Class 5 - Civil and Common contract law compared;
Introduction to the law of obligations
• “Classical” contract law as a “transsystemic” phenomenon
• Introduction to the concept of “obligation” and its history
• Law of obligations: contracts and torts
1410: The cause of a contract is the reason that determines each of the parties to enter into the contract. The cause
need not be expressed
1411: A contract whose cause is prohibited by law or contrary to public order is null.
1412: The object of a contract is the juridical operation envisaged by the parties at the time of its formation, as it
emerges from all the rights and obligations created by the contract.
1413: A contract whose object is prohibited by law or contrary to public order is null.
1414: Where a particular or solemn form is required as a necessary condition for the formation of a contract, it must
be observed; it must also be observed for any modification to the contract, unless the modification is only an accessory
1590: An obligation confers on the creditor the right to demand that the obligation be performed in full, properly and
without delay. Where the debtor fails to perform his obligation without justification on his part and he is in default,
the creditor may, without prejudice to his right to the performance of the obligation in whole or in part by equivalence,
( 1 ) force specific performance of the obligation; ( 2 ) obtain, in the case of a contractual obligation, the resolution
or resiliation of the contract or the reduction of his own correlative obligation; ( 3 ) take any other measure provided
by law to enforce his right to the performance of the obligation.
1607: The creditor is entitled to damages for bodily, moral or material injury which is an immediate and direct
consequence of the debtor's default.
Alan Watson, The Making of the Civil Law: its incorrect to assume that the difference between civil and common
law is that of codification. Civil law is not the same as codification. Yet, Author argues that historically both have
relied on civil law. [Civil code is the expression of the idea that you can theorize the law and deduct certain ideas
which come as reasonable, then use the principles to apply to cases].
Helge Dedek / M.J. Schermaier, Obligation (Greek and Roman): The obligatio is a “legal tie” that binds us to
render a performance to another person according to our laws. This definition timelessly expresses the nature of an
obligation: a debtor owes a duty to the creditor. Regarding contractual obligations, Roman law differed importantly
from modern legal systems in that it did not have a general principle that voluntary promises could create binding
obligations. On the contrary, enforceable contracts in Roman law were those that fell within one of four established
Geoffrey Samuel, “Classification of Contracts: A view from a common lawyer”: One of the deterrence said to
exist between contract in the civil law tradition and contract in the common law world is that the former starts out
from contract types, or named contracts, and works from these types towards a general theory of contract. Common
lawyers, in contrast, start out from a general theory of contract and work from this general theory towards a number
of special contracts. All of the civilian systems share is a general theory of contract founded on the idea of agreement.
The English history is one that concerns two fundamental types of form of action, namely the writ of debt and the
action of assumpsit (a delictual action for damages for breach of promise), neither actually being founded in any kind
of general theory of contract. Common law focuses on a promise (fragmented ideal contract); civil law is about
Hawkins v. McGee, 84 New Hampshire (1929)
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