effects, remedies for non-performance and the conditions under which non-performance is excused. There is not even a common terminology. Hence the Principles are designed not merely to reduce the adverse effects of differences in national laws within the Single European Market but also to provide a foundation of contract law within the Community upon which more specific harmonisation measures can be constructed. Without such a body of Community-wide principles of contract law the effect of many of the measures being taken towards European legal integration in relation to consumer and commercial transactions is likely to be weakened significantly. D) The Provision of Guidelines for National Courts and Legislatures The Principles are intended to reflect the common core of solutions to problems of contract law. Some of these have proved increasingly troublesome for national courts and legislators. The Principles are also intended to be progressive. On many issues covered by national law they may be found to offer a more satisfactory answer than that which is reached by traditional legal thinking. For example, their provisions relating to the assurance of performance and to the grant of relief where a change of circumstances renders performance of the contract excessively onerous deal in a balanced way with recurrent difficulties on which most national laws are silent. The Principles are thus available for the assistance of European courts and legislatures concerned to ensure the fruitful development of contract law on a Union-wide basis. Even beyond the borders of the European Union, the Principles may serve as an inspiration for the Central and Eastern European legislators who are in the course of reforming their laws of contract to meet the needs of a market economy. E) The Construction of a Bridge between the Civil Law and the Common Law One of the most intractable problems of European legal integration is the reconciliation of the civil law and the common law families. It is, of course, true that there are significant differences even between one civil law system and another; it is also true that in many cases common problems will be solved in much the same way by the various legal systems, to whichever legal family they may belong. But there remain major differences between civil law and common law systems in relation to legal structure and reasoning, terminology, fundamental concepts and classifications and legal policy. Two examples from the field covered by the Principles suffice to make the point. The first is that in civil law systems there is a general and pervasive principle of good faith; in the European common law systems there is no such general principle. They have a requirement of good

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faith only in limited situations and have a series of specific rules achieving some of the same results as might be required by good faith but without referring to that concept. The second is that the civil law considers it legitimate for a contract to contain penalty clauses designed to deter a party from breaking the contract; the common law regards the imposition of penalties (as opposed to liquidated damages by way of compensation for anticipated loss) as improper and unenforceable. Differences of these kinds are inimical to the efficient functioning of the Single European Market. One of the major benefits offered by the Principles is to provide a bridge between the civil law and the common law by providing rules designed to reconcile their differing legal philosophies. 2. THE PURPOSES FOR WHICH THE PRINCIPLES ARE DESIGNED It will be apparent from the foregoing that the Principles of European Contract Law are intended to be of service in a number of ways to a wide range of institutions, enterprises and individuals. A) A Foundation for European Legislation The Principles provide a necessary legal foundation for measures taken and to be taken in the future by the organs of the European Union. The Principles will assist both the organs of the Community in drafting measures and courts, arbitrators and legal advisers in applying Community measures. In 1989 the European Parliament passed a Resolution requesting that a start be made on the preparatory work for drawing up a European Code of Private Law. The preamble to the Resolution states that “[…] unification can be carried out in branches of private law which are highly important for the development of a Single Market, such as contract law […]” (Resolution of 26 May 1989, OJEC No. C 158/401 of 26 June 1989. This request was repeated in 1994 (Resolution of 6 May 1994, OJEC No. C 205 (519) of 25 July 1994.) One objective of the Principles of European Contract Law is to serve as a basis for any future European Code of Contracts. They could form the first step in the work. B) Express Adoption by the Parties The Principles will be useful for parties who are living or carrying on business in different States and who wish their contractual relations to be governed by a set of neutral rules not based on any one national legal system but drawing on the best solutions offered by the laws of jurisdictions within (and sometimes outside) Europe. They can declare that the contract is to be governed by the Principles of European Contract Law. C) A Modern Formulation of a Lex Mercatoria Parties to international contracts who want their agreement to be governed by internationally accepted principles, or who are unable to agree on a reference to a national legal system, have the option to adopt the lex mercatoria to govern their contract. It not infrequently happens that they opt for arbitration according to, if not the lex mercatoria by name, “general principles of law”, “internationally accepted principles” or some other

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such phrase. Where is the arbitrator who has to deal with such a contract to find those principles? He may feel that he knows what is customarily accepted, or he may feel able to make a common sense judgment, but neither is a reliable way of deciding the case. If there is a statement of internationally accepted principles, the arbitrator’s life will be much easier and the uncertainty engendered by adopting such a phrase will be reduced. One of the immediate aims of the Principles is to provide such a statement that is acceptable within Europe and which can be applied directly by arbitrators in the type of case envisaged – in effect a modern European lex mercatoria. D) A Model for Judicial and Legislative Development of Contract Law The Principles offer help to courts and arbitrators called upon to decide issues which are not adequately governed by the national law or other system of rules applicable. The court or arbitrator may adopt the solution provided by the Principles knowing that it represents the common core of the European systems, or a progressive development from that common core. Equally the solutions of the Principles may be adopted by legislators reforming their contract law. The Commission hopes in particular that the Principles will be of service to those charged with reform of contract law in the newly-emerged democracies of Central Europe. E) A Basis for Harmonisation Ultimately the Member States of the European Union may wish to harmonise their contract law. The Principles can serve as a model on which harmonisation work may be based. Thus, the Principles have both immediate and longer-term objectives. They are available for immediate use by parties making contracts, by courts and arbitrators in deciding contract disputes and by legislators in drafting contract rules whether at the European or the national level. Their longer-term objective is to help bring about the harmonisation of general contract law within the European Union. 3. THE SUBJECTS COVERED The law of contract is considered to be the part of the general law for which the international business community most urgently needs harmonisation. Those attempting to unify European contract law, particularly within the Community, need above all uniform principles and a uniform terminology. The Principles are confined to the general law of contractual obligations. They do not deal with any specific types of contract, nor do they make special provision for consumer contracts, which raise policy issues more appropriately determined by Community law and national legislation. On the other hand, the Principles are not confined to commercial relationships but are intended to apply to contracts generally, including contracts between merchants and consumers. The Commission has not hesitated to borrow from legislation and Conventions dealing with specific types of contract through provisions which are suitable for general application. Thus, the United Nations Convention on Contracts for the International Sale

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of Goods of 1980 (CISG) has been a particularly fruitful source of ideas for the Principles. But while the Principles will be found particularly useful in international trade transactions within Europe, they are not confined to such transactions and may be applied equally to purely domestic contracts. […] 4. SOURCES The Principles are designed primarily for use in the Member States of the European Union. They have regard to the economic and social conditions prevailing in the Member States. The Commission on European Contract Law has therefore drawn in some measure on the legal systems of every Member State. This does not, of course, imply that every legal system has had equal influence on every issue considered. In fact, no single legal system has been made the starting point from which the Principles and the terminology which they employ are derived. Nor have the draftsmen of the Principles seen it as their task to make interpolations or compromises between the existing national laws, except as is necessary in order to weld the Principles into a workable system. The Commission has not confined its sources to the national laws of Member States. It has drawn on a wide range of legal materials from both within and outside Europe, including the American Uniform Commercial Code and Restatements of contract and of restitution. Some of the provisions in the Principles reflect suggestions and ideas which have not yet materialised in the law of any State. 5. STRUCTURE AND METHOD […] The method adopted may be compared with the American Restatement of the Law of Contract, the second edition of which was published in 1981. However, the task is different. The Restatement is broadly intended as a formulation of existing law, since in almost all States the law of contract is based on the common law. In the Union, which is characterised by the existence of a number of divergent legal systems, general principles applicable across the Union as a whole must be established by a more creative process whose purpose is to identify, so far as possible, the common core of the contract law of all the Member States of the Union and on the basis of this common core to create a workable system. Every effort has been made to draft short and general rules which will be easily understood not only by lawyers but also by their clients. […] 6. THE ACCOMMODATION OF FUTURE DEVELOPMENTS The Principles of European Contract Law are a set of general rules which are designed to provide maximum flexibility and thus to accommodate future developments in legal thinking in the field of contract law. The Commission has therefore resisted the temptation to seek to cover every particular eventuality, which would lead to excessive detail and specificity and inhibit the future development of European contract law. […]

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II. MICHAEL JOACHIM BONELL (ed.), An International Restatement of Contract Law: The UNIDROIT Principles of International Commercial Contracts, 3rd ed., Unidroit: Rome, 2009, Chapters 1 and 2 CHAPTER 1 _____________________________________________________________________ WHY AN INTERNATIONAL RESTATEMENT OF CONTRACT LAW? _____________________________________________________________________ When, in the early 1920s, the newly founded American Law Institute decided to embark upon the project of the Restatements, it was to remedy the deficiencies which in those days were becoming more and more apparent in the development of the law of the United States. As set out in a report submitted in 1923 to a meeting of representative judges, lawyers and law teachers, “[t]wo chief defects in American law are its uncertainty and its complexity. These defects cause useless litigation, prevent resort to the courts to enforce just rights, make it often impossible to advise persons of their rights and when litigation is begun, create delay and expense.”1

According to the same report, one of the main causes of the defects was the presence of forty-eight states, each of which, as well as the Federal Government was an independent source of law, with the result that the law on any subject in any one jurisdiction might differ from the law of one or more or all of the other jurisdictions. “[…] These variations in law are themselves a potent cause of uncertainty and complexity […] not only where transactions are carried on in two or more states, but also where transactions are carried on wholly within one state.”2

Hence the idea of the production of a “Restatement of the Law”. Indeed, by restating in a systematic manner the law relating to a number of subjects, judges, academics and lawyers were called upon to make a substantial contribution to obviate the unsatisfactory situation. To quote the report again,

1

Report of the Committee on the Establishment of a Permanent Organization for the Improvement of the Law Proposing the Establishment of an American Law Institute (reproduced in The American Law Institute 50th Anniversary, Philadelphia 1973, p. 3 et seq. (p. 15). 2 Report of the Committee on the Establishment of a Permanent Organization, cit. (supra n. 1), p. 17.

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4. An introduction to the principles of contract law | 57 “[the restatement’s] object should not only be to help make certain much that is now uncertain and to simplify unnecessary complexities, but also to promote those changes which will tend better to adapt the laws to the needs of life […].”3

Furthermore, “[t]he character of the restatement […] can best be described by saying that it should be at once analytical, critical and constructive […].”

In other words, while it is true that “[…] the primary object of the restatement is to set forth the law”,

on the other hand “[…] it must be more than a collection and comparison of statutes and decisions […] more than an exposition of the existing law […] [it] should also take account of situations not yet discussed by courts or dealt with by the legislatures but which are likely to cause litigation in the future […] [it] should make clear what is believed to be the proper rule of law […] the changes proposed [should] be either in the direction of simplifying the law […] or in the direction of better adaptation of the details of the law to the accomplishment of ends generally admitted to be desirable.”4

UNIDROIT’S5 initiative to prepare Principles of International Commercial Contracts originated, though in an entirely different context, from quite similar considerations and is directed towards much the same objectives. The present state of international trade law is far from satisfactory.6 Despite the unprecedented growth in the volume of trade and the development, thanks also to the revolutionary changes in worldwide communication systems, of increasingly integrated markets, if not at the global, then at least at the regional level, cross-border transactions continue to a large extent to be subject to domestic laws.7 3

Report of the Committee on the Establishment of a Permanent Organization, cit. (supra n. 1),

p. 21. 4

Report of the Committee on the Establishment of a Permanent Organization, cit. (supra n. 1), pp. 22–23. 5 UNIDROIT, located in Rome (Italy), is an independent intergovernmental organisation founded in 1926 and presently composed of 59 Member States. Its main purpose is “to study the means for the harmonization and coordination of private law between States […]” and to this effect it is called upon not only “to prepare draft laws or draft conventions intended to establish a uniform law,” but also “to undertake studies of comparative private law” (cf. Art 1 of the Statute). On the role of UNIDROIT in the unification of law during the last decades cf. H. KRONKE, Ziele – Methoden – Kosten – Nutzen: Perspektiven der Privatrechtsharmonisierung nach 75 Jahren UNIDROIT, in Juristen Zeitung 2001, p. 1149 et seq. For further information see the UNIDROIT internet website: http://www.unidroit.org. 6 See, among others, K.-P. BERGER, The Creeping Codification of the Lex Mercatoria, Kluwer Law International 1999, p. 9 et seq. 7 As pointed out by J.M. PERILLO, UNIDROIT Principles of International Commercial Contracts: The Black Letter Text and a Review, in 43 Fordham Law Review (1994), p. 281 et seq. (p. 316), “[a]s the market changes from the gathering of merchants in a limited geographical spot to a

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These domestic laws may not only vary considerably in content, but are often ill-suited for the special needs of international trade.8 As pointed out by Francesco Galgano9 “[their] inadequacy […] derives from two characteristics of contemporary economy. The first is the meta-national nature of the economy which is antithetical to the national character of the legal systems. The second is that the economy is in continuous change which demands flexible instruments of adaptation from the law to change, in antithesis to the rigidity of the laws.”

With respect to some domestic laws it may even be almost impossible to find out what solution they provide for the issue at stake, because of the rudimentary character of the legal sources and the difficulty of access to them. Yet also highly developed legal systems often prove to be outdated. As Sir Roy Goode observed with respect to the highly praised English law10 “[w]hen I visit other common law countries, and in particular Canada and the United States, I am immensely impressed with their concern to keep their commercial law up to date […] When I return to England I feel […] depressed by […] our inertia and complacent belief in the superiority of English commercial law […] How is it that we feel able to embark on the 21st century with commercial law statutes passed in the 19th?”

Their intrinsic qualities apart, the very fact that different domestic laws governing international contracts do exist inevitably raises a problem of conflict of laws. In fact, in each case it is necessary to establish which of the various legal systems having contacts with the given contract will ultimately govern it. The uncertainties and inconveniences that derive from this are only too evident. Because of the different national rules of private international law, parties risk remaining uncertain as to the law applicable to their contract until the competent forum is established. Even then, depending on the conflict-of-lawsrules of the forum, the same contract may well be subject to the law of State X or to the law of State Y.11 Moreover, as rightly pointed out,12 judges, while paying lip-service to the forum’s conflict of law rules, in practice tend to favour in most cases the application of their own domestic substantive law. Last but not least, even if a judge was prepared to apply a foreign law, it is far from granted that he or she will be in a position to interpret it properly. It is true that as of the beginning of the last century and above all in the second half of it States have been adopting an increasing number of international conventions in the global interchange of communications, the myriad local laws of the marketplace are no longer adequate to assure the commercial community that even-handed rules will govern their transactions.” 8 For some specific examples of such inadequacies, see K.-P. BERGER, The Creeping Codification of the Lex Mercatoria, cit. (supra n. 6), p. 14 et seq. F. VISCHER – L. HUBER – D. OSER, Internationales Vertragsrecht, 2nd ed. Bern 2000, p. 67. 9 F. GALGANO, The New Lex Mercatoria, in 2 Annual Survey of International and Comparative Law (1995), p. 99 (p. 103). 10 R. GOODE, Commercial Law in the Next Millennium, London 1998, pp. 100–101. 11 L. OLAVO BAPTISTA, The UNIDROIT Principles for International Commercial Law Project: Aspects of International Private Law, in 69 Tulane Law Review (1995), p. 1209 et seq. (p. 1211) speaks of an authentic “mine field”, which business people have to wade through. 12 F.K. JUENGER, The Lex Mercatoria and Private International Law, in Uniform Law Review 2002, p. 171 (at p. 176).

