Is Renovating the General Law of Contracts Useful? The French Experience

Abstract

The ordonnance of 10 February 2016 for the reform of contract law, of the general regime and of proof of obligations came into force on 1 October 2016. Further changes were made by the legislator in 2018. This reform modifies one of the most important part of the Code civil: the provisions on contracts and obligations The reform aims at giving more accessibility and clarity to French contract law, and it undeniably has already made it more attractive internationally. In this paper, we explain why, in an international world where contracting parties can chose the law applicable to their contract, we believe that a codified law is very important to overcome the void left by the contract and to resolve the difficulties that have arisen during its existence. Besides, it brings legal certainty, accessibility and visibility. We also explain why we think that a modern general law of contracts is a unique opportunity to propose a base of legal provisions considered as “minimal” and to affirm a specific legal policy. If it is clear, that practitioners and judges should not conceive contract law as the expression of a contractual public order (ordre public contractuel), it is sometimes difficult to know to what extent contracting parties can set aside some provisions of the governing law. Finally, we explain how, after having been for nearly two centuries the instruments of a certain legal nationalism, national codifications have become the cement of European private law. Indeed, the French contract law reform, which was built on the diversity of Europe, drew much inspiration from various European and international models. In turn, it has attracted a great deal of interest abroad, was translated into several languages and is extensively commented.