Duty to renegotiate in international commercial law and uncontemplated behavioural effects

2020 ◽  
Vol 27 (4) ◽  
pp. 445-464
Author(s):  
Mitja Kovač
Keyword(s):  
Contract Law ◽  
Jel Classification ◽  
Commercial Law ◽  
European Contract ◽  
Behavioural Effects ◽  
The Subject ◽  
Unforeseen Contingencies ◽  
Common European Sales Law ◽  
International Instruments ◽  
European Contract Law

This paper explores possible uncontemplated effects and behavioural implications created by duty-to-negotiate provisions in international instruments. More precisely, the paper considers how five different international instruments approach the subject, namely the Convention on Contracts for the International Sale of Goods (CISG), UNIDROIT Principles of International Commercial Contracts (PICC), Principles of European Contract Law (PECL), Draft Common Frame of Reference (DCFR) and Common European Sales Law (CESL). The extent to which these international and European legal instruments correspond to recent economic and behavioural findings is examined. Moreover, an economically inspired analysis is conducted of the uncontemplated consequences of the duty to renegotiate that well-intended international lawmakers never anticipated. Further, it is suggested that game theoretical and behavioural reasons might exist for adopting a cautious approach to the duty to renegotiate in instances of unforeseen contingencies as found in the CISG as well as the English, German, US and Scottish law of contracts. JEL classification: C23, C26, C51, K42, O43

Commentaries on European Contract Laws

2018 ◽  
Author(s):  
Nils Jansen ◽  
Reinhard Zimmermann
Keyword(s):  
Contract Law ◽  
Integrative Approach ◽  
Consumer Contract ◽  
European Contract ◽  
Related Services ◽  
Broad Perspective ◽  
Complex Picture ◽  
General Contract Law ◽  
Common European Sales Law ◽  
European Contract Law

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.

Part I General Principles, 1 The Nature, History, and Sources of Commercial Law

2015 ◽  
Keyword(s):  
Contract Law ◽  
International Organisations ◽  
Commercial Law ◽  
European Contract ◽  
History Of ◽  
Standard Term ◽  
Lex Mercatoria ◽  
International Chamber Of Commerce ◽  
European Contract Law

Chapter 1 examines the nature of commercial law and transnational commercial law, identifies the forces driving the development of commercial law and gives a brief history of commercial law from the early codes to the present day. After identifying the sources of national commercial law, it goes on to examine the nature and sources of transnational commercial law, with a particular focus on international trade usage and the lex mercatoria and discusses complex issues relating to the binding nature of usage. Also discussed are the major types of international instrument — conventions, model laws, contractually incorporated rules and trade terms promulgated by international organisations such as the International Chamber of Commerce, standard-term contracts, and scholarly restatements such as the UNIDROIT Principles of International Commercial Contracts and the Commission on European Contract Law Principles of European Contract Law.

The Proposal for a Regulation on a Common European Sales Law: Deficits of the Most Recent Textual Layer of European Contract Law

2012 ◽  
Vol 16 (3) ◽  
pp. 301-357 ◽  
Author(s):  
Horst Eidenmüller ◽  
Nils Jansen ◽  
Eva-Maria Kieninger ◽  
Gerhard Wagner ◽  
Reinhard Zimmermann
Keyword(s):  
Contract Law ◽  
European Contract ◽  
Common European Sales Law ◽  
Textual Layer ◽  
European Contract Law

scholarly journals Freedom of Contract: Comparison Between Provisions of the CISG (Article 6) and Counterpart Provisions of the PECL

2017 ◽  
Author(s):  
Ulrich G. Schroeter
Keyword(s):  
United Nations ◽  
Contract Law ◽  
Commercial Law ◽  
European Contract ◽  
Freedom Of Contract ◽  
United Nations Convention ◽  
The United Nations ◽  
International Sale Of Goods ◽  
European Contract Law ◽  
Court Practice

6 Vindobona Journal of International Commercial Law and Arbitration (2002), pp. 257-266The parties' freedom of contract ranks as one of the most important general principles embodied in the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) as well as in a number of other sets of rules pertaining to international commercial law. The present paper analyzes if and how the Principles of European Contract Law (PECL) may be used in order to interpret Article 6 CISG (the provision in the Sales Convention that deals with the freedom of contract) and discusses some pertinent problems that have arisen in court practice in this area.

scholarly journals THE NEW FRENCH LAW OF CONTRACT

2017 ◽  
Vol 66 (4) ◽  
pp. 805-831 ◽  
Author(s):  
Solène Rowan
Keyword(s):  
Contract Law ◽  
Civil Code ◽  
French Law ◽  
European Contract ◽  
Recent Reform ◽  
English Law ◽  
The Law ◽  
International Instruments ◽  
European Contract Law

AbstractThe article analyses the recent reform of contract law in France. The section of the Civil Code on the law of contract was amended and restructured in its entirety last year. The revised section came into force on 1 October 2016. The article considers its main innovations and compares them with the corresponding principles of English law and some contract law international instruments, mainly the UNIDROIT Principles and the Principles of European Contract Law. The article also assesses whether the new provisions achieve their stated aim of rendering French contract law more accessible, predictable, influential abroad and commercially attractive.

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