LAW 3011 Comparative Contract Law Course Book 2021-2022

MAASTRICHT UNIVERSITY
FACULTY OF LAW
COMPARATIVE
CONTRACT LAW
COURSE BOOK
EUROPEAN LAW SCHOOL

BACHELOR – YEAR 1, COURSE PERIOD 2
2021-2022
LAW 3011
2
TABLE OF CONTENTS
Introduction 5
1. Content of this Course 5
2. Set-up of the Course 6
3. The Comparative Teaching Method 9
4. Course Etiquette 10
5. Materials 13
6. Student Portal/Canvas 16
7. Assessment 16
8. Learning Goals 18
9. Evaluation 18
10. Teaching staff 19
Week 1 Introduction and Contract Formation 1 20

Discussion Task: A Cascade of Contracts 20
Discussion Task: Creating a Law of Contract 21
Mapping Task: The Rules on Offer and Acceptance 21
Problem Task: Apartment and Bike for Sale 22
Problem Task: Just in Time? 23
Resources 23
Review Questions 24
Week 2 Contract Formation 2 25

Mapping Task: The Approach to Establishing Intention 25
Problem Task: Cutting Edge 25
Discussion Task: The Foundation for Contractual Liability 26
Discussion Task: “Without any further requirement” 27
Resources 28
Review Questions 28
Week 3 Legal Capacity, Formalities and Rights of Withdrawal 29

Mapping Task: The Rules on Legal Capacity 29
Problem Task: Justin, Jeremy and Dorothea 29
Discussion Task: The Capacity to Contract 30
Mapping Task: Right to Withdrawal in EU Law 31
Problem Task: Brad’s Birthday 31
Discussion Task 31
Resources 32
Review Questions 33
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Week 4 The Content of the Contract 33
Mapping Task: Interpreting the Terms of the Contract 33
Problem Task: What is a Chicken? 33
Mapping Task: Standard Terms/General Conditions 34
Problem Task: Shih Tzu 34
Discussion Task: Filling the Gaps 35
Discussion Task: To have good faith or not? 36
Resources 36
Review Questions 36
Week 5 Vitiating Factors 38

Mapping Task: Defects of Consent 38
Problem Task: The Citroën DS Break 39
Discussion Task: Limitations of Freedom of Contract 39
Problem Task: Sweet Betty 39
Resources 40
Review Questions 41
Week 6 Contractual Remedies 1 42

Mapping Task: Remedies of Performance and Termination 43
Problem Task: KNB Lisbon 43
Discussion Task: Remedies 44
Resources 44
Review Questions 45
Week 7 Contractual Remedies 2 46

Mapping Task: The National Rules on Damages 46
Problem Task: KNB Lisbon (Continued) 46
Discussion Task 47
Resources 47
Review Questions 47
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Introduction
1. Content of this Course
Contracts are legally enforceable agreements between persons. Individuals make contracts to
obtain the goods and services they desire, such as a meal, a train ticket, a computer or a bank
loan. In addition, companies need contracts to conduct their business affairs. This makes
contracting an everyday activity that is regulated and facilitated by the law of contract.
The aim of this course is to introduce you to the law of contract in a comparative manner. You
will gain a basic understanding of the nature of a contract, the underlying principles of contract
law, and the law with respect to contract formation, the contents of the contract and the
remedies for breach of contract. The course is comparative throughout. This means that each
problem of contract law is not addressed from the viewpoint of one national law, but will be
discussed by looking at the solutions provided in various jurisdictions. In particular, French,
German, English and Dutch law are discussed, but other legal systems will also come to the fore.
All this provides you with a profound knowledge of the alternative ways to deal with contractual
problems.
Five main questions are addressed in this course:
1. What is a contract?
2. What are the main principles of contract law?
3. How does a contract come into being (formation)?
4. What are the rights and obligations of the parties under the contract (contents)?
5. Which contractual remedies are available if one of the parties does not perform its
obligations under the contract (contractual remedies)?
The course builds upon the brief introduction to contract law you had in Introduction to Law
(course period 1). Subsequent courses in the European Law School will build upon the knowledge
you will gain in this course. Although the course is designed for first year students in the European
Law School, it is also open to exchange students with previous knowledge of contract law in their
own country, as well as to students in other bachelor programmes at Maastricht University. As
this is an introductory course, no other knowledge or skills are required than intellectual curiosity
and willingness to learn.
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2. Set-up of the Course
The set-up of the course reflects the problem-based learning approach that promotes effective
student-centred learning. At Maastricht University, problem-based learning means that learning
is constructive, contextual, collaborative and self-directed. The course reflects these four
principles of problem-based learning as the learning activities and method are designed in such a
way to actively engage you in building your own understanding of the field of contract law
(constructive), by working on problems that reflect real-life situations (contextual), together in in
a tutorial group because learning improves when you do it together (collaborative), and by having
you actively engage with the learning materials through independent, self-directed study. During
the course we will use different types of tasks to work through the field of contract law.
The general method taken in the course will be as follows:
1. Independent, self-directed study (Preparation)
You start each module with independent, self-directed study, during which you study the relevant
materials for that week’s module. This includes reading the relevant parts of the textbook,
watching the CCL videos, looking up and analysing the relevant legislative provisions and reading
and analysing the case law indicated. Following your preliminary study of the materials, you
prepare (i) the mapping tasks to provide you with a structured outline of the relevant law, (ii) the
discussion task, and (iii) the problem task(s) to be discussed during the tutorial. As part of your
preparation for the tutorial, you might also work together with other students.
Self-directed study consists of reading and understanding the materials and thoroughly preparing
for the discussion during the tutorial. Although everyone studies in their own way, the textbook
gives some suggestions on how to study. The introductory modules on study skills and legal skills
m in New-B may also be helpful in approaching your preparation. Self-directed study means more
than just simply reading the textbook. It requires that you actively engage with the materials so
that you can construct your own understanding of the subject matter covered in the various
tutorials. The course book identifies the relevant reading material for each week. Of course, you
are also encouraged to consult other materials.
During your self-directed study in preparation for your tutorial, consider the following:
1. Identify what you already know about the problem/topic. (activate your existing knowledge)
2. Identify what you don’t yet know and need to know about this topic to answer the questions
and/or solve the problem. (identify required knowledge)
3. Identify the resources you need to find the relevant information.
4. Review, analyse and evaluate the information.
5. Apply the information you have analysed to answer the question / solve the problem /
distinguish different perspectives or approaches.
6. Identify what you are still uncertain about and would like to discuss with fellow students
during the tutorial.
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2. Tutorial
The tutorials are designed to discuss selected issues and topics. Not all topics addressed in the
reading materials, videos or in this course book can be discussed in the tutorials, but you are
encouraged to raise questions about matters you have read but were not discussed in class. The
course book provides a number of different tasks that will help focus your preparations and the
discussion in class. We will use different types of tasks:
DISCUSSION TASK – discussion tasks are aimed at generating understanding of the

