This thesis involves an exploration of separate personality, limited liability and their exceptions within 'the UK and China. Both practical experience from history and academic literature indicate that separate personality and limited liability are best treated as essential rules for accelerating economic development. They overweigh other alternative rules in most circumstances. However; due to the disadvantages of separate personality and limited liability, extreme employment of both can induce abusive activities, which ultimately deter economic development. In order to guarantee the appropriate usage of separate personality and limited liability, occasional exceptions to separate personality and limited liability are necessary.

This thesis is an assessment of the position of English, American, French and German law, UN Convention on the International Sale of Goods (CISG), the UNIDROIT Principles of International Commercial Contracts and Principle of European Contract Law (PECL) regarding the problem of economic hardship in performance of contracts. As such, it has four aims: first, to establish a comprehensive concept of economic hardship; second, on the basis of the concept of economic hardship established, to examine this concept in the four main legal systems to determine the extent to which they recognise this problem and what kind of legal consequences they consider for it; third, by a comparative approach, to consider and explore the points of convergence and divergence between the legal systems under study; and, fourth, by examining some international and regional laws and models to find out how non-domestic laws and models have treated the issue. In relation to the first aim, after establishing that a general theory of hardship is needed, it is argued that economic hardship occurs when, as a result of unforeseen and unforeseeable supervening events for which none of the parties is responsible and could not have been avoided the consequences, the performance of the contract has become excessively onerous and the original equilibrium of the contract has been fundamentally altered. In relation to the second aim, different conclusions are reached in the four legal systems being studied: in English law, although the doctrine of frustration by its dominant test of ‘fundamental change’ is theoretically applicable to cases of economic hardship, in practice, English courts have rejected the notion that hardship can be regarded as a ground for excuse for non-performance of the contract. In American law, the modern doctrine of commercial impracticability has recognised the problem of economic hardship. However, in practice American courts have been unsuccessful in properly applying this doctrine to cases of economic changes in contracts. French law has only accepted economic changes as a ground for revision in administrative contracts under the doctrine of <i>imprévision. </i> The German doctrine of frustration has played a broader function compared to that of other legal systems; German law has recognised the problem of economic hardship as a ground for excuse of non-performance of the contract in its case law and also in its recently revised Civil Code. In relation to the third aim, it is submitted that CISG, an international convention for international sale of goods, has not adopted the concept of economic hardship, and impossibility is the only ground for the exemption rule under Article 79 of CISG. However, the two modern models UNIDROIT Principles and PECL have properly recognised the problem of economic hardship and anticipated appropriate solutions for it. Although the presence of a concept of economic hardship is needed as a general guidance in changed economic circumstances, it is concluded that the most peaceful way to deal with the problem of economic hardship is to provide express causes at the time of conclusion of the contract.

Despite ever growing international trade and dispute settlement, a consistent international methodology of uniform private law has yet to be formed. This is needed in order to encourage the use of existing uniform transnational law rules specifically designed for application to international commercial contracts. This study examines uniform contract law in legal methodology and considers the barriers which exist toward it in modern nation states. It explores ways in which these barriers can be overcome and considers whether it is thereby possible to create a specific methodology of international contract law. Through exploring these three areas, this thesis intends to distinguish and analyse the main obstacles to the application of uniform contract law. The study is therefore organized into three sections, each exploring one of those methodological obstacles and providing solutions for overcoming them. Part One discusses the barriers erected by traditional theories of contract law. Part Two addresses the attitude taken by national lawyers when applying uniform law and enquires how this attitude is formed. This section also asks why this attitude provides an obstacle to the success of uniform law and considers ways in which it could be changed. Part Three, the third and final section considers the treatment of uniform contract law in the context of conflict of laws. This section also asks how seemingly opposite positions in the modern and traditional theory of private international law can be reconciled and considers the ways in which uniform contract law can be applied within a domestic law context as lex contractus. The author argues that the points of resistance identified can be tackled by developing an autonomous methodology of interpretation of transnational contract principles; and, by treating model sets of transnational contract principles as a form of lex specialis. Overall, the thesis seeks to demonstrate that the potential of the UPICC has not yet been fully recognised, and that barriers to such recognition are not insurmountable.