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fields of both private international law and substantive law, with a view to eliminating the uncertainties arising out of the coexistence of different national legal systems.13 Yet, despite some undoubtable success […], the overall results of the unification process by legislative means are rather disappointing especially in the light of a cost/benefit analysis.14 To begin with, international treaties often risk remaining a dead letter, or nearly so.15 As has been pointed out,16 “the treaty collections are littered with conventions that have never come into force, for want of the number of required ratifications, or have been eschewed by the major trading States. There are several reasons for this: failure to establish from potential interest groups at the outset that there is a serious problem which the proposed convention will help to resolve; hostility from powerful pressure groups; lack of sufficient interest of, or pressure on, government to induce them to burden still further an already over-crowded legislative timetable; mutual hold-backs, each State waiting to see what others will do, so that in the end none of them does anything.”

13 There is as yet no single source of information for all instruments of uniform law. For up-to-date information on the texts adopted by the various organisations active in the different fields (UNCITRAL, IMO, WIPO, ILO, UNIDO, etc., within the United Nations family; UNIDROIT, the Hague Conference on Private International Law, the Council of Europe, the European Union, the Organization of American States, etc.) it is best to consult their respective Internet websites. Moreover, a periodical survey of the status of ratifications and of accessions to international conventions is published in the Uniform Law Review, published by UNIDROIT. For a compilation of primary materials relating to international trade law accompanied by commentary, see most recently R. GOODE – H. KRONKE – E. MCKENDRICK – J. WOOL (eds.), Transnational Commercial Law. International Instruments and Commentary, Oxford 2004. 14 Some commentators openly speak of the “futility” of traditional or “formal” unification efforts, at least with respect to most areas of business law: cf. P.B. STEPHAN, The Futility of Unification and Harmonization in International Commercial Law, in 39 Virginia Journal of International Law (1999), p. 743 et seq. Yet see also, e.g., J. BASEDOW, Uniform Law Conventions and UNIDROIT Principles of International Commercial Contracts, in Uniform Law Review 2000, p. 129 et seq. (at p. 129: “the defects of the uniform law Conventions that exist in many sectors of international commercial law had indeed become […] obvious […]”); F. GALGANO, La globalizzazione nello specchio del diritto, Bologna, 2005, p. 52 et seq. (“E’ da oltre un secolo che gli Stati perseguono, ma con esiti deludenti, l’obiettivo di costruire per convenzioni internazionali un diritto uniforme, fortemente contestato dalla resistenza che i singoli Stati oppongono all’abbandono dei propri e alla ricezione degli altri principi giuridici”). 15 This also applies to technically extremely valid instruments, such as the 1975 U.N. Convention on the Limitation Period in the International Sale of Goods (as amended by the 1980 Protocol) which has been ratified by no more than one third of the Contracting States of CISG, among which only a few of the major trading nations, or the 1988 Ottawa Conventions on International Financial Leasing and on International Factoring, adopted by only nine and six States, respectively, let alone the 1980 Convention on International Multimodal Transport of Goods, the 1983 Geneva Convention on Agency in the International Sale of Goods, the 1991 Convention on the Liability of Operators of Transport Terminals in International Trade and the 2001 Convention on Assignment of Receivables in International Trade, none of which has up until now been ratified by a sufficient number of States to permit their entry into force. 16 R. GOODE, International Restatements of Contract and English Contract Law, in Uniform Law Review 1997, p. 231 et seq. (pp. 232–233).

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Maybe an important factor explaining the decreasing willingness of national legislators to ratify international treaties is simply the change in atmosphere on the international scene. As noted by another expert of international uniform law17 “[t]he international treaty was conceived as a tool for the unification of the private law in the small and neatly ordered nineteenth century world consisting of a small number of so-called civilised nations. […] Negotiations took place in a more private atmosphere, and the delegates of a few participating States were sufficiently motivated to push their respective Governments towards ratification once they had returned to their home countries. In a world of two hundred independent States, multilateral diplomatic Conferences have become mass events in which delegates no longer have the same personal commitment towards one another […] National delegates will therefore hardly feel compelled to bring the Convention project to a successful close by urging ratification back at home.”

Moreover, international conventions, even if they enter into force, are normally rather fragmentary in character.18 Thus, most of them deal exclusively with the effects of the respective kinds of transactions covered (e.g. leasing, factoring, assignment, etc.), or even – as is the case of the different conventions in the field of transport law – only with the liability regime of one of the parties, i.e. the carrier, multimodal transport operator or terminal operator. Even a comprehensive instrument like the 1980 United Nations Convention on Contracts for the International Sale of Goods (CISG) […] suffers from a number of significant lacunae, such as questions concerning the validity of the contract, effects on property rights, questions arising from the use by one or both of the parties of standard forms, the impact of State control over the import/export of certain goods or over the exchange of currency on the contract of sale as such or on the performance of any of the parties’ obligations, etc. In addition, international conventions, once incorporated in the various national legal systems, are likely to be interpreted differently in different countries and, in the case of lacunae, will be supplemented by rules taken from non-unified domestic law. As pointed out by Jürgen Basedow19 “[i]n the practice of Contracting States, the rules of an international Convention are exposed to the centrifugal influences flowing from the respective national legal systems and resultant divergent interpretations, and there are no procedural safeguards against such decay of uniformity at the application stage.”

Finally, international conventions have by their very nature a very limited capacity, if any, for being adopted to subsequent changes in the technical or economic environment. As has been observed,20 17

J. BASEDOW, Uniform Law Conventions and the UNIDROIT Principles of International Commercial Contracts, in Uniform Law Review 2000, p. 129. 18 On the fragmentary character of existing international uniform law in general, see H. KÖTZ, Rechtsvereinheitlichung – Nutzen, Kosten, Methoden, Ziele, cit. (supra), p. 3 et seq. 19 J. BASEDOW, Uniform Law Conventions and the UNIDROIT Principles of International Commercial Contracts, cit. (supra n. 17), 129. 20 A. ROSETT, Unification, Harmonization, Restatement, Codification and Reform in International Commercial Law, cit. (supra), p. 688.

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4. An introduction to the principles of contract law | 61 “[…] the drafters of these codifications tend to look on harmonization as an event that happens once and for all. They see their codes as monuments that will stand without change […] this static, monumental quality is most mischievous. As times change and the law does not, codification becomes the enemy of substantive reform.”

Or, to quote another expert of international uniform law,21 “[t]he inflexibility of many international conventions may be too heavy a price to pay. The need to revise the law arises constantly, and international procedures sometimes slow the process of necessary law reform to an unacceptable extent.”22

Nor can the different model clauses and standard contract terms which the interested business circles have been developing since the end of the 19th century in response to the inadequacies of the various domestic laws23 provide a satisfactory alternative. These instruments were predominantly issued by individual enterprises or by national trade associations and commodity exchanges operating in the most important commercial and financial centres.24 Consequently, not only is their content likely to be one-sided, but they are inevitably influenced by legal concepts of their respective countries of origin and normally contain a provision for the application of the law of those countries and/or the settlement of possible disputes on their territory.25 No wonder that such instruments are therefore often criticised for their “legitimacy deficit” […]. Yet even both in form and in substance truly supra-national or a-national instruments, prepared by international non-governmental organisations offer only a partial solution. This is true in particular of INCOTERMS or the Uniform Customs and Practices for Documentary Credits (UCP) prepared by the International Chamber of Commerce (ICC) dealing only, though in great detail, with the most common delivery terms and letter of 21 A.L. DIAMOND, Conventions and Their Revision, in Unification and Comparative Law in Theory and Practice. Contribution in Honour of J.G. Sauveplanne, Deventer-Antwerp-BostonLondon-Frankfurt, 1984, p. 45 et seq. (p. 60). 22 On the lack of flexibility of most international uniform law instruments and the way in which this may hamper the law reform process, see also P.H. NEUHAUS – J. KROPHOLLER, Rechtsvereinheitlichung – Rechtsverbesserung?, in RabelsZeitschrift, 1981, p. 73 et seq. (p. 80: “Uniform law carries within it the risk of rigidity” (translation from German original)); P. BEHRENS, Voraussetzungen und Grenzen der Rechtsfortbildung durch Rechtsvereinheitlichung, in RabelsZeitschrift 1986, p. 19 et seq. who points out that, in order to facilitate the necessary adaptation of uniform law to new developments, codification should not be too detailed, but rather be confined to the statement of general principles (p. 32: “To preserve a measure of flexibility in order to be able to adapt to future developments, it is not advisable to envisage a detailed codification. It would be more appropriate in many areas to focus on the unification of general principles of law, whose implementation leaves sufficient room for manoeuvre” (translation from German original)). 23 [Footnotes in the following text partially omitted]. 24 Suffice it to mention the numerous standard commodity contracts issued by the long established and prestigious London-based Grain and Feed Trade Association, the Federation of Oil, Seed and Fats Associations, the London Metal Exchange and the Refined Sugar Association, etc. 25 Thus all standard contracts prepared by the above-mentioned London-based trade associations contain a reference to English law (to the exclusion of uniform law instruments) as the applicable law and to the English courts or arbitration to be held in London for settlement of disputes, regardless of where the parties have their places of business.

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62 | Part A Introduction

credit as a particular mode of payment, respectively. […]. Indeed, these instruments, though on account of their origin more balanced in content, still presuppose a more general regulatory system to refer to for the purpose of settling the questions they do not expressly address and to establish the conditions and limits of their validity. It is true that, at least according to most domestic laws, parties are free to lay down in their contract a detailed and possibly exhaustive regulation of their rights and obligations so as to avoid to the greatest possible extent any recourse to external sources. Yet – apart from the fact that in so doing the parties often encounter insurmountable difficulties arising from the language barriers between them and the absence of internationally uniform legal terminology on which they can rely – such supposedly self-regulatory contracts or “contrats sans loi” equally cannot do without a general legal framework within which to operate.26 Even the parties’ exercise of their right, likewise nowadays generally admitted, to choose the law governing their contract does not always provide a satisfactory solution. To begin with, the parties’ choice is quite often the result of a last minute decision, made without adequate legal assistance and thereby sometimes leading to rather awkward results. As vividly described by an experienced German attorney27 “[P]articularly nonchalant are those frequently recurring cases where […] the parties conduct their negotiations without legal assistance on the basis of an Anglo-Saxon contract form but then decide to subject their contract to the law of another legal system (e.g. a civil law jurisdiction)” (translation from German original).

Yet even where the issue of the applicable law is given sufficient attention, it is far from being taken for granted that the parties end up with a mutually satisfactory decision. This is especially true in cases where, for reasons of prestige or political imperative, a party is not willing to choose the law of a foreign country, although perfectly aware that its own national law is clearly inadequate to regulate the kind of transaction at hand. A situation of this kind frequently occurs, for example, in the oil industry, with reference to which it has been observed28 “[o]ne sometimes encounters […] a situation where one of the contracting parties is a government or state-owned concern in a country which itself has inadequate commercial or petroleum laws […]. That party, for political reasons, may be unable to agree to the adoption of 26 As pointed out by K. HIGHET, The Enigma of the Lex Mercatoria, in 63 Tulane Law Review (1989), p. 613 et seq. (p. 614) “[t]he only way in which a contract can exist independently of a legal system is to consider it as a voluntary compact operating by virtue of the collective will of the parties. […] To the extent that one can rely on an agreement’s allocation of rights and obligations, one must logically look beyond the will of the parties to the legal framework within which that will may be expressed and possess content.” 27 E. BRÖDERMANN, Die erweiterten UNIDROIT-Principles 2004, in Recht der Internationalen Wirtschaft 2004, p. 721 et seq. (note 122 at p. 730). 28 V. GAYMER, The UNIDROIT Principles as a Guide for the Drafting of Contracts: A View from an International Commercial Lawyer, in Institute of International Business Law and Practice (ed.), UNIDROIT Principles for International Commercial Contracts: A New Lex Mercatoria?, ICC Publication n° 490/1 (1995), p. 95 et seq. (p. 100).

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4. An introduction to the principles of contract law | 63 another country’s law as the law governing the contract and it will often recognise that its own country’s laws are inappropriate […].”

But also in the absence of obstacles of a political nature, problems still exist. Freedom of choice is – at least as far as the domestic courts are concerned – traditionally restricted to existing domestic laws, with the result that, in addition to the above-mentioned shortcomings of domestic laws per se, one or even both of the parties will have to accept a law with which they are not familiar or, conversely, which they know only too well and do not like at all. The difficulties, at least in psychological terms, deriving from the former kind of situation for parties and indeed, at times, for arbitrators, have been vividly described by one of the most experienced international arbitrators:29 “Those who have participated in an international arbitration governed by foreign law have experienced the frustration of being told the law by a participant who is a ‘native’ of that legal system. If the native is not the sole arbitrator or the president of the tribunal, but one who is or may be suspected of being interested in the outcome of the dispute you may have reason to fear that you are not always told the whole truth about the law. Nevertheless, you remain the foreigner who speaks without authority, you are the dilettante where the other is the expert. If he is your co-arbitrator you have often very little to say.”

As to the second kind of situation, it has been pointed out that30 “[…] as the twenty-first century moves inexorably on we American lawyers are likely to find ourselves dealing more and more with parties of roughly equal bargaining power, many of them from the third world and distrustful of Anglo-American or even European law, wanting a neutral system not tied to a particular country and one that will protect from harsh terms and bargains that have gone south.”

Yet the same situation may well occur even when the legal system in question is highly developed and the foreign party is far from inexperienced. For instance, “[…] there are Japanese companies that would be horrified if the applicable law were to be that of the United States. The reason is that they fear jury trials and punitive damages as well as discovery, especially when claims concern the quality of their merchandise. So in this case, they prefer arbitration, which is secret, usually final, and resolved by a specialist.”31

Nor – as may be admitted before an arbitral tribunal – could a reference to the “general principles of law” or the “lex mercatoria” as the law governing the contract constitute a valid alternative. As will be shown in greater detail below, in the absence of a sufficiently 29 O. LANDO, Assessing the Role of the UNIDROIT Principles in the Harmonization of Arbitration Law, in 3 Tulane Journal of International and Comparative Law (1994), p. 129 et seq. (pp. 140–141). 30 P. LINZER, The UNIDROIT Principles of International Commercial Contracts: Should American Lawyers Pull Their Hair Out Over Them? In 13 Texas Transnational Law Quarterly (1997) p. 1 et seq. 31 H. HIROSE, The Place of the UNIDROIT Principles in Non-Western Legal Traditions (paper presented at the bi-annual 25th Conference of the International Bar Association, held in Melbourne, 9–14 October 1994).

