Eva Steiner French Law A Comparative Approach

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F R E N C H L AW
A C OM PA R AT I V E A P P ROAC H
French Law: A Comparative Approach. Second Edition. Eva Steiner. © Eva Steiner 2018. Published 2018 by
Oxford University Press.
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FRENCH LAW
A C OM PA R AT I V E A P P ROAC H
Second Edition
E VA ST E I N E R
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1
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v
Des Grecs, jadis, demandaient au sage Solon: ‘Quelle est la meilleure constitu-
tion?’. Il répondait: ‘Dites-moi, d’abord, pour quel peuple et à quelle époque’.
Ch. De Gaulle, Discours de Bayeux, 16 June 1946.
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PREFACE
It has already been seven years since the publication of the first edition of French Law—
A Comparative Approach. This new edition is the continuation of the previous one with
the necessary updating in an area as fluctuating as the law. The additional purpose of
this new edition is to provide a work of a more academic nature, while maintaining a
didactic approach, as evidenced by the layout and presentation of the book.
This book is a book on French law, one of the leading civil law systems in the world.
French law is part of the legal systems belonging to the Romano-Germanic tradition. It
has served as a model in many European countries as well as others in North America,
South America, Africa, Asia, and the Middle East. It has also been very influential
with respect to the development of European law. The processes of globalisation and
European integration have given impetus to a large geographical movement of lawyers
in the past thirty years, many of whom come from the common law tradition and
find a need to familiarise themselves with the rules and techniques of Continental
legal systems. This book is primarily intended to give these lawyers a clear, accessible,
updated, as well as thorough, account of how the French legal system works, and also
to provide them with an analysis of selected core areas in French law. The book further
intends to give readers an insider view into the French legal tradition from a com-
parative perspective by contrasting, where relevant, certain aspects of French law with
other selected legal systems, principally England and the common law. However, it is
not a work on comparative law, in the sense that it does not purport generally to com-
pare legal systems and does not engage in comparative legal analysis as such. Rather, it
is hoped that, when French law is seen from a comparative viewpoint, it will not only
highlight features unique to the French system, but also, and by the same token, show
how despite the distinctiveness of French law and the role of cultural factors some
rapprochement with other jurisdictions can be observed.
This book can also be used as a tool for those involved in the practice and research
surrounding law reform. Indeed, law reform in common law jurisdictions increasingly
concerns itself with examination of the legal method employed by Continental legal
systems, particularly France, for which purpose this book may be a valuable source.
In the selection of the topics and in the structure adopted in Parts I and II, I have
taken into account the interaction between the different actors who contribute to the
making of the law in a particular legal system, namely legislators, judges, and academic
lawyers. Bearing in mind Professor Van Caenegem’s statement that in France, the judi-
ciary, the legislature, and academic writers have lived for most of the time ‘in a peculiar
state of equilibrium, neither ever completely dominating the others’ (Judges, Legislators
and Professors, Cambridge University Press, 1987, 70), I have in consequence devoted
the first two parts of the book to the law-making process (Part I) and the method of
deciding cases, including legal education (Part II). In Part III of the book, topics have
vi
viii Preface
been selected to take into account the public/private law divide in French law, and also
to describe what has been called (together with family law) the pillars of the French
private law system, namely contract/tort and property. With regard to contract and
tort the new provisions resulting from the reform of the law of obligations in 2016 have
been taken into account when redrafting the chapters devoted to these areas of law.
Basic background knowledge of French legal institutions would be desirable when
reading the book. Also, some knowledge of the French language is assumed as a few
quotations or citations are provided in French.
I wish to thank the editorial team at Oxford University Press for their support, pa-
tience, and competence in the writing of this work, and also my colleague at King’s
College London Law School, Professor Stephen Gilmore, for his help with some of the
nuances of the English language.
The translation into English of phrases and quotations is my own unless specified
otherwise.
The law stated is the law as at September 2017.
This book is dedicated to the loving memory of my mother.
Eva Steiner
September 2017
xi
TABLE OF CASES
Adam, CE 8 July 1998 . . . 174 Brunet-Lecomte and Lyon Mag v France

Adams v Lindsell (1818) 106 ER 250 no. 17265 para. 62, ECHR 2010
(UK) . . . 232 (ECtHR) . . . 147
Administration de l’enregistrement v Cadé, Cass. civ., 19 February 1941, D.A. 1941,
Congrégation des Pères Augustins de 211 . . . 270–1
l’Assomption (1898), S. 1899, 1, 193 . . . 48 Cadot, CE 13 December 1889, Sirey, 1892, 17,
Administration des Douanes v Société Cafés Rec. 1148 . . . 80, 173
Jacques Vabre (1975), D. 1975, 497 . . . 8, 81 Caisse mutuelle de réassurance agricole de l’Ile-De-
Allain, CE 20 February 1989 . . . 188 France et autres v Casimiro (1967), JCP1968,
Aramu, CE 26 October 1945, Rec. 213 . . . 177 II, 15339 . . . 69
Ass. Plén. 1 December 1995, D. 1996, 13, JCP Caisse Rurale Commune de Manigod v
1996, II 22565 . . . 241 Administration de l’Enregistrement (1914),
Ass. Plén., 10 November 1995, D. 1996, D.P. 1914, 1, 257 . . . 80
633 . . . 276 Canal de Craponne (1876), D. 1876, 1,
Ass. Plén., 23 January 2004, Bull. no. 1 . . . 84 193 . . . 80
Ass. Plén., 25 February 2000, JCP 2000, II, Casa del Niño, Cass. civ. 1, 22 July 1987,
10295 . . . 279 D. 1988, 172 . . . 243
Ass. Plén., D. 1984, 525 . . . 258 Cass. civ. 2, 12 December 1994, JCP 1995,
Association des centres éducatifs du Limousin v IV, 416 . . . 256
Blieck, Ass. Plén., 29 March 1991, Cass. civ. 2, 15 June 1988, JCP 1989, II,
D. 1991, 324 . . . 49, 277 21223 . . . 256
Avranches and Desmarets, TC 5 July 1951, Rec. Cass. 1, 27 February 1951, D. 1951, 329 . . . 255
638 . . . 172 Cass. civ. 1, 12 April 1995, Bull. 1, 214 . . . 248
Cass. civ. 1, 9 October 2001, JCP 2002,
B. v société ERDF Annecy Léman, TC 551 . . . 70
17 June 2013 . . . 182–3 Cass. civ. 2, 17 December 1954, JCP 1955, II,
Bac d’Eloka, TC 22 January 1921, D. 1921, 8490 . . . 248
3, 1 . . . 175 Cass. civ. 2, 19 June 2003, JCP 2003, II,
Baesens et autres (1984), D. 1985, 1 . . . 88 10170 . . . 259
Bailly v Min. Publ. (1930), D.H. 1930, Cass. civ. 2, 22 January 2009, D. 2009,
253 . . . 49 1114 . . . 259
Barinstein, TC 30 October 1947, Cass. civ. 2, 5 June 1985. JCP 1987, II,
Rec. 511 . . . 183 20728 . . . 256
Belhomme v Parti Socialiste et autres (1994), Cass. civ. 2, 8 June 1994, Bull. civ. II, no. 151
RTDC 1995(2), 351 . . . 225 and 152 . . . 271
Bertrand, Cass. civ. 2, 19 February 1997, D. 1997, Cass. civ. 3, 18 January 1984, D. 504 . . . 288
265 . . . 276 Cass. civ., 18 April 1953, D. 1953, 409 . . . 242
Bettembourg, Crim., 14 June 1990, D. 1990, IR, Cass. soc., 25 February 1992, D. 1992,
208 . . . 279 390 . . . 229
Blanco (1873), D. 1873, 3, 17 . . . 80 Cass. soc., 7 July 1955, D. 1957, 1 . . . 246
Boisdet, CE 24 September 1990, Castagné et autres v Epy and Société générale
Leb. 251 . . . 8 des grandes sources d’eaux minérales françaises
Borgers v Belgium, 30 October 1991 v Castagné (1974), D. 1974, 593 (Perrier
(ECtHR) . . . 200 decisions) . . . 58
Bouleau v Bazouin (1846), D.P. 1846, Castorama, 6 February 2003, D. 2003, 720 . . . 60
1, 81 . . . 76 Catalayud v Voies Navigables de France, TC 20
Boussouar; Planchenault; Payet, CE 14 December March 2006 . . . 184
2007 . . . 189 Ch. Mixte, 27 February 1970, D. 1970,
Brocas, CE 19 October 1962 . . . 188 201 . . . 266
Brugiroux, Ass. Plén. 14 April 2006 . . . 274 Ch. Mixte, 30 April 1976, D. 1977, 185 . . . 265
xvi
xiv Table of Cases
Chabba, CE 23 May 2003 . . . 189 Conseil Constitutionnel Decision 89–1138 AN of

Chemin de Fer de Paris à Orléans v dame Veuve 6 March 1990, Rec. 52 . . . 53–4
Noblet, Cass. civ., 6 December 1932, DP 1933, Conseil Constitutionnel Decision 89–268 DC, 29
1, 37 . . . 248 December 1989, Rec. 110 . . . 68
Chomel v Roqueta (1960) D. 1961, 417 . . . 232 Conseil de la Concurrence, D. 1988,
Chronopost, Cass. com., 22 October 1996, 117 . . . 172
D. 1997, 121 . . . 243 Costa v ENEL [1964] ECR 585 (ECJ) . . . 7
Cibiel v Dieulafoy Req., 1 December 1885, Costedoat, Ass. Plén., 25 February 2000, JCP
S. 1887.1.167 . . . 231 2000, II, 10295 . . . 279
Civ. 2, 1 July 1954, D. 1954, 628 . . . 278 Court of Appeal of Riom, 9 November 1978, JCP
Civ., 5 June 1957, D. 1957, 493 . . . 267 1979, II, 19107 . . . 266
Clément-Bayard v Cocquerel (1915), D.P. 1917, Crim. 5 November 1953, D. 1953, 698 . . . 278
1, 79 . . . 80 Crim., 16 February 1999, JCP 2000, I, 199,
Comité contre la Guerre en Irak, CE 30 December 11 . . . 279
2003 . . . 188 Croisières Lorraines La Bergamote v Voies
Comité d’établissement de Saint-Chamond v Ray Navigables de France, TC 12 December 2005,
(1954), D. 1954, 217 . . . 79–81 Rec. 67 . . . 184
Comité National contre les Maladies Respiratoires
et la Tuberculose (CNMTR) v Société JT Dame B. v M. and V. (1976), D. 1976,
International GmbH et autre (2006) . . . 256 593 . . . 56
Commune de Morsang sur Orge, CE 27 October Dame David (1974), D. 1975, 369 . . . 52
1995, Rec. Lebon, 372 . . . 181, 217 Dame David, CE 4 October 1974,
Compagnie Générale Transatlantique v Zbidi Rec. 464 . . . 186
Hamida Ben Mahmoud (1911), D.P. 1913, 1, Dame Fournet v Chevalon (1946), D. 1947,
249 . . . 85 90 . . . 48
Concerts du conservatoire, CE 9 March 1951, Dame Walter v Dame Roque (1974), D. 1974,
Rec. 151 . . . 177 629 . . . 153
Confédération nationale des associations familiales Danthony, CE 23 December 2011 . . . 187
(1990), D. 1991, 283 . . . 82 Desmares v Epoux Charles (1982), D. 1982,
Conseil Constitutionnel Decision 0–126 DC, 30 449 . . . 74
December 1980, Rec. 53 . . . 68 Directeur Général des Impôts v Société Royale
Conseil Constitutionnel Decision 2006–540 DC, (1990), Bull. civ. I, no. 12 . . . 68
27 July 2006, Droit d’auteur . . . 11 Doerr v Keller (1855), D. 1856, 9 . . . 141
Conseil Constitutionnel Decision 58–90 bis AN, 5 Donoghue v Stevenson [1932] AC 562
May 1959, Rec. 223 . . . 68 (UK) . . . 252
Conseil Constitutionnel Decision 62–18 L, Dr Nicolas v Epoux Mercier (1936), D.P. 1936,
16 January 1962, Loi d’orientation agricole, 1, 88 . . . 85
Rec. 31 . . . 68 Duvignères, CE 18 December 2002 . . . 5
Conseil Constitutionnel Decision 67–31 DC, 26
January 1967, Indépendance et inamovibilité Époux Guillot v Procureur Général près la Cour
des magistrats, Rec. 19 . . . 11 d’Appel de Versailles (1986), Bull. civ. I,
Conseil Constitutionnel Decision 71–44 DC, 16 no. 232 . . . 82
July 1971, Liberté d’association, Epoux X v Procureur Général près la
Rec. 29) . . . 6 Cour d’Appel de Nîmes (2008), D. 2008, AJ.
January 1975, Rec. 19, IVG . . . 8 Erhard v Bennoun (Cass. civ. 2, 12 May 1966,
Conseil Constitutionnel Decision 81–132 DC, 16 D. 1967, 3 . . . 262
January 1982, Rec. 18 . . . 59 Etat Français v Pinoncely (1998), D. 2000,
Conseil Constitutionnel Decision 82–143 DC, 128 . . . 121
30 July 1982, Blocages des prix et des revenus, Eucat v Trésorier-Payeur Général du Bas-Rhin,
Rec. 57 . . . 11 TC 9 June 1986, Rev. Fr. Dr. Admin. 1987,
August 1985, Rec. 70 . . . 68
Conseil Constitutionnel Decision 87–1026 AN, Fairchild v Glenhaven Funeral Services Ltd [2002]
23 October 1987, Rec. 55 . . . 68 UKHL 22 (UK) . . . 266
Conseil Constitutionnel Decision 88–1127 AN, FGA v Rebeuh, Civ. 2, 8 November 1989, RTDC
20 April 1989, Rec. 32 . . . 68 1990, 92 . . . 273
xv
Table of Cases xv
Fitzpatrick v Sterling Housing Association Ltd Le Verrou (The Bolt), Civ. 1, 24 March 1987,
[1999] WLR 1115–17 (UK) . . . 139 D. 1987, 489 . . . 236
Franck v Connot (1941), D.C. Levert, Cass. civ. 2, 10 May 2001, D. 2001,
1942, 25 . . . 81 2854 . . . 276
Ligue des droits de l’homme et autres, CE 26
Gabillet, 9 May 1984, Bull. civ. Ass. August 2016 . . . 181–2
Plén, 1 . . . 272 Littman v Villeneuve Loubet, TC 26 June
Gisti and Mrap, CE 23 September 1992, Rec. 2006 . . . 182
346 . . . 188 Lloyd de France v Faucheux (1932)
GISTI, CE 8 December 1978, Rec. 493 . . . 177 S. 1932.1.278 . . . 232
Gondrée-Pritchett, Civ. 1, 10 March 1999, Bull. Lorthioir, Minit Foto v Boucheron, D. 1991, 449,
no. 87 . . . 291 Cass. civ. 1, 14 May 1991 . . . 216
Goutaillier v Epoux Jacob (1974), Bull. civ. III, Lucas v SAGEP, 13 February 2001, Bull. civ.
no. 330 . . . 115, 117, 237 I, 31 . . . 237
Great Northern Railway Co v Sunburst Oil & Lunus, Cass. civ. 1, 16 January 1962, D. 1962,
Refining Co, 287 US 358 (1932) (US) . . . 77 199 . . . 261
Greenpeace France, CE 29 September 1995, Rec.
347 . . . 188 M. E X v Mme C . . . Y, D. 2009, 1385, Cass. civ
Gregg v Scott [2005] UKHL 2 (UK) . . . 263 1, 3 March 2009 . . . 118
Guilloux v Société des Raffineries Nantaises, Civ., M. J. v Mme F. and caisse primaire d’assurances
25 May 1870, D. P. 1870, 1.257 . . . 233 maladie de la Gironde, Cass. civ. 1, 11 June
2009 . . . 78
Hardouin; Marie, CE 17 February Madar v AFAN, 24 May 2005, Bull. civ. I,
1995 . . . 189 223 . . . 233
Houillères du Nord, Cass. civ., 13 March 1957, Maison de Poésie, Cass. civ. 3, 31 October
JCP 1957, II, 10084 . . . 274 2012 . . . 288
Marc X. and René X. 11 December 1992, JCP
Institution Notre Dame du Kreisker (1954), 1993, II, 21991 . . . 8
RPDA, 50 . . . 5 Marchon v Epoux Fousset et autre (1932), D.H.
1933, 2. . . 47
Jand’heur v Les Galeries Belfortaises (Ch. Réunies, Maurice v France and Draon v France (2005)
13 February 1930, D. 1930, 1, 57 . . . 269 (ECtHR) . . . 264
Jean Philippe X and Madeleine Y v Axa Courtage McKay v Essex Area Health Authority [1982] 1
et autres (2003) . . . 248 QB 1166 (UK) . . . 263
Medvedyev and others v France, Case no. 3394/
K. v Min. Public (1984), JCP 1985, II, 03, 10 July 2008 (ECtHR) . . . 205
20391 . . . 67 Mennesson v France and Labassée v France ECHR
Kherouaa, CE 2 November 1992 . . . 189 185 (2014) (ECtHR) . . . 76
Kress v France, 7 June 2001 (ECtHR) . . . 200 Métenier v Epoux Luce, D.P. 1938, 1.5, Civ., 27
Kruslin v France (1990) 12 EHRR 547 July 1937 . . . 266
(ECtHR) . . . 83 Mettetal v Waeterinckx (Civ. 2, 6 April 1987),
D. 1988, 32 . . . 74, 275
La Haute Marne Libérée, Civ. 2, 17 July 1953, Min. Public v Demoiselle Ménard (1898)
D. 1954, 533 . . . 256 D.P. 1899, 2, 329 . . . 113
Lamoricière, Cass. com., 19 June 1951, D. 1951, Ministère de l’Economie, des Finances et
717 . . . 274 de l’Industrie c/Expx Kechichian, CE 30
Laruelle and Delville, CE 28 July 1951, November 2001 . . . 189
Rec. 357 . . . 190 Ministre de l’Agriculture v Mme Lamotte, CE 17
Laurent Atthalin see Placet-Thirion February 1950, Rec. 110 . . . 185
Lawson v Laferrière [1991] 1 SCR 541 Mittenaere, Ass. Plén. 14 April 2006 . . . 274
(Canada) . . . 263 Mlle P. v Picard, Cass. civ. 1, 25 June 1991,
Le Collinet v Compagnie d’assurances Rhin et D. 1991, 466 . . . 264
Moselle (2000), D. 2000, 593 . . . 70, 153 Mlle X . . . v Société Transport Agglomération
Le Duigou v France, 19 May 2005 Elbeuvienne, Cass. civ. 2, 22 February 1995,
(ECtHR) . . . 200 JCP 1995, I, 3853 . . . 259
Le Provencal v Mme Véronique X, Ass. Plén. 21 Mme Ba, CE 19 April 1999 . . . 188
December 2006 . . . 78 Mme Garagnon CE, 26 June 1985 . . . 189
xvi
xvi Table of Cases
Mme Li Shu Xian v Editions Laffont (1995), Bull. Rosay (1933), Sirey 1933, III, 117 . . . 181
civ. I, no. 356 . . . 119–20 Roxborough v Rothmans of Pall Mall (Australia)
Mme Peynet, CE 8 June 1973, Rec. 406 . . . 174 Ltd [2001] HCA 68 (Aus) . . . 112
Mme X v Y (1995), D. 1996, 111 . . . 153 Rubin de Servens, CE 2 March 1962 . . . 188
Monpeurt, CE 31 July 1942, Rec. 239 . . . 175
Mont Blanc tunnel, Trib. corr. Bonneville, 27 July SA Automobiles Citroën v SA Canal Plus,
2005, JAC nos 57 and 58 . . . 121 Cass. civ. 2, 2 April 1997, D. 1997,
Monteil v Syndicat Intercommunal de gestion 411 . . . 256
d’irrigation, TC 16 October 2006 . . . 184 SA Camping les Grosses Pierres v Communauté
Mue X v Société Transport Agglomération de Communes de l’Île d’Oléron, a series of 22
Elbeuvienne (1995), D. 1996, 69 . . . 143 decisions given by Tribunal des Conflits on 16
October 2006 . . . 184
Naïma K. (1999), D. 2000, 45 . . . 69 SA Rothmans International France and SA
National Westminster Bank Plc v Spectrum Plus Philip Morris France, CE 28 February 1992,
Ltd [2005] UKHL 41 (UK) . . . 79 Leb. 81 . . . 8–9
Nicolo (1989), JCP 1989, II, 21371 . . . 8 Salabiaku v France (1988) 13 EHRR 379
(ECtHR) . . . 204
O’Reilly v Mackman [1982] 3 WLR 1096 Samedi Soir v Le Borgne (1952), JCP 1952,
(UK) . . . 169 II, 7108 . . . 49
Ouradi v Gabet, Cass. civ. 2, 20 July 1987, Bull. Sarran, Levacher et autres (1998), AJDA,
civ. II, 160 . . . 276 1039 . . . 7
SEITA v Consorts X, Cass. civ. 2, 20 November
Papon (2002), Leb. 139 . . . 81 2003, Bull. II, 355 . . . 273
Papon CE 5 April 2002, Rec. 139 . . . 190 Septfonds, TC 16 June 1923, Rec. 498 . . . 172
Patureau v Boudier (1892), D. P. 1892, Société Arcelor Atlantique et Lorraine, CE 8
1, 596 . . . 52 February 2007, Leb. 56 . . . 9
Pélegrin, 24 November 1977, D. 1978, Société Barlier v Sociétés Sovatra et autres (1999),
J. 42 . . . 123, 298 Gaz. Pal. 1999, 2, Somm. 689 . . . 88
Pélissier du Besset (1927), D.P. 1928, Société d’assurances La Cité v Héro, Ass. Plén. 19
1, 25 . . . 144 May 1988, D. 1988, 513 . . . 118, 278–9
Pepper v Hart [1993] AC 593 (UK) . . . 57 Société France-Éditions et Publications v Société
Perruche (2000), JCP 2000 II 10438 . . . 81 Laboratoires Solac et Chambre Syndicale des
Perruche, Cass. Ass. Plén., 13 July 2001, D. 2001, Fabricants de produits pharmaceutiques (1971),
2325 . . . 264 JCP 1971, II, 16932 . . . 67
Perruche, Cass. Ass. Plén., 17 November 2000, Société Immobilière et Commerciale de Banville v
D. 2001, 332 . . . 263–4 Dame Laroye (1967), Bull. soc.,
Pialet, Cass. civ., 24 February 1941, D.A. 1941, no. 239 . . . 125–6
129 . . . 270 Société Karim v Société Ten Cate France, Cass.
Pirmamod v Guichard, Civ. 1, 12 July 1989, Bull. com. 4 July 1973 . . . 236
civ. I, no. 293, 194 . . . 243 Société KPMG, CE 24 March 2006 . . . 177
Placet-Thirion (1906), DP, 1907, 1, 207 . . . 83 Société l’Aigle v Société Comase (1981) Bull. civ.
Préfet de Police v Ben Salem and Taznaret, TC, IV, no. 14, Cass. com., 7 January
12 May 1997, RFDA 1997, 514 . . . 179 1981 . . . 232
Préfet du Nord v Melis (1950), D. 1951, 4 . . . 5 Syndicat de la Magistrature et Autres, CE 24 May
Président Conseil de Paris v Préfet Police de Paris, 2017 . . . 207
TC 26 June 2006 . . . 182 Syndicat des producteurs indépendants (1997),
Prince Napoléon, CE 19 February 1875, Rec. D. 1997, 467 . . . 5
155 . . . 188 Syndicat Général des Fabricants de Semoules de
Proc. Gén. C. de Cass. v Madame X. (1991), France (1968), D. 1968, 285 . . . 8
D. 1991, 417 . . . 81, 83, 124 Syndicat Northcrest v Amsellem [2004] 2 RCS
Proc. Gén. Paris v Bassilika (1992), D. 1993, 551 . . . 217
36 . . . 86 Syndicat unifié de la radio et de la télévision
Procanik v Cillo 97 NJ 339 (1984) (US) . . . 263 (1983), Rec. 293 . . . 68
Radio France SA, Cass. 2, 8 July 2004, D. 2004, Thirion v Motte (1958), Bull. crim., no. 466 . . .
2956 . . . 78 69
Reinhardt and Slimane-Kaïd v France, 31 March Trichard (Cass. civ. 2, 18 December 1964,
1998 (ECtHR) . . . 200 D. 1965, 191 . . . 258
xvi
Table of Cases xvii
United Dominions Trust Ltd v Eagle Veuve Teffaine, Civ., 16 June 1896, D.P. 1897, I,
Aircraft Services Ltd [1968] 1 WLR 433 . . . 269
74 (UK) . . . 221 Vilela v Weil (1997), D. 1998, 111 . . . 139
Urdiain Cirizar, CE 23 October 1991, Ville de Genève et Fondation Abegg v Consorts
Leb. 347 . . . 8 Margail (1984), D. 1985, 208 . . . 142, 285
Veuve Gaudras v Dangereux (1970), D. 1970, X v Mme Y (1997), D. 1997, 296 . . . 116, 123
201 . . . 73, 265–6
Veuve Jand’ heur v Les Galeries Belfortaises Yam Seng Pte Ltd v International Trade Corp Ltd
(1930), D.P 1930, 1, 57 . . . 80, 82, 144 [2013] EWHC 111, QB (UK) . . . 229
xi
TABLE OF LEGISL ATION
French Constitution 1992 Maastricht Treaty . . . 7

1998 European Charter on the Statute for
Constitution of the Fifth Republic (4 October Judges . . . 104
1958) . . . 3, 6–13, 95 1999 Amsterdam Treaty . . . 7
Preamble . . . 6–7 2005 Treaty to Establish a European
Declaration of the Rights of Man of 26 Constitution . . . 7
August 1789 . . . 6–7, 187, 287 2008 Lisbon Treaty . . . 7
art. 2 . . . 281, 286
art. 4 . . . 217
art. 9 . . . 203 EU Directives
art. 17 . . . 286–7 1985 European Product Liability
art. 6 . . . 9 Directive . . . 42, 251
art. 10 . . . 11 1985 and 1993 Council Directives on liability for
art. 11 . . . 10, 23 defective products and unfair terms in consumer
art. 16 . . . 96, 188 contracts . . . 213
art. 20 . . . 175
art. 34 . . . 10–11 Codes
art. 37 . . . 10, 13, 38 Code Administratif . . . 27, 30
art. 38 . . . 10 Code Civil . . . 27–8, 34, 52, 211–14, 218–22,
art. 39 . . . 90 230, 234, 238–9, 244, 250, 253–7, 260, 265,
art. 44(3) . . . 12 281, 283, 286, 288, 293
art. 46 . . . 9 Book II . . . 281
art. 48 . . . 12 Book III . . . 281, 297–8
art. 49(3) . . . 12 Book IV . . . 282
art. 54 . . . 7 art. 2 . . . 15, 59
art. 55 . . . 8, 59, 84 art. 4 . . . 88
art. 61 . . . 11 art. 5 . . . 65–8, 77, 147
art. 61–1 . . . 11, 82, 188 art. 6 . . . 16, 29, 51, 216, 241
art. 62 . . . 68 art. 9 . . . 16, 35, 120
art. 65 . . . 9, 109 art. 9–1 . . . 204
art. 66 . . . 182 art. 16–7 . . . 76, 83
art. 88–1 . . . 9 art. 16–9 . . . 76
art. 223–6 . . . 16
European and International art. 259 . . . 116–17, 123
Agreements art. 259–1 . . . 116–17, 123
art. 271 . . . 17–18
1950 European Convention on Human art. 321–1 . . . 124
Rights . . . 8, 59 art. 359 . . . 15
art. 5(1)(c) . . . 205 art. 372 . . . 19
art. 6 . . . 198, 207 art. 414–3 . . . 258
art. 6(1) . . . 61, 78, 180, 198, 200, 202–3 art. 516 . . . 284
art. 8 . . . 76 art. 517 . . . 285
art. 8(2) . . . 83 art. 524 . . . 142
Protocol 7 art. 524 . . . 285
art. 2(1) . . . 202 art. 525 . . . 285
1957 Treaty of Rome . . . 8 art. 526 . . . 285
UN Convention on Contracts for the International art. 529 . . . 285
Sale of Goods (Vienna 1980) . . . 213 art. 537 . . . 292
art. 77 . . . 259 art. 543 . . . 288
EC Convention on the Law applicable to art. 544 . . . 85, 286–7, 291
Contractual Obligations (Rome 1980) . . . 213 art. 550 . . . 297
1985 Hague Convention . . . 290 art. 551 . . . 299
x
xx Table of Legislation
art. 711 . . . 298–9 art. 1165 . . . 241

art. 712 . . . 298-9 art. 1168 . . . 224, 239
art. 724 . . . 291 art. 1169 . . . 224, 243–4
art. 815 . . . 35 art. 1170 . . . 218, 244
arts. 815 et seq. . . . 288 art. 1171 . . . 216–18
arts. 815–1 to 815–18 . . . 35 art. 1178 alinéa 2 . . . 240
art. 816 . . . 35 art. 1178 alinéa 4 . . . 240
art. 896 . . . 290 art. 1181 . . . 240
art. 931 . . . 86, 222 art. 1182 . . . 240
art. 1020 . . . 119 art. 1184 . . . 58
art. 1101 . . . 226–8 art. 1188 . . . 226–7
arts. 1101–1369 . . . 211 arts. 1188 et seq. . . . 46
art. 1103 . . . 15, 212, 214, 244 art. 1193 . . . 244
art. 1104 . . . 212, 218, 228 art. 1194 . . . 238, 244
art. 1105 . . . 219–20 art. 1195 . . . 80, 217, 246
art. 1106 . . . 220 art. 1196 . . . 299
art. 1107 . . . 220 art. 1196 . . . 300
art. 1108 . . . 220, 223 art. 1199 . . . 247
art. 1109 . . . 220 arts. 1205 et seq. . . . 248
art. 1110 . . . 220 art. 1218 . . . 273
art. 1111 . . . 220 art. 1219 . . . 246
art. 1111–1 . . . 220 art. 1220 . . . 246
art. 1112 . . . 229 art. 1221 . . . 246
art. 1112–1 . . . 218, 229, 238 art. 1223 . . . 247
art. 1113 . . . 227 art. 1224 . . . 247
art. 1114 . . . 231 art. 1226 . . . 247
art. 1116 . . . 115, 232 arts. 1231 et seq. . . . 247
art. 1120 . . . 233 art. 1231–1 (former art. 1147) . . . 85
art. 1121 . . . 233 art. 1231–4 . . . 247
art. 1122 . . . 232 art. 1231–5 . . . 217–18
art. 1128 . . . 124, 216, 222–3, 225, 240 art. 1231–5 alinéa 2 . . . 51
art. 1129 . . . 241 art. 1233–1 . . . 250
art. 1130 . . . 234 art. 1235 . . . 260
art. 1131 . . . 216, 241, 243 art. 1238 . . . 261
art. 1132 . . . 234–5, 241 art. 1240 . . . 251–2, 254–5, 266–7
arts. 1132–1136 . . . 234 arts. 1240–1244 . . . 15, 250
art. 1133 . . . 235, 241 art. 1241 . . . 251–2, 254–5, 266
art. 1133 alinéa 2 . . . 236 art. 1242 . . . 37, 49–50, 54, 73, 81–5, 118,
art. 1133 alinéa 3 . . . 236 255, 268–70, 277
art. 1134 . . . 212, 234 art. 1242 alinéa 1 . . . 251, 254, 258, 268
art. 1135 . . . 236 art. 1242 alinéa 4 . . . 276
art. 1135 alinéa 1 in fine . . . 236 art. 1242 alinéa 5 . . . 277, 279
art. 1136 . . . 237 art. 1242 alinéas 1, 4 and 5 . . . 251, 254, 258
art. 1137 . . . 115–16, 237 art. 1243 . . . 251, 258
art. 1137 alinéa 2 . . . 237 art. 1244 . . . 251–2, 258, 294
art. 1140 . . . 238 art. 1244–1 . . . 52
art. 1141 . . . 238 arts. 1245 et seq. . . . 251
art. 1142 . . . 238 arts. 1245 to 1245–17 . . . 15, 42
art. 1143 . . . 239 art. 1246 . . . 277
art. 1147 . . . 85 arts. 1246–1252 . . . 15
art. 1148 . . . 273 arts. 1246 et seq. . . . 265
art. 1149 . . . 239 art. 1247 . . . 277
art. 1152 . . . 217 art. 1249 alinéa 1 . . . 279
art. 1156 . . . 226–7 art. 1249 alinéa 3 . . . 279
art. 1162 . . . 240, 243–4 art. 1253 . . . 274
arts. 1162 et seq. . . . 223 art. 1255 . . . 258
art. 1163 . . . 240 art. 1265 . . . 274
art. 1164 . . . 241 art. 1266 . . . 247
xxi
Table of Legislation xxi
art. 1271 . . . 261 art. 2279 . . . 124, 296, 298

arts. 1285–1288 . . . 252 art. 2416 . . . 222
art. 1303 . . . 52 art. 2284 . . . 284
art. 1322 . . . 222 art. 2285 . . . 284
art. 1343–5 . . . 52, 218 Code de la Consommation . . . 36, 39, 213
art. 1344 . . . 246 art. 112–1 . . . 238
arts. 1352 to 1352–9 . . . 240 art. L 212–1 . . . 216
art. 1352 . . . 240 art. L 312–18 . . . 222
art. 1355 . . . 68 art. L 313–34 . . . 232
art. 1359 . . . 222 Code de la Construction
art. 1361 . . . 294 art. L 231–2 . . . 247
art. 1371 . . . 246 art. L 261–11 . . . 222
art. 1375 . . . 220 Code de l’Éducation . . . 33
art. 1382 . . . 85, 252, 254, 257, 259, Code de l’Habitation et de la Construction
266, 273–4 art. L 126–3 . . . 94
arts. 1382–1386 . . . 15 Code de l’Organisation Judiciaire . . . 36, 193
art. 1383 . . . 254 art. L 111–2 . . . 199
art. 1384 . . . 49–50, 268–70, 274 art. L 212–1 . . . 199
art. 1384 alinéa 1 . . . 54, 81–2, 84–5, 271 art. L 213–2 . . . 200
art. 1384 alinéa 5 . . . 118, 279 art. L 213–3 . . . 200
arts. 1386–1 to 1386–18 . . . 15, 42 art. L 222–1 . . . 200
art. 1394 . . . 222 art. L 312–1 . . . 200
art. 1397 . . . 51 art. L 411–2 . . . 201
art. 1457 . . . 260 art. L 431–5 . . . 72–3
art. 1583 . . . 298 art. L 431–6 . . . 72–3
art. 1602 . . . 238 art. L 441–1 . . . 62
art. 1604 . . . 70 Code de la Propriété Intellectuelle . . . 36
arts. 1641 et seq. . . . 39 art. 29 . . . 36
art. 1648 . . . 70 art. 111–3 . . . 36
art. 1651 . . . 218 Code de la Santé Publique . . . 36
art. 1674 . . . 239 art. R 1334–31 . . . 293
art. 1738 . . . 233 Code de Procédure Pénale . . . 193
art. 1880 . . . 256 preliminary art. I . . . 203
art. 2011 . . . 290 art. 1 alinéa 2 . . . 207
arts. 2011 to 2031 . . . 290 art. 3 . . . 207
art. 2013 . . . 291 art. 30 . . . 205
art. 2014 . . . 290 art. 40–3 . . . 206
art. 2015 . . . 290 art. 41 . . . 203
art. 2016 . . . 291 art. 49 alinéa 2 . . . 203
art. 2017 . . . 291 art. 80–1 . . . 208
art. 2018 . . . 291 art. 81 . . . 204
art. 2019 . . . 291 art. 85 . . . 207
art. 2018 . . . 245 art. 87 . . . 207
art. 2062 . . . 194 art. 88 . . . 207
art. 2226 . . . 289 art. 137–1 . . . 209
art. 2227 . . . 289 art. 388 . . . 206
art. 2255 . . . 294 arts. 495–7 et seq. . . . 206
art. 2258 . . . 296 art. 551 . . . 206
art. 2261 . . . 297 Code du Travail . . . 26, 37
art. 2272 . . . 297 art. L1132–1 . . . 174
art. 2277 . . . 298 Code of Civil Procedure . . . 193–4, 198
art. 2274 . . . 297 art. 4 . . . 197
art. 2276 . . . 300 art. 5 . . . 197
art. 2276 . . . 15, 124 art. 7 . . . 197
art. 2276 alinéa 1 . . . 297–8 art. 10 . . . 197
art. 2276 alinéa 2 . . . 298 art. 11 . . . 197
art. 2277 . . . 300 art. 12 . . . 125, 197
art. 2278 . . . 296 art. 14 . . . 200
xxi
xxii Table of Legislation
art. 15 . . . 200 Lois

art. 16 . . . 200
art. 42 . . . 198, 285 1790
art. 43 . . . 198 16–24 August 1790 on the separation
art. 44 . . . 199, 285 of powers . . . 21, 66, 171–3, 199
art. 46 . . . 199 art. 10 . . . 171
art. 448 . . . 145 art. 13 . . . 171
art. 454 . . . 138 art. 15 . . . 113
art. 455 . . . 113, 121, 137, 146
art. 464 . . . 141
art. 542 . . . 201 1804
art. 604 . . . 201 13 March 1804
art. 700 . . . 199 art. 2 . . . 164
arts. 763 et seq. . . . 196
arts. 1264 to 1267 . . . 296
Code of Criminal Procedure . . . 197–8
1872
Preliminary article 24 May 1872
para. III . . . 203 art. 9 . . . 173
art. 1 alinéa 2 . . . 83
art. 41–1–1 . . . 207 1926
art. 78–2 . . . 67
9 June 1926 on commercial leases
art. 78–2 alinéa 2 . . . 86
art. 9 . . . 47–8
art. 136 . . . 182
art. 355 . . . 145
art. 485 . . . 121 1937
Code Général des Collectivités 5 April 1937 on the liability of teachers . . . 15
Territoriales . . . 37
Code Général des Impôts (Tax Code)
art. 31 . . . 20 1946
art. 235 ter KD bis . . . 37 16 April 1946
art. 235 ter XA . . . 37 art. 16 . . . 58
art. 235 ter ZAA . . . 37 art. 18 . . . 58
Code on Homeland Security . . . 26
Code to improve relations between the 1959
administrative authorities . . . 26
Code Napoléon . . . 25, 50, 160, 213, Loi Debré (1959) on education . . . 22
281, 283
Code Pénal . . . 27 1965
Commercial Code . . . 26, 213
10 July 1965 . . . 289
art. L110–1 . . . 213
art. L110–2 . . . 213
art. L121–1 . . . 213 1975
art. L 145–38 alinéa 3 . . . 60 Loi Veil (1975) on abortion . . . 22
art. L 526–6 . . . 284
Criminal Code . . . 34, 202 1978
art. 111–1 . . . 37, 202–3
art. 111–4 . . . 15, 46, 59 4 January 1978 . . . 21–2
art. 111–5 . . . 172 78–23 Scrivener Law of 10 January
art. 112–1 . . . 59 1978 . . . 216
art. 121–3 . . . 20
art. 223–13 . . . 94 1980
art. 223–14 . . . 94 16 July 1980 . . . 188
art. 226–1 . . . 38
art. R 226–1 . . . 38
art. 321–1 . . . 124 1981
art. 421–4 . . . 37 2 February 1981 ‘renforcant la sécurité et
art. 460 . . . 124 protégeant la liberté des personnes’ . . . 22
xxii
Table of Legislation xxiii
4 August 1981 . . . 94 12 April 2000 on the rights enjoyed by

9 October 1981 . . . 94 citizens when dealing with administrative
bodies
1985 art. 2 . . . 32
5 July 1985 (Loi Badinter) on road traffic art. 3 . . . 41
accidents . . . 15, 22, 74, 251–2, 275–6 15 June 2000 . . . 21, 197, 208
arts. 1 to 6 . . . 275 30 June 2000 . . . 185
art. 1 . . . 275
art. 2 . . . 276 2001
art. 3 . . . 276 12 June 2001 . . . 95
art. 4 . . . 276 11 December 2001 (Law MURCEF) . . . 60–1
art. 5 . . . 276
9 July 1985 . . . 295
11 July 1985 . . . 284 2002
85–1372 du 23 décembre 1985 4 March 2002 . . . 264
art. 43 . . . 118 art. 1 . . . 264
6 August 2002 . . . 94
1986
9 September 1986 on terrorism . . . 15 2003
18 March 2003 on homeland security (Loi
1987 Sarkozy II) . . . 94
6 July 1987 . . . 178
8 July 1987 . . . 62 2004
31 December 1987 on incitement to 2004–228 du 15 mars 2004 . . . 21, 92
suicide . . . 94 2004–575 of 21 June 2004 . . . 211
1988
2007
20 July 1988 . . . 94
19 February 2007 . . . 284, 290
1989
2008
6 July 1989 on the fundamental right to housing
art. 1 . . . 16 17 June 2008 . . . 212, 296
1991 2009
15 May 1991 . . . 62 2009–526 of 12 March 2009 on simplification
31 December 1991 regarding AIDS and clarification of the law . . . 32
victims . . . 15, 94–5
2010
1993 11 October 2010 prohibiting face covering in
24 August 1993 . . . 22 public space . . . 92
1995 2013
3 August 1995 . . . 94 17 May 2013 (Loi Taubira) extending marriage to
same-sex couples . . . 22, 93
1999
15 November 1999 relative au pacte civil de 2015
solidarité . . . 22 2015–77 of 16 February 2015 . . . 296
2000 2016
19 January 2000 relative à la réduction négociée du 2016–1087 of 8 August 2016 on
temps de travail . . . 22 biodiversity . . . 21, 265
2000–230 of 13 March 2000 . . . 211 arts 1246–1252 . . . 15
xvi
xxiv Table of Legislation
2016–1088 of 8 August 2016 on quality of Canada

employment and enhancement of social Quebec Civil Code . . . 29
dialogue within the workplace . . . 21
2016–1090 of 8 August 2016 . . . 105
2016–1321 of 7 October 2016 pour une Germany
République Numérique . . . 162 German Basic Law . . . 9
art. 20 . . . 162 Bürgerliches Gesetzbuch (BGB) . . . 28, 226
art. 21 . . . 162 § 154(1) . . . 231
18 November 2016 on the modernisation of § 242 . . . 29
various aspects of the civil and criminal justice § 226 . . . 292
systems . . . 194 § 823(1) . . . 251
§ 830 (1) . . . 267
Other Legislative Sources § 873 . . . 300
§ 929 . . . 300
Ordonnances
22 February 1945 Italy
art. 22 . . . 58
art. 24 . . . 58 Civil Code
58–1270 of 22 December 1958 . . . 105, 205 art. 2046 . . . 258
16 June 2005 . . . 211
2016–131 of 10 February 2016 . . . 211 Netherlands
Civil Code (NBW) . . . 29
Arrêtés
5 July 1990 . . . 62 Romania
Civil Code . . . 29
Décrets
21 September 1804 Switzerland
art. 70 . . . 164 Code of Obligations
11 November 1917 on safety rules for railway and art. 2 . . . 292
tramway passengers art. 2(1) . . . 231
art. 78 . . . 49 art. 54§1 . . . 258
4 January 1955 . . . 300
22 December 1967 . . . 97
72–355 of 4 May 1972 . . . 105
United Kingdom
12 September 1989 (amended in 2010) Charities Act 2011 . . . 30
art. 1 . . . 40 Children Act 1989 . . . 29
94–52 of 20 January 1994 . . . 39 s. 2 . . . 19
28 December 1998 . . . 194 Companies Act 2006 . . . 30
2016–1218 of 29 September 2016 Consolidation of Enactments (Procedure) Act
art. 1 . . . 222 1949 . . . 30
6 April 2017 . . . 188 Constitutional Reform Act 2005 . . . 106
Contracts (Rights of Third Parties)
Act 1999 . . . 248
Circulaires
Halsbury’s Statutes . . . 29–30
14 May 1993 . . . 5 Human Rights Act 1998 . . . 44
2 January 1995 . . . 5 s. 3(1) . . . 59
30 May 1996 . . . 41 Law Commissions Act 1965 . . . 40
31 October 2005 . . . 5 Sale of Goods Act 1893 . . . 31
13 April 2016 . . . 5 Sale of Goods Act 1979 . . . 31
Livre des Procédures Fiscales— Unfair Contract Terms Act 1977 . . . 216
art. L 80A . . . 62
art. L 80B . . . 62
USA
Other Jurisdictions Administrative Procedure Act 1946 . . . 170
Restatement (Second) of Contracts
Belgium § 69(1) . . . 233
Belgian Civil Code Uniform Commercial Code (UCC) . . . 29
art. 1384 . . . 270 para. 1–203 . . . 229
1
PART I
THE LAW-M AKING

PRO CESS
The first part of this book examines and evaluates the process of law-making in France.
This process features some major distinctive characteristics inherent to French legal
culture and tradition. In particular, the French legal system is characterised by a rigid,
legalistic approach to legal sources. Authority is vested in written law and legislative
sources to the detriment of judge-made law, in a system where decided cases are not
binding for the future. This emphasis on written law and legislative sources has been
criticised by the majority of French legal scholars as being unrealistic. As will be seen,
French judges play an important part in law-making through the application and in-
terpretation of legislation.
Legislative supremacy in France can be traced back to Rousseau’s Contrat Social in
which the author lays down his famous postulate according to which law may only be
the expression of the general will and can, therefore, only be generated by the elected
body which that legislature represents. Rousseau’s tenet was strengthened by the men of
the 1789 Revolution who enacted a body of rules, still in force today, aimed at making
judges subject to the legislature and at preventing them from making law. Officially,
at least, rules laid down by judges have since then been denied the status of sources
of law. Rousseau’s heritage, coupled with the legal framework put in place during the
French Revolution, thus hold the key to understanding the respective characteristics
and role assigned to statute and case law in France today and these are the subject of
the following chapters.
Another distinctive feature of the French legal system addressed in this first part of
the book is that it is based principally on codes. This has a number of implications for
the style of legislative drafting and the techniques of statutory interpretation that will
also be examined here.
Part I has been divided into five chapters. Chapter 1 deals with legislation as the
dominant form of law-making in France as well as its relation to other written sources
of law. It also considers, within the constitutional framework, the legislative process
and examines the way in which bills are drafted. Chapter 2 goes through the process
of codification, a process which has been accelerated in recent years following the
2
2 The Law-Making Process
setting up of a Commission Supérieure de Codification in 1989. Chapter 3 examines the

techniques of statutory interpretation used in France and Chapter 4 investigates the
rules concerning precedents and how they work in practice, especially in their rela-
tionship to legislation. The analysis engaged in, in Chapters 3 and 4, is mainly aimed at
throwing some light on the question of whether judicial decisions do in fact make law
in France. Chapter 5 is an assessment of the process of law reform in France and serves
as a conclusion to this first part.
3
1
LEGISLATION AND
THE CONSTITUTIONAL
FRAMEWORK
Quand je dis que l’objet des lois est toujours général, j’entends que la loi considère les sujets
en corps et les actions comme abstraites, jamais un homme comme individu, ni une action
particulière.
J. J. Rousseau, Du Contrat Social.
The purpose of this first chapter is to introduce readers to the main constitutional
institutions and mechanism governing France, taking into account the 2008 major
overhaul of the 1958 Constitution (for a background to the 2008 reform see at
Chapter 5 under ‘The Functions assumed by Advisory Committees’). This chapter also
shows that legislation is the primary source of law in France, that there are different
types of legislation and that legislative sources are organised hierarchically. Also, this
chapter is intended to familiarise readers with French legislative drafting and with the
layout of a French statute. As will be seen later, much of French law—though not all of
it—is codified. Codification is a particular legislative technique common to most civil
law systems. It will be dealt with separately in the next chapter.
The points raised in this chapter should be considered in light of the fact that, in
France, more than one hundred statutes are produced in an average annual session
of Parliament, to which should be added the very large number (in the thousands) of
sets of rules and regulations made, each year, by ministers and various administra-
tive bodies. Latest figures further show that there are approximately 10,500 statutes
and 127,000 regulations in force today in France. Although legislative inflation is a
common phenomenon in France, it is taking on alarming proportions. There is a
French obsession consisting of passing a law each time a problem arises. As long ago
as the 18th century, Montesquieu (1748, The Spirit of Laws, Book XXIX) had issued a
warning against the detrimental impact of this negative tendency:
As useless laws debilitate such as are necessary, so those that may be easily eluded weaken
legislation.
Contemporary legal writers sum up Montesquieu’s statement in the following catch-

phrase: ‘Trop de lois tue la loi’.
4
4 LEGISLATION AND THE CONSTITUTIONAL FRAMEWORK
This over-abundance of statutory instruments has, in recent years, been a cause of

