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European Contract Law Part I

European Contract Law Part I. Laura M. Franciosi Fall Semester – a.y. 2009-2010. Introduction to the Course. Structure Purpose Content Assignments Final Exam. Course’s Mandatory Rules. Final Paper

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European Contract Law Part I

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  1. European Contract LawPart I Laura M. Franciosi Fall Semester – a.y. 2009-2010

  2. Introduction to the Course • Structure • Purpose • Content • Assignments • Final Exam

  3. Course’s Mandatory Rules • Final Paper • Topic= Must be selected within a list provided by Prof. Laura Franciosi and/or Prof. Diana Cerini. Topics not related to the content of the course will not be accepted • Topic= must be chosen within the last lesson of the course. Late topics will not be granted and/or accepted

  4. Course’s Mandatory Rules • Attendance is fundamental. • Non-attending students are not allowed to draft the paper and cannot receive the relevant grade and credits. • Prof. Franciosi will organize a special lesson dealing with bibliography research and drafting the paper • Prof. Cerini will devote the last lesson to discuss the content of the paper on an individual basis

  5. Basic Knowledge • Comparative Law • Legal traditions: - civil law - common law • Legal formants • Areas of Law

  6. European Legal Framework • National Laws • European Law • International Law (i.e. International Conventions) • Soft Law (e.g.: Unidroit Principles) • Projects of unification

  7. EU Law • “Original” European Law • “Derivative” European Law: • Regulations • Directives • Decisions • Recommendations and Opinions

  8. Life of a contract • Negotiation • Formation • Execution • (Termination) • (Breach) • (Litigation)

  9. Key Issues • Has been a contract entered into? • Kind of contract • Governing law

  10. Governing Law • Parties’ will (complying with mandatory law provisions) • National law (parties’ choice or conflict of laws) • EU law • International Conventions (for example: CISG) • Soft Law (for example: UNIDROIT Principles)

  11. Governing Law • EU Law: - so far: mandatory rules for certain contracts (i.e. Directives for consumer contracts) - for the future: Project of an European Contract Law (DCFR, PECL, other projects)

  12. Has been a contract entered into? In order to provide an answer to such an issue, we have to take into account: • The definitions of contract; • The fact that the formation of a contract is not a static process but, rather, a dynamic one; • According to points (i) and (ii) above, when all the requirements of a contract are fulfilled, and, therefore, the formation process is completed, a contract is entered into.

  13. Definitions • French Civil Code - Art. 1101 “A contract is an agreement (convention)* by which one or more persons obligate themselves to or more other persons to give, or to do, or not to do, something”. * Agreement (Convention)= Any agreement intended to produce legal effects

  14. Definitions • Italian Civil Code - Art. 1321 “A contract is an agreement between two or more parties for the purpose of creating, providing for or extinguishing amongst themselves a legal patrimonial relation”.

  15. Definitions • Dutch Civil Code – Art. 6:213 “A contract … is a multi-lateral juridical act whereby one or more parties assume an obligation towards one or more other parties”. • German Civil Code (BGB) - § 305 “For the creation of an obligation by a juristic act, and for any alteration of the substance of an obligation, a contract between the parties is necessary, unless otherwise provided by law”.

  16. Definitions • English Law: there is no legal definition of contract, but, according to the case-law, a contract exists when the following requirements are fulfilled: • Offer • Acceptance • Consideration • Intent to create legal relationship

  17. Definitions • U.S. – Restatement 2nd of Contracts, §1 “A contract is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty” .

  18. Kind of Contract 1. According to the status of the parties: - Consumer Contract, or - Business Contract 2. According to the nature/effect/object of the contract: - sale; franchising, leasing, insurance contract, etc.

  19. Consumer Contracts • No General Definitions • Main characteristics: - from a subjective perspective; - from an objective perspective.

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