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2
Damba, Ousmane. Les contrats economiques internationaux et la souverainete des etats: Le cas des pays en voie de developpement, P.V.D. : these pour le doctorat d'etat en droit. Villeneuve-d'Ascq: Presses universitaires du Septentrion, 2001.
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Gauch, Peter. Thesen zum neuen Vergaberecht des Bundes: Vergabethesen 1999. Freiburg, Schweiz: Institut für Schweizerisches und Internationales Baurecht, 1999.
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Contract Law: Themes for the Twenty-First Century. Oxford University Press, USA, 2006.
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Brownsword, Roger. Contract Law: Themes for the Twenty-First Century. Oxford University Press, USA, 2005.
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Richard, Calnan. Part II Text and Context, 3 Principle 3: The Whole Text. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780198792307.003.0004.
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This chapter explains that contracts are read as a whole. Words and expressions in a contract cannot be seen insolation. They get their colour from the rest of the contract and, if the contract is part of a wider transaction, from the other transaction documents. It also considers the principle that a person interpreting a contract should strive to give effect to each part of the contract. It explains how these issues are dealt with in practice. It also discusses those limited types of case in which contracts are not read as a whole.
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Peter, Huber. Ch.3 Validity, s.1: General provisions, Art.3.1.3. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0053.
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This commentary focuses on Article 3.1.3 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning initial impossibility. Art 3.1.3 excludes those domestic rules that invalidate a contract simply because there is initial impossibility or simply because (‘the mere fact that’) one party was not entitled to dispose of the assets concerned. As a result of Art 3.1.3, neither initial impossibility nor lack of power to dispose of the assets as such makes a contract invalid. However, this does not mean that initial impossibility or lack of power to dispose of the assets has no consequences. On the contrary, these cases are treated under the PICC's rules on non-performance or mistake. Art 3.1.3 applies irrespective of how the relevant domestic law classifies its rule that initial impossibility (or initial lack of power of disposition) leads to invalidity. It also does not cover other domestic rules on invalidity.
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Ewan, McKendrick. Ch.7 Non-performance, s.4: Damages, Art.7.4.6. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0155.
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This commentary analyses Article 7.4.6 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning proof of harm by current price. If the aggrieved party has terminated the contract and has not made a replacement transaction but there is a current price for the performance contracted for, Art 7.4.6 stipulates that it may recover the difference between the contract price and the price current at the time of termination as well as damages for any further harm. The aim of Art 7.4.6 is to provide a measure of certainty by stipulating the measure of damages recoverable in the case where the aggrieved party has not entered into a replacement transaction. The burden of proof is upon the aggrieved party to prove that it was entitled to terminate the contract between the parties and that there is a ‘current price’, and upon the non-performing party to prove that the aggrieved party did enter into a replacement transaction.
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Chunyan, Ding. Contract Formation under Chinese Law. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198808114.003.0002.
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This chapter discusses the law on contract formation in Chinese law which largely follows the UN Convention on Contracts for the International Sale of Goods and the UNIDROIT Principles of International Commercial Contracts. An objective approach is adopted in determining the parties’ intentions but exceptions are allowed where parties have not accurately expressed their true agreement, the contract is a sham, or one party’s intentional false expression is known to the other. For a contract to be binding, its ‘essential elements’ must be agreed (names of the parties, subject matter, and quantity); other terms may be agreed by the parties after the conclusion of the contract or, failing that, determination by the court. In reality, however, courts use soft laws and the nature of the contract, to augment what is required. A purported acceptance which makes a ‘non-material’ alteration to the content of the offer can bind the offeror unless the offeror timely rejects it, but there is little scope for non-materiality. Nevertheless, even a materially varied acceptance can bind if the original offeror’s performance amounts to acceptance where the usage of transaction or the express terms of the offer allows acceptance by conduct. Furthermore, courts show willingness to recognize an acceptance by conduct of performance beyond these two situations. There is no general requirement of form for a valid contract, although exceptionally, laws or administrative regulations may require writing or approval/registration. There is no general requirement of consideration; gratuitous contracts are enforceable. However, the latter attract far less legal force than onerous contracts. An offer is irrevocable only if it is an option or if the offeree reasonably believes the offer is irrevocable and has made preparations for the performance of the contract. An acceptance takes effect only when it arrives. A late acceptance that is not attributed to the offeree is ineffective unless the offeror gives timely notice of its intention to ratify the acceptance. Electronic means of communication are treated in the same way as paper-based communications with specific rules to determine the time and place of contract formation and the validity of electronic signature. Reliance-based pre-contractual liability may be imposed, on the basis of the requirement of good faith, in the circumstances including negotiating with no intention of concluding a contract, intentional concealment of material facts, or breach of confidentiality.
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Stefan, Vogenauer. Ch.1 General Provisions, General Provisions I: Arts 1.1–1.3—Fundamental principles, Art.1.2. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0006.
