La formación del contrato en el Derecho Comparado

Abstract

The objective of this research is to analyze the regulation of contract formation in the main legislations currently in force in the world.

In most countries whose legislation of private law is derived from the Roman-Germanic system, the regime which is applicable to the formation of contract is contained in civil and/or commercial codes. In Anglo-Saxon law, a juridical regime on the subject has also been developed and is contained in customs, judicial precedents and, in the United Sates, in the Uniform Commercial Code (UCC).

On the other hand, in an attempt to harmonize and standardize the legislation that is expected to act as a framework for the economic globalization processes, the United Nations Commission for International Trade Law (Uncitral), the International Institute for the Unification of Private Law (Unidroit) and other institutions such as the International Chamber of Commerce (ICC) are working towards the configuration of a uniform system of mercantile law, trying to overcome the obstacles stemming from the differences among the several juridical systems and from the deficiencies of international private law. In our case, these efforts resulted in the United Nations Convention on Contracts for the International Sale of Goods (CISG), the Unidroit principles for internationaltrade contracts, and the principles of the European law of contracts prepared by the Lando Commission. These instruments intend to reconcile the existing differences between the Roman-Germanic and Anglo-Saxon regimes (civil law and common law.)

In addition, some countries have adopted Uncitrals model law regarding electronic commerce, which explicitly draws attention to the existing legislation on obligations and contracts culminating in the introduction of some rules. Other countries have modified their internal legislation by regulating aspects of contract formation through electronic means.

The uniform regime poses serious differences with the internal legislations and their handling of this issue raising practical and theoretical problems.

On the other hand, it is necessary to bear in mind that the norms on contract formation contained in civil or commercial laws are at present complemented with statutes for the protection of consumers and users and for the defence of competition. These statutes regulate aspects regarding offer conditions such as the duty to inform, misleading advertising, etc.