In his classic study on the rise of Arab nationalism, George Antonius writes: ‘Without school or book, the making of a nation is in modern times inconceivable’ (1946: 40). Of course, modern nations are not built in schools and books alone; but one need not discount nationalism's socioeconomic determinants, nor its historical specificity, to accept the premise of Antonius's argument: that is, the effect of culture and cultural institutions on the political formation of the nation-state. Though the nature of that effect is itself overdetermined, its location can in part be inferred from what Antonius then goes on to write concerning certain educational reforms initiated in Syria in 1834: ‘[They] paved the way, by laying the foundations of a new cultural system, for the rehabilitation of the Arabic language as a vehicle of thought’ (ibid). In other words, one might say, a modern nation is inconceivable apart from a language in which it can be conceived and communicated as such. By articulating this linguistic link between nation and thought, Antonius thus points to the site of culture, or a cultural system, as the specifically ideological field in which nationalism is sown and from which national identities are reaped.

I draw attention here, through the above metaphor, to the organic character of this relationship between culture and nationalism not because, as Ernest Gellner argues, there is anything natural about it, but because it is almost invariably from the field of culture that proponents of nationalism first posit an idea of the nation as an organic entity, one which pre-exists its geopolitical formation.

INTRODUCTION

Given the statement in the Introduction to PECL to the effect that one of the benefits offered by them “is to provide a bridge between the civil law and the common law” it is of some interest, particularly for those from so-called “mixed systems” like Scotland and South Africa, to try to detect major influences on parts of PECL. Are the PECL rules predominantly Civil Law, predominantly Common Law, or “mixed”? I will therefore consider the PECL rules on interpretation from this point of view before turning to what are for me more interesting questions – namely whether the PECL rules on interpretation are acceptable rules, and how they compare with the rules in Scottish and South African law.

THE PECL RULES: CIVIL LAW, COMMON LAW OR MIXED?

The PECL rules

The PECL rules for the interpretation of contracts are to be found in Chapter 5. The more general rules are in Articles 5:101 and 5:107 PECL. Article 5:101 provides that

1. (1) A contract is to be interpreted according to the common intention of the parties even if this differs from the literal meaning of the words.

2. If it is established that one party intended the contract to have a particular meaning, and at the time of the conclusion of the contract the other party could not have been unaware of the first party's intention, the contract is to be interpreted in the way intended by the first party.

3. (3) If an intention cannot be established according to (1) or (2), the contract is to be interpreted according to the meaning that reasonable persons of the same kind as the parties would give to it in the same circumstances.

INTRODUCTION

The remedy of termination for breach of contract was introduced into Scots and South African law under the influence especially of English law. In neither Roman nor Roman-Dutch law was there a generalised remedy of termination for breach of contract, as it is known to modern law. Scots and South African law do not, however, mirror English law on all aspects of termination. In a number of instances, the courts have refused indiscriminately to take over all of English law on the subject.

It has been said that the rules on termination upon non-performance of PECL also follow the Common Law rather closely in a number of respects. Similarities between PECL and Scots and South African law on termination are therefore to be expected.

One characteristic of the remedy of termination for non-performance under PECL which is not shared with the Common Law, is that the rules on termination apply equally to breach of contract and to excused non-performance (excused as a result of an impediment beyond the debtor's control). In Scotland and South Africa, as in the Common Law, termination due to excused supervening impossibility of performance is regarded as a doctrinally distinct issue meriting separate treatment from termination as a remedy for breach of contract. To keep this chapter within manageable bounds, only termination as a remedy for breach of contract, and only the following aspects thereof, will be considered:

1. grounds for termination (in other words, when the remedy is available);

2. effect, on the availability of the remedy, of a tender to cure the breach; and

3. consequences of termination.

INTRODUCTION

A chapter on agency occupies a somewhat unique position in a book of this type. First, agency is often considered to be more properly part of commercial rather than contract law. This commercial background must be borne in mind. Agency transactions are increasingly likely to be international in nature, particularly as agents cross borders within Europe, benefiting from the protection of European Directives as they do so. This international context makes the prospect of uniform rules for agency transactions throughout Europe an extremely important one for agency lawyers. It is not difficult to see the pressing argument in favour of developing Scots agency principles in line with PECL.

The second reason why this chapter may differ from others in this book is the extent of English influence which has operated on both Scots and South African law. English law has been so dominant in matters commercial that both Scots and South African agency law bear a strong resemblance to English law. One would imagine that the same could not be said of PECL, being a collaboration between jurists from both Civilian and Common Law countries. Nevertheless, as this chapter should illustrate, English agency principles have been so influential that they have left an obvious mark on PECL, perhaps to a greater extent than one might have anticipated.