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This commentary focuses on Article 1.2, which spells out a fundamental principle of contract law: the principle of freedom from form, or ‘principle of informality’. No contract, statement, or other act made under the UNIDROIT Principles of International Commercial Contracts (PICC) requires a particular formality in order to be valid and enforceable; it is sufficient if these are made orally or by mere conduct. While the PICC admit for exceptions to some of their other fundamental contract law principles, the principle of freedom from form is executed in the purest form possible. It applies to the formation of contracts as well as to their subsequent modification and termination, it is reinforced by Art 3.1.2, and there is not a single exception to it. Art 1.2 covers relevant and mandatory formal requirements, formal requirements agreed by the parties, and the concept of ‘writing’.
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Eisenberg, Melvin A. The Role of Fault in Contract Law. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780199731404.003.0012.
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Chapter 12 considers the role of fault in contract law. Restatement Second of Contracts provides that “Contract liability is strict liability. It is an accepted maxim that pacta sunt servanda, contracts are to be kept. The obligor is therefore liable in damages for breach of contract even if he is without fault . . . .” Similarly, the Farnsworth’s treatise states that “contract law is, in its essential design, a law of strict liability, and the accompanying system of remedies operates without regard to fault.” These statements, and many others like them, are incorrect. As a normative matter fault should be a building block of contract law. One part of the human condition is that we hold many moral values concerning right and wrong, and therefore fault. Contract law cannot escape this condition.
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Roy, Goode, Kronke Herbert, and McKendrick Ewan, eds. Part III Harmonization of General Contract Law, 16 Restatements of Contract Law. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198735441.003.0017.
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This chapter examines non-binding restatements of contract law, in particular the UNIDROIT Principles of International Commercial Contracts and the Principles of European Contract Law. It considers the nature, purposes, scope, sphere of application, and substantive content of these Principles (including freedom of contract, pacta sunt servanda, good faith, interpretation, adequate assurance of performance, specific performance, and other remedies and hardship and change of circumstances). The chapter considers the extent to which these Principles can be used in litigation and in arbitration and their relative advantages and disadvantages.
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Michael, Furmston, and Tolhurst Gregory. Contract Formation. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198724032.001.0001.
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This text provides a scholarly and practical analysis of the legal principles which govern the formation of contracts in English law, offering those involved in litigation and in drafting contracts a guide to the application of those principles in practice. The book reviews all the classical rules governing contract formation with extensive coverage of difficult areas such as certainty, conditional contracts, good faith negotiations, auctions, tenders, on-line contracting and the assessment of conduct and silence in contract formation. It also discusses the efficacy, problems and rules around modern contracting, in particular the use of heads of agreement, letters of intent, letters of comfort and the methods of resolving a battle of the forms. In this second edition a chapter has been added on consideration and estoppel. Although this work is based on English law, the text draws upon decisions in other jurisdictions such as Australia, Canada, the United States, Singapore and New Zealand, where these inform the development of principles in English law.
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Richard, Calnan. Part II Text and Context, 4 Principle 4: The Context. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780198792307.003.0005.
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This chapter explains that contracts are read in the context of their background facts. These are the facts reasonably available to the parties which are relevant to establishing how a reasonable person would understand what the parties intended by the contract when it was entered into. It discusses the different approaches to context. Some judges are keen to use the context fully. Others would rather limit the extent to which external factors can influence the words of the contract. This is an important practical issue on which there are divergent views, and the chapter discusses the issues concerned and suggests a way forward. It discusses the limitations on the use of context, including the use of prior negotiations and subsequent conduct in interpreting contracts. It also discusses the effect on third parties of a contextual reading of contracts.
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Chen-Wishart, Mindy, Alexander Loke, and Stefan Vogenauer, eds. Formation and Third Party Beneficiaries. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198808114.001.0001.
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Studies in the Contract Laws of Asia provides an authoritative account of the contract law regimes of selected Asian jurisdictions, including the major centres of commerce where limited critical commentaries have been published in the English language. Each volume in the series aims to offer an insider’s perspective into specific areas of contract law—remedies, formation, parties, contents, vitiating factors, change of circumstances, illegality, and public policy—and explores how these diverse jurisdictions address common problems encountered in contractual disputes. A concluding chapter draws out the convergences and divergences, and other themes. All the Asian jurisdictions examined have inherited or adopted the common law or civil law models of European legal systems. Scholars of legal transplant will find a mine of information on how received law has developed after the initial adaptation and transplant process, including the influences affecting and mechanisms of these developments. The many points of convergence and divergence (in both form and in substance) emerge. These provide good starting points for regional harmonization projects. Volume II of this series deals with contract formation and contracts for the benefit of third parties in the laws of China, India, Japan, Korea, Taiwan, Singapore, Malaysia, Hong Kong, Korea, Vietnam, Cambodia, Thailand, Myanmar, and Indonesia. Typically, each jurisdiction is covered in two chapters; the first deals with contract formation, while the second deals with contracts for the benefit of third parties.
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Ross G, Anderson. Ch.2 Formation and authority of agents, Formation II: Arts 2.1.6–2.1.14—Acceptance, Art.2.1.13. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0029.
