ANTONIO SILVA1
UNIVERSITY OF EXTREMADURA, SPAIN
THE ROLE OF CONSENT IN THE FORMATION OF CONTRACT
IN COMPARATIVE PRIVATE LAW
Contents
1.The autonomy of will in the Spanish civil law............................................... 118
2.The autonomy of will in comparative private law.......................................... 118
3.Consent as a requirement in performance of contracts in comparative law.. 121
3.1.Introduction.....................................................................................................121
3.2.Concept of contract in comparative private law ...............................................122
3.3.Consent in the conclusion of contract...............................................................123
3.4.Consent inter praesentes..................................................................................125
3.5.Conclusion of contracts inter non praesentes ...................................................125
Conclusions ..................................................................................................... 126
1
Antonio Silva is vice-dean and professor of law at the University of Extremadura, Spain. Email: <asilva@unex.es>.
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"Every country that uses law and custom uses
in part their own law and in part a common
law to all men..." (Gayo, Institutiones, 1.1)
1.The autonomy of will in the Spanish civil law
The Spanish Civil Code contains the autonomy of will and its limits in its article
1255: ”The contracting parties can establish the pacts, clauses and conditions as
convenient whenever they are not contrary to the laws, to the moral and the public order.”
What do we understand by against law, moral and public order? Against law, can
be understood as a limit about creation, modification and extinction of certain contracts.
Moral and public order are mixed in the Spanish Civil Code, sometimes good custom is
used to refer to the same concept. In this way, the article 1271 in its third paragraph says:
"to be equally contract object all the services that are not contrary to the laws or to the
good custom”; and the article 1328 (impediment, in marriage law) says: ”Any stipulation
contrary to the laws or to the good custom or limitative of the equality of rights...”.
The Spanish Supreme Court defines public order as “juridical public and private
legal principles about political, moral and economic affairs that are absolutely obligatory
for the conservation of the social order in a country and in a certain time”2; and the article
1258 of the Civil Code: ”Contracts are valid by the mere consent, and from then, they not
only force the execution of the specifically agreed thing, but also to all the consequences
that flow therefrom, according to their nature, to the dictates of good faith, to usage and the
law”. Other articles, which contain some restrictions to the freedom of contracts such as
articles 1275 and 1116 say: ”The impossible conditions, those contrary to the good custom
and the ones the law forbids will render such obligations invalid.”
In various decisions, the Spanish Supreme Court has recognized the importance of
the autonomy or freedom of the parties to contract but always under some restrictions as
consequences of a moral status of the society at a certain moment3 that can change with the
progress of that society and the law must be adapted to the new situations and the new
moral even if this supposes a wider restriction of the freedom of carrying out contracts4.
The Spanish Constitution of 1978, Article 33.1, says: “property rights and
inheritance rights”; with its restrictions in the second paragraph: ”The social objectives of
these rights will establish the content, according to the Law”; and the exceptions of the
third paragraph: ”Nobody will lose the right over the goods with the exception of a public
justification or a social interest, with its economic compensation”.
2.The autonomy of will in comparative private law
The German Bürgerliches GesetzBuch of 1900 (book 1, title 1) protects the
freedom of the parties in its article 138.1º: ”A contract against good customs is useless...”,
2
Decisions of the Supreme Court, April 5th 1966 and December 31st 1979.
Decision of April 2nd 1946: ”The principle of autonomy of will is not an absolute one because
of its restrictions to the freedom to establish relationships”.
4
Some restrictions can be found in other articles of the Spanish Civil Code, like articles 1255
and 1116: ”Conditions that are impossible to carry out or that are against good customs or forbidden
by the Law, will declare the obligations invalid...”. We can find those limits, as well, in lots of
statutes like Law of usury (1908), Law of Labor Contracts (1944) or Law of Mortgage (1947, whose
last most important modification took place in 1983), its development in subsidiary rules and more
actual statutes that limit the individual will of contract: Law of workers (March 10th 1980), Law of
rural rentings (December 31st 1980); Law of secures (October 8th 1980).
3
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and 138.2º declares invalid any agreement in which one person takes some patrimonial (and
economic) advantages from another and the value of this is much bigger than the object that
will be exchanged5.
The Italian Civil Code of 1942 is more concerned with unilateral contracts inter
vivos with a patrimonial value as a complement to the contractual system (article 1324)6.
