Antonio Lordi [*]
Civil law and common law are two different legal systems, with different origins, history, methodology and rules. Nevertheless, in the current times it is very common to talk about a global or transnational contract law meaning that only one contract law should exist in the world. This will facilitate transactions and increase business. But to have a common system of rules and principles it is necessary to have lawyers of both systems working together in addressing legal issues.
In effect, even if legal scholars of common and civil law systems often reach the same results in solving legal problems, the process to arrive at the results is different. Common law, following its tradition, is not dogmatic and uses a caselaw methodology. Civil law, born with School of Bologna Glossators, is dogmatic and conceptual. If we should describe, as observers, a legal problem and how common and civil law resolve it, we will not have so many difficulties. The only thing we need to do is to describe the problems and the rules (norms, interpretation made by courts, etc.) that have been applied. Both common law and civil law lawyers are able to understand [page 1] which, if any, differences and which solutions are proposed by the referenced legal systems.
But, what does happen when civil and common law lawyers together need to resolve new legal problems? The civil lawyer proposes his conceptual methodology and the common lawyer his case-law methodology. In this way there is no possibility to work together. We can, at the end of the process, compare the solutions, the results, but we cannot act in a cooperative way during the process. Do they have points of contact? Can we use the same methodology? Can we address the legal issues in the same manner?
This article highlights the differences between civil law and common law trying to pave the way for a common methodology in Contract Law. First, it considers the historical evolution of the two systems. Second, it considers the Communication on European Contract Law published by the European Commission and the feedback of the civil and the common law lawyers to the possibility of having a uniform law of contracts in Europe. Third, it suggests that the efforts should be focused in studying a common methodology rather than focused on the rules and the results.
II. The Differences Between Civil Law and Common Law
A. The School of Bologna
Legal historians generally accept that the Law School of Bologna in the Twelfth Century gave the foundations to the continental Western legal tradition. This took place for economical and cultural reasons. On the economical point of view, in Twelfth Century northern Italy there was the passage from a feudal economy to a market economy. The urban development gave the birth to a new social class: the burgenses. This new class, emigrated from the countryside, saw in the communes the centers in which they could implement exchanges and developed commercial relationships. On the cultural point of view, the northern Italian urban development encouraged the demand of a cultural identity and the need of a legal education. These needs were satisfied with the foundation of the School of Bologna in which the "lawyerly kind of thinking was made as a result of general intellectual and [page 2] cultural currents in a propitious location." Therefore, the law and legal thinking was born as an act of "scholarly enthusiasm" and not as a practical answer to real legal problems.
The main scholars of this movement were the magister artium Guarnerius, Placentinus, Odofred, Azo, and Accursius. The methodology used by them was the heritage of the education of the Trivium (grammar, logic or dialectic and rhetoric) that with arithmetic, geometry, music and astronomy formed the artes liberales. Grammar is used to interpret the texts, Rhetoric is used to speak in an orderly manner, and logic (dialectic) gives the logical argumentation in theology, philosophy and case law. These scholars were called Glossators because they explained the sources and the texts, especially the Corpus Juris Civilis, with glosses. Their goal was not to render the texts "useful for daily life," but to ". . . confirm the truth of texts held binding because revealed or transmitted from the past." In this methodology used by the Glossators in analyzing texts and sources the typical challenge of the modern civil law can be seen: the dialectic between authority and logic. Therefore, it has been said that the Glossators doctrinal structure is "the progenitor of the legal doctrine we have in continental Europe today." In effect, the main difference with the origin of the common law is this different approach that the Glossators had to the law. The Glossators studied the law, in particular the heritage of the Roman law, not to find solutions to real problems as the Romans did, but as well as other artes, to create a theory based on the single ratio of the system.
B. The Normans in England and Sicily and the Birth of the Common Law
The Normans, after the conquest of England and Sicily, had the need to form a state and to govern different populations. This was a practical need to which the kings of England and Sicily addressed their efforts. In Sicily in 1140, King Roger "promulgated the first modern code of royal law in the history of the West, the Assizes of Ariano." This was a law dealing with matters of criminal law, family law, and administrative law. Roger's successors continued the development of positive law aimed to rule the newly formed state. Frederick II founded the University of Naples in 1224 to train [page 3] government officials and he promulgated in 1231 the Liber Augustalis (also called the Constitutions of Melfi). This was another set of rules concerning criminal law, civil and criminal procedure and royal and feudal property law. In England, Henry II "revolutionized the system of law." As well as the Normans in Sicily, the law was seen as a way to unify and control the nation. Henry's reforms concerned the "judicialization" of the old writs, the participation of the community in the form of a sworn inquest of neighbors to decide civil and criminal cases, the categorization of forms of action through the new judicial writs and the development of the legal doctrines of seisin and disseisin.
Nevertheless, the creation and evolution of the common law in England was not followed by the Kingdom of Sicily, where different dominations succeeded to the Normans and where a nation never arose.
The twelfth century is the period in which the two western legal systems began to be shaped in two different ways. In effect, the Common law finds its roots in the judicial training and in the need to give practical answers to real problems through the writs system, whereas the continental law finds its roots in the Glossators approach to legal reasoning, basing the rules on abstract ratios and judgements. As a learned scholar pointed out, "it was this professors' law, marked by exegesis and commentaries on learned books and glosses, which made continental law different from . . . the laws of England."
As well as in Northern Italy, in England the law born as an answer to a need of cultural identity. Specifically, it is debated whether the common law was a consequence of the English national culture or was one of its formative elements.
Yet, in England the Roman law played an important role. English lawyers studied in Bologna Roman law that was examined as a set of rules to be analyzed and criticized.
In effect, the approach that English lawyers had to the Roman legal tradition and to the idea of Rome was different from the Bolognesi Scholars' approach. These different approaches to the concept of authority still now, as we will see in the following subsection, is a fundamentally distinctive character of the two systems.
While the Glossators tried to justify and consolidate the auctoritas of Roman Law using the glossa method and the technique of the trivium, English [page 4] lawyers defended native law (leges Angliae), criticizing the ancient Roman law and producing their own laws inspired by the real needs of the society. Thus, civil law became dogmatic; common law became pragmatic.
C. The Historical Evolution of the Two Different Methodologies
The differences between the two systems increased during the centuries and reached their apex in the Nineteenth Century. In fact, in the XIX Century the definitive breakup of the western legal tradition took place. While in England the law continued to be expression of the judicial system that slowly and carefully adapted the legal evolution to the needs of a changing mercantile society, in the continent the jurists found in the interpretation of the Roman law their role. Their goal was to extrapolate from the Roman texts and sources principles and concepts of a system. As professor Kelly has pointed out: "such a system, for these lawyers, would be a vast structure of mutually interconnected, harmoniously articulated concepts."[13 This movement, called Pandektistik because it borrows its name from the Roman Pandectae, produced the abstraction of the law, speculative legal concepts and the categorization of the legal Institutes. For instance, the abstract category of atto giuridico, constituted by a subjective and an objective element, has been built to include and study several different institutes in private law, criminal law and administrative law, respectively: negozio giuridico, reato, atto amministrativo.
This movement formalized the law, separating it from any historical, social and economic grounds. The law became a totally different science and the jurists could create their abstract categories. All these categories became the necessary and sufficient "equipment" of the lawyer to interpret the law and to contribute to the development of the law.
Certainly, in English and American law the formalism played an important role, but the pragmatic approach of the common law lawyers, created seven centuries before, did not bring the development of categories and abstract concepts but the cases-law methodology.
In Friedmann's Legal Theory the main aspects of the "structural difference" between Anglo-American and Continental law are highlighted. Specifically, all continental countries are codified (except the Scandinavian [page 5] countries) whereas Anglo-American, are not. "From this follows a different approach to problems of legal interpretation. Judicial decisions in Continental systems are . . . a gloss on the law. On the other hand, in Anglo-American law, precedent is one of the principal sources of law." Another aspect pointed out by Friedmann is that while civil law lawyers use a deductive method of reasoning, in which general rules proceed to individual decisions, common law lawyers use an inductive method, in which the analysis of individual cases is used to discover general principles.
