ro fr
universul juridic magazin
Revista Română de Drept Privat

The cause of the obligation and the legal formalism – study of comparative law (I)

The study approaches an examination – from the comparative perspective – of the legal significance given to the form in generating the voluntary legal effects. The research opens with a brief historical presentation, referring to the Roman law, natural law, Canon law or the ancient French law. The purpose of this historical incursion is to clarify to a certain extent the part that the form and the formalism in contracts played in the matter of the private law over the time. Immediately after identifying the historical time of transition from the formalism generating legal effects towards the will motivated as a justification of these consequences, we propose a comparative analysis between the French and the German law, in order to verify whether the approach of the formalism in contracts in the two legal systems is as different as it is described. The conclusion of this research of the comparative law is that the appearance displayed through formalism does not separate the will and cause partnership. Thus, in the German law inclusively, the neutral act (detached from the cause) cannot subsist as a just title – as an autonomous basis of rights and obligations. For the voluntary creation of the legal relationships, the cause which should establish the will is necessary, being understood as a representation of a personal and legal benefit assumed by the co-contractor. The neutral act from the point of view of the cause can represent only an artificial construction – which overrules reality – as it signifies the direct option of the legislator to ignore the cause of the obligation, but not its non-existence. The conclusion is confirmed one again to examine the procedure specific to the bill of exchange and to the promissory note. Although they are usually deemed as documents which “comprise” subjective rights – resulted from the simple formalism of the establishment of the respective documents - we attempt to demonstrate that in case of these trade securities as well, it is impossible to finally explain the legal effects for lack of a motivated will and implicitly, of the legal reason, which should justify them. Even in case of the procedure related to the bill of exchange, we may not state that the form, as a manifestation of the appearance, is able to produce any legal effects. The efficient cause of these effects has to be searched in the preceding causal legal acts justifying the issue or the communication of the bill of exchange.