Betti considers that the behavior of the parties is more important than their will.7
The Scandinavian countries published their rules on contracts during the twentieth
century trying to complete and modernize their civil law8. Lucidi considers that an
important feature of the Scandinavian codes is treating offer and acceptance as two
different agreements and not one as in the traditional legal systems.9
The Austrian Civil Code of 1811 (Allgemeines Bürgerliches Gesetzbuch, ABGB)
presents a new language since the definition of Rechtsgeschäft. The freedom and
restrictions of the parties in the contractual system is basically the same as in the German
Bürgerliches Gesetzbuch (BGB)10.
The Dutch civil codification can be divided in two periods: a) the Civil Code of
1838 based in the Napoleonic Civil Code that does not consider contract as a species of the
genus legal acts, b) the Civil Code of 1992 (third book) based on the German idea of legal
acts and contracts as can be seen in its second title (articles 32-59)11.
The Greek Civil Code of 1940 (first book) is based on the German model12 like the
Portuguese Civil Code of 196613 and European East countries.
In Hungary, Bulgaria and Rumania, the legal act as such is not expressly found in
the respective codes and is present only in doctrine.14 Under Soviet law and doctrine, while
offer and acceptance were recognized formally (Civil Code of the Russian Federated Civil
Republic, 1965, articles 162-165), the concept of the will and of the importance of the
consent to be bound was artfully subsumed by, among other things, an authoritative
doctrinal exposition that made legal acts a subset of legal facts.15
5
The contract will be invalid because the lack of form only when the Law (paragraph 125) or the
parties declare it with some exceptions of a partial validity (paragraph 139) or the conversion of an
invalid contract (paragraph 140) and the principle of free circulation of goods (paragraph 137).
6
In Italy, a contract is an instrument to exchange goods and services as a result of the private
agreement of the parties.
7
E. BETTI, Teoría General de las Obligaciones, translated by José Luis de los Mozos
(Madrid, 1969).
8
Contractual Law of Norway of 1918, Law of Sales and Law of Contracts in Sweden (of 1905
and 1915) and Nordic Law of Sales and Principles of Contracts in Denmark (1907 and 1918). In
Iceland, there is a Law of Contracts of 1936 and in Finland a Law of 1926.
9
I. LUCIDI, Atlas de derecho privado comparado, (Coordinado por F. Galgano), (Madrid,
2000), pp. 118-119.
10
This model will be received in Liechtenstein.
11
This can be seen in Article 59 that states that a contract is a will expressed in order to
produce a legal effect.
12
It includes some aspects like the validity of contracts, representation, prescription and conditions.
The same book of the Civil Code (chapter V) deals with the declaration of will as a legal category that
unifies different legal acts.
13
Like the Civil Code of 1867, the last one takes a lot of German and French legal institutes,
but there are substantial distinction with the BGB, e.g. the Portuguese codification (Civil Code of
1966 that replaces the 1867 Civil Code) does not have a definition of legal act and only declares
(article 217) a sentence referred to freedom of will.
14
In Bulgaria, the Law of Obligations and Contracts says (article 44) that: ”the rules over
contracts will be applied to any unilateral declaration of will if the law lets that rights and obligations
could grow, modify or extinguish from the absence of them”.
15
O.N.Sadikov, editor, Soviet Civil Law (Armonk, New York: M.E. Sharpe, publishers), p.37.
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In Poland, it was important the General Dispositions of Civil Law of 1950 until the
publication of the Civil Code of 1964 (enacted in 1965) that contains a special
consideration (articles 56 to 65) to any declaration of will as one but the most important of
the origins of contracts. Today a Civil Code of 1997 is enacted.
In the Czech and Slovak republics, the common Civil Code of 1964 (chapter four)
paid special attention to the concept of legal act. Its importance is contained in article 34:
“a) declaration of will b) in order to create, modify or extinguish a right or a duty c)
authorized by the civil law d) and produces its effects”16. After the separation in two
different republics, the Czech have published their own Civil Code of 2001. In Russia, the
new Civil Code of 1995 (like the former Code of 1964) contains a category of legal acts
that continues with the German tradition17.
Among the Far East legal systems, the Japanese Civil Code of 1898 assumes the
German doctrine of Willenserklärung (first book, title four, articles 90 to 137)18. It can be
divided into two parts: a) a general one, that contains dispositions in general, and b) specific
regulations like invalidity and inefficacy (chapter two, articles 93 to 98). In this area, the
People’s Republic of China presents a new way of evolution that can be seen in the
regulation of contracts that has become more important since the promulgation of the Law
of Commercial Contracts of 1981. A new event completed this regulation since 1987 in
which a General Principles of Civil Law was published that deals with contracts among
private citizens19.
