Talk:Contract/Archive 3

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here is the critique of Wikidea's massive edit

a contract is a concept in law that refers to ...

"A concept which refers to" sounds too indirect and thus not sound like an encyclopedia. How about "a contract is an agreement and such and such etc."?? Much more direct and succinct.

The core principle of contract is summed up in

Again, this does not sound like an encyclopedia. How about "A contract is a promise which must be kept" without the "core principle" or being "summed up"?

Contract law can be broken down into five major issues:

"Broken down"? How about "Contract law is composed of five areas"

*When and how are contracts formed?, etc.

This indirection/questioning is not good form, I think. Rather than enumerating the areas themselves, you propose questions the reader should ask to determine the areas. Why all the extra work? An encyclopedia shouldn't ask questions; it should state facts.

And again, I would like the FIRST section to be "Elements of a contract". It's most important. You know the one, it's the section you keep deleting :) What else should an encyclopedia state beyond this? This is most important. Everything else is of lesser importance and should come later.

So I think we both agree the structure of the present article is bad. Can you propose a new structure, where we can preserve all existing content and just conform to the better structure? THen we can incrementally improve each section, perhaps forking off into new seperate articles. I will propose a new structure in about 6 hours... Again, I'm glad we are having this discussion. If we can come to an agreement, this article will be improved. Thanks... -- Bhuston 03:45, 5 December 2006 (UTC)

Bhuston, good critique! I concur wholly with you on this one. Law is hard enough as is, and it's really hard to explain to laypersons. Wikidea needs to keep in mind that when writing about law for laypersons on Wikipedia, always keep in mind the KISS principle: KEEP IT SIMPLE STUPID. Structuring writing around answers to rhetorical questions is an extremely verbose format that should be reserved for surrealistic novels, not encyclopedias! That's why compact works like the In A Nutshell books from Thomson West rarely use the rhetorical question format. --Coolcaesar 05:35, 5 December 2006 (UTC)

But, Coolcaesar, I only left in the 'verbose format' of rhetorical questions, because that was what was there and I didn't want to change too much!! - it's in the section called contract scope as currently uneditted! I agree things should be more simple, of course. What do you think then about moving the theoretical discussion of contract and obligations to the bottom, which I suggested earlier?

Okay, Bhuston, I agree with all the stuff you actually said, about written style etc. Please go ahead with all the changes there you like. But please let me explain the 'elements of a contract' bit. Really, honestly, truly, it wasn't deleted, but what I did do was to split it. Conventionally, as in the template, you'd talk about offer and acceptance, consideration, intention to be legally bound (as is there now) under 'contractual formation'. And then there was incomplete and uncertain agreements, moved up from further down in the article. After I editted further down, you could still find all the other bits that are currently under 'elements of a contract' under 'setting aside a contract' - i.e. incapacity, and illegality (I actually don't know what 'mutual right to remedy' or 'obligation to perform' is meant to refer to, but I expect it's covered). Normally we wouldn't talk about capacity or legality being an essential 'element' of a contract. The reason is that lack of capacity usually gives the individual a right to choose whether to 'set a contract aside' (that's so people can't take advantage of minors and the mentally handicapped) - and so you can have an valid contract without legal capacity to contract, and it's not really an 'element of a contract'. Above was the reference to the German law example, but I'd be v. surprised if it were different in the States. Is that being more helpful? Wikidea 06:33, 5 December 2006 (UTC)