In my opinion this argument cannot be accepted for two reasons. First, because the codification in the Continental countries has been an effect of the 'gloss methodology' and not vice versa. As I have tried to demonstrate, the Glossators, with their dialectic conflict between auctoritas and logos, were the inventors of the civil law lawyers' approach, and therefore, started the process that came to the codification seven centuries later. Second, the choice between inductive and deductive methods is not an aut-aut decision. Both methods are used by common and civil law lawyers in a sort of a "circular way." The inductive method is used to analyze cases (or legal provisions) to arrive at a general principle. Afterwards, the general principle previously discovered can help the lawyer in the solution of a new case. In effect, even if we do not want to use "the circular way" argument, it should be noted that also in the civil law systems the inductive method is used even though on norms rather than cases.
Notwithstanding the differences pointed out, in the Twentieth Century the evolution and the changes of the law, according to the social and economic needs, did not allow anymore jurists to use the previous schemes created by the continental legal tradition. The legal categories so perfectly shaped and analyzed by the civil law lawyers were not more useful in the presence of thousands of different statutes and regulations enacted to protect a myriad of different interests. The civil law lawyer needed to change his "equipment" and researching for new "tools." In this scenario a pragmatic approach based on cases and precedents rather than concepts and general principles has been considered very helpful to the civil law lawyers. This evolution is bringing a big change in the civil law lawyer's methodology and it has pushed the civil law closer to the common law system. Furthermore, the market globalization, followed by the use of the English language in drafting business contracts, [page 6] requires the modern lawyer to have the basic knowledge of the common law system.
On the other hand, the Anglo-American jurists since the end of the Nineteenth Century, having felt that a legal system based on precedents risks to be very conservative and not susceptible of significant changes, have began to adopt statutory laws. In effect, a system that is rooted on case law and precedents compels the lawyer to look backwards in order to resolve the new problem. This is why the United States, as well as England, has enacted statutes.
This evolution has brought some scholars to prospect a unification of common and civil law, and to a movement for the harmonization of Contract Law in Europe that will be mentioned in the next chapter.
III. The European Attempt to Unify the Contract Law
On July 11th, 2001 the European Commission published a Communication to the Council and the European Parliament on European Contract Law (hereafter the 'Communication'). The need to adopt a general normative on contract law at EC level is the same need that has brought the United States to adopt statutory laws: the concern that "a case-by-case approach might not be able to solve all the problems which might arise." The Communication is part of a general movement towards harmonization of European contract law. The first point of the introduction of the Communication recalls recent projects aimed to harmonize contract law in Europe. In particular, the Communication includes contributions from the Commission on European Contract Law; the Academy of European Private Lawyers (alias "the Pavia Group); the Trento Common Core of European Private Law Project; and the Study Group on a European Civil Code.
In fact, even if the European Parliament has enacted directives in different areas of contract law, there is not yet a general law regulating contracts. To give an overview of the legal grounds on which the scholars are operating, the Directives concerning contract law are listed below in Annex III of the Communication: [page 7]
1. THE CONTRACT
The Directive 90/314/EEC on Package Travel is the only one giving a legal definition of the term "contract": "contract means the agreement linking the consumer to the organiser and/or the retailer" (Art. 2.5). There are pre-formulated standard contracts and individually negotiated ones. Directive 93/13/EEC on Unfair Terms in Consumer Contracts stipulates when a contract term shall be regarded as not individually negotiated (Art. 3.2) and therefore is submitted to control according to this Directive. Directive 2000/35/EEC on Late Payments, too, provides for some elements to be taken into consideration in determining whether an agreement is unfair (Art. 3.3-5).
