French Subjective Theory Article[1]

7/26/2019 French Subjective Theory Article[1]

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THE FRENCH SUBJECTIVE THEORY OF CONTRACT:

SEPARATING RHETORIC FROM REALITY

Wayne Barnes

I. INTRODUCTION

The central premise to the objective theory of contracts is thatcontractual assent is determined by analyzing external evidence, andevidence of subjective, internal intention is therefore unimportant.1

That is, contract formation is concerned ith communication, notcognition.! Thus, modern objective theory provides that "objectivemanifestations of intent of #a$ party should generally be vieed from

the vantage point of a reasonable person in the position of the otherparty.%& 'ost of the jurisdictions of the orld follo a basicobjective theory of contract formation.( This nearly universaladherence to objective theory follos from the obvious pragmatismof the rule)* hoever, on a more fundamental level, it also serves

+rofessor, Texas Wesleyan niversity -chool of a. / ould li0e to than0Texas Wesleyan niversity -chool of a for its generous research assistance

provided for this article. / ould also li0e to than0 my Texas Wesleyan colleaguesfor their input on this paper at an informal or0sinprogress presentation on 2ugust!3, !445, including +aul 6eorge, 7arla +ratt, 8ason 6illmer, 9uyen +ham, 'ichael6reen, -usan 2yres, and :eith 9iro0aa.

1 ;/ W=?@= 9;'=-, 8>., T9= 7;'';? 2W&4A @over ed. 1AA1C"The la has nothing to do ith the actual state of the partiesD minds. /n contract,as elsehere, it must go by externals, and judge parties by their conduct.%C.

! See @uncan :ennedy, From the Will Theory to the Principle of PrivateAutonomy: Lon Fullers Consideration and Form, 144 7;'. . >=/;, 722'2>/ 2?@+=>/; ;?7;?T>27T-E !.! 2T!F *T9

ed. !44&C citing >ic0etts v. +ennsylvania >.>., 1*& G.!d F*F, F3431 !d 7ir. 1A(3CGran0, 8., concurring opinionCC.

(8oseph '. +erillo, The !ri"ins of the !#$ective Theory of Contract Formationand %nterpretation, 3A G;>@92' . >=@;G B. -79=-/?6=>, G;>'2T/;? ;G7;?T>27T-H 2 -T@I;G T9= 7;'';? 7;>= ;G =62 -I-T='- 1(F 1A35C noting that, "ith the

possible exception of Grench la, all systems under consideration agree, as a matterof principle, that communication of acceptance is necessary to bring about acontract.%C.

* +erillo,supra note (, at (!5!A. +rofessor +erillo states that the permanentdominance of the objective theory in the nited -tates occurred hen most

jurisdictions changed the rules of procedure to allo litigants to testify forthemselves. %d&


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many of the philosophical underpinnings of contract la, such asprinciples of fairness and protection of reliance, freedom of contract,and personal autonomy.3

There appears to be one major nation in the orld here theprevalence of the objective theory is in some JuestionGrance.F Gor=nglishspea0ing common la scholars, the Grench position on thesubjective theory of contracts is revealed through the recurrentrepetition of statements li0e this one from the 7alamari and +erillohornboo0 on 7ontractsH "the subjective theory dominates thin0ingabout contract #in Grance.$%5 ;r this oneH "Gor a contract to exist inGrench la there must be a subjective agreement as to its terms) in

=nglish la an objective agreement suffices.%A ;r this one fromWillistonDs venerable treatise on 7ontracts, otherise discussing theprevalence in the common la of the objective theoryH "/t ouldindeed be possible for a system of contractual la to adopt as aprinciple the subjective theory that herever the parties intendedlegal obligation, then, and then only, the la ould create one, andsuch an idea seems to have developed and to have had considerableacceptance on the 7ontinent of =urope.%14 Williston as assuredly

3See 722'2>/2?@+=>/;,supranote=rrorH >eference source not foundE1.(, at 31&.

F ! >@;G B. -79=-/?6=>, G;>'2T/;? ;G 7;?T>27T-H 2 -T@I ;G T9=

7;'';? 7;>= ;G =62 -I-T='-1(F 1A35C noting that, "ith the possibleexception of Grench la, all systems under consideration agree, as a matter of

principle, that communication of acceptance is necessary to bring about acontract.%C)see also id&at 11& "2ll systems under consideration, ith the possibleexception of the Grench, agree that such undeclared revocation is ineffective if itdoes not come to the notice of the offeree.%C. The -chlesinger comparative studyconsidered a large number of representative nations, including a number ofcommunist countries including the thenexisting -oviet nionC, =ngland, 2ustralia,7anada, ?e Kealand, Grance, 2ustria, 6ermany, -itzerland, /ndia, /taly, +oland,and -outh 2frica.

5 722'2>/ 2?@ +=>/;, supra note & E !.! citing ! G;>'2T/;? ;G7;?T>27T-H 2 -T@I ;G T9= 7;'';? 7;>= ;G =62 -I-T='- 1&131A >.-chlesinger ed. 1A35C) 7hloros, Comparative Aspects of the %ntention to Create

Le"al 'elations in Contract, && T. >=;'W//-T;?;?7;?T>27T-, rev. ed. 1A&5C, E !1, p. 15. Williston ent on to saythat the subjective theory as "foreign to the common la and, it may be added, is


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manifestation of mutual assent on the part of to or more persons.%1(The traditional steps for determining hether mutual assent hasoccurred are the offer and acceptance.1* But, the ultimate issue incontract la is hether the parties have mutually agreed to someexchange.

There are to planes on hich mutual assent can be analyzedM the objective and the subjective. By objective, e mostly mean theexternal communications of assent as perceived by the other party)hereas, subjective assent has little to do ith external perceptions,but rather is concerned ith hether the parties each subjectivelyintended to ma0e the contract.13 7ourts and commentators struggled

philosophically throughout the history of the development of contractdoctrine to determine the appropriate manner of determining assent.1F

1&722'2>/ 2?@+=>/;,supranote =rrorH >eference source not found,E1.1, at !.

1(>=-T2T='=?T-=7;?@C ;G7;?T>27T-E & 1A51C.1*%d&EE 1FF4.13See?eman v. -chiff, FF5 G.!d (34, (3( 5th7ir. 1A5*C citing '. 9;>W/TK,

T9= T>2?-G;>'2T/;? ;G 2'=>/72? 2W 1F541534, 15455 1AFFC) -amuelWilliston,3utual Assent in the Formation of Contracts, 1( /. . >=ic0etts v. +ennsylvania >.>., 1*& G.!d F*F, F34 !d 7ir. 1A(3C Gran0, 8.,concurringCC) see also 3 -2P /T>2I, 8>.,


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The second plane is the objective approach. This approachanalyzes the external evidences of the partiesD intention as the onlyrelevant consideration. 8udge earned 9and memorably describedobjective theory as follosH

2 contract has, strictly spea0ing, nothing to do ith the personal,or individual, intent of the parties. 2 contract is an obligationattached by mere force of la to certain acts of the parties, usuallyords, hich ordinarily accompany and represent a 0non intent./f, hoever, it ere proved by tenty bishops that either party,hen he used the ords, intended something else than the usualmeaning hich the la imposes upon them, he ould still be held,

unless there ere some mutual mista0e, or something else of thesort.%!!

