...International Contracts between Common Law and Civil Law: Is Non-state Law to Be Preferred? The Difficulty of Interpreting Legal Standards Such as Good Faith Giuditta Cordero Moss∗ ∗ University of Oslo, g.c.moss@jus.uio.no Recommended Citation Giuditta Cordero Moss (2007) “International Contracts between Common Law and Civil Law: Is Non-state Law to Be Preferred? The Difficulty of Interpreting Legal Standards Such as Good Faith,” Global Jurist: Vol. 7: Iss. 1 (Advances), Article 3. Available at: http://www.bepress.com/gj/vol7/iss1/art3 Copyright c 2007 The Berkeley Electronic Press. All rights reserved. International Contracts between Common Law and Civil Law: Is Non-state Law to Be Preferred? The Difficulty of Interpreting Legal Standards Such as Good Faith∗ Giuditta Cordero Moss Abstract Most commercial contracts are nowadays written on the basis of English or American contract models, irrespective of whether the legal relationship that the contracts regulate is governed by a law belonging to a Common Law system or not. These contract models are drafted on the basis of the requirements and structure of the respective Common Law system in which they were originally meant to operate. These models may therefore be in part ineffective or parts thereof may redundant, if the governing law belongs to a Civilian system. To overcome this tension between Common and Civil Law, it is sometimes recommended to subject international contracts to non-state...
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...and contrast UCC contracts and common law contracts. UCC contracts and common law contracts are both governed by contract law. In other words, any contract that is written up has to follow the rules and regulations of contract law in all fifty States of America. Common law contracts are dictated by any changes in the contract. For instance, a change in a common law contract is seen as a rejection or a counter offer. When this happens it causes the offeree to change to the offeror and vice versa. Most importantly in order for a common law contract to be valid it has to have description, quantity, time, nature of the work or service, and an offer. UCC the Unified commercial code contract are still bonded if any change occurs. A binding contract will depend on the circumstances to the person that accepts the contract and to the person who drew up and wrote the contract and how much deviation to the contract. Also, a common law contract requires a consideration to keep a contract open but a UCC contract do not have too. Greg’s Part There are a few distinct differences between common law and UCC contracts. Common law contracts relate to transactions with real estate, services, intangible assets, and employment. UCC covers transactions with goods and tangible objects. Under common law, when the contract is has a change, it is a rejection and becomes a counter offer. With the UCC, even if there has been a change, it still may be a binding contract. There is also a...
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...* The common law is often referred to as judge made law and was originally a case based system that had as its foundation. The principal that has similar disputes should have similar legal outcomes. The civil law is code based originating with the Justinian code of the Roman Empire. Codes consist of large comprehensive statues or specific legislation in specialized area. * Four essential elements of valid contract in the common law tradition, how different from civil law. 1) The parties must intend to be legally bound. Family members may make promises without intend to be contractually bound to them 2) A contract must contain an offer and acceptance of that offer. A counter offer also requires acceptance. 3) The parties must have legal capacity of contract. 4) The contract must be for a legal purpose and legal in nature. * If contract sign by duress (undue influence) imp resentment. * The contract law also requires that be consideration from both parties in order for the contract to be valid and enforceable. Also known as the bargaining theory of contract. * The requirements for consideration specify that the each party must trade something in value. Consideration is required under common law only. The civil law does not require it. * CISG ( international sales of goods) UCC (uniform commercial law) Common law * CISG applies to all contract of sale of goods when the parties have their place of business in different...
