November 16, 2011

Cause and consideration (Ius Commune ch. 5.1–5.3)

I read Ius Commune Contract ch. 5.1-5.3 in preparation for this weeks class.

The chapters deal with additional requirements to contracts. In France this is “la cause”, while in England the “consideration” forms such a requirement.

For a german law student these concepts are not so easily to grasp (at least this goes for me: I am still not quite confident to be able to fully appreciate the concept of consideration although it has been explained to me on numerous occasions). This is owed to the fact that in german law those supplementary conditions do not exist.

The other jurisdictions will deny the enforceability or even the existence of a contract in case of lack of consideration, respective lack of cause. This context makes the requirements seem rather important. Considering this, it is astonishing to see that a clear doctrine of consideration does not exist.

Also I find it quite intriguing, that an offer which is deemed to be “irrevocable” can in fact be freely revoked unless the promissee provides some kind of consideration. Why bother calling it irrevocable then?

But why does the BGB get on without these conditions? The Ius Commune authors explain this as one of the effects of the abstraction principle: the obligatory contract (schuldrechtlicher Vertrag) may be void without causing any damage to the real contract (dinglicher Vertrag). The real contract does not need a “cause of transfer”. This situation is remedied by the doctrine of unjust enrichment. Therefore the doctrine of unjust enrichment takes the place of cause and consideration in the BGB.

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