All entries for October 2010

October 20, 2010

Unification of contract law

Writing about web page contract, unification, consequences

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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.

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October 13, 2010

Generalia on contract law: Notions of contract

Writing about web page /icpcorecourse/entry/icp_core_module/

Writing about an entry you don't have permission to view

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.

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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.

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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.


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