This book analyses the theory of efficient breach in English sales law, European Union contract law and Chinese contract law. It analyses the framework of the efficient breach theory and reconsiders the implications of this theory. According to the traditional efficient breach theory, the remedy of expectation damages is able to motivate efficient breach, which brings the breaching party economic surplus without making the non-breaching party worse off. The essential problems are how to motivate contract parties to make rational decisions and how to solve cases where performance of a contract turns out to be less efficient after its conclusion. The second part of the book further extends the efficient breach theory to the study of contract law systems by analysing how exactly those laws react to breach and what solutions are adopted by them.
The comparison of these three systems is more than a mere description of the differences and similarities in the content. More importantly, this comparative research also analyses whether or not the differences between these systems will influence the level of efficiency produced by each legal system by taking account of the different traditions and the concepts of contracts involved in each legal system. Researchers in contract law will also be interested in this approach, particularly for re-thinking the question of whether one legal system is definitely better or worse than the other two.
Chapter 1. Introduction (p. 1)
Chapter 2. Economic Analysis of Contract and Contract Law (p. 17)
Chapter 3. Efficient Breach in Law and Economics Theory (p. 45)
Chapter 4. A Re-Examination of the Optimal Rule to Enhance Efficiency (p. 63)
Chapter 5. Alternative Remedies and Efficient Breach (p. 89)
Chapter 6. Efficient Breach and European Union Contract Law (p. 131)
Chapter 7. Efficient Breach and Re-Negotiation in English Sales Law (p. 167)
Chapter 8. Applying the Efficient Breach Doctrine to Chinese Commercial Sales Law (p. 201)
Chapter 9. A Comparative Law and Economics Analysis of Efficient Breach in English Law, EU Law and Chinese Law (p. 249)
Chapter 10. Concluding Remarks and Policy Recommendations (p. 289)
References (p. 305)
Table of legislation and European or international instruments (p. 333)
Cases (p. 337)
Valorization Addendum (p. 341)
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The ‘Ius Commune Europaeum’ series focuses on the common foundations of the legal systems of the Member States of the European Union. It includes horizontal comparative legal studies as well as studies on the effect of EU law, treaties and international regulation within the national legal systems. All substantive fields of law are covered.
The series is published under the auspices of METRO, the Institute for Transnational Legal Research at the Maastricht University.
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Prof. Dr. J. Smits (chair - Tilburg University, the Netherlands)
Prof. Dr. M. Faure (Maastricht University and Erasmus University Rotterdam, the Netherlands)
Prof. Dr. E. Vos (Maastricht University, the Netherlands).
Parts of this book have been made open access. We make chapters open access because they are particularly topical, or provide a useful introduction to the subject. They may be available for a limited time or indefinitely. Some books are entirely and permanently open access.