general topic and identifying different perspectives that can be taken with respect to a
particular topic. During the tutorials we will engage in a discussion with a view to
identifying different perspectives that can be taken with respect to a particular topic. You
are expected to participate actively in the discussion. Depending on the topic, you may be
asked to debate a particular point of view. The discussion tasks, or a combination of them,
will constitute the foundation for some of the conceptual or more theoretical questions
in the exam.
MAPPING TASK – You are asked to map the law concerning the particular topic
that is the subject-matter of the week’s tutorial. The purpose of this mapping exercise is
to help you obtain an overview of the law in the different jurisdictions we will encounter
during the course with respect to the topic being studied. We will not discuss the mapping
task during the tutorial; it is a study task. That being said, completing this task is essential
to subsequently being able to participate in a discussion or to solve a case. The mapping
tasks are also a useful tool for revision and preparation for the examination.
You are free to decide how to complete this mapping exercise, e.g. using a table, mind
map, index cards et cetera. Your tutor may ask to see your mapping task before or during
the tutorial to ensure that you have completed it. In your mapping task, you should
provide sufficient information to understand the requirements of the law; it is not
sufficient to just write down the relevant article number – this will not be enough to help
you solve cases and make comparisons.
PROBLEM TASK – During each tutorial there will be one or more hypothetical cases
which need to be solved. To prepare for the tutorial, you should analyse the case using
the IRAC method: (i) analyse the facts of the case to identify the relevant legal issue(s),
(ii) identify and analyse the relevant legal rules, (iii) apply the rules to the facts of the case,
and (iv) draw a conclusion that answers the issue(s) identified under (i).
If you are uncertain about legal analysis and the IRAC method, please review the module
Introduction to Legal Skills in New-B.
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REVIEW QUESTIONS – Review questions are aimed to help you understand the
materials. These questions are in principle not addressed in the tutorials, but serve as
control questions for yourself. The answer to these questions can be found in the
materials.
The online plenary session at the end of each week will have two main components. Firstly, there
will be a weekly wrap-up during which common problems, further details and remaining questions
will be discussed. This is an interactive session in which the lecturer will also regularly call upon
students to help with answering questions and to initiate debate on disputed matters. Secondly,
there will be a presentation that will either zoom in on particular, potentially problematic aspects
of the week’s topics or discuss case law in greater detail, or zoom out to discuss issues relating to
contract law from a different or broader perspective. These plenary sessions will not be recorded.
Please note: in line with the Maastricht teaching method, each student is required to study
thoroughly the prescribed materials, to prepare the tasks and to consider the solution of the
cases before coming to class. The tutorials are devoted to a discussion in which each student is
expected to actively participate. Your tutor is not satisfied with only listening to those who
volunteer, but will actively call upon everyone to contribute. Problem-based learning (PBL) stands
or falls with active participation by everyone.
A quick study load equation - The course Comparative Contract Law accounts for 6
ECTS in your bachelor programme. 1 ECTS stands for 28 study hours; therefore the workload for
this course is 168 hours. So, let’s do a little calculation:
168 hours
-28 hours (classes: 7 lectures and 7 tutorials)
-------------
140 hours
- 40 hours (assignment and exam preparation)
-------------
100 hours
÷ 7 weeks
-------------
14.3 hours per week of independent, self-directed study
There are no quick answers; the law is not black and white. You will find that there can be
significant uncertainty about the content of the law, even on important issues. This is inherent to
legal reasoning: there is almost never one defined outcome and how the law reads depends on
how arguments are balanced. It is a part of this course that you start to learn to deal with this
uncertainty and to learn how a lawyer can use this to his or her client’s advantage. It is also natural
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to find some topics difficult and confusing. If so, please try to define in class what you find difficult
about it or consult your peers. When learning something new, it is normal that it challenges you
and that you find it difficult: this is the very nature of learning. Don’t become discouraged, instead
recognize that this is part of the learning process.
3. The Comparative Teaching Method
The aim of this course is to introduce you to the law of contract in a comparative manner. You
will gain a foundational understanding of the nature of a contract, the underlying principles of
contract law, and the law with respect to contract formation, the contents of the contract and the
remedies for breach of contract. The course is comparative throughout. This means that each
problem of contract law is not addressed from the viewpoint of one national law, but will be
discussed by looking at the solutions provided in various jurisdictions. In particular, French,
German, English and Dutch law are addressed, but other legal systems will also come to the fore.
The purpose of approaching the study of contract law from a comparative perspective is to offer
you knowledge and understanding of the alternative ways to deal with contractual problems. You
will see that each legal system needs to deal with the same key questions, however the way in
which they do so may differ in detail or reflect different policy choices.
The main challenge for you will be to keep sight of the overall core issues that contract law deals
with, while also being able to work with the technical, detailed rules in different legal systems to
gain a better understanding of the way in which contract law functions.
In addition to looking into national contract laws, we will also be looking at various EU directives.
The important thing to remember when dealing with EU directives is that they are not directly
applicable. They need to be implemented into the national legislation of the EU Member States.
Thus, the rules you will find in the EU directives have been transposed into national codifications
and/or statutes. The purpose of directives is after all to harmonise the national laws of the
Member States to reach a certain result, while leaving the way in which this is achieved to the
Member States. During this course, however, we will not be looking into the national
implementations of the directives we are studying. Instead, we will be studying the directives and
applying them directly to problem tasks. It is important to recognize that this is not the proper
way in which to approach the application of a directive.
Throughout the course and in the textbook, you will encounter frequent references to the
Principles of European Contract Law (PECL). Although the PECL are a valuable educational tool to
help in understanding the core issues of contract law, it is important to recognize that they are
not law and do not represent a European contract law that is in force. For this reason, if you are
asked a question concerning a particular legal system (e.g. French, English, Dutch or German law)
– whether it be in the tutorial or on the exam – you should not answer on the basis of the PECL.
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4. Course Etiquette
The CCL teaching team aims to create a learning environment in which all students are able to
actively participate and contribute with a view to enhancing everyone’s learning experience. For
this reason, you will find some information below on our expectations for working together:
All students are expected to attend both the tutorials and the plenary session. You should arrive
in class prepared to discuss the day’s tasks. Nevertheless, we understand that there may be
occasions when other matters prevent you from full preparation. If such an occasion arises, you
are asked to notify your tutor before the class begins that you are unprepared. Failure to notify
your tutor in advance that you are unprepared is not appreciated. In the exceptional case that
you are unable to attend the tutorial, you should email your tutor in advance to inform him/her
that you will not be present.
Students are not allowed to transfer between classes without the express written permission of
the course coordinator. This permission will be granted only in exceptional circumstances.
Incorrect registration by you or your representative, employment obligations and the
impossibility to travel to Maastricht on time do not count as such. The high number of students
taking this course requires us to adopt this strict policy.
Students are asked to avoid tardiness. If it is, in an exceptional case, absolutely necessary for you
to enter or leave the tutorial while the class is in session, please do not disrupt the class upon
entering or exiting the classroom.
During tutorials and discussions (whether in person or virtually), you are expected to treat
other members of the tutorial and staff in a professional manner that reflects the academic
setting in which we are working together. This means that you are expected to share your
knowledge and understanding with your peers. It also requires respect and courtesy towards your
classmates and tutor when they are speaking, as well as civility when you are speaking.
A professional attitude is also expected in your communication with your tutor and/or
course coordinator via for instance email. They might provide you with feedback on your style
and manner of communication. Please view this with the positive intention with which such
feedback is given, to offer you an opportunity to develop your communication skills in preparation
of becoming a legal professional. For more information about email etiquette, please see Canvas.
Please turn off your mobile phone during tutorials and lectures. The use of e-mail, instant
messaging, or other electronic forms of private communication during tutorials is prohibited.
You may not use the internet for any other purpose than the course when the class is in session.
You may use your laptop or tablet to take notes, consult Student Portal and look into the
necessary materials, but not for any other purpose. Failure to honour this request will not be
appreciated by your tutor.
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In light of privacy and copyright laws, it is prohibited to make your own recordings of
plenary sessions or tutorials.
We fervently discourage you from using summaries that have been commercially
produced or written by someone else. Studies show that summaries only aid the studying process
if you write them yourself. We also discourage you from participating in exam trainings, since we
do not stand in for the quality and correctness of such trainings.
We draw your attention to the Faculty’s Code of Conduct which underlies the teaching
activities in this course.
MAASTRICHT UNIVERISTY
FACULTY OF LAW
CODE OF CONDUCT
The Faculty of Law provides top quality challenging and rewarding education. It seeks to do so in
an exceptionally inspiring environment for both students and staff. In order to create such a safe
study and working environment the following code of conduct is established that applies to all
students enrolled at the Faculty of law regarding activities relating to their course of study:
1. Respect
The Faculty seeks to provide an inclusive, diverse non-hierarchical learning community that
fosters both individual and collective learning and growth. This community is based on mutual
respect. Students shall respect ethnic, sexual, religious and cultural diversity in the academic
community. Students expressly engage in a collaborative and respectful attitude towards fellow
students, staff members and all other professionals encountered during the course of the study.
Students shall at all times refrain from the use of physical, verbal, psychological violence or
violence of any other kind in their relationships with fellow students and members of staff.
2. Responsibility
The student is an active member of the student community of Maastricht University. This
expressly includes being an active participant in education that is in line with the UM teaching
philosophy and refraining from activities that undermine that philosophy.
The student approaches the educational experience with an open mind and broad interest and
takes in learning opportunities that present themselves in an active and constructive manner.
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The student strives for improvement, is able to incorporate criticism and is able to provide and
receive feedback. Students are willing and able to reflect critically on their own thoughts and
behaviour.
3. Academic and scientific integrity

The student refrains from any form of fraud in all study related activities. Students only connect
their name to work that they have effectively contributed to. The student recognises the
contribution of other students in group work.
Students represent themselves as students in external contacts and will not accept responsibilities
that supersede their developing knowledge and competences.
This article applies without prejudice to the Code of Conduct for Scientific Integrity as adopted by
the European Science Foundation and the Nederlandse Gedragscode Wetenschapsbeoefening as
adopted by the VSNU.
4. Confidentiality
Students expressly accept the obligation to treat any file, case or other documentation or
information that they are confronted with in the course of their study as confidential. The student
respects, at any time, the privacy of individuals concerned, including fellow students and staff
members.
5. Use of ICT facilities and social media

Students conform to the UM rules on acceptable use of ICT facilities. Students expressly conform
to a responsible use of social media, including but not limited to matters relating to points 1 and
4 of this code of conduct. Students respect the intellectual property of the UM. It is expressly
prohibited for students to place images or other personal information of fellow students and staff
members on social media or to publish such information in any other form.
6. Legal community
Students understand and accept the fact that they are part of the legal professional community
and therefore conform to the ethical, legal, procedural and other standards that are commonly
shared in the legal professional world. Students conform to these standards in their presence,
behaviour and use of language.
7. Enforcement.
The student will abide by the norms that follow from this code as described above and will fully
accept the consequences of not doing so. Those consequences may include, but are not limited
to, disciplinary proceedings that may result in measures described in articles 7.42a and 7.57h
WHW and the UM Enrolment Provision, namely denying access to buildings, premises and/or
facilities of the UM or ending the enrolment of the student concerned. Enforcement of article
7.57h WHW will take place in accordance with the rules laid down in the Algemene huisregels en
ordemaatregelen van de Universiteit Maastricht.
8. Adoption and Entry into force.

This code of conduct has been adopted in accordance with article 2.1.3 sub h of the UM
Mandatenregeling by the Dean on behalf of the Executive Board on 25-06-2019 [RU19.00251].
This code of conduct enters into force on 25-06-2019. This code of conduct is drafted in both
Dutch and English. The Dutch version is deemed original.
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5. Materials
5.1 Mandatory materials
The mandatory materials for this course are the following:
Jan Smits, Contract Law: A Comparative Introduction, Edward Elgar Publishing, third edition
2021 (paperback)
This is the main textbook for this course. You can buy it in the bookshop (e.g. Study Store,
Tongersestraat 12A) or directly from the publisher at www.e-elgar.com or other (online)
bookstores. Make sure you order the book on time: there should be plenty of copies
available, but ordering shortly before the course starts is not a good idea. Please note:
you are not required to read the final chapter of the textbook.
Sascha Hardt & Nicole Kornet (eds.), The Maastricht Collection. Volumes III. International and
European Private Law and IV. Comparative Private Law, 7th edition, Groningen (Europa Law
Publishing) 2021
This book is available in the bookshop. You are allowed to use the Maastricht Collection
during the examination, and you should therefore not write anything in it (this includes
symbols, letters, numbers). Highlighting and underlining are permitted. Please note that
you may use sticky tabs or dividers in the Maastricht Collection during the examination,
however, you may not write anything on them (this includes symbols, letters, numbers).
A Note on Translations: You will notice that the translations of legislative

