Comparative Law of Obligations (Edward Elgar 2021), by Dario Moura Vicente

Albeit universally known, the concept of Law of Obligations is far from being a unitary one in the various legal traditions. This book provides a comparative overview of the fundamental sources of obligations across national borders: contracts, unilateral legal transactions, torts, negotiorum gestio and unjust enrichment.

These institutions form the core of the Law of Obligations, which is examined here from the perspective of the world’s major legal traditions, including the Civil Law, the Common Law, the Islamic and the Chinese. The book seeks to provide insights into how differently those basic legal institutions are regulated across national borders, as well as to unveil the roots of those differences.

Starting with contracts, the book focuses, from a comparative perspective, on their constitutive elements and formation; the effects of pre-contractual fault (culpa in contrahendo); contractual form, interpretation, gap filling and correction of contracts; standard contract terms; absence of and defects in parties’ consent; contracts’ effects in the relations between the parties and in respect of third parties; the control of contractual fairness; and the performance and non-performance of contractual obligations. This chapter of the book concludes with an analysis of the fundamental principles underlying contractual enforceability, namely private autonomy, protection of reliance, contractual fairness and economic efficiency, and the extent to which they have found acceptance in the legal traditions examined.

The book then addresses the issue of whether, and to what extent, unilateral legal transactions are allowed as autonomous sources of obligations. Contrary to what occurs in respect of contracts, a numerus clausus system prevails in several legal systems, such as the German and the Portuguese, in respect of such legal transactions, whereby the law only confers the power to create obligations unilaterally upon individual intent in a select number of situations expressly prescribed by statute. This is the so-called “contract principle”. The book seeks to explain the reasons underlying this principle and examines a number of typical unilateral legal transactions, such as the promise of a reward, or prize competitions. It also reports on legal systems, such as the English and those of most American States, which do not enshrine the notion of a unilateral legal transaction, and where contracts are accordingly the sole conceivable source of voluntary obligations.

Next, the book explores non-contractual liability as a source of obligations. It starts by defining the notion of non-contractual liability and the basic problem addressed by the rules governing it. It then outlines the main systems evidenced by legal comparison in respect of the definition of liability generating factors and explains the reasons that account for those different systems. The book then examines the main requirements of tort liability, as well as the situations in which strict liability is exceptionally allowed by certain legal systems, as well as their main consequences, namely the duty to pay compensatory damages. Special reference is made to the compensability in tort of pure economic losses. The book then proceeds to distinguish between contractual and non-contractual liability and examines the expansive trends of non-contractual liability in certain legal systems, notably the English. This chapter concludes with an analysis of the problems posed by the concurrence of contractual and tortious liabilities and the solutions provided for it in different legal systems.

The book subsequently deals with negotiorum gestio or benevolent management of another’s affairs – i.e., the situation in which a person takes over the management of the affairs of another, in the principal’s interest and on its behalf, but without the principal’s prior consent to do so. It enquires into the question of whether negotiorum gestio can operate as a source of obligations, both for the gestor and the principal. It describes the statutory enshrinements and basic traits of this institution in Civil Law systems, as well as their historical roots and social functions in those systems, and compares them with Common Law systems, which have traditionally rejected such situations as giving rise to an obligation of the principal to compensate the gestor for its expenses. It then seeks to explain the main reasons accounting for these differences, and describes the legal institutions that Common Law systems have developed in order to safeguard, in relation to certain categories of situations, the position of persons who interfere without authorisation in the legal sphere of others, such as agency of necessity and necessitous intervention by a stranger.

In the following chapter, the book seeks to provide an overview of the circumstances under which a shift of wealth, albeit compliant with the law, is held as entitling the disadvantaged party to seek recovery therefor. It starts by describing the enactments, scope and legal framework of unjust enrichment in Civil Law systems and explains the different approaches followed in its respect, inter alia, by French and German law. It then proceeds to compare those systems with others, particularly the English, which have thus far refrained from adopting a general doctrine of unjust enrichment entitling, e.g., a person who paid another’s debt to restitution and in which that person is required, in order to be granted restitution, to demonstrate the occurrence of an “unjust factor”, such as a mistake (either in fact or in law) incurred when making the payment. The chapter also examines certain Common Law remedies for specific unjust enrichment situations, such as the constructive trust.

The book then identifies the distinct concepts of the Law of Obligations that emerge from the comparative analysis previously undertaken with reference to the Civil Law, the Common Law, the Islamic and the Chinese legal traditions, and endeavours to explain their underlying motives.

The book finally tackles the question of whether and to what extent a convergence of those concepts of the Law of Obligations may be brought about by rules aimed at the international or supranational harmonisation or unification of this branch of the law. In this respect, the book reviews the background to the current initiatives with this purpose and examines the impact on the various categories of sources of obligations considered of the most significant international and supranational legal instruments in the area, such as the CISG, the Draft Common Frame of Reference, the UNIDROIT Principles for International Commercial Contracts, and European Directives aimed at the harmonisation of the Law of Obligations.

This book is the fruit of an extensive research conducted by the author over several years in the libraries of various reference institutions, including the Max Planck Institute for Comparative and International Private Law, of Hamburg, the Bibliothèque Cujas de Droit et Sciences Économiques, of Paris, the DuFour Law Library, of Washington, D.C., the Institut Suisse de Droit Comparé, of Lausanne, and the Institute of Comparative Law of Ludwig Maximilian University, of Munich.

Posted by Professor Dario Moura Vicente (Professor of Comparative Law and Private International Law at the Law School of the University of Lisbon).