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October 17, 2012
What is the concept of the European contract ?
In England the contract is seen as an exchange of values, as a tool for commercial transaction. At the opposite, in France, the contract is seen as an exchange of consent, protected by the moral. The distinction existing between the two concepts of contract explains many different rules. In France for instance, the doctrine of good faith is the principle rule in contract law, while, in England, it does not exist (even if the bad faith is not encourage as say the writers). Another example could be the remedies in case of breach of contract. In France, the specific performance is the rule, while in England it is an exception, because on the one hand we protect the consent, and on the other hand we protect the bargain.
The question is which concept, supposing there are only two, will be adopted for an European contract law. On the one hand, we have seen that the concept draws the rules, and that there are difference between the countries. On the other hand, we know that groups of research on a European contract law use, as inspiration sources, the law from different 'legal families'. Can we suppose that it is possible to create a new concept by mixing rules, or by summarizing different one ?
Here can emerge a issue, already noticed in the last post. Is the moral concept of contract used in the Romanistic family or also in the Germanic family ? If the moral concept is use in the Continental Europe, and can we suppose to impose it to the Common law countries ? The question is not about only a concept, but apparently one more time, about civilization. This is really interesting to know how the idea of Europe will go over the national, historical foundations to create a new legal family.
Source : H Beale, B Fauvarque-Cosson, J Rutgers, D Tallon and S Vogenauer, Casebook on the Common Law of Europe: Contract Law(Hart, ed. 2, 2010, in library: KN10 C6)