Nathalie Neumayer, ‘Unjust Factors or Legal Ground? Absence of Basis and the English Law of Unjust Enrichment’

Abstract:
Traditionally, there are two main approaches to enrichment by transfer, the common law ‘unjust factors’ approach and the civilian ‘absence of basis’ approach. In the aftermath of the so-called ‘swaps cases’, Peter Birks proclaimed the dethronement of the unjust factors in the English system, said that English law has embraced a German-style absence of basis approach, and proposed a new system of unjust enrichment. This article proceeds in two steps. Firstly, it asks whether one of the two systems is superior to the other. Concluding that the ‘absence of basis’ approach may be conceptually clearer, it then argues that the English system should nonetheless be careful to adopt this approach for two reasons. First, this new approach may not be suited to neighbouring fields of law (especially contract), and secondly, unjust enrichment does not occupy the same place in the legal landscape in Germany and England, it is of a different normative quality.

Nathalie Neumayer, Unjust Factors or Legal Ground? Absence of Basis and the English Law of Unjust Enrichment. European Journal of Legal Studies, issue 7(2), Winter 2014, Volume 7, Issue 2.

Albana Karapanco, ‘A Critical Investigation of the Proposal for a Regulation of the European Parliament and of the Council on a Common European Sales Law

Abstract:
The paper examines the CESL proposal as an act constituting an optional CL regime with the objective to improve the establishment and the functioning of the internal market by facilitating the expansion of cross-border trade for business and cross-border purchase for consumers. The paper is carried out on legal research and different opinions and reports on the CESL from a range of sources. Thus, it highlights the advantages and disadvantages of the act and if such attempt is really worth it.

The main characteristic of CESL proposal is its optional nature. CESL may not apply autonomously, but only if chosen by the contractual parties. CESL proposal does not replace the national CL in the MSs; however, it intends to be a second CL regime for each MS. Principally, contracts will be still governed by the applicable national law, unless the parties have explicitly agreed to use the CESL. Despite its aim, CESL does not fit to any of EU legal acts as foreseen by art 288 of the TFEU.

This paper consists of five chapters. The subject of the first chapter is a brief description of the CESL objectives and the crucial factors to this proposal. The second chapter analyses the legal nature of the CESL in accordance with the TFEU provisions. Differently from the EU legal acts, CESL does not aim the approximation of MSs laws. In the third chapter, there are given the differences between the choice of B2B contracts and B2C contracts. The fourth chapter gives a comparison between the CESL and the CISG, as well as between the CESL and other international acts regulating the field of CL.

Consequently, the fifth chapter is focused on recognising the need or non-need for an optional regime of sales law within the EU. Although the positive characteristics of CESL, this chapter intends to find out the gaps related to the parties’ interest.

The interpretation is mainly based on the proposal text and EU primary and secondary law. The conclusion summarizes the legal and economic concerns about CESL; it is a short review of positive effects proposed by CESL and the contradictions it may raise if entered in force.

Karapanco, Albana, A Critical Investigation of the ‘Proposal for a Regulation of the European Parliament and of the Council on a Common European Sales Law’ (December 25, 2012).

Shawn Bayern, ‘Dynamic Common Law and Technological Change: The Classification of Bitcoin’

Abstract:
Most legal analysis of Bitcoin has addressed public-law and regulatory matters, such as taxation, securities regulation, and money laundering. This essay considers some questions that Bitcoin raises from a private-law perspective, and it aims to show that technological innovation may highlight problems with conceptualistic, classical rules of private law.

Bayern, Shawn J, Dynamic Common Law and Technological Change: The Classification of Bitcoin (September 1, 2014). 71 Washington and Lee Law Review Online 22 (2014).

Zamir and Farkash, ‘Standard Form Contracts: Empirical Studies, Normative Implications, and the Fragmentation of Legal Scholarship’

Abstract:
In a series of groundbreaking empirical studies, Prof Florencia Marotta-Wurgler and her colleagues have studied the content of End-User Licensing Agreements (EULAs) of software products sold online, and the correlations between the one-sidedness of EULAs and various variables concerning those products, the software developers, and the contracting process. They have also examined the extent to which shoppers actually read EULAs before purchasing the products. This paper critically reviews this body of research as part of a symposium on Marotta-Wurgler’s scholarship. It highlights the methodological strengths and limitations of her empirical studies, and critically assesses the (modest) normative conclusions she draws from her findings. It also addresses the general questions pertaining to the regulation of standard-form contracts in the light of recent scholarship on this topic. It points to the great difficulties – both practical and normative – facing information-based solutions, and advocates regulation of contract content. Finally, the paper argues that scholars’ ideological inclinations and the fragmentation of legal scholarship may explain the legal academy’s response to Marotta-Wurgler’s findings.

