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Summary Chapter 1:Introduction, Contract Law, ISBN: 9781785368776 Comparative Contract Law (Law3011/2020-200)
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Chapter 1: Introduction
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Summary -Contract Law: a comparative introduction- 2e by Jan M Smits
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Chapter 1: IntroductionContract: legally binding agreements, irrespective of whether they are written down or not.
Why contract law?
Aristotle in his Rhetorics “… so that if you destroy the authority of contracts, the mutual
intercourse of men is destroyed.”
Government does
not decide how much
Why contract law? money a person is to
pay for the product
people desire
Contract law ensures With certain limits, it
that these contracts is left to the people
are binding, and can and the market's
therefore be price mechanism to
enforced in the ensure that supply
courts in case the and demand
other party does not correspond to each
perform other
Types of contracts
o The law must treat all contracts and parties equally, no matter what they contract
about or who they are
o What one party is entitled to, must also be afforded to the other party
Classification Classification of the contracts on basis of
1. Parties involved
B2B contracts
o Contracts between two or more commercial parties
o Business-to-business
B2C contracts
o Contracts between a business and a consumer
C2C contracts
o Contracts concluded between two individuals (not a
business)
o Consumer-to-consumer
Legislators and courts sometimes make rules specifically designed
for B2B- or B2C contracts.
2. The main characteristics of the contract
o Depends on type of the contract parties concluded
Specific contracts
o Governed by their own specific rules, laid down in national
civil codes or developed by the courts (employment
, contract, donation, lease, sales of goods, etc)
Nominate contracts
o Are not dealt in detail in statutory law
o Franchise and distribution contracts
3. The reason why parties want to be bound
Unilateral contracts
o Contracts in which a party is not promised anything in return
for its performance (Art. 1106 Code Civil)
o The donor agrees to gratuitously transfer ownership of the
good to the done not because he receives anything in return,
but because he intends to benefit the donee
Example
o Catalina promises Mike to give him her iPad when her newly
bought Samsung Galaxy has arrived
Bilateral contracts
o Contracts in which each party assumes an obligation in order
to obtain the performance to which the other party, in
exchange, obliges itself towards the first party
Example
o Ally promises Bob to pay a price for the bike he is selling to
her
Contracts and the “From status to contract”
economy 1. The move away from an agricultural to an industrial
economy
2. A fundamental change in how society was regarded
Liberalism emphasises that everyone should be allowed to shape
one’s life as he wished.
Freedom of contract was seen as the necessary tool to make this
laissez-faire (abstention by governments from interfering in the
workings of the free market) possible.
Contract law as System of private law in the civil law tradition
part of private law o Property law
o Trust law
o Inheritance law
o Family law
o Company law
o Tort law (“civil wrongs”)
o Restitution
Under common law tradition
“the life of the law has not been logic; it has been
experience” (Read v J Lyons& Co)
No scientific rationalisation (no strong distinction between
different branches of private law)
Law of obligations
o The law of contract
o Restitution (gains-based recovery)
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