CHAPTER 1 INTRODUCTION:
Contracts = legally binding agreements/ promises, irrespective of whether they are written
down or not
→ buy a product in a supermarket
The market economy we live in is the reason we need contracts
→ needs of the people and therefore the corresponding market price mechanism
Contract law ensures that these contracts are binding and can therefore be enforced in the
courts in case of non-performance = cement of modern society which allows individuals to plan
society
Most rules in contract la are designed to apply to any contact regardless of:
● Type of party
● Type of obligations
● Governed by same principles
○ Freedom
○ Rules
■ Offer and acceptance, interpretation, damages
2 types: Contracts on the basis of the parties involved, the main characteristics, and the reasons
1. Commercial contracts: b2b contracts (business to business contract)
2. Consumer contracts: b2c
a. C2C contracts is between two consumers
Contracts can also be based on the main characteristics:
● What parties need to do → obligations
○ Specific contracts: employer-employee contracts with specific rules
○ Nominate contracts: franchise and distribution → these are however not detailed
in statutory law like specific ones!
The reason why parties want to be bound:
● Pothier: an agreement by which two parties reciprocally promise and engage, or one of
them singly promises and engages, to the other to give some particular thing or to do or
abstain from doing some particular act (traité des obligations)
○ Bilateral acts of performance
■ Based on a mutual willingness to oblige
■ ‘Do ut des’= element of exchange
○ Unilateral acts of performance
Civil law: contract law is seen as a part of the system of private law (rules and relationships
between private actors)
Law of obligations:
● Law of contract, tort and restitution
, ● Duty that exists vis-a-vis another person or several other persons
● Contract = voluntary or self-imposed obligation whereas tort = imposed
● The distinction is as old as civil law itself → Gaius Institutes
English Common law:
● First ‘book’ came to be in 2010
● Separate textbooks on contracts, tort law and property law
Main principles of contract law:
● Main values or goals that underlie this field
○ Legislation, court cases or non-written
● All principles refer to fundamental standards
○ Contradictions and exceptions
● Freedom of contract
○ Laissez-faire
○ Individual autonomy
○ Parties will not choose unfavorable terms
○ Whenever it desires and with whomever it wants
○ Many people however do not have the bargaining power
■ They lose against economically stronger counterparts → general
conditions
● Regulated contracts instead of freedom of contract
● Binding force
○ Performance of obligations
○ Courts may intervene if this is poorly or not done
○ Remedies: perform (civil) or pay the debtor damages (common)
○ Can be set aside if the contract contains an unfair clause
● Absence of formalities
○ Principle of informality
○ Contracts do not require a specific form
○ Intention is sufficient
○ Not necessarily written
○ A mere agreement must exist → consensus ad idem
● Contractual fairness
○ Least precise
○ Views fundamentally differ
○ In consumer contracts, → the professional party should give all kinds of
information to the consumers so they can take an informed decision
■ Procedural fairness →
■ Substantive fairness → ‘reasonable duties’ accepted everywhere and
more open to discussion → difference between civil (‘doctrine of Good
Faith’) and common law (‘doctrine of misrepresentation’)
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