Hi, Wikidea. Thanks. Yes this discussion is helpful. You wrote: "Really, honestly, truly, it wasn't deleted,"... You keep asserting it's all there. But it ain't. Or you've taken a short, concise list, and "split it" like splitting an atom, perhaps? Like, smashed it into bits? I will be very happy if you leave the concise list... :) "Incomplete and uncertain agreements" are NOT elements of a contract. These are defects. This should be in a seperate section, perhaps about void or voidable contracts. "Offer and acceptance" are not really elements of a contract, it's two steps in the process of negotiating a contract. You wrote: After I editted further down, you could still find all the other bits that are currently under 'elements of a contract' under 'setting aside a contract' i.e. incapacity, and illegality This is strange. Why should someone look for the elements of a contract under a heading "setting aside a contract"? Again, not elements of a contract. Should be in a section about completion, termination, default, etc. Also, "incapacity and illegality" again are defects, not elements of all contracts. Normally we wouldn't talk about capacity or legality being an essential 'element' of a contract. I would agree. But capacity isn't on the list of elements. "Adult, competent sui juris parties" is (properly) on the list. This is because rocks, trees, dogs, children, prisoners, the insane, etc. are not generally seen to be fit to engage in contracts. Contracts with a dog or a child as a party are most likely void. Also, when you say "legality" is on the list, I don't find it. The entire list is talking about elements of all legal contracts, but "legality" itself isn't there. (I actually don't know what 'mutual right to remedy' or 'obligation to perform' is meant to refer to, but I expect it's covered). We should expect these to be explicitly covered, because these are essential concepts. Compare EX1: an employeer/employee relationship, and EX2: A master/slave relationship. In EX1, both parties have made a contract, and made promises to each other, how many hours work for so much pay, etc. If the company doesn't pay or the employee doesn't work, both have a right of remedy in the courts. However, the master/slave relationship is NOT contractual, because the slave has no such rights of remedy. Same with "obligation to perform". The master has no obligation, because the master has all the rights, and the slave has none. The whole notion of a contract requires a certain egalitarianism among parties. When one party has much more rights a priori over the other, then it becomes questionable whether coercion is involved. Contracts must be freely entered into. Hope this helps! --Bhuston 09:52, 5 December 2006 (UTC)

I'm sorry, but the terminology elements of a contract just doesn't make sense; it might make more sense if you said elements of contractual formation. Elements of a contract could easily refer to terms, or what's inside a contract. Again, I'm really sorry, but you've just got a lot of the stuff plain wrong. I wouldn't purport to explain computer programming to you, because I don't know the first thing about it. It's not, as I tried to explain, a requirement for contractual formation that someone is not a child - that is the difference between a void and voidable contract; all that stuff belongs together in a section about setting contracts aside. An illegality topic is the equivalent of what is on the list - lawful purpose. The stuff about mutual rights to remedy, etc, again, they just don't make sense, or don't explain what they mean.

I see that before you began reverting, you made one edit on this page, coincidentally on this same section, back on Janurary 4 2004, so I appreciate that you feel attached to it, and all the hard work you've put in. But it's really not fair on people who want to look at the article to be informed.

And once again, the point I stated over and over before which you haven't replied to, the template, which was written by people who seem to have read a few books, starts with a section on contractual formation. And then the stuff about capacity (or the sui juris adult, as you said) is in a different section. Why can the page not be like the template? Wikidea 00:41, 6 December 2006 (UTC)

"elements of contracts" vs. "validity of contracts"

Someone (67.52.230.45) has changed "Elements of contracts -> All valid contracts must have the following elements" to "Validity of contracts -> For a contract to be valid, it must meet the following criteria". This change was made without explaination. I have reverted this (as well as a blanking of an example, also w/o explaination).

The reason I think the former is better is because an encyclopedia entry should answer the most basic questions, like "What is a contract"? A contract can be described as a set of elements. Some may be necessary, and some may be optional. Well, what are those elements? "Elements of Contracts" seems like a natural and necessary heading, in order to define what a contract is. Now if it is called "Validity of Contracts", this heading does not sound like it will contain a list of the elements of all contracts. Instead, it sounds like criteria for determine valid or invalid (void/voidable) contracts, which is something potentially different. They *may* be similar, but to me, "Elemenets of Contracts" is much stronger, and is really the most important section in this entry --Bhuston 01:41, 6 December 2006 (UTC)

I concur. "Elements of contracts" is the correct terminology; it's what BarBri taught me and it's what I was tested on when I took the bar exam. I remember it quite clearly from Contracts in law school, which I took with one of the most prominent law professors in the United States (although his most famous work is on property rights in human body parts).

It sounds like Wikidea is either very young, or the terminology of Australian contract law is just plain weird (the Brits use the same analysis as us Americans as far as I know). Either way, this is one of the reasons law is taught primarily at the graduate/professional level in the United States, because common law in general is so conceptually difficult that few people under the age of 20 can develop a genuine working knowledge of it (Christopher Columbus Langdell was responsible for that insight, of course). --Coolcaesar 08:59, 6 December 2006 (UTC)

This wasn't me!!! You can see my IP address when I log out! User:Wikidea138.130.32.177 09:41, 6 December 2006 (UTC)

Response to Wikidea's last

Wikidea writes (with my responses in bold):

