Research Project: Global Contract Law
Associate Professor Fred Ellinghaus
Email f.ellinghaus@unimelb.edu.au, Tel 8344 6170, Room 855
JD Research Project, Semester 1, 2010
Contracts are the foundation of commerce in nearly all developed economies of the modern world. The international harmonisation of contract law has become an increasingly important concern of legal scholars and other stakeholders. This project has two major aims: it investigates whether a global contract law exists, and whether it would be useful to adopt such a law in the form of a Global Contract Code.
Is there a global contract law?
The first major aim of the project is to investigate whether rules of general contract law can be identified that are common to all major legal systems.
To address this issue, the project engages in a systematic comparison of 5 significant models of contract law - the common law (as applied by Australian courts), and four contract codes, representing four major global regions with divergent legal traditions: China, Europe, USA, and Russia. The codes are:
Contract Law of the People’s Republic of China 1999 (CLPRC)
Principles of European Contract Law 1998 (PECL)
Restatement (Second) of Contracts 1974 (REST)
Civil Code of the Russian Federation 1994 (CCRF)
The 4 codes have been incorporated in a Concordance containing all Articles in each code that contain rules of general contract law, arranged in 8 parts in which the corresponding rules of each code can be found ‘side-by-side’. The Concordance will be available online [http://wws.TBA]. The document is colour-coded to facilitate scanning, and internal hotlinks have been provided. The 8 parts are:
General Part
Formation
Parties
Validity
Agreed obligations
Mandatory obligations
Termination
Remedies
Utility of global contract code
Even if rules can be identified that are common to all 5 models of contract law, and that therefore constitute a transnational law of contract, the utility of codifying such a law in the form of a binding text is not thereby established.. Hence the second major aim of the course is to investigate the utility of a global codification of contract law. Two connected issues present themselves for consideration:
Globalisation of contract law. Would globalising contract law be better than preserving existing divergences between legal systems? In particular, would it be beneficial for common law jurisdictions (eg Australia, UK, Canada, New Zealand) to replace case law with codified law?
Optimal complexity of contract rules. Legal rules vary considerably in degree of complexity and specificity, ranging from general principles applying broad standards to specific rules applying detailed criteria. There is a longstanding debate about the relative utility of general and specific rules. What level of complexity is feasible or desirable for a global contract code? Common law jurisdictions have adhered to a model of contract law that comprises numerous and complex rules, on the premise that the unmediated application of general principles diminishes the predictability and fairness of outcomes. Is this the case?
This second aspect of the project thus involves an investigation of the relative utility both of case law and codes, and of broad and detailed rules.
Seminar meetings and participation
Participation in this Seminar primarily requires out-of-class research and writing. In addition, there will be 7 group meetings, as follows:
- Weeks 1, 2 and 3 (to introduce the research project, allocate essay topics, and ensure that students are equipped for their research task)
- Weeks 6 and 7 (to discuss progress and exchange experiences)
- Weeks 10 and 11 (presentation in outline of research and preliminary findings).
One-to-one meetings with the seminar teacher are also available on request. Participants are welcome to communicate by email at any time.
Assessment
Class participation: 10%
Research essay (max 8000 words): 90%
Research Essay Topics
- Draft the General Part of a Global Contract Code, plus one other Part (drawn from the list of 8 parts of the Concordance). You must provide not less than 16 and not more than 20 Articles in total. You must also provide a commentary demonstrating that the Articles drafted by you are consistent with Australian law, CLPRC, PECL, REST, and CCRF.
- To what extent are Australian contract law, CLPRC, PECL, REST, and CCRF consistent with each other? Discuss this question in relation to at least four Parts of the Concordance.
- Would it be desirable to adopt a global contract law in the form of a Global Contract Code, and what should be the form and content of such a Code?
- Should common law jurisdictions like Australia replace the ‘unwritten’ law of contract, expressed in the judgments of courts, with a written Contract Code, stating the law in fixed language?
- Assume that a Global Contract Code is only feasible in the form of a limited number of broad principles. Would this be of any real use to courts and contracting parties?
- Any other topic announced or agreed to in writing before [DATE].
References
The list of references given below is not prescriptive or exhaustive. Participants are encouraged develop their own research in consultation with the seminar teacher.
CONCORDANCE
M P Ellinghaus and E W Wright, A Concordance of the Contract Laws of China, EU, USA, and Russia (2009).