instruments in the textbook and the Maastricht Collection may differ. Whereas the
textbook largely adopts translations that have been made public by national legislators,
the Maastricht Collection comprises translations made by Maastricht University staff. All
translations attempt to render the original text as accurately as possible, however
individual translators may make different choices based on their background and their
vision and approach to translation.
Comparative Contract Law Videos have been developed to provide you with introductions to the
various topics that are to be studied. They aim to be a starting point for you each week. Start with
watching the videos and then continue with your self-directed study by studying the relevant
chapter(s) in the textbook, looking up and analysing the relevant legislative provisions and reading
and analysing relevant case law indicated. The videos are available on Canvas.
The judicial decisions and academic articles mentioned as additional mandatory reading in this
course book. These can be found using the Westlaw database (review your Skills meeting on how
to search for English case law using Westlaw). The Textbook contains references to many cases.
Some of these are meant as mere illustrations of the substantive law, while other judicial decisions
are standard cases that you should know. The cases mentioned below are the cases that you
should know by their name. This means in particular that
a) you should be able to say why the case is important;
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b) you should be able to name them as authority for the answer you provide to a question
or a case study.
England
Adams v Lindsell [1818] EWHC KB J59
Balfour v Balfour [1919] 2 KB 571
Brinkibon Ltd v Stahag Stahl GmbH [1983] 2 AC 34
Byrne & Co v Leon van Tienhoven & Co [1879-80] LR 5 CPD 344
Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256
Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1998] AC 1
Currie v Misa (1874) LR 10 Ex 153
Entores Ltd v Miles Far East Corporation [1955] 2 QB 327
Hadley v Baxendale [1854] EWHC J70
Hart v O’Connor [1985] 1 AC 1000
Hyde v Wrench [1840] EWHC Ch J90
Hong Kong Fir Shipping Co v Kawasaki Kisen Kaisha [1962] 2 QB 26
Interfoto Picture Library v Stiletto Visual Programmes Ltd [1987] EWCA Civ 6
Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896
Krell v Henry [1903] 2 K.B. 740
Liverpool City Council v Irwin [1977] AC 239
Lloyd’s Bank Ltd v Bundy [1975] QB 326
Merritt v Merritt [1970] 1 W.L.R. 1211
Nicolene Ltd v Simmonds [1953] 1All ER 822
Offord v Davies (1862) 12 CBNS 748
Paradine v Jane [1647] 4 KB
Partridge v Crittenden [1968] 1 WLR 1204
Pharmaceutical Society v Boots [1953] 1 QB 401
Proform Sports Management Ltd v Proactive Sports Management Ltd [2007] 1 All ER 542
Radmacher v Granatino [2010] UKSC 42
Shirlaw v Southern Foundries Ltd [1939] 2 KB 206
Smith v Hughes [1871] LR 6 QB 597
Spurling Ltd v Bradshaw [1956] 1 WLR 461
Stilk v Myrick [1809] EWHC KB J58
Taylor v Caldwell (1863) 122 ER 309
Tsakiroglou & Co Ltd v Noblee Thorl GmbH [1962] AC 93
Walford v Miles [1992] 1 All ER 453
Williams v Roffey Bros & Nicholls (Contractors) Ltd [1990] 2 WLR 1153
Yam Seng Pte Ltd v International Trade Corp Ltd [2013] EWHC 111
France
Cour de Cassation 15 February 1961, Bull. Civ. III, 91 (Société Tirat et Cie v Société Orazzi et Fils)
Cour de Cassation 20 October 1964, DS. 1965m 62 (Exploding Lemonade bottle)
Cour de Cassation 28 November 1968, Bull. Civ. III no. 507 (Maltzkorn v Braquet)
Cour de Cassation 14 May 1991, D. 1991, 449 (Minit France)
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Germany
Reichsgericht 8 June 1920, RGZ 99, 147 (Haakjöringsköd)
Bundesgerichtshof 22 June 1956, BGHZ 21, 102 (K Speditionsgesellschaft)
Bundesgerichtshof 12 March 1992, NJW 1992, 1446 (Bürgschaft auf erstes Anfordern)
Netherlands
Hoge Raad 13 March 1981, NJ 1981, 635 (Haviltex)
Hoge Raad 10 April 1981, NJ 1981, 532 (Hofland v Hennis)
Court of Appeal Den Bosch 22 January 2008, LJN BC 2420 (Stichting Postwanorder v Otto BV)
5.2 Additional materials
You are encouraged to read not only the mandatory materials. This course offers you – during the
seven weeks that it takes place – the possibility to delve into a wealth of materials on contract
law. The inner city University Library has a wide variety of books on the law of obligations and on
the contract law of various national legal systems. You are encouraged to consult a textbook from
your own legal system in addition to the mandatory textbook. It can be a great experience to
check the general ‘European’ discussion of contract law with the law in your own country and
study the two side-by-side. Do not hesitate to report on the law of your own country in class: this
will be highly appreciated by your tutor!
In addition, you may find the following books useful to consult:
• Hugh Beale, Bénédicte Fauvarque-Cosson, Jacobien Rutgers, and Stefan Vogenauer,

Cases, Materials and Text on Contract Law, Ius Commune Casebooks, 3rd ed., Oxford
(Hart) 2019.
o You will be able to find several judicial decisions discussed in the casebook on the
publisher’s website:
http://www.casebooks.eu/contractLaw/about
• Thomas Kadner Graziano, Comparative Contract Law. Cases, Materials and Exercises, 2nd
ed., Edward Elgar, 2019
• A.S. Hartkamp et al (eds.), Towards a European Civil Code, 4th ed., Nijmegen (Ars Aequi
Libri) 2011
• Basil S. Markesinis et al, The German Law of Contract: A Comparative Treatise, Oxford
(Hart) 2006
• Konrad Zweigert and Hein Kötz, An Introduction to Comparative Law, 3rd ed., Oxford
(Oxford University Press) 1998 (partly outdated)
• Hein Kötz, European Contract Law, 2nd ed. , Oxford University Press, 2017
• Raymond Youngs, English, French and German Comparative Law, 2nd ed., London
(Cavendish) 2007
• Ole Lando and Hugh Beale (eds.), Principles of European Contract Law. Parts I and II, The
Hague (Kluwer Law International) 2000
• Peter Stein, Roman Law in European History, Cambridge (Cambridge University Press)
2007
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A wealth of materials on contract law is available through the Social Science Research Network
(www.ssrn.com) and through the books and journals in the UM Library and eLibrary.
* Please note that when dealing publications dealing with French contract law that stem from
before 2016 that the French Civil Code was reformed in 2016.
6. Student Portal / Canvas
The Canvas electronic learning environment for this course is available through Student Portal.
Please consult Portal on a regular basis: any news about the course, including changes in
schedules, will be announced there. You will also find the additional learning materials on the
Portal, in particular the videos that will be made available to you progressively during the course.
7. Assessment
Students in this course are assessed on basis of a written exam and an assignment. The written
exam will count towards 75% of the final grade and the assignment will count towards 25% of the
final grade. A total of 30 points can be earned on the exam and a total of 10 points can be earned
on the assignment. The total number of points earned on the exam will be added to the number of
points earned on the assignment. This total will then be divided by four and the outcome is rounded
to a whole number in accordance with the faculty rules and policies on rounding to establish the
final grade for the course. This means that to pass, you will need a minimum of 22 out of the
available 40 points, which leads to a final grade of 6.
7.1 Written exam
There will be a final written examination of three hours, drawn from the topics covered in the
course. The exam will consist of open questions where you are asked to write a clear and concise
answer in which you reason towards the outcome. The exam will count for 75% of the final grade.
The exam will take place on Thursday, 16 December from 13.00 – 16.00 in the MECC
Westhal. In the event that you fail the exam, you will have the opportunity to take a re-sit in April
2022. However, you are strongly encouraged to seriously participate in the exam in December
and not wait until April. If you study hard and participate actively in class, you can reasonably
expect to pass the December exam.
It is important that you:

