The role of consent in the formation of contract in comparative private law
The role of consent in the formation of contract in comparative private law

Summary/Abstract: 1. The principle of autonomy of will in comparative private law is adopted, basically, in the German legal systems as we can see in countries like Netherlands, Portugal etc. There are some other countries where legal system is basically the same like in Spain and Italy. Some other legal systems like French, or common law ones, do not recognize that concept of legal act. That is the same in some Latin-American countries and some Islamic countries legal systems (…). 2. Nowadays, contracts are consensual and the only difference is in the economic and social objectives (causa). This concept of causa is supported by most of the civil law authors. (…) 3. The real contract in civil law is not a contract in common law. Mutuum, comodatum, depositum and pignus are not contracts but bailments. The obligation of the bailee is the restitution of the res or to take care of it before its restitution. From the responsibility of the bailee does not raise a civil action of the bailor but a real action because of the property of the thing or its possession. The civil law system lets the depositarium or comodatarium to obtain the restitution of the thing because of the proof of the contract and not with the proof of the property over the thing or its possession. The donatio gift - a real contract in civil law is not so in common law. The movable thing that is given with the will of transferring its property makes it a perfect contract. There is no contract because there is no exchange of different things between the two parties and even no deed is required because it is placed by the act by which the thing is given. On the other hand, the consent can present some specific problems like the silence or the acceptation inter ausentes. (…)

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