The Civil Law
It consists of the legal systems of Continental Europe as well as the legal systems that transposed it through colonisation.
The first modern codification was issued in 1804 by Napoleon.
The year 1900 saw the birth of the German Civil Code.
The Civil Law Reference Codes
The Code Napoléon is the first code in the modern sense.
Napoleon conquered several European states, also imposing his code. Having defeated Napoleon, we have the period of the Restoration, but in many states the code is maintained because it is considered to be an excellent code.
This is the case in Belgium, where Napoleon brings his own code, which even retains its original appearance because French is spoken in Belgium.Let us examine the situation on the Italian peninsula over the last two centuries.
Napoleon arrived on the Italian peninsula and imposed his own code in the territories he subdued.
It is 1861: Italy is united under a single authority and, consequently, it is decided to recodify, replacing the pre-unification codes with a single civil law code and a single commercial law code.The italian civil code of 1865 was essentially a translation of the French Civil Code.
That of trade was 1882.
Currently, Italy has a civil code enacted in 1942 that replaced the two previous codes (civil and commercial) by incorporating the subject matter of commercial law into the single civil code.
A slightly different path is followed in Germany.
Until the end of the 19th century it was divided into Laendereach with its own right. German jurists from the beginning of the 19th century onwards, driven by the usual economic motives, began to advocate legal unity. A problem arose: extending the law of one Land to the whole of Germany was an impracticable solution because the other Laender would not accept it.
The ingenious idea came from the jurist Frederick Charles von Savigny, who proposed, by founding the historical school of law, to rediscover and realise a law for the whole of Germany based on Roman law.
Von Savigny writes a work entitled The current Roman law system.
Von Savigny is successful, forming a school, which culminates in the late 1800s with the publication by Bernardo Winscheid of a work entitled Pandettein which he describes a legal system that could have been the German legal system, based on Roman law.
These jurists, in particular Winscheid, were the starting point for the German legislator when Germany united.
In 1900, in Germany, the Civil Code (BGB) and the Trade Code (HGB).
The Common Law
It consists of the English Legal Order 'exported' to its colonies.
The pre-eminent role among the sources of law is played by the jurisprudence i.e. court rulingswhich constitute the main source of law in private matters.
There is no codification the rule is derived from judicial precedent (principle of the stare decisis) giving rise to a right of a casuistic nature.
Next to jurisprudence, which is therefore the primary source, we find the law.
The law is considered a secondary source of law.
The law is conceived as an instrument to add something, improve or correct the Common Law.
The English jurist tends to interpret the law literally and not examine its ratio.
Civil and Commercial Law
Within private law, civil law is traditionally distinguished from commercial law:
- the Civil Law concerns the family, associations, rights in rem and property rights;
- the Commercial Law is the regulation of entrepreneurship, commercial contracts, bankruptcy, and industrial law.
In many Civil Law countries we find a civil code and a commercial code (e.g. France - Code Civil and Code Commerciale).
On the other hand, in some countries, including Italy since 1942, Russia, the Netherlands, and Brazil, we currently have only one code of private law called the Civil Code, which contains both civil and commercial law rules.
The Concept of Equity Typical of Common Law Systems
L'equity intervenes, in a supplementary manner, whenever the application of the strict law is unfair in practice, operating as a criterion of justice that takes into account the particularities of the case and the related human circumstances, in order to achieve the so-called individual case justice.
The Lex Mercatoria
It is that body of rules and institutions concerning international trade commonly applied by the mercatores (entrepreneurs) in the knowledge that the other contractors will behave according to the same rules.
It constitutes a autonomous supranational legal systemas distinct from state laws, directly applicable to contracts in international trade instead of the provisions of national laws, and originating from:
- general principles of lawgood faith and fair dealing
- customs and habits of international trade
- regulations established by international arbitration jurisprudence
- internationally uniform contractual modelsmade legitimate in relation to individual national rights by the principle of contractual autonomy applicable in each of them.
The examples of international agency contracts and sales concessions drawn up by the International Chamber of Commerce in Paris (ICC) fall within the type of contract just described.
As are the FIDIC rules on international procurement.
These constantly forming and evolving rules mean that the Lex Mercatoria cannot ensure a sufficient degree of certainty as to the set of rules that will govern the contract. Hence its assumption as the sole source of regulation of the contract, other than the agreement between the parties, is inadvisable.
The Uses of International Trade
These are considered to be those behaviours that are voluntarily and repeatedly adopted by the generality of economic operators, who consider their observance to be mandatory.
Belonging to this category of uses are the so-called Incoterms and the Uniform Rules on Documentary Credits, both collected and published, by the International Chamber of Commerce.
Conventions
With reference to the contracting parties, the Conventions may be:
- multilateral
- bilateral
In relation to content, the Conventions are divided into:
- Substantive conventions, which in turn are subdivided into:
- Uniform substantive law conventions such as the C.I.S.G. 1980.
- Conventions for the approximation of laws.
- Private international law conventions such as Regulation EU/593/2008.
- International procedural law conventions such as the 1958 New York Convention on the Enforcement of International Arbitral Awards.
The Unidroit Principles of International Commercial Contracts
Such a source could be described as 'doctrinal' given the way in which its papers are formed.
L'UNIDROIT - www.unidroit.org - is the International Institute for the Unification of Private Law: Institut international pour l'unification du droit privé(hence the acronym), is an international organisation that pursues theharmonisation of private international lawHis projects include producing drafts of international treaties and laws.
The Institute is financed by contributions from the Member States and core funding from the Italian government. Individual projects then have specific funding.
Its official languages are English, French, German, Italian and Spanish; working languages are English and French.
