Posner, Economic Analysis of Law, 5th ed., 1998, § 1.2. Claus-Wilhelm Canaris’s most popular book is Methodenlehre Der Rechtswissenschaft. Especially in the realm of theoretical discourse on civil law, he has exerted a major national and international influence. the specific handling of a certain aspect of performance mutually agreed upon - may also be taken into account.The content of a declaration is to be determined objectively only to the extent that the addressee can reasonably rely on the "normal" use of language, "the regular" meaning of a certain conduct etc.
The words used are usually the manifestation of parties' intention as well as the object of their reliance (see 2.1 above).
In some cases it may be doubtful whether a declaration is to be understood as an offer or just as an invitation to the other party to make an offer of his own (The same applies if the parties did not express themselves in words, but merely through a certain conduct.
4.7 Unidroit Principles that, as far as contracts in various languages are concerned, the original version generally is authoritative, is unconvincing.
Correspondingly, the idea of freedom of contract - which is the underlying principle of "subjective" interpretation - had to gain acceptance bit by bit against the original notion that only certain types of contracts are admissible.Systematically, there are different issues underlying the conflict between "subjective" and "objective" interpretation.
[Claus-Wilhelm Canaris; Jörg Neuner; Hans Christoph Grigoleit; Ingo Koller] -- Canaris's Collected Writings will serve to permanently assure access to his work and guarantee its visibility for researchers and practitioners. by Grigoleit, Hans Christoph / Neuner, Jörg.
2:102 PECL and in § 863 (1) of the Austrian ABGB.
Cass.
), most European legal systems and the PECL attempt to strike a balance between subjective and objective considerations.In ascertaining the perspective of a reasonable addressee, it is generally irrelevant whether the declarant knew or could have known that perspective. The reference to the parties' intention conceals that constructive interpretation profoundlyinterferes with the contract in two ways: on the one hand, the omission of a contractual term is, generally speaking, just as meaningful as a positive agreement. It is not possible, however, to achieve a comprehensive codification because the parties can construct the contract freely according to their own interests. Thus, the case is much closer to a situation which is definitely not covered by the insurance than to one which falls into the core meaning of the clause.
1162 CC) or against the seller (Art.
This would correspond to the French doctrine that derives a general obligation de sécurité from the contract.Yet there are two important arguments against a general duty of care The reason for the frequent assumption of a general contractual duty of reasonable care is that liability in contract can usually be established more easily than liability in tort. Unknown to both parties, there were two ships called 'Peerless' which arrived at the agreed port of Liverpool at different times.
At one time a certain aspect prevails and another time a different aspect.
Accordingly, the rigid ban on external circumstances also had to be loosened under English law by way of recognising many exceptions.
Either the implied term results self-evidently from "the nature and purpose of the contract"; then it follows from the actual intention of the parties (see (a)).
Even on the basis of a strict will theory, therefore, differences between the intention of a party and the "objective" meaning of his declaration can only have a practical impact on the question whether the contract is invalid or subject to rescission, which is answered to the affirmative under German law by § 119 Abs.
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