-imilarly, ;liver Wendell 9olmes, 8r. stated that "#t$he lahas nothing to do ith the actual state of the partiesD minds. /ncontract, as elsehere, it must go by externals, and judge parties bytheir conduct.%!& @ean angdell observed that "#i$n truth, mental actsor acts of the ill are not the materials out of hich promises aremade) a physical act on the part of the promisor is indispensable) andhen the reJuired physical act has been done, only a physical act canundo it.%!( "The real ill of the parties, according to this theory, only

exists in their soul and, therefore, cannot enter the field of the la.%!*

'ore recently, 8udge =asterbroo0 has observed that "DintentD does notinvite a tour through #plaintiffDs$ cranium, ith #plaintiff$ as theguide.%!3

ltimately, as demonstrated by the jurisprudentialobservations above, in 2nglo2merican jurisdictions, objective theorybecame the dominant method by hich mutual assent to contract asdetermined.!F Though the common la courts undoubtedlyassimilated certain aspects of subjective doctrine, the objective test

!!9otch0iss v. ?ational 7ity Ban0, !44 G. !5F, !A& -.@.?.I. 1A11C. +rofessor2llan Garnsorth described 9andDs famous Juote this ayH "?ote that 9and, ith

typical crusaderDs zeal, denied not only the necessityof a meeting of the minds,Dbut even its relevance.% =. 2llan Garnsorth, 3eanin" in the La0 of Contracts ,F3 I2=. 8. A&A, A(& 1A3FC emphasis in originalC.

!&9;'=-,supranote=rrorH >eference source not found, at &4A.!(7. 7. 2?6@=, 2 -''2>I;GT9=2W;G7;?T>27T-!(( 1554C.!*/T


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F F'()C* S+-(CT%.( T*(!'/ !F C!)T'ACTS #?-W;>T9, 7ontracts E &.3, at 11( 1A5!CC) >ic0etts v. +ennsylvania >. 7o., 1*&G.!d F*F, F313! !d 7ir. 1A(3C Gran0, 8., concurringC "2t any rate, the sponsorsof complete objectivityD in contracts largely on out in the ider generalizations ofthe >estatement of 7ontracts and in some judicial pronouncements.%C citingW//-T;?, 7;?T>27T->ev. ed.C E &*) >=-T2T='=?T ;G 7;?T>27T-E F4, F1,and *4& 1A&!C) 9otch0iss v. ?ational 7ity Ban0, !44 G. !5F, !A& -.@.?.I. 1A11CC./n his treatise on contract la, +rofessor 'urray states the resolution in favor ofobjective theory as follosH

The controversy has been resolved. 7ontract la abandoned thetheory of subjective intention as unor0able. 2 legion of casessupport the vie that the outard manifestations of the partiestheir expressionsill be vieed as the exclusive evidence of the

partiesD intentions rather than assertions of their subjective

intention. . . .There can be no doubt . . . that the objective theory isclearly established throughout the country.%

'>>2I, supra note =rrorH >eference source not found, E &4, at 3&3(citations omittedC.

There is some dispute about hether 2nglo2merican la previouslyfolloed a subjective approach, prior to settling on a predominantly objectiveapproach. 'any standard accounts of the history of 2merican and =nglish contractla suggest such a history. +erillo,supranote =rrorH >eference source not found, at(!F(!A citing 2W>=?7= G>/=@'2?, 7;?T>27T 2W /? 2'=>/72 5F 1A3*C)';>T;? 8. 9;>W/TK, T9= T>2?-G;>'2T/;? ;G 2'=>/72? 2W, 1F5415341AFFC) 6>2?T 6/';>=, T9= @=2T9 ;G 7;?T>27T 1AF(CC. +rofessor +erilloconvincingly states, hoever, that the dominant approach has almost alays been

an objective one, ith only a brief "flirtation% ith subjective theory in the early tomid nineteenth century. +erillo,supranote =rrorH >eference source not found, at(!5.

!5 'artin 8. @oris, 5id We Lose the a#y With the ath0ater6 The LateScholastic Contri#ution to the Common La0 of Contracts, 11 T=L. W=-=I2? .>=


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objective theory hich states that "#a$ partyDs intention ill be held tobe hat a reasonable person in the position of the other party ouldconclude the manifestation to mean.%&4 This definition 0eeps thecomponents of classical objective theory by analyzing assent from theperspective of the "reasonable person.%&1 But it improves upon"pure% objective theory by ta0ing into account some subjectivity andthereby incorporating the point of vie of someone "in the positionof% the one receiving the manifestation.

The objective theory of contracts has been ell established in2nglo2merican jurisdictions, and even in most other majorjurisdictions in the orld ith the notable exception of GranceC,

because of its logical pragmatism and vindication of many policyoriented concerns of contract la. The objective theory deals ith0noable evidence of external manifestations of assent, and ma0esthose the primary basis of concern for determining formation ofcontract. The objective theory also protects reliance induced by suchexternal manifestations of contractual assent, and therefore providessecurity and predictability to economic transactions.&! Gurther,

&4722'2>/2?@+=>/;,supra note=rrorH >eference source not found, at!F.

&1See >ic0etts v. +ennsylvania >. >., 1*& G.!d F*F, F31 !d 7ir. 1A(3C Gran0,8., concurringC "The objectivists transferred from the field of torts that stubborn

antisubjectivist, the "reasonable man%C.&! @aniel +. ;D6orman, A State of 5isarray: The 7no0in" and .oluntary

Standard for 'eleasin" Claims +nder Title .%% of the Civil 'i"hts Act of 89;, 5 ,+=??. 8. 2B. Q ='+. . F&, 1111! !44*C citing 8;9?@. 722'2>/Q 8;-=+9'. +=>/;, T9= 2W ;G 7;?T>27T- !* !d ed. 1AFFCC Juoting -2'=W//-T;?, 1 2 T>=2T/-=;?T9=2W;G7;?T>27T-E &* &d ed. 1A*FCC "Theobjective theory is strongly supported by those ho place the basis of contract laupon the promiseeDs justified reliance upon a promise or upon the needs of societyand trade. 2n objective test is believed to protect the fundamental principle of thesecurity of business transactions.%C. See also '>>2I, supranote 1F, E &4, at 3!"nder #the subjective theory$, no system of contract la could ever proveor0able since it ould be impossible to prove the subjective intention of either

party at any time.%C) =mpro 'fg. 7o. v. Ball7o 'fg., /nc., 5F4 G.!d (!&, (!* Fth

7ir. 1A5AC =asterbroo0, 8.C "#/$f intent here #sic$ holly subjective . . . no oneould 0no the effect of a commercial transaction until years after the documentsere in0ed. That ould be a devastating blo to business.%C) >ic0etts v.+ennsylvania >. 7o., 1*& G.!d F*F, F31 n.! !d 7ir. 1A(3C "The actual intentDtheory, said the objectivists, being subjectiveD and putting too much stress onuniJue individual motivations, ould destroy that legal certainty and stability hicha modern commercial society demands. They depicted the objectiveD standard as a


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A F'()C* S+-(CT%.( T*(!'/ !F C!)T'ACTS #/72 /?T>;@7T/;? T; ';@=>?

7/eniger v. Gogossa, F* =ng. >ep. 1 =x. 1**1CC.

