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January 26, 2010
Notions of Contact
In the three legal systems (French, German and English), there will be a contract as long as there has been an agreement between the parties.
The different systems present similarities to consider whether or not an agreement has been reached: it is usually asked whether there has been an offer made by one party and an acceptance of the same offer by the other one.
However the three systems use different approaches.
The English law has an objective approach that examines what the parties said and did as it has been stated in Smith v. Hughes.
On the contrary, the French law uses a subjective test that focuses on the intention of the contracting parties. The french Code Civil has been influenced by national schools of legal thought that were adherent of the liberal principle and therefore placed importance on the will. This is called the will theory.
The German system seems to be a “mixture” of the two approaches. It took originally a subjective approach ( § 133 BGB ). In the 19th century, German jurists, such as Windscheid, considered that the essence of the contract was the order or command of an individual. Nevertheless, recent doctrine and case law have been taken a more objective approach.
Article 2:102 of PECL seems to give a preference to the objective approach as it focuses on 'what has been reasonably understood by the other party.'
A second difference between the legal systems is to be found in the notion contract.
In order to determine whether there is a contract or not, the continental sytems put emphasis on the voluntary nature of contractual liabilty. German and French laws refer to obligations created by the agreement of the parties. This can be explained by the fact that Roman law and canon law had lots of influence on the continent, leading to the voluntarist approach.
Common law put emphasis on whether the law creates liability. A remedy has to be provided, otherwise the agreement is seen as a social agreement. The approach is therefore more objective.
Finally, the English law, unlike the French and German law in some circumstances, regards the “agreement in principle” devoid of any effect.