concern to officials and scholars who have been at pains to point out the negative im-
pact of such a large legislative output, especially in terms of quality of drafting, acces-
sibility, and effectiveness.
The chapter starts with a study of the various sources of legislation known in France,
followed by an examination of the French style of legislative drafting. The layout and
component parts of a French statute are outlined at the end of the chapter.
L E G I SL AT I V E S OU RC E S
For the purpose of this chapter ‘legislation’ or ‘legislative sources’ refer to written or
enacted law as opposed to customary or case law. Thus, all legal written texts, including
the Constitution and treaties, will be regarded here as ‘legislative’ sources within the
broadest meaning of that term.
G E N E R A L C HA R AC T E R I ST IC S OF L E G I SL AT ION
Legislation is the primary source of French law, at least in the domain of private law.
Indeed, a rigid theory of sources of law officially recognises only written sources as
‘proper’ sources of law. This dogmatic approach has been contrasted with the common
law by J. H. Merryman (2007, 25–26):
In the common law world, on the other hand, a world less compelled by the peculiar his-
tory and the rationalist dogmas of the French Revolution, quite different attitudes prevail.
The common law of England, an unsystematic accretion of statutes, judicial decisions and
customary practices, is thought of as the major source of law.
It is important, however, to note that a large body of French public law, known
as ‘administrative law’, has been created mainly by the courts, particularly by the
highest administrative court, the Conseil d’État, and looks very much like judge-
produced law within the common law meaning of that expression (see Chapter 11,
Administrative Law). Despite this, emphasis on legislation remains a central feature
of the French legal system. As already mentioned, this approach has a theoretical
basis not only in Rousseau’s works, but also, in the strong doctrine of the separation
of powers inherited from the men of the French Revolution, one of whose main
purposes was to protect the executive and the legislature against the judges (see fur-
ther at Chapter 4). Since then, although French constitutional practice has found it
necessary to adopt a more balanced distribution of powers, with judicial decisions
having in practice become an important source of law, the doctrine of separation
of powers, in its attempt to equate law with legislation, is still observed in many
respects.
A characteristic feature of legislation in France is that it takes a variety of forms,
particularly so since 1958, when the current constitution came into effect. Legislative
5
Legislative Sources 5
sources can be classified under four main categories, namely: constitution, treaties,
parliamentary statutes and government regulations.
In addition, although they have not been included in the above classification, a few
words should be said concerning administrative circulaires in view of their particular
importance in French law. Circulaires are directives and instructions issued by relevant
ministries to their agents, instructing them on how to interpret and apply new legis-
lation. Although circulaires are not technically a proper legislative source, they never-
theless play an increasingly important role in guiding public officials and judges in
their task of applying the law. In matters of fact, judges tend to rely increasingly on the
instructions contained in circulaires rather than on the originating statute itself. By way
of illustration, Circulaire of 14 May 1993 provided public prosecutors and judges with
a lengthy commentary on the 1992 Criminal Code with a view to guiding them in the
day-to-day interpretation and application of the then new criminal rules. More recent
examples of circulaires include Circulaire of 31 October 2005 on asylum applications
and applications for extensions to stay in the country in the context of irregular immi-
gration and Circulaire of 13 April 2016 on support for victims of terrorism, following
a wave of terror attacks carried out in France in 2015. The fear that under the cover of
these instructions government departments could quietly add to or subtract from the
letter or spirit of the statute they are only supposed to interpret, explains why the courts
have been reluctant to ascribe to them the status of legally binding rules. Private courts,
in particular, do not regard circulaires as being authoritative, but rather as internal
measures which do not have the same legal force and effect as lois or règlements (see, in
particular, Préfet du Nord v Melis (1950), D. 1951, 4). However, since the landmark de-
cision given by the Conseil d’État in Institution Notre Dame du Kreisker (1954), RPDA,
50, administrative courts have made a distinction between circulaires interprétatives
and circulaires règlementaires (also referred to as circulaires non impératives and
circulaires impératives in CE 18 December 2002, Mme Duvignères). Only the latter
are ‘law’ and are thus binding on the courts. As such, their validity can be reviewed
in the same way as any other administrative acts. In particular, they can be declared
illegal if they contravene a parliamentary statute (for an illustration, see Syndicat des
producteurs indépendants (1997), D. 1997, 467 where the Conseil d’État struck down
the Circulaire of 2 January 1995 issued by the Minister of Employment).
A further important aspect of French legislation is that legislative sources are also
categorised in accordance with a legal hierarchy whereby a norm lower in the hier-
archy must conform to norms at a level higher in that hierarchy. This is referred to as
the principle of hiérarchie des normes, based on the Austrian Hans Kelsen’s major work
Pure Theory of Law. According to Kelsen, law consists of a hierarchy of norms with, at
the top of this hierarchy, a so-called ‘basic norm’ from which the authority of the rest
of the norms in the system is ultimately derived. It follows that each legal norm in a
system is created and empowered by the norm higher than it in the legal hierarchy.
All authorities responsible for enacting laws in France must abide by this principle
of hiérarchie des normes. This is a very important aspect of the French doctrine of
État de Droit whereby public authorities are required to act in accordance with legal
6
norms, thus being subject to and not above the law. This organisation of legal norms
in France assumes the form of a pyramid with constitutional laws having greater value
than treaties; the latter, in turn, are superior to parliamentary statutes, which in turn
have precedence over government regulations.
This pyramid-like organisation of sources has been criticised for being unrealistic
and illusory especially in view of the tensions and uncertainties concerning the status
of EU law and international law. Indeed, French courts have not always responded
in a consistent way to the conflict between internal sources of law and international
agreements. Space is short here and does not allow for a full account of the legal
writings and litigation that the principle of hiérarchie des normes has given rise to.
However, an insight into the essential elements and mechanisms of the hierarchical
organisation of legislative sources is necessary in order to understand the significance
of legislation in France. For this purpose, the different categories of legislative sources
will be now considered in decreasing order of authority.
C ON ST I T U T ION A S T H E SU P R E M E N OR M
Since the 1789 Revolution, France has had an unbroken tradition of written constitutions
(fifteen in total). The current one is the Constitution of the Fifth Republic, adopted
by referendum and promulgated on 4 October 1958. The term ‘constitution’ must be
understood broadly to include not only the main text of the Constitution, which is
divided into sixteen headings, but also (since the landmark Conseil Constitutionnel
Decision 71–44 DC, 16 July 1971, Liberté d’association, Rec. 29), its preamble which
incorporates by reference a list of norms known as bloc de constitutionnalité. This bloc
includes:
(a) The 1789 Declaration of the Rights of Man which affirms principles such as
equality under law, freedom of speech, freedom of religion, and the presump-
tion of innocence.
(b) The social and economic rights listed in the preamble to the former 1946
Constitution. These rights include the right to work, to form trade unions,
and to strike. Also included are the right to education and the right to health
protection.
(c) The fundamental principles recognised by the laws of the Republic as referred
to in the 1946 Preamble. This is a rather vague category which is not defined or
illustrated by the preamble. However, the courts very often refer to this category,
which includes the principles of freedom of association, freedom of conscience,
and freedom of education.
(d) Since 2005, the rights and duties defined by the 2004 Charter for the Environment.
The Constitution is at the apex of the pyramid of norms. This means that Parliament
can only enact legislation in accordance with the constitutional norms, including the
7
rights and freedoms described above. It is the Conseil Constitutionnel, created for this
purpose in 1958, which is the exclusive authority competent to ensure conformity of
parliamentary statutes with the Constitution. In this respect, since the 1971 leading
case (cited above) which ascribed constitutional value to the 1789 Declaration and
the 1946 Preamble, the Conseil has become a primary protector of civil liberties in
France.
The Constitution is also superior to treaties. Although this has been the subject
of a controversy among constitutional lawyers, superiority here arises out of the
Constitution, art. 54, which provides that if the Conseil Constitutionnel has ruled
that an international agreement contains a clause contrary to the Constitution, then
the ratification of this agreement cannot take place unless the Constitution has been
revised. This happened in 1992, prior to ratification of the Maastricht Treaty. The
Conseil held that the treaty was contrary to the Constitution—particularly with re-
spect to the introduction of a single European currency and a new right of non-
nationals to take part in local elections—thereby requiring the amendment of the
Constitution before ratification could proceed. Further changes to the Constitution
were necessitated in 1999 in respect of the ratification of the Amsterdam Treaty, in
2005 with the Treaty intended to establish a European Constitution and again in 2008
for the Lisbon Treaty. Against the view that the Constitution is superior to treaties,
it has been held by many that in a monist system such as France, international
agreements, once ratified, should apply directly within the legal system, and in case
of conflict, should take precedence over all the internal sources of law, including the
Constitution. With regard to EU law, this approach had already been adopted by the
European Court of Justice in the early ground-breaking case of Costa v ENEL [1964]
ECR 585 where the court asserted the superiority of Community law over the laws of
the Member States. However, the highest administrative court in France, the Conseil
d’État, ruled in Sarran, Levacher et autres (1998), AJDA, 1039, that, within the in-
ternal legal order, the supremacy of international agreements applies only in relation
to parliamentary statutes (a point discussed in this chapter below), not to consti-
tutional provisions. It follows from what the Conseil d’État said that in the event of
the Constitution being, as in Sarran, incompatible with some treaty provisions, the
courts will not be able to set aside the Constitution in order to apply the treaty. Two
years following Sarran, in Pauline Fraisse (2000), Bull. ass. plen., no 4, the Court of
Cassation, using identical terms as in Sarran, held the Constitution to be superior
to treaties. These decisions may seem paradoxical since, on the one hand, as both
highest courts say, a treaty takes precedence over a parliamentary statute which, on
the other hand, may previously have already been declared to be in accordance with
the Constitution (following the procedure of constitutional review referred to below)
and, as such, is technically valid. This shows to a degree that the conformity of the
statute in question with the Constitution, and thus the Constitution itself, is of lower
importance than the treaty (in that a treaty can indeed override a constitutionally
valid enactment) and thus comes under the treaty in the hierarchy of norms.
8
T R E AT Y P ROV I SION S A N D D OM E ST IC L AW
Article 55 of the Constitution provides that duly ratified treaties take precedence over
domestic parliamentary statutes. Thus, in cases of conflict between the two, the treaty
will prevail. In the ground-breaking Decision 74–54 DC, 15 January 1975, Rec. 19,
IVG on abortion, the Conseil Constitutionnel ruled that it did not fall within its jur-
isdiction to examine the conformity of a parliamentary statute with a treaty, leaving
this task (later labelled ‘contrôle de conventionnalité’) to the ordinary courts (i.e. Court
of Cassation and Conseil d’État). However, this did not mean that the ordinary courts
were thereby empowered to strike down legislation which was incompatible with a
treaty provision. Instead, the ordinary courts have the power to declare that the legis-
lation is incompatible with the treaty, thereby setting aside the conflicting domestic
legislation and applying the treaty. It is important to note that art. 55 does not distin-
guish between international law and EU/Community law in its statement of the rule of
superiority. Thus both international and EU/Community law prevail over inconsistent
statutes. However, it is in the area of EU/Community law that, in the past, the rule of
superiority gave rise to major difficulty in French law, especially in cases of conflict
between the Treaty of Rome and a subsequent French statute, where such a statute
could be held to be a deliberate attempt by Parliament to override the pre-existing
treaty. Divergent views on this question were held by the Court of Cassation and by
the Conseil d’État. In Administration des Douanes v Société Cafés Jacques Vabre (1975),
D. 1975, 497, the Court of Cassation decided to give priority to the Treaty of Rome
over a subsequent conflicting parliamentary statute introducing discriminatory cus-
toms duties and internal taxes on other Member States’ products. However, following
the line taken a few years earlier in Syndicat Général des Fabricants de Semoules de
France (1968), D. 1968, 285, the Conseil d’État persisted in the view that applying art.
55 in such circumstances amounted to intervening in the province of the legislature
by holding Parliament to account for adopting statutes that were contrary to pre-
existing international agreements. Syndicat Général was eventually overruled twenty
years later in Nicolo (1989), JCP 1989, II, 21371, where the Conseil agreed to examine,
in accordance with art. 55, whether a 1977 statute delimiting the constituencies for
elections to the European Parliament was compatible with the provisions of the Treaty
of Rome. Nicolo was welcomed, as it brought renewed consensus to the courts over
what had, until then, been a contentious issue. Although case law regarding the super-
iority of treaties has, in its early years, mostly related to the EC Treaty, there has been
later similar resolution as in Société Cafés Jacques Vabre and Nicolo in favour of other
international agreements, such as the 1950 European Convention on Human Rights
(Court of Cassation, Ass. Plén., Marc X. and René X. 11 December 1992, JCP 1993,
II, 21991), and the 1957 European Convention on Extradition (CE Urdiain Cirizar
23 October 1991, Leb. 347). It should also be noted that French courts have further
recognised the primacy of Community regulations and directives over domestic law
(in CE Boisdet 24 September 1990, Leb. 251, for regulations, and in CE SA Rothmans
International France and SA Philip Morris France 28 February 1992, Leb. 81, for
9
directives). Moreover, in Decision 2004–496 DC, 10 June 2004, Loi sur la confiance
dans l’économie numérique, Rec. 101, the Conseil Constitutionnel itself, for the first time
ever, decided that the transposition into domestic law of an EU directive was an issue of
constitutional law. As a consequence, the Conseil now reviews the constitutionality of a
statute designed to transpose a directive into domestic law (Decision 2006–540 DC, 27
July 2006, Loi relative au droit d’auteur dans la société de l’information, Rec. 88.). More
specifically, the Conseil will scrutinise such a statute when it is manifestly incompatible
with the directive (which would appear to exclude circumstances where the directive
is transposed verbatim into domestic law or where the discrepancy between the two
texts is not ‘manifest’). However, the Conseil will not engage in any scrutiny to impose
compliance to the directive when such transposition of the directive would amount
to a breach of any ‘rule or principle inherent to the constitutional identity of France’.
It should be pointed out that the Conseil d’État decides along similar lines as outlined
when asked to review the legality of a domestic regulation transposing a directive into
domestic law (see, CE Société Arcelor Atlantique et Lorraine 8 February 2007, Leb. 56).
This case law is further evidence of the unease felt by French courts when dealing with
possible conflicts between Community and domestic law: on the one hand they are
willing to abide by the rule of ‘common participation’ in the Community and EU in-
stitutional and legal framework laid down in the Constitution, art. 88–1; on the other
hand, under the domestic principle of the hierarchy of norms, they still hold to the
value of maintaining the Constitution as the supreme norm. France is not alone in
having difficulty grappling with the issue of primacy of Community law over domestic
legislation. Other European constitutional courts exhibit in their decisions the same
degree of ‘conditional acceptance’ of EU law (see, the so-called Solange case law of
the Federal Constitutional Court of Germany according to which Germany will only
accept the supremacy of EU law ‘so long’ as it does not contravene the fundamental
rights laid down in the Grundgesetz (the German Basic Law); similarly, see the deci-
sion of the Italian Constitutional Court in the Fragd case of 21 April 1989 ((1989) 72
RDI 103).
PA R L IA M E N TA RY STAT U T E S
These take a variety of forms depending on the authority empowered to enact them
and the specific procedures required for their adoption. In these respects, distinctions
can be drawn between:
(a) Lois organiques: these supplement the Constitution on matters related to the
organisation of public powers such as the status of judges (Constitution, art.
65) and presidential elections (Constitution, art. 6). The procedures applied for
the adoption of lois organiques are set out in the Constitution, art. 46, and differ
from the ordinary procedures preceding the passage of a bill. In particular, any
loi organique must be referred to the Conseil Constitutionnel for scrutiny. This
differs from the case of ordinary bills where referring a statute to the Conseil is
not automatic.
10
(b) Lois référendaires: these are passed by means of a referendum. Any bill introduced
by the government and dealing with the organisation of public powers, the social,
economic, and environmental policy of the nation or the ratification of a treaty
may be submitted to a referendum by the President of the Republic (art. 11).
Also, since the 2008 constitutional reform, a referendum may be held upon
the initiative of one fifth of members of Parliament supported by one tenth of
voters enrolled on the electoral lists.
(c) Ordonnances: under the Constitution, art. 38, Parliament may delegate to the
executive its law-making power in specific areas. This delegation permits the
executive to enact law, within the field of parliamentary authority, by means
of ordonnances, but for a limited period only—usually three to six months—
and in order to carry out its programme, as provided for in art. 38. As with
any delegated legislation, the advantage of ordonnances is that legislation can,
in this way, be introduced more quickly without going through all the time-
consuming legislative procedures. Ordonnances are passed by decision of the
Conseil des Ministres following consultation with the Conseil d’État, acting
within its function of advisory body. In order to acquire the same legal force and
effect as an ordinary parliamentary statute, ordonnances need to be approved
by Parliament. Prior to approval they have the status of règlement (see below).
In recent years, the increased legislative output and the consequent pressure on
available parliamentary time has increased resort to ordonnances, particularly
with respect to the enactment of new codes and also of major reforms in im-
portant areas of law (e.g. children in 2005, and contract in 2016).
(d) Lois ordinaires: these refer to the ordinary legislative process in Parliament,
which is briefly outlined below. Before turning to this, it should be noted that
this legislative process is characterised in the 1958 Constitution by a severe re-
striction of Parliament’s law-making power and a corresponding increase in the
government’s involvement in parliamentary business. Indeed, one of the most
striking features to arise out of the 1958 Constitution has been that Parliament no
longer enjoys legislative sovereignty and now has to share its legislative function
with the government. Article 34 of the Constitution gives a limited list of matters
on which Parliament is authorised to legislate. These embrace, inter alia, civil
liberties (including, since 2008, ‘the freedom, pluralism and independence of
the media’), nationality, civil status, taxes, criminal law, and criminal procedure.
Under art. 37 of the Constitution, any other subject not expressly specified in
art. 34 is left entirely to the discretion of the executive power. This distribu-
tion of power to legislate under arts 34 and 37 is enforced both by the Conseil
Constitutionnel and by the Conseil d’État. As far as the former is concerned (the
Conseil d’État is discussed below), it has the power, prior to enactment, to strike
down parliamentary statutes which are passed outside the areas specified in
art. 34. However, in spite of the art. 34 limiting list, the Conseil Constitutionnel
chose to widen the field of application of this article by upholding parliamentary
1
statutes that had in part strayed out of Parliament’s strict authorised area of
competence (Decision 82–143 DC, 30 July 1982, Blocages des prix et des revenus,
Rec. 57). Conversely, the Conseil makes sure that Parliament does not delegate
to the government, other than by ordonnances (see above), its rule-making au-
thority arising out of art. 34. A loi cannot, therefore, leave it to the government
to determine by the issuance of regulations any question falling within any of
the areas covered by art. 34 (e.g. a restriction to any right of ownership). This as-
pect has been referred to as incompétence négative (see e.g. Decision 67–31 DC,
26 January 1967, Indépendance et inamovibilité des magistrats, Rec. 19; Decision
2006-540 DC,27 July 2006, Droit d’auteur, cited above.).
Turning now to the legislative process, its main characteristics and principal stages are
described below.
(i) The French Parliament consists of two houses, the Assemblée Nationale (currently
577 members) and the Sénat (currently 348 members). Before any legislative proposal,
known at that stage as a projet de loi (governmental bill) or proposition de loi (private
members’ bill), can become a loi it must pass through, and be approved by, both houses
and it is possible to commence the legislative procedure in either house. If, after having
been given two readings, in both houses, no agreement can be reached between the
two houses, the government has the option of setting up a commission mixte paritaire.
This is a special committee consisting of an equal number of members of both houses
set up with a view to drawing up a text acceptable to both. If this too is unsuccessful,
then the Assemblée Nationale has the final say. Before any bill can become law, its
promulgation by the President of the Republic must take place within fifteen days. The
Constitution, art. 10, provides for the possibility, before promulgation, of passing back
the bill to Parliament for further consideration. The President of the Republic may also,
at his discretion, refer the bill to the Conseil Constitutionnel for constitutional review.
Reference to the Conseil is also open, under art. 61 of the Constitution, to the Prime
Minister, the presidents of both houses of Parliament, and a group of 60 members from
either of the two houses. Following reference to the Conseil under art. 61, and provided
the new loi has not been struck down, it comes into effect following its publication in
the official edition of statutes and decrees, the Journal Officiel—Lois et Décrets (cited
as JO).
It should be noted that, in 2008, a new article, art. 61–1, was introduced into the
Constitution whereby, if in the course of court proceedings, a claim is made by a party
to the case that a legislative provision infringes upon one of his rights and freedoms
guaranteed by the Constitution, then, depending on the nature of the proceedings
(private or public), either the Cour de Cassation or the Conseil d’État may refer the
matter to the Conseil Constitutionnel for a preliminary ruling on its constitutionality.
This new procedure, known under its French acronym as QPC (question prioritaire de
constitutionnalité), has proven successful. Between 2010 and 2015, 465 QPCs were pre-
liminarily referred to the Conseil Constitutionnel. The procedure also has far-reaching
consequences, since the Conseil may decide to strike down the statutory provision
12
under review. More generally, QPC, by broadening constitutional review in France,

has allowed the Conseil to get closer to other European constitutional courts, which
for long have allowed ordinary citizens to challenge—directly or indirectly—the con-
stitutionality of statutory provisions. Notwithstanding this development, the Conseil
Constitutionnel has not developed into a US-style Supreme Court, but remains part
of the centralised Kelsenian system of judicial review whereby the power of constitu-
tional review is vested in a single special court which remains outside the traditional
structure of the judicial branch.
(ii) When considering the legislative process it should be pointed out that a certain
number of constitutional measures were originally designed in the 1958 Constitution
to ensure control of this process by the government as illustrated below:
(a) Legislative agenda: until 2008, there was practically full governmental control of
the legislative timetable and agenda of both houses (Constitution, art. 48). This
meant, in practice, that the government could give higher priority to its own
bills over private members’ bills. However, under the new amended art. 48, the
ordering of priority has been changed to pay more attention to the proposals of
minority groups in Parliament as well as to the questions addressed by members
of Parliament to the government itself.
(b) The procedure of vote bloqué (Constitution, art. 44(3)): the government can
at any time insist on a single vote to be taken on all or part of the text being
debated with sole consideration by Parliament of the amendments it (the gov-
ernment) alone has proposed.
(c) Under art. 49(3) of the Constitution, the government has an option to make
the passing of a bill an issue of a vote of confidence before the Assemblée
Nationale. This procedure was amended in 2008, with effect in 2009. Prior
to this date, such a measure could be taken by the government for any bill
where it wished to push through controversial legislation and thereby to
rally its own troops by forcing a majority in Parliament. The bill, when
passed using this procedure, was automatically adopted unless a vote of cen-
sure (motion de censure) was then taken and carried. In the past, art. 49
(3) was frequently used by successive governments as a way in which to
force through their policies. Since 2009, this procedure is now restricted to
Finance and Social Security Financing Bills; it may also be used by the Prime
Minister for one further government bill or private members’ bill per parlia-
mentary session.
G OV E R N M E N T R E G U L AT ION S
This form of legislation, in terms of the field it covers, is the French equivalent of sub-
ordinate or delegated legislation in common law systems such as England. However,
in France, the power to issue regulations vested in ministers or other central rule-
making authorities does not necessarily derive from parliamentary delegation. Here,
13
Legislative Drafting 13
an important distinction must be drawn between règlements autonomes and règlements

d’application.
The former concern the independent authority to legislate vested in the government
by art. 37 of the Constitution (see above). Règlements autonomes are means by which
the President and the Prime Minister introduce, through the power they hold under
art. 37 of the Constitution, specific regulations in the form of décrets or arrêtés (the
latter in the event of a delegation to government ministers, local authorities or other
public bodies). These regulations are legally binding without the need for enabling le-
gislation. Règlements issued under art. 37 are thus as much legislation as the lois which
Parliament enacts under art. 34. However, while the ordinary courts have generally no
power to decide on the constitutionality of a loi (only the Conseil Constitutionnel can
do this, see above), règlements are subject, like most governmental actions, to scrutiny
by the Conseil d’État by way of a recours pour excès de pouvoirs (REP), a form of pro-
ceedings whereby the legality of administrative decisions is reviewed by an adminis-
trative court (REP is further considered in Chapter 11). In this respect the government
must comply, as any other public body, with the principle of the hierarchy of norms.
Thus, a ministerial décret or arrêté will be declared illegal, and then invalidated by the
Conseil d’État, if it contravenes the Constitution, a treaty, or a parliamentary statute.
Règlements d’application usually take the form of décrets and can only be made in
relation to particular parliamentary statutes to which they give effect by providing the
detailed rules necessary for their implementation. In this respect, the enabling statute
contains a specific provision stating that all or part of the details of its application
are to be defined by a ‘décret en Conseil d’État’. Both types of règlements are issued in
the form of statutory instruments and, as with statutes, are published in the JO. Their
drafting is usually left to legal advisers in the relevant ministries. They are not laid be-
fore Parliament and, in the case of décrets, are usually discussed and adopted in the
Conseil des Ministres, following prior consultation with the Conseil d’État acting here,
not in its judicial, but in its advisory capacity.
L E G I SL AT I V E DR A F T I N G
Legislative drafting has been the subject of much scrutiny and criticism in recent
years. Working groups similar to the 1975 Renton Committee and the 1992 Hansard
Society Commission in England have been set up in many jurisdictions with a view to
providing some guidance and making recommendations on the drafting of statutes.
In France, numerous studies have been carried out during the last twenty years on the
need to develop programmes to turn out legislative technique into a proper science
(normographie) or, at least, an art (légistique, Rémy, 2004). Similar moves aimed
at rendering legislation clear and simple have been observed within the European
Community specifically since the adoption in 1993 of a Resolution of the Council of
the European Communities relating to the quality of drafting of Community legisla-
tion, [1993] OJ C166/1. In addition, numerous works, including guides to legislative
14
drafting, have been written on this theme and widely published. Some authors have
even suggested that the science of legislation should be taught in law schools in order
to maintain a satisfactory standard in the practice of legislative drafting. French legal
scholar Jean Carbonnier (1995), in an authoritative sociological study on legislation,
has challenged this perceived need for producing legislative drafting guides which are
purportedly aimed at improving the quality of statutory instruments. He says:
A people does not need treatises on the art of legislating in order to achieve good legisla-
tion; it is rather on centuries of legislation that stood the test of time that one should rely
to build up a science of legislation.
Adding to the above, Carbonnier emphasises that much of the poor quality of modern
legislation comes not from its drafting but from its lack of rationalisation, which is
a direct consequence of the constant need felt by modern parliaments to reform the
law, and from the fact that contemporary legislative procedures are unable to deal ef-
fectively with the effects of the inflationary tendency in over-abundant legislative pro-
duction. However, the intense legislative activity characteristic of modern parliaments
described by Carbonnier follows directly from the increasing complexity and tech-
nicality of the law which has been stretched to meet the ever-increasing demands of
modern states. Drafting legislation, therefore, involves keeping a difficult balance be-
tween political reality and legislative quality.
One way the French legal system deals with such a complex task is to assign to the
Conseil d’État the role of supervising the process of legislative drafting. Apart from being
the highest administrative court in France, the Conseil d’État is also, as has already been
said, a consultative body to the government. It is in this latter capacity that the Conseil
examines all bills drafted by the government and referred to it for avis (advice), prior to
their discussion in Parliament. Although the government is not bound by the Conseil’s
suggestions, it nevertheless pays considerable attention to them. The Conseil draws the
government’s attention to defects in the bill in terms of style, terminology, coherence,
and context. It is also part of its function to comment on infringements of constitutional
norms, international agreements, and fundamental principles of law contained within
the bill. In so doing the Conseil acts as a filter to eliminate bad drafting and, more gener-
ally, bad law. In this respect it allows the government to foresee the legal objections that
are likely to be raised during parliamentary discussion.
The French style of legislative drafting will now be described in more detail with
illustrations of the way laws are designed in France. The approach which has been
adopted here is to compare and contrast some of the most original features of the French
style of drafting legislation with the principal alternative, the English model. This com-
parison between two systems enables an analysis in terms of the following distinctions:
(a) generality v particularity;

(b) simplicity v complexity.
These are now considered in turn.

15
G E N E R A L I T Y V PA RT IC U L A R I T Y
This distinction refers to the method whereby rules of law are formulated in each of
the two systems, France and England. It is commonly asserted that the French have
a tendency to express their rules of law in the form of general principles, in sharp
contrast to the opposing English tendency to dress rules up as directed at specific
situations the lawmaker wants to cover. One of the most frequently cited examples of
‘generality’ in French legislation is the expression, in the Civil Code, of the whole law
of tort in only five articles—former arts 1382–1386—now arts 1240–1244. However,
this example is not totally accurate. Indeed, a cause of action in tort law arises not
only from arts 1240–1244, but also from specific torts contained in a number of other
existing statutes or codified provisions intended to supplement the original Civil
Code provisions. Examples of these are the Law of 5 April 1937 on the liability of
teachers, the Law of 5 July 1985 on road traffic accidents, the Law of 9 September 1986
on terrorism, the Law of 31 December 1991 regarding AIDS victims. In addition, the
Civil Code itself includes specific regimes of liability such as arts 1245 to 1245–17 of
the Civil Code on product liability (former arts 1386–1 to 1386–18) and, since the
Law 2016-1087 of 8 August 2016 on biodiversity, arts 1246–1252 on environmental
damage.
Generality remains, however, a characteristic feature of French legislative drafting in
the manner in which legislative provisions are worded and in respect of the scope they
are intended to cover. These characteristics can once more be traced back to Rousseau
(Du Contrat Social, Book II, Chapter VI) for whom ‘the scope of legislation is always
general’. Constitutional theorist Raymond Carré de Malberg (1931) claims, in a similar
vein, that the generality of legislation lies in the fact that statute or code provisions
are, by their nature, not enacted with a view to being applied in specific or individual
situations. On the contrary, according to this author, legal provisions are meant to cover
an infinite number of legal situations, present and future, so long as these situations fall
within the scope of the abstract provisions of the relevant enactment.
From this abstract conception of legislation it follows that:
(a) French legal rules commonly take the form of statements of general principle
encapsulated in broad language and short sentences. This creates a certain degree of
solemnity, with rules of law appearing as common sayings or maxims. By way of illus-
tration, some typical examples are given in French below:
Article 2, Civil Code: la loi ne dispose que pour l’avenir; elle n’a point d’effet rétroactif.
Article 359, Civil Code: l’adoption est irrévocable.
Article 1103, Civil Code: les contrats légalement formés tiennent lieu de loi à ceux
qui les ont faits.
Article 2276, Civil Code: en fait de meubles, la possession vaut titre.
Article 111–4, Criminal Code: la loi pénale est d’interprétation stricte.
(b) French legal rules are also impersonal. This is reflected in the frequent use of
indefinite pronouns, adjectives, or articles in code provisions. Hence, the use of
16
the words un/une, on, quiconque, chacun, tout/toute, as shown in the following
examples:
Article 6, Civil Code: on ne peut déroger par des conventions particulières aux lois
qui intéressent l’ordre public et les bonnes moeurs.
Article 9, Civil Code: chacun a droit au respect de sa vie privée.
Article 223–6, Criminal Code: Quiconque pouvant empêcher par son action
immédiate, sans risque pour lui ou pour les tiers, soit un crime, soit un délit contre
l’intégrité corporelle de la personne s’abstient volontairement de le faire est puni de
cinq ans d’emprisonnement et de 75 000 euros d’amende.
The examples given above are drawn from code provisions, and it must be noted that
the use of broad language is intimately related to the technique of codification (see
Chapter 2). At the time of presentation of the draft Civil Code to the Conseil d’État
in 1799, Portalis, one of the authors of the code, claimed: ‘the role of the law is to lay
down broad maxims of law; to establish fertile principles, and not to go into the detail
of the issues which may arise out of a matter’. This style of writing has however become
common practice in everyday legislation, even for statutes which are not codified. The
Law of 6 July 1989, art. 1 on the fundamental right to housing is a good example:
Le droit au logement est un droit fondamental; il s’exerce dans le cadre des lois qui le
régissent.
Common lawyers unfamiliar with the process of law-making in France might point out
the damaging consequences that such a method of drafting may have especially with re-
spect to legal certainty. Indeed, according to them, if only principles are enunciated in
statutes, or if the terms used are too vague, then it is feared that the judge may find a way
of avoiding the application of the relevant provisions to the very circumstances the le-
gislator was wishing to cover. In this respect, the generality of French statutes and code
provisions may be contrasted with the particularity observed in English legislative drafting.
Particularity, in this context, means primarily that the legislative draftsman always tries to
cover all situations when drafting a text. This has resulted in the so-called practice of ‘cata-
logue’ in English statutes. Particularity also implies precision when drafting legislation.
The draftsman must make sure that an accurate form of expression has been used and do
what is possible to avoid vagueness. The frequent resort to definition of key words in a spe-
cial definition section is aimed at enhancing precision in common law statutes.
However, in response to the criticism made against the generality of French statutes,
it may be pointed out that:
(i) Generality in French legislative drafting must be understood against the fre-
quent use, in France, of subordinate legislation aimed at supplementing the par-
liamentary statutes to which they give effect. Indeed, décrets and arrêtés, when
compared to the statutes they supplement, are highly specific, detailed, and tech-
nical. Despite the fact that it has the adverse effect of shifting much of the legis-
lative production from primary legislation to governmental regulations, resort to
subordinate legislation means that there is less need for statutes to be detailed.
17
(ii) Trying to exhaust all the possibilities covered by a text would reasonably
appear to be an impossible task, not to say an illusory one. Here, certainty
can never appear to be successfully achieved for the simple reason that the
draftsman cannot foresee all the situations that may arise in future cases
brought to court.
(iii) Contrary to conventional belief, the more precise and detailed the legislation,
the greater the risk of inconsistency and contradiction in the law with its at-
tendant risks of litigation. Both risks are significantly increased at times of heavy
legislative production and are most obvious in systems of law which exhibit a
general lack of coherence principally because they rely on a variety of dispersed
and fragmentary sources rather than on general principles.
(iv) Concision, a salient characteristic of the French legislative style (discussed
further in this chapter below), is not necessarily exclusive of a certain degree
of precision. Concision, defined as the quality of expressing the essential in a
few words, can achieve this precision without the need to be detailed, unlike
the majority of English statutes where details are very often redundant or
needless. Article 271 of the Civil Code provides an example of draftsmanship
which illustrates a combination of concision and precision on the particularly
complex question of the conditions for spousal maintenance after divorce:
Article 271
English translation (source: Legifrance): A compensatory allowance must be fixed
according to the needs of the spouse to whom it is paid and to the means of the other,
account being taken of the situation at the time of divorce and of its evolution in a
foreseeable future.
For this purpose, the judge shall have regard in particular to:
— the duration of the marriage;
— the ages and states of health of the spouses;
— their professional qualifications and occupations;
— the consequences of the professional choices made by one spouse during their living
together for educating the children and the time which must still be devoted to
this education, or for favouring his or her spouse’s career to the detriment of his or
her own;
— the estimated or foreseeable assets of the spouses, both in capital and income, after
liquidation of the matrimonial regime;
— their existing and foreseeable rights;
— their respective situations as to retirement pensions, having estimated, as much as
possible, the reduction of the retirement rights that circumstances mentioned in
the sixth paragraph above might cause for the spouse creditor of the compensatory
allowance.
18
[French text: La prestation compensatoire est fixée selon les besoins de l’époux à qui
elle est versée et les ressources de l’autre en tenant compte de la situation au moment
du divorce et de l’évolution de celle-ci dans un avenir prévisible.
A cet effet, le juge prend en considération notamment:
— la durée du mariage;
— l’âge et l’état de santé des époux;
— leur qualification et leur situation professionnelles;
— les conséquences des choix professionnels faits par l’un des époux pendant la
vie commune, pour l’éducation des enfants et du temps qu’il faudra encore y
consacrer, ou pour favoriser la carrière de son conjoint au détriment de la sienne;
— le patrimoine estimé ou prévisible des époux, tant en capital qu’en revenu, après
la liquidation du régime matrimonial;
— leurs droits existants et prévisibles;
— leur situation respective en matière de pensions de retraite en ayant estimé, autant
qu’il est possible, la diminution des droits à retraite qui aura pu être causée, pour
l’époux créancier de la prestation compensatoire, par les circonstances visées au
sixième alinéa.]
Article 271 deals neatly with the question of financial provision ordered by the judge
in the event of breakdown of a marriage. It clearly states in as few words as possible
the principle according to which maintenance is due, this being only in proportion to
the needs of the spouse claiming it, and to the means of the spouse by whom it is pay-
able. It then articulates the circumstances which the court may take into account when
calculating the sum. This enumeration provides the court with meaningful and helpful
guidance on how to calculate the sum due without being too specific, thus leaving to the
courts the role of developing the criteria listed in the text with the possibility offered to
the judges of adding to the list, as the phrase ‘in particular’ suggests (notamment in the
French version of the text). Article 271’s enumeration also illustrates that the tendency
towards ‘catalogue’, much favoured by the English legislative draftsman, is not com-
pletely alien to French law. However, the particularity of French ‘catalogue’ provisions is
that, first an inclusive principle is stipulated (‘A compensatory allowance . . . in a foresee-
able future’), in advance of describing particular circumstances which may arise under
this principle. Therefore, a ‘catalogue’ in French law is not aimed at exhausting all the
situations the legislator may wish to cover, but rather at providing mere illustrations of
possible situations being covered by the prior-stated inclusive principle which, in this
way, can be extended by the courts to further appropriate situations and circumstances.
SI M P L IC I T Y V C OM P L E X I T Y
The late Sir William Dale (1981), an influential English contributor to the international
public debate on legislative drafting, argued that, because ‘a statute is the supreme act
of the Sovereign in Parliament addressed to the citizen’, it was reasonable to expect of it
certain qualities associated with simplicity such as economy, directness, and orderliness.
19
According to Dale, English statutes are complex and difficult to read precisely because
they lack these qualities, consequently suffering, as he says, from ‘verbal incontinence’ and
‘bad arrangement’. Dale favours the Continental European practice of drafting legislation
which, by contrast to the English, has managed to achieve the clarity and brevity necessary
for simplicity, in particular by placing more emphasis on principle than on detail.
Dale’s concern for simplicity in legislation is not new. Montesquieu, in his famous
The Spirit of Laws (1748), had already expressed the need for the style of legislation to
be concise, plain and simple. ‘Laws should not be subtle’, he said, ‘they are designed for
people of common understanding, not as a work of logic, but as the plain reasoning of
a family father’ (Book XXIX, 16). The same with Jeremy Bentham, who, in his Theory
of Legislation (Chapter XVII) advocated: ‘The style and the method should be simple;
the law ought to be a manual of instruction for each individual; and everyone should
be enabled to consult it in doubtful cases without the aid of an interpreter’.
Turning to French legislative drafting today, it may be said that, following Continental
European practice, legislative provisions tend generally to avoid verbosity, as well as re-
dundancy and circumlocution, and to exhibit an orderly approach to sentence structure.
This can be illustrated by a simple example which contrasts the way rules governing par-
ental responsibility are formulated in France and in England. In England, these rules
are found in the Children Act 1989, s. 2, and in France, in art. 372 of the Civil Code.
These two texts serve an identical purpose: the allocation of parental responsibility to a
child’s parents. However, what is striking at first glance is that art. 372 is much shorter
overall, with shorter sentences, and contains only three paragraphs in contrast with
eleven subsections in s 2 of the English Act. The principal reason for this is that art. 372
addresses only the situation of the father and mother of a child and does not deal with
third parties to whom parental responsibility may be delegated. The situation of third
parties is dealt with elsewhere in separate provisions. In contrast, s 2, consisting of a
patchwork of provisions where the general and the qualified are mixed together, deals
with the situation of third parties together with the situation of the parents.
However, it would be incorrect to assume from the above that all statutory
instruments in French law present similarly identical characteristics to the ones which
have served as illustrations in this part of the chapter. In the area of public law, code
provisions and statutes are not all free of these very characteristics that have provoked
complaint about English drafting: length, complexity, detail, and over-repetition. Many
examples can be found in the area of tax law where a large number of code provisions
have become increasingly verbose, extremely technical and overly detailed, with the
adverse result that paragraphs are not any more clearly identified or easy to read (see
e.g. the over-lengthy art. 31 of the Tax Code—Code Général des Impôts).
A further well-known example of bad drafting is art. 121–3 of the Criminal Code
in situations where the defendant had no intention of committing the crime but was
careless. It reads as follows in French (emphasis added in view of the comments that
follows the text of the article):
Il n’y a point de crime ou de délit sans intention de le commettre.
Toutefois, lorsque la loi le prévoit, il y a délit en cas de mise en danger délibérée de la
personne d’autrui.
20
Il y a également délit, lorsque la loi le prévoit, en cas de faute d’imprudence, de négligence

ou de manquement à une obligation de prudence ou de sécurité prévue par la loi ou le
règlement, s’il est établi que l’auteur des faits n’a pas accompli les diligences normales compte
tenu, le cas échéant, de la nature de ses missions ou de ses fonctions, de ses compétences
ainsi que du pouvoir et des moyens dont il disposait.
Dans le cas prévu par l’alinéa qui précède, les personnes physiques qui n’ont pas causé
directement le dommage, mais qui ont créé ou contribué à créer la situation qui a permis
la réalisation du dommage ou qui n’ont pas pris les mesures permettant de l’éviter, sont
responsables pénalement s’il est établi qu’elles ont, soit violé de façon manifestement
délibérée une obligation particulière de prudence ou de diligence prévue par la loi ou le
règlement, soit commis une faute caractérisée et qui exposait autrui à un risque d’une
particulière gravité qu’elles ne pouvaient ignorer.
Although this text was amended for clarity in 2000, certain word groupings are still
badly arranged in complex sentence structures. This is due to a succession of qualifying
phrases and clauses which, to take as an example the sentence commencing ‘Dans le
cas prévu . . .’ , distance the verb (‘sont responsables’) from close proximity to its subject
(‘les personnes physiques’). This text also displays verbosity, redundancy, tautologies,
and the over-use of negatives, in short all the right ingredients for muddling a text and,
thus, making it difficult to follow. As examples of tautology, in the second and third
sentences of the text, ‘il y a délit’ (in English, ‘there is an offence’) makes redundant
‘lorsque la loi le prévoit’ (‘when provided for by law’); the same may be said, in the third
sentence, ‘en cas de faute d’imprudence, de négligence’ (in English, ‘in circumstances of
recklessness and negligence’) which makes redundant ‘n’a pas accompli les diligences
normales’ (‘who has not acted with reasonable care’).
Something further to bear in mind when dealing with the objective of simplicity
in legislative drafting is that, paradoxically, simplicity—and simplicity of language in
particular—may result in more complexity. For example, in 1985, at the time of the
legislative reform of the law concerning road traffic accidents, it was decided on the
question of causation to use the broader concept of implication in the new statute, ra-
ther than the traditional, but more technical and difficult to assess, concept of causalité
(causation). The aim here was to facilitate the plaintiff ’s burden of proof. However, the
change generated more doctrinal controversy and more litigation than had previously
been the case. This illustrates clearly the paradox that efforts to achieve simplicity in
drafting may still fall foul of the technical and complex nature of the law.
How, then, is one to find a way forward, in France as in other jurisdictions, for the
successful achievement of simplicity in legislative drafting? One way might be to deter-
mine in advance a typical format for legislative enactment capable of striking a balance
between open space on the page and the written word, using this format as a ‘legisla-
tive model’ for further statutes. Determining in advance a typical legislative format
implies establishing a list of criteria about aspects of drafting such as the placement
and positioning of the different elements of a statute on a page, the point size and the
weight given to the letters of the text, the spacing and margins applied, as well as the
use of indents and titles. This approach was considered and tested during the 1997
Canada–Ukraine Legislative Drafting Programme. While recounting his experience
as Director of the Programme, Robert C. Bergeron QC (2000) describes how it was
21
Layout and Component Parts of a Statute 21
possible during the programme to prepare a set of legislative drafting rules and to de-
cide on a legislative model by carrying out a study of statutes from a ‘purely logistical
look at the written form’. In the course of this study, copies of recent statutes from each
of the thirteen Canadian governments were distributed to the Ukrainian participants,
making sure than none of the statutory texts was translated so that they would not be
distracted by their content. In this way, the participants were induced to look at and
examine them while being unable to read them. This facilitated unbiased and con-
structive suggestions towards the creation of an ‘ideal, easy, user-friendly model for
a normative text’. In other words, in order to achieve simplicity the draftsman must
consider visual presentation as being as important a feature as content when drafting
a statute. Good drafting implies, as Bergeron said, that ‘a normative text should never
look like the first prize in a “put-as-many-words-as-you-can-on-the-page” contest’.
L AYOU T A N D C OM P ON E N T PA RT S OF
A STAT U T E
Here, as under the previous sub- heading, the French and English methods are
contrasted for comparative purposes.
The layout of a French statute differs considerably from the way Acts of Parliament
are arranged in Britain and other Commonwealth countries. In particular, there is
not the same distinction in French statute law as that between long and short titles
to be found in English law, nor does a French statute contain schedules or other mar-
ginal notes. Definition and interpretation sections are also alien to French statutes.
Furthermore, the practice in France is to divide up the statute into articles as opposed
to sections and, instead of numbered subsections, to use indented paragraphing
(called alinéas) within the article. However, Acts of Parliament and French statutes
do display certain similar features such as enacting formulae, parts and headings, and
commencement and transitional provisions.
The various components and the format of a French statute are outlined below.
DAT E
Starting at the beginning of a statute one finds the date of promulgation. Promulgation
is the French equivalent of Royal Assent. The date is itself preceded by the statute
number, such as ‘Loi 2004–228 du 15 mars 2004’. In this example, the first four digits
indicate the year, the following ones indicate the rank of publication of the loi in the
JO within the given year. Statute numbers are important for citation purposes when
distinguishing between lois promulgated the same day, for example, Loi 2016-1087 of 8
August 2016 on biodiversity and Loi 2016-1088 of 8 August 2016 on quality of employ-
ment and enhancement of social dialogue within the workplace. Statutes dating back
to the French Revolution of 1789 are cited by naming the date of their vote together
with the date of their promulgation, such as the famous Loi of 16–24 August 1790 on
the separation of powers, which remains in force.
2
TITLE
Next comes the title. As stated above, there is, in France, no difference, as is the case
in England, between long and short titles. There is only one title, intended to provide
a general indication of the scope of the statute or of the aim pursued by Parliament
in enacting the law. To serve as examples are the Loi of 24 August 1993 which bears
the title: ‘relative à la maitrise de l’immigration et aux conditions d’entrée et d’accueil
des étrangers en France’ and the Loi of 15 June 2000 ‘renforcant la protection de la
présomption d’innocence et les droits des victimes’. The title can also be a means of refer-
ence to the legislation it modifies. For example, the Loi of 4 January 1978 ‘modifiant le
Titre IX du Livre III du Code Civil’. In this case the title is of very little help for under-
standing the scope or meaning of new legislation although it does enable the reader to
zero in on the pre-modified text of legislation in force previously. The lack of a short
title in French statutes is a practical drawback when considering that short titles are
very convenient for citation purposes. To remedy this, French statutes are very often
cited with reference to the Minister or Member of Parliament who initiated the bill,
such as the famous Loi Debré (1959) on education, or Loi Veil (1975) on abortion,
Loi Badinter (1985) on road traffic accidents and more recently Loi Taubira (2013)
extending marriage to same-sex couples. Occasionally, in practice, the title of a statute
is shortened such as the Loi of 2 February 1981 ‘renforcant la sécurité et protégeant la
liberté des personnes’ known as ‘Loi sécurité et liberté’, the civil registered partnership
Loi of 15 November 1999 ‘relative au pacte civil de solidarité’ simply called ‘PACS’, or
the Loi of 19 January 2000 ‘relative à la réduction négociée du temps de travail’ com-
monly known as ‘Loi sur les 35 heures’ (35-hour work week law) or the marriage Loi of
17 May 2013 known as ‘Loi sur le mariage pour tous’.
Because the titles given to statutes are not, in principle, the object of a vote in
Parliament, courts have decided that they do not have legal force although, on
occasions, they can help to establish the general sense of a statute’s content.
PREAMBLE
A word should be said about the preamble. During the French Revolution, French
statutes used to have a preamble explaining why they had been passed. In modern
times French statutes no longer have a preamble. Today, however, draft bills are always
introduced by a relatively lengthy explanatory memorandum called exposé des motifs
which explains the reasons for and purpose of the legislation before it is discussed in
Parliament. Once the statute is passed, the exposé des motifs no longer forms any part
of the text of the statute. Instead, it becomes part of the travaux préparatoires and, as
such, constitutes a valuable aid to interpretation.
E NAC T I N G F OR M U L A
Next, as in English statutes, comes the enacting formula. These are introductory words
which appear in every French statute stating that both Houses of Parliament have
23
Layout and Component Parts of a Statute 23
passed the loi and that it has been promulgated by the President of the Republic. The
form of words used may vary depending on whether or not both houses agreed on its
adoption. In the first case the formula will be:
‘L’ Assemblée Nationale et le Sénat ont adopté’
In the other case:
‘L’ Assemblée Nationale et le Sénat ont délibéré’ or
‘L’ Assemblée Nationale a adopté’.
Where the loi has been referred to the Conseil Constitutionnel for scrutiny, the following
words will be added:
‘Vu la décision du Conseil Constitutionnel’.
Where the loi has been adopted by referendum, the formula is:

