Jan Smits, ‘Contract Law: A Comparative Introduction, Chapter 1′

Over the last two hundred years or so, contract law has been mainly national in contents and outlook. This is reflected in the abundance of textbooks on the contract law of national jurisdictions. These textbooks introduce students to the national contract law of their own country in their own language. Next to these traditional books, there is an increasing number of texts available that offer a comparative, European or even global perspective on the law of contract – invariably designed to cater for the needs of students who are already familiar with the fundamentals of contract law. The book of which one chapter is presented here seeks to combine the two: it introduces students to the field of contract law by way of a comparative approach. It assumes that contract law is an international discipline that can be taught on basis of common principles and methods, just like economics, psychology or any other field of academic study. There are two reasons why this approach is adopted.

First, substantive law is no longer the exclusive product of the nation-state and introductory textbooks should reflect this. In particular in the context of the European Union, law is shaped as much by the national legislators and courts of the 28 member states as it is by the European legislature and the Court of Justice of the European Union. At a global scale, the role of private regulation and of the CISG is increasing, as is the potential for choice of the legal regime applicable to the contract. All this reduces the self-evidence of teaching contract law on basis of the intricacies of one national law alone. Most of today’s law students will spend their professional life in a world in which knowledge of only one jurisdiction is not enough.

Second, learning the law is as much about learning a method as it is about mastering the substantive law. It arguably is more important to learn to ‘think like a lawyer’ than it is to know about the details of a court case or a statute that is likely to change anyway. In a similar way as economists do not focus on the study of one particular economy but adopt a method of analysis (‘the economic approach’), law is ideally not regarded as a subject but as a method. In this view, students no longer study German, English or Polish contract law, but simply ‘contract law’ by applying the legal approach towards the questions they are confronted with. This does not mean that the details of, or differences between, various legal systems are not discussed. To the contrary: it is exactly by looking at these similarities and differences among jurisdictions that one learns that much of the law is about exploring and contrasting the implications of conflicting views of what is right. It is this approach of focusing on arguments and policies that is at the core of the book this sample chapter is taken from. National laws are presented as variations on common themes and as alternative ways of dealing with some common problem. This text thus caters to the needs of the international classroom.

Smits, Jan M, Contract Law: A Comparative Introduction, Chapter 1 (2014). Contract Law: A Comparative Introduction, Chapter 1 (pp. 3-15), Edward Elgar Publishing 2014.

Nicholas McBride, ‘The Humanity of Private Law – An Introduction’

This is a draft of the introduction to a book I am working on called The Humanity of Private Law – which book will attempt to present a new account of private law as centred around the promotion of a particular vision of human flourishing.

As well as introducing the main claims of the book, this introduction also discusses: (1) economic and Kantian explanations of private law; (2) the explanations of tort law put forward by John Goldberg and Benjamin Zipursky, and by John Gardner; (3) the nature of corrective justice; (4) the nature of morality; (5) the justifiability of strict legal duties to succeed; (6) the difference between explanations and evaluations of private law; and (7) three different models of human flourishing.

McBride, Nicholas, The Humanity of Private Law – An Introduction (October 6, 2015).

‘What Does It Mean for Something to Be a Tort?’

“Whenever I say Title VII is not a tort, I get quite a bit of pushback about this claim. It makes sense to start this post by explaining what I mean. There is not one fixed definition of what a tort is. Tort law can be defined as being ‘about the wrongs that a private litigant must establish to entitle her to a court’s assistance in obtaining a remedy and the remedies that will be made available to her”: John CP Goldberg and Benjamin C Zipursky, Torts as Wrongs, 88 Texas Law Review 917, 919 (2010). Another common definition of a tort is a ‘civil wrong, other than breach of contract, for which the court will provide a remedy’: W Page Keeton, et al, Prosser and Keeton on The Law of Torts 1, 2 (5th ed 1984) …” (more)

[Sandra Sperino, New Private Law, 6 October]

Karel Roynette, ‘Drawing the Line of the Scope of the Duty of Care in American Negligence and French Fault-Based Tort Liability’

American tort law, through its wrong of negligence, may apply lower liability than the reasonable person standard to a defendant while French fault-based tort liability will always hold a tortfeasor liable for his unreasonable behavior. Indeed, under American law, the plaintiff must prove four elements to hold the defendant liable: the existence of a duty of care, its breach, damage, and causation which is further divided into two parts: cause in fact (as determined under the ‘but for’ test requiring that the plaintiff’s harm would not have occurred but for the defendant’s conduct) and proximate cause (implying foreseeability of the damage). Thus, not all unreasonable behavior causing damage to the victim leads to liability for the defendant. The tortfeasor must first owe a duty to act reasonably toward the victim, so that the breach thereof can cause him to be liable in negligence to the plaintiff for the damage he brought about. If he is not under such a duty or is bound to a lighter duty, he is excused from liability, causing American tort law to be relative. American scholars mostly justified this solution through the protection of the country’s common economic good. Certain actors are to be released from the duty to act reasonably or bound only to a lighter duty when such release far better promotes economic competitiveness and efficiency …

Karel Roynette, Drawing the Line of the Scope of the Duty of Care in American Negligence and French Fault-Based Tort Liability, 8 Journal of Civil Law Studies (2015).

