An introduction to the comparative study of private law : readings, cases, materials / James Gordley, Hao Jiang, Arthur Taylor von Mehren.

Format:

Book

Author/Creator:

Gordley, James, author.

Jiang, Hao, author.

Von Mehren, Arthur Taylor, author.

Language:

English

Subjects (All):

Civil law--United States.

Civil law.

Civil law--England.

Civil law--France.

Civil law--Germany.

Comparative law.

Physical Description:

1 online resource (lxi, 672 pages) : digital, PDF file(s).

Edition:

Second edition.

Place of Publication:

Cambridge : Cambridge University Press, 2021.

Summary:

This collection of readings places side by side the principal doctrines of contracts, torts, unjust enrichment, and property in the cases of the United States, England, France, Germany and China. It presents code provisions, cases, and other legal materials that describe the law in force, and places each doctrine in its historical context to enable an understanding of the development of law as an ongoing process, in which the resolution of current issues depends upon how past issues were resolved. It both provides a road map of the private law of these jurisdictions, and illustrates how private law has been shaped by history, by the effort to solve common problems, and by differences in culture. This new edition reflects changes in the law, and includes the addition of Chinese Law as a comparative study.

Contents:

Cover

Half-title page

Title page

Copyright page

Contents

Preface

Foreword

Table of Abbreviations

Table of Cases

Table of Legislation

Table of Restatements and Kindred Sources

Table of EU Legislation

Table of Roman, Canon Law and Ancient Chinese Sources

INTRODUCTORY READINGS

I. TRADITIONS

A. The West

1. The Civil Law Tradition

a. Roman Law

i. The Roman Jurists

ii. The Medieval Jurists

b. The Natural Law Schools

i. The Late Scholastics

ii. The Northern Natural Law School

c. Codification and the Rise of Positivism

i. France

ii. Germany

iii. Conceptualism in France and Germany

2. The Common Law Tradition

a. The Writ System

b. Transformation in the Nineteenth Century

i. The Rationalization of the Common Law: From Writs to Legal Doctrines

ii. Positivism and Conceptualism

3. Since the Nineteenth Century

a. The Revolt against Positivism and Conceptualism

b. The Emergence of Comparative Law

B. China

1. Law in Imperial China

a. Law versus Li

b. Distributive Justice versus Commutative Justice

c. The Responsibility of the Family versus that of the Individual

d. A Law of Punishments

2. Law in Modern China

a. The Early Twentieth Century

b. The Republic of China (1911-1949)

c. The People's Republic of China

i. Some Persistent Problems

ii. The Socialist Experience

iii. The Reform

II. INSTITUTIONS

1. Germany and the United States

2. France

3. England

1. The Structure of the Court System

2. The Role of Judges

a. Managerial Judging

b. Service-Oriented Judging

3. Judicial Independence

a. Collective Independence of the Courts

b. The Influence of a Higher Court

c. The Political-Legal Committee

4. The Emerging Case Law System.

5. Professionalism

THE LAW OF OBLIGATIONS

Contract Law

I. THE STRUCTURE OF CONTRACT LAW

1. Civil Law

2. Common Law

3. Chinese Law

II.VOLUNTARY COMMITMENT

1. The Moment at which a Commitment Is Binding

Common Law

German Law

French Law

Chinese Law

The Draft Common Frame of Reference

The Unidroit Principles of International Commercial Contracts

2. Liability before a Final Commitment Is Made

English Law

Law in the United States

3. Mistake

a. The Search for a Rule

b. When Relief Is Granted

i. Mistakes in Authenticity

ii. Mistakes in Suitability for a Purpose

iii. Mistakes in Value

III. FAIRNESS

1. Fairness of the Price Term

a. Origins

Civil Law

b. Modern Law

c. Chinese Law and the State-Owned Enterprise

2. Fairness of the Auxiliary Terms

The Law of the European Union

IV. EXCUSES FOR NON-PERFORMANCE

1. Impossibility and Force Majeure

2. Changed Circumstances

V. REMEDIES

1. Specific Performance

English Law.