• Arrive on time. The door closes promptly at the official start time of the exam. If you arrive
after the official start time, you will not be allowed to enter the exam hall to take the
exam.
• Take your student id card or another permitted form of identification with you. Without
proof of identity in conformity with the Rules of Procedure for Examinations (available via
Student Portal > Exam Information) you will not be permitted to take the exam.
16
• Do not write anything in your Maastricht Collection. Only highlighting and underlining are
permitted. Pursuant to the Exam Rules and Regulations, any writing in the Maastricht
Collection (including symbols, numbers, letters), will lead to your Maastricht Collection
being confiscated and could lead to your exam being invalidated. The same applies to any
tabs you use; they must not have any writing (including symbols, numbers, letters) on
them.
7.2 Assignment
In week 4 of the course (at the latest), you are allowed to submit a written assignment that will
count towards 25% of the final grade. In your written assignment you will be asked to write an
answer of maximum 750 words. There is no obligation to hand in the assignment, but if you do
not (or not in time) you will receive zero points on the assignment and therefore miss out on 25%
of the final grade. You are therefore strongly advised to submit the assignment: it will enhance
your chances of passing the course.
Your written assignment is due on Friday 19 November 2021 at 5pm at the latest. Please
note that this is the final deadline: you are strongly encouraged to hand in the assignment on an
earlier date. You are required to submit the assignment via Canvas.
The assignment must be submitted by the deadline. If your assignment is submitted later
than the deadline, it will not be graded. No exceptions will be made to this rule. It is your
responsibility to meet the formal submission requirements. Remember that you have a period of
several weeks to work on the assignment and that not being able to hand in on time is almost
always the result of bad planning.
No time extensions will be given due to computer, equipment or power failures, because
we cannot open or print your file, or because you have problems transmitting the file (unless a
widespread power or e-mail failure occurs). In addition, no time extensions are given for personal
reasons. Only the course coordinator is allowed to grant extensions, which she will only do in case
of the highly exceptional circumstances that count as an impediment under Art. 8:108(1) PECL.
Remember that you have a period of several weeks to work on the assignment and that not being
able to hand in on time is almost always the result of a late start.
More information on the assignment will be provided on Canvas.
7.3 Resit
If you fail the course, you have the opportunity to re-sit both the written examination and the
assignment of this course. You are allowed to keep the grade you received for the assignment
when you do the re-sit (provided you do the re-sit in the same academic year).
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The re-sit assignment will be made available on Canvas well in time before the date of the re-sit
exam. The announcement on Canavs will also contain the deadline for submission. The rules on
submission as set out in 7.2 above also apply to the re-sit assignment.
7.4 Exam Only Students
Students who are registered as exam only for this course, are not allowed to submit an
assignment for grading pursuant to the rules of the Board of Examiners
(https://intranet.maastrichtuniversity.nl/en/faculty-law-studenten/examination-schedules-and-
taking-exams/registration-and-deregistration-exams, the please note under point 4). In case of
exam only students, the grade will be determined solely on the basis of the written examination;
the maximum grade a student registered as exam only will be able to achieve is therefore 7.5.
This means that a student with an exam only registration must earn 22 out of the available 30
points on the examination to pass the course.
8. Learning Goals
The two general learning goals in this course are the following:
a) to obtain a solid insight into and understanding of the fundamentals of contract law as such.
The problems that contract law faces are not peculiar to one specific jurisdiction, but are
universal. One main aim of this course is that you become familiar with and understand these
problems.
b) to obtain basic knowledge of how different jurisdictions solve these problems. The main
jurisdictions we look at in this course are French, German, English and Dutch law. For some topics
we also consider European law and the rules laid down in international instruments such as the
CISG and PECL. Sometimes also the law of the past (in particular Roman law) and of other
jurisdictions is looked at.
9. Evaluation
All courses at Maastricht University are evaluated by way of a survey that takes place after the
course has ended. Your input in this evaluation is very much appreciated: it helps us to make the
course even better for the next generation of students. Next to the regular evaluation, you will
also be asked to reflect upon the course in the tutorials.
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10. Teaching Staff
The tutorials on Comparative Contract Law are taught by an enthusiastic team of tutors. Your
tutor is your primary point of contact for questions about this course and the topics discussed in
class and in the lectures. Questions or comments about this course book and about the course
are also very much welcome and can be sent both to your tutor and to the course coordinator.
The 2021-2022 CCL team comprises:
Course coordinator:
Dr Nicole Kornet @: n.kornet@maastrichtuniversity.nl
Tutors:
Dr William Bull @: william.bull@maastrichtuniversity.nl
Carolina Cicati @: c.cicati@maastrichtuniversity.nl
Elden van Delft @: elden.vandelft@maastrichtuniversity.nl
Dr Catalina Goanta @: catalina.goanta@maastrichtuniversity.nl
Sarah Gove @: s.gove@maastrichtuniversity.nl
Dorottya Gréta Bajna @: d.bajna@maastrichtuniversity.nl
Elisabeth Gschösser @: e.gschosser@maastrichtuniversity.nl
Lucia Jeremiasova @: l.jeremiasova@maastrichtuniversity.nl
Dr Tobias Jonkers @: tobias.jonkers@maastrichtuniversity.nl
Emilia Klebanowski @: e.klebanowski@maastrichtuniversity.nl
Dory Lemeunier @: d.lemeunier@maastrichtuniversity.nl
Ishak Sevinc @: i.sevinc@maastrichtuniversity.nl
The CCL Team 2021-2022 welcomes you to the academic community of the course on
Comparative Contract Law. We look forward to an inspiring and productive course!
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WEEK 1: INTRODUCTION TO CONTRACTS AND CONTRACT LAW AND CONTRACT
FORMATION I
TUTORIAL
You are expected to have prepared for tutorial 1 before coming to class!
In the first tutorial, we will do four things:
1. discuss the practical details and format of the course and get acquainted with your classmates
and your tutor;
2. discuss the need for contracts and for contract law;
3. discuss the main principles and core issues of contract law;
4. discuss the requirements for the formation of a contract, with a particular focus on the rules
on offer and acceptance.
Discussion Task: A Cascade of Contracts
Think of something you have bought recently (for instance a cup of coffee, a textbook, jeans, your
groceries, a mobile phone subscription). Create a diagram or overview of the various contracts
that may have been needed for the good to be produced or manufactured and made accessible
so that you are able to obtain the good.
Consider:
• What kind of contracts are needed so that you can obtain the good or service?
• Who are the parties to the contract (e.g. between commercial parties, consumers)?
• What are the main obligations under those contracts?
• Why are all those contracts need?
• What is the function of contract law in this cascade of contracts?
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Discussion Task: Creating a Law of Contract
Imagine that you come across a society that has remained isolated from the rest of the world.
This society is structured and organised through small, mostly self-sufficient units. You observe
the way in which the society functions and observe that they do not use contracts or contract law.
• Discuss how this society might organise the distribution of goods and services in the
absence of contracts and a law of contract
You believe you may be able to assist the functioning of this society by introducing the concept of
a contract and a law of contract. The society’s leaders are sceptical yet curious and ask you to
explain:
• Why you would introduce contracts and contract law;

• The general principles on which the law of contract is founded; and
• The core issues a law of contract needs to cover.
TIP! Also consider the text by Adam Smith, An Inquiry into the Nature and Causes of the Wealth
of Nations, available on Canvas.
Mapping Task: The Rules on Offer and Acceptance
The law of contract generally regards the formation of contract as occurring by way of an offer
and acceptance. Make an overview, chart or concept map in which you identify the various rules
on contract formation, in particular in relation to offer and acceptance in French, Dutch, German
and English contract law. You should include the elements of the rule and the legal authority (legal
provision or relevant case) for those jurisdictions on which you can find information (for this
purpose, look in the textbook and the Maastricht Collection) as well as the core components of
the rule. Consider the following:
• How is a contract defined?

• How is an offer defined?
• Does an advertisement constitute an offer?
• Does a display of goods constitute an offer?
• When does an offer take effect?
• Can the offer be withdrawn or revoked?
• When does the offer lapse?
• How is an acceptance defined?
• When does the acceptance take effect to conclude a contract?
• How is the offer of a reward dealt with?
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You are required to bring your mapping task to the tutorial, during which you may be asked to
highlight major differences in approach, which will require choices to be made in the creation of
a new law of contract.
As you will learn this week, a general principle of contract law is freedom from form
requirements. In line with this principle, you are free to develop your overview, chart or concept
map as you find most helpful.
Problem Task: Apartment and Bike for Sale
John wants to sell his apartment and his bike. For this reason, he places the following
advertisement in a local newspaper:
‘Apartment for sale, 100m2, located in a modern city centre complex, Donellus Avenue 2,
L-shape living room, new kitchen, separate study, 2 bedrooms, luxurious bathroom,
garage, balcony, € 195,000. Also for sale, 10-speed men’s bicycle, top condition, € 150.
Tel. 043-5551974.’
Alex has been looking for an apartment for quite some time. He becomes very enthusiastic when
he notices John’s advertisement in the newspaper. He phones John and tells him that he agrees
to buy the apartment for € 195.000. John also receives a phone call from Bill who tells him that
he agrees to buy the bicycle.
TIP! Use the IRAC method to advise on this case:
i) Identify the legal issue

ii) Identify the relevant rule(s) ( referring the mapping task) and analyse the
requirements of those rules ( what conditions need to be met in order for the rule to
apply?)
iii) Apply the rules to the facts of the case
iv) Conclude by providing an answer to the legal issue under 1 that is based on your
application of the rules to the facts.
Problem Task: Just in Time?
During the faculty introduction, Angela meets second year student Julia who tells Angela it can be
useful to buy textbooks second hand. On August 25th, Julia offers to sell her copy of Introduction
to Law to Angela for €15. She tells Angela she must notify her of her acceptance before September
1st. On August 30th, Julia receives a text message from another first year student, Jack, who is
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desperately in need of the textbook, and he offers to buy it for €20. The next day, Julia calls Angela
on her mobile phone but she is unable to get a hold of her and therefore leaves a message on the
voicemail saying that she has changed her mind and that she no longer intends to sell the book to
her. Angela doesn’t listen to the voicemail before she sends her acceptance of Julia’s offer by
email on August 31st, just before midnight. The message arrives in Julia’s inbox just after midnight,
on September 1st.
TIP! Remember to use the IRAC method.
ONLINE PLENARY SESSION
During the plenary session at the end of the week, we will wrap up this week’s topics and explore
some of the themes that arose in greater depth.
We will also discuss an English case which you are required to prepare in advance of the plenary
session:
• Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256 (available via Westlaw)
RESOURCES
Comparative Contract Law Videos for week 1
• Smits, Contract Law

