History of state and law of foreign countries. Development of institutions of bourgeois civil law. Features of English contract law (most important)

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History of state and law of foreign countries. Development of institutions of bourgeois civil law. Features of English contract law (most important)

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Development of institutions of bourgeois civil law. Features of English contract law

English contract law differs little from continental law, except in form. Here, since feudal times, the division of contracts into "formal" (sealed by counterparties) and "simple" ones has been maintained. Formal contracts required strictly defined types of transactions - sales, hiring, guarantees, transportation, etc. The new types of agreements that arose in the course of bourgeois development were ignored by the old English contract law. Judicial practice came to the rescue. In the fight against formal theory, another basis for the validity of contracts was put forward - counter-benefit, reciprocal satisfaction.

jenks writes that the court no longer raises the question: "What kind of contract is this: sale, hiring, provision of services, or some other." He considers the claim justified (and the contract is valid) if it follows from it that the parties have assumed mutual obligations and that the defendant, concluding the contract, made a promise (give or make) in exchange for the promise of the plaintiff. All that was required was that the contract should indicate its "reason", i.e., contain a definite promise to pay the money, a mention of the payment already made, etc.

Pushing aside "formal" contracts, limiting them to a narrow sphere of land relations, simple contracts have become a flexible tool for establishing any form of obligations and their defense in court. Continental law took advantage of this development to construct a unified, unfettered form of contractual obligation.

English doctrine and law have worked hard to establish the conditions that make the contract invalid (especially the "courts of justice." The deliberate deception of the counterparty, with the aim of inducing him to enter into an agreement, is, as a general rule, the basis for terminating the contract. So (according to Jenks), if the seller of a horse claims that he bought it at a previous auction for £500, and this turns out to be a lie, there is grounds for a claim of deceit, but if he says: "Surely, in the upcoming races this horse will come first", and this will be a deliberate lie - there are no grounds for canceling the sale.

There is also a simple silence about any discrediting facts (there is no basis for a claim) and intentional, interpreted as a deception. If the seller claimed that he was selling a Rubens painting, and because of this a fake was bought, there are grounds for a claim of deceit; but if the buyer himself believed that this Rubens, and then it turned out that this is different, there are no grounds for terminating the transaction.

English law adhered to the same principle as French law, that the performance of a contract must be strict and unwavering. In this connection, no event, even the most unforeseen, that occurred after the conclusion of the contract, can release the party from fulfilling obligations under the contract. This principle, he adds, has been established since the civil war (mid XVII in.).

As capitalism develops into monopoly capitalism, the principle of the immutability of contractual relations is experiencing a certain crisis. This was already pointed out by the relevant paragraphs of the German Civil Code, which gave the court the possibility of wide discretion in regard to the enforceability of contracts, in particular paragraph 157, which makes the execution of the contract dependent on how, in relation to this case, the court interprets "good conscience" and " turnover customs.

Thus, the execution of treaties in the leading bourgeois countries is based on practically the same principles.

Author: Selyanin A.V.

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