Экзамен зачет учебный год 2023 / Maresinis - cause and consideration
.pdf72 The Cambridge Imw Journal [1978]
(b) The rule that property in the case of a v not pass is also modified. As between the parties t action the rule is theoretical since neither can es other a cause of action. But what about third innocent and have given, to use the English term, tion? In England since Singh v. AU86 and Belvoir v. Stapleton 87 it looks as if the buyer under an sale can acquire ownership in the goods even tho delicto. The reason, according to Lord Dennin transferor, having fully achieved his unwort allowed to turn round and repudiate the mean it—he cannot throw over the transfer." 88 The i quence of this is that an innocent third party o from the transferee will acquire property in th can be described as equitable even though it circuitous manner which has not escaped powerfu
The solution in French law is similar though i weakness of the above-mentioned English deci
transferor and transferee property in the goods is n
But innocent third parties may be able to rely o article 2279 C.C. according to which " En fai
possession vaut titre " and thus escape the harshn principle which would otherwise deprive them o goods which they had innocently acquired.
IV. Conclusions
What then are the conclusions of this brief comparative
That the practical results achieved by the systems under c would be broadly analogous no one could really have doub similarities in the socio-economic background are such th made this an almost inevitable outcome. As Professor Esm remarked some eighty years ago,91 " souvent le resultat p satisfaction donnee aux besoins economiques et sociaux, so sensiblement les memes en Angleterre et en France, com naturel chez deux grandes nations voisines et egalement
Req. 24 octobre 1928, G.P. 1928 s. 747. Older case law can be found in work. For a new monograph see: P. Le Tourneau, La regle " Nemo au
Paris, 1970.
«* [1960] A.C. 167. «? 11971] 1 Q.B. 210.
88 [1960] A.C. 167 atp. 176.
89 See, for example, Cheshire and Fifoot, L
Furmston, at pp. 348-349.
*° Though, subject to what has been said above, this does not mean that the
things transferred can be recovered. The nemo auditur rule, which Lord Denning appeared to quote in Singh v. Ali [1960] A.C. 167, 176, ensures this.
61 (1893) Nouv.Rev.Hist. 555.
This content downloaded from 92.242.59.6 on Fri, 08 Nov 2019 13:10:51 UTC All use subject to https://about.jstor.org/terms
C.L.J. Cause and Consideration 73
and, he continued, " Mais le but a par Vapplication de regles techni respect to the eminent French jur ment by asserting that not only the technical rules are analogous but t them is more similar than studen to believe.
In the law of obligations growing similarity in reasoning is gradu- ally emerging. For example, it is clearly evident in some areas of the law of torts.92 The German and English cases that deal with negligently inflicted economic loss reveal this93 and even systems such as the Dutch, which are avowedly based on the French Code civil, are moving in the same direction. Equally noticeable must be the introduction into the German law of torts of the concept of duty of care. And students of Professor Nipperdey's theory,94 that negligent conduct that causes damage to one of the interests men- tioned in paragraph 823, I BGB is " unlawful" (widerrechtlich) only if it is in breach of the general duty imposed upon persons to take care not to injure others (the Allgemeine Sorgfalpflicht), will see in it reasoning quite analogous to that prevailing in our law of Negligence. The comparative study of cause and consideration appears to suggest that similarity in reasoning can also be found in the law of contract.
