Bar / Drobnig The Interaction of Contract Law and Tort and Property Law in Europe

A Comparative Study
1. Auflage 2009
ISBN: 978-3-86653-731-6
Verlag: Otto Schmidt
Format: PDF
Kopierschutz: Adobe DRM (»Systemvoraussetzungen)

E-Book, Englisch, 573 Seiten, Gewicht: 10 g

Against the background of the creation of an EU-wide frame of reference for private law relevant to the Common Market, this study, which was requested by the EU Commission, analyses the dovetailing between contract and tort law on the one hand, and between contract and property law on the other. The study examines the legal orders of almost all the Member States of the EU, illustrates the differences between contractual and non-contractual liability and evaluates the different systems of the transfer of property, of movable and immovable securities as well as trust law. The study comes to the conclusion that the intensive considerations on the creation of a model-law in the area of European private law do not allow these thoughts to be limited to contract law. Such a limitation to the scope of the regarding of this area would probably cause more problems than it would solve, or at any rate not do justice to the needs of the Common Market.

Autoren/Hrsg.

Bar, Christian von

Drobnig, Ulrich

Fachgebiete

• Rechtswissenschaften Internationales Recht und Europarecht Europarecht Europäisches Privat- und Vertragsrecht
• Rechtswissenschaften Recht, Rechtswissenschaft Allgemein Rechtsvergleichung

Inhaltsverzeichnis

Preface

Introduction

I. The Background
The subject of this study
The Council meeting in Tampere and the Communication of the Commission
Reactions
The Justice and Home Affairs Council
The approach of the European Parliament
The Economic and Social Committee
The European Commission’s Green Paper on the Rome Convention
Principles as applicable law?
The Commission’s Action Plan
Sixth Framework Programme on Research
Study on product liability
Study on consumer legislation
Strategy document
Consumer Policy Strategy 2002-2006
Information campaign
Rome II
Working group on mortgage loans

II. The Problems
Initial considerations for this study
Absence of a uniform concept of contract law
The structure of the interference problem
Examples in the relationship of tort law to contract law
Peculiarities of tort law
Further aspects of the interference problem
The passing on of information
Determining who is liable
Economic contexts
Examples in the relationship of property law to contract law
Examples in the relationship of trust law to contract law
The interference problem and its relation to obstacles to the exploitation of the internal market and distortions of competition
A broader understanding of the term “interference”

III. Methods and Authorship of this Study
Procurement of the legal data
The team of authors
Procurement of the empirical information

Part One: Non-contractual Liability and Contract Law

I. Overview of National Approaches to Non-contractual Liability Law
(1.) General
(2.) Differences in External Representation
(3.) Pure Economic Loss
(4.) Protection Afforded to Intangible Rights of Personality
(5.) Strict Liability

II. The Main Differences between Contractual and Non-contractual Liability for Damage
General
(1.) Dependence of Liability on Fault
(2.) Damages for Economic Loss
(3.) Loss of Chance
(4.) Damages for Non-economic Los
(5.) Aggravated and Exemplary (or Punitive) Damages
(6.) Recovery of Pure Economic Loss
(7.) Employer’s Liability
(8.) Reduction or Exclusion of Liability
(9.) Contributory Negligence (or Fault)
(10.) Prescription

III. The Problem of Concurrence of Actions
(1.) Overview
(2.) Liability for Bodily Injury and Damage to Property
(3.) Approaches Adopted
(4.) In particular: Liability in respect of Self-contained Damage in Defective Products and Buildings

IV. Interference with Contractual Rights
(1.) Third Party Influence on a Contractual Relationship by Unfair Actions
(2.) Loss of Business as a Result of the Co-contractor’s Exposure to Material Damage or Personal Injury

V. Liability Issues in Specific Contexts
(1.) Pre-contractual Liability
(2.) Consumer Protection
(3.) Product Liability
(4.) Defective Services
(5.) Liability for Misinformation

VI. Terminological Differences between Contract and Tort Law

VII. Private International Law
(1.) The Ancillary Relationship of Tort Law to Contract Law
(2.) Problematic Issues of Characterisation
(3.) Bad Faith Proceedings and Antisuit Injunctions

Part Two: Property Law and Contract Law

I. Scope of This Part
(1.) Law of Things or Property Law?
(2.) Characteristics of Property Law as Distinct from Contract Law
(3.) Restriction to Contractual Property Rights
(4.) The Qualification of Contractual Rights for Use of an Asset

II. Contract Law and Transfer of Title in Movables
(1.) Importance of the Issue
(2.) Two Approaches to Transfer of Title
(3.) The Blurring of the Difference between the Two Approaches
(4.) The Passing of Risk
(5.) Voidness and Termination of the Contract
(6.) Passing of Risk upon Termination of Contract
(7.) General Conclusion

III. Contractual Security Rights in Movables and Contract Law
(1.) Introduction
(2.) Creation of Security Rights
(3.) Impact of Invalidity of Security Agreement on the Security
(4.) Dependence of the Security on the Secured Claim
(5.) Intra-European Cross Border Problems

IV. Contractual Security Righ