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Samuel, Geoffrey --- "Contract and the comparatist: should we think about contract in terms of ‘contracticles’?" [2017] ELECD 605; in Monateri, Giuseppe Pier (ed), "Comparative Contract Law" (Edward Elgar Publishing, 2017) 67

Book Title: Comparative Contract Law

Editor(s): Monateri, Giuseppe Pier

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849804516

Section: Chapter 4

Section Title: Contract and the comparatist: should we think about contract in terms of ‘contracticles’?

Author(s): Samuel, Geoffrey

Number of pages: 28

Abstract/Description:

When asked to think about contract in a comparative law context, many academic lawyers and law students might well be tempted into thinking about the subject at a very general level. This should surprise nobody. Contract in both the civil law and the common law world is founded on a general theory which now finds concrete expression in a range of transnational codes. These codes would appear to be the fruits of work done by comparative lawyers who have toiled to harmonize the sometimes divergent principles that make up the various general theories in the nationalized systems. However, not all comparatists have envisaged contract in this way. And two in particular have produced work that might encourage a rather different approach to thinking about contract. The late Tony Weir expressed concern at the abstract nature of contract, especially when compared to the Roman law of contracts, while the late Emeritus Professor of Comparative Law at Oxford, Bernard Rudden, produced a key work in the law of torts which, by way of analogy, ought to provoke reflection about contract. Building on the ideas of these two eminent comparatists, this present contribution will investigate whether it would be epistemologically valuable to think about contract, not by way of a general theory, but by way of the very many and various types of contract.