AUSTRALIAN CONTRACT LAW
N C Seddon and M P Ellinghaus, Cheshire & Fifoot’s Law of Contract, 9th Australian ed (2008)
CLPRC - The Contract Law of the People’s Republic of China 1999
Books
- Wei Luo, The Contract Law of the People's Republic of China (1999)
- Mo Zhang, Chinese Contract Law : Theory and Practice (2006)
- Patricia Blazey, Kay-Wah Chan (eds), The Chinese Commercial Legal System (2008)
Articles
- Gillies and Kapterian, ‘Chinese Contract Law’, in Blazey and Chan, The Chinese Commercial Legal System (2008) 177 (Ch 8)
- Hsu ‘Contract law of the People's Republic of China’ 16 Minnesota Journal of International Law 115 (2007) 115
- Mo, ‘The Code of Contract Law of the People's Republic of China and the Vienna Sales Convention’ 15 American University International Law Review 209-270 (2000)
- Gregory, ‘Uniform contract law of the People's Republic of China: first comparative look’, 12 Florida Journal of International Law 467-489 (2000)
PECL - The Principles of European Contract Law 1998
Books
- Hector L. MacQueen and Reinhard Zimmermann (eds), European Contract Law : Scots and South African Perspectives (2006)
- Ruth Sefton-Green.(ed), Mistake, fraud and duties to inform in European contract law (2005)
- Ole Lando and Hugh Beale (eds), Principles of European contract law. Parts III / prepared by the Commission on European Contract Law (2003)
- Danny Busch, The principles of European contract law and Dutch law: a commentary (2002)
- Stefan Grundmann and Jules Stuyck (eds), An Academic Greenpaper on European Contract Law (2002)
- James Gordley (ed), The Enforceability of Promises in European Contract Law (2001)
- Ole Lando and Hugh Beale (eds), Principles of European contract law. Parts I and II prepared by the Commission on European Contract Law (2000)
- Reinhard Zimmermann and Simon Whittaker (eds), Good faith in European Contract Law (2000)
- Hein Kötz (translated by Tony Weir), European Contract Law (1997)
Articles
- Meyer ‘Soft law for solid contracts? A comparative analysis of the value of the UNIDROIT principles of international commercial contracts and the principles of European contract law to the process of contract law harmonization’ 34 Denver Journal of International Law and Policy 119 (2006)
- DiMatteo, ‘Contract talk: reviewing the historical and practical significance of the principles of European contract law’ 43 Harvard International Law Journal 569-581 (2002)
- Graham ‘Principles of European Contract Law, rev. ed.’ 4 Lloyds Maritime and Commercial Law Quarterly 85 (2002)
- Cvetkovic, ‘The characteristics of an offer in CISG and PECL’ 14 Pace International Law Review 121-131 (2002)
- Viscasillas, ‘Battle on the forms, modification of contract, commercial letters of confirmation: comparison of the United Nations Convention on Contracts for the International Sale of Goods (CISG) with the Principles of European Contract Law (PECL)’ 14 Pace International Law Review 153-161 (2002)
- Wessels, ‘Principles of European Contract Law, pts. 1-2’ 29 International Business Lawyer 93 (2001)
- Lando, ‘Salient features of the principles of European contract law: a comparison with the UCC’ 13 Pace International Law Review 339-369 (2001)
- Felemegas, ‘Comparative editorial remarks on the concept of good faith in the CISG and the PECL’ 13 Pace International Law Review 399-448 (2001)
- Flechtner. ‘Comparing the general good faith provisions for the PECL and the UCC: appearance and reality’ 13 Pace International Law Review 295-337 (2001)
- Viscasillas, ‘The formation of contracts and the principles of European contract law’, 13 Pace International Law Review 371-397 (2001).
- Hesselink, ‘The Principles of European Contract Law: some choices made by the Lando Commission." Global Jurist Frontiers 1.1 (March 16, 2001)
- Kasirer, ‘The Principles of European Contract Law, pt. 1, Performance, Non-Performance and Remedies’ 47 American Journal of Comparative Law 653-676 (1999).