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This commentary focuses on Article 2.1.13 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the conclusion of a contract. Art 2.1.13 deals with two separate aspects of formation during pre-contractual negotiations: agreement on specific matters of content, and agreement is concluded only if the agreement is concluded in a specific form. Where in the course of negotiations one of the parties insists that the contract is not concluded until there is agreement on specific matters or in a particular form, no contract is concluded before agreement is reached on those matters or in that form. This commentary compares conditional contracts and fundamental prerequisites and concludes with a discussion of particular formalities relating to the conclusion of a contract.
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Bell, Gary F. Formation of Contract and Stipulations for Third Parties in Indonesia. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198808114.003.0018.
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Indonesia is one of the most legally diverse and complex countries in the world. It practises legal pluralism with three types of contract law in force: adat (customary) contract laws, Islamic contract laws (mostly concerning banking), and the European civil law of contract, transplanted from the Netherlands in 1847, found mainly in the Civil Code (Kitab Undang-Undang Hukum Perdata). This chapter focuses on European civil law as it is the law used for the majority of commercial transactions. The civil law of contract is not well developed and there is a paucity of indigenous doctrine and jurisprudence, since most significant commercial disputes are settled by arbitration. The contours of the law are consistent with the French/Dutch legal tradition. In the formation of contracts, the subjective intention of the parties plays a greater role than in the common law. As with most jurisdictions with a Napoleonic tradition, the offer must include all the essential element of the contract, there is no concept of ‘invitations to treat’ or of ‘consideration’, the common law posting rule is rejected, and the contract is formed only when the acceptance is received. There are generally few requirements of form but some contracts must be in writing and some in a notarial deed.
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Stefan, Vogenauer. Ch.5 Content, third party rights and conditions, s.2: Third party rights, Art.5.2.3. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0096.
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This commentary focuses on Article 5.2.3 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning a contract's exclusion and limitation clauses. According to Art 5.2.3, the conferment of rights in the beneficiary includes the right to invoke a clause in the contract which excludes or limits the liability of the beneficiary. There has to be express agreement of the parties to give the benefit of an exclusion or limitation clause to the beneficiary. This would be the case in the ordinary ‘Himalaya clause’, contained in bills of lading. The burden of proof is on the third party that invokes the clause excluding or limiting liability.
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Frier, Bruce W. A Casebook on the Roman Law of Contracts. Oxford University Press, 2021. http://dx.doi.org/10.1093/oso/9780197573211.001.0001.
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This Casebook explores the writings of Roman lawyers on the law of contracts, a rich and hugely influential area of Roman private law. The 235 “Cases” are actual texts deriving, for the most part, from the Digest of Justinian (535 ce), but written hundreds of years earlier during the Classical era of Roman law. These Cases give a fairly complete view of the concepts and methods used to create rules and judge contract cases in Roman courts. The Casebook concentrates especially on two central Roman contracts, stipulation and sale; but all other contracts and contract-related issues are discussed, as well as Roman legal thinking on unjustified enrichment.
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Stefan, Vogenauer. Ch.5 Content, third party rights and conditions, s.2: Third party rights, Introduction to Section 5.2 of the PICC. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0093.
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Section 5.2 of the UNIDROIT Principles of International Commercial Contracts (PICC) deals with contracts in favour of third parties. It covers the creation of a third party right by way of contract and includes the basic rule that provides for the validity and enforceability of contracts in favour of third parties and states the requirements for bringing a third party right into existence. It also defines the rights and duties of the parties in the triangular relationship arising from a contract in favour of a third party. These provisions provide default rules for the conflict of interests typically arising between the three parties involved. Section 5.2 also discusses the defences of the promisor, the extent of the original parties' power to modify or revoke the third party's right, and the right of the third party to renounce the benefit conferred upon it.
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Peter, Huber. Ch.7 Non-performance, s.3: Termination, Introduction to Section 7.3 of the PICC. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0141.
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Section 7.3 of the UNIDROIT Principles of International Commercial Contracts (PICC) deals with the aggrieved party's right to terminate the contract if the other party does not perform. However, the PICC also severely restrict the scope of termination as a remedy. The crucial question is not whether there is a right to terminate, but rather when it will be available to the aggrieved party. Art 7.3.1(1) accepts the doctrine of fundamental breach as the basic rule for the availability of termination. For cases of delay, Art 7.3.1(3) introduces the Nachfrist mechanism. The basic structure of the system of remedies in Section 7.3 bears a strong resemblance to both the Commission on European Contract Law, Principles of European Contract Law (1998), and the United Nations Convention on Contracts for the International Sale of Goods (CISG) regimes.
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Chen-Wishart, Mindy, and Stefan Vogenauer, eds. Contents of Contracts and Unfair Terms. Oxford University Press, 2020. http://dx.doi.org/10.1093/oso/9780198850427.001.0001.
