Bibliografía (Revista de revistas) - RabelsZ 4/2012

Última entrega de la Rabels Zeitschrift für ausländisches und internationales Privatrecht – The Rabel Journal of Comparative and International Private Law (RabelsZ): vol. 76 (2012), núm. 4:

Aufsätze:

-Sebastian A.E. Martens, The Debtor's Right to Specific Performance; pp. 705-731(27)

Abstract: The intricacies of specific performance and the differences between the common law and the civil law systems have been widely discussed. Yet, it is usually the creditor's right to specific performance and its limits that are in the focus of attention. There is not much research on the question whether the debtor may insist on performing even if the creditor no longer wants such performance. This article examines the different approaches of the English, French and German legal systems and that of the Draft Common Frame of Reference (DCFR) to this issue. It shows that all systems try to balance the interests of the creditor and the debtor. Generally, the contract is to be executed and the debtor may perform. However, if the creditor has a legitimate interest to stop performance and the debtor's interests can be satisfied by some sort of compensation, the debtor must accept such compensation and may not insist on performance. While the English legal system and the DCFR have developed general principles along these lines, the French and the German systems have casuistic solutions with special rules for each type of contract.

-Sonja Meier, Liability for Breach of Conditional Obligations - Historical Background and Modern Problems of § 160 BGB; pp. 732-760(29)

Abstract: The effects of a contract can be made dependent upon a condition, in the sense of an uncertain future event. In the period between the conclusion of the contract and the occurrence of the event, it is uncertain whether the contract will be effective: the condition “is pending“. The later occurrence of the event has certain effects regarding this period. According to section 160 of the German Civil Code (BGB), the party who was granted a conditional right can claim damages from the other party if the right which was made dependent on the condition is infringed by acts which the other party committed in the intermediate period, e.g. if the conditional seller damages the object of sale after conclusion of the contract but before the event occurs. This rule was part of the ius commune; its origins can be found in Roman law. Like other effects of the fulfilment of the condition regarding the intermediate period, it can be explained in two different ways, namely (i) by a retrospective effect of the fulfilment of the condition or (ii) by the idea that the parties are bound by the conditional contract, even before the time of fulfilment of the condition. This paper examines the history of, and different explanations for, the rule, and asks whether it can be applied to “real agreements“, which do not create obligations but have the sole effect of transferring real rights.

-Walter Doralt, Change of Circumstances - Old and New Elements of the French théorie de l'imprévision; pp. 761-784(24)

Abstract: This paper deals with the French théorie de l'imprévision and the context of hardship due to changed circumstances. The famous canal de Craponne case, decided by the Cour de cassation in 1876, continues to define court practice, with significant consequences for contract practice and subsequent court decisions. The position adopted by the Cour de cassation in its landmark decision has had repercussions not only and directly as regards imprévision, but also in the context of bonne foi and cause. The unfortunate results are a lack of both legal certainty and fairness. There is a broad perception that the status quo is unsatisfactory and all three of the competing drafts for the pending modernisation of the French law of obligations propose the adoption of a rule in the Code civil. However, these concepts vary considerably. A comparison of the respective strengths and weaknesses of these drafts concludes with a suggestion to follow the approach advanced by the Chancellerie project.

-Jens Kleinschmidt, Determination by a Third Party in European Contract Law - A Genetic Comparison of Transnational Model Rules; pp. 785-818(34)

Abstract: The European Commission proposal for a Common European Sales Law constitutes the topmost of a number of layers of (model) rules on European Contract Law that have built up over recent decades. In Art. 75, the proposal contains certain rules on the determination of contract terms by a third party, mostly an expert. This provision is analysed against the backdrop of its predecessors in earlier layers and the general historical and comparative background of its subject. Although rarely discussed, it has important repercussions for the attitude of a set of rules towards freedom of contract and the role of the court in contract law. In light of this context, several modifications are suggested. Concerning scope, the reference to price determination may easily be deleted, while the wording should be broadened so as to encompass expressly the determination of facts by the third party. Court control of the determination against the standard of gross unreasonableness is justified, but must not be mandatory. The concept of gross unreasonableness requires further elucidation. The possibility of replacing a grossly unreasonable determination by the court is appropriate. The provision should be generalized to address all reasons for failure of the mechanism; in case of failure, a determination by the court seems preferable over the appointment of a new third party as a default rule. Finally, practical problems concerning expert determination, i.e.questions of procedure and the relationship to arbitration, still need to be taken into account.

