Unexpected circumstances in European contract law / edited by Ewoud Hondius and Hans Christoph Grigoleit.
2011
KJC1597 .U64 2011 (Map It)
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Details
Title
Unexpected circumstances in European contract law / edited by Ewoud Hondius and Hans Christoph Grigoleit.
Published
Cambridge ; New York : Cambridge University Press, 2011.
Call Number
KJC1597 .U64 2011
ISBN
9781107003408
1107003407
1107003407
Description
xxi, 692 pages ; 24 cm.
System Control No.
(OCoLC)671709891
Bibliography, etc. Note
Includes bibliographical references (pages 662-664) and index.
Record Appears in
Gift
Purchased from the income of the Jaffe Fund
Added Author
Gift
The Arthur W. Diamond Law Library
Purchased from the income of the Jaffe Fund
Table of Contents
List of contributors
x
General editors' preface
xv
Preface
xvii
List of abbreviations
xix
pt. I
Introduction and context
1
1.
Introduction: An approach to the issues and doctrines relating to unexpected circumstances / Hans Christoph Grigoleit
3
1.
Setting the scene
3
2.
Pacta sunt servanda
4
3.
General approach
5
4.
`Conventional' doctrines (relief based on the contract)
6
5.
`Exceptional' doctrines (relief based on extraordinary effects on the contract resulting from unexpected events)
6
A.
Doctrine of Frustration
7
B.
Wegfall der Geschaftsgrundlage
7
C.
Doctrine of assumptions
8
D.
Clausula rebus sic stantibus
8
6.
Legal consequences
8
A.
Termination of the contract
8
B.
Adjustment of the contract
9
C.
Renegotiation
9
7.
`Open' versus `closed' legal systems
10
8.
Unexpected circumstances in supervening legislation and in model codes
12
9.
Specific legislation and contract terms specifically addressing unexpected circumstances
13
10.
Matters not dealt with
14
2.
Legal history / Andreas Thier
15
1.
Unexpected change of circumstances: perspectives of legal history
15
2.
The emergence of the clausula doctrine
15
3.
The Early Modern period
19
4.
The nineteenth and early twentieth centuries
27
5.
Conclusion
31
3.
Law and economics: the comparative law and economics of frustration in contracts / Francesco Parisi
33
1.
Introduction
33
2.
Review of the literature
34
3.
The economics of frustration in contracts
38
A.
Optimal allocation of the risk of frustration
39
B.
Allocating risk to harvest information
42
a.
Frustration rule as signal of promisor's confidence
42
b.
Frustration rule as signal of promisee's sensitivity to risk
44
c.
Frustration rules as matching devices
45
C.
Incentives and moral hazard
46
4.
Legal solutions from an economic perspective
48
pt. II
Overview
53
4.
Overview: concepts dealing with unexpected circumstances
55
Germany And Related Jurisdictions
55
Germany
55
Austria
63
The Netherlands
70
Eastern European Jurisdictions
76
Slovenia
76
Lithuania
81
Czech Republic
88
Scandinavian Jurisdictions
98
Sweden
98
Denmark
109
Romanic-Mediterranean Jurisdictions
118
Italy
118
Spain
126
Portugal
133
Greece
138
France And Related Jurisdictions
144
France
144
Belgium
156
England And Related Jurisdictions
163
England and Ireland
163
Scotland
166
pt. III
The case studies / Hans Christoph Grigoleit
173
5.
Questionnaire
175
A.
Equivalence Of Exchange Is Distorted
175
B.
Recipient's Use Of Contractual Goods Or Services Is Substantially Affected
176
C.
Frustration Of Specified Purposes (Other Than A Or B)
178
D.
Mutual Mistake Concerning The Calculation Underlying The Contract
179
E.
Miscellaneous Issues
179
6.
The case studies
181
A.
Equivalence Of Exchange Is Distorted
181
Case 1
`Canal de Craponne'
181
Long-term agreement - devaluation of the price agreement
181
Case 2
Extraordinary inflation
218
Hardship due to extraordinary inflation; hardship resulting from a foreign currency agreement
218
Case 3
Government intervention - tax increase
256
Post-contractual imposition of a tax
256
Case 4
Unexpected benefit
278
Long-term lease - extraordinary increase of the rental value
278
B.
Recipient's Use Of Contractual Goods Or Services Is Substantially Affected
299
Case 5
Destruction of cellar
299
Renovation of cellar becomes useless due to the destruction of the building by natural disaster
299
Case 6
Confiscation of petrol
327
Government intervention makes the use of a rented petrol station impossible
327
Case 7
Hotel reservation
354
Individual purpose of the visit frustrated; strike at the airport; general safety endangered; coronation case
354
Case 8
Shop rental
405
Renting a retail outlet; unexpected business environment at a shopping centre
405
Case 9
Beer supply agreement
431
Long-term supply of beer; beer sales are far below expectations
431
Case 10
Export ban
450
Purchaser of technical equipment is affected by export ban
450
C.
Frustration Of Specified Purposes (Other Than A Or B)
471
Case 11
Sale of real estate involving expectation of cultural use
471
Use of real estate by transferee does not comply with expectations of the transferor
471
Case 12
Investment in spouse's house is frustrated by divorce
504
Equitable compensation if divorce laws lack a basis for compensation
504
D.
Mutual Mistake Concerning The Calculation Underlying The Contract
531
Case 13
Share deal - mutual mistake
531
False determination of the market value in a share deal
531
E.
Miscellaneous Issues
561
Case 14
Impediments of production beyond seller's control
561
Production of contractual goods is inhibited by a strike/restriction of electricity supplies
561
Case 15
Disclaimer
600
Disclaimer concerning the rights arising from unexpected circumstance; other clauses related to unexpected circumstances
600
pt. IV
General comparative Remarks
641
7.
General comparative remarks: Converging tendencies, remaining differences and the unsolved mystery of adjustment / Hans Christoph Grigoleit
643
1.
`Open' versus `closed' legal systems, the variety of doctrines and the difficulty of identifying clear tendencies
643
2.
Convergence as to the general issue of suspending (or upholding) the binding character of the contract terms
644
A.
Equivalence of exchange is substantially affected
645
B.
Recipient's use of goods or services is substantially affected
645
C.
Failure of a specified purpose (other than A and B)
647
D.
Mutual Mistake
647
E.
Miscellaneous issues
647
3.
The preference for openly addressing the conflict between the principle of pacta sunt servanda and the goal of a fair allocation of risks
648
4.
Minimum requirements of setting aside the contract
649
5.
Distinction between issues of initial mistake and of unexpected events arising after the conclusion of the contract
651
6.
Legal Consequences - the unsolved mystery of `adjustment'
652
7.
Uncertainty, the lack of precedents and harmonisation by advancing the legal discourse
654
Appendix: Some Texts on Change of Circumstances
656
Selected bibliography
662
Index
665