Full textAbstract:
Studies in the Contract Laws of Asia provides an authoritative account of the contract law regimes of selected Asian jurisdictions, including the major centres of commerce where limited critical commentaries have been published in the English language. Each volume in the series aims to offer an insider’s perspective into specific areas of contract law—remedies, formation, parties, contents, vitiating factors, change of circumstances, illegality, and public policy—and explores how these diverse jurisdictions address common problems encountered in contractual disputes. A concluding chapter draws out the convergences and divergences, and other themes. All the Asian jurisdictions examined have inherited or adopted the common law or civil law models of European legal systems. Scholars of legal transplant will find a mine of information on how received law has developed after the initial adaptation and transplant process, including the influences affecting and mechanisms of these developments. The many points of convergence and divergence (in both form and in substance) emerge. These provide good starting points for regional harmonization projects. Volume III of this series deals with the contents of contracts and unfair terms in the laws of China, Hong Kong, India, Indonesia, Japan, Korea, Malaysia, Myanmar, the Philippines, Singapore, Taiwan, Thailand, and Vietnam. Typically, each jurisdiction is covered in two chapters; the first deals with the contents of contracts, while the second deals with unfair terms.
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Wilson, Luke. Contract. Edited by Lorna Hutson. Oxford University Press, 2017. http://dx.doi.org/10.1093/oxfordhb/9780199660889.013.28.
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Recent work in literature and contract law has endorsed a view of literature as supremely sensitive to legal technicalities. But literary texts respond as well to deeper, slower-changing features of the idea of contract. The example of Philip Henslowe shows how law illiteracy produced tactical adaptations that responded only vaguely to developments in contract law. Although contract as a literary device may appear in any genre, it has particular and abiding affinities with comedy. In Shakespeare, contract tends to appear in close association with two other literary forms, riddle and prophecy, and in conjunction with these functions as a tool to think about the management of the predictability and intelligibility of future contingencies.
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Sonja, Meier. Ch.11 Plurality of obligors and of obligees, s.2: Plurality of obligees, Art.11.2.1. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0228.
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This commentary analyses Article 11.2.1 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning definitions related to the plurality of obligees. Art 11.2.1 defines three types of plurality of obligees which the parties can stipulate in their contract: separate claims, joint and several claims, and joint claims. There is no rule as to when one of these claims arises, and no default rule. This commentary discusses two types of plurality of obligees not mentioned in Art 11.2.1, namely communal claims and common law joint claims. It also considers the presumption of separate claims, noting that the PICC do not provide for any default rule for cases where the terms of the contract are silent on this matter.
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Marcus, Smith, and Leslie Nico. Part IV Intangible Property that is Incapable of Transfer, 21 Assignment of Burdens. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198748434.003.0021.
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This chapter studies the assignment of burdens. In general, while a benefit or right under a contract is assignable, a burden or obligation under that same contract will not be assignable. The rule that burdens cannot be assigned needs to be considered in the context of those choses—notably contracts, but also leases and shares—that contain both benefits and burdens. However, there are a number of limited exceptions to the general rule. These include the unpaid vendor's lien over land; the rule that the burden of a restrictive covenant over freehold land can bind successive owners of that land; the transfer of obligations contained in leases through successive landlords and tenants; the assumption of obligations by a new shareholder on the transfer of the legal title in the shares to him; and the doctrine of ‘conditional benefits’ which applies to the assignment of rights under a contract.
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Francesca, Mazza. Ch.9 Assignment of rights, transfer of obligations, assignment of contracts, s.3: Assignment of contracts, Art.9.3.3. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0195.
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This commentary analyses Article 9.3.3 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the obligee's consent as a requirement for the assignment of contracts. As the assignment of a contract involves the transfer of obligations, it is necessary for the other party, the obligee of these obligations, to give its consent. The rationale for this rule is that the change of obligor may considerably affect the obligee's position. Therefore, the change may not be imposed on the other party. The other party must give its consent to the transfer of the contract. Furthermore, the obligee must also give its consent that the transfer occurs with reference to the application of the PICC. Lack of consent by the other party, whether because it has been refused or not solicited, makes the transfer of contract ineffective. Until the other party has given its consent or refused it, the agreement between the assignor and the assignee is not fully effective and can be said to be ‘in suspense’ or ‘in abeyance’.
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Stanimir A, Alexandrov. Part III Guide to Key Jurisdictional Issues, 15 Breach of Treaty Claims and Breach of Contract Claims: When Can an International Tribunal Exercise Jurisdiction? Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198758082.003.0015.
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Foreign investors invest in a host state via a contract between the foreign investor and an entity or instrumentality of the host state. Disputes between investors and host states under investment treaties often arise out of breaches of these contracts. In such cases, international tribunals must assess whether the asserted claims rise to the level of a breach of a state’s international obligations. More than a decade ago, the decisions on jurisdiction in SGS v Pakistan and SGS v Philippines brought this issue into the spotlight. These decisions, often perceived as contradictory, deal with the jurisdiction of treaty-based tribunals over claims for a breach of contract. This chapter reviews the seeming confusion regarding the interplay between treaty claims and contract claims and discusses how to dispel any confusion.
