The element of consent in contractual obligations

Abstract

The aim of this term paper is to assess the element of Consent in contractual obligations. The four stages necessary for the creation of consent are highlighted, and reference is made to local case-law. The first stage deals with consent as an Internal Act. Since consent is an expression of one’s will, it must be shown that one has intentionally entered into a contract. However, countries like Italy who support the theory of affidamento, disregard such element since they base their reasoning on behaviour. Following the internal act, the second stage tackles the different forms of consent, and particular emphasis is made to tacit consent. This form of consent gives rise to a number of legal issues. This is analysed by examining the Court’s interpretation of silence, in local judgements on the matter. After analysing the first two stages, the conformity between the internal consent and the external consent must be examined. If there is a disformity, and a person does not express what he intends, then such consent is invalid. This disformity could be either voluntary or involuntary and if such disformity is voluntary, the issue of simulation of contract arises. Furthermore, it is explained how both parties must have the intention to consent to the same thing. Otherwise, this would lead to an error in corporae or an error in negotio. The final chapter of this paper focuses on the unity of consent of the parties. The law of conclusion depends very much on the law of the country where the contract is concluded, and this can give rise to various issues of private international law.