2023 saw the publication of the third edition of the highly acclaimed book Comparative Contract Law by Thomas Kadner Graziano, published by Edward Elgar. The subtitle of the book has changed from Cases, Materials and Exercises to Exercises in Comparative Methodology. This emphasises the key feature of the book: the use of case studies. Instead of explaining the rules of various legal systems just in the abstract, the book presents a number of factual scenarios, and for each scenario it presents the relevant rules of a range of legal systems and transnational instruments, concluding with a summary of the various solutions. This method enables students and other readers to engage in multilateral micro-comparisons, the benefits of which are outlined by Kadner Graziano (pp. 18-19):
- students actively train themselves in comparative methodology;
- students overcome a potential discomfort in considering materials from unfamiliar jurisdictions;
- it eliminates the risk that the rule found in one’s own jurisdiction is regarded as the only possible or reasonable rule (a risk that has not spared the present author);
- students get familiar with different styles of legal reasoning, which enables them to better communicate with colleagues trained in other jurisdictions;
- students learn that they can benefit from experiences made in other jurisdictions.
The book is divided into two Parts: the Introduction (Part A) and the Case Studies (Part B).
The Introduction contains observations about comparative methodology in general, beyond contract law and even beyond private law. In Chapter 2, Kadner Graziano identifies significant developments in recent decades (pp. 7-10). Traditionally, he says, a comparison often started with a single jurisdiction as the point of reference, and the purpose of the comparative exercise was to improve or reform the law in that jurisdiction. It was a national, and often bilateral, approach to comparative law. Today, commercial activity and legal practice often take place in a transnational context, requiring lawyers to engage with a range of different legal systems, research international tendencies and find the best solution on an international level. A multilateral comparative method is needed. It should be added that multilateral comparative projects have been greatly facilitated by the technological advances in recent times, which have made it much easier for lawyers and scholars around the globe to communicate with each other and access the laws of many countries.
Kadner Graziano’s following observation may be more significant. In Europe, legal systems used for comparison were traditionally chosen from the three most influential legal systems: English law, French law and German law. Today, a comparison of just those three legal systems may not reveal the best solution that European legal systems have produced. Many European countries have overhauled their civil code or enacted a new civil code in the past 30 years, producing a wider variety of solutions for a particular problem.
It may be added that there are now a number of transnational legal instruments, particularly in the area of contract law (such as the United Nations Convention on Contracts for the International Sale of Goods and the UNIDROIT Principles of International Commercial Contracts). They are themselves the product of comparative legal research, and should be included in a multilateral comparative exercise, as indeed done in the book under review.
The majority of Part A is devoted to the question of whether it is legitimate and beneficial for judges to compare legal systems (Chapter 3). This discussion might be thought superfluous on the ground that a reader of the book will already be minded to give an affirmative answer. However, Chapter 3 is useful. There is still resistance to the idea of judges considering foreign law when deciding on their own law. This is particularly true for constitutional law but also beyond. Prominent critics of the judicial use of foreign law are the former Justices of the US Supreme Court Antonin Scalia and John Roberts:
- Antonin Scalia, “Keynote Address: Foreign Legal Authority in the Federal Courts” (2004) 98 American Society of International Law Proceedings 305, available through https://www.jstor.org/stable/25659941.
- US Senate Judiciary Committee, Confirmation Hearing on the Nomination of John G Roberts Jr to be Chief Justice of the United States, 12-15 September 2005, p. 201.
Kadner Graziano presents the arguments of the critics (pp. 23-27): foreign law lacks democratic legitimacy in the receiving country; a rule of domestic law must be interpreted in its own social, political, cultural and historical context; legal science is largely a national science; judges are unable to undertake a proper comparative exercise due to insufficient proficiency in foreign laws and languages; judges would “cherry-pick” the foreign laws that support the outcome they prefer.
He rejects these arguments on the following grounds (pp. 27-37): the danger of “cherry-picking” is not unique to the comparative method but also exists in relation to domestic cases and scholarship, which could be cited selectively; the content of foreign law is now much more accessible (both linguistically and logistically) than it used to be, because of the advent of the internet and the harmonisation projects undertaken by various groups; choice-of-law rules may require judges to apply foreign law; the comparative method need not be applied in every case but only where the judge has reliable information on the content of foreign laws; in some countries (such as Austria, Belgium and Switzerland), legal science has never been limited to a single national law, and legal science becomes more and more internationalised; legislators in many countries have used the comparative method; the comparative method can and should be combined with the systematic interpretation, preserving the coherence within the domestic law; foreign law can only ever be of persuasive authority and cannot be used where the text of the domestic law leaves no room for different interpretations.
