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Interpretation of Commercial Contracts in European Private Law [Minkštas viršelis]

Edited by , Contributions by , Edited by , Contributions by , Contributions by , Edited by , Edited by , Edited by , Contributions by
  • Formatas: Paperback / softback, 454 pages, aukštis x plotis x storis: 240x160x25 mm, weight: 800 g
  • Serija: Common Core of European Private Law 1
  • Išleidimo metai: 31-Aug-2020
  • Leidėjas: Intersentia Ltd
  • ISBN-10: 1780689594
  • ISBN-13: 9781780689593
Kitos knygos pagal šią temą:
Interpretation of Commercial Contracts in European Private LawDidesnis paveikslėlis
  • Formatas: Paperback / softback, 454 pages, aukštis x plotis x storis: 240x160x25 mm, weight: 800 g
  • Serija: Common Core of European Private Law 1
  • Išleidimo metai: 31-Aug-2020
  • Leidėjas: Intersentia Ltd
  • ISBN-10: 1780689594
  • ISBN-13: 9781780689593
Kitos knygos pagal šią temą:
Pastovi nuoroda: https://www.kriso.lt/db/9781780689593.html
This book presents a unique and extensive comparative study of commercial contract interpretation across 14 selected jurisdictions, namely Croatia, England and Wales, Finland, France, Germany, Greece, Italy, The Netherlands, Poland, Portugal, Scotland, South Africa, Spain and Sweden. Using a dynamic comparative case method, the focus is centered on the discussion of key legal problems, further examined in a detailed and comprehensive comparative analysis. In this way, the book makes important advancements in the general understanding of contract interpretation in European private law in three respects. First, it enriches the conventional conceptual framework for the methods of contract interpretation by distinguishing between interpretation aims and means. Second, it challenges the presumptive division of common law and civil law jurisdictions, for example, the assumption that civil systems follow a subjective approach and common law systems an objective approach to interpretation of contract. Third, the book provides a more subtle analysis of the role of standards of 'good faith' in contract interpretation. A common core of contract interpretation in European private law that is inferred from the national reports is that every legal system strives to reach a compromise between staying true to the intentions of the parties, assessing what a reasonable person would understand from the contract drafting, and preventing outcomes that are unfair or unjust. Each court draws on the material available to it in order to reach this compromise. Conversely, the differences between the jurisdictions pertain to what constitutes a common intention between the contracting parties and reasonableness, and what the appropriate methods are by which these could best be ascertained. Here, the jurisdictions reveal a variety of conceptual, doctrinal and pragmatic similarities and distinctions. Contributions written from law and economics, and European private law perspectives place the key legal issues into context and make Interpretation of Commercial Contracts in European Private Law a coherent and valuable resource for academics and practitioners with a European or international focus.
General Editors' Preface v
Acknowledgements vii
List of Cases
xiii
List of Legislation
xxxi
List of Abbreviations
xxxv
List of Contributors
xii
PART I INTRODUCTORY MATTERS
Introduction
3(14)
Jaap Baait
David Cabrelli
Laura Macgregor
1 The Significance of Comparing the Interpretation of Contracts
3(2)
2 Three Universal Issues of Contract Interpretation
5(6)
2.1 Introduction: A Limited Scope
5(1)
2.2 The First Issue: The Nature of Interpretative Uncertainty
6(1)
2.3 The Second Issue: The Nature of the Interpretative Task
7(3)
2.4 The Third Issue: Cultural Differences between Common Law and Civil Law
10(1)
3 Structure of the Book
11(6)
3.1 Exploratory
Chapters
11(2)
3.2 National Reports
13(1)
3.2.1 The Choice of Jurisdictions
13(1)
3.2.2 Selecting the Cases and Issues Addressed
14(1)
3.2.3 Editorial Comparative Observations
14(3)
Designing a Method to Compare Interpretation Methods
17(14)
Jaap Baaij
1 The Choice of Comparative Methodology
17(4)
1.1 The Factual Approach of the Common Core Project
17(1)
1.2 Adapting the General Method to the Interpretation of Contracts