-Pascal Pichonnaz, Defective Goods and Consequential Losses. A Swiss Case and Some Reflections on Limitation of Damages; pp. 819-835(17)

-Martin Illmer, The Law of Management of Another's Affairs in Comparative Perspective; pp. 836-863(28)

Abstract: The law of Geschäftsbesorgung on the continent, which can only roughly be translated by the English term “management of another's affairs“, is characterised by diverging systematic concepts and classifications among the national legal systems. This article compares the historical development and status quo of the German, Austrian and Swiss systems. While the three systems have continuously influenced each other, they today present three very different concepts and demonstrate the diversity among the European legal systems. Against this heterogeneous background, the approach of the Draft Common Frame of Reference to Geschäftsbesorgung is analysed and critically scrutinised, before concluding with some thoughts on the structural deficits of the status quo and possible ways forward.

-Phillip Hellwege, Condition Precedent in Insurance Contract Law in Historical and Comparative Perspective; pp. 864-892(29)

Abstract: Both English and German law first qualified those terms which oblige an assured after the occurrence of the loss, such as giving notice of the loss within a certain time, as conditions precedent. English courts still uphold this qualification. As a consequence, the insurer may refuse payment under the policy even if the assured has, without being at fault, not fulfilled such condition precedent. In contrast, German case law saw a dramatic change between 1865 and 1870. Since 1865, German courts have developed the view that it is sufficient if the purpose of the term has been fulfilled, even if there is not strict compliance with the term. Furthermore, if fulfilment of the term was no longer possible, then this would be taken into consideration by the courts. Finally, it was held that the insurer may refuse payment under the policy only if the assured was at fault. By way of justification, the German courts referred to the nature of the contract as one of utmost good faith.

The observation that both English and German law share a common root is important. Firstly, it proves that the method of comparative legal history may also be fruitfully applied to insurance law, an approach that has been forcefully promoted by Reinhard Zimmermann. However, within insurance law the focus of comparative-historical research needs to be on the development of insurance practice and the case law. Secondly, in the context of insurance contract law the findings of comparative and historical research may also be useful to bridge the gap between the continental civil law and the English common law.

-Dirk A. Verse, The New Statutory Regime for Issuer Liability in the UK; pp. 893-920(28)

Abstract: This article evaluates the extension of the statutory regime for issuer liability in the United Kingdom under the Financial Services and Markets Act 2000 (Liability of Issuers) Regulations 2010. By inserting a new section 90A and Schedule 10A into the Financial Services and Markets Act (FSMA), the new regulations complete the process of putting in place a comprehensive statutory liability scheme for issuer misstatements to the market, other than through prospectuses. After exploring the concerns that led to the new rules, the article analyses their scope, i.e. the markets and the range of statements to which they apply, the basis of liability (fraud including recklessness), the non-liability of directors and persons other than the issuer, the measure of damages, causation requirements, and the range of claimants (including not only buyers and sellers but also holders of securities). Each of these issues is discussed against the background of, and in comparison with, equivalent issues arising under German law. The picture that emerges is that the UK has opted for a fairly restrictive civil liability regime that offers only limited opportunities for private enforcement of disclosure obligations and thus implicitly relies all the more heavily on public enforcement by the Financial Services Authority (FSA). Regarding private enforcement in Germany, the article argues that lawmakers should revive the project of a comprehensive statutory regime for misstatements to the secondary market that was abandoned in 2004. Although any future German statutory scheme is likely to be less restrictive than its British counterpart, the German legislature could certainly find useful inspiration from the reform debate in the UK.

-Nils Jansen, From the Doctrine of Restitution in Late Scholasticism towards a European Law of Non-contractual Obligations? pp. 921-946(26)

Abstract: The article traces the influence on modern law of the late scholastic theory of restitution (restitutio), which integrated the laws of unjust enrichment, delict, and damages into one, single overarching theory. Although late scholastic authors were widely read and frequently cited during the 17th and 18th centuries, the impact of their theory of restitution was rather slight. In secular natural law discussions and in the learned ius commune, this theory could not become an attractive model of non-contractual obligations because it was perceived as a symbol of an old-fashioned Thomism and of Catholic, rather than Christian, faith. It is shown that apparent parallels between the theory of restitution and modern private law institutions, particularly in the law of damages, are mostly due to developments that were independent of late scholastic arguments. Nevertheless, the theory may appear intellectually attractive, even from a modern perspective, as it offers a legally innovative rights-based reconstruction of the law of non-contractual obligations.

