Archives quotidiennes : mars 15, 2014

A quick introduction to French Contract Law (4): Revision project, conclusion

French Contract Law is a quite old field of law, considerably rich from an intellectual standpoint. It is interesting to point out some of its basic features to non-French lawyers, students and scholars.

 

Revision project and conclusion

A revision project of the French Contract Law has been in discussion for some years now, specifically in order to integrate case law solutions. Case law solutions are generally known, but it would be useful to bring them to the general knowledge in a clearer way through inserting them into the articles of the Code civil.

It is interesting to see how French Law, which is a continental system of law traditionally seen as based on Codes, gives in fact great authority to case law in the field of Contract Law.

It must also be said that Contract Law, as it results from the Code civil, is the general legislation that applies to parties in a situation of equality. Specific bodies of Law also apply to particular situations. For instance, a contract concluded between a consumer or a non-professional and a professional will also be regulated by specific rules included the Code de la consommation.

 

By Bruno DONDERO,

professor at Paris 1 Panthéon – Sorbonne University

bruno.dondero@univ-paris1.fr

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A quick introduction to French Contract Law (3): enforceability, role of the judge

French Contract Law is a quite old field of law, considerably rich from an intellectual standpoint. It is interesting to point out some of its basic features to non-French lawyers, students and scholars.

 

Enforceability

The contract is binding upon the parties, by the mere fact that it exists. However, the contracting parties may strengthen their commitments with some specific clauses. For instance, a penalty clause or a cancellation clause can be inserted in the contract.

The penalty clause provides for an amount of money to be paid by the debtor when he/she doesn’t perform its obligations, or when he/she does it improperly. This amount of money corresponds to the compensation for the damage caused by said non-performance. In case such provision is not inserted, the judge shall assess the damage by himself/herself. In case a penalty clause is provided, the judge can reduce the amount when it appears to be clearly excessive – this remains an exceptional situation where the judge can modify the contract.

The cancellation clause provides that the contract will be terminated in the event that one of the parties doesn’t perform its obligations, of if another event takes place, as set forth by the parties.

Role of the judge

The French judge can be requested by one of the parties to enforce the contract. In doing so, the judge frequently has to interpret the contract. Interpretation can lead the judge to add some obligations into it.

The judge can also be requested to cancel the contract, or to declare one or several clauses invalid. In the case of partial cancellation, the contract can still be valid, apart from the invalid clauses, or it can be totally cancelled.

As a rule, the judge cannot modify the contract to restore balance in the contractual relationship.

 

By Bruno DONDERO,

professor at Paris 1 Panthéon – Sorbonne University

bruno.dondero@univ-paris1.fr

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A quick introduction to French Contract Law (2): autonomy of willingness, creation of the contract, proof, cancellation

French Contract Law is a quite old field of law, considerably rich from an intellectual standpoint. It is interesting to point out some of its basic features to non-French lawyers, students and scholars.

 

 

 

Autonomy of willingness

Among French Contract Law principles, a very important one is the principle of autonomy of willingness (théorie de l’autonomie de la volonté). Basically, it means that it is through their willingness that the contracting parties are bound to a contract. Even if the Law also matters, the Civil code provides that the “agreements lawfully entered into take the place of the law for those who have made them” (article 1134, one of the most important provisions of French Law. Therefore, as a rule, contracting parties cannot terminate a contract unless they all agree to its termination.

Creation of the contract and proof

Several important rules are deduced from the principle of autonomy of willingness. One of them is the principle of consensualisme. It means that as a rule, it is enough to agree on the essential points of the contract to consider it as legally constituted. For instance, a sale contract is achieved by means of the sole agreement on the identity of the good and the price. The delivery of the good and the payment of the price are obligations arising from the contract, which therefore comes into being before the delivery of the good to the buyer and the payment of the price.

That said, in practice, we quite often put an act in writing, for two reasons.

First, the French law requires a written act for certain contracts to be legally constituted.

Secondly, a written act is frequently requested in order to comply with proof issues. Indeed, above 1,500 euros, French law requires as a rule a written document signed by the contracting parties. In case there is no written document, it is generally not possible to prove the existence of the contract, except if special circumstances exist, as for instance: moral impossibility as a justification for not requiring a written document (for instance a contract concluded between members of the same family, etc.) or an incomplete written contract.

There is also the peculiar situation where one of the contracting parties is a merchant or a commercial legal person (partnership or corporation), and the contract is related to the business of that party. In that case, the principle is the freedom of proof. That is to say that the existence of the contract can be established in court even without a written document from the contracting parties; when making its decision about the existence of the contract, the judge will make up his/her mind on the basis of factual elements brought by the contracting parties, such as letters or e-mails.

 

Importance of consent and cancellation

The willingness of the contracting parties and their consent to the contract are particularly important under French Contract Law. This explains why the contract can be canceled if the consent was irregularly granted. If a party deceives the other or behaves with violence in order to oblige the other to sign the contract, and even when a contracting party got it wrong on his/her own about the deal, the contract can be canceled. It shall be noted that French Law requires the judge’s intervention to cancel a contract.

When a contract is canceled, it is deprived of effect for the future. As for the past, the ex-contracting parties shall be put back in the position they were in before concluding the contract, which may imply refunds.

By Bruno DONDERO,

professor at Paris 1 Panthéon – Sorbonne University

bruno.dondero@univ-paris1.fr

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A quick introduction to French Contract Law (1): Code civil and case law

 

French Contract Law is a quite old field of law, considerably rich from an intellectual standpoint.

It is interesting to point out some of its basic features to non-French lawyers, students and scholars.

 

Code civil and case law

The general principles governing French Contract Law were established by the 1804 civil code, the Code civil (http://www.legifrance.gouv.fr/affichCode.do?cidTexte=LEGITEXT000006070721&dateTexte=20140315 – you have access to an English version of it, even if not perfectly up-to-date at http://www.legifrance.gouv.fr/Traductions/en-English/Legifrance-translations). These articles (among the most important are articles 1101 to 1233) were very neatly written, and have been hardly modified over the past two centuries.

However, they have been largely completed by case law, in particular by decision making of the French Supreme Court’s (Cour de cassation), and by the work of the legal doctrine, i.e. law professors and lawyers who study legal provisions and case law and come up with interpretations, suggestions and solutions.

 

By Bruno DONDERO,

professor at Paris 1 Panthéon – Sorbonne University

bruno.dondero@univ-paris1.fr

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