Linked Contracts

by Samoy, Ilse; Loos, Marco

• ISBN13: 9781780680842
• ISBN10: 1780680848
• Edition: 1st
• Format: Paperback
• Copyright: 2012-05-16
• Publisher: Intersentia

Summary

A book series devoted to the common foundations of the European legal systems. The Ius Commune Europaeum series includes comparative legal studies as well as studies on the effect of treaties within national legal systems. All areas of the law are covered. The books are published in various European languages under the auspices of METRO, the Institute for Transnational Legal Research at Maastricht University.

Table of Contents

List of authors	p. xi
Introduction	p. 1
Groups of contracts. An exploration of types and the archetype from a Dutch legal perspective	p. 9
Introduction	p. 9
Groups of contracts	p. 10
Judgments of the Hoge Raad	p. 11
Jans/FCN	p. 11
Von Hohenmeiss/Arenda	p. 12
The archetype group of contracts	p. 13
German law	p. 13
The (moderated) "Trennungslehre"	p. 14
Case law Bundesgerichtshof	p. 14
Paragraphs 358-359a BGB	p. 17
The "Einheitslehre"	p. 19
European consumer directives	p. 21
Extensive interpretation of the archetype	p. 23
Other distinguishable types	p. 25
Mooijman/Netjes: clear demand and supply side	p. 25
Institutionalised groups of contracts	p. 27
Conclusion	p. 28
The impact of voidness for infringement of Article 101 TFEU on linked contracts	p. 29
Introduction	p. 29
The impact of an infringement of Article 101 TFEU on linked agreements under EU law	p. 30
A specific rule of national competition law extends the voidness of an agreement infringing the cartel prohibition to linked agreements	p. 32
Legal provisions	p. 32
Theories developed by case law and legal scholarship	p. 34
A rule of general contract law extends the consequences of the voidness of an agreement infringing the cartel prohibition to linked agreements	p. 36
Legal provisions	p. 36
Theories developed by case law and legal scholarship	p. 38
The linked agreement itself is affected by a ground of voidness or voidability	p. 39
Illegality, immorality and infringement of the public order	p. 39
Defects of consent	p. 44
Fraud	p. 44
Mistake	p. 48
Duress	p. 50
Abuse of circumstances	p. 50
Conclusion	p. 52
Linked contracts and the construction sector: A builder's contractual obligation to warn the client about a risk that might emerge from a contract between the client and the designer	p. 55
Contractual relations in the construction sector. Relevance of the 'link'	p. 55
Concept of the obligation to warn in construction contracts regulated by Dutch law and the DCFR	p. 56
Consequences of the designer's default for the builder	p. 61
When should a builder have noticed a default?	p. 61
What happens if the builder does not perform his obligation to warm?	p. 69
Causality	p. 69
Solidary liability	p. 73
Contributory negligence	p. 75
Conclusion	p. 77
Chains of Sales Contracts: Towards a European system of direct producers' liability?	p. 79
Introduction	p. 79
Need for a European system of direct producers' liability?	p. 81
Arguments in favour of a system of direct producers' liability	p. 81
Direct producers' liability as a reflection of economic reality	p. 81
Producer at the origin of most product defects	p. 81
Producers' liability through chain of redress?	p. 82
Direct producers' liability to achieve procedural economy	p. 90
Arguments in favour of a European system of direct producers' liability	p. 90
Increasing consumer confidence in cross-border shopping	p. 91
Avoiding distortions of competition between businesses	p. 92
Evaluation of the arguments	p. 93
Model of a European system of direct producers' liability	p. 95
Basic structure of a European direct producers' liability system	p. 95
Derivative liability along the contractual chain	p. 95
Objective extra-contractual liability	p. 97
Grounds for European liability of the producer	p. 98
Beneficiary of the European direct claim	p. 101
Addressee of the European direct claim	p. 102
Relation of European direct producers' liability with final seller's liability	p. 104
Remedies associated with the European direct claim	p. 105
Time limits applicable to the European direct claim	p. 106
Harmonising strategies for direct producers' liability	p. 108
Conclusion	p. 112
Linked contracts in the DCFR, the Consumer Rights Directive and the Draft Optional Instrument	p. 115
Introduction	p. 115
Linked contracts in the EU Directives before the Consumer Rights Directive	p. 117
The right of withdrawal and linked contracts	p. 117
Doorstep Selling Directive 85/577/EEC and the Schulte and Crailsheimer cases	p. 119
Linked contracts in the Timesharing Directive 94/47/EC	p. 121
Linked contracts in the Distance Selling Directive 97/7/EC	p. 122
Linked contracts in the Distance Marketing of Financial Services Directive 2002/65/EC	p. 123
Linked contracts in the Consumer Credit Directive 2008/48/EC	p. 125
History	p. 125
The Consumer Credit Directive 87/102/EEC	p. 125
The implementation of the Consumer Credit Directive 87/102/EEC by the Member States	p. 126
The revision of the Consumer Credit Directive 87/102/EEC	p. 128
Linked credit agreements in the new Consumer Credit Directive 2008/48/EC	p. 129
Definition of linked credit agreement	p. 129
Effects	p. 130
Ancillary services contracts in the Consumer Credit Directive	p. 131
(No) Definition of ancillary contract	p. 131
Effects	p. 131
Timesharing Directive 2008/122/EC	p. 131
The need for harmonisation	p. 133
Linked contracts in the DCFR	p. 134
Scope	p. 134
Definition of linked contract	p. 136
Effects	p. 138
Conclusion	p. 138
Ancillary contracts in the Consumer Rights Directive	p. 139
Background and scope	p. 139
Definition of ancillary contracts in the Consumer Rights Directive	p. 140
Effects	p. 140
Ancillary contracts in the Proposal for a Regulation on a Common European Sales Law	p. 141
Background	p. 141
Ancillary contracts in the Common European Sales Law	p. 142
Related service contracts in the Common European Sales Law	p. 143
Conclusion	p. 144
Addendum	p. 145
Linked contracts: Elements for a general regulation Rodrigo Momberg Uribe	p. 153
Introduction	p. 153
The necessity for a general regulation	p. 153
The state of the art: The present legal recognition of linked contracts	p. 157
European legislation	p. 157
Non-legislative codifications or restatements	p. 158
Towards a general concept of linked contracts	p. 158
Plurality of contracts	p. 159
Common purpose	p. 159
The effects of linked contracts	p. 160
Internal effects	p. 161
External effects	p. 162
A (preliminary) proposal	p. 162
A practical concept?	p. 162
The revision of the principle of privity and the concept of contract parties	p. 163
Linked contracts as an interpretative standard	p. 163
Linked contracts as an operative standard	p. 163
Table of Contents provided by Ingram. All Rights Reserved.