A Matter of Interpretation: Constructing and Interpreting Commercial Contracts under the Common Law and the Convention on the International Sale of Goods

2015 ◽  
Vol 4 (1) ◽  
pp. 1-42
Author(s):  
Gordon Wade
Keyword(s):  
19Th Century ◽  
Common Law ◽  
Civil Law ◽  
Private Law ◽  
International Organisations ◽  
Commercial Law ◽  
International Private Law ◽  
The Common ◽  
International Sale Of Goods ◽  
Contractual Obligations

Contractual disputes concerning interpretation can be the most intractable of all contractual disputes and their outcome is notoriously difficult to predict. The interpretation of contradictory or ambiguous contractual provisions may often be necessary in order to determine, inter alia, the effect of the parties’ actions upon the performance of the contract and what the substantive contractual obligations actually are. Contractual interpretation in civil law and common law jurisdictions proceeds from fundamentally different perspectives, particularly when viewed in light of a recognised international private law convention, the cisg. Comparing and contrasting the common law and the cisg shows the latter to be the product of a diplomatic conference comprising 62 States and eight international organisations and not a series of ancient pronouncements of English judges who developed commercial law through 19th century sensibilities. The cisg and the common law are, however, not poles apart but the cisg was born because commercial trading, commercial agreements and the parties involved have become increasingly internationalised, complex and sophisticated.

scholarly journals Penalty Clauses and the CISG

2012 ◽  
Vol 30 (2) ◽  
Author(s):  
Jack Graves
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Traditional View ◽  
Advisory Council ◽  
Liquidated Damages ◽  
The Common ◽  
Penalty Clauses ◽  
International Sale Of Goods ◽  
Commercial Agreements

Commercial agreements often provide for “fixed sums” payable upon a specified breach. Such agreements are generally enforced in civil law jurisdictions. In contrast, the common law distinguishes between “liquidated damages” and “penalty” clauses, enforcing the former, while invalidating the latter as a penalty. The UN Convention on Contracts for the International Sale of Goods (CISG) does not directly address the payment of “fixed sums” as damages, and the validity of “penalty” clauses has, traditionally, been relegated to otherwise applicable domestic national law under CISG Article 4. This traditional orthodoxy has recently been challenged—suggesting that the fate of a penalty clause should be determined by reference to the general principles of the CISG and that such a clause should generally be enforced. The validity of fixed sums, as penalties, is currently under consideration by the CISG Advisory Council, so further exploration of the issue would seem particularly timely. This article examines the basis for the traditional view, along with two distinct challenges to that view—ultimately concluding that these challenges fail to support their respective solutions to the issue and suggesting the continuing vitality of the traditional view.

European Private Law: Moving From a Closed to an Open System of Proprietary Rights

2001 ◽  
Vol 5 (3) ◽  
pp. 273-396
Author(s):  
J H Dalhuisen
Keyword(s):  
Open System ◽  
Common Law ◽  
Civil Law ◽  
Private Law ◽  
The Common ◽  
Lex Mercatoria

This article considers the denationalisation ofprivate law across both Civil Law and Common Lawjurisdictions in Europe. It looks in particular at systems ofproprietary rights and the demands currently placedupon them by commercial logic and practice. As the basic tenets ofownership are reformulated at transnational level in respect of commerce, trade, andfinance, greaterflexibility may be required of the Civil Law. In this connection, the conditional and temporary ownership notions offered by both the Civil and the Common Law may make a contribution to the development ofthe modern Lex Mercatoria.

The principle of good faith in the performance of contractual obligations under the common law of Canada and the law of Quebec

2018 ◽  
pp. 86-93
Author(s):  
D. S. Alyakin
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Good Faith ◽  
Supreme Court Of Canada ◽  
Legal Analysis ◽  
Legal Method ◽  
The Common ◽  
The Law ◽  
Contractual Obligations

Introduction. In the paper, the author analyzes the principle of good faith in contractual performance under the common law of Canada and carry out a legal analysis of one of the key judicial precedents that is in relation to the designated area and that was adopted by the Supreme Court of Canada in 2014, i.e. Bhasin v. Hrynew case. The study is focused on the principle of good faith contractual performance under the law of the Canadian province of Quebec as well.Materials and methods. The material for the study consists of the judicial precedents of Canadian courts as well as the papers of foreign and Russian researchers in the field of civil law. The methodological basis of research comprises general scientific methods of cognition (analysis, synthesis, analogy) as well as specific ones, i.e. the comparative legal method, the formal logical method, the systematic method, methods of structure and function and the method of interpretation.Results. The author conducts a detailed analysis of Bhasin v. Hrynew case and determines the role of this precedent in the common law of Canada as well as the criteria for identifying the principle and a duty of good faith contractual performance. The author also analyzes the principle of good faith under the law of Quebec, i.e. the relevant jurisprudence and the codification of this principle in the legislation of Quebec.Discussion and conclusion. The distinction of the principle of good faith in the performance of contractual obligations as a freestanding principle of Canada’s common law is justified. The Bhasin v. Hrynew case is a vivid illustration of the growing role of the principle of good faith in the countries of the common law tradition. Furthermore, the convergence of Canada’s common law and the law of the province of Quebec, the only one among ten provinces and three territories of Canada that clearly adheres to civil law tradition, is an impact on this precedent.

scholarly journals Du Maintien des Appels a la Cour Supreme du Canada en Matiere de Droit Civil

