Principles of Asian Contract Law at the Crossroads of Standardization and Legal Pluralism

2021 ◽  
pp. 1-33
Author(s):  
A. Grebieniow
Keyword(s):  
Legal Pluralism ◽  
Comparative Law ◽  
Contract Law ◽  
Private Law ◽  
Legal Policy ◽  
Legal Traditions ◽  
Recent Addition ◽  
Model Law ◽  
Legal Globalization ◽  
Law Making

Abstract The Principles of Asian Contract Law (PACL) are the most recent addition to the series of uniform laws regarding transnational commercial contracts. This time, the harmonization initiative must address the problem of a great variety of legal traditions, all of which are quite difficult to reconcile. The author focuses on the object and objectives of the PACL by reconsidering the notion of “Asian law” and the alleged cultural neutrality of contract law as a legal discipline. The paper argues that the PACL project lacks clarity. Its ambitious objectives, while apparently intelligible, fail to produce the desired results in their entirety: the Asian regional harmonization of contract law turns out to resemble its occidental forerunners. The study goes beyond the traditional comparative law. It explores the model law (in the making) in a broader context of legal policy, parallel regional private-law-making efforts in the field of contract law as well as in the context of legal globalization.

Harmonisation of European Contract law the Influence of Comparative law

2001 ◽  
Vol 50 (4) ◽  
pp. 877-900 ◽  
Author(s):  
Klaus Peter Berger
Keyword(s):  
European Integration ◽  
Decisive Role ◽  
Comparative Law ◽  
Contract Law ◽  
Private Law ◽  
European Contract ◽  
Strong Link ◽  
German Association ◽  
European Contract Law

It is generally acknowledged today that comparative law plays a decisive role in the harmonisation of European private law, in particular of European contract law.1 Dölle has emphasised this strong link between comparative law and European integration as early as 1950 in his report on the refoundation of the German Association of Comparative Law:

Comparative Law and the Europeanization of Private Law

2019 ◽  
pp. 556-598
Author(s):  
Reinhard Zimmermann
Keyword(s):  
Comparative Law ◽  
Contract Law ◽  
Private Law ◽  
Consumer Contract ◽  
European Contract ◽  
The Past ◽  
Core Areas ◽  
The Moment ◽  
The Many ◽  
European Contract Law

The gradual emergence of a European private law is one of the most significant contemporary legal developments. Comparative law scholarship has played an important role in this process; in turn, it has received a boost as a result of the ‘Europeanization of private law’ agenda. The present essay attempts to provide an overview of the new types of literature that have been created, of new perspectives that have been opened up, of new approaches that have been tried, and of the transnational networks that have been established. Within the traditional core areas of private law, contract law has been at the centre of attention. Apart from the many Directives, particularly in the field of consumer contract law, a prodigious number of reference texts has been produced and, for some time, a codification of European contract law appeared to be imminent. That plan has now collapsed, and the institutionalized ‘Europe’ is, at the moment, facing strong headwinds. One of the challenges faced by comparative scholarship consists in preserving the momentum that has been build up over the past three decades. The European Law Institute, founded in 2011, may emerge as an important platform to advance the Europeanization of private law through facilitating and stimulating transnational comparative study.

scholarly journals Algunas claves sobre el valor jurídico del silencio

2012 ◽  
Author(s):  
José Antonio Matínez Vela
Keyword(s):  
Social Sciences ◽  
Special Reference ◽  
Comparative Law ◽  
Contract Law ◽  
Roman Law ◽  
Private Law ◽  
Passive Behavior ◽  
The Social ◽  
Act One

A partir de la Pandectística y su construcción del Negocio Jurídico, una de las cuestiones que mayor interés ha planteado en la doctrina privatística es la referente a si el Silencio puede constituir o no la base de una auténtica declaración de voluntad, o, en su caso, cuál es el fundamento que se encuentra tras aquellos preceptos que imputan determinados efectos jurídicos a la conducta pasiva de un sujeto, siendo el ámbito de los contratos aquél donde el tema se plantea con mayor frecuencia. Partiendo de un estudio de cómo es concebido en el ámbito de las ciencias sociales el fenómeno del silencio, se analiza a continuación cómo fue percibida esta situación en la esfera del Derecho Romano, procediendo más adelante a analizar la situación en Derecho Español, con especial referencia a la legislación foral navarra, y en Derecho Comparado, donde cabe destacar cómo es precisamente en las legislaciones civiles más recientes donde este problema aparece contemplado de modo explícito.From the Pandectism and its construction of the Legal Act, one of the most interesting question arised in the romanistic doctrine is if the Silence can be the ground of a real declaration of will, or which are the foundations behind that norms where to a man’s passive behavior is connected some juridical effects; this situation is precisely really important in Contract Law. Our point of depart is how the problem of the silence is conceived in the social sciences; after that, we are going to analyze how this situation has been noticed in the Roman Law, in the spanish private Law –with special reference to the Navarra‘s Foral Law– and in comparative Law.