&F?/79;2-,supranote &*, at &(.&5/T


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sometimes ith a corrective hich yields much the same practicalresult as the objective approach.%&A -tated differently, a "subjectiveinternalisationD of contractual obligationsthe meeting of minds orconcurrence of to or more independent illsthough evidentlysupported by external, objective elements became the cornerstone ofthe Grench natural la theory of contract.%(4

2n important factor in the development of the subjectivetheory of Grench contract the ill theory as almost certainlythe freedom of the individual that as the prevailing philosophy ofthe eighteenth century, especially in Grance in the time leading up toand folloing the Grench revolution.(1The Grench >epublicDs motto

&A ?/79;2-, supra note &*, at &() 7;?T>27T 2WT;@2IH 2?6;G>=?797;'+2>/-;?-1F 1A5AC "the =nglish layer ill find that the Grench give a moresubjective meaning than he does to the reJuirement of consent%C) 8ulian -.Waterman, >evie,5es Contrats 5Appr? 7/


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11 F'()C* S+-(CT%.( T*(!'/ !F C!)T'ACTS #evolution as the only source

for the development of the free ill and Grench subjective theory. /n fact, theconcept of contracting only by consent as probably initially a product of canonla, and that of "the sanctity of the moral obligation to be bound by a promise.%7hloros,supranote 5, at 31()see also>=?R@2=?792WH 27;'+2>/-;?/?-B-T2?7=14! 1A54C "/n Grance and on the continent of =uropeon the contrary the reason hy a contract should be recognized as legally binding isa moral reason, not an economic one. Fides est servanda: one is bound inconscience to 0eep his ord) this is a principle affirmed by the 7hurch, hich thecanonists have succeeded in introducing into the la. "C.

(! See 8;9? B=, -;+9/= B;I>;?, -/';? W9/TT2:=>, +>/?7/+=- ;GG>=?792W&43 1AA5C.

(& 'artin 8. @oris, 5id We Lose the a#y With the ath0ater6 The LateScholastic Contri#ution to the Common La0 of Contracts , 11 T=L. W=-=I2?.

>=?=.O. &3*, &333F 1A!1CC. See also2. 6. 7hloros, Comparative Aspects of the%ntention to Create Le"al 'elations in Contract, && T. . >=


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This theory of free ill of parties to govern their affairs is reflected insection 11&( of the Grench 7odeH "2greements legally formed havethe character of loi for those ho have made them.%(* Thisphilosophy of the "autonomy of the ill% as a natural companion tothe idea of laisse>=faire and the idea that that people are the bestjudges of their on interests.(3 "The theory #of the autonomy of theill$ as ta0en for granted as the foundation of contractual doctrinein all 7ivil la countries in the nineteenth century.%(F

2ll of these principles ere ta0en for granted by the jurists inGrance at the time of the creation of the Grench 7ivil 7ode. 2rticle

1141 of the Grench 7ivil 7ode defines contract as "an agreement byhich one or more persons obligate themselves to one or more otherpersons to give, or to do or not to do, something.% 2rticle 1145 of the7ode, in turn, provides four conditions essential to the validity of theagreement the very first one of paramount importance is "theconsent of the party ho binds himself.%(5 This simple phrase, then,became the bedroc0 of the consensualist theory of contract hich stillpredominates in Grance.

The first source of contract la in Grance is, of course, the7ivil 7ode itself. 9oever, the ritings of the Grench jurist +othierere highly influential in the thin0ing behind the Grench 7ivil 7ode

sections governing contracts.(A /n his introduction to the concept of(( 7hloros, supra note 5, at 31* citing +2?/; =T >/+=>T, T>2/TR

RR'=?T2/>= @= @>;/T 7/onald 8. -calise, 8r., Why )o (fficient reach %n The Civil La06: A

Comparative Assessment of The 5octrine of (fficient reach of Contract, ** 2'. 8.7;'+. . F!1, F(1 !44FC)see also@oris,supranote (4, at &3! n.* "Traditional=uropean legal historians and contract theorists commonly vie the Grench theorists8ean @omat, the great initiator, to hom e oe the concept of natural eJuityD and


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1& F'()C* S+-(CT%.( T*(!'/ !F C!)T'ACTS #obert +othier, hose analysis of contract formed the basis of the Grench 7ode7ivil of 154(, as founders of the "ill theory.%C) ? /79;2-, supranote &*, at &&)/n the Grench 7ivil 7ode, as in most other civil la jurisdictions, the la of"contracts% is actually part of a greater body of la called "obligations%.

;bligations consists of both consensual agreements contractsC, as ell as"delictual% obligations a0in to common la tortsC. T9;'2- 6I? W2T:/?, 2?9/-T;>/72/?T>;@7T/;?T;';@=>?7/. 8. +;T9/=>, 2 T>=2T/-=;?T9=7;?T>27T;G-2=1F . -. 7ushingtrans., 15&AC 1F3!C.

*1%d&*!%d& at 15.


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offeree before it is operative to create the poer of acceptance in theofferee.*& 9ere, hoever, the concern is ith the extent that the lareJuires communication and receipt of an offerorDs revocation inorder for it to be effective to terminate the poer of acceptance. /nobjective theory, of course, though an offer may generally be freelyrevo0ed prior to acceptance, any such revocation is not effective toterminate the offereeDs poer of acceptance until the revocation isreceivedby the offeree.*( 9oever, ith the Grench subjective theoryand pure "autonomy of ill% philosophy, this is not the case. >ather,once the offeror changes his mind and revo0es, the offereeDs poer ofacceptance ends at that moment regardless of hether the offeree as

instantaneously aare of the revocation so long as there is someexternal evidence of the offerorDs change of mind, for reasons ofproof onlyC.** The fact that there could not have been a subjectiveconcurrence of the ills is conclusive.*3

2 Grench case from the Cour dappel in 'ontpellier isillustrative. 2 landoner offered to sell property to an offeree, butprior to the offereeDs acceptance the oner contended there could beno contract because he had already sold the property to a third partyin the intervening time period beteen the offer and the attemptedacceptance.*F The offerorDs argument as rejected M not, hoever,because the offeree as not aare of the alleged sale to the third party

*&See-79=-/?6=>,supranote F, at 14(.*(>=-T2T='=?T-=7;?@C ;G7;?T>27T-E (!.**?/79;2-,supranote &*, at 3&3(. Grench la, of course, also agrees ith

=nglish and 2merican la that if the offeree learns that the offeror no longerintends to be bound, the poer of acceptance is terminated at that point. See-79=-/?6=>,supranote F, at 51!.

The Grench position on effectiveness of undeclared revocations seems fairlyclear from the reported Grench cases discussing the problem of an undeclaredrevocation. See -79=-/?6=>, supra note F, at 51*15. 9oever, the Grenchdoctrine riters seem more divided on the subject, though they concede that thecases point toards a subjective vie of the matter. %d&

*3 ?/79;2-, supra note &*, at 3&3(. /nterestingly, a famous =nglish case,

Coo?e v& !4ley, has been idely interpreted by most scholars as deciding the sameprinciple under =nglish la. 144 =ng. >ep. F5* :. B. 1FA4C. See, e&"&, =. 2llanGarnsorth, 3eanin" in the La0 of Contracts, F3 I2=. 8. A&A, A(((* 1A3FC.9oever, +rofessor +erillo has recently ta0en exception ith this characterization,and asserts that the case as decided purely on grounds of consideration. 8oseph '.+erillo, The !ri"ins of the !#$ective Theory of Contract Formation and

%nterpretation, 3A G;>@92'. >=


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1* F'()C* S+-(CT%.( T*(!'/ !F C!)T'ACTS #ather, the court rejected theofferorDs argument because it found factually that the offeror had not,in fact, sold the property yet at the time the offeree made an operativeacceptance, and therefore there had not been an effective revocation. *A

9ad there indeed been a sale to a third party, it appears from Grenchdoctrine that the court ould have been satisfied that there had been arevocation, even before the offeree came to have 0noledge of suchsale.

