The buyer's remedies for seller's non-conforming delivery : a comparative study under English law, the 1980 UN Convention on Contracts for the International Sale of Goods and Shi'ah law
The purpose of the thesis is to examine Shiah law, as an undeveloped systen-4 in order to identify if it could be applied to modem sale transactions. The focus is on remedies in which Shiah jurists have done a great deal of work. The subject is first examined under English law and the UN Convention on Contracts for the International Sale of Goods (as two developed systems) to identify the issues which have to be dealt with and then under Shiah law in depth. An extensive examination shows that current Shiah law suffers from substantive gaps and uncertainty. It is suggested that the current situation is due to lack of applying an efficient methodology. Instead of dealing with the legal rules in respect of concrete issues, Shiah jurists tend to deal with traditional as well as hypothetical cases to derive further detailed rules. To present a sensible picture of this system, it is suggested that the law should be analysed in the light of studying developed systems. Relying on this method, attempts are made to systematise the relevant rules and answer the various questions these two modem systems deal with. Shiah law is then compared with English law and the Convention to highlight the existing gaps in Shiah law and to assess how it could be applied to modem sales. Comparative assessment of the three systems shows that while in English law primacy is given to damages and specific performance is rarely awarded, the Convention gives significance to both. Similarly, English law seems to permit termination more easily than the Convention. But unlike the Convention, it does not recognise price reduction as a separate remedy. Overall, it is shown that Shiah law is closer to the Convention than to English law. It attaches significance to both damages and specific performance, and entitles the buyer to reduce the contract price, but permits termination more easily than the Convention and less easily than English law. It is concluded that because of substantive gaps and uncertainty in current Shiah law it is not an appropriate system to govern modem sale transactions, but if the suggested methodology is applied it could be developed and fill in the gaps.
Measuring Damages Under the United Nations Convention on the International Sale of Goods
The United Nations Convention on the International Sale of Goods (hereinafter Convention or CISG)I went into force on January 1, 19882 with the United States as one of nineteen countries that ratified the Convention. 3 The Convention received the requisite two-thirds advice and consent from the Senate and was subsequently ratified by President Reagan. 4 Therefore, under the supremacy clause of the United States Constitution, 5 the Convention now prevails over state sales laws, such as the Uniform Commercial Code ("U.C.C."), in international transactions to which the Convention applies. 6 Because the Convention eliminates state competence to deal with these sales, 7 it represents a significant displacement of state law in the United States. 8 In the wake of American ratification of the Convention, American sales lawyers must consider the Convention's impact on their international sales contracts. Parties can no longer draft international sales contracts in the limited context of conflicts of law provisions and foreign sales law. Contracting parties from different countries that have adopted the Convention 9 must now consider the prospect, benign to some and worrisome to others, that the Convention may control their contract.' 0 This Note focuses on one important aspect of the Convention: how the Convention measures money damages. After briefly reviewing the drafting history of the Convention, the scope of its application, and general drafting considerations, the Note will compare the Convention's damages provisions to those of Article 2 of the
Law in a law-governed union (Recht in einer Rechtsunion) : the Court of Justice of the European Union and the free law doctrine
The Court of Justice of the European Union characterizes the Union as a Rechtsunion: a law-governed union. The conception of “the law” in Article 19 paragraph 1 of the Treaty on European Union transcends the Treaties, according to the Vice-President of the Court of Justice, Koen Lenaerts. This thesis demonstrates with reference to the work of Georg Jellinek that the Union is a non-sovereign state and, with reference to the work of Eugen Ehrlich in particular, that the state-based perception of law is a misperception. Not all production of law is reserved to the state and not all law is state-recognized law. There is extra-state law. It has been alleged that the Court of Justice of the European Union has had “a free law attitude”. The author discusses the free law doctrine developed at the beginning of the twentieth century and has made literal translations of writings in German, French and Italian by the main representatives of the free law movement. The free law doctrine provides a descriptive framework for the case-law of courts. The author describes the creation by the Court of Justice of four constitutional principles of Union law through its case-law. He concludes that every court is, to quote Hermann Kantorowicz, praeter legem law-creatively active and has, in that sense, a free law attitude. The decisions of judges are often volitional decisions. How the law will be applied should be predictable but volitional decisions, because they are unpredictable, are inconsistent with the principle of legal certainty. In the Union and its member states the judiciary and not the statute or “the law” is pre-eminent. The author suggests how the concept of law should be defined in a material Rechtsunion. He argues that societal legal norms could be provided with an appropriate position consistent with the principle of legal certainty by making the validity of a societal legal norm contingent on its material lawfulness.