Civil and common law tradition

The civilaw and common law tradition play a quite different role in various perceptions of international trade. for eg: The common law of contract is mainly based on  Speech by John H. Langbein, Restricting adversary involvement of proof of fact: Lesson from continental civil procedure, Sep. 25 1985, Comparative legal tradition, 1985 3. Glendon, M. and Gordon, M. (1994)

Comparative Legal Traditions: Text, Materials, and Cases on the Civil Law, Common Law, and Socialist Law Traditions with Special Reference to French, West German, English, and Soviet Law. Second edition, St. Paul: West, 3 the principles of certainty and predictability. here the it is upon the parties to predict the risk related with the transaction and ti regulate the relationship in allocation of risk. It does not recognise a the general duty to negotiate and execute the contract in goodFaith. Where as in civil law system the contract is based upon the implied principles ofreasonableness, good faith or fair dealing.

Here the judge is entitled to apply his discretion in a particular manner as the parties have the the capability and the willingness to assess and take the risks connected with the transaction. In English contract law the mutual intention of the parties are included in its plain and literal meaning. The common law never borrow the the naturalistic doctrines that classified contracts into with its own set of regulations that was deemed to express natural obligations attached to that particular kind of contract.

For eg; Consent by the parties was conceived not as consent to a type of contract with its rules, but it is takens as the very words of the contract. The approach to interpretation of contracts is quiete different in civil law system as it includes a series of statutory rules that have created implied terms of contract similar to the declaratory rules that Civil Law systems attach to the various types of contracts. ( International and Comparative Law Quarterly,1975)(4) In common law the court usually give more importance to the the wording of a contract, while at the same time admitting that they consider the result unsatisfactory.

Moreover, here the repudiation of the contract entitles the innocent party to obtain the full value of the deal and the consideration must weigh up as per the exchange between the parties to make the contract enforceable. However, the Common law pays attention to the aspect of consideration just to ensure an equitable content or adequacy of consideration of the contracts on the contrary to the law of contract where the existance of the consideration is paramount to enforce a contract. But civil law goes for another different concept.

Here the contract is based upon the partie’s will but not on duties,virtues or anything arising from the human relations. The contract should be in acccordance with prudence and the law owes him no protection against his own acts. (Carr, Stone, 1995)(5) The common law always takes a defensive approach to the general duty to negotiate or to carry out the contracts in good faith. In Walford v. Miles [1992], the court has stated that the concept of a duty to carry on negotiations in good faith is inherently repugnant to the adversarial position of the parties when involved in negotiations.

Here the parties to the contract are entitled to follow their own interest so long as they keep themslves away from making misrepresentations. Nevertheless, in civil law the issue of good faith will necessarily arise. Here the probability of striking a deal is much lower  4. International and Comparative Law Quarterly (1975), Volume 24, Issue 01 Cambridge University Press 5. Indira Carr, Peter Stone (April 1, 1999), International Trade Law, 1 edition, ISBN-10: 1859413838, Routledge Cavendish

6. Walford v. Miles [1991] 2 EGLR 185 than in case of a contract between firms operating under civil law systems. Regarding law relating to international trade the regulation contained in the UNIDROIT Principles of International Commercial Contracts and the PECL (European Principles of Contract Law) pays great attention to standard in intrenational trade with regard to the aspect of good faith. Here the notion of goodfaith and fair dealing may not be valid for all types of the contracts in international level.

(Moss, Cordero, 2007)(7) Conclusion The law relating to the contract varies from one legal tradition to another. To triumph over such difficulties; one can go for some other source of law like the international law, which does not make any referance to a specific national legal system. The international law includes international conventions such as the Vienna Convention on Contracts for the International Sale of Goods (“CISG”) or other non-authoritative sources that can broadly defined as lex mercatoria or trans-national law.

These areas of law consist of principles of international trade, private codifications of contract terms, international contract practice, trade usages, as well as standard terms of contract or code of conducts . But the question still arises that to what extent these laws effectively mitigate the confusion regarding the application of different legal structure.

Moss, Cordero. G 2007) International contracts between common law and civil law: is non-state law to be preferred? The difficulty of interpreting legal standards such as good faith, Publ: Global Jurist and Berkeley Electronic Press


1. Apple, J and Deyling, R (1995) A Primer on the Civil-Law System (selected excerpts), Federal Judicial Center,American Society of intrenational law 2. Carr,I, Stone,P(April 1, 1999) ,International Trade Law , 1 edition, ISBN-10: 1859413838, Routledge Cavendish

3. Ferrari, (1995) Uniform law of international sales: issues of applicability nad private international alw, Journal of Law and Commerce, Sellier European Law Publishers 4. Glendon, M. and Gordon, M. (1994)Comparative Legal Traditions: Text, Materials, and Cases on the Civil Law, Common Law, and Socialist Law Traditions with Special Reference to French, West German, English, and Soviet Law. 2nd edition, St. Paul: West,