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...FACULTY OF LAW DEPARTMENT OF BUSINESS LAW MODULE: COMPANY LAW, MANAGEMENT AND FINANCE (BUL701) TOPIC; PRE-INCORPORATION CONTRACTS: THE EXAMINATION OF THE CONCEPTUAL CONFUSION By Esther Adilli Ikenye Being a seminar paper presented at the Fourth Edition of the Company Law, Management and Finance, Master of Laws (LL.M) Class, Seminar Series for the First Semester of the 2014/2015 Academic Session, organized by Dr. Eric Okojie (PhD) and held on Monday, the 20th day of July, 2015, at the Department of Law, Faculty of Law, University of Benin, in partial fulfillment of the requirements for the award of the degree of Master of Laws (LL.M), of the University TABLE OF CONTENTS ABSTRACT 1.0 INTRODUCTION 2.0 ORIGIN OF THE PROBLEMS ASSOCIATED WITH PRE-INCOPORRATION CONTRACTS 3.0 THE PROMOTER AND HIS ROLE IN THE FORMATION OF A COMPANY AND THE INTERPLAY BETWEEN PE-INCORPORATION CONTRACTS AND THE LAW OF AGENCY RULES 4.0 THE POSITION OF THE LAW ON PRE-INCORPORATION CONTRACTS IN ENGLAND 5.0 THE POSITION OF THE LAW ON PRE-INCORPORATION CONTRACTS IN NIGERIA 6.0 THE POSITION OF THE LAW ON PRE-INCORPORATION...
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...Australia workplace, are Common Law, and Awards and Collective agreements. Common law is also known as judge-made law. “The courts interpret and apply the laws made by parliaments, and make decision where those laws are unclear or where there is no relevant statue law. The judges’ decisions in cases are recorded in law reports. These decisions set precedents, which are added to the common law.” (Victoria Law Foundation, Chp. 1) Common law helps to regulate the employment relationship in Australia as follows: helps to define the work relationship (whether it is employer-employee relationship) helps to perform an interpretive function (i.e. giving meaning to a legislative term in statues) helps in ‘filling the gaps’ of legislation (usually imply accepted terms in that industry) e.g. FOB, which means Free On Board in the trading industry helps to imply terms into an employment contract (i.e. provided the terms of existing contract is unfair, unreasonable, illegal or unclear) As the government law did not completely define who employee is, it is up to the judges and court to determine if an individual is deemed as ‘employee’ or independent contractor, depending on factors in the existing contract of employment. This is important for reasons of vicarious liability, tax reasons, legislative protection on employment benefits and superannuation and so on. Common law deals with unlawful/wrongful dismissal grounds based on contract law. The remedy for wrongful...
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...factory I also will research the common law and the (UCC). The common law or the Uniform Commercial Code (UCC) Are the two things that the United States wanted. The Uniform commercial code was taken effect in the 50 states to harmonize all of the states. The people had a lot of different ideas of these two laws. The common law works with real states, many service, insurance etc. when it come to the Uniform Commercial Code (UCC) the main concern was the security and the sales. If they wanted to change the common law or make arrangement they will get rejected because of the impact that this can bring to the company, but in the other has if they decide to change the uniform commercial code it don’t have no impact in the company. When the common law don’t aloud them to revoke the option of the agreement, by the person that is offering firm they cant change it they are made with the (UCC). The common law only can be modified with additional consideration, but the uniform commercial code doesn’t have any effect in this matter. When we look at the law for the different between the Common Law and UCC. When we talk about the common law we mean the ‘’ include quantity, price, performance time, nature of work and identity of offer’’. When we talk about the uniform commercial dose is the amount that they are need it .the common law is Statute of Limitation is four to six years the uniform commercial code will be four year. In the agreement of common law is left alone only if the people...
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...The law with regard to the contract of affreightment is, of course, a branch of the general law of contract. The rights and obligations of the ship-owner and the freighter depend, as in the case of all parties to contracts, upon the terms of the agreement entered into between them. The law, however, interferes to some extent in regulating the effect to be given to contracts. Certain contracts are forbidden by the law, and being illegal are therefore incapable of enforcement. The most important example of illegality in the case of contracts of affreightment is when the contract involves trading with an enemy. The law interferes again with regard to the interpretation of the contract. The meaning to be given to the words of the contract, or, in other words, its construction, when a dispute arises about it, must be determined by a judge or court. The result is, that certain more or less common clauses in contracts of affreightment have come before the courts for construction, and the decisions in these cases are treated practically, though not perhaps quite logically, as rules of law determining the sense to be put upon certain forms of expression in common use in shipping contracts. A third way in which the law interferes is by laying down certain rules by which the rights of the parties are to be regulated in the absence of any express stipulation with regard to the matter dealt with by such rules. This is done either by statutory enactment, as by that part (Part VIII)...