Zamir, Eyal and Farkash, Yuval, Standard Form Contracts: Empirical Studies, Normative Implications, and the Fragmentation of Legal Scholarship (January 8, 2015). Jerusalem Review of Legal Studies, forthcoming.

Call for papers: Obligations VIII: Revolutions in Private Law: University of Cambridge, 19-22 July 2016

The Eighth Biennial Conference on the Law of Obligations will be held at the University of Cambridge from 19-22 July 2016, co-hosted by the University of Cambridge Faculty of Law and Melbourne Law School. The biennial Obligations Conferences bring together scholars, judges and practitioners from throughout the common law world to discuss current issues in contract law, the law of torts, equity and unjust enrichment.

Both established and junior legal scholars are invited to submit proposals to present papers addressing the conference theme, broadly interpreted, which is described as follows:

Revolutions in thinking about our governing rules often cause palpable shifts in their foundations: 2016 is the 350th anniversary of Newton’s ‘discovery’ of gravity, and the 100th anniversary of Einstein’s ‘discovery’ of general relativity. It is also the 50th anniversary of the publication of Goff and Jones’ The Law of Restitution, and the 500th anniversary of the publication of Sir Thomas More’s Utopia. What changes mark the most significant paradigm shifts in private law? What effects have they brought? What has provoked them in the past, and what might deliver them in the future? These questions are relevant across the entire sweep of the law, and are common to all jurisdictions. We hope that this theme and its underlying questions will provoke serious discussion about the types of issues which unsettle the law, and how we as lawyers help to resolve the ructions.

Anyone wishing to offer a paper should submit a working title and an abstract (of no more than 500 words) by email to obligations8@gmail.com by 30 June 2015. Papers will be selected on the basis of quality, originality, engagement with the conference theme and fit with other papers being presented at the conference. Those offering papers will be notified by 31 July 2015 at the latest whether their papers have been accepted. A waiting list may be established, depending on the level of interest.

All presenters whose offers of papers are accepted will be expected to meet their own travel and accommodation costs and to pay a discounted registration fee. Speakers will be asked to submit fully written draft papers by 15 June 2016 for distribution to delegates via a password-protected website. As with previous Obligations Conferences, it is proposed that a small number of selected papers focused on the conference theme will be published in an edited collection following the conference.

Further information about the Obligations Conference series can be found at www.obsconf.com.

Sarah Worthington, Andrew Robertson and Graham Virgo
Conference conveners

Stephen Clowney, ‘Rule of Flesh and Bone: The Dark Side of Informal Property Rights’

Abstract:
In more recent years the belief that private citizens can structure their economic and social affairs at least as efficiently and effectively as a central authority has gained broad acceptance from commentators and scholars across the political and ideological spectrum. Nowhere has this idea gained more enthusiastic acceptance than in the arena of property law. In particular, commentators have asserted that the use of private control mechanisms in the area of property rights not only produces more secure tenure in those rights, but also generates rules that are cheaper to administer, more efficient, more predictable, more just, and more welfare-maximizing for group members than those promulgated and enforced by central authorities.

In this Article, Professor Clowney sets out to qualify this rosy view of private ordering. He focuses on three canonical examples of successful private ordering regimes: the societies established by gold rush miners, lobster fishermen, and cattle ranchers. Examining each in turn, he shows that each has been plagued by staggering amounts of bloodshed and property destruction. Much of this violence and mayhem has been ignored or unreported in scholarly accounts and commentary on these private ordering regimes. As such, Clowney argues, our understanding of the true virtues and costs of such private ordering has been greatly skewed.

