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 remained all but unchanged from 1804, later interpretation by French writers and by the courts had transformed them to an extent that the Code no longer reflected the law as it was 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same time, French lawyers (and successive French governments) were concerned that French contract law should not appear out-of-date, left behind by legal developments which have become widely accepted by other European codifications (and in particular the German Civil Code whose provisions on contract were “modernised” in 2002) and by the common law in a way that could leave 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 were asked by the French Ministry of Justice to translate the draft into English so that it could be accessible to an English-speaking audience: their translation was published on the Ministry website.
The next stage in the process then took a somewhat surprising turn: the French Government was given authority by Parliament to reform the Civil Code’s provisions on contract law and certain related areas by government decree. The draft law (in the form of an Ordonnance) concerning contract and obligations in general was published in February 2015: 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 of the draft Ordonnance into English, which was published on the Ministry website.
On 10 February 2016, following a period of consultation on the draft and further work on the text by the Government, the final form of Ordonnance was enacted which came into effect on 1 October 2016, reforming the provisions of the Civil Code on the law of contract, the general regime of obligations and proof of obligations. Again, John Cartwright, Simon Whittaker and Bénédicte Fauvarque-Cosson, were commissioned by the French Ministry of Justice to prepare an official English translation of the new provisions, which can be seen on the Ministry website. A workshop within the scope of this project, hosted by the Institute and by St John’s College, was held in St John’s College from 21 to 23 September 2016, attended by comparative lawyers from Oxford and elsewhere in the UK, French civil lawyers with interests in comparative law, and professors from Italy, Spain and Germany giving a perspective of the reforms from the points of view of their national codifications. The papers from this workshop will be published in both English (by Hart Publishing) and French (by the Société de législation comparée) in 2017.
The French reforms of the law of obligations are not, however, yet complete. In March 2017, the French Ministry of Justice published a draft parliamentary bill for the reform of “civil liability”, putting together for this purpose liability for contractual non-performance and the general grounds of “extra-contractual liability”. The Ministry of Justice commissioned Simon Whittaker in consultation with Jean-Sébastien Borghetti of the University of Paris Panthéon-Assas (Paris II) to translate the bill into English and this has now been published on the Ministry website.
A workshop within the scope of this project was held in Paris in March 2017 to discuss these latest proposals on the reform of civil liability, and a further intensive workshop was held in Oxford in September 2018. It is intended to publish the papers from the 2018 workshop in volumes (in French and in English) to complement the forthcoming volumes on the reform of the law of contract.
John Cartwright, Stefan Vogenauer and Simon Whittaker Reforming the French Law of Obligations, Hart Publishing, 2009
John Cartwright, Stefan Vogenauer and Simon Whittaker Regards comparatistes sur l’Avant-projet de réforme du droit des obligations et de la prescription, Société de législation comparée, 2010
John Cartwright and Simon Whittaker The Code Napoléon Rewritten: French Contract Law after the 2016 Reforms, Hart Publishing, 2017