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Property Law and Contract Law in Historical and Comparative Perspective (2023/2024: Semester 1 – Fall)
Cursusdoel
After completing this course students are able to:
- understand general issues of contractual and property law conflicts in international transactions;
- understand differences in concepts and rules, and other legal formants of property law and contract law in the compared jurisdictions;
- analyse along (international and national) lines of reasoning in the addressed areas in the various compared jurisdictions;
- identify various formants in the historic development of the substantive issues
Vakinhoudelijk
Content
This course focuses on the areas of property and contract law, using a comparative as well as historic perspective.
Contracting on property is a key element in trade, and therefore of key interest to law. These two legal areas – cornerstones to our free market economy - provide the legal techniques with which these transactions are accomplished. We will see that contract and property law have fundamentally different characteristics; while contract law provides a large freedom for parties to arrange their rights and duties, property law provides much less room for party autonomy. A selection of jurisdictions within (The Netherlands, Germany, France, England, Scotland) as well as outside the European Union (United States, South Africa) will be involved, as well as the European Union itself.
In comparing we will immediately notice striking similarities and differences between property and contract law in the various jurisdictions. This will draw our attention to the historic development in contract and property law. Common legal institutions through the ages – Roman law, natural law, common law, ius commune, have fuelled our contemporary laws, and are necessary to evaluate these similarities and differences.
Contractual issues like negotiations, formation of contracts, standard form conditions, interpretation of contracts, and non-performance will be explored, as well as property issues like transfer, securing credit by retention of title or security rights, as well as aspects of trust-law. These topics will be subsequently dealt with on a selected technical national level. They reflect important questions such as the following – and there are many more.
Under what conditions will the discontinuation of negotiations lead to a legally enforceable obligation – e.g. to compensate the costs? Does any agreement suffice to be contractually bound? Can I exclude effectively all liability in my general contract terms? If the goods I bought are not delivered to me, may I enforce delivery or do I have to accept a monetary compensation? What is the effect of a contract of sale? Does it immediately transfer the property right in the sold object, or are more formalities needed? Can I get back what was delivered if I have not been paid? If I have not been paid, how may I effectuate my claim? Am I entitled to take recourse on my debtor’s property? May I strengthen my claims by having the debtors property transfereed to me in advance? If not: which roads need to be taken to create a security right?
Our historical comparative tour will reveal to us that there are more formants of law than just the national or European substantive rules. The law as it stands is made by persons, through institutions (legislation, courts and more), by using accepted arguments, creating these rules, but also coining principles (e.g. freedom of contract, protecting weaker parties, publicity) and concepts (e.g. obligation, ownership). We will often need to step outside the boundaries of our legal discipline, as we come to realize that law is also fuelled from outside. This is one of the important contemporary changes in legal methodology.
These detailed pictures will offer a nuanced view of shared, yet changing traditions over time. These excursions through comparative history of `law developing’ will reveal a detailed legal roadmap to a common future.
This course focuses on the areas of property and contract law, using a comparative as well as historic perspective.
Contracting on property is a key element in trade, and therefore of key interest to law. These two legal areas – cornerstones to our free market economy - provide the legal techniques with which these transactions are accomplished. We will see that contract and property law have fundamentally different characteristics; while contract law provides a large freedom for parties to arrange their rights and duties, property law provides much less room for party autonomy. A selection of jurisdictions within (The Netherlands, Germany, France, England, Scotland) as well as outside the European Union (United States, South Africa) will be involved, as well as the European Union itself.
In comparing we will immediately notice striking similarities and differences between property and contract law in the various jurisdictions. This will draw our attention to the historic development in contract and property law. Common legal institutions through the ages – Roman law, natural law, common law, ius commune, have fuelled our contemporary laws, and are necessary to evaluate these similarities and differences.
Contractual issues like negotiations, formation of contracts, standard form conditions, interpretation of contracts, and non-performance will be explored, as well as property issues like transfer, securing credit by retention of title or security rights, as well as aspects of trust-law. These topics will be subsequently dealt with on a selected technical national level. They reflect important questions such as the following – and there are many more.
