European Contract Law Part I Laura M. Franciosi Fall Semester – a.y. 2009-2010.
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European Contract Law Part I Laura M. Franciosi Fall Semester – a.y. 2009-2010
Introduction to the Course Structure Purpose Content Assignments Final Exam
Course’s Mandatory Rules Final Paper Topic= Must be selected within a list provided by Prof. Laura Franciosi and/or Prof. Diana Cerini. Topics not related to the content of the course will not be accepted Topic= must be chosen within the last lesson of the course. Late topics will not be granted and/or accepted
Course’s Mandatory Rules Attendance is fundamental. Non-attending students are not allowed to draft the paper and cannot receive the relevant grade and credits. Prof. Franciosi will organize a special lesson dealing with bibliography research and drafting the paper Prof. Cerini will devote the last lesson to discuss the content of the paper on an individual basis
Basic Knowledge Comparative Law Legal traditions: -civil law -common law Legal formants Areas of Law
European Legal Framework National Laws European Law International Law (i.e. International Conventions) Soft Law (e.g.: Unidroit Principles) Projects of unification
EU Law A.“Original” European Law B.“Derivative” European Law: Regulations Directives Decisions Recommendations and Opinions
Life of a contract Negotiation Formation Execution (Termination) (Breach) (Litigation)
Key Issues A.Has been a contract entered into? B.Kind of contract C.Governing law
Governing Law Parties’ will (complying with mandatory law provisions) National law (parties’ choice or conflict of laws) EU law International Conventions (for example: CISG) Soft Law (for example: UNIDROIT Principles)
Governing Law EU Law: -so far: mandatory rules for certain contracts (i.e. Directives for consumer contracts) -for the future: Project of an European Contract Law (DCFR, PECL, other projects)
Has been a contract entered into? In order to provide an answer to such an issue, we have to take into account: (i)The definitions of contract; (ii)The fact that the formation of a contract is not a static process but, rather, a dynamic one; (iii)According to points (i) and (ii) above, when all the requirements of a contract are fulfilled, and, therefore, the formation process is completed, a contract is entered into.
Definitions French Civil Code - Art. 1101 “A contract is an agreement (convention)* by which one or more persons obligate themselves to or more other persons to give, or to do, or not to do, something”. * Agreement (Convention)= Any agreement intended to produce legal effects
Definitions Italian Civil Code - Art. 1321 “A contract is an agreement between two or more parties for the purpose of creating, providing for or extinguishing amongst themselves a legal patrimonial relation”.
Definitions Dutch Civil Code – Art. 6:213 “A contract … is a multi-lateral juridical act whereby one or more parties assume an obligation towards one or more other parties”. German Civil Code (BGB) - § 305 “For the creation of an obligation by a juristic act, and for any alteration of the substance of an obligation, a contract between the parties is necessary, unless otherwise provided by law”.
Definitions English Law: there is no legal definition of contract, but, according to the case- law, a contract exists when the following requirements are fulfilled: a)Offer b)Acceptance c)Consideration d)Intent to create legal relationship
Definitions U.S. – Restatement 2nd of Contracts, §1 “A contract is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty”.
Kind of Contract 1. According to the status of the parties: -Consumer Contract, or -Business Contract 2. According to the nature/effect/object of the contract: -sale; franchising, leasing, insurance contract, etc.
Consumer Contracts No General Definitions Main characteristics: -from a subjective perspective; -from an objective perspective.