L'inexistence du contrat : Un autre regard sur sa formation

Abstract : Conceived in the middle of the 19th century to meet lame excuses, once subjugated to a functionalist logic, the theory of non-existence was born under bad auspices. Without ever having been able to dispose of its excess, it was doomed to suffer of criticism from the doctrine, and to succumb. Today, however, having never quite deserted the courtrooms, the concept of non-existence, stripped of his theory, seems reborn. A new view in the literature seems to convince that, contrary to what it used to be exposed, its concept is purely logical and not practical at all. Therefore, if we decide to acknowledge that effects and application are dedicated to borrow from voidness, together forming a common law of the radical annihilation of the contract, there is no obstacle to repeat in the systematic review, which is one of its causes. Like everything, the contract is non-existent whenever he misses one of the elements of its definition, otherwise described as essential. If we agree, by this using this word, to describe the voluntary agreement intended to produce legal effects, it appears that its essence is entirely in the will of the parties, and it may then fail for reasons peculiar to the person of the authors, as well, and even more often, for reasons related to the content of their volition. Thus bounded, The non existence resurfaces for what it truly is against the instrument of theoretical perforation it used to be : a legal notion whose aim, among others, to give official recognition to the formation of the contract.
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Contributor : Alexis Posez <>
Submitted on : Friday, September 18, 2015 - 12:38:33 AM
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  • HAL Id : tel-01201755, version 1

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Alexis Posez. L'inexistence du contrat : Un autre regard sur sa formation. Droit. Université Panthéon-Assas, 2010. Français. ⟨tel-01201755⟩

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