Summary
Summary Chapter 10: prohibited contracts, ISBN: 9781785368783 Comparative Contract Law (Law3011/2020-200)
- Course
- Institution
- Book
Chapter 10: prohibited contracts
[Show more]
Connected book
Book Title:
Author(s):
- Edition:
- ISBN:
- Edition:
More summaries for
-
Summary Obligations and Contract Law I
-
College aantekeningen Contract Law Contract Law, ISBN: 9781785368783
-
Contract Law notes
Seller
Follow
Mariajohnson2
Reviews received
Content preview
Chapter 10: Prohibited ContractsFreedom of
limits on the freedom of
contract vs
contracting parties by
law declaring contracts void or
unenforceable if they are
contrary to mandatory law,
public policy or good
morals (bonos mores)
freedom of
contract
Example
Marjolein agrees to sell nuclear arms to a terrorist group, or if Jens
agrees to kill someone in return for a sum of money wired to his
Swiss bank account
The court will declare such contracts invalid out of its own motion
French law
German law
Dutch law Art. 3:40 Dutch Civil Code
English law Holman v Johnson (1775)
No court will lend its aid to a man who founds his cause of action
upon an immoral or an illegal act (cannot go to the court and
enforce it)
Patel v Mirza 2016
, The courts will generally not enforce an illegal contract
Two 1. When exactly a contract goes against a statutory prohibition, public
questions policy (ordre public, openbare orde) or good morals?
Opend-ended clauses that leave a lot of discretion to the court
Allows the court to deal with changing conceptions of what should
be prohibited vs hard to decide on requirements of public policy or
good morals since judges are not allowed to impose their own
standards
Feel out what society as a whole believes to be morally unjustifiable
PECL
Shallow provision on prohibited contracts (Art. 15:101), which
states that a contract is of no effect to the extent that it is ‘contrary
to principles recognized as fundamental in the laws of the member
states of the European Union’
2. What must be the effect of a prohibited contract if it has already
been performed?
A. When is a contract prohibited?
A. Statutory Statutory provisions
illegality provisions that prohibit the conclusion of certain types of contract
The court no longer needs to ask itself what public policy or good
morals exactly require (advantage of being able to refer to a
statutory provision
Example
Incitement: encouraging someone to commit a crime by paying
this person money (hitman) is a criminal offence
Fencing: knowingly buying stolen property
Statutory illegality
Against public policy or good morals
Sanctions
Not all contracts violating a statutory rule will be declared void
(the provision might aim to protect just one party) (Art. 3:40 (2)
BW- but also accepted in the case law of the jurisdictions)
A statutory provision prohibits a contract, but does not purport to
invalidate it in any way (Art. 3:40 (3) BW)
Art. 101 TFEU
Prohibits agreements between competitors that restrict
competition on the European internal market, such as cartels and
price-fixing agreements
The benefits of buying summaries with Stuvia:
Guaranteed quality through customer reviews
Stuvia customers have reviewed more than 700,000 summaries. This how you know that you are buying the best documents.
Quick and easy check-out
You can quickly pay through credit card or Stuvia-credit for the summaries. There is no membership needed.
Focus on what matters
Your fellow students write the study notes themselves, which is why the documents are always reliable and up-to-date. This ensures you quickly get to the core!
Frequently asked questions
What do I get when I buy this document?
You get a PDF, available immediately after your purchase. The purchased document is accessible anytime, anywhere and indefinitely through your profile.
Satisfaction guarantee: how does it work?
Our satisfaction guarantee ensures that you always find a study document that suits you well. You fill out a form, and our customer service team takes care of the rest.
Who am I buying these notes from?
Stuvia is a marketplace, so you are not buying this document from us, but from seller Mariajohnson2. Stuvia facilitates payment to the seller.
Will I be stuck with a subscription?
No, you only buy these notes for $5.93. You're not tied to anything after your purchase.
Can Stuvia be trusted?
4.6 stars on Google & Trustpilot (+1000 reviews)
67096 documents were sold in the last 30 days
Founded in 2010, the go-to place to buy study notes for 14 years now