Transcript A project in Europe - Institute of Advanced Legal Studies

A project in Europe
Action Plan on a More Coherent
Contract Law (COM (2003) 68 final
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Acquis group
A Restatement of existing provisions
(in regulations, directives, and European caselaw),
on issues related to contract
(http://www.acquis-group.org/)
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Article 2:201: Duty to inform about
goods or services
Before the conclusion of a contract, a party
has a duty to give to the other party such
information concerning the goods or services
to be provided as the other party can
reasonably expect, taking into account the
standards of quality and performance which
would be normal under the circumstances.
Article 2:208: Remedies for breach of information
duties
(1) If a business is required under Article 2:203 (information duties
towards disadvantaged consumers) and 2:204 to provide
information to a consumer before the conclusion of a contract from
which the consumer has the right to withdraw, the withdrawal
period does not commence before all this information has been
provided. This does not postpone the end of the withdrawal period
beyond one year counted from the time of the conclusion of the
contract.
(2) If a party has failed to comply with its duties under Article 2:201 to
2:204, and a contract has been concluded, this contract contains
the rights and obligations which the other party could reasonably
expect as a consequence of the absence or incorrectness of the
information.
(3) Whether or not a contract is concluded, a business which has failed
to comply with any duty imposed by the preceding Articles of this
Section is liable to the other party for reliance damages. The rules
on damages for non-performance of a contractual obligation apply
accordingly.
“SHALL”
G. EÖRSI, ‘Unifying the Law. A Play in One Act,
With a Song’, 25 (1977) American Journal of
Comparative Law, 658ff.):
“a dog shall bark” can convey 4 different
meanings:
1) a duty or obligation: dogs must bark, (2) a
discretion: dogs may bark; (3) a weak or toothless
duty: dogs should bark, but there are no
consequences if they do not, and (4) a fact or
consequence: dogs will bark.
Domicile
even such an ordinary notion may
not coincide across countries
Rectification
rectification of a contract:
“a party can apply in equity for a rectification of a
written contract and he will succeed if he can prove by
the strongest oral evidence that it does not properly
reproduce the terms of an oral agreement”
(Lawson, 1951).
[“reformation”, in the USA?]
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Same words, different meanings: a
common complaint
• Regulation (for primary legislation)
• Remedy (for adjusting performance, rather
than damages)
• Creditor/debtor (of performance)
• Professionista (for business)
• Warranty and guarantee
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Variable meanings (within national
borders)
•
•
•
•
“conversion” [in common law]
“invention” [in civil law]
“compensation” [in civil law]
“merger”
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By any measure, conversions must
improve
Rose Wild , The Times, Saturday 25 February
2012, “Opinion”
It concerns the so called “imperial
measurements” and the metric system
http://journalisted.com/rose-wild
Merger clause
“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”.
UNIDROIT PRINCIPLES OF INTERNATIONAL COMMERCIAL
CONTRACTS 1998, ARTICLE 2.1.17
[Integration clause, full incorporation, whole contract clause,
entire agreement]
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Distrust in EU process?
The pedantic reaction to linguistic innovation
introduced by the EU may be caused by lack of
transparency in the European legislative
process
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Lack of experience
Within the EU: not great experience in codrafting of legislation in different languages
(apart from Belgium, and Cataluña),
not much confidence in drafting in different
languages
(in Italy we only have developed a minor
competence in Alto Adige/Süd-Tirol)
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Court of Justice of the EU – A. 19
[Lisbon Treaty]
A Court of Justice
including:
• the Court of Justice
• the General Court
• the Civil Service
Tribunal
(http://curia.europa.eu/jc
ms/jcms/Jo2_6999/)
• Corte di Giustizia
comprensiva di:
• Corte di Giustizia
• Tribunale/Tribunal
(“Tribunal General” in
Spain)
• Tribunale del
funzionamento
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Common complaint
The language of the EU inclines to some Latin:
“to permit” rather than to “allow”;
“inertia selling” ( for “unsolicited goods”).
Many nouns, rather than verbs:
“Further reflection on the opportuneness of non-sector
specific measures such as an optional instrument in
the area of European contract law”.
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Plain Language International Association
•
•
•
•
“Keep the subject and verb close together …
Keep sentences under 35 words …
Use verbs instead of nouns for your action”.
http://plainlanguagenetwork.org/stephens/int
ro.html
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Bureaucratic language
“in written form or by means of a durable
medium” (Distance selling Directive 97/7/EC of 20
May 1997, “recital” n. 13 & art. 5,1);
The consumer should be able to take an “informed
transactional decision” (Commercial Practices
Directive, 2005/29/EC, Article 7, 1)
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Regulation 1924/2006 on nutrition and health
claims made on foods
Recital 15
this Regulation takes as a benchmark the
average consumer, who is reasonably
well-informed and reasonably observant and
circumspect, taking into account social,
cultural and linguistic factors, as interpreted
by the Court of Justice, …
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Constraints
When working as legal drafter one realizes
that there are certain limits to the possible
choices,
especially where a certain case-law has
already been established and a change in
terminology would be unsettling;
[costs of “returning the goods”]
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iate
• Some clarification may be found by searching
the European data base
• http://iate.europa.eu/iatediff/switchLang.do?
success=mainPage&lang=it
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Comparing different versions
• The Court of Justice: it is legitimate for judges
to consult other linguistic versions to decide
on an obscure meaning:
Regina v. Pierre Bouchereau, case 30-77,
decision of 27 October 1977, ECJ Reports
1977, p. 1999
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W. Robinson
http://www.opc.gov.au/calc/docs/Loophol
e-Feb2011.pdf
“derogate” is used for “repeal” (influence of
Spanish),
“motives” for “statement of reasons on which
an act is based” and
“visas” instead of “citations” (influenced by
various Romance languages),
or “guideline” for “directive” (influence of
German and Dutch).
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Payment’s delay
In some EU directive the expression is used to
indicate the performance date (not that the
payment will be late, after expiration of the
final date)
(délai: in French indicates the final date, the
time limit within which an obligation has to be
fulfilled).
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A string of substantives
•
•
•
•
For foreigners, a specific difficulty: many nouns
follow each other in a row.
“class-action equal protection suit”
“charitable remainder annuity trust”
“q(ualified) t(terminable) i(interest) p(roperty)
trust”
payment service provider's liability for
unauthorised payment transactions: Liability of
the payment service provider for unauthorized
payment ... (art. 8 G 04, Acquis Principles)
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A linguist in bilingual Québec
Les langues germaniques ... pratiquent … l'antéposition du
modifiant .... sans préposition.
…. pour le français une ambiguïté que celui-ci ... résout par le
choix de la préposition :
a wine glass = un verre à vin,
the wine list = la carte des vins.
The Monroe Doctrine est la doctrine de Monroe,
tandis que the Social Security Act, ... aux États-Unis (1935),
correspond ... à la loi (française) de 1928 sur les assurances
sociales.
(Jean DARBELNET)
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European vocabulary
Effet utile, spill over effect, acte clair,
proportionality, subsidiarity, States’ estoppel
effect …