In practice, I increasingly observe the use (and even the desire to use) contractual clauses originating from Anglo‑Saxon law. This is not unusual in contracts with an international element, even when the governing law does not belong to the common‑law system. The use of such clauses has become particularly frequent in B2B contracts, especially in sectors such as technology, investments, and finance—areas in which Anglo‑American legal concepts have long influenced international practice.
Still, this practice is not universally applicable to every such contract; as the saying goes, the frog saw the horse being shod and wanted the same for itself. Common‑law concepts have indeed made inroads into civil‑law jurisdictions, whether in criminal law, company law, or contract law. When speaking broadly about the civil‑law system, it must be noted that many jurisdictions form part of it—not only in Europe, but also parts of Asia, Latin America, and the Middle East. Anglo‑Saxon (common) law, for example, applies in the United States, Canada, Australia, India, the United Kingdom, and Ireland.
It is sometimes argued that Anglo‑Saxon contracts are more detailed and ‘richer’ than those in civil‑law systems—a result attributed to the relatively limited codification of contract law in common‑law jurisdictions. In civil‑law systems, including ours, contractual provisions are supplemented by statutory rules, and contracts are interpreted within the framework of the law of obligations, taking into account the principle of freedom of contract and its limitations. Although I myself favour detailed drafting, the difference does exist. That said, the length and level of detail of a contract may no longer be as significant a distinction today, at least in practice.
One practical example is the doctrine of hardship, which allows a party to withdraw from a contractual relationship or request an amendment when an unforeseeable event creates such difficulties that the performance of the contract becomes substantially burdensome. Our Law on Obligations (ZOO) regulates the conditions for termination or amendment due to changed circumstances in Articles 133–136. Article 136 ZOO provides that the application of this doctrine may be excluded by contract unless doing so would violate the principle of good faith. If not explicitly excluded, the doctrine applies automatically where Serbian law governs the
contract. Under Anglo‑Saxon law, however, such a mechanism must be expressly included in the contract to have effect.
Contracts incorporating Anglo‑Saxon concepts often include certain expressions and standards characteristic of that system. To a lesser extent, similar terms exist in our legislation as well and are used with understanding—not merely for stylistic effect, but with each word carrying meaningful legal weight. Examples include ‘within a reasonable period’, ‘to a reasonable extent’, the standard of a prudent businessman/householder/professional, ‘in good faith’, and so forth. If a contract uses a term already defined by the governing law, it is deemed to carry its statutory meaning. When we understand the governing civil‑law rules and the principles of the law of obligations, we can draft coherent and consistent contracts.
If you attempt to insert certain Anglo‑Saxon contractual concepts into a contract governed by a civil‑law system, you may encounter difficulties. Some concepts simply cannot be inserted directly; rather, it is necessary to identify the corresponding concept under the governing law and formulate the clause accordingly. Only in that way can a proper and functional contract be drafted.
There is also terminology that is particularly problematic. For example: consideration, representations and warranties, and the hierarchy of efforts standards (reasonable efforts, best efforts, etc.). Even if the contract is drafted in English and no translation of these clauses is required, one should consider whether those concepts and terms align with the governing law—and whether their use may impose an excessive burden on one party or open the door to unnecessary interpretative ambiguity.
As for interpretation, the prevailing view is that courts in Anglo‑Saxon legal systems, relying on the parol evidence rule (which prevents parties from introducing external evidence—such as oral agreements or prior negotiations—to contradict or modify the terms of a final written contract, subject to exceptions such as fraud, duress, or mutual mistake), will interpret the contract primarily according to its text. In contrast, civil‑law courts take into account subjective elements such as the intention of the parties, even when this departs from the literal wording. Article 99 of the Law on Obligations provides that contractual terms must be applied as written, but that in interpreting disputed provisions one should not adhere strictly to their literal meaning; instead, one must investigate the parties’ common intention and understand the provision accordingly, in line with the principles of the law of obligations. Still, this distinction is not always absolute and could merit a separate discussion. As noted by the Appellate Court in Novi Sad: ‘unless the parties can be considered legally unskilled and therefore unable to understand the meaning of the provisions they sign, there will be a meeting of the minds at the moment of contract conclusion, and the contractual provisions shall be applied as written’ (Gž 2945/2010). On the other hand, the parol evidence rule itself contains exceptions, and the doctrine cannot be fully addressed in this brief commentary.
A contract is not merely a template into which one inserts data; it must be individualized and carefully drafted in light of the specific context.
With technological advancement and accelerating globalization, it is entirely clear—and indeed desirable— that the differences between legal systems will continue to diminish. Still, although the two systems are now intertwined in many respects, they have not merged into a single unified system. Therefore, only through professional expertise in contract law and experience within the applicable legal framework can one arrive at sound, unambiguous contractual solutions.
Note: This text reflects the author’s personal views and does not constitute legal advice.
