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Author(s): Justin Sweet

Review by: Justin Sweet
Source: The American Journal of Comparative Law, Vol. 26, No. 3 (Summer, 1978), pp. 482-495
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482 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 26
COMPARATIVE LAW
INTERNATIONALENCYCLOPEDIAOF COMPARATIVE
LAW, Vol. VII: Contracts
in General, Chapter 16: Remedies for Breach of Contract. By Giinther
H. Treitel. Tiibingen: Mohr; The Hague, Paris: Mouton, 1976. Pp. 185 (2
col.)
Reviewed by Justin Sweet*
I
CLOSET COMPARATISTS AND COMPARATIVE LAW
Journals review published works to publicize and evaluate them.
The Journal's request that I review this chapter shows its belief that the
chapter is worthy of notice. But as to evaluation, why request me, at
best an amateur comparatist, to write the review? True, I have injected
comparative materials into my American Contract teaching. I have
taught American law at foreign universities and Canadian law (using
mostly English materials) at a Canadian law school. I can, with much
effort, struggle through Italian legal scholarship. But I have never
taught a comparative law course nor presented learned papers at
comparative law conferences, let alone published scholarly compara-
tive works.
The editor may have to defend this choice to his editorial board and
perhaps to the authors of the work reviewed. But should I have agreed
to review this chapter? A serious review of a chapter in the Internation-
al Encyclopedia of Comparative Law is hard and often tedious work.
My lack of comparative credentials could open me to criticism and be
unfair to the authors.
Taking these burdens and risks into account, I could not justify a
review of this chapter simply to publicize the Encyclopedia to profes-
sional comparatists. The undoubted international reputations of the
contributors and the efficient communication system of the hardy and
well-traveled band of comparatists insure that they will be aware of the
Encyclopedia and that chapters are beginning to emerge.
But I have undertaken to review this chapter because of the un-
doubted parochialism of American law teaching, legal scholarship and
law reform efforts. All these activities involve comparisons. But they
are almost exclusively domestic comparisons. As a rule we are unwil-
ling to make sophisticated comparisons of foreign legal systems. This
denies us a useful analytical tool.
Why do those who are aware of the potentially rewarding foreign
comparative approach refuse to use it? Some are inhibited by perceived
or real foreign language deficiencies. Many have been deterred by the
poor reputation of comparative law in this country. It is thought to lack
* Professor of Law, University of California, Berkeley. I must express my
gratitude to Hartmut Dietrich of the Max Planck Institute in Hamburg for reading
the manuscript and making invaluable suggestions.
1978] BOOK REVIEWS 483
intellectual rigor, often considered trivial and superficial. I have heard

condescending references to useless "panoramic" surveys of the world's
legal systems. Conversely, some comparisons of isolated norms ignore
the framework of which the norm is a part.1 In addition to the perceived
superficiality of some comparisons, some calls for legal transplants
ignore important differences in the political, social and economic in-
frastructures of the compared legal systems as well as differences in
those institutions that operate the system, such as schools, bench and
bar. Finally, some consider it a waste of time to study cosmetic or
anachronistic laws which may not be the law applied in the legal
systems compared.
These criticisms are often justified. Yet my own experiences, both
abroad and in American classrooms, have convinced me that there is
value to a comparative approach and that there are many American law
teachers and scholars, call them closet2 comparatists or comparative
Marranos,3 who would like to broaden and deepen their teaching and
scholarship by examining and comparing other legal systems. I address
myself principally to them. I would like to persuade them of the value of
an intelligent comparative approach. I wish to draw the attention of
this amateur audience to the publication of Chapter 16 (the second
of a projected 17) of Volume VII (of a projected XVII). Volume VII is
entitled Contracts in General; Chapter 16 is Remedies for Breach of
Contract. It is authored in the main by Professor Treitel with a lengthy
contribution by Professor Eorsi. I also hope to show how a comparative
approach can enrich American contract teaching and scholarship.
II
UTILITY OF A COMPARATIVE APPROACH
Comparisons usually reveal that different legal systems handle
similar problems similarly or differently. Trying to determine why
solutions differ or, for that matter, do not, can shed light upon basic
characteristics of the legal systems compared. If one of the systems
compared is your own legal system, you may discover insights into your
own system.
1. In German law, unlike the common law, offers are irrevocable. Yet when
this is proposed for American law, we often do not consider that this offeree
protecting rule is balanced by offeror protecting rules. Under German law dis-
patch will not do. Actual communication of acceptance is needed to conclude the
contract. Also, the duration of the power of acceptance is more clearly limited. The
whole notion of transplanting the German rule of irrevocability seems even less
justifiable when we later find out that customarily German offers are specifically
made revocable. This indicates that the common law rule may not be so bad after
all. See Fuller and Eisenberg, Basic Contract Law 341 (1972).
2. For those readers who may not be acquainted with certain American neo-
logisms the term "closet" is derived from reference to homosexuals who concealed
their homosexuality. Some leaders of the homosexual community urged those
homosexuals to "come out of the closet" and openly declare themselves. The 1970s
saw increasing declarations of this type by prominent persons.
3. Marranos were Spanish Jews who converted to Christianity though secretly
practicing Jewish rituals. They were the victims of the Spanish Inquisition and
ultimately expelled in 1492.
For example, Professor E6rsi discusses Eastern European socialist

