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1
Lith, Hélène van. International jurisdiction and commercial litigation: Uniform rules for contract disputes. The Hague, The Netherlands: TMC Asser Press, 2009.
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2
International jurisdiction and commercial litigation: Uniform rules for contract disputes. The Hague, The Netherlands: TMC Asser Press, 2009.
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3
He tong xiao li bi jiao yan jiu: COMPARATIVE STUDIES ON THE VALIDITY OF THE CONTRACT. Beijing Shi: Fa lü chu ban she, 2013.
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4
1853-1902, Wald Gustavus Henry, and Williston Samuel 1861-1963, eds. Principles of contract at law and in equity: A treatise on the general principles concerning the validity of agreements in the law of England and America. 3rd ed. Littleton, Colo: F.B. Rothman, 1988.
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5
1977-, Dieckmann Andreas, ed. Selbstregulierung im Privatrecht. Tübingen: Mohr Siebeck, 2010.
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6
Il contratto in trasformazione: Invalidità e inefficacia nella transizione al diritto europeo. Milano: Giuffrè, 2011.
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7
Lorenzetti, Ricardo Luis. La emergencia económica y los contratos. 2nd ed. Buenos Aires: Rubinzal-Culzoni, 2002.
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8
Ghestin, Jacques. Cause de l'engagement et validité du contrat. Paris: L.G.D.J., 2006.
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9
Inzitari, Bruno. Commissioni e spese nei contratti bancari: Validità, usura, tasso-soglia. [Padova]: CEDAM, 2010.
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10
Belbin, Stephen. The validity of sampling. London: Chelsea College of Art and Design, 2002.
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12
Ferry, Claude. La validité des contrats en droit international privé: France/U.S.A. Paris: Libr. générale de droit et de jurisprudence, 1989.
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14
Stephen, Woolman, ed. Contract. 2nd ed. Edinburgh: W. Green/Sweet & Maxwell, 1994.
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15
Ingeborg, Schwenzer, Hachem Pascal, and Kee Christopher. Part IV Validity, 16 Capacity to Contract. Oxford University Press, 2012. http://dx.doi.org/10.1093/law/9780199572984.003.0016.
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16
Peter, Huber. Ch.3 Validity, s.2: Grounds for avoidance, Art.3.2.9. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0063.
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This commentary focuses on Article 3.2.9 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning confirmation. Under Art 3.2.9, if the party entitled to avoid the contract expressly or impliedly confirms the contract after the period of time for giving notice of avoidance has begun to run, avoidance of the contract is excluded. Art 3.2.9 serves two purposes. On the one hand, it restricts the right to avoid the contract in a certain type of situation where the avoidance would be contrary to good faith. On the other hand, it emphasizes the fact that the party entitled to avoid the contract under the preceding provisions is not obliged to do so, but may also elect to treat the contract as valid. This commentary discusses the requirements for confirmation, whether express or implied, and the ground for avoidance, time for confirmation, and the effect of confirmation on the right to avoid the contract.
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Peter, Huber. Ch.3 Validity, s.2: Grounds for avoidance, Art.3.2.10. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0064.
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This commentary focuses on Article 3.2.10 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the loss of right to avoid a contract. Where one party is entitled to avoid the contract for mistake, Art 3.2.10 aims at giving the other party the chance to save the contract by assenting to the contract in the way the mistaken party understood it. The justification for this rule is that it would be contrary to good faith if the mistaken party were able to insist on the avoidance of the contract for mistake even though the contents of the contract are adapted to this party's mistaken conceptions. In other words, the rules on mistake are meant to protect the mistaken party from the consequences of its mistake, but not to grant it a right to ‘repent’. This commentary discusses the requirements for the loss of right to avoid a contract, along with its consequences.
18
Gilles, Cuniberti. Ch.3 Validity, s.3: Illegality, Art.3.3.1. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0073.
