Offer and Acceptance Inter Absentes
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Description
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’. The most obvious difference relates to the different ‘indicia of seriousness’, that is, 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 deter- mine which promises are actionable and which are not’. In Civil Law, at least in the so-called ‘romanistic’ area, this function is generally performed by the so-called causa or cause, that is, a generalized reasonable motive for making a contractual promise (→ Causa and Consideration). 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 (it has even been argued that they are the same), they do not correspond. The same holds true for the corresponding concepts of ‘contract’, 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 making a contract in the different legal systems, such as the consent of parties and its elements, offer and acceptance.
Source Publication
Elgar Encyclopedia of Comparative Law
Source Editors/Authors
Jan M. Smits, Jaakko Husa, Catherine Valcke, Madalena Narciso
Publication Date
2023
Edition
3
Volume Number
3: Entries (M-W)
Recommended Citation
Ferrari, Franco, "Offer and Acceptance Inter Absentes" (2023). Faculty Chapters. 1106.
https://gretchen.law.nyu.edu/fac-chapt/1106