This Grench rule on revocability of offers being operativeinstantly, even prior to communication to the offeree, has its origins inpre7ode analysis by +othier himselfH

This ill is presumed to continue, if nothing appears to thecontrary) but, if / rite a letter to a merchant living at a distance,and therein propose to him, to sell me a certain Juantity ofmerchandise, for a certain price) and, #efore my letter has time toreach him, % 0rite a second, informin" him that % no lon"er 0ish to

ma?e the #ar"ain@ or if / die) or lose the use of my reason)althou"h the merchant, on the receipt of my letter, #ein" ini"norance of my chan"e of 0ill, or of my death or insanity, ma0esanser that he accepts the proposed bargain)yet there 0ill #e nocontract of sale #et0een us@ for, as my 0ill does not continue until

his receipt of my letter, and his acceptance of the propositioncontained in it, there is not that consent or concurrence of our

0ills, 0hich is necessary to constitute the contract of sale.34

9ere lies the origin of much of the rhetoric in Grench contracts lathat subjective mutual assent is reJuired, rather than merely objectiveassent. +othier is saying that an offeror, ho has created theappearance of a illingness to contract by his initial mailed offer,may nevertheless terminate the offereeDs poer of acceptance by the

*F?/79;2-,supranote &*, at 3( citing a case hich as upheld by the Courde cassation, 7ass civ 1F.1!.1A*5, @ 1A*A.&&C.

*5See 5ic?inson v& 5odds, ! 7h. @ (3& 15F3C =nglish case holding offerorDsoffer to sell as indirectly revo0ed by offereeDs 0noledge of intervening sale to a

third partyC.*A?/79;2-,supranote &*, at 3(.34+;T9/=>,supranote *4, at 15 emphasis addedC. +othier further mentioned

his sources for these propositions, and noted a divergence from >oman la in thematterH "This is the opinion of Bartholus and the other jurists cited by Bruneman, ad1. 1, E !. @. de contrah& (mpt&15, 1, 1, E !C, ho very properly reject the contraryopinion of the 6loss, ad dictam le"em.% %d&


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mere act of riting a subseJuent revocation. 2nd this appears to cutoff the offereeDs poer to accept, regardless of hether the offereehas received the revocation or has 0noledge of it. +othier simplysays that, once the revocation is ritten and perhaps dispatched the text leaves some room for interpretationC, there is no longer apossible "concurrence of ills% and therefore there can be nocontract.31 The termination of the poer of acceptance by either theintervening death or insanity of the offeror are concepts hich arefamiliar to the common la.3! 9oever, +othierDs assertion that anofferorDs unreceived revocation could terminate the offereeDs poer ofacceptance is Juite a divergence from the objective theory concept

that a revocation is only effective hen received by the offeree.3&Though the offerorDs revocation letter is some "objective% evidence ofhis internal intention no longer to be bound by his prior manifestationof assent, it is still purely "subjective% in the sense that at the momentthe revocation is ritten and sent only the offeror 0nos about it. Tothe offeree, it is as though it has not occurred yet, since he has notbecome objectively aare of it. This is, therefore, a fairly clearillustration of the origins of the Grench subjective theory of contract.3(

Though this subjective approach to revocation appearsphilosophically at odds ith the objective approach hich reJuiresthe offeree to become aare of the revocation before it operates to

terminate the poer of acceptance, there is a mitigating principle inGrench la hich greatly reduces the difference in outcomes. /n thiscase, the principle is that offers are not nearly as freely revocable inthe first place, as they are in common la jurisdictions. Though in

31%d&@ see also 8oseph '. +erillo, The !ri"ins of the !#$ective Theory ofContract Formation and %nterpretation, 3A G;>@92' . >=,supra note *4, at &!C "+othier asserted that the mere dispatch of aletter of revocation objective evidence of subjective intentionC ill revo0e an offersubject to the offerorDs liability to indemnify an offeree ho ta0es concrete steps inreliance on the offer.%C

3!

See, e&"&, >=-T2T='=?T-=7;?@C ;G7;?T>27T-E &3.3& See >=-T2T='=?T -=7;?@C ;G 7;?T>27T-E (! "2n offereeUs poer ofacceptance is terminated hen the offeree receives from the offeror a manifestationof an intention not to enter into the proposed contract.%C.

3(See8oseph '. +erillo,'o#ert -& Pothiers %nfluence on the Common la0 ofContract, 11 T=L. W=-=I2? . >=


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1F F'()C* S+-(CT%.( T*(!'/ !F C!)T'ACTS #,supranote F, at F3AF4.33 ?/79;2-, supra note &*, at 3(. /n the Cour de cassationcase described

immediately above, the court noted, prior to concluding there had been norevocationH

hile an offer may in principle be revo0ed as long as it has notbeen accepted, the position is different here the offeror hasexpressly or impliedly underta0en not to revo0e before a certaintime) and in the present case the judgment of the court belo notesthat . . . #offeror$, having tacitly obliged himself to 0eep his offeropen #until after #offeree$ had made his inspection$, could not haverevo0ed the offer #on the day alleged$ ithout committing a faultof a 0ind hich ould entail liability on his part.D

%d& See also ! KW=/6=>T 2?@ :VTK, /?T>;@7T/;? T; 7;'+2>2T/,supranote F, at FF! "The theoretical rule that in Grench laan offer normally is revocable is further attenuated by the general recognition of the

presumption, or more exactly of a reJuirements, of temporary irrevocability.%C)+2>'2T/;? ;G 7;?T>27TH 2 7;'+2>2T/=?6/-9, G>=?79, /-2'/72?@/>2?/2?2W((5*F 1AA(C.

3F-79=-/?6=>,supranote F, at FF! citations omittedC.352rturo ?ussbaum, Comparative Aspects of the An"lo=American !ffer and

Acceptance 5octrine, &3 7;'. . >=/+=>T, T>2/TR +>27T/O= @= @>;/T 7/2?S2/- 1F!F& 1A!*CC) see also

?ussbaum,supra, at A!* citing ( /TT;7;''=>7/2= ,no. 1*(* *thed. 1A&*C "+rofessor


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=nglish and 2merican la that offers are freely revocable, even if aperiod of time is stated in the offer, unless consideration has beenpaid to hold the offer open as an option contract, or some otherexception is applicable though, it should be noted, that a trend in thenited -tates can be discerned toards ma0ing offers bindingC.3A

There is one other point to consider, then, and that is the effectof prematurely revo0ing the offer if it as supposed to have been heldopen for a period of time, and thus irrevocable. /n 2nglo2mericanjurisdictions, the attempt to revo0e is simply held to be ineffective.F4

/n Grance, on the other hand, a premature revocation is effectivebecause of the subjective theory and "concurrence of ills% paradigm.

9oever, it is nevertheless considered rongful and ill thereforeresult in some measure of liability, usually a reliancebased recoveryof damages.F1

3AKW=/6=>T2?@:VTK,supranote 33, at (& "#T$he doctrine of considerationhich is deeply rooted in #2nglo2merican$ contract la is strongly opposed to the

binding force of offers. ?evertheless there is a clear trend in state legislation in thenited -tates toard ma0ing offers binding and there are also extralegal factorshich limit the capricious ithdraal of offersH ithdraal may be legally

permissible but it is recognized to be unfair and commercial men conseJuentlyavoid it.%C. See also >=-T2T='=?T -=7;?@C ;G 7;?T>27T- E !* generalreJuirement that option contracts have all the reJuisites of an ordinary contract,hich includes consideration)%d&E &F providing that option contracts cannot be

revo0ed prior to the time stated in the optionC) %d& E (* providing for theirrevocability of certain offers here acceptance by performance has begun, evenabsent considerationC) 77 E !!4* providing that, in an offer to sell goods by amerchant in riting, any commitment to hold the offer open is enforceable evenithout considerationC.