o How to use this book
o Chapter 1: Introduction
o Chapter 2: Sources of contract law
o Chapter 3: Offer and acceptance
• Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256 (available via Westlaw)
• Relevant national legislative provisions in the Maastricht Collection
• You may also find it useful to review Chapters 2 and 3 of the Hage et al (eds), Introduction to Law,
2nd edition, on Legal Reasoning and Basic Concepts of Law and Chapter 4 of Hage et al (eds),
Introduction to Law, 2nd ed. (2017) on The Law of Contract.
• Hein Kötz, European Contract Law Vol. I, Oxford 1997), p. v-vi (1 page quote), available on
Student Portal. This quote taken from a textbook by the German legal academic Hein Kötz tells
you about the background of the present course.
• Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, London (W.
Strahan) 1776 (Gutenberg licence; 3 pages), available on Canvas>Resources>Keylinks. This
classic text explains the role of contract law in the modern economy.
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Review Questions
Please note that these questions are for study or revision purposes only. They provide a
background to the lecture and the tasks and tasks dealt with during the tutorial. These questions
will in principle not be answered during the tutorial unless you explain why you find a specific
question hard to answer.
1. What is, according to Adam Smith, the importance of the ability to make contracts? Do you
believe his view is too optimistic?
2. How do you define a contract? Which types of contracts can be distinguished?
3. Freedom of contract is one of the four main principles of contract law. Give some examples
where you think contracts are freely negotiated and some where they are not.
4. What is the main difference between contracts in Roman law and today?
5. Why and how is the European Union active in the field of contract law?
6. What does consensus ad idem mean and where do we find this in the various jurisdictions?
7. What is meant with a cascade of contracts?
8. Give a definition of an obligation in the context of private law. Take into consideration that
each obligation has two sides.
9. Where do you place contract law within the overall ‘system’ of private law?
10. What is the relationship between a contract and an obligation? And between a contract and
a juridical act?
11. Why are third parties, in principle, unaffected by a contract?
12. What are the main principles of contract law?
13. What does the principle of pacta sunt servanda mean? Has this principle always been
accepted?
14. What is the advantage and disadvantage of a closed system of contracts as existed in Roman
law?
15. Explain the difference between procedural and substantive (contractual) fairness
16. Could contract law be used as an instrument to redistribute wealth in society?
17. What does it mean to say that contract law is a ‘multi-level’ legal system?
18. Where do you find contract law in French, German, English and Dutch law?
19. What are the main characteristics of the civil law and common law ‘legal family’?
20. What is the substantive and geographical scope of application of the CISG?
21. What is the main difference between ‘official sources’ and informal rules of contract law?
22. What are the aims of the PECL? Which other sets of contract law principles do you know?
23. Which theories exist to explain contractual liability?
24. Explain offer and acceptance.
25. Describe and explain the different approaches to the bindingness of offers to the public
(advertisements and goods on display in shops).
26. When is an offer revocable?
27. What is the difference between revocation of an offer and withdrawal of a declaration?
28. When does an offer lapse?
29. Can silence count as acceptance of an offer?
30. Explain the various approaches to the ‘battle of the forms’.
31. What are the different theoretical and national approaches to the time of conclusion of the
contract?
32. Explain the postal rule and its rationale.
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WEEK 2: CONTRACT FORMATION 2
A contract is formed when the parties have reached a sufficiently definite agreement to which
they intend to be legally bound. In week one, we saw that the existence of agreement is usually
analysed in terms of the offer and acceptance model. This week we focus on
1. The foundation of contractual liability: will and/or reliance
2. how the law establishes the existence of an intention to be legally bound;
3. the additional requirement of causa or consideration in some legal systems.
Mapping Task: The Approach to Establishing Intention to be Legally Bound
Make an overview, chart or concept map in which you identify the rule(s) that define(s) a contract
in French, Dutch, German and English contract law and the approach of these legal systems to
establishing the intention to be legally bound (including whether the system adopts a more
subjective or objective approach to establishing agreement). You should include the rule and the
legal authority (legal provision or relevant case) for those jurisdictions on which you can find
information (for this purpose, look in the textbook and the Maastricht Collection) as well as
relevant components of the rule.
highlight major differences in approach.
As you have already learnt, a general principle of contract law is freedom from form
requirements. In line with this principle, you are free develop your overview or chart as you find
most helpful.
Problem Task: Cutting Edge
John runs his own gardening business, Cutting Edge, which provides general garden maintenance
services for businesses as well as individuals. Amanda has a busy lifestyle and doesn’t have time
to take care of her garden. After hearing about Cutting Edge from a friend, she calls the phone
number on Cutting Edge’s website and speaks to John. After discussing Amanda’s gardening
needs, John tells Amanda he will send her a proposal. The next day, Amanda receives the following
proposal from Cutting Edge:
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‘Special offer: one-year service contract for weekly gardening service, including lawn
mowing, weeding, hedge trimming, € 15 per week. We consider ourselves bound by this
offer for seven days’.
Amanda is amazed by this special offer. She has received offers from other gardening services
that range between € 40 and € 55, so € 15 per week is a very good deal. She immediately e-mails
John:
‘Thank you for your proposal. I accept the special offer for a one-year service contract at
€ 15 per week’.
When John checks Cutting Edge’s correspondence later that day, he is shocked; he must have
mistyped, since the offer was to be for € 45 per week.
Advise John.
TIP! Use the IRAC method to advise on this case:
i) Identify the legal issue

ii) Identify the relevant rule(s) ( the mapping task) and analyse the requirements of
those rules ( what conditions need to be met in order for the rule to apply?)
iii) Apply the rules to the facts of the case
iv) Conclude by providing an answer to the legal issue under 1 that is based on your
application of the rules to the facts.
Discussion Task: The Foundation for Contractual Liability
Contracts are voluntary undertakings. Contracting parties are held bound to their contract
because they each consented to be bound legally bound by the agreement. They reached
consensus ad idem, a meeting of the minds. This is reflected in Article 1101 of the French Civil
Code which provides:
A contract is an agreement of will between two or more persons that is intended to

create, modify or extinguish obligations.
That being said, much is written by contract law scholars about the foundations for contractual
liability. In other words, on the question why contracting parties should be bound by their
contract. These discussions are related to the difficulty of being able to objectively verify the
intention or will of individuals, since this is essentially something that occurs internally, within
one’s mind. This is further reflected in the classic English case of Smith v Hughes, in which
Blackburn J held:
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If, whatever a man’s real intention may be, he so conducts himself that a reasonable man
would believe that he was assenting to the terms proposed by the other party, and that
other party upon that belief enters into the contract with him, the man thus conducting
himself would be equally bound as if he had intended to agree to the other party’s terms.
Smits identifies three theories: the will theory, the expression theory, and the will-reliance theory.
Discuss on what basis contracting parties should be bound by to the contract.
Discussion Task: “Without any further requirement”
Article 2:101 PECL provides that a contract is concluded if “(a) the parties intend to be legally
bound, and (ii) they reach a sufficient agreement, without any further requirement”.
Some jurisdictions do have additional requirements for the conclusion of a contract, in particular
English law requires consideration and some jurisdictions still require causa, although a
prominent example of a “causa-jurisdiction”, France, has recently abolished it.
Imagine you are creating your own law of contract and must decide whether to include an
additional requirement such as the common law requirement of consideration or causa, or
whether to simply take over the PECL’s “without any further requirement” provision because a
law of contract can function effectively without such requirements. Which approach would you
adopt, and why?
To be able to answer this question, you will need to be able to:
• explain the doctrine of causa, its purpose and why the French decided to abolish it from
their law of contract;
• explain the doctrine of consideration, why the common law considers it to be a useful
doctrine and whether there are situations in which it is not needed in order to establish a
valid contract; and
• explain how a law of contract functions without either of these doctrines.
During the plenary session we will wrap up this week’s topics and explore some of the themes
that arose in greater depth.
We will also discuss an English case which you are required to prepare in advance of the plenary
session:
• Merritt v Merritt [1970] 1 WLR 1211 (available via Westlaw)
27
Resources

o Chapter 3: Offer and Acceptance (pp. 41 -62) (review in light of this week’s problem tasks)
o Chapter 4: The intention to create legal relations
• Merritt v Merritt [1970] 1 WLR 1211

Optional reading:
• Jan Smits & Caroline Calomme, The Reform of the French Law of Obligations: les jeux sont faits,
23 Maastricht Journal of European and Comparative Law 6 (2016), 1040, available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2845796
Review Questions
1. Which factors play a role in establishing whether reasonable reliance or an objective intention
exists?
2. How does the law deal with the problem of dissensus of intention and declaration?
3. What is the difference between commercial and other agreements in establishing the
intention to be legally bound?
4. How are prenuptial agreements dealt with in civil law and in English law?
5. How can commercial parties avoid being bound too soon by what may be regarded as an
intention by the other party?
6. What is the feminist reading of the House of Lords case Balfour v Balfour?
7. Explain how Lord Denning distinguishes Balfour v Balfour in Merritt v Merritt.
8. What is a gratuitous transaction?
9. Explain the English doctrine of consideration.
10. Explain whether you believe consideration is a useful doctrine in English law?
11. Can the doctrine of consideration be circumvented?
12. Which sub-rules exist within the consideration doctrine?
13. What is the importance of the Court of Appeal case Williams v Roffey Bros?
14. Explain the doctrine of promissory estoppel.
15. Explain the doctrine of causa.
16. Which types of causa exist?
17. Why was the doctrine of causa abolished in French law?
18. In which jurisdictions does the doctrine of cause still exist?
19. Explain why consideration and causa have common historical roots.
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WEEK 3: LEGAL CAPACITY, FORMALITIES AND RIGHTS OF INFORMATION AND
WITHDRAWAL
It was seen in the previous weeks that the intention to create legal relations or, if necessary, the
apparent intention is a main requirement for the valid formation of a binding contract. If both
parties have this intention, the contract comes about by consensus ad idem.
This week we consider two potential problems with contracts formed in this way:
1. what happens if a party, for reason of being too young or mentally ill, cannot form his or her
intention in the right way? This is the problem of legal incapacity;
2. should some parties (in particular consumers) be assisted in deciding whether they want to be
bound? The law assumes this is the case by – in limited cases – imposing pre-contractual
information duties on their professional counterpart and by granting withdrawal rights to the
consumer.
Mapping Task: The Rules on Legal Capacity
Make an overview or chart in which you identify the various rules on legal capacity in England,
France, Germany and the Netherlands. You should consider special rules concerning minors and
people who are mentally incapacitated. Also consider the legal consequences of concluding a
contract with a person who lacks (full) capacity. You should include the rule and the legal authority
(legal provision or relevant case) for those jurisdictions on which you can find information (for this
purpose, look in the textbook and the Maastricht Collection).
You are required to bring your chart/overview to the tutorial, during which you may be asked to
highlight major differences in approach, which would require choices to be made in the creation
of a new law of contract.
Problem Task: Justin, Jeremy and Dorothea
Twin brothers Justin and Jeremy, who are both 17 years old, like playing football, watching films
and visiting their 80 year-old grandmother Dorothea, who suffers from senile dementia.
After having scored 30 goals for his local team in the last two years, Justin is awarded a training
contract with the national professional football club MEPLI City FC. He will be contracted by the
club for a monthly ‘allowance’ of € 5000 and will receive professional and training support for a
29
period of 3 years. However, Justin’s initial enthusiasm soon fades when he hears that MEPLI will
make him exercise every other day and that he will no longer be able to visit Dorothea on the
weekends because of mandatory training. Justin wonders if he is able to escape from the contract.
After watching the movie Easy Rider, Jeremy decides to grow a beard and visits the motorcycle
store Hopper BV, where he buys a Yamaha motorbike for € 3000. When the bike is delivered,
Jeremy refuses to pay for it. Jeremy is also behind with the payments on his mobile telephone
and recently received a letter from Vodafone demanding him to pay as soon as possible. Jeremy
wonders what to do.
Meanwhile, Dorothea agrees to sell a 19th century painting depicting her ancestors to Michael for
€ 4000. When her daughter (Justin and Jeremy’s mother) hears about it, she becomes terribly
upset: the painting was an irreplaceable family heirloom with a high sentimental value and she
wants to have it back in the family.
Advise Justin, Jeremy and Dorothea’s daughter.
Discussion Task: The Legal Capacity to Contract
Article 1102 of the French Civil Code provides:
Everyone is free to contract or not to contract, to choose his contracting partner, and to
determine the content and form of a contract within the limits set by the law.
According to the principle of freedom of contract, every individual is free to enter into a contract.
But do all people have an equal capacity to enter a contract? Imagine you are creating your own
law of contract, should you include a rule that prevents certain groups of people from validly
concluding contracts.
In order to decide, you need to address the following aspects:
• What is the ratio behind rules on legal capacity?

