Ferrari, Franco --- "Offer and Acceptance Inter Absentes" [2006] ELECD 197; in Smits, M. Jan (ed), "Elgar Encyclopedia of Comparative Law" (Edward Elgar Publishing, 2006)

Book Title: Elgar Encyclopedia of Comparative Law

Editor(s): Smits, M. Jan

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845420130

Section: Chapter 46

Section Title: Offer and Acceptance Inter Absentes

Author(s): Ferrari, Franco

Number of pages: 20

Extract:

46 Offer and acceptance inter absentes*
Franco Ferrari


1 Introduction
The notion of `contract' has been adopted by both the common law and
the civil law; nevertheless, the apparent prominence of a concept `in two
legal systems should not mislead one into seeing similarity where there is
significant difference' (Zysow, 1985). The most obvious difference relates to
the different `indicia of seriousness', i.e., the `general requirements to dis-
tinguish those promises which are legally significant from those which are
not, to distinguish serious from unserious promises and thus to determine
which promises are actionable and which are not' (Zweigert and Kötz,
1992, p. 419). In civil law, at least in the so-called `romanistic' area, this
function is generally performed by the so-called causa (see art.1325 s.2 of
the Italian Civil Code) or cause, i.e., a generalized reasonable motive for
making a contractual promise. By contrast, in the common law, considera-
tion `stands, doctrinally speaking, at the very center of the . . . approach to
contract law' (von Mehren, 1959). Although these concepts perform basi-
cally the same functions (see Markesinis, 1978) (it has even been argued that
they are the same. In the colony of the Cape of Good Hope, for instance,
the Supreme Court pointed out that causa and consideration were the
same; see, e.g., Alexander v. Perry, 4 Buch. 59 (1874); Malan & Van der
Merwe v. Secretan, Boon & Co., Foord 94 (1880); for further citations, see
Lorenzen, 1919; Markesinis, 1978, p. 53). ...