The proposal to reform the French Civil Code of 1804 (the “Avant-projet Catala”) was published in 2005. It was the first major attempt for 50 years to review the obligations provisions of the Code and to bring them into line with modern conditions. The difficult choice facing the drafters in this exercise was to balance restatement against reform, tinkering (toilettage) against rethinking. In the end, the drafters favoured the former. The collection of essays brought together in Reforming the French Law of Obligations is valuable not so much for its assessment of the modest character of the Avant-projet itself, but for its critical review of key areas in the current state of French law. It provides examples of succinct, readable and thoughtful analysis, often provided from outside France. By presenting debates between French and UK-based scholars, the book is also a good showcase of the quality of scholarship on French law in the UK, which is often far more reflective than that in France.
In relation to the centenary of the Code a commission was set up to look at its revision, but it got nowhere. A proposal was put forward in 1954 for the hundred and fiftieth anniversary, and its proposals came to nothing: see R. Houin, ‘La technique de la réforme des codes français de droit privé’ (1956) 8 Revue international de droit compare 9. So, will the revision proposed for the bicentenary fare any better? To date, as Vogenauer points out in the introduction (p. 5), 254 of its original 286 articles are still in force. This suggests little appetite for major reform of the law of obligations (unlike the wholesale reform that has taken place in the provisions on family law). At the time of writing, the Ministry of Justice has completed the consultation on separate further drafts relating to contracts and delictual liability, so actual legislation is some way off.
The book is a well-structured attempt to have a systematic debate on the main issues confronting the reform of the French law of obligations. The structure is to have a presentation by a French author, followed by a focused critique from a common lawyer, with summaries of the discussion kept to the end of the book. The key to the success of this format is whether the French lawyers were prepared to examine the Avant-projet proposals critically or would just explain and defend them or the existing law. On the whole, the French writers adopted a more limited and expository approach to their brief, so that much of the serious critical commentary on current French law and attempts to reform it comes from their interlocutors from abroad.
On the topic of negotiation and renegotiation, the leading French expert Fauvarque-Cosson provides a European context to the proposed revisions to the Catala provisions. As Cartwright points out in response, these provisions are conservative in relation to the existing law. He is able to provide a more extensive analysis of the existing French law and a comparative challenge to its points of reference. His chapter is valuable for stating succinctly the points he has elaborated elsewhere about the difference between English and French philosophies in this area. Both authors concur that, unlike many other European systems, English and French laws do not want the judges to determine the terms of the contract.
Rochfeld's analysis of the provisions on cause provides an explanation of how the concept has been used in recent years to protect weaker parties from abuse. But the fundamental question about the coherence and utility of the concept is not fully addressed. In contrast, Sefton-Green challenges the value of the concept with a short, but penetrating analysis of French law and the discretionary power this leaves with the judge. Beale (p. 414) reinforces this by considering how far French law turns out to be more paternalist than English law.
A further distinction in approach between the systems lies in the strong emphasis on performance in French law. Laithier explains the continuity between French doctrine and the Catala proposals. Miller enhances the explanation by showing the way in which the Avant-projet provides a more central place for performance than in the original Civil Code, though very much in line with current French legal theory. It is Miller who raises the question whether the underlying values of French law and the Avant-projet will serve as a bulwark against European harmonisation, rather than pave the way for a more unified contract law.
Among French authors, Fabre Magnan is more willing to criticise the failure to undertake radical reform. Writing on the termination of contract, she suggests that the Avant-projet has missed the opportunity to move away from a uniform regime of termination and produce one which is adapted to the variety of contractual circumstances. In this, she engages in some detailed comparison with other legal systems. In a similar vein, Whittaker provides substantial material which show how inadequate the attempt at reform is. In this exchange, we have a good example of how the model of commentary espoused by the editors works very successfully and insightfully.
Mazeaud's analysis of the provisions on third parties is characteristically clear, but very much that of a miniaturist within the confines of French law. A provision (art. 1342) giving contractual (as opposed to non-contractual) rights of action to the third party in the case of non-performance of the contract is hailed as “revolutionary”. But it is left to Vogenauer to bring out the fundamental consistency of the proposals with much of existing or recent case law and doctrine, and then to assess them in the context of developments within the rest of Europe. The broader canvas thus provided is more satisfactory as a basis for assessing French law, and it leads Vogenauer to be more trenchant than Mazeaud in his criticisms of some of the proposals (e.g. in relation to the existing art. 1119 of the Civil Code).
The debate on fault between Borghetti and Giliker is well balanced. Both are critical of the current French approach to fault and of the Avant-projet. The brevity of the 1804 provisions is no longer appropriate in the modern world and more guidance is needed to control the judge and to settle insurance liability. Borghetti is particularly good in identifying the current questions which the Avant-projet failed to address.
The discussion of damages by Rémy-Corlay and Rowan presents two complementary contributions which are comparative. The first focuses on the measure of damages and their basis and the second more specifically with the innovation in the Avant-projet of punitive damages. Both acknowledge the extent to which the proposals are advances on the current state of French law, but neither considers that the proposals have been fully thought out. These authors are willing to review the law in the light of its underlying theory and overall policy, which provide a framework for critique.
On the whole, the French authors persuade the reader that the Avant-projet is fundamentally a coherent and systematic restatement of current French doctrine and case law. The text is brought into line with the way the law is being interpreted and applied. Generally the French chapters contain less theory and policy than the common law respondents. This might be a reflection of the different character of French scholarship these days – more focused in private law on doctrinal systematic than in reviewing the purposes of the law, as did Carbonnier, Josserand, Ripert, Saleilles, Savatier and Tunc in the first part of the twentieth century. But it also shows the scholarship that has developed in the common law world in the same period – able to conduct its own independent research on French law and produce thoughtful criticism enriched by theory and policy.
The book helpfully contains the text of the proposals and the official commentary and a very good English translation put in parallel with the original French text. The authors also explain some of the difficulties of the translation. In undertaking this work, they have made available (in accessible English) a work of reflection. Even if the text of proposals does change, this book will be an important point of reference for an understanding of the contemporary problems of French law. It is also essential reading for those who believe, unlike Beale (p. 415) that a European harmonisation of contract law is possible within the coming few decades.