- Lando, ‘The common core of European private law and the principles of European contract law’ 21 Hastings International and Comparative Law Review 809-823 (1998)
REST - Restatement 2nd of Contracts 1974
- Risch, ‘Virtual third parties’ 25 Santa Clara Computer & High Technology Law Journal 415 (2009)
- Eisenberg, ‘The disgorgement interest in contract law’ 105 Michigan Law Review 559 (2006)
- Teeven, ‘Origins of promissory estoppel: justifiable reliance and commercial uncertainty before Williston's restatement’ 34 University of Memphis Law Review 499-605 (2004)
- Watnick, ‘The electronic formation of contracts and the common law “mailbox rule”’ 56 Baylor Law Review 175-203 (2004)
- Ricks, ‘The death of offers’ 79 Indiana Law Journal 667-709 (2004)
- Siprut, ‘The peppercorn reconsidered: why a promise to sell Blackacre for nominal consideration is not binding, but should be’ 97 Northwestern University Law Review 1809-1851 (2003)
- Barnes, ‘The net expectation interest in contract damages’ 48 Emory Law Journal 1137-
1207 (1999) - Farnsworth, ‘The American Provenance of the UNIDROIT Principles’ 3 Uniform Law Review 397 (1998)
- Maggs, ‘Ipse dixit: The Restatement (Second) of Contracts and the modern development of contract law’ 66 George Washington Law Review 508 (1998)
- Mooney, ‘The new conceptualism in contract law’ 74 Oregon Law Review 1131-1207 (1995)
- Yorio and Thel, ‘The promissory basis of Section 90’ 101 Yale Law Journal 111-167 (1991)
- Klau, ‘What price certainty? Corbin, Williston, and the Restatement of Contracts’ 70 Boston University Law Review 511-541 (1990)
- Elfin, ‘The future use of unconscionability and impracticability as contract doctrines’ 40 Mercer Law Review 937-960 (1989)
- Kniffin, ‘A newly identified contract unconscionability: unconscionability of remedy’ 63 Notre Dame Law Review 247-276 (1988)
- Lawrence, ‘Cure after breach of contract under the Restatement (Second) of Contracts: an analytical comparison with the Uniform Commercial Code’ 70 Minnesota Law Review 713-753 (1986)
- Dalton, ‘An essay in the deconstruction of contract doctrine’, 94 Yale Law Journal 997-1114 (1985)
- Keyes, ‘The Restatement (Second): its misleading quality and a proposal for its amelioration’ Pepperdine Law Review 23-57 (1985)
- Prince, ‘Perfecting the third party beneficiary standing rule under section 302 of the Restatement (Second) of Contracts’ 25 Boston College Law Review 919-997 (1984)
- Bridge, Farnsworth, and Tancelin. ‘Does Anglo-Canadian contract law need a doctrine of good faith?’ 9 Canadian Business Law Journal 385-434 (1984)
- Pettit, ‘Modern unilateral contracts’ 63 Boston University Law Review 551-596 (1983)
- Jacobs, ‘Legal realism or legal fiction? Impracticability under the Restatement (Second) of Contracts’ 87 Commercial Law Journal 289-298 (1982)
- Handler and Lazaroff ‘Restraint of trade and the Restatement (Second) of Contracts’ 57 New York University Law Review 669-766 (1982)
- Campbell, ‘The right to assurance of performance under UCC 2-609 and Restatement (Second) of Contracts 251: toward a uniform rule of contract law’ 50 Fordham Law Review 1292-1310 (1982)
- ‘Symposium: the Restatement (Second) of Contracts’ 67 Cornell Law Review 631-899 (1982)
- Von Mehren, ‘Robert Braucher and the Restatement (Second) of Contracts’ 67 Cornell Law Review 631-633 (1982
- Eisenberg, ‘The principles of consideration’ 67 Cornell Law Review 640-665 (1982)
- Harvey, ‘Discretionary justice under the Restatement (Second) of Contracts’ 67 Cornell Law Review 666-703 (1982)
- Hillman, ‘Contract modification under the Restatement (Second) of Contracts’ 67 Cornell Law Review 680-703 (1982)
- Hudec, ‘Restating the “reliance interest”’ 67 Cornell Law Review 704-734 (1982)
- Murray,’The standardized agreement phenomena in the Restatement (Second) of Contracts’ 67 Cornell Law Review 735-784 (1982)
- Speidel, ‘Restatement Second: omitted terms and contract method’ 67 Cornell Law Review 785-809 (1982)
- Summers, ‘The general duty of good faith - its recognition and conceptualization’ 67 Cornell Law Review 810-835 (1982)
- Ferris, ‘Liquidated damages recovery under the Restatement (Second) of Contracts’ 67 Cornell Law Review 862-879 (1982)
- Simon, ‘A critique of the treatment of market damages in the Restatement (Second) of Contracts’ 81 Columbia Law Review 80-92 (1981)
- Farnsworth, ’Contracts during the half-century between Restatements’ 30 Cleveland State Law Review 371-383 (1981)
- Summers, David M. "Third party beneficiaries and the Restatement (Second) of Contracts." Cornell Law Review 67.n4 (April
1982): 880-899 - Gordley, ‘European codes and American restatements: some difficulties’ 81 Columbia Law Review 140-157 (1981).