‘Le Président de la République, conformément aux dispositions de l’article 11 de la
Constitution, a soumis au référendum.
Le Peuple français a adopté’.
No statute is law unless and until it is promulgated by the President of the Republic in
the following terms:
‘Le President de la République promulgue la loi dont la teneur suit:’
Generally, the point at which the statute comes into effect is its publication in the JO.
However, a statute may state that it will come into effect at a later date.
A RT IC L E S
French statutes are divided into articles, cited as ‘article 1’, ‘article 2’, etc.
When reading a statute, particular attention must be paid to the distinction be-
tween the actual articles of the newly enacted statute itself and the articles of the
codes or previous statutes that the new statute modifies, which are confusingly
also referred to as articles in the text, although bold characters in the former and
open quotation mark italics in the latter are usually used to distinguish between
the two.
Articles are further subdivided into alinéas (abbreviated al.). Alinéas are indented
paragraphs. However, with a view to enhancing clarity, they may be cited I, II, III.
When they are intended to introduce itemisation, alinéas are sometimes, but not al-
ways, further divided into subparagraphs cited 1o, 2o, 3o. It is common practice in
French statutes and codes to state one rule at a time in an article. If the rule needs to
be qualified, then the general rule will first be stated in unqualified form before stating
each qualification in alinéas or in separate succeeding articles. The same principle as
in civil law applies to criminal law statutes where the prescribed penalty is stated in an
article other than the one containing the prohibition. This style of drafting, going from
the general to the particular, is typical and illustrates the deductive method applied by
French lawyers at all levels.
24
L AYO U T
In the majority of cases French statutes are merely divided up into articles. However,
in some statutes, articles become the principal unit of subdivision following titres (or,
sometimes, chapitres). In this latter case, consecutive articles dealing with the same
point have a common heading, the common practice being to choose simple descrip-
tive headings. Thus, statutes begin, though not always, with general clauses under the
heading, disposition générales, before moving on to more specific provisions which are
classified by subject matter under a heading such as dispositions relatives à . . .. Statutes
usually end with dispositions diverses et transitoires which are the French equivalent of
the miscellaneous and specific commencement provisions that are also to be found at
the end of English statutes. The French format, which has also been adopted for EU le-
gislative instruments, can be said to have the advantage of being clear, straightforward
and easy to read and remember.
Chapter References
and Further Reading
Ardant, P., and Mathieu, B., Institutions Dale, W., ‘Statutory Reform: The Draftsman
Politiques et Droit Constitutionnel, Paris: and the Judge’, ICLQ, 1981, Vol. 30, 141–64.
LGDJ, 2017. Ducamin, B., ‘The Role of the Conseil d’État
Balladur, E. (ed.), Une Vème République in Drafting Legislation’, ICLQ, 1981, Vol. 30,
plus Démocratique, Paris: Fayard, 2008. 882–901.
Becane, J-C., and Couderc, M., La Loi Gutmann, D., ‘L’ Objectif de Simplification du
(Collection Méthode du Droit), Paris: Dalloz, Langage Législatif ’ in N. Molfessis, (ed), Les
1994. Mots de la Loi, Paris: Economica, 1999, 74–88.
Bergeron, R. C., ‘The Canada–Ukraine Drafting Mathieu, B., La Loi (Collection Connaissance
Programme’, Statute Law Review, 2000, Vol. du Droit), Paris: Dalloz, 2010.
21, 1–11. Merryman, J. H., and Perez-perdomo, R.,
Carbonnier, J., Essais sur les Lois, 2nd edn, The Civil Law Tradition, Stanford: Stanford
Defrénois, 1995. University Press, 2007.
Carré De Malberg, R., La Loi, Expression de Remy, D., Légistique, l’Art de Faire les Lois,
la Volonté Générale, Paris: Sirey, 1931. Paris: Romillat, 2004.
Clarence-Smith, J. A., ‘Legislative Drafting: Warsmann, J. L., Simplifions nos Lois pour Guérir
English and Continental’, Statute Law Review, un Mal Français, Paris: La Documentation
1980, 14–22. Française, 2009.
Conseil D’État, Rapport Public, Paris: La Xanthaki, H., Thorton’s Legislative Drafting, 5th
Documentation Française, 2009. edn, London: Bloomsbury Publishing, 2013.
25
2
CODIFICATION
C’est avec cette méthode que toutes les idées ont pu se simplifier, et être mises à la portée du
peuple. C’est avec cette méthode que l’on a pu lui inspirer le plus profond attachement pour ses
lois, et ne laisser dans son souvenir des lois anciennes, que la preuve de leur imperfection et de
leurs abus. C’est surtout avec cette méthode que l’on a fait naître, chez les peuples civilisés, le
désir de participer au même bonheur.
Bigot-Préameneu, Recueil complet des travaux préparatoires du Code Civil.
French law, as with most civil law systems, is codified. There is to this day in France,
dating back to the Napoleonic era, an unbroken tradition of codification. The famous
Code Civil enacted under Napoleon in 1804 was to become a symbol of national iden-
tity and a model for other countries. Its bicentenary was celebrated in 2004 and it is still
in force today having undergone, since its enactment, considerable reform. Although
today’s codes do not have the same prestige, they are still regarded as the primary
source of private law and they serve as essential day-to-day working instruments for
French lawyers. In law schools as well, students are encouraged to become familiar, as
early as possible, with the layout and component parts of the codes.
Finding the law can be greatly simplified if, instead of grappling with a mixture of
legal texts, users are able to gain access to the whole of the law within a given area by
consulting a single document. However, this should not mask the difficulties involved
in using a code. Codes are numerous: it is anticipated that in the coming years there will
be more than seventy codes in France. Moreover, their areas very often overlap and they
do not necessarily contain all of the law in a given field. Thus finding the law on a par-
ticular issue may still necessitate a certain degree of skill. Also, codes do not resemble
one another; they vary in their form since they are required to fulfil different functions.
This is not surprising in a country where codification of the law has stretched over a
long period of time, the codes being a product of the political, historical, and social
circumstances existing at the time when they were drafted. The Napoleonic codes of the
19th century, forged in the conceptual method of legal thinking of the Enlightenment,
take the form of systematic works, bringing together all the rules in a particular branch
of law with the formulation of concepts and the use of logical classifications. At the time
of their drafting, when France had just undergone a revolution, they were perceived as
instruments with which political change and social reform could be introduced. Today’s
codes do not serve the same function. They are aimed at clarifying, and making more
accessible, law which has become more complex owing to the increasing number of
26
26 Codification
statutes in particular areas. The most common current method of codification used
is the restatement in one place of the law in a particular area which was previously to
be found scattered in different documents. In 1989, the French government decided
to make this type of codification official by setting up a Commission Supérieure de
Codification. This Commission has undertaken an ambitious programme to codify the
whole of French law. Since its creation, it has not only introduced a number of new codes
but also redesigned existing ones found to be in need of reshaping, such as the 2000 new
Commercial Code and the 2008 Code du Travail in the field of labour law. Amongst the
latest new codes introduced by the Commission are a code on homeland security, in
2012, and a code to improve relations between the administrative authorities, in 2015.
These codes are the result of the work carried out by ministries involved in the task of
producing a draft in their relevant area. It is clear that, today, codification is less an ideo-
logical enterprise than a technical exercise.
This chapter will introduce readers to the process and forms of codification in France
today. In so doing, it will focus in particular upon the method and techniques used by
the Commission Supérieure de Codification. However, in order to clarify the notion it-
self and to consider the difficulties it may give rise to, codification will first be addressed
in a wider context. To this effect, we will be asking the following questions: What does
codification mean? And, why do we codify?
W HAT D OE S C ODI F IC AT ION M E A N ?
Today, codification is present everywhere. It can be found not only in civil and common
law systems, but also in former socialist countries where, following the break with
former political systems, a new impetus has been given to codification. The fact that
codification is present in every kind of legal system, and in various forms, makes the
task of defining this notion a difficult one. In fact, from earliest times, it has been used
vaguely to describe the process leading to very different pieces of legislation ranging
from mere compilations of legal texts to comprehensive and systematic statements of
the law. Thus, the following have been included under the umbrella of codification:
(a) the collections of Roman imperial enactments of the 3rd century AD, such as
the famous Gregorian and Theodosian codes
(b) the vast compilation of Roman law achieved by Emperor Justinian during the
6th century AD, known later as the Corpus Juris Civilis
(c) the exhaustive scientific kind of codification known to the Continent of Europe,
for instance, the French, German or Swiss Civil Code
(d) more modest enterprises such as the English consolidating statutes or the
American Restatements.
There is, undoubtedly, a common underlying reason for all these types of codification
and that is the restructuring of the rules of law as a coherent whole. But they differ
27
What Does Codification Mean? 27
greatly from one another in the sense that, not only have they come about at different
times, but also they do not serve the same purposes and do not have the same form
and scope as each other.
Adding to the difficulty in defining ‘codification’ is the fact that this word has been
commonly used in a confusing way instead of the word ‘code’, as if the two terms
were interchangeable. Although not totally separate, the two differ in their meaning.
Codification, a concept which emerged during the legislative reform movement that
took place in Europe during the 18th and 19th centuries, means a certain method of
legislating and not merely the graphic expression of the written law that the term ‘code’
suggests. Indeed, ‘code’ comes from the Latin codex which originally described a book
made of parchment in which texts were written, replacing papyrus scrolls. Despite this
difference of meaning and of origin between code and codification, the use of one term
for another has persisted until today, leading to confusion between the instrument
of a code and the method of codification. To illustrate this point, France has a Code
Administratif although administrative law has never been codified overall. In fact, this
so-called code is an unofficial collection of statutes and regulations relevant to admin-
istrative law and published by the private law publisher Dalloz. It may be contrasted
with codes such as the Code Civil or the Code Pénal which are the end product of a true
process of codification, a process which will be examined in more detail later in this
chapter.
In attempting to define the notion of codification more precisely two distinct
approaches may be adopted. The first one consists of drawing a sharp distinction be-
tween the civil law and the common law systems, pointing out a certain number of
distinctive features that codification displays in the former, but not in the latter. The
second approach looks at the functions codification fulfils and the variety of forms it
takes, without reference to a particular type of legal system.
Each of these two approaches is now considered in turn.
T H E C I V I L V E R SU S T H E C OM M ON L AW A P P ROAC H
TO C ODI F IC AT ION
This first approach consists of pointing out a certain number of features that are
present in civil law codification, in contrast with the common law approach. It has
been suggested that codification in the civil law sense is comprehensive, authorita-
tive, and systematic, characteristics which do not generally appear in the common law
approach to codification.
As the German Professor Helmut Coing has put it (Stoljar 1977: 16):
Codification, as we know it in civil law countries, must be comprehensive, which means
that it must contain at least all rules and principles concerning one province of law, such as
commercial law or penal law. Then it must be made with the purpose of unifying the law
in a given province, ideally having in this province exclusive authority. From a technical
point of view, codification must further be systematic, expressed in clear and technical ter-
minology, lay down broad principles, and avoid casuistry.
28
28 Codification
In contrast, codification in common law systems is very often associated with consoli-
dation which can only achieve the limited objective of bringing together in one statute
what was previously to be found in many. It may also consist of the restatement in
one place of pre-existing rules on a particular subject which needed to be clarified or
simplified. Peter de Cruz (2007: 48) has highlighted the distinction between ‘civil law
codes’ and ‘common law codes’:
In the civil law system a code is an authoritative, comprehensive and systematic collection
of general clauses and legal principles divided into books or parts dealing in a logical
fashion with the law relating thereto . . .
Confusingly, codes have also been compiled in common law jurisdictions . . . However
the cardinal feature in a common law code is that it is based on pre-existing law (usually a
combination of cases and statutes) and is neither designed nor intended to be formulations
of all inclusive rules. In other words common law codes are generally enacted to consoli-
date the law on a particular area or to clarify an area of law which has become unsettled,
obscure or confused.
This distinction between civil and common law systems when it comes to codifica-
tion is further emphasised by Holland and Webb in an early edition of their book on
legal method (1996: 9):
The assumption underlying a codified legal system is that it is possible to create a set of
texts containing an authoritative statement of the law usually in the form of civil and crim-
inal ‘codes’. Although English lawyers also talk about ‘codifying’ legislation, the term is
used to mean rather different things in common as opposed to civil law systems. In the
common law, a codifying Act is primarily a tidying up operation . . . The aim of tidying-up
is one which codifying Acts share with the Continental codes. However, by contrast with
the Continent, codification in England has been used as a limited means of imposing legis-
lative coherence on a particularly problematic area of law . . . What English codification has
not done is to produce a complete restatement of the whole of, say, commercial or criminal
law in a statutory form. Yet, it is precisely the latter approach that has been adopted in the
majority of civilian systems.
If one looks at the traditional Continental codes, such as the French Civil Code
or the German Bürgerliches Gesetzbuch (BGB), one might agree that these are indeed
illustrations of codification intended to set out authoritatively the principles and rules
of a given branch of law within a logical structure. These codes, which have been statu-
torily enacted, have the authority to bind the courts and claim to be comprehensive
in their relevant area. In France, the Civil Code embodies in its 2,534 sections the
major parts of private law, with the exclusion of commercial law which is governed
by a separate code. Thus the Civil Code incorporates the law of persons, family law,
succession, property law, contract law, including specific contracts such as the sale of
goods, and tort law. Civil law codes are also able to provide a system, that is to say a
unified approach to a body of law which implies an organic structure of interrelated
norms. It is evident that such a system cannot emerge from rules which are fragmented
or simply placed in juxtaposition to one another as is the case with the law which has
29
What Does Codification Mean? 29
not been codified. The systematic approach to law in a code is reflected not only in
its overall presentation, which usually starts with a separate general part containing
general principles intended to be used in a variety of situations, but also in the for-
mulation of general clauses. In German law, the famous general clause in § 242 BGB,
which simply says that a debtor must perform his contract in good faith, has played an
important role in allowing contract law to adapt to social and moral change. The same
can be said of art. 6 of the French Civil Code which broadly states that contracts cannot
be contrary to public policy. Civil law codes such as the 1992 Dutch Civil Code (NBW)
and the 1994 Civil Code of Quebec or the new 2009 Romanian Civil Code are evidence
that comprehensive and systematic codification is still alive in modern times and can
be regarded as the natural product of the civil law tradition. The fact that this type of
codification has flourished in civil law jurisdictions to a degree unknown to common
law can in part be explained by the cast of mind of civil lawyers which, over the years,
has been shaped by abstract concepts and doctrines (see further at Chapter 10).
It is arguable, however, that the features characterising civil law codification, as
distinguished from common law ones, may be overstated. First, experience shows that
codification can never be truly comprehensive. In fact, it is unrealistic to expect that,
within their field, codes should be completely self-contained. In most civil law systems,
when particular branches have been codified, such as civil or criminal law, large areas
still remain uncodified in the form of general unwritten principles, individual statutes,
and court decisions. Secondly, consolidation and restatement of the law, as in common
law systems, have now also become a common way of ordering and unifying the law,
not only in France, but also in Germany, Italy, and Spain. Finally, like common lawyers,
civil lawyers rely increasingly on generally unofficial compilations of statutes existing
in a particular branch of law similar, e.g. to the English Halsbury’s Statutes. Whether or
not these compilations are the product of true codification is debatable, but from the
point of view of comprehensiveness and accessibility they serve the same functions as
proper codes.
As regards common law, comprehensive and systematic codification has not
been alien to its thought and practice, as shown in the writings of Jeremy Bentham
in England and the work on draft codes carried out by David Dudley Field in the
United States. Furthermore, in some areas, attempts towards codification resemble the
civil law method of codifying. As an example, reference has often been made to the
American Uniform Commercial Code (UCC) which owes a lot to the European codes,
especially in its scope, structure, and style of drafting. Similarly, the Restatements of
the American Law Institute have been said to be ‘rather like the civil law codes in their
systematic structure of abstractly formulated rules’ (Zweigert and Kötz 1998: 252).
In England some Acts are real ‘mini codes’ in the civil law sense. For example, the
Children Act 1989 brings together in a single volume, divided into various parts, all
the relevant statute law with the introduction of new concepts and general principles as
well as the provision of a consistent set of legal remedies available in all proceedings. In
these respects it constitutes an equally elaborated type of codification similar to what
current civil law codes are able to achieve.
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30 Codification
In conclusion, what seems to distinguish civil and common law codification is that
civilian systems have been able to codify successfully wide areas of law, such as civil,
criminal, or commercial law, a task that, owing to different historical and political
circumstances, common law systems have never been able to accomplish.
F U N C T IONA L A P P ROAC H TO C ODI F IC AT ION

This approach focuses on the functions codification fulfils and the consequent forms it
takes, without reference to the particular legal system.
As French Professor Tallon (1979) once put it: ‘Codification may take various forms
ranging from mere compilations to full-fledged codification. This diversity is perhaps
the major feature of codification today’.
Four forms of codification have been identified:
(a) Compilations, designed to bring together existing legal texts, either in chrono-
logical order or by subject, without altering their form. They are usually
collections of statutes, privately assembled, for the use of practitioners with a
view to making the law more accessible. Their size may vary: they may cover
the legislation currently in operation in a country, similar to Halsbury’s Statutes
in England and Wales, or they may deal with a specific branch of law, such as
the French Code Administratif, published by Dalloz, or the commonly used
Schönfelder’s collection of statutes in Germany, in which all the most important
civil, criminal and procedural laws are to be found.
(b) Consolidation, which brings together into one statute what was previously
contained in several. In England this procedure was made official in the
Consolidation of Enactments (Procedure) Act 1949. Recent consolidating le-
gislation includes the Companies Act 2006 and the Charities Act 2011. The aim
of consolidating legislation is to simplify and clarify existing law scattered in
different places, with the possibility, as provided in the 1949 Act, of corrections
and minor improvements. Consolidation is widespread in other common law
systems such as the United States and Canada. It is also a well-established way
of codifying the law in Italy where traditional codes coexist with consolidated
texts called Testi Unici. The need to simplify its legislation and to make its
institutions more transparent also led the European Commission, in the past,
to promote a programme of consolidation which was elaborated by the 1992
European Council of Edinburgh. Consolidation later occurred in areas such as
customs or agricultural matters where a multiplicity of amendments, not always
coupled with repealing measures, have led to a tangle of legislative texts. Today,
better law-making and regulation is still on the European agenda with regard to
Union legislation, and has culminated in 2016 in an interinstitutional agreement
whereby the European Parliament, the Council of the European Union, and the
European Commission have recognised ‘their joint responsibility in delivering
high-quality Union legislation’.
31
Why Do We Codify? 31
(c) Restatement of the law, whereby a given branch of law is set out in a single, co-
herent, and comprehensive piece of legislation. This type of codification does
not necessitate reconsideration of the relevant law with a view to reform al-
though it may include some items of law reform. In civil law countries it has
become, today, the most common form of codification. In France, it is known as
codification à droit constant, and will be discussed in more detail below.
This enterprise of restating the law is not alien to the common law world
as shown, for instance, by the Restatements of the American Law Institute or
the English codifying statutes such as the Sale of Goods Act 1893, now 1979.
The English Law Commission also adopted this form of codification when
working on a criminal law code for England and Wales. In recent years, a
Restatement Project under the leadership of Oxford Professor A. Burrows has
been undertaken in England which seeks to remedy the lack of accessibility that
the common law suffers. So far the laws of unjust enrichment (2012) and of
contract (2016) have been restated with the expressed aim to attract readers of
civil law systems who, used to statutory codes, may find English law difficult to
grasp. These restatements can also be regarded as worthwile means of filling a
gap between judge-made law and legislation. However, they remain different in
nature and style from proper binding codes.
(d) Codification-reform, which means a complete reconsideration of the law in a
particular field with a view to its reform. According to this approach, codes
represent a fresh start and a break with the past. This was the main form of co-
dification in the 19th century. Today, this ambitious form of codification is of
limited application, both in civil and common law systems where codification
and law reform are generally perceived as different exercises. However, as will
be examined later, codification does not hinder legislative reform and, as with
ordinary statutes, codes can be amended.
This search for the meaning of codification has demonstrated that, although forms
and purposes may differ, most societies have felt the need to codify their laws. This
attraction to codification highlights the fact that it is perceived as a desirable way of
‘making’ the law. However, experience shows that successful codification is not always
easy to achieve, as has been e.g. the case with the English Law Commission’s attempts
to codify the law, especially in the area of contract. Does this mean that the supposed
merits of codification have been overrated? In order to answer this point it is first ne-
cessary to examine more closely the motives for codification.
W H Y D O W E C ODI F Y ?
Codification carries with it a certain number of advantages which have been identified
primarily as accessibility/ comprehensibility and consistency/ certainty. These are
considered in turn here. However, despite these recognised advantages considerable
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32 Codification
scepticism has been expressed about codification. This section also examines the
objections raised against codification.
A DVA N TAG E S OF C ODI F IC AT ION

Accessibility and comprehensibility
Access to and comprehension of the law are not merely technical issues. In any
democratic society there should be an individual civil right of easy access to the
law and to its meaning, so that ordinary citizens as well as jurors, lay magistrates,
civil servants, judges, and legal practitioners may have an equal opportunity to know
what the law is. In Decision 99–421 DC, 16 December 1999, JO 22 December 1999,
p. 19041, the Conseil Constitutionnel, in the context of codification, ascribed consti-
tutional value to the objective of making the law more accessible and more intelli-
gible. In this case, a bill, delegating to the government the power to enact by means
of ordonnance nine codes drafted by the Commission Supérieure de Codification,
was referred to the Conseil for scrutiny. The Conseil decided that the delegation by
Parliament of its legislative authority was valid in as much as it enabled these codes
to be enacted more rapidly without their enactment being unduly delayed by the
ordinary procedures followed in Parliament when examining and debating a bill. In
this respect, the Conseil further stressed that it was ‘within the general interest’ that
codification of the law should be carried out rapidly, this being consistent with the
‘constitutional objectives of accessibility and comprehensibility of the law’ (for a re-
cent application of these objectives by the Conseil, see Decision 2007–561 DC of 17
January 2008, Rec. 41, as regards the law ratifying the ordonnance which gave rise to
the (then) new Code du Travail).
In the same vein, a Loi of 12 April 2000, art. 2, on the rights enjoyed by citizens when
dealing with administrative bodies, guarantees the right of unimpeded access to the
law, stating that:
It is incumbent on the administrative bodies to ensure straightforward access to the rules
they enact. Access to and publication of the law both constitute a mission of public service,
responsibility for which rests with the relevant administrative bodies.
(Objectives reiterated in Loi 2009-526 of 12 March 2009 on simplification and clarifi-
cation of the law.)
Accessibility and comprehensibility can both be reasonably achieved by codification

in that codes provide users with a single, clear, and agreed text. Indeed, using a code
is more manageable than grappling with a multitude of texts, especially at a time of le-
gislative proliferation. The law, or at least most of it, can be found in one single volume
instead of in many statutes. Also, a code stands for clarity of layout and simplicity of
style and language. A number of drafting techniques, such as the use of side-notes and
cross-references, can be applied with the intention of facilitating the user’s grasp of
the content and meaning of the code’s provisions (see below). Finally, everyone has a
common agreed text as a starting point which serves as the official and authoritative
3
word of the State. From the point of view of constitutional principles this last aspect
should enhance the relationship between the State and its citizens.
Consistency and certainty

The process of drafting a code involves making an inventory of all existing laws in
a particular area with a view to rearranging them in a systematic way, eliminating
inconsistencies and filling the gaps left by piecemeal legislation. Codification thus
enhances consistency and certainty in the law.
A multiplicity of statutes inevitably leads to inconsistencies in terminology and in
substance. Codification seeks to remove these by bringing together the statutes that
exist in a particular field. By doing so contradictions and ambiguities can be more
easily detected and then resolved, either by repeal or by rewriting when the drafting of
the code takes place.
Codification also remedies the legal uncertainty arising out of a number of factors.
A multiplicity of sources can create uncertainty when it comes to defining the scope
of a particular area of law. Although codification can never be truly comprehensive,
exclusive or exhaustive, it nevertheless contributes to setting the boundaries of a par-
ticular field and fills the gaps left by piecemeal legislation, making it easier for judges
to find an answer to the legal issues raised in the cases before them. Also, it is some-
times difficult to know how rules on a particular point, coming from various sources,
relate to each other. Codification may remedy this in that it arranges rules in an or-
derly and rational way. Moreover, in areas of intense legislative work uncertainty may
simply come from the fact that it is unclear whether certain texts are still in force. In
France, when it came to draft the Code de l’Éducation, the Commission Supérieure de
Codification soon realised that a certain number of old texts had never been expressly
repealed by the legislature and had been made obsolete by new legislation. The co-
dification process enabled the Commission to update the law in this area by repealing
these obsolete texts and restating the law accordingly.
It is in the domain of criminal justice that uncertainty is more likely to have undesir-
able effects. In this area, not only is uncertainty incompatible with the idea that law
should be clearly stated in advance in order to give due notice and fair warning, but it
also discourages the bringing of prosecutions and increases the number of submissions
for ‘no case to answer’.
OB J E C T ION S TO C ODI F IC AT ION

Against codification it has been generally argued that the current diversity of sources
of law diminishes the significance of codified law. At a time when an increasing
amount of domestic legislation originates from the EU, the effort put into national
codification seems to be considerably less worthwhile. For many, the future lies in-
stead in a return to a jus commune, notably through the development of uniform laws.
Furthermore, a combination of State intervention, corporatism, and technocracy
leading not only to constant changes in the law, but also to the development of detailed
34
34 Codification
specialised legislation, have conflicted with the qualities of stability and brevity that
have characterised codes until now. It has been suggested, in this light, that codifica-
tion has become a ‘romantic anachronism’.
More specifically, those against codification have put forward the following
arguments. Codification:
(a) is not feasible
(b) leads to ossification of the law
(c) implies a relearning of the law.
Feasibility
It is true that codification is not an easy task. The work of preparing a code is time
consuming and involves a number of difficulties related, notably, to the large quantity
of texts which need to be collected, selected, and then translated into a logical format.
In France, the use in the codification process of computer-based legal information
systems has proven to be a positive development in tackling these difficulties. For many
years, a codification programme called Magicode (Catta and Tauziac 1997; Commission
Supérieure de Codification 2008) has been successfully applied in the drafting of codes.
Dealing with a mass of material is not the only difficulty. Drafting a code implies that
a consensus, as regards its layout and content, has been reached. Powerful bodies, such
as the tax authorities and Customs, may want to impose their views forcibly when
it comes to drafting a code in their field. Also, once they are drafted, codes have to
undergo a tortuous and complex parliamentary procedure. As an illustration of this, it
took more than ten years of preparatory work in working committees and three years
of parliamentary debate for the first four parts of the new French Criminal Code to
be enacted in 1992. Needless to say, such a project cannot be successfully completed
without strong political support and a commitment on the part of the State to provide
the means whereby the codifiers may carry out their work.
Ossification of the law
It has been said that, because of its characteristics of permanence and stability, a code
leads inevitably to ossification of the law. In one respect, this is not so much a draw-
back as a virtue. Indeed, seen from this viewpoint, codification acts as a brake upon
Parliament’s propensity to enact new rules. However, the ossification view is based on
a number of misconceptions.
(1) First, codes are not static. Permanence and stability do not prevent a code from being
updated. As an illustration, the French Civil Code has gone through considerable
updating and amendment since its enactment in 1804. These reforms have taken
place particularly in the fields of family, property and company law. Recent reforms
have included civil status, product liability, property law, and the law of obligations.
Where necessary, supplementary parts have been added (thus in 2006, two new
books were added to the existing ones in the Civil Code). On many occasions the
original numbering has been maintained by inserting sub-articles between main
35
articles (e.g. arts 815–1 to 815–18, which have been inserted between the original
arts 815 and 816 in order to provide for the regulation of the legal relationship be-
tween co-heirs as regards the inherited property before its division). However, the
process of textual amendment does not always allow the general framework of the
code and the initial numbering to be kept, especially when major changes in the law
are introduced. This has been notably the case in 2008, when the law on acquisitive
prescription was changed, and in 2016, with the law of obligations.
(2) Secondly, codes are not rigid. They can be developed through judicial interpret-
ation. Indeed, codification involves the legislative formulation of general rules
with broad areas of application, which tends to facilitate an evolutive interpret-
ation of the law. This will be examined more closely in Chapter 3.
Relearning of the law
Some authors have emphasised the intellectual labour it costs legal practitioners to ad-
just themselves to a sea change resulting from the enactment of a code. Amongst them
Hahlo (1967: 253) was the most critical:
Only one who has never worked with a code can believe that codification is nothing but a
formal change, requiring no fundamental adjustments in approach and method. A code is
not just a large statute, it is a different species of law, demanding different techniques, and
these techniques have to be learnt by the legal profession. Even when a rule of common law
is merely restated, the fact that it is now laid down in writing and forms part of a system of
interrelated rules, affects its meaning and scope.
Suggesting that the scope and meaning of the common law will be affected by co-
dification is debatable. It is true that the common law has been developed through
a system of precedent which implies a particular process of reasoning from case to
case. However, there is no reason why this should not be maintained once the law is
codified. What codification brings to the process of law is a starting point. As has al-
ready been said, codes are not self-contained. In Europe, continental lawyers rely as
much as their English counterparts on case law, and much of their time is devoted to
case study. Moreover, even when case law has been translated into statutory text and
incorporated within a code, this does not preclude the use of former relevant cases
when interpreting the new codified provisions. Such has been the case in the context of
the French law of privacy where former case law continued to be applied by the courts
following the introduction in 1970 of a right to privacy in art. 9 of the Civil Code.
Looked at overall, codification highlights the need for some general principles which,
to use the words of the eminent German comparative law scholar Hein Kötz (1987: 6),
‘help to organise legal thinking’ and ‘to allow the formation of clusters of similar cases’.
These principles exist already in the common law and serve in the process of adjudica-
tion so that, according to Kötz, ‘there is no major operational difference in the use of
general principles whether they are put in a code or whether they are found in cases’.
Kötz concludes that it is therefore ‘difficult to see [in Britain] why the mere enactment
of such principles would alter the balance of power between Parliament and the judges
and thus violate basic tenet of British constitutional philosophy’.
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36 Codification
Relearning the law seems a more valid argument when it implies that one has to be-
come familiar with the way a code is laid out, its method, and techniques of drafting,
as well as coping with the memorisation of new code references. Even for those
accustomed to codes this may be a challenge, as suggested, with humour, by French
Professor Gautier (Beignier: 107) when commenting upon the then recent codification
of the law on intellectual property:
Who has not recently met a practitioner in the field of intellectual property who has not
taken months to work out that former art. 29 of the 1957 Act on Intellectual Property
has now become art. 111–3 of the new code? Practically every month I meet one of my
colleagues, lost amongst these barbaric numbers, forced to engage in mental acrobatics,
whilst his memory is already saturated with large piles of legal documents.
Adjusting to codification techniques may be very demanding for lawyers in legal

systems where the law is not codified. However, unless these lawyers are unwilling to
add to their learning, this is not an impossible task. In any case, foreign scholars, judges
and practitioners trying to work out what the law in France is, or law students involved
in French legal studies, cannot avoid learning how to use a code. The following part of
this chapter is an introduction to the structure and drafting techniques of French codes.
C ODI F IC AT ION M E T HOD A N D T E C H N IQU E S

IN FRANCE
As has already been said at the beginning of this chapter, codification in France has
taken place in a series of stages. Over the years, alongside the Napoleonic codes in-
tended to cover large areas such as civil or criminal law have been added the more
specialised codes introduced by the former 1948 Commission de Codification. To this
Commission is owed a certain number of codes, such as the 1953 Code de la Santé
Publique and, later on, the 1978 Code de l’Organisation Judiciaire. Codes introduced
by the 1948 Commission did not require Parliament’s approval although some of them
were later ratified by the legislature. Since 1989 a number of new codes have been
drafted by the Commission Supérieure de Codification; they include, e.g., the Code de la
Consommation and the Code de la Propriété Intellectuelle. Ideally, each code should be
examined separately. Indeed, they are each unique in their own way in the sense that
their content and structure depend as much on the method adopted at the time of their
drafting as on the subject matter they cover. However, lack of space makes the task
impossible. Instead, this part of the chapter will focus on the characteristic features,
in terms of structure and drafting techniques, present in most codes in France. The
following and last part will then be devoted to the crucial role played by the 1989
Commission in the development of codification method and techniques.
S T RU C T U R E
As already stated, a code’s strength lies in its clarity and accessibility. These concerns are
particularly reflected in the structure of the codes. Codes are generally divided into books
37
Codification Method and Techniques in France 37
(or parts) which in turn are subdivided into titles. The titles are divided into chapters
which may in turn be subdivided into sections (but not all of them are). The chapters
and sections are themselves further divided into articles. Codes generally consist of four
to five books (or parts), usually beginning with a general part in which the general
principles governing a particular branch of law are stated. In the choice of headings
for books (or parts) a pragmatic approach is taken. Instead of conceptual divisions,
French codes rather opt for technical divisions which are easier to memorise. As an
example, the 1996 Code Général des Collectivités Territoriales is divided as follows: part
one ‘Dispositions Générales’, part two ‘Communes’, part three ‘Départements’, part four
‘Régions’; part five ‘Coopération locale’; part six ‘Collectivités d’Outre-Mer’.
A RT IC L E S
Articles are usually cited in an abbreviated form as ‘art.’. They are divided into paragraphs
each introduced by an alinéa (abbreviated: ‘al.’) which consists of an indented line at
the beginning of each consecutive paragraph. When citing an article, it is very im-
portant to specify which alinéa is being referred to as usually each of them points to
distinct grounds for action or distinct remedies. As an illustration, art. 1242 (formerly
1384) of the Civil Code contains eight alinéas. Thus, e.g., alinéa one starts with: ‘On est
responsable non seulement’ and refers to liability for things in one’s care, whereas alinéa
five, which states ‘Les maîtres et les commettants’, refers to vicarious liability.
N UM B E R I N G SYST E M
Articles are also arranged in numerical sequence with the use of either a consecutive
numbering system, such as arts 1, 2, 3, and so on of the Civil Code, or a decimal numbering
system such as: art. 111–1 of the Criminal Code (on general principles governing crim-
inal liability) which reads from right to left, art. 1 of chapter 1 of title 1 of book 1; art. 421–
4 of the same code (on terrorism) is art. 4 of c hapter 1 of title 2 of book 4. The decimal
numbering system allows more flexibility when it comes to the insertion of additional
articles. This is why it is used in codes which are subject to frequent amendment such as
the Code du Travail, which, in fact, was the first code in France to adopt such a system.
It is also the system that has been adopted by the Commission Supérieure de Codification.
However, this system is difficult to memorise especially in complex areas of law where
numbers can reach up to six digits! In this respect the consecutive numbering system
is easier, apart from the fact that, when subjected to frequent amendment, it leads to a
multiplicity of additions following the number of the article as shown by: arts 235 ter KD
bis, and 235 ter XA and 235 ter ZAA of the Code Général des Impôts!
LOI S A N D R È G L E M E N T S
Most enacted codes in France consist of:
(a) a legislative part which codifies broad principles laid down in parliamentary
statutes (lois), and where numbered provisions are generally preceded by the letter
L, except in the Civil and the Criminal Codes, where the letter L does not apply;
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38 Codification
(b) a more detailed part which embodies government decrees and regulations
(règlements), where provisions are preceded by, either, R (decrees issued following
advice given by the Conseil d’État), D (other decrees), or A (regulations called
arrêtés issued by ministers).
Such a system, relying on two separate sets of provisions, is certainly complex, but it
has been made necessary by the current 1958 Constitution, art. 37, which, as seen in
the previous chapter, enables the government to enact separate legislation by way of
regulations in areas which do not come under parliamentary jurisdiction. However,
to facilitate accessibility, in the two respective related parts, headings and article
numbers correspond. Thus, e.g., art. R 226–1 of the Criminal Code is the regulation
which corresponds to the legislative provision, art. 226–1. Both texts are inserted in
book 2, title 2, chapter 6 of their respective parts dealing with offences against inva-
sion of privacy. However, whereas art. 226–1 states broadly the list of offences and the
penalties attached to them, art. R 226–1 gives more detail about the means by which
these offences may be perpetrated.
SU P P L E M E N TA RY N OT E S
Once enacted, codes are published in the Journal Officiel. However, this offi-
cial publication is not used by practitioners, who usually opt for the unofficial
publications of the codes. The reason for this is that, unlike the former, the latter
contain notes and annotations intended to facilitate the user’s grasp of the contents
and meaning of the code’s provisions. The unofficial publications which are most
frequently used are the Codes Dalloz. They are brought up to date annually in
the case of the most important codes, and periodically for the others. Articles
are printed in their latest version with the date of the latest amendment to these
articles in parenthesis. However, it is not always stated which earlier provisions
may have been repealed except in cases where articles repealed are still relevant to
past situations (as, e.g., in family law situations or in contract). In this case articles
that have been repealed are italicised, in order to distinguish them visually from
the amended article.
The Codes Dalloz also contain, under each article, a digest of leading cases (in the
code’s index these are cited as J. followed by a number referring to the case citation in the
digest), as well as bibliographic references to academic writings (cited in bold characters
under the text of the article as BIBL., followed by the reference). Case digest and bib-
liographic references are, however, not authoritative. They are only intended to provide
a short cut to users wanting to get quick access to the relevant case law and academic
writing.
Code provisions are also supplemented by statutes and decrees which have not been
codified and which are relevant to the subject matter. Such is the case with art. 61.4 of
39
Codification Method and Techniques in France 39
the Civil Code and Décret 94–52 of 20 January 1994 on the procedure to be applied
when wishing to change name.
TA B L E S OF C ON T E N T S A N D I N DE X E S
These are very helpful in assisting users in finding what they are looking for. In each
code, users will find:
(a) A table of contents (beginning of the code).
(b) A chronological index listing the various statutes and decrees contained in the
codes which are either in the form of articles or as supplementary laws (end of
the code).
(c) An alphabetical index involving the use of key words (end of the code). Once the
right key word has been identified it may be subdivided into different headings
followed by a reference which is usually the number of the relevant provision
and not the page number. The page number is provided in bold type only when
the index refers either to another code or to a statute or decree which is not
codified but which have been inserted into the code as supplements to an article.
C RO S S -R E F E R E N C E S
One of the major difficulties with codes is that their contents are not always well
defined. Codes very often overlap. This is due to the fact that various fields of law
interfere with one another. For example, the law on public health may interfere with
criminal law in matters of abortion or drug trafficking. In such cases the difficulty
is resolved by incorporating in each code what seems to be its own relevant set of
provisions with cross-references to the other code. However, when a particular pro-
vision originally contained in one code (called for this purpose, code pilote) needs to
be included in another code (code suiveur), because its omission from the latter would
be detrimental to the scope or the meaning of the relevant law, then, instead of a mere
cross-reference, the whole provision of the ‘leading’ code (code pilote), will be repeated
in the ‘following’ code (code suiveur). For example, the rules relating to latent defects
in contract, found in the Civil Code, arts 1641 et seq., are also included in the Code de
la Consommation because of their relevance to the domain of consumer protection.
However, it is important to note that the provision concerned is only authoritative in
the code pilote and is inserted only for information in the code suiveur. The technique
of code pilote and code suiveur is a drafting technique which has been introduced by the
Commission Supérieure de Codification and which is systematically applied by it when
working on its codes. The drafting techniques used by the Commission will be outlined
at the end of this chapter. First, however, we need to examine the Commission’s role,
composition, and working method.
40
40 Codification
T H E C OM M I S S I ON SU PÉ R I E U R E DE
C ODI F I C AT I ON
The Commission was set up in 1989 with a view to simplifying and clarifying the law
by way of codification.
DU T I E S A N D F U N C T ION S OF T H E C OM M I S SION
These are set out in the Décret of 12 September 1989 (amended in 2010), art. 1:
(a) to undertake a general programme of codification of the law of France
(b) to establish a method of codification, with the provision of guidelines
(c) to set up and co-ordinate working committees with responsibility for under-
taking the preparation of draft codes; to provide these committees with appro-
priate assistance, notably by appointing a rapporteur particulier and, if necessary,
a team of specialists
(d) to receive, examine, and then submit draft codes to the government.
At first glance there are some similarities between the 1989 Commission and the
common law Law Commissions such as the 1965 English Law Commission. Indeed,
in both cases these bodies were set up, not as mere committees but as institutions
with statutory existence, with a view to remedying the unsatisfactory state of the law,
keeping it up to date and making it accessible to those who are affected by it. Also, they
are both advisory bodies in the sense that they are both limited to making proposals
within their area of competence. However, under closer scrutiny, there are significant
differences between the two bodies. Although the Law Commissions Act 1965 refers to
codification as one of the Law Commission’s chief duties, the scope of its functions is
much wider and concerns law reform as such. The French Commission’s task is devoted
wholly to restatement of the existing law in codes; law reform is not part of its agenda.
C OM P O SI T ION OF T H E C OM M I S SION
The composition of the Commission reflects a strong association with the legislature,
the executive, and the judiciary. It is presided over by the Prime Minister which gives a
certain authority to the institution and also reflects the will of the government to take
part in the process of codification. The actual supervision of the work carried out by
the Commission is entrusted to a vice-président appointed for four years by the Prime
Minister from among the senior members of the Conseil d’État. The vice-président
is assisted by a rapporteur général in his task of organising and following through
the various stages of the process of codification. The Commission consists of thir-
teen permanent members amongst whom are Members of Parliament, high-ranking
judges, senior government officials, and also two law professors. There are also non-
permanent members appointed for a fixed term who are drawn from the government
41
The Commission SupÉrieure de Codification 41
departments, sections of the Conseil d’État, and parliamentary commissions relevant

to the field of the code under discussion. The presence of Members of Parliament on
the Commission is crucial as regards the successful anticipation of the issues which
may well arise when it comes to parliamentary debate.
WOR K I N G M E T HOD OF T H E C OM M I S SION

Before the draft codes are examined by the Commission, they are prepared by ad hoc
working committees consisting of members of the relevant ministries who may be
assisted by distinguished academic lawyers. At the initial stage, after collecting and
selecting the texts relevant to the area, these committees make proposals in respect
of the content and layout of the code before submitting it to the Commission for its
approval. At this stage, a rapporteur particulier liaises between the Commission and
the committees. Once the content and layout have been examined and adopted by
the Commission, the working committees will then start drafting the different parts
of the code. The final draft will come before the Commission for approval. Once
approved by the Commission, the draft is submitted to the Prime Minister. The code
will then follow the procedure used for ordinary legislation, i.e. submission to the
Conseil d’État for advice, followed by referral to Parliament for approval. However,
in recent years, the heavy legislative programme and pressure of time on the parlia-
mentary timetable have considerably delayed the codification process and forced the
government to resort to ordonnances in order to speed up the voting on a number of
pending codes.
The Commission publishes a yearly report commenting upon its activities over the
past year.
DR A F T I N G T E C H N IQU E S U SE D B Y T H E C OM M I S SION
These are described in a Circular of the Prime Minister dated 30 May 1996. They can
be summarised as follows:
(a) The method of codification used by the Commission is the restatement of existing
law. This is described in French as codification à droit constant which, since the
Loi of 12 April 2000, art. 3, has become the current statutorily based method of
codification in France. However, minor improvements, such as the repeal of ob-
solete texts and bringing old provisions into line with the Constitution and with
EU law, are made on an informal basis by the members of the Commission.
(b) Only parliamentary statutes and regulations are codified. Thus, the following
are not included:
(i) case law
(ii) customary law
(iii) international law
(iv) EU legislation.
42
42 Codification
The exclusion of international law and EU legislation from the codes is open to
criticism. Indeed, it is increasingly the case that parties to a case rely as much on inter-
national/EU law as on domestic law. Therefore, it is legitimate to expect a similar
degree of access for each of them. On occasions, however, the legislature introduces le-
gislation designed to incorporate international or EU law into the relevant codes. This
has occurred in 1998 with the incorporation of former arts 1386–1 to 1386–18 into the
Civil Code (since 2016, arts 1245 to 1245–17) in response to the European Product
Liability Directive 1985.
(c) The numbering system adopted by the Commission is the decimal numbering
system for reasons stated earlier in this chapter.
(d) The technique of code pilote and code suiveur (see above) is generalised to all the
codes drafted by the Commission.
The Commission, with the active support of the government, has played a major role
in reviving the process of codification in France over the last twenty years. Its motto
has become nul n’est censé ignorer la loi. This maxim is actually a proper rule of law,
meaning that one cannot plead ignorance of the law as an excuse for its transgression.
However, being formulated in ambiguous terms, this rule has often been misused as
the right of citizens to know their rights and obligations. The Commission, as well as
successive governments, has used it in this latter sense as a slogan in order to press the
case for codification, and this says a lot about the significance still attached to the pro-
cess of codification in France today.
Chapter References
and Further Reading
Beignier, B., La Codification, Paris: Dalloz, Gaudemet, J., ‘Codes, Collections, Compilations:
1996. les Leçons de l’Histoire’, Revue Droit, 1996, Vol.
Braibant, G., ‘Utilités et Difficultés de la 24, 3–16.
Codification’, Revue Droits, 1996, Vol. Guy, S., ‘Codifications et Consolidations
25, 61–71. Législatives à l’Étranger’, Revue de Droit
Catta, E., and Tauziac, V., ‘L’Utilisation de l’Outil Public, 1998, Vol. 3, 861–90.
Informatique’, Revue Française d’Administration Hahlo, H. R., ‘Here Lies the Common Law:
Publique, 1997, Vol. 82, 271–83. Rest in Peace’, Modern Law Review, 1967,
Le Code Civil, Livre du Bicentenaire, Dalloz Vol. 30, 241–59.
Litec, 2004. Hahlo, H. R., ‘Codifying the Common Law:
Commission Superieure de Codification, Protracted Gestation’, Modern Law Review,
Rapports Annuels, Journaux Officiels, 1975, Vol. 38, 23–30.
https:// w ww.legifrance.gouv.fr/ D roit- Holland, J. A., and Webb, J. S., Learning
francais/C odification/R apports-annuels- Legal Rules, 3rd edn, Blackstone, 1996, 9.
de-la-CSC Kötz, H., ‘Taking Civil Codes less Seriously’,
de Cruz, P., Comparative Law in a Changing Modern Law Review, 1997, Vol. 50,
World, 3rd edn, Routledge-Cavendish, 2007. 1–15.
43
The Commission SupÉrieure de Codification 43
Moréteau, O., ‘The Future of Civil Codes in Tallon, D., ‘Codification and Consolidation
France and Louisiana’, Journal of Civil Law at the Present Time’, Israel Law Review,
Studies, 2009, Vol. 2, 39–60. 1979, Vol. 14, 1–12.
Oppetit, B., Essai sur la Codification, Paris: Universite Pantheon-Assas, 1804–2004 Le
PUF, 1998. Code Civil un Passé un Présent un Avenir,
Stoljar, S. J., Problems of Codification, Paris: Dalloz, 2004.
Canberra: Department of Law, Research Zweigert, K., and Kötz, H., An Introduction
School of Social Sciences, Australian to Comparative Law, 3rd edn, Oxford:
National University, 1977. Clarendon Press, 1998, 74–118.
4
3
STATUTORY
INTERPRETATION
L’interprétation est la forme intellectuelle de la désobéissance.

J. Carbonnier, Droit Civil: Introduction.
G E N E R A L C ON SI DE R AT ION S
The purpose of this chapter is to equip readers with a knowledge and understanding of
the method and rules of statutory interpretation employed by French courts. Gaining
familiarity with the French approach to statutory interpretation may be of particular
interest, if not relevance, to foreign lawyers developing their skills and practice in a
European context, especially in view of the dominant influence French law has had on
the methods of statutory construction applied by the European Community courts.
English legal writers, when commentating on the English rules of statutory con-
struction, have drawn attention to the shift away from the traditional canons of in-
terpretation that have been operated in recent years by English courts in order to
accommodate European Community membership. It has been suggested that there is
a tendency towards convergence between the English and Continental law approaches
to interpretation taking into account the path followed by English courts, long
advocated by Lord Denning, to be more open and willing to adopt the broader pur-
posive approach of Continental systems. Since the enactment of the Human Rights
Act 1998, this approach has been pressed upon English judges who are now prepared
to give a broader interpretation to legislation generally, not merely confining them-
selves to the words used by Parliament, so as to ensure consistency with human rights.
However, these developments may need to be revisited in the near future in the context
of Britain leaving the European Union.
Whatever the legal implications of Brexit on the UK’s legal system, convergence be-
tween common and civil law systems in Europe should not be overestimated. Despite
having been brought closer, the respective methods of interpretation applied by
each of the two systems still retain some inevitable characteristic features which are
45
General Considerations 45
inextricably bound up with their respective approach to the formulation of legal rules,
and, more generally, to their respective theory of legal sources. In particular, civil law
judges have always found it appropriate to look at a legislative provision in a much
wider context than their common law counterparts have been willing to do. This is
due in part to the fact that Continental legal systems such as France have codified
their laws. The perceived necessity from the early days, when the codes were first
established, of adapting them to rapid social transformation explains this divergence
from the strict literal meaning of code provisions. Also, as described in Chapter 1,
code provisions are drafted loosely and rely to a greater extent on general statements of
principle rather than the narrower and detailed legislative provisions to be found in the
common law tradition. Drafting and interpretation being mutually interdependent,
legal texts designed, as in France, in an open-textured manner will more likely carry
within themselves the germ of further development, in the sense that the task of filling
in the details of their provisions is being handed on to interpreters. In such a context,
French judges have never felt they were under much pressure to be tied too closely to
the wording of the statutory text and have never felt it wrong to accomplish what was
necessary in order to fill the gaps, very often left there on purpose by the legislature.
This accounts for the fairly liberal, mainly purposive, approach to interpretation trad-
itionally adopted by French courts.
This approach is, as will be discussed below, one which seeks to give effect to the
true spirit of legislation rather than to its letter and which is prepared to look at any
extraneous material that has a bearing upon the background against which the legis-
lation was enacted. However, it should not be assumed from the foregoing that French
courts do not recognise the literal approach traditionally adopted by systems such as
in England. In fact, as will be examined, the literal approach will prevail in French
law whenever the words of a statute are clear and unambiguous and address the point
at issue. In the same vein, despite the emphasis placed on the spirit rather than on
the letter of the law, the French approach to interpretation remains paradoxically very
‘legalistic’ in the sense that French courts hardly ever resolve issues of interpretation
without recourse to legislative texts. Even where there are gaps in the law, French
judges invariably manage, through the use of various techniques of logical deductive
interpretation, to base their decision on one or more legislative texts. This approach,
to a certain degree, is hardly surprising in a system which puts great emphasis, as seen
in the previous chapters, on statutory and code provisions as sources of law. At the
beginning of the 20th century, legal theorist François Gény (1919) fiercely criticised
the systematic resort to legislative enactments in the French approach. According to
him, this was the reflection of a true fétichisme de la loi écrite et codifiée symptomatic of
French legal theory and practice. Gény advocated in its place an alternative approach
to interpretation ‘free’ from constraint of the written law which is further examined
below in this chapter.
Since interpretation, in the legal context, is a form of reasoning, the subject matter
covered by this chapter inevitably overlaps with what will be said in Chapter 7 on
judicial reasoning. In addition, the creation by the courts of a separate set of rules
46
46 Statutory Interpretation
supplementing the codes through the process of interpretation, being as it is a question

as much related to the judicial development of the law as to the operation of interpret-
ation itself, has demanded that this issue be carried forward to the next chapter which
deals with case law and judicial law-making.
Thus, the present chapter is broken down as follows. The first part examines the
various methods used by French judges when interpreting legislation. The following
part then looks at the aids to construction at their disposal. The final part is devoted to
the authorities, other than the judiciary, that are authorised to interpret law in France.
Indeed, although the chapter focuses mainly on judicial interpretation, mention ought
to be made of the increasing role played by government departments in France in the
application and interpretation of legislation.
M E T HOD S OF I N T E R P R E TAT ION
Nowhere, in French law, do we find any general authoritative statement concerning

the law on interpreting statutes. Nor is there any form of legislation, similar to the
Interpretation Acts known in some common law countries, intended to assist the
draftsman or to guide the judge in matters of statutory interpretation. All we find in
the Civil Code, arts 1188 et seq. (formerly arts 1156 et seq.), are rules governing the
interpretation of contracts. Apart from this, the general part of the Criminal Code
contains an interpretation provision, art. 111–4, which sets out the principle of strict
construction of criminal statutes. The currently existing rules and techniques for the
construction of statutes are thus the result of customary law, judicial practice, and
legal writing, and, apart from the above-mentioned specific code provisions, can only
be found in a random way among the mass of decisions that are, unfortunately, rarely
explicit in this respect. Treatises and textbooks usually provide a more or less system-
atic and rational account of judicial practice in this area. Numerous papers, articles,
and important monographs have also addressed the subject and can provide an or-
derly account of the French rules of interpretation, although none of them can boast
of being as widely used and celebrated as the English Cross on Statutory Interpretation.
It is interesting to note, however, that French law schools regard statutory construc-
tion as part of the basic teaching of law students, and this from a very early stage in
their studies. Indeed, interpretation of statutes forms part of the course ‘Introduction
au Droit’, which is one of the core subjects forming part of the first-year syllabus in
French law schools.
The French approach to statutory interpretation is usually expressed in the following
three propositions and can actually be traced back as early as 1799 to Portalis’s clas-
sical and visionary Discours Préliminaire when the famous draftsman of the Civil Code
presented it to the Conseil d’État. These propositions are:
(a) Quand la loi est claire, il faut la suivre. Where the meaning of a statute is clear, it
must be followed.
47
Methods of Interpretation 47
(b) Quand elle est obscure, il faut en approfondir les dispositions pour en pénétrer
l’esprit. Where the language of a statute is obscure or ambiguous, one should
construe it in accordance with its spirit rather than its letter in order to deter-
mine its legal meaning.
(c) Si l’on manque de loi, il faut consulter l’usage ou l’équité. Where there is a gap in
the law, judges must resort to customary laws and equity when deciding a case.
Since the enactment of the Civil Code, these propositions have been supplemented by
alternative approaches such as the teleological and historical methods of interpretation
that are examined later in this chapter. This has resulted in a certain degree of flexi-
bility in the practice of the courts which tend to favour a combination of these different
methods rather than moving towards priority rules or strict canons of interpretation.
In this respect, French legal writers regularly report on the difficulties they are faced
with in their attempts to systematise the practice of the courts on interpretation. It is
indeed difficult to find reasons in decisions by French courts which justify the choice
of one approach rather than another for interpretation purposes or, more specifically,
the reasoning as to why a particular provision has been interpreted restrictively rather
than broadly, and vice versa.
Each of the propositions referred to above, which characterise the French approach
to interpretation, must now be considered in turn. Following this, a sub-heading will
be devoted to alternative existing methods of interpretation which are also in use in
French courts.
Q UA N D L A LOI E ST C L A I R E , I L FAU T L A SU I V R E
If the meaning of a statute is plain and clear, then it must be followed without any re-
course to interpretation. This proposition is often expressed in its Latin form interpret-
ation cessat in claris. The courts have generally acknowledged this proposition in two
complementary ways:
1. by refusing to extend or to restrict the scope of a text which is clear and unam-
biguous, i.e. considering that what the legislature has not written the court must
also not write;
2. by setting the plain meaning of a statute against the intention of the legislature,
i.e. deciding, when there is conflict between the two, that the former should
override the latter.
Both are illustrated below with landmark cases.
(a) In Marchon v Epoux Fousset et autre (1932), D.H. 1933, 2, a Law of 9 June 1926
on commercial leases provided in its art. 9 that a lessee whose tenancy had been
renewed by his landlord could sell the leasehold interest in business premises to
a third party provided that business activities had already taken place on those
premises for a period of at least three years. Following such a sale, a landlord
48
relied on the travaux préparatoires of the 1926 law to argue before the Court
of Cassation that the three-year period specified by the law meant, in a case
where the tenancy had been renewed, three years from the date of the renewal,
not from the date of the original lease. The Court of Cassation dismissed the
landlord’s appeal, deciding that there was nothing in the wording of art. 9 to
support his view, and that the meaning suggested by him would actually have
the effect of narrowing the scope of art. 9. The court also added that the search
for the intention of the legislator through the travaux préparatoires, although
usually permitted when the text of a statute needed interpretation, was never-
theless forbidden where the wording of this statute was, as here, neither obscure
nor ambiguous.
(b) In Dame Fournet v Chevalon (1946), D. 1947, 90, a statute passed under the
Vichy regime of 1940–41 stated that it was not possible for married couples
to lodge a petition for divorce sooner than three years after the marriage took
place. However, within this period, married couples could, under the terms of
this statute, apply for a judgment granting judicial separation (séparation de
corps). In 1946, after the war, legislation was introduced with a view to enabling
spouses who had been unable to apply for a divorce under the previous 1941 le-
gislation to have their judgment of séparation de corps automatically converted
into a divorce judgment. The plaintiff argued that the new legislation did not
apply to the judicial separation between her and her husband, the 1946 statute
having been intended to apply only to those couples who, under the former
one, were not entitled to lodge a divorce application, namely those not having
yet been married for three years. In her case, she contended, an application
for divorce instead of the judicial separation granted would have been pos-
sible under the 1941 statute as she had been married at that time for more
than three years. The Riom Court of Appeal hearing the case did not agree
with the plaintiff ’s view. Relying on the clear wording of the new 1946 statute,
notably the use of such general terms as ‘any judgment of séparation de corps’,
the court held that the restriction suggested by the plaintiff was not permis-
sible in this case, even though, as she rightly argued, the wording of the text
was not consistent with what Parliament had intended when the new statute
was introduced. In this case, judges were once again not prepared to depart
from the clear wording of a statute in order to give effect to the intention of the
legislator.
However, these solutions, based on a strict literal approach, have been qualified by the
courts in a number of ways:
(i) In Administration de l’enregistrement v Congrégation des Pères Augustins de
l’Assomption (1898), S. 1899, 1, 193, a case concerning taxation matters, it
had formerly been decided that applying the literal meaning of a tax statute
expressed in clear terms did not necessarily mean that the interpreter had
49
failed to give effect to the intention of the legislator. Reiterating this precedent,
the Court of Cassation, which heard the case, further held that it was firstly
towards the literal meaning of the relevant legislation that one should always
have to look when seeking the original intention of the legislator. This solu-
tion was founded on the assumption that the words chosen by Parliament in a
statute were clearly designed to reflect its intention in passing that statute.
(ii) In Samedi Soir v Le Borgne (1952), JCP 1952, II, 7108, the court held that in
circumstances where the application of the literal meaning was likely to result
in an absurdity, the judge could look at the legislative intent and ‘rectify’ the
legislative provision by means of interpretation. This principle had previously
been applied, for the first time, in a famous railway case, Bailly v Min. Publ.
(1930), D.H. 1930, 253. There, a decree dated 11 November 1917 on safety rules
for railway and tramway passengers contained a provision, art. 78, which was
drafted in French as follows:
Il est interdit aux voyageurs,
De monter ou de descendre ailleurs que dans les gares, stations, haltes ou aux arrêts
à ce destiné et lorsque le train est complètement arrêté.
(It is forbidden to get on or to get off the train other than in railway stations and
when the train is completely stopped.)
The text, expressed in such terms, was badly drafted and when read meant in French
exactly the opposite of what it was intended to mean, i.e. that passengers were forbidden
to get on or get off a train before it had completely stopped. The defendant who had
been prosecuted for jumping off a train before it had stopped used art. 78 in its literal
meaning as a defence. The Court of Cassation, in a famous ruling, upheld the deci-
sion of the lower court to re-establish the intended meaning of art. 78 which had first
resulted in the conviction of the defendant.
(iii) Sometimes, in order to keep up with social change, French courts have departed
from the literal meaning of a statute, applying instead a meaning that was not
originally intended by the legislator at the time when the statute was passed. In
the more recent case of Association des centres éducatifs du Limousin v Blieck
(1991), D. 1991, 324, the full assembly of the Court of Cassation, in a landmark
decision, held that a centre for handicapped people which had undertaken to
look after a mentally handicapped person who had set fire to the plaintiff ’s
property was to be held liable under the then art. 1384 of the Civil Code for
the damage caused by the action of this person. In this case the court did not
follow the appellant’s view based on previous precedents that the relevant
part of art. 1384, which provides that a person is responsible for the damage
caused by the actions of others for whom he is answerable, was originally
intended to be limited to the specific instances of liability detailed in the re-
mainder of that article, i.e. parents, teachers, and employers. In this case, the
50
appellant contended that a centre for mentally handicapped people did not
fall under either of these categories. However, the Court of Cassation decided
to depart from its previous case law based on a literal meaning of art. 1384
and to allow the injured party in this case to have an action in tort. The deci-
sion of the court had the effect of establishing a general principle of liability for
the damage caused by the action of others for whom a person is answerable,
allowing thereby the application of art. 1384 to new situations that the legislator
of 1804, when this text was drafted, could not have foreseen.
Q UA N D E L L E E ST OB S C U R E , I L FAU T E N A PPR OF ON DI R L E S
DI S P O S I T I ON S
Where the language of a statute is ambiguous or obscure, leading to doubts about
its meaning or to a conflict with other rules, judges have a duty to interpret and to
search for what the legislature meant when enacting the text. This raises the question
how is the intention of the legislator to be ascertained in such a case? The method
used in French law to ascertain the legislative intention in ambiguous texts, is the
exegetical method of interpretation. This approach is based on the assumption that
any statute is an act of will and that the most rational method for interpreting this
will is to investigate the legislator’s intention at the time when the law was made. In
this respect, there are a number of rules and techniques aiding interpretation. These
are considered below under a separate heading with examples of specific applications
by the courts.
The exegetical method has very often been confused with the literal method
from which it differs significantly and must be distinguished. Both methods, it is
true, are characterised by a rigid adherence to the text of a statute. However, whilst
the literal approach holds that the judge should look exclusively at the words and
grammar of the text of a statute in order to construe its meaning, the exegetical
method looks beyond the words of the text in an attempt to determine the reasons
for its enactment. L’esprit l’emporte sur la lettre could have been the motto for the
Ecole de l’Exégèse, a school of thought which was at its height during the second
half of the 19th century (see further at Chapter 9). It began to lose its influence
at the beginning of the 20th century, a time when the Napoleonic codes were felt
to be showing their age due to the profound economic, social, and political trans-
formation through which French society was passing. These changes called for
legal development, which could only be achieved, in a society still attached to the
structure of the old codes, through a change in the method of code interpretation.
This accounts for the decline of the exegetical method and the subsequent addition
of new approaches to interpretation such as the historical and teleological methods
of interpretation (see below). Today, however, a time of important legislative ac-
tivity, the exegetical method has again become a dominant method of statutory
construction for newly enacted legislation, since there is less of a need to adapt
new legislation to societal change.
51
S I L’ON M A N QU E DE LOI , I L FAU T C ON SU LT E R L’ U S AG E OU

