| Item | Topic | Common Law | Civil Law |
| 1. | Contracts | ||
| 1.1 | Basis of | Principles of certainty and predictability. | Concerned that justice is rendered in a specific case. |
| 1.2 | “Good Faith” and “Fair Dealings” | 1.2.1 Contract deemed to be sufficient to regulate the transaction between parties.1.2.2 Notions such as “good faith” and “fair dealings” are not necessary to integrate the regulation agreed between the parties. | 1.2.1 Contract interpreted in the light of applied principles of “reasonableness”, “good faith” or “fair dealing”.1.2.2 Permit the avoidance of unjust solutions that might be based on literal interpretation. |
| 1.3 | Right to Performance | Favours damages as typical remedy for contract breach.[1] | 1.3 Specific performance (i.e. obligations to perform as agreed) is formal expectation and legal norm.[2] |
| 1.4 | Consideration and Causa | A contract has no binding effect unless supported by consideration. | A contract cannot exist without a lawful cause (causa). Cause is different from consideration as the reason why a party binds itself need not be to obtain something in return. |
| 1.5 | Third Party Interference | Does not recognize contracts for the benefit of third parties.[3] | Parties to a contract may agree that contractual rights can be transferred to a third party (stipulation alteri).[4] |
| 1.6 | Offer and Acceptance | An offer may always be revoked or varied, in principle, until the moment when it was accepted. | In principle an offer has binding character and can’t be revoked after given[5] |
| 1.7 | Force Majeure & Frustration | 1.7.1 Force majeure does not have a precisely defined meaning and the parties have to specify in the contract events of force majeure that will exclude their liability for non-performance.1.7.2 Force majeure leads to the termination of the contract and not to exoneration of a party from liability.1.7.3 Force majeure affects the whole contract. | 1.7.1 Concept of force majeure does not recognize commercial difficulties as exemption.[6]1.7.2 Force majeure operates independently of party agreement, which means that it will protect an obligee even if the contract does not contain a force majeure clause.1.7.3 Force majeure is related to the obligation of one party. |
| 1.8 | Breach of Contract and Fault | Fault is not a requirement for breach of contract, and damages can be awarded without fault. | Existence of fault is the basis for awarding damages to the innocent party; the recovery of damages can be awarded only if the breach of contract is caused at least by negligence.[7] |
| 1.9 | Liquidated Damages and Penalties | Liquidated damages are normally enforced by the courts while penalties are not. | Courts may reduce the agreed amount of damages if that amount is found to be excessive, because it contravenes the principle of ‘good faith’, or even increase them, if the amount of liquidated damages is considered to be too low. |
| 1.10 | Notice of Default | No requirement of notice of default based on the general rule that performance is due without notice. | In case of delayed performance of a contract the creditor must put the debtor in default by a notice of default. |
| 1.11 | Interpretation | 1.11.1 Strict interpretation of the language of the contract to establish mutual intent of the parties.1.11.2 Strong reliance on the contents of the document. | 1.11.1 Reliance on existence of statutory or doctrinal set of rules governing specific types of transactions. |
| 2. | General Features | ||
| 2.1 | Legislation | The law dominantly created by judicial decisions, while conceptual structure often lacks. The courts are given a main task in creating law. | Main principles and rules are contained in codes and statutes, which are applied by the courts. It is based on the theory of separation of powers, whereby the role of the legislator is to legislate while the courts should apply the law. |
| 2.2 | Case Law | Starts with the actual case and compares it with the same or similar legal issues having been dealt with by the courts in previously decided cases and deduce binding legal rules from these precedents.[8] | More conceptual in nature. Case law does not have binding force and court decisions are not binding on lower courts in subsequent cases, nor are they binding on the same courts, and it is not uncommon for courts to reach opposite conclusions in similar cases.[9] |
| 2.3 | Property | Property in goods is generally transferred when the parties to the contract intend it to be transferred. | Property passes generally from the buyer to the seller at the moment when they have agreed about the goods and price (solo consensu), even though the goods are not delivered, nor the price paid. |
