Zuppi, Alberto L.

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Journal of Civil Law Studies Volume 13 Number 1 2020 Article 10 9-28-2020 Rodrigo Momberg & Stefan Vogenauer (eds.), The Future of Contract Law in Latin America: The Principles of Latin American Contract Law Alberto L. Zuppi Follow this and additional works at: https://digitalcommons.law.lsu.edu/jcls  Part of the Civil Law Commons Repository Citation Alberto L. Zuppi, Rodrigo Momberg & Stefan Vogenauer (eds.), The Future of Contract Law in Latin America: The Principles of Latin American Contract Law, 13 J. Civ. L. Stud. (2020) Available at: https://digitalcommons.law.lsu.edu/jcls/vol13/iss1/10 This Book Review is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Journal of Civil Law Studies by an authorized editor of LSU Law Digital Commons. For more information, please contact kreed25@lsu.edu.   BOOK REVIEW THE FUTURE OF CONTRACT LAW IN LATIN AMERICA: THE PRINCIPLES OF LATIN AMERICAN CONTRACT LAW, by Rodrigo Momberg & Stefan Vogenauer (eds.), Bloomsbury, 2017, ISBN 978-1-50991-427-2, 352 pp, £81.  One of the most surprising facts when studying Latin American contract law arises from its fragmented legal history and its conse-quent inability to speak the same language: despite having legal codes sharing common origins, contemporary Latin American con-tract law has not succeeded in achieving any workable union or cross-system harmonization. All effortsat least when compared with the European Unionhave so far been unsuccessful: Andean Pact, ALADI, ALBA, and UNASUR. Even MERCOSUR, since its establishment in 1991, has failed to bring to life a related tribunal. Without a court, the projected Southern Common Market has not moved beyond platitudes and a few commercial agreements. Ro-drigo Momberg and Stefan Vogenauer’s edited volume proposes an-other attempt at analysis. A group of legal academics, with the sup-port of the French “Fondation pour le droit continental” and the Chilean “Fundación Fernando Fueyo” (attached to the Universidad Diego Portales), joined in a private project. They were concerned with the Principles of Latin American Contract Law (PLACL)’s po-tential to provideas Momberg describes in his contribution“a source of inspiration for the reform and modernization of contract law in Latin America.”1  The initial question that arises reading this book is whether such a well-intentioned private project still has the same degree of neces-sity. The problem is not a theoretical oneespecially having in   1. Rodrigo Momberg, The Process of Private Law in Latin America: An Overview, in THE FUTURE OF CONTRACT LAW IN LATIN AMERICA: THE PRINCIPLES OF LATIN AMERICAN CONTRACT LAW (Rodrigo Momberg & Stefan Vogenauer eds., Bloomsbury 2017). 186 JOURNAL OF CIVIL LAW STUDIES [Vol. 13    mind the recent reforms produced with the new Civil and Commer-cial Codes of Argentina and the Civil Code of Brazil, two major players in Latin America, as well as Latin American law’s broad acceptance of the United Nations Convention on Contracts for the International Sale of Goods (CISG), which has now been adopted by 19 countries in the region, leaving aside until today only Bolivia, Haiti, Nicaragua, Panama and Venezuela. Guatemala, which be-longed to the same list until recently, will begin to apply for CISG in 2021. But, more important than the wide acceptance of the CISG, on February 22, 2019, during its regular session held at its headquar-ters in Rio de Janeiro, the Inter-American Juridical Committee (CJI) approved the final version of the Guide on the Law Applicable to International Commercial Contracts in the Americas.2 The Guide takes into account at all times the main existing instruments on the subject of international contracts such as the EU’s Rome I regulation and, in particular, the OAS’ 1994 Inter-American Convention on the Law Applicable to International Contracts (the “Mexico Conven-tion”) and the Hague Conference on Private International Law’s 2015 Principles on Choice of Law in International Commercial Con-tracts (the “Hague Principles”). The provisions of these instruments and even some comments on the Hague Principles are often copied literally in the Guide’s text. It is exciting work, but although ap-proved in 2019, two years after the publication of this volume, the Guide’s antecedents go back as far as 1994 with approval of the Mexico Convention, and they were considered by the book here dis-cussed, as a failed project. Later, Professor Vogenauer, one of the book’s editors, was part of the project initiated in March 2019 by the Hague Conference on Private International Law’s Council on General Affairs and Policy to submit a consolidated draft Legal Guide to Uniform Legal Instruments in International Commercial   2. See Organization of American States Inter-American Juridical Commit-tee, Guide on the Law Applicable to International Commercial Contracts in the Americas (2019), available at https://perma.cc/349J-9Z22.  