contract law
LexInter | January 7, 2002 | 0 Comments

CONTRACT LAW

The provisions concerning contracts and contractual obligations constitute, after the provisions devoted to inheritance and donations, the Third Title of Book Third which deals with “The different ways in which one acquires property”. The Fourth Title is devoted to commitments that are formed without agreement.

With the civil code, the contract becomes the legal framework for economic activity with the progress of individual freedom, the development of the circulation of wealth and the affirmation of the freedom of trade and conventions .

The role of the contract in the acquisition of property reflects the disappearance of the real rights of the old law (old tenures, land rents, etc.).

The contract is defined in the new article 1101 of the Civil Code

“Art. 1101 .- The contract is an agreement of wills between two or more persons intended to create, modify, transmit or extinguish obligations.

 

COMMON CONTRACT LAW AND GENERAL THEORY OF CONTRACTS

Common contract law is defined by the Civil Code. It is based on the principle of contractual freedom and the binding force of contracts . A third principle is that of contractual justice.

the consensual

Article 1101  

The contract is an agreement by which one or more people undertake, towards one or more others, to give, to do or not to do something.  

The contract is a convention, that is to say an agreement of several wills (as opposed to the unilateral act) which is the basis of obligations.

The classical analysis of the contract is based on the process of exchange of consents.

The contract creates obligations to give, that is to say to transfer property or any other real right, to do or not to do.

In business law the two essential functions of contracts are the supply of goods, with the transfer of ownership (sale or exchange) or enjoyment (lease or loan) of these goods, and the provision of services (employment contract or business contract).

 Essential conditions

Article 1108

Four conditions are essential for the validity of an agreement:
The consent  of the obliging party;
Its  capacity to contract;
A certain object which forms the material of the engagement;
A  lawful cause in the obligation.  

The object of the contract is in the classical theory of the contract the element which answers the question “q uid debetur? ” (What is of) while the cause answers the question ” cur debetur ?” (why is it due?)

The principle of the binding force of contracts


Article 1134

  

The legally formed agreements take the place of law for those who made them.
They can only be revoked with their mutual consent, or for reasons authorized by law.
They must be carried out in good faith.

Article 1135

Conventions oblige not only what is expressed therein, but also all the consequences which equity , custom or the law give to the obligation according to its nature. 

Contract law is dominated by the principle of the autonomy of the will . Challenged by interventionism, both in terms of contract formation and execution, in particular due to the development of membership contracts, it regains strength with the decline of interventionism.

The principle of contractual freedom is that what is not prohibited is permitted. In addition, it implies that (subject to obligations provided for by law such as compulsory insurance) everyone is free to contract and to choose his contracting party. 

The parties can either enter into a contract the general terms of which are defined by law or the courts, this is referred to as a named contract (such as sale or rental), or contracts that do not have a qualification given by law or by the courts, this is referred to as an innominate contract.

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