‘History’ has been a stumbling block for recent attempts to give a theoretical account of the rise of nationalism in modern times. Questions – such as how theory could coherently address divergent historical experiences without effacing the historical particularity of each experience, how the North African and the Indian national experiences compare, or what the relation between ‘first-world,’ ‘second-world’ and ‘third-world’ nation-building is – continue to haunt attempts to ‘theorise’ nationalism. While such attempts underscore the historicity of the processes that gave rise to nationalism as well as national consciousness itself, one region often remains outside the realm of history, that of literary meaning. In the 1960s and early 1970s, theoreticians such as Hans-Georg Gadamer (1993) and Hans Robert Jauss (1986) explored the historical operations that produce meaning. Still, their insights appear all but forgotten by more contemporary attempts to discuss literature in the context of modern nationalism. Major figures such as Edward Said, Frederic Jameson, Stephen Greenblatt, Homi Bhabha or Benedict Anderson, who in every other aspect of their work introduce history into the reading of a text, read the literary text as if its meaning is always already set and determined, beyond history. In this chapter, I would like to address the question of history and theory by examining one case study from the history of modern Hebrew literature in the context of Zionist nationalism.

INTRODUCTION

It was the Natural lawyers of the seventeenth century, especially in France, who developed the concept of consensus as the basis of modern contract law. Roman-Dutch authorities embraced this notion and further accepted that consensus can be analysed in terms of two declarations of will, i.e. offer and acceptance. These Civilian concepts also had a profound influence on the development of contract law in the Common Law. In England, especially, Pothier's writings on the subject became influential and resulted in the adoption of the offer and acceptance analysis. English jurists in turn further developed and refined offer and acceptance to a model of contract formation.

The offer and acceptance model is a standard feature of modern contract law in South Africa and Scotland. Typically of both these mixed legal systems, the model was received from Civilian sources, but has been significantly influenced by the Common Law. As such, the offer and acceptance model presents an interesting subject matter for a comparative analysis of the newly formulated PECL viewed against the mixed legal systems of South Africa and Scotland. The focus in this paper is specifically on that aspect of the Scots and South African model that represents the most evident Common Law influence, namely the rules pertaining to inter absentes contracting and specifically the so-called postal rule. The goal of the analysis is on the one hand to determine to what extent PECL can be likened to mixed legal systems such as South Africa and Scotland.

In an essay published in Khartoum in 1934, Muhammad Ahmad Mahjub, a colonial government-employed engineer, spare-time poet and future Prime Minister of Sudan, lamented the lack of national sentiment around him. Declaring that nationalism required active construction, Mahjub urged his Arabic-speaking peers to create a national poetry (Mahjub 1970: 113–16).

Living in a political context shaped by European colonialism, Sudanese Arabic poets were not unique in pressing their art into the service of nationalism. By the time Mahjub wrote, poets in Egypt, such as Mahmoud Sami al-Barudi, Ahmad Shawqi and Hafiz Ibrahim, had been presiding over a nationalist literary nahda, or ‘awakening’, for more than half a century (Khouri 1971, Badawi 1993). Meanwhile, in India during the late nineteenth and early twentieth centuries, Bengali poets in Calcutta were conscious of their own literary awakening, or nabajagaran (Sarkar 1997: 160), with luminaries like Rabindranath Tagore composing verse on behalf of the nation. Poet-nationalists emerged later in sub-Saharan Africa, after World War II. The Swahili poet Shaaban Robert, for example, helped to foster Tanganyikan (later Tanzanian) nationalism, while the French-language poet, Leopold Sedar Senghor, did much the same in Senegal (Iliffe 1979: 379; Ba 1973). These commonalities were not accidental. In the Middle East, South Asia and Africa alike, poetry was conducive and important to nationalist expression in this period, for at least four reasons.

INTRODUCTION

The interplay and differences between Common Law and Civil Law in mixed legal systems are illustrated very clearly in two remedies commonly available after a breach of contract, namely specific performance, or specific implement, and the rules relating to special damages. Specific performance provides an instance where the Civil Law and the Common Law depart from directly opposing points of view. In Civil Law specific performance is regarded as the natural remedy after breach, whereas in Common Law it is regarded as exceptional, with damages being the prime remedy.