I'm sorry, but the terminology elements of a contract just doesn't make sense; it might make more sense if you said elements of contractual formation. (Disagree. Formation is a process of two parties coming to an understanding and agreement. A contract itself is composed of certain elements. If you want to talk about formation, then start a new section. Defining the basic elements which define all contracts is THE MOST BASIC AND NECESSARY PART of an encyclopedia entry on Contract.) Elements of a contract could easily refer to terms, or what's inside a contract. ( I have added Terms to this section. Does this make things better for you?) Again, I'm really sorry, but you've just got a lot of the stuff plain wrong. (Again, specific examples and citations please) It's not, as I tried to explain, a requirement for contractual formation that someone is not a child (Strongly disagree. I have asked for you repeatedly to demonstrate this with caselaw or other references. In every civilized nation I've ever heard of, children are not considered sui juris and being sui juris is a requirement for contract formulation. Children cannot marry, children cannot vote, they cannot purchase houses, or drive cars, or be conscripted into the military. They cannot because they are not "of their own right". Insane or Non compos mentos? Not sui juris. Not a human? Not sui juris. Not an adult? Not sui juris. The only exception to this that I know of is the case of a corporation, which has been granted personhood by the courts) all that stuff belongs together in a section about setting contracts aside. (FINE! Create new section. Just please don't delete basic and necessary information from the Elements section.) An illegality topic is the equivalent of what is on the list - lawful purpose. (Again, this is true. But would you describe what's in a box by first describing what isn't there? THis is what you are doing. Instead of talking about what a contract IS, you are focusing on what a contract ISN'T. THis is not typical of encyclopedias which I have looked at.) The stuff about mutual rights to remedy, etc, again, they just don't make sense, or don't explain what they mean. ( I disagree. I think it is very clear. A slave has no right of remedy, so a master/slave relationship is not contractual. Another example which lawyer types insert into contracts used upon the unsuspecting public are so-called "indemnifaction" clauses. They state "by signing this, I waive all rights to remedy". To a layperson who doesn't understand that right to remedy is essential to all contracts, this seems acceptable, and this state of ignorance is followed by getting screwed. You state you want to inform people with these changes. Is this true, Wikidea?)

I see that before you began reverting, you made one edit on this page, coincidentally on this same section, back on Janurary 4 2004, so I appreciate that you feel attached to it, and all the hard work you've put in. But it's really not fair on people who want to look at the article to be informed. (I am fine with reorganization. I am fine with enhancement. But when you DELETE THE MOST BASIC AND NECESSARY INFORMATION, or turn statements into questions, and otherwise make the information more obscure, that is when I have a problem. Parts of this article needs a lot of work. THe Elements section is not one of them, as it's pretty good.)

And once again, the point I stated over and over before which you haven't replied to, the template, which was written by people who seem to have read a few books, starts with a section on contractual formation. And then the stuff about capacity (or the sui juris adult, as you said) is in a different section. Why can the page not be like the template? Wikidea 00:41, 6 December 2006 (UTC) ( I don't know about the template. But to my way of thinking, when I come to an encyclopedia entry about Dogs, I want to know, "What is a dog?" When I come to an entry about Contracts, it's because I want to know, "WHat is a contract"? The question, "How are contracts formed" is ancillary and should come after a defining section, which is what the elements section does. --Bhuston 02:16, 6 December 2006 (UTC) )

Again, I concur with Bhuston's critique. Contract formation is important, but I think it's more important to first explain what is actually being formed! --Coolcaesar 09:01, 6 December 2006 (UTC)

Okay, I lose, you win! If it's alright, I'll just do the things that people seem to approve of - with some of the other headings. Not all at once though! So I'm moving the elements part to the top, because maybe it's good to serve as an introduction? - and the contract/obligations discussion down with contract theory. Wikidea 09:09, 6 December 2006 (UTC)

It's not about winning/losing. It's about making sure the encyclopedia is always improved, and when that happens, we all win. --Bill Huston ^(talk) 09:53, 8 December 2006 (UTC)

And next?

Okay, so the elements of contract isn't being touched. I just wanted to make more adjustments that I had before - putting some of the case citations into proper references, and some 'further reading. Then I'm going to put in the bits on mistake, misrep, duress and undue influence that were there before, under 'setting aside the contract'; because I think these are really useful additions to expand upon.

