The main subject of this course is the transnationalisation of modern contract and movable property law and the merits of efforts at formalisation of uniform private law especially at the EU level, now through the Draft Common Frame of Reference (DCFR). The course will start with a discussion of the differences between common and civil law in these areas, of the objectives and draw backs of statutory law and codification, of the effects of statism and legal positivism on the development of modern commercial and financial law, and of the older more fluid notions of universal law. It will highlight the key distinction between professional law and consumer law, the status in a globalising business world of different sources of law in the former, especially fundamental principle, custom, general principle, and party autonomy, the emergence of a new transnational law merchant or modern lex mercatoria and the reducing importance of domestic private law but also the continuing relevance of domestic regulation in international business dealings. The operation of commercial and financial law at the transnational level is here viewed as a dynamic process as shown in the modern use of the notion of good faith in contract law and of party autonomy in movable property law. For movable property this leads to special interest in the notion of trusts, conditional and temporary ownership rights, floating charges, assignment, set-off and netting as largely developed in equity in common law countries. This is considered to be of special importance in modern international finance. Newer ideas about the issues of certainty and finality will be considered and the modern functional approaches, especially of Law and Economics, will be explained and their meaning and importance assessed.
International and Comparative Contract Law and the Law of Movable Property
10 ECTs / 48h / English