Festskrift til Mads Bryde Andersen (1. udg.)

Med dette festskrift hylder en række kolleger inden for den akademiske og praktiske juridiske verden professor, dr.jur. Mads Bryde Andersen i anledning af hans 60 års fødselsdag den 25. september 2018. Hyldesten tilfalder en person ud over det sædvanlige. Allerede doktordisputatsen »Edb & ansvar« fra 1989, skrevet på lidt over to år, dokumenterede de kvalifikationer, der kendetegner Mads: fremragende analytiske evner, en enorm arbejdskapacitet, stor intellektuel nysgerrighed og en evne til ny og original juridisk tænkning. Disse evner har gjort Mads til en af sin generations mest markante jurister og har resulteret i et omfattende forfatterskab og praktisk virke.

2 In making a decision under paragraph (1), regard shall be had to the circumstances existing at the time the contract was concluded, the terms of the contract and subsequent circumstances.

At the suggestion of my Contracts instructor, I noted this new rule in the margin of my textbook (alongside the prior version of § 36). Indeed, since hardly a week had passed since I learned the main rule that that ‘promises and contracts are binding,’ I was tempted to scribble a few more words in margin, maybe something like this:

In Denmark, since 1975, reasonable promises and contracts are binding.

That, however, would have overshot the mark, not least because the new § 36 was mainly intended for application in consumer contract contexts. On the other hand, the text of the General Clause is indeed general: it clearly covers all kinds of contracts, and it was therefore understandable that its advent sent a few nervous shivers down the backs of foreign merchants whose contracts might be subject to Danish law. ⁹⁵⁰950. Regarding the rules which govern the applicable contract law in Denmark, see generally Joseph Lookofsky and Ketilbjørn Hertz, EU-PIL: European Union Private International Law in Contract and Tort (2^nd ed. 2015), Ch. 3.

These Danish General Clause recollections take me even further back, to 1967, when, as a first-year student at NYU Law, I learned about § 2-302 of the Uniform Commercial Code (UCC) – a rule which, in pertinent part, provides:

1 If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result. ⁹⁵¹951. Paragraph (2) of § 2-302 provides: ‘When it is claimed or appears to the court that the contract or any clause thereof may be unconscionable the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose and effect to aid the court in making the determination.’