Apple Inc. v. Samsung Electronics Co. Ltd. et al
NOTICE by Apple Inc.(a California corporation) Translations of Foreign Authority (Attachments: #1 Exhibit 1, #2 Exhibit 2, #3 Exhibit 3, #4 Exhibit 4, #5 Exhibit 5, #6 Exhibit 6, #7 Exhibit 7, #8 Exhibit 8, #9 Exhibit 9, #10 Exhibit 10, #11 Exhibit 11, #12 Exhibit 12, #13 Exhibit 13, #14 Exhibit 14, #15 Exhibit 15, #16 Exhibit 16, #17 Exhibit 17, #18 Exhibit 18, #19 Exhibit 19, #20 Exhibit 20, #21 Exhibit 21, #22 Exhibit 22, #23 Exhibit 23, #24 Exhibit 24, #25 Exhibit 25, #26 Exhibit 26, #27 Exhibit 27, #28 Exhibit 28, #29 Exhibit 29, #30 Exhibit 30, #31 Exhibit 31, #32 Exhibit 32, #33 Exhibit 33, #34 Exhibit 34, #35 Exhibit 35, #36 Exhibit 36, #37 Exhibit 37, #38 Exhibit 38, #39 Exhibit 39, #40 Exhibit 40, #41 Exhibit 41, #42 Exhibit 42, #43 Exhibit 43, #44 Exhibit 44, #45 Exhibit 45, #46 Exhibit 46, #47 Exhibit 47, #48 Exhibit 48, #49 Exhibit 49, #50 Exhibit 50, #51 Exhibit 51, #52 Exhibit 52, #53 Exhibit 53, #54 Exhibit 54, #55 Exhibit 55, #56 Exhibit 56, #57 Exhibit 57, #58 Exhibit 58, #59 Exhibit 59, #60 Exhibit 60, #61 Exhibit 61, #62 Exhibit 62, #63 Exhibit 63)(Selwyn, Mark) (Filed on 5/7/2012)
Professor emeritus of the Pantheon-Assas University (Paris-II)
Professor at the Pantheon-Assas University (Paris II)
Lexis Nexis S.A
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ORIGINS OF OBLIGATIONS
CONSENT OF THE PARTIES
112. – The contract is a meeting of minds [agreement of intentions]. Contracting is
the desire to commit to perform such and such services or obligations (to give, to make or not to
make) in favor of such and such co-contracting party, generally in exchange for a reciprocal
benefit, for example to receive a certain sum of money.
Since the contract is a meeting of minds, there must be as many consents as there are
parties to the act, and concordant consents (39). Thus, consent appears as the fundamental
element of any contract. Whereas the absence of other conditions leads only to rendering the
contract flawed, if there is not consent, there is nothing. The draft reform dedicates a chapter to
the formation of the contract, a chapter whose first article recalls that “the formation of the
contract requires the meeting of the intention to commit of each of the parties” (art. 19). And it
specifies in a second paragraph that this meeting of minds “results either from the acceptance of
an offer demonstrated by a statement or by conduct which expresses the agreement of the parties
As a rule, the agreement of intentions is sufficient for concluding the contract, any
formalities excepted (40). Nevertheless, the drawing up of a written document and its signing by
the parties are made almost mandatory for reasons of proof. What purpose would it serve to
enter into a contract if it were impossible to prove it, and thus, to invoke it? (see hereinafter, nos.
360 and f.).
In a system based on the autonomy of the will (see hereinabove, no. 77 and f.), the
necessity of consent underlies all of the rules on the matter. The idea is so obvious that the
authors of the Civil Code omitted stating it and limited themselves to considering consent from
the perspective of the defects that may affect it adversely; article 414-1 only reminds one that“in
order for an act to be valid, one must be of sound mind.”
It is likewise with the draft reform which, while replacing the requirement of “the consent
of the party who binds himself” with the requirement of “the consent of the contracting parties”,
deals principally with the defects of consent following an article dedicated to the duty to inform
113. – The principle of freedom to contract and its limits (42). The first manifestation of the
autonomy of the will is the principle of the freedom to contract, which has as a necessary
corollary the freedom not to contract. If contracting is.... [text is not complete here]
(39) For the distinction between the exchange of consents and the meeting of minds, See M.-A. Frison-Roche,
Remarques sur la distinction de la volonte and du consentement en droit des contrats [Remarks on the distinction
between intention and consent in contract law]: RTD civ.1995, 573.
(40) For an application, see Cass., 3rd civ. Nov. 27, 1990: JCP 1991, II, 21808 and note Y. Dagome-Labbé.
(41) The preliminary draft, itself, dealt as much with the existence (art. 1109 to 1109-2) as with the integrity (art.
1110 to 1110-2) of the consent and the defects likely to affect it (art. 1111 and s.) – Y. Lequette, G. Loiseau and Y.M. Serinet, Validite du contrat – Consentement,[Validity of the Contract – Consent] in Avant-projet de reforme du
droit des obligations et de la prescription, Exposé des motifs [Preliminary draft of the reform of the law of
obligations and of specification, Statement of grounds], La Documentation française, 2006, p. 29. – P. Stoffel-
Munck, Autour du consentement et de la violence économique [On consent and economic violence],RDC 2006, p.
(42) P.-Y. Gadhoun, La liberte contractuelle dans la jurisprudence du Conseil constitutionnel [Contractual freedom
in the case-law of the Constitutional Council], Dalloz, Bibl. Theses, 2008, preface D. Rousseau.