18 марта 2018г.
Abstract
Contracts under common law and civil law have been traditionally seen as distinctive in respect with the differences between the common law and the civil law judicial system. These legal systems differ not only on the substance of their legislation, but in their approaches to the terms and formation of contracts. This article examines and analyzes basic differences in contractual terms within the two legal systems.
Key words: civil law, common law, terms of contract, contract law, contract
РАЗЛИЧИЯ МЕЖДУ ПРАВОВЫМИ СИСТЕМАМИ ОБЩЕГО И КОНТИНЕНТАЛЬНОГО ПРАВА В УСЛОВИЯХ КОНТРАКТОВ
Исмаил-заде Э.Х.
Магистрант юридического факультета Бакинского Государственного Университета
Аннотация
Договоры по общему праву и гражданскому праву традиционно считаются отличительными в отношении различий между правовыми системами общего и континентального права. Эти правовые системы отличаются не только сущностью их законодательства, но и их подходами к условиям и формированию контрактов. В этой статье рассматриваются и анализируются основные различия в контрактах в рамках двух правовых систем.
Ключевые слова: общее право, континентальное право, условия договора контрактное право, договор.
Introduction
The origins and main features of common law system and civil law system need to be defined before analyzing differences in terms of contracts under two types of legal system. The common law legal system originated in England, was later adopted in the United States and Canada and is in place in most commonwealth countries. While the English common law system has its roots in the 11th century, the present system has evolved over the past 350 years, with judges basing their decisions on those made by predecessors. Common law has no basis in statute, and is established and developed through written opinions of judges delivered at the end of a trial. These opinions are binding on future decisions of lower courts in the same jurisdiction. However, that is not to say that common law systems derive all of their laws from case law. Civil law system originating in Europe whose most prevalent feature is that its core principles are codified into a referable system which serves as the primary source of law. While statutes of civil law are collected in codes (e.g., civil code, codes covering corporate law, administrative law, tax law and constitutional law), for common law, there is not always a written constitution or codified laws, all its regulations are collected in cases.
Common law contracts
Common law contractual terms can be divided into express terms and implied terms. Express terms are ones that the parties have set out in their agreement. The parties may record their agreement, and hence the terms of their contract, in more than one document. Those terms may be incorporated by reference into the contract; (for example, where a contract is made subject to standard terms drawn up by a relevant trading association). Or, a contract may be contained in more than one document even though one does not expressly refer to the other (for example, dealings which take place under a “master contract” with a separate document being executed every time an individual contract is made). A contract may contain terms which are not expressly stated but which are implied, either because the parties intended this, or by operation of law, or by custom or usage. Terms implied in fact are ones which are not expressly set out in the contract, but which the parties must have intended to include. The courts have adopted two tests governing whether a term may be implied: the business efficacy test and the officious bystander test. The business efficacy test asks whether the term was necessary to give the contract business efficacy. The courts will only imply a term where it is necessary to do so. The officious bystander test had an officious bystander been present at the time the contract was made and had suggested that such a term should be included, it must be obvious that both parties would have agreed to it. The courts may imply a term in law in contracts of a defined type eg Landlord/tenant, retailer/customer where the law generally offers some protection to the weaker party. Evidence of custom is admissible to add to, but not to contradict, a written contract. Terms may also be implied by trade usage or locality.
Civil law contracts
Civil law codes and scholars often classify contracts into a set of several mutually exclusive types. In principle, this classification would serve to facilitate the identification of the legal nature of contracts. Civil law system places a much higher importance upon the classification of its legal principles. Under civil law, every concept must fit into distinct legal categories that define the principle's relationship to other legal precepts. This classification system makes these principles easy to identify and record in the respective nation's contract law. All types of contracts (contract of sale, lease, donation and etc.) are regulated and are listed in a code. Most of the contracts have many formalities regulated by law that must be fulfilled if not the contract shall be unenforceable and invalid. In this case, the contract will be built by the parties but following the structures and regulations set by the law.