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64 | Part A Introduction

precise definition of the nature and content of such general principles or of the supposed lex mercatoria such a choice risks producing even greater uncertainty and unpredictability. At least some of these deficiencies currently encountered in international trade law are intended to be overcome by the UNIDROIT Principles. The UNIDROIT Principles are, above all, drafted in clear and simple language so as to permit any educated person, even if not a trained lawyer, easily to understand them. In setting forth the rules they also deliberately avoid using terminology peculiar to any given legal system, thereby creating a legal lingua franca to be used and uniformly understood throughout the world. As to their content, the UNIDROIT Principles represent a mixture of both tradition and innovation. In other words, while reflecting concepts found in many, if not all, legal systems, they also – especially when irreconcilable differences between the various domestic laws render a choice inevitable – embody what in the light of the special needs of international trade are perceived to be the best solutions, even if these solutions still represent a minority view. Finally, the fact that the UNIDROIT Principles are not intended to become a binding instrument permitted not only a wider discretion in their preparation, but also renders them more flexible and capable of rapid adaptation to the changing conditions in international trade practice. These inherent characteristics of the UNIDROIT Principles should at the same time absolve those involved in their preparation from the accusation of being over-ambitious in engaging in such a vast project. Or, as one particularly authoritative participant in the project put it,32 “[…] at the thought of drafting principles for the entire world […] [w]e do not tremble for at least four reasons. One, we are drafting mere principles and not a uniform law, so that whatever rules we write are only likely to be applied if they find favour with someone concerned with a particular transaction or dispute […] Two, most of our principles are unlikely to miscarry because they are framed with evident generality (e.g., ‘good faith and fair dealing’) or they have built-in safety valves (e.g., ‘unless the circumstances indicate otherwise’), giving them enough flexibility to permit a judge or arbitrator to use common sense in applying them so as to avoid an arbitrary or unfair result. Three, in some instances we have declined to deal with tough questions, as in the area […] of invalidity on a variety of grounds under the applicable domestic law. And four, […] UNIDROIT is free to amend the Principles […] from time to time to take care of problems that later surface.” […]

Likewise, as to the supposed contradiction between, on the one hand, the purposes of the UNIDROIT Principles – above all that of serving as a model for national and international legislators, and that of being applied as the rules governing the contract – as indicated in the Preamble and, on the other hand, that they are not a binding instrument and consequently their acceptance will depend upon their persuasive authority only,33 it has been pointed out that34 32

E.A. FARNSWORTH, Closing Remarks, in 40 The American Journal of Comparative Law (1992), p. 699 et seq. (pp. 699–700). 33 For such criticism, see in particular H. RAESCHKE-KESSLER, Should an Arbitrator in an International Arbitration Procedure Apply the UNIDROIT Principles?, in Institute of International Business Law and Practice (ed.), UNIDROIT Principles for International Commercial Contracts:

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4. An introduction to the principles of contract law | 65 “[…] the impact of the [P]rinciples may prove to be even greater than that of an international convention, for a convention has no force at the time it is concluded and represents at most a provisional indication of support by participating States which may or may not crystallise, whereas the Principles represent the unconditional commitment and consensus of scholars of international repute from all over the world.”

A New Lex Mercatoria?, ICC Publication n° 490/1 (1995), p. 167 et seq. (pp. 171–173); C. KESSEDJIAN, Un exercice de rénovation des sources du droit des contrats du commerce international: Les Principes proposés par l’UNIDROIT, in Revue critique de droit international privé 1995, p. 641 et seq. (pp. 646–652). 34 R. GOODE, Commercial Law in the Next Millennium, cit. (supra n. 10), p. 234.

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66 | Part A Introduction

CHAPTER 2 ___________________________________________________________________ THE UNIDROIT PRINCIPLES OF INTERNATIONAL COMMERCIAL CONTRACTS: PREPARATION AND SOURCES OF INSPIRATION ___________________________________________________________________ 1. The 1994 edition of the UNIDROIT Principles The idea of preparing a kind of “restatement” of the law of international commercial contracts in general was first formulated by Mario Matteucci at an international colloquium held in Rome in 1968 to celebrate the 40th anniversary of the foundation of UNIDROIT. Recalling the experience of the “Restatements of the law” in the United States of America, the then Secretary-General and later President of UNIDROIT raised the question as to whether a similar initiative could be successfully undertaken at the international level as well:35 “[…] Obviously the restatement will have no binding force vis-à-vis States, but it could represent a conceptual preparation for unification. If one could offer judges a body of rules reflecting the common principles that can be extracted from the case law of the various countries, in the different areas of international relations, this could represent the first step towards a uniform code. Judges and practitioners could gradually become familiar with these rules, and perhaps at a later stage one could consider converting these rules from simple statements to binding provisions by means of treaties or in other forms […].” (translation from French original)

On the basis of preliminary studies carried out by the Secretariat, the UNIDROIT Governing Council – the Institute’s highest scientific organ – decided in 1971 to include in the Work Programme of the Institute what in the original French version of the resolution was indicated as an “essai d’unification portant sur la partie générale des contrats (en vue d’une Codification progressive du droit des obligations ‘ex contractu’)”. After the new Work Programme was approved by the Member States of UNIDROIT, the President of the Institute set up a small Steering Committee, composed of Professors René David (University of Aix-en-Provence), Clive M. Schmitthoff (City University of London) and Tudor Popescu (University of Bucharest), in representation of the civil law, the common law and the former socialist systems, with the task of making preliminary inquiries on the feasibility of such a project. In a first report in 1974 the Steering Committee stressed the great importance of the project and laid down in broad terms the structure it should take for its realisation. However, due to other commitments of the Institute, the project […] did not for some years enjoy priority status.

35 Cf. IVth Meeting of the Organizations concerned with Unification of Law, in UNIDROIT (ed.), Unification of Law – Yearbook 1967–1968, II, p. 267 et seq. (p. 268).

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4. An introduction to the principles of contract law | 67

Only in 1980 was a special Working Group set up with the task of preparing the various draft chapters of the Principles. The members of the Group […] included representatives of all the major legal and socio-economic systems of the world […] While most of the members – all leading experts in the field of contract law and international trade law – were academics, some [were] high ranking judges or civil servants; they all sat, however, in a personal capacity and did not express the views of their governments. Referring to this latter fact, one of the members of the Group observed36 “[i]t made it strikingly more possible to conduct a realistic search for the ‘best’ solution. An automatic assumption that one’s own domestic solution is always the ‘best’ would have been a very serious handicap to any member of the working group.”

The working atmosphere within the Group was always excellent. In the words of one of its members,37 “[…] while our discussions [were] often lively they [were] rarely confrontational and every effort [was] made to find solutions that avoid[ed] or at least minimize[d] strongly held objections of individual members.”

And with regard to the sorts of arguments – other than those based on legislative texts – which dominated the discussion, he went on to say, “[s]ome arguments might be described as ‘philosophical’ in nature, as [was] the case for arguments based on the concepts of the autonomy of the parties and pacta sunt servanda. Proposals based […] on the law and economics notion of efficient breach [were] not likely to be warmly received. […] Other arguments might be described as ‘political’, as [was] the case for ‘north–south’ disputes between developing and industrialized countries and ‘east–west’ disputes between countries on the two sides of what was once known as the Iron Curtain. […] Other arguments [were] ‘systematic’ in nature, consisting of assertions that a group of countries, [such as] Latin American countries, holds a consistent view on some matter. (It [was] not usually considered appropriate to insist on a single country’s idiosyncratic solution, although the argument that ‘lawyers in my country will not understand that’ – or ‘ça ne se traduit pas en français’ – [was] not unknown.) Still other arguments [were] ‘practical’ in nature, turning on how well or how badly a proposed rule can be expected to work in a practical business context.”

This positive view of the Group’s working method is echoed by outside observers. To quote but one,38 “[p]rovisions within the Principles regarding issues on which the common law and the civil law systems have different conceptual frameworks (e.g., specific performance and penalty clauses) show that the drafters were able to break out of their respective conceptual straitjackets to reach common ground. This only could have happened by a process of mutual education and the expansion of understanding.” 36

M.P. FURMSTON, The UNIDROIT Principles and International Commercial Arbitration, in Institute of International Business Law and Practice (ed.), UNIDROIT Principles, cit. (supra), p. 199 et seq. (p. 201). […] 37 E.A. FARNSWORTH Closing Remarks, cit. (supra) p. 701. 38 J.M. PERILLO, UNIDROIT Principles of International Commercial Contracts: The Black Letter Text and Review, cit. (supra), p. 284.

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68 | Part A Introduction

Naturally, the Group never considered itself exclusive, but always welcomed outside assistance. However, individual experts were invariably contacted in their personal capacity, not as representatives of a particular interest group. As one of the participants pointed out,39 “the Principles were prepared without any political interference by particular lobbies. This is one of the advantages of a project on contracts in general, as opposed to negotiations concerning specific transactions (sales, transport, etc.), where the serenity of the atmosphere is often disturbed by the intervention of interested business circles. The experts preparing the Principles had in mind only two abstract categories, the ‘obligor’ and the ‘obligee’; they attempted to find in an objective manner the best equilibrium between these two parties, with respect to formation as well as to performance and non-performance of the contract.” (translation from French original) […]

From the outset the Working Group appointed from among its members Rapporteurs for each of the different chapters of the Principles. […] The task of the Rapporteurs consisted in preparing, after the necessary comparative studies, a first draft together with comments. These preliminary drafts were discussed by the Group as a whole at its working sessions which took place twice a year and lasted for one week. They were then revised again by the Rapporteurs so as to include the changes decided upon by the Group. After their second reading the drafts were circulated, together with a list of the issues which had proved most controversial, among a wider group of experts, belonging to both academic and business circles throughout the world. These experts, which included the more than one hundred correspondents of the Institute, were asked to express their opinion on the drafts. The revised versions were also examined at the annual sessions of the UNIDROIT Governing Council which offered its advice on the policy to be followed, especially in those cases where the Working Group had found it difficult to reach a consensus. Moreover, the drafts were submitted to the Governments of the Member States of the Institute for information. All the observations and proposals for amendment received were submitted to the Working Group so as to enable it to take them into account when proceeding to the third and final reading of the drafts. The Working Group concluded the last reading of the different draft chapters in February 1994, after which the text was submitted to a special Editorial Committee, chaired by E. Allan Farnsworth and composed of the Rapporteurs on the various chapters and the Secretary-General of UNIDROIT, Malcolm Evans. The latter undertook the arduous task of supervising the final editing of the UNIDROIT Principles. In May 1994 the Governing Council gave its formal imprimatur to the UNIDROIT Principles and recommended their widest possible distribution in practice. […] The UNIDROIT Principles were originally drafted in English, which was the working language of the Working Group. However, in order to facilitate their use throughout the world, it was decided from the beginning that they should be made available in as many

39

M. FONTAINE, Les Principes UNIDROIT comme guide dans la rédaction des contrats internationaux, in Institute of International Business Law and Practice (ed.), UNIDROIT Principles, cit. (supra), p. 73 et seq. (p. 77).

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as possible other language versions, and that the respective member(s) of the Working Group should be responsible for their preparation. As a result, the integral version of the 1994 edition of the UNIDROIT Principles was published not only in all five official languages of UNIDROIT, i.e. English, French, German, Italian, and Spanish, but also in Arabic, Chinese, Czech, Dutch, Farsi, Hungarian, Japanese, Portuguese, Romanian, Russian, Slovak and Vietnamese. Moreover, the black letter rules have been translated into Bulgarian, Croatian, Hebrew, Korean and Serbian. 2. The 2004 edition of the Unidroit Principles […] The immediate success of the UNIDROIT Principles worldwide prompted UNIDROIT early as 1997 to resume work “with a view to the publication of an enlarged second edition of the Principles”. […] The working method was basically the same as that adopted for the preparation of the 1994 edition of the UNIDROIT Principles. […] 3. Sources of inspiration (a) In general Already during the preparation of the Restatements of the law in the United States the question was asked “[h]ow can a restatement of diverse and heterogeneous legal propositions become itself consistent and coherent”40

The answer given was that “[o]bviously some propositions of law must be rejected in favour of others with which they are inconsistent; the ‘weight of authority’ test can be applied […] Yet this is no mere matter of counting cases; respect for the reasoning of an opinion or for the reputation of the court will be thrown into the scale […];”

and where, as it is with respect to a number of questions, there is no such authority “[…] one chooses the law that one thinks ought to be.”41

The method adopted in preparing the UNIDROIT Principles was very similar. The UNIDROIT Principles, like the Restatements in the United States, are intended to enunciate rules which are common to (most) existing legal systems, even though this objective played a considerably less important role than in the Restatements. The reasons for this have been summarised by one of the Rapporteurs:42 40

E.W. PATTERSON, The Restatement of the Law of Contracts, in 33 Columbia Law Review (1933), p. 397 et seq. (p. 399). 41 E.W. PATTERSON, The Restatement of the Law of Contracts, cit. (supra), pp. 399–400. […]. 42 M.P. FURMSTON, The UNIDROIT Principles and International Commercial Arbitration, cit. (supra), p. 205.

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70 | Part A Introduction “[I]t is important to emphasise that the working group did not attempt to find a lowest common denominator of contract rules. This kind of enterprise makes good sense in a federal jurisdiction like the United States where the differences between individual States are relatively small; where the conceptual apparatus of all contract lawyers is common; and, where on many issues all States will apply the same rule. The working group tried to produce a set of principles which was internally coherent. Obviously, this objective could not be reached simply by taking a series of majority views on a whole range of contract problems.”

To the extent that the UNIDROIT Principles do not reflect the common core of the various national systems, they aim at selecting the solutions which seem best adapted to the special requirements of international trade. As stated by another Rapporteur,43 “The intention is to prepare Principles acceptable to business people engaged in international trade and coming from different legal systems from around the world. The proposed instrument must, on one hand, take into account the latest changes in the most recent codifications […]. On the other hand, the Principles address themselves primarily to practitioners and should respond to the real needs of the protagonists of international commerce.” (translation from French original)

Consequently, whenever it was necessary to choose between conflicting rules, the criterion used was not merely arithmetical. In other words, what was decisive was not just which rule was adopted by the majority of countries, but rather which of the rules under consideration had the most persuasive value and/or appeared to be particularly well suited for cross-border transactions. As stated in the Introduction to the 1994 edition of the UNIDROIT Principles “[f]or the most part the UNIDROIT Principles reflect concepts to be found in many, if not all, legal systems. Since however the Principles are intended to provide a system of rules especially tailored of the needs of international commercial transactions, they also embody what are perceived to be the best solutions, even if still not yet generally adopted.”

For obvious reasons it was impossible to take into account the law of every single country of the world, nor could every legal system have an equal influence on each issue at stake.44 As far as international legislation is concerned, such an important and universally applied instrument as the 1980 United Nations Convention on Contracts for the International Sale of Goods was of course an obligatory point of reference. […]

43

M. FONTAINE, Les principes pour les contrats commerciaux internationaux élaborés par UNIDROIT, cit. (supra), p. 30. 44 From among the national codifications or compilations of law greater attention was naturally given to the most recent ones, such as the United States Uniform Commercial Code and the Restatement (Second) of the Law of Contracts, the Algerian Civil Code, the Dutch Civil Code, the Civil Code of Quebec and the law of obligations of the German Civil Code as amended in 2002.

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(b) Tradition v. innovation Although those involved in the preparation of the UNIDROIT Principles never considered their role to be that of legislators empowered to lay down entirely new rules, but understood their task to be essentially one of “re-stating” the existing international contract law, it cannot be denied that, especially within the Working Group, there were from the beginning two conflicting “souls” or schools of thought. On the one side were the “traditionalists”, rather reluctant to depart from long-established principles, particularly if those principles formed part of their own legal system; on the other side were the “innovators”, more open to recent developments, even when these developments belonged to a foreign legal system and were not yet generally accepted. On the whole the two sides balanced each other out, so that it is rather difficult to ascertain the extent to which the UNIDROIT Principles are innovative rather than to be seen as reflecting traditional views. In part the answer might be very similar to what was said in response to the same question in respect to the United States’ Restatement (Second) of the Law of Contracts, namely that “[s]ometimes innovation does not take the form of a new substantive rule but rather of a new perspective on the problem, reflected in the substitution of a new terminology or analysis for a traditional one […]. Even where substantive rules are concerned, it is no easy task to assess the extent of innovation […] often a paucity of cases or a confusion in the courts’ analyses makes it impossible starkly to contrast innovation with tradition.”45

There are, however, rules which are clearly innovative, at least for a number of domestic laws. The reason for this is to be found partly in the desire better to meet the special needs of international trade practice and partly in the necessity to take account of the different economic and political conditions existing in the world today. […]

45 Cf. E.A. FARNSWORTH, Ingredients in the Redaction of the Restatement (Second) of Contracts, in 81 Columbia Law Review (1981), p. 1 et seq. (pp. 5–6).

