Frustration of purpose and the French Contract Law reform

2018 ◽  
Vol 25 (3) ◽  
pp. 288-309
Author(s):  
Mitja Kovac
Keyword(s):  
International Business ◽  
Contract Law ◽  
Law Reform ◽  
Current Form ◽  
Business Transactions ◽  
The World ◽  
Governing Principle ◽  
English Law ◽  
Unforeseen Contingencies ◽  
Code Civil

Frustration of purpose remains one of the most ill-defined concepts in the English law of contracts. The same problem has also recently attracted the attention of the French legislature in its modernization of the Code Civil. The French reform entitles courts with broad powers to adjust the contract when unforeseen contingencies have made the bargain unduly costly. This article argues that the introduction of an economically inspired adjustment rule in English contract law should be re-considered to maintain its current superior commercial position. If implemented, then the ‘ex ante division of surplus’ should be the governing principle in adjusting contract price, because such a remedy will not affect the agreed-upon division of the surplus. Moreover, this paper suggests that the recent French reform is indeed a long-awaited step toward a more effective regulation of the notorious ‘unforeseen contingencies’ phenomena, but also suggests that further improvements might be needed. Furthermore, it offers a set of arguments suggesting that the English law in its current form might still be the preferred option in the world of international business transactions. The international commercial attractiveness of English contract law, although being challenged by the new French Civil Code, remains undisputed.

scholarly journals PENERAPAN PRINSIP-PRINSIP UNIDROIT DAN KONVENSI INTERNASIONAL TERHADAP PEMBAHARUAN HUKUM KONTRAK INDONESIA

LITIGASI ◽  
2016 ◽  
Vol 15 (1) ◽  
Author(s):  
An An Chandrawulan
Keyword(s):  
International Trade ◽  
Contract Law ◽  
Civil Code ◽  
Law Reform ◽  
Legal Certainty ◽  
International Convention ◽  
Legal Principles ◽  
Business Transactions ◽  
The World ◽  
The Government

The development of business transaction require a new national contract law. Correspondingly, the UNIDROIT Principles of International Commercial Contracts and the International Convention on the sale of Goods (UNCITRAL CISG 1980) sets out principles contained in it may be adopted into a new national contract laws in the future. This research aims to examine in depth the urgency of contract law reform in Indonesia either through adjustment to the development of practice or through a complete overhaulof the Indonesian National Contract Law contained in Book III of the Civil Code (BW) by adopting principles of contract law that is universally applicable in the world. The Result of this research indicate that contract law contained in Book III of the Civil Code has be enunable to meet the demands of the business transactions today. Because it does not explicitly specifying the principles espoused by the international contract law as listed in the UNIDROIT Principles, therefore the new contract law apply the principles contained the provisions of the UNIDROIT Principles for International Commercial Contracts. So setting the forth coming contract to accommodate the interests of society, especially the government, businesses both domestically and internationally so that we will be a player in this era of globalization. Application of the principles of the CISG is based on the CERD and the general legal principles that apply in various countries around the world can be adopted into law the new Indonesian contract, so Indonesian contract law which will come to accommodate the interests and provide protection and legal certainty to the entrepreneurs, especially in the field of international trade. Keywords : Law Reform; Contract; UNIDROIT; CISGABSTRAKAdanya perkembangan transaksi bisnis memerlukan suatu perangkat hukum kontrak nasional yang baru. Sejalan dengan itu, Unidroit Principles of International Commercial Contract dan Konvensi Jual Beli Internasional (UNCITRAL CISG 1980) memuat prinsip-prinsip yang dapat diadopsi ke dalam hukum kontrak nasional yang baru nanti. Penelitian ini bertujuan menelaah secara mendalam urgensi pembaharuan hukum kontrak di Indonesia, apakah melalui penyesuaian terhadap perkembangan praktik yang sudah ada ataukah melalui perombakan total Hukum Perjanjian Nasional Indonesia yang terdapat dalam Buku III KUHPerdata (BW) dengan mengadopsi prinsip-prinsip hukum kontrak yang berlaku universal di dunia. Berdasarkan hasil penelitian hukum kontrak yang termuat dalam Buku III KUHPerdata sudah tidak dapat memenuhi tuntutan perkembangan transaksi bisnis saat ini, karena tidak secara eksplisit mencatumkan  prinsip-prinsip yang dianut oleh hukum kontrak internasional seperti yang tercantum dalam UNIDROIT Principles. Oleh karena itu seyogyianya dalam pembaharuan hukum kontrak diterapkan prinsip-prinsip yang terdapat dalam ketentuan UNIDROIT Principle for Internasional Commercial Contract. Penerapan prinsip-prinsip dalam CISG yang didasari oleh CERD dan prinsip-prinsip hukum umum yang berlaku diberbagai negara di belahan dunia dapat diadopsi kedalam hukum kontrak Indonesia baru, sehingga hukum kontrak Indonesia yang akan datang dapat mengakomodir kepentingan dan memberikan perlindungan serta kepastian hukum kepada para pelaku usaha khususnya yang bergerak di bidang perdagangan internasional. Kata Kunci : Pembaharuan  Hukum; Kontrak; UNIDROIT; CISG 