• What are the interests at stake when the law has to decide who has legal capacity and
who does not?
• How would you weigh these interests? To which interests would you give prevalence?
• Should legal incapacity be an ‘all-or-nothing’ type of approach (meaning that the person
has either the legal capacity to enter all agreements or none at all), or should certain
exceptions be made? Please provide examples from the studied jurisdictions.
• Should children receive the same treatment as those suffering from degenerative brain
diseases? Why/ why not?
• What should be the consequence for a contract concluded without legal capacity to do
so?
30
Mapping Task: Right to Withdrawal in EU law
Make an overview, chart or concept map in which you identify the rule(s) that lay down the right
of withdrawal under Directive 2011/83 on consumer rights. In particular, you should consider:
- What is the scope of Directive 2011/83 on consumer rights?
- What is a distance contract under Directive 2011/83 on consumer rights?
- When can a consumer exercise a right of withdrawal under Directive 2011/83 on consumer
rights?
- When can a consumer not exercise a right of withdrawal under Directive 2011/83 on
consumer rights?
- How does a consumer exercise a right of withdrawal under Directive 2011/83 on consumer
rights?
- What are the consequences of exercising a right of withdrawal?
Problem Task: Brad’s Birthday
Brad, a student at Maastricht University, is in desperate need of a new notebook computer. He

therefore visits the website zell.com (which specializes in the sale of computer equipment), clicks on
‘I have read and agree with the general terms and conditions’ and orders an Apple MacBook Pro.
Brad receives an automatic confirmation by e-mail, which states that the laptop will be delivered to
his home within three working days. The next day is Brad’s birthday, and to celebrate the occasion
his parents give him a brand new MacBook Air. The day after, the laptop that Brad ordered from
zell.com arrives.
Advise Brad on any possibilities to escape from the contract.
Discussion Questions
A fundamental principle of contract law is that there are no form requirements for the conclusion
of a valid contract. Nevertheless, contract law does impose formalities in certain situations. For
example, many consumer contracts (like the one between Brad and Zell.com) are concluded
electronically and to better protect consumers, the EU legislature requires e-sellers to give
extensive pre-contractual information to consumers. Read articles 5 and 6 of the Consumer Rights
Directive.
• What kind of pre-contractual information is the e-seller required to provide and with what
purpose?
• Do you ever read this information? Does it matter if you do not?
• What are the reasons for the law to impose formalities such as these for the formation of
a contract?
• What other examples of formalities are there?
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that arose in greater depth and complete the first part of the course which has focussed on
contract formation.
Resources

o Chapter 5: legal capacity of the parties
o Chapter 6: formalities
• Directive 2011/83 on consumer rights (Maastricht Collection)
Review Questions
1. What is the rationale behind legal incapacity? Which interests have to be weighed in
designing rules on this doctrine?
2. Does legal incapacity mean that any contract entered into by a minor is automatically
invalid?
3. What is the main difference between English law and civil law jurisdictions when it comes
to contracts entered into by minors?
4. What is a ‘contract for necessaries’ under English law?
5. When does French law hold a contract entered into by a minor not avoidable?
6. What is the main difference between French and German (and Dutch) law in their
treatment of contracts entered into by minors?
7. How do the various jurisdictions deal with contracts entered into by adults suffering from
a mental disorder?
8. For which contracts or juridical acts and in which jurisdictions is a notarial deed required?
9. Give examples of contracts that are to be made in writing.
10. What does it mean to say that a contract is to be ‘evidenced in writing’?
11. Give examples of pre-contractual information duties.
12. What is the sanction in case of failure to comply with an information duty?
13. In which case does a ‘withdrawal right’ exist?
14. Does a contract made through e-mail or WhatsApp meet the written form? What
pleads against a positive answer?
15. What is the sanction if a contract lacks the required form? Can a lack of form be cured?
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WEEK 4: THE CONTENT OF THE CONTRACT
The question of whether a contract is validly concluded (as discussed until now) is an important
one, but it is not the question that most disputes are about. In practice, a much more common
point of dispute is what the parties actually agreed upon. This is perhaps obvious in case of an
oral agreement, but also if the contract is made in writing parties frequently disagree about the
contents of their agreement. After formation, the second central question in contract law is
therefore what is the content of the contract. The answer is important because it informs us about
the rights and duties of the parties under the contract.
There are four sub-questions, all discussed in this week:

1. how to interpret the party agreement?
2. how to fill gaps in the party agreement?
3. should parties act in conformity with the principle of good faith?
4. what if the contract contains ‘unfair’ terms?
Mapping Task: Interpreting the Terms of the Contract
Make an overview, chart or concept map in which you identify the various rules on contract
interpretation in English, French, German and Dutch law, as well as EU law. You may optionally
include the Principles of European Contract Law in your overview. You should include the rule
and the legal authority (legal provision or relevant case) for those jurisdictions on which you can
find information (for this purpose, look in the textbook and the Maastricht Collection).
highlight major differences in approach.
Problem Task: What is a Chicken?
Fresh Poultry, a supplier of poultry to the food and restaurant industry, entered into a contract
with Quality Foods, a manufacturer of diverse food products, for the sale of “Fresh Frozen
Chicken, 1150-1500g, Grade A, Quality Inspected, Eviscerated, price: €1.65/kg”. Upon receiving
the shipment, an employee of Quality Foods examined the birds and discovered that they were
not young chickens suitable for broiling, but rather what appears to be older chickens, which are
more suitable for stewing because their meat is tougher and more stringy. This means that the
chickens are not suitable for Quality Foods’ intended purpose that required chickens suitable for
broiling. Quality Foods now claims that Fresh Poultry has breached the contract, because they
have not supplied chicken in accordance with the contract. Quid iuris?
33
TIP! To establish whether there has been a breach, it is necessary to establish what meaning is
to be given to the word “chicken” in the contract. The contract does not provide any further
definition of “chicken”.
In light of the relevant national rules on contract interpretation, consider the relevance of the
following factors to establish the appropriate meaning to be attributed to the word “chicken”:
- the ordinary dictionary meaning of “chicken”;
- the EU definition of poultry in Article 1(1) Commission Regulation (EC) No 543/2008 of 16
June 2008 laying down detailed rules for the application of Council Regulation (EC) No
1234/2007 as regards the marketing standards for poultry meat;
- a trade usage that “chicken” means young chicken or broiler;
- the fact that despite an apparent trade usage that “chicken” means
young chicken or broiler, traders often expressly include the word
“broiler” in their contracts;
- the lower price for the chicken in the contract (broiler chickens are
sold at a higher price (€1.85-1.90/kg));
- the possible weight difference between younger and older chickens;
- communications between the parties prior to the conclusion of the contract concerning
the purpose for which Quality Foods needed the chicken that suggest that it would need
broiler chicken;
- Quality Foods’ subjective intent to obtain broilers.
Mapping Task: Standard Terms/General Conditions
Make an overview, chart or concept map in which you identify the rules on how the fairness of
standard terms/general conditions under EU law. In particular, you should consider:
- What is the scope of Directive 93/13 on unfair terms in consumer contracts?
- When is a term regarded as unfair under Directive 93/13 on unfair terms in consumer
contracts?
- What is the consequence of a term being regarded as unfair under Directive 93/13 on unfair
terms in consumer contracts?
- How are not individually negotiated terms interpreted under Directive 93/13 on unfair terms
in consumer contracts?
Problem Task: Shih Tzu
Aysel is a successful Internet entrepreneur, who breeds Shih Tzu as a hobby. She regularly buys
organic dog food from the local shop Cane Crush. Art. 5 of the general conditions of the contract
of sale reads: ‘Any liability for defective products is limited to the contract price.’ Aysel recently
also concluded a new insurance contract with Mutual Trust for her house and anything in it. Art.
34
10 of Mutual Trust’s general conditions reads: ‘Losses caused by floods are excluded from
coverage.’
In October 2021 things start to go terribly wrong for Aysel. The latest batch of dog food she bought
turns out to be defective and four of her dogs have become ill and died within a week of eating
it. A few weeks later, the three remaining dogs drown as a result of a burst pipe running through
the room where she kept her dogs.
Aysel seeks to be compensated for her loss by Cane Crush and Mutual Trust. However, Cane Crush
invokes Art. 5 of its general conditions and Mutual Trust invokes Art. 10.
Provide Aysel with structured and detailed legal advice.
Discussion Task: Filling the Gaps
The content of the contract is to be found in the terms of the parties’ agreement. However,
contracting parties inevitably leave gaps in their agreements and contract law must find ways to
fill these gaps. Explain why gaps in contracts are inevitable and discuss the ways in which the law
deals with such gaps in general.
Discussion Task: To have good faith or not?
A core principle underlying contract law in civil law jurisdictions is the principle of good faith.
Contracting parties have the duty to act in good faith towards each other. In contrast, English law
does not recognise a general principle of good faith as underlying the law of contract.
Imagine you are a creating your own law of contract, would you include a general principle of
good faith?
To answer this question, you must prepare a concise but structured note, which includes at least
the following elements:
• a definition of principle of good faith and where it can be found in the civil codes of the
jurisdictions you are currently studying;
• an explanation of the different functions of good faith;
• any potential policy reasons for (not) accepting such a principle; and
• examples of functional equivalents for the principle of good faith that other legal
systems use and that could be relevant in case you take the policy choice of not
recognising such principle.
35
In preparation of this week’s plenary session you should

