General clauses and standards in European contract law : comparative law, EC law and contract law codification
Title: General clauses and standards in European contract law : comparative law, EC law and contract law codification
Citation: The Hague : Kluwer Law International, 2005, Private law in European context series ; 6
General clauses or standards (Generalklauseln, clauses generales) are legal rules which are not precisely formulated, terms and concepts which in fact do not even have a clear core. They are often applied in varying degrees in various legal systems to a rather wide range of contract cases when certain issues arise issues such as abuse of rights, unfairness, good faith, fairness of duty or loyalty or honesty, duty of care, and other such contract terms not lending themselves readily to clear or permanent definition. Here for the first time is a systematic discussion of this kind of rule in the evolving and dynamic context of European contract law. A collection of twelve insightful essays by leading European law authorities, the book is based on a conference organized jointly by the Society of European Contract Law (SECOLA) and l'association Henri Capitant, held in the 'grande salle' of the French Supreme Court in Paris in 2005. The subject is approached along three distinct but interconnected avenues: Comparative contract law, in which the different models to be found among Member States particularly the Germanic, French, and English common law systems are explored with an eye to differences and common ground; EC contract law, in which the general clause approach has tended to focus on labour law and consumer law, and in which the European Court of Justice more and more assumes the final say; and the European codification dimension, in which a potential instrument on the European level would compete with national laws and develop closely with them. The authors demonstrate that a focus on general clauses in contract law, embracing as it does a wide range of types of contracts, helps enormously with the necessary integration of legal scholarship and economic approaches, and of legal science and legal practice in the field. Numerous analytic references to relevant cases and EC Directives give a practical impetus to the far-reaching but immediately applicable theory presented in this important book. As European contract law continues to develop rapidly, this seminal contribution is sure to increase in value and usefulness.
Table of Contents:
-- General standards and principles, Clauses Ge´ne´rales and Generalklauseln in European contract law : a survey / Stefan Grundmann -- Theorie et pratique de la clause ge´ne´rale en droit Franc¸ais et dans les autres syste`mes juridiques Romanistes / Camille Jauffret-Spinosi -- The functions of general clauses, exemplified by regarding Germanic laws and Dutch law / Peter Schlechtriem -- Theory and practice of the 'General Clause' in English law : general norms and the structuring of judicial discretion / Simon Whittaker -- The EC contract law context -- Shifting power from legislations to judges and from the central level to the national level / David Edward -- Les clauses ge´ne´rales dans le droit du travail europe´en-Les re`gles internes et leur impact dans le droit communautaire / Robert Rebhahn -- Social rights, general clauses, and the acquis communautaire / Hugh Collins -- The general clause or standard in EC contract law directives-a survey on some important legal measures and aspects in EC law / Stefan Grundmann -- L'analyse e´conomique de la clause ge´ne´rale / Jacques Ghestin -- Le devoir de se comporter de bonne foi dans les contrats de consommation / Jean Calis-Auloy -- The duty to deal fairly in commercial contracts / Willem Grosheide -- General clauses and specific rules in the principles of European contract law : the 'Good Faith' clause / Hugh Beale