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...Business law and contracts Introduction There are quite a number of business entity that are lead and regulated by various laws.Theselawsensures that each business operates within its jurisdictions. In running a business, one has to deal with various types of contracts with other businesses or different individuals. Whatever types of businesses that one dealin, understanding of business contracts is an essential part of running a business and making sound agreements that can be defended in a court of law in the case that one party defaults on their original profit. Contracts governance by common law or the Uniform Commercial Code (UCC). A contract can be defined as an enforceable legal agreement undertaken by two or more parties, corporate or individuals that necessarily creates an obligation between the parties to do or not to undertake certain things (Brullote, n.d). In many countries, business and individual contracts are majorly guaranteed by two laws: the Uniform Commercial Code abbreviated as UCC and the common laws each having its distinct jurisdiction. To transact business properly, it is required that one understands both contracts (Brullote, n.d). Common laws contracts are those contracts that are controlled by a set of rules that are established by various states. These are traditionally basedlaws that are set by thelegislature and are always being changed to suit the various changes n business environments. Common law contracts are meant to guide various...
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...Reflection – Common Contracts vs. UCC Article 2 Contracts are used on a daily basis. For example, agreeing to terms and conditions to download an app on a mobile device occurs daily and is considered a contract. It is important to read and know what one is agreeing too; in this case apps are able to retrieve personal data from the authorized device. Both parties need to be in agreement with the terms of the contract in order for the contract to be made. If someone agrees and then adds to what was stated, it is not a valid contract (Melvin, 2011). The contract laws are governed by the common law and the Uniform Commercial Code known as the UCC. Common laws and the UCC are similar yet different in that both are ways contracts are governed by the law. Common contracts are used throughout most of our lives, from cable television to cell phones and real estate to credit cards. Common law is used in transactions with real estate, services, insurance, intangible assets, and employment. Common law is a law that is controlled by the state’s common law as a tradition where the decisions are made based on past courts over the years. When it comes to the terms, the common law requires a description on the quantity, price, performance time, nature of work, and identity of an offer to be a valid contract ("Overview of UCC Contracts and Common Law Contracts", 2013). Common law dictates any change to an offer is a rejection and then it is counter offered and if the contract is modified...
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...Business Law 7/13/2014 Week 1 Professor McGovern Common Law is The ancient law of England based upon societal customs and recognized and enforced by the judgments and decrees of the courts. The general body of statutes and case law that governed England and the American colonies prior to the American Revolution. The principles and rules of action, embodied in case law rather than legislative enactments, applicable to the government and protection of persons and property that derive their authority from the community customs and traditions that evolved over the centuries as interpreted by judicial tribunals. Common-law courts base their decisions on prior judicial pronouncements rather than on legislative enactments. Where a statute governs the dispute, judicial interpretation of that statute determines how the law applies. Common-law judges rely on their predecessors' decisions of actual controversies, rather than on abstract codes or texts, to guide them in applying the law. Common-law judges find the grounds for their decisions in law reports, which contain decisions of past controversies. Under the doctrine of Stare Decisis, common-law judges are obliged to adhere to previously decided cases, or precedents, where the facts are substantially the same. A court's decision is binding authority for similar cases decided by the same court or by lower courts within the same jurisdiction. The decision is not binding on courts of higher rank within that jurisdiction or in...
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...No class Monday What is contract? Restatement 2nd of contracts a contract is a promise or a set of promises for the berach of which the law gives s remedy, ror the performance of which the law in some way recognizes as a duty. A contract is subject to legal enformcent. Promisuar and a promisee A bilateral contract it can be both promisaur and promisee. A contract is a statement that there are future obligation on one party or the other. If paid all cash it’s a mere transaction and not a contract. It needs a certain future obligation that would need to be enforceable. Heartbomb statues. Marriage proposal examples. Social vs legal obligation. Policies and values of contract law Freedom of contract is an execise of individual autonomy and an integral part of personal liberty, but it is not absolute. Freedom of contract is important but not end of everything. Ie, an 8 year old agree with apple terms and policies are illegal. * One’s conduct regarding assent to a contract has more weight than one’s testimony about his or her intentions. What I say is far less important than what I did, can’t say I didn’t read it. Most contracts are commercial in nature, and therefore conract law reflects the prevailing economic philisphy of the U.S. capitalist and orientated towards a market economy. History of contract law Common law development of contract law. Dereived from English court. Nature of that is judges makes the decisions. Overtime ther...