Kadner Graziano’s arguments are convincing. There are many examples of courts using the comparative method competently and to beneficial effect. One example is Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32, where the House of Lords (which was then the highest court of the United Kingdom) considered the laws of several other countries in finding an appropriate liability rule for the scenario where multiple wrongdoers created the risk of the same harm occurring, but only one of them actually caused the harm and it cannot be determined which one.
Part B of the book contains the case studies mentioned above. Each case study starts with a scenario inspired by the case law of a European country. This is followed by questions on the solutions in various legal systems subsequently covered. The questions are a welcome feature as they prompt the reader to study the following material with a particular focus. In each case study, a range of legal systems and transnational instruments is considered, and statutory provisions, extracts from court decisions and secondary materials are presented. Material not originally in English is presented in English translation, but the original language version is included for statutory provisions and extracts from court decisions. A particularly useful feature is the presentation of extracts from court decisions not only in common law countries (where they constitute a source of law) but also sometimes for civil law countries, demonstrating how a particular statutory provision has been interpreted. Where appropriate, a case study finishes with a systematic overview, listing the various solutions and, for each solution, listing the legal systems and transnational instruments adopting that solution.
As mentioned above, the case studies invite and enable students of comparative law and other readers to engage in multilateral micro-comparisons. In addition, the exposition of the relevant rules of a number of countries constitutes a rich source of information for academics, judges, practitioners and others who wish to familiarise with the rules in one or more countries without necessarily engaging in a multilateral comparative exercise.
A new feature in the third edition is the provision of a brief overview of each country’s history and legal system, which is done whenever a country appears for the first time in the case studies. This is very useful and has been done excellently in terms of style and depth. Kadner Graziano skilfully managed to find the right balance between providing too little and too much information.
The third edition contains one new case study, which is on contractual penalty clauses. This topic is not only of great practical significance, it is also helpful for comparatists because of the different attitudes of civil law and common law systems (investing the court with the power to reduce the amount where excessive vs. refusing to enforce contractual penalties at all) and because of recent developments in some common law countries. In English law, a clause requiring the payment of a particular sum on breaching the contract used to be regarded as an unenforceable penalty unless it was a genuine pre-estimate of the loss: Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79. However, in Cavendish Square Holding BV v Makdessi [2015] UKSC 67, the United Kingdom Supreme Court ruled that such a clause is a penalty only if it is out of all proportion to the innocent party’s legitimate interest in the performance of the primary obligation. Thus, the Court made it harder for courts to strike down a clause as a penalty. The book presents this development. It would be useful if it also mentioned that the new test has been adopted in Australia (Paciocco v ANZ [2016] HCA 28) and New Zealand (127 Hobson Street Ltd v Honey Bees Preschool Ltd [2020] NZSC 53) but not in Singapore (Denka Advantech Pte Ltd v Seraya Energy Pte Ltd [2020] SGCA 119).
The case studies are excellent in relation to the legal issues and countries they cover. However, someone keenly interested in comparative contract law may wish to see more issues and countries included. The case studies cover issues relating to the formation of the contract, performance and choice of law. In a future edition, it will be helpful to have additional case studies on the interpretation of contracts, the enforceability of clauses that purport to exclude or limit liability, and factors that may render a contract void or voidable (such as a threat, an incorrect statement of fact or an error on the part of one or both parties).
The laws of 24 European countries are considered throughout the case studies, including a number of formerly socialist countries. This is an impressive range. By contrast, the only non-European jurisdictions considered are China, Quebec, South Africa and the United States. Less than half of the world’s population lives in the countries whose laws are considered in the book. Only four of the twenty most populous countries are considered. It would be helpful if a future edition included countries such as Brazil, India, Indonesia, Japan and Nigeria, to make the book less Eurocentric and acknowledge the presence of a wide range of legal cultures in the world.
None of this is to take away from the profound contribution the book makes towards comparative scholarship in general and comparative contract law in particular. The book is stimulating, provides easy access to an impressive range of materials on many legal systems, and is essential reading for anyone interested in comparative contract law at a European or international level.
Posted by Dr Sirko Harder, Reader in Law, Sussex University
Suggested citation: S Harder, ‘Review of Thomas Kadner Graziano, Comparative Contract Law: Exercises in Comparative Methodology (3rd edn, Edward Elgar Publishing 2023)’, available at https://british-association-comparative-law.org/2023/12/08/thomas-kadner-graziano-comparative-contract-law-exercises-in-comparative-methodology-3rd-edition-2023-reviewed-by-sirko-harder/
British Association of Comparative Law 