Abstract
The Code Civil has enjoyed a very special status in French law since 1804. This is due to the matters it covers and to the intrinsic qualities of its provisions, but also to its political and symbolic significance. Over the last decades, however, this status has been increasingly challenged by the development of supra-legislative rules and a strong ‘decodification’ movement, resulting in ever growing areas of private law being regulated outside the Code. The legislator has reacted by reforming parts of the Code Civil, mostly in the field of personal status and family law. However, what is generally regarded as the heart of the Code Civil, i.e. property law and the law of obligations, has remained to a large extent unchanged since 1804. Most lawyers agree that a reform of these parts of the Code is now overdue, but it not so easy to alter a national monument! A reform of the law of obligations in the Code Civil is now on the agenda, but its precise contents are not yet known and expectations among French lawyers are running high.
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Notes
- 1.
For an excellent introduction to French law, in English, see John Bell, Sophie Boyron and Simon Whittaker, Principles of French Law (2nd ed., Oxford: Oxford University Press, 2008).
- 2.
On the history of French civil law, see Jean-Philippe Lévy and André Castaldo, Histoire du droit civil (Paris: Dalloz, 2002).
- 3.
A translation into English of the Code Civil, as well as of some other major French codes, can be found on the official legal website of the French government: http://www.legifrance.gouv.fr
- 4.
The contents of the Napoleonic Code Civil were of course also very important in that respect. Whether it be in the field of property law or of personal and family law, the Code turned its back on the former feudal and stratified society, by recognising the equality of all citizens in civil matters (with some exceptions regarding married women) and establishing new types of property rights, more adapted to a merchant and capitalist society. For these reasons, and because it came from the land of the Great Revolution, the Code Civil became a symbol and an object of desire for political liberals in many parts of the Western world – as well as an object of hatred for many political conservatives!
- 5.
It goes without saying that codification turned France into a country of ‘written law’ (as opposed to judge-made law). This has weighed all the more heavily on French legal culture, as a very strict view of the role of judges and case law prevailed until recently in legal discourse: it used to be said that judges should only be ‘the mouth of the law’, i.e. apply the rules set by the legislator, and should therefore not create new rules or even adapt existing ones. The fact that this principle has long been proved false by judicial practice has not significantly modified the traditional view, according to which France is a written law country.
- 6.
B. Oppetit, Essai sur la codification (Paris: Presses universitaires de France, 1998).
- 7.
- 8.
As is well known, many provisions of the Code Civil on the law of obligations are actually cut and paste from either Domat (1625–1696) or, more often, Pothier (1699–1772).
- 9.
This has been its official name up to this day, even if the Government and Parliament seem to ignore it.
- 10.
This is true for some overseas territories. A few specific rules also apply, in mainland France, to Alsace and Moselle, as a result of these départements having belonged to Germany between 1870 and 1918.
- 11.
One thinks of course, first of all, of article 1134, which provides that contracts are binding onto the parties: “Les conventions légalement formées tiennent lieu de loi à ceux qui les ont faites.” But one could also mention articles 544, 1382 or 2279 (now 2276).
- 12.
This, of course, makes the theory according to which judge should only be the mouth of the law an illusion, at least in the field of civil law.
- 13.
For more details on constitutional review, see Pascale Deumier, Introduction générale au droit (Paris: LGDJ, 2011), 299–304.
- 14.
The French Constitution of 1958 contains no Bill of rights or equivalent. It makes a reference to the 1789 Déclaration des droits de l’homme et du citoyen, however, and in 1971 the Conseil constitutionnel ruled that the Declaration was in fact part of the Constitution. Nowadays, the impact of the Constitution on civil law is mostly, though not exclusively, that of the Déclaration.
- 15.
See Les Nouveaux cahiers du Conseil constitutionnel, n. 31, 2011: “Le Conseil constitutionnel et le droit des biens et des obligations”.
- 16.
Article 55 of the Constitution.
- 17.
See below Sect. 8.2.2.2.
- 18.
Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products, Official Journal L 210, 7.8.1985, 29–33.
- 19.
See Jean-Sébastien Borghetti, La responsabilité du fait des produits. Étude de droit comparé (Paris: LGDJ, 2004), 507–508.
- 20.
On the incidence of the ECHR on French civil law generally, see Anne Debet, L’Influence de la convention européenne des droits de l’homme sur le droit civil (Paris: Dalloz, 2002).
- 21.
See e.g. European Court of Human Rights, 13 July 2004, Pla and Puncernau v. Andorre, req. 69498/01.
- 22.
The actual title of the third part of the Code Civil is “Des différentes manières dont on acquiert la propriété” (Of the different ways through which ownership is acquired). It has long been acknowledged, however, that this title is not adequate and does not really express the contents of this part, which deals mostly with the law of obligations, but also with the law of inheritance and patrimonial relations between spouses (which is the reason why ‘obligations’ could not be chosen as a title in the first place).
- 23.