Let we see some American Civil Codes: the Brazilian Civil Code (Código civil dos
Estados Unidos do Brasil) of 1916 can be divided into two big parts. The first is referred to
books I, II, and III (persons, goods, contracts). The Article 81 (book III) gives a classical
definition of legal act, which is considered as an evolution of the German doctrines.
In Chile and Argentina, legal acts have been considered as a legal category.
Articles 1437 to 1469 of the Chilean Civil Code, and articles 944 to 978 and 1137 to 1166
of the Argentinean Civil Code, whose article 944 - Civil Code of 1871 and modified in
1968 - says: “Contracts are those declared free and under the law and in order to establish
among people legal relations and create, modify, transfer, maintain or extinguish rights”.
The Peruvian Civil Code of 1984 refers to the question with more than ninety
articles (140 to 232)20. In Paraguay, the Civil Code of 1986 defines the legal act in its
articles 296 to 371. In Cuba the Civil Code of 1987 replaces the Spanish21 of 1889. It is an
16
Defects of declaration, article 37: ”the legal act, could not be valid if it is not concluded
freely, seriously, precisely and comprehensively”.
17
The Article 153 defines the legal act as “those acts that citizens or organizations make in order to
create, modify or extinguish rights or obligations”.
18
The Code that is divided in five books has in its first book the general introduction and it is
quite similar to BGB.
19
Its promulgation has its origin in the private property, the market economy and the
commercial and contractual relationships. In the Article 54 where the legal act is defined in the same
way. Most of the socialist and ex-socialist republics distinguish between civil law and economical
law. The first deals with subjects in which the State does not act (private agreements, succession
mortis causa in private property). The economic law deals with public dispositions between the State
and the citizens and public enterprises.
20
The Article 140 contains a classical definition and requirements of the contract.
21
Blas Roca said: “It was urgent and necessary the substitution of the old Spanish Civil Code
by a newer one that could respond to the conception of sovereignty and solve new problems
meanwhile the socialism is being built. The old Code was a good one to old problems and
relationships between landlord and slaves...the new Code is good for the will of the workers in
general and everyone who works with their hands...”. These words were pronounced by Blas Roca
Calderío, on the occasion of the presentation of the Civil Code of the Cuban Revolution. Blas Roca
was the president of the Cuban Comission that made that Code.
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exception in Latin-American civil law tradition, based on the German model regulation of
will with little exceptions22.
In this way it is very important the regulation of the article 49 (among others, like
articles 22 and 23 – book I, title I; articles 45 and 47 – book I, titles III and IV) as an
exceptional expression of the legal act. All of them are examples of contractual
relationships (article 309: “Through a contract a legal act is created or modified or
extinguished”, and 310: "The contract is perfect since the parties agree in the manifestation
of will”).
In Ecuador, the article 1480 (connected with articles 1488 to 1500) of the Civil
Code says: "The obligations can have its origin in the manifestation of an agreement
among the parties – contracts and bailments; or from a free act as the acceptation of an
inheritance or a legacy and in every quasi-contracts; or from a fact that causes a damage
or injury to a person as in case of delicts or quiasi-delicts; or from the disposal of law as in
the case of parents and children”23.
Quite important North-American Civil Codes are the Civil Code of Quebec of
1994 (that replaces the Côde Civil Du Bas Canada), the Civil Code of Mexico of 1926 and
the Civil Code of Louisiana of 1825 (with its most important reform of 1870, now repealed
by a complete revision of contracts in 1983)24. This one and the Civil Code of Quebec
contain a quite similar regulation of contractual system. The Civil Code of Quebec in its 5th
book (obligations), chapter 2º, sections 1º to 3ª (articles 1371 and followings and 1398 to
1408) places contracts as a source of obligations, framework in which the consent plays an
important role. On the other hand, the Civil Code of Mexico, statutes legal acts in several
articles (1792 and followings).
3.Consent as a requirement in performance of contracts in comparative law.
3.1.Introduction.
The most important sources of obligations in the oldest private Roman law are
torts and contracts. From the torts appears the obligation of restoring the illegal damages
from the others, an acceptance by one of the parties and the consent of the other25. In every
contract there is a convention (two or more people agreed on a certain object with a specific
intention of making effects: creating, modificating or extinguishing a right)26.