1969 ◽  
pp. 144
Author(s):  
Gérald A. Beaudoin
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Civil Law ◽  
The Other ◽  
Private Law ◽  
Supreme Court Of Canada ◽  
The Supreme Court ◽  
The Common ◽  
Le Canada ◽  
Article Analyse

L'auteur de cet article analyse la question du maintien des appels en droit civil la Cour Supr&me. Dans le contexte fSdSral canadien, il se declare favorable au maintien de ces appels. II trouve plus d'avantages que de disavantages. Le Canada ayant deux systdmes de droit privi, il convient que le plus haut tribunal du pays se prononce en ces matidres il s'agit d'une richesse pour notre pays. 11 moyen d'assurer la purete" de Vun et de Vautre systdme. The author of this article analyses the question of the retention of the civil law appeals to the Supreme Court of Canada. He is in favour of such appeals in our federation. We have in Canada two private law systemss one inspired from the Common Law of England and the other from "le droit civil" of France. It is appro priate for our highest tribunal to render judgments in both systems. This is great advantage for our country. Steps may be taken to assure the purity of both systems.

National Report for Mexico

2013 ◽  
Author(s):  
Carlos Sánchez-Mejorada y Velasco
Keyword(s):  
Constitutional Law ◽  
Common Law ◽  
Civil Law ◽  
Administrative Law ◽  
Public Law ◽  
The State ◽  
Profit Motive ◽  
Private Law ◽  
Commercial Law ◽  
The Status

In civil law systems, such as Mexico, a distinction is made between civil law (‘derecho civil’) and commercial law (‘derecho mercantil’), which can be confusing to persons unfamiliar with the system. As is the case in common law jurisdictions, law in civil law systems can be divided into public law and private law, the latter being those laws that govern relationships between and among private parties, regarding which the state functions more as a ‘supervisor’ or an ‘umpire’ than as an authority. Public law would include constitutional law, administrative law, etc. In turn, private law comprises civil law, ie those rules governing the status, rights, and obligations of the residents of the state as persons, their property, their estates, their obligations, and their contracts; and commercial law, those rules governing all acts of the residents of the state that have a profit motive, which in Mexico—as well as in other jurisdictions—are called ‘acts of commerce’ (‘actos de comercio’).

Lepaulle Appropriated

2015 ◽  
Author(s):  
Alexandra Popovici ◽  
Lionel D Smith
Keyword(s):  
International Law ◽  
English Translation ◽  
Common Law ◽  
Civil Law ◽  
Tax Law ◽  
Private Law ◽  
Municipal Law ◽  
The Common ◽  
Droit International

This chapter discusses the English translation of the first chapter of Pierre Lepaulle's 1932 book Traité théorique et pratique des trusts en droit interne, en droit fiscal et en droit international (A Theoretical and Practical Treatise on Trusts in Municipal Law, Tax Law, and International Law). The book articulates Lepaulle's vision of the common law trust as an affected patrimony. His goal was to explain the common law trust to a civilian audience, using the vocabulary and the conceptual tools of the civil law in its French manifestation. The chapter first provides a background on the translation project, which involved appropriating Lepaulle, and the author before presenting the translation. It emphasises the significance of Lepaulle's work to the notions of trust and patrimony as well as to civil law in French and to private law more generally, including the common law.

Trusts and Patrimonies

2015 ◽  
Keyword(s):  
The Netherlands ◽  
Building Block ◽  
Common Law ◽  
Civil Law ◽  
Comparative Law ◽  
Private Law ◽  
Legal Concept ◽  
The Common

This book explores how the private law concepts of trust and patrimony interact in various jurisdictions, with a view to advancing the understanding of the trust as a fundamental legal concept. It comprises new and previously published papers written by distinguished comparative law scholars. Focusing on the private law of England, Scotland, France, Quebec and the Netherlands, this book investigates whether the common law trust could be understood as a civil law patrimony by appropriation, and whether civil law and mixed traditions could create local versions of the common law trust using patrimony as the main conceptual building block.

Is Style of Reasoning a Fundamental Difference Between the Common Law and the Civil Law?

2017 ◽  
Vol 17 (2) ◽  
pp. 238-290
Author(s):  
Colm Peter McGrath ◽  
◽  
Helmut Koziol ◽  
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Fundamental Difference ◽  
The Common

The New Private Law and Intellectual Property

2020 ◽  
pp. 408-426
Author(s):  
Molly Shaffer Van Houweling
Keyword(s):  
Intellectual Property ◽  
Common Law ◽  
Private Law ◽  
Concepts And Categories ◽  
The Common ◽  
The Law ◽  
Law Courts ◽  
Legal Concepts

This chapter studies intellectual property (IP). A hallmark of the New Private Law (NPL) is attentiveness to and appreciation of legal concepts and categories, including the traditional categories of the common law. These categories can sometimes usefully be deployed outside of the traditional common law, to characterize, conceptualize, and critique other bodies of law. For scholars interested in IP, for example, common law categories can be used to describe patent, copyright, trademark, and other fields of IP as more or less “property-like” or “tort-like.” Thischapter investigates both the property- and tort-like features of IP to understand the circumstances under which one set of features tends to dominate and why. It surveys several doctrines within the law of copyright that demonstrate how courts move along the property/tort continuum depending on the nature of the copyrighted work at issue—including, in particular, how well the work’s protected contours are defined. This conceptual navigation is familiar, echoing how common law courts have moved along the property/tort continuum to address disputes over distinctive types of tangible resources.

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