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This commentary focuses on Article 3.3.1 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning contracts that infringe mandatory rules. Art 3.3.1 governs a specific aspect of the mandatory rules regime, namely the effect that their infringement produces on a contract. The relevant mandatory rules, however, are not set forth in the PICC; rather, the PICC defer to the binding norms from which such rules originate. Thus, the definition of what constitutes illegal conduct is to be found in those binding norms. Similarly, Art 3.3.1 defers to Art 1.4 PICC with respect to the applicability of any mandatory rule, which, in turn, defers to the relevant rules of private international law. This commentary discusses the scope of application of Art 3.3.1, with particular emphasis on the effects of mandatory rules whether or not expressly prescribed, effects upon the contract and remedies under the contract, and the importance of mandatory rules.
19
Kötz, Hein. European Contract Law: Volume 1: Formation, Validity, Agency, Third Parties and Assignment (European Contract Law). Oxford University Press, USA, 1998.
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20
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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Peter, Huber. Ch.3 Validity, s.1: General provisions, Art.3.1.2. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0052.
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This commentary focuses on Article 3.1.2 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the validity of a mere agreement. Art 3.1.2 stipulates that a contract is concluded, modified or terminated by the simple agreement of the parties, without any further requirement. The prime purpose of Art 3.1.2 is to exclude any further requirements that the applicable domestic law might set up in that respect and to create legal certainty. This commentary discusses the impact of the doctrine of cause on the consideration and enforceability of the contract and on cases that would be dealt with under the label of immorality or illegality. It also considers the exclusion of the doctrine of real contract.
22
Jacques, du Plessis. Ch.3 Validity, s.2: Grounds for avoidance, Art.3.2.7. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0061.
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This commentary focuses on Article 3.2.7 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning gross disparity. A basic tenet of the PICC is that the parties should be free to enter into a contract and to determine its content. Under Art 3.2.7, however, a party may avoid the contract or an individual term of it if at the time of the conclusion of the contract, the contract or term unjustifiably gave the other party an excessive advantage. This commentary discusses the background and general purpose of Art 3.2.7, the requirements for gross disparity, the consequences of gross disparity, gross disparity involving third parties, and exclusion of liability for gross disparity.
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Peter, Huber. Ch.3 Validity, s.2: Grounds for avoidance, Art.3.2.13. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0067.
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This commentary focuses on Article 3.2.13 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning partial avoidance of a contract. Art 3.2.13 requires that the ground of avoidance affect only individual terms of the contract. While this scenario is easily conceivable with regard to cases of mistake, fraud or gross disparity, it will only rarely happen that a threat can be limited to certain parts of the contract. Cases that satisfy this requirement generally fall into one of two categories. The first category consists of the ‘terms’ cases, while the second category consists of the ‘items’ cases. This commentary discusses partial avoidance as general rule, avoidance of entire contract as exception, and how partial avoidance may lead to restitution.
24
Jacques, du Plessis. Ch.3 Validity, s.2: Grounds for avoidance, Art.3.2.8. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0062.
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This commentary focuses on Article 3.2.8 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning third persons. Chapter 3 of the PICC generally deals with the situation where one party to the contract uses an improper method to obtain consent. However, it is quite conceivable that a third person who is nor a party to the contract could influence its conclusion in an improper manner. The question then arises whether avoidance is still possible. The solution of Art 3.2.8 is essentially to allow the party whose consent has been obtained in an improper manner to avoid the contract if the defect can be attributed to the other party to the contract. Art 3.2.8 treats fraud, threat, or gross disparity as equally serious grounds for invalidity. This commentary discusses the general purpose and application of Art 3.2.8 and considers other three-party situations where the victim of a threat by a third party could avoid the contract.
25
Jacques, du Plessis. Ch.3 Validity, s.2: Grounds for avoidance, Art.3.2.15. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0069.
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This commentary focuses on Article 3.2.15 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the duties of restitution that arise after avoidance of the whole or part of a contract. On avoidance either party may claim restitution of whatever it has supplied under the contract, or the part of it avoided, provided that such party concurrently makes restitution of whatever it has received under the contract, or the part of it avoided. This commentary discusses the content of the duty to restore, the consequences of restitution being impossible or inappropriate, application of the general rules relating to obligations to the restitutionary obligations created by Art 3.2.15, and burden of proof for the requirements of a restitutionary claim arising after avoidance.