Different interpretations of contract can be found and divided into five main
groups: a) contracts as an agreement with the objective of create obligations and rights27 or
22
The more important modifications are relationed with marriage (not formal one), the
original acquirement of the property of goods, the presumption of property and the determination of
the damages that are quantified.
23
Other South and Central American Civil Codes in the same way with logical difference are
the Civil Code of Uruguay, Bolivia (1976), Venezuela (1982) and Puerto Rico (1930).
24
Its more important reform is from 1870.
25
D.2.14.1.2;(ULPIANO, Libro IV ad Edictum) and other ways (I. 3.12.2, ex variis causarum
figuris; D.44.7.1pr - GAYO, Libro II, Aureorum).
26
Since the end of the Republic, the Roman system distinguished different kinds of contracts:
a) verbis, which cause effects from the pronunciation of certain words, b) litteris, that must be written,
c) re, requires to have the possession of the thing, d) solo consensu, the simple consent of the parties
is enough for a perfect contract and e) innominees (D. 2.15.1.50 y D. 43.26.1 pr-ULPIANO, Libro I
Institutionum: permutatio, aestimatum, precarium y transactio), so called because they do not have a
specific name or requirements to be included in one of the former and classical four groups.
27
The concept found in the Italian Civil Code of 1865 and in the Bürgerliches GesetzBuch,
paragraph [sic] 305: "In order to create an obligation or modify it, it is necessary a contract between
the parties except when the law establishes a different way...".
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extinguish them; b) classical theories which consider the contract is an agreement that deals
with patrimonial relationships (Sánchez Román, Planiol, Giorgi, etc.)28; c) an eclectical
concept of contract as a way of transmission of property rights, which have the effect of
creating an obligation or extinguishing it (De Buen)29; d) new positions that limit the
concept of contract (Jellinek, Duguit, etc.) in a simple way of satisfaction of opposite
interests (Puig Peña, Fernández de Velasco...), against other authors that believe that
contract should satisfy different (but not opposite) interests (Gimeno Linares); e) nowadays
contract is conceived as a legal act with some patrimonial and bilateral effects (Lacruz
Berdejo, Albaladejo, Díez Picazo, etc.).
The Spanish Civil Code is a peculiar one if we compare it with others because it
has no definition of contract, despite that it could be possible to understand that article 1254
is a definition of it. A contract can create, modify or extinguish obligations and create a
right over things through the datio, through another way like the hypotheca, even can
produce a patrimonial transmission (donatio) or linking the intervinients [sic] in making a
future contract (pactum in contrahendo).
3.2.Concept of contract in comparative private law
The concept of contract has not the same meaning in the different families or law
systems. In common law countries the concept of contract is more restricted than in civil
law countries, where we can find unilateral and bilateral contracts, e.g. French Civil Code,
articles 1102 and 1103. In the common law, contract is used to refer to that kind of
agreements, which in civil law are defined as bilateral contracts and where the
consideration – exchanging duties between the parties - is essential.
Cheshire y Fifoot30 thinks that in common law, an act that does not imply an
exchange is not a contract and it is called a deed or an act under seal31 – like an unilateral
contract in civil law countries - a formal act that implies an obligation without
consideration.
Even in civil law countries the expression and definition of contract could be
different. In this way we can find the German doctrine that do not define it (neither do the
Bürgerliches GesetzBuch (BGB)). But even so, we find some authors that define contract:
a) Larenz32 thinks that contract is the agreement among the parties that want to create a
right that causes effect to them; b) Maynz: “contracts are manifestations of will that can
create or extinguish obligations”33. The difference between this idea of contract and the
one in the Italian Civil Code (article 1321) can be seen in its definition as an “agreement
among two or more parties to create or extinguish a legal and patrimonial relationship for
themselves”.
28
This is the concept in the French Civil Code, article 1101: ”Contract is an agreement by
which one or more people force themselves to give, to do or not to do anything...". The second
concept would be the agreement over a thing that has a legal relevance. (J. CASTÁN, Derecho civil
español común y foral, tomo III, Derecho de Obligaciones (Madrid, 1986), p. 455).
29
The actual position of the Italian Civil Code, article 1321: "It is the agreement between two
or more people to create... or extinguish a legal and patrimonial relationship".
30
FIFOOT, L.-CHESHIRE, D., Law of contract, 10ª edición (Bristol, 1975).
