الطبيعة القانونية لمصادر الالتزام الإرادية في الأنظمة القانونية الغربية المقارنة

الملخص EN

Comparative legal systems still disagree on the role of the individual will in the creation of legal transactions and the legal natural of this will.

The continental law legal system does not recognize the individual will as a source of obligation and organizes it under the rules of contracts because it does not make any sense until it is accepted by the counter party, so it is a form of contract regardless of the nature of obligation of the counter party.

In contrast, the German legal system organizes the will of a party as a main source of obligation, and recognizes contracts as actions of individual wills between two or more parties; the offer is an individual of the offerer declaring his interests to be bound with what he offered, and the acceptance is another will of the offeree declaring his acceptance to what he received.

The common law legal system adopts a moderate approach; it recognizes an individual will as a source of obligation where it follows provided legal formalists.

In addition to the above, comparative legal systems also disagree when dealing with the consent of the contracting parties and their role in making legal transactions.

Both common legal law system and German legal system adopt the theory of objective agreements, where the consent of the contracting party must be understood according to its formal feature and how it is received and understood by others.

In contracts, continental law legal system adopts the theory of subjective agreement, where the consent of the contracting party must be understood according to the real intention of this party and what he means when making this action.