Mixed Jurisdictions Compared: Private Law in Louisiana and Scotland
Contents
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A. Introduction A. Introduction
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(1) Scope of the analysis (1) Scope of the analysis
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(2) Structural differences in the law of contract (2) Structural differences in the law of contract
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B. Impossibility and frustration B. Impossibility and frustration
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C. Comparison: impossibility in louisiana law and frustration in scots law C. Comparison: impossibility in louisiana law and frustration in scots law
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(1) Foreseeability of the event in question (1) Foreseeability of the event in question
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(2) The role of fault and the causal analysis (2) The role of fault and the causal analysis
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(3) The assumption of risk (3) The assumption of risk
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(a) Louisiana law (a) Louisiana law
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(b) Scots law (b) Scots law
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(4) Conclusion (4) Conclusion
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D. Possible congruence? failure of cause and frustration of purpose D. Possible congruence? failure of cause and frustration of purpose
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(1) Cause in Scots law and Louisiana law (1) Cause in Scots law and Louisiana law
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(a) Scots law (a) Scots law
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(b) Louisiana law (b) Louisiana law
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(2) Frustration of purpose in Scots law (2) Frustration of purpose in Scots law
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(3) Comparison (3) Comparison
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(4) Conclusion (4) Conclusion
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E. The consequences of unexpected circumstances E. The consequences of unexpected circumstances
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(1) Louisiana law (1) Louisiana law
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(2) Scots law (2) Scots law
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(3) Comparison (3) Comparison
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F. Conclusion F. Conclusion
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9 The Effect of Unexpected Circumstances on Contracts in Scots and Louisiana Law
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Published:15 October 2009
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Abstract
This chapter analyses the legal rules governing unexpected circumstances in contract law in the mixed legal systems of Louisiana and Scotland. The subject lies at the heart of commercial law, and one of the most interesting issues is likely to be whether the influence of the United States and England, world-leading commercial systems, has been dominant. The subject poses challenges to the comparatist. Louisiana, like many other legal systems, employs more than one legal concept in this area. By contrast, in Scots law, the unitary concept of frustration is applied to all cases. Other obstacles to be overcome include structural differences in the law of contract, and the difficult boundary between unexpected circumstances and error. Despite these difficulties, the chapter concludes that the two mixed legal systems can indeed learn from one another, in particular by drawing on the best parts of the different sources available to them.
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