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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

Nils Jansen

University of Muenster

Reinhard Zimmermann

Max Planck Institute for Comparative and International Private Law

Date Written: March 17, 2011

Abstract

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

Suggested Citation

Jansen, Nils and Zimmermann, Reinhard, Contract Formation and Mistake in European Contract Law - A Genetic Comparison of Transnational Model Rules (March 17, 2011). Oxford Journal of Legal Studies, Forthcoming. Available at SSRN: https://ssrn.com/abstract=1788882

Nils Jansen (Contact Author)

University of Muenster ( email )

Institut für Rechtsgeschichte
Universitätsstraße 14-16
Münster, D-48143
Germany

Reinhard Zimmermann

Max Planck Institute for Comparative and International Private Law ( email )

Mittelweg 187
Hamburg, 20148
Germany

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