DEBATEs on the contract law in France

The contract law is the legal discipline devoted to the study of the Contrat S . The contract law is often presented like more " noble" matters of the Private law taught in France in the Faculty of Law. Many authors were characterized by their work in this matter. Often very technical, the writings which are devoted to him generally reject the not-lawyers because of the frequent use of legal terms obscure to the eyes of the layman.

It is nevertheless thanks to work of eminent lawyers as of the middle of the XIXe century that the doctrines exceeded the literal comment and interpretation article by article of the provisions of the Civil code French adopted in 1804 (V. not., the School of the free scientific research founded by François Gény). The contemporary doctrines live today still on this fundamental asset for the legal reflection.

In the common opinion of the French academics, a good knowledge of contract law proves to be essential to the training of very good lawyer. Indeed, it is not rare that very technical special dispute (see insoluble) is not solved by a recourse to the common right of the contract (V. e.g., the prohibition of the practice of the surrogate mothers starting from a reasoning carried out thanks to a contractual analysis of the relation tied between the " parents" and the surrogate mother).

Debates

The contract law thus seems a rich matter of its tradition. It is not rare however to read under the feather of most eminent reproaches supported with regard to this preserving discipline. That, it is generally answered that the ideology of the Civil code founded on the property and the contract is put up badly with the intervention to the legislator and other manifestation of modernity in right. This matter should nevertheless be moderated. The evolution of the contract law since the middle of the XXe century shows that the doctrines and the Court of appeal knew to develop concert a renewed approach of the contractual relations. Thus, whether they approve or reject the massive intervention of the legislator and the judge on the contractual instrument, the specialists in the contract law knew to adapt their practices and their speeches.

The specialists in the contract law are delighted, in majority, of the renewed interest whose legislator made watch during the contemporary time. The contractual tool, by its flexibility and the promotion of the capacity " créateur" individual will is rented by certain like offering an alternative to the official regulation. For them, the contract constitutes the prototype of the legal document. Under these auspices, the contract appears as the most completed form automatic regulation of the individuals. Thus, the liberal ideology of the Civil code shows it its modernity per hour when the liberal inspirations guide certain interventions of the legislator.

On the other hand, about aucuns worry about this movement, in particular in law the labor, matter where the principle of favor adapts badly with contractual freedom. For this reason, the praise of the contract and the individual will is sometimes received like the demonstration of a form of return to one period former to the Labor regulation during which the contractual relations between the employer and the employee were subjected only to the only scattered provisions of the Civil code interesting the hiring of work. Golden age of freedom for some, period of working exploitation for other, one appreciates at the time of this debate at which point the contract law is never entirely disjoins political and social aspirations moment.

In a manner somewhat different, holding them of legal Solidarism enjoy to imagine a third way between the official constraint and contractual freedom unslung . Been useful by some great authors and sometimes supported by certain decisions of the Court of appeal, this vision, at present, did not allow the development of an alternative model those presented by holding of the official thesis and the flatterers of legal liberalism.

It should however be noticed that, contrary to an generally accepted idea, the interventions of the contractual matter legislator have seldom leaning in the direction of a liberalization of the contract. On the contrary, being studied of the Right of consumption to the Law the labor while passing the duty applicable to the beams, the legislative work of these 40 last years marks by its interventionism. Actually, the rupture seems to be consumed between (alleged?) liberal ideology of the Civil code and the French substantive law. (the question of knowing if the legislator of 1804, writer of the Civil code, were or not inspired by the liberal ideas still makes debate)

Certain recent legislative interventions out of contractual matter lets nevertheless foresee an opposite movement (V. e.g. L. n° 2004-391, known as Loi Fillon, part devoted to the collective bargain). Thus, these interventions come to accredit the thesis of a increasing contractualisation of the business acquaintances permitted by the negocation of derogatory company agreements. By this skew, the negotiators of companies (employees/employers) can choose to draw aside certain provisions of the Labor regulation or collective agreements of branch.

This evolution towards an extension of the field of contractual freedom lets forecast, for some, a return to the contract and the contractual technique in the sphere of the business acquaintances. Taking as a starting point the formula of the American author S. Maine, the partisans of this evolution predict the passage of a right marked by the Statute (represented by the law the labor) to a legislation letting the individuals regulate their conflict of interests by the Contract.

For others, it is purely and simply about a flashback ideologically marked by some Libéralisme . Most critical affirm thus that it is necessary, according to them, to take account of the power struggles between the individuals between them in order to reach better contractual Justice. Thus they justify the interventions of the legislator and the judge called to restore contractual balance and justice in relations marked by the idea that there exists a structural inequality between the partners.

Promise with a future for some, flashback for others, the future will say in which direction the substantive law in law the labor will go, which is primarily dependant on political alternations. Thus, as at the end of the XIXe century, the vigorous debate in contract law nourishes controversies crossing the law the labor. Will it be circumscribed with this only matter? An affirmative response is essential for the moment, because the legislator seems not very inclined to call into question of other famous matters interventionist like the right of consumption.

The challenge

Nevertheless, beyond this debate, for a great number of lawyers, the big challenge of the contract law at this beginning of XXIe century lies in the capacity of the contemporary lawyers to conceive a reform of the right of the obligations. Per hour of European integration and universalization, the French right of the contracts appears, for certain, technically exceeded to see obsolete. Nevertheless, in the contemporary speech, the relative consensus on the causes of its maladjustment at all does not leave place to a unit of point on the means of curing it. (the civil code was written in 1804, and remains unchanged since then essentially of these relative tendencies to the right of the obligations, which is not the case of the right of the family or the right of the people who have only little to see with the original drafting)

Thus some propose to initiate the drafting of a European Civil code or all less European Code of the obligations . In response with this project, some object that the European Union does not have any political legitimacy, nor legal likely to lead the States to adopt a legislation unified out of contractual matter. Always according to these detractors, contractual, a single applicable matter EU law on the territory of the European Union, would be a factor of regression and of inefficiency . A regression first of all because the civil law, and to the first chief the contract law, would belong for the latter to the inheritance national collective , and would be as a such integral part of the national identity.

The latter raise moreover that the other great whole of the sphere cultivates emulously their differences as regards contract law, following the example federate States of the United States between them, or the Canada and of these same the United States. According to the opponents with the idea of a European Code , these countries know only one form very " primitive" of harmonization of the contract law, without to suffer from their methodological and conceptual differences. Better, always according to the latter, it would be proven that the relations enter these units would be all the more harmonious and effective (on the legal level) that a form of virtuous competition between close legal systems would have created for itself.

According to the majority opinion of the specialists in the matter, the evolution of the European unit has, and will have in the future, a great influence on the contract law. Some are delighted some, others distinguish a danger to coherence there from the matter.

In quantitative term, the influence of the legislation of the European Union on the contract law of the Member States is considerable right now. The competence of the Union as regards regulation of work or consumption leads each year the French legislator to transpose a great number of directives modifying the contents of the substantive law. The partisans of the European influence point out nevertheless that the French right is often used as model during the adoption of a directive or a European regulation. On the other hand, the lawyers attached to legal sovereignty French deplore the influence of an entity external with the Nation.

These arguments are seldom exposed with such a crudeness , the partisans of the two theses very often masking their opinions relating to the European influence behind readily technical remarks. Nevertheless, there still, the influence of the political and social ideas mark their influences on the contract law.

Classic authors of the contract law (France)

See too

  • V. Heuzé, disillusioned Europe, JCP ED. G 2005 I 157, article of Vincent Heuzé

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