So as to tie in with my previous blog entry concerning the completely different- not to say the oppositional- approaches of tort in the French and English legal system, I would like to focus on the third party liability in tort- particularly with regard to the liability of parents for harm committed by their children upon others.
Within both regimes, the principles underlying a parental liability are based on the existence of a special relationship of authority and control, however in practice, the application diverges entirely.
No responsibility arises on the part of parents to restrain their children from causing harm to third parties out of the fact of their parenthood; parental liability occurs in cases of negligence during wrongdoings of their children.

So as to estimate a breach of duty, the House of Lords considers the age of the child (North v Wood) as well as the nature of the object involved, in such a way that an object, which is dangerous per se, establishes mostly a parental liability on the mere fact of allowing the child to be in possession of, for example, a weapon. (Newton v Edgerley).
However, in cases of employing objects, which only have the potential to be dangerous if mishandled by its user, a simple duty to warn and instruct without the further demand to supervise, consists. (Donaldson v McNiven)

Without doubt, in contrast to the broad limitation of parental liability under English law, whereupon family harmony is being treated as sacrosanct, the victim oriented approach of the French system offers a strict and much more radical trait by implementing a general regime of no-fault liability for the acts of others. Since the Bertrand decision, parental liability was no longer based on the duties to educate and supervise; from now on, the only defences available to parents under Art.1384 IV CC would be those of force majeure and contributory negligence.

Within the final two blog entries, I would like to draw my attention to the law of tort- particularly with regard to the question, if a general principle of liability for intentional and negligent conduct or only groups of circumstances, in which tortious liability arises, exist in the particular legal systems of Europe. In order to perceive the gaping differences, the extraordinarily broad scope of the general principle of tortious liability in French law, which scarcely imposes any limitations relating to the variety of rights or persons that are protected, just as the narrowness of the English system’s nominated torts, should be illustrated by the example of duty of care for omissions.

The idea of omission is inevitably intertwined with the concept of negligence, which provides a wide scope of protection within the closed English system of torts, created entirely by case law. The query, whether an individual owes even strangers a duty of care, and complies with the requirements of liability under negligence, has been responded in
Donoghue v Stevenson, whereupon a general duty to take reasonable care in actions or omissions, by which a wrongdoer breaches a positive duty to act, so as not to cause harm to someone close, has been established.
However, English law doesn’t impose liability for pure omissions, since no duty of care exists to minimise or prevent harm to another individual.

Meanwhile, in the French law of tort, which is contained in a mere five articles of the Code civil (Art.1382-86), the scope of liability for abstentions within an action, as well as pure omissions was greatly expanded by the decision of the Branly case, which could be considered as being an example of the French approach’s broadness and unpredictability. Accordingly, an abstention gives rise to liability when the omitted act should have been done either by virtue of a legal, statutory or contractual obligation.

I would like to focus the today’s blog entry on the additional requirement of “cause” within the conclusion of contract under French law- particularly with regard to the oppositional development of the German and French legal systems, in spite of being rooted in Roman law.

Under Roman law, a sole contractual agreement “conventio” couldn’t constitute a claim. The simple delivery of the goods “traditio” supplies the purchaser with property in cases, where the transfer of property was effected “ex iusta causa” i.e. in order to justify the transfer of ownership, a legal foundation is required.

The attempt to obtain a legal system, based upon a law of reason, as well as a connection between statute law and common law, which was being handed down in the North of France, was already behind the first bill of the Code Civil during the 17^th century.
The notion of “cause”, which constitutes one of the decisive factors concerning the validity of a contract in French law, contains not only the motive, which induced a party to incur a liability, but also the pursued intention. Consequently, an obligation is void in cases, where an illegal “cause” underlies a transaction, due to a contravention, respectively a violation of public policy and morality (Art.1131 Code Civil)

Compared with this, at the time, on which the BGB arose, the German law abandon the notion of “cause” within the contract, which appears now in cases of unjust enrichment, § 812BGB; concerning the conclusion of contract, the merely agreement suffices.

Nevertheless, under French law, the contents of contract are split into two parts by the further requirements of “cause” and “objet”. Furthermore, the condition of „cause“ is only legislatory relevant to the prevention of contracts, based on an illegal “cause”, which is in German law regulated by the imagination of the legal and moral subject matter of contract, §§ 134,138 BGB.

In my opinion, the role of acceptance, concerning the enforcement of contracts, is not to be underestimated, as rights and obligations generally arise at that time when the offer has been validly accepted.
Great importance should be attached to the time concerning the receipt of an acceptance, as well as the form, particularly the silence of the offeree relating to the offer.

In principle, an intention directed to another person, including acceptance, must be received by the person to whom it is addressed, whereupon the time, in which a statement of purpose takes effect, diverges.

According to the Cour de cassation, the dispatch of an acceptance concludes the contract, whereas in German law, under § 130 BGB, an acceptance becomes effective upon receipt, whereat a declaration of intention, coming into the sphere of the intended recipient’s control, would usually suffice.The English legal system requires a communication of acceptance before being valid, although an acceptance by letter becomes effective in the moment the letter is posted.This postal rule only applies when it is reasonable to use the post as a mean of communicating acceptance, though in combination with the receipt rule for the revocation of offers, a limitation of the offeror’s power to revoke is accomplishable.

