Make the Code Civil great again: M-EPLI Talk with Dr. Matthias Martin – “R.I.P. Cause (1804-2016): A Paradigmatic Shift in the French Law of Obligations”

By William Bull and Tara Benjamin (European Law School Bachelor student)

 

On 9th November 2016, M-EPLI had the pleasure of hosting Dr. Matthias Martin from the Université de Bretagne Sud, who delivered a talk on the recent reforms of the French civil code, and in particular, the ‘death’ of cause in French contract law.

With its proud historical origins rooted in the era of Napoleon Bonaparte, the French Code Civil stands apart from other civil law systems insofar as the law of obligations it embodies has not been the object of any fundamental reforms in the last 200 years. For this reason, the recent reform of the Code Civil (Ordinance 2016-131, February 10 2016) is widely viewed not only as a substantive change but also a symbolic shift in French private law. Although, according to Dr. Martin, the reform does not constitute a full-blown revolution; rather it should be understood as ‘just a revolt.’

Substantively speaking, the reform also does not have a major impact on French private law as such. The most significant change it has introduced is the merger of the former requirements of cause and object, which it has condensed into a simpler concept of ‘content’, thereby effectively eliminating the cause requirement as a distinct doctrine. There had been three previous attempts to reform this aspect of the Code Civil, but all of these ran into difficulties. The first two were initiated by independent legal scholars, but reforms proposed by individuals proved to engender a battle of egos and obstructed the successful reform of the Code. These were then followed by another attempt initiated by government, but ultimately this did not see the light of day either. In fact, even the mere renumbering of articles of the civil code was seen as a controversial issue, so it should come as little surprise that the idea of repealing or amending entire provisions sparked fierce debate across the nation.

What finally allowed for a successful reform was the somewhat unusual choice of the government to bypass the legislature and conclude the reforms without a parliamentary vote; that is, by way of an executive ordinance. The main motivations of the government behind the reform were, first and foremost, the pressing need to modernise and update the civil code and, second, the desire to, in Dr. Martin’s words, ‘make the Code Civil great again’. Cause is a complex concept and was a source of unclarity and uncertainty in French contract law. It is therefore expected that a comprehensible and concise provision on contract formation will render the civil code more understandable and accessible. Dr. Martin for one supports the abolition of cause, characterising it as a convoluted doctrine that has become redundant in modern society.

During the subsequent discussion of the talk among M-EPLI fellows and other participants, the central question that was raised concerned the effect the abolition of cause would have on foreign countries that constructed their legal systems on the foundation of the French model, and which still have cause as a requirement for the formation of a binding contract. On the one hand, it was argued that the abolition of cause in France may set an example for countries like Belgium, Italy and Spain, to name but a few. On the other hand, though, it was pointed out that any such effect would probably be limited, as many legal systems have already thrived for many years without cause, and also international regimes such as the CISG do not include a cause requirement. Nevertheless, the fact that France has finally reformed its civil code after centuries of preservation of its original form might provide an impetus for other countries to follow suit; although whether this is so only time will tell of course.

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