Monthly Archives: May, 2012

Jan Smits, ‘Party Choice and the Common European Sales Law, or: How to Prevent the CESL from Becoming a Lemon on the Law Market’

Abstract: Optional legal regimes, such as the Proposal for a Regulation on a Common European Sales Law (CESL), must derive their success from being chosen by parties. This contribution asks on what conditions it is dependent whether parties will choose for an optional regime such as the CESL. This requires a clear view of the […]

Lisa Bernstein, ‘An (Un) Common Frame of Reference: An American Perspective on the Jurisprudence of the CESL’

Abstract: Drawing on evidence from American Market this Comment explores whether the CESL will be able to facilitate cross-border trade among SMEs if usages of trade and good commercial practices vary as much across the Common Market as they do across the American Market. Bernstein, Lisa Esther, An (Un) Common Frame of Reference: An American […]

Ralf Michaels, ‘Code vs. Code: Nationalist and Internationalist Images of the Code Civil in the French Resistance to a European Codification’

Abstract: French academics reacted to announcements about a possible future European civil code ten years ago in the way in which Americans reacted to the Japanese attack on Pearl Harbor 1940: first with shock, then with rearmament, finally with attempted counterattacks. Military metaphors abound. Yet the defense of the French Code Civil against a European […]

Catherine Mitchell, ‘Obligations in Commercial Contracts: A Matter of Law or Interpretation?’

Abstract: English commercial contract law is undergoing its own ‘interpretative turn’. According to Lord Hoffmann, disputes concerning implied terms in contracts and the extent of the defendant’s liability for loss on breach are resolved by searching for the meaning of the parties’ agreement. The process is one of contextual interpretation of the contract (understood in […]

Current conferences/seminars in Private Law Theory – details on the blog site

Donoghue v. Stevenson conference – Paisley, Scotland, 25-26 May 2012 The Rule of Law and the Measure of Property – IALS, London, 13 June 2012 The Interface of Public and Private Law Concepts of Property – King’s College London, 14 June 2012 Mapping the Common Law – Auckland, 29 June 2012 Obligations VI – London, […]

Ivo Giesen, ‘The Use and Influence of Comparative Law in “Wrongful Life” Cases’

Abstract: How do judges decide cases in a globalised legal context, characterised by the increased interconnections between legal systems and between actors in these legal systems? In this article, firstly, four types of variables (constitutional, institutional, organisational, and personal) which influence judicial practices are described, and it is shown how these variables shape the judicial […]

William Marra, ‘Adverse Possession, Takings, and the State’

Abstract: Normally, the government may not seize private land without paying for that land. Yet it turns out that governmental bodies sometimes avail themselves of the laws of adverse possession, taking title to private land without paying the landowner. This phenomenon, largely ignored by the scholarly literature, raises two questions. First, should the government be […]

Rome conference on The Making of European Private Law: Why, How, What, Who

“This conference, held at the University of Roma Tre from 9-11 May 2012 under the guidance of Professor Luigi Moccia, covered a wide range of issues. There was plenty of discussion of the proposed Common European Sales Law (CESL) but that was by no means the only question discussed …” (more) [Eric Clive, European Private […]

Schäfer and Ott, ‘The Dichotomy between Property Rules and Liability Rules: Experiences from German Law’

Abstract: Calabresi and Melamed delivered a powerful theory to explain under what conditions it is economically efficient to transfer a property right by voluntary and alternatively by involuntary transactions. In the first instance, the property right should be protected by a property rule or an injunction as well as by criminal law sanctions in order […]

Lisa Austin, ‘Possession and the Distractions of Philosophy’

Abstract: This paper argues that many types of philosophical argument distract us, rather than provide clarity, in relation to the role that possession plays in the law of property. The philosophical strategies I have in mind include the natural law tradition’s fascination with state-of-nature stories as well as Dworkinian claims that law is a matter […]