countries. He emphasizes the importance of central economic planning
and the absence of a free market. The remedies for contract breach (and
in these countries, at least on paper4 they are quite severe) are designed
to accomplish the central economic plan by coercing performance and
uncovering obstacles to the plan.5 A free market is an essential element
of the money award substitute so common in Western countries. Such a
remedy against a defaulting steel manufacturer will not only be impos-
sible to measure but will not provide the needed steel if the party to
whom the judgment has been awarded cannot buy steel elsewhere. As a
result in socialist legal systems a remedy is needed which coerces the
promised performance rather than awards a money substitute.6 That
these objectives and solutions are not central elements in American law
shows that the latter assumes and supports a free market.
Similarly, the willingness of Western Continental European legal
systems to openly give trial judges discretion in awarding contract
remedies may be traceable to greater confidence in career judges and
their ability to administer open textured civil law codes than one sees in
common law countries.7
Conversely, where results are generally the same, so often the case
in "western" countries whether common law or civilian, we can ap-
preciate that similar economic systems need or generate similar
contract law.
A comparative analysis of legal problems has other teaching values.
Often a comparison dictates a more critical examination of fundamen-
tal assumptions about one's own system. For example, American stu-
dents are taught that we award contract damages to compensate and
not to punish. Yet most continental European countries, particularly
the socialist countries, enforce rigorously clauses which, though de-
scribed as liquidating damages, are designed in part to coerce perform-
ance by the threat of punishing non-performance.8 Students can be
asked whether contract remedies should punish as well as compensate.
Such questions can be asked without reference to other legal systems.
But, the existence of a more penal approach in other legal systems
intensifies such an inquiry.
Finally, one who wishes to improve American contract law should
be aware of attempts of other legal systems to deal with problems that
exist in the American system. For example, the efforts in Sweden,
4. Kurczewski and Frieske, "Some Problems in the Legal Regulation of the

Activities of Economic Institutions," 11 Law and Soc. Rev. 489 (1977).
5. VII Int. Encyc. Comp. Law, ch. 16 ? 223-4.
6. Id. at 190.
7. Id. at ? 99.
8. Id. at 128-142, 227-232. I say "in part" because while the main function of a
clause stipulating the amount of damages in advance is to coerce, there are other
functions. One is to avoid the burden of establishing actual damages and another is
to allow recovery of actual losses which are not recoverable because of damage
limitation rules. Of course, the greater likelihood the amount specified in advance
will be enforced, the clause is more coercive and even more penal if the amount
greatly exceeds the loss which would be recovered in the absence of the clause.
Israel, Germany and England to deal with standard form contracts,

while perhaps not easily transplantable to the United States, deserve
attention.9
III
STRUCTURE OF CHAPTER 16
Professor Treitel of England wrote about Western legal systems.
His contribution constitutes five-sixths of the chapter. The rest was
written by Professor E6rsi of Hungary. He deals with contractual reme-
dies in Eastern European socialist legal systems.
Professor Treitel, after a brief introduction, basically divides affir-
mative contract remedies into what he calls enforced performance and
the substitutional money award. Enforced performance includes those
remedies by which the aggrieved party "obtains as nearly as possible
the actual"10 performance promised by the other party. He includes
within this category remedies American sales law calls an action for
price'1 and the equitable coercive decree of specific performance. But in
civil law enforced performance includes "any process by which the
creditor receives the substance of what he bargains for."12 Treitel, then,
includes not only enforced performance in the coercive "equity" sense
but also those remedies which consist of the cost of curing a defect or a
substitute acquired at the expense of the breaching party. The latter,
Treitel admits, would be considered as damages by a common law
lawyer, and not enforced performance. This simple classification dilem-
ma demonstrates the importance of careful organization and reading of
comparative materials.
9. See Sheldon, "Consumer Protection and Standard Contracts: The Swedish

Experiment in Administrative Control," 22 Am. J. Comp. L. 17 (1974);Bolgar, 'The
Contract of Adhesion." 20 Am. J. Comp. L. 53, 63-64. See n. 15, infra.
In an unpublished study I made of the Israeli Standard Contract Law in 1970 I
concluded that the law had not been very effective. Even with changes in 1969
designed to allow consumer groups to initiate action more easily, not many
contracts were presented to what is called the "tribunal" or "board." Actually in
1970 the chairman was a trial court judge who performed this work on a part-time
basis. Staff was almost nonexistent. An interesting feature was that the other
board members were economists, something we might expect when we consider
that the statute refers to unfair trade practices.
However, the relative infrequency of contracts submitted should not blind us to
the possibility that the law did have some effect. I was informed by the Israeli
Attorney General's Office that they had moderated some of the harsh terms in
apartment purchase contracts by threatening to take the standard contracts to the
board.
I have been informed that the whole concept of administrative review thought
of as such a novel approach was largely unplanned. The principal thrust of the
legislation had been to single out restrictive practices as unenforceable. Those
representing business interests objected to the uncertainty of the law and their
objection was met by creating a board which would give firms an opportunity to
get an advance ruling.
10. ? 7.
11. Uniform Commercial Code [hereafter referred to as the UCC] ? 2-709.
12. ? 9.
After noting the basic remedial objective of compensation, Treitel

