The French Reform of Contracts: An Opportunity to Tie Together the Community of Civil Lawyers

• Author: Michel Séjean
• Position: Professor of law at the Université Bretagne Sud (University of Southern Brittany), and Editor-in-Chief of the Henri Capitant Law Review, a bilingual law review in French and English.
• Pages: 1151-1161

The French Reform of Contracts: An Opportunity to Tie Together the Community of Civil Lawyers Michel Séjean * INTRODUCTION 1 In 2014, in front of the French Senate, Minister of Justice Christiane Taubira made the following stark statement regarding the French law of contract’s loss of influence: As you all know, a battle of influence has been waged in Europe, in particular between our continental law—the strength of our law as it is written and designed—and what we call the common law — which has its own influence, its approach of services and of certain professions. This battle has been waged daily and will be waged permanently. Our contract law no longer inspires anybody in the world—those that drew inspiration from it have already moved on to the next step!—let us not be surprised at our loss of influence. Yet, for a long time and on a large scale, France used to influence Europe and the world through law. 2 These words trigger some discomfort. Instead of approaching the relationships between civil law and common law with a metaphor on war —whose outcome implies the winner’s superiority over the loser—it would certainly have been more appropriate to promote civil law as a perfectly valid alternative to any other legal tradition, including common Copyright 2016, by MICHEL SÉJEAN. * Professor of law at the Université Bretagne Sud (University of Southern Brittany), and Editor-in-Chief of the Henri Capitant Law Review , a bilingual law review in French and English. The Author would like to thank the Volume 76 Board of Editors of the Louisiana Law Review for their insight, patience, and constructive criticism. 1. At the time this Essay was written, the Ordinance of February 10, 2016 had not yet been published, and the relevant source was the Draft Reform of February 25, 2015. Because of editorial constraints, the Author made no changes to the original version of this Essay, even though the 2016 Ordinance modifies many aspects of the 2015 Draft, including some parts that the Author criticized. 2. 2014 JOURNAL OFFICIEL DE LA RÉPUBLIQUE FRANÇAISE: SÉNAT 632 (daily ed. Jan. 23, 2014) (statement of Sen. Taubira), available at http://www.senat.fr/séances /s201401/s20140123/s20140123.pdf [https://perma.cc/8JYT-Z75Q] (Author’s translation); See generally CONSEIL D’ÉTAT, L’INFLUENCE INTERNATIONALE DU DROIT FRANÇAIS (2001), available at http://www.ladocumentationfrancaise.fr/var/storage/rap ports-publics/014000702.pdf [https://perma.cc/UY9B-KY9K] (discussing this loss of influence on a global scale). 1152 LOUISIANA LAW REVIEW [Vol. 76 law, without suggesting that it be a superior system of law or dragging the debate on a confrontational ground. In addition, the mere questioning of the French influence abroad may be suspected of reflecting nostalgia of France’s former hegemony, especially in the light of the reasons why the French Civil Code was so influential in the nineteenth century and in the first part of the twentieth century. 3 Of course, no one denies France’s former influence through its Civil Code. According to Zweigert and Kötz, “[o]ther great codes came into force in Central and Western Europe at the end of the eighteenth and the beginning of the nineteenth centuries, but beyond doubt the French Civil Code is intellectually the most significant and historically the most fertile.” 4 But the reasons for this fertility could not be replicated. These reasons are threefold, as Michel Grimaldi explained: 5 the Napoleonic Code exported its influence abroad (1) through the force of arms, 6 (2) through a voluntary assent from peoples attracted to the spirit and the heart of the French culture, 7 and (3) because it was the only Code situated to become a model for other countries. 8 Because none of these reasons endured throughout the twentieth century, however, the French Civil Code gradually lost its influence when other countries updated or upgraded their own civil codes, such as the Netherlands in 1992 or Quebec in 1994. 9 In the twenty-first century, the French Civil Code has not regained its former influence. For example, the 2011 Romanian Civil Code openly drew its inspiration from the 1994 Quebec Civil Code. 10 3. See generally THE INFLUENCE OF THE FRENCH CIVIL CODE ON THE COMMON LAW AND BEYOND (Duncan Fairgrieve ed., 2007); Xavier BlancJouvan, Lecture, Worldwide Influence of the French Civil Code of 1804, on the Occasion of Its Bicentennial Celebration , CORNELL L. SCH. BERGER INT’L SPEAKER PAPERS, Sept. 27, 2004, at 1. 4. KONRAD ZWEIGERT & HEIN KÖTZ, AN INTRODUCTION TO COMPARATIVE LAW 85–86 (Tony Weir trans., Clarendon Press 3d rev. ed. 1998). 5. Michel Grimaldi, L’exportation du Code civil , POUVOIRS, Nov. 2003, at 80. 6. Id. at 81–82. 7. Id. at 82–84. 8. Id. at 84–85. 9. See Xavier Blanc-Jouvan, L’influence du Code civil sur les codifications étrangères récentes , in THE INFLUENCE OF THE FRENCH CIVIL CODE ON THE COMMON LAW AND BEYOND, supra note 2, at 365–400. For Louisiana, see Agustín Parise, Codification of the Law in Louisiana: Early Nineteenth-Century Oscillation Between Continental European and Common Law Systems , 27 TUL. EUR. & CIV. L.F. 133 (2012). 10. See generally Iolanda BoĠ ǜ i & Victor BoĠ ǜ i, Code Civil du Quebec et ses Influences dans la Reforme du Code Civil Roumain [ The Quebec Civil Code and Its Influence on the Reform of the Romanian Civil Code ], 19 BULETIN STIINTIFIC [SCI. BULL.] 52 (2010); see also Ewoud Hondius, Recodification of Private Law in Central and Eastern Europe and in the Netherlands , 2014 ELTE L.J. 51, 53. 2016] THE FRENCH REFORM OF CONTRACTS 1153 While the French Civil Code was losing its influence abroad, its sway was also weakening in France during the second part of the twentieth century despite an attempt to reform it in 1948. 11 French contract law developed outside the confines of the Civil Code through judge-made law, 12 in non-codified statutory provisions, or in other codes, such as the 1993 Consumer Code. 13 This law outside the French Civil Code leads to examining what the current reform of contracts is aiming to achieve aside from this regrettable reference in official speeches to France’s former influence. In its latest version, 14 the reform aims at enhancing French contract law’s intelligibility, predictability, and attractiveness. 15 To that end, the Ministry of Justice made a considerable effort to reach out to other civil law countries, by ordering a translation of the February 25, 2015...