Diferencias entre derecho contractual en legislaciones civiles y en legislaciones de "common law"

CONVERGENCE OF CIVIL LAW AND COMMON LAW CONTRACTS

IN THE SPACE FIELD

Julian Hermida

*

This article explores the evolution of civil law and common law towards convergence,

briefly addressing the history of the theoretical and philosophical perspectives that

contributed to shape evolution and change within these two systems. The article analyses

general features of the centralaspects of contract theory in civil law and common law

jurisdictions. As an example of convergence in the commercial contract realm, the article

focuses on the analysis of the structure, characteristics and main clauses of the

commercial space launch services agreements in both systems, stressing their similarities

in structure, treatment and consequences.

Introduction

Common lawand civil law contracts have been traditionally seen as distinctive and fairly

diverse. Each belongs to a tradition that has been regarded as quite different. However,

in several areas common law and civil law have been increasingly marching toward

convergence.

The purpose of this article is to show that commercial space agreements

constitute an area where there is a clearconvergence between these two systems.

Underlying this premise is our conception that despite the view of the majority of

authors, common law – especially as applied in the United States – and civil law should

be considered as one legal tradition, ie the so called western legal tradition.

In other words, the similarities of civil law and US common law vis-à-vis other legal traditionsoutweigh their differences. This is especially visible in the commercial contract realm,

where the selected contracts are but one example. And even in those areas where there

are still striking differences both systems are slowly heading toward convergence.





*

Assistant Professor, Dalhousie University; Postdoctoral Fellow, University of Ottawa (2001–2002),

Doctor of Civil Law(McGill University). The author would like to thank the University of California,

Davis School of Law, particularly Beth Greenwood, and the Lauterpacht Research Centre for International

Law of the University of Cambridge, Faculty of Law, where research for this article took place.

1

Glenn, P.H., “Are Legal Traditions Incommensurable?” (2001) 49 Am J Comp L 133; Merryman, J.H.,

TheCivil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America

(Stanford: Stanford University Press, 1985), p 1.

2

Rua, C. and Cesar, J., “The Future of the Civil Law” (1977) 37 La L Rev 645.

3

Gordley, J., The Philosophical Origins of Modern Contract (Oxford: Clarendon Press, 1991), p 1.

4

Rene, D. and Brierley, J.E.C., Major Legal Systems inthe World Today (London: Stevens & Sons, 3rd

edn, 1985), p 25.

5

Rene, D., “Existe-t-il un droit occidental?” in Kurt H. Nadelmann, Arthur T. von Mehren and John N.

Hazard (eds), XXth Century Comparative and Conflicts Law: Legal Essays in Honor of Hessel E. Yntema

(Leiden: A.W. Sijthoff, 1961), p 56.

6

See Gordley (n 3 above), p 1. 2

This article starts by examining theevolution of civil law and common law

toward convergence, briefly addressing the history of the theoretical and philosophical

perspectives that contributed to shape evolution and change within these two systems.

Then, the article analyses general features of the central aspects of contract theory in the

civil law and common law jurisdictions. Finally, this work focuses on the analysis ofthe

structure, characteristics and main clauses of the commercial space launch services

contracts in both systems, stressing their similarities in structure, treatment and

consequences.

The findings of this work are expected to shed some light on future research on

other areas where civil law and common law also present a high degree of uniformity.

Convergence

Comparative...