Law in the United States

2. Damages

a. The General Principle

b. Excessive Cost of Performance

c. Liquidated Damages

d. Recovery for Non-Economic Harm

e. Recovery for Unforeseeable Harm

i. Origins

ii. Modern Law

TORT LAW

I. THE SCOPE OF THE RIGHTS PROTECTED

1. Introduction: The Structure of Tort Law

a. Civil Law

i. The Civil Codes

ii. From Roman Law to Modern Code Provisions

b. Common Law

i. A List of Torts

ii. From the Forms of Action to the Modern Torts

c. Chinese Law

i. The Absence of Private Law

ii. The Sources of Contemporary Chinese Tort Law

iii. The Scope of Rights Protected

2. Harm to Dignity

a. Insult in General

Traditional Common Law

Modern English Law

Modern Law in the United States

b. Problems of Free Speech, Group Insult, and Minority Rights

3. Invasion of Privacy

a. Dissemination of Pictures

b. Dissemination of True Information

i. About Current Events English Law

ii. About Historical Events

Law in the United States.

French Law

c. Electronic Collection and Dissemination of Information

4. Purely Economic Harm

a. Liability in Principle for Purely Economic Harm

b. No Liability in Principle for Purely Economic Harm

ii. Note on Chinese Law

iii. Physical Harm to a Third Party's Property Anglo-American Law

iv. Plaintiff's Property Made Unusable

v. False Information

Harm Suffered Because Another Is Harmed

Traditional Anglo-American Law

II. THE CONDUCT FOR WHICH ONE IS LIABLE

1. Introduction

2. Intent

a. The Intention to Do Harm or to Do Wrong

b. The Intent to Cause a Different Harm or Commit a Different Tort

c. Intent and Knowledge

3. Negligence

a. The Meaning of Negligence

b. The Weighing of Consequences

i. An English Description

ii. Some American Descriptions

iii. Some French Descriptions

iv. Some German Descriptions

v. A Chinese Description

c. The Reasonable Person

i. The General Principle

ii. Children and the Mentally Ill

d. The Duty to Act

i. The General Principle English Law

ii. Implications of Recognizing a Duty to Rescue

4. Strict Liability

a. Liability for Dangerous or "Non-Natural" Activities

Chinese Law.

b. Liability for Harm Caused by Objects in One's Custody in French Law

i. Introduction

ii. The Rise of Strict Liability

iii. The Requirement of an "Act of an Object"

iv. Cas Fortuit and Force Majeure

v. "Guard"

vi. The Extent of Liability

c. Liability for Defective Products

Law in Europe

5. "Liability in Equity" in Chinese Law

I. THE PRINCIPLE: UNJUST ENRICHMENT

1. Origins

2. Modern Law

II. MUST ONE PARTY GAIN AT THE OTHER'S EXPENSE?

1. Recovery When the Plaintiff Did Not Lose

a. The Use or Violation of Another's Property Rights

b. The Question of What the Defendant Should Pay

2. Recovery When It Is Doubtful What the Defendant Gained

Anglo-American Law

3. Denial of Recovery When the Plaintiff Lost and the Defendant Gained: Chinese Law

THE LAW OF PROPERTY

Part Two THE LAW OF PROPERTY

I. Possession

1. Possession as a Means of Acquiring Rights

a. Wild Animals

Roman Law

b. Found Objects

c. Treasure

d. Adverse Possession and Prescription

a. Legal Remedies

Continental Law

b. The Debate over Why Possession Should Be Protected

i. Savigny

ii. Ihering

iii. Pollock

II. OWNERSHIP

1. The Boundaries between Private and Public Rights

a. Public Ownership of Land in China.

i. Exclusive State Ownership of Property.

Notes:

Title from publisher's bibliographic system (viewed on 04 Mar 2021).

ISBN:

1-108-87235-2

1-108-87687-0

1-108-86934-3

OCLC:

1249471100