Comparative issues in civil and common law contracts

CIM Bulletin, Vol. 97, No. 1078, 2004

E. Gertner and M. Boodman

This paper examines civil and common law contracts from the perspective of good faith, certainty and agreements to agree, contractual remedies and third party beneficiaries. The comparison between civil and common law systems is not intended to provide a detailed analysis of each topic within its legal system. Any attempt to do so would be too voluminous or would risk overlooking the nuances between countries within the same legal system. For example, the civil law analysis in this paper is based primarily upon the law of European jurisdictions and Quebec. Rather, the purpose of the paper is to emphasize the importance of a comparative analysis of the domestic laws of the relevant jurisdictions prior to the formation of the contracts upon which a mining project is based. The primary lesson to be learned from this paper - other than the substantive information regarding civil and common law contracts — is the fundamental importance of consulting local counsel prior to contracting and prior to choosing a governing law for mining contracts.

Mots Clés: Civil law, Common law, Contracts, Good faith, Certainty, Agreements to agree, Remedies.