And no more changes tonight. Can I ask though, would it be okay to get rid of the 'scope of contract' section? We can get rid of the 'verbose format' of questions at the start, and give contract formation its own ==heading==. Under that, perhaps there could be more on offer+acceptance, consideration, intention to be legally bound and formalities(i.e.statute of frauds). This can be merged with the discussion on unilateral contracts and written contracts, to cut down a little. Privity (or third parties) can be put at the bottom in its own category. Wikidea 09:27, 6 December 2006 (UTC)

I've made edits in stages this time, so if there are any objections, perhaps the bit that the person is interested in can be changed alone, without removing all the changes I made? As discussed, the scope of contract part has been disbursed. Here's what's gone where in the last edit, which is the only confusing one, and couldn't be explained in the small space on the history thing:

• written contracts = formalities and writing, with proper link to statute of frauds page
• void, voidable and unenforceable=in the setting aside contracts bit; except the uncertain, incomplete and severance parts, which I think belong best in their own category?
• bilateral v unilateral - with offer and acceptance section:that's especially a good place, because the carlill case deals with this exactly
• express and implied contracts, into offer and acceptance again, which now has a link to a main article too (better place for some detail)

And then I put up a part about the german approach to contract law (or Vertragrecht) which differs. I'll try to do more on german law soon, and perhaps the worldwide view warning can be removed?Wikidea 08:16, 8 December 2006 (UTC)

This is not a "contracts" article at all - retitle?

This article suffers from a heavy case of what you might call "1L bias" - it consists almost exclusively of the kind of material covered in a first-year contracts class in an American law school. The history of contract, contract in non-common-law systems, and nonlegal (e.g. philosophical, religious, sociological) conceptions of contract are not covered at all. Perhaps the article would be better titled "contract under common law"? Elliotreed 09:28, 8 December 2006 (UTC)

Why complain? If you are able, why not write those sections yourself? --Bill Huston ^(talk) 09:52, 8 December 2006 (UTC)

Hopefully I can put in a bit more about civil law systems, and make it less common law oriented. There's a heading now about the german 'abstraction principle' and the section on consideration now compares with civil law. Moreover, the majority of the cases cited aren't from the States, but the Commonwealth. So it's not entirely true that its straight from US law school. There's a part for contract theory down the bottom where you could write all the stuff you know about philosophical, religious and sociological conceptions of contract, if you want? Wikidea 10:15, 8 December 2006 (UTC)

My main objection is that it will be too long if we cover the specifics of both civil and common law in the one article. My suggestion would be to make this a summary article that highlights the common features of both systems, and then we have specific articles for both systems. The advantage of this is that most people reading it would usually be interested more on one particular system of law. However, I don't know enough about civil to do this. enochlau (talk) 13:00, 8 December 2006 (UTC)

I agree - the page should be an intro, and sketch the main areas. Expansive detail really belongs in pages that the contract article links to. However, there is a great deal in common, and it's difficult to just talk of the 'civil law'. The French(plus the Americas, Italy, Spain, parts of Africa, etc, etc) and the Germans(plus Japanese, Chinese) are the two dominant models. I'd say it's mainly the absence of consideration and the better development of unjust enrichment law (so the remedies for breach part) that are the big differences. There's also a lot of interesting stuff going on in the EU, where contract law is trying to be harmonised - so you've got a third system developing!Wikidea 00:48, 9 December 2006 (UTC)

Just another thought - if a rule is stated in the article, like "an offer is interpreted objectively" and a reference is given, then when the rule is the same in another country, that can just be reflected in the footnotes - a US case, an English academic and an article of the French code civil altogether, for instance. That way the article itself isn't cluttered up so much, perhaps?Wikidea 01:00, 9 December 2006 (UTC)

Holy crap... another massive Wikidea edit...

Wikidea, can you PLEASE make your massive edits more incrementally, so we can more easily see what you are doing? I'm now very sensitive to the fact that within the context of your "reorganizations" where "no information is deleted", in fact you do delete things.

OK, I've only looked at the preamble. As I have stated several times, I think it is important to bold "Contract law" because that links here. Also, I removed "person" from the bit about breach, b/c corporations can be parties to a contract which can breach, yet are not persons. More later ... Bill Huston ^(talk) 10:00, 8 December 2006 (UTC)

Changes were done in three stages. I've listed the changes above - and there are three edits, to make you happy. The main bit that has been cut down is the stuff on unilateral contracts. I only thought going into so much detail there, belonged more in the offer and acceptance page that there's a new link for.