26
Jacques, du Plessis. Ch.3 Validity, s.2: Grounds for avoidance, Art.3.2.6. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0060.
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This commentary focuses on Article 3.2.6 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning threat as a reason for invalidity. Under Art 3.2.6, a party may avoid the contract when it has been led to conclude the contract by the other party's unjustified threat which, having regard to the circumstances, is so imminent and serious as to leave the first party no reasonable alternative. In particular, a threat is unjustified if the act or omission with which a party has been threatened is wrongful in itself; or it is wrongful to use it as a means to obtain the conclusion of the contract. This commentary discusses the requirements for the threat, the consequences of the threat, threats involving third parties, and exclusion of liability for threat.
27
Jacques, du Plessis. Ch.3 Validity, s.2: Grounds for avoidance, Art.3.2.14. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0068.
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This commentary focuses on Article 3.2.14 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the retroactive effect of avoidance of a contract. Under Art 3.2.14, avoidance takes effect retroactively; that is, the contract is regarded as never having existed, and not merely as non-existent from the moment of avoidance. Unfulfilled obligations fall away and performances made in fulfilment of obligations have to be returned, according to Art 3.2.15. However, this is only a general proposition. Where avoidance only relates to certain terms of the contract, the other terms, whether fulfilled or unfulfilled, are left undisturbed, unless it would be unreasonable to do so. This commentary discusses the effect of retroactive avoidance in general, as well as its effect on contractual obligations, including unfulfilled and unaffected obligations and fulfilled obligations.
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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.
29
Peter, Huber. Ch.3 Validity, s.2: Grounds for avoidance, Art.3.2.12. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0066.
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This commentary focuses on Article 3.2.12 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning time limits for exercising the right to avoid the contract. Art 3.2.12 stipulates that notice of avoidance shall be given within a reasonable time, having regard to the circumstances, after the avoiding party knew or could not have been unaware of the relevant facts or became capable of acting freely. Where an individual term of the contract may be avoided by a party under Article 3.2.7, the period of time for giving notice of avoidance begins to run when that term is asserted by the other party. In relying on a ‘reasonable time’ period rather than setting out a clearly defined period of time (for example, two years after conclusion of the contract), Art 3.2.12 follows the common law model rather than the typical civil law solution. This commentary discusses the commencement and duration of ‘reasonable time’ period as well as the consequences of failure to avoid a contract within time limit.
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Peter, Huber. Ch.3 Validity, s.2: Grounds for avoidance, Art.3.2.16. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0070.
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This commentary focuses on Article 3.2.16 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning damages. Art 3.2.16 adopts a ‘neutral’ approach to the issue of damages by simply stating under which conditions a claim for damages may arise and what kinds of damages are recoverable. It does not distinguish between the case where the avoiding party seeks damages and the inverse case where the other party seeks damages. Irrespective of whether or not the contract has been avoided, the party who knew or ought to have known of the ground for avoidance is liable for damages so as to put the other party in the same position in which it would have been if it had not concluded the contract. This commentary discusses the liability of the party entitled to avoid and of the other party in cases where contract is avoided and not avoided, along with the allocation of the burden of proof.
31
Jacques, du Plessis. Ch.3 Validity, s.2: Grounds for avoidance, Art.3.2.5. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0059.
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This commentary focuses on Article 3.2.5 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning fraud. In line with some major jurisdictions and international instruments, the PICC draw a distinction between fraud and mistake as grounds for avoidance. Art 3.2.5 stipulates that a party may avoid the contract when it has been led to conclude the contract by the other party's fraudulent representation, including language or practices, or fraudulent non-disclosure of circumstances which, according to reasonable commercial standards of fair dealing, the latter party should have disclosed. This commentary discusses the relationship between fraud and mistake, the requirements for fraud, the consequences of fraud, fraud involving third parties, and exclusion of liability for fraud.
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Peter, Huber. Ch.3 Validity, s.2: Grounds for avoidance, Art.3.2.17. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0071.