In 2001 the European Commission began a far reaching consultation to ascertain whether obstacles arise for the proper functioning of the internal market and for crossborder trade from the existing divergent and fragmentary state of European contract law at the EU and national levels. This question was answered in the affirmative. Action was needed to simplify the regulatory environment for cross-border trade; to provide businesses and consumers with a single, comprehensive, and directly applicable contractual framework for cross-border transactions in the internal market. This thesis offers a solution to the current obstacles to cross-border trade on the basis of the Commission’s principal proposals for future action; the review of the acquis communautaire, the creation of a Common Frame of Reference, and the adoption of optional instruments of European contract law. It undertakes a chronological and critical assessment of the proposals and progress to date, in order to determine the most appropriate way forward for European contract law. It seeks to do so against a wider debate which highlights the economic, socio-cultural and political issues and interests which bear on the suitability and desirability of the Commission’s proposals and which must be accommodated within the final response. It also draws on existing examples of trade regulation, in particular, harmonised instruments, which share the objective of facilitating cross-border trade, at the international level. Such examination assists the understanding of the regulatory approach that must be taken to European contract law, and more particularly determines the extent to which the objectives of action at the European level can be realised within the internal market. It is against this background, and at a time when the EU is looking to the internal market, and the facilitation of cross-border trade as a means for Europe to emerge from economic crisis, that this thesis presents necessary action for the immediate development of the European contract law project. It concludes that the adoption of optional instruments present the most appropriate way forward. This is not, however, an absolute solution. The review of the acquis and the resulting proposal for a Consumer Rights Directive has an integral part to play moving forward. In search of coherence and consistency in European contract law however the CFR, both as a legislative toolbox and basis for the optional instruments, must underpin the future regulatory response. It is clear that all three of the Commission’s proposals must figure in the way forward.

La protection de l’environnement et le contrat de droit privé apparaissent tantôt antinomiques, tantôt complémentaires. En tant qu’instrument juridique des activités économiques, le contrat concourt à la crise écologique. Cette crise menace la pérennité des conditions d’une vie développée sur terre pour les générations présentes et futures. L’objectif de développement durable requiert l’élaboration d’un ordre public environnemental permettant de contrôler la conformité du contrat de droit privé à la conservation de l’intérêt environnemental.Induisant l’existence d’un ordre public environnemental de la multitude de règles impératives de protection de l’environnement, nous proposons une théorie générale de l’ordre public environnemental ainsi que son articulation avec le contrat de droit privé.Cette dernière révèle que si la validité du contrat de droit privé est conditionnée au respect de l’ordre public environnemental, la bonne réalisation de l’ordre public environnemental est conditionnée à la reconnaissance de la fonction environnementale du contrat. / Protection of the environment and the contract appear to be sometimes contradictory, sometimes complementary. As a legal instrument for economic activities, the contract contributes to the ecological crisis. This crisis threatens the sustainability of the conditions for a life developed on earth for present and future generations. The objective of sustainable development requires the construction of an environmental public policy to control the conformity of the private law contract with the conservation of the environmental interest.Inducing the existence of an environmental public policy from the multitude of mandatory environmental protection rules, we propose a general theory of environmental public policy and its articulation with the private law contract.The latter reveals that while the validity of the private law contract is conditional on compliance with environmental public policy, the proper implementation of environmental public policy is conditional on recognition of the environmental function of the contract.