F4>=-T2T='=?T-=7;?@C ;G7;?T>27T-E &F.F1See -79=-/?6=>, supranote F, at FF1F!)see also ?/79;2-, supranote

&*, at 3(3F. There is some debate in the Grench doctrine and jurisprudence aboutthe basis of recovery for an offeree aggrieved by a prematurely revo0ing offeror.=ven in Grance, it seems clear that there is no basis for recovery in contract per se,since the offerorDs subjective revocation albeit prematureC prevented the"concurrence of ills% necessary for contract formation under Grench la. %d&at 3*.This leaves to approaches hich are proffered. Girst, some commentators assert

that the offerorDs liability is based on his "unilateral juridical act% of ma0ing theoffer. %d&The effect of this approach is essentially to simply deny the effect of therevocation. %d& The other approach of Grench commentators is to allo the

premature revocation to be effective to prevent contract formation, but neverthelessto declare that the offeror is liable on a "delictual obligation% roughly a0in toma0ing it a "tort,% in language accessible to the common layerC. %d& The primarydifference beteen the to approaches is in remedy M declaring the offeror has


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1A F'()C* S+-(CT%.( T*(!'/ !F C!)T'ACTS #T2?@:VTK,supranote 33, at &A(4) -79=-/?6=>,supranote F, at FF*F3.

F!+;T9/=>,supranote *4, at 151A.


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decides to accept and deposits an acceptance in the mail, and furtherincurs certain expenses in the belief that a contract has been formedor is imminentC. ;n 8anuary F, B receives 2Ds revocation, and on8anuary 5, 2 receives BDs acceptance.

nder 2nglo2merican objective theory, the case ould beeasily resolved. There is a contract, because BDs acceptance occurredupon dispatch under the "mailbox rule%F& 2nd, more importantly forpresent purposes, 2Ds attempt at revocation as ineffective because though 2 as free to revo0e at any point before acceptance 2Dsattempt at revocation as too late since it did not ta0e effect upondeclaration or even dispatch, but rather could only have ta0en effect

upon receipt.F( Therefore, BDs attempt at revocation as simplyineffective, and there is thus a contract.

nder Grench subjective theory, the case is a bit morecomplex. There ould be no contract. Girst, it ould appear that 2did not have the right to try to revo0e before a reasonable time, ormore probably, the time stated in his offer to B.F* ?evertheless, 2 stillhad thepo0erto revo0e, and he didin fact revo0e by manifesting anddeclaring that he no longer ished to enter into the contract ith B a point crystallized by drafting the revocation and depositing it in themail. ;nce the revocation too0 effect, there could be no contract, asthere as no subjective "concurrence of ills% beteen the parties,

and this as so from the moment of declaring and depositing therevocation ell before B even received the revocation andacJuired 0noledge of it. 9oever, the Grench outcome is ultimatelysimilar to objective theory, because B ould have a delictual tortCclaim against 2 for the rongful, premature revocation, the damagesrecovered for hich ill approximate at least some portion of thosehich B ould recover against 2 for a breach of contract in anobjective theory jurisdiction.

2s can be seen, therefore, the Grench rules though at firstseemingly at complete odds ith the objective theory so prevalent in

F&

2dams v. indsell, 143 =ng. >ep. !*4 :.B. 1515C) >=-T2T='=?T-=7;?@C;G 7;?T>27T- E 3& 1A51C "nless the offer provides otherise, . . . anacceptance made in a manner and by a medium invited by an offer is operative andcompletes the manifestation of mutual assent as soon as put out of the offereeUs

possession, ithout regard to hether it ever reaches the offeror . . . .%C.F(>=-T2T='=?T-=7;?@C ;G7;?T>27T-E (!.F*?/79;2-,supranote &*, at 3(.


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;n the other hand, an early 1A thcentury Grench commentator,'erlin,F5provided a colorful "acoustic vault% hypothetical to illustratethe limits of the subjective approach, even in GranceH

2 man has in his office an acoustic vault, made in such a mannerthat as a result of the various and extremely multiplied tistings ofthe pipes of hich it is constructed, ords spo0en into one endarrive at the other only after five minutes. -uppose / am ith thisman in this very office. There after saying to me, "ill you buyN%he adds, "2nser me by means of the acoustic vault.% Thereupone place ourselves at either end of the vault and / say to him bymeans of his instrument, "/ ill indeed.% But a moment later /

change my mind, / run up to him, and before he is able to hear myanser, say to him "/ do not ant to.% 7ould he claim, afterhearing the anser hich / originally made by means of hisacoustic vault, that / could not retract it, because it as transmittedto him by means of pipes hich he ons, and conseJuently

became his property the moment it left my mouthN ?o, clearly no,a hundred times noXFA

This passage is illuminating in that it demonstrates that the Grenchsubjective theory, even in early 1Ath century Grance, as not asdogmatically inflexible as some historians assume. /n thishypothetical, theoretically the initial instant at hich the offeree

voiced his acceptance "into the vault% there as a subjectiveconcurrence of ills, such that a contract could be said to have beenformed under pure objective theory. But, even Grench la did notever go this far, as demonstrated by the hypothetical.

Turning to the modern la in Grance, there are a fe instancesin the Grench 7ode, hich reJuire an express acceptance to becommunicated by the offeree to the offeror. This has to do ithcertain very specific and narroly applicable areas, such as gifts andleases of farm land.54 /t is also clear that, in Grance as in most other

F5"'erlin had been from 1541 to 151( procureurat the Cour de Cassation.9aving been a prominent participant in revolutionary actions, he as exiled after

the restoration of the Bourbons.% 2rtur ?ussbaum, Comparative Aspects of theAn"lo=American !ffer=and=Acceptance 5octrine, &3 7;'. . >=


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!& F'()C* S+-(CT%.( T*(!'/ !F C!)T'ACTS #2T/27T2WH =?62?@, G>2?7=, 6=>'2?IF&1AA(C "Gor contracts hich are formed beteen people ho are present together,hich ould also include as regards the time at hich the contract as concluded

those formed by a telephone conversation, Grench la is the same as =nglish. Theacceptance must be communicated.%C.5(-79=-/?6=>,supranote F, at 1&13!1.5*%d& at 1&13 citing >/+=>T Q B. E &&1C. -chlesinger notes that another

commentator, @emogue, has the same basic vie. %d& citing @=';6= E **F,*(4C. Within the population of Grench commentators, to different theories ofobjective indication of contractual intent have been discussed. The theory of


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doctrine riters is a more subjective one hich does not theoreticallyrecognize a need for the acceptance to be communicated and receivedby the offerorH

;n the other hand, it seems that for the riters ho holdthat the contract is formed at the moment the acceptance isdispatched, communication of acceptance is not in itself anelement necessary to perfection of the contract. 2ccording to theseauthors, the significance of sending the acceptance lies merely inthe fact that it proves ith sufficient certainty the intention toaccept. When such proof can be deduced and is in fact deduced bythe court from other circumstances, such as performance or other

conduct, no communication of acceptance is necessary.. . . . "The essential element of the contract . . . isintention) if that can only be demonstrated by its exteriorization, itis because that is necessary to ma0e the intention perceptible) butfrom the moment an external manifestation of the intention hasta0en place, it ought to be effective. To reBuire that the intentionof the acceptor #e made ?no0n to the offeror is ar#itrarily to add a

ne0 element to the intention and to the contract.%53

;ther Grench commentators are eJually clear on this subjectiviststance. Thus, 'azeaud statesH "2 contract is formed by the mutualconsent of the parties) this consent exists as soon as there is a meetingof the minds of the minds, that is to say, an offer and an acceptance.To reBuire ?no0led"e of the acceptance is to add a condition for the

formation of contracts 0hich the la0 does not reBuire.%5F 2nd, 7olinaddsH "The fact that the acceptance is made ?no0n to the offeror addsnothin" to the le"al conseBuences of the acceptance.%55 2nd the

reception provided that the acceptance as operative at the moment that itphysically arrived at the offerorDs address. 9oever, the theory of informationprovided that the acceptance as not operative until the moment that the offerorbecame actually aare of the acceptance. %d&at 1((A*4) ?/79;2-,supranote &*,

at F4) see alsoW2T:/?,supranote &(, at &45. 2s neither of these objective viesof acceptance efficacy have been very influential in the Grench literature, they illnot be discussed further.

