Comparative Reflections in Private Law : Essays in Honour of Simon Whittaker.

Format:

Book

Author/Creator:

Cappelletti, Marco.

Contributor:

Cappelletti, Marco

Kennefick, Ciara

Leczykiewicz, Dorota

Language:

English

Physical Description:

1 online resource (574 pages)

Edition:

1st ed.

Place of Publication:

Oxford : Oxford University Press, Incorporated, 2026.

Summary:

This book celebrates the work of Professor Simon Whittaker, a leading figure in comparative private law. Bringing together contributions from distinguished scholars, it explores a wide range of topics in private law, particularly in contract, tort, and restitution.

Contents:

Cover

Half Title

Photograph

Title Page

Copyright Page

Preface

Contents

List of Contributors

Introduction: Simon Whittaker and Comparative Law

PART I. CONTRACT LAW

1 Pragmatism in French Law: The Case of Mistake

I. The Problem: Principle or Pragmatism

II. The Doctrine of Mistake in the Civil Code of 1804-2016

III. How the Text Developed

A. 'Substance'

B. Mistake as to a substantial quality and mistake as to value

C. Consent

D. Cause

E. Fraud and mistake

F. Term of the contract and hidden defects

IV. Pragmatism at Work

A. Principle and pragmatism

B. Scholarly writing and the courts

V. Conclusion

2 A Dangerous Method: Genealogy in the Interpretation of Contracts

I. Introduction

II. Text and Context

III. Acte Clair

IV. Our English Brethren

V. Of Pleading and Evidence

VI. Procedure as a Key to Substantive Law

VII. Convergence?

VIII. Divergence?

IX. Conclusion

3 Remedies for Defects in the Formation of a Contract: Learning by Comparing

I. Terminology and Context

A. Remedies for defects in formation: terminology

B. Remedies in the context of the rules for formation

C. The remedies chosen for discussion

II. Void, Voidable, and Unenforceable: Comparing the Categories

A. Categories defined by degrees of defect

B. The French approach to degrees of defect in the contract

C. The English approach to degrees of defect in the contract

III. English Law: Learning by Comparing? Void Contracts and Relatively Void Contracts?

4 Performance, Reasonableness, and Proportionality: English and French Remedies Law

II. The Performance Interest in English law

A. The origins of the performance interest in English contract law

B. The growing recognition of the interest in obtaining performance.

(i) Interest in obtaining performance that goes beyond compensation

(ii) Growing significance of the performance interest in the context of penalties

C. The interest of the promisor in rendering performance

D. Obtaining performance v rendering performance: a distinction poorly articulated

III. The Growing Significance of Reasonableness and Proportionality in the French Law of Contractual Remedies

A. Reasonableness in the context of 'replacement'

B. Proportionality in the context of specific enforcement

C. Reasonableness and proportionality in the context of compensatory damages?

IV. Concluding Comparative Observations

5 The Impact of Illegality in French Contract Law: A Reflexive Endeavour

II. Antecedent Illegality

A. The subsequent disappearance of illegality

B. The ongoing illegality

III. Subsequent Illegality

A. The legal basis of subsequent illegality

B. The effects of subsequent illegality

IV. Conclusion

6 Doctrines of Change of Circumstances, Covid-19, and Special Measures

Foreword

II. Change of Circumstances: An Introduction

III. Change of Circumstances: An Outline of Current Doctrines

IV. Variety and Complexity in the Doctrine of Change of Circumstances

A. An extended notion of impossibility

B. Limits on type of cases

C. Variations in remedies

(i) Termination only

(ii) Priority between remedies

(iii) (Re-)negotiation

D. Other legal bases for adjustment

E. Mandatory?

F. Variations in readiness to apply the doctrine

V. Covid-19 and Special Measures

VI. Change of Circumstances and Covid-19 Measures

VII. 'Rebalancing' in England and Wales

VIII. Conclusion

PART II. TORT LAW

7 Violation of a Right and Tort Law

I. The Three Functions of Rights in Tort Law: Structural, Doctrinal, and Rhetorical.

II. The Centrality of Rights in German Tort Law

III. Fragmentation of English Tort Law

IV. Looking for Rights in French Tort Law

8 Foreseeability in the Law of Torts: A Comparative Analysis

II. The Concept of Foreseeability

III. Foreseeability and Conduct

A. English law

(i) Foreseeability and the standard of reasonable care

(ii) Foreseeability of interference in the tort of private nuisance

B. French law

(i) The meanings and flexibility of la faute: an obstacle to the concept of foreseeability

(ii) Fault, strict liability, and foreseeability

IV. Foreseeability and Causation

(i) Remoteness in negligence law

(ii) Remoteness in strict liability torts

(i) Foreseeability in French causation: the theory of adequate causation

(ii) The relevance of foreseeability in causation

V. Foreseeability and Defences

A. Unforeseeability as a reason to reject liability in English law

B. Unforeseeability as an autonomous requirement of force majeure in French law

VI. Conclusions

9 Justifying the Denial of Compensation for Pure Economic Loss

II. Pure Economic Loss in French Law

III. An Interest-based Approach to Pure Economic Loss

10 A 'Pilfered Ginger': Tort Claims for Harm Caused by Products Involving Illegality

II. Product Liability

A. Strict liability

B. Defences

III. Illegality

A. Types of illegal claims

(i) Unilateral illegality

(ii) Joint illegality

(iii) Joint wrongdoers

(iv) Sanction-shifting

B. Types of illegality losses

C. Types of responses to illegal claims in tort law

D. The current law in England: illegality as a defence to a tort claim

IV. Illegality and Products

A. The past

B. The present

C. The future.

V. The Mechanics of Integrating Areas of Law

VI. Conclusion

PART III. BETWEEN AND BEYOND CONTRACTAND TORT

11 The Subsidiarity of Unjustified Enrichment

A. The bone of contention

B. Mapping civil law and common law jurisdictions that establish subsidiarity of unjustified enrichment

C. Restrictive and broadening applications of subsidiarity in theory and practice: from 'strong' (in abstracto) to 'weak' (in concreto) versions

D. The trend towards the abandonment (or mitigation) of subsidiarity in case law and model rules

II. Subsidiarity of Unjustified Enrichment vis-à-vis Contract

A. Two-party cases

(i) Contractual risk allocation and failure of basis (or consideration)

(ii) Voidness, avoidance/rescission, termination, frustration of contract

B. Three-party cases

III. Subsidiarity of Unjustified Enrichment vis-à-vis Property

A. Restitution of an asset and vindication of a right

(i) Personal and proprietary remedies

(ii) Civil law jurisdictions

(iii) Common law jurisdictions

B. Two-party cases

C. Three-party cases

IV. Unjustified Enrichment vis-à-vis Tort

A. French and Italian law

B. German and English law

V. Concluding Remarks

12 Harmonizing Contract Law without a Common Terminology: Comparative Law Perspectives

I. The EU Initiatives to Harmonize European Contract Law

II. The National Reactions to the EU Efforts to Harmonize European Contract Law

III. The Centrality of the Civil Code

IV. Implementing Directives outside the Civil Codes

V. Different Attitudes of National Lawyers towards the Europeanization of National Laws

VI. The Role of the Court of Justice of the European Union

VII. The Attitude of National Judges

VIII. Conclusions

List of Publications by Simon Whittaker

Index.

Notes:

Description based on publisher supplied metadata and other sources.

ISBN:

0-19-895914-1

9780198959144

OCLC:

1569996050