2020] BOOK REVIEW 187    Contracts, itself a joint project of the Hague, UNCITRAL, and UNIDROIT. In the volume’s first chapter, Rodrigo Momberg begins by stud-ying the process of harmonization of private law in Latin America. One standard structure and vocabulary is in the French Code Civil copied by five Latin American nations and quoted as a source by several more. The Chilean Código Civil prepared by the Venezuelan Andrés Bello was adopted by six other countries of this subcontinent and taken into consideration by other drafters such as the Brazilian Texeira de Freitas. Momberg finds that harmonization (unification) happened in Latin American private law through the codification of principles of private international law, first with the work of the Montevideo Conference of 1888 and the 1926 Bustamante Code, and later with the Inter-American Specialized Conferences on Pri-vate International Law (CIDIP). Beginning in 1975, seven CIDIP conferences drafted twenty conventions, three protocols, two uni-form documents, and one model law. Reviewing the PLACL, Mom-berg, with a clear sense of reality, recognizes that acceptance of PLACL by private parties would require the concomitant consolida-tion of a relevant body of doctrine and case law. Pizarro Wilson, another scholar who took an active part in the project, offers a general introduction to the PLACL. He mentions that one challenge faced by the group was determining which legal culture represents Latin America. He understands that the group moves forward with a text that “respects our traditions.” However, recognizing that the law on contracts in South America varies widely, the author admits that the project’s objective was to offer a model for reforms in those countries that needed it or, in the remain-ing jurisdictions, an inspiration for better solutions for courts. De-spite such good intentions, the group engaged in conflictive discus-sions (such as including in the Principles the concept of cause) that will produce resistance from well-established legal points of view throughout the region. The PLACL did not offer a complement of existing legal instruments applied in the region like CISG, as 188 JOURNAL OF CIVIL LAW STUDIES [Vol. 13    happened with UNIDROIT Principles, and beyond the scholarly in-terest in such a project, it seems that it helps more to determine where conflictive points exist, rather than offering a model or inspi-ration. In chapter 3, Agustín Parise refers to the harmonization of pri-vate Law in Latin America and the emergence of third-generation codes. Parise understands that Latin American participation in a globalized economy requires new solutions and a new generation of codes that must provide a lingua franca for juridical relations. He explains that three generations of codes exist in Latin America: se-cessionistscodes adopted during the post-independence period; differentialsnew codes that projected differentiation among re-gions; and globalistscodes looking to address the realities of new global settings. In Parise’s opinion, harmonization efforts must start in areas with common ground, and from there may proceed to spe-cialized areas of private law. Contract law could provide the first path to achieve the “typical” Latin American flavor, whatever that means. Harmonization efforts such as PLACL must aim to a degree of universality that respects particularities. In the next chapter, Jan Peter Schmidt offers a European per-spective on the PLACL against the background of Latin American legal culture. In the beginning of his contribution, Schmidt recog-nizes that there is no such thing as “the” Latin American private law culture. This comment is a breath of fresh air because, being Latin American, I was beginning to wonder whether I have lost something in the meantime. Schmidt subtly remarks that Latin America had been identified with the magical realism of its literature, the skill of its soccer players, and its history of military coups, but not its legal contributions. Latin American codes have been produced in imita-tion of the codes of the French or Romanistic legal family, and the legal order could be classified as “mixed” because of the coexistence of French, German, Spanish, Portuguese, and Italian ideas within one legal order. The frequent recourse to foreign legal sources does 2020] BOOK REVIEW 189    not follow any clear methodological criteria. It has in fact dimin-ished the value of domestic legislation and reveals a passion in Latin America for quoting foreign authorities. Schmidt produces an excit-ing and intelligent array of examples in support of these conclusions. He accepts that the PLACL might serve as a kind of “background law” which could also help to increase the visibility of Latin Amer-ican jurists. In chapter 4, Gerardo Caffera is concerned with the economic conditions of contracts in South American Law from a historical perspective. He recognizes that the PLACL’s provision on the gross disparity between contractual parties does not match the recent trends in South American legal systems, which have been character-ized by rampant inflation. In the final chapter of the first part, Pilar Perales Viscasillas compares the PLACL with CISG and argues that, considering the CISG’s direct application to the international sale of goods con-tracts, PLACL could be seen instead as a complementary rather than competing instrument. She offers a fascinating series of tables com-paring both instruments; first, offering a general comparison about the origin, the scope of application and issued covered; and then a list of principles and some duties of both instruments. Finally, she