18(2)
1.3 Balancing Sameness and Difference
20(1)
2 Devising a Method of Translation
21(5)
2.1 Comparative Law and the Inevitability of Translation
21(1)
2.2 The Philosophical Underpinnings of the Factual Approach
22(1)
2.3 Refuting the Relativist Criticism
23(3)
3 The Translation Method for Legal Concepts and Institutions
26(4)
3.1 Step 1: Using Inverted Commas
27(1)
3.2 Step 2: Using Original Language for Domestic Legal Concepts
28(1)
3.3 Step 3: Adding a (Literal) English Translation
28(1)
3.4 Step 4: Adding an Explanation or Description
29(1)
4 Concluding Remarks
30(1)
The Law and Economics of Contract Interpretation
31(24)
Remus Valsan
1 Introduction
31(3)
2 Interpretive Methodologies: Textualism and Contextualism
34(4)
3 Transaction Costs and the Optimal Interpretive Method
38(16)
3.1 Ex Ante Transaction Costs and Contract Interpretation
40(7)
3.2 Contract Interpretation and Ex Post Transaction Costs: Opportunism and Judicial Error
47(7)
4 Conclusion
54(1)
Interpretation in the Principles of European Contract Law, the Draft Common Frame of Reference and the Common European Sales Law
55(86)
Lorna Richardson
1 Introduction
55(2)
2 The Approach to Contractual Interpretation
57(9)
2.1 The Search for Common Intention
58(2)
2.2 Relevance of Knowledge of Intended Meaning
60(3)
2.3 A Move to a More Objective Approach to Interpretation
63(3)
3 Factors to be Considered when Interpreting a Contract
66(12)
3.1 The Circumstances in which the Contract was Concluded
67(3)
3.2 The Parties' Conduct, Even Subsequent to Contract Conclusion
70(1)
3.3 The Interpretation Already Given to the Same/Similar Terms by the Parties and the Parties' Practices
71(1)
3.4 The Meaning Commonly Given to Terms in the Branch of Activity
72(1)
3.5 The Nature and Purpose of the Contract
72(1)
3.6 Usages
73(1)
3.7 Good Faith and Fair Dealing
74(3)
3.8 Protection of Third-Party Reliance
77(1)
4 Specific Rules of Interpretation
78(4)
4.1 Interpretation Against the Supplier of a Term
78(2)
4.2 Preference for Negotiated Terms
80(1)
4.3 Contract to be Interpreted as a Whole
80(1)
4.4 Terms to be Given Effect
81(1)
5 Interpreting Acts or Statements Other than Contracts
82(3)
5.1 The PECL
82(1)
5.2 The DCFR and the CESL
82(3)
6 Concluding Remarks
85(2)
Opening Remarks on the National Reports
87(54)
PART II CASE STUDIES
Case 1 Jewellers King
141(40)
Case 2 Botanical Fruits
181(32)
Case 3 Cocktail Parties
213(32)
Case 4 Animal Waste
245(16)
Case 5 Shower Valves
261(26)
Case 6 Call Centre
287(24)
Case 7 Biscuit
311(20)
Case 8 Crates of Beer
331(20)
Case 9 Crystal Vases
351(20)
Case 10 The Machine
371(34)
PART III GENERAL CONCLUSIONS
Conclusions
405(1)
Jaap Baaij
David Cabrelli
Laura Macgregor
1 Enriching the Conceptual Framework: Distinguishing Aims and Modalities of Interpretation
405(2)
2 Nuancing the Common Law versus Civil Law Dichotomy
407(2)
3 The Role of Good Faith
409(2)
4 A Common Core?
411(2)
References 413(20)
Appendix I The Editorial Instructions for the National Reporters 433(6)
Appendix II The Questionnaire 439(10)
Index 449
Dr C.J.W. (Jaap) Baaij is Assistant Professor of Private Law at Leiden Law School. His work focuses on contracts, arbitration, and commercial law. Jaap has been a visiting professor and guest lecturer at, among others, Yale Law School, Columbia Law School, the National University of Singapore Faculty of Law, London School of Economics, and Princeton University. David Cabrelli is Professor of Labour Law at the Law School of the University of Edinburgh. David holds an LLB (Honours) degree and Diploma in Legal Practice and is a solicitor (non-practising). He is also Assistant Editor of the Edinburgh Law Review. Davids past work has been cited with approval by the Hong Kong High Court, the UK Supreme Court, the Federal Court of Australia and the Supreme Court of South Australia. Laura Macgregor is Professor of Commercial Contract Law at the Law School of the University of Edinburgh. She has recently been appointed to the Chair of Scots Law at Edinburgh University, one of the Law Schools most prestigious Chairs. Laura will be the first woman to hold the Chair in the 297 years since its inception. She is a panel member of REF 2021 and was formerly Visiting Professor in International Commercial Law, Radboud University, Nijmegen.