L’ É QU I T É
Limited recourse to equity in French law
The above proposition, according to which, where there is a gap in the law, the court
may resort to other sources such as custom or equity, is of limited application in French
law. This is particularly true of private law where codes are deemed to provide the
primary source of law and the basis for court decisions, and where filling legislative
gaps, without the support of any statutory text, would be seen as an encroachment
on Parliament’s authority. Before resorting to sources other than statutory law, when
faced by situations not covered by existing rules, French courts would always, at a first
stage, use techniques of logical interpretation (see below) in order to extend the scope
of existing rules to analogous situations arising before them. This task will usually be
facilitated by the arsenal of code articles, which take the form of general statements
of principles, and the tendency within the codes to use general notions—known as
notions-cadre—examples of which are ordre public (Civil Code, art. 6) and intérêt de la
famille (Civil Code, art. 1397), which are sufficiently elastic to accommodate any un-
foreseen situations that may arise.
Resorting to custom and equity is likely to remain the exception for two further
reasons. First, although local or professional custom plays a significant role in such
areas as contract, property, commercial, or labour law, it still remains a secondary
source of French law, since most of these customary rules derive their authority from a
relevant enabling statute and, thus, by their nature, do not take precedence over legis-
lation. The second reason is concerned with the notion of equity. Equity in France has
never been considered a proper source of law. French comparative scholar René David
(1972: 196) once highlighted this point in the following passage:
The word equity has a bad press in France; French lawyers immediately associate it with the
idea of arbitrary action. ‘God save us from the equity of the parlements [pre-revolutionary
courts]’ is a formula that is often cited and continues to influence the thinking of lawyers
and judges. Apart from the few exceptional cases where the legislator himself has referred
to equity, a litigant has no chance of success if he simply argues the equity of his position
before the judge. The French judge decides in law, not in equity.
Particular instances of recourse to equity

Civil Code
It would be wrong to assume from the above description that French judges never
use considerations of equity, or never refer to equitable factors when deciding cases.
Sometimes they do so because the law itself allows them to take considerations of
equity into account. For example, in the law of contract, art. 1231-5 alinéa 2 (formerly
art. 1152) of the Civil Code allows the judge to modify a so-called ‘penalty clause’,
whereby parties to a contract agree on a certain sum on account of damages that the
defaulting party shall pay, when the agreed figure is either excessive or absurdly low.
52
Another example is art. 1343-5 (former art.1244–1) of the Civil Code which gives a
court absolute discretion to grant extended payment schedules to debtors in critical
financial circumstances.
Case law
In the courts, recourse to equity has occurred in situations where a strict application
of the law would have resulted in an unjust outcome. An illustration of this is the
doctrine of the abuse of rights in property law in cases where owners, who in prin-
ciple can exercise their rights freely, have been judged liable for using these rights ma-
liciously with the sole intention of inflicting harm on another party (see further at
Chapter 15). Also, in the context of contractual obligations, there is the doctrine of
enrichissement sans cause known today as enrichissement unjustifié. It allows a person
to recover money paid, or the value of a benefit conferred, in circumstances where, in
the absence of any contract, another person has been unjustly enriched. Since the land-
mark case of Patureau v Boudier (1892), D. P. 1892, 1, 596, this doctrine has been con-
sistently applied by French courts. In 2016, this doctrine was consolidated in the Civil
Code, art. 1303. It has therefore become statute law as is already the case in German
and Swiss law.
Principes généraux de droit

Also related to the notion of equity are principes généraux de droit (general principles
of law). These principles have also been widely used by judges in French law to fill any
gaps found in existing legislation which, if left unfilled, would have led to injustice.
Principes généraux are authoritative rules of law, not laid down in any text, but which
have been established and applied by the courts and are binding upon them. They
have their origin in the spirit as well as in the legal and constitutional traditions of the
French legal system. Principes généraux de droit are of paramount importance in ad-
ministrative law where there has never been a general code similar to the Civil Code
in private law to provide support for judicial decisions. In this area they have become
an independent source of law and have been mainly used as a means of ensuring pro-
tection of the individual rights of the citizen. Among the principles identified and
enforced by the administrative courts are such broad principles as that of the equality
of citizens before the law, as well as more specific principles such as the principle of
publicité des débats judiciaires according to which law cases must be heard in open
court (Dame David (1974), D. 1975, 369). The principles of indisponibilité du corps
humain and indisponibilité de l’état des personnes (the principles that the human body
and one’s personal status are outside the scope of any transactions or other agreements)
have also been used by both administrative and private courts to invalidate contracts
dealing with surrogate motherhood. A recent illustration of those two principles is
the Court of Cassation (full Assembly) decision of 3 July 2015, Bull. ass. plen. no 4, in
Lizie G. concerning the refusal by the State to register abroad, in a French consulate’s
civil status register, the birth of a surrogate-born child. The Public Prosecutor argued
in court that the principles of indisponibilité had the consequence to invalidate any
53
surrogacy agreement and subsequently any registration of a child born following such
an agreement.
In another context the private courts have also adopted the principle that a party
cannot act inconsistently (Nul ne peut se contredire au détriment d’autrui). This prin-
ciple, based on the common law doctrine of promissory estoppel, has been applied
successfully in such areas as commercial law, employment and inheritance.
OT H E R M E T HOD S OF I N T E R P R E TAT ION

In addition to the literal and exegetical approaches described above, there are two fur-
ther options available to courts: the teleological and the historical methods. They are
each in turn briefly considered here. A separate sub-heading outlines Gény’s proposed
method of interpretation, mentioned earlier in this chapter. Although this method has
never formally been acknowledged by the courts, it has, and still retains, significance
in legal scholarship.
Teleological method
Also known in France as méthode du but social, it is a method whereby the court seeks
to identify the social purpose or objective of the legislation under consideration with
a view to applying it in a way which does not conflict with this purpose. The use of the
teleological approach in French law has to be considered within the broader frame-
work of the purposive approach generally adopted by the courts. Thus identification of
the objective or purpose of a text is carried out at the same time as the search for the
legislative intent by consulting the travaux préparatoires or sometimes, more simply, by
looking at the title of the statute itself.
In France the name of Louis Josserand is most commonly associated with teleo-
logical interpretation. In the first of his two famous essays on legal teleology, entitled
De l’Esprit des Droits et de leur Relativité (1927), Josserand argued that all rights have
a social purpose, the main reason being that they arise themselves from rules of law
which are, by their essence, rules of a social nature. Accordingly, rights—following this
view—must be exercised in accordance with their social purpose and, if they are not,
their exercise becomes anti-social and by extension unlawful. Further, for Josserand,
the social purpose attached to rights explains why they are only ‘relative’, and this
extends even to rights which have been described by the legislature as ‘absolute rights’,
such as the right of ownership. Thus, in circumstances where a particular owner has
been exercising his right in a way which adversely affects the general interest of the
community, it degenerates into the reprehensible ‘abuse of right of ownership’ (see
further at Chapter 15).
Today, the teleological method is widely used by the Conseil Constitutionnel when
interpreting statutes submitted for its scrutiny. The Conseil has identified a number of
so-called ‘objectives of constitutional value’ as means of implementing constitutional
principles and rights. For example, in its landmark Decision 89–1138 AN of 6 March
1990, Rec. 52, the Conseil, acting in its capacity as supervisor of the election process,
54
referred to the objective of ‘pluralism in the expression of thought and opinion’ in

interpreting the 1986 legislation on the exercise of freedom of expression in the media
during election campaigns. In the more recent leading decision of 16 December 1999
(cited at Chapter 2 under ‘Advantages of Codification’) the Conseil has ascribed consti-
tutional value to the objective of ‘accessibility’ in the context of codification. It should
further be noted that the teleological method has also become a favoured method of
European Community courts when interpreting treaties and Community legislation.
The historical method of interpretation

Sometimes called méthode évolutive, it differs from the exegetical method in that, in-
stead of construing a statute in the historical light of the legislative intention at the time
when it was passed, it seeks rather to establish an interpretation based on what would
probably be the intention of Parliament if it passed the same text today. The historical
method rests on the assumption that interpretation should reflect changing times. It
has been used in particular to adapt to modern times provisions of the Civil Code
relating to the law of torts, especially former art. 1384 alinéa 1 (now art. 1242) dealing
with liability for things in one’s care. In 1804, the date of enactment of the Civil Code,
this text was designed to deal only with things included in the body of the article it-
self, i.e. animals and dangerous buildings. However, with time, French courts have
extended it to other things, notably machines and cars, when faced with developing
circumstances of industrial and road traffic accidents at the turn of the 20th century.
Gény’s Libre Recherche Scientifique

In his authoritative work on legal sources and methods of interpretation, Gény (1919)
advocates a ‘free’ but nonetheless ‘scientific’ approach to statutory construction which
allows the interpreter to depart from the text of the statute or code when its letter fails
to furnish the rule. Gény takes the view that the exegetical method is flawed. In those
situations which are clearly not covered by the statute being interpreted—or by any
other statute—he considers it unreasonable, if not indeed a fiction, to attempt to ascer-
tain the intention of the legislator or to resort to a legislative text where its scope would
have to be stretched to the maximum in order for it to be applied to the circumstances.
What Gény implies here is that most of the time the mere citation of a statute or of a
code provision as a basis for the court decision is a cover-up for judicial creation. Gény
calls for an end to what he considers to be the ‘cult of the written law’ in the French
legal system and advises judges to depart from code and statutory provisions when
appropriate and thereby engage in a ‘free search’ (libre recherche) for other sources cap-
able of providing a solution to the case before them. This method, as proposed by Gény,
is ‘free’ but not arbitrary. Indeed, his view is that courts should not adopt a subjective
approach to interpretation. Instead, there is an obligation to give consideration to a
universe of equity, reason, customary rules, or, more generally, policy considerations.
In this sense of a defined universe as the field of operation for interpretation, Geny’s
system may be said to constitute the basis for a scientific method. Moreover, Gény does
not completely reject formal sources from the operation of interpretation. According
5
Aids to Construction 55
to him, the code should always furnish the primary rule; it is only where there is no
rule available for the circumstances in the code that the judge, in his view, should feel
free to depart from it. In this respect, Gény’s approach has very often been categorised
by quoting Ihering’s famous dictum expressed in French as: ‘Par le Code Civil, mais
au-delà du Code Civil’ (‘by the Civil Code, but beyond it’). Gény’s Libre Recherche
Scientifique has never had the open support of French judges and French jurists, the
purported reason being that, to this day, it runs counter to the traditional and official
theory of legal sources which does not openly acknowledge the creative role of the
courts and implicitly assumes that judges are neither able nor willing to resolve cases
without assistance from legislative texts.
A I D S TO C ON ST RU C T ION
I N T E R NA L A I D S TO C ON ST RU C T ION
In the context of the French legal system these aids are mainly derived from the use of
logic. In this respect, French law professors Aubry and Rau (1964: 311) draw a useful
distinction between the grammatical interpretation of a text, considered by the inter-
preter, and its logical interpretation. Whilst the former helps to determine the meaning
of a text by examining the vocabulary used and the grammatical structure, the latter
looks at the text in relation not only to other statutes on a similar or related subject,
but also to the entire body of rules existing in a given area of law. Logical interpret-
ation proceeds from the postulate that there must be coherence and consistency be-
tween the rules of a system of law. Therefore, where there is a choice between several
meanings for a statute, or where statutes are inconsistent with each other, resolution of
these conflicts can be aided by examining these statutes against the wider background
of other legal texts forming part of the legal system. The application of logic to legal
problem solving also enables the interpreter to extend statutory provisions to areas
which have not been specifically addressed, either by the text under consideration or
by any other legislation. More specifically, through logical analysis the interpreter is
able to deduce, from the explicit solutions given by the texts of a code or statute, the
implicit solutions which are also necessarily contained within it and, by extension, can
help to solve the question at issue which, as yet, has not been provided for. Such a pro-
cess, of necessity, demands firstly that the ratio legis of the text under consideration,
the reasons why it has been enacted, are determined. This ratio legis, once determined,
will then suggest an extensive or restrictive application of the rule contained in the
text to the situation at hand. Various forms of logical reasoning have been developed
by the courts in support of logical analysis. The forms of reasoning most commonly
used by French judges are a pari, a fortiori, or a contrario. Reasoning a pari refers to the
use of reasoning by analogy. It consists of applying a rule of law set out in a text to an
unforeseen situation where the reasons which have led the legislator to adopt this rule
apply with the same force to the situation under consideration and which has not been
56
expressly provided for (ubi eadem ratio, ibi idem jus). A judge will employ a form of rea-
soning a fortiori where the reasons why a statute was enacted apply with greater force
in the situation currently under examination. Finally, reasoning a contrario means that
where a text expressly provides for a particular situation, it is assumed to have ruled
out the opposite one (Qui dicit de uno, de altero negat). Dame B. v M. and V. (1976),
D. 1976, 593, provides a suitable illustration for reasoning a contrario in the context of
disputed parentage of a child. In this case, a child whose legal father and mother were
married to each other at the time of his conception, but divorced soon after his birth,
had been subsequently registered by his mother’s former lover who then claimed to be
his actual biological father. The question at issue was whether or not this registration
was admissible. Under the then relevant provision, art. 334–9 of the Civil Code (which
was repealed in 2006), where a child had already been registered at birth as the legit-
imate child of a man, this status being corroborated by circumstances showing that the
child had been treated and considered as such, any subsequent registration by another
man was to be declared inadmissible. The child’s mother argued that the child’s birth
certificate already mentioned the name of her former husband as the legal father of
the child and this circumstance should be sufficient, under art. 334–9, to make in-
admissible any subsequent registration of the child by another man claiming to be
his father. However, the Court of Cassation, interpreting a contrario art. 334–9, ruled
that whereas subsequent registration is inadmissible in the case where the mention of
the legal father’s name already appears on the birth certificate and is corroborated by
circumstances showing that the child is treated and considered as his, a contrario, sub-
sequent registration is admissible where the inclusion of the name of this legal father
in the birth certificate is not corroborated by such circumstances. The fact that the legal
father of the child, whose name appeared on the birth certificate, did not keep in con-
tact with him following divorce from the mother had the effect, according to the court’s
interpretation a contrario of art. 334–9, of validating the subsequent registration by the
mother’s former lover (it has to be noted that, following the 2005 overhaul of the law in
this area, the rules governing challenges to paternity have been considerably simplified
with the effect of minimising such issues of interpretation).
E X T E R NA L A I D S TO C ON ST RU C T ION
The use of travaux préparatoires should be highlighted here in view of the predominant
place they have in the French approach to interpretation.
Travaux préparatoires
Where a judge is unable to determine the meaning of a statute from the words used
or from logical interpretation, then the original intention of Parliament may be
sought from the legislative history of the particular statute, by consulting the travaux
préparatoires. Travaux préparatoires include draft bills, statements made by the Minister
or other promoter of a bill (known as exposés des motifs), reports made by official par-
liamentary committees, amendments which were proposed and discussed and, finally,
57
the parliamentary debates. Amendments proposed are of particular significance when

it comes to ascertaining the original intention of Parliament, especially when these
amendments have not been included in the text finally adopted. Indeed, where this
is the case, it can be assumed that the view held by the proponent of the amendment
has been rejected by the legislator and should therefore be ruled out when seeking the
intention of Parliament. Travaux préparatoires are reported in the Journal Officiel de
la République Française—Débats Parlementaires, a special publication of the Journal
Officiel. They also appear as footnotes, for easy reference, under the actual published
text of the statute in the Journal Officiel—Lois et Décrets. The Journal Officiel (Lois et
Décrets and Débats Parlementaires) is available online and in most law schools and
law court libraries, thus making parliamentary materials readily accessible to scholars,
practitioners and judges. Students are also encouraged to look at them when assessing
newly enacted legislation.
However, the use made in France of travaux préparatoires should not be overstated.
First, as has already been said, judges are not allowed to rely on travaux préparatoires
where a text is clear. Secondly, recourse to parliamentary materials is only justified for
newly enacted legislation and is of limited assistance in the case of older statutes where
changing circumstances and the need for adaptation make knowledge of the inten-
tion of the legislator in its original context irrelevant. As shown earlier, French judges
show no hesitation in adapting older statutes by using methods of interpretation that
do not involve the use of travaux préparatoires, enabling them to take changing times
into account. Thirdly, even where the words of a statute are obscure or ambiguous,
one may question whether travaux préparatoires are really of assistance in throwing
light on the meaning of a text. In England, this was the subject of controversy, espe-
cially amongst judges, prior to Pepper v Hart [1993] AC 593, which eventually allowed
the use of travaux préparatoires in court. The admissibility of travaux préparatoires in
court was also once challenged in France, especially by Henri Capitant (1933) in his
celebrated essay on statutory construction, where the author questioned the reliability
of such documents using arguments which will sound familiar to lawyers in common
law systems. According to Capitant, the main objection to the use of parliamentary
materials as an aid to the interpretation of a statute is that they tend to promote confu-
sion rather than clarity. They mainly consist of a series of, what are often, contradictory
statements of opinion generally given by unskilled Members of Parliament, thereby
resulting in more confusion than the actual words of the final legislation itself. Thus,
Capitant argues, too much attention paid to the interpretation of statements made by
Ministers or Members of Parliament can only take place at the expense of the legal cer-
tainty provided by the written text of a statute. Also, this way of proceeding adversely
affects the authority of legislation by implying that the meaning, and therefore the
force, of a statute derives from the discussions which have preceded its passage.
The extent to which courts refer to travaux préparatoires in construing statutes is
difficult to assess, the reason being that French judges hardly ever explicitly justify
their decisions. However, it can be assumed that in reaching its decision a court has
used travaux préparatoires when the judgment of the court confirms an interpretation
58
based on travaux préparatoires proposed by a particular scholar at the time when the
law was passed, or by the Commissaire du Gouvernement (known as Rapporteur Public
since 2009), or the Avocat Général in their respective submissions to the Conseil d’État
and to the Court of Cassation. Illustrations of this are the two landmark cases Castagné
et autres v Epy and Société générale des grandes sources d’eaux minérales françaises v
Castagné (1974), D. 1974, 593, both commonly referred to as the ‘Perrier decisions’.
Here, the Court of Cassation followed the interpretation, partly based on travaux
préparatoires, proposed by Avocat Général Touffait in his celebrated conclusions. The
question was whether or not an employer could use the general judicial remedy of
résolution judiciaire provided for in contract law (Civil Code, former art. 1184) in order
to terminate the contract of employment of employees who also held the position of
staff representatives in a company. Dismissal of staff representatives was subject to
the special rules provided by labour law (the then arts 22 and 24 of the Ordonnance
of 22 February 1945 and arts 16 and 18 of the Law of 16 April 1946) under which
their contracts could only be terminated after consultation with the comité d’entreprise
(works council) or the inspecteur du travail (‘works’ inspector). However, prior to the
1974 Perrier decisions, courts used the contractual remedy provided by the then art.
1184 of the Civil Code as an alternative to the labour law provisions in circumstances
where staff representatives had been seriously at fault in the course of their employ-
ment. This practice of the courts became the subject of controversy between judges
and legal writers, with conflicting decisions being given. In its two Perrier decisions
the Court of Cassation put an end to this controversy by following the Avocat Général’s
interpretation of the various conflicting texts at issue. The Avocat Général used a mix-
ture of literal, exegetical, and teleological interpretation before reaching the view that
résolution judicaire in art. 1184 was not an available remedy. First, he directed the
attention of the court to the fact that art. 1184 of the Civil Code was part of title III
of this code dealing with synallagmatic contracts, a category of contracts where each
party’s obligation is an equivalent economic counterpart of the other. This would have
the effect of excluding from the scope of art. 1184 contracts of employment that, by
their nature, involve parties who are not economically equivalent. Further, the Avocat
Général analysed meticulously the vocabulary and grammatical structure of the rele-
vant labour law provisions. He also used the travaux préparatoires of those provisions,
first, to make it quite obvious that it was the clear intention of Parliament to subject
the dismissal of staff representatives to specific rules other than the ordinary ones
governing the law of contract and, secondly, to clarify the objective of the legislator
in affording extra protection against discriminatory practice for those who serve the
interests of employees. The Court of Cassation specifically referred to this latter aspect
of ‘extra protection’ when handing down its decisions.
The Conseil Constitutionnel has also shown a willingness to consider travaux
préparatoires as a means of determining the meaning of a legislative text submitted for
its scrutiny or as a means of monitoring whether the reasons underlying the passage
of a text are consistent with constitutional rules and principles. In this respect, con-
stitutional case law has been shown to include explicit reference to the use of travaux
59
préparatoires, as revealed in an early study carried out by Josse (1998) where the author
showed how, out of the then 395 decisions given by the Conseil since the date of its cre-
ation in 1958, 61 referred explicitly to travaux préparatoires (see further, Surin, 2014,
who sees such a reliance on travaux préparatoires by the Conseil as a way to justify its
judicial creativity and its legitimacy vis-à-vis the elected body, i.e. Parliament).
One typical illustration of use of travaux préparatoires is provided by the landmark
Decision 81–132 DC, 16 January 1982, Rec. 18, on nationalisation, where the nine-
teenth considérant clause of the decision refers explicitly to the travaux préparatoires
of the loi under scrutiny. In the more recent Decision 2012-297 QPC, 21 February
2013 on secularism, the Conseil confirms the relevance of travaux préparatoires when
interpreting legislation as shown at the following paragraph (6) of its decision:
Considering however that according to travaux préparatoires for the draft Constitution of
27 October 1946, art. 1, and to those for the draft Constitution of 4 October 1958 which
reasserted the same provision, in proclaiming that France is a ‘secular ... Republic’, the
drafters of the Constitution did not intend to call into question any specific legislative or
regulatory provisions . . . concerned with the organisation of a particular religion, including
the remuneration of clergymen.
Maxims of interpretation
In addition to travaux préparatoires, there are a number of maxims, usually expressed
in Latin, which can help in interpreting statutes. Below are some of those that are the
most widely used.
(a) Ubi lex non distinguit, nec nos distinguere debemus means where a text is
expressed in general terms, it is forbidden to introduce restrictions.
(b) Exceptio est strictissimae interpretationis means that exceptions must be
construed restrictively.
(c) Specialia generalibus derogant means where there is a conflict between a general
provision and a specific one, the latter must prevail over the former.
Note: the notion of ‘presumption of interpretation’ as an aid to construction does not
exist as such in French law. However, some of the rules which, in English law, fall
under the category of ‘presumption’ have been codified in France, e.g. the rule that
criminal statutes are to be constructed strictly (Criminal Code, art. 111–4) and the
rule that statutes do not have retrospective effect (Criminal Code, art. 112–1; Civil
Code, art. 2). Furthermore, in the context of human rights, the rule of construction in
English law that legislation must be read and given effect in a way which is compat-
ible with the European Convention on Human Rights (as per the Human Rights Act
1998, s. 3(1)), has no direct equivalence in French law since, in accordance with the
French Constitution, art. 55, the European Convention on Human Rights has been
incorporated into domestic law and takes precedence over any existing conflicting
statute. Therefore, in French law, the question of ensuring consistency with the
Convention is framed principally in terms of hiérarchie des normes (see Chapter 1), not
60
interpretation. Nevertheless, in practice, interpretation is still a very important issue

in this area since French courts generally tend to interpret restrictively the guarantees
and protection provided by the Convention in order to minimise alleged inconsistency
with domestic legislation.
OT H E R AU T HOR I T I E S T HAT C A N I N T E R P R E T
T H E L AW
Interpreting legislative provisions is mainly a task belonging to the courts when faced
with problems of interpretation arising out of legal disputes. This has not always been
the case in French legal history. In 1790 the référé législatif was introduced by the le-
gislature which forced judges to refer a case to the legislature on questions of statutory
construction. Recourse to the legislature was made obligatory where there was a per-
sistent conflict of interpretation between the courts of appeal and the then Tribunal
of Cassation. The référé législatif, which was nothing more than a measure adopted
by the revolutionary assemblies in order to subjugate the judiciary, soon proved un-
workable and was finally abolished in 1837. Today, the legislature may still, in some
circumstances, be involved in the interpretation of statutes by introducing interpret-
ative statutes intended to explain the meaning of any existing ambiguous one. In re-
cent years, however, it has essentially been the government which, through its various
departments, and by means of réponses ministérielles, has acted competitively with the
judiciary in its role of interpreting the law. This final part, thus, briefly considers the
role played by lois interprétatives and réponses ministérielles in the area of statutory
construction.
LOI S I N T E R PR ÉTAT I V E S
Lois interprétatives are declaratory or explanatory statutes passed by Parliament in
order to explain the meaning of an earlier statute which is unclear or disputed. They
are usually found in areas such as social security or commercial leases. These lois are
retrospective and operate from the date on which the earlier statute has been passed.
They affect all law cases which were started, but not decided, before they came into
force. The Court of Cassation has decided that even cases which had already been
decided at first instance prior to the passage of the loi interprétative, but were the sub-
ject of an appeal at the time when the loi had come into force, could be reviewed by the
court of appeal hearing the case in the light of the new interpretation as set out in this
loi. However, this traditional approach to loi interprétative has been shaken by the case
of Castorama heard by the Court of Appeal of Versailles on 6 February 2003, D. 2003,
720. Here, the Court of Appeal refused to apply retrospectively the Law MURCEF
dated 11 December 2001, aimed at interpreting a provision of the Commercial Code
(art. L 145–38 alinéa 3) with respect to the factors to be taken into account when
61
Other Authorities that can Interpret the Law 61
revising rents for commercial leases. The court justified its ruling by basing its decision
on the Strasbourg jurisprudence with respect to the requirement for a fair trial laid
down in art. 6 (1) of the European Convention on Human Rights and the interpret-
ation thereon of the adverse effects of retrospective legislation in this particular field. It
should be added that the appellate judges in this case were not happy with the passage
of the Law MURCEF, which had been voted in under the pressure of the landlord lobby
and which had effectively overturned the previously established ruling of the courts in
this area. This decision by the Court of Appeal, later upheld by the Assemblée Plénière
of the Court of Cassation in 2004, shows that judges, albeit in rare circumstances, can
be very antagonistic in imposing their views over the legislature despite the traditional
subordination approach, not yet abandoned in French legal theory, between the ju-
diciary and the legislature (see further Chapter 4, under the headings ‘Case Law and
legislation’ and ‘Subordination’).
R É P ON S E S M I N I ST É R I E L L E S
These are written replies from government departments to questions addressed to
them by Members of Parliament acting on behalf of public bodies or private citi-
zens and in which these government departments issue their own interpretation of
statutes. These réponses are the current replica of the Roman rescripta issued by Roman
emperors following questions or petitions addressed to them by officials or citizens.
Réponses ministérielles fulfil the same function as circulaires (see Chapter 1) and, as
with these, today provide one of the most significant sources of statutory interpretation
in France especially in branches of public law such as tax or immigration. However,
as with circulaires, they are not regarded as authoritative, and are thus not binding on
the courts. Despite this limitation, judges and parties to a case increasingly rely on
them, especially when they come from the Minister of Justice. The fact that they are
published in the Journal Officiel is manifest evidence of their significance today. The
growing recourse to this practice can be accounted for by the fact that it provides a
quick, easy, and clear answer to a problem of interpretation. However, these réponses
are not without their dangers. First, they may be a perverse means for the govern-
ment to reintroduce, in a statute, a meaning which was part of the original draft bill
introduced by the relevant ministry, but which was later amended by Parliament.
Secondly, if the government is not satisfied with the manner in which a statute has
been implemented, it may offer its ‘official’ interpretation with a view to redressing
the situation to its perceived advantage. In this context it must be added that réponses
ministérielles do not of themselves guarantee that an interpretation given in one case
will necessarily be followed in another case. In such circumstances, legal certainty and,
more specifically, the protection of citizens’ legitimate expectations, are at stake. This
is crucial for tax law where réponses ministérielles are frequently used. The fact that the
law is changing rapidly in this area and its implementation has been left to the discre-
tion of the tax authorities accounts for the tendency of taxpayers to address a large
volume of enquiries to this administration which, by definition, is in the best position
62
to provide an update on its own practice. In view of this situation, attempts have been
made over the years to define more precisely the limits of the tax authorities’ discre-
tion in interpreting the law. This has resulted in the introduction, alongside réponses
ministérielles, of the more formal tax law rescrits (tax rulings) in a Law of 8 July 1987.
Tax rulings, which are legal in a number of European countries, are written interpret-
ation of tax laws issued by tax authorities to corporations and individuals who request
clarification of taxation arrangements. These rulings have been the matter of intense
debate, especially following the so-called Luxleaks scandal, which triggered a public
and political outcry in November 2014. Luxleaks provides an insight into the practice
of tax rulings which, as shown in this case, can be used as a tool for corporations to de-
velop strategies which allow tax avoidance. In French law, unlike réponses ministérielles,
tax law rescrits are binding on the issuing tax authority which thus cannot go back on
its written replies (arts L 80 A and L 80 B Livre des Procédures Fiscales). Similar rescrits
exist under a ministerial Arrêté of 5 July 1990 for the regulation of stock exchange
transactions. These rescrits deal with queries addressed by private citizens to the COB
(Commission des Opérations de Bourse) on the legality of particular stock exchange
transactions those citizens intend to engage in.
Concluding note on this chapter: since a Law of 15 May 1991, on a reference made
by a lower court, the Court of Cassation can issue a non-binding opinion (avis) on
questions of interpretation arising out of novel and difficult questions of law (Code de
l’Organisation Judiciaire, art. L 441–1). A similar procedure exists in the Conseil d’État
for administrative law cases. This procedure has been criticised for making each of the
highest courts a quasi-official body for dealing with statutory construction in each of
their respective fields, with the effect of potentially removing from judges in the lower
courts the power to interpret statutes themselves. However, this fear has proved un-
founded. Since the 1981 Law was enacted, there has been only a limited number of avis
handed down each year by the Court of Cassation (11 in 2016, 6 in 2015, 12 in 2014
and 13 in 2013).
Chapter References
and Further Reading
Agostini, E., ‘L’Équité’, D. 1978, Chr. 7. Batiffol, H., ‘Questions de l’Interprétation
Aubry et Rau, Droit Civil Français, 7th Juridique’, in Choix d’Articles Rassemblés par
edn, Paris: Librairies Techniques, 1964, ses Amis, Paris: LGDJ, 1976, 409–24.
308–18. Bell, J., and Engle, G., Cross: Statutory
Auby, J. B., ‘Le Recours aux Objectifs des Interpretation, 3rd edn, London: Butterworths,
Textes dans leur Application en Droit 1995.
Public’, Revue du Droit Public, 1991, Vol. Bennion, F., Bennion on Statute Law, 3rd edn,
107, 327–37. London: Longman, 1990.
63
Other Authorities that can Interpret the Law 63
Capitant, H., ‘Les Travaux Préparatoires et Oppetit, B., ‘Les Réponses Ministérielles aux
Interprétation des Lois’ in Recueil d’Études Questions Écrites des Ministres’, D. 1974,
sur les Sources du Droit en l’Honneur de Chr. 107.
F. Gény, Ch. 2, Vol. 2, Paris: Sirey, 1933. Oppetit, B., ‘La Résurgence du Rescrit’, D.
Couderc, M., ‘Les Travaux Parlementaires de 1991, Chr. 105.
la Loi ou la Remontée des Enfers’, D. 1975, Surin, S., ‘Les Travaux Préparatoires dans
Chr. 249. la Jurisprudence Constitutionnelle: Une
David, R., French Law, Louisiana State Méthode d’Interprétation au Service de
University Press, 1972. la Légitimité du Juge Constitutionnel’,
Gény, F., Méthode d’Interprétation et Sources Rapport, IXe Congrès Français de Droit
en Droit Privé Positif, 2nd edn, Paris: Constitutionnel, AFDC, Lyon, 26– 28
LGDJ, 1919. Juin 2014.
Josse, P., Le Rôle de la Notion de Travaux
Préparatoires dans la Jurisprudence du
Conseil Constitutionnel, Paris: LGDJ, 1998.
64
4
CASE LAW
Ce mot de jurisprudence des tribunaux doit être effacé de notre langue.

Robespierre addressing the Assemblée Constituante on 18 November 1790.
A description has already been given in the previous chapter of how, through the pro-
cess of statutory interpretation, French judges have effectively contributed to the law-
making process. This chapter looks beyond the operation of interpreting existing law
and examines more generally the role French courts play in the development of the law.
In French constitutional theory precedents do not form part of the ‘pyramid of
norms’, described earlier in Chapter 1, and do not, therefore, constitute official sources
of French law. This French approach to legal sources arises out of a set of rules that will
be examined in this chapter, which prevent judges from interfering with the legislature
in its law-making function. In practice, however, French judges routinely make rules,
as judges do in other legal systems. In this respect, some branches of French law which
were not originally statute based, such as administrative and private international law,
have been almost entirely created out of the decisions of the judges.
The fact that judges have managed to create law in such a system as that of France
where, as will be seen in this chapter, there has always been a tradition of hostility to-
wards judicial precedent, has been described by French legal theorists as a ‘true phe-
nomenon’, not to say a ‘real enigma’ (Boulanger 1961: 421). The contradiction between
the traditional post-revolutionary concept that law can only be legislative in origin
and the reality of judicial law-making has generated a long-running debate amongst
French legal academics over whether the rules established by the judges have the force
of law. This debate over whether jurisprudence, the French equivalent to case law, is
in practice a source of law is widely acknowledged in every law treatise or academic
textbook in the relevant chapter dealing with sources of law. It can be described as
a ‘never-ending story’ where advocates and opponents of jurisprudence as a source
of law argue endlessly and inconclusively about the normative power of judicial
decision-making. This unending search for a compromise able to reconcile the theory
and practice of the judicial process is probably an impossible task taking account of
the conflicting views in this perennial debate. However, investigation of the issue of
whether jurisprudence is a ‘source of law’ is unavoidable as it touches upon other major
problems posed by case law in France, which need to be addressed here. What is the
nature of the relationship between judge-made law and legislation in a system, such
65
The Status of Case Law 65
as that of France, which over-emphasises enacted law? And, how in such a system can
judicial law-making be legitimated? It is this sort of question with which this chapter
is concerned. These difficulties cannot, however, be fully addressed without first giving
an account of the French rules of precedent and the way in which they operate. In par-
ticular, these rules depending as much as they do on the practice of the courts, demand
that some attention be given to the factors which, in the court process, contribute to
placing greater weight on certain types of precedents as opposed to others.
Thus, the chapter will be arranged as follows: the status of jurisprudence; factors pla-
cing greater weight on precedents; case law and legislation; the legitimacy of judicial
law-making.
It should be noted that, for the purpose of what follows in this chapter, the term
jurisprudence will be used, depending on the context, either in its wider meaning of ‘a
body of rules established by the courts’, or in its more restrictive meaning, namely the
‘judicial doctrine of a court on a particular legal issue’.
T H E STAT U S OF C A SE L AW
The status accorded to French jurisprudence may be said to be the outcome of a com-
bination of long historical tradition, legal theory, and legislative provisions. The pos-
ition of the judiciary in this regard and the authority of its decisions can be summarised
in three interrelated propositions:
(a) Following the French doctrine of separation of powers, judges are not allowed
to interfere with the legislature in its law-making function.
(b) From this it follows that judges are forbidden to make law intended to govern
future cases, or to use previous decisions when adjudicating legal disputes. This
is encapsulated in the prohibition of arrêts de règlement set out in art. 5 of the
Civil Code.
(c) This has consequently resulted in the absence from French law of the doctrine
of stare decisis, with the effect that court decisions do not constitute binding
precedents.
Each of these propositions will now be examined in turn.
T H E F R E N C H D O C T R I N E OF SE PA R AT ION OF P OW E R S
Set against judicial law-making is the constitutional theory, derived from a rigid doc-
trine of separation of powers, by which law is strictly a matter for the legislature, not
the judiciary. Under this doctrine, the function of judges is solely that of adjudicating
by applying the law originating from Parliament to legal disputes brought before
them. Montesquieu’s famous work, The Spirit of Laws (1748), is often quoted as having
been strongly influential with regard to this approach. In one of the most important
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66 Case Law
chapters (Book XI, Chapter VI) of his work, Montesquieu indeed refers to every judge
merely being ‘the mouth that pronounces the words of the law’, or to judicial decisions
being ‘never anything other than the exact text of the law’. However, on closer scru-
tiny, Montesquieu’s comments did not apply to judicial decisions generally, but only
to criminal rulings. In this respect, Montesquieu was particularly concerned that, if
judges were given too much discretion in this area, the individual’s civil liberties would
be undermined. Nevertheless, Montesquieu’s statements have been construed more
widely by the watchdogs for the separation of powers, with the intention of confining
the judicial function, as a general rule, to the role of ‘saying’ what the law is when
resolving a legal dispute. The judicial submission to the enacted law is even enshrined
in the term used in French to describe the word ‘court’. This term, juridiction, coming
from the Latin phrase juri dictio, means ‘to say what the law is’. However, this chapter,
like Chapter 7, will show that judicial reasoning is a much more complex process than
the simple act of ‘saying’ what the law is.
It may be argued that this question of the limits of judicial power is not exclusive to
France and that even in a system of binding precedent, such as in England, there has
been a similar trend away from the expansion of judicial law-making. However, the
point of departure between the two systems is that in France’s case, this question is not
simply a matter for constitutional theory or political debate, but has been given ex-
pression in legislative enactment. The fundamental Law of 16–24 August 1790, passed
at the time of the French Revolution and still in force today, forms the basis for the
French doctrine of separation of powers. It states in art. 10:
Courts are not, on pain of ‘forfaiture’, permitted to take part, directly or indirectly, in the
exercise of the legislative power, nor can they prevent or adjourn the execution of any de-
cree issued by the legislature.
The 1790 Law must be read within the context of hostility surrounding the judicial
function at the time of the French Revolution, a hostility which was brought about
by the actions of the royal courts of the Ancien Régime, the Parlements, whereby they
competed with the king in his law-making power. These Parlements used to issue, along-
side the King’s edicts and ordinances, particular decisions called arrêts de règlement
which were authoritative rulings laying down general rules with a view to their ap-
plication in analogous cases in the future. Although these arrêts de règlement were
only applicable within each Parlement’s own jurisdiction, and could be overridden in
the event of conflict with royal legislation, they were later perceived by the French
revolutionaries as a threat to the legislature’s overriding authority and were prohibited
at that time and thereafter.
P ROH I B I T ION OF A R R Ê T S DE R È G L E M E N T
This prohibition is, today, contained in art. 5 of the Civil Code, which reads:
Judges are not permitted to adjudicate by means of general and statutory rulings in the
cases brought before them.
67
As will be considered again later in this chapter, this rule does not in practice pre-
vent judges from laying down general rules with possible application to subsequent
cases, as prima facie the wording of art. 5 would suggest. What judges are forbidden
to do in art. 5 is to act as legislators by creating for the future rules which are not
related to the actual facts of the case under consideration. Thus, as long as the rea-
soning of the court (les motifs de la décision: see Chapters 7 and 8) shows the rela-
tion of the principle established by the court and the consequent solution deriving
from it to the material facts of the case at hand, no case for any breach of art. 5
can be made against that court. By way of illustration, art. 5 has been applied and
enforced by the Court of Cassation in a number of instances where lower courts
went beyond their role of merely adjudicating the case before them. Two examples
now follow.
(i) In Société France-Éditions et Publications v Société Laboratoires Solac et Chambre

Syndicale des Fabricants de produits pharmaceutiques (1971), JCP 1971, II, 16932,
a Sunday newspaper had advertised the merits of a product manufactured by a
pharmaceutical firm without its authorisation. The firm sued the newspaper for
damages and for the unauthorised advertising to be discontinued. The Court
of Appeal, in its decision, forbade the newspaper any longer to advertise not
only this product, but also any other products which, in the future, might be
manufactured and marketed by the plaintiff or by any members of the national
federation of pharmaceutical manufacturers. The Court of Cassation quashed
this decision on the grounds that the appeal judges had adjudicated the case by
way of general justification, ruling on future potential products which were not
yet manufactured, and on future possible litigants not concerned with the case
before them, thus violating art. 5 of the Civil Code.
(ii) The case of K. v Min. Public (1984), JCP 1985, II, 20391 concerned the legality
of an identity check carried out on the person of the defendant. The then art.
78-2 of the Code of Criminal Procedure authorised the police to carry out iden-
tity checks only where this was made necessary in the interests of preventing
threats to public order and to the security of individuals and their property. In
this case, a court of appeal took the view that the identity check carried out by
the police against the defendant, at night time and in an underground station,
was justified on the grounds that the Parisian underground, being known as
a place where crimes were commonly committed, fell under the category of
a place where the security of its users and of their belongings were at risk.
However, according to the Court of Cassation to which the case was referred,
the appeal judges were not empowered to base their decision on such general
grounds and should, instead, have shown that the actual conditions of threat
required by art. 78-2 regarding the legality of the operation of identity checks
were actually met in the specific situation at the material time. The Court of
Appeal’s decision was consequently quashed as, otherwise, it would have had
the effect of creating a new general rule, going beyond this particular case,
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68 Case Law
whereby any future identity checks carried out in the underground would have
been justified.
It is usually recognised in French legal theory that the corollary to art. 5 is to be found
in another provision of the Civil Code, namely art. 1355. This rule, known as the prin-
ciple of autorité relative de la chose jugée, is in fact the expression in French law of the
doctrine of res judicata. As such, it is outwardly only concerned with the effects of a
judicial decision on the actual parties to a particular dispute who by virtue of art. 1355
are prevented from raising the same issue at a later date. However, art. 1355 has been
applied in conjunction with art. 5 to mean that courts cannot determine in advance
the outcome of subsequent similar litigation involving different parties. Articles 5 and
1355, taken together, are the written expression of the absence of a doctrine of binding
precedent in French law.
N O D O C T R I N E OF STA R E DE C I S I S
In France, judicial decisions, even when pronounced by superior courts, are not
binding precedents that must be followed by judges. Courts are only bound by legisla-
tion or principes généraux de droit (see Chapter 3). There are, however, two principal
departures from this rule.
The first one is concerned with decisions given by the Conseil Constitutionnel.
No appeal is recognised against these decisions which, in accordance with art. 62 of
the Constitution, are also binding on all governmental, administrative and judicial
authorities. In its Decision 62-18 L, 16 January 1962, Loi d’orientation agricole, Rec.
31, the Conseil ruled that the binding authority of its decisions applies not only to
the actual ruling itself but also to the reasons stated in the decision which led to this
ruling. The rule imposed by art. 62, to follow past decisions of the Conseil, also applies
to the Conseil itself. On many occasions the Conseil has reconfirmed that it was bound
by the authority of its own past decisions (see Decisions 58-90 bis AN, 5 May 1959,
Rec. 223; 85-197 DC, 23 August 1985, Rec. 70; 80-126 DC, 30 December 1980, Rec.
53; 87-1026 AN, 23 October 1987, Rec. 55; and 88-1127 AN, 20 April 1989, Rec. 32).
Although the Court of Cassation has in past cases shown a resistance towards the case
law of the Conseil Constitutionnel, the situation today is that both administrative and
private law courts would appear to have incorporated in their own case law the inter-
pretation of statutes given by the Conseil (for the Conseil d’État, see Syndicat unifié de
la radio et de la télévision (1983), Rec. 293 and, for the Court of Cassation, Directeur
Général des Impôts v Société Royale (1990), Bull. civ. I, no. 12, which follows the inter-
pretation given by the Conseil Constitutionnel in Decision 89-268 DC, 29 December
1989, Rec. 110, on the question of the retrospective operation of a tax enactment aimed
at interpreting an earlier statute).
The second departure from the rule stated above is the Code de l’Organisation
Judiciaire, art. L 431-6. The Court of Cassation, when quashing a decision of a lower
court for not having correctly applied the law, usually sends the case back to another
69
similar lower court for review. In the event that the second court reaches the same
judgment as the first one, thereby disregarding the Court of Cassation’s ruling, and if
the case is then being brought for a second time before the latter, then the case has per-
force to be examined by the full bench (Assemblée Plénière) of the Court of Cassation
whose decision will then have a final binding effect on the third lower court to which
the case may be referred back for ultimate review. Here, the Assemblée Plénière’s de-
cision, it should be noted, binds the lower court only on issues of law (as opposed
to issues of fact) and only for the particular case in hand, to the exclusion of any fu-
ture similar cases. This foregoing, albeit complicated, mechanism happens rarely and
is mainly justified by the fact that it is expedient, at some stage, to bring an end to all
litigation.
Apart from the two above instances, the law regarding precedent in France may be
summarised in the five following points:
(1) Precedents do not need to be followed in subsequent similar cases. This rule
applies not only to the court giving the decision, but also to any other courts.
(2) As a consequence, even the highest courts—Court of Cassation and Conseil
d’État—are not bound by their own previous decisions.
(3) Similarly, lower courts are also not bound by the decisions of superior courts.
(4) Explicit reference by a court to its own jurisprudence when giving a decision
and, more generally, citation of previous cases is not allowed when these are
meant to serve as a legal basis for the court’s decision. Thus, as was decided
in the Highway Code case of Thirion v Motte (1958), Bull. crim., no. 466, no
court can give as the determinative reason for reaching its decision (in this
case the defendant was held not guilty of the offence) the fact that, having al-
ready decided the issue in past similar cases, it is bound by the jurisprudence
adopted in these cases. In the same vein, in the industrial injury case of Caisse
mutuelle de réassurance agricole de l’Ile-De-France et autres v Casimiro (1967),
JCP1968, II, 15339, the Court of Cassation quashed a lower court judgment for
having decided ‘conformément à sa jurisprudence’ on the method of payment of
damages due to the victim. However, reference en passant to ‘le dernier état de
la jurisprudence’ (the latest precedent), as in the adoption case Naïma K. (1999),
D. 2000, 45, heard by the Court of Appeal of Aix-en-Provence, would appear to
be tolerated as long as such a reference, as in this case, is not presented as the
basis for the decision given. Also, it may be noted, no objection is raised when,
in formulating the reasons for a decision in a current case, judges paraphrase
the reasons (motifs de droit) to be found in the text of past judgments in analo-
gous cases. It is in fact this repetition of motifs de droit in a consistent line of
cases which forms the basis for a jurisprudence constante (see further below).
To summarise, what is liable to being quashed is not the court’s actual following
of a precedent, but the explicit statement by the court that it is bound by a ju-
dicial precedent. The distinction between these two situations is not as purely
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academic as it sounds. Underlying the restriction on any explicit reference being

made to a court’s jurisprudence is the implied presumption that judges are only
bound by statutory law. However, this does not preclude them from following a
precedent if they so wish.
(5) As a corollary to point (4) above, failure by a court to follow a precedent cannot
constitute a valid ground for appeal. This principle was applied in a number of cases
by the Court of Cassation. For example, in Le Collinet v Compagnie d’assurances
Rhin et Moselle (2000), D. 2000, 593, a buyer brought an action for defective goods
against the seller. The case was dismissed by the lower court on the grounds that
it was not brought within a ‘bref délai’ (a short period of time) as provided for by
the then applicable art. 1648 of the Civil Code (revised in 2005 and 2009) dealing
with the obligations on the part of sellers to buyers with respect to defective goods.
The buyer argued in the Court of Cassation that judges in the lower court relied
on a new precedent which, contrary to the previous one, no longer allowed him
to escape from the brief limitation period of art. 1648. Indeed, under a precedent
existing at the time when the buyer entered into the contract, it was possible for
the buyer of a defective product to opt, as he had done, for an alternative course
of action based on art. 1604 of the Civil Code for non-delivery by the seller of the
goods agreed for in the contract, for which more time was allowed to commence
legal proceedings. According to the buyer, failure by the lower court to apply this
past precedent in his case infringed the principle of legal certainty in contractual
matters. The Court of Cassation disregarded this approach and gave a reply in
keeping with the established view regarding judicial precedent. It said:
It does not follow from the principle of legal certainty that a litigant has an established
right to a static precedent; the fact that precedents develop forms part of the judicial
process.
The same reasoning as in Le Collinet was applied in the context of medical negligence
where the Court of Cassation ruled against defendant doctors who alleged that a new
revised interpretation of the scope of their liability could not be retrospectively applied
to their medical practice (Cass. Civ. 1, 9 October 2001, JCP 2002, 551).
These decisions bring to the surface the question of departure from precedent, with
the associated frustration issues of legitimate expectations and legal certainty. The
concerns raised by retrospective departure from precedent led the then head of the
Court of Cassation to set up a working group in 2004 with a view to addressing this im-
portant issue and to recommending ways of strengthening legal certainty and parties’
reasonable expectations that a precedent will be followed, especially in the contractual
sphere. For the sake of clarity the recommendations made by the working group are
considered below, together with the issue of prospective overruling, under the heading
‘Revirement de Jurisprudence’.
To conclude on the absence of the doctrine of stare decisis in France, and all the
consequences flowing from this, as described above, it should be noted that French
71
Factors Giving Weight to Precedents 71
courts never compare and discuss the facts of prior decisions as common law judges
are in the habit of doing in their judgments. However, this does not apply to counsel,
to an advocate general, or to a Rapporteur Public (formerly known as Commissaire
du Gouvernement) who, in court, routinely refer not only to past precedents in their
arguments and submissions to the court, but also to the specific facts of those given
precedents. Thus, it is not uncommon to hear counsel arguing in court that the facts of
the present case differ from the facts of a previous one relating to a similar issue and that,
therefore, the present case cannot be subsumed under the same rule as that applied in the
previous case. Nor is it out of place for photocopies of previously reported judgments to
be included in the dossier (file) submitted to the court by counsel before its deliberations.
FAC TOR S G I V I N G W E IG H T TO P R E C E DE N T S
Despite the rules and principles preventing judicial decisions from becoming binding
precedents, there are, in French law, a certain number of factors which contribute to
ascribing a certain degree of normative force to precedents. Although the decision
affected by these factors is not formally binding, it nevertheless has a persuasive value
for similar cases in the future. These factors are:
(a) the hierarchical rank of the court which gives the decision
(b) the fact that a particular interpretation or principle is repeated in a consistent
line of precedents
(c) the departure from previous precedent, known in French law as revirement de
jurisprudence
(d) the statement of a principle of general application (arrêt de principe) by the
court giving the decision.
Each of these factors is now discussed in turn.
H I E R A RC H Y OF C OU RT S
Higher court decisions
The hierarchical rank of the court which has given the decision is important when it
comes to determining the value of a precedent. Precedent from a higher court carries
more weight than precedent from a lower court. There are several explanations for this.
(i) The highly decentralised nature of the system of courts in France and the role
played by the highest courts, the Court of Cassation and the Conseil d’État,
should first be highlighted. This system is characterised by the fact that courts
of first instance and courts of appeal are numerous and are spread out across
France. There are currently 164 tribunaux de grande instance (civil courts for
large claims) and 307 tribunaux d’instance (civil courts for medium-sized
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72 Case Law
claims), both hearing cases in the area of private law. At the appellate level,
thirty-six courts of appeal have jurisdiction for hearing appeals in civil and
criminal matters. On the public law side there are forty-two administrative
lower courts and eight administrative courts of appeal. At the top of the hier-
archy are the Court of Cassation and the Conseil d’État whose role, within their
respective province, is to ensure that the law is correctly and uniformly applied
by the lower courts throughout the country. Correct and uniform application of
the law implies in this context not only that the same body of law is observed
in the different parts of the country, but also, that the same interpretation of the
law is applied uniformly by the courts. The latter is achieved by quashing lower
court decisions which do not comply with this interpretation, and by sending
them back for reconsideration to another lower court.
(ii) There are more specific reasons of a psychological and sociological nature that
may be applied when accounting for the greater weight accorded to higher
courts’ decisions. Terré (2006: 285 no. 361) argues that the reason why these
decisions are usually followed lies in what he calls the ‘law of imitation’ and
the ‘law of continuity’. Judges in the lower courts usually find it expedient to
follow the model offered by a decision of the courts above them in the hierarchy,
provided that the principle on which this decision is based is clearly stated.
However, ‘imitation’ is also forced upon judges in the lower courts in the sense
that if they do not follow higher court decisions their own decisions are likely
to be reversed, with the implicit stigma attached thereto that they do not know
‘their law’. As far as the law of continuity is concerned, it rests on the assumption
that continuity and consistency in judicial decisions are both desirable features.
From this, it follows that the courts, including the highest ones, are unlikely to
overrule their own established jurisprudence and jeopardise these two qualities
without some very good reason or unavoidable necessity to do so. The foregoing
accounts for the paradox that French judges, who by law are not bound by
any precedents, feel more compelled than their common law counterparts to
follow them, especially when taking into account all the existing ways offered to
common law judges to escape from the constraints of stare decisis. In fact, the
‘law of imitation’ and the ‘law of continuity’ when taken together bind French
judges as much as, probably even more than, the rule of binding precedent in
the case of the common law judges.
Assemblée Plénière and Chambre Mixte decisions

