In 2004 France celebrated the bicentenary of the French Civil Code (the so-called Napoleonic Code), rightly praising it as a major intellectual achievement of the Enlightenment and a splendid reflection of the special character (the “genius”) of French legal culture. But the celebrations were tinged with a degree of concern, particularly as regards the state of the law governing contracts and extra-contractual liability. For while the Civil Code’s provisions in these areas in general remain all but unchanged from 1804, later interpretation by French writers and by the courts have transformed them to an extent that the Code no longer reflects the law as it is understood and applied. Since 2004 French lawyers have therefore considered how their Civil Code’s provisions on obligations should be updated so as to reflect these modern developments. At the same time, French lawyers (and successive French governments) have been concerned that French contract law should not appear as out-of-date, left behind by legal developments which have become widely accepted by other European codifications (and in particularly the German Civil Code whose provisions on contract were “modernised” in 2002) and by the common law in a way which leaves French law less adapted to the needs of business and neglected as a law of choice by parties to international commercial transactions.

The first attempt to put forward a draft reform was the work almost entirely of academic lawyers under the leadership of the late Professor Pierre Catala, organised privately but with the general blessing of the French government: this was published as the Avant-projet de réforme du droit des obligations et de la prescription in 2005. At the time John Cartwright and Simon Whittaker of the Institute of European and Comparative Law were asked by the French Ministry of Justice to translate the draft into English so that it could become known outside les pays Francophones: their translation was published on the Ministry website. The Avant-projet Catala led to considerable discussion (including a conference organised by the Institute of European and Comparative Law in Oxford, whose papers were published in a volume edited by John Cartwright, Stefan Vogenauer and Simon Whittaker in both English (in Reforming the French Law of Obligations, Hart Publishing, 2009), and French (in Regards comparatistes sur l’Avant-projet de réforme du droit des obligations et de la prescription, Société de législation comparée, 2010), but it was followed by a series of other drafts by another group of academics and by the Ministry itself. The next stage in the process then took a somewhat surprising turn, for the French Government asked Parliament for legislative authority to reform the Civil Code’s provisions on contract law and certain related areas by government decree, thereby side-stepping the normal Parliamentary process. After considerable debate (and concern from the point of view of constitutional principle about the propriety of reform of such a central part of private law by decree), the Government was granted the authority to proceed. The draft law (in the form of an Ordonnance) concerning contract and obligations in general was published in February of 2015 so as to allow a brief period of consultation: the draft text can be seen here, and further information is available here. According to the French Minister of Justice, the Garde des Sceaux, Mme Christiane Taubira, the Reform

“clarifies the principles on which the law of contract is founded, reorganises the provisions so as to render the Civil Code more readable and introduces some modifications. It is going also to permit the law of contract to be made more protective of the most vulnerable people. It is a reform guided by the will to put into the Civil Code more Justice and solidarity.”

While much of the new law is familiar and draws both on existing provisions and on their development by the courts, enactment of the Ordonnance would see some of the most distinctive features of French contract law disappear, notably, the doctrine of la cause – though even here some of its protagonists see it lying underneath particular new provisions. And, as the Garde des Sceaux observes, the draft does reflect a more “social model” of contract law, in particular subjecting contract terms in all types of contracts to a test of fairness whether or not they are in standard form.

John Cartwright and Simon Whittaker, together with Bénédicte Fauvarque-Cosson of the University of Paris Panthéon-Assas (Paris II), were asked by the French Ministry of Justice to provide an official translation into English: this has now been published and is available on the Ministry website.

What happens next? The text of the draft Ordonnance, revised by the Ministry of Justice after the consultation was closed, has gone to the Conseil d’Etat for scrutiny and then, subject to its views, it will be published and enacted in its final form, by means of “dépôt du projet de loi de ratification de l’ordonnance”. It will become law before the end of the first semester (2016) and the law will contain transitional measures.

However, many of the substantive provisions of the new law remain highly controversial and the enactment of the reform is likely to generate further discussion among French lawyers as to the proper significance of the new text and also case-law as the courts come to terms with the changes and seek to relate them to traditional principle. In the result, French contract law will be updated, but it will remain distinctive in its approach and in its content, both from the English common law and from other continental codifications.