Perhaps you can revert incrementally this time? :) Not that you should need to to revert anything. Wikidea 10:11, 8 December 2006 (UTC)

I'm afraid I have given up contributing to both the tort and contract articles because of Wikidea's editing style. Rather sad really, but its quite impossible to keep up with his massive edits and he doesn't seem to want to either (a) discuss them beforehand or (b) follow standard practice (eg by putting up a suggested alteration and getting consensus first). Anyone who, even for a moment, can consider a sentence like "Contract law is based on the Latin phrase pacta sunt servanda (literally, promises must be kept)." as an acceptable or even useful thing to put at the beginning of a contract article is someone who simply can't be reasoned with. I speak as an experienced practising lawyer in the United Kindgom. I am both a published legal author and have a number of reported cases to my name. I really do know what I am talking about, but that seems to cut no ice 8-(. Francis Davey 15:39, 19 December 2006 (UTC)

A bit of a pity... enochlau (talk) 06:15, 20 December 2006 (UTC)

I concur with Francis Davey and Enochlau. Wikidea's understanding of tort and contract law is severely flawed. Any American wannabe lawyer who believed that contract law is based on pacta sunt servanda would be (1) laughed out of the room at any gathering of lawyers; and (2) fail the bar exam. At some point Wikidea may need to be taken to arbitration, but I'm way too busy to deal with that for at least a year; taking Ericsaindon2 to arbitration was extremely time-consuming. --Coolcaesar 17:21, 20 December 2006 (UTC)

I've added a reference on 'pacta sunt servanda' to the contract article for the benefit of above legal experts. It's from Hans Wehberg, Pacta Sunt Servanda, The American Journal of International Law, Vol. 53, No. 4 (Oct., 1959), p.775, who starts the first line of his excellent article,

"Few rules for the ordering of Society have such a deep moral and religious influence as the principle of the sanctity of contracts: Pacta sunt servanda."

I would really be grateful for your continued help on the article. Wikidea 04:02, 22 December 2006 (UTC)

I just looked at the front page of that article (which is available on JSTOR by searching through Google). If you read that carefully, Wehberg is a Geneva-based law professor whose training is almost certainly in civil law. All of the civilizations he mentions operate under civil law or its rough equivalent; the article doesn't really address the common law approach to contracts. Plus, the article is from 1959 and the law of contracts has dramatically changed since then, particularly in common law jurisdictions. For example, the American law of contracts has rapidly evolved due to innovations like the Uniform Commercial Code (promulgated in 1952 and revised in 1972, 1977, 1987, 1989, 1990, 1994, 1995, 1999, and 2002) and the Restatement of Contracts, 2d (1981).

In the United States, the last time I checked, contract law is grounded in moral justifications like promoting individual freedom and autonomy, as well as justice or fairness; and utilitarian public policies like promoting economic efficiency, stability, and growth. To promote these ends, we often speak of carrying out the "reasonable expectations" of the parties. --Coolcaesar 20:31, 24 December 2006 (UTC)

The point I was making (on this very narrow issue) was that it makes not sense to say that the common law of contract cannot be said to be based on this Latin phrase. I would strongly advise Wikidea (and others) to read at the very least "A historical introduction to the law of obligations" by David Ibbetson. David is a Regius Professor at Cambridge University and very eminent indeed. He understands very deeply the early common law of contract and has done very significant research in what came before as well as being an expert in Roman and Civil law and thus very well qualified to talk on the ways in which the various systems have influenced each other. Suffice to say that a historical enquiry into the historical origins of English contract law shows that much of it (including probably the idea of consideration) has pre-Norman origins in Germanic custom. In formal terms contract arises out of the complex development of trespass on the case and the action of assumpsit which is a long story. Wikidea's Latin phrase really has no significant impact. More seriously, if we are considering law in general then much contract law predates latin as a language or cannot have been historically influenced by it. I find it depressing that the contract article can begin with a statement which shouts at me off the page "of course I am wrong". This point is not why I am put of these articles of course, its wikidea's refusal to engage with the norms of wikipedia and his rather insulting behaviour towards me (which suggests lack of good faith). A single error we can all make, although a bold edit to a long standing article with a bodly stated but completely wrong thesis is alarming. Francis Davey 21:43, 27 December 2006 (UTC)

