The General Principles of Contract Law in the 'Ordonnance' on the Reform of Contract Law

• Author: Mustapha Mekki
• Position: Professor to the University Paris 13 - Sorbonne Paris Cité, Director of the Research Institute for Attractive Law. This Essay was written as part of the Louisiana Law Review's Symposium of the Civil Law, which was held on March 18, 2016 at the Paul M. Hebert Law Center at Louisiana State University. Special thanks to the Volume 76 Board of ...
• Pages: 1193-1211

The General Principles of Contract Law in the “Ordonnance” on the Reform of Contract Law Mustapha Mekki  INTRODUCTION Finally, the reform of contract law has taken place. After 10 years of waiting, Title III of Book III of the French Civil Code has been revised. 1 The revision was done by “Ordonnance”—legislation developed without going through Parliament. 2 The Ordonnance, which was published in February 2016, 3 contains numerous changes to French contract law that are meant to better align the law with the economic and social realities of today. 4 This Essay is not concerned with all of the intricacies of the reform, but rather will provide analysis of its general principles, namely “good faith” and “freedom of contract,” which are explicitly detailed in the proposal. 5 Copyright 2016, by MUSTAPHA MEKKI.  Professor to the University Paris 13 - Sorbonne Paris Cité, Director of the Research Institute for Attractive Law. This Essay was written as part of the Louisiana Law Review ’s Symposium of the Civil Law, which was held on March 18, 2016 at the Paul M. Hebert Law Center at Louisiana State University. Special thanks to the Volume 76 Board of Editors of the Louisiana Law Review for their editing assistance. 1. See Jean-Jacques Urvoas, Conseil des ministres du 10 février 2016: Réforme du droit des contrats, du régime général et de la preuve d’obligations , VIE PUBLIQUE, http://discours.vie-publique.fr/notices/166000323.html [https://perma.cc/8XCD-8SE L] (last visited Mar. 2, 2016). 2. See id. ; 1958 CONST. art. 38 (Fr.). 3. See Urvoas, supra note 1. 4. See id. ; MINISTÈRE DE LA JUSTICE, RÉPUBLIQUE FRANÇAISE, RÉFORMER LE DROIT DES CONTRATS 1 (Feb. 25, 2015), available at http://www.justice.gouv.fr/publi cation/j21_dp_projet_ord_reforme_contrats_2015.pdf [https://perma.cc/QEP4-SGZ S]; Bénédicte Fauvarque-Cosson, Towards an Important Reform of the French Civil Code , MONTESQUIEU L. REV., Oct. 2015, at 2–3. 5. Ordonnance 2016-131 du 10 février 2016 portant réforme du droit des contrats, du régime général et de la preuve des obligations [Ordonnance 2016-131 of February 10, 2016 on the Reform of Contract Law, and the General Scheme of Proof of Obligations] JOURNAL OFFICIEL DE LA RÉPUBLIQUE FRANÇAISE [J.O.] [OFFICIAL GAZETTE OF FRANCE], Feb. 11, 2016, arts. 1102, 1104, at 26 (Fr.) [hereinafter Ordonnance]. In this Essay, English translations of the final Ordonnance utilize the English translation of the Draft Ordonnance for those portions of the final Ordonnance that are identical to the Draft Ordonnance. For the English language version of the Draft Ordonnance, see MINISTÈRE DE LA JUSTICE, RÉPUBLIQUE FRANÇAISE, DRAFT ORDONNANCE FOR THE REFORM OF THE LAW OF CONTRACT, THE GENERAL REGIME OF OBLIGATIONS, AND PROOF OF OBLIGATIONS arts. 1102, 1103 (J. Cartwright, B. Fauvarque-Cosson & S. Whittaker trans., 2015) [hereinafter DRAFT ORDONNANCE], available at http://www.textes 1194 LOUISIANA LAW REVIEW [Vol. 76 The general principles contained in the Ordonnance are nothing new to the civilian’s conception of contract law, but the form of their presentation is innovative. Unlike in previous Civil Codes, the general principles of good faith and freedom of contract are reflected in express statutory language. 6 Although the Ordonnance does not say that these provisions represent general principles, 7 such a conclusion is clear from both their placement in the Ordonnance and the language of the Enabling Law of February 16, 2015. As Article 8 of the Enabling Law of February 16, 2015 makes clear, the reform aims to, among other things, affirm the general principles of contract law ( principes généraux du droit des contrats ), such as good faith ( bonne foi ) and freedom of contract ( liberté contractuelle ). 8 In the Ordonnance, these principles are expressly provided for by articles 1104 and 1102, respectively, which are contained in a preliminary chapter—within Section 1 of Title III—entitled “Preliminary Provisions” ( Dispositions préliminaires ). 9 This placement is significant because it shows the relative importance of the principles, which are meant to generally apply to all of the articles that follow in Title III, Sub-title 1, concerning the sources of contractual obligations. Although the presentation of general principles is somewhat innovative, overall, the project is quite moderate and does not present a revolution of ideas. Thus, the Ordonnance respects the advice of Portalis: “[C]aution about novelty in legislative matters is necessary because, while it is possible in a new undertaking to calculate the advantages a theory offers, it is impossible to anticipate all the drawbacks that practice alone can .justice.gouv.fr/art_pix/Draft-Ordonnance-for-the-Reform-of-the -Civil-Codepdf.pdf [https://perma.cc/D3LE-T7TN]. For the French language version of the draft Ordonnance, see MINISTÈRE DE LA JUSTICE, RÉPUBLIQUE FRANÇAISE, PROJET D’ORDONNANCE DU PORTANT RÉFORME DU DROIT DES CONTRATS, DU RÉGIME GÉNÉRAL ET DE LA PREUVE DES OBLIGATIONS (2015), available at http://www .justice.gouv.fr/publication/j21_projet_ord_reforme_contrats_2015.pdf [https://per ma.cc/M2WN-28PC]. It is important to note, however, that what was article 1103 in the Draft Ordonnance is now article 1104 in the final Ordonnance. See id. 6. Ordonnance, supra note 5, arts. 1102, 1104. 