When and why can parties escape from a contract on the ground that the price is unfair? This question is considered in a comparative and historical perspective in English and French law. The general rule in both systems is that the parties are free to determine the price and they are then bound by their contract. One well known exception in French law, which derives from Roman law, is Article 1674 of the Code civil which allows a vendor to rescind a contract for the sale of land if the price agreed in the contract is less than five-twelfths of the fair price. It is generally thought that there are no analogous rules in English law. However, the law on this subject is in fact considerably more complex and more colourful than this simple contrast would suggest. Numerous rules on unfair prices in contracts were created in French law by the legislature and the courts since the promulgation of the Code civil in 1804. In English law, courts intervened in contracts on the ground of an unfair price in a few instances in the nineteenth century. However, only the rule on unfair prices in salvage contracts has survived until today. In both systems, the policies of preserving family wealth, protecting weak parties and giving special treatment to certain parties for economic, political, social or cultural reasons underpin these rules. There are two principal conclusions. First, freedom of contract is much less extensive in French law than in English law. This is evident in the numerous rules on unfair prices in contracts in French law and in the primacy of the remedy of altering the price rather than rescission. Secondly, while in theory, French courts play a much less significant role than English courts in the development of law, the creation and abolition of certain rules on unfair prices in contracts by French courts shows that judicial creativity in French law can be much less constrained in practice than in English law.

It is generally accepted that the award of contract damages in English law is governed by the expectation principle. This principle provides that following an actual or anticipated breach of contract the innocent party is entitled to be put into the position that he or she would have occupied had the contract been performed. There is significant ambiguity over what ‘position’ means in this context. The conventional understanding of the expectation principle is that it stipulates the appropriate measure of loss for an award of compensation. This thesis challenges this understanding and proposes a new performance-oriented account of awards given in accordance with the expectation principle. The thesis is in two parts. Part I outlines and challenges the orthodox understanding of awards given in accordance with the expectation principle. Chapter One outlines the orthodox account, and explains the traditional interpretation of loss in this context. Chapter Two mounts a doctrinal challenge to the orthodox account, demonstrating the existence of many awards for breach of contract that do not reflect the actual loss suffered by the innocent party. Chapter Three highlights the conceptual difficulty of the orthodox account and outlines the problems with conventional terminology, proposing stable definitions for important legal concepts. Part II advances an alternative account of contract damages that draws a distinction between two different kinds of money awards. The first is an award substituting for performance. The second is an award compensating for loss. Chapter Four outlines the account’s foundations by defending the existence of the right to performance and the existence of the proposed distinction. Chapter Five explains the quantification and restriction of money awards substituting for performance. Chapter Six explains the nature of money awards compensating for loss. Finally, Chapter Seven defends English law’s preference for awarding monetary substitutes for performance rather than ordering specific performance.

La présente étude se propose de théoriser la pratique de l’entrée payante dans le contrat. Elle peut être envisagée comme l’obligation monétaire préalable et déterminante imposée à l’une des parties, conditionnant la conclusion d’un contrat. La réunion sous ce seul vocable d’un certain nombre d’obligations précontractuelles permet de dégager une vision unitaire de la question, avant de s’attacher à leurs particularités. L’entrée payante connaît, de fait, diverses manifestations et ses justifications le sont tout autant. « Engagement » ou « supplément », la validité de ces obligations interroge nécessairement au regard du principe de la liberté contractuelle. Si l’on ne peut nier l’existence d’instruments juridiques susceptibles d’en assurer le contrôle, ce dernier demeure néanmoins non efficient. Dès lors, doit être sérieusement envisagée la création d’une norme générale encadrant ces pratiques. / This study intends to theorize the application of admission charge into contracts. It can be regarded as a preliminary and decisive monetary obligation imposed upon one of the parties, determining the finalization of the contract. The union of several pre-contractual duties under this sole term allows to put forward a unified vision of the question before going into particularities. De facto, admission charge is subject to various manifestations and so are its justifications. «Engagement» or «supplementary» pre-contractual monetary obligation issues continue to arise regarding the validity of these obligations in accordance with the principle of freedom of contract. While there can be no denying the existence of legal instruments likely to ensure its regulation, it remains inefficient nonetheless. Henceforth, creating a general standard to regulate such practices ought to be seriously considered.