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today

2008 /09

2003

2000

1994/95

1982

2003 – PECL, Part III

1999 – PECL, Part II

2004 – UNIDROIT Principles, 2nd revised edion

2001 – European Commission communicaon on European Contract Law (COM(2001) 398) 2003 – European Commission Acon Plan on a more coherent contract law (COM(2003) 68)

1994 – UNIDROIT Principles of Internaonal Commercial Contracts (PICC)

Edion 2009 – Publicaon of the DCFR – Full Edion

2008 – Publicaon of the Dra Common Frame of Reference (DCFR) – Outline 2010 – UNIDROIT Principles, 3rd revised edion 2016 – UNIDROIT Principles, 4th revised edion

Different research groups (Study Group on a European Civil Code, Acquis Group and Insurance Contract Group) cluster to form the Joint Network on European Private Law (CoPECL network)

From 2005

2004

Preparaon of Principles of European Law (PEL)

1998 – Formaon of the Study Group on a European Civil Code (successor of Lando Commission)

1995 – Principles of European Contract Law (PECL), Part I

1982 – Formaon of the Commission on European Contract Law (Lando Commission)

III. THE DEVELOPMENT OF SUPRANATIONAL CONTRACT LAW INSTRUMENTS – AN OVERVIEW

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PART B CASE STUDIES

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I.

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Formation of contracts

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“A contract is an agreement giving rise to obligations which are enforced or recognised by law. The factor which distinguishes contractual from other legal obligations is that they are based on the agreement of the parties.”1

Case study 1

Offer or invitation to treat (invitatio ad offerendum)? Scenario The latest computers are displayed in a shop window at a very attractive price. A customer comes into the shop and declares that he would like to buy one of the computers at the advertised price. Another customer has seen the computers advertised in promotional material that gives all the relevant information, including the price. He contacts the salesperson and tells him that he would like to buy one of the computers. The salesperson no longer wants to sell the computer at the advertised price. Variation In a newspaper advertisement, a job is offered. An interested party responds by declaring that he accepts the job offer. The employer does not want to employ this person.

1

EDWIN PEEL, Treitel on the Law of Contract, 14th ed., London: Sweet & Maxwell, 2015,

p. 1.

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Questions2 1) Did the salesperson make a valid offer by – displaying the computer in the shop window; – advertising the computer in the promotional material; – advertising the job in the newspaper? Has a contract been formed or are these acts merely invitations to treat and any offer is therefore made subsequently by the customer? Use the extracts of laws, judicial decisions and academic literature reproduced below to answer the questions in relation to each jurisdiction. 2) You will see that the solutions differ from one country to another. How many different solutions can be identified? Present the solutions in a systematic manner.3 3) What are the arguments for and against the different solutions found in the materials? 4) How would the above scenarios be solved under – the United Nations Convention on Contracts for the International Sale of Goods (CISG or Vienna Sales Convention); – the Principles of International Commercial Contracts (UNIDROIT Principles); – the Principles of European Contract Law (PECL or Lando Principles); and – the Draft Common Frame of Reference (DCFR)? 5) In your opinion, which solution best meets the interests of all of the parties involved? Could this solution also be used with regard to Internet sales? 2 The present case deals exclusively with the impact that displays in shops and advertisements may have on the conclusion of contracts. It should be noted, however, that in the Member States of the European Union, as well as in most other European countries, misleading advertisements are, in certain circumstances, also considered as acts of unfair competition leading to actions for injunction, damages, etc., or provoking sanctions under administrative or criminal law. See, e.g., Art. 6(1)(d) with Art. 5, Directive 2005/29/EC of the European Parliament and of the Council of 11th May 2005 concerning unfair business-to-consumer commercial practices in the internal market (Unfair Commercial Practices Directive), OJ L 149/22, 11.6.2005; Directive 98/6/EC of the European Parliament and of the Council of 16th February 1998 on consumer protection in the indication of the prices of products offered to consumers, OJ L 80/27; and the Acts of the Member States transposing these Directives. See also the Swiss Federal Law on Unfair Competition, Art. 18: “Misleading Announcement of Prices: It shall be prohibited (a) to announce prices, (b) to announce price reductions or (c) to mention other prices in addition to the price to be effectively paid, in a misleading manner”. 3 For the method to employ, see above, Part A, pp. 14 ff.

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Table of contents I. England and Wales 1.

High Court (Queen’s Bench), Fisher v. Bell, 10.11.1960, [1961] 1 Q.B. 394, [1960] 3 All ER 731 ............................................................................................ p. 81

2.

High Court (Queen’s Bench), Pharmaceutical Society of GB v. Boots Cash Chemists (Southern) Ltd, 16.07.1952, [1953] 1 Q.B. 401, [1952] 2 All ER 456 ........................................................................................................ p. 83

3.

EWAN MCKENDRICK, Contract Law, 12th ed., London: Palgrave, 2017, n. 3.3 ..................................................................................................................... p. 85

II. USA 1.

The American Law Institute, Restatement of the Law Second – Contracts, Vol. 1, §§ 1 to 177, St Paul, Minnesota: American Law Institute Publishers, 1981, § 26 with Comments and Illustrations ...................................................... p. 86

2.

E. ALLAN FARNSWORTH/CAROL SANGER/NEIL B. COHEN/RICHARD R.W. BROOKS/LARRY T. GARVIN, Contracts – Cases and Materials, 8th ed., New York: Thomson Reuters/Foundation Press, 2013, pp. 148–150, and Supreme Court of Minnesota, Lefkowitz v. Great Minneapolis Surplus Store, 20.12.1957, 86 N.W.2d 689 ...................................................................... p. 87

III. Switzerland 1.

Obligationenrecht/Code des obligations (Code of Obligations), Arts. 1, 7 .............................................................................................................. p. 89

2.

Bundesgericht/Tribunal fédéral (Federal Supreme Court of Justice), 20.02.1979, (Nussberger c. K.), ATF 105 II 23 ................................................. p. 90

3.

LUC THÉVENOZ/FRANZ WERRO (eds.), Commentaire Romand, Code des obligations I (Commentary to the Code of Obligations, Vol. I), 1st ed., Basel: Helbing Lichtenhahn, 2003, Art. 7, nos. 5, 9–14 (comment by FRANÇOIS DESSEMONTET) ................................................................................... p. 92

IV. Germany 1.

Bürgerliches Gesetzbuch, BGB (Civil Code), § 145 .......................................... p. 93

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2.

Reichsgericht (Imperial Court of Justice), 07.11.1931, RGZ 133, 388 ...................................................................................................... p. 93

3.

Bundesgerichtshof, BGH (Federal Supreme Court of Justice), 16.01.1980, NJW 1980, 1388 .................................................................................................. p. 95

4.

Bundesgerichtshof, BGH (Federal Supreme Court of Justice), 26.01.2005, NJW 2005, 976 ................................................................................ p. 95

V. France 1.

Code civil (Civil Code), Arts. 1101, 1113, 1114, 1118 1st sent., 1121 1st sent., 1582(1) ......................................................................................... p. 96

2.

Cour de cassation, 3e civ. (Court of Cassation, 3rd civil chamber), 28.11.1968 (Maltzkorn c. Braquet), J.C.P. 1969 II n. 15797 ............................. p. 97

3.

FRANÇOIS TERRÉ/PHILIPPE SIMLER/YVES LEQUETTE, Droit civil – Les obligations (Civil Law – Obligations), 11th ed., Paris: Dalloz, 2013, nos. 109–111 ........................................................................................................ p. 98

4.

PHILIPPE LE TOURNEAU et al., Droit de la responsabilité et des contrats. Régimes d’indemnisation (Torts and Contract Law. Compensation systems), 11th ed., Paris: Dalloz, 2017, n. 3124.252 ....................................... p. 100

VI. Belgium SOPHIE STIJNS, Verbintenissenrecht, Boek 1 (Law of Obligations, Book I), Bruges: die Keure, 2015, n. 161 ................................................................................ p. 100

VII. Italy 1.

Codice civile (Civil Code), Art. 1336(1) .......................................................... p. 101

2.

PIETRO RESCIGNO (ed.), Codice Civile, Tomo I (Civil Code, Vol. I [Commentary]), 9th ed., Milan: Giuffrè, 2014, Art. 1336 ............................... p. 101

VIII. The Netherlands 1.

Burgerlijk Wetboek (Civil Code), Arts. 3:37(1), 6:217(1) ............................... p. 102

2.

Hoge Raad (Supreme Court), 10.04.1981 (Hofland v. Hennis), NJ 1981, 532 ...................................................................................................................... p. 102

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3.

DANNY BUSCH et al. (eds.), The Principles of European Contract Law and Dutch Law: A Commentary, The Hague: Kluwer Law International, 2002, Arts. 2:201–2:208, pp. 105 ff. (comment by TON HARTLIEF) ............... p. 103

IX. Poland 1.

Kodeks cywilny (Civil Code), Arts. 71, 543 .................................................... p. 104

2.

STd Najwyższy (Supreme Court), 31.07.1985, III CZP 36/85 ........................ p. 104

3.

STd Najwyższy (Supreme Court), 21.12.1976, I PR 98/76 ............................. p. 104

X. Several jurisdictions in the former Yugoslavia 1.

Croatia ............................................................................................................... p. 105

Zakon o obveznim odnosima (Act on the Law of Obligations), Arts. 254, 255, 256 ....................................................................................................................... p. 105 2.

Serbia ................................................................................................................. p. 106

Zakon o obligacionim odnosima (Act on the Law of Obligations), Arts. 33, 34, 35 ........................................................................................................................... p. 106 3.

Slovenia .............................................................................................................. p. 107

Obligacijski Zakonik (Code of Obligations), Arts. 22(3), 23, 24 ............................. p. 107

XI. Lithuania Lietuvos Respublikos Civilinis kodeksas (Civil Code), Art. 6.171(1) and (3) ......... p. 107

XII. Russian Federation Гражданский кодекс (Civil Code), Arts. 435(1), 437, 494 ................................... p. 108

XIII. People’s Republic of China 1.

人  (Contract Law Act of the People’s Republic of China), Arts. 13–15 ........................................................................................... p. 110

2.

BING LING, Contract Law in China, Hong Kong: Sweet & Maxwell, 2002, n. 3.015 .................................................................................................... p. 111

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XIV. Uniform substantive law instruments 1.

The United Nations Convention on Contracts for the International Sale of Goods (otherwise known as the Vienna Sales Convention or the CISG), Arts. 8(1) and (2), 14(2) .................................................................................... p. 111

2.

HARRY M. FLECHTNER (ed.), Uniform Law for International Sales under the 1980 United Nations Convention (by JOHN O. HONNOLD), 4th ed., Austin: Kluwer Law International, 2009, Art. 14 ............................................ p. 112

3.

International Institute for the Unification of Private Law (UNIDROIT), Unidroit Principles of International Commercial Contracts, Rome: UNIDROIT, 2016,4 Art. 2.1.2 ........................................................................... p. 113

4.

OLE LANDO/HUGH BEALE (eds.), Principles of European Contract Law, Parts I and II, Deventer/Boston: Kluwer Law International, 2000, Art. 2:201 with commentary and annotations .................................................. p. 115

5.

Study Group on a European Civil Code and Research Group on EC Private Law (Acquis Group), Draft Common Frame of Reference, Munich: Sellier, 2009, Book II, Art. 4:201 ..................................................................... p. 116

XV. Summary 1.

Overview of the solutions according to the different jurisdictions and the principles of contract law .................................................................................. p. 117

2.

Systematic overview .......................................................................................... p. 120

Bibliography ............................................................................................................ p. 121

4

Available at: https://www.unidroit.org/instruments/commercial-contracts/unidroit-principles-

2016.

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Materials I. England and Wales 1. High Court (Queen’s Bench Division), Fisher v. Bell, 10.11.1960, [1961] 1 Q.B. 394, [1960] 3 All ER 731 FISHER v. BELL [QUEEN’S BENCH DIVISION (Lord Parker, C.J., Ashworth and Elwes, JJ.), November 10, 1960.] LORD PARKER, C.J.: This is an appeal by way of Case Stated by justices for the City and County of Bristol, before whom an information was preferred by the appellant, a chief inspector of police, against the respondent that he on a certain day in a shop unlawfully did offer for sale a knife which was, to use ordinary terms, a flick knife, contrary to s. 1 of the Restriction of Offensive Weapons Act, 1959. Section 1 (1) of the Act provides: “Any person who manufactures, sells or hires or offers for sale or hire, or lends or gives to any other person – (a) any knife which has a blade which opens automatically by hand pressure applied to a button, spring or other device in or attached to the handle of the knife, sometimes known as a ‘flick knife’ … shall be guilty of an offence … ”

[…] The short facts are these. The respondent keeps a retail shop in Bristol and, in October, 1959, a police constable, walking past the shop, saw in the window, amongst other articles, one of these knives. Behind the knife in the window was a ticket with the words. “Ejector knife–4s.” The police officer went in and informed the respondent that he would be reported for offering for sale such knife, and the respondent replied: “Fair enough”. The sole question is whether the exhibition of that knife in the window with the ticket constituted an offer for sale within the statute. I think that most lay people would be inclined to the view (as, indeed, I was myself when I first read these papers), that if a knife were displayed in a window like that with a price attached to it, it was nonsense to say that that was not offering it for sale. The knife is there inviting people to buy it, and in ordinary language it is for sale; but any statute must be looked at in the light of the general law of the country, for Parliament must be taken to know the general law. It is clear that, according to the ordinary law of contract, the display of an article with a price on it in a shop window is merely an invitation to treat. It is in no sense an offer for sale the acceptance of which constitutes a contract. That is clearly the general law of the country. Not only is that so, but it is to be observed that, in many statutes and orders which prohibit selling and offering for sale of goods, it is very common, when it is so desired, to insert the words “offering or exposing for sale”, “exposing for sale” being clearly words which would cover the display of goods in a shop window. Not only that, but it appears that under several statutes – we have been referred in particular to the Prices of Goods Act, 1939, and the Goods and Services (Price Control) Act, 1941 – Parliament,

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when it desires to enlarge the ordinary meaning of those words, has a definition section enlarging the ordinary meaning of “offer for sale” to cover other matters including, be it observed, exposure of goods for sale with the price attached. In those circumstances, I, for my part, though I confess reluctantly, am driven to the conclusion that no offence was here committed. At first sight it appears absurd that knives of this sort may not be manufactured, they may not be sold, they may not be hired, they may not be lent, they may not be given, but apparently they may be displayed in shop windows; but even if this is a casus omissus – and I am by no means saying that it is – it is not for this court to supply the omission. I am mindful of the strong words of LORD SIMONDS in Magor & St. Mellons Rural District Council v. Newport Corpn. In that case one of the lords justices in the Court of Appeal had, in effect, said that the court, having discovered the supposed intention of Parliament, must proceed to fill in the gaps – what the legislature has not written, the court must write – and in answer to that contention LORD SIMONDS in his speech said: “It appears to me to be a naked usurpation of the legislative function under the thin disguise of interpretation … ” For my part, approaching this matter apart from authority, I find it quite impossible to say that an exhibition of goods in a shop window is itself an offer for sale. We were, however, referred to several cases, one of which is Keating v. Horwood (…), a decision of this court. There, a baker’s van was being driven on its rounds. There was bread in it that had been ordered and bread in it that was for sale, and it was found that that bread was underweight, contrary to the Sale of Food Order, 1921. That order was an order of the sort to which I have referred already and which prohibited the offering or exposing for sale. In giving his judgment, LORD HEWART, C.J., said: “The question is whether, on the facts, there was (i) an offering, and (ii) an exposure, for sale. In my opinion, there were both.”