states his second broad classification to be substitutional relief in
money. He follows the now well-established Fuller trinity by dividing
compensation into expectation, reliance and restitution interests.13 A
large section is devoted to contractually stipulated payments but unfor-
tunately liability limitations and exculpation are not treated. He
concludes with a lengthy discussion of termination, a fortunate inclu-
sion. The termination discussion includes material which an American
law teacher would classify under conditions, impossibility and frustra-
tion.
Professor Eorsi generally follows this plan but from time to time
and at his conclusion, treats basic distinctions between western and
socialist systems.14
Both authors present legal problems and state solutions under
different legal systems within their respective spheres. In dealing with
continental systems, Treitel cites almost exclusively authoritative
commentaries and codes. When dealing with common law systems he
cites these and reported appellate cases. The treatment of American
sources will be covered in greater detail in V. In addition to published
material Professor Eorsi names legal scholars in socialist countries with
whom he consulted in the preparation of his portion of the chapter.
Treitel's treatment is clearly not encyclopedic. At the outset he tells
us that the legal systems he will discuss in detail are those in which he
can "personally check the original sources." This apparently means
those legal systems which have original sources in English, German or
French. As a result the legal systems emphasized are those of the United
Kingdom, U.S.A., Germany and France. Less but not insignificant at-
tention is paid to other legal systems where English, French or German
is an official language such as those Commonwealth jurisdictions where
English is the official language, and to countries which have German or
French as the or an official language such as Austria, Switzerland,
Belgium or Quebec. A few references are made to other legal systems
such as Sweden, Israel or Italy where English descriptive material
exists.l5
Even in a "Western" sense, the chapter is not truly encyclopedic
13. See Fuller and Perdue, "The Reliance Interest in Contract Damages," 46
Yale L.J. 52, 373 (1936).
14. Id. at ?? 190, 191, 251-256.
15. Unfortunately, this scheme deprives the reader of interesting experiments
by smaller countries such as Sweden and Israel. See n. 9 supra. Also, such a choice
deprives the reader of a look at the most recent European code, the Italian Civil
Code of 1942. See Gorla, "Standard Conditions and Form Contracts in Italian
Law," 11 Am. J. Comp. L. 1 (1962).
I do not mean to suggest that major legal systems never seek new methods of
dealing with problems. Certainly the new German law entitled "Act Concerning
the Regulation of the Law of Standard Contract Terms" is interesting and should
be studied. This law was adopted on 8 December 1976 and became effective on 1
April 1977. The new legislation enacted by the English Parliament last year and
which became effective on 1 February 1978 with its singling out of particular
clauses shows an approach different than the common law tradition. See Eliz. II
1977, ch. 50, titled "Unfair Contract Terms."
Yet often leading legal systems prefer to let other systems experiment.
since it does not encompass all Scandinavian countries, Spain, The

