Contract Interpretation and Gap Filling
Contract Interpretation and Gap Filling

Author: Nicole Kornet

Publisher: Intersentia Uitgevers N V

Published: 2006

Total Pages: 485

ISBN-13: 9789050955911

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What happens when contracting parties do not expressly provide for a particular situation in their agreement? Is intervention by the courts or legislature to fill gaps in contracts justified? How should those gaps be filled? This book is unique in the way it combines comparative and theoretical perspectives to provide answers to these questions. From a comparative law perspective, relatively little attention has been given to the different interpretative and gap filling techniques available in different legal systems. A comparison of the approach to contract interpretation and gap filling in England, Germany and the Netherlands is therefore provided in this book. Comparative observations are also made in light of the CISG, PECL and the Unidroit Principles for International Commercial Contracts. This book also contains a theoretical component that draws insights and inspiration from autonomy-based theories of contract, law and economics, notions of fairness and socio-legal perspectives to establish why contracting parties leave gaps in their contracts, whether intervention is justified and, if so, how gaps in contracts should be filled. The final part of this book builds on the comparative and theoretical perspectives to develop an interpretative and gap filling strategy that combines responses from contracting parties, the contracting community, the legislature and the courts.

Contract Interpretation in Investment Treaty Arbitration
Contract Interpretation in Investment Treaty Arbitration

Author: Yuliya Chernykh

Publisher: BRILL

Published: 2022-01-17

Total Pages: 629

ISBN-13: 9004414703

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Contracts are relevant, frequently central, for a significant number of investment disputes. Yet, the way tribunals ascertain their content remains largely underexplored. How do tribunals interpret contracts in investment treaty arbitration? How should they interpret contracts? Does national law have any role to play? Contract Interpretation in Investment Treaty Arbitration: A Theory of the Incidental Issue addresses these questions. The monograph offers a valuable insight into the practice and theory of contract interpretation in investment treaty arbitration. By proposing a theoretical frame for seamless integration of contract interpretation into the overall structure of decision-making, the book contributes to predictability, coherence, sufficiency and correctness of the tribunals’ interpretative practices in investment treaty arbitration.

The Draft UNCITRAL Digest and Beyond
The Draft UNCITRAL Digest and Beyond

Author: Franco Ferrari

Publisher: Walter de Gruyter

Published: 2009-04-27

Total Pages: 891

ISBN-13: 3866537301

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“The Draft UNCITRAL Digest and Beyond” is one of the most useful single volumes available on the CISG. It includes the full text of the draft “UNCITRAL Digest” which catalogues the cases and arbitral awards to date that have interpreted and applied the CISG on an article by article basis. “The Digest and Beyond” includes also commentary by eminent CISG scholars that addresses issues not yet considered in the cases. With more than 1000 decisions applying the CISG in courts and arbitral tribunals around the world, the UNCITRAL Secretariat charged five CISG experts from a variety of regions with the task of creating a digest of CISG case law. “The Digest and Beyond” includes the draft “UNCITRAL Digest”, even before it is released officially by UNCITRAL. It also goes where the authors of the Digest were not allowed to go, given the narrow mandate within which the drafters were asked to work. Its chapters build upon the work of the “UNCITRAL Digest”. The Digest describes the reasoning and results of existing CISG cases; in “The Digest and Beyond”, the Digest authors analyze those cases, and discuss issues that have not yet arisen in the case law. Thus, in many ways, “The Digest and Beyond” provides scholarship that can direct future cases in areas that have not yet been considered by courts and arbitrators as well as in areas in which contradictory court decisions exist.

Contract Law and Contract Practice
Contract Law and Contract Practice

Author: Catherine E Mitchell

Publisher: A&C Black

Published: 2014-07-18

Total Pages: 442

ISBN-13: 1782253130

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An oft-repeated assertion within contract law scholarship and cases is that a good contract law (or a good commercial contract law) will meet the needs and expectations of commercial contractors. Despite the prevalence of this statement, relatively little attention has been paid to why this should be the aim of contract law, how these 'commercial expectations' are identified and given substance, and what precise legal techniques might be adopted by courts to support the practices and expectations of business people. This book explores these neglected issues within contract law. It examines the idea of commercial expectation, identifying what expectations commercial contractors may have about the law and their business relationships (using empirical studies of contracting behaviour), and assesses the extent to which current contract law reflects these expectations. It considers whether supporting commercial expectations is a justifiable aim of the law according to three well-established theoretical approaches to contractual obligations: rights-based explanations, efficiency-based (or economic) explanations and the relational contract critique of the classical law. It explores the specific challenges presented to contract law by modern commercial relationships and the ways in which the general rules of contract law could be designed and applied in order to meet these challenges. Ultimately the book seeks to move contract law beyond a simple dichotomy between contextualist and formalist legal reasoning, to a more nuanced and responsive legal approach to the regulation of commercial agreements.

