Resumo de Breach Of Contract - Harald Halbhuber,

This is a revised version of a paper delivered in the
University of Poitiers on 29 April 2000 at a European
Colloquium organized by the Academy of European Law. The
purpose of the author is to outline the Scots law on breach
of contract, explain how it developed its rules, and what he
sees as problems with the existing rules. There is some
emphasis on the extent to which Scots adapted some, but not
all, of the rules of English Common Law.
This book argues that the systems theory of Niklas Luhmann
prepares the ground for a genuinely sociological theory of
human rights. Through a presentation of Luhmann?s work on
human rights, it describes the historical and sociological
processes that make visible why human rights emerge as a
central feature of modern society. It is argued that the
emergence of fundamental freedoms and human rights can be
related to the dominant structure of modern society, that
is, functional differentiation. Human rights are considered
as a social institution, whereby modern society protects its
own structure against self-destructive tendencies.
The book explores the role national doctrinal structures
have played in preventing freedom of incorporation in
Europe. The article develops this analysis as a case study,
focusing on the reception of European legal materials in one
country, Germany. Contributions from other Member States are
also discussed, but only as background and contrast rather
than as additional fields of inquiry. Among other things,
the article argues that lawyers in the Community?s single
largest jurisdiction misread crucial case law of the
European Court of Justice for over a decade. As a possible
explanation of such and other misunderstandings, the article
suggests that those lawyers approached European legal
materials with the conceptual framework of their national
private law doctrine.
The author?s argument is that international law is not only
a foreign story but it is part of our national story. So
those charged with relating the story of international law
in Canada are best analogized to storytellers, rather than
to translators. Like most storytellers, they are preoccupied
with questions of identity and social relationships.
The author suggests that law is best represented,
understood, and taught in the form of open-ended,
defensible, normative, conditional propositions. The
meaning, role, and significance of defeasibility is
explained by presenting three ?canonical forms? and by
distinguishing exceptions and overrides.
Finally, it is argued that the compatibility of students?
rules with student?s human rights may be relevant to review
in contract law as well as in public law as a result of the
very inclusive nature of the grounds of this review.

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