(i) review the preamble of one of the European Directives we have dealt with so far in this course
(Directive 2011/83 on consumer rights and Directive 93/13 on unfair terms in consumer
contracts), and
(ii) prepare the case Yam Seng Pte Ltd v International Trade Corp Ltd [2013] EWHC 111
(paragraphs 119 – 154) (available via Westlaw).
Resources

o Chapter 7: the party agreement etc.
o Chapter 8: the principle of good faith etc.
• Directive 93/13 on unfair terms in consumer contracts (Maastricht Collection)

• Yam Seng Pte Ltd v International Trade Corp Ltd [2013] EWHC 111 (paragraphs 119 – 154)
(available via Westlaw)
Review Questions
1. Why is it not rational for most parties to deal with all possible contingencies in their
contract?
2. What are the two types of gap filling (supplementing the party agreement)?
3. Explain what default rules are. Can you give examples?
4. Which elements play a role in the proper interpretation of a contract?
5. Explain the parol evidence rule.
6. Explain the contra proferentem rule.
36
7. What is the difference between ad hoc gap filling and gap filling through default
rules?
8. Explain the various techniques that jurisdictions use for ad hoc gap filling.
9. What does it mean to say that good faith is an open-ended norm?
10. What is the difference between objective and subjective good faith?
11. What are the three functions of good faith?
12. Explain the doctrine of unforeseen circumstances (hardship).
13. What is the alternative explanation by Ellinghaus of the role of good faith in English
law?
14. What are exemption clauses? Are they always unfair?
15. Is it necessary for a party to have read an exemption clause in order for it to have
been incorporated in the contract?
16. What is the scope of application of the ‘specific controls’ of unfair contract terms set
out in the German BGB, UCTA in the UK, the French ‘Loi Scrivener’ and the EU directive
on unfair terms in consumer contracts?
17. What is the ‘red hand’-rule?
18. Which methods exist to enforce rules put in place to protect consumers?
37
WEEK 5: VITIATING FACTORS
If a contract is validly concluded and it is clear what its contents are, the contract can still be
vitiated in case of a so-called vitiating factor.
Three types of vitiating factors exist:

1. defects of consent (mistake, fraud, threat and undue influence);
2. misrepresentation (in English law);
3. illegality and immorality.
Mapping Task: Defects of Consent
Make an overview or chart in which you identify the various rules on defects of consent in
England, France, Germany and the Netherlands and the Principles of European Contract Law. You
should include the rule and the legal authority (legal provision or relevant case) for those
jurisdictions on which you can find information (for this purpose, look in the textbook and the
Maastricht Collection). You should consider the following:
• What are the common requirements for the possibility to avoid a contract for mistake,
fraud, threat, undue influence and misrepresentation?
• What are the legal consequences for a contract concluded under mistake, fraud, threat,
undue influence and misrepresentation?
• Which jurisdictions accept duties of disclosure, and when?
• When is there a duty to investigate? Explain the caveat emptor rule.
highlight major differences in approach, which would require choices to be made in the creation
of a new law of contract.
38
Problem Task: The Citroën DS Break
Alex is a keen collector of vintage Citroën cars. One day, during one of his frequent visits to the
car dealer Peter, he sees a Citroën DS Break from 1971. At first sight, the car seems to be in good
shape. Alex tells the car dealer he always wanted to drive a car like this. The dealer tells Alex that
the car had just come in. In fact, Peter had just bought the car from Wendy, who, having lost the
vehicle’s documentation, sold it at a low price. Alex immediately decides to buy the car for € 5000.
One month later, Alex takes the car to the Government Vehicle Inspection Service to obtain an
inspection certificate and new vehicle registration documentation so that he can drive the car on
the road. However, at the inspection, Alex finds out that the Citroën DS Break is made of parts
from two different cars that have been welded together and that part of the chassis is corroded.
Alex now wants his money back and wonders if that is possible.
Advise Alex.
Discussion Task: Limitations to the Freedom of Contract
Article 1102 of the French Civil Code contains the principle of freedom of contract which indicates
that parties are free to decide what to contract about:
Everyone is free to contract or not to contract, to choose his contracting partner, and to
determine the content and form of a contract within the limits set by the law.
Imagine you are creating your own law of contract, you will need to consider whether there
should be any limits to the legal permissibility of some contracts. To help you, consider the
following:
• Drawing your inspiration from the jurisdictions you are studying, when is a contract
usually held to be contrary to public policy or good morals? What applicable provisions
you can find?
• How should a judge determine if a contract is illegal or immoral?
• What are the consequences of an illegal or immoral contract?
• Think of 3 practical examples of illegal or immoral contracts. What would be the societal
and contract law consequences of accepting these as valid contracts? Please keep in mind
that you should provide your legal (and not personal or political) opinion.
39
We will also deal with an additional problem task to review the IRAC approach for problem-
solving. You may be interested to know that this problem task was an exam question in a previous
year.
Problem Task: Sweet Betty
Betty is a sweet, but lonely, 85-year-old lady who has lived in a lovely cottage in the countryside
for the last sixty years. This area has recently become very desirable because it is a twenty-minute
drive from a big city called Dubh Linn. Betty lives there alone because her husband passed away
ten years ago, and her children are all grown up and live far away.
Betty has severe arthritis in her hands and knees and relies heavily on her helper Molly, who
comes by every day to give her medicine, make meals, help her bathe and to clean the house.
Molly also does all of Betty’s weekly shopping and collects her medication each month. Betty’s
health has recently worsened so she decides to sell the cottage so that she can buy a small
apartment closer to her family. Betty contacts a real estate agent to market the property.
Seeing the real estate agents’ report on the table, Molly tells Betty that after all the hard work
she has done for Betty over the last five years, she has to sell the cottage to Molly for €250,000.
Molly tells Betty that if she does not agree, then she will still come by the house every day but
instead of helping Betty she will simply watch TV all day. Betty can get her own medicine and
meals and what does Molly care if Betty cannot wash herself. Betty desperately needs Molly’s
help every day and so she agrees to sell the cottage to Molly for this price, even though she was
told by the real estate agent that the cottage could sell for €400,000. The next day Betty and Molly
sign the contract and the cottage is sold to Molly for €250,000.
When Betty’s son Shane visits the following week, he finds out what Molly has done. Betty
explains to him that she really felt she had no choice but to sell the cottage to Molly. He helps
Betty fire Molly immediately and arranges a new helper. Betty now wonders if there is anything
she can do about the contract she has signed with Molly for the sale of the cottage.
Advise Betty.
Resources
Comparative Contract Law Videos for week 5 (available on the Portal)

o Chapter 9: Defects of Consent and Misrepresentation (pp. 157-176)
o Chapter 10: Prohibited Contracts (pp. 177-189)
40
Review Questions
1. What is the difference between a contract being void and being avoidable?
2. What are defects of consent?
3. What are the requirements for mistake?
4. Which types of mistake are recognised in English law?
5. When does a duty of disclosure exist? And a duty to investigate?
6. When is fraud legally relevant?
7. What is threat legally relevant?
8. How is undue influence dealt with in the various jurisdictions?
9. Explain the caveat emptor rule. Does the rule apply to any contract?
10. What is the difference between a term, a representation and a misrepresentation?
11. Mention the three types of misrepresentation. Can you give an example of each of
them?
12. What is the advantage of being able to invoke S. 2 (1) Misrepresentation Act?
13. What are the two ways to categorise illegal contracts?
14. Are all contracts violating a statutory rule void? Explain.
15. Give examples of contracts that go against public policy or good morals.
16. Do you believe that waiver of a fundamental right should be possible?
17. Is a contract in restraint of trade ever allowed? Explain.
18. To what extent is a surrogate motherhood contract against public policy or good
morals in the various jurisdictions?
19. What are the arguments pro and contra enforcing surrogate motherhood contracts?
20. What is the effect of an illegal contract?
21. Is it possible to recover paid money or delivered goods in case of an illegal contract?
22. Explain the in pari delicto rule.
41
WEEK 6: CONTRACTUAL REMEDIES 1
The third central question in the law of contract is what remedies are available to the contracting
parties in case of non-performance (‘breach of contract’).
What happens if one of the parties does not perform its obligations under the contract at all, does
perform but is too late, or the performance is defective? And what about those situations in which
performance of the contractual obligation becomes impossible or becomes excessively erroneous
for one of the parties due to unforeseen circumstances?
Generally, we can distinguish three main remedies in case of non-performance or breach of

contract:
- Performance-oriented remedies aim to provide the aggrieved party with the performance
they were promised under the contract;
- Compensatory remedies aim to compensate the aggrieved party financially for the losses
suffered as a result of the non-performance;
- Termination brings an end to the contractual obligations.
The legal systems we are studying make some fundamentally different choices about the
availability of these remedies. In particular, civil law jurisdictions tend to emphasise a party’s right
to obtain performance under the contract and tend to offer second chances before reverting to
other remedies such as termination and damages. In contrast, English law only makes the remedy
of specific performance available in exceptional circumstances, preferring damages as the
appropriate remedy in case of breach of contract.
To properly understand the system of remedies in the individual legal systems it is therefore
beneficial to understand the integral relationship between the separate remedies in each system.
Looking at and comparing individual remedies in isolation from the system of remedies as a whole
within a legal system poses challenges to gaining integrated understanding of the fundamental
choices made. Therefore, although we will approach each remedy separately (damages,
termination and performance), we encourage you to review the two weeks we spend on remedies
as a whole.
This week we will look at two opposing remedies: the claim to enforce performance and the
termination of the contract. Next week we will address the claim compensatory remedies. It
should be noted, however, that some overlap between these topics in weeks 6 and 7 will be
inevitable.
42
Mapping Task: Remedies of Performance and Termination
Make an overview or chart in which you identify the various rules on claiming performance and
termination in French, Dutch, German and English contract law and the consequences of
impossibility and unforeseen circumstances (incl. frustration). You should include the rule and
the legal authority (legal provision or relevant case) for those jurisdictions on which you can find
information (for this purpose, look in the textbook and the Maastricht Collection).
In particular, you should consider:

