The presumption of completeness and accuracy of contracts in writing
Historical legal comparison and perspectives for the harmonization of private law

PhD Project

Oral statements are the predominant way of making contracts. For most goods that we purchase, such as those in the supermarket or local store, payment is immediate and made instantly. Written contracts tend to be rare and their use more exceptional. In cases where the parties negotiate the price, where goods are especially valuable or consist of a certain type, a written document is used. Some legal systems, both with a civil law and a common law background, even require that a sales contract be reduced to writing if the cost of the goods exceeds a certain amount. Most users of contract law, who have not received formal legal training, would consider that a contract is made only in cases where there is a written instrument. This notion is often referred to as the 'higher dignity' of contracts. It is acknowledged by several legal orders.

German private law, for example, acknowledges a presumption of completeness and accuracy of written contracts. According to this judge-made doctrine, a party bears the burden of proof if he or she claims that the content of the written instrument is incomplete or even incorrect. It follows that this party has the obligation to establish the facts which prove, first, that the parties made an agreement with the content suggested and, secondly, that the parties still intended to uphold this agreement at the time they recorded the written contract. The presumption can be found in judgments of the Reichsgericht as well as several Supreme Courts of the different German states during the 19th century. At the same time, some civil codes of these states set forth rules which accorded stronger evidential force to proof established through a written contract than through witness statements. During the 16th and 17th centuries, the French as well as the English legal system developed rules which protect the written contract by excluding extrinsic evidence or at least evidence established through witness statements.

This research project seeks to examine the historic development of the presumption of completeness and accuracy in contract law. It considers its interplay with statutory provisions in the 19th century and its links to comparable rules in other legal systems. One goal is to investigate the historical background and the legal justification of these rules. Moreover, the project will examine the doctrinal basis of the presumption in contemporary German private law and compare it to similar rules in France and England as well as the United States.

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