On Comparing French and English Contract Law: Insights from Social Contract Theory

Abstract

I here argue that the same thought structure that underlies French contract law (contractual interpretation and contractual mistake) also underlies French social contract theory (Rousseau), whereas a different thought structure underlies both English contract law and English social contract theory (Hobbes and Locke). More specifically, I claim that, on the French side, facts and norms tend to be neatly delineated from one another and clear prevalence is given to the norms, whereas, on the English side, facts and norms tend to be interwoven within a clear prevalence of the factual. The immediate purpose of this argument is to show that the differences revealed through a comparative analysis of French and English law in fact are part of a larger pattern of difference between French and English ways of thinking. Less immediately, but no less importantly, the piece is meant to provide an example of comparative law operating as a self-standing academic discipline.