All entries for Monday 10 January 2011

January 10, 2011

The Doctrine Consideration in Common Law , The causa in Civil Law

Consideration can be seen as what we can call a typical common law concept base on the notion of exchange. Nowadays we can see that for the Consideration, there is no longer need of this imperative of something equivalent in return but mere return promise can be seen as a sufficient consideration. The fact that now the parties to a contract have to determine by themselves the value of the consideration doesn’t mean that there is no limits. In fact, even if the value of consideration depends of the parties, it has to be serious and real. The consideration can take different forms (contractual agreements, or agency agreements for example). So what can called the contracts without consideration? I will give some examples…stopping drinking or playing video games for a price .But such in those situations, there is no obligation to do and the contract is just unenforceable. So I am really sorry for all the people who thought that it was legally binding but it’s not a reason to restart smoking!!

To compare with the Civil law , the notion of the causa would represent the rational element of a contract. In the French Code Civil a contract has to be seriously intended, make some meaning (cf Articles 1108, 1131, or 1133 of the Code civil) . In French Law such a notion has a certain importance maybe thinks to the place of the good faith in French Contract law but progressively abandoned in the BGB. What is the future of the two notions not really considered by the UNIDROIT Principles… 


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