Since acceptance must be communicated by any means, in all three legal systems, silence, from which explanatory value may be scarcely infer, cannot in principle amount to acceptance.
In my judgement, the very fact of being forced by an offer to take trouble and incur expense in order to avoid a binding effect, represents a decisive argument against any legal effect due to silence.Nevertheless, numerous exceptional cases, in which inactivity suffice to be bound by the alleged obligation, e.g. the commercial letters of confirmation in German law, based on customary right, complicate a consistent application of the basic principle.

The English-, French-, as well as the German legal system perceive an offer as a statement of a person’s intention to be legally bound by the sufficiently precised terms of the offer made and thus the intention to contract with the other person.

Surprisingly, disagreements concerning the classification of an invitation to treat, as well as the revocability of an offer exist between the said legal systems.

In English- and German law, advertisements and displays of goods in shops are usually classified as mere invitations to treat/ invitatio ad offerendum.However, the Cour de Cassation considered an offer to the public, including goods displayed on shelves, as a creation of contract, in case of acceptance.Therefore, a customer, whose eye was injured by an exploding bottle at the check-out before it had been paid for, is entitled to sue, as the placing into the purchaser’s basket had been constituted the acceptance.
I take the view that, the “limited stock” argument, as well as the wish of the person, who has placed the advertisement, to keep the final decision whether to conclude a contract, demonstrate reasons against the French opinion.

The Revocability, which is in my opinion inconsistent with the principle of “pacta sunt servanda” and which may implicate insecurity and injustice, can’t be applied in the German System.A violation has no effect to the binding force of an offer.In France an offer in general may be revoked so long as it has not been validly accepted, even though a revocation during a certain period, within the offer should be kept open, (offer avec délai) may give rise to liability in delict.
However, in English law offers are freely revocable before acceptance, which is due to the doctrine of consideration: no binding obligation to keep the offer open can arise without consideration from the offeree.

Definitely, the creation of a global unification of contract law, which already has been attempted to realize in its main features by the CISG, would simplify the set of problems, concerning a corresponding law system in cases when foreign elements are appropriated.

Nevertheless, an unification would involve numerous difficulties: The first bill would implicate difficulties concerning the language-choice; particularly with regard to duplication a precise translation of technical terms, which are possibly unacquainted in some legal systems, is required.

Herefrom resulting error sources pave the way for a jurisdiction, affected by interpretation, which is unavoidable attended by a relativisation of unity.
Furthermore, attention should be paid to studies of comparative law to which such an unification would put a stop; for this reason not only the sight of other legal systems would be lost, but also the further development of the particular legislation will be impossible.The fear of a deprivation of Sovereignty, caused by the establishment of unitary contract law, which has been assumed greater proportions concerning the ever-growing influence of an international system of intergovernmental and supranational organisations, as much as the political and commercial interdependency of states, would complicate the process increasingly.

In my opinion, the most crucial argument against the Unification of contract law is the territorial deprivation of flexibility, which originates in time-consuming proceedings, especially through ratifications of international law.
The commencement of an international contract demands a ratification by all co-contractors (c.f. Art. 59 II GG), whereby any alteration inside of a member state and according to these alterations, necessary laws, for example concerning socio-political circumstances, couldn’t be added to the contract without further ado.
However it’s still doubtful, whether such an unification wouldn’t lead inevitably to a world-wide dictatorship without any separation of powers, which would ease the abuse of power.

In spite of a common basic concept in contract law, that consensus about the contents of contract, which are expressed by the contracting parties with the intention of creating a legal relationship, should result in the conclusion of contract – astonishingly, the definitions underlying the notion of contract diverge in the particular legal systems of Europe.

Correspondingly, certain legal systems place further demands on a legal formation of contract, e.g. the requirements of “consideration” in England and “objet” and “cause” in France; furthermore, they attach different importance to the subjective intention of a person to perform a juristic act, from which a contractual liability may arise.
The different approaches referring to this are well visible in the Trier wine auction case, where a person, who visited a wine auction and waved to a friend, had been awarded the contract.

For the common law, the intention, which exists in each party’s mind, doesn’t matter that much, than the circumstances, whereby the other party could reasonably understood what was expressed. Seeing that contractual liability may be imposed by law because of the party’s behaviour, the inadvertent bid has to result in the formation of a contract.

In France, the main emphasis is put on the voluntary nature of contractual liability, whereby the creation of contract requires an agreement in a subjective sense. Thus, if this case had to be decided under French law, a contract could not have been constituted without a legally significant declaration of intention.

Following the prevailing case law, whereupon the aspect of legal certainty constitutes the decisive factor, German lawyers focus on the outward appearance, regardless of whether the behaviour coincides in the intention of the promisor. Thus, the highest bidder’s statement of purpose becomes legally valid- however, an opportunity to rescind under §119 BGB does exist, related to a compensation for reliance damage, §122 BGB.