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Introduction to french law

Version 190612

Erik Van Den Haute

on 5 July 2016

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Transcript of Introduction to french law

Contract formation

=> mainly, based on the sole consent

Exceptionally : under requirement of traditio / fulfillement of formalities
Introduction to French
private law

476 AD
Incursions of the Franks and frankish state (e.g. Loi Salique / Salian Law)
Germanic states : Visigoth and Burgundian kingdoms (e.g. Lex romana Wisigothorum)
South of France : universities of
Montpellier and Toulouse (XIIth
century) "Droit écrit" (roman law)
North of France : customary law
"droit coutumier" (Germanic
Sharpeness of the division : roman law in the south of France, customary law in the north of France ?

e.g. contract law :
ratione imperii sed imperio rationes
What is the main difficulty with customary law ?
Ordonnance de Montil-les-Tours (1454) :

first step to unification of customary law

and reinstatement of Parliament

King = fountain of justice
« Is it not an absurd and terrible thing
that what is true in one village is false in another ? What kind of barbarism is it that citizens must live under different laws ? … When you travel in this kingdom you change legal systems as often as you change horses »
New social order

Legislations became radically individualistic in the area of private law
Law of successions : no more privileges of primogeniture or age and sex after 1791 : all heirs of equal degree succeed in equal parts to the property

After 1793 : power of disposing of one’s goods by will is abolished

Patria potestas is abolished

Marriage should be regarded as a civil contract : either spouse can announce his/her wish to terminate the contract and then obtain the divorce on the sole basis of « incompatibility of temperament or character »

Illegitimate children recognized by their parents equal legitimate children (except for adulterine children in successions)
« A code of civil law common to the whole kingdom will be drawn up »
First draft of Cambacérès : 697 articles
Style: very accessible
Rights of spouses in the administration of their property

Law of divorce :

Husband can demand divorce simply by proving his wife’s adultery

Wife can only obtain divorce on the ground of her husband’s adultery « when he has kept his mistress in the matrimonial home »

Portalis :

« The infidelity of a wife bespeaks greater vice and has more dangerous consequences than that of a husband »
« The tasks of legislation is to determine the general maxims of law, taking a large view of the matter. It must establish principles rich in implications rather than descend into the details of every question which might possibly arise. The application of the law belongs to the magistrate and to the lawyer, steeped into the general spirit of the legislation »
Art. 4 Code civil


if a judge refuses to make a decision on the ground that the law is silent or obscure or inadequate, he may be held responsible

Leading role of the courts in adjusting the rules of the Code to modern requirements
200 years later

- Livre préliminaire

- Livre Ier (« Des personnes »)

- Livre 2 (« Des biens et des différentes modifications de la propriété »)

- Livre 3 (« Des différentes manières dont on acquiert la propriété »)
Des différentes manières dont on acquiert la propriété :

- Rules of inheritance
- General law of contract (« des obligations contractuelles »)
- Obligations formed without contract
- Tort law
- Matrimonial property law
- Special contracts
- Security rights and prescription
Jus in rem
(droits réels)
- Right of ownership (« droit de propriété »)
- Usufruct (« droit d’usufruit »)
- Right of use (« droit d’usage »)
- Right of habitation (« habitation »)
- Encumbrances (« servitudes prédiales »)
- Rights of occupation (« superficie » and « emphytéose »)
- Pledge (« gage »)
- Mortgage (« hypothèque »)
Numerus Clausus
Ownership and possession : "Je t'aime, moi non plus"
What is possession ?

A merely factual situation with important legal consequences

Art. 2279 C.civ. : one article, 2 rules
How is possession protected before the Courts ?
Action possessoire

Action petitoire
"En fait de meubles, possession vaut titre"
verus dominus
verus dominus
Presumption by law
Acquisitive prescription in good faith
Jus in personam
(droits de créance)

Unjustified enrichment

Tort law
Definition (intention to have legal consequences)


Consent (has to be serious)
Object (Quid debetur ?)
Causa (Cur debetur ?)
Causa :
Related to the obligation itself (« conception objective »)
Related to the contract as a whole (« conception subjective »)
Position of the Cour de Cassation
Contract formation
Offer :

- Content

- How long is the offer valid

- What happens if the offer is revoked
before it's expiry date ?
(1) As there is not yet any contract, no contractual liability

(2) Tort law (culpa in contrahendo): fault leading to damages

(3) "Engagement par déclaration unilatérale de volonté" (obligation resulting from a unilateral expressed will)

(4) What about specific performance ?
- Offer adressed to the public ?
When & where is the contract completed ?

"Théorie de l'émission"

"Théorie de la réception"
Performance of the contract :
obligation de moyen


obligation de résultat
Art. 1137

An obligation to watch over the preservation of a thing, whether the agreement has as its object the profit of one party, or it has as its object their common profit, compels the one who is responsible to give it all the care of a prudent administrator.

That obligation is more or less extensive as regards certain contracts, whose effects, in this respect, are explained under the Titles which relate to them.
Art. 1147


A debtor shall be ordered to pay damages, if there is occasion, either by reason of the non-performance of the obligation, or by reason of delay in performing, whenever he does not prove that the non-performance comes from an external cause which may not be ascribed to him, although there is no bad faith on his part.
What is important ?
(1) Know your obligation
(2) What is the factor of uncertainty
to obtain the promised result and to what extent does this depend from the
debtor himself ?
General principle :
one cannot take justice in its own hands
art. 1184 C.civ.
A condition subsequent is always implied in synallagmatic contracts, for the case where one of the two parties does
not carry out his undertaking.
In that case, the contract is not avoided as of right. The party towards whom the undertaking has not been fulfilled
has the choice either to compel the other to fulfil the agreement when it is possible, or to request its avoidance with
Avoidance must be applied for in court, and the defendant may be granted time according to circumstances.

