Contract

A contract is defined as a Convention formal or abstract, last between two Partie S or more, having for object the establishment of obligation S with the load or the benefit of each one of these parts.

The provisions of a contract are called Clause S or Stipulation S.

General information

The contract is one of the oldest institutions of the right: the Code of Hammourabi (approximately 1730 before J-C.) in fact already state, in particular agrarian matter. But it is with the Roman law that it is the subject of a true theorization.

The contract is a legal Document of Private law, the family of the obligation S, and category of conventions. By exception, there exist contracts of public Droit known as public service contracts.

It has two theoretical components:

  • the “ Negotium ” which corresponds to the substance of the agreement of the parts.
  • the “ Instrumentum ”, support of this agreement having also value of proof in the event of litigation.
In theory, only the “negotium” is essential with the validity of the contract, the “instrumentum” constitutes only one pledge of legal security, and if it is generally about a written (material or numerical), he can be reduced to an oral agreement, or even to an attitude (ex: the only transmission of the keys of a car can conclude a loan from vehicle). Sometimes, the law can impose this safety by requiring a writing or a notarial act.

The parts with the contract, natural persons or moral persons, must have the capacity to begin. Once the regularly concluded contract, it binds the parts with the contract under the terms of the traditional principle “pacta sunt servanda”. The consequence is that in the event of inexecution of an obligation by the Cocontractant Débiteur, the creditor part will be able to be prevailed of the contract to require Réparation in Justice. It is said that the contract is opposable between the parts.

A contrario, all the other people are regarded as Tiers with the contract, and cannot in no case to be dependant by the contract. It is what is called the relative effect contracts. By exception, it happens that thirds can be prevailed of an obligation to their benefit, in the case of the Stipulation for others, and seize the Juge in the event of inexecution. Indeed, from the point of view of the third stipulated with the contract, this stipulation is connected with a unilateral act in its favor. Thus, if the contract is incontestable with the thirds, the thirds can sometimes the oppose to the parts with the contract.

As a convention, the contract is born from an agreement between the parts, it in what it differs from the unilateral Acte, which can also cause obligation. It is necessary to keep this criterion with the spirit in the case of the unilateral contract which is well a contract, not a unilateral act: in this case, the unilateral character sticks to the obligation, and not to the making of the act which remains consensual.

Right English

See also: Contract in English right

The English right does not make distinction between the contracts of private law and the contracts of public law. Traditionally, the Common law tends to see the contract as an almost crowned institution (one speaks besides about) and to accept only one strict and rigorous vision of this one.

Right French

See also: Contract in France, Public service contract in France

In France, the contract is defined by article 1101 of the Civil code French:

Particularly, the French right makes a distinction between the contract of civil law, and the contract of public law, signed between the Administration and a person of private law: one then speaks about public service contract.

See too

Simple: Contract

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