The objective of UNIDROIT is to identify the common principles to most existing legal systems and to draw up a set of rules that can be easily applied internationally, simplifying legal relations that very often involve parties from very different legal systems. They can only be applied to international contracts if they are expressly referred to and could supplement the relevant state legislation.
Given the technicality of the choice, it is always advisable to rely on a lawyer experienced in international contract law.
EU Community Sources
The main acts of a normative nature issued by the competent bodies of the Union and capable of having an effect also in the contractual field are Regulations and Directives.
It follows from the definition in Article 288 TFEU that the Regulation is general in scope; it is binding in its entirety and directly applicable in each Member State.
This means that the Community provisions contained in a regulation, in the same way as national provisions, have effect vis-à-vis any subject (public or private) and thus also in contractual relationships to which the same is a party.
La Directive is addressed to and binds the Member State to which it is addressed as to the result to be achieved, without prejudice to the competence of national bodies as to the form and methods of pursuing that result.
The Member States are therefore bound by the provisions of the Directives and are obliged to implement them in their individual territories by means of measures to be issued within the time limits laid down in the Directive.
The contract negotiation phase and its conclusion
Negotiations prior to the possible conclusion of a contract normally involve the use of time and resources as well as the incurring of expenses, and these activities are likely to be even more important when the negotiations relate to an international contract.
It is precisely these peculiarities that characterise the negotiation phase of international contracts that have led to the increasing use in practice of drafting documents pre-contractual whose purpose is precisely to organise and record the progress of negotiations.
These documents called letter of intent (LOI) o memorandum of under-standing (MOU)They are not to be confused with the future contract for the conclusion of which negotiations are entered into, nor can any breach of the obligations that the parties may have entered into with them be sanctioned by the 'compulsory' conclusion of the contract (e.g. specific performance).
They tend to prevent and regulate the effects of possible misconduct of the parties during the negotiation phase.Why is it important to define the moment of conclusion of the contract?
- only then do contractual obligations arise
- until such time, as a rule, the parties that are negotiating may withdraw their expressions of will
So when can the contract be said to be concluded?
All orders agree on the fact that the contract is concluded through the meeting of a proposal and a acceptance.
What characteristics must theoffer contractual i.e. using technical/legal language the proposal?
The contractual offer (offer/proposal) is the initiative of the one who proposes the conclusion of a contract.
For a manifestation of will to be qualified as offer it must first manifest its intention to bind itself in the event of acceptance and indicate the content of the contractual relationship to be established.
L'offer is something different from "invitation to make an offer"(invitation to offer-propose), in which one party simply encourages another party to issue a proposal.
What is meant by acceptance?
Acceptance is the manifestation of the will of the party receiving the proposal, which, by merging with the proposal, gives rise to the contract.
To constitute a valid acceptance, and thus determine the conclusion of the contract, there must be a manifestation of will mirroring the proposal, i.e. conforming exactly to it, beyond the words or form used.
Thus, there is no acceptance when the offeree's manifestation of will includes elements additional to those indicated by the proposal by constituting a counter-proposal.
In other words, the mirror image rulei.e. the 'mirror image' rule.
As long as the parties 'bounce' different proposals and acceptances off each other there is no conclusion of the contract, which will only occur when proposal and acceptance are identical.
Acceptance must then be communicated to the offeror: mere silence does not presume any acceptance even if concluding conduct counts as acceptance.
Battle of the forms
If the parties send each other their general terms and conditions In Anglo-Saxon parlance we speak of Battle of the forms.
Among the competing theses to explain the functioning of this legal institution is the so-called. last shot (the last blow), meaning that if the party receiving a counter offer performs its performance by such conduct, which is termed "conclusive", that party accepts, by delivering or performing the performance. The counter offeri.e. the counter-proposal, then becomes the last shoti.e. the 'last blow', in the sense of the last change made to the documentation that the parties are exchanging.
Time of conclusion of the contract
Certain conceptual differences between the various legal systems exist with regard to the moment. in which the agreement between distant contracting parties may be deemed to have been concluded.
In this respect, there are three main models:
- principle of cognitionadopted also in Italy, Art. 1326(1) of the Civil Code and is based on the principle that a contract is not considered to be concluded until acceptance reaches the offeror;
- principle of receptionis that the contract is perfected when the acceptor's declaration has reached the offeror's address, irrespective of any actual knowledge the offeror may have had of it;
- shipping principle (mail box rule) typical of the countries of Common Law which is based on the principle that the contract is concluded when the acceptor issues its affirmative declaration in the direction of the offeror.
According to this principle, the acceptor may no longer, having sent the acceptance, revoke it.
General Terms and Conditions of Contract Abuse of Rights and Infringement Clauses
General Terms and Conditions are those general clauses that the entrepreneur uses in the generality of the contracts he concludes.
The general terms and conditions often become the means by which the 'strong' entrepreneur proposes to the 'weak' entrepreneur a contract drafted in such a way as to ensure maximum favour for the draftsman by succeeding to impose them.
Speaking of general terms and conditions, it is worth recalling the provisions of Articles 1341 and 1342 of the Italian Civil Code (c.d. unfair terms), which require that certain clauses inserted in general conditions or forms "must be specifically approved in writing"by the one to whom they are submitted.
In practice, a double signature for acceptance of the above-mentioned clauses by the person who 'suffers' the contract already drawn up.
The application of Articles 1341 and 1342 of the Civil Code to international contracts is debated.
However, since the 'double signature' rule is present in Italian law, if the international contract is governed by Italian law, it is advisable to prepare the contract by including the 'double signature'.
English (UK) 
Italiano 
Français