__________
LIST OF NLCIFT BOARD OF DIRECTORS
PART I. OVERVIEW, METHODOLOGY, FORMATION AND EVOLUTION OF COMMERCIAL PROMISES
CHAPTER 1. GUIDING THEMES AND CONTENT OF THIS BOOK
A. Whether as a Science or as an Art, the Law Is About People
B. The Shaping Role of Standard and Best Practices
C. Successful Standard and Best Practices and Commercial Statutory and Case Law
D. Selfishness, Cooperation and Altruism as Integral Parts of Human Nature and Commerce
E. Sub-Standard Contract—Often Simulated—Practices Are Found in All Legal Systems
F. The Sharp Line Between Civil and Commercial Contracts in Many Civil Law Countries
1. The Different Meanings of Contract and Promise in Present Day Commercial and Financial Markets
2. The Dichotomy of Civil and Commercial Contracts
§ 1.4 Appendix: Understanding Japan’s Corporate and Legal Culture
C. The Supreme Court’s Reasoning
D. Whose Legal Cultural Perspective? Whose Rationality?
E. Professor Dan F. Henderson’s Views on Japanese Corporate Culture
F. Personal Observations on German, Japanese and United States Business and Corporate Cultures
G. The Transaction, Its Parties and Required Assurances
H. The Independence or Abstraction of the Promises and Their Assurances
J. Germany’s and Japan’s Positions
§ 2.1 The Comparative Method of This Book
B. Different Methods of Comparison
2. The Contextual Comparison and the Purpose of Legal Institutions: Rudolph von Ihering’s Views
3. The Contextual Comparison: Actual Purposes and Practices
4. Archetypal Behavior and Contextual Analysis
5. Von Ihering’s and Justice Cardozo’s Contextual Analysis and Cultural Anthropology
§ 2.2 Two Methods of Legal Reasoning: Legal Scholasticism and the Logic of the Reasonable
1. Facts and Scholastic Legal Institutions
2. Dialectics, Axioms and Maxims
4. Economic Development Consequences of Scholastic Classifications and Definitions
B. The Logic of the Reasonable
b. Judge Friendly’s Explanation of What Is “Contractually Reasonable”
Comments and Questions on Fairness and Reasonableness
c. On Fiduciaries and Their Brotherly Behavior: Justice Cardozo’s Decision in Meinhard v. Salmon
C. A Preponderantly Factual and Analogical Logic
1. A Preponderantly Factual Logic
2. Analogy and Reasoning by Example
§ 2.3 Summary and Conclusions: A Proposed Research and Drafting Methodology
§ 2.4 Appendix: Access to Commercial Credit at Reasonable Rates of Interest
C. The NLCIFT 12 Principles of Secured Transactions Law in the Americas
1. National Identity Card as a Qualifier for the Legal Status of a Securing Debtor (Deudor Garante)
2. Archetypal Coyotes and Usurers in Agricultural Loans
3. The Negative Effects of the Scholastic Classification of “Principal and Accessory”
4. The Problems with Cattle Loans
6. The Need for Reliable Accounting Data: The Importance of Accounts Receivable Collateral
7. Some Remedial Lessons Learned from Experienced Trial Lawyers
CHAPTER 3. THE LAW OF CONTRACTS IN A PRE-COMMERCIAL OR AGRICULTURAL SURVIVAL SOCIETY
§ 3.1 Introduction: Why Bother with Pre-Commercial Society?
§ 3.3 Duties Derived from “Dense” and Reciprocal Relationships
A. Absence of Market Dependence: Communal Living vs. A Commercial Association
B. The Costs of a Community Method of Production and Distribution
Comments, Questions and Cross References
C. Reciprocity and Gift Giving
Comment: On Gift Giving and Consideration
§ 3.4 Impersonal Relationships in Free Market Societies
§ 3.5 “Dense” Transactions: A Perennial Obstacle to Competition
§ 3.6 Principles Originated in Pre-Commercial Societies
A. Unequal Treatment of Strangers
B. Valuable Property Is Not to Be Sold, but to Be Kept in the Family Fold
C. Continuous and Unlimited Familial Liability for What Was Conveyed or Sold
D. A “Harmful” Agency Is Not Binding on the Principal
E. Unenforceability of Executory Promises
§ 3.7 Anthropology and the Formulation of Commercial Law
A. The Work of E. Adamson Hoebel
B. Anthropology and a Better Understanding of Commercial Law
C. Law and Behavioral Imperatives
A. Agriculture and the Origin of Contracts
B. Cultural Values, Jural Postulates and Legislative Principles
C. Illustration of the Use of Jural Postulates in Drafting Principles for Future Legislation.
§ 4.1 Introduction: Roman Law and the Seminal Purposes of Private Legal Institutions
§ 4.2 The Providers of a Legal Alphabet
A. Stages in the Development of Roman Law
2. The Pre-Classical Period and the Emergence of Praetors
3. The Classical Period and the Crystallization of a Method of Reasoning
4. The Greek-Roman Geometric Logic: Analogy and Classification
§ 4.3 The Socio-Economic Context of Roman Commercial Legal Institutions
A. Soldiering as a Gainful Occupation
B. Commerce vs. Roman Archetypal Dignity
A. Sources for the Study of Roman Law
B. The Contribution of Praetors
D. Contracts and Their Enforcement: Why Were Only Certain Types of Contracts Enforced?
1. The Absence of a General Theory of Contract
2. Binding Promises Because of Their Formality: The Stipulatio
3. Contracts Enforced Because of Their Content
a. Nominate Contracts: Consensual and Real
c. Typification of Roman Contracts and Contemporary Contracts
e. The Roman Typification of Contracts: Its Impact upon Its Own and upon Contemporary Legal Systems
f. Causa as an Element of a Valid Contract and a Source of Its Uncertainty
4. Causa in French and French-Inspired Law
§ 4.5 Topics for Comparative Discussion
A. The German and German-Inspired Rejection of Causa
B. The End of the Journey of Nudum Pactum?
§ 4.6 Roman Legal Opinions on Types and Interpretation of Contracts: The Bonus Vir
A. Barter and Sale: And a Firm Grasp of Transactional Facts
B. Price as an Essential Element
C. Discretionary Conditions and the Bonus Vir Standard
D. The Present and Future Res as an Element of the Contract of Sale
E. Interpretation: Types of Mistakes
G. Remedies for the Breach of a Sale Agreement
§ 4.7 Conclusions: Once More—Why Study Roman Law?
PART II. MEDIEVAL LAW: GUILDS, AGENTS AND NOTARIES
§ 5.1 Introduction: Medieval Law and the Institutionalization of Commercial Trust
§ 5.2 Contract as Delict, Unjust Enrichment and Ritual in Some Southern European Countries
§ 5.4 Medieval European Cities and Their “Picaresque” Merchants
A. A Spanish Picaro and Archetypal Tricky Merchant
B. The Legitimate But Religiously Suspect Archetypal Merchant
§ 5.5 Contemporary Versions of the Picaresque and Their Economic Development Costs
§ 5.6 Lay Law, Canon Law and Pacta Sunt Servanda
A. Aristotle’s Essences, Commutative Justice and Usury
B. Scholasticism, Usury and the Typification of Contracts
1. Repression and Evasion of Usury: Aristotelic Essences and Roman Law
2. The Economic Consequences of the Prohibition of Usury
§ 5.8 Preliminary Conclusions and a Contemporary Illustration
§ 5.9 Medieval Jewish Commercial Brotherhood
A. Customary and Rabbinical Brotherly Duties: The Archetypal Agent
B. Evolution of the Biblical Prohibition of Usury and Its Effects upon Brotherhood
C. Contracts and Medieval Executory Promises
§ 5.10 Rabbinic Responsa by Maimonides
§ 5.11 Agents’ Duty of Loyalty and Their Causal Representation in Jewish Law
§ 5.12 English Wool Contracts and Recognizances in Medieval Law
A. Advance Sales and Secured Loans
C. The Registration of Recognizances
D. Conclusions: Limitations of Brotherly Duties
§ 5.13 Appendix: Medieval and Codified Law on Oaths, Mandate and Agency
A. The Oath in Civil and Common Law Jurisdictions
1. France: The Judicial Oath (Serment Décisoire) in the Code Civil
B. Mandate and Agency and Third Parties
2. The Transactional Costs of the Roman and Biblical Mandates
3. Forerunners of the Civil Law of Authority and Representation
4. The German Prokura: Independence or “Abstraction” of an Agent’s Authority and Representation
D. A Comparison of Civil and Common Law Statutory, Quasi-Statutory and Judicial Rules
1. The Restatement of Agency in Representative Codes and Uniform Laws
b. Elements of European and Guatemalan Commercial Agency
2. Civil Law Court Opinions on the Independence of the Agent’s Authority
a. Germany’s Reichsoberhandelsgericht (1872)
CHAPTER 6. GUILDS AND THE CAPITALIST SYSTEM AND MARXIST LEGAL SYSTEMS
§ 6.2 Guilds, the Verlagssystem and Capitalism
A. The Medieval Guilds and the Verlagssystem
B. Basic Features of European Medieval Guilds
C. The Transition to the Putting Out or the Verlagssystem of Contracting and Sub-Contracting of Work
Comments and Questions About the Transition to Capitalism
1. Causes of the Demise of the Guilds
3. From Status to Contract and Vice Versa
4. The Liberating Power of Credit: What if the Paris Silk Spinsters Had Access to Credit?
D. The Emergence of Different Types of Capitalist Merchants in European Commerce
1. The Regulation of Local vs. International Commerce
2. Mercantilism and One-Sided Terms of Trade
E. The “Fresh Start” of European Commerce: A Commercial Typology
1. Street Markets and Transactions “Inter Praesentes”
4. Fairs as Markets and as Settlement and Clearing Houses
5. High Commerce, Wholesalers, Warehousemen and Exchange Houses: The Amsterdam Exchange
7. Cash, Credit Sales, Brokers and Other Intermediaries
8. Table: Types of Businesses and Their Types of Contracts
§ 6.3 Dual Codes for France’s and Germany’s Private Law: A Remnant of the Guild System?
CHAPTER 7. THE LATIN NOTARIAT AND CONTEMPORARY CONTRACTS
§ 7.2 The Formalities or Solemnities of Land and Commercial Transactions
§ 7.3 Authentication by Latin Notaries in Contemporary Commercial Transactions
A. The Meaning of Authentication
1. The Wide Geographical Reach of the Latin Notarial Functions
2. Authentication and Attestation
3. Publica Fides and the Evidentiary Weight of a Latin Notary’s Authentication
B. The Limits of the Latin Notary’s Factual Authentication
2. Authentication of Facts Other Than the Contractual Intent
3. The Problems with the Attestation of the Intent in Commercial Contracts
C. The German Notarial Experience with Commercial Transactions
§ 7.4 Notarial Attestations in Commercial Transactions: A New Breed of Commercial Notaries
§ 7.5 Appendix: The Living Law of the Notarial Profession in Developing and Developed Nations
A. Notarial Practice in Sonora, Mexico, and San José, Costa Rica:
1. Interview Lic. Eduardo Estrella Acedo, from Ciudad Obregón, México
2. Interview with Lic. Joaquín Picado from San José, Costa Rica
B. Sweden and the Liberalized Notariat
1. The European Union: Notaries and Competition
PART III. EUROPEAN CODIFICATION
CHAPTER 8. THE FRENCH CODE CIVIL; KEY POLICIES AND DRAFTING METHOD
§ 8.1 Introduction: Lawmaking Through Codes; A Babylonian and Greek Analogy
§ 8.2 The Influence of the Enlightenment and Natural Law upon Codification
A. Rationalism, Mathematics, Geometric Logic and Humanism
B. Right Reason = Logic + Morality: The Writings of Hugo Grotius and Samuel Pufendorf
a. Natural Man and His Sociability
b. The Influence of Grotius’ Principles: Consent and Good Faith
2. Samuel Pufendorf: Axioms Inspired by Natural Law
§ 8.3 The Drafting of the Code Civil
§ 8.4 Pothier’s Definitions and Classification of Contracts and Their Consequences
1. Synallagmatic or Bilateral Contracts
2. Consensual and Real Contracts
3. Problems with Loans as “Real” Contracts
4. Problems with Consensual Sales and Notarial or Public Deeds
5. Onerous, Charitable and Mixed Contracts
6. Principal and Accessory Contracts
7. Formal and Informal Contracts
C. The Code Civil’s Classification of Contracts and Executory Promises
D. The Negative Effect of Scholastically Inspired Definitions and Classifications
§ 8.5 Natural Law Principles and Code Interpretation
§ 8.6 Socio-Economic Context: The Bourgeoisie and Its Influence
§ 8.7 The Archetypal Bourgeois Civil Contracting Party
D. Rescission Because of Lesion (Laesio Enormis) or Enormous Loss
G. Contracts Inter Praesentes and Disregard of Third Party Rights
§ 8.8 Conclusions: The Bourgeois Archetype of Code Civil Contracts
§ 8.9 Appendix: Codified, Statutory and Case Law
B. Promises of Sale of Real Property
C. Relevant Code Civil Provisions
1. Court Decision: Garrone C. Dame Guinde
2. The Meaning and Method of the Code Civil Provisions
3. Code Civil Rules on Promises of Sales and the Commercial Marketplace
4. Commercial Promises and Pollicitations
a. Statutorily-Enforceable Electronic Pollicitations
b. Judicially-Enforceable Pollicitations
§ 8.10 Illegal Causa in an Insurance Contract
B. Court Decision: Soc. Économique de Rennes C. Pailleret et al.
CHAPTER 9. THE BIRTH OF A CONTINENTAL EUROPEAN COMMERCIAL LAW; FAIR AND COMMERCIAL COURTS
§ 9.1 Birthmarks of a European Commercial Law: The Role of Commercial Courts
A. Merchant Associations and Consular Courts
B. The Statutes of Mostly Italian Commercial Cities and Consulates
D. The Consulates of the Sea (Consulatus Maris)
§ 9.2 Fair Courts and the Unification of European Commercial Law
A. The Early Courts and the Peace of the Market
C. The Post-Fifteenth-Century Fair Courts: Consulates and Commercial Courts
D. The Contribution of Consular and Fair Courts
E. The Successors of the Fair Courts: The French Commercial Courts and Their Failed Promise
1. Consular and Commercial Courts
2. Obstacles to a Market-Based Case Law
3. Virtue and French Commercial Court Adjudication
a. A Typical Eighteenth-Century Parisian Merchant
i. A Suspension of Payments and Its Charitable Aftermath
ii. Parrish Priests as Arbiters and Judges: Charity and Just Price
a. Professor Kessler’s Conclusions
i. Selfishness, Charity for Its Own Sake and Normative Charity
ii. Just Prices, Usury, and the Role of Custom and Usage
§ 9.3 Today’s Commercial Court
CHAPTER 10. THE CODE DE COMMERCE OF 1807
§ 10.1 Brief Background: Enterprises and Who Is the Public?
A. The Final Draft of the Code de Commerce
B. Early Bankruptcy and Commercial-Credit-Inspired Amendments: Bourgeois v. Merchants
§ 10.2 The Scope of an “Objective” Commercial Code: One or Two Moralities?
A. Acts of Commerce and the Protection of Bourgeois (Non-Merchant) Fathers of Families
B. The List of Acts of Commerce in Original Articles 632 and 633 of the Code de Commerce
1. A Closed List of Acts of Commerce: The Exegetes
2. Commerce as Defined by Commercial Scholastics
3. Acts of Commerce Scholastically Classified: Principal and Accessory Acts
4. Unilaterally Commercial or Mixed Civil and Commercial Acts
5. The Commercial Lawyer’s Predicament
b. Foreign Doctrine v. Local Customs: Picado Guerrero v. Rojas Dias
§ 10.3 Mexico’s Experience with Its Acts of Commerce
A. The Broadened Scope of Mexico’s Acts of Commerce
B. The Mixed or Unilaterally Civil or Commercial Act in Mexico
C. Some Hope in the Americas: The OAS Convention on Choice of Law
§ 10.4 The Accordion-Like Present Code de Commerce
B. A Summary of the Contents of the 2008 Version of the Code de Commerce
1. The Status and Capacity of a Merchant
2. Statutory and Administrative Obligations of All Merchants
3. Special Business Associations and Mutual Support Associations
4. Brokers, Commission Agents, Commercial Agents and Carriers
5. Bulk Sales and Commercial Leases
6. Traditional and Not-So-Traditional Business Associations and Economic Interest Groups
8. Pricing and Competition: The French Equivalent of the Sherman and Clayton Acts?
10. Secured Transactions Provisions in Book V of the Code de Commerce
11. Secured Transactions in the 2006 Amendments of the Code Civil
12. Security Interests in Warehouse Receipts, Warrants and Bonds
13. Commercial Provisions Other Than in the Code de Commerce
§ 10.8 Appendix—Case Law Related to the Code de Commerce
A. Craftsmen and Merchants: Are French Guilds Still Alive?
1. Decision in Cour de Cassation, Commercial Chamber, May 12, 1969
1. First Case—Decision in REQ., February 4, 1925
2. Second Case—Decision in REQ., December 11, 1944
3. Commentaries by Professor Jean Schmidt
C. Agricultural Civil Cooperatives and Acts of Commerce: A Clash Between Commercial and Civil Codes
2. Decision in the Cour de Cassation, Commercial Chamber, November 20, 2007
D. Commercial and Civil Acts: The Performance of Work vs. Agency; Material Acts vs. Juristic Acts
§ 10.9 An Illustration of the Effects of Scholastic Logic upon New Contracts
D. Code Civil and Code de Commerce Provisions
E. The Compatibility of the Code Civil and the Code de Commerce Provisions with Escrow Agreements
F. Compatibility of the Mexican Civil and Commercial Codes with Escrow Agreements
CHAPTER 11. SOCIO-ECONOMIC CONTEXT OF GERMANY’S CIVIL AND COMMERCIAL CODES
§ 11.1 The Context: From a Dismembered to a Unified Commercial and Industrial Germany
A. The French Ideological and Intellectual Influence
B. The Congress of Vienna, the Zollverein and Free Internal Trade: A New Commercial Bourgeoisie
C. Political Unification: Prussia and Bismarck’s Germany
§ 11.2 The Emerging German Industry, Agriculture, Commerce and Finance
A. Industries Big and Small: From Craftsmen to Merchants
C. Inventory, Accounts Receivable, Financing and a New Law of Executory Contracts
D. From Cambium to Quasi Money
a. The French and “Latin” System and the Non-Negotiability of Governmental Bonds
b. The German Negotiable Instruments Law and Government Bonds
E. The Importance of Credit and Payment Instruments in Germany’s Economic Development
F. Commercialization of German Rural Property and Agriculture
G. A Parenthetical Aside: The Importance of Professional Agents and Intermediaries; The Prokurist
§ 11.3 The Emergence of “High Commerce” and Bankers for Governments
§ 11.4 Merchant and Public Sector Banking: The Rothschilds
A. The Rothschilds’ Multi-National Banking
D. Banking and Government Bond Business
E. Integrity and Trustworthiness: The Elector’s Treasure
F. The Emergence of an International Bond Market
G. Legal Implications of the House of Rothschilds’ Issuance of Negotiable Bonds: Archetypal Behavior
CHAPTER 12. THE CODIFICATION OF THE GERMAN CIVIL AND COMMERCIAL CODES
§ 12.1 Opposing Views on Codification: Romanists and Germanists
§ 12.2 Pandectist System Building
A. Illustrations of System Building
B. The Pandectist Disinterest in Socio-Economic Facts and Needs
§ 12.3 The Drafting of the BGB
A. Background: The HGB & ADHGB
B. Brief Review of the BGB’s Contents
C. The Juristic Act and the Drafting of the General Part
D. The BGB’s Commercialization of Civil Contracts
§ 12.4 The Drafting of the HGB of 1897
A. The Law of Bills of Exchange (Wechselgesetz)
C. The HGB’s “Subjective” Approach to Scope: A Longstanding Misunderstanding
D. Is the Commercial/Civil Code Dichotomy Presently Justified and Is Unification Possible?
§ 12.5 An Overview of the Original and Amended Versions of the HGB
A. The Original (1897) Version of the HGB
B. The Scope of the Amended (1998 and Present) Version of the HGB
C. Illustrative Sections of the Amended HGB
§ 12.6 Commercialization of Contracts and Third Party Protection: Code Civil and BGB
§ 13.1 Sources and Their Heirarchy
a. Thöl’s and Rocco’s vs. Goldschmidt’s and Vivante’s Conceptions of Commercial Legal Science
b. Thöl’s and Rocco’s Views on the Sources of Commercial Law and Their Influence
c. Goldschmidt’s Influence upon Karl Llewellyn
d. Conclusions: Goldschmidt’s Suggestions and My Findings
D. Commercial Treaties as Sources: Their Hierarchy
§ 13.2 The “General Conditions of Trade” in German Law
§ 13.3 Judicial Decisions on the Scope of the HGB, BGB, AGB and CISG
B. Bundesgerichtshof, October 31, 2001 [VIII ZR 60/01]
a. United Nations Convention on the International Sale of Goods (CISG)
4. Commentary by Dr. Martin Schmidt-Kessel
C. Bundesgerichtshof, September 26, 1989, WM 1989, 1713: Slight Negligence in the AGB for Banks
1. Applicable Provisions of the BGB
4. Comment by Angela Daniel Paczosa
D. Bundesgerichtshof, February 3, 1986, 1986 WM 769–770
E. Bundesgerichtshof (Ninth Civil Senate) 24 February 1994, NJW 1994, 1341:
Subject: Duties of a Merchant Toward a Non-Merchant: BGB Section 138 on Subjective Lesion.
1. Applicable Provisions of the BGB
PART IV. FAMILISTIC AND SOCIALIST VARIANTS OF THE CIVIL LAW
CHAPTER 14. LATIN AMERICAN CODIFICATION AND ITS ALL-IMPORTANT COLONIAL BACKGROUND
§ 14.1 Familism and Authoritarianism in Latin American and Socialist Law
§ 14.2 Latin America’s Elusive Economic Development
§ 14.3 Spanish and Colonial Official Law
B. Terminology and Types of Laws
C. Compilations of Laws in Force in the Americas During the Colonial Period
1. Leyes de Indias: Inequality and Customary Law
2. La Nueva and Novísima Recopilación
3. Excerpts from the Novísima Recopilación
a. Law No. 2 of King Ferdinand & Queen Isabella on July 25, 1499
b. Law No. 3 of Charles I & Philip II on October 6, 1552
c. Law No. 4 of King Phillip IV on February 10, 1623
d. Law 17 of King Phillip V, December 2, 1737 and King Charles IV, June 3, 1805
4. The Regulation of Colonial Trade
a. Board of Trade and Official and Royal Monopolies
b. The Commercial Consulate (Consulado de Mercaderes)
§ 14.4 The Living Law of Colonial Commercial Contracts: Archetypal Behavior
A. High Commerce in New Spain: Picaresque Mercaderes, Flotistas, Almaceneros, and Hacendados
1. Introduction: Exporters, Importers and Wholesalers
2. The Struggle for Control of the New Spanish Market
a. Control of the Supply of Goods: Taxation, Circumvention and Smuggling
b. Control of Credit: Flotista and Almacenero Credits
B. The Living Law of Traveling Salesman and their Brotherly Standard of Fairness
1. Agribusiness: Hacendados and Caudillos
a. Hacendados and Their Exclusive Dealings with Governmental Entities
c. Bribes, Negocios and Simulations
2. The Brazilian Jeito and the Mexican Simulation
3. Compadrazgo, Bribery, Simulation and Violence in Mexican Rural Land Transactions
4. The Effects of Simulation on Mexico’s Commerce and Economy
5. The Business and Legal Ethics of Kinship and Friendship
6. Politicians and Hombres de Bien
§ 14.5 Latin American Codification
A. Latin American “Families” of Civil Codification
1. Andrés Bello and the Chilean Civil Code of 1855
2. Dalmacio Vélez Sársfield and the Argentinean Civil Code of 1871
3. Comparison of the Above-Selected Provisions of the Chilean & Argentine Civil Codes
B. Latin American Commercial Codification
1. Families of Commercial Codes
2. Why Autochthonous Commercial Codes Are Unlikely
§ 14.7 Appendix: Colonial and Post-Colonial Attitudes
B. A Tentative Presumption of Commercial Good Faith Aided by Confessors
C. Reasonable Rates of Interest, Just Prices and the Market
D. Bad Faith and Money Changers
E. Cash and Installment Sales, Lawful Profits and Unlawful Profiteering
G. Conversations with Dr. Raúl Cervantes Ahumada
1. On Mexico’s Living Law: An Insider’s View
2. Caudillos, Caciques and Simulations
3. The Caudillo’s and Everyone’s Natural Right to Smuggle
4. The Magic Powers of Mexico’s Chief Executive
5. The Power of Caudillo-Like Presidents and the “Letrismo” of Judges
CHAPTER 15. SOVIET COMMERCIAL CONTRACT LAW
§ 15.1 Introduction: Commercial Contracting During the USSR or Its Functional Equivalent
B. A Modern Society Without Commercial Contracts?
C. Merchants and Entrepreneurs in Imperial Russia
D. The Economic Picture of Pre-Revolutionary Russia
E. The Soviet Experience with Commercial Contracts; Why Were They Not Eradicated?
§ 15.2 Marxism-Leninism as a Source of the Official Law of Commercial Contracts
B. “The Capital” and the Law of Motion of Modern Society
C. Marx’s Purported Scientific Method
1. Archetypal Capitalists and Their Demonology
a. The Imprecise Class of Archetypal Capitalists
b. The Demonology of Capitalist Contracts and Private Property: Trade as Inherently Deceitful
c. The Deification of the Exploited: Select or “Chosen” Classes
2. The Method of Exploitation: Appropriation of the Surplus Value
D. The Bases of the “Law of Motion of Modern Society”
2. Historical and Economic Materialism
3. Disregard of the Changing Meaning of Property
A. The Special Meaning of Lenin’s Charismatic Authoritarian Leadership
B. The October Revolution of 1917
D. Lenin’s Law Making: Authoritarian Legalism
1. The Many and Varied Sources of Lenin’s Law
2. Obedience Through Didactics and Terror
3. Private Trade During the “War Communism”: Bagmen and Entrepreneurial Factory Workers
5. The Nepmen and a Commercial and Economic Revival
6. The Nepmen’s Informal Commercial Contracts
a. Speculators, Their Cash and Pricing System
b. Legal and Questionable Transactions
c. Simulated and Illegal Transactions
d. The Demise of the Nepmen and Kulaks
E. Economic Planning as a Source of Administrative-Contract Law
F. Market Socialism and Market Prices: Ludwig von Mises’ Criticism
G. Yevsey Liberman’s Autonomy of Production, Profitability Rate and Economic Planning
2. Cuba: The Commercial vs. The New Socialist Man
§ 15.5 Conclusions: An Invertebrate Legal System and Its Disregard of Human Nature
§ 16.1 The Higher Law as Slogans: Corruption and the Invertebration of the Soviet Legal System
A. Sources of Private (“Personal”) Law and the Effect of Legal Nihilism
§ 16.2 Civil and Commercial Transactions in Codes and Other Enactments
A. The Civil Code of 1922 and the Civil Transaction
1. Evgeny Pashukanis and a Transitional Law Toward a Stateless and Lawless Society
2. The Spastic Journey of Economic Law
3. The Basic Principles of Civil Law and of Civil Procedure of 1961
§ 16.3 Transactions Involving Personal Property: The Federal Ownership Act of 1990
A. To Whom Are Tenancy Duties Owed? Sources of Tenancy Law
3. Making a Wife’s Life Impossible as a Ground for Eviction
4. Rent, the Withering Away of Law, Prices and Unpredictability
C. The Building of Private Homes and Dachas
1. Selected Provisions of the Civil Code of 1964
2. Case Law: Unearned Income and Other Accusations Based on Marxist-Leninist Dogma
a. Lemdyanov’s Garden; Speculative and Unearned Income
D. Dacha Rentals and Models of Proper Party Behavior: Zikeyev’s Construction Materials
E. Economic Significance of the Soviet Commerce in Personal Property
F. Cases and Disputes Involving Artisans and Small Merchants
1. The 1970 Criminal Case of Fadeev: A Seller of Wagon Wheels
3. The 1968 Case of Utekeshev: A Factory Dispatcher, Nepman or Both?
§ 16.5 Adjudicating Compliance with Economic Plan Duties: Ordinary and Supply Contracts
A. Absence of Raw Materials as a Defense
1. The 1966 Moscow Wool Outlet Case: Lack of Raw Materials
§ 16.6 A Personal Experience with Bulgarian Central Planning and State Property
§ 16.7 The Civil Code of the Russian Federation of 1995
B. Epistemology, Political Ideology and Troubling Terminology
C. Anachronistic and Harmful Provisions
CHAPTER 17. CHINESE IMPERIAL, MOSTLY LIVING LAW OF CONTRACTS
§ 17.1 Introduction: Legal Invertebretation and Familism, Confucianism and Legalism
§ 17.2 The Family, Lineage and Clan as Early Private Law Makers and Economic Units
C. Common Budget and the Importance of Family Land for Family Survival
D. Patrilineal Lineage and Legal Invertebration
§ 17.3 Traditional Values and Living Law: Confucius, Daoism and Legalism
B. Titles, the Moral Way and Obedience to the Ruler
C. The Hierarchy of Occupations or Classes: Scholars, Craftsmen, Farmers and Merchants
E. Ritual, the (Moral) Way and Confucian Law
F. The Analects, Commerce and the Protection of the Third Party
1. On Law, Virtue (the Moral Way) and Essential Faith or Trust in Government
2. On the Protection of Family and Third Parties
§ 17.4 Governmental Policies, Economy, Markets and Contracts in Traditional China
A. Feudalism, Taxation and Confucian Adjudication During the Zhou and Qin Dynasties
B. Monopolies and Corruption in an Agrarian Economy: The Han Dynasty
C. An Expansive Empire: Land Contracts and Legalistic Prohibitions—The Tang Dynasty (618–907 A.D.)
1. The Song Dynasty (960–1127 A.D.)
§ 17.5 Imperial China’s Failure to Become a Capitalist Nation
A. The Commercial Practices of an Archetypal Commercial Clan: The Huizhou
B. Sharp Dealing, Bribery and Simulation
C. Clans and Political Patronage
D. Neo-Confucian Merchants, Bureaucrats and Limited Commercial Risk-Taking
E. Uncompetitive Small Business vs. Monopolistic Clans and Guilds
F. Absence of Capitalist Intermediaries and the Cotton Cloth Business
G. Familism, Unlimited Liability and Business Associations
H. Exclusive Dealings and the Guanxi
§ 17.6 Conclusions: Why Capitalism Failed to Emerge During the Ming & Qing Period
CHAPTER 18. CONTRACTS AND LITIGATION IN IMPERIAL AND MAO’S CHINA
§ 18.1 The Commercial and Economic Importance of Chinese Imperial Contracts
B. The Legal Component: Causal vs. Independent or Abstract Promises and Rights
1. Land Contracts, Property and Third Party Rights in Imperial China
b. Sale of Surface Rights or Topsoil Ownership
C. Third Party Rights Under a Conditional Sale
D. Third Party Rights Under a Tenancy or Ownership of Surface Land or Topsoil
E. Chinese Families and Communities as Contracting and Litigating Units
F. The Causality of Chinese Familistic Contracts
1. Causal Statements in an 1894 Sale Agreement
2. Professor Zelin’s Comments on Familistic Clauses in Conditional Sales
3. Economic Necessity and a “Defension” Clause (Circa 1234 BCE)
G. Familistic Clauses, Disputes and Violence
H. Effects of the Typical Land Contracts upon the Economic Growth of Imperial China
I. Certainty of Family Rights vs. Rights of Third Parties
§ 18.2 Forgery and Chicanery in Imperial Court Litigation
A. The Assistants in Drafting and Pleading
C. An Illustration: A Statute of Limitations and a Clearly Drafted or “Doctored” Contract
D. Conclusions: Familistic Clauses, Legal Invertebration, Uncertainty and Third Parties
§ 18.3 Mao Tse-tung and His Shifting Marxist-Leninist Dogma
A. The PRC Initial Land Reform
B. The Abrogation of Pre-Existent Law and the Spirit of the New Socialist Man
C. Mao’s Collectives, the NSM, the Absence of Contracts, and Its Human and Economic Costs
1. Analysis of the Failure of Mao’s Collectivization Policies
2. The Negative Effects of Mao’s Collectives and Communes
3. The Economic Value of “Self Enforcing” and Commercial Contracts
D. Mediation and Non-Existent Land Contract Litigation During the Collectivization Period
CHAPTER 19. CONTEMPORARY LAND CONTRACTS, THIRD PARTIES AND JUDICIAL LAW MAKING
§ 19.2 Deng Xiaoping’s Policies
1. Decentralization: The Dual and Triple Tracks of Land Use Rights
2. Hunger for Revenue and Land Use Rights
§ 19.3 Legal Reforms, Property Rights and Their Reliability
1. The Many and Confusing Sources of Legislation
2. Courts and the Weight of Their Decisions: The Luoyang Seed Case
3. The Main Constitutional and Statutory Sources of the Reform of Property Law
4. A “Sketched” and Loose Style of Legislation
B. The Results of Invertebration
1. Who Are Owners Under the Property Rights Law (PRL)?
2. What Do Owners Own? The Uncertain Dimensions of Ownership and of Lesser Rights in Rem
a. Land Use Rights in General: Grants and Allocations
b. The Legal Nature of Granted Land Use Rights, the Roman Iura in Re Aliena
c. Hierarchy of Ownership, Land Use Rights and Benefits Under the PRL
3. Who Are the Third Parties of the PRL?
4. Legal Uncertainties in the Acquisition of Residential Property
a. Recent Shanghai Condominium Transactions
b. Financing Real Estate Transactions in 2008
c. 2011 Restrictions and Limitations on Second Home Purchases
6. A Land Rights Dispute and the Relative Value of a Land Use Certificate
7. Usufructs and Their Priorities: A Typical Dispute
C. The Effectiveness of Land Registry Recordings
1. Multiple Registries and Restricted Access to Recorded Data
2. Is the PRL’s a Constitutive or a Notice Registry System?
a. The Title Examination of the Grundbuch
b. The Third Parties’ Negative and Positive Reliance on the Public Faith of the Grundbuch
D. Third Party Protection and the Land Registry of the PRC
1. Registry Data: Legal Descriptions and Cadastral Data
2. The Transactional Sequence Data
3. Certificates of Registration
4. Recordable Rights in Rem and Their Uncertain “Holders” or “Obligees”
1. The Weakness of Third Party Right Under the PRL and Related Statutory and Administrative Law
2. Regulatory Policies and the Weakness of Third Party Rights
§ 19.4 Security Interests in Movable Property
C. The Pledge of Accounts Receivable
D. Overlapping Movable Securities Registries
CHAPTER 20. SOCIO-ECONOMIC AND LEGAL CONTEXTS AND ENGLISH COMMERCIAL CONTRACTS
A. Britain’s Seventeenth and Eighteenth Century Trade and Tradesmen
1. Who Were Britain’s Tradesmen?
2. Social Classes, Ease of Trade and England’s Commercial Revolution
B. The Honesty of Tradesmen and Their “Poetic” Licenses
C. Monopoly and Mercantilism in England’s Modern International Trade
D. Multilateralism and Cooperation with Colonial Tradesmen
E. Samuel Storke: An Archetypal English and Colonial International Trader
1. Storke’s Commission Business
2. Colonial Executory Promises in Consignments and Joint Ventures
3. Some Byproducts of the English Colonial Trade: Fixed Prices and Uniform Weights and Measures
4. England’s Consumer and Comparatively High Wage Society
F. Slavery and England’s Welfare
2. Professor Blackburn’s Assessment of the Contribution of Slavery to Britain’s Welfare
3. Professor Schama on the Inhuman Condition of Sugar Plantation Slaves
4. The James Sommersett Case: A Landmark Lord Mansfield Decision on Slavery
2. Equity and Common Law Courts: The Earl of Oxford Case
3. Equity and Commercial Contract Law
§ 20.3 Forms of Action and Writs
§ 20.4 Lord Mansfield, Juries and Merchants
B. Some Key English Contributions to the Substantive Law of Commercial Contracts and Promises
1. Executory Promises and Commercial and Consumer Credit
2. Negotiability of Promissory Notes and Bills of Exchange
a. Assignability, Negotiability and Conditionality of Promises of Credit and Payment
b. Independence of the Negotiable Promise: Hussey v. Jacob and the Code Civil’s Causa
c. The Questioned and Affirmed Negotiability of Promissory Notes
d. The Economic Effects of Negotiability
CHAPTER 21. THE SOCIO-ECONOMIC AND LEGAL CONTEXTS OF U.S. COMMERCIAL CONTRACTS
§ 21.1 Introduction: Practices, Values and Attitudes That Shaped U.S. Law
§ 21.2 Puritan Merchants-Settlers (Early Seventeenth to Late Eighteenth Century)
A. The Productive Ethic and the Moral Capitalism of the Elect Industrious and Striving
B. Extended Families: Trustworthiness and Credit Networks
C. Maximization of Efforts and of Rights and the Decline of a Puritan Moral Capitalism
D. Other Religious and Commercial Principles: Just Price and Reasonableness
E. The Preference for Private Property
§ 21.3 The Eighteenth-Century “General Store” and Its revolutionary Effects on Consumerism
A. The Start of a Consumer Revolution
B. The Fielding Lewis Store of Fredericksburg, Virginia
§ 21.4 The Multi-Ethnic Family Farmer: Producer and Merchant
A. The Economic Importance of Small Farm Family Businesses
B. Personal Unsecured Commercial Credit
§ 21.5 Wholesalers and Other Non-Bank Suppliers of Commercial and Consumer Credit
A. The Migration of the British Model of Commercial Credit to Colonial and Independent America
B. Commercial Intermediaries: Wholesalers, Factors and Jobbers
C. Wholesalers as Lenders and Joint Venturers in the Dairy Industry
2. The Production and Distribution of Fluid Milk in New York State
3. Fixed Prices and Opposing Coalitions
4. Effects of Unregulated Freedom of Contract: Price Fixing and a No Holds Barred Competition
D. Department Stores and Their Progeny
1. A Seemingly Endless Variety of Goods and Methods of Purchase
3. Title to Consumer Goods: Department Stores as “Open Markets”
4. Purchasing Practices, Master Agreements, Standardization of Quality and of Warranties
5. Consumer Credit Practices: Informality and Contracts of Adhesion
§ 21.6 Commercial Banks and Commercial Credit
A. Experiments with National and State Banking Systems
B. The Present Commercial Banking System
C. The Federal Reserve and Commercial Lending
2. Paul Warburg and the Federal Reserve Act
3. Fixed Ratios of Bank Reserves for Demand Obligations v. The Flexible European Discount System
4. Discounts, Acceptances of Drafts and Documentary Letters of Credit
5. The Supply and Demand Elements of a Creditworthy Commercial Contract
6. Statutory Rules on Loans That Involve or Are Secured by Readily Marketable Staples
7. Effects: An Archetypal Secured Commercial Loan
§ 21.7 Credit Rating Agencies: Their Impact on Commercial Credit
C. Effects of the Presumption of a Debtor’s Good Faith
D. The Problems with Biased Credit Reports
E. Shorter Term Credits, Competition, “Dynamic” Practices and Fairer Prices
F. The Continuing Search for Objective Reporting and Rating Criteria
§ 21.8 Early Twentieth Century Secured Transactions and Bankruptcy Law
A. Early Secured Transactions Laws
B. Bankruptcy Law and the “Second Chance” Theology
§ 21.9 Principles Derived from the Preceding Practices, Values and Attitudes
A. Freedom of Contract: That Which the Law Does Not Expressly Forbid, It Allows
B. Contracts Must Be Performed in Good Faith, i.e., in an Honest, Reasonable and Fair Manner
C. Private Ownership of Property Is Preferable to Communal Property
D. Those Whose Labor Creates Wealth Are Entitled to a Share of It
E. Equal Protection of Equals, and the Growing Inclusiveness of Equals
F. The Protection of Third Parties as Actual or Potential Market Participants
§ 21.10 Commercial Legislation
B. The Enlightenment and Some of the Key Principles of United States Public Law
§ 21.11 The United States Constitution of 1789 and Its Compromises
B. A Government with Limited Powers and a Society That Profited from Slavery
C. A Uniform Federal Commercial Law?
1. Swift v. Tyson and the Long Shadow of Lord Mansfield
2. Casuistry and Prolixity in Statutory and Codified Law
3. Late Nineteenth- and Early Twentieth-Century Statutory Law
4. The ALI and Its Restatements of the Law
5. NCCUSL and the Drafting of the U.C.C. Article 5
6. The United States Legislative Drafting Style
§ 21.12 Statutory and Administrative Regulation of Abusive Practices
1. Maximizing Share Prices and Shareholders’ Value and Social Welfare
2. The Maximization of Contractual and Property Rights and Judicial and Administrative Remedies
B. The Tools to Combat Overreaching
C. Disclosure as a Regulatory Tool
§ 21.13 Summary and Conclusions
PART VI. FORMATION, INTERPRETATION AND ADJUDICATION OF CONTRACTUAL AND CUSTOMARY LAW DISPUTES
CHAPTER 22. FORMATION OF CONTRACTS: CEREMONY OR CONDUCT?
§ 22.1 Introduction: The Static and Dynamic Versions of “Civil” and Commercial Contracts
A. The Code Civil (Static-Ceremonial) Contract
C. Legal and Economic Consequences of the Ceremonial Conception: Parmenides’ Transactional World
E. The Official and Living Law That Governs Contemporary Commercial Contracts
§ 22.2 Causa and the Predictability of Commercial Contracts
A. Causa in Roman and Medieval Law
B. Causa in the Code Civil and in Some of Its Progeny
C. The Long Moral Reach of Causa: A 1957 Decision by the French Cour de Cassation
§ 22.3 Contemporary International Principles of Contract Law Excluding Causa
§ 22.4 Consideration: Gift Giving, Credit and Trustworthiness
A. Instances of Gift Giving, Fairness, Loyalty and Cooperation
1. Gifts and Benevolence in Nineteenth-Century London
2. Fairness and Quid pro Quo: Something for Something and for Nothing at the Tate Museum in 1968
3. The Giving of Credit and Trust at Wildy’s and Sons in 1970 London
4. Gifts of Soap: Customer Loyalty Following a Hurricane in Marianao, Cuba
B. Reciprocity and Gift Giving in Pre-Commercial and Feudal England
C. Credit and Commerce in Early Modern England
1. The Omnipresence of Credit: Self Interest, Trust and Commercial Altruism
D. The Legal Development of Consideration
1. Medieval and Renaissance Meanings of Consideration
2. Consideration’s Connection with the Actions on Debt, Covenant and Assumpsit: Slade’s Case
§ 22.5 Contract as a Bilateral or Multi-Lateral Agreement and as a Promise
§ 22.6 Consideration as Bargain: The Shortcomings of the Bargain Test
A. A Revolution or a Regression to a Motivational Causa
B. Adequacy of Consideration, the Peppercorn and the Bargained for Test
§ 22.7 Commercial Contracts That Lack Bargained—For Consideration, but Deserve Enforcement
A. Master Agreements and Bargained—For Consideration
§ 22.8 Offers, Acceptances and Consideration
A. The Meaning of Offer: Binding When Issued or When Accepted?
B. Key Rule of Traffic: Offers Clothed with Consideration
C. Some Key Rules of Traffic in the Restatement (Second)
D. Irrevocability and § 2–205 of the U.C.C.
§ 22.9 Conclusions and Recommendations
§ 22.10 Appendix: Formalities and Solemnities in Comparative Case Law
A. Ibero-American and United States Case Law
B. Parmenides’ Logic and the Validity of an Insurance Contract Under Uruguayan Law
2. Decision by the Supreme Court of Uruguay, 1991, Volume 102, LJU Case 11695
C. Heraclites’ Being: Informality in the Formation of United States Agri-Business Contracts
1. The Informality of the Commercial Sale of an Automobile
a. Roy Buckner Chevrolet, Inc. v. Robert Cagle
b. Heraclitean Features of Commercial and Financial Contracts
D. Heraclites and Contract Formation as a Result of the Parties Conduct in Agri-Business
E. Spanish Case Law: Formalities ad Solemnitatem and ad Probationem
F. The Spiritualistic Principle in the Spanish Civil Code
G. Supreme Court Decision No. 1743, March 12, 1994, Civil
H. Supreme Court Decision No. 6424, July 4, 1994, Civil
I. Salvadoran Case Law: Solemnity of a Waybill and Classification of Contracts
J. Mexican Case Law on Contractual Formality and Solemnity
K. Preparatory Contracts and Public Deeds Under Mexican Law
§ 23.1 Introduction and Summary
A. From a Formalistic to a Commercial-Sectoral Interpretation
B. An Illustration of Embedded Good Faith in Usages of Trade
C. Good Faith in Representative Civil and Common European Law
§ 23.2 Contract Types, Stages and Sources of Interpretation
§ 23.3 Good Faith Interpretation: Judicial and Market Based Versions
§ 23.4 Good Faith in the Judicial Interpretation of Commercial Contracts
A. Good Faith (Bona Fides) in Roman and Medieval Law
B. Good Faith (Bonne Foi) in the Code Civil and in French Judicial and Doctrinal Interpretation
1. Contractual Diligence, Fault (Culpa) and the Bon Pére de Famille
2. The Obligation to Produce a Result or to Employ Ordinary Diligence
C. Good Faith, Trade Usage and Archetypal Behavior in the BGB, HGB and Court Decisions
1. BGB and HGB Provisions on Good Faith and an Imperial Court’s Monetary Revaluation
2. Good Faith, Reasonableness and Abuse of Rights (Unzulassige Rechtsabüsung, or Rechtsmissbrauch)
D. Good Faith and Reasonableness in English Law
1. Adversarial v. Cooperative/Fiduciary Transactions; Standard and Best Practices
2. Lord Mansfield on Truth Telling, Contractual Warranties and Good Faith
a. Warranties Associated with Horses Sold for a Sound Price: Express and Implied Warranties
b. Implied Warranties in the Sale of Beer
c. Good Faith, Implied Warranties in Insurance Contracts and the Importance of Telling the Truth
3. Conclusions: Mansfield’s Good Faith and Reasonableness
§ 23.5 Good Faith in the U.C.C. and Restatement (Second)
A. Articles 1 and 2 of the U.C.C. and Restatement (Second) § 202
B. Llewellyn’s Archetypal “Decent” Merchant and His German Antecedent
C. The Exclusion of Reasonableness in Article 5 of the U.C.C. on Letters of Credit
D. The Merchant Rules of U.C.C. Article 2
1. The Grand Style of Interpreting Contracts and Llewellyn’s Merchant Rules
2. A Contemporary Evaluation of the Merchant Rules in Article 2 of the U.C.C.
a. Perfect Tender v. Substantial Performance
b. The Need for Writings: The Statute of Frauds and Confirmatory Memoranda
§ 23.6 Scholarly Views on Good Faith: Law and Economics and the Bad Faith Excluder
B. A Subjective “State of Mind” Approach to Discerning Good or Bad Faith
C. Judge Posner’s Ordered Search for Orenstein’s State of Mind
D. The Law and Economics Justification for Judge Posner’s Opinion
E. Professor Summer’s Negative Excluder
F. An Objective, Sectoral Version of Good Faith Commercial Leasing
§ 23.7 Conclusions: Good Faith and the Prophecy of What Courts Will Do in Fact
§ 23.8 Appendix 1: Comments by a Respected Commercial Real Estate Broker
§ 23.9 Appendix 2: Comparative Case Law
B. How a Formal Logical Intent Can Do Away with Good Faith, Reasonableness, Fairness and Justice
1. Factual Gaps and Non-Reliance on Course of Dealing and Usage of Trade
3. The Fairness of the Marketplace
C. Good Faith Among Co-Adventurers
1. Cardozo’s Awareness of Relevant Facts
D. Plain Meaning of the Words Within the Four Corners of a Deed vs. Market Intent
E. Usage of Trade as Provider of Sectoral and Contractual Intent
F. Usage of Trade Versus a Mutually Mistaken Term
2. Holding of the Reichsgericht (Supreme Court of Germany in 1920)
2. Landgericht Stuttgart, June 15, 1978, WM 1056 (1978)
3. OLG Frankfurt, March 3, 1983, WM 1983, 575
4. Trade Usage, Reasonableness and Unconscionability in United States and German Court Decisions
a. Frigaliment Importing Co. v. B.N.S. Int’l Sales Corp.
b. Trade, Sector and Commercial Reasonableness: Profit Seeking as a Common Denominator?
CHAPTER 24. DRAFTING COMMERCIAL PRACTICES AND THE GROWTH OF COMMERCIAL CONTRACT LAW
§ 24.2 The Nuclear Elements of a Viable Commercial Practice
D. The Nuclear Elements of a Contemporary Secured Transaction
§ 24.3 Secured Lending in Imperial Rome: Archetypal parties
A. Socio-Economic Context: The Republican and Imperial Commercial Archetypes
1. The Fiducia, the Pignus and the Hypotheca
2. The Sale of Collateral by Creditors in the Justinian Digest and Code
3. Unbridled Selfish Practices and Legal Invertebration
4. Questions, Comments and Conclusions
§ 24.4 Drafting Commercial Letter of Credit (LOC) Practices
B. The Basic Commercial LOC Transaction
D. Standard and Best Practices for the Examination of LOC Documents
1. The Birth of a Nuclear LOC Practice, Its Shapers and Practitioners
2. Macro and Micro-Economic Forces That Encouraged or Discouraged LOC Practices in the United States
§ 24.5 The Limited Role of Judicial, Statutory or Codified LOC Law
§ 24.6 Predecessors of UCP 500
B. The Uniform Customs and Practices for Documentary Credits (UCP)
C. Bankers’ Documentary Examination Manuals and Checklists
D. The Uniform Customs and Practices for Documentary Credits (UCP 1933 Revision)
E. The Uniform Customs and Practices for Documentary Credits (UCP 1951 Revision)
§ 24.7 UCP 400 Problems and UCP 500 Cures
A. Revocability-Express or Hidden and Uncertainty of the Credit Promise
B. An Issuer or Confirmer’s Primary Liability
C. An Uncertain Time of Establishment
D. Uncertain Finality of Payment by the Confirming Bank
E. Negotiation of the LOC Draft and Commissions: Good Faith and Reasonableness
F. Elimination of a Monopolistic Bill of Lading Practice
G. Bad Faith Excuses Not to Pay or Reimburse: A Judicial Mirror Image Version of Strict Compliance
H. The Issuing Bank’s Discretion to Approach the Applicant for a Waiver of Discrepancies
I. Consequences of the Judicial Mirror Image Compliance: Costly Defensive Practices
§ 24.8 The UCP 500’s Response to Bad Faith Discrepancies and The ISBP
§ 24.9 Factors That Determine Documentary Checking Practices
B. Intrinsic Factors: Archetypal Bad and Good Faith Bankers
3. A Reasonable Document Checker
§ 24.10 Summary and Conclusions
CHAPTER 25. BRIEF OVERVIEW OF COMMERCIAL TRIAL PROCEDURE
A. General Overview of Ordinary or Declarative Judicial Procedures in Latin America and Spain
B. Justicia Rogada, Ultra Petita and the Remedial Finality of the Pleadings
§ 25.2 A Typical Uruguayan Complaint
§ 25.3 The Summary or Executive Process in Colombia, Mexico and Spain
B. Essential Elements of an Executive-Summary Procedure
D. Types of Summary Processes: Large and Small Claims
1. Example of a Colombian Complaint in a Summary Process
2. Example of a Mexican Complaint in a Summary Process
§ 25.4 A Landmark Spanish Decision on Defenses in an Executive Procedure
§ 25.5 A Commentary, a Suggestion and a Few Questions
§ 25.6 United States Process: Discovery, Complaint and Decision
A. From Common Law Forms of Action to Code Pleadings
CHAPTER 26. PRE-CONTRACTUAL LIABILITY: CULPA IN CONTRAHENDO
§ 26.2 A Brief Survey of Culpa in Contrahendo in Civil Law Countries
§ 26.3 Culpa in Contrahendo in Common Law Jurisdictions
A. Determination of Damages Under Culpa in Contrahendo
B. Culpa in Contrahendo from an International Perspective
e. The Court’s Reasoning Discussion Topics
CHAPTER 27. EXCUSES FOR NON-PERFORMANCE OF CONTRACTS
§ 27.2 Factual Basis for the Arbitration
§ 27.3 Elements of the Arbitral Decision
A. The Plan of the Comparative Analysis
B. The Exceptional Nature of Excuses for Non-Performance
C. Summary of the Expert’s Opinion
D. Basic Concepts Supporting This Opinion
1. The Synallagmatic Balance of Article 994 S.Com.C.
2. The Synallagmatic Balance of a Group of Contracts
3. Foreseeability of the Synallagmatic Imbalance
4. Permissive Nature of Article 994 S.Com.C.
§ 27.4 Transactional and Legal Bases for the Opinion
A. Normative Lineage and Main Features of Article 994 S.Com.C. and Article 1467 of the It.C.C.
B. Foreseeability of the Assumption of Risks by the GCES
C. Determining the Fair Price of Natural Gas Under the PCG
D. The Remedies for Excessive Onerousness Under Italian Law
E. Comparison of Remedies Under Italian Law
4. Aleatory Contracts and the Waiver of Excessive Onerousness
5. Foreseeability and the “Uomo Medio”
6. Contractual Presuppositions (Presupposizione)
7. Subjective Excessive Onerousness
F. Judicial and Doctrinal Circumscription of the Remedial Criteria of Article 1467 of the It.C.C.
G. Excessive Onerousness Under Argentinean Law
1. Article 1198 of the Argentinean Civil Code
2. Argentinean Case Law and Hyperinflation
H. Excessive Onerousness in German Law
1. Legal and Economic Background
2. The Anpassung and Judicial Activism
I. The Rebus Sic Stantibus Clause Under Swiss Law
J. Theory of Unforeseeability Under French Law
§ 27.5 The Restatement 2nd of Contracts: Issues for Class Discussion
CHAPTER 28. EXTRAJUDICIAL REMEDIES AND THE REMEDY OF SPECIFIC PERFORMANCE
B. U.S. Escrow Agreement as an Extrajudicial Remedy
§ 28.3 Judicial Opposition to Extrajudicial Remedies
§ 28.4 The Increasing Role of Extrajudicial Remedies
A. Anticipatory Repudiation, Substitute Transactions and Nachfrist
B. The Aggrieved Party’s Duty to Mitigate Damages
§ 28.5 The Prohibition of the Pactum Commissorium, in A Costa Rican Decision
§ 28.6 The Sicherungsübereignung Under German Law
A. Interviews with German Bankers in Frankfurt and Hamburg—July 11, 1971
C. Honduran Law on Secured Transactions—2010
§ 28.7 Specific Performance as a Remedy for Commercial Contracts
B. John P. Dawson and Specific Performance Under French, German and North American Law
2. Roman Law-Inspired Medieval Law
3. France: “Nemo Potest Praecise Cogi ad Factum” as a Self-Evident Truth
§ 28.8 Specific Performance and the Just-in-Time Payment and Delivery: An Illustrative Case
CHAPTER 29. JUDICIAL AND EXTRAJUDICIAL TERMINATION
§ 29.1 Remedies for Breach of Commercial or Dynamic Contracts
§ 29.2 Justice Holmes’ Bad Man and Section 2–609 Assurances
§ 29.3 Anticipatory Repudiation
§ 29.4 A Judicial Excursus of Breach of Contract Remedies Under the U.C.C.
§ 29.5 Anticipatory Repudiation Under Spanish Law: Spanish Decision No. 7491, October 20, 1994
§ 29.6 Extrajudicial Resolution Under Mexican Case Law
§ 29.7 The Nachfrist In German Case Law
A. Bundesgerichtshof, October 30, 1991—VIII ZR 9–91
B. Bundesgerichtshof, December 12, 1985—VIII ZR 47–85
§ 29.8 Contemporary Variants of Extrajudicial Termination Remedies
A. U.C.C. Section 9–609 Secured Party’s Right to Take Possession After Default
C. Guatemalan Decree Number 51–2007
D. Honduran Law of Secured Transactions of February 24, 2008
CHAPTER 30. DAMAGES FOR BREACH OF WARRANTY IN U.S. ECONOMIC ANALYSIS INFLUENCED LAW
§ 30.1 Basic Notions of U.S. Law on the Recovery of Damages
C. Specific Performance and the Seller’s Action to Recover the Price
D. The Buyer’s Action for Cover
E. Buyer’s Damages from a Hypothetical Re-Purchase
F. Buyer’s Action for Breach of Warranty
§ 30.2 Damages for Non-Performance of Contractual Warranties in U.S. Law
A. Express and Implied Warranties Under the U.C.C.
B. Historical Background of Contractual Warranties in Common Law
D. Issues for Class Discussion
§ 30.3 Recovery of Loss Profits by the “Lost Volume” Seller in Anglo-American Law
A. R.E. Davis Chemical Corp. v. Diasonics Inc.
B. The “Economic Analysis of Law”; A Propos of the Lost Volume Seller
C. Analytical Tools of EAL: Principles, Corollaries, Theorems and Concepts
2. The Third Principle: Economic Efficiency
D. Posner’s Homo Economicus, Ordinary Merchants and the Bonus Vir