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
Le blog du professeur Bruno Dondero 