The Code Napoléon Rewritten: French Contract Law after the 2016 Reforms(Studies of the Oxford Institute of European and Comparative Law)

The provisions of the French Civil Code governing the law of obligations have remained largely unchanged since 1804 and have served as the model for civil codes across the world. In 2016, the French Government effected major reforms of the provisions on the law of contract, the general regime of obligations and proof of obligations. This work explores in detail the most interesting new provisions on French contract law in a series of essays by French lawyers and comparative lawyers working on French law and other civil law systems. It will make these fundamental reforms accessible to an English-speaking audience.

Table of Contents:

1. Introduction
SIMON WHITTAKER AND JOHN CARTWRIGHT

Part I: The Background to the Reforms
2. The Process of Elaboration of the Reform of the Law of Contract
BÉNÉDICTE FAUVARQUE-COSSON, JULIETTE GEST AND FRANÇOIS ANCEL
I. Introduction
II. The Context of the Reform
III. The Three Periods of the Process of Reform

Part II: The New Provisions Critically Examined
3. Contracts, Contract Law and Contractual Principle
SIMON WHITTAKER
I. Introduction
II. Identifying ‘Contract Law’
III. The Portrait of French Contract Law in the Reformed Code Civil
IV. Conclusion
A: The Creation of a Valid Contract
4. Formation of Contract: Negotiation and the Process of Agreement
RUTH SEFTON-GREEN
I. Precontractual Negotiations: Freedom and Good Faith
II. Offer and Acceptance
III. Pre-contracts
IV. Conclusion
5. Validity of Contract: Dol, Erreur and Obligation d’Information
CAROLE AUBERT DE VINCELLES
I. Precontractual Information Obligations
II. The Defects in Consent
6. Violence in the Reformed Napoleonic Code: the Surprising Survival of Third Parties
CIARA KENNEFICK
I. Introduction
II. Duress by Third Parties
III. Duress on Third Parties
IV. Conclusion
B: The Content and Effects of Contracts
7. The Content of Contracts: Prestation, Objet, but No Longer la Cause?
LAURENT AYNÈS
I. Introduction
II. From Objet to the Content of the Contract
III. From la Cause to Something in Return (la Contrepartie)
8. The Revolution in Unfair Terms
PHILIPPE STOFFEL-MUNCK
I. Introduction
II. Article 1170: the General Provision
III. Article 1171: the Special Provision
9. Mandatory and Non-mandatory Rules in the New Law of Contract
CÉCILE PÉRÈS
I. Formal Recognition
II. Qualifications on the General Non-mandatory Character of the Provisions
III. The Retreat of Freedom of Contract
10. Does Review on the Ground of Imprévision Breach the Principle of the Binding Force of Contracts?
BÉNÉDICTE FAUVARQUE-COSSON
I. Introduction
II. From Contractual Stability to Greater Flexibility: How New Article 1195 Finally Reached a Good Balance
III. Imprévision in the Reform of Contract Law: Related Issues
IV. Conclusion
11. The Proprietary Effects of Contracts
GENEVIÈVE HELLERINGER
I. Introduction
II. The New Provisions of the Code Civil
III. Critical Appraisal
12. The Effects of Contracts and Third Parties
JEAN-SÉBASTIEN BORGHETTI
I. Introduction
II. The Relative Effect of the Contract
III. The ‘Opposability’ of Contracts
IV. Conclusion
C: Contractual Non-performance and its Remedies
13. Exécution Forcée en Nature
YVES-MARIE LAITHIER
I. Introduction
II. The New Provisions of the Code Civil Relating to the Performance in Kind of Contractual Obligations
III. The State of the Law as it Stood Before the Reform of 10 February 2016
IV. Comparative Perspectives on the New Provisions
V. Critical Observations
14. The Exception d’Inexécution
THOMAS GENICON
I. Introduction
II. Considerations Common to Articles 1219 and 1220
III. Article 1219: The Defence of Proven Non-performance
IV. Article 1220: The Defence of Anticipated Non-performance
15. Termination for Contractual Non-performance
SOLÈNE ROWAN
I. Introduction
II. The New Provisions on Termination: Description and Comparison with the 1804 Code
III. Comparative Observations on the New Provisions of the Code Civil
IV. An Assessment of the New Provisions on Termination
V. Conclusion

Part III: Refl ections from Other Civil Laws
16. The New Design of the French Law of Contract and Obligations: An Italian View
PIETRO SIRENA
I. The French Reform in the Eyes of Italian Scholarship
II. The Rise of a French Law of Obligations within Book III of the Code Napoléon
III. The New Article 1100 Code Napoléon and the Rest of its New Title III on the Sources of Obligations
IV. The New Article 1101 Code Napoléon and the Definition of Contract
V. The New Article 1105 Code Napoléon and the Division between the General Part and the Special Part of Contract Law
VI. The New Article 1128 Code Napoléon and the Requirements for the Validity of Contract
VII. The New Chapter of the Code Napoléon on Formation of Contract and the Duty to Disclose During Precontractual Negotiations
VIII. The Degree of Innovation Afforded by the French Reform and the Meaning of a Contemporary Civil (Re-)Codification
17. A Spanish Perspective on the General Theory of Contract
ESTHER ARROYO AMAYUELAS
I. Introduction
II. General Overview of the Reform (Title III)
III. Some Issues of Interest
IV. Final Reflections
18. La Troisième Jeunesse du Code Civil: A German Lawyer Looks at the Reform of French Contract Law
BIRKE HÄCKER
I. Background
II. General Remarks
III. Specific Comments
IV. Conclusion

John Cartwright is Professor of the Law of Contract at the University of Oxford and Director of the Oxford Law Faculty's Institute of European and Comparative Law.

Simon Whittaker is Professor of European Comparative Law at the University of Oxford.