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Stefan, Vogenauer. Ch.4 Interpretation, Introduction to Chapter 4 of the PICC. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0075.
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Chapter 4 of the UNIDROIT Principles of International Commercial Contracts (PICC) deals with the interpretation of contracts, unilateral statements, and other conduct of the parties. The concept of contractual interpretation underlying the PICC is that of ‘determining the meaning to be attached to the terms of a contract’. In the context of dispute resolution, interpretation is concerned with establishing whether a given set of facts falls within the scope of application of a contractual term and therefore triggers the legal consequences spelt out in this term. The PICC seek to distinguish the process of interpretation from that of supplying omitted contractual terms and from that of implying obligations, although there is no clear line between these three mechanisms.
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Stefan, Vogenauer. Ch.4 Interpretation, Art.4.7. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0082.
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This commentary focuses on Article 4.7 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning interpretation of contracts drawn up in two or more language versions. There has to be a discrepancy between the different versions; that is, the meaning of a clause in one version deviates from the meaning in the other version or versions. Furthermore, it must be impossible to remove this difference of meaning by applying the other rules of contractual interpretation. According to Art 4.7, where a contract is drawn up in two or more versions which are equally authoritative, there is, in case of discrepancy between the versions, a preference for the interpretation according to a version in which the contract was originally drawn up. The burden of proof lies in the party wishing to rely on a particular language version.
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Richard, Calnan. Part IV Adding Words, 8 Principle 8: Implied Terms. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780198792307.003.0009.
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This chapter considers the circumstances in which the courts will imply terms into contracts. Words are implied into a contract if the parties must objectively have intended them. This will be the case either if they are so obvious that there was no need to express them, or if they are necessary to make the contract work in a business context. The chapter discusses the controversies which have arisen in recent years concerning the scope of a court’s ability to imply terms into a contract. It discusses the tests for the implication of terms and gives practical examples of when they have been applied.
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Henry G, Burnett, and Bret Louis-Alexis. Part II Key Risks and Disputes Associated with International Mining Projects, 9 Mining Development, Operating, and Commercial Disputes. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780198757641.003.0009.
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This chapter examines the most common types of disputes arising in connection with the development and operations of mining projects. These can be classified into two main categories: development and operating disputes, and offtake and sales disputes. Development and operating disputes include: disputes that may arise when the project owner and external mining contractor fail to agree on rates; hardrock drilling disputes arising from various geographic, geologic, and practical factors; and construction contract disputes. Offtake agreements or offtake contracts refer to all types of agreements for the sale and purchase of metals/minerals, including spot sales, metal streaming agreements, and in-kind mineral royalties. The most common types of disputes involve four essential aspects of the sale of metals and minerals: the quantity to be delivered; the quality of the metals/minerals delivered; the conditions of the delivery; and the payment of a price by the buyer.
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Eisenberg, Melvin A. Introduction to Mistake in Contract Law. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780199731404.003.0039.
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Chapter 39 concerns the effect of mistake in contract law. Traditionally, contract law has recognized four categories of mistake: misunderstanding, unilateral mistake, mutual mistake, and mistranscription. The names of these categories fail to describe contractual mistakes according to their functional characteristics, and many of the rules that govern these categories turn on elements that are of only limited functional significance, easy to manipulate, or both. The first step in developing a functional analysis of mistake is to analyze contractual mistakes on the basis of their character. The second step is to analyze the rules that should govern each type of mistake based on policy, morality, and experience. This chapter sets out the general parameter of these analyses.
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Stefan, Vogenauer. Ch.5 Content, third party rights and conditions, s.1: Content, Art.5.1.2. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0085.
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This commentary focuses on Article 5.1.2 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning implied contractual obligations. According to Art 5.1.2, implied obligations stem from the nature and purpose of the contract as well as practices established between the parties and usages. Arts 5.1.1 and 5.1.2 cover the same ground as Art 4.8. It does not matter which of these provisions is applied.
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Stefan, Vogenauer. Ch.5 Content, third party rights and conditions, s.2: Third party rights, Art.5.2.1. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0094.
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This commentary focuses on Article 5.2.1 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning contracts in favour of third parties. Art 5.2.1 stipulates that the parties to a contract can validly agree to benefit a third party, and that it is possible that the third party acquires a right from such an agreement. It also introduces a particular terminology for denominating the parties in the triangular relationship. There are two original parties (‘the parties’) whose agreement contains the promise of one of them (‘the promisor’) to the other (‘the promisee’) to benefit a third person (‘a third party’). This commentary discusses the ‘relativity’ or ‘privity’ of contracts, validity of contracts in favour of third parties, power of the promisor and the promisee to create third party rights, content of the beneficiary's right, rights of the promisee, and implications of invalidity of contracts for third parties.
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Briggs, Adrian, and Andrew Burrows. Formation and Third Party Rights in the Myanmar Law of Contract. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198808114.003.0022.
