We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
from PART 2 - Methodological challenges
Published online by Cambridge University Press: 11 April 2011
Introduction
Courts must sometimes apply German law to a contract in spite of the fact that its terms are based on common law contract models. Problems may arise from such a mismatch between applicable law and contract terms. Their solutions straddle the borderline between substantive law, i.e., rules that tell us whether there is a contract and which rights and obligations arise under such a contract, and private international law, i.e., rules that tell us which country's law applies.
Normally, if a contract has been formulated with a particular contract law in mind (for example, English law), private international law rules will point to the application of that law. Within the EU, this question is governed by the Rome I Regulation, which provides:
Article 3 Freedom of choice
1. A contract shall be governed by the law chosen by the parties. The choice shall be made expressly or clearly demonstrated by the terms of the contract or the circumstances of the case. By their choice the parties can select the law applicable to the whole or to part only of the contract.
If parties have given any thought to the question of which law should be applicable, they will normally choose the same law that they have used as a model. If the contract contains no choice-of-law clause, obvious reliance on one particular legal system in the formulation of a contract can sometimes be seen as demonstrating a choice by the terms of the contract.
To save this book to your Kindle, first ensure no-reply@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.
Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.
Find out more about the Kindle Personal Document Service.
To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.
To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.
