Simon Whittaker

This note concerns the decions of the High Court in Yam Seng Ptd. Ltd. v International Trade Corporation [2013] EWHC 111 (QB).

The European Commission’s Proposal for a Regulation on a Common European Sales Law (‘CESL’) seeks to create a European scheme of contract law available for parties to choose to govern cross-border contracts for the sale of goods, supply of ‘digital content,’ and for the supply of related services.This article explains the background to the Proposal, sketches out the purposes and scope of the CESL, and considers and criticises its legal framework (and in particular its relationship with private international law) and the key requirement of the parties’ agreement. In the author’s view, the CESL scheme remains an unconvincing basis for the achievement of its economic purposes and, as regards consumer contracts, puts too much reliance on the agreement of the consumer as a justification for the loss of their existing protection under EU private international law rules.

This article considers why English lawyers have not generally been attracted by the notion of 'network contracts' to regulate complex economic relations.

This article assesses the appropriateness of an 'optional instrument' in contract law foreseen by the European Commission

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

This note assesses the decision of the UK Supreme Court in the 'Bank Charges' case in the light of the decision of the case-law of the ECJ

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 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.

This essay explains the development of product liability in English law

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

La proposition de directive relative aux droits des consommateurs(octobre 2008) rassemble dans un seul texte les quatre directives sur l'acquis communautaire en vue de l'« harmonisation totale » de la protection des consommateurs. Cet article éclaire les changements substantiels par rapport à deux de ces directives (clauses contractuelles abusives et ventes au consommateur), et l'ambiguïté du concept d'« harmonisation totale ». Soit celle-ci écartera l'application des dispositions nationales pouvant empiéter sur le domaine des règles harmonisées, conformément à l'inspiration économique de la Proposition, soit elle n'affectera que les lois nationales de transposition de la Proposition, sans préjudice du contrôle des clauses abusives ou des droits.

The article analyses the law governing the effectiveness of entire agreement clauses in English law

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.

This essay explores the validity of price variation clauses in English law

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.

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).

This is a case-note criticising a decision of the ECJ in Case C-402/03 drawing (as the title suggests)a distinction between the Court's concern with the form of harmonsition while the substance is left to one side.

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.

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').

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.

This work analyses the different types of contract terms which allow an injured party to terminate on the ground of breach of contract and explains and criticises the controls which statute and the courts have put in place to control them.

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

This article explores the impact of the Unfair Commercial Practices Directive of 2005 on EC and national contract laws.

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

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.

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 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

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.

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.

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.

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.

The article looks at issues relating to the harmonisation of contract law in the context of the decision of the HL in DGFT v First National Bank

Continued updating and rewriting of chapters (including new section on the HRA and contracts).

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

compares the English and French approaches to a court's power to give a party to a contract further time to perform, with particular reference to payments of sums money

This article explores technical problems of the implementation of the Directive on consumer guarantees and also the tensions which its implementation will cause in English law arising from fundamental differences between assumptions as to the nature of contractual obligation and contractual performance found in English law and those found in the Directive, the latter reflecting the general civilian position in this respect.

This article looks at the varieties of formal requirements to be found in English law and how they are changing, in part owing to the impact of European legislation. It raises questions as to the relationship between requirements of form and of substance in this context.

This article looks at the ways in which English law may be said to harm or burden third parties to contracts (or similar devices) through the use of particular doctrines, such as restrictive covenants or the tort of inducing breach of contract. It then looks briefly at the relationship between breach of contract and breach of trust from this perspective.

case-note on ECJ's decision on Oceano Grupo Editoriale v Quintero

Starting from an earlier article, this article compares judicial review of sub-ordinate legislation on the basis of public law principle and judicial review of the unfair contract terms of in consumer contracts. Similarities and differences in these two types of review are identified and their implication in the student context assessed.

This article looks at the English law governing non-performance and breach of contract in English law and draws comparisons with aspects of the French and Belgian law.

This article examines situations where common law or legislation accepts a degree of reciprocity of benefit and burden beyond privity of contract, but concludes that no pure principle of benefit and burden by which a person who takes the benefit of a transaction should also take the burden should be recognised.