Under what conditions will the discontinuation of negotiations lead to a legally enforceable obligation – e.g. to compensate the costs? Does any agreement suffice to be contractually bound? Can I exclude effectively all liability in my general contract terms? If the goods I bought are not delivered to me, may I enforce delivery or do I have to accept a monetary compensation? What is the effect of a contract of sale? Does it immediately transfer the property right in the sold object, or are more formalities needed? Can I get back what was delivered if I have not been paid? If I have not been paid, how may I effectuate my claim? Am I entitled to take recourse on my debtor’s property? May I strengthen my claims by having the debtors property transfereed to me in advance? If not: which roads need to be taken to create a security right?
Our historical comparative tour will reveal to us that there are more formants of law than just the national or European substantive rules. The law as it stands is made by persons, through institutions (legislation, courts and more), by using accepted arguments, creating these rules, but also coining principles (e.g. freedom of contract, protecting weaker parties, publicity) and concepts (e.g. obligation, ownership). We will often need to step outside the boundaries of our legal discipline, as we come to realize that law is also fuelled from outside. This is one of the important contemporary changes in legal methodology.
These detailed pictures will offer a nuanced view of shared, yet changing traditions over time. These excursions through comparative history of `law developing’ will reveal a detailed legal roadmap to a common future.
Format
In order to achieve these aims the course proceeds as follows. It provides each week for instructions and discussions in seminar sessions on questions and cases provided. Each week the program will be comprised of a substantive aspect of contract or property law, next to a topic of a more meta-legal nature. Substantive law will be dealt with firstly on a technical level, and subsequently placed in a historic as well as comparative context.
All sessions will require preparation and active participation. Furthermore it provides for individual in-depth analysis on selected topics of choice in a written paper, which needs to be presented at two stages in its development – in the 4th week and in the 15th week. Guest lecturers will be invited on selected topics, which then may include different locations – e.g. Courts at their location (Utrecht, The Hague). The schedule below may see therefore some changes.
All sessions will require preparation and active participation. Furthermore it provides for individual in-depth analysis on selected topics of choice in a written paper, which needs to be presented at two stages in its development – in the 4th week and in the 15th week. Guest lecturers will be invited on selected topics, which then may include different locations – e.g. Courts at their location (Utrecht, The Hague). The schedule below may see therefore some changes.
Werkvormen
UCU course
Toetsing
Participation
Verplicht | Weging 10% | ECTS 0,75
Final Exam
Verplicht | Weging 30% | ECTS 2,25
Paper
Verplicht | Weging 30% | ECTS 2,25
*midterm FEEDBACK*
Niet verplicht
Midterm Exam
Verplicht | Weging 30% | ECTS 2,25
Ingangseisen en voorkennis
Ingangseisen
Er moet voldaan zijn aan de cursus:
Voorkennis
Er is geen informatie over benodigde voorkennis bekend.
Voertalen
- Engels
Cursusmomenten
Gerelateerde studies
Tentamens
Er is geen tentamenrooster beschikbaar voor deze cursus
Verplicht materiaal
-
DIVERSETransport costs to The Hague (if possibly arranged)
Aanbevolen materiaal
-
ARTIKELENChapters from Arthur Hartkamp et al. (eds.), Towards a European Civil Code (fourth revised and expanded edition, Ars Aequi Libri – Wolters Kluwer 2011, ISBN 978-906916-715-2 (PB); ISBN 978-90-411-3357-1 (HB). all literature taken from the public domain
Coördinator
| dr. J.M. Milo | J.M.Milo@uu.nl |
Docenten
| dr. J.M. Milo | J.M.Milo@uu.nl |
Inschrijving
Let op: deze cursus is niet toegankelijk voor studenten van andere faculteiten, bijvakkers mogen zich dus niet inschrijven.
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