Formation of Contract in Japan

2018 ◽  
Author(s):  
Yoshikazu Yamashita
Keyword(s):  
Common Law ◽  
Contract Law ◽  
Mirror Image ◽  
Good Faith ◽  
Contract Formation ◽  
Major Reform ◽  
Consumer Contracts ◽  
The Common ◽  
Japanese Law ◽  
Formal Requirements

This chapter provides insights into the law on contract formation in Japan. The Japanese approach is traditional, requiring an agreement which, in turn, normally requires an offer and matching acceptance, according to the mirror image rule. Once offers become effective, the 1898 Japanese Civil Code severely restricts their revocability. This is in tune with the mostly German origins of Japanese contract law. However, the drafters of the Code deliberately followed the common law in one respect: the offeree’s acceptance becomes effective as soon as it is dispatched. This is highly controversial and in 2001 was abolished for acceptances by electronic means. Ongoing major reform of Japanese contract law will probably extend this solution to all contracts. Japanese law has no doctrine of consideration and has traditionally eschewed formal requirements as a prerequisite for the validity or enforceability of contracts. More recently, formalities have been introduced, first, for certain consumer contracts, then for contracts of suretyship. A particular feature of Japanese law pertaining to contract formation is the strong duty to negotiate in good faith.

Brownsword, R and Howells, G, ‘The implementation of the EC Directive on Unfair Terms in Consumer Contracts – some unresolved questions’ [1995] JBL 243. Brownsword, R, Howells, G and Wilhelmsson, T (eds), Welfarism in Contract, 1994, Aldershot: Dartmouth. Burrows, A, (ed), Essays on the Law of Restitution, 1991, Oxford: Clarendon. Burrows, A, The Law of Restitution, 1993, London: Butterworths. Burrows, A, Understanding the Law of Obligations, 1998, Oxford: Hart. Burrows, A, ‘Free acceptance and the law of restitution’ (1988) 104 LQR 576. Carr, C, ‘Lloyd’s Bank Ltd v Bundy’ (1975) 38 MLR 463. Cheshire, G, Fifoot, C and Furmston, M, Law of Contract, 13th edn, 1996, London: Butterworths/Tolley. Chitty (Guest, AG (ed)), Contracts: General Principles, 27th edn, 1994, London: Sweet & Maxwell. Coase, R, ‘The problem of social cost’ (1960) 3 Journal of Law and Economics 1. Collins, H, Law of Contract, 3rd edn, 1997, London: Butterworths. Collins, H, ‘Good faith in European contract law’ (1994) OJLS 229. Cooke, PJ and Oughton, DW, The Common Law of Obligations, 3rd edn, 2000, London: Butterworths. Coote, B, Exception Clauses, 1964, London: Sweet & Maxwell. Coote, B, ‘The Unfair Contract Terms Act 1977’ (1978) 41 MLR 312. De Lacey, J, ‘Selling in the course of a business under the Sale of Goods Act 1979’ (1999) 62 MLR 776. Dean, M, ‘Unfair contract terms – the European approach’ (1993) 56 MLR 581. Duffy, P, ‘Unfair terms and the draft EC Directive’ (1993) JBL 67. Evans, A, ‘The Anglo-American mailing rule’ (1966) 15 ICLQ 553. Fehlberg, B, ‘The husband, the bank, the wife and her signature – the sequel’ (1996) 59 MLR 675.

1995 ◽  
pp. 808-808
Keyword(s):  
Law And Economics ◽  
Common Law ◽  
Contract Law ◽  
Good Faith ◽  
European Contract ◽  
Consumer Contracts ◽  
The Common ◽  
The Law ◽  
Anglo American ◽  
Unfair Terms

Principles of Internet contracting: Illuminating the shadows

2019 ◽  
Vol 48 (4) ◽  
pp. 208-232
Author(s):  
Caterina Gardiner
Keyword(s):  
United States ◽  
United Kingdom ◽  
Consumer Protection ◽  
Common Law ◽  
Case Law ◽  
The United States ◽  
Contract Law ◽  
Contract Formation ◽  
The Common ◽  
The Relationship

The common law that applies to Internet contract formation could be said to exist in a penumbra—a grey area of partial illumination between darkness and light—where it may be possible to lose sight of established contract law principles. Internet contracts raise difficult issues relating to their formation that challenge traditional contract doctrine. Analysis of case law from the United States, United Kingdom and Ireland illustrates that the courts have not applied contract formation doctrine in a principled or consistent way. There is a tendency for decisions to be reached for policy reasons, for example, to facilitate the development of e-commerce, or to achieve a result that is considered fair, rather than on sound principles of contract law. There may also be some uncertainty arising from the relationship between statutory consumer protection rules and common law contract formation doctrine. The enforceability of Internet contracts in the common law courts remains unpredictable. This article argues that although Internet contracting may raise distinctive contract formation issues, it is possible for the judiciary to invoke the inherent flexibility of the common law, to take into account the specific characteristics of Internet contracts, while still adhering to established contract law doctrine and maintaining a principled approach.

13. Controlling contract terms

Contract Law ◽  
2019 ◽  
pp. 371-403
Author(s):  
TT Arvind
Keyword(s):  
Consumer Protection ◽  
Common Law ◽  
Freedom Of Contract ◽  
Liquidated Damages ◽  
Consumer Contracts ◽  
The Common ◽  
The Law ◽  
Unfair Terms ◽  
Formal Requirements ◽  
Statutory Regulation

This chapter examines how the law regulates contract terms, with particular emphasis on rules that are intended to protect weaker parties. It begins with a discussion of the limits of freedom of contract and proceeds by assessing the role played by formal requirements, such as the requirement that contracts be in writing. It then considers how the law regulates contract terms which seek to alter the liability that one party will have in the event of breach. More specifically, it looks at exclusion clauses in the common law and the statutory regulation of such clauses, along with liquidated damages, contractual remedies, and the rule against penalties. It also explores the extent to which consumer protection law restricts the terms that can be included in consumer contracts, especially when dealing with the problem of unfair terms.

scholarly journals Confidentiality - A Two-Appeal Principle

2018 ◽  
Vol 1 (3) ◽  
pp. 53
Author(s):  
Dr. Brunela Kullolli
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Contract Law ◽  
Good Faith ◽  
The Third ◽  
Article Analysis ◽  
The Common ◽  
The Moment ◽  
Contractual Relation

This article analysis relates to the creation of conditions for the conclusion of the contract.This is the moment when the negotiating parties determine whether there will be a contract or not. This is the stage that in the best case is finalized with the contract signing.Known as the pre-contractual stage, it is considered as the foundation of the contractual relationship.Conduct in good faith at the stage of entering into a contract would also avoid causing potential damages and liability".- The first part gives , of Completion of the contract in good faith, is a legal requirement under the Civil Laë tradition, but unlike the requirement for pre-contractual trust, finds place in the Common Law tradition.In this part of the study, the detailed treatment of the manner of performance of the contract will be set aside, focusing mainly on the obligations that dictate its fulfillment in good faith and the liability incurred in the event of its absence . The second part is concentrated, Contract Interpretation. The third part will be treated as a brief and comparative overview of the common law of Civil Law in the interpretation of the contract, taking into account the main interpretative criteria, to underline the main differences between them. Among all the criteria, the focus will be on trust, which is sanctioned as a special criterion of interpretation by the Civil Law countries. The fourth part analysis the validity of the contract.In this last part of the chapter, I will try to clarify the confusion created between the rules of contract validity and the rules of conduct, as well as the role and impact of the breach of the trust principle in the validity of the contract. Conclusions .Regarding the situations that arise for the damage that comes to the parties from non-fulfillment of obligations and breach of the principle of good faith during the contract's formation, it is necessary to clarify how the type of damage that came during the pre-contractual phase and which interest has failed to realize one of the parties. In fact, this is a genuine duty of the court which, as the case may be, must specify exactly: the responsibility of the parties, the interest that has been violated, the type of damage that has been caused.Keywords: contract law ,internal law ,contractual relation,internal contract interpretation, civil law

13. Controlling contract terms

Contract Law ◽  
2017 ◽  
Author(s):  
TT Arvind
Keyword(s):  
Consumer Protection ◽  
Common Law ◽  
Freedom Of Contract ◽  
Liquidated Damages ◽  
Consumer Contracts ◽  
The Common ◽  
The Law ◽  
Unfair Terms ◽  
Formal Requirements ◽  
Statutory Regulation

This chapter examines how the law regulates contract terms, with particular emphasis on rules that are intended to protect weaker parties. It begins with a discussion of the limits of freedom of contract and proceeds by assessing the role played by formal requirements, such as the requirement that contracts be in writing. It then considers how the law regulates contract terms which seek to alter the liability that one party will have in the event of breach. More specifically, it looks at exclusion clauses in the common law and the statutory regulation of such clauses, along with liquidated damages, contractual remedies, and the rule against penalties. It also explores the extent to which consumer protection law restricts the terms that can be included in consumer contracts, especially when dealing with the problem of unfair terms.

Contract Formation and Third Party Beneficiaries in Korea

2018 ◽  
Author(s):  
Kwon Youngjoon
Keyword(s):  
Common Law ◽  
German Law ◽  
General Rule ◽  
Civil Code ◽  
Third Party ◽  
Contract Formation ◽  
The Common ◽  
Formal Requirements

This chapter 14 discusses the rules on contract formation and third party beneficiaries in Korea. These can be found in the Korean Civil Code of 1960 that is closely modelled on the Japanese Civil Code, therefore many of its solutions can be ultimately traced back to German law. For a binding contract to be made, Korean law only requires an agreement which is normally constituted by an offer and a matching acceptance; there is no requirement of consideration, and as a general rule there is freedom of form—only limited statutory exceptions impose formal requirements for specific types of contract. Offers must be sufficient and sufficiently definite, and they must be made with the intention to be legally bound. They become effective once they reach the offeree. After that they are, in principle, irrevocable—a position only slightly softened by a 2014 Ministry of Justice draft amendment. The draft also suggests abolishing the common law-style ‘mailbox rule’ that the Code inherited from the Japanese Civil Code.