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This commentary focuses on Article 3.2.17 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning unilateral declarations. Art 3.2.17 states that Chapter 3 of the PICC not only applies to the formation of the contract strictu sensu (that is, offer and acceptance), but also to any communication of intention that one party addresses to the other party. Such communications of intention may be made before or after the conclusion of the contract. Examples for the first group of communications are, according to the Official Comment, bids for investment or bids for work, for the delivery of goods, or for the provision of services. Examples for the latter group are notices, declarations, demands, or requests of any type.
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Gilles, Cuniberti. Ch.3 Validity, s.3: Illegality, Art.3.3.2. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0074.
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This commentary focuses on Article 3.3.2 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the criteria for granting restitution as well as the rules governing restitution. According to Art 3.3.2, where there has been performance under a contract infringing a mandatory rule under Article 3.3.1, restitution may be granted where this would be reasonable in the circumstances. In determining what is reasonable, regard is to be had, with the appropriate adaptations, to the criteria referred to in Article 3.3.1(3). If restitution is granted, the rules set out in Article 3.2.15 apply with appropriate adaptations. The distinction introduced by Art 3.3.1 between mandatory rules that expressly prescribe their effects and those that do not is also relevant for Art 3.3.2.
34
The UDRP as contract terms: The validity of ICANN's UDRP under national law. 2001.
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35
Kötz, Hein. European Contract Law. Oxford University Press, 2017. http://dx.doi.org/10.1093/oso/9780198800040.001.0001.
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This new edition of European Contract Law examines the contract rules of several different European jurisdictions, including the most important civilian systems and English common law, while attempting to articulate general principles which are common in all of them. While the first edition was limited to a comparative analysis of the rules on formation and validity of contracts, agency, third party beneficiaries, and assignment, the second edition now also includes contractual remedies and various updates and revisions of the first edition, especially in light of the recent changes to the French Code civil. Furthermore, the book comprises a wealth of translated extracts of legislation, cases, and academic literature, comprehensively covering all aspects of contract law. The book was originally published in German to considerable acclaim. This English edition has been translated by Gill Mertens, building on the work done by the translator of the first edition, Tony Weir. This edition will be invaluable to scholars and practitioners in Europe and beyond.
36
Klausner, Michael. The “Corporate Contract” Today. Edited by Jeffrey N. Gordon and Wolf-Georg Ringe. Oxford University Press, 2016. http://dx.doi.org/10.1093/oxfordhb/9780198743682.013.12.
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This chapter examines the theoretical and empirical validity of the “contractarian” theory of corporate governance Beginning with an overview of the contractarian theory and its conceptualization of the relationship between managers and shareholders of a public company, it explains how the theoretical assumptions of the contractarian theory have turned out to be invalid and how the empirical predictions of the theory have not been borne out. The process by which “corporate contracts” develop do not fit the neoclassical model of atomistic competition. As a result, the customization and innovation that the contractarian theory predicts do not occur—either at the IPO stage or at the “midstream” stage when companies are publicly traded.
37
Peter, Huber. Ch.3 Validity, s.2: Grounds for avoidance, Art.3.2.3. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0057.
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This commentary focuses on Article 3.2.3 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning an error that occurs in the expression or transmission of a declaration. Art 3.2.3 serves two purposes. The first is to attribute errors in expression and transmission to the party from which the declaration emanated. This is of particular relevance for errors in transmission, as in this case a third party (the transmitter) may commit the mistake which will then, under Art 3.2.3, be attributed to the party making the declaration. The second purpose is to protect the mistaken party in those cases where, as a result of the application of the rules on contractual interpretation, the contract is concluded on terms that the mistaken party did not intend. This commentary discusses the general principles of the right to avoid the contract, specific fact patterns, and burden of proof, along with the liability of both parties for damages under Art 3.2.16.
38
Yamashita, Yoshikazu. Formation of Contract in Japan. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198808114.003.0012.