I finally got around to looking this up at the law library; that phrase pacta sunt servanda did sound a bit familiar. At the start of Chapter 13 of the hornbook Perillo on Contracts (the chapter is titled "Impracticability of Performance") Joseph Perillo explains:

“ Sometimes an event occurs after the formation of a contract that makes it impossible to perform a contractual promise. The harsh traditional common law rule was "pacta sunt servanda;" promises must be kept though the heavens fall. Although a court would not grant specific performance of such a promise, the breaching party would still be liable for damages. The theory was that the breaching party should obtain self-protection by negotiating a protective provision in the contract. ”

The source is: Joseph M. Perillo, Calamari and Perillo on Contracts, 5th ed. (St. Paul, Thomson West, 2003), 512-513.[1] Perillo then goes on to point out that from early times, courts have made exceptions for promises of personal services made impossible by death or unavoidable illness and promises made illegal to perform by supervening changes in the law. He then surveys how subsequent cases since the 18th century have "relax[ed] the standard to one of impracticability rather than impossibility." So the point is, pacta sunt servanda was merely an axiom used in certain old cases as a concise statement of the rule that damages for breach of a promise would practically always be awarded at common law, regardless of whether there were extenuating circumstances that justified a party's breach. That's why it sounded familiar to me, because I saw it in my first year Contracts class in the section of the casebook concerning impracticability and frustration. That axiom was not then, nor is it now, the foundation of contract law; indeed, Page 513 is the only page in the entire hornbook where Perillo mentions it. His extensive discussion of the philosophical foundations of contract law in Chapter 1 does not mention that axiom at all, because it is not very relevant to those foundations! Note that Professor Perillo certainly knows what he is talking about, since he helped revise the legendary treatise, Corbin on Contracts! [2] Again, I concur with Francis Davey that Wikidea's understanding of basic common law concepts is severely flawed. Wikidea, I highly recommend seeking the services of a good law school or faculty of law, and leaving the Wikipedia articles on law to the professionals.--Coolcaesar 06:18, 28 December 2006 (UTC)

Thanks for your insights. I don't think that Ibbetson and Wehberg would disagree with each other, or either with Perillo. Their views on history are not mutually incompatible. Students in continental Europe (or Louisiana perhaps?) are taught the Roman stuff from day one. And if you do Public international law, then it's considered a ius cogens norm. Aren't we trying to keep a worldwide perspective?

I agree entirely about the philosophy of autonomy and freedom of contract, and contract is certainly a vehicle for efficiency in a modern economy. One of the books I added to the further reading, Atiyah's Rise and Fall of Contractual Freedom talks about this. In many ways 'freedom of contract' is about holding people strictly to their promises. Maybe the most relevant way that we don't these days is in consumer or employment law, where there's inequality of bargaining power. Please go ahead and add the useful material you found. Wikidea 08:49, 29 December 2006 (UTC)

Actually, Wikidea, the views are incompatible. Roman law is usually not taught in law school in common law jurisdictions (except in optional courses on international law) because the common law of contract evolved in a different fashion and from completely different premises. For one thing, contract is itself a separate pillar of the common law along with tort law and criminal law, while in civil law jurisdictions it forms only one portion of the law of obligations. Furthermore, the common law of contract evolves much more rapidly than civil law since judges continue to possess lawmaking powers in the sphere of contract law in most common law jurisdictions. For example, a civil law court of cassation cannot turn the law of parol evidence upside down with a single well-written decision, as Roger J. Traynor did with his controversial opinion for the Supreme Court of California in the 1967 Pacific Gas & Electric case (which is mandatory reading in nearly all contracts courses in the United States).

Also, if you re-read my comments above, I am stating that pacta sunt servanda was relatively peripheral to the common law of contracts, in that it was only invoked as an axiom in certain types of cases, and that it is completely irrelevant to modern contract law except as a historical footnote. It is somewhat strange of you to assert there is no conflict. Both of these assertions contradict your edits to the article contending that it is the basis of the law of contract.

To get to the point, I do not think there is any coherent way to fuse civil and common law approaches to the law of contract into a single article because they are so fundamentally different. In my opinion, the civil law approach should be covered in the existing article on the law of obligations as part of a more comprehensive examination of that subject, while this article should be reverted back to its old focus on the common law approach. --Coolcaesar 06:30, 1 January 2007 (UTC)

Suggest breakup into at least two articles

Contract Contract (common law) Contract (civil law)

The theory behind contracts in English/American and German/Chinese law is sufficiently different that it warrants two articles. I don't know anything about French law to know how similar or different it is from German law.

