Contract Formation and Mistake in European Contract Law - A Genetic Comparison of Transnational Model Rules
Oxford Journal of Legal Studies, Forthcoming
40 Pages Posted: 25 Mar 2011 Last revised: 1 Jun 2011
Date Written: March 17, 2011
The article examines how the rules on formation of contract and on mistake, contained in the various transnational model rules that have been published over the past two decades, have taken shape. The approach adopted here is based on an analysis of the “textual stratification” of European private law. The relevant instruments (Convention on Contracts for the International Sale of Goods, Principles of European Contract Law, UNIDROIT Principles of International Commercial Contracts, Draft Common Frame of Reference, Principes contractuels communs) are analysed and compared in their historical sequence. To what extent and why have the texts been transformed in the process? The article demonstrates that there is a very considerable common ground reflecting the state of art of comparative research in these fields over the past hundred years. It also highlights issues on which consensus must still be reached, and it suggests patterns towards reaching such consensus. It is argued that the Principles of European Contract Law, rather than the Draft Common Frame of Reference, should provide the point of departure for a comparative “textual stratification” analysis. The scene for the article is set by a critical examination of the concept of contract and legal act, as used in the Draft Common Frame of Reference.
Keywords: agreement, contract, Draft Common Frame of Reference, formation of contract, incorrect information, intention to contract, juridical act, legal act, misrepresentation, mistake, offer and acceptance, Principles of European Contract Law, UNIDROIT PICC
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