Barroso and Sthel, ‘The Role of Objective Good Faith in Current Contract Law: For a General Duty of Inter Partes Cooperation and Solidarity’

Seen from the historical-cultural perspective, theoretical models of modernity, still present in law, are anachronistic before the increasingly complex and dynamic contemporary reality. In this scenario, and with the aim of providing a renewal of Brazilian Civil Law, the 2002 Civil Code was developed with several general clauses. Among them is the general clause of objective good faith and in the midst of its practical uses is its role in establishing the ‘attached duties’. The doctrine that discusses this topic, however, runs counter to the epistemological assumptions adopted in this study and thereby is insufficient and contradictory in relation to the understanding of today’s contractual reality. Therefore, it is important to build a new rationale for objective good faith, starting from the critical-methodological approach. In his perspective, there is the need to think of an inter partes general duty. This, in turn, should find its foundation on cooperation and solidarity, in view of the prospective constitutionalization of the national civil law and the quest for civil law as an effective tool of autonomous but responsible human fulfillment.

Lucas Abreu Barroso and Laio Portes Sthel, The Role of Objective Good Faith in Current Contract Law: For a General Duty of Inter Partes Cooperation and Solidarity, 8 Journal of  Civil Law Studies (2015)

Handford and McGivern, ‘Two Problems of Occupiers’ Liability Part I – The Occupiers’ Liability Acts and the Common Law’

The enactment of occupiers’ liability legislation in four Australian jurisdictions between 1983 and 2002 has given rise to important problems about the relationship between the legislation and the common law of negligence. From 2002 onwards, the civil liability legislation has added another dimension of difficulty: the courts have to contend not only with the relationship between each enactment and the common law, but also with that between the two sets of statutory provisions. As the Chief Justice of Western Australia said in Town of Port Hedland v Hodder, in many cases courts are failing to grapple with these issues. In this two-part article the authors explore the relationship between the occupiers’ liability Acts and the common law, and between those Acts and the civil liability legislation. With the aid of comparative insights, and applying principles of statutory interpretation, they offer conclusions as to the way in which occupiers’ liability actions should be pleaded and determined in the four occupiers’ liability Act jurisdictions. Key provisions are gathered together in a table which appears at the end of Part Two of this article.

Peter Handford and Brenda McGivern, Two Problems of Occupiers’ Liability Part I — The Occupiers’ Liability Acts and the Common Law. Melbourne University Law Review, vol 39, 128 (2015).

Brian Frye, ‘Machiavellian Intellectual Property’

In his controversial essay, Faith-Based Intellectual Property, Mark Lemley argues that moral theories of intellectual property are wrong, because they are based on faith, rather than evidence. This article suggests that Lemley’s argument is controversial at least in part because it explicitly acknowledges that consequentialist and deontological theories of intellectual property rely on incompatible normative premises: consequentialist theories hold that intellectual property is justified only if it increases social welfare; deontological theories theories hold that intellectual property is justified even if it decreases social welfare. According to Berlin, the genius of Machiavelli was to recognize that when two moral theories have incompatible normative premises, societies may be forced to choose between the theories. But Berlin observed that it is possible to adopt different moral theories in different contexts. This article suggests that we can reconcile consequentialist and deontological theories of intellectual property by adopting a consequentialist public theory and deontological private theories.

Frye, Brian L, Machiavellian Intellectual Property (October 3, 2015).

‘New Contributions to the Law of Property by Henry Smith: Realism, Numerus Clausus, and Custom’

“Professor Henry Smith has recently published two new engaging and interesting papers in the area of property law, both part of different symposia. For the symposia lists of papers, see here and here, and for the papers, see here and here (citations at the bottom of the post). The first is part of a symposium where the main question was the enduring appeal of doctrinal analysis in private law, despite the ‘we-are-all-realists-now’ dominant point of view. There are many great contributions there, and Smith takes this question to the area of property …” (more)

[Yonathan Arbel, New Private Law, 5 October]

Rodrigo Momberg, ‘Harmonization of Contract Law in Latin America: Past and Present Initiatives’

This article provides a description of the past and current initiatives on the harmonization of contract law in Latin America. Private international law instruments of unification are described, providing a summary of the regional Latin American integration efforts and its impact on the harmonization of private law. The article also examines the most recent academic initiative of harmonization — the project for the drafting of the Principles of Latin American Contract Law.

Momberg, Rodrigo, Harmonization of Contract Law in Latin America: Past and Present Initiatives (March 1, 2014). Uniform Law Review, 2014, 1–18.

Nicholas McBride, ‘Stephen A Smith on Duties and Liabilities’

This brief paper outlines the significance of Stephen A Smith’s work on the difference between duties and liabilities for our understanding of the law of obligations. The paper was written for a conference (yet to be held) in Hong Kong on ‘Great Works in Private Law 1985-2015’.

McBride, Nicholas, Stephen A Smith on Duties and Liabilities (October 2, 2015).