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Acceptance
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How the different legal systems deal with contracts: definition of intention, offer, counter offer, acceptance and cognizance principle
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8. Lesson 8Friday, 28 January 2022 11:42
Different legal systems regulate in different ways how to deal with contracts:
• Italian Civil code: “a contract is formed in the moment it is accepted”
• Principles of European Contract Law: [soft law - no binding, it helps the
interpretation, obj to unify]
○ “ a contract is concluded if: the parties intend to be legally bound and they
reach a sufficient agreement without any further requirement”
○ Intention - “the intention of a party to be legally bound by a contract is to be
defined from the party’s statements or conduct as they were reasonably
understood by the other party” [The Italian Civil Code is not so clear about this
matter] —> intention is essential
—> the intention will be considered as it appears to others - objective terms:
§ For market protection
§ Protection of the counter party’s expectations (art. 1337)
! Offer is different from an invitation to negotiate/to treat —> statements that
simply reflects the current negotiating position of the alleged offeror, not a
final commitment to that position
Ex.
§ Advertisements are considered an invitation to treat
§ tenders - not to bind the employer to the first contract
§ auction sale - not to bind the auctioneer to the highest bid
The acceptance = the final and unqualified expression of assent to the terms of the
offer —> it has to reflect the proposal —> the two parties need to make sure that
they are negotiating the same object at the same condition
If the acceptance contains terms which differ from those of the offer, it could be
taken as a counter-offer.
Counter offer=
○ Rejection of the terms of the original offer
○ Fresh offer addressed to the original offeror
! There is no counter-offer when the recipient is just inquiring on the terms of the
offer or is seeking for information on those terms
The offeror must be aware of the outcome of his/her offer —> the cognizance
principle
Art. 1326 - a contract is formed at the moment when he who made the offer has
knowledge of the acceptance of the other party
—> not to abuse of this principle: art. 1335 Presumption of knowledge - the
cognisance can be presumed if the acceptance is sure to have been delivered (ex.
Email - when you send one you presume that the other had read it)
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