31
The requirements consist in a written document with the sign [sic] of the offeror with the
presence of a witness and the delivery of the document to the beneficiary (it can be seen nowadays in
Great Britain through the Law Property Act of 1989, first section). Examples of deed: deed of gift.
32
K. LARENZ, Lehrbuch des Schuldrechts (München, 1986-1987), p. 45.
33
Text found in J. CASTÁN, Derecho civil español común y foral, tomo III, Derecho de
Obligaciones (Madrid, 1986), p. 455.
Antonio Silva The role of consent in the formation of contract in comparative private law
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Quite similar are the definitions of contract in the socialist and ex-socialist
republics34. All of them have a common element that is the consent or agreement of the
parties. This is the reason why Mc Gregor defines the contract in these countries as “an
agreement among two or more people which is recognized by the law in the sense of
creating, modificating or extinguishing legal acts”35.
The principle of consent is important in contracts in the common law system that is
different compared to civil law. In the latter system, there are two main groups: a) RomanoGermanic system founded in the traditio principle, and b) the French system (accepted in
Italy but not in Spain). The principle of non-effects of the causa is connected to the traditio
in Germany, but not in Austria, showing some differences even in the same group of
Romano-Germanic law family. German law also does not accept the category of re
contracts (as Austria and France do). In Denmark the consent is an important requirement
and the causa is not included as another one. Even the conclusion of contract in some civil
law countries (as France) go beside the common law system and we can appreciate three
different groups: a) the validity of contract in the moment of the reception of the consent;
b) the importance of the moment of the knowledge and c) the moment of the expedition36.
3.3.Consent in the conclusion of contract
The consent of the parties – agreement in common law - is one of the requirements
of contracts and raise in a previous moment of its celebration so called preliminary acts of
the contracts (in Spanish: actos preliminares del contrato).
The consent can be expressed with no doubt37, in the Cuban Civil Code in its
article 309: “Through the contract a legal relationship begins or is modified or is
extinguished”38. The consent of the parties is not always enough, but in re contracts it is
enough the fact that one of the parties gives the thing to the other. Re contrahuntur category
of contracts included depositum, mutuum, comodatum and pignus in Roman law, as well as,
in civil law countries like Spain, Portugal, Austria, France, Netherlands and Italy39.
In French and Belgian civil law, beside the depositum other different contracts,
like the comodatum and mutuum are added. The Italian civil law considers the comodatum
as a re contract (the Civil Code, article 1803), and the depositum (articles 1766 and 1783)
and the pignus (article 2786) too. Austrian civil classification of contracts is quite similar to
Italian as, for example, the comodatum (paragraph 983 of Allgemeine Bürgerliches
Gesetzbuch (ABGB)).
34
For example, the definition in the Russian Civil Code of 1995.
H. MC GREGOR, Contract code, (Milano, 1993), p. 1.
36
This is the model in common law and the French Law.
37
The French Civil Code (article 1108), the Italian Civil Code (article 1325.1), the Spanish
Civil Code (articles 1258 and 1261), the Swiss Civil Code (artícle 1) and the Russian Civil Code
(article 34).
38
Other articles of the Cuban Civil Code say: “The contract is concluded since the parties, in a
reciprocal way, manifest their will”(article 310), “In the contracts the parties can establish the pacts,
clauses and conditions that have for convenient, except a legal disposition in contrary” (art. 312).The
intervention of the State makes two different effects on the will of the parties: “The price of sale and
purchase is one that is settled by the official regulations and, only when these don't exist, it is the one
that the parties can agree” (article 336), and art. 429: “For the contract of public transports, the
carrier is under an obligation to transfer the passenger to the destination point, and latter - to pay for
the service of conformity with the effective rates”.
39
Others in the same way like Russia, Czech and Slovak republics, Nordic countries (except
Denmark), Baltic countries, Poland, etc.
35
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In German and Swiss civil law this kind of contracts is consensual. The Swiss
Code of Obligations says in its article 472: ”a contract by which the depositary has
acquired an obligation to the depositor to receive a movable thing as this one trust in the
former in order to save and protect it in a safe place”. In this way it can be understood that
the main thing is not bringing the thing but the initial manifestation of consent40.
