Chapter 1: General Contract Law and Law of Sales Harald ... - Nwir.de

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Other European law systems do not explicitly rely on the consideration theory. However, promises of donations need to be contracted in written form under German law also. Loan guaranties without commercial value to the guarantor are not valid if they are not in written form. That is why some German scolars think that the consideration doctrine is – in a way – Europeanised. 1 To some extent, this is correct. However, in the mentioned insurance case both law systems differ essentially. The Europeanisation, therefore, is incomplete. III. Offer and Acceptance 1. The Concept and its Limits The basic theory of contract conclusion is called offer and accepance-theory, because two relatively similar decisions and declarations have to be made before a contract becomes binding. The origins of this theory are – again – to be seen in the Roman law. Nearly all civil laws of the EU-member states have adopted this concept. In German law, however, it has been integrated most consequently as follows: Sphere of Offerer Contract Partner Decision Making (DM) /Communication (C) Sending Arrival Reading (Mail Box) § 130 BGB § 130 Reading Arrival Sending DM/C Contract (+) Anglo-American law (Mail Box) UK-law has developed the so-called mail box-rule (also postal rule) which means that the acceptance becomes legally binding before the time of arrival: already when the other party puts the acceptance letter into the mail box. UK courts argue that the offerer, by sending his offer by mail, has agreed to use this way of communication. Therefore he must bear the risk of a false or delayed transfer of the acceptance letter by the postal service, also. Example: After having sent away his letter of acceptance for a long term credit contract with fix 7.5% nominal interest rate, the sender (S) gets an offer on 6.5% of a competitor (B) of the offerer (A). He sends a fax or an e-mail to withdraw his acceptance and accepts the offer of B. A claims for an expected interest income of the stipulated term of the credit. 1 Kötz, Eurp.PrivR. 4
Under the postal rule of the UK-law the sender would be bound to the contract and hence would have to pay the expected interest income to A. Under German law the acceptance could be withdrawn as long as it has not arrived at the place of A. The Euoropeanisation is incomplete here as well. 2. Declaration of intention and Certainty of the Promise There is no declared intention in cases of advertising by the advertiser as the public does not have a definite character for receiving the declaration. For the necessary certainty of the promise see the Daimler case….Such price adaptation clauses are well accepted in the UK-law, too. Europeanisation is perfect. 3. Special Cases of implied Acceptance by Silence of a Party The principal of acceptance by explicit declaration, rather than by silence, is well accepted in all European countries with a Roman law tradition. There are, however, some exceptions which differ slightly in Germany and the UK. Business confirmation letters: German law applies the silence rule by exemption. UK-law is more strict, but leads to similar results by deductions from the circumstances: the sender of the confirmation letter waives the provision of necessary arrival of an acceptance, acceptance as such being deducted from the non-reaction of the other party. 4. New Provisions for Distance Sales Contracts A great extent of Europeanization has been achieved by the EU-directive on distance sales of 1999. For first understanding, the full text of the directive is printed out, as follows: DIRECTIVE 97/7/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 20 May 1997 on the protection of consumers in respect of distance contracts THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 100a thereof, Having regard to the proposal from the Commission (1), Having regard to the opinion of the Economic and Social Committee (2), Acting in accordance with the procedure laid down in Article 189b of the Treaty (3), in the light of the joint text approved by the Conciliation Committee on 27 November 1996, (1) Whereas, in connection with the attainment of the aims of the internal market, measures must be taken for the gradual consolidation of that market; (2) Whereas the free movement of goods and services affects not only the business sector but also private individuals; whereas it means that consumers should be able to have access to the goods and services of another Member State on the same terms as the population of that State; (3) Whereas, for consumers, cross-border distance selling could be one of the main tangible results of the completion of the internal market, as noted, inter alia, in the communication from the Commission to the Council entitled 'Towards a single market in distribution`; whereas it is essential to the smooth operation of the internal market for consumers to be able to have dealings with a business outside their country, even if it has a subsidiary in the consumer's country of residence; (4) Whereas the introduction of new technologies is increasing the number of ways for consumers to obtain information about offers anywhere in the Community and to place 5
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Chapter 1: General Contract Law and Law of Sales Harald ... - Nwir.de

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