The Comparison of The Consideration Concept In Common Law and Civil Law and its Implication to Business Practice

Zuhir, Mada Apriandi (2007) The Comparison of The Consideration Concept In Common Law and Civil Law and its Implication to Business Practice. Simbur Cahaya (33). pp. 357-364. ISSN 14110-0614

[img]
Preview
PDF
Download (129Kb) | Preview
    [img]
    Preview
    PDF
    Download (4Mb) | Preview

      Abstract

      The concept of contract in common law countries is more restricted than in civil law countries. In common law such as in Australia, the essential elements are offer, acceptance, intention and consideration. In civil law countries, such as French law, the essential elements for valid contract are consent of the person who places himself funder an obligation, capacity to contract, un object which is certain and which forms the subject matter of the agreement and une cause which is legal. In Germany law, essential elements for valid contract are consent of the parties expressed by means of their statement of will which communicate with each other, capacity of each person of possibility that determine as objectively possible of performance when a contract occur. However, besides others three essential elements in Australian common law system, one element which does not like in civil law system is consideration. Consideration may be a promise to do something, not to do something, doing something, abstaining from doing something, an advantage flowing to the promisor, an advantages flowing to a third person at the promisor’s direction or a disadvantage to the promise. In this context, if an agreement occurs without something value as an exchange no matter how small it is, it is not a contract. In civil law, the nearest concept parallel to consideration concept in common law is cause in French law. While, in Germany, not only consideration concept but also cause are not familiar. Both consideration and cause concept have an effect to contract if consideration element or cause element is not present in a contract. Legal effect to this contract may be a contract will not be enforce by a court or unenforceable contract; may be will not arise rights and obligations among parties or void contract; may be capable of being set aside or voidable contract; or may be a contract is illegal which is prohibited by the law et all

      Item Type: Article
      Uncontrolled Keywords: Contract,Consideration
      Subjects: K Law > K Law (General)
      Divisions: Faculty of Law > Department of Law
      Depositing User: Rudi Kule
      Date Deposited: 20 Sep 2013 12:46
      Last Modified: 20 Sep 2013 12:46
      URI: http://eprints.unsri.ac.id/id/eprint/2695

      Actions (login required)

      View Item