영미법상 Consideration 법리와 계약의 쌍무성

Abstract

The Doctrine of Consideration of the Contract in the Common Law and the Doctrine of Bilaterality of the Contract in the Civil Law Na, Jong-Khab The doctrine of consideration has played an important role in establishing the modern contract law in the Anglo-American jurisprudence. The doctrine has been thought of taking its own position which is not found in the Civil Law tradition. The doctrine of consideration differentiates an enforceable contract from an unenforceable contract. The enforceablity of contract is examined by bargain theory, will theory, reliance theory and fairness theories. However, among those theories, the bargain theory is only survived. A study on the doctrine of consideration under the bargain theory is much progressed in the Anglo-American jurisprudence while the bilaterality of contract is not much studied in the Civil Law jurisprudence. The bilaterality of contract has been buried for a long time. However, a similar trace of the doctrine would be found in the bilateral contract in the Civil Law. To be consideration in a contract, a performance or a return promise must be bargained for. Also in bilateral contract in the Civil Law, a performance or a return promise must be bargained for. In this paper, I have examined the similarity and dissimilarity of both conceptions. I have concluded that the consideration of the Common Law is very similar to the bilateral aspect of Civil Law Contract, although some aspects are different from each other. The doctrine of consideration and the bilateral aspect of contract function to improve the certainty of contract because both conception make more clear the validity of agreements by testing the existences of consideration and bilaterality.