The French Contract Law Reform and the Political Process

2017 ◽  
Vol 13 (4) ◽  
Author(s):  
Bénédicte Fauvarque-Cosson
Keyword(s):  
Social Life ◽  
Political Process ◽  
Contract Law ◽  
First Century ◽  
Political Life ◽  
Law Reform ◽  
The Political ◽  
Legal Certainty ◽  
The Right ◽  
Code Civil

AbstractThis paper provides an overview of the political process which led to the adoption of one of the most important reforms of the Code civil since 1804. This major revision of the French Code civil took place by way of an ‘ordonnance’ (delegated legislation). That, in itself, was highly controversial. As regards substance, the most controversial points related to the need to strike a new balance between contractual justice and legal certainty in French contract law to make it better suited to economic and social life in the twenty-first century. The French contract law reform began at the instigation of President Chirac, was continued under Sarkozy’s presidency and was finally completed while François Hollande was the President of France. This background might suggest that, from a political standpoint, the new provisions of the Code civil successfully struck the right balance between legal certainty and contractual justice; if only political life were so simple. As will be shown in the second part of this paper, many questions remain open. The first part recounts the story behind the reform, from its origins to its completion. The second part gives some further insight into some emblematic new provisions of the Code civil.

scholarly journals SECTION 27 OF THE INSOLVENCY ACT 24 OF 1936 AS A VIOLATION OF THE EQUALITY CLAUSE: A CRITICAL ANALYSIS

2016 ◽  
Vol 19 ◽  
pp. 1
Author(s):  
Zingaphi Mabe
Keyword(s):  
South Africa ◽  
South African ◽  
Law Reform ◽  
Department Of Justice ◽  
Current Form ◽  
The World ◽  
The Law ◽  
The Republic ◽  
The Right ◽  
Made In

The Constitution of the Republic of South Africa, 1996, is regarded as one of the most progressive constitutions in the world. As the supreme law in South Africa, it applies to all law and conduct. All South African laws must be consistent with the Constitution. Where there is an alleged violation of constitutional provisions, that law or conduct must be evaluated to establish whether or not it is consistent with the values of an open and democratic society based on fundamental human rights such as human dignity and the right to equality.The Insolvency Act and section 27 in particular which is the focus of this paper must be consistent with the Constitution. Section 27(1) provides:"No immediate benefit under a duly registered antenuptial contract given in good faith by a man to his wife or any child to be born of the marriage shall be set aside as a disposition without value, unless that man's estate was sequestrated within two years of the registration of that antenuptial contract."This section protects benefits arising from an antenuptial contract and given by a man to his wife or to a child born of their marriage, from being set aside as dispositions without value during sequestration proceedings. The same protection is not afforded however, to benefits given by the wife under an antenuptial contract. This also excludes benefits given by those in a same sex marriage, and limits the benefits available to children born of that form of marriage.As the right to equality in section 9 of the Constitution seeks to provide equal benefits before the law to persons in the same or similar positions by prohibiting unfair discrimination, the limitations in section 27 render it vulnerable to constitutional review.As the Insolvency Act has not been amended as a whole to accommodate the equality provisions in the Constitution, in its current form, section 27 seems to violate section 9(3) of the Constitution on the grounds of sexual orientation, marital status and birth.However, certain proposals have been made in the report by the South African Law Reform Commission on the Review of the Law of Insolvency to develop section 27 to comply with the Constitution. Further developments have been proposed by the Department of Justice and Constitutional Developments in its presentations to the Labour Market Chamber in 2003 and 2006.This paper examines section 27 of the Insolvency Act as it currently reads, within the context of the right to equality in section 9 of the Constitution. Current developments in respect of section 27 will be considered to illustrate progress made in reforming the section and whether the reform measures proposed will protect all those affected by the discrimination arising from section 27.The discussion opens with a consideration of the current dispensation and the question whether section 27 violates section 9(3) of the Constitution. Current developments will then be discussed in the light of the current proposals.

