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contract law introduction

introduction to the law of contract

stephen carruthers

on 16 September 2015

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Transcript of contract law introduction

European Conventions and EU Regulations
The Brussels I Regulation - Council Regulation (EC) No 44/2001 of 22/12/2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters largely replaced the Brussels Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters.
Rome Convention of 19 June 1980 on the Law Applicable to Contractual Obligations. [1980] OJ L 266. ►Rome I (2008) - in force 1/12/2009
Rome I Regulation (Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations). The Rome I Regulation entered into force on 24 July 2008 and applies to contracts concluded after 17 December 2009
Sectoral Harmonisation – Art. 114-117 TFEU
Consumer Protection Directives
Electronic Commerce
Employment law
A European Civil Code?
Commission on European Contract Law (Lando Commission)
Principles of European Contract Law (PECL) (Part I 1995, Part II 2000, Part III 2003)
Study Group on a European Civil Code (1999) (Christian von Bar)
Update and extend PECL
Network of Excellence (2005) – Professor Hans Schulte-Nölke
Proposals for a Common Frame of Reference (CFR) (2007-2009?)
Council Conclusions of 28-29 November 2005
Updating and modernising Consumer Acquis (8 Directives)
Rejection of European Civil Code
Up-date: http://ec.europa.eu/justice/contract/
THE EU and Contract Law -2

The nature of EU law
Primacy of EU law (Costa v ENEL)
Directives and Direct Effect (Defrenne vs Sabena)
Constitution of Ireland
Article 29.4.6: ‘.No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State, before, on or after the entry into force of the Treaty of Lisbon, that are necessitated by the obligations of membership of the European Union referred to in subsection 5° of this section or of the European Atomic Energy Community, or prevents laws enacted, acts done or measures adopted by the said European Union or the European Atomic Energy Community, or institutions thereof, ii the European Communities or European Union existing immediately before the entry into force of the Treaty of Lisbon, or institutions thereof, or iii bodies competent under the treaties referred to in this section, from having the force of law in the State.
Hierarchy of Sources
Constitution of Ireland
EU Law
Statutes passed by Dáil Éireann
Supreme Court
High Court
Circuit Court (€38,092)/District Court (€6350)
International Treaties
NB Special position of ECHR under The European Convention of Human Rights Act 2003
Caselaw of other common law jurisdictions
Sources of Irish Contract Law
Tort and contract:
Finlay v. Murtagh (1979) Henchy J: 'The action in tort derives from an obligation which is imposed by the general law and is applicable to all persons in a certain relationship to each other. The action in contract is founded on the special law which was created by a contract and which was designed to fit the particular relationship of that contract'.

‘a person who has been unjustly enriched at the expense of another is required to make restitution to the other’ (US Restatement)
Contract Law and other legal obligations
Investors Compensation Scheme v West Bromwich Building Society (1998) H/L
 Lord Hoffmann: ‘Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.’

BCCI v Ali [2002] H/L
Problem of application
Chartbrook v Persimmon Homes H/L [2009]
Exclusion of pre-contractual negotiations
Construction of Contracts
'a source of claims guaranteed by legal coercion' (Max Weber)
‘part of the law that deals with obligations that are self-imposed’ (Atiyah)

Private law vs public law

Law of contract vs law of contracts
Characteristics of Contract law

Common Law Courts
The Court of Common Pleas: civil actions
The Court of the Exchequer: Crown financial rights
The Court of the Queen's (or King's) Bench: criminal actions
Courts of Equity
Chancery: presided over by the Lord Chancellor
The Court of the Star Chamber: criminal justice
The Court of Requests: private litigants
The Court of Admiralty
The Court of High Commission: ecclesiastical matters
Supreme Court of Judicature Acts 1873 and 1875
Fused court system
Common law vs Equitable Jurisdiction
Status Based Societies
Social status
marital status

Market Economy Societies
Laissez -faire period (1770-1870)
Adam Smith’s Law of Nations (1776)
Regulatory/welfare societies (1870s onwards)
Competition regulation
Consumer protection
Public policy

The Internet Age and Globalisation
UNCITRAL - The United Nations Commission on International Trade Law - http://www.uncitral.org/index.html
United Nations Convention On Contracts For The International Sale Of Goods (1980) – not yet signed by Ireland
United Nations Convention on the Use of Electronic Communications in International Contracts (2005) – not yet signed by Ireland
International Chamber of Commerce (ICC)
The International Institute for the Unification of Private Law (UNIDROIT)
Principles of International Commercial Transactions (1e 1994, 2e 2004)
International Law and Contract Law
Common law and Civil legal systems
Codification vs system of precedent
Influence of English Contract law
Hierarchy of English courts
Supreme Court (from 1/10/09)
Court of Appeal Civil Division
High Court
Chancery Division
Queen’s Bench Division
Family Division
County courts/Magistrates Courts

US Law – Federal system
Restatement of the Law Second, Contracts: American Law Institute (ALI)
Uniform Commercial Code (UCC) ALI
Irish Contract law and other legal systems
Civil Law
Codex Justinianus (529)
Prussia's Allgemeines Landesrecht (1794) Bürgerliches Gesetzbuch (or BGB) (1900)
Napoleonic Code (1804)
Common law
Blackstone’s Commentaries on the Laws of England (1765-1769)
Civil and Common Law Systems
Irish Contract Law - An Introduction
Researching Contract Law in Ireland
what are contracts ?
The EU and Contract LAw
Full transcript