This, of course, is not to suggest a lack of differences. Differences are many and obvious and many of them have been noted in the preceding pages. But one deserves most attention since it has helped conceal the equally important similarities that exist between the two systems. It can be found in the considerable theoretical attention that has been paid to the concept of cause. This is partly the result of the civilian mind which is interested in theory as it is concerned with practical solutions; but it is, primarily, the result of the many and eloquent attacks that have been launched against the concept. For, unlike consideration, every time cause came under attack it emerged more convincing and more coherently conceived. Acade- mics and the courts alike were forced to work out the practical implications and from their endeavours there emerged a concept
92 See, for example, B. S. Markesinis, "The not so dissimilar tort and delict" (1977)
93 L.Q.R. 78-123.
»3 BGHZ 41, 123; NJW 1964, 720; OLG.Karlsruhe, NJW 1975, 221; BGH, NJW
1976, 1740 and cf. S.CM. (U.K.) Ltd. v. W. J. Whittall and Son, Ltd. [1971] 1
Q.B. 337; Spartan Steel and Alloys, Ltd. v. Martin and Co. (Contractors) Ltd. 11973] 1 Q.B. 27.
94 Rechtswidrigkeit, Sozialadaquanz, Fahrldssigkeit und Schuld im Zivilrecht, in 1957 NJW 1777. See, also, von Caemmerer, 4i Wandlungen des Deliktsrecht " in (1960) II 100 Jahre Deutsches Rechtsleben 49 et seq.
This content downloaded from 92.242.59.6 on Fri, 08 Nov 2019 13:10:51 UTC All use subject to https://about.jstor.org/terms
74 The Cambridge Law Journal [1978]
which runs through the entire law of contract pe of important and different functions. It is an in for the formation of a valid contract; it will be unlawful or immoral transactions; and it will als quences that flow from an excusable failure to p obligations of a bilateral contract. Cause thus foll birtfi to death, from formation to discharge. By tion has been overburdened by technical rules, a has, in most cases, been restricted to the stage o contract. For the post-formation stage other called upon to perform in England what cau
France. Illegality, mistake, impossibility, frustr some, and the result is inevitable fragmentat reasoning which is elliptical and intellectually u v. Caldwell95 (and the cases that have relied o
Plasticine) have been used to illustrate the point. the French reasoning finds a counterpart in the
(total or partial) of consideration which could more often to justify results which are current strained extension of the notion of impossibility.
One or two further points can be mentione brief study provides yet further evidence (if any the fact that French law can be as case-orient
(though it has avoided much of the rigour of th decisis). It also demonstrates that the view ad this country, namely, that codification encoura development of the law or that it can provide " sible and complete formulation of the law," 96 i tiated by civilian experience. Anyone who studies or 1384 C.C. can see that the above statements a
Indeed, it is tempting to paraphrase Professor Da these areas " the overall appearance of [French impressionist painting; the legal rules, considere but points. One must step back in order to patterns of the composition." 97
The careful examination of the cases also shows come is often determined by considerations of
»* (1863)3 B. &S. 826.
96 These are two of the five benefits which codification, apparently, entails according to Lord Scarman, Codification and Judge-made Law—off-print of a lecture
delivered on 20 October 1966 to the Law Faculty of the University of Birmingham, p. 19.
•* French Law. Its Structure, Sources, and Methodology. English translation by M.
Kindred (1972), p. 77.
This content downloaded from 92.242.59.6 on Fri, 08 Nov 2019 13:10:51 UTC All use subject to https://about.jstor.org/terms
C.LJ. Cause and Consideration 75
this more clearly demonstrated mistresses and in the way the cou most abstract concept) in order t given " in exchange " for sexual f whenever they mark the terminat tion! Here, as indeed elsewhere i and law cannot and, arguably, sho of French law as it is of Englis more difficult to discern the polic decisions which are notorious for
In view of the above, it is subm study of this topic would be gre focused on the functional problem try to resolve; and when this is d similarities in the results as well a they are often suspected to be.
98 But, of course, examples from other p
Thus, in the area of offer and accepta
65 and Professor Carbonnier's comment
99 As Dr. Bernard Rudden has pertinentl land, France and Soviet Russia," 48 Tulane Law Rev., 1010 at 1022): "The
very act of decision implies a choice; but the French grammatical technique enables the judge to conceal it."
This content downloaded from 92.242.59.6 on Fri, 08 Nov 2019 13:10:51 UTC All use subject to https://about.jstor.org/terms