Netherlands or Greece and, as indicated, Treitel makes scant reference
to Italy. Except for an occasional reference to South Africa, Ghana and
to systems in the Indian Sub-Continent, it does not cover legal systems
of Latin American, Asian or Arab countries.
By and large the text, especially Treitel's, is dry, descriptive and
generally uncritical. Fundamental aspects of contract as a legal institu-
tion are not treated. E6rsi's part, which discusses the role of contract in
a socialist system, is more readable.
IV
SOME COMMENTS ON COMPARISONS
As described by Treitel the principal systems compared, those of
common law countries and Western Europe, are roughly similar. Ap-
proaches may vary and results occasionally differ. But the answers are
generally the same. Yet when a legal system operates within a different
infrastructure, such as the socialist law described by Professor Eorsi,
some striking differences appear. For that reason I shall begin with
some observations on Professor E6rsi's part of the chapter. I have
already noted how remedies are affected by central economic planning
and the absence of a free market in socialist countries. Also, remedies
for breach of state enterprise contracts in socialist countries have ob-
jectives which are nonexistent or less apparent in Western legal sys-
tems.'1 For example, socialist law usually requires heavy and often non-
waivable liquidated damages (realistically penalties). Socialist and
contract discipline expect contract law and particularly contract reme-
dies to signal institutional defects which may frustrate the economic
plan.17 This "public law" concept would seem strange to Western eyes
except in a wartime economy. Undoubtedly, American enterprises in-
volved in performance disputes will seek to determine what has caused
non-performance. Yet, Western contract law is not expected to serve
the public law function accorded to it in the socialist systems described
by Eorsi.
On the other hand some differences are more apparent than real.
For example, E6rsi describes socialist cooperation as a general princi-
ple of far-reaching importance. He contrasts this to Western ideas that
the parties must protect themselves.s1 As one illustration he gives the
obligee's implied responsibility to perform all acts required of him to
enable or facilitate the obligor's performance.l9 Yet that illustration of
socialist cooperation would probably be implied in most American
contracts without the need for a "political" principle.20
Eorsi states that what are called liquidated damages, but which to
16. ? 192.
17. Id. at ? 223.
18. Id. at ? 191.
19. Ibid.
20. Lewis-Nicholson, Inc. v. U.S., 550 F.2d 26 (Ct. C1. 1977); Hensler v. City of
Los Angeles, 268 P.2d 12 (Cal. App. 1954).
488 THE AMERICANJOURNALOF COMPARATIVE
LAW [Vol. 26
a common lawyer are really penalties, are not waivable.21 Yet a recent
study by two Polish sociologists indicates a great reluctance on the part
of Polish managers to insist upon their legal remedies.22This may not
mean that the law is different than that officially stated. However, a
failure of parties to follow the law casts doubt upon the desirability of
law, its real importance and the usefulness of any comparisons made
involving that legal system.
Looking at continental systems, the chapter demonstrates that
these legal systems do differ. Generalizations about Continental or
"civilian" law may be misleading. For example, France and Germany
treat liquidated damages and contract termination differently.23
Yet supposed differences between continental systems as well as
the differences between continental and common law systems are more
apparent than real when exceptions and contract autonomy are taken
into account.24 Also, and this is an advantage of comparative law,
revealing supposed differences can demonstrate a fundamental policy
of all systems compared. For example, Treitel shows that while systems
vary in the technique they employ, all employ rules to limit liability.25
As I have stated there are differences between common law and
European legal systems. Both continental and socialist countries, espe-
cially the latter, start with fault as an element of liability and its extent.
Common law countries do not.26This, when coupled with the greater
propensity of European legal systems to enforce contractually
stipulated damages, shows deterrence to be a greater objective in the
latter legal systems.27
While American trial courts have considerable discretion in award-
ing remedies, mainly because of the generality of the rules and limited
appellate review, this discretion is not as broad or open as in continen-
tal countries.28
Flexibility is an important aspect of all Western systems. But the
continental judge can more easily adjust a contract price where there is
defective performance than can his or her common law counterpart.29
Continental legal systems seem more willing to award contract
damages for nonpecuniary losses, such as injury to feelings or reputa-
tion.30 Why this difference? Is it traceable to differences in implemen-
21. ? 245.
22. Supra n. 4.
23. ?? 128-133, 147-153.
24. Id. at ?? 12, 14, 17, 38 as illustrations.
25. Id. at 77-118.
26. Id. at ?? 78-81. This is true even if we take into account the expanded
European definition of fault and the de facto creation of a no-fault liability which
can result under certain codes which put the burden on the performing party
to negate fault under certain circumstances. See German BGB ? 282.
27. Id. at ?? 223-224.
28. Id. at ? 99.
29. Id. at ?? 67-68.
30. Id. at ?? 111-113. But the tendency to allow recovery for emotional distress is
expanding in America. See Crisci v. Security Ins. Co., 426 P.2d 173 (Cal. 1967)
(insured against insurer for failure to settle); McCune v. Grimaldi-Buick Opel Inc.,
206 N.W.2d 742 (Mich. App. 1973) (employee against employer for failure to provide
medical insurance).
1978] BOOKREVIEWS 489
tive legal institutions or in different social values attached to these

intangible interests?
French law presents some interesting variations. A French judge
can award an astreinte, a judgment for performance coupled with an
order under which the judgment debtor must pay a specified amount
for each day he remains in default.31 This is similar to coercive
contempt decrees within the power of an English or American equity
judge. However, in common law systems equitable remedies for
contract breach remedies are rare. Perhaps an American judge should
be able to award a judgment and at the same time order a potentially
recalcitrant judgment debtor to pay it or pay a fine if it is not paid.
? 1184 of the French CC requires a judicial termination of a
contract.32 The many exceptions, most notably a contractual power to
terminate, may mean that in practice French and common law tech-
niques are no different.33 Yet students might be asked why ? 1184 was
enacted. Also, its existence gives a more realistic dimension to discus-
sion of the advantages and disadvantages of a formalized termination
process.
Finally, the French have an interesting way of handling advance
money payments. First they differentiate between earnest money and
part payment. Earnest is further subdivided into those payments which
give rise to a right of withdrawal on certain terms and those which do
not. Under arrangements giving each party the right to withdraw, the
payor who withdraws forfeits the payment. But if the payee withdraws,
he must restore double the payment. There is no further liability to
either party.34
Essentially the French allow the parties to create a tentative
contract under which each party can back out at the risk of a specified
amount being lost. In a jumpy market one party often seeks an "out."
French law allows an "out"-but at a price. This solution also illus-
trates a greater continental tendency toward mathematical formulas.35
Nachfrist is an interesting German concept.36 Termination or dam-
ages cannot be claimed under certain circumstances unless a notice is
given by the creditor to the debtor to perform within an additional
period of time after the contract specified time has expired. Very likely
this concept operates in practice in American law.37 If performance is
not made as promised, it is likely that the aggrieved party will demand
that performance be made within a certain period of time. If it is not,
the aggrieved party will look elsewhere and hold the defaulting party
liable. Such a concept recognizes the importance of bringing to the
31. ?? 24-28.
32. Id. at 147.
33. Id. at 148.
34. Id. at ? 138.
35. See also id. at ? 102.
36. Id. at ? 11, 149.
37. For example the Am. Inst. Architects in its Document A 201, a Standard
General Conditions for Construction Contracts, creates a Nachfrist for any type of
termination. See ? 14.2.1. For a case implying a "Nachfrist" see Di Vito v. U.S., 413
F.2d 1147 (Ct. Cl. 1969).
other party's attention the seriousness of delayed performance. This