When can we speak about agreement of the parties? In Spain, the article 1258 of
the Civil Code says: "Contracts grow from the sole consent”; in Austria, the Allgemeine
Bürgerliches Gesetzbuch (paragraph 869) declares the wahle Einwiligung as a free, serious
determined and comprehensible one. The Swiss Civil Code of obligations (article 1º)
determines the will of the parties as the main requirement to form contracts (either tacit or
express) as the Civil Code of Quebec does in its articles (1386 and 1398), and in the
common law countries plays the agreement.
The Mexican Civil Code (article 1792) says: ”Agreement is when two or more
people – relationed with article 1794.1 - want to create, transfer, modify or extinguish of
obligations”, in connection with article 1793: ”Agreements that produce or transfer
obligations and rights are called contracts”. The Civil Code of Paraguay (article 674
connected with articles 675 and 676) says: ”The consent must be declared in connection
with the offer and its acceptation...it will be well declared if it is done immediately”.
When can be said that consent – by conduct or by declaration - is a valid one?
Bianca says that “consent is by conduct when the parties express their will through certain
and undoubtful behavior different than that, which is the language and can be understood
in that way from the circumstances”41. The Bürgerliches Gesetzbuch (paragraph 151) says:
“The contract is perfect from the acceptation of the offer, even without the notification of
the acceptance to the offeror if this acceptance is not necessary because of the normal legal
traffic or if the offeree has renounced. The moment that the offer expires can be determined
from the will of the offeror”. The Italian Civil Code, article 1327, expresses the same
definition. The consent is by declaration when it is expressed by words or different
language signs that are communicative way accepted by the society, for example, stand up
in an auction42.
Silence is not usually accepted as consent of the offer43, though there are some
exceptions in civil law countries. The Italian Civil Code (article 1333) says: “The offer to
conclude a contract with the only effect to the offeror is irresolute [sic] from the moment it
is received by the offeree... if the offeree does not reject it, the contract is valid”. The
silence can express the consent. This happens in the Spanish Civil Code when it is logical
interpretation of an offer or acceptation by conduct. In common law countries the
requirement of the consideration makes it difficult to form a contract where silence is
equated to acceptation.
Another exception is the German stillschweigende Verlängerung des Mietvertrags
(paragraph 568 Bürgerliches Gesetzbuch: ”If ending a contract – renting the tenant goes on
using the thing, it is considered extended for an indefinite time except if the owner or tenant
declares a different will in two weeks”; a renewal of the contract of renting by conduct
(French Civil Code, article 1753, and Italian Civil Code, article 1597). The Swiss Code of
40
And other countries like Denmark and Hungary. Very similar is the content of the Civil Code
of Quebec (arts. 2280 to 2311).
41
A. BIANCA, Commentary on international sales law. The 1980 Vienna sales Convention
(Milano, 1987), p. 87.
42
The distinction is well known in countries of the common law system where there is a
difference between acceptance by declaration and acceptance by conduct.
43
Japanese Civil Code (article 521.2º: ”The offer ceases if the offeror does not receive the
acceptation of the offeree in the term disposed in the former paragraph".), Czech Civil Code (article
44.1) and the Polish Civil Code (article 62 in connection with article 61).
Antonio Silva The role of consent in the formation of contract in comparative private law
125
Obligations declares, article 6, that: “When the contract, because of its special legal nature,
does not require acceptation by declaration, it is considered valid if the offer is not denied
in a congruent period of time44”. So, only if the circumstances requires it, the principle of
acceptation through the silence is valid but in an unexpected situation and during a
congruent period of time.
3.4.Consent inter praesentes
This situation occurs in Roman law (sponsio-stipulatio) without a period of time
longer than required to answer the question between the parties - unitas actus. This Roman
principle became more flexible through the centuries and the use of commerce. In this way,
the Swiss Code of Obligations, article 4.1, says: ”The proposal made to a person...is not
obligatory if the acceptation is made immediately [sic]”. The Spanish Civil Code, article
1262, can be considered from the point of view of the offer and the acceptation over the
object and the causa that is legal origin of the contract45.
