Cases, Materials and Text on Contract Law

1515 Pages·2019·15.059 MB·English

by  Hugh Beale, Bénédicte Fauvarque-Cosson, Jacobien Rutgers, Stefan Vogenauer

IUS COMMUNE CASEBOOKS
FOR THE COMMON LAW OF EUROPE
CASES, MATERIALS AND TEXT
ON CONTRACT LAW
IUS COMMUNE CASEBOOKS FOR THE COMMON LAW OF EUROPE
Steering Committee
W van Gerven (Chair)†, Professor Emeritus at the University of Leuven
and at Maastricht University, former Advocate General at the CJEU
The Rt Hon Lord Bingham of Cornhill†, Senior Law Lord
X Blanc-Jouvan, Professor Emeritus at the University of Paris I
The Rt Hon H Danelius, former Justice of the Supreme Court of Sweden
R Errera†, Conseiller d’État honoraire, Paris
T Koopmans†, former Judge of the CJEU
H Kötz, former Director Max Planck Institute for Comparative and
International Private Law and Professor at the University of Hamburg
F Jacobs, Professor at King’s College London, former President of the European
Law Institute, former Advocate General at the CJEU
J Schwarze, Emeritus Professor at the University of Freiburg
M Faure, Professor at Maastricht University
and at Erasmus University Rotterdam
B de Witte, Professor at Maastricht University
D Droshout, Research Coordinator, University of Leuven
and Maastricht University
Management Committee
W Devroe, University of Leuven and Maastricht University
J van Erp, Maastricht University
P Larouche (Chair), Tilburg University
J Smits, Maastricht University
S Stijns, University of Leuven
J Wouters, University of Leuven
Cases, Materials and Text
on Contract Law
Third Edition
Hugh Beale, Bénédicte Fauvarque-Cosson,
Jacobien Rutgers and Stefan Vogenauer
HART PUBLISHING
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Names: Beale, H. G., author. | Fauvarque-Cosson, Bénédicte, author. |
Rutgers, Jacobien W., author. | Vogenauer, Stefan, 1968- author.
Title: Cases, materials and text on contract law / Hugh Beale, Bénédicte
Fauvarque-Cosson, Jacobien Rutgers and Stefan Vogenauer
Description: Third edition. | Oxford, UK ; Portland, Oregon : Hart Publishing, 2019. |
Series: Ius commune casebooks for the common law of Europe
Identifiers: LCCN 2018040271 (print) | LCCN 2018041415 (ebook) |
ISBN 9781509912582 (Epub) | ISBN 9781509912575 (paperback)
Subjects: LCSH: Contracts—Europe. | BISAC: LAW / Comparative. | LCGFT: Casebooks (Law)
Classification: LCC KJC1720 (ebook) | LCC KJC1720 .B43 2018 (print) | DDC 346.402/2—dc23
LC record available at https://lccn.loc.gov/2018040271
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PREFACE
In the Preface to the second edition of this book, we wrote that the new edition came
‘at an exciting moment for “European” contract law’. At that time the European
Commission was consulting on whether the fragmentary European contract law con-
tained in the various directives should be replaced or supplemented by European rules on
contract law in general, possibly in the form of an ‘Optional Instrument’.
The third edition comes at a more difficult and less hopeful moment. In 2011 the
European Commission proposed a ‘Common European Sales Law’ for sales where one
party is a consumer or a small or medium-sized enterprise. It would have dealt with most
issues that are likely to arise in the life of such sales contracts. The proposal received
strong support from the European Parliament but it foundered in the European Council
and in 2014 the Commission withdrew it. The contract law measures now proposed by
the Commission are important but much narrower, dealing only with certain aspects of
the supply of digital content and the sale of goods to consumers. In the current climate,
with debates raging over such matters as what to do about asylum seekers and refugees,
the Eurozone, right- and left-wing populism and Brexit, there seems no prospect of more
general contract law developments in the foreseeable future.
Even if European legislation on contract law remains sectoral and fragmented, the
case law of the Court of Justice of the European Union (CJEU) interpreting it contin-
ues to develop at a fast pace. Many of the recent decisions are quoted or referred to
in this new edition. National decisions are also relevant to European legislation, not
only because they show how European law is interpreted (or possibly misinterpreted) in
Member States but also because European solutions are heavily influenced by the case
law and legislation of the Member States. The President of the CJEU, Koen Lenaerts,
has stressed the importance of comparative law to the work of the Court,1 even if the
contribution is not always acknowledged or even identifiable;2 and its contribution
seems to be as important in contractual matters as in the fields of comparative constitu-
tional law and tort law to which the President referred.
In addition, ‘European’ contract law and comparative contract law have had major
impacts on national laws. Among the systems that are covered in this book – English,
French and German law, and to a lesser extent Dutch Law – the reform of the BGB in
2002 was in part based on the provisions of the 1980 Vienna Convention on Contracts for
the International Sale of Goods (CISG) and the Consumer Sales Directive of 1999; also
1 In his address to the Annual Conference of the European Law Institute in 2016, cited below, p 6 n 9;
see also K Lenaerts, ‘La Cour de justice de l’Union européenne et la méthode comparative’ in B Fauvarque-
Cosson (ed), Le droit comparé au XXIème siècle: Enjeux et défis (Paris: Société de législation comparée,
2015) 35.
2 See K Lenaerts, ‘Interlocking Legal Orders or the European Union Variant of “E pluribus unum”’ (2003)
52 ICLQ 873, 874, 876.
v
PREFACE
‘soft’ European principles profoundly influenced the reforms of the French Code civil
in 2016. The 2016 reforms (and the ‘reform of the reforms’ that took place in 2018 when
the original Ordonnance was confirmed) are considered in detail in this new edition.
Indeed it can be argued that the failure to adopt a general contract law measure for
Europe makes it all the more important to compare and contrast the national laws that,
for the most part, will continue to apply to both domestic and cross-border contracts
in Europe. And that is the main purpose of this collection of cases, materials and texts
on contract law. The book covers the nature and extent of European measures, and the
detailed provisions of European soft law (referring mainly to the Principles of European
Contract Law, but where relevant drawing contrasts with the provisions of the Draft Com-
mon Frame of Reference, the proposed Common European Sales Law, the CISG and the
UNIDROIT Principles of International Commercial Contracts). However, the bulk of the
material continues to focus on the four national systems, with the aim of exploring their
similarities and differences, and the extent to which the ‘soft law principles’ are (as is
often claimed) a restatement of a common core of shared solutions.
This approach means that though the book necessarily concentrates on European laws,
it will be of world-wide interest, particularly to lawyers in systems that are to some extent
inspired by one of the systems covered in detail. We have been delighted to discover that
previous editions of the book have been used in, for example, both Latin America and
Asia; we hope that the new edition will be of even wider interest, particularly because of
the coverage of the new French law.
The book continues to concentrate on cases, legislation and ‘black-letter’ rules of
law. We remain very aware that such an approach has serious limitations; there may be
deeper differences of philosophy, of mentalité, which may be masked by a superficially
similar result. A good comparatist should explore these, which requires a much more
rounded study of the traditions and institutions of each legal system than can be offered
here. However, we continue to think that a comparison of black-letter rules is the best
place to start.
Users of the previous edition will notice that the third edition contains more chapters,
as we have added new material to the introductory chapters and have re-organised them
to make them easier to follow. To accommodate the new material we have had to sacrifice
some older cases, or the book would have become too long and too expensive, but we
have kept everything that we think is really important. We hope readers will agree. We
have also tried to make the book more reader-friendly by working with a bigger variety
of font sizes and by introducing grey-scale boxes to identify the Notes in which we com-
ment specifically on the preceding extract. We hope that readers will find it easier to
navigate the text.
As always, we owe many debts of gratitude. First, we wish to thank those copyright
holders who granted us permission to quote extracts from their work in the first edi-
tion of this book and whose permission to do so in this edition is once again gratefully
acknowledged. Secondly, Professors Andrew Burrows and Edwin Peel granted us per-
mission to use (in chapter 18) extracts from Professor Vogenauer’s essay ‘Interpretation
of Contracts: Concluding Comparative Observations’ which first appeared in the vol-
ume C ontract Terms (OUP, 2007). We also wish to express our deepest gratitude to the
research assistants who have helped us at various stages of the process: at the Max-Planck
vi
PREFACE
Institute in Frankfurt, Thorben Klünder, Christoph Resch, Grigorij Tschernjawskyj, Luca
von Bogdandy, Simon Willaschek and Sarah Zimmermann; in Paris, Maxime Cormier,
Léah Faust-Taïeb and Louis-Marie Morin and, previously, Adrien Tehrani; in Warwick,
Marie Pillon and Simon Thorpe; and, previously, at the Oxford Institute of European and
Comparative Law, Klaus Wiedemann and Susanne Zwirlein. Lastly, many thanks are due
to Sinead Moloney and her staff at Hart Publishing for their patience with us and their
skill and understanding in dealing with a long typescript and a difficult process of re-
ordering and updating.
Sadly, since the last edition was published we have lost two wonderful colleagues and
friends: Denis Tallon, who contributed to the first and second editions of the book; and
Walter van Gerven, who founded the Ius Commune Casebook series. We would like to
dedicate this edition to their memory.
Hugh Beale
Bénédicte Fauvarque-Cosson
Jacobien Rutgers
Stefan Vogenauer
December 2018
vii

