Edited by Jan M. Smits
Chapter 51: Offer and acceptance inter absentes
The notion of ‘contract’ has been adopted by both the Common Law and the Civil Law; nevertheless, the apparent prominence of a concept ‘in two legal systems should not mislead one into seeing similarity where there is significant difference’ (Zysow, 1985). The most obvious difference relates to the different ‘indicia of seriousness’, i.e., the ‘general requirements to distinguish those promises which are legally significant from those which are not, to distinguish serious from unserious promises and thus to determine which promises are actionable and which are not’ (Zweigert and Kötz, 1992, p. 419). In Civil Law, at least in the so-called ‘romanistic’ area, this function is generally performed by the so-called causa or cause, i.e., a generalized reasonable motive for making a contractual promise. By contrast, in Common Law, consideration ‘stands, doctrinally speaking, at the very center of the ... approach to contract law (von Mehren, 1959). Although these concepts perform basically the same functions (see Markesinis, 1978) (it has even been argued that they are the same), they do not correspond; neither do the corresponding concepts of contracts which are in most, albeit not all, countries based upon one of these ‘indicia of seriousness’. However, this does not exclude the possible correspondence of other elements of contract in the different legal systems, such as the consent of parties and its elements: offer and acceptance.
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