November 17, 2012

The formation of the contract in English and French law

Between french and english contract law, as in the definition of the contract, there is an important difference in the formation of the contract. For a contract to exist under english law, three conditions are compulsory : an offer and an acceptance, a consideration and an intention to enter into a legal relationship. General theory of english law requires no written but it's imposed in some situations (for example in the contract of guarantee and consumer credit contract). In modern english law, a promise becomes binding in two cases. The first consists of a written promise with a deed. The second of the strictly oral or written promise made because of the consideration. The concepts of offer and acceptance in Common Law are not fundamentally different from those in french contract law, although the effects may be different. According to Common Law systems, what is necessary for a promise becomes binding is a “something” in return : the consideration. The contract is defined as an exchange, a “bargain”. There is not gratuitous contract, donations are not contractual right. Even though, this element of consideration exists, English Courts refuses to enforce a promise, if it appears that parties intended to create any legal obligations. The intention of the parties must be examined by the courts.

The contract under french law is much more based on consent and the theory of autonomy. In its article 1108, Civil Code lists four essential conditions for the validity of a contract : free and informed consent of the parties, the parties' ability to contract, a certain and determined object and a lawful clause. The contract is the product of the parties. Article 1134 of Civil Code says : “according to which agreements legally entered into operate as law for those who engaged in them ». Lawyers often interpret this provision as as an application of the theory of autonomy. This theory is based on the fact that the binding force of the contract has for only source the will of the parties. The law does not create this binding, it protects only the expression of the will and is it needs be, its execution. It comes from Canon Law, which imposed the respect of the word and philosophers of the eighteenth think that the man is free, he can just be bind by his will. “The agreement is the basis of all authority among men” (Rousseau, Du contrat social). And Kant highlights later that a person can not be subject to other laws than those it provides from itself (Métaphysique du droit). Parties in contracting can only protect their interests. This theory is the principle, however it knows certain limits with the existence of imposed contracts. The principle of french law remains that of consent but formalism is increasingly imposed. The theory of offer and acceptance exists and there is contract when meet several concordant wills. The acceptance of the offer is enough to form the contract. According to the principle of consent, no specific form is required for the formation of the contract : the meeting of minds is sufficient to create legal obligations.

French contract law is much more based on the consent and english contract law has the particularity of the consideration.


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