Preface : Types of Special Contracts in Europe - Historical Development and European Perspectives

Contract, contrat, Vertrag. The technical terms may differ, the doctrinal details may vary, yet all Western legal systems recognize the abstract concept of autonomously binding oneself through promise and agreement. However, in everyday life such agreements are never simply manifestations of thepure idea of “contract”, freed from all accidental properties. In practice, an agreement is always a transaction that serves a certain purpose: for example, the exchange of goods or services for money. Parties to such common transactions will in general be motivated by similar goals and interests; and similar disputes arise when these interests clash. To respond to the challenge posed by such “typical” contractual conflicts, a legal system would presumably develop specifi c rules of confl ict resolution: that is, particular rules to correspond with these common “types” of contractual conflict. The law thus generalizes and groups certain “types” of contracts together to address their similar needs, resulting in the growth of a “special” contract law for “specific” contracts. However, if we compare these “special” contract laws within their normative and cultural environments, we are quickly reminded of the limits of this “functional” comparative approach. Law, understood as a tradition, presents itself to a large extent as the product of historical contingency. A historical approach thus seems particularly suitable for a project that aims at a comparative elucidation of the phenomenon of “specific” or “typical” contracts. The major importance of the concept of “nominate contracts” in Continental legal thought can only be properly understood against the backdrop of the tradition of the ius commune, which developed the civil law of contracts within the syntax of Roman law