Commercial Contract Law
Commercial Contract Law

Author: Larry A. DiMatteo

Publisher: Cambridge University Press

Published: 2013-01-31

Total Pages: 623

ISBN-13: 1107028086

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Part I. The Role of Consent: 1. Transatlantic perspectives: fundamental themes and debates Larry A. DiMatteo, Qi Zhou and Séverine Saintier 2. Competing theories of contract: an emerging consensus? Martin A. Hogg 3. Contracts, courts and the construction of consent Tom W. Joo 4. Are mortgage contracts promises? Curtis Bridgeman Part II. Normative Views of Contract: 5. Naturalistic contract Peter A. Alces 6. Contract in a networked world Roger Brownsword 7. Contract, transactions, and equity T.T. Arvind Part III. Contract Design and Good Faith: 8. Reasonability in contract design Nancy S. Kim 9. Managing change in uncertain times: relational view of good faith Zoe Ollerenshaw Part IV. Implied Terms and Interpretation: 10. Implied terms in English contract law Richard Austen-Baker 11. Contract interpretation: judicial rule, not party choice Juliet Kostritsky Part V. Policing Contracting Behavior: 12. The paradox of the French method of calculating the compensation of commercial agents and the importance of conceptualising the remedial scheme under Directive 86/653 Séverine Saintier 13. Unconscionability in American contract law Chuck Knapp 14. Unfair terms in comparative perspective: software contracts Jean Braucher 15. (D)CFR initiative and consumer unfair terms Mel Kenny Part VI. Misrepresentation, Breach and Remedies: 16. Remedies for misrepresentation: an integrated system David Capper 17. Re-examining damages for fraudulent misrepresentation James Devenney 18. Remedies for documentary breaches: English law and the CISG Djakhongir Saidov Part VII. Harmonizing Contract Law: 19. Harmonisation European contract law: default and mandatory rules Qi Zhou 20. Harmonization and its discontents: a critique of the transaction cost argument for a European contract law David Campbell and Roger Halson 21. Europeanisation of contract law and the proposed common European sales law Hector MacQueen 22. Harmonization of international sales law Larry A. DiMatteo.

Letter of Intent in International Contracting
Letter of Intent in International Contracting

Author: Ekaterina Pannebakker

Publisher:

Published: 2016

Total Pages: 0

ISBN-13: 9781780684499

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Letter of Intent in International Contracting provides readers with a unique point of reference on the legal effects of a letter of intent-the document frequently used in international transactions. Firstly, the book takes a fresh look at trade usages in negotiations of international contracts. It integrates the view of negotiations as strategies and tactics (well-known in business, but largely disregarded by the law) with the legal analysis. Secondly, it discusses in turn those provisions frequently used in a letter of intent and comments on them based on thorough comparative research of four jurisdictions: the Netherlands, France, England and Wales, and the United States. The discussion of French law is based on the recent reform of the French law of obligations which significantly modified the French Civil Code in 2016. At the international level, the study addresses the 1980 Vienna Convention on the International Sale of Goods and international soft law: UNIDROIT Principles of International Commercial Contracts 2010, Principles of European Contract Law, and the Draft Common Frame of Reference. This book is a result of doctoral research conducted at the Erasmus University Rotterdam. It will be relevant to legal practitioners working in the field of international contracts, as well as to scholars and policy makers concerned with harmonization of law based on non-binding principles and business practices. Dissertation. (Series: Ius Commune Europaeum, Vol. 156) Subject: International Law, Contract Law]

An International Approach to the Interpretation of the United Nations Convention on Contracts for the International Sale of Goods (1980) as Uniform Sales Law
An International Approach to the Interpretation of the United Nations Convention on Contracts for the International Sale of Goods (1980) as Uniform Sales Law

Author: John Felemegas

Publisher: Cambridge University Press

Published: 2013-09-12

Total Pages: 546

ISBN-13: 9781107676565

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In 1980, the United Nations Convention for the International Sale of Goods (CISG) came into being as an attempt to create a uniform commercial sales law. This book, first published in 2007, compares two major restatements - the UNIDROIT Principles and the Principles of European Contract Law (PECL) - with CISG articles. This work has gathered scholars and legal practitioners from twenty countries who contribute analysis on the various issues covered in the articles of the CISG comparing them with how the issue is treated in the UNIDROIT and PECL restatements.The introductory section of the book addresses theoretical and practical issues of the appropriate interpretive methodology as mandated in CISG Article 7 and it is followed by individual analyses of the Convention's provisions.

Contract Formation
Contract Formation

Author: Michael Furmston

Publisher: Oxford University Press, USA

Published: 2010-03-25

Total Pages: 477

ISBN-13: 0199284245

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Providing a practical analysis of the legal principles which govern the formation of contracts in English law (with additional authorities from the Commonwealth), this work on contract formation offers those involved in litigation and in drafting contracts a guide to the application of those principles in practice.

Contract as Promise
Contract as Promise

Author: Charles Fried

Publisher: Oxford University Press, USA

Published: 2015

Total Pages: 220

ISBN-13: 0190240164

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'Contract as Promise' is a study of the foundations and structure of contract law. It has both theoretical and pedagogic purposes. It moves from trust to promise to the nuts and bolts of contract law. The author shows that contract law has an underlying unifying moral and practical structure. This second edition retains the original text, and includes a new Preface. It also includes a lengthy postscript that takes account of scholarly and practical developments in the field over the last thirty years, especially the large and rich law and economics literature.