Appunti Comparative Private Law (General Part)

Legge italiana

Art. 1321 codice civile

Un contratto è un accordo tra due o più parti per stabilire, regolare o estinguere la loro relazione giuridica patrimoniale.

Legge francese

Art. 1101 (come modificato nel 2016)

Un contratto è una concordanza di volontà di due o più persone intesa a creare, modificare, trasferire o estinguere obbligazioni.

Art. 1103 (come modificato nel 2016)

I contratti validamente formati hanno forza di legge per coloro che li hanno stipulati.

Contratti e obbligazioni

Il contratto è essenzialmente una fonte di obbligazioni.

Ad esempio, il contratto di vendita (il contratto avente come oggetto il trasferimento della proprietà di una cosa o il trasferimento di altri diritti in cambio di un prezzo).

Obblighi del venditore

• Consegnare la cosa all'acquirente
• Garantire l'acquirente contro l'evizione e i difetti della cosa venduta

Obbligo dell'acquirente

• Pagare il prezzo entro il tempo e il luogo fissati dal contratto

Altre fonti di obbligazioni

• Contratto
• Responsabilità civile extracontrattuale
• Altre fonti minori

Autonomia delle parti

subsidiarityIt stars from the principle of the : parties are free to determine the content of a contractharmful for the partiesThere are case in which the exercise of party autonomy can be and● legal systems detrimentalthe , wanting to protect them, and it can be to the general interest→of the legal system it can be limited by the legal systemsubsidiarity principle is applied as long as there is no reason, identified by theThe○ LS, to intervene and regulate the relationship even against the will of the partyIt may happen that parties would like to contract in a way that is considered■ contrary to law or moralityIt may also happen that one of the contracting parties not capable of assessing■ her/his own interest, or, though being capable, her/his will is affected by someground of irrationalitymandatory rulesThe law dictates ‘ ’, which declare such a contract void or at least➢ avoidable by one of the partiesFrench lawArt. 1102 (as amended in 2016)Everyone is

free to contract or not to contract, to choose the person with whom to contract, and to determine the content and form of the contract, within the limits imposed by the legislation. Contractual freedom does not allow derogation from rules which are an expression of public policy.

In the Italian and German law, there is no similar definition.

B2C limits to freedom of contract: B2C contracts have a lot of limitations. In B2C contracts, because the consumers do not know the rules and the rights, mostly they do not understand the content.

B2C contracts EU law imposes intense limits on party autonomy. EU consumers law imbalance between the contracting parties. There is an area of consumers law that is regulated at an EU level.

EU Contract law is rather fragmented and it regulates different aspects (it is not unified). It is similar to statutory law in common law.

The source of the EU competence is mostly found in Article 114 of the Treaty on the Functioning of the EU. It allows the

particular law applicable to the contract, the Vienna Convention will be appliedpositive lawIt is part of the and in the countries that signed the convention,■ there is the application of the systemThis convention has led to an Within International Contract law, there are a series of law that● Vienna Convention for the International Sale ofdeal with B2B contracts, in particular theGoodsIt entails a particular regulation on sale contract○If the buyer is in Germany and the seller is in Italy, the convention can be applied through an➢ opt-out system: if the German and the Italian do not choose a particular law applicable to thecontract, the Vienna Convention will be applied 55positive lawIt is part of the and in the countries that signed the convention, there is○ the application of the systemThis convention has led to an harmonization to the contract of sales in many countries in● model for inspirationmany countries: it is aThe harmonization is a matter of the UNIDROIT, that

is in Rome

○Choice of law

choice of law clause

The is a term of a contract by which the parties specify:

jurisdiction

Which court shall have in the case of legal disputes between them

● law substantive law

Which is applicable to their contractual relation ( )

● It’s a decision that concern the party autonomy

○ Parties can choose or also not define anything

○The choice of jurisdiction is such an important that there is a convention on the issue: it establish atwhich conditions the parties can make this choice : there are certain requirement that must befulfilled (ex. certainty)

It applies only to the National States that choice to sign this convention

●Brussels 1

It’s the Regulation (EU) n. 1215/2012 of the European Parliament and of the Council of 12 Decemberjurisdiction and the recognition and enforcement of judgments2012 on in civil and commercialmatters which is the jurisdiction if the parties did not choose one

It indicates

● requirement

It indicates also which are the

• Hard law: positive law, that has been enacted within a State (e.g. France, Delaware, etc.)
• Soft law: it is the application of a "soft law instrument), aka model laws (like the DCFR, arbitration clausePICC, PECL) + they are generally combined with an

It is intended as international (or at least European)

• Unidroit Principles of International Commercial Contracts (PICC) [it is updated]
• Principles of European Contract Law (PECL)
• Draft Common Frame of Reference (DCFR)

You can appeal an arbitrator's decision only in

exceptional cases

• Clients do not know soft law well: they are represented by lawyers, who still rarely take the risk of choosing soft law 57→There are not enough judgments on soft law there are few precedents and this less certainty means that there is than with national laws (and this also has an influence in civil law systems)

PICC contract law

• Based on the aim of regulating international commercial contracts
• The rules are based on the customs applied in it represent what parties normally write in the contract
• The main source of inspiration was the CISG (Vienna Convention) because the idea was to complete what was started with the Convention, in order to cover the entirety of contract law
• Drafted by professors and legal practitioners
• It’s a living document that is regularly adapted (prob. last update in 2016)

PECL Principles of European Contract law

• It affects only EU
• It was at the beginning of the idea of creating the EU civil code, taught by

Ole Lando● He wanted to create a kind of contract civil code at a EU level○ The project was supported by the EU○ For Italy, there was the professor Castronovo○ uniform European contract law

The compilation is based on the idea of creating a , based on● a comparative assessment

They took into consideration all the laws of the EU territory (including English law)○ When it was not possible to take everything, they made a choice on the best solution○ It's a very good basis for those states that want to reorganize their legal systems through● reforms

DCFR Supported by the EU● updated the PECL added the acquis communautaire

They (that was used as a basis) and ,● opened up toaka all the rules that had been enacted by the EU (e.g. consumers laws) and other area property law, like

The PECL are just acquis commune: they represent a common understanding of○ European Law

The DCFR encompasses both the acquis commune and the acquis communautaire: laws○ elaborated and the rules of

The acquis communautaires →study group

If fact, there was both a on European Civil Code ( acquis commune ) and a● →research group on EC Private law ( acquis communautaire existing EU contract law) 58

American system

In america there is the distinction between federal law and state law: private law belongs to● state law common