European Contract Law (2nd Edition)

Cover
European Contract Law
Copyright
Summary Table of Contents
Detailed Table of Contents
Table of British Cases
List of Abbreviations
1. Development of European Contract Law
	A. Introduction
	B. Contract Law and Economic Order
	C. European Union Contract Law
	D. A European Code of Contract Law?
2. Negotiation and Formation of Contracts
	A. The Consent of the Parties
	B. The Offer
		I. Definiteness of the offer
		II. Intention to be bound
		III. Effect of the offer
		IV. Termination of the offer
			1. Refusal or failure to accept an offer
			2. Expiry of time for acceptance
			3. Revocation of the offer
			4. Death or incapacity
	C. Acceptance
		I. Declaration of acceptance
			1. Acceptor’s intention to be bound
			2. Effectiveness of declaration of acceptance
		II. Acceptance by conduct
			1. Acceptance by commencing performance
			2. Acceptance by silence
		III. Qualified acceptance
		IV. Delayed acceptance
	D. Liability for Breaking Off Negotiations
3. The Definiteness of the Contract
	A. Introduction
	B. Types of Case
		I. Agreements to agree
		II. Unilateral price-​fixing
4. Tests of Earnestness
	A. Introduction
	B. Cause as a Requirement for Validity?
	C. Gifts
		I. Formal requirements in continental law
		II. The consideration doctrine in English law
		III. Executed gifts
		IV. The enforcement of informal promissory gifts
			1. Pledges of contributions
			2. Maintenance payments
			3. Payment for services rendered
	D. Other Gratuitous Transactions
		I. Contracts of guarantee
		II. Contracts for the use of property
		III. Contracts for the management of affairs
		IV. Offers to contract
		V. Modification of contracts
	E. The Intention to Enter a Legal Obligation
	F. Summary
5. Formalities
	A. Introduction
	B. Reasons for Formal Requirements
	C. Types of Formalities
	D. Sanctions
		I. Exclusion of oral evidence
		II. Invalidity
			1. Guarantees
			2. Sales of land
		III. Other sanctions
	E. Enforcement of Contracts Lacking the Requisite Form
6. Interpretation of Contracts
	A. Introduction
	B. Intention and Expression: the Two Theories
	C. Objective Interpretation
	D. Maxims of Interpretation
	E. Forms of Constructive Interpretation
		I. Implication of terms by default rules
		II. Constructive interpretation
		III. Collateral duties
7. Unfair, Illegal, and Immoral Contracts
	A. Introduction
	B. Inequality between Performance and Counterperformance
	C. Undue Restraints on Personal or Economic Freedom
		I. Basics
		II. Long-​term contractual relationships
		III. Non-​compete agreements
		IV. Partial invalidity
	D. Breach of the Law
	E. Restitution of Benefits Conferred
8. The Control of Unfair Contract Terms
	A. Introduction
	B. Judicial Control
	C. Legislative Options
		I. Unfair contract terms in contracts between businesses
		II. Standard terms and individually negotiated terms
		III. When is a contract term unfair?
		IV. Partial invalidation of terms
	D. Preventive Control
		I. Criminal sanctions
		II. Group actions
		III. Administrative controls
9. Mistake
	A. Introduction
	B. Avoidance for Mistake
		I. There must be a contract
		II. Avoidance and liability
			1. Claims by buyer for non-​conforming goods
			2. Other claims for non-​performance
	C. Preconditions of Avoidance for Mistake
		I. Historical background
		II. Mistakes as to the qualities of the thing or person
			1. General
			2. Causality
			3. Mistaken motive
			4. Mistake as to the value of the thing
			5. Risk in transactions
			6. Negligent mistakes
			7. Offer to make good the consequences of a mistake
		III. Mistakes caused by the other party
		IV. Recognisable mistakes
		V. Shared mistakes
		VI. A European law on mistake?
			1. Primacy of the contract
			2. ‘Special reasons’ for allowing avoidance
	D. Effecting Avoidance for Mistake
10. Deceit and Duress
	A. Deceit
