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.

Part I International Sales Governed by English Law, 9 Remedies: Termination and Damages

2017 ◽  
Author(s):  
Bridge MG
Keyword(s):  
Common Law ◽  
Standard Form ◽  
Breach Of Contract ◽  
The Common ◽  
Penalty Clauses ◽  
English Law ◽  
International Sale Of Goods ◽  
International Sales ◽  
Statutory Basis

This chapter deals with remedies for breach of contract to the extent that they have a particular application to international sale of goods agreements. Attention is given to termination for breach and damages. Even here, however, certain aspects (for example, penalty clauses) are left to general works on contract and sale of goods. This chapter also examines clauses in standard form contracts dealing with the quantification of money awards; they commonly depart from the common law and statutory basis for assessing damages. In addition, though they fall outside breach of contract, the chapter also looks to certain settlement clauses, operative in the event of an insolvency or of a circle appearing in the sales string.

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.

Liquidated Damages and Penalty Clauses

2018 ◽  
Author(s):  
Halson Roger
Keyword(s):  
Common Law ◽  
The United States ◽  
Current Control ◽  
Commercial Law ◽  
The Third ◽  
Liquidated Damages ◽  
Legal Effect ◽  
Historical Origin ◽  
The Common ◽  
Penalty Clauses

This book focuses on liquidated damages and penalty clauses, and analyses the common law jurisdiction to control stipulated damages clauses, as well as the distinction between enforceable liquidated damages clauses and unenforceable penalty clauses. The first part of the book examines the historical origin of the control of these clauses; the second part describes the current control of such clauses and their legal effect, while the third part of the book critically examines the various rationales that have been proposed to justify their regulation. The final part of the book describes analogous provisions and how to avoid drafting contractual clauses that are rendered unenforceable by the penalty rule. The book examines approaches in several common law jurisdictions in addition to England and Wales, including the United States, Australia, New Zealand, and Canada, and brings together principles developed in distinct commercial law contexts (such as shipping contracts) to enable comparison between particular contractual settings.

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

Classifying precontractual liability: a comparative analysis

Legal Studies ◽  
2001 ◽  
Vol 21 (2) ◽  
pp. 153-191 ◽  
Author(s):  
Joachim Dietrich
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Tort Law ◽  
Contract Law ◽  
Common Elements ◽  
Ongoing Debate ◽  
Unjust Enrichment ◽  
The Common ◽  
Initial Focus

The common law has solved questions of liability arising in the context of precontractual negotiations by resort to a range of different doctrines and approaches, adopting in effect ‘piecemeal’ solutions to questions of precontractual liability. Consequently, debate has arisen as to how best to classify or categorise claims for precontractual work and as to which doctrines are best suited to solving problems arising from anticipated contracts. The purpose of this article is to consider this question of how best to classify (cases of) precontractual liability. The initial focus will be on the ongoing debate as to whether principles of contract law or principles of unjust enrichment can better solve problems of precontractual liability. I will be suggesting that unjust enrichment theory offers little by way of explanation of cases of precontractual liability and, indeed, draws on principles of contract law in determining questions of liability for precontractual services rendered, though it does so by formulating those principles under different guises. Irrespective, however, of the doctrines utilised by the common law to impose liability, it is possible to identify a number of common elements unifying all cases of precontractual liability. In identifying such common elements of liability, it is necessary to draw on principles of both contract and tort law. How, then, should cases of precontractual liability best be classified? A consideration of the issue of classification of precontractual liability from a perspective of German civil law will demonstrate that a better understanding of cases of precontractual liability will be gained by classifying such cases as lying between the existing categories of contract and tort.

scholarly journals The publication of judicial decisions as a reason for convincing precedent

1970 ◽  
pp. 195-199
Author(s):  
Roman Sabodash
Keyword(s):  
Common Law ◽  
Civil Law ◽  
General Idea ◽  
Court Decisions ◽  
Supreme Courts ◽  
State Register ◽  
Pros And Cons ◽  
Legal Position ◽  
The Common ◽  
The Right

The paper shows how the publication of court decisions influenced the formation of a precedent. The author reviewed scientific works devoted to research the precedent in common and continental law. The research explains that the formation of precedent in England was accompanied by development of the judgment’s reviews and their prevalence among lawyers. Of course, publication of court decisions was not a major factor in setting a precedent, but it played a significant role in this. The paper also describes facts of the publication of court decisions in Italy, Germany, France and the Netherlands, as well as the admissibility of their citations at the court of cassation. The general idea of the paper is that convincing precedent exists and is used although the countries of continental law do not have a «classic» precedent. The paper gives a review of the importance of the state register of court decisions for setting a convincing precedent in Ukraine. The author analyzes the pros and cons of citing court decisions. It’s stated that, unfortunately, the quotations of court decisions is not always correct and sometimes amounts to rewriting the «right» legal position without comparing the circumstances of the case. The article concludes that the practice of applying a convincing precedent in Ukraine is only emerging and needs further improvement.          It has been found out that the publication of judgments of supreme courts is one of the factors that helped to establish precedent in common law countries. The publication of court rulings also created the conditions for a convincing precedent in civil law countries (especially in private law). At the same time, the formation of a “convincing precedent» in countries where court decisions are published in publicly available electronic court registers is much faster than in common law countries. Of course, the structure and the significance of the precedent in the common law and civil law countries are different, but one cannot dismiss that publication of court decisions as one of the factors for establishing the precedent.

