The Role of National Law Flashcards
We will look at the role of national contract laws We will learn the difference between mandatory and default rules We talk about Civil law and Common law systems We will explore some issues in contract formation, interpretation, performance and enforcement We will start looking into how national laws interact with boilerplate clauses
What are mandatory rules?
rules which must always be followed, and which parties cannot change
What are default rules?
Because contract law is built on idea of private ordering and party autonomy (which is..?), lots of rules are optional – they only apply unless parties agree otherwise
What are general principles?
Ex: good faith. These are usually broad rules meant to apply to different situations, and play different roles in different legal systems
What do the rules of interpretation tell us?
essentially tell us how the courts are likely to read and interpret contracts.
What norm/principle is this:
“No vehicles are allowed in the park!”
Mandatory norms
Must be adhered to if applicable; might be applicable by the virtue of private international law even when other law is chosen/applicable through the application of a conflict principle
What norm/principle is this:
“Unless parties have agreed otherwise, data is to be deleted 45 days after contract termination”
Default norms
May be used for gap-filling; could be used to demonstrate that contract is unreasonable or unenforceable
What norm/principle is this:
“Enforcing this agreement should be denied, because a party entered into it in bad faith!”
General principle
Affects how the courts “read” the agreement – have vast potential to change the legal effects of the agreement
What norm/principle is this:
“Written agreement supersedes any other dealing between the parties.”
General principle
Affects how the courts “read” the agreement – have vast potential to change the legal effects of the agreement
Civil law
roman law based
– Interprets contracts according to their purpose and the parties’ intentions
– Implies terms
– Considers negotiations and subsequent conduct
– Integrates with good faith and loyalty
– Reasonableness
Fairness = Balance of interests
Common law
judge-based law
– Interprets contracts quite literally
– Does not imply terms
– Does not consider negotiations or subsequent conduct
– Does not integrate with good faith or loyalty
– Caveat emptor = negotiate for yourself
