English Commercial Law - Material or form?
Common law systems sometimes prioritize form over content. That is, regardless of superseding principles, only what the law expressly states is applicable. As a result, lawyers frequently view their role as "drafting around the law" to ensure that their client falls within a gap in the law or otherwise benefits marginally from the circumstance. But in civil systems, attempts to circumvent norms will fail due to reasons of public policy, therefore it does not function. A civil lawyer will be aware that such an effort would be futile, whereas a lawyer practicing in a common law country might devise a highly intricate manner to structure a deal in order to make it, for example, tax effective. In keeping with the aforementioned example of UK lawyers having to understand civil law issues in the form of EU legislation, it should be noted that EU competition rules prioritize substance over form, thus smart drafting won't help one avoid fines for, for instance, anticompetitive behavior. It's interesting to note that when the UK updated its own draftable form-based competition laws, it adopted the EU system and produced the substance-based Competition Act of 1998, which focuses on the substance of the agreements between the parties rather than the precise wording of the contract's terms. In civil law systems, equality and fairness are frequently seen as general concepts. As a result, a contract may be unenforceable if the benefits received by the parties are unequal. In some cases, the price agreed upon must also reflect the market value of the products.
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