AVORY, J., agreed. SHEARMAN, J., however, said: “I am of the same opinion. I am quite clear that this bread was exposed for sale, but have had some doubt whether it can be said to have been offered for sale until a particular loaf was tendered to a particular customer.”

There are [several] matters to observe on that case. The first is that the order plainly contained the words “expose for sale”, and, on any view, there was in that case an exposing for sale. Therefore, the question whether there was an offer for sale was unnecessary for decision. Secondly, the principles of general contract law were never referred to; […] For my part, I cannot take that as an authority for the proposition that the display here in a shop window was an offer for sale. The other case to which I should refer is Wiles v. Maddison (…). I find it unnecessary to go through the facts of that case, which was a very different case and where all that was proved was an intention to commit an offence the next day, but, in the course of his judgment, VISCOUNT CALDECOTE, C.J., said:

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1. Offer or invitation to treat | 83 “A person might, for instance, be convicted of making an offer of an article of food at too high a price by putting it in his shop window to be sold at an excessive price, although there would be no evidence of anybody having passed the shop window or having seen the offer or the exposure of the article for sale at that price.”

Again, be it observed, that was a case where, under the Meat (Maximum Retail Prices) Order, 1940, the words were: “No person shall sell or offer or expose for sale or buy or offer to buy … ” Although LORD CALDECOTE, C.J., does refer to the making of an offer by putting an article in the shop window, before the sentence is closed he has, in fact, turned the phrase to one of exposing the article. I cannot get any assistance in favour of the appellant from that passage. Accordingly, I have come to the conclusion in this case that the justices were right, and this appeal must be dismissed. ASHWORTH, J.: I agree. ELWES, J.: I also agree. Appeal dismissed

2. High Court (Queen’s Bench), Pharmaceutical Society of GB v. Boots Cash Chemists (Southern) Ltd., 16.07.1952, [1953] 1 Q.B. 401, [1952] 2 All ER 456 LORD GODDARD, C.J.: This is a Special Case stated under R.S.C., Ord. 34, r. 1, and agreed between the parties and it turns on s. 18 (1) of the Pharmacy and Poisons Act, 1933, which provides: “Subject to the provisions of this Part of this Act, it shall not be lawful – (a) for a person to sell any poison included in Part I of the Poisons List, unless […] the sale is effected by, or under the supervision of, a registered pharmacist.”

The defendants have adopted what is called a “self-service” system in some of their shops – in particular, in a shop at 73, Burnt Oak Broadway, Edgware. The system of self-service consists in allowing persons who resort to the shop to go to shelves where goods are exposed for sale and marked with the price. They take the article required and go to the cash desk, where the cashier or assistant sees the article, states the price, and takes the money. In the part of the defendants’ shop which is labelled “Chemist’s dept.” there are on certain shelves ointments and drugs, some of which contain poisonous substances but in such minute quantities that there is no acute danger. These substances come within Part I of the Poisons List, but the medicines in the ordinary way may be sold without a doctor’s prescription and can be taken with safety by the purchaser. There is no suggestion that the defendants expose dangerous drugs for sale. Before any person can leave with what he has bought he has to pass the scrutiny and supervision of a qualified pharmacist.

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The question for decision is whether the sale is completed before or after the intending purchaser has paid his money, passed the scrutiny of the pharmacist, and left the shop, or, in other words, whether the offer out of which the contract arises is an offer of the purchaser or an offer of the seller. In Carlill v. Carbolic Smoke Ball Co. […] a company offered compensation to anybody who, having used the carbolic smoke ball for a certain length of time in a prescribed manner, contracted influenza. One of the inducements held out to people to buy the carbolic smoke ball was a representation that it was a specific against influenza. The plaintiff used it according to the prescription, but, nevertheless, contracted influenza. She sued the Carbolic Smoke Ball Co. for the compensation and was successful. In the Court of Appeal BOWEN, L.J., said ([1893] 1 Q.B. 269): “… there can be no doubt that where a person in an offer made by him to another person, expressly or impliedly intimates a particular mode of acceptance as sufficient to make the bargain binding, it is only necessary for the other person to whom such offer is made to follow the indicated method of acceptance; and if the person making the offer, expressly or impliedly intimates in his offer that it will be sufficient to act on the proposal without communicating acceptance of it to himself, performance of the condition is a sufficient acceptance without notification.”

Counsel for the plaintiffs says that what the defendants did was to invite the, public to come into their shop and to say to them: “Help yourself to any of these articles, all of which are priced”, and that that was an offer by the defendants to sell to any person who came into the shop any of the articles so priced. Counsel for the defendants, on the other hand, contends that there is nothing revolutionary in this kind of trading, which, he says, is in no way different from the exposure of goods which a shop-keeper sometimes makes outside or inside his premises, at the same time leaving some goods behind the counter. It is a well-established principle that the mere fact that a shop-keeper exposes goods which indicate to the public that he is willing to treat does not amount to an offer to sell. I do not think I ought to hold that there has been here a complete reversal of that principle merely because a self-service scheme is in operation. In my opinion, what was done here came to no more than that the customer was informed that he could pick up an article and bring it to the shop-keeper, the contract for sale being completed if the shop-keeper accepted the customer’s offer to buy. The offer is an offer to buy, not an offer to sell. The fact that the supervising pharmacist is at the place where the money has to be paid is an indication that the purchaser may or may not be informed that the shop-keeper is willing to complete the contract. One has to apply common sense and the ordinary principles of commerce in this matter. If one were to hold that in the case of self-service shops the contract was complete directly when the purchaser picked up the article, serious consequences might result. The property would pass to him at once and he would be able to insist on the shop-keeper allowing him to take it away, even where the shop-keeper might think it very undesirable. On the other hand, once a person had picked up an article he would never be able to put it back and say that he had changed his mind. The shop-keeper could say that the property had passed and he must buy.

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It seems to me, therefore, that it makes no difference that a shop is a self-service shop and that the transaction is not different from the normal transaction in a shop. The shop-keeper is not making an offer to sell every article in the shop to any person who may come in, and such person cannot insist on buying by saying: “I accept your offer”. Books are displayed in a bookshop and customers are invited to pick them up and look at them even if they do not actually buy them. There is no offer of the shop-keeper to sell before the customer has taken the book to the shop-keeper or his assistant and said that he wants to buy it and the shop-.keeper has said: “Yes.” That would not prevent the shop-keeper, seeing the book picked up from saying: “I am sorry I cannot let you have that book. It is the only copy I have got, and I have already promised it to another customer”. Therefore, in my opinion, the mere fact that a customer picks up a bottle of medicine from a shelf does not amount to an acceptance of an offer to sell, but is an offer by the customer to buy. I feel bound also to say that the sale here was made under the supervision of a pharmacist. There was no sale until the buyer’s offer to buy was accepted by the acceptance of the purchase price, and that took place under the supervision of a pharmacist. Therefore, judgment is for the defendants.

3. EWAN MCKENDRICK, Contract Law, 12th ed., 2017, n. 3.3 3.3

Advertisements

The general rule is that a newspaper advertisement is an invitation to treat rather than an offer. In Partridge v. Crittenden [1968] 1 WLR 1204, the appellant advertised Bramblefinch cocks and hens for sale at a stated price. He was charged with the offence of ‘offering for sale’ wild live birds contrary to the Protection of Birds Act 1954. It was held that the advertisement was an invitation to treat and not an offer and so the appellant was acquitted. Lord Parker CJ stated that there was ‘business sense’ in treating such advertisements as invitations to treat because if they were treated as offers the advertiser might find himself contractually obliged to sell more goods than he in fact owned. However, as we have seen, this argument is not conclusive because it could be implied that the offer is only capable of acceptance ‘while stocks last’. Nevertheless, there are certain cases where an advertisement may be interpreted as an offer rather than an invitation to treat. The classic example is the case of Carlill v. Carbolic Smoke Ball 5 […].

5 Note by the author: see on this case the opinion of Lord GODDARD in Pharmaceutical Society v. Boots, above, I.2, pp. 83 ff.

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II. USA 1. The American Law Institute, Restatement of the Law – Contracts (Second), Vol. 1, §§ 1 to 177, 1981, § 26. Preliminary Negotiations6 § 26. Preliminary Negotiations. A manifestation of willingness to enter into a bargain is not an offer if the person to whom it is addressed knows or has reason to know that the person making it does not intend to conclude a bargain until he has made a further manifestation of assent.

Official Comment […] b. Advertising. Business enterprises commonly secure general publicity for the goods or services they supply or purchase. Advertisements of goods by display, sign, handbill, newspaper, radio or television are not ordinarily intended or understood as offers to sell. The same is true of catalogues, price lists and circulars, even though the terms of suggested bargains may be stated in some detail. It is of course possible to make an offer by an advertisement directed to the general public (see § 29), but there must ordinarily be some language of commitment or some invitation to take action without further communication. Illustrations: 1. A, a clothing merchant, advertises overcoats of a certain kind for sale at $50. This is not an offer, but an invitation to the public to come and purchase. The addition of the words “Out they go Saturday; First Come First Served” might make the advertisement an offer. 2. A advertises that he will pay $5 for every copy of a certain book that may be sent to him. This is an offer, and A is bound to pay $5 for every copy sent while the offer is unrevoked. […] REPORTER’S NOTE […] Comment b. Illustration 1 is […] supported by many cases […].

6 For information on the ‘Restatements’ see above, pp. 56–57, and see, e.g., E.A. FARNSWORTH, An Introduction to the Legal System of the United States, 4th ed., New York: OUP, 2010, pp. 87–88; see also M. EISENBERG, ‘Why Is American Contract Law So Uniform?’, below, Case study 4, pp. 227 ff.

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2. E. ALLAN FARNSWORTH/CAROL SANGER/NEIL B. COHEN/RICHARD R.W. BROOKS/LARRY T. GARVIN, Contracts – Cases and Materials, 8th ed., 2013, pp. 148–150, and Supreme Court of Minnesota, Lefkowitz v. Great Minneapolis Surplus Store, 20.12.1957, 86 N.W. 2d 689 ADVERTISEMENTS AS OFFERS […] The general rule is that an advertisement is not an offer, but rather an invitation by the seller to the buyer to make an offer to purchase. […] If advertisements were held to be offers, what would be a store’s position if the demand for the advertised wares exceeded its supply? Might the problem of unexpected demand be solved if sellers were required to have on hand a reasonable supply of advertised merchandise? Another solution might require “first come, first served” to be read into every advertisement. […] Whether an advertisement can ever be an offer is considered in the next case. _____________ LEFKOWITZ v. GREAT MINNEAPOLIS SURPLUS STORE, 86 N.W.2d 689 (Minn. 1957). [The Great Minneapolis Surplus Store published the following advertisement in a Minneapolis newspaper: SATURDAY 9 AM 2 BRAND NEW PASTEL MINK 3-SKIN SCARFS Selling for $89.50 Out they go Saturday, Each … … … $1.00 1 BLACK LAPIN STOLE Beautiful, worth $139.50 … .. $1.00 FIRST COME FIRST SERVED Lefkowitz was the first to present himself on Saturday and demanded the Lapin stole for one dollar. The store refused to sell to him because of the “house rule” that the offer was intended for women only. Lefkowitz sued the store and was awarded $138.50 as damages. The store appealed.] MURPHY, JUSTICE … . On the facts before us we are concerned with whether the advertisement constituted an offer, and, if so, whether the plaintiff’s conduct constituted an acceptance. There are numerous authorities which hold that a particular advertisement in a newspaper or circular letter relating to a sale of articles may be construed by the court as constituting an offer, acceptance of which would complete a contract. […] The test of whether a binding obligation may originate in advertisements addressed to the general public is “whether the facts show that some performance was promised in positive terms in return for something requested.” 1 Williston, Contracts (rev. ed.) § 27. […] [W]here the

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offer is clear, definite and explicit, and leaves nothing open for negotiation, it constitutes an offer, acceptance of which will complete the contract. […] Whether in any individual instance a newspaper advertisement is an offer rather than an invitation to make an offer depends on the legal intention of the parties and the surrounding circumstances. […] We are of the view on the facts before us that the offer by the defendant of the sale of the Lapin fur was clear, definite, and explicit, and left nothing open for negotiation. […] The defendant contends that the offer was modified by a “house rule” to the effect that only women were qualified to receive the bargains advertised. The advertisement contained no such restriction. This objection may be disposed of briefly by stating that, while an advertiser has the right at any time before acceptance to modify his offer, he does not have the right, after acceptance, to impose new or arbitrary conditions not contained in the published offer. Affirmed.

NOTES […] (3) Consumer Protection. In GEISMAR v. ABRAHAM & STRAUSS, 439 N.Y.S.2d 1005 (Dist.Ct.1981), a disappointed shopper sued a department store that had advertised a set of china dishes regularly priced at $280 for only $39.95, but had refused to sell them at that price. The court held that since the advertisement was not an offer, there was no breach of contract. But it went on to hold that she could recover $50 under a New York statute providing that any person “injured” by advertising “which is misleading in a material respect” is entitled to recover actual damages or $50, whichever is greater. Many other states have enacted laws dealing with false advertising […]. In addition, Section 5 of the Federal Trade Commissions Act declares “unfair or deceptive acts or practices” to be unlawful as a matter of federal law. […]

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III. Switzerland7 1. Obligationenrecht/Code des obligations8 (Code of Obligations) Art. 1. Abschluss des Vertrages. Übereinstimmende Willensäußerung. Im Allgemeinen. (1) Zum Abschlusse eines Vertrages ist die übereinstimmende gegenseitige Willensäusserung der Parteien erforderlich. (2) Sie kann eine ausdrückliche oder stillschweigende sein. Art. 7. Antrag ohne Verbindlichkeit, Auskündung, Auslage. (1) Der Antragsteller wird nicht gebunden, wenn er dem Antrage eine die Behaftung ablehnende Erklärung beifügt, oder wenn ein solcher Vorbehalt sich aus der Natur des Geschäftes oder aus den Umständen ergibt. (2) Die Versendung von Tarifen, Preislisten u. dgl. bedeutet an sich keinen Antrag. (3) Dagegen gilt die Auslage von Waren mit Angabe des Preises in der Regel als Antrag.

Translation Art. 1. Conclusion of the contract. Mutual expression of intent. In general. (1) The conclusion of a contract requires a mutual expression of intent by the parties. (2) The expression of intent may be express or implied. Art. 7. Non-binding offer, announcement of prices, display. (1) An offeror is not bound by his offer if he has made an express declaration to that effect or if such a reservation arises from the circumstances or from the particular nature of the transaction. (2) The sending of tariffs, price lists and the like does not constitute an offer. (3) The display of goods with an indication of their price is generally considered to be an offer.

7 For an introduction to Swiss law see, e.g., K. ZWEIGERT/H. KÖTZ, An Introduction to Comparative Law, 3rd ed., Oxford: OUP, 1998, pp. 167–179; P. PICHONNAZ, ‘Switzerland’, in: J.M. Smits (ed.), Elgar Encyclopedia of Comparative Law, 2nd ed., Cheltenham: Edward Elgar Publishing, 2012, pp. 852–861; F. DESSEMONTET/T. ANSAY, Introduction to Swiss Law, 3rd ed., The Hague: Kluwer Law International, 2004. 8 Switzerland has four national languages: German, French, Italian and Romansh (German being the most widely spoken as a first language, followed by French, Italian and then Romansh). We have chosen to provide the reader with the text in German with an English translation. The text is also available in French (Code des obligations) and Italian (Diritto delle obbligazioni).