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...incorporation of terms of these contracts. With such ambiguity within the ETA , this can create problems for parties entering into a contract of an electronic nature. This problem extends further to the judicial system, with no clear legislative materials to facilitate courts in the interpretation of how terms are to be incorporated into a contract. Two common methods of contract term incorporation will be discussed further in both an electronic and non-electronic context. These are incorporation of terms by signature; and incorporation of terms by notice. Incorporation of terms by signature Contracts that require a signature for validity will, under common law (for at least traditional written contracts), assume that the signing party has read and agreed to all terms that are stated within the contract, regardless of whether the parties have in fact read the contract terms. This reasoning was established in the English case of L'Estrange v Graucob The High Court of Australia accepted L’Estrange v Graucob (L’Estrange) as good law in Australia in the case of Toll (FGCT) Pty Limited v Alphapharm Pty Limited (Toll). Macdonald argues that if signatures were to be recognised as sufficient in the incorporation contract terms for online contracts, Toll and L’Estrange, would be recognised as the applicable law for these online contracts, despite the clear distinguishing features between traditional contracts and online contracts. McCullagh, Little and Caelli...
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...Business Entities Jessica Perez BUS 311 Business Law Instructor: Janet Fiorentino 12/1/2014 As the manager of Acme Fireworks, I need to gather information to help the owner determine whether or not he should continue to be a sole proprietorship or if he should switch to another business entity. I will help him do so by explaining each entity and how they relate to his business situation. I am the manager of Acme Fireworks, a fireworks retailer who sells fireworks, puts on ground display fireworks, and large aerial display fireworks. The company started in the owner’s garage two years ago and now has 15 employees that you manage. The company started as a sole proprietorship, and the owner has never changed the entity. The owner has informed me that the company has received inquiries from several large businesses wondering if the company could create several fireworks displays on a regular basis. The owner told the inquirers that the company could fill such display orders, and a price per display was agreed upon. It was discussed that most of the cost for a fireworks display is for skilled labor, insurance, and the actual service of setting off the fireworks. No other details were discussed. The owner is anticipating that new employees will need to be hired, but he is worried that if the large orders for fireworks displays do not continue, the company will not have the funds to pay the new employees. The owner is now considering changing the business entity, but he...
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...1.2.1 Common law The term common law gives rise to diffi culty as it has several meanings, so any meaning depends upon the context in which the term is used: Common law may mean the law created by the common law courts in contrast to the law created by the Court of Chancery, which was called equity. Common law may m • ean all the law created by the courts, including the law of equity, as opposed to the law created by Parliament, that is legislation. In this sense, common law may be also termed ‘judge- made’ law. • Common law may refer to a legal tradition which defi nes the English legal system and other derivative legal systems as opposed to the civilian legal tradition exemplifi ed by the systems of mainland Europe. Apart from England and Wales other examples of a common law tradition are to be found in the legal systems of the states of the United States (with the exception of Louisiana), Canada, and Australia. Common law in this sense refers to forms of law- making, particularly judge- made law, which is governed by the doctrine of judicial precedent. The characteristic feature of the civilian systems is that law is to be found in codes made by the legislature. The civilian tradition is seen in the legal systems of France and Germany. While the French law of contract is codifi ed and to be found in legislative form, the English law of contract is to be found mainly in the decisions of judges as reported in 7 Common law and equity the law reports. As will...
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...The Uniform Commercial Code or (“UCC”) as defined in the textbook, “Business Law by Henry R. Cheeseman,” is an exemplary act which consists of inclusive laws that cover most facets of commercial transactions. All of the states, excluding for Louisiana, have legislated the UCC or the majority of the UCC as a commercial statute. The formation of sales and lease contracts is what conveys the UCC rules and regulations. The UCC is comprises of many different articles which institute uniform rules for a specific aspect of business in the United States. As modern commercial practices and technology evolve, the UCC is revised to meet the requirements of the states. Given this information, makes the UCC more flexible than that of the common law. In...
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