should encourage performance and avoid termination.
V
AMERICAN SOURCES
Treitel's text contains some 1,300 footnotes of which some 300 deal
with American law. Also, as noted earlier, sources used to describe
Continental law are authoritative texts, codes and an occasional case.
Treitel knows that each state in the American federal system makes
its own contract law. How has he dealt with this? He cites to Corbin's
sections 151 times. He cites state statutes 113 times. This is misleading
since, except for 20 citations, states whose statutes are cited are the five
states where the Field Civil Code was adopted in whole or in part. He
cites to sections and comments from the Uniform Commercial Code,
mainly Article 2, 104 times.38 American cases are cited 81 times. Of
these eight were decided before 1900 and 49 between 1900 and 1950.
Twenty-two were opinions by intermediate appellate or trial courts.
Treitel cites the Restatement of Contracts (lst) 11 times, to periodical
writing 4 times and to Uniform Acts 3 times. (The Sales Act has been
displaced by the UCC. The Declaratory Judgments Act has been adopt-
ed in 40 states and Puerto Rico. The Consumer Credit Act has been
adopted in 9 states.) Treitel cites treatises other than Corbin twice and
one federal statute.
Clearly, Treitel cannot be expected to do more than paint with a
broad brush. Also, we must assume a general uniformity in American
contract law, although less in remedies and termination. Yet what type
of brush did he use? Were better choices available? As the number of
citations demonstrates, Treitel described American contract law
through the eys of Arthur Corbin supplemented by American Sale of
38. A thought. Why do we teach courses in law school which treat the sale of
goods either as a separate course or part of a commercial law course when we do
not as a rule offer courses in construction or building law? Similarly, why do
comparatists spend much of their time on the sale of goods and not the construc-
tion of projects?
As to the first I suspect it relates to the existence of codifications such as the
Sales of Goods Act or the Uniform Sales Act. Codifications, to the extent they exist
in construction law, occur through standard contracts, a more private lawmaking
mechanism.
Also, carving out a portion of contract law for a special course in sales may
have in some way have related to the existence of a standard treatise on sales and
the absence of anything similar on construction law. Of course, the existence of the
standard treatises may in some way be traceable to codification.
This may explain why construction contracts play such an important role in
first-year contract teaching.
As to the second question, goods contracts have a more international flavor
than the more locally oriented contracts. At least until the move into Europe of
American companies after the Second World War and even more the current
scramble for petro dollars in the Middle East, building was largely local. We rarely
hear the need for harmonization of building contracts. This I suspect also shows
the close connection between comparative law and the more internationally orient-
ed movement of goods.
Goods law. Should Treitel, completing his chapter in 1972 and making
some footnote references as late as 1975, have relied so heavily upon
Corbin?
Corbin's major writing spanned over half a century. His multi-
volume treatise was published in 1950 and was often based upon his
earlier periodical writing. He divided 4 of the original 8 volumes into 8
volumes between 1960 and 1964. Up to the mid-1960s he wrote annual
pocket supplements. Yet a reading of his post-1950 work reveals that
Corbin did not essentially change the thrust or scope of his treatise. The
pocket supplements added cases decided after original volumes had
been published, especially those which cited Corbin. While he did write
some new text and occasionally confessed error,39 essentially the Corbin
that Treitel cites 151 times drew upon the American case law before
1950.
Let me express my undiluted admiration for Corbin's treatise. He
brought needed realism to the increasingly unsatisfying conceptualism
of Williston. But he paid scant attention to statutes except for an
occasional and sometimes grudging reference to the Uniform Commer-
cial Code. He was a strong believer in autonomy and did not address the
problems mass produced contracts had brought us. Except in tradition-
al "common law" areas, such as penalty clauses, his work did not focus
sharply upon judicial control over autonomy. And it is in the area of
contract remedies that increased judicial intervention40 and legislative
efforts41 have been directed.
39. 3A Corbin, Contracts [hereafter referred to as Corbin] ? 580 (Supp. 1971).