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This chapter provides insights into the law on contract formation in Japan. The Japanese approach is traditional, requiring an agreement which, in turn, normally requires an offer and matching acceptance, according to the mirror image rule. Once offers become effective, the 1898 Japanese Civil Code severely restricts their revocability. This is in tune with the mostly German origins of Japanese contract law. However, the drafters of the Code deliberately followed the common law in one respect: the offeree’s acceptance becomes effective as soon as it is dispatched. This is highly controversial and in 2001 was abolished for acceptances by electronic means. Ongoing major reform of Japanese contract law will probably extend this solution to all contracts. Japanese law has no doctrine of consideration and has traditionally eschewed formal requirements as a prerequisite for the validity or enforceability of contracts. More recently, formalities have been introduced, first, for certain consumer contracts, then for contracts of suretyship. A particular feature of Japanese law pertaining to contract formation is the strong duty to negotiate in good faith.
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Peter, Huber. Ch.3 Validity, s.2: Grounds for avoidance, Art.3.2.4. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0058.
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This commentary focuses on Article 3.2.4 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning remedies for non-performance. Art 3.2.4 solves the notorious conflict between the rules on mistake and the rules on non-performance in favour of the latter. It stipulates that a party is not entitled to avoid the contract on the ground of mistake if the circumstances on which that party relies afford, or could have afforded, a remedy for non-performance. This commentary discusses the requirements for exclusion of the right of avoidance for mistake, consequences of non-performance, and burden of proof relating to non-performance.
40
Peter, Huber. Ch.3 Validity, Introduction to Chapter 3 of the PICC. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0050.
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Chapter 3 deals with the validity of a contract governed by the UNIDROIT Principles of International Commercial Contracts (PICC). A number of provisions have been amended, introduced, or repositioned in line with the 2010 version of the PICC. The chapter is now subdivided into three Sections. The first Section defines the concept of validity and sets out several rules that distinguish the concept of validity under the PICC from different concepts in domestic legal systems. The second Section spells out the grounds for avoidance (mistake, fraud, threat, gross disparity) and governs the details of avoidance. The third Section is concerned with the issue of illegality.
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Peter, Huber. Ch.3 Validity, s.2: Grounds for avoidance, Art.3.2.2. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0056.
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This commentary focuses on Article 3.2.2 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning relevant mistake. Art 3.2.2 outlines the specific requirements that must be met if a mistake is relevant under the PICC. There are three different types of requirement: the mistake must reach a certain degree of seriousness, the other party must not be worthy of protection in its reliance on the contract, and the mistaken party must be worthy of protection. This commentary discusses the purpose of Art 3.2.2, the seriousness of mistake, cases where the other party or the mistaken party is not worthy of protection, burden of proof relating to relevant mistake, and consequences of relevant mistake.
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Peter, Huber. Ch.3 Validity, s.2: Grounds for avoidance, Art.3.2.1. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0055.
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This commentary focuses on Article 3.2.1 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the concept of mistake. Art 3.2.1 defines mistake as an erroneous assumption relating to facts or to law existing when the contract was concluded. Based on this general definition of the concept of mistake, Art 3.2.1 does not follow those national legal systems that try to distinguish between different types of error. Instead, it takes a very broad approach to the concept of mistake. Furthermore, even errors in expression or transmission are regarded as mistakes under the PICC. This commentary discusses the purpose of Art 3.2.1, erroneous assumption relating to facts or to law, relevant time, burden of proof, and consequences of a mistake.
43
Yesim, Atamer. Ch.6 Performance, s.1: Performance in general, Art.6.1.17. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0122.
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This commentary analyses Article 6.1.17 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning cases where a request for public permission was filed with the relevant authority but was rejected. According to Art 6.1.17, the refusal of a permission affecting the validity of the contract renders the contract void. If the refusal affects the validity of some terms only, only such terms are void if, having regard to the circumstances, it is reasonable to uphold the remaining contract. Where the refusal of a permission renders the performance of the contract impossible in whole or in part, the rules on non-performance apply. This commentary discusses cases where application for public permission was refused, as well as the effect of refusal on the validity of contract and on performance.
44
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.