As an expression of a general principle in Consumer Protection Law, contract terms must be drafted in plain and intelligible language (cf. Directives 93/13/EEC on Unfair Terms (Art. 5), 90/314/EEC on Package Travel (Art. 3.2), 1999/44/EC on Sales of Consumer Goods (Art. 6.2), 97/7/EC on Distance Contracts (Art. 4.2) as well as the proposal for a Directive on Distance Contracts in Financial Services (Art. 3.2)). Unfair terms used in a consumer contract shall not be binding on the consumer (Art. 6.1 of Directive 93/13/EEC on Unfair Terms). A few Directives contain provisions reflecting common principles such as the principle of good faith (cf. Directive 86/653/EEC on Self-employed Commercial Agents (Art. 3) and 93/13/EEC on Unfair Terms (Art. 3)) and the principle of the most favourable interpretation of contractual provisions (cf. Art. 5 of the Directive 93/13/EEC on Unfair Terms).
The UN Convention on Contracts for the International Sales of Goods (CISG) contains provisions dealing with the formation of the contract (Art. 14-24). The CISG describes the circumstances under which a proposal for concluding a contract can be regarded as an offer. Furthermore, it addresses issues of effectiveness, withdrawal and rejection of an offer as well as the issue of acceptance of an offer. According to Art. 9 of Directive 97/7/EC on Distance Contracts as well as Art. 9 of the proposal for a Directive on Distance Contracts in Financial Services, the supply of goods and services without being ordered by the consumer is prohibited (inertia selling). The absence of a response does not constitute consent.
According to Directive 2000/31/EC on Electronic Commerce, Member States shall ensure that their legal systems allow contracts to be concluded by electronic means. Directive 86/653/EEC on Self-employed Commercial Agents stipulates that each party is entitled to receive from the other on request a signed written document. But in general, contracts might also be validly concluded only verbally (Art. 13). Other Directives in the consumer protection area prescribe the written form (cf. Directives 87/102/EEC on Consumer Credit (Art. 4 and 6.1), 90/314/EEC on Package Travel (Art. 4.2b) and 94/47/EC on Timesharing (Art. 4)). Directive 99/93/EC on a framework for Electronic Signatures sets criteria for according the same status to electronic signatures as to hand-written signatures.
The CISG confirms that a contract can be terminated by agreement of the parties (Art. 29). According to Art. 15 of Directive 86/653/EEC on Self-employed Commercial Agents, each party may terminate a contract concluded for an indefinite period but only by notice (1 to 3 months depending of the duration of the contract). Some consumer protection Directives give a right of withdrawal without penalty and without giving any reason (cf. Directive 97/7/EC on Distance Contracts (Art. 6: period of 7 days) as well as in the proposal for a Directive on Distance Contracts in Financial Services (period of 14 [page 8] to 30 days), 85/577/EEC on Contracts negotiated away from Business Premises (Art. 5, period of 7 days), and 94/47/EC on Timesharing (Art. 5, period of 10 days)). Rules in this respect also can be found in Directive 90/619/EEC on Life Insurance (Art. 15, period of 14 to 30 days).
2. PRECONTRACTUAL AND CONTRACTUAL OBLIGATIONS
Many directives stipulate that the information has to be given in writing (cf. Directives 85/577/EEC on Contracts negotiated away from Business Premises (Art. 4), 87/102/EEC on Consumer Credit (Art. 4 and 6.1), 90/314/EEC on Package Travel (Art. 4.1a and b), 94/47/EC on Timesharing (Art. 3.1 and 2,4), 97/7/EC on Distance Contracts (Art. 5) as well as the proposal for a directive on Distance Contracts in Financial Services (Art. 3)).