40. Henningsen v. Bloomfield Motors, Inc., 161 A.2d 69 (N.J. 1960). Since I would
also include total exculpation as a remedial contract control, I would include Tunkl
v. Regents of the Univ. of Calif., 383 P.2d 441 (Cal. 1963), a case in which a court
struck down a clause by which a hospital sought exculpation from its patient.
A court recently struck down an absolute power of termination in gasoline
station franchise contracts in Shell Oil Co. v. Marinello, 307 A.2d 598 (N.J. 1973). A
Shell dealer was unsuccessful in an action controlled by Michigan law in Russell v.
Shell Oil Co., 382 F. Supp. 395 (E.D. Mich. 1974) affirmed without published opin-
ion, 497 F.2d 924 (6th Cir. 1974). A trial court refused to sustain an argument by a
liquor dealer that the franchise termination clause was unconscionable in Fleisch-
mann Distilling Corp. v. Distiller Co. Ltd., 395 F. Supp. 221 (S.D.N.Y. 1975). In the
latter case the parties appeared to be better able to protect themselves than in
gasoline franchise agreements.
Recently the discharge of a high level executive of General Motors was fol-
lowed by legal action by the discharged employee based upon improper discharge.
Very likely there was no express employment contract in this case. Instead there
were likely company rules relating to employment practices. The claim by the
employee here will very likely be based upon an attempt to limit any unfettered
power to terminate the employee by the standard of good faith. See Wall St. J., 7
Oct. 1977, pp. 1, 31.
41. The most prominent federal examples are the Day in Court (automobile
dealers), 15 U.S.C.A., ? 1221 et seq. and the Magnuson-Moss Acts (warranties), 15
U.S.C.A. ? 2301 et seq. Many states have legislation on dealer franchises. See N.J.
Stat. Ann. 56.10-1, et seq. and Cal. Veh. Code Ann. ? 3060 et seq. Similar state
statutes on consumer warranties are becoming more common. See Cal. Civ. Code
Ann. ? 1790 et. seq.
The California statute dealing with automobile dealer franchise termination
was recently held unconstitutional because four of the nine members of the board
passing upon the fairness of the cancellation were required to be auto dealers. See
American Motors Sales Corp. v. New Motor Vehicle Board, 69 Cal. App. 3d 983
(1977).
Was the legislative gap filled by the Uniform Commercial Code?

Unlike the more comprehensive coverage of European codes, it governs
only the sale of goods. It does not govern loans, dealer franchises, or
contracts dealing with employment, construction,42 family matters or
transportation. As a commercial code its major objective was not the
control of oppressive bargaining power, a goal reflected in legislative
enactments r-gulating remedies.43 While it has been used by analogy,44
this is a technique generally undeveloped in American law. Perhaps the
Code influence in the Second Restatement of Contracts, in the process
of being drafted, will change this. Yet for now emphasis on the Code
cannot be regarded as a surrogate for state legislative activity in the
area of contract remedies.
I have suggested that there has been increased judicial intervention
in these matters. The cases cited do not reflect this. They are cited to
support textual statements which do not deal with this sort of judicial
activism. Nor can the 11 references to the Restatement of Contracts
published in 1932 cure this deficiency. In any event, Restatement sec-
tions dealing with remedies and termination were heavily influenced by
Corbin himself. The Second Restatement material on termination was
published when Treitel wrote. Unfortunately, the material on Remedies
has not even yet been published.
What else could Treitel have done to make his description of
American law more current and more accurate? He could have consult-
ed other treatise writers. Perhaps more important, he could have ex-
amined the vast periodical writing which would have directed him to
increased judicial and legislative intervention into contract remedies.
He would have discovered consumer warranty legislation and legisla-
tion protecting holders of dealer franchises.45 Gaps were avoidable.
There is another gap about which I wish to comment but one for
which Treitel cannot be faulted. While he made occasional references to
contracting practices,46 they were largely ignored. Any description of
any legal system which does not refer to contract drafting practices is
incomplete. Information on such practices is difficult but not impossi-
ble to gather. In the construction field, forms published by the Ameri-
can Institute of Architects are easily obtained and examined. Despite
42. Subcontracts require a determination of what predominates, labor or
goods. See Bonebrake v. Cox, 499 F.2d 951 (8th Cir. 1974). A case denying applica-
tion of the U.C.C. found a common law warranty of fitness in a subcontract in the
design and installation of an electrical system. Air Heaters, Inc. v. Johnson Elec.
Co. 258 N.W. 2d 649 (N.D. 1977).
43. To be sure the Code's explicit recognition of good faith expressed in ?1-203
and its muted recognition of unconscionability expressed in ?2-302were important
concepts which could police unfairness. Yet despite the separation of "merchants"
from others, the Code was not a consumer protection act. See ? 9-203(4). Nor did it
venture much into unfair bargaining in the commercial world, something legis-
lators have been increasingly willing to do. See n. 41 supra.
44. Transatlantic Financing Corp. v. U.S., 363 F.2d 312 (D.C. Cir. 1966). See also
Air Heaters, Inc. v. Johnson Elec. Co., supra n. 42 for a case where the Code, though
held inapplicable, may have had some influence.
45. Supra n. 41.
46. ? 68.
increased judicial and legislative intervention, there is still a large

