‘Rule of Law’ in China: The Confrontation of Formal Law with Cultural Norms

This Article will be one of the first to fully examine the adoption of the first part of China’s long-term quest to enact a grand civil code. It is primarily an examination of the interaction between law and culture— this interaction is most visible when law is transplanted from one legal tradition (Western) into a country of a different legal tradition (Eastern). The General Rules of the Civil Law of the People’s Republic of China took effect on October 1, 2017. This enactment of general principles is the first step in what is expected to take up to five years to create a European-style civil code. There are multiple, interlocking themes to this Article. First it focuses on the general principles of contract law, comparing the current Chinese Contract Law of 1999 with the General Rules of 2017. This analysis of general principles is not merely confined to contract law but reflects the values and goals of Chinese society. A second theme explores the effectiveness and inherent problems of legal transplantation from one legal system to another. China is a unique example given the great mass of laws adopted in its transition to a socialist-market economy. The review of general principles and analysis of the effectiveness of China’s transplantation of Western-style laws provides the basis for examination of the status of the “rule of law” in present day China. The rule of law is generally associated with public law, such as criminal and constitutional law, and concepts such as due process. This Article demonstrates the importance of the rule of law in the more mundane area of private law, in this case, the law of contracts. The examination of the rule of law in Chinese private law also has different dimensions. First, the Article examines the pivotal role that Chinese cultural norms— Confucian and socialist principles— has had in diminishing the rule of law in China. Second, the continued influence of government agencies and the low quality of the Chinese judiciary has also held back the implementation of a rule of law system in the private law realm. The Article concludes with the use of a hard-soft law paradigm to best understand the interaction of formal law and cultural norms in modern China

Contractual Excuse Under the CISG: Impediment, Hardship, and the Excuse Doctrines

This article will examine the law of excuse as espoused in the Convention on Contracts for the International Sale of Goods (CISG). It will examine the relevant case law applying the doctrine of impediment found in CISG Article 79. The question posed in this analysis is whether the word “impediment” relates only to the occurrences of force majeure, impossibility and frustration of purpose events or if it also includes changed circumstances, impracticability and hardship events. For purposes of simplicity, the first set of excuse or exemption doctrines will be analyzed under the heading of “impossibility” and the second set will be discussed under the heading of “hardship”. The key issue to be explored in this article is the distinction between excuse requiring impossibility or frustration of contractual purpose and hardship as it relates to Article 79 of the CISG. These terms and doctrines have often been conflated. This is understandable given the number of such doctrines found in various national laws and international law instruments, such as impossibility, impracticability, frustration of purpose, force majeure or Act of God, hardship, change of circumstances, and so forth. The question posed is whether the impediment doctrine provides an exemption from liability only for “absolute” excuse (impossibility, force majeure) or if it also extends to the more liberal “relative” excuse doctrines (hardship, changed circumstances, impracticability). Given the vagueness of Article 79’s use of the word impediment, its interpretation and application has had to be constructed anew. This has to, of course, be done with all CISG provisions under the autonomous interpretation mandate. However, the interpretation of the exemption of impediment is an especially difficult task given the context of the numerous excuse doctrines in the various national legal systems, as well as the conflation of different excuse doctrines within national legal systems. French law has the most form of excuse recognizing only force majeure events that make it impossible to perform; the United Kingdom’s law is slightly more liberal, adding the doctrine of frustration of purpose to the impossibility doctrine; and German law incorporates the more common civil law bifurcation of impossibility and hardship doctrines, while also recognizing frustration of purpose, as well as recognizing both physical and economic impossibility. The United States has a tripartite excuse regime involving impossibility, frustration, and impracticability. Part II briefly examines the law of excuse in the German and American legal systems focusing on the German concept of changed circumstances and the American doctrine of impracticability, while Part III briefly reviews the law of excuse provided in the UNIDROIT’s Principles of International Commercial Contracts (PICC) and the Principles of European Contract Law (PECL). The reviews in Parts II and III will set the context for analyzing the case law relating to CISG Article 79 that is undertaken in Part IV

‘Rule of Law’ in China: The Confrontation of Formal Law with Cultural Norms

This Article will be one of the first to fully examine the adoption of the first part of China’s long-term quest to enact a grand civil code. It is primarily an examination of the interaction between law and culture— this interaction is most visible when law is transplanted from one legal tradition (Western) into a country of a different legal tradition (Eastern). The General Rules of the Civil Law of the People’s Republic of China took effect on October 1, 2017. This enactment of general principles is the first step in what is expected to take up to five years to create a European-style civil code. There are multiple, interlocking themes to this Article. First it focuses on the general principles of contract law, comparing the current Chinese Contract Law of 1999 with the General Rules of 2017. This analysis of general principles is not merely confined to contract law but reflects the values and goals of Chinese society. A second theme explores the effectiveness and inherent problems of legal transplantation from one legal system to another. China is a unique example given the great mass of laws adopted in its transition to a socialist-market economy. The review of general principles and analysis of the effectiveness of China’s transplantation of Western-style laws provides the basis for examination of the status of the “rule of law” in present day China. The rule of law is generally associated with public law, such as criminal and constitutional law, and concepts such as due process. This Article demonstrates the importance of the rule of law in the more mundane area of private law, in this case, the law of contracts. The examination of the rule of law in Chinese private law also has different dimensions. First, the Article examines the pivotal role that Chinese cultural norms— Confucian and socialist principles— has had in diminishing the rule of law in China. Second, the continued influence of government agencies and the low quality of the Chinese judiciary has also held back the implementation of a rule of law system in the private law realm. The Article concludes with the use of a hard-soft law paradigm to best understand the interaction of formal law and cultural norms in modern China

Depersonalization of Personal Service Contracts: The Search For a Modern Approach To Assignability

The ever-evolving nature of modem commercial transactions dictates the need to review the common law area of personal service contracts. Namely, that when a court labels a contract as one for personal service, in contrast to the general rule of assignability, it is per se nonassignable. A review of this exception to assignability is suggested when one views the dramatic change in the nature of personal service contracts as well as their increasing popularity

Contract Stories: Importance of the Contextual Approach to Law

How law is taught is at the center of the debate over the need to change legal education to better prepare students for a difficult and changing marketplace for legal services. This Article analyzes the benefits of using “stories” to teach law. The stories to be discussed relate to contract law: this Article asks whether they can be used to improve the method and content of teaching law. The ruminations offered on teaching contract law, however, are also relevant to teaching other core, first-year law courses