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Civil and Commercial Contracts

Objectives

Overview

This presential course gives students the tools and knowledge they need to navigate the rocky waters of civil and commercial contracts, especially beyond national borders. The course is essentially divided into three parts. Part I, shorter, introduces the concept of a contract type and proposes an analytical hypothesis to find unity among different exchange contract types. Part II focuses on international sales as governed by the Vienna Convention on the International Sale of Goods, taking also into account its main gap, namely not considering the reality of supply chains in international trade. Part III explains the impacts of EU law on contracts, in general terms, and then by focusing on several specific branches of EU law.

General characterization

Code

28101

Credits

6

Responsible teacher

Fabrizio Esposito

Hours

Weekly - 4.5

Total - 54

Teaching language

English

Prerequisites

Contract Law

Direito da União Europeia

Bibliography

Hugh Collins, Implied Terms: The Foundation in Good Faith and Fair Dealing; Hanoch Dagan and Michael Heller, The Choice Theory of Contracts (CUP 2018), especially ch 9-11, soon available as e-book; Christian Twigg-Flesner, Foundations of International Commercial Law, chapters 4-8; purchased as e-book by the library; Francisco Manuel de Brito Pereira Cohelho, Contratos Complexos e Complexos Contratuais (pp. 25-76), available on Moodle; Carlos Ferreia de Almeida, Contratos II (Almedina 2021), especially ch 1 and 4, available in the library; Guido Alpa, Contratti Tipici e Contratti Atipici (pp. 799-809), available on Moodle; David Tollen, The Tech Contracts Handbook: Software Licenses, Cloud Computing Agreements, and Other IT Contracts for Lawyers and Businesspeople (American Bar Association 2021). Database of contract templates: www.lawinsider.com.

 

Helena Haapio and George J. Siedel, A Short Guide to Contract Risk (Gower 2013).

 

Aubrey Diamond, "Harmonization of Private International Law relating to Contractual Obligations" Collected Course of the Hague Academy of International Law, pp. 26-7; Fabrizio Esposito, The Consumer Welfare Hypothesis in Law and Economics (EE forthcoming), parts of chapters 1, 4, 5, 6 and 7; Martjin Hesselink, Justifying Contract in Europe (OUP 2021), especially ch 1 and 2; notes of the class.

 

Peter Schlechtriem, and Petra Butler. UN Law on International Sales -The UN Convention on the International Sale of Goods (Springer 2009); purchased by the library. UNCITRAL. Digest of Case Law on the United Nations Convention on Contracts for the International Sale of Goods (United Nation 2016); available online free of charge. Richard Gardiner, Applying the Vienna Convention on the Law of Treaties, available here. Francesco Rossi Dal Pozzo, EU Legal Framework for Safeguarding Air Passenger Rights, especially Chapter 6 (Springer, 2014); Josep Becj Serrat, ¿An Overview of the Proposal for a New Package Travel Directive¿, available on Moodle.

 

Stephen Weatherill, The Contract Law of the Internal Market (Cambridge University Press 2016), chapters 1 and 4, available as e-book by the library.

 

Margarida Lima Rego, "Portugal" in Insurance Law and Regulation, chapter 41 (Reuters 2019), available on Moodle.

 

Geraint Howells et al., Rethinking EU Consumer Law, especially chapter 1 (Routledge 2018), available in the library; Giorgio Monti, "EU competition law and European private law" in The Cambridge Companion to European Union Private Law, chapter 21 (CUP 2015).

 

Martim Farinha, title tbc; David Tollen, The Tech Contracts Handbook: Software Licenses, Cloud Computing Agreements, and Other IT Contracts for Lawyers and Businesspeople (American Bar Association 2021).

Teaching method

Theoretical-practical approach.

Evaluation method

Final exam

The final exam consists of practical and theoretical questions., one for each part. The final mark is the arithmetic mean of the questions, rounded up if the final grade is > 0,5. The exam is NOT open book. Only a copy of the legislation covered during the course can be used during the exam.

Continuous evaluation

IMPORTANT: only students attending 50% of the taught hours can be graded as part of the continuous evaluation.

The purpose of continuous evaluation is allowing students to cultivate their own interests in relation to contract law and enable them to have a more personalized learning experience. Students opting for continuous evaluation can choose not to take the final exam. If students take the final exam, the grade obtained through continuous evaluation prevails only if higher than the grade of the final exam. The minimum passing grade for the continuous evaluation is 9,5; it is not necessary that each part, individually considered, is above 9,499; the important is that the combination of the grade of the group assignment and of the final test is above 9,499.

The grade of the continuous evaluation is given by

  1. A multiple-choice test on Part I, counting 20%, which will take place on Moodle
  2. A group assignment, counting 30%; apply the characteristic creditor welfare hypothesis to legal materials related to a contract type of your choosing
  3. An open question test, counting 50%, on Parts II and III

One (1) bonus point will be attributed to students who distinguish themselves for their active participation during the classes.

Group assignment

The rules are the following:

  • Groups are composed of up to five students; group formation is the responsibility of the students
  • Each group has to write an essay of up to 2000 words in English;[1] there is no oral presentation
  • Time will be dedicated to Q&A about the group assignment
  • Two groups cannot analyse the same set of legal materials (but it is possible to lock at the same contract type if the groups consider different sets of legal materials)
  • Papers have to be uploaded on Moodle as word documents and must clearly indicate the name of the group members

Tests

The tests are open book.

Further instructions will be provided before each test.

 

[1] Apps like Grammarly, Google translate and DeePL can assist you in improving the quality of your writing in English.

Subject matter

Introduction

Part I: Contract types and unity

  1. The notion of a type
  2. Sale and connected contractual types: Overview
  3. Contract management principles
  4. Focus on exchange contracts: The characteristic creditor welfare hypothesis 

Part II: The CISG

  1. Overview
  2. Scope of application and other general provisions, including final provisions
  3. Formation, contract integration, and modification
  4. Party obligations and remedies
  5. Focus: Fundamental breach and termination
  6. Comparison with sale directive 2019/771
  7. Supply chain liability and human rights

Part III: The EU as a source of contract law

  1. Contract law and EU primary and secondary law
  2. Air passenger rights regulation
  3. Package travel directive
  4. Competition law
  5. Regulated industries: insurance and energy
  6. Public procurement

Programs

Programs where the course is taught: