Search results for Contract Law

Summary

ABSTRACT

This chapter studies the multifaceted nature of crowdfunding and focuses especially on the investment-based model, particularly the area of so-called ‘securities crowdfunding’ and its regulation in Europe. It starts by enunciating a general concept of crowdfunding and identifying its defining characteristics. The different business models falling under the general concept are then examined, in order to determine the different legal natures of the key underlying transactions in each of the models. The chapter then focuses on investment-based crowdfunding, describing the different structural options used in the practice to implement these transactions, and directs its attention to securities crowdfunding, the most relevant type in this category. Afteranalysing the complex realms of regulations, both at EU and a national level, that could potentially affect this specific type of crowdfunding, the chapter finally concludes by advocating regulatory intervention by the European Union in this field in order to simplify the current complex situation.

INTRODUCTION

Crowdfunding has become a very popular alternative source of funding in the last few years. Its success is partly due to the difficulties faced by small and medium-sized enterprises, start-ups and cultural projects to get finance in the context of the recent global economic crisis. The most common sources of finance such as bank loans, retained earnings, equity or venture capital, are often difficult to obtain for these types of initiatives, and other sources more frequently associated with small and innovative businesses, like ‘business angels’, money from family, friends and acquaintances, or public subsidies in the case of cultural projects, are oft en insufficient. This traditional financing problem has been exacerbated at the beginning of the twenty-first century by the global crisis, as a consequence of which all financing channels have been strongly restricted. Banking finance has diminished dramatically and has concentrated on wellestablished, low-risk firms, while venture capital and business angels have also reduced their activity in this context. Family, friends and acquaintances have been less able to help, since the crisis has impacted on their own budgets, and public subsidies have been sharply reduced.

Summary

ABSTRACT

In December 2015, the European Commission made a proposal for a Directive on contracts for the supply of digital content as a part of its digital agenda. The proposal breaks new ground in multiple ways, encompassing all kinds of different services, from music downloads to social networks. This chapter analyses the Commission's proposal both with respect to its broad scope of application and departure from regulating particular types of contract, as well its approach towards harmonising the standards for contractual liability, termination and rights to damages.

INTRODUCTION

The Digital Agenda, as one cornerstone of the Commission's Europe 2020 strategy, has steadily gained momentum and is starting to take increasingly concrete shape. While the Directorate-General CONNECT's attempts to reform European copyright law sparked intense controversy and have thus been postponed, the Directorate-General Justice submitted two new proposals on 9 December 2015 – one tackling the issue of consumer protection regarding the supply of digital content and the second concerning contracts for the online and other distance sales of goods. Though the second proposal entails changes of practical significance, such as prolonging the presumption for a lack of conformity with the contract from six months to two years (Article 8(3), recitals (22), (23)), the proposed ‘Directive on certain aspects concerning contracts for the supply of digital content’ (CSDC Directive) is of far greater importance due to its far-reaching application and its innovative regulatory approach. Drawing inspiration from the (ultimately unsuccessful) proposal for a Common European Sales Law (CESL) as well as from preparatory studies, the proposed regulatory framework has the potential to severely shake up the traditional typology of contracts in many Member States.

The following discussion seeks to describe and analyse the Commission’ s proposal, focusing on the remarkably broad scope of application (section 3) as well as its provisions for contractual liability (section 7), termination of contract (section 8) and rights to damages (section 9).

GENERAL APPROACH

Despite the proposed framework's character of an all-encompassing, binding set of fixed rules, the Commission has decided not make use of its authority to issue a regulation, but has instead proposed a fully-harmonising Directive to facilitate the implementation into national civil law (Article 4, recital (5) CSDC).

Summary

ABSTRACT

Platform services, such as Airbnb, Uber, eBay, Amazon, TaskRabbit and many more have rapidly emerged and taken over parts of existing markets for services. Airbnb's peer-to-peer accommodation rental platform competes with hotels in many cities, whereas Uber has entered existing markets for taxi services in many large cities around the world. Innovative services such as these have been welcomed by many users but they also create new challenges: how can users be protected against health and safety risks, are payment systems safe, are effective dispute resolution mechanisms available? Besides typical private law issues concerning the division of responsibilities between the platform and its users, also broader concerns have arisen in relation to market regulation and public order. The aim of this contribution is to ‘unpack’ the legal relationships within one platform service – Airbnb – to provide a basis for discussion of the question whether regulation of platform services is needed and if so, in what form.

INTRODUCTION

Like other platform services, Airbnb has become a favourite of digitally savvy consumers who know that some of the greatest benefits of our globalising society can be found online. Offering a platform through which hosts can advertise their apartments to potential guests worldwide, Airbnb provides a real, and in many ways attractive, alternative to visitors who are looking for something else than a hotel room. Tourists who would normally have booked a hotel room on a city trip to New York, Paris or Barcelona, can find a fully furnished apartment with all amenities instead – and oft en cheaper than a hotel too.

Behind the gleaming façade, the housing platform provided by Airbnb may, however, have some hidden cracks in terms of legal protection that both hosts and guests should be aware of. This chapter discusses the private law relationships that arise between the three parties involved in a home rental through the website: the online platform (Airbnb), the host and the guest. As will be seen, although some improvements have been made, the legal relationships that hosts and guests enter into are strongly characterised by an ‘at your own risk’ (AYOR) approach.

Summary

ABSTRACT

This chapter poses two principal questions. First, even if, at the time of its enactment, Directive 2000/31/EC (the E-Commerce Directive) was right to treat off -line and on-line transactions as functionally, contextually, and normatively equivalent, does that continue to be the appropriate regulatory view? Secondly, how should regulators view the distinction between on the one hand transactions that are made (off -line or on-line) between business suppliers and consumer contractors and on the other, automated transactions for the supply of goods or services to consumers?

Responding to the first of these questions, it is suggested that there are reasons for thinking that the context for on-line transactions is materially different from that for off -line transactions, as a result of which the balance of contracting power and influence in on-line transactional environments has changed, to the detriment of consumers. Accordingly, for the sake of consumer protection, the time is right to review the prevailing regulatory view.

Responding to the second question, it is suggested that where transactions for routine consumption of goods and services are fully automated, consumer contractors seem to be reduced to mere consumers. Arguably, this represents a radically new context for consumption that invites a bespoke regulatory response. Moreover, to the extent that consumer transactions are technologically mediated or managed, this implies that the guidance provided by rules will not be directed at those who supply consumer goods or services or at those who consume such goods and services so much as at those who design and supply the systems that manage those transactions.

INTRODUCTION

Twenty years ago, when UNCITRAL published its Model Law on Electronic Commerce, there was felt to be an urgent need to set out ‘internationally acceptable rules aimed at removing legal obstacles and increasing legal predictability for electronic commerce.’ In particular, it was thought to be important to provide ‘equal treatment to paper-based and electronic information’. In Europe, too, this sense of urgency and importance was shared. If small businesses in Europe were to take advantage of the opportunity afforded by emerging Information and Communication Technologies to access new markets, and if consumers were to be sufficiently confident to order goods and services on-line, it needed to be absolutely clear that e-transactions (no less than ‘traditional’ contracts) were recognised as legally valid and enforceable.

Summary

ABSTRACT

This chapter critically examines some features of the proposed directive on sale of digital content, namely its scope of application, defects with respect to digital contents, the contract term, remedies for breach of contract and the right to redress. These aspects are compared with general contract law. The chapter concludes that the nature of digital content does not necessitate any special legislation and will likely contribute to more confusion than clarification. Thereby the proposed directive will be detrimental to cross-border transactions.

INTRODUCTION

The EU Commission has an ambition to create directives and regulations. Sometimes the ambition appears to be more to do something, than to do good. Directives and regulations are oft en too narrow, too detailed, too shallow and too fragmented. The proposed directive on sale of digital content (adopted by the EU Commission in December 2015) is an example of this. I doubt that the proposed directive will facilitate EU cross-border transactions; instead I fear that it will create greater hindrance.

EXAMPLES OF SALE OF DIGITAL CONTENTS AND THE SCOPE OF APPLICATION

There are many examples of sale of digital content:

Summary

ABSTRACT

The chapter makes five claims. Firstly, on the descriptive level, terms of online services are not contracts for service in the traditional sense, since they oft en do not contain any obligations or promises on the side of the providers. Secondly, the question of whether these documents are contracts at all remains open. They always contain some contractual elements (licensing of soft ware and/or content), but primarily set the rules specifying what users are (not) allowed to do, resembling more an exercise of property rights than contracts. Thirdly, the relations between online service providers and their users should be viewed through the lens of horizontal/vertical (private/public) relations. Online service providers might be de lege private entities, but the type of power they enjoy is public in nature. Fourthly, what should be noticed is their unilateral control of the code and algorithms behind their platforms. The unequal power position they enjoy towards the consumers comes not only from what is written in the terms, but most of all from the unconstrained control of the code. Finally, to mitigate this inequality, consumer law should concentrate not only on the substance of the terms, but predominantly on what the providers do with the code and the algorithms, and constrain the exercise of this power in a way that would benefit the consumers. The readers are encouraged to view the paper not as a doctrinal argument that the author would be defensive about, but rather as an invitation to critically reassess the concepts and preconceptions which inform lawyerly reflection about the new digital reality.

INTRODUCTION

The objects of inquiry of this chapter are online platforms, specifically Google, YouTube, Facebook and Twitter, and the terms of service of these platforms. The chapter's aim is to argue that terms of service of these platforms are not contracts for service and potentially not contracts at all (section 2). Rather, they should be seen as an exercise of property rights, similar to rules and regulations in physical proprietary spaces. The potential results of this finding, mostly regarding application of consumer law, are elaborated on (section 3). Further, the concepts of normative and factual (in)equality, which have informed the two major corrections of private law – i.e. labour law and consumer law – are used to operationalise the concept of the ‘code’ in the context of online platforms.

The French projet d'ordonnance, which reformed contract law, the general regime of obligations and the proof of obligations appeared in February 2015. One year later, in February 2016, the final version of the ordonnance was published. The ordonnance thoroughly reforms French contract law and the law of obligations and will enter into force in October 2016.This book results from the Contract Law Workshop of the 20th Ius Commune Conference held 26-27 November 2015. The theme of this Workshop was: 'The French Contract Law Reform: a Source of Inspiration?' Since the conference in November 2015, all authors have incorporated comments on the final version of the ordonnance. Whereas Van Loock briefly sketches the antecedents and the outcome of the reform, the other authors each tackle specific topics of the reform that surprised and/or excited the legal community. Pannebakker tackles the precontractual phase and assesses the attractiveness of the reform for international commercial transactions. Peeraer gives a critical overview of the doctrine of nullity in the ordonnance. Leone explores the potential impact of the 'significant imbalance' test in the new ordonnance on employment contracts. In their contributions, Lutzi and Oosterhuis discuss the much-debated provision that introduces the theory of imprévision. The contributions by Jansen and Verkempinck are both focused on remedies: the newly introduced price reduction remedy and damages. Storme criticises the new rules on set-off in the ordonnance, and Mahé addresses the question why the final version of the ordonnance omitted the issue of interpersonal effects of fundamental rights on contractual freedom.

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.

The EU is committed to making the Single Market fit for the digital age, by enhancing the protection of consumers and data subjects, while providing businesses with the legal certainty they need to invest in this field and support growth and innovation. In this context, European Contract Law and the Digital Single Market, an edited collection consisting of carefully selected contributions by leading scholars, addresses the impact of digital technology on European Private Law in light of the latest legislative developments including the EU Regulation of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on free movement of such data, as well as the European Commission's proposals of 9 December 2015 for a Directive on the supply of digital content, for a Directive on online and other distance sale of goods and for a Regulation on the cross-border portability of online content services in the internal market. The book analyses new and urgent issues in the field of contract, data protection, copyright and private international law: namely the EU approach to personal information as a tradeable commodity and as the object of a fundamental right of the individuals concerned, the protection of consumers' and users' rights in contracts for the supply of digital content and on online and other distance sales of goods, the cross-border portability of online content services, the new features of standard contracts in the digital market and the issues surrounding the emergence of the so called platform economy. Written for both scholars and practitioners, this edited collection provides clear answers to the challenges posed by the digital revolution and acts as a solid basis for further developments of EU law.With contributions by: Christoph Busch, Joana Campos Carvalho, Alberto De Franceschi, Pietro Franzina, Martin Gebauer, Geraint Howells, Peter Kindler, Michael Lehmann, Rodrigo Momberg, Jorge Morais Carvalho, Karl-Nikolaus Peifer, Reiner Schulze, Christian Twigg-Flesner, and Herbert Zech.

