Pushed by European harmonisation, the French Government has tabled a bill in order to reform our two hundred year old law of contract. A draft has been written by the Ministry of Justice and sent to many French lawyers, asking for comments and advice.
It would be great to discuss this project with legal scholars from all over the world on the occasion of the Leiden Law School conference on Interaction between Legal Systems. We would like to send the results of this discussion to the French Ministry of Justice, in order to contribute to the consultation process. This is why we need you!
During our workshop we will focus on the two most controversial points of the current draft:
- the abolition of one of the famous French notions: the cause in the law of obligations,
- the role of judicial intervention when confronted with an unbalanced contract.
Where is the cause?
The notion of cause in French law is as important as the consideration in common law. The cause was designed in 1804 as an instrument to regulate contracts. From time to time the cause has been used to control more deeply both the parties’ motivation (illegal contract such as surrogate motherhood in France) as well as the content of the contract (in view of restoring the economic balance of the obligations). Thus the notion of cause has become a poorly understood container-concept. The reform project aims at simplifying the regulation of the contract, by replacing the cause by new mechanisms. But, in terms of comparative law, are these new techniques sufficient to regulate the contract?
The role of the judge: between enforcing and intervening in an unbalanced contract
A contract can be unbalanced from the start when it contains unfair terms. What should a judge do then? This question concerns us all, since EU regulations require national judges to intervene in consumer contracts. The reform project plans to extend this role to all contracts, without any reference to negotiation or bargaining power. Aren’t we going too far?
A contract can also become unbalanced during its execution. Since 1876 civil courts have refused to review the contract because of unforeseen circumstances. However the tide is turning, as the new project would enable the courts to adjust the contract, if the parties agree, in order to restore the economic equilibrium of the obligations. Is this appropriate?
Please feel welcome to join our workshop at the Leiden Law School conference on Interaction between Legal Systems ‘Room for Reflection’, Friday 23 January 2015, 09:30-11:00h and 11:30-13:00h (sign up).