Contracts under German law are extremely elegant, and are made with reference to juristic acts.

Civil law contracts are sufficiently different from common law contracts that trying to unify the two concepts would probably be invalid under original research.

Roadrunner 02:51, 5 January 2007 (UTC)

That would be ideal though do we have enough material and enough expertise floating around? enochlau (talk) 03:25, 5 January 2007 (UTC)

Perhaps you can just create the two articles anyway, and they can be useful in themselves?

I would however be cautious about overplaying the differences between civil/common law - or the similarities between common law jurisdictions. If you look, for instance at here at the Principles of European Contract Law, there's one example of to what degree the systems converge - or will converge more in future. Wikidea 06:06, 6 January 2007 (UTC)

But there's no way most European civil law courts can apply those principles right now like common law courts in the United States can apply the Restatement of Contracts, because civil law judges don't have lawmaking power like common law judges. The Principles of European Contract Law won't have any binding legal effect until they are integrated into a European Civil Code that is ratified by the European Union and each of its member countries. So trying to build an article based on them would be pushing original research (that is, a law of contracts that exists only in the fantasies of a small group of Eurocrats and is actually not yet legally enforceable in any jurisdiction). Wikipedia is not a crystal ball, among other things (see core policy Wikipedia:What Wikipedia is not). --Coolcaesar 23:28, 6 January 2007 (UTC)

worldwide view

I don't understand why an attempt to add a link to other laws (which are not UK or US) is deleted. The articles is about contracts worldwide and all relevent interwikilinks point to this - why then such link is deleted? unless it is some uk-us biased article and all reference to other countries should be deleted. Deror 20:57, 22 January 2007 (UTC)

Because Wikipedia is not an indiscriminate collection of random information. See Wikipedia:What Wikipedia is not, one of Wikipedia's core content policies. A lot of other links on that External links list have to be purged, too, but no one has got around to it yet! --Coolcaesar 22:23, 22 January 2007 (UTC)

Either no links go to specific countries or links can be made for other countries - Wikipedia is not solely infomation about US law (as most editors think) and the external links are aimed to add more information which is relevant and not in the main article. Deror 13:50, 24 January 2007 (UTC)

consideration, other changes

I added a bit to the consideration to distinguish "sufficient" and "adequate." Gly 01:14, 5 February 2007 (UTC)

Could you possibly add a few references for the bits you added? n.b I moved it down, so that the sections aren't duplicated, which I think you didn't mean to do.Wikidea 08:51, 5 February 2007 (UTC)

Also, the part about contracts being invalid if based on past consideration isn't the law any longer, at least not in the majority of US jurisdictions, under the 'material benefit rule'. The case cited is from 1840. See 2nd Restatement of Contracts s. 81, 86. Any objections to me changing it? Gly 01:24, 5 February 2007 (UTC)

I think I wrote that part - it's still valid in Australia at least. enochlau (talk) 02:35, 5 February 2007 (UTC)

the latest case is Pao On v. Lau Yiu Long [1980] AC 614 from the Privy council which states the main exception to the rule (which is good in Australia), which restates a rule all the way back from Lampleigh v. Brathwait (1615) Hobart 105 (which is even, unless overturned, good in America!); the rule is that "past consideration" may still be good if the subsequent promise is merely evidence of what ought to have happened anyway, i.e. it was implicit at the time.

per Lord Scarman, "The act must have been done at the promisors' request: the parties must have understood that the act was to be remunerated either by a payment or the conferment of some other benefit: and payment, or the conferment of a benefit, must have been legally enforeceable had it been promised in advance."

don't know what sections 81 and 86 are though, or if the material benefit rule's similar? That's getting quite technical already! Perhaps it can go in the consideration article?Wikidea 08:51, 5 February 2007 (UTC)

I notice that you cut out a lot of the elements of a contract - but that stuff isn't elsewhere in the article - should some of it stay? enochlau (talk) 02:36, 5 February 2007 (UTC)

Also, as far as I know, the rule against past consideration is also still technically valid in most U.S. jurisdictions, although there are some exceptions and loopholes in it. But I'm not an expert on contract law.--Coolcaesar 05:49, 5 February 2007 (UTC)