February 09, 2010

assessment II – Cause and Consideration

The cause in French law or the consideration in the Common Law are requisities to the validity of a contract according to the French/ English legal system. Whereas such a notion is unknown to the BGB.

What is cause? What means consideration? Are the concepts identical? Does it make sense at all to say that a lawful cause or consideration is a condition to the validity of the contract?

According to the French lawyer Marcel Planiol, there is no unique definition of the cause, due to the multiplicity of the notions.

The cause can be firstly the counter-prestation or the delivery of the res.

Secondly it can be the advantage for the parties or the objective, the quid pro quo. This definition is close to the doctrine of the consideration.

Thirdly it can be the happiness as a resulting emotion of the giving party of a contrat de bienfaisance. In contrast, English law doesn`t include a moral consideration for past service.

In my opinion, it may be good to take the reason for which the parties enter into a contract into consideration in order to protect the party without a cause e.g. in the form of an advantage. But the conception can also turn out to disadvantage the co-contractor of the protected party when there s no Rechtssicherheit to rely on, because the parties do not always know the existence and nature of the cause of the other party.





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