-Jacques du Plessis, Comparison and Evaluation: Lessons from Enrichment Law; pp. 947-966(20)

-Anton Fagan, The German Origins of a South African Dogma about Delict; pp. 967-993(27)

-Alexandra Braun, Formal and Informal Testamentary Promises. A Historical and Comparative Perspective; pp. 994-1021(28)

-Jan Peter Schmidt, Principles of Capacity to Make a Will in Germany and Europe; pp. 1022-1050(29)

Abstract: Capacity to make a will is an essential prerequisite for the exercise of freedom of testation. In practice, problems arising from it are usually of a factual nature and concern establishing the testator's state of mind at the moment of executing the will. This paper focuses on some theoretical aspects of the topic, especially its relation to the general rules on capacity. The starting point of the analysis is German law, which is then put into a comparative perspective.

The German Civil Code (BGB) deals with capacity to make a will in a special rule, although this does not differ substantially from the general regime. Accordingly, in all types of legal transactions the actor is required not only to act voluntarily, but also to have capacity of discernment, i.e. to understand the content and the consequences of the transaction. In German legal writing, this uniform standard of capacity has recently been called into question. As wills take effect only after the testator's death, the testator can never be negatively affected by his own provisions, unlike the position under contracts. Therefore, it has been argued, the requirements to make a will can and should be handled more liberally. However, this reasoning shows a misguided conception of the function of the rules on capacity. Their primary role is not to serve as a means of protection but to ensure the necessary preconditions for legal self-determination. Hence, there is no justification for subjecting the various forms of capacity to different standards.

As regards the determination of a person's capacity of discernment, German courts and the prevailing opinion in legal writing advocate an abstract approach that does not take into account the complexity of the contract or will at hand. However, the resulting all-or-nothing solutions are unsatisfactory in the case of persons whose mental abilities have abated. Therefore, the preferred approach is the doctrine of relative incapacity, which allows for the necessary flexibility and is already accepted in several other European legal orders.

The minimum age for making a will in Germany has been 16 since the BGB first came into force, while the minimum age for concluding contracts was initially 21 and is now 18. At first sight, this differentiation between wills and legal transactions inter vivos appears to be arbitrary, but it is well founded if one takes into account that German law does not permit minors to execute a will via their legal representative. Meanwhile, some European states continue the Roman law tradition and have a minimum age of just 14, while others do not permit minors to execute a will at all. However, these differences appear to be rather accidental, as they are explained either historically, or by the fact that legislatures necessarily have to take a decision within a certain range of reasonable possibilities. On the whole, capacity to make a will emerges as a rather technical subject that is not specifically moulded by legal culture.

-Birke Häcker, A Case Note on All Souls College v. Cod[d]rington (1720); pp. 1051-1077(27)

-Marius J. de Waal, The Abuse of the Trust (or: “Going Behind the Trust Form“): The South African Experience with Some Comparative Perspectives; pp. 1078-1100(23)

-Oliver Radley-Gardner, Learning to Remember: Civil Law in the Common Law; pp. 1101-1121(21)

-Stefan Vogenauer, The Emancipation of Comparative Law from Legal History Around 1900; pp. 1122-1154(33)

Abstract: For most of the 19th century, the academic discipline of comparative law was perceived to be just a variant of legal history. The idea of a “universal jurisprudence“ required a multi-dimensional comparison of the laws of all countries at all times in order to infer general laws of legal development. Later, the notion of comparative law also comprised the study of contemporary foreign laws with a view to domestic law reform or legal unification. It was only around the turn of the century that the latter conception of comparative law prevailed and the close link with legal history was broken. The article traces the relationship between the two disciplines throughout the 19th century and sketches the reasons for the emancipation of comparative law.

Mitarbeiter dieses Heftes

Sachverzeichnis zum 76. Jahrgang (2012)

Claus Hinrich Hartmann, Sachverzeichnis zum 76. Jahrgang (2012); pp. 1156-1183(28)

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