The information must be given in a clear and comprehensible way (cf. Directives 2000/31/EC on Electronic Commerce (Art. 10.1), 97/7/EC on Distance Contracts (Art. 5), 85/577/EC on Contracts negotiated away from Business Premises (Art. 4), 90/314/EEC on Package Travel (Art. 4.1), 94/47/EC on Timesharing (Art. 3.2)). The information given becomes an integral part of the contract and binds the supplier of the service in case of the Directives 94/47/EC on Timesharing (Art. 3.2) and 90/314/EEC on Package Travel (Art. 3.2). There are provisions concerning modifications of the information and the communication of these to the consumer as well (cf. Directives 94/47/EC on Timesharing (Art. 3.2), 90/314/EEC on Package Travel (Art. 3.2) and 87/102/EEC on Consumer Credit (Art. 6.2)).126.96.36.199. Examples of information requirements and time at which the information is to be given aa) prior to the conclusion of the contract. There are many directives with regard to consumer protection providing for information requirements to be given prior to the conclusion of the contract. Basically, such information, i.e., regards the main characteristics of the goods or services, price and additional costs, arrangements for payment, rights and obligations of the consumer, as well as procedures to terminate the contract and to take redress (cf. Directives 97/7/EC on Distance Contracts (Art. 4; the information might also be given in good time during the performance of the contract or at the latest at the time of delivery (Art. 5)), 87/102/EEC on Consumer Credit (Art. 6; the information might also be given only at the time of the agreement), 94/47/EC on Timesharing (Art. 3.1), 90/314/EEC on Package Travel (Art. 3 and 4.1a), 92/96/EEC on Life Insurance (Art. 31.1 and Annex II, with specific information on benefits, surrender and paidup values), 97/5/EC on Cross Border Credit Transfer (Art. 3, with specific information on the execution time, commission fees and charges). According to Directive 2000/31/EC on Electronic Commerce, information has to be given on the different technical steps to follow to conclude a contract, how the contract will be filed, and the languages offered to conclude the contract, as well as on existing codes of conduct (Art. 10.1 et 2). bb) at the time of the conclusion of the contract The Directive on Legal Assistance 87/344/EEC obliges the insurer to inform the policyholder about his right to ask for an arbitration procedure and to acknowledge him of his right of free choice of a lawyer. Directive 90/314/EEC on Package Travel stipulates in Art. 4.2 that certain elements listed in the Annex have to be part of the contract. cc) after conclusion of the contract According to the Third Life Insurance Directive 92/96/EEC, in a given case the insurer has to provide the insured with an update of information concerning the insurance company and the policy conditions. He has to inform the insured about benefits and bonuses (Art. 31.2 and Annex II). Similar, according to Directive 87/102/EEC on Consumer Credit, the consumer shall be informed of any change in the annual rate of interest and other relevant charges (Art. 6.2). The Cross Border Credit Transfer Directive 97/5/EC stipulates that [page 9] after a cross-border credit transfer has been carried out, institutions must provide information on a reference to enable the customer to identify the transfer, the actual amount of the transfer, the amount of charges, etc. (Art. 4). According to Art. 12 of Directive 86/653/EEC on Self-employed Commercial Agents, a commercial agent shall be supplied with a statement of the commission due, including components used for the calculation. According to directive 90/314/EEC on Package Travel, the consumer has to be given additional information on the journey (Art. 4.1b). According to Directive 85/577/EEC on Contracts negotiated away from Business Premises, information has to be given on the right of cancellation together with the co-ordinates of the person against whom the right may be exercised (Art. 4).
There is a special Directive dealing with commercial guarantees: Directive 99/44/EC on Sales of Consumer Goods with provisions defining a guarantee, describing the content, etc. (Art. 6).
The CISG stipulates the seller's obligation to deliver the goods and provides rules on the definition of the place and time of delivery (Art. 30, 31). According to Art. 7.1 of Directive 97/7/EC on Distance Contracts, the supplier must execute the order within a maximum of 30 days from the day following that one on which the consumer forwarded his order. The proposal for a Directive on Distance Contracts in Financial Services provides an express consent of the consumer concerning the execution of the contract before the end of the period of notice of his right of withdrawal (Art. 5). The CISG leaves it to the buyer to decide if to take delivery or refuse to take delivery if the seller delivers the goods before the date fixed.
The Directive 99/44/EC on Sales of Consumer Goods stipulates the seller's obligation to deliver goods in conformity with the contract and his consequent liability in case of lacking conformity (Art. 2 and 3 as well as Art. 35-44 CISG).
