Title: Considerations regarding the Legal Interpretation of Contracts in Private International Law
Abstract: ABSTRACT.The dominant principle regarding the choice of law clause in contracts governs both the conclusion of contracts, as well as the will of the parties. The aforementioned parties may express their will at their own convenience, as long as the contract's clauses do not cause any legal conflicts. If any divergences appear, it will be necessary to coherently and justly interpret the contract. The only way to express a legal idea, comprised in the clauses of a contract is through words. Still, words do not always transpose feithfully the will of the parties. In such cases, the terms used in contracts may be ambiguous, obscure, amphibiological, unfit, which most certainly would cause much confusion. Henceforth, the need of norms, regulated and grouped, as recommendations may represent an invaluable interpretation tool for lawyers, magistrates and any other law specialists.Keywords: interpretation, choice of law, contracts, conflict of laws1. IntroductionIn Roman law, the interpretation of the will of the parties was not relevant, as the formalism was decisive. If the act was not done in lawful forms, it was deemed ineffective. Also if the formal appearance of the contract was respected, the effects were necessarily those produced by the kind of act done. Since the parties were subordinated to the legal formalities regarding contract conclusion, this subordination to the validity of the form was necessary. Nevertheless, modern law is the opposite of Roman law and is subject to interpretation, if any legal misunderstanding between the parties arises.12. Interpretation criteriaThere are different interpretation criteria, some of them of distinct nature. In principle, there are two criteria: one is the criterion determining the real will of parties also known as the internal will criterion. This criterion allows interpreting the true will of the parties, which led to creation of the document. The second criterion regards the declared will manifested by the expression used in the drafted document. The true will system belongs to the neo-Latin legal systems. The expressed will system originates from Germanic law systems. The difference between the systems is mostly superficial. The first is drawn from an individualistic conception, as actually the interested party's true will is relevant, in contrast to the way, sometimes inappropriate, in which the party expressed this will. In most civil law countries, the legal agreement is considered to be the law of parties. Generally, the law does not impose any rigid rules for drawing up documents, which may serve as legal proof, nor to interpret legal documents. German law concerns itself to provide protection to third parties that have no other means of knowing the will of the parties, other than the declared or externalized consent. In Romanian legal system the Civil Code has certain recommendations to courts that are illustrative of the role that judges have to play in the work of translating the will of the parties. Thus, the interpretation of contracts' effects should be made according to the common intention of the contracting parties and not by the literal meaning of words.Interpretation of legal provisions may relate to the qualification or characterization of the exact legal nature of the agreement made between the parties or by the wrongfully interpreted facts, whether deliberately concealed or distorted by one party to the detriment of the other or not. Characterization is an important step in determining the law applicable to a contract. There are situations where one legal system may consider a claim to be subject to contractual liability, while others would consider it a form of tort.When the foreign trade act contains clauses that gave rise to misunderstanding between the parties, the interpretation of the controversial contract should be made without taking into account these clauses. This is the meaning of Art. 948 of the Romanian Civil Code, Convention applies only to things on which it appears that the parties have proposed themselves to contract, no matter how general were the terms that were included. …
Publication Year: 2012
Publication Date: 2012-01-01
Language: en
Type: article
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