7. Id. 8. Loi 2015-177 du 16 février 2015 relative à la modernization et à la simplification du droit et des procédures dans les domains de la justice et des affaires intérieures [Law 2015-177 of February 16, 2015 on the Modernization and Simplification of the Law and Procedures in the Areas of Justice and Home Affairs], JOURNAL OFFICIEL DE LA RÉPUBLIQUE FRANÇAISE [J.O.] [OFFICIAL GAZETTE OF FRANCE], Feb. 16, 2015, p. 2961 (Fr.) [hereinafter Enabling Law of February 16, 2015]; see also Augustin Aynès, Dispositions Préliminaires , 118 JOURNAL DE SOCIÉTÉS [J. SOCIÉTÉS] 12 (2014) (Fr.). 9. Ordonnance, supra note 5, arts. 1102, 1104. 2016] GENERAL PRINCIPLES OF CONTRACT LAW 1195 reveal.” 10 This caution, however, does not hinder the project’s attempts to balance economic efficiency and contractual justice. One can see this point by studying the principle of freedom of contract and the principle of good faith as presented in the proposal. 11 These two principles are the pillars of the contractual temple, but context is necessary to fully appreciate and understand them. As a result, this Essay will proceed in two stages, as is customary for French lawyers. First, this Essay will discuss the genesis of the general principles, explaining their origin and relevance. 12 Second, this Essay will examine the content of these general principles, explaining the advantages of the articles as written as well as how to improve them. 13 I. GENESIS OF THE GENERAL PRINCIPLES OF CONTRACT LAW The introduction of general principles in the French Civil Code is not really a surprise, because the spirit of these principles has long existed in positive law. Historically, however, the consecration of these principles has not been explicit. Whereas some scholars support a clearer statement of good faith and freedom of contract, 14 other scholars are opposed to the explicit consecration of general principles in the Civil Code, 15 making some of the reform provisions controversial. 16 To fully comprehend this controversy, one must understand both the emergence of the general principles of contract law and their relevance. A. Emergence of General Principles of Contract Law The emergence of the general principles of French contract law occurred in two respects. First, the development occurred outside of the French legal system, within other civil law jurisdictions and international projects. Next, the development took place within the French legal system. Consequently, this Section will consider both the development beyond French law and the development by French law. 10. Alain Levasseur, Code Napoleon or Code Portalis? , 43 TUL. L. REV. 762, 767 (1969). 11. See Philippe Dupichot, Les principes directeurs du droit français des contrats , REVUE DES CONTRATS [RDC], Jan. 2013, at 387–99. 12. See infra Part I. 13. See infra Part II. 14. Bénédicte Fauvarque-Cosson & Denis Mazeaud, Terminologie contractuelle commune , DROIT COMPARE ET EUROPÉEN, Feb. 2008, at 272. 15. FRANÇOIS TERRÉ, PHILIPPE SIMLER & YVES LEQUETTE, DROIT CIVIL: LES OBLIGATIONS 454 (10th ed. 2009). 16. See infra Part I.B.1. 1196 LOUISIANA LAW REVIEW [Vol. 76 1. Beyond French Law The principles of freedom of contract and good faith expressed in the Ordonnance are not necessarily innovative. There are many foreign civilian codes providing for these general principles. Those codes, however, do not apply the principles uniformly. On the one hand, some codes apply these principles to all subjective rights. Examples include the treatment of good faith in the Swiss 17 and Spanish 18 Civil Codes. On the other hand, some codes apply these principles to contract law only. Examples include the treatment of good faith in the Quebec Civil Code 19 and the treatment of freedom of contract in the Italian 20 and Spanish 21 Civil Codes. Still other jurisdictions, including France under its pre-revision Civil Code, hold the general principles of good faith and freedom of contract to be implicit. 22 In contrast with the French Civil Code, the private (scholars) codes and European projects enshrine these tenets as guidelines or general principles. The general principles are understandably entrenched in scholar’s codes, because the formulation of these principles is very useful for a process of harmonization between legal systems and the principles can be identified by induction of the variety of rules of contract law. Take for example the first Principles of European Contract Law, which begin with “general provisions.” 23 In the general provisions, a principle of freedom of contract, 24 a duty of good faith, 25 and a duty of cooperation are stated. 26 A second example can...