Professor Clowney then attempts to answer the important question of whether violence used by a central authority to impose norms and order society is more or less costly than the violence that attends private ordering. After examining a wide range of literature from across disciplines he concludes that the violence in informal property schemes is more costly, as it generates widespread human rights abuses, imposes psychic costs on innocents, disrupts the efficiency of labor markets, and impedes technological innovation.

Stephen Clowney, Rule of Flesh and Bone: The Dark Side of Informal Property Rights, 2015 University of Illinois Law Review 59.

Kyle Graham, ‘The Diffusion of Doctrinal Innovations in Tort Law’

Abstract:
This article examines the diffusion of ‘innovations’ — new ideas — in tort law. Drawing from a larger body of research into the spread of new products and ideas, this study charts and evaluates the adoption patterns associated with ‘successful’ common-law doctrinal innovations in the law of torts. This analysis reveals recurring influences upon and tendencies within the spread of novel tort doctrines across the states, and explores the interactive qualities of the diffusion process. Furthermore, these diffusion patterns document a trend toward common-law doctrinal ‘stabilization’ over the past quarter-century. As detailed herein, this stabilization owes in part to altered diffusion dynamics associated with the ongoing diminution and fragmentation of the common-law tort dockets entertained by state supreme courts. The structural character of these influences will make it difficult, this article concludes, for even well-received common-law doctrinal innovations of the future to match the rapid diffusion rates associated with innovations in tort law that spread during the 1960s, 1970s, and 1980s.

Graham, Kyle, The Diffusion of Doctrinal Innovations in Tort Law (January 21, 2015).

Rafał Mańko, ‘EU Competence in Private Law: The Treaty Framework for a European Private Law and Challenges for Coherence’

Abstract:
The notion of private law has a long tradition and is of great importance in most EU Member States. National private law is seen as the constitution of civil society and enjoys a high degree of democratic legitimacy with regard to social justice. Furthermore, the public vs. private distinction in national legal orders translates into the structure of the judiciary (civil vs. administrative courts), as well as to distinct remedies available to private parties. However, the public vs. private law distinction is not of utmost importance in EU law, where EU legislative competences are structured according to a functionalist paradigm.

In line with the principle of conferral, the EU may regulate a given field of law only when explicitly provided for in the Treaties. There is no general EU competence to regulate private law in its entirety, but a number of specific competences addressing selected aspects. Articles 114 and 115 TFEU allow the EU to regulate those elements of private law which create obstacles to trade in the internal market. The most frequently used legal form is that of a directive. Article 118 TFEU allows the EU to create EU-wide intellectual property rights, such as an EU trademark; this is a recent provision, added by the Treaty of Lisbon. Article 50 TFEU, which is concerned with freedom of establishment, enables the EU to harmonise various aspects of company law. Article 153 TFEU allows the EU to coordinate certain aspects of employment law, including private-law elements regarding employment contracts. A particular feature of this competence is the institutionalised involvement of social partners in the legislative process. Articles 67 and 81 TFEU, whose origins date back to the Treaty of Amsterdam, confer upon the EU competence to lay down measures regarding judicial cooperation in civil matters. The ordinary legislative procedure applies, save for issues regarding cross-border family law. This legal basis has enabled the EU to regulate, in the form of regulations, numerous areas of private international law as well as cross-border civil procedure, including ‘autonomous’ EU procedures. The ‘flexibility clause’ of Article 352 TFEU empowers the EU to regulate, under certain circumstances, areas of private law not falling within the scope of specific competence rules. Finally, a number of Treaty provisions, such as those on competition law and antidiscrimination, regulate private law relationships directly, without the need for the EU to adopt secondary legislation.

The clash between, on the one hand, coherent national systems of private law and, on the other hand, the EU functionalist approach, leads inevitably to a fragmentation of EU legislation regarding private law. This poses a challenge to the coherence of national systems of private law, with adverse effects not only on consistency, but also transparency and legal security. However, of potential options for restoring the necessary coherence of private law, the only feasible one is through spontaneous harmonisation. This can occur as a spill-over of EU law rules and principles, adopted by national legislatures and judiciaries, but above all through the framing of both national and EU law-making in the field of private law within a common grid of concepts, principles and rules of private law. Great potential in that regard rests in the (Draft) Common Frame of Reference.

