Legal Notions of Contract. Fundamental Doctrines in Continental Law and Common Law

Abstract

The contract seems to be one of those self-explanatory legal notions, heavily relying on common-sense knowledge of everyday people involved in whirling spirals of polymorphic agreements, in both continental and common law legal systems. For a legal comparative endeavour, however, it is a dangerous pitfall, since it points to a misleading starting point – the common, practical understanding of contract is probably an effect of similar legal notions, and this may constitute a valid tertium comparationis. In spite of its intuitively powerful and broad everyday use, the contract is, nevertheless, a complex legal notion with detailed juridical articulations. It is from this specific legal angle of each continental and common-law legal family that the unifying common-sense understanding of the contract shows a pluralistic and at times irreconcilably divergent legal understanding of the very notion of contract. It is not the convergence of the legal doctrines of the continental and common-law legal families that this article intends to analyze, convergences which may very well be deducted from the common use of the notion and which find anytime support in most of everyday practice, but the specific differences in the two legal families which destabilize a potential unifying legal notion of contract. The article does not intend to refute nor correct the common European understanding of a contract, but merely to investigate the fact that, although there is a common everyday understanding of what a contract is, and although different legal systems get to similar results, it is not necessarily because identical legal notions are employed.