compares their main differences concerning the essential elements of an offer, the offer to the public, the withdrawal, revocation, the expiration of the offer, its irrevocability, its acceptance, and a com-parison between the performance and non-performance of contrac-tual obligations. Despite the broader remedies adopted by PLACL, Perales Viscasillas finds that the principles do not provide a solution related to the interest rate in case of non-performance, a frequently debated matter under the CISG. The second part of the volume offers a comparative analysis of the PLACL. In chapter 7, Iñigo de la Maza Gazmuri explores the PLACL’s notion of contract and its essential elements. Interestingly, given a project like PLACL that looks for harmonizing principles of Latin American contract law, de la Maza Gazmuri begins pointing 190 JOURNAL OF CIVIL LAW STUDIES [Vol. 13    out that for PLACL, according to its article 9 consent, subject matter and cause are the essential elements to form a contract. The latter is especially interesting in a project of this nature. Cause as a contrac-tual element, which originated in France but was later erased in the French reform of the Code Civil, was nevertheless resurrected some-how in the new Argentine Civil and Commercial Code (Articles 281 to 283) on juridical acts, while Article 1013 explicitly declares under the title “Necessity”: “The cause must exist in the formation of the contract and its conclusion and subsist during its execution. The lack of cause gives rise, depending on the case, to the nullity, adaptation, or termination of the contract.”3 It will be interesting to follow the Argentine jurisprudence in this sense, and if cause will be inter-preted as “consideration.” Inclusion of cause as an essential element for a contract will be protested and refused mostly in the same coun-tries where supposedly the PLACL was trying to harmonize its rules. Earlier, Rodrigo Momberg analyzed from a comparative per-spective the rules on formation of contract contained in PLACL, and, in his second contribution (chapter 8), he again studies the con-cept of cause in Latin American codes, which was not included in the codes of Brazil, Paraguay, Ecuador, or Mexico. He remarks that some important issues, not usually considered in Latin American civil codes, were not considered by the PLACL. Examples include the letter of confirmation, merger clause, and standard terms, mat-ters that have been analyzed in a substantial body of case-law issued by tribunals and arbiters dealing with CISG. Although Momberg suggests that the matter deserves further attention given that these issues commonly arise in commercial contracts, none of them is fa-miliar in Latin America. Next, John Cartwright analyzes the question of defects in the formation of contracts when the parties are acting under a mistake, or one of them has acted under fraud, pressure, or some other form   3. ARG. CIV. & COMM. C., Art. 1013 (2016). 2020] BOOK REVIEW 191    of misconduct. The PLACL tries to establish a balance of protec-tions for claimant and defendant based on a compromise with the rules contained in the different national traditions and the “soft law” systems found in Europe. In chapter 10, Jean-Sébastien Borghetti studies performance and non-performance under the PLACL. He understands that, compared to the Napoleonic tradition embedded in many Latin American civil codes, the drafters of the PLACL chose to modernize the approach to performance and non-performance. In his opinion, the PLACL shows some interesting diversions from the Code Civil including, for instance, its rules on defective performance or correction of de-fective performance, which were overlooked in the French text but included in the CISG. Borghetti expresses surprise that the PLACL did not consider some issues of importance like the fate of the con-tract when a change of circumstances happens. Sabrina Lanni also deals with the provision of non-performance in the PLACL. In chapter 11, Lanni underlines that the principle of good faith, of the kind found in several Latin American civil codes, dominates the legal content of the PLACL. The new Latin American civil codes also include references to due diligence similar to the ones incorporated into the PLACL. Lanni looks for the pattern of comparison for measuring good faith and due diligence. The PLACL avoids any reference to the standard conduct of a reasonable person. Finally, Hugh Beale offers an outsider’s response to the PLACL, asking seven questions about the PLACL’s purposes, aims, guiding philosophy, and intended users. He recognizes the academic work performed by the PLACL drafters, but he also underlines that sev-eral decisions remain to be made concerning the intended purposes of the PLACL. The book has an appendix with the PLACL text in Spanish and English, as well as a thematic index.  Alberto L. Zuppi 

Rodrigo Momberg & Stefan Vogenauer (eds.), The Future of Contract Law in Latin America: The Principles of Latin American Contract Law

https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?article=1261&context=jcls

Rodrigo Momberg & Stefan Vogenauer (eds.), The Future of Contract Law in Latin America: The Principles of Latin American Contract Law

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