The problem rises when the parties are not in the same place but use some media
such as the telephone, telegraph, etc., that are different ones from those included in the legal
regulation, what happens in the Spanish Civil Code (article 1262). In the case of a
telephone call, it can be applied the agreement inter praesentes (the place where it is
celebrated is where the offeree was at the phone call). It is the solution in most of the civil
law countries such as Austria (paragraph 862, Allgemeine Bürgerliches Gesetzbuch),
Germany (paragraph 147.1º, Bürgerliches Gesetzbuch: ”An offer made to a person who is
in the same place as the offeror can be accepted only immediately. This can be used in the
case of a telephone call as well”); Switzerland (Code of Obligations, article 4.2º), Hungary
(Civil Code, article 211.2º) and Paraguay (article 675 of the Civil Code: "the offer made to
a present person exists if is immediately accepted... by telephone or other means that allows
each of the contracting parties to know the will of the other one immediately”). In this way
the article 1374 of the Peruvian Civil Code was reformed (statement 27291 June, 24th
2000) in the same direction the common law countries consider inter praesentes the parties
in a telephonic conversation but not those who use the telex46.
3.5.Conclusion of contracts inter non praesentes
In this case we can see three different possibilities: a) the principle of knowledge;
b) the principle of reception; c) the principle of acceptation or emission. The first is known
44
Principle included in the Portuguese Civil Code (article 234).
Decisions of the Spanish Supreme Court (May 13th of 1963 and December 14th of 1964);
also see paragraph 862 of the ABGB and the article 64 of the Argentinean Civil Code and other
European countries like Czech republic (article 45.1) and the Russian Civil Code (article 163.1). The
same principle can be found in the common law countries like North American law and English law
(Entores ltd. v. Miles Far East Corporation, 2 All E.R., 493, (1955).
46
Special problems of giving the consent present the proposal and offer to the public. When
can be understood that the offer can be revoked? How long can be the consent expressed? Public offer
usually means a declaration made by someone to certain person or the public in general (articles 1860
to 1881 of the Mexican Civil Code, 1860 and 1861: “made of offering to the public objects in certain
price, he/she forces the owner to sustain their offer. The one that commits to some benefit in favor of
who fills certain condition for announcements or offers made to the public... it contracts the
obligation of completing that promised”); the same is included in the Peruvian Civil Code (article
1373), the Civil Code of Uruguay (article 1262) and the French Civil Code (article 1336). In common
law countries this offer is called like offer to the public. When the parties are not present, the consent
is expressed in different moments and the declarations of will are called offer and acceptation.
45
International Journal of Baltic Law
Volume 1 No. 2 (February, 2004)
126
as the Vernehmungstheorie, principe d l´information or theory of information. According to
this principle, the contract between the parties who are separated by a long distance causes
effect from the moment when the offeror has known the acceptation of the offeree. The risk
of the transmission of the acceptation relapses [sic] over the offeree47. The second principle
is known as the Empfangstheorie or théorie de la réception, it declares that the contract
causes effects when the acceptation of the offeree arrives to the address of the offeror48, and
the risk is assumed by both parties. The offeree will assume the risk until his declaration
arrives to the address of the offeror and this one will assume the risk since that moment.
The third principle is of the expedition or mail-box rule, it means that the contract causes
effect since the moment of the simple issue of the acceptance by the offeree even though he
has not yet sent the mail, which contains this positive desire. An example of this principle is
the Argentinean Civil Code (article 1154), Civil Code of Paraguay (article 680), the Swiss
Code of Obligations (article 10), and the Civil Code of Quebec (article 1388)49.
Conclusions
1. The principle of autonomy of will in comparative private law is adopted,
basically, in the German legal systems as we can see in countries like Netherlands,
Portugal, Denmark, Iceland, Norway, Finland, Armenia, Poland, Russia, Peru, Brazil,
Latvia, Greece, Paraguay, Argentina, Uzbekistan, Kazakhstan, etc.
There are some other countries where legal system is basically the same like in
Spain and Italy. Some other legal systems like French, Swiss, Belgium or common law
ones, do not recognize that concept of legal act. That is the same in some Latin-American
countries and some Islamic countries legal systems that adopted the French or English
concepts like Mexico, Guatemala, Cuba, Chile, Bolivia, Colombia, Ecuador, Venezuela, El
Salvador, Honduras, Nicaragua, Canada, United Sates, Panama, Jamaica, Belize, Puerto
Rico, Philippines, Pakistan, India, etc.
2. Nowadays, contracts are consensual and the only difference is in the economic
and social objectives (causa). This concept of causa is supported by most of the civil law
47
Article 1262.2 of the Spanish Civil Code. The Spanish Commercial Code does not continue
the civil law principle as can be seen in its article 54: "The contracts made by mail will cause effect
from the moment of the positive answer to the proposal", and would be closer to the theory of the
simple emission of the acceptation. The same principle is known in Italy (article 1326.1 connected
with the article 1335), Honduras (article 1553.2 of the Civil Code), Philippines (article 1319 of the
Civil Code).