| 2.4 | Trust as Fiduciary Relationship | Acknowledged as fiduciary relationship with respect to property, subjecting the person by whom the title to the property is held to equitable duties to deal with the property for the benefit of designated beneficiaries. | The trust, as it is understood in Common Law, does not exist in Civil Law. In Civil Law there are serious difficulties for a potential trustee demanding conveyance of trust property to himself, or to register himself as the owner of the property, as he may not be regarded as the owner under Civil Law. |
| 2.5 | Mortgage & Hypotheque | Mortgage gives the immediate right to property to the mortgagee, who can take possession of the property by a simple notice, without the necessity of taking suit, as well as a right of foreclosure at law. | Civil Law Hypotheque differs from the Common Law mortgage, particularly in that it confers on the hypothecary creditor no immediate right to possession of the property, but only a right against the proceeds of sale of the property after enforcement of the right in judicial proceedings. |
| 3. | Procedural Law | ||
| 3.1 | Comparison | Common Law procedure is usually “adversarial” in nature, which means that the judge acts as neutral arbiter between the parties in dispute as they each put forward their case.[10] | Civil Law procedure is “inquisitorial” in nature, because the judge examines the witnesses, and the parties in dispute practically have no right of cross-examination.[11] |
| 3.2 | Determination of Facts | The parties and the court first investigate the facts to establish the truth with emphasis on oral arguments and examination.[12] | A Civil Law trial consists of a number of hearings, and written communications between the parties, their attorneys and the judge during which an eventual dispute on court’s jurisdiction is resolved; evidence is presented and motions are made.[13] |
| 3.3 | Service of Documents & Discovery | Pre-trial search for evidence is dominated by the process of discovery which is, generally speaking, a private matter where the parties should collect and introduce evidence, performed by lawyers according to prescribed procedures. | No pre-trial discovery. The parties are not obliged to produce documents voluntarily to the other party during the course of civil litigation. The process of collecting evidence is a public function conducted by the court in which the judge plays a main role. |
| 3.4 | Admission of Evidence | Several rules restricting admission of evidence. | The rules on evidence are contained in ‘civil procedure rules’ setting conditions of admissibility and weight of evidence. In principle, any evidence is admissible, but the court will evaluate how much weight is to be accorded to specific evidence.[14] |
[1] At Common Law specific performance and other injunctive relief are discretionary and generally disfavoured. [2] Under French (as well as Qatar, UAE, Egyptian) law the agreements validly concluded are regarded as the law of the parties. French and other Civil Law countries also distinguish between ‘obligations to give’ and ‘obligations to do’ as regards remedies. [3] Instead, the doctrine of privity of contracts applies, which effectively prevents stipulations in favour of third parties. [4] The right, of course cannot be forced upon the third party; if the third party rejects the right acquired under the contract, the right is deemed not to have been acquired. [5] The offer will be considered as revoked if it was not accepted, or it was not accepted within specified period. [6] In that respect, force majeure differs from frustration. Force Majeure applies to situations where performance of contract is substantially impossible, not merely something different from what was originally contemplated by the parties. In case of substantially changed economic conditions the doctrine of changed circumstances (clausula rebus sic stantibus) applies. [7] The general principle is subject to some important exceptions which provide for strict liability regardless of fault. [8] The binding force of precedents, as one of the main distinctive features of Common Law, is not so unique to the Common Law as it may seem, because of the actual influence the case law has on the courts in all legal systems. [9] In some Civil Law countries the decisions of supreme courts have been made binding by statute. [10] The parties in a dispute lead the proceedings, while the position of judge is rather passive as he or she does not undertake any independent investigation into the subject matter of the dispute. The role of the judge is not to find the ultimate truth. [11] Compared to Common Law, the judge plays a more active role in the proceedings, eg by questioning witnesses and formulating issues. [12] A complaint is merely a formality which starts a procedure of investigation aimed at establishing the truth. [13] In Civil Law the complaint actually determines the parameters of the case. [14] While there are some restrictions, there are not rules corresponding to the common law rules on admissibility such as “hearsay” and “best evidence” rules.