Is Renovating the General Law of Contracts Useful? The French Experience

2019 ◽  
pp. 220
Author(s):  
BÉNÉDICTE FAUVARQUE-COSSON ◽  
FRANÇOIS ANCEL
Keyword(s):  
Contract Law ◽  
Law Reform ◽  
Public Order ◽  
Legal Certainty ◽  
General Law ◽  
Legal Provisions ◽  
French Experience ◽  
Ordre Public ◽  
Governing Law ◽  
Code Civil

The ordonnance of 10 February 2016 for the reform of contract law, of the general regime and of proof of obligations came into force on 1 October 2016. Further changes were made by the legislator in 2018. This reform modifies one of the most important part of the Code civil: the provisions on contracts and obligations The reform aims at giving more accessibility and clarity to French contract law, and it undeniably has already made it more attractive internationally. In this paper, we explain why, in an international world where contracting parties can chose the law applicable to their contract, we believe that a codified law is very important to overcome the void left by the contract and to resolve the difficulties that have arisen during its existence. Besides, it brings legal certainty, accessibility and visibility. We also explain why we think that a modern general law of contracts is a unique opportunity to propose a base of legal provisions considered as “minimal” and to affirm a specific legal policy. If it is clear, that practitioners and judges should not conceive contract law as the expression of a contractual public order (ordre public contractuel), it is sometimes difficult to know to what extent contracting parties can set aside some provisions of the governing law. Finally, we explain how, after having been for nearly two centuries the instruments of a certain legal nationalism, national codifications have become the cement of European private law. Indeed, the French contract law reform, which was built on the diversity of Europe, drew much inspiration from various European and international models. In turn, it has attracted a great deal of interest abroad, was translated into several languages and is extensively commented.

INTERNATIONAL BUSINESS IN THE CONDITION OF THE CORONA-CRISIS

2017 ◽  
Author(s):  
Karina Pasulka ◽  
◽  
Nataliya Kushnir ◽  
Keyword(s):  
International Business ◽  
Global Economy ◽  
German Economy ◽  
Italian Economy ◽  
The World

Introduction. The situation in the global economy and business during the COVID-19 pandemic is analyzed in this article. More than 30 million people worldwide have already been infected with the coronavirus, which came from China. However, the spread of the disease has also had an extremely serious impact on the economies of various countries in the world. The Organization for Economic Co-operation and Development has already said that it will take many years for the world to recover from the pandemic. EU GDP in the second quarter of 2020 showed a record decline - 14.4% year on year. The German economy returned to the level of 2011, the Spanish - in 2002, and the Italian economy was rejected in the early 1990s. These and other characteristics show the importance of research on this topic and problem, because it does not apply to a particular region or a particular country, but the whole world.

Competitiveness in the era of global digitalization

2020 ◽  
pp. 30-40
Author(s):  
E. Smirnov
Keyword(s):  
International Economic ◽  
International Business ◽  
World Economy ◽  
Development Strategies ◽  
Global Market ◽  
Antitrust Policy ◽  
Economic Dynamics ◽  
Digital Platforms ◽  
The World

In the context of digitalization in the world, competition is intensifying, lead-ing to a significant transformation of international business and a change in the development strategies of global digital platforms in the global market. The article analyzes and summarizes the prevailing approaches to competition and antitrust policy in the context of the “platformization” of the world economy and its impact on international economic dynamics.

Delegation and Information Disclosure with Unforeseen Contingencies

2021 ◽  
Vol 0 (0) ◽  
Author(s):  
Haoran Lei ◽  
Xiaojian Zhao
Keyword(s):  
Information Disclosure ◽  
Large Set ◽  
The World ◽  
Financial Expert ◽  
Unforeseen Contingencies

Abstract We incorporate unawareness into the delegation problem between a financial expert and an investor, and study their pre-delegation communication. The expert has superior awareness of the possible states of the world, and decides whether to reveal some of them to the investor. We find that the expert reveals all the possible states to the investor if the investor is initially aware of a large set of possible states, but reveals partially or nothing otherwise. An investor with a higher degree of unawareness tends to delegate a larger set of projects to the expert, giving rise to a higher incentive for the expert to keep her unaware.

When Contract’s Basic Assumptions Fail

2021 ◽  
pp. 1-32
Author(s):  
Hanoch Dagan ◽  
Ohad Somech
Keyword(s):  
Basic Assumption ◽  
Contract Law ◽  
Basic Assumptions ◽  
The World ◽  
Erroneous Beliefs

Modern contract law accords considerable significance to the basic assumptions on which a contract is made. It thus takes to heart a failure of a belief whose truthfulness is taken for granted by both parties. Where the failure results from the parties’ mistake at the time of formation, “the contract is voidable by the adversely affected party,” if that mistake “has a material effect on the agreed exchange of performances” and unless that party “bears the risk of the mistake.”1 Where, in turn, the failure of such a basic assumption results from the parties’ erroneous beliefs about future states of the world, a party’s duty to render performance may be discharged if they are not responsible for the supervening impracticability or frustration and “unless the language or the circumstances indicate the contrary.”2

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