The Experiences of Civil Lawyers When Studying the Common Law

2013 ◽  
Vol 8 ◽  
pp. 1-20
Author(s):  
Margaret Fordham
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Legal Systems ◽  
The Common

AbstractThis article examines the issues experienced by civil lawyers when studying the common law. It considers the extent of the differences between common law and civil law legal systems, examines the challenges which students from civil law jurisdictions face when first exposed to the common law, analyses the various ways in which these challenges may be met, and summarises civilians’ overall impressions of the common law.

Part VIII Remedies For Default, 27 Debt and Other Agreed Sums

2021 ◽  
Author(s):  
Andrews Neil
Keyword(s):  
Common Law ◽  
Practical Importance ◽  
Case Law ◽  
Fundamental Principle ◽  
Breach Of Contract ◽  
Self Help ◽  
Liquidated Damages ◽  
Specific Performance ◽  
The Common ◽  
Judicial Remedies

This Part mostly concerns judicial remedies for breach of contract (the self-help remedy of forfeiture of a deposit is noted at [27.109]). The chapter sequence reflects both the division between Common Law (chapters 27 and 28) and Equity (chapter 29) but, more importantly, the practical importance of the judicial remedies, debt mattering more than damages, and in turn damages more than specific performance or injunctions. And so chapter 27 concerns ‘Debt’ (but agreed damages, ie liquidated damages clauses, are treated in the same chapter because the sum payable is, by definition, fixed or calculable in advance; but technically, agreed damages are damages and not a cause of action sounding in debt). Chapter 28 concerns damages, that is, compensation. Damages is a branch of the law which continues to generate a mass of intricate case law. Finally, chapter 29 concerns the equitable remedies of specific performance, injunctions, account of profits, and declarations. It is a fundamental principle that specific performance can be granted only if the Common Law remedies (debt and damages) are inadequate on the relevant facts. Chapter 27: The predominant claim for contractual default is the action for debt, to compel payment. Statistically this is the front-runner amongst remedies for breach. The availability of interest is also noted in this chapter.

The Relationship between Disability Non-Discrimination Law and Quota Schemes

2019 ◽  
pp. 94-117
Author(s):  
Lisa Waddington
Keyword(s):  
Public Sector ◽  
Common Law ◽  
Civil Law ◽  
People With Disabilities ◽  
Public And Private ◽  
The Public ◽  
The Common ◽  
Public And Private Sector ◽  
The Relationship

This chapter explores the relationship between disability quota schemes and non-discrimination law in Europe. While at first sight they seem to sit uneasily beside each other, the chapter reveals how, in some instances, quota schemes can serve to facilitate compliance with non-discrimination legislation. At the same time, the chapter explores seeming incompatibilities between the two approaches and considers whether there are differences between common and civil law jurisdictions in this respect. Tentative conclusions suggest that there is a greater willingness to establish quota schemes through legislation in civil law jurisdictions compared to common law jurisdictions, and that quota schemes in civil law jurisdictions are more likely to provide for the imposition of a levy in the case that employers fail to meet their quota obligations through employing the required number of people with disabilities. There also seems to be some indication that there is greater awareness of the potential for conflict or tension, in various forms, between non-discrimination law and quota schemes in common law jurisdictions than in civil law jurisdictions. Finally, the two schemes operating in the common law states are only applicable to the public sector—whilst in civil law states quotas are generally applied to both public and private sector employers. This may indicate different perceptions regarding the role of public sector employers and the legitimacy of imposing quota requirements.

Canada—Nova Scotia

2015 ◽  
Author(s):  
Alex Ruck Keene ◽  
QC Alison Scott Butler
Keyword(s):  
Nova Scotia ◽  
Civil Rights ◽  
Federal Government ◽  
Common Law ◽  
Civil Law ◽  
Political Rights ◽  
Canadian Charter ◽  
Law System ◽  
The Common ◽  
Civil Law System

Canada is a federation composed of ten provinces, including Nova Scotia (‘NS’), and three territories. The common law applies in Canada, with the exception of the province of Quebec, which uses a civil law system. There is a federal government; as a province, NS also exercises constitutional powers in its own right. Federal legislation includes provisions relating to adults within the scope of this work. The Canadian Charter of Rights and Freedoms also guarantees certain political rights to Canadians and civil rights to everyone in Canada, and contains rights that impact upon capacity law.

Sign in / Sign up

Export Citation Format

Share Document