		I. Elements
		II. Non-​disclosure as deceit
			1. Duties to inform in general
			2. Attribution of duties to inform
			3. Negligent breach of duties to inform
			4. ‘Duties of disclosure’ in English law
		III. Deceit by third party
		IV. Claims for damages
	B. Duress
		I. Duress and exploitation
		II. Elements of duress
		III. Duress by third party
11. Rights of Withdrawal
	A. Introduction
	B. Basis and Reasons for Withdrawal
		I. Doorstep selling
		II. Loan agreements, timeshare contracts
		III. Distance-​selling contracts
	C. Consequences of Withdrawal
12. Claims for Performance
	A. Introduction
	B. Solutions of National Legal Systems
		I. Continental law
		II. Common law
	C. Harmonised Rules in Europe
		I. Claims for performance
			1. Impossibility of performance
			2. Unreasonably high cost
			3. Personal performance
			4. Concluding a substitute transaction
			5. Timely claim for performance
		II. Claims for supplementary performance
	D. The Efficient Breach of Contract
13. Termination of Contracts
	A. Introduction
	B. Interests of the Parties
	C. Solutions
		I. French law
		II. English law
		III. German law
	D. Requirements
		I. Basic requirements
		II. Impossibility of performance
		III. Anticipatory non-​performance
		IV. Delayed performance
		V. Incomplete performance
		VI. Defective performance
	E. Restitution
14. Damages
	A. Non-​Performance of the Contract
	B. Attribution
		I. Fault principle
		II. Obligations de moyens and obligations de résultat
		III. Breach of contract
		IV. International rules
	C. Link Between Non-​Performance and Damage
		I. Liability for remote damage
		II. Contributory responsibility of the creditor
	D. Nature and Extent of Damages
		I. Liability for expectation interest
		II. Calculating damages for non-​performance of contracts of sale
		III. Liability for lost profits and lost expectations
		IV. Liability for disgorgement of profits
		V. Liability for intangible loss
		VI. Agreements on limitation of damages
15. The Effect of Unexpected Circumstances
	A. Introduction
	B. Solutions
		I. French law
		II. German law
		III. English law
	C. International Sets of Rules
16. Agency and Representation
	A. Historical Development and Economic Importance
	B. Statutory Representatives
	C. Grant, Extent, and Termination of Authority or the Power to Represent
		I. Grant
		II. Implied grant
		III. Formalities
		IV. Extent
		V. Self-​dealing by agent
		VI. Termination
		VII.	 Revocability
	D. Dealing without Authority
		I. Ratification
		II. Apparent or ostensible authority
			1. Giving the appearance of authority
			2. Justifiable reliance by the third party
		III. Liability of the supposed agent
	E. The Effects of Agency
		I. Disclosed agency
		II. Undisclosed agency
			1. Claims by the principal
			2. Claims by the third party
17. Contracts for the Benefit of Third Parties
	A. Historical Development and Economic Importance
	B. Requirements
		I. The intention of the parties
		II. Contracts protective of third parties
		III. Claims by third parties not based on contractual intention
			1. Action directe
			2. Contract chains
		IV. Limitations of liability and third parties
	C. Effects
		I. Rights of the promisee
		II. Defences available to the promisor
		III. Modification or termination of third party rights
18. Assignment
	A. Historical Development and Economic Importance
	B. Requirements for an Effective Transaction
		I. Substantive validity
		II. Non-​assignable rights
			1. Rights to wages, maintenance, and support
			2. Personal rights
			3. Parts of debts
			4. Future debts
			5. No-​assignment clauses
		III. Formal requirements
		IV. Priorities
	C. Effects
		I. Between assignor and assignee
		II. Protection of the debtor
			1. Payment to the original creditor
			2. Defences available to the debtor
			3. Waiver of defences by debtor
Index