Typical questions that this course addresses.
This course is designed for JD candidates as well as for LLM's and SJD's interested in the law of commercial contracts as found in representative legal systems and legal cultures. Typical questions that this course intends to answer are in its final six chapters, such as: What is a commercial contract for example, under French, Spanish and Latin American law as contrasted with United States and German law? Which of these representative legal systems is the most influential, say on contemporary Chinese and Soviet, then Russian law, and why? Is it the similarity of rules or of cultural legal traits, such as for example, "familism" in Latin America and China. How are commercial contracts formed and how are they interpreted in these legal systems and countries, why are course of dealing and usage of trade as prevalent as they are in the UCC and why are they much less prevalent in some civil law jurisdictions such as France and Mexico? What are the most common remedies for breach of contract in the various representative jurisdictions? What are the legal and economic consequences of the major differences exposed by the comparison? Can you be a better commercial lawyer and professional in our global commercial and financial marketplace by learning what you will in this course?
The Background Knowledge Provided by this Course.
Before the above questions are answered, the student must learn about the contextual comparative method. What is the role, for example of values and attitudes with respect to commerce as a way to earn a decent living? What is the adversarial as opposed to the cooperative view of commerce, which of these two is the one most genuinely rooted in human nature and what is the difference between the Aristotelian and scholastic logic that still permeates the legal institutions of most of civil law countries as contrasted with the logic of the reasonable which guides the creation and interpretation of Anglo American legal institutions. What characterized the method of reasoning of Roman lawyers and of medieval Jewish adjudicators of commercial controversies especially among "commercial brethren"? What is the connection between the medieval guilds and present day Notary Publics in civil law countries? Who were the verlegers and how did they contribute to transition from guilds to capitalistic institutions? How and why were civil and commercial codes drafted in the civil law world, how did a law merchant emerge from medieval fairs and how were they adopted in continental European countries and in England? Why did commerce and commercial law flourish in the Netherlands, Great Britain and Germany and not in France and Latin America? What were the economic consequences of a private law that treated not for profit transactions (including that of professionals) as morally superior to commercial for profit transactions? Are these consequences visible in our day? What did Confucius and Karl Marx have in common where the law of commercial contracts was concerned? How can the comparative commercial context you will learn in this course be used in helping the economic development of poor countries? What is a Roadmap study? Who are archetypal merchants? What is the difference between standard and best commercial practices? Why is it that these practices will be shaping your future practice of commercial contract law in the developed as well developing nations?
Text materials will be provided in electronic fashion two to three weeks prior to the beginning of the course.
Lectures and comparative case law and problems.
None, except for those students opting for writing a substantial paper.
|Type of Exam||
Choice of a written (Honor Code, take home examination), substantial paper or Oral Examination (approximately 30 minutes in length)
|Basis for grading||
The course is graded on the combined basis of the results of a final examination or paper and class participation.
Students interested in writing a substantial paper on a topic acceptable to the instructor instead of a final examination may do so with prior permission from the instructor.