The code also contains (since 2004) a very short fifth part dealing with the rules specific to Mayotte, a small French overseas territory with a special status.
- 24.
At one time, the rules regarding the acquisition of the French nationality had been brought out of the Code Civil and made the subject of a code of their own (Code de la nationalité française), but they are again to be found in the Code Civil since 1993.
- 25.
Article 9.
- 26.
Articles 16 ff.
- 27.
One could also mention the 1965 statute on the collective ownership of buildings, which has not been integrated into the Code.
- 28.
See esp. article 1107 of the Civil Code.
- 29.
Consumer protection is a competence of the European Union and the Union has adopted many directives in that field. The result of it, is that the greater part of consumer protection law in the Member States is actually made of European Union rules.
- 30.
This choice was made when Germany reformed its law of obligations in 2001.
- 31.
Articles 1780 and 1781.
- 32.
The adoption of the Labour Code (Code du travail) started in 1910.
- 33.
There now exists a Code de la construction et de l’habitation.
- 34.
As is well known, the BGB was adopted in 1896 and came into force in 1900.
- 35.
Even though it was also criticised by some authors in Germany for having left aside difficult questions raised by the contemporary social situation.
- 36.
But the project was a major source of inspiration for the new Italian Civil Code adopted of 1942.
- 37.
The Commission was established in June 1945 and presided by Léon Julliot de la Morandière, a distinguished civil lawyer.
- 38.
Divorce, for example, which was possible under the 1804 Code Civil, was suppressed in 1814 and reintroduced into the Code in 1886 only.
- 39.
The single most important modification in the third part of the code had been the above-mentioned introduction of the provisions on product liability in 1998.
- 40.
Two years before, however, in 2002, a commission was set up by the ministry of Justice in order to translate into French law a 1999 European directive on the sale of consumer goods. In Germany, the translation of this directive was the occasion of the big Schuldrechtsreform (reform of the law of obligations) of 2001. In France, nothing as grand was contemplated. At that time, reforming the whole law of obligations was not regarded as an option. However, some wanted to seize the opportunity of this new directive to reform the law of guarantees in the contract of sales in general, and not just in consumer sales. The commission which had been set up by the ministry therefore suggested that the whole law of guarantees in the contract of sales be redesigned along the lines of the directive. The idea was to turn the regime set up by the Directive into the common law of guarantees in the contract of sales (consumer and professional sales alike), and to get rid of the current system of guarantees in ‘Code Civil’ sales, which is extremely complicated. But this suggestion met with fierce criticism. Business circles, first of all, were opposed to the reform, as they are to nearly all reforms modifying the rules in the field of civil law. Besides, some lawyers opposed the suggested reform because they refused that the law of sales be based on European law. Their argument was that if the French law of sales, and not just the law of consumer sales, was based on EU law, France would not be free to amend this piece of legislation and thus the Parliament would relinquish its power over part of the Civil Code. Whatever the truth of this argument, the fact is that the proposal made by the commission was cast away and no real reform of the law of sales was carried out. The 1999 Directive was finally translated in 2005 into the Consumer Code, not the Civil Code, and the new consumer sale guarantees have simply been added to the existing ones provided for in the Code Civil. This first limited attempt at reforming the French law of obligations was therefore a failure. In the end, there was no reform, but only the piling up of a new regime on top the existing ones, and outside de Code Civil.
- 41.
P. Catala, ed., Avant-projet de réforme du droit des obligations et de la prescription (Paris: La Documentation française, 2005). An English translation of the Projet can be found in Stefan Vogenauer, John Cartwright and Simon Whittaker, ed., Reforming the French Law of Obligations, Comparative Reflections on the Avant-projet de réforme du droit des obligations et de la prescription (‘the Avant-projet Catala’) (Oxford: Hart Publishing, 2009).
- 42.
F. Terré, ed., Pour une réforme du droit des contrats (Paris: Dalloz, 2009).
- 43.
F. Terré, ed., Pour une réforme du droit de la responsabilité civile (Paris: Dalloz, 2011).
- 44.
Ordonnance du 21 avril 2006. The text only deals with sûretés réelles, and not with sûretés personnelles. This text also separated securities law from the rest of the law of obligations and brought it into a newly created fourth part of the Code Civil.
- 45.
Loi du 17 juin 2008.
- 46.
The sections on sûretés personnelles have not been reformed either. But they now stand in the recently created fourth part, dealing with the law of securities.
- 47.
A special statute was also adopted in 1965 on the subject of collective ownership of buildings. It has remained outside the Code up to this day.
- 48.
Propositions de l‘Association Henri Capitant pour une réforme du droit des biens (Paris: Litec, 2009). The draft was written by a commission chaired by professor Hugues Périnet-Marquet.
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Borghetti, JS. (2013). French Law. In: Rivera, J. (eds) The Scope and Structure of Civil Codes. Ius Gentium: Comparative Perspectives on Law and Justice, vol 32. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-7942-6_8
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