The rules on special damages, on the other hand, provide an instance where there is a large measure of convergence between Common Law and Civil Law, due to the pervasive influence of Pothier in this field. The comparison of these two remedies of South African and Scots law provides an interesting backdrop for a consideration of the relevant provisions of PECL.

SPECIFIC PERFORMANCE

Introduction

The issue of specific performance seems to draw a very definite dividing line between the Common Law and Civil Law traditions. During the drafting process for CISG the question of specific performance presented an obstacle on which no consensus could be reached. It resulted in a compromise which preserved the autonomy of the lex fori to apply its own specific rules.

INTRODUCTION

Chapter 4 of PECL deals with certain factors that affect the validity of a contract. These include threats (Article 4:108 PECL) and excessive benefit or unfair advantage (Article 4:109 PECL). The close relationship between these factors has been appreciated for some time – as long ago as 1937 Professor John P Dawson argued forcefully that the problem of economic duress in particular cannot be divorced from the larger problem of the fair exchange. In that essay Dawson stressed that an appreciation of the development of these concepts in Civil Law systems could help Common lawyers understand certain developments in their own system. But here the aims are somewhat different. The first aim is to test the proposition that many of the solutions found by the draftsmen of PECL have been anticipated in the mixed systems of South Africa and/or Scotland, while the second aim is to evaluate the laws of contract of these systems from a comparative perspective. This could reveal either the need to modify PECL in the light of the experiences of the mixed systems, or to draw lessons from PECL for their further development.

ARTICLE 4:108 PECL: THREATS

Two areas of the Scots law of force and fear and the South African law of duress merit comparison with Article 4:108 PECL. The first of these areas concerns the effect which the force and fear or duress have on the victim and the second with the conduct of the wrongdoer.

The paradox underlying national movements based on ethnic-religious-cultural claims is that, short of a distinctly zero-sum outcome in which one group survives at the expense of the other, there is a need both for clear boundaries and for coexistence. At the level of geographic identity, concern for physical boundaries makes political sense: physically separating populations can enhance the reality of self-determination, as was the logic of the Dayton Accords in Bosnia. However, at the level of psychic and cultural identity, the drawing of clear boundaries – boundaries which distinguish us from them, and which promote group solidarity, giving it political momentum – also makes coexistence of such clearly delimited groups more difficult. Self and other become brittle constructs. It is of interest then, that a ‘national’ poet of the status of Mahmoud Darwish writes poetry that both galvanises Palestinians around the Palestinian national enterprise and provides a means by which the boundaries can be bridged, making coexistence between Palestinians and Israelis imaginable. As well, his is a poetry that reaches beyond the frontiers of Palestinian nationalism. It speaks not only to a broad literary audience, but in translation, to an audience of peace educators whose focus (in effecting peace) is on the possibilities resident within blurred boundaries.

Mahmoud Darwish, the national poet of Palestine, whose people ‘chant his odes in their fields, in their schools, on their marches, and in their miserable tin shanty-towns’ (Darwish 2000: 19), taps universal concerns with identity when he explores the paradox of being Palestinian.

INTRODUCTION

Distaste for interest has been pervasive in ethics, religion and law in all of recorded history. The rules against usury are rooted in the idea that interest is by its nature exploitative. If by this reasoning interest is bad, then the taking of interest on interest – that is compound interest or anatocism (the archaic and almost obsolete term for compound interest) – is worse. The word anatocism has a ring about it of something unpleasant.

From an economic and mathematical point of view it does not matter whether compound interest is seen as the adding of accrued interest to a debt as interest or as capital, the effect is the same. In legal terminology, almost as if by verbal sleight of hand, the lawful taking of compound interest becomes capitalisation – the process whereby accrued interest is merged with the principal or capital, so as then to generate further interest on the increased capital amount.

The legal rules on capitalisation indicate circumstances where the taking of interest on interest is tolerated in terms of a statute, agreement or trade usage. Research projects in various countries over the last twenty years or so have indicated that such tolerance has been generally limited and that the law on capitalisation or compound interest has lagged behind economic and commercial realities. In this chapter the focus is on Article 17:101 PECL, which provides for the annual capitalisation of interest for certain types of debt. This provision will be compared with the position in Scotland and South Africa, to assess to what extent it provides a suitable model for reform of the law.

