History of state and law of foreign countries. Development of institutions of bourgeois civil law. Contract Law (Most Important)

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History of state and law of foreign countries. Development of institutions of bourgeois civil law. Contract Law (Most Important)

Lecture notes, cheat sheets

Directory / Lecture notes, cheat sheets

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Development of institutions of bourgeois civil law. Contract law

Under Title 3 On Contracts or Contractual Obligations in General of the Napoleonic Code agreement - this is an agreement by which one or more persons undertake to another person or to several persons to give something, to do something or not to do something.

A contract is synallagmatic or bilateral if the contracting parties are mutually obligated one to the other.

The contract is unilateral if one or more persons assume an obligation to another (person) or to several other persons and without the obligation arising from the latter.

A contract is an exchange if each party undertakes to give or do something, and what it has to give or do is considered as equivalent to what is given to it or what is done for it.

A contract for compensation is one that imposes on each of the parties an obligation to give something or do something.

Contracts, both having a special name and not having one, are subject to the general rules contained in this title.

Special rules for some treaties are set out in the titles relating to each of them; special rules on trade transactions are established by laws relating to trade.

The main condition for the validity of any agreement is recognized as "the consent of the party that undertakes." There is no consent if it was the result of delusion, if it was extorted by force or deceit.

On this basis, the principle of "freedom of contract" is constructed, which is fundamental for bourgeois law, especially in the first period of its existence.

The legislator forbids cheating, but he consciously ignores the simple fact that the equality of parties he assumes in a contract is (when it comes to workers and entrepreneurs) a formal, and therefore a false equality.

Based on the formal consent of the parties, "freedom of contract" is false in many other respects. To say nothing of the aspect of the matter, that for the most part contracts are predetermined to one degree or another by the given state of economic ties, by the given level of production and exchange. In relations between entrepreneurs themselves, "freedom of contract" is very often a legal fiction, since there is an inequality of wealth, dependence of one enterprise on another, struggle for credit, competition in the market, etc. The French code adheres to the principle of strict enforceability of the contract, regardless of the conditions. Contracts legally concluded, he says, have the force of law for the parties.

The only case when termination of the contract is permissible is by mutual agreement of the parties.

War, natural disasters, economic shocks, etc., could, as a general rule, entail a delay in performance, but not a termination of the contract.

The German civil code adheres to the same principles as the French one, but the difference in time has also affected this case. Nowhere, except in the section dealing with obligations, do we find such an abundance of "rubber" formulas. Section 138 states that a transaction that violates the norms of public morality is void; Paragraph 157 allows judges to interpret contracts as required by good conscience and customs of business, etc. Invoking the extra-legal and indefinite concept of "good conscience" into the service of class bourgeois justice, the authors of the GGU pretend that there is some morality common to all. But invariably it turned out that the struggle for the market, for the monopolization of the sale of goods, etc., corresponded to "good conscience", despite the inevitable rise in prices and the ruin of the losers, while the struggle of the workers against the strikebreakers contradicted it.

Author: Selyanin A.V.

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