Decisions given by the Court of Cassation sitting in Assemblée Plénière or in Chambre
Mixte have much more persuasive authority than those given by an ordinary panel of
the Court. Assemblée Plénière and Chambre Mixte only convene for certain important
cases, as set out in the Code de l’Organisation Judiciaire, arts L 431-5 and L 431-6.
According to art. L 431-6, when a case gives rise to a ‘question of principle, notably be-
cause of a persistent conflict of precedents between lower courts, or between the lower
73
courts and the Court of Cassation itself ’, then the head of the Court may call upon the
full bench of the Court of Cassation, the Assemblée Plénière, to adjudicate the case with
a view to settling the matter. Under art. L 431-5 a case comes before a Chambre Mixte,
made up of members taken from two or more divisions of the Court, either because it
falls within the jurisdiction of more than one division of the Court or when the points
it raises have in the past resulted in conflicting decisions, or are expected to create fur-
ther conflict between the divisions of the Court in the future. In both cases (Assemblée
Plénière and Chambre Mixte) what implicitly underlies the legal requirement that cases
have to be heard by a full Court or a wider panel is not only the safeguarding of the
uniform application of the law, but also the preservation of legal certainty, equality of
treatment in similar cases, and, more generally, the predictability of which law may
be applicable in future cases for the public at large. However, it may be worth noting
that decisions of Assemblée Plénière and Chambre Mixte are rare in practice. Each year
there are only a handful of decisions, compared with the thousands of decisions given
by the ordinary divisions of the Court of Cassation during the same period of time.
Moreover, regrettably, it may also be noted that the decision to convene one of these
two panels is very often taken late, and furthermore does not always settle the conflict
of precedent for which the panel was called. For example, it took more than a decade
for the Court of Cassation to convene a Chambre Mixte in Veuve Gaudras v Dangereux
(1970), D. 1970, 201, on the then issue in conflict of the right of unmarried partners
to obtain damages for the loss of one of the partners in a motor accident against the
responsible third party. In the context of vicarious liability, no less than five decisions
of Assemblée Plénière were given between 1960 and 1988 on the issue of determining
what art. 1384 alinéa 5 meant by saying ‘employers being liable for the damages caused
by their employees dans les fonctions auxquelles ils les ont employés (in the course of
their employment)’.
Lower court decisions

It would be wrong to assume from the foregoing that there is no force or value attached
to the decisions of the lower courts. In particular, lower court decisions are authorita-
tive in the following circumstances:
(a) Until a higher court has decided on a particular issue of law, lower court
decisions are valued in the sense that they help, in an anticipatory way, to pre-
dict the likely course that case law will take in the future on that issue.
(b) Further, provided the highest courts have not yet ruled on a particular point, the
appeal courts will usually follow their own previous judgments which, although
not formally binding, will nevertheless be perceived as being authoritative and
be followed by first instance courts within the regional jurisdiction of the rele-
vant court of appeal.
(c) Once a higher court has delivered a decision on a particular question, lower
court decisions still retain some significance. On the one hand, where a lower
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court readily follows a higher court decision, this gives a greater authority to
it. On the other hand, where a lower court is reluctant to follow a higher court
decision, this considerably undermines the force of such a precedent and may,
in some cases, lead to a superior court overruling its own decision. A classic
example of such a case is Desmares v Epoux Charles (1982), D. 1982, 449 where
the Court of Cassation issued a very strong ruling in favour of the victims of
road traffic accidents which excluded the possibility of the plaintiff ’s damages
being reduced on account of his or her contributory negligence (unless the
plaintiff ’s action in this respect had amounted to a case of force majeure, i.e.
had been unforeseeable and unavoidable, for the defendant). Consequently,
following this ruling, any driver of a vehicle having caused an accident was to
be held liable for the entire damage even when contributory negligence was
established. The Desmares decision became very unpopular amongst the lower
courts, with many of them refusing to follow it. This situation led Parliament
to introduce new legislation in the Law of 5 July 1985 whose purpose was
to redefine the compensation procedures for the victims of road accidents
(discussed further at Chapter 14). Of more relevance here, the attitude of the
lower courts also persuaded the Court of Cassation to overrule Desmares. This
was accomplished in a series of three decisions given five years after Desmares,
the most often cited being Mettetal v Waeterinckx (1987), D. 1988, 32. In this
case, as in the other two, the Court of Cassation decided to restore the more
traditional approach to contributory negligence by the victim, abandoned in
Desmares, and to use it as a basis for reducing the liability of the defendant in a
case where this was proved.
(d) Finally, lower court decisions play a significant role as precedents on im-
portant issues not statutorily determined and on which the highest courts
cannot adjudicate, the reason being that these issues are, in law, categorised as
issues of fact and, as such, are left to the discretion of the lower courts (to the
‘pouvoir souverain des juges du fond’). By way of illustration is the assessment
of the quantum of damages awarded in liability cases. In this area, lower court
decisions, although not formally binding, will nevertheless provide support for
subsequent similar cases.
C ON SI ST E N T L I N E OF P R E C E DE N T S
This sub-heading refers to the notion known in France as jurisprudence constante
whereby a particular interpretation or principle is repeated in a series of decisions.
Jurisprudence constante entails greater authority being attached to a consistent line of
precedents rather than to a single one. In his classic analysis of the respective merits
of the English and Continental approaches to precedent, Goodhart (1934: 59) claimed
that the French method of repeated judicial practice does not give the same certainty
in the law as the binding authority of a single precedent provides in England. The
75
reasons for this, according to Goodhart, are twofold. Firstly, precedent which is based
on practice must be of slower growth for it requires a series of cases over a considerable
period of time before it can develop. Secondly, it is less definite, for it may be difficult
to determine when a practice has been established.
It is surprising to note, since Goodhart’s time, how commonly the certainty argu-
ment has been used in English or comparative law academic textbooks to emphasise
the merits of the English system of precedent. However, the problem with the cer-
tainty argument is that it does not sufficiently take account of the various factors—
factors most writers are indeed willing to acknowledge—that lessen considerably the
degree of certainty attached to English precedents. Amongst these factors are the
difficulty in determining the ratio decidendi in a binding case, the existence of im-
portant exceptions to the rule of stare decisis and, furthermore, the judicial practices
of distinguishing and overruling. In view of these limitations, it may be seen as ques-
tionable whether there is the necessity, as in England, of laying down a strict rule
requiring the precedents of particular courts to be followed. In a comparative study of
the law on precedent, David (1984: 3-395) even wonders if the rule of binding prece-
dent known in common law systems ‘has ever existed’. And the eminent author adds
for his readers’ consideration: ‘or, if you prefer it, there are so many limitations on
and exceptions to the rule that it is binding only on those who wish to be bound by it’.
David then concludes:
The rule of precedent binds only those who are satisfied by the solution provided
by the precedent, or who think that at least for the sake of certainty it is better, all
things considered, to abide by that solution, it not being overtly objectionable. These
two factors, which form the basis of the authority of precedent, lead judges to follow
them in the vast majority of cases; they do not depend on the existence of a strict
rule, which would create an antithesis between Common law and Romano–G ermanic
countries.
More generally, it may be said that the claim that legal certainty is better served in
a system of binding precedent, as opposed to repeated judicial practice, fails to rec-
ognise that there is no such thing as ‘fixed’ or ‘definite’ precedent. Precedents evolve,
developing gradually as the law in general does. As new cases are brought to their
attention, judges act as fine art painters, constantly touching up the canvas on which
precedents have been drawn. It is within this perspective of continuous development
that the courts in France ensure that their rulings are expressed broadly in order to
allow for unforeseen situations arising from changes in the social, economic, and pol-
itical context, which may take place following their previous decisions. Jurisprudence
constante is therefore nothing other than the expression, in judicial terms, of the inev-
itable development of the law in a given legal system.
Finally, it must be noted that, even in France, a single decision is sometimes able to
‘make jurisprudence’, that is to say to establish a definite principle likely to be followed
in the future. This occurs in two categories of situations (revirement de jurisprudence
and arrêt de principe) which are dealt with in the following sub-headings.
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R EV I R E M E N T DE J U R I S PRU DE N C E
Definition
Revirement is a close equivalent to the concept of overruling in Anglo-American law
and thus consists of a departure by a court from its own established jurisprudence.
However, even departure from a single previous precedent, which had been perceived
by the community of jurists at the time when it was decided as an arrêt de principe (see
below), is sometimes enough to mark a turning point in the course of the court’s juris-
prudence. Revirements are of considerable importance in relation to the degree of force
and persuasiveness attaching to a precedent. Indeed, when a decision by a higher court
has overruled an earlier one, in the majority of cases, this will determine for the lower
courts a change in their own judicial practice. As already said, although French judges
are free, in principle, to disregard such revirements (since they are not bound by any
decisions), in practice they will nevertheless generally follow them.
There have been famous examples in the past of revirements on issues related to il-
legitimate children, at a time when these children could not be legally recognised
by their natural parents. Often quoted as an example is the controversial question of
whether unmarried parents were permitted at the material time to adopt their own
illegitimate children; to which the Court of Cassation, after having said ‘yes’ in 1841,
said ‘no’ in 1843 and finally ‘yes’ in Bouleau v Bazouin (1846), D.P. 1846, 1, 81. Cases
such as Desmares (see above), in private law, or Nicolo (see Chapter 1), in administrative
law, offer further recent illustrations of revirements. In recent years, revirements have
increased owing to the ongoing development of the law and the further need for do-
mestic case law to comply with new European legislation and case law. As an illustration
of departure from previous rulings in order to comply with European case law are two
surrogacy Court of Cassation decisions of 6 July 2015 regarding the refusal by French
authorities to register the particulars of a birth certificate drawn up in execution of a for-
eign court’s judgment following a surrogate motherhood agreement. In a previous ruling
the Court of Cassation had upheld such a refusal on the basis of the incompatibility of
such a registration with French domestic law which does not give effect, in terms of the
legal parent–child relationship, to a surrogacy agreement, which, while it may be lawful
in another country, is null and void on public-policy grounds under arts 16-7 and 16-9
of the Civil Code. However, in its 2015 judgments the Court of Cassation, sitting in Full
Assembly, decided to depart from its own precedent following the 2014 European Court
of Human Rights’ judgments in Mennesson v France and Labassée v France ECHR 185
(2014). The cases of Mennesson and Labassée concerned the French refusal to grant legal
recognition in France to parent–child relationships that had been legally established
in the United States between children born as a result of surrogacy treatment and the
couples on whose request the treatment was performed. The European Court of Human
Rights held that in doing so France had violated the European Convention on Human
Rights, in particular the children’s right under art. 8 of the Convention to respect to pri-
vate life which implies that everyone must be able to establish the substance of his or her
identity, including the legal parent–child relationship.
7
Retrospective application of revirement and the issue of prospective overruling

The rise in revirements has had the effect of reopening the controversy as regards the
perceived unfairness of the retrospective application of court decisions departing from
established precedent. Indeed, overruling of earlier decisions, when it occurs, operates
retrospectively, thus upsetting any previous arrangements made by the parties to a
case under long-standing precedents established earlier by the courts. On account of
this, some European jurisdictions, including France, have had to deal recently with the
prospect of introducing into their own systems the well-established US practice of pro-
spective overruling, recognised by the US Supreme Court in Great Northern Railway
Co v Sunburst Oil & Refining Co, 287 US 358 (1932), whereby the court may announce
in advance that it will change the relevant rule or interpretation of the rule, but only
for future cases.
However, adopting prospective overruling in France has raised a series of objections,
mainly related to the constitutional limits of the judicial function coupled with the
practical difficulties attendant upon such a practice.
One first objection raised was that the French rigid and principled approach against
any doctrine of stare decisis, and its corollary that precedents are not formally binding,
means that it is not within the formal practice of French courts to state in their
judgments that a previous jurisprudence has indeed been overruled as this would have
the effect of recognising precedents as ‘authorities’ in the English sense. This accounts
for the fact that revirements in France are generally implicit and sometimes diffi-
cult to identify clearly. This difficulty is particularly acute when decisions on similar
legal issues are conflicting, or where decisions extend and/or limit the application of
earlier ones.
A second objection to prospective overruling is the prohibition of arrêts de règlement
in art. 5 of the Civil Code considered above. Here, it would seem that prospective
overruling, which in effect allows judges to rule ‘prospectively’ for future cases and
thus determine in advance the outcome of subsequent litigation, would, indeed, be in
breach of art. 5.
On these two counts, the Court of Cassation has, until very recently, been very
reluctant to rule in favour of litigants challenging the retrospective effect of a newly
established precedent (see the case law cited under the sub-heading ‘No doctrine of
stare decisis’, point (5) of list).
The Molfessis Report and its impact

In 2004, the Molfessis Report on Revirements de Jurisprudence to the Court of Cassation
recommended that, in narrowly defined circumstances, decisions of the Court of
Cassation might be applied ‘non-retroactively’. Without setting out any formal factors
or criteria to be taken into account when considering whether a new ruling by the
Court of Cassation should apply retrospectively or not, the Molfessis working group
nevertheless recommended that the court should limit the retrospective temporal
effect of its ruling where there is (1) a strong motive of general public interest or (2) a
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manifest disproportion between the general benefits attached to the retrospective

effect of a court ruling (e.g. the fact that persons in like cases are treated equally) and
the potential unfairness such a retrospective change in the law would occasion to the
parties involved. This working group further recommended procedural safeguards in
so far as prospective overruling, as defined above, could only be applied by the Court
of Cassation itself which for that purpose should, first, identify clearly and explicitly
the meaning and scope of its revirement in the case at hand and, secondly, allow each
party to the case to put forward their respective arguments on whether to overrule a
previous decision retrospectively or prospectively.
Without waiting upon the actual publication and recommendations of the Molfessis
Report, the Court of Cassation took it upon itself to overrule prospectively a former
interpretation of a time-limitation rule for libel in a case where a radio station was
sued for breach of the principle of presumption of innocence against a lawyer charged
for professional misconduct (Radio France SA, Cass. 2, 8 July 2004, D. 2004, 2956).
Although such a departure by the Court of Cassation from the traditional French
approach to the judicial function led some commentators at the time to wonder
whether the Court of Cassation did not, to quote Lord Devlin, cross ‘the Rubicon that
divides the judicial and legislative powers’ (Morvan 2005), it would seem that the court
took such a step towards prospective overruling in quite limited specific circumstances.
Indeed, in Radio France, not applying prospective overruling would have denied the
successful defendant in the case from seeking a remedy in a law court and would
have thus deprived her of the right to a fair trial within the meaning of art. 6(1) of
the European Convention on Human Rights (the same solution was later applied in
similar circumstances in Ass. Plén. 21 December 2006 Le Provencal v Mme Véronique
X). However, following Radio France, the Court still refuses to limit the retrospective
effect of a new ruling in instances where this would hinder the development of the law
and further create discrimination between claimants in like cases who could end up
each being treated differently. This retreat from the Radio France ruling is manifest in
a 2009 decision when the Court reiterated its previous approach taken in the context
of medical negligence by deciding that a doctor could be successfully sued under a
court ruling which had been established after the alleged negligence despite the fact
that under previous case law, at the time when the purported negligent act took place,
contractual liability against him was more limited in scope (Cass. Civ. 1, 11 June 2009,
M. J. v Mme F. and caisse primaire d’assurances maladie de la Gironde).
Other jurisdictions’ experience in respect of prospective overruling

France is not the only jurisdiction to have retreated in part from prospective overruling
after having introduced it into its judicial practice. Such is also the case in Germany and
in the Court of Justice in Luxembourg. Even in the United States, where the practice
was pioneered, its application has over time become very selective and limited (Steiner
2015: 209).
In England too there have been ongoing concerns in recent years over whether
prospective overruling should be introduced to the law, for reasons similar to those
79
expressed in France and in relation to the scope of the judicial function within the
wider principle of the separation of powers between the legislature and the judiciary. In
the House of Lords company law decision National Westminster Bank Plc v Spectrum
Plus Ltd [2005] UKHL 41, Lord Nicholls of Birkenhead (at [18]–[38]) considered the
practical and principled objections to prospective overruling in a comparative per-
spective before concluding, in agreement with the majority of the House, that such
objections ‘do not lead to the conclusion that prospective overruling can never be
justified as a proper exercise of judicial power’. Such an open-door conclusion, when
compared with the steps taken by the Court of Cassation in this regard, illustrates how
both higher courts, despite their diverging approach towards precedent, have both
been prepared in quite a similar way to depart on this issue from a strict and narrow
interpretation of the judiciary’s adjudicative role.
S TAT E M E N T OF P R I N C I P L E S OF G E N E R A L A P P L IC AT ION
( A R R ÊT S DE PR I N C I PE )
A decision is regarded as being particularly authoritative when a court—usually
a highest court—states clearly and explicitly the principle of general application
which forms the basis of its decision. As will be seen in Chapter 8, it is not gen-
erally the case that French courts are explicit in their justification. That explains
why these types of decisions, called arrêts de principe, are of particular import-
ance, and this is notably reflected by the interest they generate in academic writing.
Arrêts de principe are relatively limited in number, as compared with the more
common arrêts d’espèce. The latter, unlike the former, are merely the application of
established judicial practice to the material facts of a particular case and are, there-
fore, of limited value.
More specifically, the difference between arrêts de principe and arrêts d’espèce lies,
first, in the nature and importance of the issues raised by the cases involved. Indeed,
novel and controversial issues are areas where arrêts de principe are more likely to be
delivered. The distinctive value ascribed to them by legal academics is also a significant
factor in determining their status. Unlike arrêts d’espèce, arrêts de principe are widely
reported and commented upon in all major law journals. Above all, the style in which
the decision is drafted is of particular significance in indicating an arrêt de principe. In
an arrêt de principe what the court is doing is to raise a particular interpretation to the
status of a principle. What is of particular relevance is that this principle on which the
solution of the court is based is clearly stated, using broad terms to allow for its appli-
cation in subsequent cases. It is this explicit statement of a principle and its capacity for
generalised application which is the most important difference between arrêts de prin-
cipe and arrêts d’espèce. A further aid to recognition at first glance for arrêt de principe
is that the principle established by it is usually—although not always—enunciated in
a separate proposition at the top of the judgment, in what is called a chapeau, literally
a ‘hat’. A classical illustration of a chapeau is Comité d’établissement de Saint-Chamond
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v Ray (1954), D. 1954, 217, a case concerned with the legal personality of corporate
bodies. At the very top of its judgment, the Court of Cassation states:
Attendu que la personnalité civile n’est pas une création de la loi; qu’elle appartient, en prin-
cipe, à tout groupement pourvu d’une possibilité d’expression collective pour la défense
d’intérêts licites, dignes, par la suite d’être juridiquement reconnus et protégés.
Arrêt de principe should not be confused with arrêt de règlement (see above). Indeed,
both types of arrêt are presented with a certain degree of generality in terms of the way
in which the principle serving as the basis for the decision is formulated. However,
what distinguishes one from another is that in arrêt de principe, the court links the
general rule stated to the actual litigation under its consideration, whereas in arrêt
de règlement, a precedent is created in anticipation of litigation which as yet does
not exist.
The features described above characterising arrêts de principe account for the fact
that in the common law world they have been labelled as the ‘leading cases’ of French
law. Indeed, the history of French case law testifies to the fact that most of them have
become the source of a particular doctrine in specific areas of law which, from there,
have developed into a consistent line of authorities. The following is a list, by no means
comprehensive, of some of the landmark decisions which have marked the history of
French case law:
(i) Blanco (1873), D. 1873, 3, 17, the ‘cornerstone’ of French administrative law,
where it was decided that the Civil Code could no longer be used as a basis for
decisions involving the liability of public bodies and officials.
(ii) Canal de Craponne (1876), D. 1876, 1, 193, in contract law, decided that it is not
open to the courts to modify the terms of a contract agreed by the parties even
in the event that circumstances have drastically changed since the conclusion
of this contract (thus rejecting the so-called doctrine of imprévision. However,
after 140 years of established case law in this area the 2016 reform of the law of
contract has abolished Canal de Craponne by introducing a new art. 1195 in the
Civil Code).
(iii) Cadot (1889), Rec. 1148 marked the end of the ‘Ministre-juge’. Any claim against
a public body or official could, from then on, be directly brought before the ad-
ministrative courts without the need to bring it first before the relevant Minister.
(iv) Caisse Rurale Commune de Manigod v Administration de l’Enregistrement (1914),
D.P. 1914, 1, 257 drew a distinction between association and société on the basis
that whilst the latter was a profit-making body, the former was not.
(v) Clément-Bayard v Cocquerel (1915), D.P. 1917, 1, 79 marked the establishment
of the doctrine of abus de droit in property law.
(vi) Veuve Jand’heur v Les Galeries Belfortaises (1930), D.P 1930, 1, 57 established a
presumption of responsibility for things in one’s care.
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Case Law and Legislation 81
Franck v Connot (1941), D.C. 1942, 25 specified the criteria defining the con-
(vii)
cept of garde (custody) in former art. 1384 alinéa 1 of the Civil Code (now,
art. 1242).
Comité d’Etablissement de Saint-
(viii) Chamond v Ray (1954), cited above,
established the test for the granting by the courts of legal personality to cor-
porate bodies.
(ix) Administration des Douanes v Soc. Cafés Jacques Vabre (1975), cited in Chapter 1
above, ruled on the superiority of treaties over parliamentary statutes.
(x) Proc. Gén. C. de Cass. v Madame X. (1991), D. 1991, 417 decided that any
agreement between a surrogate mother and a childless couple was illegal and,
as a consequence, any application for adoption following such an agreement
could not be granted in court.
(xi) Perruche (2000), JCP 2000 II 10438, a case of ‘wrongful life’ where it was
decided that a child born disabled had the right to seek financial compensa-
tion against the physician who treated his mother, while she was pregnant.
(xii) Papon (2002), Leb. 139 ruled on the shared civil liability between the State
and one of its former civil servants who took an active part in the arrest and
deportation of Jews during the Second World War.
(xiii) Epoux X v Procureur Général près la Cour d’Appel de Nîmes (2008), D. 2008, AJ.
483 ruled that an entry could be made into the civil registry for a miscarried
fetus if the parents so wished.
C A SE L AW A N D L E G I SL AT ION
Unsurprisingly, after all that has been said, the predominant conventional view in
French legal tradition on the relationship between jurisprudence and legislation is
that the former is subordinate to the latter. However, many objections can be raised
against this approach which, indeed, is routinely challenged by French legal academics.
Instead of jurisprudence being subordinate to legislation, it would be more accurate to
say that they complement one another, as will be discussed below.
SU B OR DI NAT ION
The view that jurisprudence is subordinate to legislation is supported by two principal
arguments. One relates to Parliament’s power to overrule judicial decisions. The other
is concerned with judges who, in the general performance of their functions, regard
themselves as being primarily bound by legislation.
The first argument is at best debatable because experience has shown that in practice
Parliament has a far greater tendency to overrule what it has itself previously legislated
than to overrule carefully constructed rules and principles of jurisprudence which
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have developed over time. The second point, however, is more difficult to rebut if one
considers the fact that French judges do not perceive themselves as lawmakers and as
a general rule do not, at least overtly, challenge legislative supremacy. This deference to
the legislature is reflected in two ways:
(a) In the style adopted by judges when writing their judgments making sure, even
in the case of legislative gaps, that statute or code provisions which may have
been specifically extended to cover the case in hand, are stated as a basis for their
decisions (see further at Chapter 8).
(b) In the traditional unwillingness of the courts to review the constitutionality of
statutes. French courts, when challenged, invariably decide that they are not
empowered to review themselves the constitutionality of existing statutes (for
a clear illustration of this tendency, with respect to the Court of Cassation, see
Époux Guillot v Procureur Général près la cour d’appel de Versailles (1986), Bull.
civ. I, no. 232 and, with respect to the Conseil d’État, see Confédération natio-
nale des associations familiales (1990), D. 1991, 283). However, since the 2008
constitutional reform allowing judges in particular cases to make a preliminary
reference on issues of constitutionality to the Conseil Constitutionnel (new art.
61-1 of the Constitution, see Chapter 1 above), this unwillingness has lost its
edge, although it could be argued that under the new arrangements the courts
can still not themselves directly address the question of constitutionality of par-
liamentary statutes: reference still has to be made to the Conseil Constitutionnel.
However, the foundations of the subordination approach can be easily questioned by
looking at legal rules in terms of the function they are supposed to fulfil, i.e. the gov-
ernance of society as a whole, rather than in terms of the source from which their au-
thority derives. Within this ‘functional’ perspective, jurisprudence and legislation do
converge, at least in three respects:
(1) The rules laid down by French courts in their decisions are very often as general
in character as their purportedly superior legislative counterparts and go far be-
yond the confines of the originating cases from which they are derived.
(2) Furthermore, they enjoy the same de facto authority as any statutory text.
Indeed, judges follow them and citizens consider them to be as much law as
legislation itself is. It is also symptomatic of this approach that in French law
schools, teachers treat the relevant judicial precedents of the subject they teach
as law in its own right.
An illustration of both (1) and (2) above is the famous case of Veuve Jand’heur v Les
Galeries Belfortaises (cited above and further discussed at Chapter 14), where a young
girl was run over and seriously injured by one of the defendant’s lorries. The issue was
whether the case should be governed by the then art. 1384 alinéa 1 of the Civil Code, a
text under which the defendant could be held automatically liable for damages caused
by things in his care (here a lorry) without the necessity of establishing fault on his part
83
(because the fault was presumed). The Court of Cassation, sitting in full court, decided
to apply art. 1384 alinéa 1 to the case, and further ruled that henceforth absence of
fault would no longer be a defence in an action brought under art. 1384 alinéa 1. The
court said:
The presumption of liability contained in art. 1384 alinéa 1 and applying to the owner or
custodian of an inanimate object which has caused harm can be only rebutted by proving
the equivalent of an act of God or some other external cause that cannot be attributed to
the defendant.
The rule laid down in Jand’heur, establishing a regime of strict liability for damage
caused by things in one’s care, formulated as it is in broad terms could easily be taken
for a statute or a code provision. In fact this rule is so firmly established that no judge
today would depart from it, and no counsel would argue against it in court. For
nearly ninety years—much more than the average life span of a statute in France—the
Jand’heur precedent has been as well-established and undisputed a rule as the code
provision on which it is based, art. 1384 alinéa 1 (now new art. 1242), and from which
it has become hard to distinguish.
(3) Finally, the fact that judicial decisions are often confirmed by subsequent legis-
lation is further evidence of the convergence of function towards which both
precedent and legislative rules are working. Indeed, in enacting legislation
confirming a precedent, Parliament ‘receives’ this precedent fully into the gen-
eral body of law, granting it equal status to legislation. A classic early example is
Placet-Thirion (1906), DP, 1907, 1, 207 (often cited as Laurent Atthalin, from the
name of the reporting judge whose submissions were decisive to the outcome
of the case) where it was decided, for the first time, that the victim of a crime
has the right on his own to initiate criminal proceedings if no prosecution has
been brought by the State. This right was to be confirmed later by the legisla-
ture in art. 1 alinéa 2 of the Code of Criminal Procedure. Another more recent
illustration is arrêt de principe Proc. Gén. C. de Cass. v Madame X. (cited above)
on the illegality of surrogacy agreements, now governed by art. 16-7 of the Civil
Code. The 2016 reform of the law of obligations confirms this practice in so far
as the new law codifies many judicial rulings in the area of contract (see further
at Chapters 13 and 14).
As a related point to the functional approach to law, it is interesting to note that the
European Court of Human Rights, when interpreting the European Convention on
Human Rights, has pointed out the similarity that exists between legislation and
case law in the context of the French legal system. Since Kruslin v France (1990) 12
EHRR 547, the European Court of Human Rights, with respect to the expression ‘in
accordance with the law’ used in art. 8(2) of the Convention, has been deciding that
established case law cannot be disregarded in relation to this text. It concluded that the
term ‘law’ must, therefore, be understood not only in the formal meaning of legisla-
tive rules, but also in the substantive meaning of both written and unwritten rules. It
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follows clearly, according to this approach, that legislation and jurisprudence are both
‘law’ from a material (as opposed to a formal) point of view.
As a final point under the subordination rubric, the application of international and
EU law by French judges over domestic law has further undermined the subordin-
ation tenet. Although judges are allowed under art. 55 of the Constitution to set aside
domestic law when in conflict with international or EU law, so far, this power has
never been exercised as a cudgel against the authority of the legislature. However, in
the 2004 Castorama case (already considered at Chapter 3), the full assembly of the
Court of Cassation, in a striking blow to the legislature, upheld the refusal by a lower
court to apply the relevant French statute to the case, adding that ‘the notion of fair
trial in article 6 of the European Convention on Human Rights means that, with the
exception of pressing questions of public interest, the legislature cannot interfere in
the province of the administration of justice with a view to influencing the outcome of
litigation’ (Assemblée Plénière, 23 January 2004, Bull. no. 1).
J U R I SP RU DE N C E A N D L E G I SL AT ION C OM P L E M E N T I N G
ON E A N OT H E R
The complementary nature of legislation and jurisprudence has been particularly
emphasised by Boulanger (1953: 22) and this conclusion of his study is still as authori-
tative today as when originally written; jurisprudence, he notes, is ‘nothing other than
the interpretation, the alteration and the finishing touch to enacted legislation’ (‘la jur-
isprudence c’est la loi interprétée, modifiée, complétée’). Elsewhere Boulanger (1961: 11)
further argues that precedents are ‘an integral part of the legislative text itself ’. This re-
lationship between the two sources derives from the fact that Parliament is only able to
enact rules of general application. It is therefore incumbent upon the judiciary to give
effect to these rules by applying them to the particular circumstances of cases arising
before the courts. In other words, without and prior to judicial adjudication, legislative
rules cannot by their nature be implemented.
When considering judicial decisions as complements to legislation, French legal
writers have distinguished between three categories of precedents according to the de-
gree of creation attached to them. In this respect, the traditional classification used
for custom in the theory of legal sources has been applied to precedents. Thus, as with
custom, precedents can be either secundum legem, praeter legem, or contra legem.
Precedents secundum legem
This first category refers to the judicial function of applying and interpreting existing
rules, already examined at length in Chapter 3. Here, although judges sometimes
engage in statutory interpretation in a creative way, they do so within boundaries
fixed by the wording of statutory and code provisions. Included in this category are
precedents which define the meaning and scope of statutory provisions and those
which adapt those provisions to changing times. An illustration of this is the refine-
ment and development carried out by the courts in application of former art. 1384
85
alinéa 1 of the Civil Code, mentioned earlier in this chapter. With respect to respon-
sibility for things in one’s care, this text merely provides that a person is responsible
for the damage caused by the action of things in his care, without giving further
detail of what ‘thing’ (chose in the French text) or ‘care’ (garde) means. These terms
are so vague and broad that without judicial intervention it would have been impos-
sible to implement art. 1384 alinéa 1. Therefore, court decisions have been decisive
in defining the scope of this text by introducing specific conditions that must be met
before liability could be imposed on the owner of a thing (on these conditions, see
Chapter 14 below).
Precedents praeter legem
This second category of precedents, as in the case of the one which follows, is concerned
with the courts’ power to go beyond interpretation and establish new rules alongside
the existing ones. It may be said in this instance that the judiciary exercises quasi-legis-
lative power. However, unlike precedent contra legem, precedent praeter legem is sup-
plementary to and yet consistent with legislation. It is within this category that judicial
law-making has been at its most creative in French law. The techniques which have
been used by the courts to establish new rules, within the restrictions of the system,
have differed as regards civil and administrative courts. The former tend to refer to
some relevant enactment to form the basis for judicial construction. Two examples
will illustrate this.
(i) In the area of contractual liability, courts have gone considerably beyond the
scope of former art. 1147 of the Civil Code (since 2016, art. 1231-1) by adding
a distinction—once proposed by René Demogue in his Traité des Obligations
en Général (1925)—between obligation de moyen (where the debtor is bound
to no more than the exercise of reasonable care) and obligation de résultat
(where the debtor’s obligation is not merely to show due diligence, but to
achieve the end result which he has promised). Further sub-categories are
derived from this fundamental distinction. The courts have thus ‘discovered’
in specific contracts, such as a contract of transport or a medical con-
tract, a so-called implied obligation de sécurité. In a contract of transport
it consists of the obligation of the transport company ‘de conduire le voy-
ageur sain et sauf à destination’—to bring the traveller safe and sound to his/
her destination—see Compagnie Générale Transatlantique v Zbidi Hamida
Ben Mahmoud (1911), D.P. 1913, 1, 249. In a medical contract, it imposes
on a doctor the ‘engagement de donner à son client des soins consciencieux,
attentifs, conformes aux données acquises de la science’—an obligation to give
his or her patient a standard of care and attention which is both conscien-
tious and consistent with the latest techniques (Dr Nicolas v Epoux Mercier
(1936), D.P. 1936, 1, 88).
(ii) In property law, courts have used arts 544 (on the right of ownership) and 1382
(fault in civil liability) of the Civil Code to form the basis for the creation of the
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associated doctrines of abuse of rights and troubles anormaux de voisinage in

the particular context of private nuisance between neighbours (see further at
Chapter 15).
As far as the administrative courts are concerned, because of the absence of any gen-
eral code similar to the Civil Code in their area of operation, precedent praeter legem
arises out of the application of the rules that have been established by previous case
law as well as from the use, in their decisions, of unwritten principes généraux de droit
(on this notion, see Chapter 3; see also Chapter 11 under the heading ‘Administrative
law—promoting efficiency and justice’).
Precedents contra legem
Within this category are precedents which run counter to statutory provisions and ef-
fectively replace them. This is achieved in two ways:
(a) either directly, by establishing a rule which contradicts an express legislative
provision, or
(b) indirectly, resisting new legislation by setting a new precedent.
A well-known illustration of ‘direct’ precedent contra legem is the case law relating to
don manuel, in the law of gifts. Article 931 of the Civil Code provides that, for gifts
inter vivos to be legally binding, a written record of the gift must be drawn up by a no-
tary. Despite this code requirement, courts have for a long time decided that a gift inter
vivos of any movable property can be made, without formal recording by a notary, by
manual transfer only. This includes the transfer of money to a bank account and the
remittance of a cheque.
An example of ‘indirect’ precedent contra legem is Proc. Gén. Paris v Bassilika (1992),
D. 1993, 36. In 1986, Parliament passed legislation amending the then art. 78-2 alinéa
2 of the Code of Criminal Procedure in order to loosen the conditions, required by
that text, for the purpose of carrying out identity checks. The aim was to facilitate
the deportation of illegal immigrants. The newly revised text of the code was worded
in such a way that identity checks could effectively be carried out at any time against
anyone. The Court of Cassation, in Bassilika, adopted a narrow interpretation of the
new legislation, deciding that identity checks could only be made when, because of
the behaviour of the alleged offender, police officers had grounds for suspecting that
a crime was actually in the process of being committed; a condition that was neither
written in the amended art. 78-2, nor obviously intended by the legislator. In response,
further legislation was introduced by the government in 1993 with the sole intention
of putting an end to such a precedent. In its new amended version, art. 78-2 alinéa 2
specifically provided that identity checks could take place ‘whatever the behaviour’ of
the person whose identity was to be checked by the police. It is interesting to note that
in its 2016 wording art. 78-2 was still referring to this specific clause resulting from the
1993 amendment.
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Legitimacy of Judicial Law-Making 87
L E G I T I M AC Y OF J U DIC IA L L AW- M A K I N G
This chapter has already outlined how French legal theorists have struggled with the
question of whether jurisprudence is a source of law, given the constraints of the French
doctrine of separation of powers and the code prohibition on making law that is intended
to govern future cases. In view of democratic values, a new focus to the debate has centred
on the question of the legitimacy of judicial law-making. So the question has become not
so much whether jurisprudence is a source of law, but rather what is the source of legit-
imacy for jurisprudence. While a few authors like Dupeyroux (1960) still persist today in
holding the view that jurisprudence, when it equates to law-making, is nothing else that
an ‘abusive source of law’, thus denying any legitimacy to judicial law-making, others have
over the years attempted, more or less successfully, to validate judge-made law, taking
various directions in their effort to do so. These are outlined and briefly discussed below.
J U R I SP RU DE N C E A S C U STOM
This approach was first advocated by Planiol in his Traité Élémentaire de Droit Civil,
1922, Vol. 1, 6 and Gény in Méthode d’Interprétation (cited in Chapter 3). It rests on
the assumption that jurisprudence is not in itself an independent source of law and
that precedent only amounts to law because, with the passage of time, it develops into
custom. Thus, for Planiol, ‘court decisions, alongside codes and statutes, reformulate
a new law of customary nature’. The main objection to the ‘jurisprudence as custom’
approach is that, unlike custom, the formation of jurisprudence is not spontaneous and
necessitates an act of volition which is the active involvement of a judge. Also, custom,
to be recognised as such, must have existed for a certain period of time before it can be
recognised as law, whereas a precedent can be established by a single decision.
I M P L IC I T AC C E P TA N C E
According to some authors who, on this point follow Waline’s views (1950), what justifies
judicial law-making is the implicit acceptance of precedents by the legislature. Through its
silence and inaction the legislature implicitly accepts that precedents are law. This is fur-
ther confirmed by the fact that, very often, the legislature adopts a precedent by converting
it into legislation. The main argument put forward against this analysis is that it is a fiction
to say that Parliament, through its inaction, approves of a precedent, since most of the
Members of Parliament are generally unaware of the content of judicial decisions.
C ON SE N SU S
Maury (1950) and, later, Jestaz (1987) have argued that it is a consensus of opinion
amongst the legal community which validates judicial law-making. According to
Maury this consensus is formed from recognition of the validity of precedents arising
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88 Case Law
out of their acceptance by the legal community and the public at large or, even, out of
the absence of any opposition to them. Thus, according to this view, judges in following
precedents—and practitioners by using them in court—both ‘adhere’ to the binding
character of precedent. The main critique voiced against this approach is that this sort
of consensus may be a factor of legal stability, which is certainly desirable, but one
which cannot serve to give validity to a rule established by precedent, particularly
when, as in France, constitutional theory and code provisions militate against such a
form of law-making.
DU T Y TO A DJ U DIC AT E
It would appear that the legitimacy of judicial law-making lies in the very operation
of adjudication itself. This view is supported by a reading of art. 4 of the Civil Code,
which is another important provision relating to the judicial function. Article 4 states
that judges cannot use, as a pretext for failing to adjudicate, the fact that there is a gap
in the law or that the law is ambiguous. This text has always been used by the Court of
Cassation as a means of avoiding a ‘non-judgment’ (déni de justice) in cases heard by
lower courts. Thus, e.g., a court cannot refuse to return a judgment, as in Société Barlier
v Sociétés Sovatra et autres (1999), Gaz. Pal. 1999, 2, Somm. 689, where two creditors
A and B were suing a defendant C for the same sum of money claimed to be owing.
The court held that ‘it was impossible for it to choose between the respective rights of
A and B’. Similarly, in the earlier criminal case of Baesens et autres (1984), D. 1985, 1,
the Court of Cassation using art. 4, decided to quash a decision of acquittal by a trial
court given on the grounds that the law used as the basis for the prosecution was ob-
scure and its meaning uncertain.
Therefore, under art. 4, judges have a legal duty to adjudicate, vigorously enforced
by the highest courts, and this duty stands even where there is no law at all. Since,
in and by the nature of such circumstances, judges are forced to ‘make’ the rule to
support the solution adopted, there is finally a clear validation of precedent in French
law. As suggested by Terré (2006), referring to art. 4, ‘la jurisprudence tire sa force dans
la mission du juge’ (jurisprudence draws its force from the very mission of the judicial
function itself).
Chapter References
and Further Reading
Agostini, E., ‘L’Équité’, D. 1978, Chr. 7. Atias, C., ‘D’une Vaine Discussion sur une
Atias, C., ‘L’Ambiguïté des Arrêts dits de Image Inconsistante: la Jurisprudence en
Principe en Droit Privé’, JCP, 1984, I, 3145. Droit Privé’, RTDC 2007, 23.
Atias, C., ‘L’image Doctrinale de la Cour de Beignier, B., ‘Les Arrêts de Règlements’, Revue
Cassation’, D. 1993, Chr. 133. Droits, 1989, Vol. 9 (La Fonction de Juger), 45–55.
89
Legitimacy of Judicial Law-Making 89
Belaid, S., Essai Sur le Pouvoir Créateur de la Privé Français au Milieu du XXe siècle,
Jurisprudence, Paris: LGDJ, 1974. Etudes Offertes à G. Ripert, Vol. 1, Paris:
Boulanger, J., ‘Notations sur le Pouvoir LGDJ, 1950.
Créateur de la Jurisprudence Civile’, RTDC, Mitchel de S.- O.-L’E Lasser, Judicial
1961, Vol. 59, 417–41. Deliberations. A Comparative Analysis of
Boulanger, J., ‘Jurisprudence’ in Répertoire Judicial Transparency and Legitimacy, New
de Droit Civil, 1st edn, 1953. York: OUP, 2004 (hardback) and 2009
Cross, R., and Harris, J. W., Precedent in (paperback).
English Law, 4th edn, Oxford: Clarendon Morvan, P., ‘Le Revirement de Jurisprudence
Press, 1991. pour l’Avenir: Humble Adresse aux Magistrats
David, R., ‘Sources of Law’, International ayant Franchi le Rubicon’, D. 2005, Chr. 247.
Encyclopedia of Comparative Law, 1984, Mouly, C., ‘Les Revirements de Jurisprudence’
Vol. 2, 3-386 to 3-396. in L’image Doctrinale de la Cour de
Dupeyroux, O., ‘La Jurisprudence, Source Cassation, La Documentation Française,
Abusive du Droit’ in Mélanges Offerts à 1994, 123.
J. Maury, Vol. 2, Paris: Dalloz/Sirey, 1960. Mouly, C., ‘Le Revirement pour l’Avenir’, JCP
Esmein, P., ‘La Jurisprudence et la Loi’, RTDC, 1996, I, 3776.
1952, Vol. 50, 17–23. Sauvel, T., ‘Essai sur la Notion de Précédent’,
Goodhart, A. L., ‘Precedent in English and D. 1955, Chr. 93.
Continental Law’, LQR, 1934, Vol. 50, 40–65. Steiner, E. (ed.), Comparing the Prospective
Jestaz, P., ‘La Jurisprudence: Réflexions sur Effect of Judicial Rulings Across Jurisdictions,
un Malentendu’, D. 1987, Chr. 11. Springer, 2015.
Jestaz, P., ‘La Jurisprudence, Ombre Portée Terré, F., Introduction Générale au Droit, 7th
du Contentieux’, D. 1989, Chr. 149. edn, Paris: Dalloz, 2006.
Larher-Loyer, C., ‘La Jurisprudence d’Appel’, Voirin, P., ‘Les Revirements de Jurisprudence
JCP 1989, I, 3407. et leurs Conséquences’, JCP 1959, I, 1467.
MacCormick, D. N., and Summers, R. S., Waline, M., ‘Le Pouvoir Normatif de la
Interpreting Precedents, Dartmouth: Ashgate, Jurisprudence’ in La Technique et les Principes
1997, especially Ch. 4 by M. Troper and du Droit Public. Etudes en l’Honneur de
C. Grzegorczyk, ‘Precedent in France’, 103–40. G. Scelle, Vol. 2, Paris: LGDJ, 1950.
Maury, J., ‘Observation sur la Jurisprudence Zenati, F., La Jurisprudence, Paris: Dalloz,
en tant que Source de Droit’ in Le Droit 1991.
90
5
LAW REFORM
Ce qu’a fait une loi, une autre pourra le défaire.

G. Ripert, Les forces créatrices du droit.
Chapters 3 and 4 examined the manner in which courts, through the exercise of their
functions, have been able to fill the gaps left by the law and, when necessary, to update
it, thereby in their own way contributing to the process of law reform. However, law
reform achieved through adjudication is, by its nature, a piecemeal process. Law re-
form requires the certainty of primary legislation and, thus, needs to be the product of
parliamentary output. The procedures involved in passing legislation having already
been described in Chapter 1, this chapter will only be concerned with the making of
law reform proposals, and more particularly the sources from which they arise.
It is worth noting that although a full-time Commission has been set up in France
to deal with the codification of the law (see Chapter 2), no similar permanent institu-
tion exists for keeping the law under review and for making recommendations for its
systematic reform. There is thus no French equivalent for the Law Commission such
as those existing in England and Wales, Ireland, Scotland or India, and which con-
cern themselves exclusively with the question of law reform, either generally or in a
particular area. Professor Houin (1961), a former member of the Commission for the
Reform of the Civil Code, attributed the lack of systematisation of the process of law
reform in France to the fact that there was no permanent body in the country whose
exclusive concern it was to undertake the task of investigating possible areas in need
of reform. This, according to him, had the consequence of making law reform projects
dependent on the goodwill of Members of Parliament or of government Ministers
who, most of the time, acted under pressure from interest groups. This lack of system-
atisation in the law reform process accounts in part today for the continuing increase
in general legislative output in the French legal system (see Chapter 1).
The fact that law reform initiative has been left entirely to government departments
and Members of Parliament is confirmed by the 1958 Constitution, art. 39: ‘the Prime
Minister and Members of Parliament hold the initiative for the introduction of le-
gislation’. Consequently, in practice, the majority of bills have their origin in govern-
ment departments, and in particular the Ministry of Justice whose function it is to deal
with the organisation of the civil and criminal justice system. They take the form of
projets de lois, usually following the recommendations of some independent advisory
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The Genesis of Law Reform 91
commission or committee, appointed for this purpose by the Minister concerned.

