The Future of Contract Law in Latin America: The Principles of Latin American Contract Law (Studies of the Oxford Institute of European and Comparative Law)

This book presents, analyses and evaluates the Principles of Latin American Contract Law (PLACL), a recent set of provisions aiming at the harmonisation of contract law at a regional level. As such, the PLACL are the most recent exponent of the many proposals for transnational sets of ‘principles of contract law’ that were drafted or published over the past 20 years, either at the global or the regional level. These include the UNIDROIT Principles of International Commercial Contracts, the Principles of European Contract Law, the (European) Draft Common Frame of Reference and the Principles of Asian Contract Law. The PLACL are the product of a working group comprising legal academics from Argentina, Brazil, Colombia, Chile, Paraguay, Uruguay and Venezuela. The 111 articles of the instrument deal with problems of general contract law, such as formation, interpretation and performance of contracts, as well as remedies for breach. The book aims to introduce the PLACL to an international audience by putting them in their historical and comparative context, including other transnational harmonisation measures and initiatives. The contributions are authored by drafters of the PLACL and contract law experts from Europe and Latin America. Volume 24: Studies of the Oxford Institute of European and Comparative Law Preface Contents Contributors Table of Cases Table of Legislation and Related Instruments Part I: The Principles of Latin American Contract Law:History and Context 1 The Process of Harmonisation of Private Law in Latin America: An Overview I. Introduction II. The Latin American Legal Family: Codification and Later Developments III. International Private Law and Regional Integration as Sources of Harmonisation IV. Academic Initiatives: The Principles of Latin American Contract Law V. Conclusions 2 The Principles of Latin American Contract Law: A General Introduction I. The Vocation or Finality of the Principles II. The Identity and Innovation of the Principles III. Conclusion 3 Harmonisation of Private Law in Latin America and the Emergence of Third-generation Codes I. Introduction II. Generations of Codes III. Private Law Harmonisation in Latin America IV. Generation Shift V. Closing Remarks 4 The "Principles of Latin American Contract Law" Against the Background of Latin American Legal Culture: A European Perspective I. Introduction II. The Forgotten Continent: Latin America"s Neglect in Mainstream Comparative Law III. Origins and Later Development of the Latin American Legal Orders IV. Idealism and Realism in Latin American Contract Law V. 'Nationalist' vs 'Universal' Spirit: The Methodological Divide Between Europe and Latin America VI. Possible Aims and Purposes of the PLACL VII. Conclusion 5 The Economic Conditions of Contract in South American Law: An Historical Approach I. Introduction II. Laesio and Usury in Colonial South America III. South American Contract Law in the Nineteenth Century IV. South American Contract Law in the Last Hundred Years V. Conclusions 6 The Principles of Latin American Contract Law and the CISG I. Introduction II. A General Comparison Between the PLACL and the CISG: Origin, Scope of Application and Issues Covered III. The Principles of Latin American Contract Law and the CISG: A General Comparison of the Principles Embodied in Both Texts IV. The Principles of Latin American Contract Law and the CISG: A Brief Comparison-Formation, Interpretation, Performance and Non-performance Part II: The Principles of Latin American Contract Law:Comparative Analysis 7 The Notion of Contract and its Essential Elements in the Principles of Latin American Contract Law I. The Contract As an Agreement II. Agreement and Content of the Contract III. Agreements and Defective Will: The Case of Mistake IV. Failure of the Agreement: Subject-matter and Cause as Essential Elements V. Similarities and Usefulness VI. The Dangers of Syncretism: Some Examples VII. Conclusion 8 Formation of Contract under the Principles of Latin American Contract Law I. Introduction and Objective II. Definition and Elements of the Contract III. The Notion of Contract IV. The Consent of the Parties: Offer and Acceptance V. Missing Issues VI. Conclusions 9 Defects of the Contract under Articles 27 to 37 of the Principles of Latin American Contract Law I. Introduction: Different Models of "Defects" in the Formation of a Contract II. The Scheme Adopted by the Principles of Latin American Contract Law III. Concluding Remarks 10 Performance and Non-performance under the Principles of Latin American Contract Law I. Concepts II. Rules 11 The Provisions on Non-performance in the Principles of Latin American Contract Law I. Non-performance and the Battle for the Harmonisation of Contract Law in Latin America: The PLACL and Other Experiences II. The Guiding Principle of the PLACL: Good Faith III. Diligence of the Obligor and Its Effects on the Foreseeability of Harm IV. Prevalence of Good Faith and Diligence Over Reasonableness: An Outsider Standard in Latin America V. Gross Disparity Due to an Impediment Beyond the Control of the Debtor VI. Final Remarks 12 The Principles of Latin American Contract Law: A Response from an Outsider I. Introduction II. Seven Questions III. The Content of the Principles IV. The Form of the Principles V. Conclusion Appendix: Principios Latinoamericanos de Derecho de los Contratos-Principles of Latin American Contract Law* Index