53-79=-/?6=>, supranote F, at 1&13 citing '2>TIQ >. E 111C emphasisaddedC.

5F%d&citing '2K=2@E 1(3C.55%d&citing ! 7;/?Q 7. !F& 1A!( ed.CC.


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no such intention is ascertained, and the offer is instead a general,"open% offer, open simply for a reasonable time under thecircumstances, the Grench subjective position instead prevails andreceipt of the acceptance is unnecessary for contract formation.

;nce the concept of a subjective theory of acceptance inGrance is conceded, there is still a further point of clarification to bemade. The Grench riters have, at various times, discussed todifferent theories of acceptance effectiveness. The most subjectivetheory hich has ever been discussed in Grance is the theory ofemission.A( That is, "if it is mutual consent hich ma0es the contract,only declaration of the acceptance, i.e., consent of the acceptor added

to that of the offeror, ought to be necessary to perfect the contract.Grom this it ould follo that the acceptance, once declared,becomes effective immediately, regardless of hether and hen thedeclaration is dispatched or expeditedC to the offeror.%A* 2sappealing as it is to purists in the Grench subjective tradition ofmutual assent, hoever, it appears that the emission theory is notseriously considered as operative in Grench laH "although several ofthe riters do not explain their ideas very clearly, they seem to beunanimous in rejecting the pure theory of declaration.%A3

/nstead, the majority of Grench commentators and casesappear to follo the theory of e4peditionthat is, the acceptance is

effective upon dispatch of the acceptance so that it is put out of theoffereeDs possession.AF 2s opposed to the more purely subjective

A(?/79;2-,supranote &*, at F4) see alsoW2T:/?, supra note &(, at &45.A*-79=-/?6=>,supranote F, at 1((A.A3%d&AF%d&at 1((5, 1(**3&) B=, B;I>;?, W9/TT2:=>, supra note (!, at &1!

"there seems to be a preference both in the courts and the jurists for placingacceptance at the time and place of sending%C) W9/?7+, supranote 11, at *F, Y!.*& "2s regards the time of acceptance, the Juestion hether a contract is madehen acceptance is posted or hen the offeror receives it hich is important indetermining hether the offer can still be revo0edC has occupied the Grench courtsmore than the battle of the forms. The issue is still treated case by case, although

the courts tend generally to hold that acceptance is given, and thus the contractmade, hen it is postedH 7om. F 8anuary 1A51C) 2';- 2?@ W2T;?D-/?T>;@7T/;?T;G>=?792W1*F 1A3FC) +. 9. Winfield, Some Aspects of !fferand Acceptance, ** . O. >=


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!F F'()C* S+-(CT%.( T*(!'/ !F C!)T'ACTS #, supra note F, at 1&!4Grench la has generally decided that the issue of hether the offer reJuires theacceptance to be communicated is one of fact. To many commentators from other

jurisdictions "such an approach is unsound. 2 legal system hich see0s to promoteenforceability and certainty of contracts, needs a rule though not necessarily acogent oneC concerning the moment hen a contract is concluded.%C.

141KW=/6=>T2?@:VTK,supranote 33, at (1.14! ?/79;2-, supra note &*, at *A@ see also +. @. 2T/27T 2WH =?62?@, G>2?7=, 6=>'2?IF& 1AA(C "There is no articledealing directly ith the point in the Code Civil. . . .%C.


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ithin thepouvoir souverain du $u"e du fondH it escapes the control ofthe Cour de cassation. 2ll that that court can do is say hether or notthe court belo, in exercising its pouvoir souverain, has so farmisinterpreted the facts as to denatureD them.%14& The secondcomplicating factor is, as stated above, that the loer courts ill oftendecide that, as a factual matter in the case at hand, the particular offerat issue can be interpreted so as to reJuire that the acceptance becommunicated.14(

9oever, notithstanding these to complicating factors, itappears that the residual, default rule applied by the majority of casesand commentators in Grance is that an offer may be accepted, unless

otherise specified, upon dispatch of the acceptance in the mails.The Grench courts do treat the Juestion as one of fact, variable by theparties through a demonstration of their intention to contract aroundthe default rule. 9oever, in spite of this, it is generally believed thatthe Grench courts reach eJuitable results under this regime. 14*

?o need for comparative analysis exists here. The rule in2nglo2merican jurisdictions is the same. The e4pedition ruledeveloped under the subjective theory of Grench la, hereby theacceptance is effective from the moment of dispatch even though theofferor does not yet at that point 0no of its existence, is in fact thesame as that folloed in 2nglo2merican jurisdictions. We 0no the

rule as the "mailbox rule.%143 i0e the e4peditiontheory, the mailboxrule ma0es the acceptance operative from the moment it is placed inthe mail, or otherise put out of the offereeDs possession, even if theacceptance never reaches the offeror.14F Therefore, the rule obviously

14&?/79;2-,supranote &*, at *A)see also '2>-9,supranote 14!, at F& "fora long time the Cour de cassationrefused to give any ruling other than that the issueas to be determined as a matter of fact by les $u"es de fond.%C.

14(?/79;2-, supra note &*, at F4.14*%d&143 2dams v. indsell, 143 =ng. >ep. !*4 :.B. 1515C) >=-T2T='=?T

-=7;?@C ;G7;?T>27T-E 3& 1A51C "nless the offer provides otherise, . . . an

acceptance made in a manner and by a medium invited by an offer is operative andcompletes the manifestation of mutual assent as soon as put out of the offereeUspossession, ithout regard to hether it ever reaches the offeror . . . .%C.

14F >=-T2T='=?T -=7;?@C ;G 7;?T>27T- E 3&aC 1A51C) Beth 2. =isler,5efault 'ules for Contract Formation and the )eed for 'evision of the 3ail#o4

'ule, FA : =?T7:I . 8. **F, *3& 1AA4C citing nited easing, /nc. v.7ommonealth and Title 2gency, /nc., 3*3 +.!d 1!(3, 1!*4 2riz. 7t. 2pp. 1A5!C)


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!A F'()C* S+-(CT%.( T*(!'/ !F C!)T'ACTS #?-W;>T9, G2>?-W;>T9 ;? 7;?T>27T- E &.!! !d ed. 1AA4CC. Thebenefit of this rule depends, hoever, on the acceptance being dispatched properly,such as to the correct addressee and ith the proper address. See 722'2>/2?@+=>/;, supra note =rrorH >eference source not found, E !.!&aC at 114 "The#mailbox rule$ prevails generally throughout the .-., ith the Jualification that theacceptance must be dispatched in a proper manner.%C. The mailbox rule is also the"default% rule, and the result is otherise hen the offer specifically provides that

the acceptance must be actually received in order to be effective. See 722'2>/Q+=>/;,supra note &, E !.!&aC, at 14F.145See'>>2I,supra note=rrorH >eference source not found,E (F2C.14A-amuel Williston,3utual Assent in the Formation of Contracts, 1( /. .

>=/72?7;'';?2W;G7;?T>27T15! 1AA4C "the subjective standard as reinforced%

byAdams v& LindsellC cited in +erillo,supranote (, at (&A n.FFC.