48
A very common principle is accepted in the Civil Codes of countries like Austria
(paragraph 862ª), Germany (paragraph 130.1), Mexico (article 1807), Poland (article 70), Russia
(article 433.2), Switzerland (article 3.2) and Hungary (article 213).
49
This principle is known, basically, in common law countries (USA, Liberia, Ghana,
Pakistan, India, Canada, Australia, New Zealand, Great Britain, Ireland, etc.) and others that
traditionally are included as civil law countries like Spain (Commerce Code that differs from the Civil
Code), France, Italy and Quebec, Albania, Netherlands, Algeria, Egypt, Peru, Venezuela, Honduras,
Bolivia, Philippines, etc. Other civil law countries include in their legislation the principle of the
reception, which happens in Mexico, Chile, Uruguay, Russia, Poland, Czech and Slovak republics,
Germany, Rumania, Hungary, Bulgaria, Austria, Greece, Turkey, China, Japan, Baltic countries,
Scandinavian countries, etc. A particular exception is Portugal where both reception and knowing
principles (articles 224 of the Civil Code) are considered valid. In Scotland nowadays is accepted the
idea of the emission of the consent as the sole requirement in order to declare a contract valid (1848,
6. Bell. App 195), although the reception of the letter or fax is recommended (Thomson v. James) like
in English law.
Antonio Silva The role of consent in the formation of contract in comparative private law
127
authors50. In Comparative law, German and Portuguese legal systems, we can only talk
about legal tipicity because there is no causa as an element of the legal act and it is
considered as a way to control by the legislator over as formas de aproveitamento das
coisas (Da Rocha51). In French law, the causa is a specific intention of the parties because
of its relationship with the contract (Planiol52). There is another mixed doctrine of the causa
called sincretic direction, dirección sincrética that tries to combine different positions: the
will of the parties and the legal frame in which the contract has to be in53.
3. The real contract in civil law is not a contract in common law. Mutuum,
comodatum, depositum and pignus are not contracts but bailments. The obligation of the
bailee is the restitution of the res or to take care of it before its restitution. From the
responsibility of the bailee does not raise a civil action of the bailor but a real action
because of the property of the thing or its possession. The civil law system lets the
depositarium or comodatarium to obtain the restitution of the thing because of the proof of
the contract and not with the proof of the property over the thing or its possession. The
donatio gift - a real contract in civil law is not so in common law. The movable thing that is
given with the will of transferring its property makes it a perfect contract. There is no
contract because there is no exchange of different things between the two parties and even
no deed is required because it is placed by the act by which the thing is given.
On the other hand, the consent can present some specific problems like the
silence or the acceptation inter ausentes. In the first case, most of the legal systems consider
it as if it were not accepted with restrictions like in Switzerland. In the second situation,
most of the common law countries consider important the principle of the emission of
acceptation. Among the civil law countries, most of them consider the preeminence of the
principle of knowing or the principle of the reception of the acceptation and it is very
unusual the country that accepts the common law principle of the emission.
50
Like J. CASTÁN, (J. CASTÁN Derecho civil español común y foral, tomo III, Derecho de
Obligaciones (Madrid, 1986)), although he refers to the causa objetiva and the causa subjetiva, which
is the connection between law and will. The objective concept is not the content of the article 1274 of
the Spanish Civil Code that has been modified in several moments and has suffered hard discussions
by civilists (Puig Brutau) and the frontal opposition of the traditional concept of causa (L. DÍEZPICAZO, El Concepto de causa en el negocio jurídico", ADC 1963, pp. 3, 18).
51
A. M. DA ROCHA E MENEZES CORDEIRO, Direitos reais, Vol. I (Lisboa, 1979), p. 471.
52
M. PLANIOL-G. RIPERT, Traité pratiques de droit civil français, 2ª edición (Paris, 19521957).
53
Oppositors, like Hernández-Gil and PUGLIATI, consider that it is a collective mention that
deals with law over things that exist in the Spanish law but that were not expressed or included in
article 2.2. of the Spanish Hipothecary Law for different reasons. L. DÍEZ-PICAZO, "El concepto de
causa en el negocio jurídico", ADC, 1963, pp. 3-18 and 23.; J. L. LACRUZ, Derechos reales, vol. I,
1ª parte, Posesión y propiedad (Barcelona, 1988), p. 25.