November 17, 2011

Cause and consideration

The two concepts of cause and consideration evolved parallely in France and in England, as answers to the legal rising of contracts. As checks of the validity of contract, the absence of it, whether consideration in England and cause in France, the contract is void.

Although, the developpement of each was very different. Consideration doctrine is a narrow one, playing a significant role in the formation of contracts in Common law but not as wide as the doctrine of cause, which serves not only the purpose of checking whether a material exchange is made. It is to be understood that nder the concept of cause are gathered many of the functions dealt with by other concepts of the Common law. Thus, under the french concept of cause are solved the matters which would be, in Common law, by the concepts of illegality, public policy, frustration and consideration.

Public policy allows a margin of interpretation for the Common law judge, as does cause for the French judge. Both articles 1131 and 1133 of the civil code, the first one dealing with the objective cause of the contract and the secund one dealing with the subjective cause, allow the judges to evaluate the contract, to scutinize it, so that they appear as 'policemen of the contract'.

Under the concept of consideration, judges do not have but a narrow margin of interpretation. In itself, this makes a big difference between the ways those concepts are used. The question would be, why is it then, that the two concepts are always compared to each other ?

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