Article by Parviz Owsia
With the economic integration of European Community countries leading to a single market in 1992 and moving towards an eventual monetary and political union, not only English and Continental lawyers but also lawyers of various other countries are getting increasingly involved in a myriad of contracts involving French and English law; these legal systems being, respectively, the historical representatives of the common- and civil-law systems. The most common mechanism of contract formation, offer and acceptance, is used as a standard tool under both systems. There are, however, certain material differences as to how these two systems conceptualize offer and acceptance.
The doctrine of offer and acceptance in contract formation is so entrenched in various legal systems that its operation is often taken for granted as a natural and logical mechanism. Historically, this has not been the case. Nor is the mechanism presently workable in all contractual situations. Offer-and-acceptance suits are simple, two-party cases where the respective statements or conduct of the parties or both can be construed as definite expressions made or evinced in a clear sequential order.
As a basic rule, under French and English law today, the first definite expression, be it explicit or tacit, to enter into a contract, containing the essential contractual terms made by either party, is considered the offer. The second expression in positive reponse to, and corresponding with, the first is considered the acceptance. This conception, geared to the chronologically sequential order of the parties' expressions, is common between the two legal systems.
The two systems, however, differ not only in the formulation and analysis of the rules, but also in approach and outlook. The systems' functional solutions may be similar in responding to homogeneous socio-economic needs, and the legal frameworks may also be similar. The starting point and the angle of projection in addressing identical issues or a set of interrelated issues are, however, in sharp contrast when the two systems are compared. The French treatment of offer and acceptance is made analytically with reference to the will (volonté) or the consent (consentement) or both of the parties. The English approach, by contrast, is empirical and generally linked to objective inferences to be drawn from the acts of the parties and the events of the case in relation to a promise in a bargain. In recent years, both systems have developed interesting features that, in certain respects, are innovative.
This Article is designed to outline the historical background and the current theoretical and practical aspects of offer and acceptance with a view toward demonstrating the differences and similarities in approach between French and English law. The inquiry undertaken here will be limited to the basic concept and structure of the doctrine of offer and acceptance, and will not be concerned with the detailed rules pertaining to either offer or acceptance. The Article will begin with an historical sketch of the doctrine. Then, the respective positions of these two legal systems will be discussed. Finally, a general comparison and conclusion will complete the inquiry.
About the Author
Parviz Owsia. Ph.D., University of London. An Iranian lawyer in exile, formerly taught comparative commercial law and civil law at the Faculty of Laws, University of Tehran, and practiced law in Iran until 1979. He is presently engaged in independent legal consultancy and comparative research work in Paris and London. His forthcoming book, Formation of Contract; A Comparative Study under English, French, Islamic, and Iranian Law, is some 700 pages and will be published in 1992 by Graham and Trotman/Kluwer.
Citation
66 Tul. L. Rev. 871 (1992)