- Farnsworth, ‘Ingredients in the redaction of the Restatement (Second) of Contracts’ 81 Columbia Law Review 1-12 (1981)
- Braucher, ‘Interpretation and legal effect in the Second Restatement of Contracts’ 81 Columbia Law Review 13-18 (1981)
- Young, ‘Half measures’ 81 Columbia Law Review 19-36 (1981)
- Perillo, ‘Restitution in the Restatement (Second) of Contracts’ 81 Columbia Law Review 37-51 (1981)
- Knapp, ‘Reliance in the revised Restatement: the proliferation of promissory estoppel’ 81 Columbia Law Review 52-79 (1981)
- Resett, ‘Partial, qualified, and equivocal repudiation of contract’ 81 Columbia Law Review 93- 110 (1981)
- Linzer, Peter ‘On the amorality of contract remedies - efficiency, equity, and the Second Restatement’ 81 Columbia Law Review 111-139 (1981)
- Crystal ‘Codification and the rise of the Restatement Movement’ 54 Washington Law Review 239 (1979)
CCRF- Civil Code of the Russian Federation 1994
Books
- Hiroshi Oda, Russian commercial law (2nd ed 2007) [Chapter entitled “General Rules of Contract Law”] New edtion
- Paul H. Rubin, Promises, promises : contracts in Russia and other post-communist economies (1997)
- Civil Code of the Russian Federation: Parts One and Two / translated from the Russian by W.E. Butler (1997) [Chapter entitled “General Provisions of Contract: Civil Code of the Russian Federation”]
Articles
Maggs, ‘The Process of Codification in Russia: Lessons Learned from the Uniform Commercial Code’ 44 McGill Law Journal 280 (1999)
Utility of globalisation
- Berman, ‘Global Legal Pluralism’ (2007) 80 Southern California Law Review 1155
- Parisi, ‘Harmonization of European Private Law: An Economic Analysis’ (2007) SSRN
- Calliess, ‘The Making of Transnational Contract Law’ (2007) 14 Indiana Journal of Global Legal Studies 469.
- Nottage, ‘Convergence, Divergence and the Middle Way in Unifying or Harmonizing Private Law’ 1 Annual of German and European Law 1 (2003)
- Bonell, ‘From UNIDROIT Principles 1994 to UNIDROIT Principles 2004: A Further Step Towards a Global Contract Law’ (2004) 37(1) Uniform Commercial Code Law Journal 49.
- Barnes, ‘Contemplating a Civil Law Paradigm for a Future International Commercial Code’ (2005) 65 Louisiana Law Review 677.
- Lordi, ‘Towards a Common Methodology in Contract Law’ (2002) 22 Journal of Law and Commerce 1.
- Sono, ‘The Rise of Anational Contract Law in the Age of Globalization’ (2001) 75 Tulane Law Review 1185.
- Appelbaum, ‘The Future of Law in a Global Economy’ 7 Social & Legal Studies 171-192 (1998)
Utility of codification
Book
M P Ellinghaus and E W Wright (with Karras, M), Models of Contract Law: An empirical evaluation of their utility (2005);
Articles
- Svantesson, ‘Codifying Australia’s Contract Law – Time for a Stocktake in the Common Law Factory’ 20 Bond Law Review 92 (2008)
- Masferrer ‘The Passionate Discussion Among Common Lawyers about Postbellum American Codificiation: n Approach to its Legal Argumentation’ 40 Arizona State Law Journal 173 (2008)
- Grossman, ‘Langdell Upside Down: James Coolidge Carter and the Anticlassical Jurisprudence of Anticodification’ 19 Yale Journal of Law and the Humanities Summer 149 (2007)
- Rogers, ‘Philosophical Contrasts in Commercial and Consumer Law – Should We Codify Commercial Law?’ 26 Business Law Review (UK) 262 (2005)
- Kirsch, ‘We’re Not Ready to Codify the Information Revolution: Instead, We Need to Develop a Body of Law on a Case-by-case Basis to Provide a Reliable Foundation’ 167 New Jersey Law Journal 23 (2002)
- Collins, ‘Formalism and Efficiency: Designing European Commercial Contract Law’ 1 European Review of Private Law 211-135 (2000)
- Harrell, ‘UCITA: Opportunity or Obstruction?’ 25 Oklahoma City University Law Review 300 (2000)
- Von Mehren, ‘Some Reflections on Codification and Case Law in the Twenty-first Century’ 31 University of California Davis Law Review 659 (1998) [Symposium: Codification in the Twenty-First Century]
- Beatson, ‘Has the Common Law a Future?’ 56 Cambridge Law Journal 291 (1997)
- Arden, ‘Time for an English Commercial Code?’ 56 Cambridge Law Journal 516 (1997)
- Herman, ‘The fate and the future of codification in America’ 40 American Journal of Legal History 407 (1996)
- Reynolds, ‘Contract: Codification, Legislation and Judicial Development’ (1995) 9(1) Journal of Contract Law 11.