residue of autonomy making drafting practices of great importance.
VI
SOME MINOR CORRECTIONS
As I have stated, on the whole Treitel was quite accurate in his
description of American law. But permit me to offer some corrections,
most minor or matters of emphasis. I would not be as quick to dismiss
the self-help remedy. While self-help has become less popular,47as legal
procedures and remedies become complicated, cumbersome and costly,
contract provisions increasingly stipulate self-help remedies. Self-help
is important in car repossessions,48 landlord-tenant relations49 and
some aspects of construction contracts.50
Treitel is only partially correct when he states that civil fines for
contempt are paid to the state and not to the private party instituting
the contempt action. In many states and the federal system civil fines
for contempt are paid to the aggrieved party as compensation if the
latter has suffered losses because of the failure by a party to comply
with the court order.51
Professor Treitel states that there is an increasing use of specific
performance.52While the Uniform Commercial Code53may have opened
this remedy somewhat and while some commentators have suggested
that this remedy ought to be used more frequently,54Treitel's observa-
tion exaggerates the increase in use of this remedy.55
Treitel states, correctly, that punitive damages are not awarded for
breach of contract.56But among the exceptions he does not include the
now common, at least in California, recoveries against insurance
companies for "tortious" contract breaches. Perhaps Treitel cannot be
faulted too much for this as the manuscript was completed in 1972.
While this development began in 1970,57most of its development, main-
ly in California, has come after 1972.58
47. Jordan v. Talbot, 361 P.2d 20 (Cal. 1961) (self-help clause in lease not en-
forced).
48. See Symposium, "Creditors' Rights," 47 So. Cal. L. Rev. 1-164 (1973) which
dealt at length with self-help repossession of automobiles. Also, see UCC ? 9-503.
49. In Brooks v. LaSalle Nat. Bank, 298 N.E.2d 262 (Ill. App. 1973) a locked out
tenant obtained a temporary injunction restoring his possession to the apartment.
50. The General Conditions published by the American Institute of Architects
gives the owner the right to take material and equipment of the contractor upon
termination. See AIA Doc. A 201 ? 14.2.1.
51. Dobbs, Remedies 99 (1973).
52. ? 35.
53. UCC ? 2-716.
54. 5A Corbin ? 1172 (1964); Note, 47 N.D. Lawyer 1025 (1972).
55. Such expansion as there is has come in enforcement of arbitration awards
which include orders to perform. See Grayson-Robinson Stores, Inc. v. Iris Const.
Corp., 168 N.E.2d 377 (N.Y. 1960).
56. ? 45.
57. Fletcher v. Western Nat. Life Ins. Co., 10 Cal. App.3d 376 (1970). The Index to
Legal Periodicals shows that this case was annotated five times in 1971 and 1972.
58. See Silberg v. Cal. Life. Ins. Co., 11 Cal.3d 452, (1974).
Treitel states that an accepted measure of recovery for breach of a