Each year there is also a large number of private members’ bills—called propositions de
lois, which are introduced in Parliament. However, private members’ bills are passed
with difficulty, unless they benefit from government support. This was particularly
true prior to the 2008 reform of the 1958 Constitution. Indeed, prior to 2008, the ob-
jective was to keep the legislative process as directly as possible under the control of
the government. However, as already mentioned in Chapter 1, under the 2008 revised
Constitution a lower priority is given to governmental proposals by the new constitu-
tional arrangements, thus increasing the chances for the passage of private members’
bills (revised art. 48 of the Constitution).
As already noted, law reform projects usually originate out of the recommendations
made by ad hoc committees appointed by the government in order to fulfil minis-
terial commitments or to implement political parties’ manifestos. However, law reform
may also originate, although to a far much lesser degree, out of the annual reports of
judicial or administrative bodies such as the Court of Cassation, Conseil d’État, and
Défenseur des Droits. Their reports, apart from providing a revealing account of their
year’s activities, also contain numerous suggestions for law reform, some of which are
on occasion implemented by the government. The Défenseur des Droits (Defender of
Rights) is an original independent institution which was introduced in the Constitution
(art. 71-1) as part of the constitutional reform which took place in 2008. It oversees the
protection of citizens’ rights and freedoms and promotes equality. Its establishment
became effective in 2011 and since then it has been very active especially in advocating
changes in the context of employment, family and disability rights.
It has been suggested that committee recommendations and suggestions arising out
of annual reports produced by advisory bodies are only the external visible part of a
process whose origin may be traced back to a multiplicity of other sources; what French
law professor and legal theorist Ripert (1955: 84 no 30), in his celebrated and ageless
study on the legislative process, called les forces créatrices du droit. The chapter will
begin with a reflection of Ripert’s concept of forces créatrices and will show how this
still applies today in the context of the French legal system, before moving on, in a
second and third part, to the actual role played by committees and the highest courts
in the process of law reform.
T H E G E N E SI S OF L AW R E F OR M
In his book, Ripert (1955: 80 no. 28) speaks of a particular science called ‘genetics of

law’. According to him, this new science makes possible a deeper analysis of the pro-
cess of law reform. The actual passing of new legislation amounts only to its ‘birth cer-
tificate’. Its ‘lineage’, i.e. the true motives for its adoption, still needs to be determined.
In this respect, Ripert shows that law reforms can be traced back to ‘opposite creative
forces’ and that the new law brought into being is in fact the result of a transactional
equilibrium between these forces. It is, in practice, the final dominating influence
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92 Law Reform
amongst these competing forces that will determine the outcome of what individual
laws turn out to be.
At the beginning of his study Ripert identifies and discusses the various forces that
play a role in the process of law reform. These forces, he says, mirror social forces
which interact in the democratic context. When these forces are in conflict with one
other, as is often the case, only the strongest will be able to impose their will and, there-
fore, bring a new law. In Ripert’s terms, these forces are made up principally of:
(a) The social classes (especially middle and working classes).
(b) The particular interest groups (pressure groups, corporations, trade unions).
(c) The political parties.
(d) The community of jurists.
These groups would be incomplete without adding to them further influential factors
which, according to Ripert, are also of relevance although not to the same degree as
those categorised above.
These factors are:
(e) Public opinion which, in Ripert’s words (97 no. 36) manifests itself through
‘demonstrations, meetings, speeches, placards, articles in newspapers and also,
private conversations’. In the formation of public opinion, Ripert notes the role
played by the press by which means it is relatively easy to manipulate public
opinion.
(f) The sheer determination of particular individuals.
(g) Ideology, as particularly reflected in the public debates surrounding divorce,
abortion, euthanasia, and human rights.
(h) Particular feelings such as fear and forgiveness.
(i) Particular circumstances or response to unexpected events.
Can Ripert’s test that new legislation is only enacted when one or more of the forces
cited above overcomes its rivals be applied to law reform in France, past and current?
Two particularly controversial pieces of legislation provide good illustrations and can
be applied to test for what has been called the ‘struggle for the law’:
(1) The Law of 15 March 2004 on the banning of outward signs of religious be-
lief in state schools (later followed by the Law of 11 October 2010 prohibiting
face covering in public space). In 2003 President Chirac instructed a group of
experts (the Stasi Commission) to reflect on the meaning and application of the
‘principle of laïcité’ (secularism) in French society and advise him on concrete
measures to be taken to enforce this principle, especially in the context of state
schools with regard to the issue of the wearing by pupils and staff of outward
religious symbols. In December 2003, the working group issued a lengthy report
calling for the banning of all signs of outward religious beliefs in state schools.
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The Genesis of Law Reform 93
There were at the time strongly resisting forces against the proposed law, par-
ticularly amongst the Muslim communities in France and around the world. As
an example, Muslim protesters marched on January 2004 to the French Embassy
in London to demonstrate against the proposed ban. However, demonstrations
of this nature were not sufficient to prevail over:
(a) The support of the ban by the majority of French political parties.
(b) The ongoing suspension and expulsion of pupils wearing religious garments
at school.
(c) The pressure exercised by teaching unions.
(d) The fear created amongst the country’s leaders and the population alike by
the growth of communautarisme in the country with its associated drifts.
(e) The deeply rooted French ideology of secularism originating in the 1905
separation of Church and State.
(2) The Law of 17 May 2013 extending marriage to same-sex couples (known as
‘mariage pour tous’). Once again, origin of the 2013 legislation can be traced
back to various sources:
(a) Left-wing political parties’ manifestos issued during the 2007 and 2012
presidential elections. During his campaign for the 2012 presidential
election, socialist party candidate F. Hollande declared his support for
same-sex marriage and adoption for same-sex couples and included them
in his manifesto.
(b) The pressure of pro-gay associations pressing for homosexual rights.
(c) The sheer determination of particular individuals, a notable example
being N. Mamère, mayor of the Bordeaux suburb of Bègles who, in June
2004, as an act of civil disobedience, conducted a marriage ceremony be-
tween two men. Militant action of this kind was repeated in 2011 when
communist mayor Jean Vila similarly defied French law with the perform-
ance of a same-sex marriage in his town hall. In 2010 and 2011 members
of Parliament introduced without success proposals for the legalisation of
same-sex marriage. However the defining moment for the reform was the
Justice Minister C. Taubira’s powerful speech before Parliament introducing
the French same-sex marriage bill on 29 January 2013. In her address be-
fore the National Assembly, C. Taubira particularly emphasised republican
values, freedom of marriage, secularism as well as equality of citizens before
the law.
In the event these ‘forces’ prevailed over that part of public opinion representing the
ideology of traditional family values and over the opinion of the wider community
of jurists. Indeed, the law was passed despite a series of large public demonstrations
against it, supported by the different religious authorities in France, a notable example
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94 Law Reform
being the huge demonstration, widely reported by the media, which took place in
Paris on 13 January 2013. The fact that the majority of influential French scholars were
also against the introduction of such a scheme was clearly reflected in the numerous
disapproving articles and commentaries written on the new law in law reports.
However, in contrast with what Ripert suggests, experience also shows that some
laws may originate from one source only. This is true of laws that arise out of the sheer
determination of one individual, or out of a shared sense of feeling, or a set of par-
ticular circumstances. These may be factors that are determinant in creating a new law.
By way of illustration, it is widely recognised that it was the personal involvement of the
then Minister of Justice and active campaigner against the death penalty, R. Badinter,
which was at the origin of the abolition of the death penalty by the Law of 9 October
1981. In the same vein, some laws are direct public responses to certain shared feelings
expressed by the community at large, or indeed by the government itself. For example,
laws intended to crack down on crime, such as the Law of 18 March 2003 on homeland
security, also referred to as Loi Sarkozy II, are very often the consequence of unease and
insecurity. Thus, the 2003 Law introduces in the context of housing law (art. L 126-3 of
the Code de l’habitation et de la construction) a new offence of ‘occupation by a group
of individuals of common parts of a dwelling with a view to hinder free passage by the
building’s occupiers’.
A similar attribution may be given to amnesty laws, which take the form of granting
pardons for certain types of offences, and which, in the past, in France have systemat-
ically followed presidential elections. Examples are the Laws of 4 August 1981 and 20
July 1988, which followed each of President Mitterrand’s two elections to power, and
the Laws of 3 August 1995 and 6 August 2002, following President Chirac’s elections
to power. However, since the accession of President Sarkozy to power in 2007, this
practice has not been exercised.
Finally, there are laws which are made as a result of particular circumstances and
in response to unexpected events. Topical examples include the 2015 and 2016 votes
in Parliament to extend a national state of emergency giving police additional powers
of search and arrest in terror investigations. These extraordinary measures came into
place in the wake of the Paris terrorist attacks that killed 130 people in November 2015.
Other notable lois de circonstances include:
(i) The Law of 31 December 1987 on incitement to suicide (arts 223-13 and 223-14
of the Criminal Code). This legislation, establishing a specific offence against
those assisting suicide, was passed following the publication of a controver-
sial book entitled Suicide, Mode d’Emploi, the sole aim of which was to provide
advice on the different available means for committing suicide. Pressure was
generated for the legislator to act immediately on behalf of young people who
were perceived as being particularly at risk.
(ii) The Law of 31 December 1991 establishing a special fund for the compensa-
tion of AIDS victims contaminated through blood transfusions. The 1991 Law
95
The Functions Assumed by Advisory Committees 95
was passed in order to provide an additional system of compensation, along-

side damages awarded by the courts, for the large number of people—mostly
haemophiliacs—who, owing to the negligence of the National Centre for Blood
Transfusion, had been contaminated with HIV following blood transfusion.
(iii) The Law of 12 June 2001 aimed at strengthening the prevention and prosecu-
tion of sectarian groups’ activities when these cause physical and/or mental
health harm to private individuals. This Law has as its context the series of
high-profile instances of collective abusive behaviour perpetrated on fragile
individuals, in France and abroad, by sectarian groups.
T H E F U N C T ION S A S SUM E D
B Y A DV I S ORY C OM M I T T E E S
These committees, not to be confused with parliamentary committees whose function

is to examine bills, play an important role in highlighting the need for reform when
asked to review the operation of a specific area of law prior to law reform. They act only
within specific terms of reference and are dissolved upon submission of their report.
Good examples of such committees are the 1992 Vedel Committee and, later, the
2007 Balladur Committee, in the context of two major overhauls of French constitu-
tional provisions since the enactment of the 1958 5th Republic Constitution.
(i) The Vedel Committee was appointed in December 1992 by the then President
of the Republic, François Mitterrand, as the Comité consultatif pour la révision
de la Constitution to consider amendments to be made to the 1958 Constitution.
Headed by G. Vedel, a respected academic and former member of the Conseil
Constitutionnel, it was made up of fourteen members including judges, academics,
former government ministers, and one Member of Parliament. The Committee
submitted its report in February 1993, taking on board among its recommendations
some of the changes the President of the Republic had himself proposed a few
months earlier in a letter dated 30 November 1992, which had been respectively
addressed to the heads of both Houses of Parliament, as well as to the head of the
Conseil Constitutionnel. The Committee’s main recommendations were:
(a) a revision to the composition and powers of the Conseil Supérieur de la
Magistrature, the judicial board responsible for the appointment of judges,
with a view to strengthening the independence of the judiciary
(b) the extension of the referendum procedure to statutes which could affect
fundamental freedoms
(c) the introduction of a new court to try members of the government suspected
of criminal offences
(d) a new possible course of action, open to any citizen, for referring a statute to
the Conseil Constitutionnel for its review.
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96 Law Reform
Soon after submission of the Vedel Report, two draft bills for the revision of
the Constitution were introduced in March 1993 to give effect to some of the
recommendations made in the report. The first bill was aimed at strengthening
the independence of the judiciary and at introducing stronger guarantees for
citizens in relation to effective access to, and legal remedies for, the protection
of their civil rights as well as to any claim they would wish to pursue against
individual members of the government. The second bill dealt with the organ-
isation of public powers with a view to a better distribution in the balance of
powers between state institutions. This resulted in the series of constitutional
amendments that took effect in the early 1990s, amongst which were the estab-
lishment in July 1993 of a new court, the Cour de Justice de la République, to take
responsibility from then on for trying members of the government suspected of
criminal offences.
(ii) In July 2007, President Sarkozy appointed the Balladur Committee (so-called
as it was named after the former Prime Minister) to recommend ways of
modernising French public institutions, notably by readjusting the balance be-
tween legislative and presidential powers, especially in view of the prior con-
stitutional amendment which reduced the presidential term of office to five
years to match the five-year tenure of parliamentary mandate. This had thrown
up inconsistencies which needed to be re-balanced. A bill taking on board
the majority of the Committee’s recommendations was eventually adopted by
Parliament on 21 July 2008. The Balladur Committee issued seventy-seven
recommendations amongst which were:
(a) the detailing of the role of the President of the Republic (Recommendation 1)
(b) the harmonizing of presidential and legislative elections (Recommendation 4)
(c) to make the President more accountable for his actions to Parliament
(Recommendations 5 and 6)
(d) the raising of degree of scrutiny over the use by the President of ‘exceptional
powers’ granted by art. 16 of the Constitution (Recommendation 11)
(e) the restrictions to the powers of the executive and the corresponding in-
crease of the powers of Parliament, especially with regard to the legislative
process (Recommendations 19–22, 24 and 28)
(f) to make the legislative process more transparent (Recommendations 27
and 39)
(g) to establish Parliament’s right to scrutinise and evaluate the government
actions and policies (Recommendation 41)
(h) to enhance the rights of the opposing parties in Parliament (Recommendations
57–61)
(i) the introduction of new constitutional rights for the benefit of the citizens
(Recommendations 67, 74 and 76).
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The Role of Supreme Courts in Reforming the Law 97
Sometimes, it may also be of interest to note, Ministers instruct individuals, who are
expert in their field, to investigate and report on their findings in a certain area of law
in need of reform. Family law provides a good illustration. In 1998, the French legal
sociologist Irène Théry was instructed by the Minister of Justice and the Minister of
Employment and Solidarity to evaluate the changes which had taken place in the past
two decades in the family and to propose possible legal responses to those changes.
She submitted her report entitled Couple, filiation et parenté aujourd’hui (Paris: Odile
Jacob/La Documentation Française) which gave a thorough analysis of the problems
facing the modern family in France with possible legally defined solutions to these
problems. This report was soon to be followed by the setting up of a working group
headed by family law professor Françoise Dekeuwer-Defossez with a view to generating
proposals for a comprehensive reform of family law. Professor Dekeuwer-Defossez
submitted in her turn a report entitled Rénover le droit de la famille: propositions pour
un droit adapté aux réalités et aspirations de notre temps, which contained a whole
series of recommendations aimed at forming the basis for a comprehensive reform of
family law. Both reports have been used until now as points of reference in the field of
family law. Later, in 2008, the upper House of Parliament, the Senate, instructed three
of its members, M. André, A. Milon, and H. de Richemont, to carry out a study on the
practice of surrogacy in France and abroad with a view to possibly amending the law
on this issue. In their report, which constitutes a penetrating analysis on what is still a
very controversial practice, the senators concluded that its ban in French law should be
lifted, but only in circumstances where infertility is the legitimating issue, and on the
basis that it would not open the door to a general ‘right to a child’. A recent addition to
the series of reports in this field is Irène Théry’s 2014 report on parentage, parenthood
and the right of children to investigate their genetic background, especially in the con-
text of a same-sex family.
T H E ROL E OF SU P R E M E C OU RT S
I N R E F OR M I N G T H E L AW
Another general route by which reform is achieved in France is to rely on the annual
recommendations made in the reports by the highest courts, i.e. Court of Cassation
and Conseil d’État.
T H E C OU RT OF C A S S AT ION ’ S A N N UA L R E P ORT
The requirement to publish an annual report was established by a Décret of 22
December 1967 with a view to giving an opportunity to the Court to report on
its past year’s work as well as to make proposals for law reform (carefully labelled
‘suggestions de modifications législatives ou réglementaires’). In one of his articles,
Professor H. Mazeaud (1977) took a hard line against this direct participation of
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98 Law Reform
the highest court in the law reform process when he vigorously claimed that the
role of the judiciary should be confined to applying the law and not to discussing
its merits, thereby arrogating to itself part of the political function. Professor
Mazeaud’s strongly expressed view later led his colleague J. Deprez (1978) to ob-
serve, with some justification, that the Court of Cassation was very well placed to
assess and comment upon the shortcomings of laws it applies on a day-to-day basis,
notably spotting conflicting or outdated texts and texts whose strict application may
lead to injustice. The judiciary, he added, being involved in the shaping of the law
through its case law, could only have a positive influence on the process of law re-
form if someone were to take the trouble to listen to what it had to say. In fact, he
concluded, the best way to reform the law in practical terms was through the joint
efforts of judges and legislators acting in partnership, something, he said, that the
annual report of the Court was trying to achieve.
The Court of Cassation’s annual report for the year 2015 contains a number of
proposals for reform, particularly in the areas of tenancy agreements, co-ownership
and labour law. It is relevant to note that when, in a given instance, a proposal is not
taken up, it is then formally repeated in the following year’s report under the rubric
‘suivi des suggestions de réforme’ (monitoring of reform proposals). This repetition of
reform proposals shows, in response to Professor Mazeaud’s fear (see above), that what
the Court of Cassation does in its report is to set the agenda for proposed necessary
legal reform, still leaving the execution decision process to the political function.
T H E C ON S E I L D’ ÉTAT ’ S P U B L IC R E P ORT
In its capacity as adviser to the government, each year the Conseil d’État issues
suggestions for law reform through its Section du Rapport et des Études, a special div-
ision of the Conseil created in 1963 with responsibilities for preparing an annual report
for submission to the President of the Republic. The report provides an account of the
past year’s work of the Conseil d’État and other administrative courts, highlighting
the difficulties encountered by litigants in the course of enforcement of the Conseil’s
judgments by the administrative body concerned. In its report, the Conseil also usu-
ally engages in a discussion about research projects, called études, which the Section
du Rapport et des Études carries out each year on the specific instructions of the Prime
Minister. These studies are aimed at reviewing the operation of a particular area of law,
at the same time proposing possible developments in practice and policy in the field
under consideration. By way of illustration, in 2016, the Section chose to look at the
question of transposition of EU directives into domestic law with suggestions of how
to speed up the process of implementation in this area.
It is important to note that, in contrast with the Court of Cassation’s method, the
Conseil d’État does not recommend in its report any amendment of specific code or
statute provisions, but rather, with a broad brush, provides a general critical analysis of
the given area of law under consideration with its recommendations.
9
The Role of Supreme Courts in Reforming the Law 99
Chapter References
and Further Reading
Déprez, J., ‘A propos du Rapport Annuel Ripert, G., Les Forces Créatrices du Droit,
de la Cour de Cassation. Sois Juge et Tais Paris: LGDJ, 1955.
Toi (Réflexions sur le Rôle du Juge dans Zander, M., The Law- making Process, 6th
la Cité)’, Revue Trimestrielle de Droit Civil, edn, Cambridge University Press, 2004.
1978, 503–34. The annual reports of the Court of Cassation
Houin, R., ‘De Lege Ferenda’ in Mélanges and Conseil d’État are available on the re-
en l’Honneur de Paul Roubier, Vol. 1, spective Rapport page of each of these
Paris: Dalloz-Sirey, 1961, 273–94. bodies’ websites at, respectively:
Mazeaud, H., ‘L’Enfant Adultérin et la Super- <http://www.courdecassation.fr>
Rétroactivité’, D. 1977, Chr. 1. <http://www.conseil-etat.fr>
10
PART II
THE METHOD
OF DECIDING CASES
The previous chapters have shown how the nature of French law derives largely from
what is considered to be a proper source of law and from the way legal rules are
arranged, formulated and interpreted. A further characteristic feature of the French
legal system is the reasoning process adopted in a court decision, coupled with the way
these decisions are expressed and written.
When confronted for the first time with the difficult task of reading and analysing
cases, foreign lawyers are very often baffled, if not frustrated, by the formal and rigid
form of reasoning employed by French judges and the highly technical and laconic
style used in their judgments. The aim of Chapters 7 and 8 is to facilitate that task by
providing them with insightful and up-to-date guidelines on how to decipher court
decisions.
Chapter 9 also highlights the crucial role played by academic writers in the under-
standing of court decisions, especially through their analytical notes published in
law reports. As a concluding chapter, Chapter 10 shows how legal education further
contributes to the reasoning process typical of French lawyers.
But, firstly, a preliminary chapter will examine and assess the process of recruiting
and training judges in France.
Thus, Part II of the book consists of five chapters: Chapter 6, Judges; Chapter 7,
Judicial Reasoning; Chapter 8, Judicial Style; Chapter 9, Case Notes; and Chapter 10,
Legal Education.
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6
JUD GES
Le devoir des juges est de rendre la justice; leur métier, de la différer. Quelques-uns savent leur
devoir et font leur métier.
La Bruyère, Les Caractères (1688).
A number of factors determine the judicial modes of thought and argument that will
be addressed in this part of the book. Amongst them are the particular concept of the
law in France and also the authority vested in judicial decision-making, which have
already been considered in Part I. To these must be added the fact that behind every
court judgment is the individual who has delivered it and whose mind has been shaped
by years of learning, training, and practice. This introductory chapter to Part II looks
briefly at the way judges are recruited and trained in France and how and to what de-
gree this is reflected in their way of reasoning and style of argument.
G E N E R A L C ON SI DE R AT ION S ON T H E J U DIC IA L
SE L E C T ION P RO C E S S
In every jurisdiction the ways in which judges are recruited and trained is the subject
of ongoing debate and new developments. And indeed, new ideas have emerged such
as the suggestion that the method employed in the recruitment, selection, and training
of judges reflects upon the future quality of a country’s justice system. In France itself,
a number of reforms have been introduced in the recent past, and others are expected
in the near future, all with a view to improving, within this wider context of a better
judicial system, the recruitment and professional skills of judges.
Legal history and comparative studies show that there is no single ‘ideal’ or ‘ob-
vious’ procedure for judicial appointments and training. For instance, should judges be
recruited on the basis of their academic qualifications, their professional experience, or
by way of election? Generally the method of recruitment adopted is based on historical
tradition or arises out of the functions judges are expected to perform in a given legal
system and at a given time. As an example, it was with a view to subordinating the judi-
ciary to the legislature and to end the increasing power enjoyed by the old royal courts
(whose member judges held their positions through heredity or through a system of
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104 Judges
sales of office) that, in 1790, the French revolutionaries decided to introduce a system
of elected judges.
In recent years, the debate surrounding the selection and training of judges has been
revived with the emergence of a new institutional environment focusing on the pres-
ervation of democracy and human rights. Reform of the judicial selection process has
been on the political agenda in many countries, but divergence has arisen on the most
effective process to promote both independence and efficiency in the profession. With
respect to independence, it has been argued that, if the ‘new’ judge is to be the guardian
of individual rights and freedoms, then members of the judiciary should be elected to
office by an elective college representative of those to whom this protection is afforded.
However, devising a revised objective method of recruitment which would still safeguard
the independence of the judiciary remains a thorny issue especially in systems where
the constitutional or legal provisions and traditions allow judges to be appointed by the
government. Even in a system such as in France, where recruitment is effected through
the medium of competitive examinations, political influence, although not as visible as
in a system such as the United States, still makes itself felt, particularly at the higher
level appointments. As far as efficiency is concerned, there is a continuous search to find
common standards for measuring the qualities to be expected from a newly appointed
judge and the most effective means of training and evaluation to achieve these goals.
To take Europe alone, from the 1990s onwards, issues related to the selection,
training and status of judges were addressed in a number of multilateral forums under
the auspices of the Council of Europe in an ongoing effort to achieve common goals.
The conclusions arrived at by the participants at these meetings resulted in a number
of comparative studies and, in addition, the drafting in 1998 of a European Charter
on the Statute for Judges, which was itself based on the 1994 Recommendation (R
(94) 12) of the Committee of Ministers to Member States with respect to the in-
dependence, efficiency, and role of judges in Europe. Emphasis has been placed
overall on the need for an appropriate method to select and train judges which is
capable of giving them not only theoretical and practical knowledge, but is also able
to equip them with the professional skills required by their function in the context
of a democratic society based on the rule of law and the protection of human rights.
The 2010 Recommendation (R (2010)12) adopted by the Committee of Ministers on
17 November 2010 further highlights the need for a system of selection based on ‘ob-
jective criteria pre-established by law or by the competent authorities’.
It is in light of the above that the present chapter now outlines the requirements for
admission to the profession of being a judge in France and the methods adopted for
training them. This outline is confined to professional judges, but it should be noted
that, in France, commercial and employment cases are adjudicated at first instance
by lay judges. Further, judges in the administrative courts are not included in the
teaching and training processes provided for by the École Nationale de la Magistrature
(ENM) discussed below. Administrative judges are recruited from the pool of high-
ranking civil servants many of them trained at the prestigious ENA (École Nationale
d’Administration).
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Recruitment 105
R E C RU I T M E N T
Unlike, for instance, English judges who are selected from the ranks of successful
barristers, the French judiciary is a career judiciary. Recruitment is, as will be firstly
examined, conducted by competitive entrance examination to the ENM where
successful entrants are trained to become judges over a period of thirty-one months.
In a separate sub-heading, the general method by which prospective entrants to the
French judiciary are selected on the basis of their academic qualification and aptitude,
rather than on the merits of their prior professional achievement, will then be briefly
contrasted with the English approach which, at the other end of the spectrum, holds
professional experience paramount.
E N T R A N C E E X A M I NAT ION S TO T H E E N M
The form of the entrance examinations and the content of the ENM school curric-
ulum are laid down in the provisions of Ordonnance 58–1270 of 22 December 1958
and Décret 72–355 of 4 May 1972, both the subject of several amendments in the past
decade—the latest amendments having been made by Law 2016-1090 of 8 August 2016.
Under current regulations there are three main categories of entrance examinations:
(1) the external entrance examination open to students aged 31 or under who have
successfully completed four years of study after successful completion of sec-
ondary education
(2) the internal entrance examination open to civil servants who have served for at
least four years and who are 48 or under
(3) a third examination is open to persons having spent at least eight years in the
private sector who are 40 or under, but without specific degree requirements.
The external examination (1) is the source of recruitment for the largest number of
judges who make up the French judiciary, consisting in large part of young and highly
qualified men and women.
Such a system based on competitive examination emphasises formal and academic
recruitment criteria. Only the brightest candidates are admitted to follow the training
course provided by the ENM. It is also interesting to note that, since the 1980s, there
has been an increasing tendency towards the feminisation of the judicial profession;
in 2016, out of a total figure of 8,427, 60 per cent or more of its members were women.
Further, whereas the bulk of successful applicants still come from families whose
parents are senior executives, professionals, or teachers, there has also been a rise re-
cently in the number of recruits who are drawn from a working and agricultural back-
ground. This is mainly due to a range of initiatives specifically aimed at encouraging
those from under-represented groups to consider joining the judiciary. Thus, as part of
its strategy for encouraging judicial diversity, in 2008, the ENM launched a programme,
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106 Judges
called ‘égalité des chances’, which offers free preparatory classes to the entrance examin-
ation for less advantaged students. Through its mode of recruitment, ENM epitomises
in its own way the democratic values of the French Republic, as well as purporting to
promote a mission of public service.
Entrance examinations to the ENM consist of written papers, oral tests and, worthy
of a particular mention, an interview with an examining board, as well as an épreuve
de mise en situation where students taken in groups are tested through role-playing
situations. Also, in view of previous miscarriages of justice, psychological, aptitude,
and personality tests were introduced in 2008 to target those who are likely to be un-
able to meet the tough challenges inherent in judicial office. The content and form of
the academic tests, whether written or oral, have been specifically developed with a
view to evaluating the candidates’ legal, analytical, critical, and communication skills
as well as their interest in topical issues. The 2016 entrance examination questions il-
lustrate these aspects:
(a) General knowledge paper: ‘French society and the challenges of terrorism’
(b) Civil law paper: ‘Implementation of judgments’
(c) Criminal law paper: ‘Evidence in criminal law’
(d) Public and EU law paper: ‘Pros and cons of primary elections in a jurisdiction
such as France’.
It should be pointed out that, apart from recruitment through entrance examinations,
direct recruitment to the judiciary is possible but remains limited. Only those candidates
whose academic qualifications and professional experience make them particularly
suitable for judicial duties (e.g. advocates or legal advisers from the private sector) can
be, and are, recruited to the judiciary directly. In recent years, a number of measures
have also been introduced aimed at widening the procedure for direct recruitment in
order to help remedy the current shortage of judges in view of the increasing workload
of cases being litigated.
AC A DE M IC QUA L I F IC AT ION V E X P E R I E N C E
The French system of recruitment, principally by means of competitive examination,
contrasts sharply with the way English judges are recruited. Indeed, despite changes
in the English judicial appointment process with the setting up in 2006 (following
the Constitutional Reform Act 2005) of a new judicial appointments commission
(JAC) aimed at enhancing fairness and promoting transparency and diversity in the
selection process, the central criterion for appointment to the English judiciary still
remains experience in advocacy. In his Hamlyn lectures, Lord Mackay (1994: 3)
justified this emphasis placed on advocacy by the ‘practical necessity that those
who preside over the court should be familiar with its working and be able to give
authority to rulings as cases proceed without undue delay or hesitations on matters
107
Training 107
of evidence and procedure’. However, commentators such as David Pannick QC

(1987: 51–2), did, in the past, challenge the English method of selecting judges. The
thrust of Pannick’s argument, still of relevance today, was that the functions carried
out by advocates and judges required different skills and should therefore be kept
separate. He said:
The jobs of barrister and judge self-evidently require different skills. To have the ability
to argue a proposition is not necessarily to have the qualities required fairly to decide the
same issue according to law . . .
By recruiting the judiciary almost exclusively from amongst barristers our legal system
wrongly implies that because someone is a successful advocate he will therefore make a
similar success of being a judge and that no one can be a good judge who has not been an
eminent barrister.
It is true, as Lord Mackay suggests above, that some of the qualities required of judges,
such as a sound knowledge of the substance and procedure of the law and the capacity
to analyse complex questions of law, are usually, though not exclusively, to be found
with people having experience of advocacy. However, Pannick may have a legitimate
cause for concern when he argues that advocates, whose professional life consists of
taking sides in cases and for whom selection criteria for judicial office reflect a par-
ticular uniform set of social values, might not become fair and impartial judges aware
of the realities of life faced by the majority of people who come to court. It follows
that they may not be able to decide cases fairly and find it difficult to evaluate the
wider social implications of their decisions. In France, these concerns would appear
less acute than in England due, firstly, to the system of recruitment by competitive en-
trance examination (described above) which is more likely to produce more equal op-
portunity to a wider section of the community, and secondly, as will be seen below, to
the nature of the training received by prospective judges which focuses, in great detail,
on an awareness of wider social, economic, and racial issues.
TRAINING
The training of French judges is formal in the sense that it follows a specific programme
of studies, broken down into successive stages. As will be seen in the next section, it
is both theoretical and practical, with lately more emphasis placed on specialisation.
Furthermore, the way in which this training and its content have a direct influence on
judicial practice is addressed separately under a subsequent sub-heading.
I N I T IA L A N D F U RT H E R T R A I N I N G
In an early address to the 1995 Council of Europe multilateral meeting on the training
of judges in Europe, the main objectives of the ENM training course for prospective
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108 Judges
French judges (known as auditeurs de justice) were stated as follows by M. Vignau
(1996: 42), the then Director of initial training at the ENM:
(a) to provide students with methodology and a high level of professional know-how,
designed to ensure that justice is reliably administered
(b) to make students aware of and able to analyse the human, economic, and social
framework of the law
(c) to encourage students to analyse judicial functions, the basic principles of
judges’ action, their status and ethics.
These set goals are today implemented through a general seven-month study period at
the ENM where tuition is provided in the form of lectures, seminars, and also directions
d’études. In directions d’études, prospective judges, working in small groups under the
guidance and supervision of a lecturer or a practitioner, are initiated into the judicial
process and into the method of working particular to each type of court using prac-
tical examples and actual case files. Apart from the development of professional skills,
the training also focuses on the acquisition of a ‘judicial culture’ achieved through the
study of particular ‘themes’ related to the role, status, and ethics of judges as well as to
judicial reasoning. Within the study of each ‘theme’ students are introduced to law-
related subjects, such as economics, sociology, psychology, psychiatry, forensic medi-
cine, and new technologies. The stated objective here is that, in addition to technical
skills, the training of future judges should include the wider environment in which
courts operate. Apart from being multidisciplinary, the training provided at the ENM
is also cast wide within the different branches of law. This is because French judges are
expected to decide all types of legal disputes. In the course of a single day a French
judge may be called upon to decide on questions relating to contract, tort, family, or
criminal law and is therefore expected to have competence in all these areas of law.
A further five-week formal theoretical preparation for the trainee’s preferred area
of choice also forms part of the curriculum and is supplemented by a twelve-week
training period at a relevant court in the trainee’s chosen area of specialisation (e.g.
juvenile court or family division court).
The formal study period at the ENM is ‘sandwiched’ by a number of training sessions
which take place at a law firm (stage avocat), but also in a court (stage juridictionnel)
where trainees under the supervision of a senior judge are given the opportunity to
carry out tasks related to the judicial function, such as taking part in ongoing pro-
ceedings and in the drafting of judgments. To these training periods are added com-
pulsory work experience abroad and a further stay at a domestic host institution such
as a governmental body or a commercial company. Prospective judges are also con-
tinuously assessed throughout their periods of study and training with the introduc-
tion in 2009 of a livret pédagogique de formation (a performance written record) and
regular meetings with assigned tutors. At the end of their period of training, trainees
take a qualifying examination (examen d’aptitude) and are ranked according to their
results.
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Training 109
The foregoing shows that the current procedures for becoming a judge in France
have become onerous.
In respect of further education, the ENM also arranges refresher courses for cur-
rently sitting French judges which take the form of a training programme, combined
with periods of leave from official duties, intended to update attendees’ legal know-
ledge and, further, to gain a speciality for possible transfer to another area, if that is
what they want to do. Under a new scheme there is also the opportunity to take a
postgraduate degree under the supervision of the ENM in association with selected
universities. Exchanges of judges undertaking further education are also proposed be-
tween France and foreign jurisdictions. Such judicial exchanges between France and
other jurisdictions have become very popular. They are always valuable because they
enable judges from different legal systems to learn about, and benefit from, each other's
experiences. The ENM even proposes tailor-made courses aimed at foreign judges
eager to sharpen their skills and strengthen their technical expertise.
I N F LU E N C E OF R E C RU I T M E N T A N D T R A I N I N G
ON J U DIC IA L P R AC T IC E
Because of their experience in advocacy, English judges have a more pragmatic
approach to legal issues. This is clearly reflected in the way they write their judgments,
avoiding technical concepts and language, and articulating policy arguments when ne-
cessary, all in a very discursive manner. English judgments clearly show the way a
judge’s mind has worked and how he or she has arrived at a particular decision. Just
as advocates try to persuade the court to decide in favour of their side of the case, so
English judges try to persuade the legal profession and the public at large that the
solution chosen is correct. As will be seen in the following chapters, this contrasts
sharply with the dryness of French judicial decisions where, as in Markesinis’ (1994)
remark, ‘French judges are trained to keep their thoughts to themselves’. This arises
partly from the fact that the French judiciary is educated and trained as a unit, a fact
further witnessed by the collegial form of French courts. Moreover, the fact that a ma-
jority of French judges enter the judiciary straight from their course of studies explains
to a great extent why they approach the law primarily through their theoretical and
academic education. They are thus mainly preoccupied with fitting actual problems
into the framework offered by the codes as they have been taught to do at university.
As famous French comparatist David (1972) rightly stated, ‘the French judge, within
the family of lawyers, feels closer to the law professor, who was his teacher, than to the
advocate’.
Note: A few words should be said here on the Conseil Supérieur de la Magistrature,
also known as the CSM, the body which deals with appointments to judicial office
and disciplinary actions against members of the judiciary. The 2008 constitu-
tional reform stemming from the recommendations of the Balladur Committee
(see Chapter 5) brought about a further reform to the CSM (revised art. 65 of the
Constitution), which since 1993 consists of two panels each representing a branch
10
110 Judges
of the French judiciary, i.e. siège (judges) and parquet (state prosecutors). To secure
independence from the executive, each panel is now presided over by the respective
head of each branch of the judiciary (President of the Court of Cassation for the
siège and Court of Cassation’s Procureur général for the parquet). This replaces the
very controversial former headship of the CSM by the President of the Republic.
With a view to opening the membership of these panels to a wider cross-section of
society, the CSM’s panels are now composed of five members from each branch of
the judiciary concerned, with a further member taken from the sister panel, a fur-
ther member taken from the Conseil d’État, in addition a practising lawyer (avocat),
and six other worthily qualified individuals not being Members of Parliament or
the judiciary—of those six, two are nominated by the President of the Republic and
the other four are nominated by the respective heads of each House of Parliament.
Another important innovation of this reform is the new right for any citizen to
complain directly to the CSM against any perceived misconduct or breach of pro-
fessional duties by judges. This new right is a direct consequence of the Outreau
scandal, a case in which the judge in charge of the investigation was reprimanded in
2009 for having recklessly conducted his enquiries and for his handling of the pre-
trial procedure which, based on his preliminary conclusions, saw several individuals
charged with paedophilia, who were sent to prison before eventually being declared
innocent at the trial court hearing.
Chapter References
and Further Reading
Bodiguel, J. L., ‘Qui Sont les Magistrats Russell, P. H., and Malleson, K. (eds),
Français? Esquisse d’une Sociologie’, Revue Appointing Judges in an Age of Judicial
Pouvoirs, 1981, Vol. 16, 31–42. Power: Critical Perspectives from around the
David, R., French Law, Louisiana State World, University of Toronto Press, 2006.
University Press, 1972. van Caenegem, R. C., Judges, Legislators and
Lord Mackay of Clashfern, The Professors, Cambridge University Press,
Administration of Justice, London: Stevens 1987.
and Sons/Sweet and Maxwell, 1994. Vignau, M., ‘The Initial Training of Judges: the
Markesinis, B. S., ‘A Matter of Style’, LQR, French Experience’ in The Training of
1994, Vol. 110, 607–28. Judges and Public Prosecutors in Europe,
Pannick, D., Judges, Oxford University Press, Strasbourg: Council of Europe Publishing,
1987. 1996, 41.
1
7
JUDICIAL REASONING
C’est vraiment une chose admirable que la logique de nos magistrats, leur aptitude à relier,
avec une maîtrise consommée, à de vieux articles du Code civil des solutions de jurisprudence
qui disent exactement le contraire.
M. Villey, Seize Essais de Philosophie de Droit.
G E N E R A L C ON SI DE R AT ION S ON F OR M S
OF R E A S ON I N G
Examining judicial reasoning in France entails looking at the structure of a typical

judgment. French judgments are usually portrayed as logical deductions drawn from
pre-existing premises. This form of reasoning, whereby French courts justify their
decisions by subsuming a case under a legal rule, is commonly referred to in French
legal literature as the syllogisme judiciaire. As will be examined further in the next
chapter, the formal and logical structure of French judgments is accentuated by the
fact that they are very short and consist of a single statement with no expression of
dissenting opinion. This contrasts sharply with the lengthy decisions of common law
courts where each judge gives an individual judgment using different patterns of rea-
soning, arguments, and examples. The difference in decision structure between the
French and common law courts is summarised as follows by Samuel (1998: 172):
In contrast to the structure of decisions in the Cour de Cassation, the common law courts
rarely take as their starting point an abstract rule which then has to be applied to the facts
before them. Instead, they start out from the facts and the arguments of counsel and arrive
at a solution through a reasoning process that tends to focus on the particularities of the
actual institutions in play in the case before them.
The form of reasoning employed by French courts constitutes one of the most dis-
tinctive features of the legal system and is very often mirrored in the way lawyers
construct and present their argument. Experience has shown that views articulated
by scholars, or counsel’s submissions to courts and even law students’ answers to
problems, all adopt to a considerable degree the deductive method practised by the
courts. Indeed, the overall tendency is to shape arguments as a series of stringently
12
112 Judicial Reasoning
logical steps, almost always beginning with a statement of the statutory law and
aimed at showing that the end point is the culmination of this chain of consistent
logical steps. It is, therefore, imperative for those engaging in the study or in the
practice of French law to be able, through a study of judicial reasoning, to meet the
common expectations of what constitutes a good, or at least an acceptable, type of
legal argument.
The style of argument displayed in French judgments certainly exhibits, as is often
suggested, the virtues of traditional formal logic to which French lawyers subscribe
with great pride. The French Cartesian propensity for conceptual thinking, whereby
particulars are subsumed under universals by an act of categorisation, explains why the
deductive method, when applied in a legal context, is considered in France to be best
able to settle legal issues conclusively. Emphasis on deduction in judicial decisions is
also common in other civil law systems, such as Germany and Italy, where the prevailing
tendency in judicial opinions, as in France, is to present the final ruling as the neces-
sary outcome of a logical set of arguments structured in a syllogistic form. It has been
further suggested that syllogistic logic is particularly suited to the philosophical cast of
mind of civil lawyers who, for centuries, have been exposed to the abstract process of
reasoning prevalent in Continental law schools. Common law in contrast, organised
and developed mainly as a by-product of litigation, seems more concerned with
securing decisions that make good practical sense, rather than exhibiting the virtues
of logic. This is usually accounted for by the frame of mind of common lawyers, often
described as a frame of mind which habitually looks at things in the concrete, not in
the abstract, and which places its confidence in experience rather than in abstractions.
Lord Justice Cooper (1950) once highlighted the difference of approach between the
common law and civil law in his famous address delivered to Edinburgh University:
The civilian naturally reasons from principles to instances, the common lawyer from
instances to principles. The civilian puts his faith in syllogisms, the common lawyer in
precedents; the first silently asking himself as each new problem arises, ‘What should we do
this time?’ and the second asking aloud in the same situation, ‘What did we do last time?’
One of the most noteworthy statements in recent times regarding the contrast be-
tween civil and common law styles of judicial reasoning was made in the High Court
of Australia unjust enrichment case of Roxborough v Rothmans of Pall Mall (Australia)
Ltd [2001] HCA 68. Referring to the famous ‘top-down’ and ‘bottom up’ legal rea-
soning dichotomy introduced by R. Posner (1992), Gummow J. presented the civilian
‘top-down’ form of reasoning (see Posner, 1992) as being diametrically opposed to
traditional common law technique:
To the lawyer whose mind has been moulded by civilian influences, the theory may come
first, and the source of the theory may be the writing of jurists not the decisions of judges.
However, that is not the way in which a system based on case law develops; over time, gen-
eral principle is derived from judicial decisions upon particular instances, not the other
way around.
More significant, when explaining the form of reasoning adopted by French courts, is
the primacy of statutory law and the passive function ascribed to the judiciary (see also
13
General Considerations on Forms of Reasoning 113
Chapter 10 regarding the role played in this respect by legal education). These factors
have contributed, not only in France, but also in other civil law systems, to a fairly rigid
conception of adjudication. As Zweigert and Kötz (1998: 264) have pointed out:
Continental judges, in Italy and France rather more than in Germany, are still imbued with
the old positivistic idea that deciding a case involves nothing more than applying a particular
given rule of law to the facts in issue by means of an act of categorisation; indeed, they often
entertain the further supposition that ideally the rules of law to be applied are statutory texts.
In the following passage Zweigert and Kötz further emphasise this tradition of judi-
cial decision making particularly reflected in the style and form of reasoning employed
by judges in the highest courts:
Above all, judgments of supreme courts of the Continent still sometimes reflect the
traditions of the authoritarian state of a hundred years ago: judgments should primarily be
impersonal acts of state which parade the majesty of the law in front of citizens in awe of
authority; therefore they must not let it emerge that judges reach their decisions through a
hesitant and doubtful balancing of the pros and cons of concrete solutions of the problem
thrown up by the case rather than by sheer intellect and cold logic.
In France, the long-established assumptions, still deeply rooted in the French legal
mind, that only the legislature can make the law and that codes provide a self-
contained and internally consistent body of legislation, have greatly contributed to
the deductive model of legal reasoning which prevails in the French judicial method.
In such a system, codes are deemed to provide the axioms and postulates from which
conclusions are drawn. From this it follows that judicial decisions cannot, overtly
at least, be the outcome of what the judge feels to be the best solution. They are pri-
marily the result of applying a rule of law to an actual situation. At the end of the
19th century, a certain Judge Magnaud challenged this tradition by refusing to ad-
here in his decisions to the purely deductive model of reasoning. One of his most
famous decisions was Min. Public v Demoiselle Ménard (1898) D.P. 1899, 2, 329, in
which a poor woman was prosecuted for having stolen a loaf of bread because she was
hungry. Although the facts were established, Judge Magnaud nevertheless decided
that, given the circumstances, the defendant was not guilty of theft on the grounds
that it was ‘within the power and duty of judges to construe humanely the inflex-
ible prescriptions of the law’. However, the ‘Magnaud phenomenon’ has remained an
isolated one amongst the French judiciary. French judges usually take the view that
the rigid and logical form of the syllogism provides them with an ideal form of rea-
soning, minimising their contributions to the law-making process. Also the legal duty
imposed on them to publish reasons for their decisions implies that they have to in-
dicate the legislative enactment serving as a basis for their decision and say how this
decision relates to the law they are invoking. This requirement goes back to the 1790
legislation, art. 15 which provided that judicial decisions must ‘express the reasons
that were decisive for the judge’. It was reintroduced later in art. 455 of the Code of
Civil Procedure (see further at Chapter 8) and has been reinforced by the power given
to the Court of Cassation to quash any decision given without sufficient reasons or
with reasons which are mutually contradictory.
14
The fact that judicial reasoning can only be cast in a strictly syllogistic form has been
strongly questioned for not conveying the reality of legal reasoning—which is never
strictly deductive—and for simply being unable to solve all the problems raised in a
legal dispute. The speculation as to whether syllogistic logic can on its own satisfac-
torily account for judicial reasoning arises in the wider debate on the extent to which
legal decisions are the outcome of logical processes rather than judges using their
own discretion or expressing their own personal views. This question has important
implications in legal theory, especially when it comes to determining the nature of
legal analysis often presented as ‘scientific’ and ‘objective’. Also, it raises issues proper
to constitutional law in the sense that it questions the nature and scope of the judicial
function. The words of Holmes in The Common Law, at p. 1, are very often presented as
the source of the long-running controversy as to the respective weights to be attributed
to syllogistic logic or to judicial discretion in the decision-making process:
The actual life of the law has not been logic: it has been experience. The felt necessities of the
times, the prevalent moral and political theories, the intuitions of public policy, avowed or un-
conscious, even the prejudices which judges share with their fellow men, have had a good deal
more to do than the syllogism in determining the rules by which men should be governed.
In France where judicial opinions are generally reduced to the skeleton of a syllogism,
Holmes’ assertion is particularly relevant. However, despite the predominance of lo-
gical processes in judicial opinions and the official doctrine, supported by a core of
fundamental rules, that the judge’s role is primarily to apply legislative provisions to
given factual situations, no lawyer in France today would seriously maintain the view
that judicial decisions are only determined by the formal, not to say mechanistic, oper-
ation of a syllogism, irrespective of the consequences for particular factual situations.
This view is considered by the majority of French scholars to belong to a 19th century
conception of the legal process which assumed that all legal questions may be decided
by applying rules which are definite, unchanging and whose application is thoroughly
predictable. In France, as elsewhere, legal rules are too diverse and often unclear, if
not contradictory. They need, therefore, to be identified, interpreted and formulated
in a precise manner. Facts also have to be proved and categorised. All these operations
which are inherent to the judicial process involve a certain amount of choice on the
part of judges. And even though they have to exercise their discretion within the limits
imposed by constitutional and procedural rules, there is still room left for selecting and
directing the law towards the achievement of a just and desirable result. This objective
is made significantly easier by the fact that code provisions and statutes are written in
general terms. This leaves judges with broad scope for interpretation and considerable
leeway in the choices they make. Thus, any suggestion that the French judicial process
rests on a mode of reasoning that is solely deductive or syllogistic is illusory. However,
this does not mean, as is often claimed, that syllogistic logic does not play a role other
than being an expository decoration in the judicial process. Syllogistic logic serves a
certain number of functions inherent to adjudication, such as the functions of ration-
ality and justification to which we will return in this chapter.
15
The Judicial Syllogism 115
What follows first explains and illustrates the judicial syllogism and looks at
the functions it fulfils. The chapter then examines the limitations of syllogistic
logic.
T H E J U DIC IA L SY L L O G I SM
DE F I N I T ION A N D I L LU ST R AT ION
French opinions are usually very brief and are couched in the form of the Aristotelian
syllogism in which a conclusion is drawn from a pair of premises—the major premise
and the minor premise, as illustrated by the following classic example:
All men are mortal (major premise)

Socrates is a man (minor premise)
Therefore, Socrates is mortal (conclusion)
This example shows that the logical form of the syllogism rests on a process of
inferring from two propositions, considered as true premises, a further propos-
ition, the conclusion, the truth of which is believed to follow from the previous
two. Syllogistic reasoning also rests on an organisation of classes—here, the class
of mortals and the class of men—fitting into each other and moving from the gen-
eral to the particular. Using the same example of Socrates, this organisation can be
illustrated as follows:
Since men belong to the class of mortals

Then Socrates, who belongs to the class of men
Also belongs to the class of mortals.
In the 18th century, the Swiss mathematician Leonhard Euler (1707–83) used a dia-
gram with three interlocking circles in order to test the validity of syllogistic inferences.
Taking the Socrates example, each of these circles represents a class with a particular
membership (see Fig. 7.1).
Syllogistic inferences of this kind appear clearly in French judicial decisions where a
legal principle or rule operates as the major premise of the syllogism, a short statement
of the relevant facts as the minor premise, the conclusion consisting of a subsumption
of the facts within the principle or rule. The classic contract law case of Goutaillier v
Epoux Jacob (1974), Bull. civ. III, no. 330, offers a simple illustration of the syllogistic
form of reasoning employed in French judgments. In this case the vendor of a house
in the country had not revealed to the purchasers the existence of a plan to set up a pig
farm nearby. The purchasers claimed the repayment of the sum they had already paid
on account, relying on the then art. 1116 of the Civil Code (now 1137) which provides
that any dishonest dealing—called dol—on the part of one of the parties to a contract,
in the absence of which the other party would not have entered into the contract, is a
ground for nullity of an agreement. The issue here was whether the vendor’s deliberate
failure to disclose the plan to set up a pig farm near the house could be categorised as
16
Mortals
Men
Socrates
Fig. 7.1 Syllogistic reasoning: Euler’s diagram
a dol within the meaning of art. 1116. Deciding on this issue, the Court of Cassation
used the following syllogistic construction:
Intentional failure to disclose a fact which, if known by the other party, would have
dissuaded the latter from entering into a contract, amounts to a dol [major premise]
The vendor of a house has intentionally failed to disclose to the purchasers a plan to set
up a pig farm nearby which if known to them, would have resulted in their being unwilling
to enter into a contract [minor premise]
Therefore, the vendor’s failure to disclose this fact is a dol (and the sum paid on account
by the purchasers must be reimbursed by the seller) [conclusion]
Using Euler’s diagram the syllogistic reasoning of the Court of Cassation would be as
in Fig. 7.2.
Overall, the prevailing practice of French courts, in particular the Court of Cassation,
is to deliver short decisions where syllogisms are cast in the form of a single sentence
without any attempt to justify each step of the reasoning. Thus, a typical judgment moves
logically from the applicable statutory provisions, followed by an outline of the rele-
vant facts, to a final part that constitutes an inescapable conclusion. The following well-
known divorce case provides a good illustration of this practice. In X v Mme Y (1997),
D. 1997, 296, a husband had produced as evidence his wife’s secret diary and a series
of confidential letters addressed by her to a third party. The Court of Appeal refused to
rely on these various documents as evidence against the wife on the grounds that this
would infringe her rights of privacy. The Court of Cassation quashed the decision of the
Court of Appeal relying on arts 259 and 259–1 of the Civil Code and deciding that, in
accordance with these provisions, facts in divorce cases may be proven by any means,
17
Dol
Failure to
disclose
House sale (with

nearby pig farm
undisclosed)
Fig. 7.2 Application of Euler’s diagram to the Court of Cassation reasoning in

Goutaillier v Epoux Jacob
including any kind of documents, provided these documents have not been obtained
by fraud or violence. For the Court of Cassation it did not appear from the findings of
the appellate judges that the confidential letters produced had been obtained, as defined
by arts 259 and 259–1 of the Civil Code, by fraud or violence; only these particular
circumstances would have enabled the Court of Appeal not to rely on these documents
in reaching its decision. The Court of Cassation judgment took the following form:
Vu les articles 259 et 259–1 du code civil; Attendu qu’en matière de divorce la preuve se fait
par tous moyens; que le juge ne peut écarter des débats tous documents dont un conjoint
entend faire usage que s’ils ont été obtenus par violence ou fraude [statutory provisions];
Attendu que pour écarter des débats des lettres adressées par Mme Y à des tiers ainsi
que son journal intime et son carnet de bord et prononcer le divorce aux torts partagés
des époux, l’arrêt attaqué énonce que la production de ces documents qui n’appartiennent
qu’à elle porte atteinte à sa vie privée [statement of facts including the findings of the Court
of Appeal];
qu’en statuant ainsi sans constater que M. X s’était procuré ces documents par fraude
ou violence, la cour d’appel a privé sa décision de base légale au regard des textes susvisés
[final ruling].
In this case, therefore, after simply referring to the applicable code provisions, followed
by an outline of the relevant facts, the court arrives at the final part of its judgment,
which constitutes an irrefutable and inescapable solution. There is indeed no effective
justification here, such as arguments of interpretation, illustrating why the Court of
Cassation applied to the case the code provisions invoked instead of applying the
18
reasoning of the Court of Appeal based on the argument of privacy rights. The decision
is delivered as if there were no other possible alternative solution and irrespective of the
consequences it may have for the actual situation. A large body of French judgments
published in law reports follows this model. A further illustration of the traditional
syllogistic model is set out below (from Cass. Civ 1, 3 March 2009, M. E . . . X v Mme
C . . . Y, D. 2009, 1385, in respect of the conditions for adding the mother’s surname to
the family name of a child):
Vu l’article 43 de la loi n° 85–1372 du 23 décembre 1985; Attendu que selon ce texte, lorsque
les parents sont investis conjointement de l’autorité parentale sur leur enfant mineur, l’un
d’eux ne peut adjoindre, seul, à titre d’usage, son nom à celui de l’autre, sans recueillir, au
préalable l’accord de ce dernier; qu’à défaut, le juge peut autoriser cette adjonction; [statu-
tory provisions]
Attendu que pour débouter M. X . . . de sa demande pour que sa fille ne porte pas le nom
d’usage ‘X . . .-Y . . . ’, la cour d’appel énonce que Mme Y . . ., investie de l’autorité parentale,
pouvait adjoindre à titre d’usage son nom à celui de sa fille sans qu’une autorisation
judiciaire fût pour cela nécessaire; [statement of facts including the findings of the Court of
Appeal]
Qu’en statuant ainsi, alors qu’il résulte de ses propres constatations que M. X. . . n’avait
pas donné son accord à l’adjonction du nom de Mme Y . . . , à titre d’usage, à celui de sa fille,
la cour d’appel a violé le texte susvisé. [final ruling]
However, this traditional model has a few important variations, which are outlined
below.
VA R IAT ION S
(a) One variation is where, unlike the above decisions, the Court of Cassation
dismisses the appeal. In this type of decision, called arrêt de rejet—as opposed
to arrêt de cassation in which case the court quashes the decision of a lower
court—the syllogism usually appears after the statement of facts and the sum-
mary of the arguments by counsel. For example, in the landmark case Société
d’assurances La Cité v Héro (1988), D. 1988, 513, an employer (Société La Cité)
had been held vicariously liable under the then art. 1384 alinéa 5 of the Civil
Code, for dishonest dealing engaged in by one of its employees (Héro). The
Court of Cassation dismissed the employer’s appeal on the grounds that he did
not show that the employee’s act ‘did not take place in the course of his employ-
ment, without authorisation and for purposes outside the scope of that employ-
ment’. The judgment was structured as follows:
Attendu que . . . [statement of the facts];

