If a Frenchman and a Belgian meet in Hamburg, and the one sells his car to the other for 2 000 francs, the question arises as to what currency the parties have intended: 2 000 French or Belgian francs.

Both parties have probably had their own currency in mind, and the reasonable and objective bystander may well be taken to have understood the mutual declarations accordingly. Thus, we would be dealing with a case of hidden lack of agreement (dissent): the one party intended and declared French francs, whilst the other party both meant and referred to Belgian francs.

If the same transaction had taken place in Brussels, rather than in Hamburg, one would probably have to come to a different conclusion: in this case the declaration, not only of the Belgian, but also of the Frenchman, would have to be construed, from an objective point of view, as referring to Belgian francs. Thus, according at least to modern German law, a contract would have come into existence, since the declarations of both parties to the contract corresponded. However, due to the obvious deviation between intention and declaration, the Frenchman would be able to rescind the contract; but if he chooses to do so, he is under an obligation to compensate the other party for his reliance interest.

This very simple example shows how closely the questions of error and interpretation are intertwined. Whether the problem of error arises, and if so, in which way, often depends on how a contract or the declarations leading up to it are to be understood. Andjust as in the case of error the law can emphasize either the intention of the parties (their "consensus ad idem") or the external manifestation of their intention,¹ so it can adopt either a subjective or an objective approach in matters of interpretation.² Archaic legal systems are usually dominated by a very literal, word-oriented (i.e. objective) approach, and it is only with the increasing refinement of legal culture that subjective elements begin to be taken into consideration.^[3229] When a certain stage in this process is reached, however, progress ceases and decline begins.^[3230] Sole emphasis

¹Cf.

supra, pp. 584 sqq.

- Cf. e.g. Zweigert/Kotz, pp. 96 sqq.; Alexander Liidcritz, Ausle%utt% von Rechtsgeschäften (1966), pp." 78 sqq-

' Cf. generally Heinz Hübner, "Subjektivismus in der Entwicklung des Privatrechts", in: Festschrift/Ur Max Kaser (1976). pp. 715 sqq.

⁴ Fritz Pringsheim. "Animus in Roman Law", (1933) 49 LQR 48.

621

on subjective criteria will seriously affect or even undermine the certainty of law and the security of commerce. Modern legal systems, therefore, usually attempt to establish a balance. The BGB, for instance, calls attention to both subjective and objective criteria. While §133 BGB declares that, in interpreting a declaration of intention, the true intention shall be sought without regard to the literal meaning of the declaration, § 157 BGB instructs the judge to interpret contracts according to the requirements of good faith and in line with common usage.^{3 * ^[3231] Both of these rules find historical antecedents in the Digest: "In conventionibus contrahentium voluntatem potius quam verba spectari placuit",^[3232] says Papinian, whereas Paul asserts: "Cum in verbis nulla ambiguitas est, non debet admitti voluntatis quaestio. "^[3233]}

II.

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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

If a Frenchman and a Belgian meet in Hamburg, and the one sells his car to the other for 2 000 francs, the question arises as to what currency the parties have intended: 2 000 French or Belgian francs.

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