Contract law

from Wikipedia, the free encyclopedia

The contract law is a law field , the all legal standards comprises the realization (contract, contract), the contract processing , the legal effects and breaches of contracts regulate.


Depending on the content of the contract (subject matter) or the contracting parties involved, a distinction is made between different types of contract. The most common contract in everyday life is the sales contract . Moreover, there is in private law including the employment contract , construction contract , property purchase agreement , loan agreement , lease agreement , lending agreement , rental agreement , lease agreement or contract of insurance . In public law , the public law contract is the most important type of contract. States conclude among themselves, treaties or international agreements from.

Right families

German legal circle

The German Civil Code does not have a separate section on contracts. In a cool abstraction, the contract is only treated in the first book, the general part, as a special sub-case of the general category legal transaction , in the second book as an obligation.

Romanic legal system

Common law

China and Japan

China and Japan share a similar cultural and intellectual-historical foundation that has grown over centuries, despite all the differences that prohibit a connection to their own legal system. The Confucian tradition of both countries stems from a common aversion to law enforceable in state courts. Many divisions that seem indispensable to Western lawyers, such as law and morality, administration and justice, public, criminal and private law, law and duty, material and procedural law, were unknown in China of the Qing Dynasty and Tokugawa Japan. The respective central governments limited themselves to the tasks of the administration and did not see the settlement of disputes of individual persons by providing courts as their task. The subjects of state administration were not individual individuals, but the respective village or family heads. In line with this socio-cultural environment, the Western legal institution of contract, as an individual, legally enforceable and enforceable agreement, was unknown in China and Japan before 1900.

Japan during the Tokugawa period

Under the shogunate of the Tokugawa family (1603 to 1867), a strictly class-feudal society emerged in Japan. The lowest class was that of the merchants. Above them stood artisans, farmers and warriors. The smallest unit was the 150,000 mura . About 85% of the 30 million inhabitants settled in Mura. They were given a great deal of latitude in organizing their internal affairs, as long as they paid their taxes and rendered services. The spatial and social mobility was extremely low. The function of contracts within this mura was taken over by agreements, compliance with which was guaranteed by social control and, in the worst case, by exclusion from the community.

In the castle towns , which were the seat of the respective shogun or daimyo , mostly samurai and traders settled. A brisk commercial activity developed. As a rule, this was limited to members of the same class. The higher number of inhabitants made monitoring through social sanctions only possible to a limited extent, the agreements concluded were more complex. At the beginning of the 19th century, merchants formed guilds that made it possible to implement agreements efficiently through informal agreements.

In the rare cases in which the respective social groups could not settle a conflict consensually, the shogunate administration could intervene. This is not to be seen as an individual right to legal protection, but rather an act of grace to maintain public peace. The officials acted less as judges than as mediators with the aim of finding an amicable solution. There was no review of this mediation in terms of an appeal.

Modern Chinese contract law

The development of modern Chinese contract law can be clearly divided into two phases: A first from 1949 to 1978 and a second since 1979. In 1949, the Chinese economy was in a desolate state. The civil war had split the country into several regional units. There were also various economic sectors that differed in terms of the proportion of state ownership or state intervention. In order to restore a unified national economic area and to link the socialist with the private sector, free trade was initially permitted within China. An important step in the first phase was the adoption of a preliminary method for the conclusion of contracts between authorities, state-owned companies and cooperatives. Their applicability was thus limited to the socialized sector of the economy. The most important regulations were:

  • Written contracts for all legal transactions of a certain relevance had to be concluded between state bodies, state-owned companies and cooperatives if they were not carried out directly.
  • Contracts could only be concluded between legal persons and not between individuals.
  • All payments had to be processed through the party's banks.
  • For loans, either real security had to be offered or the superior authority had to guarantee the repayment. In the latter case, the superior authority monitored the implementation of the contract.
  • In the event of a breach of contract, the debtor and surety are jointly liable for damages.
  • Each contract conclusion had to be reported to the superior authority.
  • Disputes arising from contracts were settled by the superior authority. If the arbitration failed, an action could be taken before the People's Court .

