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Lectures on Comparative Law of Contracts

Lectures on Comparative Law of Contracts

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Published by Irma Rahmanisa

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Published by: Irma Rahmanisa on Apr 22, 2012
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Giuditta Cordero Moss
Reproduced here is a text published in the Publications Series of the Institute of Private Law,University of Oslo, No 166, 2004. I would like to thank the Institute of Private Law and the “Fondettil fremme av forskning på privatrettens område” for kindly consenting to publishing the text in theCEPMLP Internet Journal.
PhD (Moscow), Dr. Juris (Oslo). The author is associate professor at the Institute of Private Law,University of Oslo, and Principal Research Fellow at the Centre for Energy, Petroleum and Mineral Lawand Policy, University of Dundee, and has long experience as practicing international lawyer. Her mainareas of expertise are: international contracts, international litigation, business projects in Russia.
This compendium is a collection of the lectures that I hold in the course onComparative Private Law at the Oslo University, as well as in the course onInternational Business Transactions at the Centre for Energy, Petroleum andMineral law and Policy, University of Dundee.Comparative law, including also comparative contract law, which is thetopic of these lectures, is a subject of legal study with its own, independentlegitimacy and, in some European countries, with solid traditions. Therefore,there should be no need to justify, explain or subject to external purposes theanalysis and comparison of the regulations that different countries providefor contracts.My personal interest in comparative contract law, however, is mediated bymy engagement in the field of international contracts. Having negotiated,drafted and analysed international contracts for 20 years, I was numeroustimes confronted with the implications of the differences (real or apparent)between the contract laws of different countries. I was also numerous timesconfronted with the uncertainty that arises out of these differences, and Irepeatedly witnessed the attempt to remove the whole problem by(consciously or not) assuming that an international contract is not reallysubject to any state’s law, but exists in a trans-national system.The question of what sources govern an international contract is the maintopic of another course that I teach at the Oslo University, InternationalCommercial Law; the relevant lectures are collected in a compendiumpublished in the same series as this one, Lectures on InternationalCommercial Law (2003). The conclusion of that compendium is thatinternational contracts are, ultimately, subject to national laws. The naturaldevelopment of that reasoning is, therefore, to analyse some of the mostsignificant national contract laws, as well as international conventions andtrans-national instruments that might be applicable to international contracts,in order to understand the main differences between them. This is what weare doing in the course on Comparative Private Law. The lectures will notfocus on other aspects of the private law than contracts, and within contractlaw, we will focus only on the aspects that present the most significantdifferences. The course on comparative law, therefore, is meant as acontinuation of the reasoning that began with the course on InternationalCommercial Law. The compendia of both series of lectures will, duly
integrated with more systematic analyses of various international contractmodels, constitute the nucleus of a book on international contracts.From the point of view of international contracts, an understanding of themain system’s contract laws is an important tool, and not only thesatisfaction of a merely intellectual curiosity, for the reasons stated below.A contract with foreign elements is potentially subject to the laws of avariety of countries, for example the laws of the countries where each of theparties has its place of business, the laws of the countries where the contractis to be performed, and the laws of any other countries that the transactionmight be connected with.Which of these laws will be governing the contract is a question that isanswered by private international law, a branch of the law that provides rulesfor making from among the conflicting laws a choice of the governing law.Thanks to the choice of law rules, a contract will be governed primarily byone single law, thus avoiding the main conflicts that may arise if a pluralityof legal systems is governing the same subject-matters. The main choice of law rule within contract law (but not the only one) is party autonomy,permitting the parties to choose the law that will govern their contract. Forthe sake of completeness, it is necessary to mention that there are situationsin which the same contract is regulated by more than one law; this mayhappen by choice of the parties or by operation of law. The parties maydecide that parts of their contract should be regulated by a certain law,whereas other parts should be regulated by another one: if the underlyingtransaction is complex and may easily be separated into several sub-transactions, the parties may find it advisable to subject certain parts of thetransaction to a specific law with which it has a particular connection (socalled “depecage” or “severability”). In other situations, specific rules of alaw that is otherwise not governing the contract may be applied, if the judgedeems these rules to have a character that requires their application even if they do not belong to the governing law (so called “overriding mandatoryrules”), or if a particular area of a contract is subject to choice of law rulesthat differ from the rules applied in the rest of the contract. These describedsituations are relatively marginal, and the main effect of a choice of law ruleis to select the law that governs a contract in its entirety.An international contract, therefore, is primarily subject to one national law.Theoretically, therefore, it should be sufficient to get acquainted with the

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