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Extensive summary of ALL lectures of OCL II - part I (week 1-5) 2022/23 $11.33
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  5. Obligations and Contract Law II (620307B6)

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Extensive summary of ALL lectures of OCL II - part I (week 1-5) 2022/23

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  • Course
  • Obligations and Contract Law II (620307B6)
  • Institution
  • Tilburg University (UVT)

The document contains an extensive summary of all the lectures from the first part of the course (week 1-5). It is a summary of the lectures given in 2022/23, and thus contains all the updated information. Where necessary, I looked up extra information and added it to clarify certain things. It s...

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Document information

  • March 11, 2023
  • 57
  • 2022/2023
  • Class notes
  • Prof. dr. paul verbruggen
  • Lecture 1-5

Subjects

  • global value chains
  • gvc
  • contract
  • contract law
  • regulation
  • gtcs
  • supplier codes
  • multinational corporation
  • mnc
  • liabili
  • general terms and conditions
  • extra contractual liability
  • negligent misrepresentation

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  • Tilburg University (UVT)
  • Global Law
  • Obligations and Contract Law II (620307B6)
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Obligations & Contract law II
lecture notes.
(2022-2023)
Part I of the Course




1

, Lecture 1 OCL II Contract &
Regulation
Course overview
 Contract & regulation (introductory meeting)
 Contracts in Global Value Chains (4 meetings)
o Commercial contracts
o Consumer law
o Tort law
 Labour law (5 meetings)
o Prof. Mijke Houwerzijl
o Employment relationships in transnational perspective

EXAM
 Written exams: weighted average
 Midterm is about meetings 1-5  21 March 2023
 Endterm is about meetings 6-10
 Mandatory materials: the mandatory readings, recordings and the things discussed in class.
 MUST REGISTER for each EXAM
 Course management: Ms Natalia Hol-Hernandez, LLM.
 Read syllabus for details!




Agenda for today
 Regulation
 Interface with contract
o Contract law as regulation
o Contracts as regulatory tools
o Contract law being regulated
 Outlook



What is regulation?
Public actors are not the only rulemakers. Due to globalisation, there are more and more private actors that
are regulating, for example in a specific branch through codes of conduct. NGOs may also be involved in the
development of standards.

3 steps in regulation
1. Rule-making
2. Monitoring rules
3. Enforcement

 Perspective on law: process-based and goal-oriented.
 Invites questions on effectiveness: when does the regulatory process lead to the attainment of the
goal?
 Many approaches (theories) exist.

2

,Regulatory regime




Regulatory regime: what about contract law?
What are the goals of a contract?
 Contract law provides for legal certainty: if you know when a contract is enforceable, you can start to
make plans. Through legal certainty, you are allowing for market transactions to happen
 Conventional view: libertarian
 Regulatory view: distributive justice or social welfare.

Both Collins and Sunstein & Thaler take the libertarian approach.




 Always keep this in mind when thinking about a regulatory regime (or
contracts)




Contract (law) and regulation
 Collins (2004) states that “Contract law cannot be seen as facilitative only”
o Instead, there is distributive justice (optimize social welfare)
 E.g. implied terms, unfair terms.
 Understanding contract law as regulatory mechanisms invites new questions for research and price.




3

, 3 views on interplay between contract & regulation
1. Contract law as regulation
o Contract law rules regulating the relationship between parties to the contract.
2. Contracts as regulatory tools
o Set a contract in order to achieve an aim.
o Do the stipulations – the terms and conditions in your contract – are they specific enough
etc. in order to obtain the goals you have within that specific contract?
3. Contract law being regulated.
o Contract law itself can be subject of regulation.
o E.g. rules that stem from the EU have an impact on national law and have an impact on
national private law. Thus national jurisprudence is shaped/regulated by EU law.




1. Contract law as regulation
 How is contract law regulatory?  it defines rules on:
o When does legally enforceable contract come into being?
 Carlill v Carbolic Smoke Ball Co. [1983] 1 QB 256, CA
o Who may contract? (legal capacity, agency)
o What is contracted for? (interpretation, gap-filling)
o What happens in case of non-compliance? (remedies for breach)


2. Contracts as regulation
 Contracts as a means of regulation.
 Contracts regulate the obligations between the parties.
o Self-regulation at the micro-level / private ordering
 Private ordering = ordering the relations between the parties of the contract.
 Bilateral / multilateral
 E.g. seller and buyer, lessor and lessee, the business and the consumer.
These are all bilateral relationships.
 But the contracts can also be multilateral.
 Contracts as statutes.
 The contract can be seen as the statute for the particular relationship.
o Freedom of contract / pacta sunt servanda
 Parties are free to decide with whom and on what to contract. But if you decide to
contract, then pacta sunt servanda: you need to keep your promise.
 Certain type of contracts / terms
o Type: commercial relationships, long-term (relational)
 The longer the relationship the contracting parties intend to have, the bigger the
risks, because you cannot predict the future. There thus is a need to regulate those
risks and to put them into the contract.
o Terms: ‘boilerplates’, ‘general terms & conditions”



Example: Bangladesh Accord on Fire & Building Safety (2021)



3. Contract law being regulated
 Contract law as an object of regulation
 How can it better deliver on goals of fairness and justice?
 State intervention

4

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