IECL Lunchtime Seminar with Catherine Valcke – Taking Legal Difference Seriously: Objective vs Subjective Contract as a Case in Point

The IECL Lunchtime Seminar Series offers our Academic Visitors an opportunity to share their research, exchange ideas, and connect with colleagues on both substantive and methodological aspects of their work. 

Each seminar usually lasts 30–45 minutes, with 20–30 minutes for the presentation followed by 10–15 minutes for Q&A. A light sandwich lunch will be provided.

Prof Catherine Valcke

Taking Legal Difference Seriously: Objective vs Subjective Contract as a Case in Point

Abstract: While comparative lawyers have long debated the extent to which legal systems converge or diverge, none has ever denied that these systems boast at least some convergent features and some divergent ones. If so, there is reason to want to study and come to understand both legal similarities and legal differences. Yet the latter arguably has been largely neglected. The much larger share of the existing comparative law literature was produced in the context of various forms of harmonization projects, understandably focused on identifying and highlighting legal similarities. Legal differences however are more than just the logical counterparts of legal similarities -- legal "non-similarities" --, the analysis of which would also serve to analyze the former, only in the reverse. I here want to suggest that there is a lot more to legal difference than just legal non-similarity, and that its proper study might proceed very differently from the study of legal similarity. For one, the method emerging from the harmonization literature comprises two, clearly delineated and sequential stages: groups of representative cases governing the relevant issues are first identified for each of the legal systems included in the study -- the "identification" stage -- and only thereafter, as a second step, are these groups of cases compared to one another -- the "comparison" stage. In contrast, a study focused on legal difference arguably would best be conducted through a one-step process that would be comparative through and through. Starting from a hypothetical contract situation reconstructed from the English case of Ingram v. Little, I propose to show that, independently of the question of whether the majority and dissenting judgements in that case might best represent French, German, or English contract law, an analysis focused on legal difference would ask the very different question of whether each of these judgements is such as would be more or less likely to be rendered by a French, a German, or an English judge, as compared to the other two. I then unpack the implications of that analysis for our understanding of the difference between objective and subjective contractual consent, as they emerge from English, French and German contract law.