A Farewell to the bon père de famille
The 21st of January 2014 was a historic moment for private law in Europe. On that day, the French Assemblée Nationale agreed to eliminate any reference to the bon père de famille (the good housefather) from French legislation. The term is still present at fifteen places scattered across the French Civil Code and other statutes. It is not only the holder of usufruct (art. 601 CC), the negotiorum gestor (art. 1374 CC), the tenant (arts. 1728 s 2, 1729 and 1766 CC) and the borrower (art. 1880 CC) that need to behave like a good housefather. Also the Code de la Consommation contains ample references to this person as a measure of what can be expected from a reasonable debtor.
This revision of French law, which is likely to take place later this year, comes with a proposed change of the draft Act on equality among men and women. This change was proposed by the French Green party (Europe Ecologie-Les Verts) that claims that ‘the good housefather is a term that has become redundant and goes back to a patriarchal society.’ The parliamentary discussion was brief. A majority of parliament was in favour and the Minister of Women’s Rights Najat Vallaud-Belkacem let know that she was much in favour of the change in order to promote equality among men and women. Politician for the Green party Brigitte Allain was clearly also personally moved. She is reported to have posed the question: ‘must one have a phallus to be able to act as a diligent debtor?’X The term will be replaced by a simple reference to the reasonable person.
This decision is clearly an important one in the history of European private law. The good housefather was an essential part of European legal heritage. It was through the Roman bonus pater familias that the term entered into the 1804 Code Civil and was subsequently exported to many other countries in the French legal family. The original animator now cuts through the tie with countries in which the term is still used, such as Belgium, Italy, Spain and Malta. Dutch law had already abolished its goede huisvader in 1992 and replaced him by the diligent debtor (although Art. 7A:1781 Dutch Civil Code still contains a reference to him). European principles also apply a more modern measure in the form of what a person ‘would consider to be reasonable’ (art. 1:302 PECL) and the ‘reasonably careful person’ (art. VI-3:102(b) DCFR).
Should this symbolic change of French law be applauded? It was already characterised as totalitarisme linguistique by right wing politicians. I find this unfair criticism. Lawyers are aware that a legal term can be outdated and that the ‘good housefather’, just like his English brother ‘the man on the Clapham omnibus’, refers to both women and men. But we should not underestimate what this term looks like to a layperson, including a first year law student. Last year I wrote an introductory textbook on contract law, and in doing so I tried to use as much as possible neutral terms. Lots of statutes, judicial decisions and textbooks are (implicitly) written from a male perspective. In this respect, the decision of the French parliament must be embraced.