Jan M. Smits - Contract Law, A Comparative Introduction

Edward Elgar
Cheltenham, UK Northampton, MA, USA

Any newcomer on the already well-served market for contract law books must explain itself. Over the last two hundred years or so, contract law has been mainly national in contents and outlook. This is reflected in the abundance of textbooks on the contract law of national jurisdictions. These textbooks introduce students to the national contract law of their own country in their own language. Next to these traditional books, there is an increasing number of texts available that offer a comparative, European or even global perspective on the law of contract invariably designed to cater for the needs of students who are already familiar with the fundamentals of contract law. This book seeks to combine the two: it introduces students to the field of contract law by way of a comparative approach. It assumes that contract law is an international discipline that can be taught on the basis of common principles and methods, just like economics, psychology or any other field of academic study. There are two reasons why this approach is adopted.

First, substantive law is no longer the exclusive product of the nation-state and introductory textbooks should reflect this. In particular in the context of the European Union, law is shaped as much by the national legislators and courts of the 28 Member States as it is by the European legislature and the Court of Justice of the European Union. At a global scale, the role of private regulation and of the Convention on Contracts for the International Sale of Goods is increasing, as is the potential for choice of the legal regime applicable to the contract. All this reduces the self-evidence of teaching contract law on the basis of the intricacies of one national law alone. Most of todays law students will spend their professional life in a world in which knowledge of only one jurisdiction is not enough.

Second, learning the law is as much about learning a method as it is about mastering the substantive law. It is arguably more important to learn to think like a lawyer than it is to know about the details of a court case or a statute that is likely to change anyway. In a similar way as economists do not focus on the study of one particular economy but adopt a method of analysis (the economic approach), law is ideally regarded not as a subject but as a method. Under this view, students no longer study German, English or Polish contract law, but simply contract law by applying the legal approach towards the questions they are confronted with. This does not mean that the details of, or differences between, various legal systems are not discussed. To the contrary: it is exactly by looking at these similarities and differences among jurisdictions that one learns that much of the law is about exploring and contrasting the implications of conflicting views of what is right. It is this approach, focusing on arguments and policies that is at the core of this book. National laws are presented as variations on common themes and as alternative ways of dealing with some common problem.