Mańko, Rafał, EU Competence in Private Law: The Treaty Framework for a European Private Law and Challenges for Coherence (January 8, 2015). Brussels: European Parliamentary Research Service, 2015. Series: EPRS In-Depth Analysis. 24 pp. ISBN 978-92-823-6448-2 doi: 10.2861/292462.

David Han, ‘Rethinking Speech-Tort Remedies’

Abstract:
Courts generally craft speech-tort jurisprudence as a binary proposition. Any time state tort law and the First Amendment come into potential conflict, courts typically hold either that the First Amendment comes into play and the defendant is completely exempt from traditional tort liability, or that it does not come into play and the plaintiff is entitled to the full complement of tort remedies. In other words, courts generally adopt an unspoken assumption that in speech-tort cases, liability and full tort remedies necessarily go hand-in-hand.

This rigid approach, however, significantly limits courts’ ability to craft a nuanced balance between First Amendment and tort interests. In individual cases, it forces them to choose only one set of interests to be vindicated to the complete exclusion of the other, and on a jurisprudential level, it gives courts only the bluntest of instruments to tailor speech-tort doctrine to widely varying facts. Furthermore, the current approach exacerbates the distributional problem inherent to speech-tort cases: any time the First Amendment intervenes to completely invalidate a subset of common law tort liability, plaintiffs left without liability or remedy are effectively forced to subsidize the costs of free speech, the benefits of which are shared broadly by the public at large.

In this Article, I argue that courts should incorporate a greater degree of remedial flexibility into speech-tort doctrine. Rather than simply adhere to an all-or-nothing approach, courts should consider intermediate approaches in which the First Amendment applies not to vitiate a finding of tort liability but merely to limit or eliminate the damages to which plaintiffs are entitled. These approaches allow courts to shape the complex balance of speech and tort interests with a scalpel rather than a chain saw, both on a case-by-case basis and on the broader level of doctrinal design.

In recent years, this remedy-based approach to speech-tort jurisprudence has rarely been discussed by courts and commentators, while the shadow cast by the First Amendment over tort law has expanded well beyond the defamation context. This calcification of a rigid, binary approach to speech tort cases represents a significant lost opportunity for courts to design more sensible and equitable doctrines. By providing a detailed account of the benefits underlying the use of flexible remedies, evaluating potential critiques to such an approach, and laying out concrete examples of what a remedy-based regime might look like in practice, this Article seeks to rekindle judicial, legislative, and academic interest in adopting such approaches within speech-tort doctrine.

Han, David S, Rethinking Speech-Tort Remedies (January 22, 2015). 2014 Wisconsin Law Review 1135.

Joasia Luzak, ‘Passive Consumers vs. The New Online Disclosure Rules of the Consumer Rights Directive’

Abstract:
Despite the growing academic criticism of using mandatory information duties as one of the main consumer protection measures in consumer law, the recently adopted Consumer Rights Directive (hereafter, the ‘CRD’) maintains this trend in Europe. The long and detailed list of information duties provided for traders in Articles 5 and 6 of the CRD applies to any sale and services consumer contracts that falls under the scope of application of the CRD. For traders, however, fulfilling this obligation may seem to be an exercise in futility due to little evidence that consumers read these disclosures and actually benefit from them. Instead of understanding the duty to disclose as a duty to inform consumers we could see it as a duty to reach consumers with the disclosure, so that consumers possessed the information contained in it when they needed it for reference. With this in mind it is important to inquire what efforts traders must undertake to ascertain that the disclosure reaches consumers and whether they could rely on an, at least partially, active behaviour of consumers in obtaining this information. This conundrum plays a special role in online transactions. The Consumer Rights Directive was adopted, among others, to update the so-far existing rules on consumer distance selling contracts to the modern technologies, especially the Internet. Recital 5 CRD specifically recognizes the importance of the future increase in online trade and for the first time in European consumer law the Internet is clearly mentioned as one of the means of concluding distance selling contracts in Recital 20 CRD.

Luzak, Joasia, Passive Consumers vs. The New Online Disclosure Rules of the Consumer Rights Directive (January 22, 2015). Forthcoming as a chapter in a book edited by M Loos and I Samoy, within the series Ius Commune: European and Comparative Law, published by Cambridge: Intersentia; Centre for the Study of European Contract Law Working Paper Series No 2015-02; Amsterdam Law School Research Paper No 2015-02.