COMMON CONTRACT LAW
Common contract law is defined by the rules of the Civil Code concerning contracts. These rules define the duties of the contracting parties and derive from the moral principle of respect for the given word, which will give birth in the sixteenth century to the rule of the binding force of agreements. The autonomous source of the obligation becomes the will, regardless of the formality of the expression of consent . The formal nature of contracts is replaced by the principle of consensualism based on the confidence of the beneficiary of the obligation that it will be performed by the debtor of the obligation. The contract thus gives rise in the literal sense of the term to obligations of ” good faith “. In contracts concluded after October 1, 2016, this obligation of good faith is not limited to the execution of contracts but also applies in the negotiation and formation of contracts.
( new article 1104 of the Civil Code )
“ Art. 1104.-Contracts must be negotiated, formed and executed in good faith.
“This provision is of public order .
The principle of contractual freedom , like contractual autonomy and the immutability of agreements, constitute fundamental principles which fall under the law, but the Constitutional Council had refused a constitutional value to the principle of contractual freedom (Constitutional Council, August 3, 1994 , JCP 1995. II. 22,404). The principle of contractual freedom was enshrined in article 1102 of the Civil Code by the ordinance reforming contract law.
“Art. 1102.- Everyone is free to contract or not to contract, to choose his co-contracting party and to determine the content and form of the contract within the limits set by law.
“Contractual freedom does not allow derogating from the rules which concern public order.
BALANCE OF THE CONTRACT
The obligations arising under the contract
” The legally formed agreements take the place of law for those who made them ” (civil code, former art. 1134, para. 1).
The contract is a process of creating standards, resulting from the will of individuals. the binding force of the contract is reflected with regard to the parties by the right to forced execution and the unilateral irrevocability of the agreement
The contract gives rise to obligations to do or not to do, to give or to deliver the thing.
The various general obligations which arise from the contract are provided for by articles 1136 to 1164 of the Civil Code. In addition to these obligations, there are special commitments provided for in the contract.
Lack of foresight
The special contracts
The Civil Code also defines the rules that apply to contracts named under special contracts
Contracts concluded between traders are also subject to the rules of the Commercial Code. Some contracts created by practice are essentially of a commercial nature, such as factoring.
The evolution of contract law
Contract law had developed within the framework of the development of the autonomy of the individual will which broke free from the barriers of the Old Law due to the religious, social and political organization of the Old Law and the rules corporatists.
With the industrial revolution, contract law has adapted to economic developments . The development of collective phenomena and the economic imbalance between co-contracting parties have led to the development of a case law for protection. The doctrine, under the impetus of Saleilles, groups these rules together within the framework of the notion of contract of adhesion .
The development of case law was codified within the framework of the reform of contract law by the ordinance of 10 February 2016 reforming contract law.
Contracts and consumption
Insofar as the will of the individual is only formal with the exception of an intervention as a condition of the relationship, the courts endeavor to operate a control of the contractual content , the latter resulting in fact from the unilateral will of the stipulating party, to rule out unfairly onerous clauses. The civil code was part of a philosophy of liberalism where individual freedom legitimized the obligation granted. The alteration of the individual will within the framework of counter contracts or the general conditions imposed called into question for the judges the value of an onerous and unbalanced commitment.
This trend will be at the origin of the development of consumer law , now codified within the framework of a consumer code , and in particular of the national and European regulation of unfair terms and which leads to a series of rules of protection in contracts .
Membership contracts and negotiated contracts
Contract law is developing in this area due to the contractual qualification of economic relations between economic operators and their customers and users. but with a weakening of contractual rules. The rules of common contract law in these membership contracts are in fact supplemented or imperatively modified by the development of regulations, the development of which mainly corresponds to these collective relations. We are witnessing a renaissance of formalism, which is supposed to protect consent, and a questioning of contractual autonomy.
This is how mass contracts, such as insurance or transport , are subject to regulations which form part of the general regulations for the activities concerned. Legislative and jurisprudential interventionism have greatly reduced the effective domain of the autonomy of the will in the adhesion contracts.
From interventionism to contractual liberalism
The return to liberalism revives contractual law. What is qualified by part of the doctrine of contractual solidarism is subject to a certain revision of the instruments of contractual equilibrium.
Civil Code Title III Contracts or conventional obligations in general
Chance of not contracting