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2. Bundesgericht/Tribunal fédéral (Federal Supreme Court of Justice), 20.02.1979 (Nussberger c. K.), ATF 105 II 239 A. Werner Nussberger ist Juwelier und Goldschmied in Baden. In einem Schaukasten in der Nähe seines an der Obern Gasse in Baden gelegenen Geschäftes stellte er im Herbst 1974 einen Damenring mit blauem Opal und 25 Brillanten aus. Den Preis für diesen Ring hatte er auf Fr. 13’800.- festgesetzt; aus Versehen brachte aber eine Angestellte Nussbergers, Silvia Meier, am Ring eine Preisetikette an, auf der ein Verkaufspreis von Fr. 1’380.- vermerkt war. Am 15. Oktober 1974 betrat K. das Geschäft Nussbergers und wünschte den ausgestellten Ring zu kaufen. K. wurde von Jürg Jauslin bedient, der das “Garantie-Zertifikat” für den Ring ausstellte und alsdann K. den Ring zu dem auf der Preisanschrift aufgeführten Preise von Fr. 1’380.- überliess. Am folgenden Tage entdeckte Nussberger den Fehler. Er erklärte K. gegenüber den Rücktritt vom Vertrage und forderte ihn auf, den Ring gegen Erstattung des Kaufpreises von Fr. 1’380.- zurückzugeben. Eine Einigung kam nicht zustande. B. Im Januar 1975 erhob Nussberger gegen K. beim Bezirksgericht Baden Klage auf Rückgabe des Ringes, Zug um Zug gegen Bezahlung des Kaufpreises von Fr. 1’380.-. Eventuell sei der Beklagte zu verpflichten, dem Kläger Fr. 12’420.- zu zahlen. Demgegenüber beantragte der Beklagte Abweisung der Klage. In seinem “Widerklageschluss” erklärte er sich bereit, den Ring dem Kläger gegen Erstattung des Kaufpreises sowie gegen Leistung von Schadenersatz im Betrage von Fr. 2’120.- sowie der Erstattung der Kosten eines von ihm eingeholten Gutachtens herauszugeben. Mit Urteil vom 29. Juni 1977 wies das Bezirksgericht Baden die Klage ab, ebenso auf Appellation des Klägers hin das Obergericht (2. Zivilabteilung) des Kantons Aargau am 29. Juni 1978. C. Der Kläger hat gegen die obergerichtliche Erkenntnis die Berufung erklärt, mit der er die Gutheissung seiner Klagebegehren […] verlangt. […] Erwägungen: 1. Nach Art. 7 Abs. 3 OR gilt die Auslage von Waren mit Angabe des Preises in der Regel als Antrag. Das ist unter anderem auch dann der Fall, wenn eine Kaufsache nicht nur im Geschäftslokal, sondern, wie hier, ausserhalb von diesem in einem Schaukasten ausgestellt wird (Schönenberger/Jäggi, n. 28 ad Art. 7 OR). Aus dem angefochtenen Urteil ergeben sich keine Anhaltspunkte, wonach der Beklagte erkannt hat oder doch hätte erkennen müssen, dass der Kläger den Ring zu einem höheren als dem auf der Preisetikette vermerkten Preis verkaufen wollte. Der Vertrag kam somit zustande, als der 9 With regard to the languages used in the decisions of the Federal Supreme Court of Justice see: La Loi sur le Tribunal fédéral, LTF (Federal Supreme Court of Justice Act), 17.06.2005, Art. 54 (in English translation): “(1) Language of the proceedings: Proceedings are conducted in one of the official languages (German, French, Italian, Romansh), as a general rule in the language of the disputed decision. If the parties use a different official language, this language may be used”. See also, the Federal Constitution of the Swiss Confederation of 18 April 1999 (status as of 12 February 2017), Art. 70 (in English translation): “(1) Languages: The official languages of the Confederation are German, French and Italian. Romansh shall be an official language for communicating with persons of Romansh language”.

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Beklagte gegenüber dem Angestellten des Klägers, Jauslin, die Annahme erklärte (Art. 1 Abs. 1 OR). Dass Jauslin einen neuen Antrag gemacht hätte und dieser vom Beklagten angenommen worden wäre, stellt die Vorinstanz nicht fest. Unter diesen Umständen kann auf das Verhalten Jauslins nichts mehr ankommen. Hingegen muss sich der Kläger die von seiner Angestellten Meier als Hilfsperson erstellte falsche Preisanschrift so anrechnen lassen, wie wenn der Fehler ihm selbst unterlaufen wäre; […] 2. a) Der Kläger macht Irrtum geltend. […] Translation A. Werner Nussberger is a jeweller in Baden. In the autumn of 1974, he put a ring set with a blue opal and 25 diamonds in a window close to his shop located on Obere Gasse in Baden. He had priced the ring at 13,800 Swiss Francs (CHF); but, his employee, Silvia Meier, inadvertently put a price tag of CHF 1,380 on the ring. On 15 October 1974, K. entered Nussberger’s shop to buy the ring in question. Jürg Jauslin served him; he established the certificate of guarantee for the ring, then handed it over to K. for the ticket price, i.e. CHF 1,380. Nussberger found out about the mistake the next day. He told K. that he was withdrawing from the contract and asked him to return the ring in exchange for a refund of the purchase price of CHF 1,380. No agreement was reached. B. In January 1975, Nussberger sued K. before the district court of Baden, claiming restitution of the ring in exchange for payment of the purchase price of CHF 1,380; in addition, he asked that the defendant be compelled to pay him CHF 12,420. The defendant moved for the case to be dismissed and, by way of counter claim, declared himself ready to give the ring back to the claimant in return for repayment of the purchase price, a payment of CHF 2,120 by way of damages, and the reimbursement of legal costs. In its judgment of 29 June 1977, the district court of Baden rejected the claim; on appeal by the claimant, the 2nd Civil Chamber of the Obergericht des Kantons Aargau (High Court of the Canton of Aargau) upheld the decision of the court of first instance on 29 June 1978. C. The claimant lodged an appeal against the Obergericht’s decision; petitioning for the admission of his claim […]. The Court considers: 1. According to Art. 7(3) of the Code of Obligations (CO), the display of goods with an indication of their price is generally considered to be an offer. This is also the case where goods are not exposed in a shop but, as is the case here, in an outside window (Schönenberger/Jäggi, n. 28 and Art. 7 CO). The decision in question does not contain any indication that the defendant knew or ought to have known that the applicant wanted to sell the ring at a higher price than shown on the tag. The contract was therefore formed as soon as the defendant communicated his acceptance to Jauslin, the plaintiff’s employee (Art. 1(1) CO). The previous court is not of the opinion that Jauslin made a new offer, nor does it think that the defendant accepted such an offer. In these circumstances, the attitude of Jauslin is of little importance. The fact that the employee Ms Meier incorrectly labelled

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the price of the good must be attributed to her employer as if he had made the error himself; […]. 2. a) The plaintiff asserts that his employee acted in error. […]

3. LUC THÉVENOZ/FRANZ WERRO (eds.), Commentaire Romand, Code des obligations I (Commentary to the Code of Obligations, Vol. I), 1st ed., 2003, Art. 7, nos. 5, 9–14 (comment by FRANÇOIS DESSEMONTET)10 Art. 7 […] II. Individual, non-binding offer […] (Art. 7(1)) […] B. 5

Implied reservation in non-binding offers

[The exception in Art. 7(1)] depends upon the circumstances at hand. The first situation in which it may arise is an advertisement in a newspaper or a poster. In general, advertisements are not considered to be offers. Excessive advertising may prompt sanctions of a different kind […]. Nevertheless, if we were to contractually bind retailers to respect the letter of their advertisements, as in other countries, this might well prevent misleading and false advertisements and compensate the harmful consequences which they have on buyers. […] III. Price lists, current prices, catalogues, etc. (Art. 7(2))

9

In Swiss law, the sending of tariffs, price lists, catalogues, etc., does not constitute an offer. The reason behind this is quantitative restrictions. The solution provided by the Code of Obligations might also be explained by the fact that it is not an offer addressed to anyone in particular. […] Some authors nevertheless consider that there could be an offer if the validity period of the catalogue is specified.

10

Consequently, price lists, catalogues, etc. are not considered to be binding offers unless stated otherwise. IV. Display of goods (Art. 7(3))

11

Art. 7(3) of the Code of Obligations establishes the opposite rule to Art. 7(2): goods displayed are offered for sale in the legal sense of the word.

12

This rule is only applicable to merchandise. Owing to its clear text, the Federal Court does not apply it by analogy to services, e.g. entry to the cinema. One may

10

The second edition of the comment of Art. 7 by ARIANE MORIN of 2012 lays the focus on other aspects. We have hence decided to reproduce the extracts from the first edition, which remain likewise fully up-to-date as to the substance of the matter.

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wonder whether this point of view is justified in a society in which services and intangible goods or services play a much more significant role than in the past. 13

When the price is indicated on displayed goods, the action of the shopkeeper displaying the merchandise is considered to be an offer. […]

14

[…] An offer through the intermediary of a television channel or the Internet is often an offer through the display of merchandise; it all depends on the programme or the website: if it allows you to place a firm order, the virtual window can contain offers (“add to basket”) and invitations to tender (“to obtain further information”), or just advertisements (“car X from CHF […]”). […]

IV. Germany11 1. Bürgerliches Gesetzbuch, BGB (Civil Code) § 145. Bindung an den Antrag. Wer einem anderen die Schließung eines Vertrags anträgt, ist an den Antrag gebunden, es sei denn, dass er die Gebundenheit ausgeschlossen hat.

Translation § 145. Binding effect of an offer. Any person who proposes to enter into a contract with another is bound by the offer, unless he has excluded the possibility of being bound by it.

2. Reichsgericht (Imperial Court of Justice), 07.11.1931, RGZ 133, 388 V. Zivilsenat, Urteil vom 7. November 1931 in Sachen D (Kl.) w. Stadtgemeinde B (Bekl.) Der Kläger schrieb in großen Tageszeitungen und in einer von ihm herausgegebenen Wochenschrift über die Aufführungen des städtischen Theaters in B. Da seine Kritiken der Stadtverwaltung missfielen, beschloss sie, ihm den Zutritt zum Theater zu untersagen. Dies teilte sie ihm […] fernmündlich mit. Trotzdem besuchte der Kläger die am Abend dieses Tages veranstaltete Aufführung von „Faust, Erster Teil“ mit einer Eintrittskarte, die er sich nach Empfang jener Mitteilung für 6 Reichsmark hatte besorgen lassen. Vor Schluss der Vorstellung wurde er durch ein Mitglied der Theaterleitung, das einen Polizeioffizier zuzog, aus dem Theater gewiesen. Das wiederholte sich bei der Aufführung von „Faust, Zweiter Teil“ […], zu der sich der Kläger ebenfalls mittels einer durch einen anderen für 6 Reichsmark besorgten Karte Eintritt verschafft hatte. 11

See on German contract law from a comparative perspective, U. MAGNUS, ‘German Contract Law in the International Arena: A Review of the German Law of Contract: A Comparative Treatise’, Tul. L. Rev. 2006, 565.

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Mit der Klage begehrt der Kläger […] Feststellung, dass die Beklagte verpflichtet sei, ihm auf gültige Eintrittskarten hin Einlass in die Vorstellungen zu gewähren […]. Gründe: […] [E]ine […] Bindung des Theaterunternehmers wird im Schrifttum auf der Grundlage bejaht, dass die Ankündigung einer Theatervorstellung ein bindendes Vertragsangebot an das Publikum sei, welches jedermann durch das Verlangen nach Aushändigung einer Eintrittskarte annehmen könne […]. Aber der bloßen Ankündigung ist keine solche Bedeutung beizumessen. Sie ist nach dem erkennbaren Willen des Unternehmers und nach der dem Wesen der Sache entsprechenden allgemeinen Auffassung – ebenso wie sonstige an die Allgemeinheit ergehende Ankündigungen und Zusendungen von Preislisten – lediglich eine unverbindliche Bereiterklärung, Theaterbesuchsverträge abzuschließen, aber nicht schon Teil des demnächst zu schließenden Vertrags. […] Translation Fifth Civil Chamber, Decision of 7 November 1931 in the matter of D (plaintiff) v. The Municipality of B (defendant). The plaintiff was a theatre critic who wrote reviews of performances in the city theatre in B. His articles appeared in the major daily papers and in a weekly magazine which he himself publishes. Increasingly frustrated by his negative reviews, the defendant city authorities decided to deny him access to their theatre, and communicated this decision to him by telephone […] The very evening after receiving this notice, the plaintiff attended a performance of Faust, Part I, having obtained a ticket for 6 Reichsmark (RM). During the performance one of the theatre staff, accompanied by a police officer, ordered him to leave the theatre. This happened again at a performance of Faust, Part II […], the plaintiff having again procured an entrance ticket through an intermediary for 6 RM. The plaintiff […] seeks a declaration that the defendant was obliged to admit him to performances for which he held a valid ticket […]. Reasoning of the Court: […] While recognising that theatre operators are under no duty to contract, some writers put them under a rather similar obligation by arguing that when they advertise a forthcoming theatrical event they are making a binding offer to the public which anyone can accept by asking for and obtaining a ticket […]. But it is wrong to attribute such force to a mere announcement. It is obviously the intention of the operator, and it is indeed obvious to the public in this situation, that this is simply a non-binding declaration of readiness to contract such as one finds in other public announcements or in the circulation of price lists. While the announcement betokens readiness to sell tickets, it does not form part of any contract subsequently concluded. […]

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3. Bundesgerichtshof, BGH (Federal Supreme Court of Justice), 16.01.1980, NJW 1980, 1388 Aus den Gründen: […] Nach herrschender Meinung ist aber das Ausstellen von Schaufensterware, auch wenn sie mit Preisangaben versehen ist, keine Vertragsofferte im Sinne des § 145 BGB, vielmehr wird der Kunde durch die ausgestellte Ware erst aufgefordert, ein verbindliches Vertragsangebot abzugeben (vgl. Palandt-Heinrichs, BGB, 39. Aufl., § 145 Anm. 1). […]. [Der BGH schliesst sich im Folgenden dieser Auffassung an, der Verf.] Translation Findings: […] The prevailing view in case law and academic writing is that the display of goods in a window is not an offer within the meaning of § 145 BGB even if the price is indicated. On the contrary, the display of goods invites the customer to make an offer […]. [The Federal Supreme Court of Justice shares this view.]

4. Bundesgerichtshof, BGH (Federal Supreme Court of Justice), 26.01.2005, NJW 2005, 976 Zum Sachverhalt: Die Klägerin (Kl.) veräussert Computer nebst Zubehör über eine Website im Internet. Im Januar 2003 legte der zuständige Mitarbeiter der Kl. für das Notebook der Firma S, Typ V.S., einen Verkaufspreis von 2650 € fest und gab diesen in das EDV-gesteuerte Warenwirtschaftssystem der Kl. ein. […] Als Ergebnis dieses Vorgangs enthielt die Datenbank jedoch nicht den eingegebenen Betrag von 2650 €, sondern einen Verkaufspreis von 245 €. […] Der Beklagte bestellte […] ein Notebook […] zu dem auf der Internetseite angegebenen Verkaufspreis von 245 €. Aus den Gründen: […] II. […] 1. […] Das Berufungsgericht ist davon ausgegangen, dass die Kl. nicht bereits mit der Präsentation des Notebooks auf ihrer Internetseite ein gemäss § 145 BGB verbindliches Angebot abgegeben hat, sondern dass sie insoweit lediglich zur Abgabe von Angeboten aufgefordert hat (invitatio ad offerendum). Daraus folgt, dass ein Angebot erst in der Bestellung der Beklagten […] zu dem auf der Internetseite der Kl. angegebenen Verkaufspreis von 245 € zu sehen ist. […] [Der BGH schliesst sich im Folgenden dieser Auffassung an, der Verf.] Translation Facts: The claimant company sells computers as well as computer accessories on a website. In January 2003, the plaintiff company’s employee responsible for such matters, set the price of a laptop, model VS made by company S, at €2,650 and entered this into the computer program that manages the merchandise […] The computer program did not register the entered amount of €2,650 in the database, but rather a selling price of €245. […] The defendant ordered […] a laptop […] at the price of €245 as shown on the website.

