May 12, 2010

Form of contract

If we consider the term “contract” there is nothing more easy to give as an example as a simple sale. It is seen as a common sight of a general concept of contract.

Nevertheless in continental Europe and France in particular, the “contrat de vente” sale contract is seen as a “special contract”. It is clear that this way of perceiving contract is due to the old Roman law tradition of “legis actions” where a specific “formula” was prewritten and if an action taken by any civilians was to be legal it had to fit in the “formula”. If in British law the only thing remaining from those traditions are “writs” in continental law it sharpened the whole concept of law.

In French law, employment, wedding, sale, rent, lending, is regulated by special contract law

English law is very clear on a contract due to a will of implementing freedom; everything is to be negotiable in a contract, there is then a general rule of contract with some exceptions (and not a succession of exceptions enclosed in a general theory.)The contracts are to be formed in the same way and if there is a breach the remedies are the same. Of course in certain categories something extra is needed but it will be only some specific case mentioned in statutes (for example a written part in case of land sale, or a cancellation right notice for some credit issuers)

The real issue is the future of the contracts in international law, in a globalised world. If international society is as weakly regulated as it is now, with a “private” way of solving problems such as arbitration, it is clear that contacts will tend to look like English contracts, i.e. very long, as everything has to be specified in them .The intervention of the Will of an external judge has to be as restricted as possible. If on the other hand International relations build some strong and institutionalised ties, the role of the Courts will be more wide looking deeply in the Contracts problems, contract would then become simple statement as all the rest of the provisions will be considered as already understood and merged in specific special contracts.

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