In the last hundred years the Arab world has been given a unity that has been more ideological than real. Most Arabs both within the Arab world and beyond acknowledge to some extent some idea of cultural unity. The idea is reinforced by the existence of the Arab League and other regional organisations and has, by and large, been accepted by all Arab governments. Other Arab countries are shaqiq ‘brother’ rather than sadiq ‘friend’. Modern Standard Arabic, Arab Clubs among students in British, mainland European and American universities, tapes of Umm Kulthum, the novels of Naguib Mahfouz, the poetry of Nizar Qabbani and the issue of Palestine all contribute towards this cultural unity. Arab newspapers treat news of other Arab countries as of greater relevance than news of Europe, the Far East or the United States.

It is easy to see this successful idea, with its emphasis on the territory of the Arab world, as somehow deep-rooted and everlasting. The Arabic language, as the language of Islamic revelation, suggests an unchanging nature of ‘uruba, Arabness. Its status is within the realm of sacred geography, and cannot be subject to academic examination or scientific analysis like secular languages. Study of the colloquial Arabic is seen as divisive (Suleiman 1994: 12). Even the study of local history can open old wounds and conflicts to the detriment of Arab unity (Jabbur 1993: 11–12).

The title page of George Antonius' classic study The Arab Awakening: The Story of the Arab National Movement, published in London in 1938, carries as an epigraph in beautiful Arabic calligraphy the first hemistich of Ibrahim al-Yaziji's (1847–1906) famous ode: tanabbahu wa-stafiqu ayyuha al-‘arabu (‘Arise, ye Arabs and Awake!’). As I have argued elsewhere (Suleiman 2003: 96), this choice was not fortuitous: it was ‘intended to highlight the cultural nature of this nationalism in its initial stages’ in the nineteenth century; in addition, it was meant to draw attention to the fact that the nationalist idea was, as Antonius expresses it, ‘borne slowly towards its destiny on the wings of a nascent literature’, in which, it may be added, poetry played a leading role (Antonius 1936: 60). This reference to literature is echoed in the metaphorical use of the term ‘story’ in the subtitle of Antonius's book and in the ‘poetic’ flavour of his prose, of which the preceding quotation is an example. Although one may disagree with Antonius's narrative on periodisation and agency in the evolution of Arab nationalism, his views on culture and literature as sources of this nationalism are still as valid today as they were at the time of writing. In fact, I would go further and say that no account of Arab nationalism would be complete without understanding the contribution literature made, and still makes, to its articulation or to its role in group mobilisation.

THE CASUS BELLI

A battle of forms arises where each of the parties to what they at least perceive as a contract have employed their own standard terms of trading or business. In the case of an anticipated sale of goods, the buyer's purchase order and the seller's acknowledgment of order will be on terms drafted in advance: perhaps by a representative trade association or by the parties' respective legal advisers. If all goes well the goods will be dispatched and paid for and nothing more will be heard of the matter. If this happy scenario does not ensue, however – perhaps, for example, the buyer feels that the goods do not conform to specification or are defective in quality – the parties may turn to their respective standard forms and point to terms therein which they consider to be resolutive of the dispute. In particular the seller may stand on a clause in its acknowledgment of order which excludes liability for the non-conformity alleged and point to another which neutralises any contrary term in the buyer's purchase order. For example:

The last few years of the twentieth century witnessed a proliferation of Anglophone and Francophone novels by Lebanese-born, and in many cases first-time, authors whose childhood and adolescence were fully or partially spent in wartorn Lebanon between 1975 and 1991. Rabih Alameddine, Tony Hanania, Hani Hammoud and Alexandre Najjar top the growing list of post-1995 literature produced in and about exile, thus dealing not only with the civil strife but with one of its most crucial and long-lasting by-products: expatriation. The post-war novels characterise a new literary and cultural phenomenon, and have founded what one may predict to become a full-fledged branch of Lebanese exilic (mahjar) literature.

Elise Salem Manganaro opines that ‘it is necessary to examine the everbroadening definition of what constitutes a Lebanese literature’ and argues for a ‘literary pluralism’, as many authors with no Lebanese identification papers have nonetheless ‘consciously sought to identify themselves with some aspect of this amorphous Lebanon’ (1994: 374–5). A new group of mahjar writers, she states, emerged during the war between 1975 and 1991 in the US, Canada, Western Europe and Latin America. In addition to the geographical distance enjoyed by immigrant authors, the post-war exilic narratives are written with the hindsight necessary to create a critical distance from the immediacy of violence and chaos. Emerging a few years after peace had been achieved in Lebanon, these texts exhibit a more recent consciousness, one replete with irony, parody and scathing critiques of self and nation.