Attendu que . . . [summary of the submissions and arguments made by the appellant];
Mais attendu que le commettant ne s’exonère de sa responsabilité que si son préposé a
agi hors des fonctions auxquelles il était employé, sans autorisation, et à des fins étrangères
à ses attributions; [major premise of the syllogism]
19
Et attendu que l’arrêt relève . . . [follows the statement of the relevant findings of the lower
court which constitutes the minor premise];
Que de ces énonciations, d’où il résulte que M. Héro, en détournant des fonds qui lui
avaient été remis dans l’exercice de ses fonctions, ne s’était pas placé hors de celles-ci, la cour
d’appel a exactement déduit que la Société La Cité ne s’exonérait pas de sa responsabilité
civile [conclusion].
It must be pointed out, however, that this syllogistic form of arrêt de rejet is rare.
Usually, in this kind of decision, the reasoning of the Court of Cassation is handed
down in a brief formal refutation of the arguments presented by the appellant.
(b) Another is when the major premise, instead of being a statutory provision, is a
general principle of law (or both). For instance, in matters of restitution, judges
may resort to the principle nul ne peut s’enrichir aux dépens d’autrui which
prohibits someone from enriching him or herself at another’s expense (such
as in Cass. Civ. 1, 27 November 2008 no. 7-18.875, where the plaintiffs claimed
the reimbursement of sums spent for refurbishment work incurred by them).
Another example is in criminal cases where judges very often refer to the prin-
ciple of l’autorité au civil de la chose jugée au pénal. Under this principle, when
the victim of a crime sues a wrongdoer for compensation in the civil courts after
a criminal decision has been reached in respect of the same facts, the civil judge
cannot, as a general rule, give a decision which would contradict the earlier
criminal ruling (such as in Cass. Civ. 2, 30 June 2016 no. 14-25.070, where the
victim of malicious phone calls sued the defendant for damages in the civil
court following the latter’s conviction by a criminal court that his action caused
the distress leading to the victim’s suicide attempt).
(c) There is also the case in which the relevant statute or code provision is not ex-
pressly stated. Apart from the frequent cases in which an article of a code is
merely cited by number, there can be an implicit reference to the rule applied
which has then to be inferred from the propositions enunciated by the courts or
even from the solution itself. Again, this usually occurs in an arrêt de rejet, i.e.
when the Court of Cassation dismisses the appeal. This can be accounted for by
the fact that, in accordance with procedural rules (art. 1020 of the Code of Civil
Procedure), the Court of Cassation is under a duty to quote the relevant statu-
tory provisions—called for this purpose the visa—only in arrêts de cassation,
when it quashes the decision of a lower court.
More generally, there are some cases where no new point of law is raised and where the
decision of the court simply confirms a particular interpretation of a rule found in a
series of other similar cases. Because these cases have limited value as precedents, the
court does not feel a need to set out clearly the principle of law it is applying and, for
brevity, only states the particular factual circumstances of the case when handing down
its decision. A decision by the Court of Cassation on privacy rights offers a suitable il-
lustration. In Mme Li Shu Xian v Editions Laffont (1995), Bull. civ. I, no. 356, the Court
120
of Cassation rejected the appeal made by the widow of the last Chinese emperor, Pu Yi.
The appellant had brought an action against the author (M. Behr) of a biography of her
late husband on the grounds that, in disclosing certain aspects of Pu Yi’s private life, the
defendant had actually infringed his right to privacy. However, the Court of Cassation
relied on the findings of the lower judges establishing that in his own autobiography Pu
Yi had already disclosed the facts published in the book. Relying on past precedents,
the Court further noted that the re-disclosure of these facts by the defendant had not
been made, as suggested by the appellant, with the intention to harm, but simply to
relate Pu Yi’s life in an objective way without distorting the truth. Thus, following a
brief statement of the facts and a short summary of the arguments presented by the
appellant, the court justified its decision as follows:
Mais attendu que la cour d’appel a retenu, par motifs propres et adoptés du jugement, que
Pu Yi lui-même avait, dans ses écrits autobiographiques, fait état de certains aspects de
sa vie intime que M. Behr avait repris dans son ouvrage sans manquer au respect dû à la
vérité, compte tenu des éléments objectifs sur lesquels il s’était appuyé; que la cour d’appel
a ainsi, par un arrêt motivé, légalement justifié sa décision sur ce point;
Par ces motifs: Rejette le pourvoi.
The right to respect for one’s private life, which was the point at issue in this case, is
protected by art. 9 of the Civil Code. However, in dismissing the appeal, the Court
of Cassation does not refer explicitly to this rule or to any interpretation or limita-
tion of it, but would appear to have drawn its conclusion merely from the findings of
the lower judges. However, it would be wrong to assume, because the standard syl-
logism does not stand out clearly—the major premise not being apparent—that the
decision lacks grounds. The proposition of law on which the decision is based may
be inferred from the facts, coupled with the conclusions drawn from these facts by
the court. Thus, in this case the syllogism may be easily pieced together as follows:
Article 9 of the Civil Code allows for the disclosure of facts previously published unless
this is intended to distort the truth [major premise].
The defendant has disclosed facts previously revealed by the plaintiff in an autobiog-
raphy, in an objective way and without distorting the truth [minor premise].
Therefore, the defendant has not committed a breach of art. 9 [conclusion].
It is important to point out that the reformulation of the syllogism in such a situation
rests on the amount of information found in the judgment. Also it assumes, to a greater
degree than in other instances, a good knowledge of French substantive law, particu-
larly the way in which the relevant rule has been constructed and applied in earlier
cases, without which the major premise cannot be reformulated.
(d) Finally, although lower courts adhere to the pattern offered by the syllogism,
they seem less rigid in their approach than the Court of Cassation. Usually, lower
courts deliver a longer and more elaborate justification. This may be accounted
for by the fact that the function of lower courts is to establish facts or review
them in light of the weight of evidence, whereas the Highest Court deals mainly
with issues of law, confining itself to ascertaining whether the law has been
12
correctly applied. Moreover, following the recommendations issued in 1973 by

the Commission de modernisation du langage judiciaire (see next chapter), the
practice of the lower courts has been up to this day to write judgments in a less
formal and technical language and to structure them in a way which does not
always stick to the more rigid and logical patterns of reasoning of the Court
of Cassation. For two illustrations of expansive justification by lower courts,
readers can consult the 1998 Court of Tarascon’s judgment in Etat Français v
Pinoncely (1998), D. 2000, 128 and, more recently, the exceptionally lengthy
(hundreds of pages) 2005 judgment of Tribunal correctionnel of Bonneville in
the case of the Mont Blanc tunnel disaster in March 1999 (Trib. corr. Bonneville,
27 July 2005, JAC nos 57 and 58, commented upon in D. 2006, Chr. 398).
T H E F U N C T ION S OF T H E J U DIC IA L SY L L O G I SM
As observed in the introduction to this chapter, the judicial syllogism serves a number
of essential functions which are briefly outlined here. These are:
(a) Rationality—the syllogism has often been described as the hallmark of ration-
ality. Indeed, unlike the other traditional modes of reasoning, syllogistic logic
presents a cogent form of argument with its set of premises and its exposition of
logical links, and provides an alternative to what would otherwise look like an
arbitrary decision.
(b) Certainty—the syllogism facilitates the building up of a logically consistent
system of propositions which enhance consistency and predictability and lead
to a greater degree of certainty within the legal system.
(c) Justification—since under art. 455 of the Code of Civil Procedure and art. 485
of the Code of Criminal Procedure French judges are required to state the grounds
for their decisions, they must expound them in an open manner. Once again, the
syllogism provides the courts with an ideal mechanism for justifying what they
do. To the party losing a case it shows in a most objective and straightforward way
that the judgment has been given in conformity with the law and is nothing other
than a straightforward deduction from the principles of this law. Similarly, the
syllogism with its function of justification allows the Court of Cassation to which
a case has been referred to exercise control over the correct application of the rule
of law by the lower courts. This exercise of ‘control’ is crucial in France where the
system of courts is far less centralised than in other jurisdictions such as England.
Indeed, this contributes towards consistency in French judicial decision-making;
the Court of Cassation’s role in this instance being to ensure that the law is cor-
rectly and uniformly applied throughout the court system.
(d) Guidance for the resolution of further cases—the syllogism provides a working
guide for the judges, the litigants, and their legal advisers. In Chapter 4, it
has been seen that there are a variety of factors that determine how much
persuasive value a case has as a precedent. In particular, case law becomes
12
increasingly authoritative when the interpretation or principle serving as the

major premise in a case is confirmed and applied in a series of other cases (jur-
isprudence constante). Thus, the syllogism, in setting out the grounds for the
decision that has been reached, provides a rule for dealing with similar cases
in the future.
T H E L I M I T S OF SY L L O G I ST IC R E A S ON I N G
As already pointed out, despite the strict adherence of French courts to the syllogistic
form of reasoning, any attempt to reduce the judicial process to a mechanical applica-
tion of given premises immediately fails. Indeed, the process of reaching a decision is
not as straightforward as the syllogism suggests. As will be examined here, it carries
with it a certain number of operations made necessary by the specific nature of law
and legal analysis, which are inherent to adjudication and for which the syllogism is
of no help at all. Furthermore, in that the main task of a court is the resolution of a
legal dispute, this implies that in deciding a case the judge takes one view in preference
to another, after having considered the arguments presented by each side. In fact, the
major and minor premises, far from being fixed antecedent propositions, only grad-
ually emerge from the judges’ analysis of the concrete factual situation and from the
arguments presented by each of the parties to a case in support of their respective
claims. In a celebrated essay on the relationship between law and logic, John Dewey
(1924: 23) emphasises this point:
As a matter of fact, men do not begin thinking with premises. They begin with some
complicated and confused case, apparently admitting of alternative modes of treatment
and solution. Premises only gradually emerge from analysis of the total situation. The
problem is not to draw a conclusion from given premises; that can be best done by a piece
of inanimate machinery by fingering a keyboard. The problem is to ‘find’ statements of
general principle and of particular fact, which are worthy to serve as premises.
This suggests that arguments in law are not exactly about logical deductions but are
concerned instead with the premises upon which those deductions are based. Thus, the
essential task of the judge is to find the ‘correct’ premises. It is this process of ‘finding’
appropriate premises that will now be examined through the interrelated questions of
assessing the facts and determining the law applicable to a particular case. As will be
seen, the process of finding premises cannot be carried out solely by using deductive
reasoning; it depends on a less clearly defined recourse to induction, analogy, persua-
sion, and judicial discretion. The major difficulty in French law is that judgments do
not account for this process; they merely set out its results. This explains why it is that
the true reasons for a decision will only be fully understood by reading the analytical
notes to reported cases (see Chapter 9) or the Avocat Général’s opinion (conclusions)
to the Court of Cassation, provided these are printed along with the judgment (on the
submission of an opinion by the Avocat Général, see next chapter).
123
The Limits of Syllogistic Reasoning 123
T H E SE A RC H F OR T H E M AJ OR P R E M I SE
The syllogism cannot offer guidance to the judge when it comes to identifying or
establishing the appropriate legal rule or principle serving the function of the major
premise, for it can only show that a conclusion is deduced from fixed and ready-made
propositions. Yet, before serving as a major premise, legal rules are reformulated
with a view to giving effect to the meaning, extensions, and limitations that judges
wish to attach to them. Indeed, the major premise in French judgments is never
the exact formulation of the actual relevant code or statute provision, but rather the
meaning attached to it by the court. For example, in the 1997 divorce case X v Mme
Y discussed above, the establishment of the major premise was arrived at, not from
the actual wording of arts 259 and 259–1 of the Civil Code referred to in the visa, but
from the interpretation of these two provisions. Indeed, the first of these texts reads as
follows: ‘The facts alleged in divorce cases either by the petitioner or by the respondent
can be proved by any means of proof, including admission’. Immediately after, art. 259–
1 (in its pre-2005 wording) provides: ‘one of the spouses cannot produce in court as
written evidence letters addressed to the other spouse by a third party when these
letters have been obtained by fraud or violence’. Interpreting these two provisions the
Court of Cassation lays down the major premise as: ‘In divorce cases the judge cannot
exclude documentary evidence unless it has been obtained by fraud or violence’.
However, the then art. 259–1 did not specify or even imply that fraud and violence
were the only circumstances in which letters could be excluded as evidence. Thus, the
court considerably reduces the scope for excluding evidence which, for some reason,
cannot be permitted or relied upon in these or in similar circumstances. According to
this ruling, evidence obtained in breach of civil liberties—being not technically ‘fraud’
or ‘violence’—would, thus, be admissible in court. This example demonstrates that the
wording of the major premise in French judicial decisions is not achieved by the use
of tracing paper in copying the code provisions. Instead it results from a more com-
plex process which has a great deal to do with judges’ approach to rules in a particular
system of law.
In respect of the major premise, there are two further points to be made:
(1) In France, just as elsewhere, the legal system is characterised by a large number
of competing, conflicting, and overlapping rules, once described by the French
legal philosopher Villey as a panier de crabes qui s’entre-dévorent (always at
each other’s throats). As a consequence, judges are frequently faced with legal
situations in which two or more rules are equally applicable or, though equally
applicable, are incompatible. The decision as to which rule takes precedence
will not depend on the use of logical deductions, but rather on interpretative
choices as well as on the weighing up against each other of conflicting interests
or, more generally, on policy considerations. The criminal case of Pélegrin
(1977), D. 1978, 42 is a perennially classic example of a situation of conflicting
rules. Here, the Court of Cassation put an end to a long-lasting conflict between
civil and criminal law rules in situations where a purchaser had in good faith
124
acquired movable property from a non-owner. Whilst under the then art. 2279
of the Civil Code (now art. 2276) the true owner had no remedy against this
purchaser who could, as a result, keep the property acquired, under the then art.
460 of the Criminal Code (today art. 321–1), this purchaser, once he had become
aware of having obtained the property from a non-owner, had no choice but to
return it on pain of being prosecuted as a receiver of stolen goods. So, under
one rule (art. 2279) the purchaser had become the owner, under the other (art.
460) he became a receiver of stolen goods. In Pélegrin, the Court of Cassation
decided to apply art. 2279. What is important to note here is that the decision
as to which of the two rules—art. 2279 or art. 460—should serve the function
of major premise in such a situation did not proceed from deductive reasoning,
but rather from a realistic balancing of the competing interests of owners and
third party purchasers. This example highlights the limitation underlying syl-
logistic logic in that, even in a system favouring logical processes, law cannot
exclusively lie in definite rules with the promise of a certain outcome.
(2) As experience shows, it is extremely unlikely that judges will find an enacted
rule or principle that corresponds exactly to a given set of facts. Legal rules,
especially in a codified system as in France, do not provide for concrete facts;
they only refer to categories of facts in a very abstract way. This frequently forces
French judges to look for code provisions governing a class of situations capable
of encompassing situations brought before them which have not been specially
‘catered for’. In these circumstances, judges are very often faced with a choice
between competing provisions, or even between competing interpretations of
the same provision. The exercise of this choice will very often be dependent
upon the specific nature of the case or upon comparisons judges can make with
similar situations identified in earlier cases, which may be regarded as falling
within the scope of the rule selected. A particular choice between alternative
rules may also be dictated by practical or policy-based arguments. For example,
in the surrogacy case of Proc. Gén. C. de Cass. v Madame X. (cited in Chapter 4),
the judges had to decide, in the absence at the time of any specific provisions
governing this type of agreement, under which particular category of contract,
provided for by the law, surrogate agreements fell. The Court of Appeal of Paris
decided that, because of the similarities they had with authorised organ dona-
tion, surrogate agreements had to be categorised in the same way. Indeed, for
the appellate judges, ‘womb leasing’ in surrogate motherhood was no different
in essence from the donation of an organ. The Court of Cassation reversed
the judgment of the Court of Appeal, applying the then art. 1128 of the Civil
Code which prohibited such things as the human body, which were held to be
hors du commerce, from being the subject matter of an agreement. Thus, there
was a choice, in this case, between two competing sets of rules: the statutory
provisions allowing organ donation in certain circumstances and the Civil Code
provisions prohibiting legal transactions involving the human body. Although,
125
in its usual style, the Court of Cassation says nothing about the reasons which
have determined its choice, one can speculate that policy considerations and
value judgements concerning the practice of surrogacy were paramount in the
solution adopted. On the other hand, the Court of Appeal came to its conclu-
sion by openly drawing comparisons with known examples of organ donation
using a type of reasoning from analogy. Based on the Latin maxim ubi eadem
ratio, ibi idem jus, analogy in France is as much a device for interpreting statutes
(see Chapter 3) as it is a mode of reasoning.
FAC T F I N DI N G A N D P ROB L E M S OF C AT E G OR I S AT ION

It follows from what has been said above that, assuming legal rules can be found, the
application of these rules to a particular case will depend (provided that the existence
of the alleged facts have been established and their relevance to the issues of the case
determined) on the characterisation of these facts as ones which fit within the class
governed by one of the identified legal rules. This latter process, called qualification des
faits, is crucial in the reasoning process of French judges. It is provided for by art. 12 of
the Code of Civil Procedure which states:
Judges decide on a dispute in accordance with the relevant rules of law. They must char-
acterise the facts without necessarily relying on the assertions made in this respect by the
parties to the case.
Qualification can be defined as a process whereby judges compare the ‘raw’ facts
(faits bruts) of a given case with a legal rule and decide on the proper inference to be
drawn from this comparison. But before giving their decision, judges have to weigh
the arguments in support of each of the possible qualifications against each other. This
involves considering the relevant code provisions or statutes capable of being matched
up with each of the other proposed qualifications. From this process follows what
Ghestin and Goubeaux (2006) call a ‘va-et-vient du fait au droit’ in which judges move
backwards and forwards between facts and rules in order to decide the outcome of the
case. The process of qualification thus involves a fair amount of judicial freedom of
action, not to say creation. As such it cannot offer the certainty of a purely deductive
system.
French scholar Ivainer (1986), in what has become a classic work on the subject,
has demonstrated that the process of qualification is, in fact, primarily a process of
evaluation. According to Ivainer, in the context of the qualification process, judges first
determine the relevant facts (faits pertinents) and establish their existence (jugement
d’existence), and secondly make value judgements on these facts (jugement de valeur).
They then transform these value judgements into a number of specific parameters
(paramètres) to which they apply assessment coefficients (coefficients de pondération).
To illustrate this, and in order to test the value of his argument, Ivainer gives an example
taken from the Court of Cassation’s judgment in Société Immobilière et Commerciale
de Banville v Dame Laroye (1967), Bull. soc., no. 239. Here, an employee L had been
126
dismissed without notice by her employer S for having been repeatedly late arriving
for work. The main issue was whether the employee’s conduct could be classified as a
‘serious fault’ justifying under the law a summary dismissal. In order to decide on this
issue, the judges selected and established the existence of a number of faits pertinents
under the following headings:
(i) the number of years of employment
(ii) the number of occasions when L was late for work during the relevant period
of time
(iii) examples of any other misconduct on the part of L during this period
(iv) instances of good behaviour on the part of L
(v) reasons claimed by L for being late, such as heavy traffic
(vi) the fact that some animosity already existed between L and S
(vii) the disturbance caused by L’s late arrival at work to the smooth running of the
business.
The judges then made a value judgement by allocating assessment coefficients to each
of the selected items above. In particular, in the lower court, the judges considered
that the traffic difficulties suffered by L were paramount, when compared with all the
other faits. Consequently, they refused to categorise L’s late arrival as a ‘serious fault’
and decided that the dismissal was unfair. However, the Court of Cassation took the
opposite view, categorising L’s conduct as a ‘serious fault’. The Court reached its deci-
sion by classifying the disturbance caused to the business by L’s late arrival as being of
greater significance than the traffic difficulties suffered by her. This example suggests
that qualification, as argued by Ivainer, is nothing more than an evaluative process
whereby facts are construed by judges with a view to supporting the legal argument
they have chosen to favour. Some have gone so far as to suggest that judges decide the
outcome of the case first and then make every effort to work back to a qualification
of facts which can justify their decision. This method of operating has been labelled
syllogisme ascendant or syllogisme régressif because, contrary to the standard syllo-
gism, the conclusion comes first, before the establishment of the major and minor
premises.
Apart from showing the limits of syllogistic logic, this discussion surrounding quali-
fication also demonstrates that it is misleading to assume, as is very often heard, that
facts do not matter in French judicial procedure; such an argument being supported
by the fact that they are usually only briefly stated in court decisions. On the contrary,
qualification is a prerequisite for the application of a rule of law to a case, in the absence
of which the syllogism cannot operate. The importance accorded to the facts is further
reflected in the Court of Cassation’s power to consider and review qualification, which
is categorised in French civil procedure as a question of law, not a question of fact. This
may be contrasted with the process of assessing the material nature of facts, which,
unlike qualification, is an issue of fact to be decided by the lower courts only.
127
T H E ROL E OF P E R SUA SION I N DE C I SION M A K I N G

A further limit to syllogistic logic in the judicial process is the role played by persua-
sion. The function of a judicial decision being primarily to resolve a legal dispute,
the court must, therefore, choose between two rival versions. It is this controversy
between the parties, supported on each side by arguments aimed at convincing the
judge, that will finally determine the court’s reasons for its decision. The syllogism
by its nature does not address this fundamental aspect of the judicial function. This
is so because it uses fixed premises and makes the conclusion derived from them
logically necessary and unquestionable. Indeed, with syllogistic reasoning it is not
possible to prove the pros and cons of a proposition unless the system is to be
incoherent and unworkable. The Belgian philosopher Perelman highlighted these
fundamental defects of the syllogism in his New Rhetoric theory. This theory of
legal reasoning is rooted in the old Greek tradition of rhetoric and dialectic which
emphasises the non-compelling nature of the arguments used to support a thesis. Its
central idea is that it is in relation to an audience that these arguments are pursued.
According to Perelman, these arguments are never conclusive, as in a mathematical
system of reasoning illustrated by the judicial syllogism. They seek rather to per-
suade the audience that the reasons given are better than those advanced by the ad-
verse party. Applied in the legal context such a theory explains why, before a court,
it is possible to plead both for and against. For Perelman (1963: 101), ‘the judge who
takes a decision after hearing both parties does not behave like a machine, but like
a person whose power of evaluation, free but not arbitrary, is more often than not
decisive for the outcome of the argument’. Consequently, the decision of the judge
reveals a preference for one of the theses presented by the parties. In order to make
it work, the judge will so construe the facts in such a way as to support the legal ar-
gument he has chosen to favour. This further demonstrates that the judicial process
does not rest on the syllogism alone.
Chapter References
and Further Reading
Ancel, J. P., ‘La Rédaction de la Décision de Dewey, J., ‘Logical Method and Law’, Cornell
Justice en France’, Revue Internationale de Law Quarterly, 1924, Vol. 10, 17–27.
Droit Comparé, 1998, Vol. 3, 840–52. Ghestin, J., and Goubeaux, G., Traité de
Conte, C., ‘From Only the “Bottom- Up”? Droit Civil: Introduction Générale, 3rd edn,
Legitimate Forms of Judicial Reasoning Paris: LGDJ, 2006.
in Private Law’, Oxf. J. Leg. Stud., 2015, Ivainer, T., ‘L’interprétation des Faits en
35(1), 1–30. Droit’, JCP 1986, I, 3235.
Cooper, T. M., The Common and the Civil MacCormick, D. N., Legal Reasoning and
Law’, Harvard Law Review, 1950, Vol. 63, Legal Theory, Oxford: Clarendon Press,
468–75. 1978.
128
MacCormick, D. N., and Summers, R. S., Samuel, G., ‘The Impact of European
Interpreting Statutes: A Comparative Study, Integration on Private Law’, Legal Studies,
Aldershot: Dartmouth Publishing, 1991, Vol. 18, no. 2, 1998, 167.
461–510. Sinclair, K., ‘Legal Reasoning: in Search of an
Perelman, C., The Idea of Justice and the Adequate Theory of Argument’, California
Problem of Argument, Routledge and Kegan Law Review, 1971, Vol. 59, pp. 821–58.
Paul, 1963. Villey, M., Seize Essais de Philosophie du
Perelman, C., Logique Juridique-Nouvelle Droit, Paris: Dalloz, 1969.
Rhétorique, 3rd edn, Paris: Dalloz, 1999. Zweigert, K., and Kötz H., An Introduction
Posner, R., ‘Legal Reasoning From the Top to Comparative Law, 3rd edn, Oxford:
Down and From the Bottom Up’ (1992) 59 Oxford University Press, 1998.
U. Chi. L. Rev. 433.
129
8
JUDICIAL ST YLE
Les hommes de loi aiment à enserrer leur écriture dans le carcan des attendus, sinon des
considérants, tout comme ils se drapent, avec dignité, dans leur ample robe noire.
G. Almairac, ‘À Temps Nouveaux, Formes Nouvelles’.
Part I of this book has already dealt with the style and techniques of legislative drafting
in French law. This chapter is concerned only with the form, structure, and language of
French judicial decisions, as well as with the style of justification characteristic of the
French judiciary. While lawyers from other jurisdictions often praise French statutes
and code provisions for their absence of complexity and their clear language, they
tend to be more critical about the manner in which judicial decisions are written and
expressed in France. In this respect, the following list of adjectives, used repeatedly in
legal writing to describe French judicial opinions, is indicative of the way French judi-
cial style is usually perceived by foreign observers:
Peculiar
Terse
Cryptic
Monolithic
Laconic
Highly technical
Formalistic
Spartan
Brief
Depersonalised
Assertive
Legalistic.
For those not used to French court decisions, some of their stylistic features are
striking. French judgments, especially those of the highest courts, apart from being
remarkably brief, have a peculiar logical and grammatical construction. The lan-
guage employed is highly technical and is chosen meticulously. They do not contain
any kind of policy or interpretative discussion. In spite of being handed down by a
college of judges, no provision is made for dissenting opinions. A number of French
jurists have traditionally regarded these qualities as virtues, not as defects. In a
celebrated and authoritative work on the style of French judgments, Judge P. Mimin
130
130 Judicial Style
(1978) commends the forms traditionally associated with the French judicial style
for their elegance and what, according to him, has become ‘a style full of prestige’.
Working through a series of dos and don’ts, Mimin encourages judges to be con-
cise, clear, and to stick to the traditional single-sentence grammatical structure of
French judgments. ‘Just as at the Sorbonne’, he says, ‘Law Courts must ensure that
grammar is respected in judicial decisions’. These words earn Mimin the honour of
being compared with the famous French 17th century grammarian Vaugelas (1585–
1650) who, in his Remarques sur la Langue Française (1647), advises his readers on
the bon usage of French grammar and language. In his book, Mimin also castigates,
sometimes vehemently, judges’ attempts at inserting into their decisions policy
arguments, personal views, alternative approaches, or what he calls ‘humanitarian
nonsense’.
However, a number of French scholars, judges, and practitioners have for long
distanced themselves from Mimin’s views, voicing concern about the traditional forms
and style of expression in French judgments. It has been argued that, since judicial
opinions are addressed today to a broader audience than before—including not only
the litigants themselves but also the public at large, the media, and foreign courts—
they should be written and shaped in a more accessible way and should give more de-
tail about the judges’ reasons for their decisions. It has further been added that in the
context of the globalisation of law, access to judicial decisions has become a key issue
with regard to strengthening cross-border judicial co-operation and reinforcing of the
international influence of French law.
The drafting and structure of judicial decisions were first formally addressed in
1973 with the setting up of a Commission de Modernisation du Langage Judiciaire.
This Commission issued a number of recommendations, examined later on in this
chapter, which were taken up again in two 1977 ministerial circulaires addressed
to the courts and had a considerable impact on the presentation of lower court
judgments and on judicial vocabulary. However, as regards the lack of elaborate and
substantive judicial justification, not much had been done until recently to remedy
the paucity of detail in French opinions. This was attributed to political and insti-
tutional factors which had been decisive in the attitudes that the French have taken
towards law and the judicial function. These factors, examined earlier in this book,
have contributed not only to shaping the mode of reasoning adopted by French
judges, but also to defining the manner in which judges justify their decisions.
However, since 2012, following long-standing judicial inertia in judgment-writing,
the Court of Cassation and the Conseil d’État have been exploring new ways to jus-
tify their decisions.
The aim of the present chapter is, first, to familiarise readers with the manner in
which French judicial decisions are currently drafted and structured. In these respects,
it will examine to what extent French courts have followed the recommendations of
the 1973 Commission de Modernisation du Langage Judiciaire. A special emphasis
has been placed here on the terminology used in judgments to which the first part of
the chapter is devoted. At this stage, the reader’s attention will be drawn to the main
13
Terminology 131
areas of difficulty with respect to the meaning of some of the most common tech-
nical terms and expressions used in French judgments, including Latin words and
phrases still in common use. Then, the second part of the chapter will explain and
illustrate the basic form and structure of a typical French judgment. The final part
deals with the principal characteristics of the French judicial style of justification,
and more particularly, the absence of policy arguments and of dissenting opinion.
New perspectives on judgment-writing in light of current proposals for reform will
conclude the chapter.
T E R M I N OL O G Y
As with every legal system, the jargon employed in French judicial decisions
confronts the uninitiated person with a real difficulty. Law is a kind of ‘foreign’
language and to be part of and communicate within the community of lawyers
demands the correct use of their language. This difficulty is exacerbated in the
case of non-native French speaking law students and practitioners who, apart from
having to overcome the difficulty arising from legal terminology, may also have to
improve their linguistic competence in the everyday language. For these students
and lawyers, comprehension of judicial decisions, full of complex and often am-
biguous technical terms and expressions, is made even more difficult by the very
particular style of writing and the lack of any substantive discussion of arguments
in these texts.
The first sub-heading below will consider generally to what extent law dictionaries
provide a suitable source of aid in establishing the meaning of French technical words
and expressions found in judicial decisions. The process of ascribing a correct meaning
to a word, may, however, require more thought and evaluation than may be gained by
the simple act of looking up the meaning of a word in a dictionary. A more helpful way
of dealing with problems of meaning is to define specific areas of difficulty and propose
a number of possible answers. This will be considered under a second sub-heading.
The third sub-heading looks at the recommendations made by the 1973 Commission
de Modernisation du Langage Judiciaire in its attempt to make legal French more
‘jargon-free’.
U SI N G DIC T IONA R I E S
There are a few multilingual and bilingual technical dictionaries aimed at a non-
native French-speaking audience. However, these are not always reliable and must,
therefore, be used with caution. One reservation in using these dictionaries is
that as with any dictionary, they mostly offer a number of alternative translations,
which means that, unless users are familiar with their subject, they cannot choose
which one of these translations best fits the question in hand. Also, the authors
of these specialist dictionaries do not necessarily combine linguistic competence
132
132 Judicial Style
with the technical knowledge of all the different legal systems they are dealing
with. The result is that the translations offered are by no means always accurate
and error free.
Moreover, there is a more fundamental difficulty common to every system of law,
which is that there are legal terms that simply cannot be translated into another
language as this language has no exact equivalent concept or institution. For ex-
ample, the doctrine of consideration in English contract law has no exact equivalent
in French law and, although the word ‘consideration’ has a linguistic equivalent in
ordinary French, in the legal context it means a very different thing altogether and
cannot be translated directly into legal French. In similar fashion, the French legal
notion of erreur, in contract, cannot accurately be translated as ‘mistake’ in legal
English, even if this may, on the face of it, appear convenient. It is true that there is
some common ground between erreur and ‘mistake’ in that both refer to a defect of
consent, making contracts void both in French and in English law. However, they
are not identical concepts. Case law shows that erreur has a much wider and more
flexible meaning than ‘mistake’ and, consequently, would not provide an accurate
translation for this latter term, and vice versa. In fact, legal terms with no exact
equivalent in another language need to be explained at some length, an area in
which multilingual and bilingual legal dictionaries are lacking. Viewed from this
standpoint, monolingual law dictionaries are far more helpful because they provide
the definitions and explanations that are missing in the former ones (the most au-
thoritative and widely used French law dictionaries are Guillien and Vincent 2016–
17 and Cornu 2016).
DE F I N I N G A R E A S OF DI F F IC U LT Y
The scale of the difficulty that occurs when establishing the meaning of legal terms in
judicial decisions varies depending on the type of word involved. In this respect, legal
words can be classified into the three following main categories:
(a) Category A: words used in the legal language only
(b) Category B: words having an ordinary meaning and a legal meaning
(c) Category C: words in the legal language having more than one meaning.
Each category is now considered in turn.
Words used in legal language only

In this category are to be found a few technical terms which have entered into
common usage in everyday language and thus do not need to be explained at length.
This is the case for terms like contrat (contract), testament (will) or tribunal (court).
The vast majority of legal terms, however, require greater explanation and initiation
into their meaning. Here two major problems arise. One is the lack of synonyms, a
difficulty common to any technical language. Legal terms have a precise meaning
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Terminology 133
used to describe a particular concept or institution. Consequently, they cannot easily

be replaced; but if they were, this would lead only to approximation which, in a
subject like law, must be avoided. This is why the Commission de Modernisation du
Langage Judiciaire recommended in its report on judicial vocabulary that it was nei-
ther possible nor desirable to eliminate technical terms. Beginners, students in par-
ticular, are therefore advised to use these terms with their correct meanings as early
as possible. The second problem in connection with legal terms is that their meaning
can only be fully understood if apprentice lawyers are already familiar with the sub-
ject matter in hand. This presents them with a difficult situation of circularity: on
the one hand, they cannot fully understand the meaning of a technical term without
some experience of the subject, but, on the other hand, a good grasp of a subject
presupposes that the meanings of the relevant terms are known. Although the use
of a law dictionary may help here, nothing apart from the actual practice of law will
help overcome this difficulty. Notwithstanding the problem arising from the lack of
accessibility to their meaning, technical terms offer a significant advantage, namely
that of ‘time saving’. By way of illustration, the French legal term chirographaire
is used to describe an unsecured creditor. If this word were to be removed from
the legal language it would have to be replaced by the following full sentence: ‘le
créancier ordinaire dont la créance ne bénéficie d’aucune sûreté spéciale’. Thus, instead
of one word, twelve words would have to be employed in its place. Legal terms are,
therefore, concise ways of expressing what otherwise would require a lengthy ex-
planation each time they are used. Their absence would lead to impossibly long and
convoluted legal texts.
Words having an ordinary meaning and a legal meaning

This category of words constitutes a major area of confusion, especially when a word
of this kind is employed in a legal context, not in its legal meaning, but in its ordinary
meaning. This can happen with a term in common usage such as auteur which, in a
judicial decision, can be used, either in its ordinary meaning of writer, composer, or
painter or in its legal meaning which, depending on the context, may mean:
(a) the father or mother of a child (in family and tort law)
(b) a person who has transferred a right to another person (in contract or ownership)
(c) a perpetrator of a crime (in criminal law).
Treacherous words like auteur are correctly labelled in French faux-amis or ‘false
friends’, literally translated. Indeed, when presented with such a word the novice might
presume to be on familiar ground whereas technically, in fact, the word may have a
completely different meaning in context. Here, a close examination of the textual con-
text may assist in determining which of the ordinary or legal meanings is intended.
Dictionaries providing examples of the headword in use in actual sentences and
quotations to show applied usage are of particular value in this area, as they consider-
ably reduce the risk of error and consequent misuse.
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Words in the legal language with more than one meaning

A third level of difficulty arises from polysemy, meaning in this context the character-
istic of legal words having more than one meaning. A significant number of French legal
terms have many meanings and it is sometimes difficult, even for an experienced person,
to know which of these meanings is intended. In the simplest case legal terms may have
one general and one special meaning. For example, the word loi in its general meaning
refers to enacted rules as opposed to customary rules, whereas in its special meaning it
refers to parliamentary statute as opposed to governmental regulations. However, in the
most extreme case, there are terms which, apart from one or two general meanings, have
a multiplicity of specific meanings when used with an adjective or a noun complement.
A typical example is the term acte. In Cornu’s Vocabulaire Juridique, acte has three basic
meanings and 70 other different meanings when used with a noun or an adjective such
as, e.g., acte authentique (deed) or acte de commerce (commercial agreement). Ascribing
the correct meaning to such complex words may prove a difficult task, especially when
the adjective or noun complement is missing in the text. Alongside the problem of poly-
semy, there are two further difficulties that inexperienced users of legal French may
face. First, there is the frequent case of legal acts, persons, or situations having different
designations depending on the circumstances involved. For example, depending on
the court in which a case is heard, a judicial decision in France may be called either a
jugement (lower court), an arrêt (Court of Cassation, Conseil d’État, courts of appeal),
an ordonnance (non-collegial court), a décision (Conseil Constitutionnel) or a sentence
(industrial tribunal or private arbitration). The same applies to the party against whom
a court action is brought who is either a défendeur (lower court), an intimé (court of
appeal), a prévenu (criminal court for minor or less serious offences) or an accusé (Cour
d’Assises in cases of serious offences).
A second common source of difficulty which has practical significance for for-
eign lawyers is when a French legal term is similar or identical to a word in their
own language, but different in meaning. This occurs frequently with English and
French terms, very often leading to mistranslation. A classic illustration is the word
‘jurisprudence’, spelled the same in French and in English, but meaning something
totally different in both languages. In French, ‘jurisprudence’ refers to case law
whereas, in English, it refers to the philosophy of law. More difficult is the situation
where there is an overlap of meaning between two identical terms. This is the case
with the French word cour which, like the English word ‘court’, refers to a specific
court such as the Cour d’Appel, or the Cour de Cassation, but which, unlike English,
cannot be used to describe law courts in general. In the latter case, the precise trans-
lation in French of ‘law courts’ would be juridictions, not cours. The French word
juridiction is also a term that causes difficulty. Apart from referring to a law court
in general, it also means, as in English, the limits or territory within which any par-
ticular power may be exercised, or the actual power and right to exercise authority.
These particular examples show that similarities in words between languages rep-
resent a fearsome area of potential confusion and must be dealt with carefully by
those engaged in the study of more than one legal system.
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Terminology 135
L E G A L JA RG ON A N D AC C E S S TO J U D G M E N T S
The foregoing passages illustrate the principal changes brought up by the Commission
de Modernisation du Langage Judiciaire with a view of making judgment-writing
‘clearer, more modern and more accessible’. The Commission identified five main areas
needing improvements. These were:
(a) Latin phrases and maxims
(b) archaic forms of language and outdated phrases
(c) discourteous expressions
(d) useless or empty phrases
(e) ambiguous words.
In view of their ongoing relevance, each of these areas is now considered in turn,
using the examples and illustrations given by the Commission in its report as a basis
for proposed changes.
Latin phrases and maxims

The importance of Roman law as a source of French law is demonstrated by the
continuing and frequent use of Latin by French lawyers. From early times in French
legal history many rules or principles were formulated in Latin, very often in the form
of maxims. Latin maxims are usually conveniently referred to in judgments or schol-
arly works by quoting only the first two or three words. By way of example one may
take the rule infans conceptus pro nato habetur quoties de commodis ejus agitur. This
rule, which allows children to claim rights arising out of situations which took place
at a time when they were as yet unborn, is simply known as infans conceptus. Latin
phrases are also used in French law to describe a particular concept or situation. Thus
the de cujus refers to the deceased in succession law; the pretium doloris, in tort law, is
a particular category of damages for pain and suffering caused to the victim of an ac-
cident by physical injuries; res nullius, in property law, is an object without an owner.
As already mentioned, the use of Latin in law produces the advantage of allowing the for-
mulation of a well-known rule or concept in an abbreviated form. It also fills gaps in French
legal terminology. For example, in contract law, the words contrat and acte are both used
equally well to describe both the agreement and the written document. This linguistic am-
biguity leads to confusion, especially amongst students when asked to distinguish between
(a) the rules that make an agreement enforceable as a binding contract and (b) formal and
evidential requirements. To remedy this situation, for the agreement itself, French jurists
use the Latin equivalent negotium and for its written counterpart, the term instrumentum.
Despite these practical advantages for lawyers, the use of maxims or doctrines
dressed up in Latin do not make them readily comprehensible for those whose
benefit they are supposed to exist, that is to say, the parties in a case. This is why
the Commission de Modernisation du Langage Judiciaire recommended in its report
that Latin should no longer be used when writing judgments, as is the case already
with codes and other statutory instruments where Latin is avoided in the formulation
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of legal rules. As useful illustrations, the Commission gave a list of commonly used
Latin phrases and maxims, with their proposed translation, from which the following
examples are taken:
Accessorium sequitur principale L’accessoire suit le principal

(adjuncts to a principal thing are governed by the
same rules as those applying to the principal)
Actori incumbit probatio La preuve incombe au demandeur
(the burden of proof rests with the plaintiff)
Fraus omnia corrumpit La fraude vicie tout
(fraud invalidates everything)
Nulla poena sine lege Pas de peine sans loi
(no punishment without a pre-existing law)
Intuitu personae (in consideration of the person) En considération de la personne
However, despite the Commission’s recommendations, this attempt to translate

all Latin expressions into French has partly failed owing to jurists’ attachment to
expressions and maxims that have become part of the legal language in its original form.
Archaic forms of language and outdated phrases

In order to keep up with the development of the French language and with new termin-
ology, the Commission de Modernisation du Langage Judiciaire also proposed updating
the following outmoded expressions commonly used in past French judgments. Thus:
Le sieur X has been updated as M. X (abbreviated form for Monsieur X).
La dame Y as Mme Y (Madame Y).
La demoiselle Z as Mlle Z (Mademoiselle Z).
Also:
Il échet has become il échoit, il convient or il incombe (it is incumbent upon, it falls to
someone to do something).
Ouï M. X en son rapport has become après avoir entendu M. X dans son rapport (having
heard M. X, [the state prosecutor] in his report).
In the same vein, the Commission has advocated avoidance of the following outdated
terms also in constant use in court decisions: ledit (the said), le susdit (the aforesaid),
le susnommé (the above named), dont s’agit (in question), de céans (‘here’ or ‘this
one’). Courts have been eager to remove these obsolete terms from their decisions. In
this respect, the readers of French law reports will notice differences in language be-
tween decisions published before and after the 1973 Commission’s recommendations.
Discourteous expressions
Some may find it hard to believe that judges can ever be discourteous in their decisions.
However, it is under this heading that the Commission listed some expressions which,
with the passage of time, now sound, in the Commission’s words, ‘awkward or offensive,
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Form and Structure of Judgments 137
if not indeed traumatic’. This was the case with expressions describing the parties to a
case as le nommé X (the man named X), la fille Y (girl Y), or la femme Z (woman Z).
These have now been replaced with the more civilised M. X, Mlle Y or Mme Z which,
since 1977, have been used in court decisions.
Useless or empty phrases

Following the Commission’s suggestions, a few vacuous phrases have been shortened in
order to facilitate the reading of decisions by non-lawyers. For example: Ordonnons que
les pièces de la procédure seront transmises à M. le procureur de la République pour être
pour lui requis ce qu’il appartiendra has been replaced by the more accessible: ordonnons
la transmission des pièces de la procédure à M. le procureur de la République (request the
forwarding of the file to the public prosecutor). Similarly, dit que le jugement sortira
son plein et entier effet pour être exécuté selon ses forme et teneur has become: ordonne
l’exécution du jugement (the court orders the enforcement of its judgment).
Ambiguous words
Under this heading, the Commission has selected some frequently used legal terms,
whose meaning might not be immediately apparent to those coming across them in a
judgment. For example, calling the parties by the technical term describing the pos-
ition they hold in the case, i.e. défendeur or appelant, may not be very clear to them.
The Commission recommended that the parties should be called instead by their proper
names. Also, it recommended that ambiguous words such as louer (which in French
means both ‘to let’ and ‘to rent’), should be avoided and replaced by either donner à bail
(meaning ‘to let’) or prendre à bail (meaning ‘to rent’).
F OR M A N D ST RU C T U R E OF J U D G M E N T S
With respect to the form and structure of French judgments, Mimin (1978: 186) makes
a useful distinction between procedural, grammatical, and logical aspects. Only the first
two aspects will be considered in this chapter since the logical form and structure of judi-
cial decisions has already been dealt with under judicial reasoning in the previous chapter.
P RO C E DU R A L A SP E C T S
The procedural rules governing the form and content of French judgments are laid
down in arts 454 and 455 of the Code of Civil Procedure. First, all judgments must
specify the court in which the case is heard, the names of the judges, the date of the
judgment, the names and addresses of the parties involved, and the names of counsel
appearing in the case (art. 454). The judgment must also summarise the claims and
arguments of the parties concerned, followed by the reasons for the decision, called
motifs, and the actual ruling of the court, known as the dispositif (art. 455). The motifs
are a somewhat detailed statement of the reasons justifying the decision. As has been
seen earlier, motifs are set out in the text of the decision in a syllogistic form. The
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dispositif is the final clause of the decision in which the court states its position on the
points at issue. Res judicata applies, in principle, only to the dispositif, although it has
been extended by the courts to the motifs that necessarily support the dispositif. The
dispositif is usually easily identifiable as it is invariably prefaced in every judgment by
the expression Par ces motifs (on these grounds). Each point at issue decided upon in
the dispositif is called chef de la décision. The formal presentation of chefs de la décision
varies according to the nature of the court in which the case is heard. In civil and crim-
inal courts they consist of a series of short sentences, each prefaced by a verb in the
indicative form such as dit, juge que, déclare, condamne, reçoit en sa demande. Here are
some examples of dispositifs found in judgments published in law reports:
(i) in the Court of Cassation: ‘Par ces motifs, casse, renvoie devant la Cour d’Appel
de Paris’
(ii) in a criminal court: ‘Par ces motifs, déclare A. coupable des faits qui lui sont
reprochés; condamne A. à deux mois d’emprisonnement avec sursis’
(iii) in a court of appeal: ‘Par ces motifs, reçoit l’appel jugé régulier en la forme, réforme
le jugement déféré en toutes ses dispositions, prononce l’adoption de l’enfant S’.
In administrative courts, the dispositif consists of ‘articles’ similar in style to statute
or decree articles. Here are two illustrations:
(i) in Conseil d’État, 27 April 2009, Société Bouygues Télécom:

‘Décide:
Article 1er: l’intervention de la Société Free est admise.
Article 2: la requête de la Société Bouygues Télécom est rejetée.’
(ii) In Tribunal Administratif of Lille, 20 January 2009, Mme Assia Faci:
‘Décide:
Article 1er: l’arrêté du 26 Mars 2008 par lequel le préfet du Nord a refusé de
délivrer à Mme Faci un titre de séjour . . . est annulé.
Article 2: il est enjoint au Préfet du Nord de délivrer à Mme Faci un certificat
de résidence d’un an dans un délai d’un mois à compter de la notification du
présent jugement.’
The use of the article format in administrative courts can be explained by the fact
that administrative proceedings are mainly concerned with the annulment of decisions
made by administrative bodies which do not conform to the French principle of légalité
to which state and public bodies must comply. In giving their decisions in this way
the administrative courts emphasise the authority of their ruling by formulating and
presenting them in a quasi-legislative style.
G R A M M AT IC A L A SP E C T S
Grammatically, French judgments are cast in the form of a single sentence with one or
several main clauses and various subordinate clauses. Each of these clauses is prefaced
by the phrase attendu que. However, some courts of appeal, as well as the administra-
tive courts, use the phrase considérant que instead.
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Style of Justification 139
French Avocat Général Lindon (1968: 23) once praised the elegant perfection of the
attendu phrase in judicial decisions:
The phrase attendu que does not, in fact, constitute a rigid vice, but on the contrary a flexible
corset whose strictures are actually its main virtue. With respect to the judicial prose writer,
it plays a similar Alexandrine role (of rhyming metre) as in poetry. Just as the greatest poets
who, under the constraint of writing within a framework of twelve-foot rhyming verses, have
managed to achieve perfection in the expression of their thoughts and in the elegance of
their forms, so with judges, who must give reasons for their decisions in the form of attendus,
thereby succeeding in incorporating logic and order into the presentation of their ideas.
Despite this laudatory statement, the use of attendus has given rise to much criticism
amongst practitioners, scholars, and governmental bodies concerned with the need for
clarity in judicial language. It is in this context that the Commission de Modernisation
du Langage Judiciaire recommended in its report on the presentation of judgments
that all attendus should be removed from the part of the decision dealing with the
statement of facts including the statement of claim (referred to, for this purpose, as
‘the descriptive part’), to be only maintained in the part where the court expounds its
reasoning. According to the Commission, this new presentation would have the advan-
tage of making the decision more accessible to litigants, especially those acting alone
without the assistance of a lawyer, by distinguishing between what is claimed and what
is held. Indeed, the Commission pointed out that the systematic use of attendus had the
effect of blurring this fundamental distinction by giving the losing party the impres-
sion that the court accepted its claim, but nevertheless dismissed it. The Commission
further suggested breaking up the text of the decision with headings and sub-headings
in order to improve its clarity. Whilst the Court of Cassation has continued to struc-
ture its decisions according to the old model, since 1977 most of the lower courts
have opted for the presentation advocated by the Commission. Some courts have even
gone further by removing completely the use of attendus (or considérants) from their
judgments with a view to making them more user-friendly for laymen.
ST Y L E OF J U ST I F IC AT ION
This part of the chapter examines the manner in which French judges express the
grounds for their decisions. Among the civil law systems, France is said to be the
country where judges display the most cryptic and formalised style of justification in
their decisions. Judgments are usually very short. On average, the Court of Cassation
will deliver a thirty-line ruling, a lower court a single typewritten page. This constitutes
a marked difference from the much longer decisions of common law judges. As an il-
lustration, it took exactly thirty lines for the Court of Cassation, in Vilela v Weil (1997),
D. 1998, 111, to decide on the claim by a homosexual man that he was entitled to
succeed to a tenancy in the name of his deceased partner; whereas, by way of con-
trast, the House of Lords in England gave a lengthy judgment of forty-two pages on a
similar claim in Fitzpatrick v Sterling Housing Association Ltd [1999] WLR 1115–17.
Accounting for the brevity of French judicial decisions, it may be pointed out that,
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unlike common law judicial practice, policy arguments and dissenting opinions do not
form part of court decisions. These characteristics, held in common with the courts in
the majority of civil law systems, are examined below.
A B SE N C E OF P OL IC Y A RG UM E N T S
Preference for legal rather than policy arguments
French judges are known to reach their decisions relying only on ‘legal’ arguments
(arguments juridiques), as opposed to policy arguments (arguments d’opportunité).
Arguments juridiques means that they justify their decisions solely by showing how the
solution they have adopted fits within the prescriptions of the law, and this is the case
even when code provisions and principles do not provide a clear answer to the case
before them. Policy arguments are usually regarded in France as arguments falling
within the domain of the legislative arena. Indeed, according to the prevailing view, it
is rules of law that decide cases, policy being for the legislature. To what extent this is
actually true will be examined further below. Officially, however, policy arguments nat-
urally come into being in France only during the course of the parliamentary debates
surrounding the introduction of a new law. These arguments are usually formalised in
an exposé des motifs drafted by the proponents of a new bill with a view to its proposed
adoption by Parliament. Once the new law has been passed, exposés des motifs become
part of the travaux préparatoires and are usually published in the Journal Officiel.
The absence of policy arguments in French judicial decisions, not even accompanied,
as happens in Germany for example, by the detailed consideration of academic writings
or previous case law, has created a situation where it has been left to commentators to
ascertain the meaning of judicial decisions. French jurists have from there developed
a method of reading judicial decisions based partly on textual interpretation, but also
on legal, political, social, and economic theory. This hermeneutic approach to judicial
decisions is particularly reflected in the practice of written commentary on reported
cases given by academics or practitioners, as will be examined in the following chapter.
Absence of policy arguments: a cause for concern?