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Findings: […] II. […] 1. […] The Court of Appeal is of the opinion that by displaying the laptop computer on its website, the plaintiff company did not make an offer within the meaning of § 145 BGB, but merely presented an invitation to treat (invitatio ad offerendum). Consequently, the defendant’s order is considered to be the first offer […] for the price of €245 as it appeared on the website. […] [The Bundesgerichtshof shares this view.]

V. France 1. Code civil (Civil Code) DES CONTRATS OU DES OBLIGATIONS CONVENTIONNELLES EN GENERAL Art. 1101. Le contrat est un accord de volontés entre deux ou plusieurs personnes destiné à créer, modifier, transmettre ou éteindre des obligations. Art. 1113. Le contrat est formé par la rencontre d’une offre et d’une acceptation par lesquelles les parties manifestent leur volonté de s’engager. Cette volonté peut résulter d’une déclaration ou d’un comportement non équivoque de son auteur. Art. 1114. L’offre, faite à personne déterminée ou indéterminée, comprend les éléments essentiels du contrat envisagé et exprime la volonté de son auteur d’être lié en cas d’acceptation. A défaut, il y a seulement invitation à entrer en négociation. Art. 1118. L’acceptation est la manifestation de volonté de son auteur d’être lié dans les termes de l’offre. […] Art. 1121. Le contrat est conclu dès que l’acceptation parvient à l’offrant. […] DE LA NATURE ET DE LA FORME DE LA VENTE Art. 1582. (1) La vente est une convention par laquelle l’un s’oblige à livrer une chose, et l’autre à la payer.

Translation CONTRACTS AND OBLIGATIONS ARISING BY VIRTUE OF AGREEMENTS Art. 1101. A contract is an agreement by which two or more persons express their willingness to create, modify, transfer, or extinguish obligations. Art. 1113. A contract is formed by an offer and an acceptance expressing the parties’ willingness to be bound. Such willingness may be expressed in words or clearly implied from the relevant party’s conduct.

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Art. 1114. An offer, whether it is made to a specific person or to the world at large, contains all the essential elements of the proposed contract and indicates the willingness of the offeror to be bound in case of acceptance. Failing this, it is only an invitation to treat. Art. 1118. Acceptance indicates the offeree’s willingness to be bound by the terms of the offer. […] Art. 1121. A contract is concluded as soon as acceptance is received by the offeror. […] THE CHARACTERISTICS AND TYPES OF SALE Art. 1582. (1) A sale is an agreement by which one person binds himself to deliver a thing, and another is required to pay for it. […]

2. Cour de cassation,12 3e civ. (Court of Cassation, 3rd civil chamber), 28.11.1968 (Maltzkorn c. Braquet), J.C.P. 1969 II n. 1579713 15797 CONTRATS ET OBLIGATIONS. – Offre de contracter. Offre au public. Obligation du pollicitant. Vente d’immeuble (Cass. civ. 3e, 28 novembre 1968; Maltzkorn c. Braquet) […]. LA COUR; – Sur le moyen unique: – […] Attendu que l’offre faite au public lie le pollicitant à l’égard du premier acceptant dans les mêmes conditions que l’offre faite à personne déterminée; – Attendu qu’il résulte des énonciations de l’arrêt partiellement confirmatif que Maltzkorn, ayant pris connaissance d’une annonce parue dans le journal L’Ardennais du 23 mai 1961, proposant la vente d’un terrain déterminé au prix de 25’000 F, fit connaître à Braquet, propriétaire, qu’il acceptait son offre; que cependant Braquet prétendit n’être pas engagé par cette offre; – Attendu que pour écarter la demande de Maltzkorn, tendant à la régularisation de la vente, l’arrêt relève que «l’offre faite par la voie de la presse, d’un bien ne pouvant être acquis que par une seule personne, ne saurait être assimilée à l’offre faite à une personne déterminée; qu’elle constitue seulement un appel à des amateurs éventuels et ne peut, en conséquence lier son auteur à l’égard d’un acceptant»; qu’en statuant par ce motif d’ordre général, alors qu’elle constatait que Braquet avait déclaré que «la ferme n’était toujours pas vendue» lorsqu’il avait reçu notification de l’acceptation, et sans relever aucune circonstance d’où elle ait pu déduire 12 Note by the author: In private law matters, the Cour de cassation is the highest court in France. It has the power to confirm a judgment or to quash and annul it. If quashed and annulled, the case is sent before another court of first instance or a court of appeal in order to deliver a decision respecting the ruling of the Cour de cassation. This process is called the renvoi. The Cour de cassation rules on points of law, not on the facts. The facts of the case are re-examined by the court of first instance or a court of appeal. 13 Note by the author: Given the high priority the Court of Cassation has given over the last decades to the protection of the recipient of advertisements, it is submitted that the present case is still good law, despite the use of the words “non equivoque” (clearly) in Art. 1113 and the wording of the new Art. 1114 of the French Civil Code.

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que l’annonce constituait seulement une invitation à engager des pourparlers ou que l’offre de Braquet comportait des réserves, la Cour d’appel n’a pas donné de base légale à sa décision; Par ces motifs: – Casse et annule l’arrêt rendu entre les parties par la Cour d’appel de Nancy, le 24 novembre 1966, et renvoie devant la Cour d’appel de Reims. Translation 15797 CONTRACTS AND OBLIGATIONS. – Offer to contract. Offer to the public. Obligation of the offeror. Sale of property (Cour de cassation, 3rd civil chamber, 28th November 1968; Maltzkorn v. Braquet) […]. THE COURT; – On the single ground of appeal: – […] Whereas an offer made to the public at large binds the offeror vis-à-vis the first person who accepts it in the same way as an offer made to a specific person; – Whereas it results from the partially upheld decision that Maltzkorn, having become aware of an advertisement proposing the sale of a given piece of land for 25,000 francs in the newspaper Ardennais on 23 May 1961, made known to Braquet, the owner, that he accepted the latter’s offer; that, however, Braquet claimed not to be bound by the offer; – Whereas the grounds for dismissal of Maltzkorn’s claim for an order requiring the sale to be completed, as set out in the contested judgment, state that “an offer made in a newspaper for the sale of an asset which can only be purchased by one person cannot be equated with an offer made to a specific person; it constitutes merely an invitation to treat addressed to potential purchasers, and cannot therefore bind the person by whom it is made vis-à-vis a person who accepts it”; – Whereas in making that general ruling, despite its finding that Braquet, upon receiving notice of the acceptance, had stated that “the farm has not yet been sold”, and without mentioning any factor which could have prompted it to infer that the advertisement constituted merely an invitation to enter into negotiations or that Braquet’s offer was subject to any qualification, the Court of Appeal failed to establish any legal basis for its decision; Decides: – To quash and annul the decision of the Court of Appeal in Nancy given on 24 November 1966 and hereby refers the case back to the Court of Appeal in Reims for reconsideration.

3. FRANÇOIS TERRÉ/PHILIPPE SIMLER/YVES LEQUETTE, Droit civil – Les obligations (Civil Law – Obligations), 11th ed., 2013 109 The precision of the offer ◊ An expression of willingness only constitutes an offer if it is sufficiently precise. In order for the simple acceptance of an offer to be adequate to form a contract, the offer must clearly specify the conditions of the potential contract by setting out, at the very least, its essential elements. […] 110 The firmness of the offer ◊ In order for a proposal to enter into a contract to qualify as an offer, its acceptance alone must suffice to form a contract. Consequently, a proposal would not constitute an offer, even if it contained the essential elements of the proposed contract, if the person who made it had signalled his desire not to be bound if it were

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accepted. This is also the case where the person proposing to enter into a contract reserves the possibility to choose the other contracting party. Such a reservation could be expressly stipulated: a manufacturer or retailer draws up a detailed draft contract for use with potential customers stipulating all the while that the offer is “subject to confirmation.” As a result, the person who initiates the contract has the intention of reserving the final say in the conclusion of the contract for himself; he remains free to accept or not to accept orders made on the strength of his proposal to enter into a contract. The reservation causes a role reversal: the addressee of the proposal to contract becomes the offeror even though he has adhered to the conditions set out by the person proposing to contract. A reservation may also be implied, resulting from the nature of the proposed agreement. This is the case where the proposal to enter into a contract is addressed to the public and is of an intuitu personae character, that is to say that the identity of the contracting party is a decisive factor. By publishing an advert to rent out a building or to fill a job opening, the author obviously does not intend to be bound to accept the first person who presents himself and this is so even if this person were to accept all the terms of the lease or employment contract that would be put to him. The author of the advertisement remains free to choose to contract with the party who appears the most suitable from amongst those who respond to his proposal, or indeed to choose not to contract with any of them. The same is true for an offer to give someone credit because the person who proposes the contract must be able to assess the solvency of the person who accepts. Here again, the offeror will not be the person who initiated the contractual process but the person who responded to this first move. One cannot however consider an offer to be disqualified from being an invitation to enter into negotiations just because it is accompanied by a reservation. It all depends on the nature of the reservation. […] An offer made “while stocks last” remains a valid offer. As long as there is still stock remaining, the offeror must honour all the orders that he receives. Far from depending on the will of the person who commits himself, the validity of the offer depends on whether the terms are sufficiently objective to make judicial control possible […]. 111 Consumer Protection ◊ Certain rules on consumer protection stipulate that the offer to contract must necessarily come from a professional, even if he did not take the first step in the contractual process. These texts also regulate the form of the contract, the content of the offer as well as the period during which it must remain open. These measures are in line with a group of measures that aim to put the consumer in such a position so as he is well informed and thus able to give his consent after careful consideration. […]

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4. PHILIPPE LE TOURNEAU et al., Droit de la responsabilité et des contrats. Régimes d’indemnisation (The Law of Contracts and Torts. Compensation Systems), 11th ed., 2017 Sect. 3 §3

Special obligations of professionals

Loyalty of the contracting party […] G. Moral duties […] 2. Coherence […]

3124.252 Application: taking into account the advertising material of professionals. Principle. A strong trend is emerging – one which appears to be an excellent approach – to take into account a professional’s advertising material, or at least those materials that are given to the client (catalogues, brochures, pamphlets, leaflets, but not posters or advertisements in the media – […]), when analysing contractual obligations. In other words, the message in the advertisement would engage the responsibility of the retailer who disseminates it: its content would be integrated into the contract as if it were, no more or less than an annex to it, on the condition that the contract does not include a provision stating otherwise […]. A sufficiently precise and definite advertisement therein constitutes an offer to contract which, when its terms are accepted by the customer, binds the advertiser, as the content is integrated into the contract […]. It is a way of ensuring truthfulness: in this instance, truthfulness to oneself, to one’s word and writings, in a word, requiring that all professionals act consistently […].

VI. Belgium SOPHIE STIJNS, Verbintenissenrecht, Boek 1 (Law of Obligations, Book I), 2015 § 2.

Offer and acceptance

A. OFFER 161. The offer is the fixed and precise proposal to contract, made by one of the parties, in which all essential and substantial elements are present for the conclusion of the agreement, so that the other party has only to accept the agreement. It is therefore required that the offeror has the intention to be bound by an agreement in the event of acceptance (a “firm” proposal to contract) and that the elements of the proposed contract are sufficiently determined (a “precise” or “complete” proposal to contract). If one of these two elements is missing, there is only an invitation to treat. […] There may, of course, still be a dispute about whether the person making the offer did intend to make a binding proposal to the offeree. The assessment thereof depends on the actual circumstances, taking into account the statements and the behaviour of the offeror. In the event of a public offer (e.g. in a shop window or via the media, including the internet) in which all essential elements regarding the object and the price are to be found, it is assumed that it is indeed an offer, but only as long as the stock lasts. A

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proposal to the public for the conclusion of a contract intuitu personae [i.e. of a strictly personal nature] is generally assumed to merely be an invitation to make an offer.

VII. Italy14 1. Codice civile (Civil Code) Art. 1336. Offerta al pubblico. (1) L’offerta al pubblico, quando contiene gli estremi essenziali del contratto alla cui conclusione è diretta, vale come proposta, salvo che risulti diversamente dalle circonstanze o dagli usi. […]

Translation Art. 1336. Offer to the public. (1) An offer to the public is deemed to be a valid offer when it contains the essential terms required to form a contract, unless the circumstances or usage suggest otherwise. […]

2. PIETRO RESCIGNO (ed.), Codice Civile, Tomo I (Civil Code, Vol. I [Commentary]), 9th ed., 2014, Art. 1336 1 Conditions of the offer. An offer to the public may be individual or multiple according to whether the contract is proposed to one or many persons; in the first case, the offer expires with the first acceptance, in the second case, then all acceptances that correspond to available goods are effective. […]. 2 Offer to the public and invitation to treat. […] Advertisement of a product normally constitutes an invitation to treat […]; however, according to the decision of the Tribunale di Milano on 3 August 1948, advertisements in newspapers can constitute valid offers when the essential elements of the contract are present, T Milano 03.08.1948, GI, 1949, I, 2, 154. […]15 5 Multiple acceptances. Where there are multiple, simultaneous acceptances of an offer (that is to say where there is no determinable order of preference), the offeror must be given the power to choose […]. 14

For a brief introduction to Italian law, see K. ZWEIGERT/H. KÖTZ, Introduction to Comparative Law (fn. 7), pp. 104–107; B. POZZO, ‘Italy’, in: J. M. Smits (ed.), Elgar Encyclopedia (fn. 7), pp. 453–461. On the Codice civile, see, e.g., G. CIAN, ‘Fünfzig Jahre italienischer Codice civile’, ZEuP 1993, 120–131. 15 Note by the author: The Tribunale di Milano is a court of first instance and the decision dates from 1948. Given that no subsequent case law defending this position was found, it is submitted that the case remained exceptional and was not followed by most other, and in particular higher courts.

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6 Case law. […] 6.4. According to BIANCA, the display of goods for sale in shops or in supermarkets is the equivalent of an offer made to the public. In such a case, the conclusion of the contract would occur at the moment when the goods that one wishes to buy in exchange for payment of a price are presented at the cash desk. […]

VIII. The Netherlands16 1. Burgerlijk Wetboek (Civil Code) Art. 3:37. (1) Tenzij anders is bepaald, kunnen verklaringen, met inbegrip van mededelingen, in iedere vorm geschieden, en kunnen zij in een of meer gedragingen besloten liggen. […] Art. 6:217. (1) Een overeenkomst komt tot stand door een aanbod en de aanvaarding daarvan. […]

Translation Art. 3:37. (1) Unless otherwise provided, declarations, including communications, can be made in any form; declarations may be inferred from conduct. […] Art. 6:217. (1) A contract is formed by an offer and its acceptance. […]

2. Hoge Raad (Supreme Court), 10.04.1981 (Hofland v. Hennis), NJ 1981, 532 [Facts: Hofland offered a house for sale at a specified price through an advertisement made in a specialist magazine. Hennis saw the advertisement and declared acceptance of Hofland’s offer. When Hofland became aware that it was Hennis who wanted to buy the house, he refused to sell it to him. Hennis asserted that by him accepting the offer, a purchase contract had been concluded between the two.] […] Vooropgesteld moet worden dat een advertentie waarin een individueel bepaalde zaak voor een bepaalde prijs te koop wordt aangeboden, zich in beginsel niet ertoe leent door eventuele gegadigden anders te worden opgevat dan als een uitnodiging om in 16 For a brief introduction to Dutch law, see K. ZWEIGERT/H. KÖTZ, Introduction to Comparative Law (fn. 7), pp. 101–103; J.M. SMITS, ‘The Netherlands’, in: J.M. Smits (ed.), Elgar Encyclopedia (fn. 7), pp. 620–624; J.M.J. CHORUS/W.J.M. VOERMANS/E.H. HONDIUS, Introduction to Dutch Law, 5th ed., Alphen aan den Rijn: Kluwer Law International, 2016.

