November 02, 2011

'Cause' and Consideration : two different concepts, two sources of headache

During the past few weeks I have struggling with a concept well established in the Common Law system though completely unknown by the civil Law system from which I come : The consideration, one of the key elements of the English contract, because without it a bilateral contract cannot be concluded.

At first sight it would appear that this concept looks like the one of 'cause' known in the French legal system, the 'cause' being also one of the needed elements of a contract in French Law1. They both have been in their legal system a source of intenses doctrinal debates, and still constitute a challenge of understanding for legal students.

In the French civil code no definition of the concept of 'cause' can be found, leaving the matter to the appreciation of the judges. The thing is, the interpretation of it has evolved since the creation of the civil code (1804), from a classical approach for which the cause would be what is expected in return of one's own performance, to a modern approach for which the cause would be the reasons which decided the party to enter a contract. But, the concept could not be reduced to only one of those approches, giving birth to a dualistic and complicated concept.

In the British Common Law as well, no absolutely clear definition of the concept of consideration has arisen, though a famous one has been given in the case Currie v Misa2 : ''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 undertakent by the other.'' Thus, we can see that consideration would, partly at least, correspond to the classical approach of the French 'cause', without being able to cover every aspect of the dualistic notion.

It would be very intersting to compare the different aspects of law each of those concepts cover, and by what means legal answers are given in one State to the problems solved under its concept in the other one.

1 French civil code, article 1108.

2 Currie v Misa (1875) LR 10 Exch 153, 162

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