Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations
Source of idea of Contract Law – needed contract law with the growth of capitalism
Division of labour – development of specialized skills to a highly productive level
“And thus the certainty of being able to exchange all that surplus part of the produce of his own labour, which is over and above his own consumption, for such parts of the produce of other men’s labour as he may have occasion for, encourages every man to apply himself to a particular occupation, and to cultivate and bring to perfection whatever talent of genius he may possess for that particular species of business.”
Exchange of goods and services – contract
Humans depend on each other
Foundation of a market economy – mutual self interest (“self-love”), not benevolence – to make a contract, one must interest the “self-love” of the other party to the contract
“It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest. We address ourselves, not to their humanity but to their self-love, and never talk to them of our own necessities but of their advantages.”
Evolutionary aspect – the ability to contract makes human thriving possible
All depends on the ability to exchange – this is why society needs to institutionalize and enforce contracts
Rise of contract law – end of 18th, beginning of 19th century
“Golden Age of Contract” – rose with the market orientation of society, the rise of individualism (which formed the basis for the Civil Code in France) – a certain ideological background
“The increased importance of the private law contract in general is the legal reflex of the market orientation of our society” Max Weber, Economy and Society II, p. 672
Contract law was re-formulated in the 19th century – market exchange transaction as a paradigm
Pre-consumer law
Pre-labour law
“A contract is, per se, just” – it is the exchange of the free wills of two independent parties – very ideological
This dynamic all over countries affected by the Industrial Revolution
Cross-fertilization between French Civil Law and Common Law
Comprehensive (principle that it includes everything and that it is easy to understand)
Lays down canonical language governing
Makes law accessible to everyone
Based on the Enlightenment tradition
The construction of the private sphere, not relying on the state
Private law in that time was much more relevant than public law
Many remnants of the Roman law – how did it get there?
Codifiers of the French code saw their own ideals reflected in the Roman tradition
Breakaway from feudal structures
Foundation of most European law preceding codification
J.E.C. Brierley & R.A. Macdonald, Que Civil Law: An Intro to Que Private Law (35-45) CB 34
CCQ as more than legislative enactment, but also cultural identity (reflected society, cultural, urban and rural values)
Is constitutionally protected, is constitutive of society’s most important values
J.E.C. Brierley & R.A. Macdonald, Que Civil Law: An Intro to Que Private Law (134-147) CB 54
Talks about way to interpret canonical codes (method is problematic)
Teleological – what is the intention
Text (look at Code)
Systematic
Historical Argument
James Gordley & Arthur Taylor Von Mehren, An Introduction to the Comparative Study of Private Law: Readings, Cases, Materials CB 61
Interpretation doesn’t arise from a legal vacuum, but comes from a context which the judge should recognize
Claire L’Heureux-Dube, “By Reason of Authority or By Authority of Reason” CB 63
Discusses problem of mixed jurisdiction (CVL and CML), argues for “authority of reason”
Binding precedent as opposed to elucidation of codal provisions (in CVL law is not made by judges, therefore, judicial decisions are – technically – not binding)
Difficulty in simply applying facts to the Code
Reinhard Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition CB 72
Obligation as a two-ended relationship
Natural obligations unenforceable
Historically, nexum to guarantee payment of a loan
Borders between contract and tort quite blurry
D. J. Ibbetson, A Historical Introduction to the Law of Obligations CB 79
Roman history, consensual contracts: sale, services, partnership, mandate (do something for free)
Consensual contracts: voluntary, agreement, lack of effect on third parties, enforcement of contractual entitlements independent of reliance or actual loss suffer
All reciprocal (except mandate)
Requirement of good faith historically
Richard Kidner, Book Review of A Historical Introduction to the Law of Obligations by D. J. Ibbetson (2001) CB 85
Critiques that Ibbetson purports that common law (not just civil law) grew out of “intermingling of native ideas and sophisticated Roman learning” perhaps a grounds of our transystemic education
D. Kennedy, “Form and Substance in Private Law Adjudication” CB 97
Classical individualism denies that altruism has anything to do with basic legal doctrines
K.P. Berger, The Practice of Transnational Law CB 102
Economics as ordering force in global world, even more so than “reason” or rule of law
CML – Bruker v. Marcovitz (2008) SCC CB 1
Jurisdiction
Canada
Facts
Two parties, B and M, married for several years. They decided on a civil divorce. During the divorce proceedings, he agreed to provide her with a Jewish religious divorce (get). He never did, despite having agreed to do it immediately upon receiving the civil divorce. She pursued him for damages for not allowing her to re-marry in her faith or having religiously legitimate children. Get can only be given by the husband.
JUDICIAL HISTORY: Trial judge upheld contract. Appeals judge said it was a moral obligation and as such, unenforceable by the court.
Issues
(1) Can a secular court adjudicate this matter? (2) Has a valid contract been formed? (3) Can the husband avoid legal consequences on other grounds? (4) Was the contract “breached”?
Holding
(1) Yes; (2) Yes; (3) No; (4) Yes Bruker (wife)
Reasoning
Majority:
This is a justiceable case.
Dissent:
Ratio
Moral obligations can be transferred into legal obligations by the wills of the parties.
Comments
The application of contract law is very difficult in a private, intimate context
Legal reasoning is the basis for every decision – it is not a question of “right or wrong” but a question of the quality of the reasoning that justifies a decision – the persuasive argumentation
Rules channel legal debate and provide the structure
“Like cases should be decided alike” why is one case different from another? How are the facts interpretated?
What is a “juridical operation”? How is one to define this term?