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onderhandeling te treden, waarbij niet alleen prijs en eventuele verdere voorwaarden van de koop, maar ook de persoon van de gegadigde van belang kunnen zijn. […] Translation […] When a specific good is offered for sale at a specified price, it is assumed that in most cases an interested party should not interpret this as anything other than an invitation to enter into negotiations, where not only the price and any further conditions of purchase are of interest, but also the identity of the potential contractual partner. […]17

3. DANNY BUSCH et al. (eds.), The Principles of European Contract Law and Dutch Law: A Commentary, 2002, Arts. 2:201–2:208, pp. 105 ff. (comment by TON HARTLIEF) […] 1. General. a) The offer and acceptance model. A contract comes into being by the mutual consent of the parties. In general the mutual consent is brought about when an offer is accepted. […] 2. Existence of the contract. a) Requirements for an offer to become effective. Being a proposal to make a contract, an offer becomes a contract when it is accepted. A proposal amounts to an offer if that proposal is defined in such a manner that by its acceptance a contract is immediately formed. […] An acceptance is the expression of consenting to the terms of an offer. Both the offer and acceptance are the expression of intention which can be expressed by words (spoken or written), conduct and even by not acting (see Art. 3:37 (1) BW […]). b) Proposals to the public. Proposals to the public may take many forms: advertisements, posters, circulars, window displays, invitations to tender, auctions etc. […] c) An offer or simply an invitation to make an offer? An offer has to be distinguished from an invitation to negotiate or to make an offer. Interpreting the expressions and conduct of the parties is decisive. […] In general advertising a specific good for sale, like a house or a car, is an invitation to negotiate or to make an offer. See Hoge Raad 10th April 1981, NJ 1981, 532 (Hofland v. Hennis) […] 3. Goods and services offered at stated prices. The Dutch Code does not contain a provision like Art. 2:201 paragraph (3) PECL, even though, in general, a public proposal to supply goods or services at stated prices is presumed to be an offer to sell or supply at that price until the stock of goods, or the supplier’s capacity to supply the service, becomes exhausted. […]

17

Note by the author: It may further be noted that, with respect to unique goods, negotiations about the price are much more frequent, hereby making the invitation to make an offer much more relevant in practice than in respect to goods belonging to stocks.

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IX. Poland 1. Kodeks cywilny (Civil Code) Art. 71. Ogłoszenia, reklamy, cenniki i inne informacje, skierowane do ogółu lub do poszczególnych osób, poczytuje siV w razie wTtpliwości nie za ofertV, lecz za zaproszenie do zawarcia umowy. Art. 543. Wystawienie rzeczy w miejscu sprzedaży na widok publiczny z oznaczeniem ceny uważa siV za ofertV sprzedaży.

Translation Art. 71. Announcements, advertisements, price lists and other information addressed to the public or to individual persons shall not be considered as an offer but as an invitation to enter into a contract. Art. 543. A public display of goods with indication of price at the place of sale shall be considered an offer to sell.

2. Sąd Najwyższy (Supreme Court), 31.07.1985, III CZP 36/85 […] Oświadczenie nabywcy, że nabywa encyklopediV wystawionT w ksiVgarni, nie powoduje zawarcia umowy sprzedaży w sytuacji, gdy wymieniony tytuł zaopatrzony był klauzulT: “sprzedaż zamkniVta – przydział dla nauczycieli” umieszczonT w zwiTzku z porozumieniem zawartym miVdzy Ministrem Oświaty i Wychowania i Zrzeszeniem KsiVgarstwa w sprawie zaopatrzenia nauczycieli w niezbVdne ksiTżki. […] Translation […] By declaring his desire to purchase an encyclopedia displayed in a bookshop, the buyer [not a teacher] shall not be deemed to have concluded a sales contract where the encyclopedia is accompanied by the reservation: “Restricted sale – Intended for Teachers”, placed there in accordance with an agreement between the Minister of Education and the Booksellers Association to supply teachers with required textbooks. […]

3. Sąd Najwyższy (Supreme Court), 21.12.1976, I PR 98/76 […] Ogłoszenie zamieszczone w gazecie jest zaproszeniem do wszczVcia rokowan´ w przedmiocie umowy o pracV. […]

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Translation […] A newspaper advertisement relating to an employment contract is an invitation to enter into negotiations. […]

X. Several jurisdictions in the former Yugoslavia18 1. Croatia: Zakon o obveznim odnosima (Act on the Law of Obligations) Opc´a ponuda. Članak 254. Prijedlog za sklapanje ugovora upuc´en neodreðenom broju osoba koji sadrži bitne sastojke ugovora cˇijem je sklapanju namijenjen vrijedi kao ponuda, ako drukcˇije ne proizlazi iz okolnosti slucˇaja ili obicˇaja. Izlaganje robe. Članak 255. Izlaganje robe s naznakom cijene smatra se ponudom, ako drukcˇije ne proizlazi iz okolnosti slucˇaja ili obicˇaja. Slanje kataloga i oglasa. Članak 256. (1) Slanje kataloga, cjenika, tarifa i drugih obavijesti te oglasi dani u tisku, lecima, radiom, televizijom, elektronicˇkim putem ili na koji drugi nacˇin ne smatraju se ponudom za sklapanje ugovora, nego samo pozivom da se ucˇini ponuda pod objavljenim uvjetima, ako drukcˇije ne proizlazi iz takvih izjava volje. (2) Ali c´e pošiljatelj takvih poziva odgovarati za štetu koju bi pretrpio ponuditelj ako bez osnovanog razloga nije prihvatio njegovu ponudu.

Translation

General Offer. Art. 254. A proposal to enter into a contract addressed to an indefinite number of persons and containing all essential terms of the intended contract shall be deemed to be an offer, unless the circumstances of the case or the usage indicate otherwise. Display of Goods. Art. 255. Any display of goods with a price indication shall be deemed to be an offer unless the circumstances of the case or the usage indicate otherwise. Dispatch of Catalogues and Advertisements. Art. 256. (1) Any dispatch of catalogues, price lists, tariffs and other publications as well as advertisements in the press, leaflets, on the radio, television, by means of electronic media or any other means shall not be deemed to be an offer to enter into a contract, but only an invitation to make an offer under the conditions made public, unless such statements of assent indicate otherwise.

18

Similar provisions are in force in Montenegro, Zakono o obligacionim odnosima (Act on the Law of Obligations), Arts. 25, 20, 28, and in Bosnia and Herzegovina, Zakon o obligacionim odnosima (Act on the Law of Obligations), Arts. 33–35.

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(2) However, a sender of such invitations shall be held accountable for any damage the offeror may suffer as a result of the sender’s refusal of the offer without a justified reason.

2. Serbia: Zakon o obligacionim odnosima (Act on the Law of Obligations) Opšta ponuda. Član 33. Predlog za zakljucˇenje ugovora ucˇinjen neodreðenom broju lica, koji sadrži bitne sastojke ugovora cˇijem je zakljucˇenju namenjen, važi kao ponuda, ukoliko drukcˇije ne proizlazi iz okolnosti slucˇaja ili obicˇaja. Izlaganje robe. Član 34. Izlaganje robe sa oznacˇenjem cene smatra se kao ponuda, ukoliko drukcˇije ne proizlazi iz okolnosti slucˇaja ili obicˇaja. Slanje kataloga i oglasa. Član 35. (1) Slanje kataloga, cenovnika, tarifa i drugih obaveštenja, kao i oglasi ucˇinjeni putem štampe, letaka, radija, televizije ili na koji drugi nacˇin, ne predstavljaju ponudu za zakljucˇenje ugovora, nego samo poziv da se ucˇini ponuda pod objavljenim uslovima. (2) Ali c´e pošiljalac takvih poziva odgovarati za štetu, koju bi pretrpeo ponudilac, ako bez osnovanog razloga nije prihvatio njegovu ponudu.

Translation General Offer. Art. 33. A proposal to conclude a contract made to an unspecified number of persons and containing essential constitutive elements of contract envisaged by the proposal, shall be valid as an offer, unless something else follows from circumstances of the case or usage. Display of Merchandise. Art. 34. Display of merchandise with a price indicated shall be considered as an offer, unless something else follows from circumstances of the case or from usage. Sending Catalogues and Advertisements. Art. 35. (1) Sending catalogues, price lists, tariffs and other information, as well as advertisements published in the press, presented by way of leaflets, by radio, television or in some other way, shall not be considered as an offer to enter into a contract, but only as an invitation to make an offer under the terms announced. (2) However, a sender of such an invitation shall be liable for damage caused to the offeror, after failing, without a justified reason, to accept the offer.

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3. Slovenia: Obligacijski Zakonik (Code of Obligations) Ponudba. 22. cˇlen. […] (3) Predlog naslovljen nedolocˇenemu številu oseb, ki vsebuje vse bistvene sestavine, se šteje kot vabilo k dajanju ponudb, cˇe iz okolišcˇin ne izhaja drugacˇe. Razstavljanje blaga. 23. cˇlen. Razstavljanje blaga z oznacˇitvijo cene se šteje za ponudbo, cˇe ne izhaja iz okolišcˇin primera ali iz obicˇajev kaj drugega. Katalogi in oglasi. 24. cˇlen. (1) Poslani katalogi, ceniki, tarife in druga obvestila ter oglasi v tisku, z letaki, po radiu, televiziji ali kako drugacˇe niso ponudbe za sklenitev pogodbe, temvecˇ samo vabila k ponudbi pod objavljenimi pogoji. (2) Vendar pošiljatelj takšnih vabil odgovarja za škodo, ki je nastala ponudniku, cˇe brez utemeljenega razloga ne sprejme njegove ponudbe.

Translation Offer. Art. 22. […] (3) A proposal addressed to an indeterminate number of persons that contains the essence of a contract shall be deemed an invitation to submit offers unless it follows otherwise from the circumstances. Display of goods. Art. 23. The display of goods labelled with a price shall be deemed an offer, unless it follows otherwise from the circumstances or from custom. Catalogues and Advertisements. Art. 24. (1) Catalogues, price lists, tariffs and other notices that are sent and advertisements in the press, on flyers, on the radio, on television or elsewhere shall not be deemed offers for the conclusion of a contract, but merely invitations to make an offer under the conditions published. (2) However any sender of such invitations that does not accept an offer without justifiable grounds shall be liable for any damage incurred by the offeror.

XI. Lithuania Lietuvos Respublikos Civilinis kodeksas (Civil Code) 6.171 straipsnis. Viešoji oferta. (1) ViešTja oferta laikomas visiems skirtas pasiūlymas sudaryti sutarti˛, taip pat prekiu˛ pažymėtomis kainomis išdėstymas parduotuvės vitrinoje ar lentynoje arba atlyginimo pažadėjimas už tam tikru˛ veiksmu˛ atlikimT. […] (3) ViešTja oferta nelaikomi kainorašcˇiai, prospektai, katalogai, tarifai ir kita informacinė medžiaga, išskyrus ˛istatymu˛ nustatytas išimtis.

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Translation Art. 6.171. Offer to the public. (1) An offer to the public, the display of goods with indicated price on the shelves of a shop or in a shop window, or a promise to pay for the performance of certain actions, shall be deemed to be an offer for the conclusion of a contract made to any person interested. […] (3) Price lists, prospectuses with prices, priced catalogues, tariffs and other information materials shall not be considered an offer to the public unless there are exceptions established by law.

XII. Russian Federation19 Гражданский кодекс (Civil Code) Статья 435. Оферта. (1) Офертой признается адресованное одному или нескольким конкретным лицам предложение, которое достаточно определенно и выражает намерение лица, сделавшего предложение, считать себя заключившим договор с адресатом, которым будет принято предложение. Оферта должна содержать существенные условия договора. Статья 437. Приглашение делать оферты. Публичная оферта. (1) Реклама и иные предложения, адресованные неопределенному кругу лиц, рассматриваются как приглашение делать оферты, если иное прямо не указано в предложении. (2) Содержащее все существенные условия договора предложение, из которого усматривается воля лица, делающего предложение, заключить договор на указанных в предложении условиях с любым, кто отзовется, признается офертой (публичная оферта). Статья 494. Публичная оферта товара. (1) Предложение товара в его рекламе, каталогах и описаниях товаров, обращенных к неопределенному кругу лиц, признается публичной офертой (пункт 2 статьи 437), если оно содержит все существенные условия договора розничной купли-продажи. (2) Выставление в месте продажи (на прилавках, в витринах и т.п.) товаров, демонстрация их образцов или предоставление сведений о продаваемых товарах (описаний, каталогов, фотоснимков товаров и т.п.) в месте их продажи признается публичной офертой независимо от того, указаны ли цена и другие существенные условия договора розничной купли-продажи, за исключением случая, когда продавец явно определил, что соответствующие товары не предназначены для продажи.

19 For a brief introduction to Russian contract law, see C. OSAKWE, ‘Modern Russian Law of Contracts: A Functional Analysis’, Loy. L.A. Int’l & Comp. L. Rev. 2002, 113. On Russian law in general, see W.E. BUTLER, ‘Russian Law’, in: J.M. Smits (ed.), Elgar Encyclopedia (fn. 7), pp. 777–788. For a detailed account, see W.E. BUTLER, Russian Law, 3rd ed., Oxford: OUP, 2009.

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Translation Art. 435. Offer. (1) A proposal addressed to one or several concrete persons shall be recognised as an offer if it is sufficiently precise and expresses the intention of the person who made it to be bound by the contract with the addressee who accepts it. The offer shall contain the essential terms of the contract. […] Art. 437. Invitation to Make an Offer. Public Offer. (1) Advertisements and other proposals, addressed to an indefinite circle of persons, shall be regarded as an invitation to make an offer, unless the contrary is expressly indicated in the proposal. (2) A proposal containing all the essential terms of the contract and expressing the willingness of the person who is making the proposal, to conclude the contract on the terms indicated in the proposal, with any person responding to it, shall be recognised as a public offer. Art. 494. The Public Offer of Goods. (1) The offer of goods in advertisements, merchandise catalogues and descriptions of goods, referred to people at large, shall be recognised as a public offer (section 2 of Article 437), if it contains all the essential terms and conditions of the retail sale contract. (2) The putting up of goods in places of sales (on counters, in windows, etc.), the demonstration of other samples or the presentation of information about goods sold (descriptions, catalogues, photographs of goods, etc.) in places of sales shall be recognised as a public offer, regardless of the fact whether the price or other essential terms and conditions of the sale contract are indicated, except for the case when the seller has clearly determined that relevant goods are not intended for sale.

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XIII. People’s Republic of China20 1. র ⟯⍪䁞☖⤫⮗⢨⢬䄝 (Contract Law Act of the People’s Republic

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