Substitution of New Debtor; Transfer of Contract

While the example creates the impression that a change of debtor is a frequent occurrence, the legal reality is somewhat different. The creditor (C) may simply be reluctant to accept a new debtor. Nevertheless, the substitution of a debtor may take place in relation to an ‘ordinary’ cross-border sales contract.

Formation of Contracts

The question of when an agreement between the parties becomes an enforceable contract is a question of general contract law. Roman jurists did not feel the need for such abstract enquiries, since they developed their contract rules case by case for each type of contract.

Performance

The modern law of contract is based on the idea of contractual freedom. In particular, parties are free to determine their (mutual) duties themselves (above, Art 1:102). This freedom is not, in principle, restricted to certain issues but includes and extends to all means and modalities of performance. Often, however, parties will not address all questions relating to performance in their contract.

General Introduction European Contract Laws

In the autumn of 2010 the editors of this volume ran a seminar within a summer school organized by the Studienstiftung des deutschen Volkes in the French Maritime Alps. The aim of that seminar was a comparative assessment of the various ‘restatements’, ‘model laws’, ‘reference texts’, or ‘non-legislative codifications’ on European contract law that had by then been published. That assessment turned out to be much more interesting than we had originally envisaged, for we discovered that those texts were genetically related in unexpectedly complex ways. We had known before, of course, that some rules and formulations in later texts had been taken over or adapted from older texts and that a number of the restatements were also connected to the European Union’s acquis communautaire. But we had not been aware of the extent to which the texts were interrelated; nor had we appreciated the changes of wording and systematic context that had occurred. The mixture of complex genetic relationships, of correspondence and differences in formulation, and of shifts in approach and policy thus became more interesting, but also more difficult to understand.

Interpretation

The rules and principles of contractual interpretation are of paramount importance in private law adjudication. As long as there is agreement as to the facts, most disputes turn on the exact scope and content of the contractual rights and obligations of the parties. In order to determine these, the contract has to be interpreted. Moreover, interpretation in the contractual context is not necessarily confined to the contract proper. It may also concern unilateral acts, at least in two scenarios.

Conditions

The parties’ use of conditions must be distinguished from the application of conditions as a means of interpretation, allowing the courts to apply or develop remedies.

Obligations of the Parties to a (Related) Service Contract

Sales law is often considered the archetype of contract law. In many cases, however, the obligations of the seller in contracts of sale do not stand isolated, but are accompanied by services provided by the seller to the buyer, such as the installation, the maintenance, or the repair of the object sold.

Capitalisation of Interest

Chapter 17 of the PECL consists of only one single rule, entitled ‘When Interest to Be Added to Capital’. That rule has been moved to Chapter 9, Section 5 on ‘Damages and Interest’, where it appears as Art 9:508-4. That is, therefore, also the place where the reader will find the other textual layers and a commentary on the problem of capitalization of interest. The shift from Chapter 17 to Chapter 9 is in line with the intentions of the draftsmen of Part III of the PECL, for in the Introduction to that volume (page xvii) they indicated that ‘in any future combined volume covering Parts I, II and III the treatment … could be incorporated at the appropriate [place] earlier in the volume’.

General Provisions

The idea of prefacing a legal instrument with an introductory chapter containing a number of ‘general provisions’ was not, of course, an invention of the draftsmen of ULIS and CISG; it has a much longer pedigree. Thus, we find it implemented in a number of the great European codifications: most prominently and influentially, perhaps, in the Code civil (‘Titre préliminaire’), the Austrian ABGB and the Swiss ZGB (‘Einleitung’), and the Codice civile (‘Disposizioni sulla legge in generale’).

Assignment of Claims

‘Contractual claims represent a major tradable asset. They can be sold outright, as in the typical factoring transaction, or assigned by way of security for a loan or other obligation. The purpose of this Chapter is to set out principles and rules which are designed to facilitate the assignment of claims, whether individually or in bulk, whilst at the same time ensuring that the debtor’s rights are not prejudiced by the assignment.