45
Stefan, Vogenauer. Ch.5 Content, third party rights and conditions, s.2: Third party rights, Art.5.2.2. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0095.
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This commentary focuses on Article 5.2.2 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the attributes of the third party. The provision aims to strike a balance between commercial flexibility and legal certainty. Art 5.2.2 stipulates that the beneficiary must be identifiable with adequate certainty by the contract but need not be in existence at the time the contract is made. It furthers the autonomy of the original parties by allowing them to accord a right to future persons. A lack of identifiability affects the validity of the contract between the original parties. The burden of proof that the third party is identifiable with adequate certainty by the contract is on the party asserting that a contract in favour of a third party has been validly concluded, usually the beneficiary or the promisee. This commentary discusses the rationale of Article 5.2.2, existence and identity of the third party, and legal capacity of the third party.
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Jacques, du Plessis. Ch.3 Validity, s.1: General provisions, Art.3.1.4. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0054.
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This commentary focuses on Article 3.1.4 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the mandatory character of the provisions of Chapter 3 of the PICC on fraud, threat, gross disparity and illegality. Art 3.1.4 essentially prohibits contractual exclusion of the provisions of Chapter 3 relating to the more ‘serious’ grounds for invalidity, namely fraud, gross disparity, and illegality. It is therefore an exception to Art 1.5, which generally permits exclusion or modification by the parties. The ‘provisions’ referred to in Art 3.1.4 presumably are those relating to remedies. Art 3.1.4 only relates to excluding rights before the moment when such a right arises.
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Peter, Huber. Ch.3 Validity, s.1: General provisions, Art.3.1.1. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0051.
Full textAbstract:
This commentary focuses on Article 3.1.1 concerning the scope of application of the rules on validity in Chapter 3 of the UNIDROIT Principles of International Commercial Contracts (PICC). The PICC do not deal with invalidity arising from lack of capacity. The Official Comment states that the reason for the exclusion of capacity matters lies in their ‘inherent complexity’ and in the fact that they are treated in an ‘extremely diverse manner’ by domestic legal systems. The provision has been changed in the 2010 edition of the PICC. Ar 3.1 of the 2004 edition had also excluded invalidity arising from immorality or illegality from the scope of the PICC. These matters are now governed in Section 3.3 of the 2010 edition.
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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.
Full textAbstract:
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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Stefan, Vogenauer. Ch.2 Formation and authority of agents, Formation IV: Arts 2.1.17–2.1.18—Integrity of writing, Art.2.1.17. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0033.
Full textAbstract:
This commentary focuses on Article 2.1.17 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the merger clauses of a contract. The parties to international commercial transactions often insert a merger clause (‘entire agreement’, ‘integration’, or ‘four corner clause’) in their contracts. For Art 2.1.17 to apply, the contract and the merger clause must be in writing. A contract in writing which contains a clause indicating that the writing completely embodies the terms on which the parties have agreed cannot be contradicted or supplemented by evidence of prior statements or agreements. However, such statements or agreements may be used to interpret the writing. By codifying a rule on their validity and legal effects, the PICC broke fresh ground and served as a model for later projects for the harmonization of contract law.
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HO, Lusina. Contract Formation in Hong Kong. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198808114.003.0010.
Full textAbstract:
This chapter examines the law on contract formation in Hong Kong which is closely modelled on the English common law but adapts the English solutions to the local context if and when required. The test for ascertaining the parties’ meeting of the minds is objective, the agreement (an offer with a matching acceptance) must be certain, complete, and made with the intention to create legal relations—the latter being presumed to be present in a commercial context and absent in a familial or social context. Offers are freely revocable although the reliance of the offeree is protected in exceptional circumstances. Acceptances become effective as soon as they are dispatched. In the ‘battle of forms’ scenario, the Hong Kong courts follow the traditional ‘last-shot’ rule. There is no general duty to negotiate in good faith, and even agreements to negotiate in good faith are normally unenforceable for lack of certainty. As a general rule, contracts can be validly made without adhering to any formal requirement. Online contracts will normally be valid and enforceable; the formation of such contracts is governed by common law as supplemented by legislation.