Directive 90/314/EEC on Package Travel, too, requires Member States to ensure that the organiser and/or retailer are liable for the proper performance of its obligations (Art. 5.2).
As far as the obligations of the buyer are concerned, the CISG stipulates that the buyer has to pay the price of the goods and take delivery of them (Art. 53 and 60). The Convention provides rules on the definition and place and time of the payment as well (Art. 55-59).
Directive 86/653/EEC on Self-employed Commercial Agents distinguishes between a negotiated remuneration and a customary commission and gives rules on the entitlement to it (Art. 6-8) as well as on the extinction of the right (Art. 11). If there is no agreement and no customary practice, the agent shall be entitled to reasonable remuneration (Art. 6.1).
3. CONSEQUENCES OF IN-EXECUTION OF CONTRACTUAL OBLIGATIONS
The relevant Directives give different options to terminate a contract. According to Directive 90/314/EEC on Package Travel, the consumer has the right to withdraw from the contract without penalty in case the organiser of the travel arrangement altered significantly an essential term of the contract. Some directives expressly stipulate rights of cancellation (cf. Directive 94/47/EC on Timesharing (Art. 5.1, period of 3 months, and Art. 7 for contracts on credit)). In others, provisions in this regard are missing (cf. Directive 87/102/EEC on Consumer Credit).
In cases of withdrawal by the consumer as well as in cases of cancellation by the supplier for another cause than the fault of the consumer, some directives provide for the [page 10] consumer a right to be repaid all sums paid by him under the contract (cf. Directives 97/7/EC on Distance Contracts (Art. 7.2) and 90/314/EEC on Package Travel (Art. 4.6)).
Due to the specific objective of the directive, various rights of the consumer in case of a performance being not in conformity with the contract are stipulated in the most detailed way in Directive 99/44/EC on Sales of Consumer Goods (cf. Art. 3: repair or replacement, price reduction (cf. also Art. 5 of Directive 90/314/EEC on Package Travel), rescission). Along the same lines Directive 2000/35/EC on Late Payments provides for retention of title before the delivery of the good (Art. 4).
The CISG contains a certain number of remedies for breach of contract by the seller (e.g. the buyer may require under certain conditions performance by the seller of his obligations, delivery of substitutes, or to remedy the lack of conformity by repair; he may also declare the contract avoided or may reduce the price (cf. Art. 46-52)).
Provisions on compensation in case of non-delivery or delivery of goods and services in a way not respecting contractual requirements can also be found in the CISG (Art. 45.1b,74-77), Directive 86/653/EEC on Self-employed Commercial Agents (Art. 17), the Cross Border Credit Transfer Directive 97/5/EC, and Directive 90/314/EEC on Package Travel (Art. 4.6 and 7).
A specific compensation in case of an unlawful processing operation is provided for in Directive 95/46/EC on the Protection of Individuals with regard to the Processing of Personal Data (Art. 23.1). Directive 2000/35/EC on Late Payments provides that unless the debtor is not responsible for the delay, the creditor shall be entitled to compensation for all costs incurred due to the late payment (Art. 3e). Moreover, interest rates as a penalty are provided for in Directive 2000/35/EC on Late Payments in case of a fixed date for a payment as well as in case the date is not fixed (Art. 3).
Before this 'legal magma,' feedback from civil and common law lawyers was much different. While civil law lawyers promote the unification of contract law, common law lawyers are not favorable to such unification. Specifically, with respect to common law lawyers, the Law Society in a letter to the European Commission clearly states that the Law Society of England and Wales does not "support global harmonization of contract law across the European Union. . . . If there is a problem, then the matter should be addressed trough individual Directives." Nullum novum sub soli. As we have seen, common law lawyers are used to having a case-by-case approach and do not feel the need to create a pyramid of concepts or systematic codes to resolve legal issues. Yet the negative feedback of the Law Society should make the scholars think that to implement a unification of contract law, a method that focuses "less on rules and doctrines than on the results that are reached by applying them cannot be used." [page 11]
IV. Methodology Versus Results
The differences between the Western legal systems do not involve outcomes, which often are similar, but processes applied by lawyers to resolve contract issues. Some examples help to clarify. In the section regarding the interpretation of the contract language, Professor Farnsworth reports the case Frigaliment Importing Co. v. B.N.S. International Sales Corp. in which the legal issue is how to determine the subject matter of the contract. Before a civil law lawyer would have discussed the "concept" of the subject of the contract for exchange. He probably would have looked for a solution in the interplay between the rules and principles of the contract's interpretation and the rules and principles of the subject of the contract. Or, the case would have been framed in the doctrine of mistake and in the eternal debate over whether will or the declaration of will should prevail, a debate that finds its solution in the principle of reliance.
