European jurisdictions can be distinguished in 'open' and 'closed' legal systems in respect of their approach to unexpected circumstances occurring in contractual relations. In this article, it will be argued that this distinction can be related to the judiciary's reaction in certain countries to the economic consequences of World War I. The first point to be highlighted will be the rather strict approach to unexpected circumstances in contract law that many jurisdictions had before the war-including England, France, Germany, and the Netherlands. Secondly, the judicial approach in England, France, Germany, and the Netherlands to unexpected circumstances arising from the war will be briefly analysed. It will appear that all of the aforementioned jurisdictions remained 'closed'. Subsequently, the reaction of the judiciary in these jurisdictions to the economic circumstances in the aftermath of the war, (hyper)inflation in particular, will be analysed. Germany, which experienced hyperinflation in the immediate aftermath of the war, developed an 'open' system, using the doctrine of the Wegfall der Geschäftsgrundlage. In the Netherlands, this experience failed to have an impact: indeed, in judicial practice the Netherlands appears to have a 'closed' legal system nevertheless, save for an 'exceptional' remedy in the new Dutch Civil Code, Article 6:258 of the Burgerlijk Wetboek (1992). In conclusion, the hypothesis is put forward that generally only in jurisdictions that have experienced exceptional economic upheaval, such as the hyperinflation in the wake of World War I, 'exceptional' remedies addressing unexpected circumstances can have a lasting effect on the legal system.
In contemporary European contract law a patchwork of convergence, harmonization, and unification of commercial laws of contract can be witnessed. Why do certain commercial laws converge or even become unified, whereas others remain separate, national laws? In this paper, two theories from law and economics - namely competition between legal systems and game theory - are applied to nineteenth century European commercial sales law to determine whether or not these concepts can explain the convergence and unification of commercial laws. First, the concepts of convergence by competition and unification by coordination are briefly explained. Second, the convergence of one of the consequences of the seller's non-performance in a trade sale - immediate default upon the lapse of a delivery date - is examined for the legal systems of Prussia, France, and the Netherlands. Third, the convergence of another of the consequences of the seller's non-performance in a trade sale - a choice of remedies upon default - is examined for the jurisdictions within the German Confederation. Game theory is applied to a next step, the unification of German commercial sales law in the Allgemeines Handelsgesetzbuch, to highlight its explanatory force. The paper determines that these two concepts do not exclude but complement one another. Together they provide valuable tools to explain the convergence and unification of contemporary commercial laws. The paper concludes with comments on the future prospects for the convergence and unification of European commercial sales law.
Nineteenth century judicial interpretation in the Netherlands has been characterized as legalistic. This article deals with the question whether this legalistic interpretation witnessed a shift in emphasis during the nineteenth century: from the legislature's intention with a legal rule to focusing on the literal wording of a statutory rule. Such possible shift from legislature to code has been investigated for judicial decisions about the enforcement of marital duties and parental authority. It appears that in these cases, any judicial method of interpretation eventually sought to serve particular purposes identified by the judiciary itself, here the effective enforcement of marital cases, which did not coincide with either the legislature's intention or the literal wording of a provision. 1 See more generally and in greater detail about specific performance in French and Dutch law in the 19 th century, OOSTERHUIS, Specific performance. In more detail about the rise of legalism in Dutch judicial practice, OOSTERHUIS, Legisme.
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