- Under what circumstances is an action for performance available?
- Under what circumstances is an action for performance not available?
- How can performance be claimed / enforced?
- Under what circumstances can a contract be terminated?
- What constitutes impossibility, frustration and unforeseen circumstances?
- What consequences do impossibility, frustration and unforeseen circumstances have for the
contract and/or the availability of remedies?
- What is the scope of Directive 2019/771 on contracts for the sale of goods?
- When are goods considered not to conform to the contract under Directive 2019/771 on
contracts for the sale of goods?
- What is the system of remedies for consumers provided by Directive 2019/771 on contracts
for the sale of goods?
- What is the difference between a legal and a commercial guarantee?
Problem Task: KNB Lisbon
Marie needs to furnish her new office premises. She goes to KNB Furniture dealers, a large retail
store, to purchase a large table and some comfortable chairs. Marie orders an oak table with and
six chairs at the shop. The table and chairs are delivered ten weeks later. To her great
disappointment, within two weeks of delivery, Marie discovers on close inspection that the table
and chairs are riddled with irreparable small holes. Subsequent investigation reveals that the
woodworm infestation was caused by KNB’s lack of proper preventive measures.
Advise Marie on the following scenarios:
1. Can she legally require KNB to deliver a table and chairs without the above-mentioned
defects?
2. To what extent would your solution under 1 be different in any of the jurisdictions if the
table and chairs constituted a set of antique furniture of which there is no other of the
same kind?
3. Under what circumstances could Marie - instead of claiming a substitute delivery - legally
end the contract with KNB?
4. Imagine that instead of being infested with woodworm, the table and chairs were
destroyed by lightning while being transported to Marie’s office premises. What would
be the effect on the contract?
43
5. Would your solution to 1 be different if Marie contracted as a consumer and bought the
table and chairs to put in her house?
Important: we will not deal with the claim for compensation this week, but we will return to this
case next week to address the remedy of damages.
Discussion Questions
1. Obtaining performance is the whole point of entering a contract in the first place, therefore
a claim to performance should be the primary remedy available in case of breach of contract.
Identify arguments for and against this proposition.
2. A core principle of contract law is the binding force of contracts or pacta sunt servanda: once
a contract has been validly entered into, parties are bound by it. Nevertheless, the
jurisdictions you are studying allow for termination of the contract under certain
circumstances. When should parties be allowed to ‘escape’ from the contract through
termination?
3. The remedies regime laid down in the Directive on contracts for the sale of goods removes
fundamental differences between the civil law and common law approaches to contract
remedies. Discuss.
that arose in greater depth, including the impact of COVID-19 on contracts.
Resources

o Chapter 11: Performance
o Chapter 13: Termination of the contract
• Directive 2019/771 on contracts for the sale of goods (Maastricht Collection)
44
Review Questions
1. What is the usual way in which a contract is discharged?

2. Define non-performance of a contract. Which types exist?
3. When is the action for (specific) performance available?
4. Where can you find an action for price reduction in case of non-performance?
5. Explain the different approaches to ‘impossibility of performance’ in the various
jurisdictions.
6. Are unforeseen circumstances (‘hardship’) accepted in all jurisdictions as a ground for
escaping the binding force of the contract? Explain.
7. What is meant with the phrase ‘clausula rebus sic stantibus’?
8. What is the appropriate remedy in case of unforeseen circumstances?
9. What is a ‘hardship clause’?
10. What is meant with the doctrine of ‘absolute contracts’?
11. What is ‘termination’ of the contract? What is the difference with a right of
withdrawal?
12. What is ‘fundamental non-performance’?
13. Which different types of contract terms are distinguished in English law?
14. What is a ‘notice’ and when is it needed?
15. What is an ‘anticipatory breach’?
16. Explain when a party is allowed to withhold performance.
17. What is a ‘right of retention’?
18. What is the doctrine of ‘efficient breach’? Is it accepted in the positive law?
45
WEEK 7: CONTRACTUAL REMEDIES 2
In the last week of the course, we will continue to discuss the systems of remedies in the legal
systems we are studying with a particular focus on the claim for damages in case of non-
performance or breach of contract.
Mapping Task: National Rules on Damages
Make an overview or chart in which you identify the various rules on claiming damages under
French, Dutch, German and English contract law. You should include the rule and the legal
authority (legal provision or relevant case) for those jurisdictions on which you can find
information (for this purpose, look in the textbook and the Maastricht Collection).
In particular, you should consider:

- Which types of losses or damages claims can you distinguish?
- Is attributability required to claim damages?
- Is the breaching party freed from a damages claim if there was an excusable obstacle to
performance and what constitutes an excusable obstacle?
- Is a causal link between breach or non-performance and the loss required and, if so, how is it
assessed?
- Is notice, default or a second chance required for a particular type of damages claim?
- What is the consequence of impossibility or frustration on the claim to damages?
Problem Task: KNB Lisbon
Marie needs to furnish her new office premises. She goes to KNV Furniture dealers, a large retail
store, to purchase a large table and some comfortable chairs. Marie orders an oak table and six
chairs. She manages to negotiate a special deal for the table and chairs: the normal cost for the
entire set is € 11.500, but Marie pays a price of € 9.500. The table and chairs are delivered ten
weeks later. To her great disappointment, Marie soon that the table and chairs have woodworm.
Worse still, in the time it has taken for Marie to discover this, the woodworm has infested other
wooden furniture in her office, causing €1500 worth of damage. Also, before Marie can replace
the damaged furniture, her office premises must be fumigated, which means she has to suspend
most of her business activities for a period of three weeks, causing her to lose profits at the rate
of €750 per week. Subsequent investigation revealed that the woodworm infestation was caused
by KNB’s lack of proper preventive measures.
Advise Marie on the following scenarios:
46
1. Explain whether she can claim compensation from KNB for the fact that the table and
chairs have been delivered in an irreparably damaged state.
2. Explain whether she can claim compensation from KNB for the damage caused to her
existing office furniture, the costs of fumigation, as well as the profits she has lost.
3. Alternatively, suppose the table and chairs were unique antiques and they were
destroyed by lightning while being transported to Marie’s office premises, could Marie
claim compensation for the value of the table and chairs from KNB?
Discussion Task
1. A claim to damages should be the primary remedy for breach of contract. Review the
arguments for and against this proposition from last week in light of new insights gained this
week.
2. The award of damages has a compensatory purpose, consequently liquidated damages

clauses should be permitted, while penalty clauses in a contract should not be enforceable.
Discuss
RESOURCES

o Chapter 12: Damages for non-performance
Review Questions
1. Which requirements need to be met in order to be able to claim damages for non-
performance of a contract?
2. Which types of losses can you distinguish?
3. Explain the difference between the expectation and the reliance interest. Which of these
two interests does contract law usually protect?
4. What is the difference between a liquidated damages clause and a penalty clause?
5. Is it possible to claim non-pecuniary losses in case of non-performance?
47

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MAASTRICHT UNIVERSITY

EUROPEAN LAW SCHOOL

Week 1 Introduction and Contract Formation 1 20

Week 2 Contract Formation 2 25

Week 3 Legal Capacity, Formalities and Rights of Withdrawal 29

Week 5 Vitiating Factors 38

Week 6 Contractual Remedies 1 42

Week 7 Contractual Remedies 2 46

1. Content of this Course

Five main questions are addressed in this course:

2. What are the main principles of contract law?

3. How does a contract come into being (formation)?

The general method taken in the course will be as follows:

1. Independent, self-directed study (Preparation)

DISCUSSION TASK – discussion tasks are aimed at generating understanding of the

3. The Comparative Teaching Method

3. Academic and scientific integrity

5. Use of ICT facilities and social media

8. Adoption and Entry into force.

5.1 Mandatory materials

The mandatory materials for this course are the following:

A Note on Translations: You will notice that the translations of legislative

5.2 Additional materials

In addition, you may find the following books useful to consult:

• Hugh Beale, Bénédicte Fauvarque-Cosson, Jacobien Rutgers, and Stefan Vogenauer,

6. Student Portal / Canvas

7.1 Written exam

It is important that you:

More information on the assignment will be provided on Canvas.

7.4 Exam Only Students

The 2021-2022 CCL team comprises:

In the first tutorial, we will do four things:

Discussion Task: A Cascade of Contracts

• Why you would introduce contracts and contract law;

Mapping Task: The Rules on Offer and Acceptance

• How is a contract defined?

Problem Task: Apartment and Bike for Sale

TIP! Use the IRAC method to advise on this case:

i) Identify the legal issue

Problem Task: Just in Time?

TIP! Remember to use the IRAC method.

ONLINE PLENARY SESSION

• Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256 (available via Westlaw)

Comparative Contract Law Videos for week 1

• Smits, Contract Law

• Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256 (available via Westlaw)

• Relevant national legislative provisions in the Maastricht Collection

1. The foundation of contractual liability: will and/or reliance

2. how the law establishes the existence of an intention to be legally bound;

3. the additional requirement of causa or consideration in some legal systems.

Mapping Task: The Approach to Establishing Intention to be Legally Bound

Problem Task: Cutting Edge

TIP! Use the IRAC method to advise on this case:

i) Identify the legal issue

Discussion Task: The Foundation for Contractual Liability

A contract is an agreement of will between two or more persons that is intended to

Discussion Task: “Without any further requirement”

To be able to answer this question, you will need to be able to: