Is legal transplant possible? The stark bipolarity of a ‘yes’ or ‘no’ answer attracted by such a question is much less interesting and revealing than the question: what shapes the life of legal transplants? The answer to the latter question is contingent on a wide range of variables triggered by the particular transplant; the result can occupy any point along the spectrum from faithful replication to outright rejection. This case study of the transplant of the English doctrine of undue influence into Singaporean law asks why the Singaporean courts have applied the doctrine in family guarantee cases to such divergent effect, when they profess to apply the same law. The answer requires an examination of the relationship between law and society, and between the formal and informal legal orders of the originating and the recipient society.

ISBN: 0020-5893

Discussion of the option 4 (the 'Optional Instrument') in the Commission's Green Paper on policy options for progress towards a European Contract Law for consumers and businesses (2010). [Paper first presented at SECOLA conference, Leuven, January 2011.]

ISBN: 1614-9920

Le Code civil contient une faille structurelle : son chapitre 4.3.2 (« des délits et des quasi-délits ») est censé, par construction, se rapporter à la responsabilité fondée sur un délit ou un quasi-délit, c’est-à-dire sur un acte fautif. Pourtant, ce chapitre contient des faits générateurs de responsabilité non-coupables : le contenu ne correspond donc pas au contenant. La cause, c’est que le droit français moderne a réécrit la dichotomie romaine entre obligations ex delicto et quasi ex delicto, lui faisant perdre son caractère exhaustif. Une conséquence en est que la notion de faute a été soumise à une force centrifuge considérable, tendant à la vider de sa condition historique de culpa.

ISBN: 0397-9873

This article considers the scope, purposes and use of 'principle' by the contract law provisions of the Draft Common Frame of Reference

ISBN: ISSN 0023-933X

This translates the author's earlier work 'Precedent in English Law: A View from the Citadel' which explains the rules and some of the working out of the precedent by English judges to a non-common law readership.

ISBN: 0726-0747

Abstract: English judge-made law, like Roman law in its own time, is divided into strict law and equity. Today, this division can be described as hysteretic, insofar as it is based on now by-gone causes. The issue is therefore bound to arise, 130 years after their procedural fusion, of the substantive fusion (or integration) between these two bodies of law. The present shorter article follows up on Professor Worthington’s recent Equity, in which the writer advocated this option and, for the first time, attempted to flesh it out in a methodical fashion. It sets out to examine the taxonomical argument for fusion. Its gist is that the concept of equity, being defined procedurally rather than substantively, is an intruder within the modern English legal landscape, which is dominated by substance-based categories. This means that the only option for equity is to disappear as an autonomous legal category.

English judge-made law, like Roman law in its own time, is divided into strict law and equity. Today, this division can be described as hysteretic, insofar as it is based on now by-gone causes. The issue is therefore bound to arise, 130 years after their procedural fusion, of the substantive fusion (or integration) between these two bodies of law. The present shorter article follows up on Professor Worthington’s recent Equity, in which the writer advocated this option and, for the first time, attempted to flesh it out in a methodical fashion. It sets out to examine the taxonomical argument for fusion. Its gist is that the concept of equity, being defined procedurally rather than substantively, is an intruder within the modern English legal landscape, which is dominated by substance-based categories. This means that the only option for equity is to disappear as an autonomous legal category.

ISBN: 0556-7963

The author explores some of the difficulties facing English lawyers in implementing EC directives in the area of 'contract law' and compares them with those facing lawyers in systems with codified laws.

ISBN: 1614-9920

This article criticises the suggested reforms to French extra-contractual liability for fault contained in the L’avant-projet de réforme du droit de la responsabilité (2005) (the 'Avant-projet Catala').

ISBN: 978-2-275-02775-3

This article considers the desirability of the development of sector-specific European standard contract terms and puts forward four main reasons why such a development should be given a cool reception.

ISBN: 1614-9920

This article attempts to explain the doctrine and practice of judicial use of precedent in English law to lawyers from other and especially non common law systems.

This article compares the use in English and French law of two techniques for the control of the content of contracts: (i) the insertion of standard terms into contracts by law and (ii) the control of the fairness of agreed contract terms. It examines the relationship between these two and considers the different mixtures of public and private law which are revealed.

ISBN: 0928-9801

Explains the strategy of English law in relation to breach of contract in terms of a right to the subject-matter of the debtor's obligation rather than to performance of the contract by the debtor.

lxxxiv + 1358 pp. This is the second edition of the widely acclaimed and successful casebook on Contract in the Ius Commune Series, developed to be used throughout Europe and aimed at those who teach, learn or practise law with a comparative or European perspective. The book contains leading cases, legislation and other materials from the legal traditions within Europe, with a focus on English, French and German law as the main representatives of those traditions. The book contains the basic texts and contrasting cases as well as extracts from the various international restatements (Vienna Sales Convention, UNIDROIT, Principles of European Contract Law and so on). Materials are chosen and ordered so as to foster comparative study, and complemented with annotations and comparative overviews prepared by a multinational team. The whole Casebook is in English. The principal subjects covered in this book include: General; Formation; Validity; Interpretation and Contents; Supervening Events; Remedies; Third Parties; The Tort/Contract Divide; Causation; Remedies; Fault and Unlawfulness; Liability for Others; Liability not based on fault as well as defences.

ISBN: 9781841136042

A volume within the Common Core of European Private Law: a comparative study of the legal nature of the precontractual phase and the liability which may follow a break-off of precontractual negotiations. The study comprises specialist reports from 16 national legal systems, and other perspectives, with Editors' introduction and conclusions.

ISBN: 9780521516013

This book is a general work introducing the French legal system and French substantive law to a non-French (and in particular common law) readership. S. Whittaker is one of the editors and wrote the section on civil procedure and the chapter on the law of obligations.

ISBN: 978-0-19-954138-6

Abstract: A study of the rise of a legal academic profession in England and its relationship with the judiciary. The work investigates whether the role of legal scholarship can still be defined as one of the cardinal differences between the English and the continental legal traditions. The first part of the book traces the history of the formation of a community of legal academics in England from the nineteenth century to the present day, thereby reconstructing the role of the English universities in legal education (Chapter 1). Emphasis is placed on the impact the emergence of the community had on the development of both legal education (Chapter 2) and legal literature (Chapter 3), as well as on the transformation of English legal scholarship over the last three decades (Chapter 4). The second part of the book is dedicated to the study of the relationship between the community of legal academics and the judiciary and its development since the late nineteenth century. As well as an examination of the role and nature of the famous ‘books of authority’ (Chapter 5) and the impact of the traditional convention forbidding the ‘citation of living authors’ (Chapter 6), the second part of the book consists largely of an analysis of the way English judges communicate with the academic profession and the changes in the citation practice of English courts. Attention is also paid to the different ways legal academics assist judges in the decision-making process (Chapter 7). Furthermore, two particular branches of law, restitution and criminal law, are analysed in an attempt to show how academics have contributed to their development (Chapter 8). Finally, the developments in England are placed within the context of the role of academic lawyers in other European legal systems. This book has been reviewed in: (2008) 1 Revista Catalana de Dret Privat (Antoni Vaquer) (forthcoming) (2008) Rivista di diritto comparato pubblico ed europeo (Alessandro Torre) (forthcoming) (2008) 125 Zeitschrift für Rechtsgeschichte (Filippo Ranieri) (forthcoming) (2007) Anuario de Derecho Civil, Tomo LX, fasc. III, 1404 (Esther Arroyo i Amayuelas) (2007) 66 Cambridge Law Journal 474 (John Bell) (2007) 123 Law Quarterly Review 654 (Michele Graziadei) (2006) 55 American Journal of Comparative Law 197 (Patrick Glenn) Selected as one of the ‘Law Books of the Year 2007’ in Germany: (2007) 46 Neue Juristische Wochenschrift, 3332.

ISBN: 8815113487

Recently the contract section of the German Civil Code was amended after one hundred years of un-altered existence. The German Law of Contract, radically recast, enlarged, and re-written since its first edition, now details and explains for the first time these changes for the benefit of Anglophone lawyers. One hundred and twenty translated contract decisions also make this work a unique source-book for students, academics, and practitioners. Along with its companion volume, The German Law of Torts, the two volumes provide one of the fullest accounts of the German Law of Obligations available in the English language. Through its method of presentation of German law, the book represents an original contribution to the art of comparison. An additional feature of the Contract volume is the way in which it reveals the growing impact which European Directives are having upon the traditional, liberal, contract model, thereby bringing German and English law closer to each other, especially in the area of consumer protection.

Comparison of English law on defects in consent in the formation of a contract with German law and European private law (the proposed Common European Sales Law and the Draft Common Frame of Reference).

ISBN: 9780199678907

pp 82-119. A European contract law regime will not necessarily be drafted and interpreted in ways that correspond to the approaches of a particular national legal system. In this chapter I will assess the peculiarities of drafting (II.) and interpreting (III.) European rules against the background of English and German contract law. I will then explore how these aspects will influence the interaction of the European contract law regime, both as an ‘optional instrument’ and as a ‘toolbox’, with the domestic laws of these two Member States (IV.).

pp 1-20. This book explores the interactions between a European contract law instrument and national legal systems, using English law and German law as examples. The purpose of this Chapter is to set out the background to our enquiry and the methodology we employed. The first Part gives an overview of the ‘European contract law initiative’ which has resulted in various drafts for a European contract law regime, culminating in the two instruments that are the focus of the following chapters: the European Commission’s Proposal for a Regulation on a Common European Sales Law of October 2011 and one of its precursors, the 2009 Draft Common Frame of Reference. The second Part of this Chapter describes the Anglo-German research project which led to the present book. It will explain the overarching questions we set out to answer and the methodology employed by the authors of the various chapters.

Comparative discussion of defects of consent (mistake, misrepresentation, fraud, duress, etc) in English, French and German contract law and under the Draft Common Frame of Reference.

ISBN: 978-90-411-3357-1

Discussion of difficulties of translation of the l’avant-projet de réforme du droit des obligations into English; publication of paper originally given at colloquium at the Senate, Paris, on 1 April 2008.

ISBN: 978-2-913397-99-6

This brief essay explains the problems encountered and solutions adopted in the transaction of a French civil law reform project, the Avant-projet de reforme du droit des obligations. The translation was undertaken jointly with John Cartwright

ISBN: 978-2-913397-99-6

pp 1-184

This article explains and assess the category of 'contracts for services' in English law and its relationship to other contracts. It then compares this to the approach taken by the Draft Common Frame of Reference

This essay explains the development of product liability in English law

Discussion of how English courts may be faced with interpreting the Cmmon Frame of Reference, with particular reference to duties of good faith in negotiation and performance of contacts.

ISBN: 9783866531277

pp. 3-28

pp. 235-268.

Comparison of the approaches of different European legal systems to liability between parties during the negotiations for a contract. Published paper from conference on ‘L’avant-contrat’, Le Centre de droit privé et de sciences criminelles d’Amiens, Université de Picardie Jules Verne, 4 April 2007.

ISBN: 978-2-95187-128-1

Comparison of the different approaches of French and English law to the acceptance (or not) of an obligation to negotiate during the precontractual phase. Published paper from conference on ‘La concurrence des systèmes juridiques’, Institut de droit comparé Edouard Lambert, Lyon, 20 October 2006

ISBN: 9782731406245

pp. 1000-1036. A comparative analysis of the provisions on contracts for the benefit of third parties in the French 'Avant-projet de réforme du droit des obligations et de la prescription' (2005)

ISBN: 978-1-905221-28-8

This article (which is an updated version of a paper published in a group of conference papers in Spain in 2002) deals with the question whether a court can give a contractual party further time to perform a contractual obligation (looking at French and English law).

ISBN: 978-1-90522210-28-8

This short article contrasts the interpretative style of the ECJ with more traditional (and conceptual) styles of 'European private lawyers' and then illustrates this contrast by reference to the decision of the ECJ in EasyCar v OFT

ISBN: 978-90-411-2699-3

This article compares the different treatment of a claimant's failure to mitigate his/her own harm in French and English law.

ISBN: 80-85889-93-2

Chapter of Handbook.

ISBN: 199296065

This work is also published in Italian as ‘‘La Terminologia della Tutela Civile: Diritti, Rimedi e Procedure’ in B. Pozzo and V. Jacometti (eds.), Le politische linguistiche delle istituzioni comunitarie dopo l’allargamento (2006) The work looks at the terminology describing the rights of parties in a contractual context in English, French and EC law and how this terminology reflects different ways of thinking about the appropriate response of the law to failure to perform

ISBN: 90-411-2532-9

This article explains how an English lawyer would see the notion of a 'general clause' and then gives three types of examples of such a very broad legal norm from English law.

ISBN: 90 411 2432 2

analyses the provisions of the Principles of European Contract law on the plurality of debtors (joint and several liability) from the point of view of English law and French law.

A brief article exploring how consumer protection relates to the distinction between public and private law (with reference to French and English law)

ISBN: 2-913397-28-X

lxvii + 789 pp. European Contract Law unification projects have recently advanced from the Draft Common Frame of Reference (2009) to a European Commission proposal for an optional Common European Sales Law (2011) which is to facilitate cross-border marketing. This book investigates for the first time how CESL and DCFR rules would interact with various aspects of domestic law, represented by English and German law. Nineteen chapters, co-authored by British and German scholars, examine such interface issues for eg pre-contractual relationships, notions of contract, formation, interpretation, and remedies, extending to non-discrimination, third parties, transfers or rights, aspects of property law, and collective proceedings. They go beyond a critical analysis of CESL and DCFR rules by demonstrating where and how CESL rules would interact with neighbouring areas of English and German law before English and German courts, how domestic traditions might influence the application, which aspects might motivate sellers and buyers to choose or reject CESL, and which might serve as model for national legislators. The findings are summarized in the final two chapters.

ISBN: 978-0-19-967890-7

xviii + 562 pp. This book contains the first major comparative study of litigation costs and methods of funding litigation in more than 30 jurisdictions. It was linked with the most comprehensive review of the costs ever carried out in England and Wales by Lord Justice Jackson in 2009 and benefited from the assistance of leading practitioners around the globe. The study analyses the principles and rules that relate to paying courts, witnesses and lawyers, and the rules on cost shifting, if any. They also note the major ways in which litigation can be funded, identifying the global trend on contraction of legal aid, the so far limited spread of contingency fees, and the growing new phenomenon of private third party litigation funding. The study also presents the results of nine case studies of typical claim types, so as to give a first overview comparison of which countries' legal systems are cheaper or more expensive. The book further contains national chapters with in depth analysis contributed by scholars in 18 jurisdictions (Australia, Belgium, Canada, China, Denmark, England & Wales, France, Germany, Japan, the Netherlands, New Zealand, Poland, Portugal, Russia, Spain, Switzerland, Taiwan and USA) and a further chapter on Latin American jurisdictions.

ISBN: 1849461023

This forms the introduction and general overview of the work which I also edited on the historical development of product liability in 6 European laws. It forms part of a wider AHRD project on Legal Development (the first stage of which focussed on the development of liability for fault) run by John Bell and David Ibbetson of Cambridge.

ISBN: ISBN 978-0-521-49429

Edited volume of comparative reflections on the Avant-projet de réforme du droit des obligations et de la prescription, based on papers from colloquium held in March 2007. Articles by J. Cartwright at pp. 51-70 (‘Negotiation and Renegotiation: An English Perspective’), pp. 359-380 (‘Reforming the French Law of Prescription: An English Perspective’); and pp. 409-411 (Summary of discussions); jointly with S. Whittaker at pp. 425-444 (‘Translating the Avant-projet de réforme’) and translation of the Avant-projet into English (pp. 479-915, odd numbered pages). Whole volume edited by J. Cartwright, S. Vogenauer and S. Whittaker

ISBN: 9781841138053

The 2005 Avant-projet de réforme du droit des obligations et de la prescription, also dubbed the Avant-projet Catala, suggests the most far-reaching reform of the French Civil code since it came into force in 1804. It reviews central aspects of contract law, the law of delict and the law of unjustified enrichment. There is currently a very lively debate in France as to the merits or the demerits of both the particular draft provisions and the general idea of recodification as such. This volume (xx + 930 pp) is the first publication to introduce the reform proposals to an English speaking audience. It contains the official English translation of the text, and distinguished private lawyers from both England and France analyse and assess particularly interesting aspects of the substantive draft provisions in a comparative perspective. Topics covered include negotiation and renegotiation of contracts, la cause, the enforcement of contractual obligations, termination of contract and its consequences, the effects of contracts on third parties, the definition of la faute, the quantification of damages, and the law of prescription. The volume also contains an overall assessment of the draft provisions by one of the most senior French judges who chaired the Working Party on the Avant-projet, established by the French Supreme Court, the Cour de cassation.

ISBN: 978-1-84-113805-3

Official translation into English of the Avant-projet de réforme du droit des obligations et de la prescription. Revised translation (2008) is published in J. Cartwright, S. Vogenauer and S. Whittaker: Reforming the French Law of Obligations (Hart Publishing, 2009)

This translation (running to c. 100,000 words covers the proposed changes to the French Civil Code's law of contract, civil liability, unjustified enrichment and prescription, together with the introductory preambles and notes. At present it is published on the French Ministry of Justice Website (we were invited by the organiser of the project to make the translation for this purpose), but we shall republish it with notes etc and essays from 16 or so French and other colleagues later this year.

Comparative (English/French law)case note on recent leading decision in French law on the transfer of the benefit of a rent guarantee.

ISBN: 0928-9801