In the 50s and 60s, contracts were mainly a means of state economic planning and were concluded using forms in which only names, quantities and dates had to be entered. The Economic Contracts Act of 1981, on the other hand, allowed contractual freedom to a certain extent. However, this law only applied to contracts between state-owned companies. For legal sub-areas, the Foreign Trade Contract Act and the Technology Contract Act followed in 1985 and 1987. The General Principles of Civil Law in 1986 were the first attempt to put contract law on a broader and more systematic basis. However, the juxtaposition of different laws, numerous implementing provisions and over 50 directives from the People's Court led to great legal uncertainty and numerous loopholes - the simplest principles such as supply and demand or offsetting remained unregulated; From a legislative point of view, vague formulations were preferred in order to ensure an interpretation favorable to the party in case of doubt. With the long-term goal of drafting a civil code, the Legal Working Committee of the National People's Congress began work on uniform and comprehensive contract law in October 1993. In 1999 the treaty law finally came into force. In terms of legislative technology and content, it is largely based on the German Civil Code.

Comparative law analysis

Freedom of contract

In almost all modern codifications of private law, as well as in the rules of common law , the principle applies that what the parties have agreed upon is to be recognized as binding. The principle of freedom of contract applies . The wording of the Swiss Code of Obligations is an example

"The content of the contract can be determined within the limits of the law."

- Art. 19 para. 1 OR

It is formulated similarly in Article 1134 of the French Civil Code :

"The conventions légalement formées tiennent lieu de loi à ceux qui les ont faites"

The reasons for this principle can be roughly divided into two camps: one based on natural law and one utilitarian . This principle had to be restricted, of course, in those cases in which one of the counterparties did not have the necessary judgment to assess the consequences of the contract, that is, when he was not legally competent ; furthermore in those cases in which the contractual partner was only able to conclude the transaction through deception or threats. In the course of the 20th century, these cases of purely procedural ineffectiveness were also added to cases in which the contract should not be considered effective for reasons of content : For example, the principle of freedom of contract was established through regulations on general terms and conditions and in particular through measures of social legislation in the Restricted area of ​​labor and residential tenancy law.

Legal capacity

Conclusion of contracts

In all developed legal systems, contracts come about through offer and acceptance .

Binding effect of the offer

Three solutions have emerged worldwide for the binding effect of the offer. Anglo-American law assigns the least amount of binding to the offer: it is fundamentally freely revocable, even if the offerer has declared himself to be bound within a period of time. This is justified by the constructive, that the common law for any bond is a consideration ( consideration ) requires the addressee has, however, provided an offer for a bond no return. In principle, this regulation also applies in the Romance legal system, but has been restricted by the case law insofar as the addressee is entitled to a claim for damages if the offerer has declared himself bound within a period of time. The German BGB considers the offerer to be bound according to § 145 BGB: A revocation is, at least within a reasonable period, without any effect; The same applies to the other countries of the German legal family, such as Switzerland, Austria, Portugal and Greece.

Standardization at the international level proved difficult due to the widely diverging solutions. A compromise was reached for the CISG that comes very close to the German solution: the offer is basically freely revocable, but Art. 16 (2) CISG contains exceptions that exclude the most important practical cases and stipulate a link to the offer.


The concept of representation was not known to Roman law. It has arisen since the 17th century as a product of economic necessity in a modern society based on the division of labor. “Originally there was no direct representation anywhere. It is a legal miracle. ”The starting point for the modern doctrine of representation was Hugo Grotius and Christian Wolff's idea of ​​party autonomy under natural law . Via Robert-Joseph Pothier , the agency finally came into the Code civil, whose article 1984 defines the mandate as follows:

«Le mandat ou procuration est un acte par lequel une personne donne à une autre le pouvoir de faire quelque chose pour le mandant et en son nom. »

The Civil Code does not distinguish between the underlying obligation (the mandate 'order') and the authority to represent, i.e. H. of power of attorney. The Austrian ABGB also assigns the power of attorney to the contractual obligations. The power of attorney is ultimately identical to the order. Only von Jhering in 1847 asserted a difference between the two, Laband's abstract effectiveness .

Threat and coercion

All continental legal systems know, in addition to error and deception, the threat as a reason for the nullity of a contract. The threat is differentiated from physical coercion on the one hand, and from taking advantage of an existing predicament on the other. In contrast, common law in the narrower sense draws the line differently: declarations can only be made under duress if they were brought about by threat of physical violence or deprivation of liberty. This narrow view was corrected by the figure of undue influence in the equity courts; Even if this figure is primarily tailored to the exploitation of situations of trust, it is nevertheless also applied to cases which, according to continental ideas, are perceived as a threat.

The cases of physical coercion are easy to decide: Actions that take place under physical coercion do not legally exist. It is more difficult to identify those cases of threat that are supposed to bring down a contract: The threat of rejecting a job offer and working for a competitor if the potential employer does not increase the salary agreement is not used in all legal systems as an obstacle to effectiveness understood the contract. So from the cases of threat, those who are legally to be disapproved of have to be singled out.