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2nother contract formation rule in Grance that illustrates thesubjective theory hich pervades Grench contract la is that theintervening death of the offeror subseJuent to the offer beingmade and prior to an effective acceptance being made by the offeree ill terminate the offer, assuming the offer as generallyrevocable in the first place.114 This is certainly applicable hen theoffered proposal is personal to one of the parties, that is hen theoffer is made intuitupersonae.111 This ould include, for example, apartnership contract, or one to render services, such as an architect. 11!

;n the other hand, Grench la provides that the death does notterminate the offer in the event it had become irrevocable before the

offerorDs death occurred.11&;nce again, no comparative analysis is necessary here,

because the rule is the same in 2nglo2merican jurisdictionsfolloing objective theory. The applicable >estatement sectionprovidesH "2n offereeDs poer of acceptance is terminated hen . . .the offeror dies or is deprived of legal capacity to enter into the

114See -79=-/?6=>,supranote F, at 11F.111%d&at 55F.11!%d&11&%d&at 113.


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&1 F'()C* S+-(CT%.( T*(!'/ !F C!)T'ACTS #epublic, going bac0 to the Grench civilla, and even probably to >oman la.11F +rofessor +erillo states it

11( >=-T2T='=?T -=7;?@C ;G 7;?T>27T- E (5 1A51C. -ection (5 alsoprovides that the offer is terminated hen the offereedies as ell. %d& / ill notaddress this situation in this article, because it does not necessarily implicate thesame Juestions of objective theory and contract formation. +rofessor >ic0s hasmade a similar conclusionH

@eath of offeree cases differ from death of offeror cases bothfactually and theoretically. The death of offeree cases are thoughtto rest on the Juite reasonable notion that the offer is personal tothe offeree, and not assignable, so that the death of the offereeleaves no one left to accept the offer. . . . ;f course, difficultiesith this rationale exist. The rationale might overemphasize the"personalness% of the offer to the offeree. . . . 'oreover, an agent

hose agency as coupled ith an interest could accept on theoffereeDs behalf, even though the offeree had died. This briefdiscussion proves that the policies animating the results in cases ofdeath of the offeree differ from those animating cases involvingdeath of the offeror.

ic0s, The 5eath of !ffers, FA /?@. . 8. 33F, 3F!F& n. 1( !44(C citationsomittedC.

11* 2rthur 7orbin, !ffer and Acceptance, and Some of the 'esultin" Le"al'elations, !3 I2=.8. 13A, 1A5 1A1FC) ;liphant, supra note =rrorH >eferencesource not found, at !14 "The courts say that the reason the offer is terminated bythe death of the offerer is obvious. 2 contract cannot be made ith a dead man.%C.

113>=-T2T='=?T -=7;?@C ;G7;?T>27T-E (5 cmt. a 1A51C.11F

+rofessor >ic0s pinpoints the first mention of the rule in 2merican caselato 3actiers Administrators v& Frith, in 15&4. >ic0s, supranote =rrorH >eferencesource not found, at 3F& citing 3actiers Administrators v& Frith, 3 Wend. 14&15&4CC. 3actierscited the Grench commentator >obert 8oseph +othier for the rule.

%d& citing >;B=>T 8;-=+9 +;T9/=>, T>2/TR @ 7;?T>2T @= ic0s, after an exhaustive trac0ing don of the origins of the rule,concludes that "#t$he dying offer rule appears to be a rather textboo0 example of the


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more bluntlyhe says uneJuivocally that the rule "as an importfrom the Grench subjectivists.%115

!. 'ista0e and 'isunderstanding

'ista0e is considered a defect in the consenting process ofcontracting in Grance. Thus, 2rticle 114A of the 7ivil 7ode providesthat "#t$here is no valid consent if consent as only given because oferror . . . .%11A 2nd 2rticle 1114 of the 7ode provides a furtherclarification of the mista0e doctrine in GranceH "=rror is not a groundfor nullity of a convention unless it goes to the very substance of the

thing forming the object of the contract.% Grench doctrine confirmsthat the presence of such a serious mista0e or error, going to thehole substance of the subject matter of the contract, completely"vitiate#s$ the ill, and contaminate#s$ the appearance of consent.%1!4

Thus, for instance, +othier commented that consent as absent if theparties ere jointly in error about the main substance of a sale.1!1 2san example of this, +othier "put forth the case of a party ho intendsto sell a house for A,444 livreshile the other understands that theagreement is for a nine year lease at that price.%1!! Thus, Grench laprovides that serious mista0es constitute defects in consent, and thisprecludes formation of a contract in the first instance. This is fully

consistent ith the subjective theory in Grance, and the autonomy ofthe ill.

The area of mista0e is, again, one in hich very littlecomparative analysis need be underta0en, because the la is much thesame in 2nglo2merican jurisdictions. 2ccording to the >estatement,if the to contracting parties ma0e a mutual mista0e regarding thesubject matter of the contract, the contract is voidable and thus may

0ind of borroing from >oman, natural la, and medieval philosophy described by8ames 6ordley.% %d&at 3F( n. !& citing 82'=- 6;>@=I, T9= +9/;-;+9/72;>/6/?-;G';@=>?7;?T>27T@;7T>/?=1AA1CC.

115 +erillo, supra note (, at (3(. +rofessor +erillo discusses an 2merican

admiralty case in 15(F hich cited the rule from +othier. %d&at (3(3* citing The+alo 2lto, G. 7as. 143! @. 'e. 15(FCC.11AThis same code section also refers to consent "extorted by force #duress$ or

procured by fraud.%1!4+erillo,supra note (, at (3A.1!1%d&.1!!%d&citing +;T9/=>,supra note *4, at !4C.


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>eference should also be here made to the 2nglo2mericandoctrine of "misunderstanding.% Though this ould appear to besubsumed ithin the Grench conception of "mista0e% or "error,% it hasdeveloped as a slightly different doctrine in the common la. Thecommon la misunderstanding doctrine is usually associated ith thefamous case of 'affles v& Wichelhaus.1!A /n 'affles, to partiescontracted for the sale of cotton, to arrive on the ship "+eerless.% 1&4 /tturned out there ere to difference ships called +eerless, hicharrived at different times of year M and, each of the parties meant adifferent "+eerless% ship, each being unaare of the otherDsmeaning.1&1 The court held there as no contractH "the moment it

appears that to ships called the "+eerless% ere about to sail fromBombay there is a latent ambiguity, and parol evidence may be givenfor the purpose of shoing that the defendant meant one +eerlessDand the plaintiff another. That being so, there as no consensus adidem, and therefore no binding contract.%1&! The doctrine is also setforth intact in the >estatement, hich provides in partH "There is nomanifestation of mutual assent to an exchange if the parties attachmaterially different meanings to their manifestations and . . . neitherparty 0nos or has reason to 0no the meaning attached by theother.%1&&

The misunderstanding rule is completely in accord ith a

subjectivist perspective of contract la and ith Grench mista0edoctrine, since it inJuires into the subjective, internal understandingof the consent underta0en by the parties to the contract. 1&( /f such

it on a subjectivist perspective, hereas other common la commentators provideother explanations, including failure of consideration. See+erillo,supra note (, at(3F. -imilarly, some nonsubjective justifications hich have historically beenoffered for the defenses of fraud and duress include oppression and moral rong.

%d&at (3F3A.1!A! 9. Q 7. A43, 1*A =ng. >ep. &F* =x. 153(C.1&4%d&1&1%d&1&!

%d&1&& >=-T2T='=?T -=7;?@C ;G 7;?T>27T- E !4aC. This >estatementprovision also provides that, if one of the parties 0ne or had reason to 0no of the"innocent% partyDs meaning, then there isa contract according to the meaning of theinnocent party. %d&E !4bC.

1&(See +erillo,supra note (, at (3A noting that "2merican misunderstandingcases agreed ith this principle #the Grench doctrine of mista0e$.%C.


