Reviewing the exclusionary principle in English contract law

The exclusionary principle in English contract law is a long established but controversial rule of contractual interpretation. This article considers the jurisprudential origins of the principle and critically analyses judicial justification of the principle. This article also puts forward a case for how the principle can be reformed in order to introduce greater fairness within the process of contractual interpretation.     

Economic impossibility in Turkish contract law from the perspective of law and economics

We argue that the proposed introduction of the doctrine of economic impossibility in Article 137 of the reform draft of the Turkish Code of Obligations is in line with economic considerations and facilitates business transactions. This new rule gives courts the explicit power to terminate a contract and relieve the party, which owes specific performance of its obligation, without imposing any duty to pay expectation damages to the other party. We argue that a court??s decision to terminate a contract under economic impossibility should be based on three tests. First, a low-probability-event occurs between contract formation and performance. Second, this event causes an excessive increase in the costs of specific performance. Third, the concept of an excessive increase should take into due consideration the other party??s interest in specific performance. The reform draft includes explicitly the first two tests, but not the third test. We also show under which conditions an excessive performance difficulty should not lead to termination of the contract but rather to an adjustment of the agreed price. We argue that the rule of economic impossibility, if diligently adjudicated, saves the parties transactions costs in comparison to a rule under which the law insists on specific performance or damage payments. We also argue that a specific rule of economic impossibility leads to better and more business-oriented solutions to the underlying problems than the alternative, which is to solve such problems under the broad and unspecific cover of the ??good faith?? or the ??Clausula Rebus Sic Stantibus?? doctrine.     

订立劳动合同须注意的几个法律问题

劳动合同是劳动者与用人单位确立劳动关系、明确双方权利和义务的协议,建立劳动关系应当订立劳动合同。劳动合同关系到合同双方当事人的切身利益,也是处理劳动争议的主要依据之一,而《劳动法》关于劳动合同的条款规定较原则、抽象,使得有关劳动合同争议案件的处理较困难。因此,不管是用人单位还是劳动者都应当掌握一定的劳动合同知识。本文主要就劳动合同订立过程中应注意的几个问题进行探讨。     

The risks of contract law

The economic analysis of law may be able to provide some reason why it is efficient to enforce wholly executory contracts, but (I submit) it has not done so.     

Autonomy and private ordering in contract law

This essay reviews Michael J. Trebilcock's book,The Limits of Freedom of Contract (Cambridge, MA: Harvard University Press, 1993), examining crucial and controversial social issues within the rigorous framework of the law and economics of contract. The idea that private markets are the primary institutions for the allocation of limited resources is central to any private ordering model of contract law. Yet such a premise leaves a number of fundamental questions unanswered. Trebilcock is critical of the insufficiency and ambiguity of current contract theory in addressing fundamental legal issues relating to the limits of freedom of contract. Pushing the frontiers of current legal theory, Trebilcock revisits the slippery notion of freedom of contract and tests the actual reach of economic analysis in providing a coherent answer to compelling social questions. The author pursues his ambitious task by examining the conclusions reached by competing paradigms of analysis. In spite of his declared trust in the economic approach to law, Trebilcock pays close attention to alternative analytical traditions, comparing the conclusions of various intellectual perspectives with those suggested by an economic framework of private ordering. The book objectively examines strengths and weaknesses of competing views, affording the reader a balanced position from which to conclude for herself, by illustrating the practical implications of the various approaches. In a number of instances, Trebilcock shows how different theoretical premises may indeed be conducive to similar institutional outcomes.Associate Professor of Law, George Mason University. The support of the Sarah Scaife Foundation and of the John M. Olin Foundation is gratefully acknowledged, as are the helpful comments of Jonathan C. Harris and Charles K. Rowley. Extensive remarks received from Michael J. Trebilcock prior to publication allowed me to remedy earlier omissions.     

房屋买卖合同中的陷阱及法律救济

开发商和购房人之间的权利义务关系规定在购房合同中。由开发商单方面提供的格式合同已提前确定了本应由双方协商的合同条款。本文以某房屋买卖合同为例，指出在房屋买卖合同中常见的不公平、不舍法条款，针对房屋买卖合同中的陷阱提出法律救济途径。     

The limits of contract law harmonization

Contract law harmonization in the European Union has met with some significant but limited success. This Essay explores some of the psychological and political forces that can complicate or even hinder law reform efforts. Even when there is a general institutional drive for law reform, as there is in the EU, scarce reform resources force attention to be focused on salient issues, while a status quo bias in individual member states by government officials can provide a braking inertia regarding nonsalient legal reforms. This braking influence can be seized upon and enhanced by interest groups that oppose reforms, especially where there is an alternative to proposed law reforms for private entities. In the case of contract law harmonization, contract doctrine that is not focused on providing consumer protections remain nonsalient, commercial entities can solve the confusion of diverse laws by choosing their own, and interest groups in nations whose laws and dispute resolution forums are commonly chosen will oppose harmonization. Thus, the current state of affairs may prove relatively difficult to alter.     