Vice versa, the methodology of the common law lawyer (in the case Judge Friendly) is an accurate analysis of the facts. Judge Friendly goes trough the contractual documents, analyzing the words used by the parties to understand their real meaning. No civil law judge would have started his decision as Judge Friendly did: "the issue is, what is chicken?" This overture for a civil law lawyer is almost shocking. Even if the legal issue is interpreting the contract language, and even if the outcome of the analysis of the case could be the same, the process (i.e. the methodology) used to achieve that result is different. This means that as long as common law and civil law lawyers have different methodologies in approaching legal issues, there is no space for a cooperative work.
Another example is MCC-Marble Ceramic Center v. Ceramica Nuova D'Agostino. In this case, the issue concerned the application of the parol evidence rule to a transnational contract regulated by the United Nations Convention on Contracts for the International Sale of Goods (1980) (hereinafter CISG). Clause 4 of the sale conditions "required MCC to make any complaints by certified mail not more than 10 days after receipt of the tiles," and clause 6 gave to D'Agostino the right to cancel the contract and "any other contract for any default in payment." MCC alleged that they had [page 12] "no subjective intent to be bound by those terms and that D'Agostino was aware of that intent." Applying American contract law, the parol evidence rule would have barred the allegations of MCC. Nonetheless, because the contract was regulated by CISG, the court applied article 8(3) of the CISG reading it as a rejection of the parol evidence rule.
This case shows the difficulty of the common lawyer in grounding decisions on rules instead of cases. In effect, the court focuses its attention only on Article 8 of CISG. A civil law lawyer would have read the CISG as a complete set of norms and principles to be regarded as a whole. In the CISG, there are two provisions that the court should have taken into consideration: Article 61(1)(a) and Article 39(1). These articles are mirror images of clauses 6 and 4, respectively, of the contract signed by MCC and D'Agostino.
While Article 39(1) states:
Article 61(1)(a) states:
Article 64(1)(a) states:
These legal provisions suggest that clause 4 of the contract was valid because a 10 day term is reasonable. The same can be said for clause 6 of the contract, because the default in payment is certainly a fundamental breach of contract.
Furthermore, D'Agostino tried to demonstrate that the contractual provisions conform to the Convention provisions. However, the court rejected due to a lack of "sufficient information" to resolve the dispute under the CISG.
The civil law lawyer would wonder why the Court needed more information? The common law lawyer would answer that the issue was whether or not the parol evidence rule was applicable to the case and that the [page 13] conformity of the contract provisions to the Convention provisions was not the issue of the case.
From a practical point of view, the approach in structuring lawsuits or claims is different. The common law lawyer frames his argument on previous cases, if any, or on examples that present the tangibility of the issue to the court. The civil law lawyer roots his argument on principles and rules, even if he needs to rely upon "soft law" provisions (i.e., Unidroit Principles, Principles of European Contract Law, etc.)
V. Towards a Common Methodology
Thus, we have established that the difference between civil and common law is the methodology and not the outcomes. This paves the way to another question: can we develop the same methodology? The answer is yes, but it requires the development of a common culture. In both common and civil law systems, the law can be defined as the justification of the political, economic and social power and its limits. The legal history teaches us that the law, to exist and to develop, needs a certain level of cultural background. I do not agree with statements that affirm that the law is necessary for the economic and political development, or that without the law there would not be social peace or the law creates the basis for a democratic society. In my opinion, the law, as whole of methods and rules aimed to justify and to limit the power, can born and develop only if the cultural level of the society has created the basis for its development. The law is a cultural matter. In both civil law and common law countries, the law was born as expression of cultural identity. I have tried to demonstrate that if we want a global contract law, we have to work out a common methodology. This cultural task will be impossible as long as we do not have a common culture. Law, as a cultural matter, means that lawyers have to expand their interests in all cultural fields, including literature, music, poetry, technology, etc., because only when lawyers achieve a common cultural background, will they be able to design and understand and use a common methodology in contract law. This means also that the role of law schools needs to change, putting students and scholars in condition to study and learn different cultures. When this cultural [page 14] contamination takes place, as it has in the past, the unification of the Western legal systems will be possible.
The main theory of this paper is that common and civil law lawyers' synergy is not possible because their analytic methodologies are different; results (or outcome) approach analysis of comparative contract law is not a suitable method.
I have pointed out the differences between the common and civil law legal systems, and individuated the task in finding and implementing a common methodology to work out a global contract law.
In the first part, we have seen when and why the scission between the two legal systems took place and analyzed the differences between them. In the second part, we saw the attempt to reconcile common and civil law and its limit. In the third part, we pointed out that the issue is not to have common results or outcomes, but common methodologies. In the last part, we determined that to have a common methodology in the global or transnational contract law, we need to develop a common cultural background. To do so, the law schools of both systems must be conscious that the formation of the global lawyer does not deal only with law, but with the culture to which the law intrinsically belongs. [page 15]
* Dr. Giur. Dr. Ric., Avv.
1. See generally John Edward Murray, Jr. , Murray on Contracts 29-31 (4th ed. 2001) (explaining the demand of contract law uniformity has created different projects and uniform rules, as witnessed by the Convention on Contracts for the International Sale of Goods and the UNIDROIT Principles).
2. Charles H. Haskins, The Renaissance of the 12th Century 198 (1927); Francesco Calasso, Il Negozio Giuridico 193 (1967); Harold J. Berman, Law and Revolution 123 (1983); Franz Wieacker, A History of Private Law in Europe 28 (Tony Weir trans., 1995).
3. Calasso, supra note 2, at 195.
4. Wieacker, supra note 2, at 30.
5. Id. at 30.
6. Id. at 34.
7. Id. at 37.
8. Berman, supra note 2, at 419.
9. Id. at 445.
10. For a detailed analysis of the Henry's reforms see Berman, supra note 2, 446-457.
11. Benedetto Croce, Storia del Regno di Napoli 13 (1925).
12. Raoul C. van Caenegem, The Birth of the English Common Law 88 (2d ed. 1988).
13. John M. Kelly, A short history of Western legal theory 324 (1992).
14. Francesco Carnelutti, Teoria Generale del Diritto 215 (3d ed. 1951).
15. Wolfgang Friedmann, Legal Theory 516-519 (5th ed. 1967).
16. Id. at 517.
17. For a study of inductive method applied to Italian law see Luigi Mosco, Scienza giuridica e metodologia giuridica (1954).
18. James Gordley, The Common Law in the Twentieth Century: Some Unfinished Business, 88 Cal. L. Rev. 1815, 1875 (2000).
19. Communication from the Commission to the Council and the European Parliament on European Contract Law, Com (2001), 398 final, 11.07.2001, 2 at http://europa.eu.int/eur-lex/en/index.html.
20. James Gordley, The Enforceability of Promises in European Contract Law 1 (2001).
21. E. Allan Farnsworth, William F. Young & Carol Sanger, Contracts Cases and Materials 574 (6th ed. 2001).
22. Wieacker, supra note 2, at 410.
23. Farnsworth, supra note 21, at 566; also cite MCC case.
24. A list of these provisions is provided in Steven J. Burton & Melvin A. Eisenberg, Contract Law: Selected Source Materials (3d ed. 2001).
25. Antonio Lordi, Tecnologia e diritto: una ipotesi di lavoro, 2 Rivista informatica e diritto 77, (1999).