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This chapter discusses the Myanmar law on contract formation and third party beneficiaries. The Myanmar law of contract largely comprises the Myanmar Contract Act 1872, which is identical to the Indian Contract Act 1872 subject to some factual changes in the illustrations). It was drafted by English lawyers and appears to be a statutory codification of the English common law of contract. In addition, section 13(3) of the Burma Laws Act 1898 allows courts to fill gaps in the written laws by the application of the principles of justice, equity, and good conscience. The first requirement for a contract is a proposal which may be revoked at any time prior to its acceptance. Second, there must be acceptance of the proposal, either by expression of agreement (the postal acceptance rule applies unless otherwise specified) or by performance. Third, consideration is necessary to convert an agreement into an enforceable contract if the parties are competent and the agreement is lawful. Myanmar law does not adopt the view that only the parties can enforce a contract—third parties are free to enforce contracts made for their benefit.
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Michael, Bridge. The International Sale of Goods. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780198792703.001.0001.
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The fourth edition of this text on all aspects of international trade law has been updated to incorporate and analyse the major recent developments, both in English law and contracts under the United Nations Convention on Contracts for the International Sale of Goods (CISG). As well as contract law, the book also covers property matters and addresses those issues which arise from the use of documents of title, such as marine bills of lading. There is extensive treatment of the rights and duties of both the buyer and the seller, and sale contracts are considered alongside other contracts such as charter parties and letter of credit contracts. The CISG material has been significantly developed in this fourth edition and there is more extensive treatment of such matters as remedies, passing of property, standard form contracts, and the international dealing of commodities. The major developments in the case law are examined, most notably further developments on interpretation and implied terms in the Supreme Court, bunkers litigation, and the implications for the compensatory principle following the Supreme Court decision in Bunge SA v Nidera NV (2015).
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Peter, Huber. Ch.3 Validity, s.2: Grounds for avoidance, Art.3.2.11. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0065.
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This commentary focuses on Article 3.2.11 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning notice of avoidance. Under Art 3.2.11, the right of a party to avoid the contract is exercised by notice to the other party. The purpose of Art 3.2.11 is twofold. First, it makes clear that avoidance of the contract for mistake, fraud or threat will not operate ipso facto, but will have to be declared by the mistaken (defrauded, or threatened) party. Secondly, it makes clear that there is no need for court intervention and that the mistaken (defrauded, or threatened) party may avoid the contract simply by making a unilateral declaration. This commentary discusses the scope of application of Art 3.2.11, how to give notice to the other party, and whether the other party has a duty to reply to the notice.
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Ewan, McKendrick. Ch.6 Performance, s.2: Hardship, Art.6.2.2. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0125.
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This commentary analyses Article 6.2.2 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the definition of hardship. The definition of hardship can be broken down into two elements. The first consists of the opening lines of Art 6.2.2, in particular the phrase ‘fundamentally alters the equilibrium of the contract’. The second consists of the four matters referred to in Art 6.2.2(a)–(d). According to Art 6.2.2, there is hardship where the occurrence of events fundamentally alters the equilibrium of the contract either because the cost of a party's performance has increased or because the value of the performance a party receives has diminished. Art 6.2.2(d) deals with the assumption of risk.
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Ewan, McKendrick. Ch.7 Non-performance, s.4: Damages, Art.7.4.1. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0150.
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This commentary analyses Article 7.4.1 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the right of the aggrieved party to recover damages. According to Art 7.4.1, any non-performance gives the aggrieved party a right to damages either exclusively or in conjunction with any other remedies except where the non-performance is excused under these Principles. The right of the aggrieved party to recover damages depends upon proof of non-performance by the other party to the contract. There is no requirement that the aggrieved party prove that the non-performance was attributable to the fault of the other party to the contract. Proof of fault may be relevant when deciding whether or not there has been non-performance, but fault is not the touchstone of liability in damages. Rather, the non-performance is what triggers liability in damages. The burden of proof is upon the aggrieved party to prove the non-performance of the defendant, and upon the defendant to prove that its non-performance was excused.
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Gerard, McMeel. Part III Particular Contractual Provisions, 21 Exemption Clauses and Unfair Contract Terms. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780198755166.003.0021.
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This chapter focuses on exemption clauses. Particular attention is placed on the detailed rules of construction still applicable to exemption clauses. Moreover, the chapter considers the statutory interventions in this field in the shape of the Unfair Contract Terms Act 1977 and Part 2 of the Consumer Rights Act 2015 (superseding the Unfair Terms in Consumer Contracts Regulations 1999). Since these statutory interventions there has been a marked tendency to construe exemption clauses in commercial agreements in a more realistic way. This is especially prevalent where the parties are of relatively equal bargaining power and where the clause is perceived as giving effect to a sensible allocation of risk.
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Mak, Vanessa. Legal Pluralism in European Contract Law. Oxford University Press, 2020. http://dx.doi.org/10.1093/oso/9780198854487.001.0001.