Article 1141 C.civ.
Any obligation to do or not to do resolves itself into damages, in case of non-performance on the part of the debtor.
Article 1144 C.civ.
A creditor may also, in case of non-performance, be authorized to have the obligation performed himself, at the
debtor's expense .The latter may be ordered to advance the sums necessary for that performance.
Specific performance except :

- when it has become impossible

- when it is of no use anymore

- when the breach is more serious
Specific performance as a general principle ?
art. 1382 C.civ.
Any act whatever of man, which causes damage to another, obliges the one by whose fault it occurred, to compensate it.

Projet de réforme P. Catala : droit des obligations et droit de la prescription (2005)

Projet de réforme Terré

Réforme du droit des sûretés (2006)

Restatement of 2015
2004 : two centuries of Code civil
Cour de cassation
Conseil constitutionnel
Conseil d'Etat
style of decisions
what kind of jurisdiction is the Cour de cassation ?
what kind of filter ?
- Classical procedure

- New procedure
Prime Minister
President of National Assembly
President of Senate
60 members of Parliament
60 senators
Conseil constitutionnel
"Question prioritaire de constitutionnalité"
Only for provisions of law which have not yet been approved by the President !
Cour de cassation /
Conseil d'Etat
Conseil constitutionnel
Any kind of legal provision, including legal provisions which have already entered into force
Erik Van den Haute
Capita selecta
Mr. Haddock and his wife Castafiore book a family holiday to Thailand for the following february. Three weeks before their trip, South-East Asia is devasted by a tsunami of unprecedented magnitude. Thailand is one of the worst affected countries. The travel agency informs the family that the city in Thailand the family is due to visit is only slightly affected. The hotel and the beach resort remain intact. However, many of the inhabitants of the region, as well as many of the employees of the hotel, have lost family members who worked in the most devastated regions. There is no special risk of there being another tsunami in the coming months.

Mr. Haddock and his wife are shaken by the devastation and considers it inappropriate to take a vacation in one of the countries most heavily affected by the tsunami and would find it impossible to relax and enjoy the stay. The Tour operator however considers Haddock is bound by the contract and thinks that he is entitled to compensation if Haddock does cancel the contract.
contract is void
Company Tintin is a wholesaler of wine-producing material. The company sells corks that it buys from its supplier, a cork-manufacturing company, Snowy. Tintin sells 50.000 corks made by Snowy, to the wine-grower Dipardieu. Before delivering them to Dipardieu, Tintin does not check them. Dipardieu uses the corks for the bottles of wine he produces. When going to sell the bottles, Dipardieu discovers there is mould in them. The mould has formed due to a defect in the corks. Dipardieu claims the value of 50.000 bottles of ruined wine as compensation from Tintin. Tintin invokes as a defence that Snowy has always delivered products of high quality, that there was no reason to believe that the corks from this delivery were substandard and that the damage is not due to Tintin's fault.
Abuse of right
Tort law
General principles of Law
pactus legis salicae
Lex romana wisigothorum
Second draft of Cambacérès: 297 articles
Third draft of Cambacérès...1799
Balance between customary law (droit coutumier) and written law (droit écrit)
Product of the french revolution but with a large number of traditional legal institutions
Influence of natural law
General maxims of law
3 apartments
Art. 1134 C.civ.
(1) Legally formed agreements shall act as law for those who have made them
(2) They may only be revoked by mutual consent, or for reasons permitted by law.
(3) They must be performed in good faith
A debtor shall be ordered to pay damages, if there is occasion, either by reason of the non-performance of the obligation, or by reason of delay in performing, whenever he does not prove that the non-performance comes from an external cause which may not be ascribed to him, although there is no bad faith on his part.
art. 1147 C.civ.
Damages are not appropriate where a debtor was prevented from transferring or from doing that which he was bound to do, or did what he was forbidden from doing, because of force majeure or of an unexpected event
art. 1148 C.civ.
art. 1138 C.civ.
1. The obligation to deliver a thing is completed by the sole consent of the contracting parties.

2. The obligation makes the creditor the owner and places the thing at his own risk from the moment when it should have been delivered, even if the delivery has not been made, unless the debtor is in default of delivery, in which case the thing remains at the risk of the latter.
Where a thing which one is bound to deliver to two persons successively is a chattel, the one of the two who has been put in actual possession is preferred and remains owner of it, even though his title is subsequent as to date, provided however that the possession is in good faith
art. 1141 C.civ.
The sale is completed between parties, and ownership of the property passes from the seller to the buyer, as soon as the thing and the price have been agreed upon, even though the thing has not yet been delivered nor the price paid.
art. 1583 C.civ.
(1) With regard to chattels, possession is equivalent to a title
(2) Nevertheless, someone who has lost something or had something stolen can claim it back from the person who has it for the three years from the day of the loss or theft; subject to the remedy of the latter against the person he obtained it from
art. 2279 [2276] C.civ.
nobility of the robe
Legal Education
Lawyer (Avocat)
4 years of legal education in a French university
MA2 (not compulsory)
Exam Ecole des Avocats (24 months of training)
Concours Ecole Nationale de la Magistrature
3 years of training
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