All entries for Thursday 17 November 2011

November 17, 2011

Cause considered

Unfortunately for me, this week’s reading concentrated on the fiend of French contract law: la cause. Consideration, I have no problem with. Perhaps I am bias because I have English “legal training” rather than French.

One thing however does puzzle me: why does the state have to go so deep into people’s minds? The use and interpretation of subjective cause stipulates that if I take out a loan to buy a machine gun and use it to commit a crime, the contract is void because the cause is illegal. This of course entails its own consequences in civil law but I fail to see how it is helpful from a social or a criminal law perspective.

First of all, if such a contract is judged to be void for illegal cause it means the whole case has gone to court and the law has failed in its preventive aspect. Doubtless that is one of the objectives of such a strange concept: to instill in people a certain respect for the law, to point out where the limits of their transactions are.

Secondly, cause is a very awkward tool. By way of contrast, the requirement for consideration answers the question ‘why enter into this contract?’ from an objective standpoint. Cause goes even further and asks ‘why do YOU want to form this contract?’ looking at the subjective intention and will of the party. This, I believe is going too far and is open to criticism.

It is not the role of legislation and law to go so far and attempt to mould our thoughts. Of course, law should be favoring ethical conduct but it then has to define what ethical behavior is. This, in democratic countries where people hold their own opinions, can be a nigh impossible task. Even if one agrees with the argument that the law should have such a pervasive role, why is contract law such a tool? Is criminal law, because of the punitive consequences which follow illegal behavior, not more suited to shape our morals?

November 2011

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