CONTENTS
Preface v
Abbreviations xi
Table of Cases xxi
Table of Legislation xlvii
PART 1
INTRODUCTION
1. GENERAL TRENDS IN MODERN CONTRACT LAW 3
2. EUROPEAN UNION LAW ON CONTRACTS 35
3. PRINCIPLES, SOFT LAW AND LEGISLATIVE PROPOSALS
IN EUROPEAN CONTRACT LAW 53
4. NATIONAL CONTRACT LAWS IN A EUROPEAN CONTEXT 77
5. NOTIONS OF CONTRACT 93
6. CONTRACT AND ADJOINING AREAS 121
7. CATEGORISATION OF CONTRACTS ACCORDING TO PARTIES 169
PART 2
FORMATION
8. OFFER AND ACCEPTANCE 203
9. SUFFICIENCY OF AGREEMENT 283
10. INTENTION TO CREATE LEGAL RELATIONS 301
11. CAUSE AND CONSIDERATION 343
12. FORMAL REQUIREMENTS 395
13. PRECONTRACTUAL NEGOTIATIONS 423
PART 3
FRAUD, ABUSE, IMMORALITY
14. FRAUD, MISTAKE AND MISREPRESENTATION 483
15. THREATS 597
16. ABUSE OF CIRCUMSTANCES 629
17. IMMORAL AND ILLEGAL CONTRACTS 663
ix