November 22, 2012

Which evolution for cause and consideration ?

French law requires that the contract have a cause, English law that it be for good consideration or be contained in a deed. The cause is one of the four central notion in the contract with the object, the consent and the ability to contract in french law. A contract without cause or with an illegal cause is void. Article 1131 of the code civil “An obligation without cause or with a false cause, or with an unlawful cause may not have any effect”. There are criticism from Planiol and Carbonnier suggests less emphasis on cause and more on interests.

We can compare but only obliquely cause and consideration. The basic idea of the consideration requirement in english law is that, in order to acquire the right to enforce another’s undertaking, a party must undertake to give, or actually give, some- thing stipulated by the other as the price for his undertaking. A valuable consideration in the sense of the law, may consist either in some right, interest, profit or benefit accruing to one party or some forbearance, detriment, loss or responsibility, given, suffered or undertaken by the other. The central point of the Restatement definition of consideration continues to be the notion of “bargain”.

But what happens in gift contract ? In english law, we are not binding by a gift situation because there is in this situation no bargain.

Have this two notions a future in french and english law ?

At the european level, the draft “OHADA” about contract law establishes the renouncement to the cause in french law and the consideration in english law. As the UNIDROIT principles, this draft is focus on the agreement of both parties. The common will, result of the exchange of an offer and an acceptance, is enough to validly bind both parties in a contract.

The doctrine of cause in French law, as revitalized as it has been over the past years, shows the increasing interventionism of French Courts in relation to contract.

The future of this two notions is compromise, in the context of the European harmonization.

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