All entries for January 2011
January 11, 2011
The concept of good faith has existed for thousands of years in Western civilization. Indeed, it has been asserted that the concept is one of the bases of those civilized society. The ancient Greeks recognized something similar to the notion of bona fides as « a universal social norm governing the relationships of its citizens. »For their part, the Romans converted the notion into a basis for legal action; Roman jurists incorporated the notion into the essence of « a number of legal rules defining the obligations in normal commercial transactions . . . . » The notion played an especially important role in the enforcement of informal consensual contracts in classical Roman law.
The concept has also found its way into American commercial law. A majority of them jurisdictions recognize the concept as a matter of case law. Fifty of the 400 Code provisions expressly mention good faith. Article 2 of the Code, devoted to sales, includes 13 sections explicitly using good faith standards. The Code’s general good faith provision, § 1-304, announces: « Every contract or duty within the Uniform Commercial Code imposes an obligation of good faith in its performance and enforcement. » Moreover, if one can take the broad language in some of the judicial opinions at face value, the obligation has meaningful substantive content; many opinions contain sweeping language to the effect that the obligation precludes a contracting party from taking any action that would destroy or impair the other party’s contractual rights or benefits.
The subject of this paper is the question whether contracts that fundamentally damage the quality of life and capabilities of others should be invalid under European contract law. In fact it is a good way to focalised on thequestion of globalization. An economic view of these cases emphasizes problems of social justice. It could really intersting once,just to discusse of the capabilities approach as a possible minimum standard of social justice for European contract law. For the capabilities approach to be accepted as such it needs to overcome critique from legal scholarship with regard to its relevance for contract law as well as critique with regard to the theory itself as a standard of justice. It could be iinteresting to study the different the approaches with other traditions such as utilitarianism and the social contract. I really would like to be sur that we all are able to seat ang discuss what kind of futur , for the old continent.I am just waiting the day for European contract law will be the main topic to be discussed between all the european citizens: why should European contract law incorporate a standard of social justice and how does the capabilities approach translate into rules of contract law? I am just waiting for some people able to offer a convincing argument for the capabilities approach as a minimum standard of social justice in European contract law...
The Common law system is governed by one rule: “memo dat quod non habet” (no one can give what he does not have). This means that a buyer can only get good title if he buys from the owner of the good. Common Law itself and several statutes have created exceptions to that general rule. French law is based on a whole different system. Even if the Article 1599 of the Civil Code states that the sale of a thing belonging to another is void, the Civil Code says that they are several ways to get a good title, not only by buying the good from its owner. French Property law distinguishes two notions: property and possession.
This principle is based on the théorie de l’apparence (appearance theory). This theory protects the person who, due to the circumstances, thought in good faith that a state of affair was true and acted on it. In that case, we will attach to the situation the legal effects it would have if the appearance was true. When we compare both systems, we can see that all the cases where the buyer from the non-owner can get a good title are linked to appearance. With estoppel for example, the buyer makes it look like the seller was authorized to sell. At the first look, we could think that they are fundamentally different but in the end they are based on the same considerations: law tries to protect the innocent third party who genuinely thought that the person from whom she was buying the good had the authority to sell it.
January 10, 2011
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…