All entries for October 2010
October 20, 2010
For such an essential and universal concept, analysis of what actually constitutes a contract highlights a surprising amount of difference between countries. The idea of contractual relations and obligations is one of fundamental significance in commercial and personal affairs – yet the way in which jurisdictions define a contract differs markedly; owing to a complex history of legal interaction across a multitude of legal traditions, influenced majorly by Roman law, canon law, common law, and lex mercatoria. This mix has led to the developments of nuanced and varying definitions into what today can be defined as a contract.
France seeks to define a contract based on the notion of agreement, and how contractual obligations arise via this agreement. The system sees the contract defined on the basis of the contractor’s position – as seen in the Code Civil.
Meanwhile, the German BGB shies away from determining what exactly a contract is. Instead, the focus is placed on the obligation created by the arrangement, which is concentrated in turn by a contract. Both French and German contract law achieve naturally the same legal principles, but the methodology used to determine the definition of a contract is noticeably different.
As ever, the English system has evolved without any legislative definition of a contract – with academic writing and jurisprudence here filling the void. It seemingly stands somewhere in between the agreement-based conception borne out of the French doctrine, and the abstract German idea of obligations creating the contract – with academics stating the obligation arises out of agreement, to be enforced by legal remedies. Common law instead seeks to define the constituent parts, for a check-list approach to what a contract is, and how it arises out of a need to remedy a contractual situation. Nevertheless, the English definition of a contract is most definitely the least clear of the three – most probably arising out of the absence of codification.
Whilst the three systems all diverge at the basis of what a contract is, it is interesting to see how the concept still has evolved and become a central and indispensable theme of domestic civil law.
October 18, 2010
Harmonisation between Member States of the EU in any legal arena can offer a huge amount of security and unity between 27 often disparate legal traditions – yet the Union is often depicted either as the brash bogeyman, disregarding and purging swathes of well-rooted domestic law, or too limp to bring about the change it dreams of.
This is particularly the case in the field of contract law. Academics, the Commission and the Parliament have all highlighted the benefits of how harmonisation in this area would afford a huge degree of convenience and advantage to consumers as well as businesses, who otherwise remain lost in a maze of competing legal systems. Any movement towards harmonisation in this area by an originally economic Union is therefore logical, and a multitude of academic developments and projects reflect its appeal.
However, reality is less kind to these engagements. Putting these proposals into hard law poses a series of insurmountable issues: firstly, codification has been mooted through academic channels as a possible solution, running alongside current domestic codes. The disparate nature of European legal traditions does unfortunately undermine these efforts, especially with the British and Irish trend of shying away from codified law. The vast mix of languages involved also is problematic here when the translation of ‘legalese’ is considered – with legal phrasings often being interpreted strictly and specifically within domestic legal orders. More globally, the fear of a pan-European, homogenised standard of law can strike fear into even the mildest of natural lawyers – with the critique that unification en masse slows legal development and ingenuity in this ever-expanding field of law.
These challenging issues highlight the difficulty of harmonising law in this field – even before any individual civil law constructs and ideas are analysed. Before any complex and varying components of European civil law can be broken down, it can be seen that an uncertain and questionable foundation for harmonisation in this area exists – and remains the reasoning as to why movements in this area are often confined to soft law, ‘opt-in’ works of academic merit, rather than direct hard law of a secure European Union.
The focus of this blog therefore will be a comparative reflection on the civil law of European countries, highlighting the differences, similarities, advantages and disadvantages of individual alternative legal systems throughout the year.
Welcome to my blog on European Civil Law for the ICP Lille-Saarbrucken-Warwick exchange programme, reflecting on the law of tort and contract in England, France, Germany, and within the European Union.
Please feel free to comment on my entries.