In Louisiana, a contract requires the consent of the parties.351 Such consent must not only demonstrate agreement to the terms of the contract, but must also demonstrate a consent, or intention, to be bound to the obligation.352 The parties’ intentions are judged objectively, as a number of provisions in the Civil Code demonstrate.353 In addition to contract formation, the process of interpreting a contract is explicitly stated in the Code to be ‘the determination of the common intent of the parties’.354 As in the other mixed systems, the context in which words are used is crucial, so that, for instance, words used in jest will not be held to demonstrate the necessary intention to be bound.355

Where the mixed legal systems sometimes struggle to deal with certain types of intention (as, for instance, South Africa does with options), this is not because of the lack of a doctrine of consideration, but rather because of the lack of a general means of enforcing seriously intended unilateral promises (those lacking an acceptance). The mixed systems all demonstrate that contract law functions quite happily without a requirement of mutual consideration.

(c)  German law

In modern German law, seriousness of intent is not judged by a doctrine of consideration, for there is none, nor by reference to the idea of causa.356 Instead, there is in the BGB the negative statement that a ‘declaration of intent not seriously intended which is made in the expectation that its lack of serious intention will not be misunderstood is void’,357 so that, for instance, what was plainly intended as a joke could not be an offer. The other side of the coin is that the provision suggests that a serious intention to contract is a requirement for a valid offer, though the BGB tells us nothing of how such seriousness of intent is to be judged. Some practical considerations can assist in so judging. For instance, agreements may require a certain form (a matter discussed below). Furthermore, agreements supported by mutual consideration are seldom questioned by the courts as to

351CC Art. 1927.

352Thus, if an offer is to be irrevocable for a period of time, intention that this be so must be demonstrated by the offeror: CC Art. 1928.

353For instance, under Art. 1942, silence may (exceptionally) constitute a valid acceptance of an offer, if the offeror is led ‘reasonably to believe that a contract has been formed’. Such emphasis on the reasonable appearance given to the offeror demonstrates a ­concern for objectivity.

lack of serious intent. Ultimately, a German court looks at the transaction in question and seeks objectively to judge what intention is disclosed by the behaviour of the parties, an approach shared with the mixed systems.

Occasionally in German law, perceived structural problems with the law distort findings of intention to contract. Thus, in order to avoid §823(1) of the BGB (the provision excluding liability for pure economic loss in tort), courts have sometimes contrived to discover contractual intention when a service is provided, even where it seems reasonably clear that no such intention was present. In one decision of the BGH, company A, which had allowed company B the free use of a chauffeur driven car, was held to have intended to contract with B, and, in so doing, was held to have assumed legal responsibility (Rechtsbindungswille) towards B, thereby rendering it liable in damages for its failure to provide a competent driver for the car.358 This decision draws strong similarities with the artificial ‘assumption of responsibility’ approach adopted in English tort law, which is criticised elsewhere in this work as distorting the nature of tortious liability.359 It is suggested that, as German courts appear eager to avoid the rule against recovery in pure economic loss by finding fictitious intent to contract, it might be better to adopt the more honest approach of amending the provisions of §823(1) to allow wider recovery of pure economic loss in tort rather than perpetuating artificial findings of contractual intent.

The same artificial approach has been used in relation to §675(2) of the BGB, which excludes liability for the financial consequences of giving advice to another unless a contract, tort, or statutory provision founds such liability. Given the tortious exclusion of liability for pure economic loss just discussed, German courts have in some cases found a party giving advice to have been in a contractual relationship with the recipient of the advice in order to trigger the application of §675(2).360 Criticism of the artificial nature of such imputed contractual intent may again be made.

(d)  Model law

All of the national systems studied emphasise the intention of the parties to be bound to an obligation as essential to enforcing promises (whether of the unilateral or contractual variety). Though the Common law also

358BGHZ 21, 102. The decision was followed in later cases.

359See discussion of White v. Jones [1995] 2 AC 207 in Ch. 5, p. 300.

360See discussion in Markesinis et al., German Law of Contract, p. 91.