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The relevance of contracting and self-regulation in consumer markets has increased rapidly in recent years, in particular in the platform economy. Online platforms provide opportunities for businesses and consumers to connect with strangers, often across borders, trading products, and services. In this new economy, platform operators create, apply, and enforce their own rules in their contractual relationships with users. This book examines the substance of these rules and the space for private governance beyond the reach of state regulation. It explores recent developments in lawmaking ‘beyond the state’ with case studies focusing on companies such as Airbnb and Amazon. The book asks how common values and objectives of EU law, such as consumer protection and contractual fairness, can be safeguarded when lawmaking shifts to a space outside the reach of state law.
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Hesselink, Martijn W. Justifying Contract in Europe. Oxford University Press, 2021. http://dx.doi.org/10.1093/oso/9780192843654.001.0001.
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This book explores the normative foundations of European contract law. It addresses fundamental political questions on contract law in Europe from the perspective of leading contemporary political theories. Does the law of contract need a democratic basis? To what extent should it be Europeanized? What justifies the binding force of contract and the main remedies for breach? When should weaker parties be protected? Should market transactions be held legally void when they are immoral? Which rules of contract law should the parties be free to opt out of? Adopting a critical lens, the book interrogates utilitarian, liberal-egalitarian, libertarian, communitarian, civic republican, and discourse-theoretical political philosophies and analyses the answers they provide to these questions. It also situates these theoretical debates within the context of the political landscape of European contract law and the divergent views expressed by law makers, legal academics, and other stakeholders. The book moves beyond the acquis positivism, market reductionism, and private law essentialism that tend to dominate these conversations, and foregrounds normative complexity. It explores the principles and values behind various arguments used in the debates on European contract law and its future to highlight the normative stakes involved in the practical question of what we, as a society, should do about contract law in Europe. In so doing, it opens up democratic space for the consideration of alternative futures for contract law in the European Union, and for better justifications for those parts of the EU contract law acquis we wish to retain.
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Macdonald, Elizabeth, and Ruth Atkins. Koffman & Macdonald's Law of Contract. Oxford University Press, 2018. http://dx.doi.org/10.1093/he/9780198752844.001.0001.
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Koffman & Macdonald’s Law of Contract provides a clear, academically rigorous, account of the contract law which is written in a style which makes it highly accessible to university students new to legal study. It works from extensive consideration of the significant cases, to provide students with a firm grounding in the way the common law functions. There are chapters on formation, certainty, consideration, promissory estoppel, intention to create legal relations, express and implied terms, classification of terms, the Unfair Contract Terms Act 1977, Unfair Terms in Consumer Contracts, mistake, misrepresentation, duress and undue influence, illegality, unconscionability, privity, performance and breach, frustration, damages, and specific enforcement, as well as companion website chapters on capacity and an outline of the law of restitution. Many new cases and legislative developments are covered in the ninth edition, such as Armchair Answercall Ltd v People in Mind Ltd, Blue v Ashley, Cavendish Square Holding BV v Talal El Makdessi, ParkingEye Ltd v Beavis,Globalia Business Travel S.A.U. (formerly TravelPlan S.A.U.) of Spain v Fulton Shipping Inc of Panama, Marks and Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd,MWB Business Exchange Centres Ltd v Rock Advertising Ltd, Patel v Mirza, Phones 4U Ltd (In Administration) v EE Ltd. This edition has been updated to include major legislative developments including the Consumer Rights Act 2015, which now encompasses, and makes some changes to, the unfair terms regime, which was previously provided by the Unfair Terms in Consumer Contracts Regulations 1999, as well as removing, and taking on board, the consumer elements of the Unfair Contract Terms Act 1977.
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Michael, Moser, and Bao Chiann. 10 Complex Arbitrations (Articles 27–29). Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780198712251.003.0010.
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This chapter considers three of HKIAC’s mechanisms for dealing with complex arbitrations: the joinder of additional parties, the consolidation of two or more arbitrations, and the commencement of a single arbitration under multiple contracts. It emphasizes the need for institutional rules to include mechanisms for administering multi-party and multi-contract cases. Indeed, the desire to streamline procedure in multi-party/multi-contract situations was recognized as a priority during the revisions to the 2008 HKIAC Rules. HKIAC was keen to ensure that it had appropriate powers to supervise and progress such proceedings and to reduce the scope for parties to use these—now common—complexities to delay or obstruct the arbitral process. The resulting provisions are key features of the HKIAC Rules and a principal reason for parties to select the HKIAC Rules in their agreements.
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Nuggehalli, Nigam. Contract Formation in India: Law and Practice. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198808114.003.0004.