- Nimmer, ‘Thoughts of Hubs, Spokes, and Reinvigorating Article 2’ 35 William & Mary Law Review 1337 (1994) [Symposium: The Revision of Article 2 of the Uniform Commercial Code Intangibles Contracts]
- Nimmer, ‘Services Contracts: The Forgotten Sector of Commercial Law’ 26 Loyola of Los Angeles Law Review April, 1993 725 (1993) [Symposium: Is the UCC Dead, or Alive and Well?]
- Ellinghaus and Wright, ‘An Australian Contract Code’ Victorian Law Reform Discussion Paper No 28 (1992).
- Nimmer, ‘Uniform Codification of Commercial Contract Law’ 18 Rutgers Computer & Technology Law Journal 465 (1992)
- Rossett, ‘Unification, Harmonization, Restatement, Codification, and Reform in International Commercial Law’ 40 American Journal of Comparative Law 683 (1992)
- Goode, ‘The Codification of Commercial Law’ 14 Monash Law Review 135 (1988)
- Davies, ‘Reading Cases’ (1987) 50 Modern Law Review 409-431;
- Kötz, ‘Taking Codes Less Seriously’ 50 Modern Law Review 1 (1987)
- Kelly, ‘The Codification of Contract Law in the Twentieth Century’ 88 Dickinson Law Review 289 (1984)
- Warren, ‘Formal and Operative Rules Under Common Law and Code’ 30 UCLA Law Review 898 (1983)
- Starke, ‘A Restatement of the Australian Law of Contract as a First Step Towards an Australian Uniform Contract Code’ 49 Australian Law Journal 234 (1975)
- Rudden, ‘Courts and Codes in England, France and Soviet Russia’ 48 Tulane Law Review 1010-1028 (1974)
- Donald, ‘Codification in Common Law Systems’ 47 Australian Law Journal 160-177 (1973)
- Diamond, ‘Codification of the law of contract’ 31 Modern Law Review 361 (1968)
Optimal complexity of rules
- Close, Heathcote, Ellinghaus and Wright, “Coherence based reasoning and models of contract law” pp 1-7 (2009) (paper presented at 31st Annual Conference of the Cognitive Science Society, Amsterdam)
- Feldman and Harel, ‘Social norms and ambiguity of legal norms: an experimental analyis of the rule v standard dilemma’ SSRN (2007)
- Parisi, ‘Harmonization of European Private Law: An Economic Analysis’ SSRN (2007)
- Geis, ‘An Experiment in the Optimal Precision of Contract Default Rules’ 80 Tulane Law Review 1109 (2006)
- Ellinghaus and Wright, ‘The Common Law of Contracts: are broad principles better than detailed rules? An empirical investigation’ 11 Texas Wesleyan Law Review 399-420 (2005) http:www.TBA
- Mahoney and Sanchirico, ‘General and specific legal rules’ SSRN (2004)
- Fon and Parisi, ‘Codifications and the optimal specificity of legal rules’ SSRN (2004)
- Braithwaite, ‘Rules and Principles: A Theory of Legal Certainty’ 27 Australian Journal of Legal Philosophy 47 (2002)
- Gallard, ‘General Principles of Law – More Predictable After All?’ New York Law Journal, December 6 2001, 3
- Harmathy ‘Codification in a period of transition’ 31 University of California Davis Law Review 783 (1998)
- Kaplow, ‘A model of the optimal complexity of legal rules’ 11 Journal of Law, Economics & Organization’ 150-163 (1995)
- Kaplow, ‘Rules Versus Standards: An Economic Analysis’ 42 Duke Law Journal 557-629 (1992)
- Sullivan ‘The Justices of Rules and Standards’ 106 Harvard Law Review 106 (1992) 22-103
- Farnsworth, ‘Some Prefatory Remarks: From Rules to Standards’ 67 Cornell Law Review 634-639 (1982)
- Ehrlich and Posner, ‘An Economic Analysis of Legal Rulemaking’ 3 Journal of Legal Studies 257-286 (1974)