When Common-Law Contract Terminology Collides with Civil Law

A topic of particular interest to me is the ways in which contract terminology used by those practicing in common-law jurisdictions doesn’t make sense in a contract governed by the law of a civil-law jurisdiction.

It’s a topic I’ve touched on sporadically; see for example this 2009 post on enforceability of time is of the essence provisions in civil-law jurisdictions. But I was reminded of it earlier this month, when I attended a presentation at a law firm on the other side of the Atlantic.

When the phrase consequential damages was raised, a Spanish lawyer present said that courts in civil-law countries are bewildered by the phrase and essentially ignore it. I wasn’t able to get any further information on the subject. So, dear readers, would you care to enlighten me?

And more broadly, I’d now like to attempt to crowdsource information about additional problematic common-law usages. What do you say, civil-law lawyers?

(In this post from way back in 2006 I wrote about civil-law drafting compared to common-law drafting. But it doesn’t address specific usages. And if you, like the rest of us, are confused about the phrase consequential damages, see this 2010 post and the later post that it links to.)

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.