construction contract is a pro rata portion of the contract price.59 His
authority, an 1893 case,60 has not had much impact on court decisions.
I cannot agree with Treitel's conclusion that in common law sys-
tems breaches which consist of unexcused performance delay are
treated no differently than other breaches.61 Power to terminate62 and
the freedom to stipulate or deny delay damages63 are illustrations of
different treatment for delay.
Treitel seems obsessed with the possibility that the parties in a
losing contract will assert grounds to terminate in order to use a restitu-
tion theory under which they can recover the reasonable value of the
performance rendered.64 However, it is more likely that the party is
unaware of this possible bonanza until informed by his attorney. More
likely termination is asserted in losing contracts because continued
performance will certainly mean more losses. True, a partial motivation
can be the possibility of salvaging something with some sort of claim.
Perhaps we should be wary of claims of a right to terminate made by a
party who has made a losing contract. Also, perhaps we should change
the restitution "break even" rule. But Treitel, I think, overstates legal
theory as motivation.
I do not think that American landlord-tenant law can be said to
follow the traditional doctrine of independent covenants when the
breach is a promise to repair or maintain.65 While some states still cling
to the old rule, most recent case law and legislation do not.66
59. ? 64.
60. Kehoe v. Rutherford, 27 A. 912 (N.J. 1893). There are substantial differences
in the English and American legal systems regarding the value of appellate court
decisions as case precedents. In England, with, excluding Scotland, one unified
jurisdiction and nothing like the volume of reported appellate cases that are found
in the United States of America, every case precedent seems to count. This often
leads to the convoluted and tortured attempts by English judges to fit every case
into a logical scheme.
In the U.S., with its wealth of jurisdictions and its hundreds of thousands of
reported appellate cases one cannot confidently assume that a reported appellate
case even though never overruled can be considered as stating the law. This is even
true in those jurisdictions where only a portion of the cases are actually reported. It
takes a certain sophistication to deal with this vexatious problem. Trends must be
discovered and the persuasiveness of particular jurisdictions and even particular
judges must be taken into account. I doubt that any American lawyer would read
the Kehoe case and be confident that it stated American law.
61. ?? 76, 153.
62. The first Restatement of Contracts analyzed materiality of breach in ?? 275
and 276. The latter dealt with delay while the former dealt with all other types of
breaches.
63. Bethlehem Steel Corp. v. City of Chicago, 350 F.2d 649 (7th Cir. 1965); W. C.
James, Inc. v. Phillips Petroleum Co., 485 F.2d 22 (10th Cir. 1973).
64. ?? 146, 169, 171, 191.
65. Id. at ? 175.
66. Increasingly implied warranties of habitability are created by statute and
by case decision. The older property oriented rule of caveat emptor has been
supplanted by the contract concept of reasonable expectations. See Javins v. First
Nat. Realty Corp., 138 App. D.C. 369, 428 F.2d 1071 (1970). Similarly, the old proper-
ty rule of independent covenants is being swept aside by contract concepts of
materiality of breach. See Green v. Sup. Ct., 517 P.2d 1168 (Cal. 1974). While the
VII
CONCLUSION
The authors deserve our praise. They have undertaken an im-
portant and difficult task. Despite the criticism I have made, and it is
mostly that of omission and not commission, the chapter makes a
significant contribution to comparative law. Those American contracts
teachers who wish to use a comparative approach should read Chapter
16, and other chapters in the International Encyclopedia of Compara-
tive law as they are published.
AN INTRODUCTION LAW. By Konrad Zweigert and Hein

TO COMPARATIVE
Kotz. Translated by Tony Weir. Amsterdam, New York, Oxford: North-
Holland Publ. Co., 1977. Vol. 1 (pp. xvii, 385); vol. 2 (pp. xvii, 379).
Reviewed by John G. Fleming*
Max Rheinstein in 1973 ended his review of this remarkable work,

Einfiihrung in die Rechtsvergleichung, with an urgent plea for its
translation from the German into other world languages.1 Miracu-
lously, that appeal has now been fulfilled, moreover at the hands of so
accomplished a scholar and stylist as Tony Weir of Trinity College,
Cambridge-truly, a Boswell to Zweigert and K6tz's Johnson.2
The original publication of this work in 1969 and 1971 was so
widely acclaimed around the world that it would be supererogatory to
add to this chorus yet another full-blown review.3 Its uniqueness lies
not only in the authors' wide range of scholarship, but more particu-
larly in the ambitious and unprecented concept of the work itself. The
first volume, it may be recalled, addresses the traditionally central
subject of the "legal families" of the world: their distinctive "style"
being a product of historical origin and development, prevailing legal
processes, special characteristic legal concepts, legal sources and
methods, and ideology. By these criteria, the authors identify the
Romanistic, Germanic, Nordic, Common Law, Socialist, Far-Eastern,
Islamic and Hindu systems (two more than Rene David who consol-
latter case was in 1974, any study of the periodic literature would have shown this
to be predictable. See 2 Powell, Real Property, ? 225(2)(1977)for a thorough treat-
ment.
* Editor-in-Chief.
1. 37 RabelsZ 135, 142 (1973).
2. The fate of these co-authors has since been further intertwined by Professor
Kotz's recent appointment as one of the triumvirate to succeed Professor Zweigert
as director of the Max-Planck Institute for Comparative and International Private
Law, Hamburg.
3. See in our Journal the review of vol. 1 by Harry Silberberg (21 Am. J. Comp.
L. 772), of vol. 2 by Vera Bolgar (ibid., 782). However, we have found no review in
any British journal.

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intellectual rigor, often considered trivial and superficial. I have heard

For example, Professor E6rsi discusses Eastern European socialist

4. Kurczewski and Frieske, "Some Problems in the Legal Regulation of the

Israel, Germany and England to deal with standard form contracts,

9. See Sheldon, "Consumer Protection and Standard Contracts: The Swedish

After noting the basic remedial objective of compensation, Treitel

since it does not encompass all Scandinavian countries, Spain, The

tive legal institutions or in different social values attached to these

other party's attention the seriousness of delayed performance. This

39. 3A Corbin, Contracts [hereafter referred to as Corbin] ? 580 (Supp. 1971).

Was the legislative gap filled by the Uniform Commercial Code?

increased judicial and legislative intervention, there is still a large

Treitel states that an accepted measure of recovery for breach of a

AN INTRODUCTION LAW. By Konrad Zweigert and Hein

Max Rheinstein in 1973 ended his review of this remarkable work,

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