Development of European Contract Law

2017 ◽  
Author(s):  
Hein Kötz
Keyword(s):  
Consumer Protection ◽  
Comparative Law ◽  
Contract Law ◽  
European Countries ◽  
Private Law ◽  
European Contract ◽  
Freedom Of Contract ◽  
European Code ◽  
Pros And Cons ◽  
European Contract Law

This chapter examines the historical, economic, and political reasons which have led to the idea of ‘Europeanising’ private law, academic literature, and legal teaching in European countries in pursuit of the eventual creation of European private law. After discussing the functions of comparative law and the different ways in which it could contribute towards setting up a unified European private law, the chapter considers the link between economic order and contract law as well as the adoption of the principle of freedom of contract by all European legal orders. It also discusses the pros and cons of a ‘European Code of Contract Law’ that would harmonise or unify not only the rules on consumer protection but also the non-mandatory ‘dispositive’ contract law.

Secured transactions and patterns of legal change: the contribution of comparative law

2020 ◽  
Author(s):  
Francesca Fiorentini
Keyword(s):  
Comparative Law ◽  
Legal Change ◽  
Positive Law ◽  
Secured Transactions ◽  
The Many ◽  
Law Making

Abstract The article analyses the many actors and initiatives that, in the last decades, have pursued the goal of worldwide harmonization of secured transaction laws, scrutinizing the achievements and the limits of these experiments. In light of such results, the article also outlines the methodological contribution that comparative law can offer to legal change in the sector of secured transactions law, by way of confronting positive law models with meta-legal elements such as culture, society, economy, law-making processes, and geopolitics.

scholarly journals The role of legal intellection in the lawmaking mechanism

2020 ◽  
Vol 6 (3) ◽  
pp. 67-73
Author(s):  
Ekaterina A. Petrova
Keyword(s):  
Special Kind ◽  
Thinking Style ◽  
Legal Traditions ◽  
Methods And Techniques ◽  
Legal Thinking ◽  
The Law ◽  
Legal Understanding ◽  
Law Making

The article gives the authors interpretation of legal intellection as a special kind of professional thinking. It is underlined that legal intellection is directly connected with lawmaking, since the law is a result of both of these processes. The main directions of its influence on the elements of the lawmaking mechanism are considered. The author interprets lawmaking mechanism as a set of interrelated and interdependent technical and legal elements that support law creation. These elements include the law-makers; law-making methods and techniques; the rules of claw; forms (sources) of law. It is noted that the lawyers belonging to a particular type of legal understanding determines the understanding of lawmaking process. The author analyzes the influence of legal thinking style, determined by legal traditions of various legal families, on application of various forms of law as a result of lawmaking. The examples from Russian and American legal reality are given. The problem of legal intellection level of lawmakers is discussed, because of its influence on the quality of sources of law. It is concluded that legal intellection as a special kind of professional thinking permeates all types of legal activities and, first of all, directly affects the specifics of the lawmaking mechanism, determining the content of its main elements: the law-makers are the holders of legal intellection; methods, techniques of law-making are determined by the stylistic features of legal thinking; the quality of the forms of law created in the lawmaking process directly depends on the legal thinking level of their creators.

Introduction

2014 ◽  
Author(s):  
Robert D. Cooter ◽  
Ariel Porat
Keyword(s):  
Social Welfare ◽  
Strict Liability ◽  
Tort Law ◽  
Contract Law ◽  
Private Law ◽  
The Law ◽  
The Cost

This book examines how the law of torts, contracts, and restitution can be improved by showing how private law reduces the cost of accidents, lubricates bargains, and encourages unrequested benefits. It considers the two pervasive rules of tort law that provide incentives for actors to reduce accident costs: strict liability and negligence. It also explains how contract law achieves effiency through the remedy of damages and how restitution law allows benefactors to recover gains that their beneficiaries wrongfully obtained from them. The book makes three central claims: misalignments in tort law should be removed; in contract law, promisee's incentives should be improved; and the law should recognize some right of compensation for those who produce unrequested benefits. Each claim is based on the desire to reform private law and to make it more effective in promoting social welfare.

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