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This chapter examines the law on the formation of contracts in India. The Indian Contract Act 1872 is significant as it is the first successful attempt to codify the English common law of contract in the British Commonwealth. The Act was then transplanted to other jurisdictions in the British Commonwealth. The preamble of the Act makes it clear that it is intended to ‘define and amend certain parts of the law relating to contract’; therefore the Act does not exhaustively set out the rules of contract law. Interesting issues follow relating to the precise ambit of the Act, and the areas where there continues to be room for common law development, whether novel and unique to India, or adopted into Indian law after considering the common law developments in other jurisdictions. One issue relates to the postal acceptance rule which does not state that it is an exception to the instantaneous communication rule. Another issue relates to whether the Act permits the accommodation of a subsequent development in the English common law.
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Gerard, McMeel. Part II Related Doctrines, 14 Formation and Certainty. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780198755166.003.0014.
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This chapter surveys some modern approaches to the formation of contracts which illustrate the close similarity in the principles used in some formation cases and construction cases. Given that many formation cases turn upon the meaning and effect of language of correspondence, other documentary exchanges, so-called ‘letters of comfort’, and ‘letters of intent’, it is unsurprising that the techniques are closely related. In construing documentary exchanges to ascertain whether negotiations have crystallized into a binding contract, the principles of objectivity and contextualism are in evidence. The approach to background is wider as there is no restriction on the evidence which the court may consider. Whilst axiomatically the exercise in interpretation is one of ascertaining the content of contractual obligations, a similar technique is deployed where the question relates to the formation of a contract.
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Jansen, Nils, and Reinhard Zimmermann. Commentaries on European Contract Laws. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198790693.001.0001.
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The book provides rule-by-rule commentaries on European contract law (general contract law, consumer contract law, the law of sale and related services), dealing with its modern manifestations as well as its historical and comparative foundations. After the collapse of the European Commission's plans to codify European contract law it is timely to reflect on what has been achieved over the past three to four decades, and for an assessment of the current situation. In particular, the production of a bewildering number of reference texts has contributed to a complex picture of European contract laws rather than a European contract law. The present book adopts a broad perspective and an integrative approach. All relevant reference texts (from the CISG to the Draft Common European Sales Law) are critically examined and compared with each other. As far as the acquis commun (ie the traditional private law as laid down in the national codifications) is concerned, the Principles of European Contract Law have been chosen as a point of departure. The rules contained in that document have, however, been complemented with some chapters, sections, and individual provisions drawn from other sources, primarily in order to account for the quickly growing acquis communautaire in the field of consumer contract law. In addition, the book ties the discussion concerning the reference texts back to the pertinent historical and comparative background; and it thus investigates whether, and to what extent, these texts can be taken to be genuinely European in nature, ie to constitute a manifestation of a common core of European contract law. Where this is not the case, the question is asked whether, and for what reasons, they should be seen as points of departure for the further development of European contract law.
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Loukas, Mistelis. Part II Investor-State Arbitration in the Energy Sector, 7 Contractual Mechanisms for Stability in Energy Contracts. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198805786.003.0007.
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This chapter discusses the interpretation and enforceability of various contractual means typically used in energy contracts to ensure a sustainable relationship between the contracting parties. These are the stabilization or freezing clauses and the economic equilibrium clauses together with the variants of adjustment, force majeure, and hardship clauses. These clauses are discussed from a historical and comparative viewpoint. In addition, while a dispute is occurring, it is essential to preserve the contract and relationship between the parties, and thus the chapter also looks at how multi-tiered dispute resolution clauses contribute to achieving this objective. The chapter then concludes with an outlook into current trends and future perspectives.
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Okino, Masami. Contracts for the Benefit of Third Parties in Japan. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198808114.003.0013.
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This chapter discusses the law on third party beneficiaries in Japan; mostly characterized by adherence to the German model that still bears an imprint on Japanese contract law. Thus, there is neither a doctrine of consideration nor any other justification for a general doctrine of privity, and contracts for the benefit of third parties are generally enforceable as a matter of course. Whether an enforceable right on the part of a third party is created is simply a matter of interpretation of the contract which is always made on a case-by-case analysis but there are a number of typical scenarios where the courts normally find the existence (or non-existence) of a contract for the benefit of a third party. In the recent debate on reform of Japanese contract law, wide-ranging suggestions were made for revision of the provisions on contracts for the benefit of third parties in the Japanese Civil Code. However, it turned out that reform in this area was confined to a very limited codification of established case law.
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Gerard, McMeel. Part II Related Doctrines, 17 Rectification and Correcting Mistakes through Construction. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780198755166.003.0017.
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This chapter concerns the equitable remedy of rectification of documents. This remedy is one which rewrites or amends documents where there is a mismatch between the parties' actual agreement and the instrument which purports to record it. The ultimate rationale of this equitable supplement to the common law is the strongly objective approach which the law takes to the formation of contracts, and the interpretation of agreements which are reduced to writing. The primacy which English law gives to the documentary contract, coupled with the strongly objective interpretative principle, are celebrated as one of the great strengths of English contract and commercial law, promoting the virtues of certainty and predictability. Accordingly, rectification of documents to accord with the parties' mistaken belief that the written word corresponds to their actual agreement acts as a subjective qualification or ‘safety valve’ to the objective principle to meet the justice of such cases.