Chapter 6: Formalities

Question 1

Why sometimes formalities have to be done

Answer 1

for the contract to be valid

Question 2

Tell me the 2 types of formalities

Answer 2

Writings as a requisite for validity and deeds

Question 3

How the national laws on formalities vary on different countries

Answer 3

1. France –> employment contracts
2. England –> sale of land
3. Germany –> consumer suretyship, ending employment contract

Question 4

Deeds under civil law

Answer 4

a notary drafts the deed, and then the notary has to warn them about the transaction and the consequences of it. Then, it has to be signed by the parties as well as by the notary

Question 5

Deeds under common law. When needed? EXCEPTION

Answer 5

It needs to be clearly stated that it is a deed. A witness is needed, made by the maker and signed by the attested. Needed for a lease of 3 years or more, and for a gratuitous promise. Exception –> when it is given in the spot

Question 6

What is the role of the notary under Civil law.

Answer 6

Professional career, normally have a law degree and be licensed by the state. Conveyancing and drafting wills, corporate chapters

Question 7

what is the role of a notary under common law? England, USA

Answer 7

lacks an official assignment. England does have a notary public but for transactions outside the UK. In the US there is a profession called notary public. Not having a law degree normally and being impartial, they are needed to witness and certify signatures

Question 8

What are the reasons for formalities?

Answer 8

1. Warning function
2. Information function
3. Evidentiary function - FR rules prioritizes written evidence over nay other type of evidence.

Question 9

Sanction on formalities?

Answer 9

there is no single straightforward response, depends on many factors

Question 10

Factors regarding the sanctions?

Answer 10

1. Voidness and Availability –> Void if it protects both parties or some public interest. Avoidable if it only protects one party –> impartial
2. Cure of the lack of form: sometimes lack of formality can be excused: 1. a statute may establish that, if the formality was not observed, the contracts will be held as valid, but adding a legal consequence that benefits the party protected by the formality. 2. both parties carry out the contracts without worrying about any formalities 3. one party could make the other believe wrongly that no formalities are needed.