In its case law the Court of Justice of the European Union has acknowledged general principles of EU law, which have a constitutional status. In addition the Court of Justice has also recognised 'general principles of civil law', relying upon values which are traditionally rooted in the domain of private law. The pervasive use of principles, both in the case law of the Court of Justice and in other EU projects of 'soft ' and 'hard' law, challenges legal scholarship. Although the concepts of principles and rules have been widely discussed within the context of national legal orders, they need to be rethought at the European level, because the traditional view of a principle does not fit the European Union's constitutional architecture. This also applies to the general principles of civil law, for instance good faith. They also have to be redefined to be consistent with the European Union's legal order.The contributions in this book examine EU general principles and their distinction from rules both within the context of the European Union as well as of the Member States. Moreover, they focus on the relevance of EU general principles for contract law and of principles of civil law for a European contract law

According to the European Commission, differences in contract law and the additional transaction costs and complexity they generate in cross-border transactions dissuade a considerable number of traders, in particular SMEs, from expanding into markets of other Member States. These differences are also said to limit competition in the internal market. Furthermore, they underlie the European Commission's draft Regulation for a Common European Sales Law (CESL). The 2012 Ius Commune workshop on Contract Law was dedicated to the position of SMEs in European Contract law and focused on their contractual relations with other SMEs (SME2SME), consumers (SME2C and C2SME) and larger companies (B2SME and SME2B). Is there a need for a kind of "consumer law for professionals"? This book contains the most interesting and challenging contributions to this workshop.

Summary

As the 21st Ius Commune conference on European private law coincided with the 35th anniversary of the Maastricht law school, it was deemed a good occasion to look back at the evolutions that have taken place in the European law of obligations since 1981. More particularly, this book is the result from a discussion about how particular changes or developments have impacted both fields of contract law and tort law, either in the same or in diverging or even opposite ways.

Think, first of all, of the evolvement of different perceptions, for example in terms of (the need for) protection of the weaker party (e.g. consumer protection, and more recently small and medium-sized enterprises (SME) protection) and in respect of ‘freedom’ (e.g. the freedom to contract, the fault principle, etcetera). Secondly, in both fields of contract law and tort law it seems that there is an increased level of Europeanisation and constitutionalisation (with the 1991 Maastricht Treaty – celebrating its 25th birthday in the week after the Ius commune conference that took place in the city from where it takes its name – as one of the starting points). Hardly existing in the 1980s but currently at the core of scholarly attention in private law is the need to adjust the law to the growing impact of digitalisation. More and more, the law of obligations emerges from different (growing/evolving) sources of law. It emerges from all directions: top down, bottom up, but also crossing-over and diagonal. The law of obligations is not only the product of national lawmakers but also of supranational lawmakers and it concerns different types of actors. Norms of the law of obligations are not only being made by national legislators and courts, but also by European institutionalised lawmakers and (increasingly important) by private actors, organisations and networks. So too, in both areas of the law the focus seems to have shifted away from mere comparisons of national contract or tort law systems respectively to a growing call for European (or perhaps world-wide) harmonisation. Thirdly, in both fields of law there seems to be an emergence of new forms of regulation and of new kinds of remedies.

Contract Law

Refine search

Refine search

Actions for selected content:

897 results in Contract Law

Crowdfunding in Europe

Summary

Part III - Digital Formation of Contract – More Virtual and More Formalised

Contents

Contracts for the Supply of Digital Content – The proposal of the commission for a directive on contracts for the supply of digital Content

Summary

Frontmatter

Part IV - Development and Implementation of Contract – More Digital, More Liquid

Table of Cases

Part V - Digital Objects of Contract – CESL II and More

Regulating Online Platforms – The Case of Airbnb

Summary

The E-Commerce Directive, Consumer Transactions, and the Digital Single Market – Questions of Regulatory Fitness, Regulatory Disconnection and Rule Redirection

Summary

Digital Content – A Digital CESL II – A Paradigm for Contract Law via the Backdoor?

Summary

List of Authors

Terms of Service are not Contracts – Beyond Contract Law in the Regulation of Online Platforms

Summary

The French Contract Law Reform: a Source of Inspiration?

The Application of the Theory of Efficient Breach in Contract Law

European Contract Law and the Digital Single Market

Rules and Principles in European Contract Law

The Position of Small and Medium-Sized Enterprises in European Contract Law

Introduction: The Waves of Contractual and Tortuous Liability

Summary

Contents

Contract Law

Refine search

Refine search

Actions for selected content:

Save Search

897 results in Contract Law

Summary

Summary

Summary

Summary

Summary

Summary

The French Contract Law Reform: a Source of Inspiration?

The Application of the Theory of Efficient Breach in Contract Law

European Contract Law and the Digital Single Market

Rules and Principles in European Contract Law

The Position of Small and Medium-Sized Enterprises in European Contract Law

Summary