A Role For Tort In Pre-Contractual Negotiations? An Examination Of English, French, And Canadian Law

2003 ◽  
Vol 52 (4) ◽  
pp. 969-993 ◽  
Author(s):  
Giliker Paula
Keyword(s):  
Common Law ◽  
Contract Law ◽  
Contract Formation ◽  
Canadian Law ◽  
The Common ◽  
The Law

The common law has traditionally regarded the question of pre-contractual liability as a matter of contract formation.2 Where the claimant is able to satisfy the rules of offer and acceptance, consideration, an intention to be bound, and certainty, contract law possesses a number of tools capable of resolving disputes arising prior to contract. For example, the courts will utilise the law of misrepresentation and mistake and, if necessary, imply terms to respond to questions such as the effect of pre-contractual representations or whether the claimant should be paid for work commenced prior to contract.3 Notably where a transaction between two commercial parties has been executed, the English courts have shown themselves particularly willing to intervene and ensure the validity of the agreement reached between the parties.4

Contract Formation in India: Law and Practice

2018 ◽  
Author(s):  
Nigam Nuggehalli
Keyword(s):  
Common Law ◽  
Subsequent Development ◽  
Contract Law ◽  
Acceptance Rule ◽  
Contract Formation ◽  
Successful Attempt ◽  
The Common ◽  
The Law ◽  
Indian Law ◽  
British Commonwealth

This chapter examines the law on the formation of contracts in India. The Indian Contract Act 1872 is significant as it is the first successful attempt to codify the English common law of contract in the British Commonwealth. The Act was then transplanted to other jurisdictions in the British Commonwealth. The preamble of the Act makes it clear that it is intended to ‘define and amend certain parts of the law relating to contract’; therefore the Act does not exhaustively set out the rules of contract law. Interesting issues follow relating to the precise ambit of the Act, and the areas where there continues to be room for common law development, whether novel and unique to India, or adopted into Indian law after considering the common law developments in other jurisdictions. One issue relates to the postal acceptance rule which does not state that it is an exception to the instantaneous communication rule. Another issue relates to whether the Act permits the accommodation of a subsequent development in the English common law.

Contract Law in Practice

2021 ◽  
Author(s):  
Andrews Neil
Keyword(s):  
Common Law ◽  
Case Law ◽  
Detailed Examination ◽  
Contract Law ◽  
Good Faith ◽  
Fair Dealing ◽  
Freedom Of Contract ◽  
Compensation Principle ◽  
The Common ◽  
English Law

This book is a detailed examination of the general doctrines of English law of contract. Cases are analysed precisely, providing quick access to the major authoritative passages in the leading judgments. The coverage is comprehensive. It focuses on English law, but it also provides analysis of assistance throughout the Common Law family of legal systems. It provides up-to-date examination of case law developments. There are nearly fifty ‘evaluation’ sections which provide comment on controversial or unclear topics. Six major principles are identified: Freedom of Contract; Objectivity; the Contractual Bond Principle; Estoppel; Good Faith and Fair Dealing; the Compensation Principle.

Formation and Third Party Beneficiaries

2018 ◽  
Keyword(s):  
English Language ◽  
Common Law ◽  
Contract Law ◽  
Third Parties ◽  
Third Party ◽  
Legal Transplant ◽  
Contract Formation ◽  
The Common ◽  
Common Problems ◽  
The Many

Studies in the Contract Laws of Asia provides an authoritative account of the contract law regimes of selected Asian jurisdictions, including the major centres of commerce where limited critical commentaries have been published in the English language. Each volume in the series aims to offer an insider’s perspective into specific areas of contract law—remedies, formation, parties, contents, vitiating factors, change of circumstances, illegality, and public policy—and explores how these diverse jurisdictions address common problems encountered in contractual disputes. A concluding chapter draws out the convergences and divergences, and other themes. All the Asian jurisdictions examined have inherited or adopted the common law or civil law models of European legal systems. Scholars of legal transplant will find a mine of information on how received law has developed after the initial adaptation and transplant process, including the influences affecting and mechanisms of these developments. The many points of convergence and divergence (in both form and in substance) emerge. These provide good starting points for regional harmonization projects. Volume II of this series deals with contract formation and contracts for the benefit of third parties in the laws of China, India, Japan, Korea, Taiwan, Singapore, Malaysia, Hong Kong, Korea, Vietnam, Cambodia, Thailand, Myanmar, and Indonesia. Typically, each jurisdiction is covered in two chapters; the first deals with contract formation, while the second deals with contracts for the benefit of third parties.

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