Particular Corona Contract Law in Germany: Why Does General Contract Law not Suffice?

2021 ◽  
pp. 699-718
Author(s):  
Martin Schmidt-Kessel ◽  
Christina Möllnitz
Author(s):  
Nils Jansen ◽  
Reinhard Zimmermann

The book provides rule-by-rule commentaries on European contract law (general contract law, consumer contract law, the law of sale and related services), dealing with its modern manifestations as well as its historical and comparative foundations. After the collapse of the European Commission's plans to codify European contract law it is timely to reflect on what has been achieved over the past three to four decades, and for an assessment of the current situation. In particular, the production of a bewildering number of reference texts has contributed to a complex picture of European contract laws rather than a European contract law. The present book adopts a broad perspective and an integrative approach. All relevant reference texts (from the CISG to the Draft Common European Sales Law) are critically examined and compared with each other. As far as the acquis commun (ie the traditional private law as laid down in the national codifications) is concerned, the Principles of European Contract Law have been chosen as a point of departure. The rules contained in that document have, however, been complemented with some chapters, sections, and individual provisions drawn from other sources, primarily in order to account for the quickly growing acquis communautaire in the field of consumer contract law. In addition, the book ties the discussion concerning the reference texts back to the pertinent historical and comparative background; and it thus investigates whether, and to what extent, these texts can be taken to be genuinely European in nature, ie to constitute a manifestation of a common core of European contract law. Where this is not the case, the question is asked whether, and for what reasons, they should be seen as points of departure for the further development of European contract law.


Author(s):  
Nils Jansen ◽  
Reinhard Zimmermann

The question of when an agreement between the parties becomes an enforceable contract is a question of general contract law. Roman jurists did not feel the need for such abstract enquiries, since they developed their contract rules case by case for each type of contract.


Author(s):  
Hiroyuki KIHARA

This chapter examines how Japanese contract law deals with extremely one-sided, onerous, or otherwise unfair terms, such as exclusions or limitations of liability, penalty clauses, or restraint of trade clauses. It discusses the overt judicial control of such terms under specific legislation, sometimes targeted exclusively at standard terms or consumer contracts. It also analyses how the Japanese courts have exercised a more indirect control by employing traditional general contract law doctrines, such as public policy, good faith, interpretation, or the rules on procedural fairness, in order to protect parties against the imposition of unfair terms. A number of hypothetical clauses are analysed to illustrate how Japanese courts regulate unfair contract terms in practice.


Author(s):  
Stelios Tofaris

This chapter examines how Indian contract law deals with extremely one-sided, onerous, or otherwise unfair terms, such as exclusions or limitations of liability, penalty clauses, or restraint of trade clauses. It discusses the overt judicial control of such terms under specific legislation, sometimes targeted exclusively at standard terms or consumer contracts. It also analyses how the Indian courts have exercised a more indirect control by employing traditional general contract law doctrines, such as contract formation and interpretation or the rules on procedural fairness, in order to protect parties against the imposition of unfair terms. A number of hypothetical clauses are analysed to illustrate how Indian courts regulate unfair contract terms in practice.


This chapter examines non-binding restatements of contract law, in particular the UNIDROIT Principles of International Commercial Contracts and the Principles of European Contract Law. It considers the nature, purposes, scope, sphere of application, and substantive content of these Principles (including freedom of contract, pacta sunt servanda, good faith, interpretation, adequate assurance of performance, specific performance, and other remedies and hardship and change of circumstances). The chapter considers the extent to which these Principles can be used in litigation and in arbitration and their relative advantages and disadvantages.


Author(s):  
E. Allan Farnsworth

This article presents an overview of comparative contract law. It reveals a number of differences between civilian legal systems and the common law, and also between French and German law as two main exponents of the civil-law tradition and, to some extent, even between English and US-American law. The same is true of other major issues in the field of general contract law that have not been touched upon. But there is a gradual convergence. This convergence is due to developments in all of the four legal systems covered in this article: English, US-American, French, and German law. And it has enabled scholars from around the world to elaborate an international restatement of contract law (the UNIDROIT Principles of International Commercial Contracts) and scholars from all the member states of the European Union to formulate a restatement of European contract law (the Principles of European Contract Law).


Author(s):  
Sakda THANITCUL

The chapter gives an account of consumer protection in Thailand and, more specifically, how Thai contract law deals with extremely one-sided, onerous, or otherwise unfair terms, such as exclusions or limitations of liability, penalty clauses, or restraint of trade clauses. It discusses the overt judicial control of such terms under the 1997 Unfair Contract Terms Act and other protective mechanisms under specific consumer legislation. It also analyses how the Thai courts have exercised a more indirect control by employing traditional general contract law doctrines, including the rules on procedural fairness, in order to protect parties against the imposition of unfair terms. Empirical evidence is provided to show that effective overall consumer protection has been established since the 1990s.


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