Fundamental Rights in the French Contract Law Reform

Abstract

Introduction On 10 February 2016, the French Government's ordonnance (hereafter: the 2016 ordonnance ), leading to a comprehensive revision of Book III of the 1804 Civil Code on general contract law, was published in the Journal Officiel . The new statutory rules should come into force on 1 October 2016, without the First and the Second Chambers having either amended or adopted each single provision of the revised Book III, following lengthy and stormy debates. In February 2015, the Chambers entrusted the Government with the overall reform of French general contract law. With this reform project, the French Government, more precisely the Ministry of Justice, pursued two major objectives, namely the strengthening of legal security and accessibility (respectively readability) of French contract law. General contract law is currently overwhelmingly case law based. As even the Government itself has observed, French general contract law is on many issues rather unsystematic and unclear, at least for French laymen and foreign legal observers. Regarding legal security, governmental drafters opted for a codification a droit constant , which, besides continuity of the law, secures the French legal community's agreement to the revision of Book III of the Civil Code. The final version of Book III as enacted by the 2016 ordonnance was preceded by several governmental drafts, the latest being the 2013 draft ordonnance . The 2013 draft ordonnance was published and later submitted to public consultation by the Ministry of Justice, and was also translated into English. The 2013 draft version of Book III and the 2016 ordonnance diff er from each other. Some early comments already refer to the more conservative nature of the 2016 ordonnance . One of the changes between the 2013 draft and the 2016 ordonnance is worth singling out, since it concerns the general principles of contract law, specifically the freedom of contract and one of its opposites, fundamental rights and liberties (hereafter: FR).