Basic differences
A common law system is less prescriptive than a civil law system. There is an extensive freedom of contract when setting up a contractual relationship between two parties. Few provisions are implied into the contract by law, although safeguards often are implied to protect private consumers. As a direct result, all the terms that govern the relationship between the parties need to be clearly defined in the contract itself. Such necessities often result in a contract being longer than one in a civil law country. The common law approach to contracts is primarily concerned with predicting the impact and potential binding legal consequences of a party's promises. Essentially, it is not so important what the contract is for or how it structured, but whether the promise of performance that it is based upon is enforceable. In general, when it comes to common law contracts, almost everything is permitted that is not expressly prohibited by law. If there is a question of legality, it tends to be decided by the courts with such rulings becoming universally recognized. In a common law system, judicial decisions are binding. Decisions by the highest court can only be overturned by that same court or, in certain cases, but not all, through legislation.
In contrast to common law, the civil law system is a codified system of law that dates all the way back to the Roman legal system. A civil law system is generally more prescriptive than a common law system. However, a government will still need to consider whether specific legislation is required to either limit the scope of a certain restriction to allow a successful infrastructure project, or may require specific legislation for a sector. There is definitely less freedom of contract than in a common law system. Many provisions are implied into a contract by law and parties cannot contract out of certain provisions. As a direct result, less importance is placed on setting out all the terms governing the relationship between the parties to a contract. Rather than be defined in the contract itself, such inadequacies or ambiguities tend to be remedied or resolved by operation of law. This will often result in a contract being shorter than one in a common law country.
In a civil law system, administrative laws tend to be less codified, and only legislative enactments are considered binding for all. There is not a lot of toleration for judge-made law in civil, criminal and commercial courts. Legal decisions are not necessarily binding on third parties, although judges tend to respect precedence. In certain civil law systems, like in Germany, writings of legal scholars have significant influence on the courts. In contrast, in common law systems, the writings of legal scholars have little importance when it comes to actual legal precedence.
In a civil law jurisdiction, unless the contract specifies that the parties have agreed to arbitration, administrative courts will enforce the contract. Unlike common law jurisdictions, arbitration is not a choice unless previously agreed upon, but the rules are quite ambiguous. For example, legal issues about restoring the “financial equilibrium” of the contract are far from clear. This lack of clarity is because the definition of “financial equilibrium” often changes from case to case.
The contracting authority under civil law, like in France, may have the right to modify aspects of a contract unilaterally when it deems the change to be in the public interest. The contracting authority does not have the right to change the contract’s financial provisions or its fundamental nature, but it can change such aspects as the specification of the service to be provided. Still, the operator is protected in certain circumstances by the right to have the “financial equilibrium” of the contract preserved. A unilateral modification is not supposed to be financially damaging to the other party.
One of the principle divergences between the common law and civil law is in their approach to contract formation. The common law seeks to establish at what point in time a promise was made and when that promise begins to have legal implications. In order to conduct this analysis, the common law focuses on three basic principles: Offer, Acceptance, and Consideration. In addition to the common law elements, civil law focuses on several elements necessary to demonstrate that the agreement was the result of an exercise of the parties' free will.
References
1. Ewan McKendrick. Contract Law: Text, Cases, and Materials. Fourth edition, Oxford: Oxford University Press, 2010.
2. Giuditta Cordero Moss (2007) “International Contracts between Common Law and Civil Law: Is Non- state Law to Be Preferred? The Difficulty of Interpreting Legal Standards Such as Good Faith,” Global Jurist: Vol. 7: Iss. 1 (Advances), Article 3.
3. Hermida, Dr. Julian, Convergence of Civil Law and Common Law Contracts in the Space Field (July 4, 2009).
4. Alain A. Levasseur, Comparative Law of Contracts: Cases and Materials, 2008.
5. Christopher Meldrum, ACC. Civil Law Contracts, 2012, available at: http://www.acc.com/legalresources/quickcounsel/clc.cfm#hid5