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&* F'()C* S+-(CT%.( T*(!'/ !F C!)T'ACTS #affles and themisunderstanding doctrine is undeniably subjectivist in nature. 6rant6ilmore had the last ord on this hen he remar0ed of 9olmesD

attempt to objectify 'afflesH "The magician ho could objectifyD'affles v& Wichelhaus. . . could, the need arising, objectify anything.But hy botherN%1&F -o, e see that not only is the 2nglo2mericanconcept of mista0e very much li0e the Grench doctrine ith theexception of the mere voidability of the consent in common la,compared to the complete lac0 of consent in GranceC, but that the2nglo2merican concept of misunderstanding is virtually on all foursith Grench doctrine in this area.

&. >ules of /nterpretation

;ne other area in hich Grench contract doctrine can becompared to common la objective theory rules is in the area ofinterpretation of ritten contracts. -pecifically, the rules in Grancefor interpreting a ritten contract can be compared to analogous rulesin 2nglo2merican jurisdictions, to determine hether the"subjectivist% Grench rules loo0 very different from the more"objectivist% 2nglo2merican rules.

/n a series of 2rticles of the Grench 7ivil 7ode, rules are setforth for the interpretation of contracts, many of hich loo0 Juitefamiliar to the common layer from an objectivist perspective.9oever, the first section in this series of rules in the Grench 7ode is

2rticle 11*3, hich provides the folloingH "/n interpreting

1&*%d&1&3 ;/ W=?@= 9;'=-, T9= 7;'';? 2W !(! 1551C 9oe ed.

1A3&CC.1&F6>2?T6/';>=, T9=@=2T9;G7;?T>27T(1 1AF(C.


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&3

agreements, one ought to see0 the common intention of thecontracting parties instead of adhering to the literal meaning of theords.%1&5 This rule of construction appears subjectivist in nature, asone ould expect hen dealing ith Grench contract la. Theprovision states that, in the end for matters of interpretation, hat theparties actually i.e., subjectivelyinternallyC intended is paramount,and the literal i.e., objectiveexternalC meaning of the contractlanguage is lessened in importance compared to the supreme goal ofdivining the actual, subjective intent of the parties in entering into thecontract.

ndoubtedly, in 2nglo2merican jurisdictions, interpretation

is primarily concerned ith the objective meaning of contractlanguage. 9oever, there are numerous canons of construction at thedisposal of common la judges. 2nd one of them is that "#$ordsand other conduct are interpreted in the light of all the circumstances,and if the principal purpose of the parties is ascertainable it is givengreat eight.%1&A While this rule is still primarily based in objectivenotions of contract interpretation, it nevertheless ma0es reference tothe conceptually distinct actual, or subjective, intent of the parties inma0ing the agreement. /n this, it approximates the standard set forthin 2rticle 11*3 of the Grench 7ivil 7ode, and thus provides acommonality beteen the contract interpretative process in Grance

and in 2nglo2merican jurisdictions.

IV. CONCLUSION

Grance has a la of contracts hich is dominated rhetorically,at leastC by subjectivist thin0ing. 'uch of the rest of the orld has ala of contracts hich is dominated rhetorically, at leastC byobjectivist thin0ing. 9oever, as demonstrated herein, in practicalapplication on a rulesbased level, the systems converge in ays thatone ould not expect from the labels given to the respective systems.Therefore, though in Grance a revocation of an offer can theoretically

operate ithout reference to hether it is ever sent to and received bythe offeree a rule hich is at odds ith the common la objective

1&52>T9>T2I;>--=6;>@=I, T9=7/27T-E !4!1C.


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&F F'()C* S+-(CT%.( T*(!'/ !F C!)T'ACTS #ather, there are elements of both ideas in both systems.1(4

Therefore, neither of the theories can be "carried too far.% 1(1 2s+rofessor itvinoff an academic of ouisiana civil la and thusclosely aligned to the Grench 7ivil 7odeC has observedH

The dispute beteen the subjective ill and the declared ill

theoriesthe subjective and objective approaches to contractisno longer realistic. 2 ill that is purely subjective, meaning that itas never expressed, is irrelevant in the eyes of the la. ;nly theill that is declared or manifested, that hich materializes in anobjective act, may start the operation of the legal mechanism.;nce this occurs, an act of human conduct has ta0en place, andevery person called to evaluate its meaning, for instance, a judge,ill have to ta0e the act as one single phenomenon, herein acertain intention, a subjective element, is thoroughly blended itha certain utterance, an objective element. =ither of those toelements, although susceptible of being analytically isolated, isincomplete and insufficient hen not ta0en in the context of thehole. The intention illuminates the declaration, in the same

manner as the declaration purports to express the intention.

1(!

1(4 See>ic0etts v. +ennsylvania >. 7o., 1*& G.!d F*F, F343A !d 7ir. 1A(3CGran0, 8., concurringC)see also;W-/2,supranote 33, at !!4 "no legal system can

be said to be, in an allembracing manner, subjective or objective%C.1(1/T


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Grench contract la, hile filled ith the rhetoric ofsubjective intent and concern for the "pure% autonomy of ills, in theend, comes close to achieving the same or similar results as itsobjectivetheory brethren around the globeH

The influence of this principle #autonomy of ill$ on the Grench7ivil 7ode and Grench la in general as such that to this daythere is, in theory, no clear cut distinction beteen the "real%intention and its manifestation. . . . 7learly the necessities ofcommercial life demanded that some value should be placed onoutard behavior. /t is not surprising that Grench riters erecompelled to devise a theory hich gives effect to outard

behavior hile appearing to adhere to the principle that only the"real% intention of the parties counts. This theory maintains thatthere is no conflict beteen "real% and apparent intention inasmuchas outard behaviour is a means hereby the "real% intention may

be deduced. The argument, no doubt, appears artificial for itignores a possible clash beteen real and apparent intention byassuming that the former must necessarily correspond ith thelatter. Dut iEnpractice, the test adopted #y French la0 is not verydifferent from the o#$ective test of (n"lish la0.1(&

The difference beteen the Grench subjective system, versus the moreobjective system espoused by most of the rest of the orld, "is only amatter of emphasis, since all legal systems have to or0 ithexteriorized indications of inner psychological elements in order toappraise and evaluate their legal effects.%1((

1(!%d&at !!*!3 citing ! +/6 B>T2, G?@2'=?T;- @= @=>=79; 7/T/ A*11! 1A*(C) leellyn, What Price Contract6===An (ssay in Perspective,(4 I2=. 8. F4( 1A&1CC. 2s itvinoff further stated, citing Grench doctrineH ";nthe other hand, if it is asserted that the real,the subjectiveill is the true sourceof obligations, it is nonetheless necessary to ta0e into account the declaration, theexternal manifestation of this ill, because the declaration is the only social,objective fact on hich the la can focus.% %d&at !!( citing 6 +2?/;Q >/+=>T,T>2/TR+>2T/O=@=@>/;T7/2?S2/-;B/62T/;?-+2>T/ 14A !d ed.=smein 1A*!CC.

1(&

7hloros, supra note 5, at 31*13 citing +2?/; =T >/+=>T, T>2/TRRR'=?T2/>=@=@>;/T7/'2T/;?;G7;?T>27TH 2 7;'+2>2T/

=?6/-9, G>=?79, /-2'/7 2?@ />2?/2? 2W !1A 1AA(C. See also id& at (&(=ven in Grance, "an intention hich is not manifested does not exist in la) and anintention may be treated as not manifested hen it is not manifested to the very oneho is reJuired to 0no of such intention.%C.


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Documents

French Subjective Theory Article[1]