Claire HugueninZum Verhältnis zwischen linguistischen Kommunikationsmodellen und Verträgen

Claire Huguenin, Zum Verhältnis zwischen linguistischen Kommunikationsmodellen und Verträgen, in: Rolf Sethe/Andreas Heinemann/Reto M. Hilty/Peter Nobel/Roger Zäch (eds.), Festschrift für Rolf H. Weber, pp. 109–121 (Berne 2011).

Background

Claire Huguenin’s text was written for the commemorative volume with the title «Kommunikation», which was published in 2011 in honour of Professor Rolf H. Weber. Information and communications law has played an important role in Weber’s career, mainly during the last 15 years (cf. Weber, 1.3/2.1/4.2/4.4). Therefore, the commemorative volume focuses – amongst others – on this subject. The voluminous book of 980 pages contains texts from different fields (e.g. legal practice and legal policy). The commemorative volume is divided into (1) individuals and businesses, (2) markets, (3) states and (4) media. Claire Huguenin’s text analyses the relationship between linguistic models of communications and contracts in the field of individuals and businesses.

Huguenin honours Rolf H. Weber for his scientific work related to the communicative aspects of law. She states that her idea to write about this topic was based on a publication by Angelika Linke, a scientific colleague at the University of Zurich in the field of philosophy. Linke’s text deals with the sharing of knowledge and the need to communicate. Thereby, Huguenin analyses the contract as a specific type of communication. Her text is divided into two main parts: Firstly, she discusses different models regarding the linguistic research of conversation; secondly, she describes the contract as part of communicative acts.

Claire Huguenin is an ordinarius professor of civil, commercial and European law at the University of Zurich, Switzerland. Her main fields of research are contract and corporate law. She initiated the research project «Schweizerisches Obilgationenrecht und Europäisches Vertragsrecht» (translated: Swiss Code of Obligations and European Contract Law). The aim of this project is to establish a draft for new general provisions of the Code of Obligations (contract law, OR 2020). Huguenin has published several books, articles and book chapters.

Summary

The text starts with a linguistic approach to conversation. Huguenin describes the monopolistic-ontological model and replicates the following quote by Per Linell, an emeritus professor of language and culture at Linköping University (Sweden): «Monologism has a long intellectual history in Western philosophy and theories of the mind, […]». Huguenin states that the «main stream» of communication scientists prefers this model that includes a transmission of knowledge over a predefined world. In the words of Charles E. Osgood, a distinguished American psychologist who developed the semantic differential, the monopolistic-ontological model can be described as follows: «Words like little buckets are assumed to pick up their loads of meaning in one person’s mind, carry them across the intervening space, and dump them into the mind of another».

In contrast, the dialogistic-constructivist model has not been fully recognised yet. However, in the last few years the linguistics have started to examine this model and develop a dialogistic theory of communication. According to Per Linell, «[…] a dialogical (‘dialogistic’) linguistics would systemically consider the subject’s relation to the other in interaction and in contexts». Therefore, the dialogistic-constructivist model focuses on contextual interaction and is a joint production of the sender and the receiver of information: Linell states that «[…] dialogical interactions are such discursive processes and their products [that] are conceptualised as joint, coordinated and mutually interdependent activities of both (all) participants. This conceptualisation presupposes that interactions are viewed as multi-functional and reflexively interconnected activities embedded in the dynamic of dialogue».

In the next section, Huguenin discusses the contract as a model for communicative acts. She emphasises that individuals use contracts in order to regulate their relations. From a legal point of view contracts can be characterised as a binding (mostly) double-sided exchange between performance and consideration. Thereby, Huguenin underlines the importance of communication in order to gain convergent awareness of the contractual obligations. In a nutshell, contracts can be described as a type of communication that has the function to conceptualise a common action «pro futuro».

Huguenin’s text states that, regarding the form of a contract, the legislator has chosen a dialogistic model; it is irrelevant whether the contract is written or it exists only on a verbal basis. According to article 11 para. 1 of the Swiss Code of Obligations, the validity of a contract is not subject to compliance with any particular form unless a particular form is prescribed by law. Consequently, it is sufficient that the conclusion of a contract requires a mutual expression of intent by the parties (article 1 para. 1 of the Swiss Code of Obligations). Huguenin concludes that the Swiss Code of Obligations does not only correspond to the new linguistic research, but also to modern neurobiological research. Referring to Linell, she states that «[…] dialogue and dialogical interaction appear to be more fundamental than language (at least as language has been conceived most often)».

In a further section, Huguenin discusses the interactions between offer and acceptance. In view of the applicable legal provision (article 3 of the Swiss Code of Obligations) – and in contrast to previous observations – it can be said that the conclusion of a contract is based on a monologist model: «A person who offers to enter into a contract with another person and sets a time limit for acceptance is bound by his offer until the time limit expires (para. 1). He is no longer bound if no acceptance has reached him on expiry of the time limit (para. 2)». However, there are also more complex situations; a simple «yes» is not always sufficient. For example, article 5 para. 3 of the Swiss Code of Obligations reads as follows: «Where an acceptance sent duly and promptly is late in reaching the offeror and he does not wish to be bound by his offer, he must immediately inform the offeree». Since this example shows the interruption of a simple «one-way communication», Huguenin underlines that the dialogistic approach also exists.

Furthermore, Huguenin’s text describes the characteristics of dissent and consensus. A dissent means that the involved parties have not reached an agreement. In this context, Huguenin differs between an open and a latent dissent. She states that by applying the dialogistic model even a dissent can be an appropriate solution. Regarding the consensus, Huguenin analyses the natural and the normative consensuses separately. If a natural consensus does not exist, the judge will have to examine whether he can «fabricate» a normative consensus. According to Huguenin, in case of a natural consensus the monologistic and the dialogistic models coincide.

In the last section of the text, Huguenin analyses the characteristics of general business conditions (GBC). Since the GBC are not defined in a common process between all involved parties, Huguenin describes them as monopolistic-ontological «par excellence».

In a nutshell, Huguenin’a text analyses the relationship between the linguistic research on communications and the contractual perspectives of communicative acts in an innovative and concise way. Thereby, she contributes to the attempts of valuably concretising information law.

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You can find a scan (PDF) of the original text here: Huguenin – Zum Verhältnis von linguistischen Kommunikationsmodellen.