Book contents
- Frontmatter
- Contents
- List of contributors
- Books in the series
- General editors' preface
- Preface
- List of abbreviations
- Part I Introduction and context
- Part II Overview
- Part III The case studies
- Part IV General comparative remarks
- 7 General comparative remarks: Converging tendencies, remaining differences and the unsolved mystery of adjustment
- Appendix: Some Texts on Change of Circumstances
- Selected bibliography
- Index
- References
7 - General comparative remarks: Converging tendencies, remaining differences and the unsolved mystery of adjustment
Published online by Cambridge University Press: 04 April 2011
- Frontmatter
- Contents
- List of contributors
- Books in the series
- General editors' preface
- Preface
- List of abbreviations
- Part I Introduction and context
- Part II Overview
- Part III The case studies
- Part IV General comparative remarks
- 7 General comparative remarks: Converging tendencies, remaining differences and the unsolved mystery of adjustment
- Appendix: Some Texts on Change of Circumstances
- Selected bibliography
- Index
- References
Summary
‘Open’ versus ‘closed’ legal systems, the variety of doctrines and the difficulty of identifying clear tendencies
In the Introduction, we drew an initial distinction between ‘open’ and ‘closed’ legal systems. This distinction was based on the criterion whether or not a jurisdiction recognises a general rule under which the contract can be adjusted to unexpected circumstances by the courts. The distinction led to the following groups: as ‘open’ legal systems we have qualified those of Austria, Germany, Greece, Italy, Lithuania, the Netherlands, Portugal and Sweden and we have characterised as ‘closed’ jurisdictions those of Belgium, Denmark, England, France, Ireland, Scotland and Slovenia. To a certain extent this distinction goes along with the classic division into legal families. Not very surprisingly, the common law tradition, the French influence (‘closed’ jurisdictions) and the German tradition (‘open’ jurisdictions) lead to similarities in the doctrinal approach to cases of unexpected circumstances. There is one exception. The Nordic legal systems use the same concepts but arrive at different ends of the spectrum.
However, the distinction between ‘open’ and ‘closed’ jurisdictions did not survive the test wholly unscathed as far as the outcome of our cases is concerned. Thus, the distinction between ‘open’ and ‘closed’ jurisdictions is a rough doctrinal approach rather than a clear indication of differences with regard to the result of a certain case. Yet, the strict requirements for relief and the variety of other legal concepts dilute the effects of any particular doctrine.
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- Information
- Unexpected Circumstances in European Contract Law , pp. 643 - 655Publisher: Cambridge University PressPrint publication year: 2011