The Chinese new Civil Code and the law of contract

China-EU Law Journal - The purpose of this contribution is to present to the readers the Chinese Civil Code which entered into force the first of January 2021, and to bring to their attention the...     

试论契约自由及其在我国合同法中的地位

毫无疑问,罗马法应该被视为研究契约自由的起点.正是在罗马法中,契约制度首次得到了全面规定并达到了相当的高度.而且,正是罗马法孕育了契约自由的观念和思想.契约自由从思想到原则的转变是在法国民法典中实现的,而人类进入20世纪之后,契约自由逐步受到限制.在我国合同法中,契约自由也得到了确立,它不仅是我国合同法的一项基本原则,而且也是我国合同法的最高原则.     

The rise and fall of EU labour law

EU labour law—namely that heterogeneous, unstable combination of interventions, tools, measures, sources through which the EU directly or indirectly impacts on the normative and functional frameworks of individual and collective labour law systems of the Member States in a relationship of mutual interference and interaction–is experiencing a progressive loss of relevance, with an unprecedented decline of its normative rationales, functions, regulatory techniques, and constitutional hierarchies. This article offers a critical reflection on the reasons behind such a regressive path in the context of the EU crisis.     

多元与融合:国际统一合同法的现代特性

合同法历来是国际统一立法最活跃的法域,在现行立法的架构中,已呈现出立法形式多元和立法内容融合两大特性.本文首先考察了国际统一合同法从一元化立法形态到多元化立法形态的历史演进过程,并分析了多元并存的价值,进而归纳了国际统一合同法的融合途径及统一法成果所涉领域.     

Teaching labour law in a technical college

In this lecture, the author identifies six themes in UK (predominantly English) and European practice which have permeated his 19 years in quality assurance: the vagueness of the term ‘quality assurance’; its uncertain purposes in the early years; the critical importance of its ownership and financing; the increasing tendency for quality assurance to be seen as a proxy organ of external power and control over autonomous higher education institutions; the rise and growing importance of developments in Europe; and the uncertain future direction of quality assurance. He examines changes in the purposes informally ascribed to the process and concludes that there has been a shift first from, and then back towards, accountability as the dominant purpose, and that this may displace enhancement as a key objective. The ownership and financing arrangements of the QAA limit its independence of action and possibly its effectiveness. They are also indicative of the government's desire to influence the direction of external quality assurance. In the European arena, the quality assurance aspects of the Bologna Process are described in terms of a jockeying for power over higher education between universities, governments and the European Commission. The lecture ends with some general observations about quality assurance.     

国家干预在我国劳动合同立法中的体现

劳动合同属于兼有当事人意思自治和国家干预性质的特殊合同.本文探讨了国家干预劳动合同立法的合理性和必要性,阐述了我国在劳动合同立法过程中,国家干预起到了积极的重要作用并具体地体现在了<劳动合同法>中.     

Authentic assessment in contract law: legal drafting

Legal drafting is a vital skill for lawyers and thus it is important for law students to be exposed to drafting throughout their degree. One of the first year courses most suited to this exercise is contract law. This paper discusses the inclusion of a drafting exercise as part of the contract law assessment over four years in terms of the authenticity of the assessment task and feedback from students about the exercise. A sample exercise is included in the paper. These exercises required students to draft clauses to be inserted into a contract or draft a short contract and this work demonstrated an application of the material being covered in class. Initially, this assessment was set as a largely independent exercise with students being directed to relevant resources. It was found that additional scaffolding was needed and each year more extensive resources were provided. Although the students who participated in the survey were predominantly students who had passed the course, the majority each year believed that it was a useful exercise, of value for their future careers and of more practical relevance than other forms of assessment.     

从大陆法系国家角度看中国对英国模式下保证制度的改革及引入

在比较中英关于保证的不同规定基础上，认为中国并未引入保证制度，并且由于该制度自身存在的缺陷以及英国模式的保证制度与中国作为一个大陆法系国家的立法要求的不同，在将来‘海商法〉的修改中也不宜直接引入。同时，透过各国海上保险立法的现状分析保证制度的发展趋势，提出软化保证制度，并尝试用大陆法系的法律概念来解释与理解这种“保证”，以明确其法律属性及具体适用。