French reform of Contract Law in comparative context

I recently came across a special issue of the ELTE Law Journal to celebrate the tenth anniversary of Hungary’s accession to the EU. The journal is published by the Faculty of Law and Political Sciences in Hungary’s oldest university, Eötvös Loránd University (ELTE) in Budapest, and one article in the issue particularly caught my eye (with added links):

Bénédicte Fauvarque-Cosson “The French Contract Law Reform in a European Context” (2014) ELTE Law Journal 59

I Introductory Remarks on the Development of the Law in Europe
… The civil and commercial law of each Member State is built upon three pillars, the national legal systems, EU law and the ECHR. While our national experiences influence one another, the law of the EU is built upon these reciprocal influences. In turn, our national legal systems are influenced by EU law. …

As European scholars, our role is primarily to train students to think comparatively, in order to build a common legal culture all over Europe … As European lawyers in the 21st century, our mission goes beyond comparative teaching. … Legal scholarship has played its role as a guide to the European legislator. … The same phenomenon may be observed in those of our countries where the recodification of important parts of the law is envisaged. This notably occurs in France as regard contract law, a key subject for comparatists and European scholars.

II The Recodification of French Contract Law: from an Academic to a Political Process

Code civil

First page of the first edition of the Code civil.
Title III of Book III of the French Code civil is entitled Des contrats ou des obligations conventionnelles en général. This part of the Code contains 280 articles and has remained practically as it stood in 1804. The French Code civil no longer reflects our French law of contracts and torts. … the evolution of the law of contracts – the same is also true for torts – took place outside the Code civil. This is largely due to the creativeness of French judges. …

The recodification of our law of obligations and evidence is on its way. It happens to be much more difficult than initially envisaged and it encounters several obstacles. In September 2005, an Avant-projet de réforme du droit des obligations et de la prescription was submitted to the French Minister of Justice. The Avant-projet Catala was drawn up in less than three years (from early 2003 to October 2005) by 34 civilian lawyers. … Professor Pierre Catala, chair of the Commission which drafted the Avant-projet, said that the initiative was due to the Principles of European Contract Law (PECL) … [but] the influence of this surrounding international and European legal environment was far too limited. …

After the Catala Avant-projet was published and handed to the Ministry of Justice, many discussions and conferences took place … [and] a new academic project was prepared under the chairmanship of professor Francois Terré … This project drew inspiration from all the various existing European and international models … [on foot of which, in 2013] the government issued a Projet de loi du 27 novembre 2013 relatif à la modernisation et à la simplification du droit et des procédures dans les domaines de la justice et des affaires intérieures … [but] on January 23, 2014, the French Senate refused to adopt [it] … [but] this is not the end of the story.

III The Content of the Rules on Contract in the Government’s 2014 Project (the ‘Project’)
The Project is an impressive achievement … [and] if it were to be adopted, [it] would entail some important changes. … [In particular, the notion of] … the ‘cause’ has disappeared. Some famous academics are still very attached to the cause … The drafters of the Catala project thought that maintaining and clarifying such a concept would create fewer problems than deleting it and having to find new devices in order to fill the gaps. The government took an opposite view. …

IV Concluding Remarks on the Major Orientations of the New French Project
… The principles which currently underlie the French law of contracts have been strengthened by this new Project.
– freedom of contract
– consensualism is enunciated and in this respect, the French project may seem to resist the creeping formalism that is to be observed in EU consumer law, in the CESL and in many specific contracts.
– contractual justice, coherence and good faith are reinforced. This goes along the lines of EU law, as well as of some recent codifications. In several laws (notably in German, Dutch and US law) or codifications (PECL and Unidroit principles), good faith acts as a general principle for all the phases of the life of the contract.
– unilateralism has become predominant, especially since the Cour de cassation consecrated the power of one party to unilaterally fix the price or even terminate the contract. The Avantprojet leaves all this unilateral power of one party, and the notification process that goes with it, in place (unilateral termination is placed on equal footing with judicial termination). …

Update: from Pinset Masons’ blog:

Fears over French contract law rewrite are largely overblown, says expert

A proposed revision of the French civil code is causing concern about the validity of commercial contracts written in the country, but in reality is likely to modernise and fill the gaps in the law, said contract law expert Peter Rosher

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