All entries for Wednesday 05 December 2012
December 05, 2012
This issue came to me when I was considering the particularities of the national contract laws as the 'cause', the consideration and the 'abstractionsprinzip'.
I was thinking that these particularities are what I call the 'soul' of the contract law. These principles are explained by the contractual theory selected by a country, they are the foundations of the contract law, and determine how a contractual conflict must be solved.
The doctrine of the consideration shows that in England the contract is considered as a bargain. And that explains that the judge cannot not control the bargain, and adjust the contract.
The doctrine of the abstraction seems to show that a contract is most an instrument to transfer the property. This explains why the German law abandoned the doctrine of the cause. According to this theory the act of transfer of property should have a cause which would have been the contract of sale. If the contract of sale would have been voided, so the transfer of property would have lost its cause.
In France the doctrine of the cause showed the important place of the moral in the contractual relationship under the Canon law. And now the cause, toward its 'subjectivisation' can be used to ensure a certain balance between the parties, that shows the evolution of the contract law.
But these doctrines are really specific, and controversial. This is the reason why the European contract law could not incorporate one of them. But are we developping our doctrines ? If we are not, the European contract law would be only a toolbox for the businessmen, and it will be impossible or really difficult to extend it to an European civil code.
Beale, H., Fauvarque-Cosson, B., Rutgers, J., Tallon, D. and Vogenauer, S., Casebook on the Common Law of Europe: Contract Law(Hart, ed. 2, 2010).
Collins, H. The European Civile Code : The Way Forward (Cambridge University Press, 2008)