In the continental European codifications, these cases are only circumscribed as general clauses: The German Civil Code requires that the threat must be "unlawful" (Section 123 BGB), as well as Section 870 ABGB in Austria, Art. 29 Para. 1 OR in Switzerland and Art. 3:44 para. 2 of the Dutch NBW. This initially records all cases in which the threatened behavior violates applicable law: for example, criminal homicide or property offenses against the contractual partner.

The classic economic analysis of law sees the starting point for the separation of enforceable and non-enforceable contracts in the utilitarian function of the contract. As a rule of thumb, if a promise is the price to be more productive through cooperation than without cooperation, it should be enforceable. If the promise is achieved by threatening to destroy or involuntarily redistribute values, it should not be enforceable.

Breach of contract

The service provided may not correspond to the contractually agreed for various reasons:

  • The debtor cannot provide the agreed service for actual reasons. Example: The car sold was destroyed in an accident.
  • The agreed service can be provided, but the debtor only provides it with a time delay. Example: The construction of a house will only be completed three months after the contractually agreed date.
  • The agreed service is provided, but not in the contractually agreed quality. Example: Used doors and windows were installed in the built house.
  • The agreed service is provided, but the debtor violates other obligations that were not agreed in the contract, but are essential for fulfilling the purpose of the contract.

In all of these cases, the question arises whether the contract has become null and void, whether the obligee can continue to insist on performance or whether the obligee can claim damages.



Comprehensive presentations, encyclopedias

Legal circles and legal history

  • Max Rheinstein : The structure of the contractual obligation in Anglo-American law . Walter de Gruyter & Co., Berlin / Leipzig 1932.
  • Kevin M. Teeven: A History of the Anglo-American Common Law of Contract . Greenwood Press, New York / Westport, Ct / London 1990, ISBN 0-313-26151-2 .

Comparative legal presentations of individual problems

  • Hein Kötz : European contract law . tape 1 , conclusion, validity and content of the contract. Third party participation in the contract. Mohr Siebeck, Tübingen 1996, ISBN 3-16-146567-9 .
  • Rudolf B. Schlesinger et al. (Ed.): Formation of Contracts: Study of the Common Core of Legal Systems . Oceana Publ., Dobbs Ferry, NY 1968.
  • Jacques H. Herbots: Interpretation of contracts . In: Jan M. Smits (Ed.): Elgar Encyclopedia of Comparative Law . Edward Elgar, Cheltenham / Northampton, MA 2006, ISBN 1-84542-013-6 , pp. 325-347 .
  • Franco Ferrari: Offer and acceptance inter absentes . In: Jan M. Smits (Ed.): Elgar Encyclopedia of Comparative Law . Edward Elgar, Cheltenham / Northampton, MA 2006, ISBN 1-84542-013-6 , pp. 497-516 .
  • Marco Torsello: Remedies for breach of contract . In: Jan M. Smits (Ed.): Elgar Encyclopedia of Comparative Law . Edward Elgar, Cheltenham / Northampton, MA 2006, ISBN 1-84542-013-6 , pp. 610-629 .

For the economic analysis of contract law

See also

Individual evidence

  1. a b c d D.F. Henderson and PM Torbert: Traditional Contract Law in China and Japan . In: Arthur T. von Mehren (Ed.): International Encyclopedia of Comparative Law . VII Contracts in General. Mohr Siebeck, Tübingen 2008, 6. Contract in the Far East — China and Japan, p. 6–2 to 6–40 .
  2. Xie Huaishi: The Contract Law of Modern China . In: Arthur T. von Mehren (Ed.): International Encyclopedia of Comparative Law . VII Contracts in General. Mohr Siebeck, Tübingen 2008, 6. Contract in the Far East — China and Japan, p. 6-43 to 6-75 .
  3. Ernst Rabel : The representation in the Hellenistic right and in Rome (1934) . In: Hans Julius Wolf (Ed.): Collected essays . tape IV . Mohr Siebeck, Tübingen 1971, ISBN 3-16-630422-3 .
  4. ^ Konrad Zweigert and Hein Kötz: Introduction to Comparative Law . 3. Edition. Mohr Siebeck, Tübingen 1996, p. 425-427 .
  5. ^ Robert Cooter and Thomas Ulen: Law & Economics . 8th edition. Addison-Wesley, Boston 2008, ISBN 978-0-321-52290-0 , pp. 281-281 .