The lack of substantive justification in French judicial decisions was, at one time, the
subject of an academic debate between eminent French scholars and judges, a debate
which seems to be reviving today in a comparative perspective between the civil and
common law jurisdictions (Lasser 2009). In their thorough and influential study of
judicial argumentation in France, André Tunc, a distinguished scholar, and Adolphe
Touffait, a high-ranking judge, called for a more explicit justification of judicial
decisions, especially in the highest courts (Tunc and Touffait 1974). In support of their
view, Tunc and Touffait put forward the following two main arguments:
(a) it would make judicial decisions more accessible to the parties in a case and
would help jurists to better understand their meaning and appreciate their
implications
14
(b) it would clarify the meaning and scope of the statutory provisions, rules, and
principles established by the judges.
Tunc and Touffait additionally suggested that:
(c) the use of policy arguments—as well as the admission of dissenting opinions—
in French judgments would generally enhance the judicial function in France
(d) it would also allow the law to adapt to social realities and would promote law
reform.
Despite the strength of their arguments, Tunc and Touffait’s suggestions met with more
scepticism than enthusiasm. The questions raised will be addressed in the following
sub-headings.
Policy Arguments, Case Workload and Procedural Law

Against Tunc and Touffait’s suggestions, it has been argued, firstly, that there are a number
of inevitable practical and procedural constraints contributing to the lack of substantive
argument in French decisions, and in those of the Court of Cassation in particular. One of
these is a heavy caseload. The Court of Cassation is swamped with an increasing number
of cases referred to it each year, which means that if it wants to get through its workload it
cannot be too thorough in deciding legal issues and is even less able to evaluate the social
consequences of its decisions. In 2015, the Court of Cassation was presented with 28,232
new appeals (a number of them being fast-tracked by the steamlined procedure of ‘non-
admission’), whilst it ruled on 25,523 others. It is hardly surprising, therefore, that this
court has developed a speedy way of justifying its decisions, especially in a system where
each judgment has to be in written form. More generally, what contributes further to the
lack of lengthy justification in French judgments, is the fact that French judges must also
have regard to a certain number of strict rules of procedure when deciding cases. In par-
ticular, although it has to consider all the arguments put forward by the parties, a French
court cannot, on its own initiative, raise issues that would have the effect of modifying the
plaintiff ’s claim, either by awarding what was not demanded in the pleadings, or by going
beyond what was demanded. If this were to happen the decision would be characterised
as being ultra petita (art. 464 of the Code of Civil Procedure). Therefore, judges, in keeping
with what is claimed, considerably reduce the length of their judgments.
Policy arguments not entirely banned from the decision-making process

In response to the arguments of Tunc and Touffait, it has been further argued that policy
considerations are not completely banned from the practice of French courts, particu-
larly the lower courts. Courts of first instance and courts of appeal often overtly raise
social and institutional policy concerns based on public welfare, equity, or morality
when deciding cases. A well-known early example is Doerr v Keller (1855), D. 1856, 9,
where the owner of a property built a false chimney on his roof with the sole purpose
of depriving his neighbour of access to light. The Court of Appeal of Colmar ordered
the demolition of the chimney justifying its ruling as follows:
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Whereas though in principle the right of ownership is in a certain sense absolute and
entitles the owner to use and dispose of the thing owned, nevertheless the exercise of this
right, as of every other, must have as a constraint the satisfaction of a serious and legitimate
interest; and principles of morality and fairness call for a sanction in response to an action
performed out of malice, motivated by an evil passion, not justified by any personal advan-
tage, and causing serious damage to another.
This decision was based on the doctrine of abuse of right in the context of owner-
ship, a doctrine already mentioned (and further developed at Chapter 15) which
until now has had no statutory basis in French law and is a complete creation of the
courts. It appears clearly from the terms of the judgment that moral considerations and
arguments of fairness provide the basis for this doctrine whereby the right of owner-
ship should not be exercised maliciously with the sole intention of inflicting harm on
another. The doctrine of abuse of right has never been disregarded or overruled since
the case of Doerr and is still employed in court decisions. Another classic illustration
of policy arguments being contained in court judgments is the more recent famous
case Ville de Genève et Fondation Abegg v Consorts Margail (1984), D. 1985, 208, which
concerned wall paintings discovered in a church situated in the village of Casenoves
in Southern France. These paintings, after having been removed from the wall, were
misappropriated by an antique dealer who later sold them in part to the museum of
Geneva, and in part to a private Swiss charitable trust. The Court of Appeal had to
decide whether these paintings should be treated as immeubles par destination, a legal
construct whereby the movable adjuncts (here, the paintings) to an immovable prop-
erty (here, the church) are artificially considered as being component parts of that
property and thus governed by the same rules (on this notion of immeuble par destin-
ation, see further at Chapter 15). If this were so, then the return of the paintings would
have to be a question falling within the jurisdiction of the French courts. However,
one of the points at issue was that the relevant code provision, art. 524 of the Civil
Code, only provided under the heading immobilisation par destination for movable
things that are part of an agricultural, industrial, or commercial enterprise with no
mention of artistic works. Interpreting art. 524, the Court of Appeal ruled that this
provision should be extended to artistic items such as paintings, giving the following
justification:
The legal protection afforded to agricultural, industrial and, later on, commercial
enterprises through the concept of immeubles par destination is expressed in broad terms
with no exclusion and can therefore be extended to sites of historical or artistic value; legal
protection in this latter case is further justified in view of the fact that these sites have in-
creasingly become the objects of misappropriation and despoiling, if not outright plunder.
Although the Court of Cassation quashed the decision a few years later on the grounds
of misinterpretation of art. 524, it is important to note that the Court of Appeal, in
expounding the reasons for its decision in this case, went beyond a strict reliance on
rules and principles established by code provisions, invoking sentiments of national
cultural pride.
143
It is worth repeating that the above two illustrations come from the lower courts where
more time and textual space is usually spent on justification. Policy arguments are prac-
tically never found in Court of Cassation judgments. However, it may happen that the
highest court gives a hint as to the policy considerations behind its decisions, as in MlleX
v Société Transport Agglomération Elbeuvienne (1995), D. 1996, 69. In this case, a person
left in a vegetative state following an accident was nevertheless awarded damages for pain
and suffering on the grounds that being in a vegetative state did not preclude ‘any human
being’ from the existing right to obtain full compensation, including damages for pain
and suffering. The use of the words ‘human being’ in the text of its decision suggests that
the Court of Cassation gave consideration to the basic fundamental rights of individuals
and the treatment they should be accorded, thus not restricting itself, as may have been
expected, to its usual legalistic approach in assessing loss. A further, more recent illustra-
tion of policy argument-based decision-making by the Court of Cassation is Castorama
cited in Chapter 4 (under ‘Case Law and legislation’, ‘Subordination’).
Policy arguments and the judicial process within the Court of Cassation

In further disagreement with Tunc and Touffait’s argument, it has been pointed out
that the lack of explicit reference to policy in the Court of Cassation decisions did not
necessarily mean that the court does not consider the social or practical consequences
its decisions may have. Behind the facade of formal justification lies a ‘secret garden’
internal to the Court where judges confer with each other, freely expressing their
opinions about how they would resolve a case in the light of existing legal rules
and taking account of social factors. In fact, what the Court openly publishes when
delivering its judgments is only the ‘tip of the iceberg’ (Frank 1983 and Tricot 2004).
Indeed, the decisions produced by the Court of Cassation are only the end result of a
more complex process in which judges, after going through case documents and evi-
dence, take part in discussions consisting largely of case analysis and policy arguments.
This reviewing process is a necessary preliminary phase to the hearing and subsequent
deliberations in a case. It is outlined as follows, starting, first, with the appointment of
a conseiller rapporteur from amongst the panel of judges in charge of the case.
The function of the conseiller rapporteur is (a) to review the lower court record,
(b) to identify the issues and, finally, (c) to recommend a solution. After explaining
the facts and the history of the case, the conseiller presents to the court a personal
opinion based mainly on a detailed analysis of relevant past decisions and also taking
into account policy considerations (on this report see further Chapter 12 on procedure
under the heading ‘The principle of contradiction’).
The second stage of the process involves the Avocat Général, a member of the ju-
diciary, already referred to in previous chapters, whose function in the Court of
Cassation is to submit an opinion from an independent standpoint representative of
the public interest and further ensuring that the law is construed and applied cor-
rectly. In the exercise of this function, the Avocat Général does not act as a member
of the panel hearing the appeal; his role is instead to ‘guide’ the court on the most ap-
propriate outcome for each individual case. Like the conseiller rapporteur, the Avocat
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144 Judicial Style
Général examines and analyses relevant judicial precedents, and, in the light of them,
makes recommendations on how the case should be decided in a document called
conclusions. In his conclusions the Avocat Général frequently presents a line of reasoning
based on social, economic, or institutional considerations; in this respect going further
than the conseiller rapporteur by not hesitating, when appropriate, to call for a change
in established precedent, thus preparing the ground for legislative reform. Unlike the
conseiller rapporteur, the Avocat Général, not being a member of the panel hearing the
appeal, feels freer to suggest such modifications to the court. By way of illustration are
the celebrated conclusions of Procureur Général Matter in Pélissier du Besset (1927),
D.P. 1928, 1, 25 and in Veuve Jand’heur v Les Galeries Belfortaises (1930) (the latter
cited in Chapter 4). As with the conseiller’s report, conclusions are essentially regarded
as internal Court of Cassation documents, which explains why they are not routinely
published in law reports and are, therefore, difficult to access. In this connection, the
interested reader will find the study on French judicial portraits by Lasser (1995) very
useful. In his well-researched essay, the author gives a detailed analysis of the content
and style of rapport and conclusions with typical published examples which, for this
purpose, have been translated into English.
The ultimate stage of the process is the conférence where judges meet and confer prior to
the hearing of the case. The conférence, unlike the two previous stages, has no statutory basis
but nevertheless constitutes a significant aspect of the day-to-day practice of the Court of
Cassation. It is there that, after reviewing the lower court decision, the written arguments
of the opposing parties, the report of the conseiller rapporteur, and the conclusions of the
Avocat Général, judges finalise the grounds for their decision relying mainly on the drafts
produced by the conseiller rapporteur. In the context thus described, the actual hearing
of the appeal is only a formality where all the participants in the case outline their views,
emphasising the particular points at issue, when appropriate. Following this, during the
deliberations that take place, each judge voices his or her opinion in turn, the issues are
summarised by the chairman of the panel and the voting proceeds.
From the foregoing it can be seen that the real issue in respect of policy arguments is
not whether these arguments are used in judicial decision-making, but rather whether
they should appear in the actual text of the judgment. This raises the wider issue, which
goes beyond the scope of this book, as to whether and to what extent in any particular
system of law, the judiciary should publicly espouse political opinions—a question
which has, for years, been debated in common law systems where policy arguments
frequently appear in judicial decisions.
A B SE N C E OF DI S SE N T I N G OP I N ION S
Another particularity of French judicial decisions, held in common with other civil law
systems, is that dissenting opinions do not form part of the published decision of the
court. The absence of dissenting opinions in French judgments is a direct consequence
of the collegial form of the courts. Collegiality is a central feature of the French court
system and still remains as such despite several unsuccessful attempts at replacing col-
legiate courts by single judge courts, especially at first instance level (on collegiality,
145
see further at Chapter 12). Collegiality means two things: (1) unless otherwise stated,
cases are tried by a group of at least three judges; (2) the judgment pronounced is im-
pliedly the ‘judgment of the court’, not the opinion of each individual judge. As a con-
sequence, the names of the judges who heard the case do not appear in the text of the
judgment, but are mentioned only on the front page under the heading ‘composition
du tribunal/de la cour’. If the judgment is published in a law report, judges’ names are
usually written in small type following the decision. Absence of dissenting opinion is
further accounted for by the fact that court deliberations are kept secret and the results
of the voting in a court, including any dissent, are never made public. This contrasts
sharply with the common law tradition of judges stating their individual opinion in
open court. The French tradition of secrecy has its origin in a series of royal ordinances
issued in the reigns of Philippe VI and Charles VII. The rule of secrecy was abandoned
shortly after the 1789 Revolution when public deliberations were prescribed, first for
criminal trials, then for all court proceedings. Secrecy was reintroduced in 1795, since
when the tradition has remained unbroken. It now has a statutory basis in art. 448 of
the Code of Civil Procedure and art. 355 of the Code of Criminal Procedure (Cour
d’Assises). The rule of secrecy is meticulously enforced by the Court of Cassation in
that it ensures that only the judges who have heard the case attend the deliberations,
excluding from the room any other members of the court, in particular the clerk of the
court (in French, the greffier). The rule of secrecy, in so far as it does not allow the ex-
pression of dissent in judicial decisions, is however not free from criticism. Indeed, the
publication of dissenting opinion may present advantages, amongst which are:
(i) Dissenting opinion provides arguments that may lead subsequent judges to
take the view that the precedent should be modified or overruled. As Justice
Cardozo claimed in one of his 1925 Yale Lectures on Law and Literature: ‘the
dissenter speaks to the future’.
(ii) It prevents a false formal unanimity amongst judges at the expense of strong
conflicting views.
(iii) It forces judges to take their responsibilities seriously and justify the position they
are adopting to their colleagues, to the parties in the case, and to the public at large.
(iv) It forces judges to prove their worth by giving them the opportunity to show
their independence by dissenting.
(v) It allows a public control of the courts, which is otherwise weakened if dissenting
opinions are hidden.
(vi) The publication of dissenting opinion speaks to liberal democratic values, as it
allows people to consider both sides of the story.
However, despite these considerable advantages, absence of published dissenting
opinions has been justified in civil law countries by four main arguments:
(i) Dissent detracts from the force of the judgment. Indeed, the appearance of
dissent in the decision may undermine the court’s authority, whereas its ab-
sence suggests that the decision has been taken unanimously.
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146 Judicial Style
(ii) In the same vein, dissent further weakens the legitimacy of the courts because
the decision is perceived not as an expression of legal truth, but as the mere pri-
vate opinion of the majority of the court.
(iii) Moreover, when a decision is given by a group of judges on behalf of the court it
has the advantage of preserving the anonymity of the votes. In this way, judges
do not become easy targets for criticism and are not left open to the personal
resentment of any of the parties in a case.
(iv) Finally, published dissent may be viewed as being pointless since, in any case,
it can be easily deduced from the arguments developed by counsel, which are
usually outlined in the judgment. In the context of the French legal system,
opposing arguments may also be found in the rapport of the conseiller rappor-
teur and in the conclusions of the Avocat Général (see above).
A further point to bear in mind is that the right of judges to express individual opinions
does not necessarily clarify the sense of a judicial decision. In his thorough analysis of
decisions of the then House of Lords, Professor Jolowicz (1979) noted that a multipli-
city of speeches by judges may lead to uncertainty. Indeed, even when the majority
of the Supreme Court agrees on the solution to be adopted, the formulation of this
agreement in the format of individual judgments creates uncertainty as to what extent
judges have also agreed on the reasoning and principles leading to this solution. In a
system of binding precedent such as England this uncertainty may lead to what has
been called a ‘failure of judicial technique’ (Cross and Harris 1991: 93), because in such
circumstances the principle on which the Supreme Court has acted is unascertainable.
The apparent absence in English law of any legal requirement, as in French law, for
formal deliberations preceding voting adds to this lack of clarification. Deliberations
contribute to clarifying issues in two ways. First, they throw light on issues which
might not have been foreseen by one of the members of the panel. Secondly, they allow
judges to better appreciate in advance of decision taking to what extent they agree or
disagree on the points at issue. A third beneficial effect of deliberations, also worthy of
mention, is that they make decision-making more impartial. Impartiality can be better
achieved through prior deliberations because they allow judges to check up on each
other, thus putting a brake on reactions based on social and intellectual backgrounds
and values which are likely to give rise to biased views.
C ON C LU SION S —N E W P E R SP E C T I V E S
ON J U D G M E N T-W R I T I N G
It has already been mentioned that under French procedural law (art. 455 Code of
Civil Procedure), French judges must give reasons for their decisions. It has been seen
that this obligation has been carried out in a way that is not satisfactory with regard
to accessibility of court decisions. However, when the French style of justification was
challenged in the European Court of Human Rights under the right to a fair trial, the
147
Conclusions—New Perspectives on Judgment-Writing 147
Strasbourg Court responded in the following terms: ‘Article 6-1 obliges courts to give
reasons for their decisions, but cannot be understood as requiring a detailed answer
to every argument’ (Brunet-Lecomte and Lyon Mag v France no. 17265 para. 62, ECHR
2010). Yet, despite the European Court’s sympathetic approach to the French style of
justification, in 2012 domestic proposals for changes began to emerge in the two French
supreme courts. Thus, in April 2012, the Conseil d’État established a working group
which eventually submitted 18 proposals, including giving-up the single-sentence type
of judgment, as well as removing the phrase ‘considérant que’ from the body text of the
decision. The report was based on a comprehensive comparative study covering several
European countries such as Germany, Belgium, Spain, Italy, and the United Kingdom,
as well as the United States and Brazil. Foreign judgments were compared according
to an analysis grid which highlighted the functions fulfilled by each of the component
parts of a judgment in the jurisdiction under scrutiny. This study was supplemented
by several interviews with foreign judges, aimed at assessing the specificities of each
national system’s judicial style.
As far as the Court of Cassation is concerned, in recent years, access to judgments
has been greatly improved by the use of explanatory notes and press releases (all to
be found on the website of the Court of Cassation), where key issues are explained.
Further, in 2014, a commitee appointed by the head of the Court issued a number of
recommendations with a view to making the decisions of the Court even more access-
ible. These recommendations (in particular Recommendations 28 to 40) formed part
of a general report entitled ‘Reflection on the reform of the Court of Cassation’, and
submitted to the head of the Court in April 2017. The committee suggested, inter alia,
breaking down the text of the judgment into paragraphs with the use of headings as in
the following template:
I.—Faits et procédure (statement of facts and procedure)
II.—Moyens du pourvoi (grounds for appeal)
III.—Motifs de l’arrêt (reasons for the decisions)
IV.—Dispositif (ruling)
As with the Conseil d’État, the Court of Cassation’s Report advocates giving up ‘attendu
que’ in the Court’s judgments. More importantly, the report promotes a far greater
justification in judgments (motivation enrichie), especially in circumstances where
the Court overrules its previous case law or deals with novel issues. The report fur-
ther recommends that precedents may be cited in the text of the judgment, thereby
departing from a long tradition of no citation of precedents in court judgments under
art. 5 of the Civil Code (see Chapter 4, under sub-heading ‘No doctrine of stare de-
cisis’). More generally, the report calls for wider dissemination of the most important
decisions of the Court with, if necessary, a translation into English of the judgment
itself.
However, sceptics argue that unless there is a decrease in the backlog of the su-
preme courts, it will be very difficult to fully implement the above- mentioned
recommendations on judicial style. The daily experience of the supreme courts
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148 Judicial Style
demonstrates that time for good writing and a polished style is strictly limited. Another
consideration that needs to be taken into account is the fact that lawyers in France
and across jurisdictions do not necessarily agree about what makes a good judgment.
Notwithstanding these reservations, there is still a strong argument for French judicial
writing to be atuned to the modern understanding of the judges’ duty to give reasons.
In today’s democratic societies, power and authority are not sufficient to legitimise ju-
dicial decisions and new requirements of legal certainty and transparency do not get
on well with the current opacity of French judgments.
Chapter References
and Further Reading
Cornu, G., Vocabulaire Juridique, 11th edn, Lindon, R., Le Style et l’Eloquence Judiciaire,
Paris: PUF, 2016. Paris: Albin Michel, 1968.
Cross, R., and Harris, J. W., Precedent in Lindon, R., ‘La Motivation des Arrêts de la
English Law, 4th edn, Oxford: Clarendon Cour de Cassation’, JCP 1975, I, 2681.
Press, 1991. Mimin, P., Le Style des Jugements, 4th edn,
Frank, E., ‘L’Élaboration des Décisions de la Paris: Librairies Techniques, 1978.
Cour de Cassation ou la Partie Immergée Nadelman, K. H., ‘The Judicial Dissent’,
de l’Iceberg’, D. 1983, Chr. 119. American Journal of Comparative Law,
Goutal, J. L., ‘Characteristics of Judicial 1959, Vol. 8, 415–32.
Style, in France, Britain and in the USA’, Rudden, B., ‘Courts and Codes in England,
American Journal of Comparative Law, France and Soviet Russia’, Tulane Law
1976, Vol. 24, 43–72. Review, 1974, Vol. 48, 1010–28.
Guillien, R., and Vincent, J., Lexique des Touffait, A., and Mallet, L., ‘La Mort des
Termes Juridiques, 24th edn, Paris: Dalloz, Attendus’, D. 1968, Chr. 123.
2016–17. Tricot, D., ‘L’Élaboration d’un Arrêt de la
Jolowicz, J. A., ‘Les Décisions de la Chambres Cour de Cassation’, JCP, 2004, I, 108.
des Lords’, Revue Internationale de Droit Tunc, A., and Touffait, A., ‘Pour une
Comparé, 1979, Vol. 31, 521–37. Motivation plus Explicite des Décisions de
Lasser, M., ‘Judicial (Self-)Portraits: Judicial Justice, notamment de celles de la Cour
Discourse in the French Legal System’, Yale de Cassation’, Revue Trimestrielle de Droit
Law Journal, 1995, Vol. 104, 1325–410. Civil, 1974, 487–508.
Lasser, M., Judicial Deliberations: a Comparative Welamson, L., ‘La Motivation des Décisions des
Analysis of Transparency and Legitimacy, Cours Judiciaires Suprêmes’, Revue Internat
Oxford University Press, 2009. ionale de Droit Comparé, 1979, Vol. 31, 509–19.
149
9
CASE NOTES
The analytical note is a great invention. It is hard to imagine what French law would be
without it.
J. P. Dawson, The Oracles of the Law.
The part of this book describing the method employed by French courts when
deciding cases cannot be concluded without saying a few words about the import-
ance of case notes as an aid to interpreting and evaluating judicial decisions in France.
It has been stated earlier (at Chapters 7 and 8) that the lack of sufficient justification
in French judgments resulted in the need for the commentaries on cases written by
French scholars. These commentaries, known as notes d’arrêts, started to appear in
law reports during the 19th century and today have become one of the most charac-
teristic and noteworthy elements of French legal writing. This significance of notes
d’arrêts can, in particular, be observed in the way that law is taught in French law
schools, where reading and analysing cases involves equally the reported judgment
and the note which immediately follows it. In fact, it can be said that the judgment,
once published in a law report, forms a single entity with the note that follows it, and
from which it becomes inseparable. The significance of case notes, the form they take,
and the functions they perform, needs to be further examined here. However, in order
to understand fully how French legal scholars were able to accomplish their task of
clarifying court decisions, one has to be aware of the status and role assigned to aca-
demic writing—referred to as doctrine—in France.
S TAT U S A N D ROL E OF AC A DE M IC W R I T I N G
G E N E R A L P OI N T S
The influence French legal writers have exerted on the development of French law is
widely recognised. The drafters of the Civil Code in 1804 were largely inspired by the
systematic writings of such authors as Domat and Pothier. Later, the writings of Aubry
and Rau, Capitant, Ripert and Josserand had a considerable impact on the case law
of the first part of the 20th century. In the 1960s, Carbonnier, a renowned scholar,
was the main architect of contemporary family law reforms. Today, although academic
writings are not a source of law and are generally not cited in court cases or in court
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150 Case Notes
decisions, they are still used by judges and counsel when preparing for court hearings
and judgments. The high esteem in which academic lawyers have traditionally been
held in the French legal system contrasts sharply with the long-existing tradition of
ignoring the contribution of academic legal writing in a country like England. This
difference of attitude towards academic lawyers can be accounted for by the fact that
law in England became a proper subject for study much later than in the other European
jurisdictions (see Chapter 10). Also, the fact that judicial decisions in France are only
a secondary source of law has made it easier for legal scholars to rise to the status that
they hold today without fear of being accused of overshadowing the judiciary.
Commenting on academic writing in France, Tunc (1976: 470–1) described its role
as being twofold:
Doctrinal writings comment on statutory law and judicial decisions in order to clarify
them, to give them a systematic view without which there would be no law. Of equal im-
portance, however, is the purpose of guiding the courts and, more broadly, the lawgivers.
In fact, doctrine could easily assign to itself a prophetic function (emphasis added).
This dual aspect to the role of doctrine— clarification and guidance— is clearly
reflected in the current working method of French scholars and in the ways in which
they approach legal questions. They do not merely study the law as it is, but feel that it
is also part of their function to consider the law as it should be. Both of these aspects
are commonly referred to in the two Latin phrases de lege lata (the law as it is) and de
lege ferenda (the law as it should be) as illustrated below. As will be further shown, this
twofold role of doctrine can be traced back to two benchmark periods in the history
of legal literature, periods of equal importance in the shaping of French doctrine: the
period of doctrine classique and the period of doctrine moderne.
DE L E G E L ATA , DE L E G E F E R E N DA
Foreign lawyers consulting French law treatises, student textbooks, and articles
published in legal journals, or attending lectures delivered by French law teachers will
notice they all start by stating and expounding in a systematic way the law as found in
statutes and codes and as interpreted by the courts. They then proceed to highlight the
deficiencies or gaps in the law, proposing remedies and solutions both for the legisla-
ture and for the courts. Two typical illustrations of this approach may be found in two
articles published ten years apart from each other by Recueil Dalloz:
(i) Written by Professor R. Cabrillac (D. 1999, Chr. 71), the first article concerns the
then proposed French legislation on registered domestic partnerships (later to
become Law of 15 November 1999). In his thorough study, the author examines
the question of property rights of homosexual partners, addressed in the then
proposed law, from two points of view:
(a) First, the author reviews the statutory and case law then currently in force
on this issue (introduced by the author in his text by the phrase ‘de lege
lata’) showing that, in particular circumstances, judges may be willing
15
Status and Role of Academic Writing 151
to extend, for example, the inheritance of a tenancy to same-sex couples

upon the former tenant’s death.
(b) Then Professor Cabrillac considers the possible changes to be made in
the law in order to enhance the property rights of homosexual partners
(prefaced this time in his text by the phrase ‘de lege ferenda’). Not being
in favour of an overarching reform, he instead advocates the adoption of
additional measures to relax the provisions of the current law in this area.
(ii)
The second illustration arises from an article by Professor A. Sériaux,
published in 2009 (D. 2009, Chr. 1215). Here the author comments on the new
proposals for a change of the law on the practice of surrogacy. To this effect,
Professor Sériaux explicitly divides his article into two parts, one entitled ‘de
lege lata’ where he examines and analyses the current legislation on surrogacy,
the other headed ‘de lege ferenda’ where he critically assesses the new Senate’s
proposals for reform, going beyond this assessment and recommending that
there may be scope for more ambitious provisions in this area of law.
D O C T R I N E C L AS S I QU E
The period of doctrine classique refers to the legal literature published in the course
of the 19th century. During that time French legal writers would spend most of
their time and effort in trying to clarify the body of rules emerging from the
newly enacted codes, paying little attention to judicial decisions. It was the then
prevailing postulate, based on a strong doctrine of separation of powers, that the
law-making function belonged exclusively to the legislature—and the consequent
censure on judges that would have followed any deviation from code or statutory
provisions—which, taken together, explain why legal writers in this period chose
to focus mainly on the study of enacted law. Under the influence of the Ecole de
l’Exégèse, exegesis became the favoured method for explaining and interpreting the
law. Exegetical method being a method characterised by a strict adherence to the
texts of the codes, no attempt would be made at that time to confront these texts
with practical realities. Legal scholarship would thus mainly consist of studying
the articles of the codes one by one, attempting to ascertain the intention of the
legislator and, where necessary, employing logical reasoning in order to clarify the
meaning of code provisions and to draw from their wording general principles that
the interpreter could extend later to similar situations. The Ecole de l’Exégèse was
to dominate legal thought in France until very late in the 19th century. We owe
to this school of thought several comprehensive commentaries on the Civil Code
written by leading law professors of the time such as Demolombre or Laurent,
and even by such high-ranking judges as Troplong. Exegetical method has not
completely disappeared from the working method of French jurists, as seen in
Chapter 3 on statutory interpretation. However, it has been supplemented by a
more contextual approach to legal rules, which has led to the development of case
notes in the period of doctrine moderne.
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152 Case Notes
D O C T R I N E MODE R N E
It was under the influence of authors such as Saleilles and Gény (on the latter, see
Chapter 3), who pointed out the defects of the exegetical method in their writings, that
scholarly works of the 20th century showed more interest in sources other than codes
and statutes, and judicial decisions in particular. Also, the fact that a considerable time
span had elapsed since the codes were enacted, and the significant economic changes
that France had undergone by the end of the 19th century, prompted the emergence of
a doctrine which would value judicial practice as much as legislation. As early as 1830,
law reports, which included the famous Sirey and Dalloz series, had already started to in-
sert occasional annotations to reported cases. By the 1850s these annotations had become
more frequent and expansive. Labbé was the first scholar to initiate a new genre in legal
writing, the note d’arrêt. His famous notes were published between 1859 and 1894 in the
Sirey law reports. With more attention paid to contemporary needs in society, legal writers
would use the newly developed case notes as a forum for expressing their views about the
policies of the legislature and the courts, taking into account not only social and economic
factors, but also employing the teachings of history, sociology, and comparative law to this
end. Thus, the ‘prophetic function’ of doctrine referred to earlier by Tunc, actually took
root in these case notes and quickly grew, expanding to the whole field of legal writing.
Since the time of Labbé, the note d’arrêt has developed into what has become a specific
genre of legal literature in which writers, called for this purpose the arrêtistes, have each
contributed to this genre, yet still creating their own individual distinctive style. Amongst
the most celebrated arrêtistes, who have devoted much time and effort to the methodical
analysis of reported cases, is René Savatier who wrote hundreds of notes in the Recueil
Dalloz between 1920 and 1979 on private law topics ranging from contract and torts to
family and medical law. In the area of public law, starting in 1889, the date of the famous
Cadot decision, and for the following 40 years, Maurice Hauriou annotated all the leading
cases which have contributed to the development of administrative law in France. Today
the notes d’arrêts are written not only by law professors but also by judges and practitioners.
It has also become more ‘democratic’ within the academic profession, in the sense that
writing case notes is not exclusively reserved for the most distinguished academic lawyers.
Younger scholars have also tested their skills in this popular exercise of legal writing.
Although case notes are not peculiar to France, since similar notes are regularly
published in the law reports of other jurisdictions, the French notes d’arrêts have a much
greater impact on legal research, teaching and the practice of French law than elsewhere.
This is due to the particular form they take, and also to the specific functions they perform.
F OR M A N D F U N C T ION S OF N OT E S D’A R R Ê T S
F OR M OF N OT E S D’A R R Ê T S
Notes d’arrêts take the form of extended footnotes to reported cases in private law
reports. They are usually structured as traditional French essays in two parts, each
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Form and Functions of Notes D’arrêts 153
part being in turn divided into subparagraphs. This essay structure can be illustrated
by a note written by Professor C. Atias in the 2000 case of Le Collinet v Compagnie
d’assurances Rhin et Moselle (cited at Chapter 4 under ‘No doctrine of stare decisis’
at point (5)). Professor Atias’ commentary on the decision in this case adopted the
following structure:
I. La neutralité de la jurisprudence ou la jurisprudence sous la loi
A. Formation de la jurisprudence
B. Le corps de la jurisprudence
II. L’immunité de la jurisprudence ou la jurisprudence au-dessus de la loi
A. La ‘notion’ de jurisprudence
B. La portée de la jurisprudence.
A similar traditional structure is adopted by Professor M. Malaurie-Vignal in her
note following the Court of Cassation’s decision of 3 March 2009 (cited in Chapter 7,
‘Definition and illustration’, considering the judicial syllogism) on the issue of par-
ental rights in respect of the family name of a child. The case commentary takes the
following form:
I. Réflexion sur le nom
A. Nom de famille
B. Nom d’usage
II. Relation entre nom de famille et autorité parentale
A. Débat
B. Un autre regard.
Not all notes d’arrêts follow this strict model of presentation. In fact, notes are very
often shorter and less formal. This is to a great extent dependent on the importance
of the issues raised by the case, the format of the law report, and also on the style
adopted by the commentator. For example, J. Massip, a former judge at the Court
of Cassation and a once regular commentator on family law judicial decisions in
French law reports, used to adopt a very concise style with no apparent formal struc-
ture, without this in any way undermining the force of his analysis (see by way of
illustration his note under the decision given by the Court of Cassation in Mme X
v Y (1995), D. 1996, 111). On the other hand, certain notes, such as those written
by the well-known former arrêtiste René Savatier, are powerfully structured, all
arguments being developed gradually into paragraphs and subparagraphs (see, e.g.,
his note under Dame Walter v Dame Roque (1974), D. 1974, 629 concerning a pater-
nity suit brought by one of the children of Picasso following the death of the famous
painter). Whatever their stylistic features, notes d’arrêts are generally considered to
be pieces of academic writing, which make them as much a source of information as
a model of legal argument. This accounts for the heavy reliance placed on them by
law teachers, researchers, practitioners, and students in their day-to-day work. As we
will see below, their popularity is further accounted for by certain essential functions
they perform.
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154 Case Notes
F U N C T ION S OF N OT E S D’A R R ÊT S
These are principally two in number:
(a) clarifying the meaning of judicial decisions
(b) shaping precedent.
Clarification
Case notes clarify the meaning of judicial decisions in the sense that they look in detail
at the specific issues of the case and expand on the facts and the reasons for the decisions
(called the motifs, see Chapter 8), either expressed or unstated. Despite the lack of jus-
tification characteristic of French judgments, clarification is still feasible because case
annotators usually have access to the court’s file through a personal connection with,
or as a result of having worked closely with, one of the lawyers or judges involved in the
case. Notes d’arrêts also look at the language employed in judgments and help readers
to deduce, from the terms and expressions used by the courts, a number of particular,
and sometimes very important, conclusions. To take a simple example, when the Court
of Cassation states—as it very often does—in one of its judgments, ‘les juges du fond
ont pu décider que’ (the lower court could decide that), this does not mean merely, as
the word pu (could) suggests, that it was within the power of the lower court to decide
as it did; it indicates something further which adds an additional perspective—that
the lower court has decided rightly, in accordance with the law and that this is fully
approved by the Court of Cassation. Correctly interpreting the language used by the
courts is crucial when it comes to understanding the true import of a case. Voulet
(1970), at the time a judge in the Court of Cassation, on one occasion devoted a whole
study to this topic, which has, over the years, become a classic text for those seeking
a key for interpreting the Court of Cassation judgments. His study represents a good
complement to case notes when attempting to understand the true meaning and value
of judicial decisions.
Shaping precedent
According to Sauvel (1955), the arrêtistes ‘explain today’s case law and prepare
tomorrow’s case law’. Indeed, case annotators try to reconcile the particular out-
come of the case in hand with those of earlier cases and to show the true impact
of a given decision on future cases. They spot the inconsistencies or any incoher-
ence between cases. More generally, they critically assess the pros and cons of al-
ternative solutions, as well as the actual solution eventually adopted by the court.
Finally, where appropriate, they propose their own solutions. All these different
points of legal analysis have an influence on the continuing development of case
law. This ongoing dynamic relationship between academic writing and judicial
decisions in France can be better understood by taking account of the particular
historically defined status of the judiciary in France. It has been said in Chapter 4
that French judicial decisions are not considered binding as ‘authorities’ in the
15
Form and Functions of Notes D’arrêts 155
common law sense. Consequently, they do not enjoy the same prestige as judicial
decisions do in common law jurisdictions. It follows that French judges do not per-
ceive scholarly suggestions or even criticism as undermining the authority of their
decisions, and are therefore, it may be suggested, more willing than their common
law counterparts to consider them with an open mind. The fact that French judges,
as much as academics, annotate decisions given by their colleagues, is further evi-
dence of the fact that notes d’arrêts are not perceived by the judiciary as an ‘attack’ on
their manner of adjudicating cases, but are rather part of an ongoing constructive
exercise in the development of French case law. Indeed, more than a century ago,
Meynial (1904) in his thorough study on the arrêtistes, had already stressed how the
notes d’arrêts had become decisive in bridging the gap between L’Ecole, i.e. academic
theory, and Le Palais, i.e. judicial practice.
Chapter References
and Further Reading
Atias, C., ‘La Mission de la Doctrine du Centenaire, Vol. 1, Paris: Rousseau, 1904,
Universitaire en Droit Privé’, JCP 1980, 173–204.
I, 2999. Sauvel, V., ‘Histoires des Jugements Motivés’,
Carbonnier, J., ‘Notes sur les Notes d’Arrêts’, Rev. dr. publ. 1955, 5–53.
D. 1970, Chr. 137. Tunc, A., ‘Methodology of the Civil Law in
Jestaz, P., and jamin, C., La Doctrine, Paris: France’, Tulane Law Review, Vol. 50, 1976,
Dalloz, 2004. 459–73.
Meynial, E., ‘Les Recueils d’Arrêts et les Voulet, J., ‘L’Interprétation des Arrêts de la
Arrêtistes’, Le Code Civil 1804–1904: Livre Cour de Cassation’, JCP 1970, I, 2305.
156
10
LEGAL EDUCATION
Il y a un usage, des lois, des coutumes: où est le temps, et le temps assez long, que l’on emploie
à les digérer et à s’en instruire?
La Bruyère, Les Caractères.
The preceding chapters of this book have shown how the way law is made and applied
in France has been decisive in defining the nature of its legal system and in shaping the
mind of French jurists. This last chapter of Part II will now examine how legal educa-
tion uniquely contributes to this process by adding particular colour to the character
of the legal system. The link between legal education and the nature of a legal system
was emphasised by Dainow (1967: 428) in his study devoted to a comparison between
the civil law and the common law systems:
There is naturally a direct reciprocal influence between the nature of a legal system and
the pattern of legal education. The nature of the former promotes the method of the latter,
which in turn perpetuates the original character of the system. The programme of law
studies and the method of legal education establish and fix the fundamental understanding
and the mode of thought which condition the individual for his entire professional career.
It would appear from Dainow’s statement that there is no universal mode of legal
thinking, since this is dependent on the nature of the particular legal system being
considered—more specifically on the way lawyers in such a system have been taught to
think. This certainly has consequences for those students studying law on an exchange
programme, and for multinational firms whose lawyers may wish to practise in a jur-
isdiction in which they have not received their legal education. In both circumstances,
simply learning the rules will not be sufficient, for they will also have to adapt to
different expectations with respect to patterns of thought, and not fall back into their
own mode of thinking. This is particularly difficult because lawyers use particular
patterns of thought without necessarily being aware that, in doing so, their mindset
has been shaped out of their own legal culture and, more particularly, out of the envir-
onment in which they studied. In this respect, it is regrettable that comparative legal
studies on legal thinking and teaching method in both civil and common law systems
are lacking, whereas, from a global as well as a European perspective, they should ra-
ther be encouraged and developed. In European countries, the paucity of literature on
each other’s ways of thinking may have its roots in feelings of resentment shared by
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Cultural and Historical Context 157
many legal scholars on each side (civil and common law), feelings which, paradoxic-
ally, have been sharpened as they have been brought to the surface by the continuing
legal development and operation of the European Union. In this respect, the influ-
ence that the civil law tradition and mode of thinking have had on current European
institutions and law has been perceived, not unreasonably, by many common lawyers,
as a threat to their own legal tradition. In their turn, some civil lawyers take great pride
in their tradition of ‘learned law’, as opposed to a common law which, according to the
predominant view, does not display the level of rationality that they feel is achieved by
their own system.
A striking feature of French legal education is the high level of abstraction that
pervades the teaching. As will be shown in this chapter, the emphasis is on theoretical
rather than practical knowledge, to which a strong methodological component must
be added. Legal education in France is primarily aimed at providing a sound know-
ledge of general principles together with the development of a capacity to manipulate
abstract concepts and construct logical arguments. This emphasis on abstract concepts
and methodology associated with French legal education is historically based and has,
in part, been ascribed by legal historians to the dominant role played in the past by the
systematic study of Roman law in law schools. On the other side of the spectrum is the
English educational system, where a strongly organised and dominant legal profes-
sion, with its attendant specific needs and habits, has conditioned the teaching style of
law schools. The following first section heading further stresses the contrast between
the two systems, also showing how both jurisdictions have developed away from their
origins over the years with a consequent significant transformation of their system of
legal education. The second section will briefly examine the method of teaching used
in French law schools and the way in which it impacts on French lawyers’ approach
to law.
C U LT U R A L A N D H I STOR IC A L C ON T E X T
A French law teacher invited to teach in an English law school might be struck by the
students’ interest in the practical aspects of a given problem, their propensity to en-
gage in policy discussions, and the fact that, when a principle is set, they will always
question whether this principle is capable of effective application and, if so, in what
defining circumstances. French law students, in contrast, used as they are to thinking
of law in terms of principles rather than practice and procedure, might barely question
the effectiveness of the rules and principles they learn. Moreover, when asked to de-
velop an argument, they would rather tend to display a deductive mode of syllogistic
reasoning from given principles, similar to the syllogistic reasoning they have already
seen when instructed to read and analyse judicial decisions and scholarly articles in
their classes. It has been suggested that this fundamental difference of approach is the
consequence of two distinctive frames of mind. This point is examined next.
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T WO WAYS OF T H I N K I N G
It is commonplace to say that the French excel in the formulation of general ideas
and worship logic. Reason is their guide and beacon. Their taste for logic is such that,
in some circumstances, they would even disregard experience if it is in conflict with
and contradicts the rational system they have conceived and carefully constructed.
By contrast, the English are empiricist, being concerned primarily with acting rather
than understanding. As long as the results are satisfactory, it matters little that they
have been obtained in a way that reflects a partial or total absence of logic. They shrink
from systematisation and mistrust both generalisation and, above all, ideologies. They
practice the method of ‘wait and see’. They wait for problems to arise, and then solve
them, not according to what ‘logic’ would dictate but to what experience suggests,
circumstances permitting. Lord Macmillan (1938), in a masterly lecture delivered
at Oxford, contrasted these two ways of thinking by using the description, given by
the authors of a book on the Surrey landscape, of the two main countryside roads in
that county. Whereas, he said, the typical Surrey countryside road snaked down to
the plain, the Roman road cut across the countryside in a straight line. The difference
in shape between the two roads was accounted for, he added, by the fact that, whilst
the former had formed itself naturally, moving from one agglomeration to the next,
following the layout of the landscape, by contrast, the latter had been built up following
a plan established in advance. Transposed into a legal context, this figurative com-
parison is particularly revealing, not only of the distinctive mode of thought, but also,
by extension, of the form of legal system adopted respectively by each country. Thus,
the empiricist pragmatic case-by-case approach to legal problems, a reminder of the
Surrey road, is typical of the common law; the ability to establish in advance general
principles aimed at application to an infinity of cases, as with a planned Roman road,
has of necessity given rise to a system of codified law.
Resorting to a predetermined mindset, or national psychology, when accounting for
the differences that exist between common and civil law systems, may at first glance be
appealing, but it is not conclusively verifiable, since it rests on the questionable general
assumption that different people have an innately different cast of mind. French com-
parative lawyer J. Lambert (1961) asserted the view that the reason for the difference
between the two systems is not to be found in a quasi-biological predisposition but,
rather, in the methods of teaching law that each system has been applying over the
centuries. Without neglecting the role played by social and political factors in this re-
spect, Lambert’s main argument was that devotion to principles and to logic in one
case, to practice and experience in another, does not mirror a difference of mind, but
a difference of ‘task’. Indeed, from early on, French lawyers have been educated in law
schools by teachers who, though they may often also have been practitioners, have
nevertheless been compelled, by the nature of the didactic role conferred on them,
to organise their material and present the law in an orderly, methodical, and system-
atic manner. By contrast, English lawyers have traditionally been mainly trained in
the courtroom by a class of practitioners whose field of investigation and basis for
159
legal argument were previously applied court solutions. From this perspective, English
lawyers developed their own system of legal education independently of that provided
by the universities.
The relevance of teaching method to the mode of legal thinking can be illustrated
in the current experience of teaching law in England on courses which include one or
two years of studies in France. This shows that when, together with their English fellow
students, French students start their legal education in English law schools as is usually
the case, they find it as difficult as their English fellow students to adapt to the French
methods of teaching once they return to France in order to complete the French leg of
their course of studies. The observable fact that English students seem to struggle more
in France can be ascribed to the problem of language which their French counterparts
in turn suffered in the English part of their course of studies. Setting aside the language
difficulty common to both groups of students, there is nothing in the work produced
to indicate that these students find the law of their counterpart legal system more
alien to their mode of thought than their own. This appears to support Lambert’s ar-
gument that, of the two, it is the method of teaching that matters when accounting for
differences between the two systems, and not the national mind. The following analysis
briefly traces the historical factors, in this respect, that have contributed to making
French law ‘a teacher’s law’ and English law ‘a practitioner’s law’.
T E AC H E R’ S L AW V P R AC T I T ION E R’ S L AW:
A N H I STOR IC A L OU T L I N E
The study of Roman law in the law schools of medieval France
The landmark in the intellectual development of French jurists is the revival, at the
dawn of the 12th century, of the study of Roman law, based on the Emperor Justinian’s
compilation of Roman law, the Corpus Juris Civilis, in Northern Italy and Southern
France. In France, Roman law had been in force in the ‘pays de droit écrit’, the southern
part of the country, since about the end of the 11th century. It is to this early study of
Roman law in law schools, which arose out of the acceptance, in most Continental
countries, of Justinian’s Corpus Juris as authoritative, that Watson (1981: 32) refers to
when attributing the tradition of formal rationality to the civil law systems:
To sum up, when the Corpus Juris is treated as authoritative, Roman law, regarded as
being in force, is taught systematically; the rules of law, especially of substantive law, are
emphasized; local variations in law are minimized; the rules are not obscured by consid-
eration of the interest, financial or otherwise, of practitioners; and the law is set out inde-
pendently of the practical problems which occur in actual cases.
This description accurately reflects, to this day, the civil lawyer’s approach to law.
The earliest method of studying Justinian’s books, especially the Digest (a com-
pilation of the writings of the great Roman jurists), consisted of a literal examin-
ation of these texts by the scholars of the 12th and 13th centuries, the so-called
‘Glossators’. The Glossators, and this is the origin of their name, used to insert short
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notes or glosses, first between the lines, and then in the margins of the text being
studied, in their attempts to ascertain its meaning. The most famous members of
the Glossator school of thought were Irnerius (1055–1130), and later Accursius
(1184–1263); it is to the latter that we owe an impressive compilation of the work
of the Glossators. Mainly based at the Italian law schools of Bologna and Ravenna,
the most eminent Glossators, apart from their writings, used to lecture on their
work for students coming from all over Europe. Following them, in the later medi-
eval period, came the PostGlossators or Commentators, the most well known of
whom was the Italian Bartolus (1314–57). Glosses came to be more substantive
commentaries on Justinian’s Corpus Juris, all this with a view to adapting Roman
law principles and rules, as clarified by the Glossators, to the conditions and legal
environment of medieval life.
The Glossators and Commentators of the medieval period paved the way for those
scholars who, in France, as in Germany, carried forward in the following centuries the
systematic study of Roman law, drawing principles and developing concepts which
through to the present day have shaped the mindset of the civil lawyer. The work of
these scholars culminated in the systematic legal treatises of the 17th and 18th centuries,
which, like the series of treatises written by Pothier (1699–1772) in France, survived
the French Revolution to influence the content and structure of the Napoleonic codes,
and thus became the prelude to codification.
The Inns of Court as centres of legal education in England

Although Roman law was also studied in England at the time of the Glossators,
and has had some influence on the history and development of the common law,
especially through the influence generated by the works of Bracton, it has never
played an educational role in shaping the mode of thought of English lawyers. Legal
historians generally attribute this to the fact that the Corpus Juris was never ‘received’
in England in a way similar to that in which it was received on the Continent. The
main reasons put forward for this lack of a full acceptance of Roman law in England
were the early establishment of a common law throughout the country, and the early
existence of a centralised legal system and of a strong and active legal profession.
Unlike Continental lawyers whose techniques have been derived from a meticulous
analysis of the Roman texts, English lawyers have constructed their law and shaped
their collective mind principally on the basis of court cases. And whilst Continental
lawyers have, from early on, been educated at universities, English lawyers have
received their training at the Inns of Court which were the first centres of legal edu-
cation in England. It has been recorded that, even before organised legal education
began in the Inns of Court, young apprentices of the law, sitting in a ‘crib’, used
to spend their time observing practitioners arguing their cases in the courtroom.
From the middle of the 13th century until approximately 1553, student advocates
started taking notes in ‘Year Books’ during court cases. Despite being recorded in a
random manner, these Year Books later became a valuable source of information on
how the law was being made in the courts. In his History of English Law, Sir William
16
Holdsworth (1936: Vol. II, 507–8) stressed this dominant role played by the Inns of
Court in English lawyers’ education as well as highlighting the influence played by
the Year Books on legal teaching and, more generally, on the development of the
common law:
The training which they [the Inns of Court] gave was intensely practical, and no doubt it
kept practical, the argumentative, the procedural side of law prominently to the front—
perhaps sometimes to the exclusion of legal theory. It produced the men who wrote the
Year Books—the men who made the common law a system of case law.
Thus, whilst from very early on the French legal system has relied on academic study
as a means of educating its lawyers, the English legal system, within the same time
frame, has relied on apprenticeship. This complete difference in training could not help
resulting in variance in the mode of thinking, and therefore in the respective methods
of teaching that characterise each of the two systems today.
However, legal education in both systems has over the years undergone considerable
transformation. New trends have emerged on both sides which have notably resulted
in greater emphasis being placed on theoretical knowledge in English legal education
and in more attention being paid to the practical aspects of the law in French law
schools.
T R A N SF OR M AT ION I N B OT H SYST E M S
England
As P. Birks (1994) has said in an English context, in our times ‘the explanation of the law
and its systemization, (both) have become the responsibility of the university jurists’.
Referring to this change as the ‘intellectual transformation’ of the English system of
education, Birks traced it back to Lord Selborne’s campaign for scientific legal educa-
tion in the 1870s and to the influential role played later by authors like Dicey, Anson
and Pollock in transforming law into an academic discipline. It is in the light of this
development that, following the path paved by the 1971 Ormrod Committee, one of
the main recommendations of the Lord Chancellor’s Advisory Committee on Legal
Education and Conduct (ACLEC) in its 1996 First Report on Legal Education and
Training was that ‘the degree course [in England] should stand as an independent lib-
eral education in the discipline of law, not tied to any specific vocation’ (recommenda-
tion R 4.1). The ACLEC also emphasised the need to ‘return to basics’ in the education
and training of lawyers, recommending in this respect that more attention should be
paid in future to legislative material instead of confining teaching to case law material
only. The claim that English legal education over-emphasised case handling to the det-
riment of other legal sources is not new. It was already the subject of criticism in the
work of an eminent Oxford scholar, the comparative law professor Otto Kahn-Freund.
In a lecture devoted to legal education, Professor Kahn-Freund (1966: 127) reflected
on the model of legal education based on case law offered by English law schools, in
the following terms:
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Is legal education based on case law not like a medical education which would plunge the
student into morbid anatomy and pathology without having taught him the anatomy and
physiology of the healthy body? More than that, is the concentration on decided, and es-
pecially on reported, cases not like a clinical education which would enable the doctor to
diagnose and to treat some complicated brain tumor without ever telling him how to help
a patient suffering from a simple stomach upset?
The foregoing would suggest that up until the present there has been, in England, a sig-
nificant shift of attitude in respect of the question of what law schools are for.
France
In France too change has come about. Legal instruction is no longer confined to
teaching abstract concepts drawn from legal texts. Increasing attention has been paid
over the years to case law. The resulting effect is that today’s French law students spend
as much time as their English counterparts studying case law. Although the method of
case study differs between the two countries, case analysis has now become a common
way to ‘discover’ the law in France. In the last thirty years there has also been a no-
ticeable increase in the number of published cases and case notes. However, this sub-
stantial growth in the number of readily available reports of judicial decisions, and
the consequential effect of a widespread knowledge of the work and decisions of the
courts, have sometimes had the opposite effect of placing more emphasis on cases than
on statutory instruments, which already in the 1980s provoked French Professor Atias
to comment angrily that ‘one day a (French) student who is not aware of the latest court
of appeal decision is likely to be labelled a shirker’ (Atias 1980). However, with all due
respect to this eminent French scholar, in the near future ‘case awareness’ will become
even more relevant, since the enactment in 2016 of the French Digital Republic Act
(Law no. 2016-1321 of 7 October 2016 pour une République Numérique). This new
law, aimed at regulating the digital economy as a whole, contains a number of key
provisions which includes the right for any citizen to freely access courts’ decisions
(arts 20 and 21 of the Law). In practice this will force all French courts to publish on-
line all the decisions they give.
Other evidence that the teaching process is moving away from a too rigid concep-
tual approach is the fact that contemporary academic textbooks pay more attention
than previously to the practical aspects of the law and to its effectiveness in social life.
They also generally take a more contextual and interdisciplinary approach to law ra-
ther than just focusing on the rules themselves. To illustrate this new trend are books
on property law, a subject where traditionally a conceptual and ‘black-letter’ approach
to teaching has been prevalent. In Terré and Simler (2014), the authors consider prop-
erty law in the context of economic welfare, social psychology, tax law, public policy,
planning and zoning law, and the natural environment. Procedural aspects are also
included with appropriate descriptions of the types of available remedies, together
with useful technical details and a multitude of case references throughout. More gen-
erally, it was the eminent jurist J. Carbonnier (1908–2003) who heralded the dawn of
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Teaching Methods 163
integrated multidisciplinary approach to law notably in his major widely used treatise
on civil law which included in each chapter a section separate from and following the
main text, in which the author provided readers with an informative and contextual
analysis of questions related to the subject matter of the particular chapter, along with
relevant case and bibliographical references. Thus, each question was approached first
in its historical and sociological context, then from an economic viewpoint, and finally
from a standpoint of legislative policy, as well as legal theory and judicial practice.
However, despite the foregoing changes in both traditions—England and France—
each system of legal education has retained its own intrinsic features. These may be
summarised as follows:
SUM M A RY
In England:
(a) law teaching remains very specialised and is still oriented towards the voca-
tional stage of education for becoming a solicitor or barrister
(b) law reports still remain the primary source of teaching material
(c) when teaching their subject, law teachers still tend to show some reluctance
towards the construction of logical argument and the abstract manipulation of
complex ideas, and instead show a marked preference for policy discussions.
In contrast, French law schools still place a strong emphasis on:
(a) theoretical knowledge, consisting primarily of the systematic exposition of
existing rules and principles
(b) the definition and analysis of the main concepts to be found in the codes,
concepts which have been further developed by the courts
(c) argument based on a logical and formal, rather than on a discursive, analysis of
legal problems, both in oral presentation and legal writing.
These distinctive characteristics of French legal education are particularly reflected
in the main teaching methods used to impart legal knowledge and skills to law students.
These teaching methods are the cours magistral and the travaux dirigés to which this
chapter now turns.
T E AC H I N G M E T HOD S
Lectures in France, known as cours magistraux, consist of a formal and systematic

oral presentation of a subject by a teacher. Their main purpose is to provide the back-
ground theoretical knowledge which will then be applied to particular exercises in
tutorial groups. As the word magistral suggests, this form of teaching has always been
considered as a superior method of teaching in French law schools. In the past, cours
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magistral, then called leçon de droit, had the peculiarity of bearing a degree of resem-
blance to a court hearing. Law teachers used to wear a gown similar to that of a judge
and the audience was composed of students as well as members of the general public.
Each group had to sit separately in a designated area and do so quietly. Both were there
only to listen to what the teacher had to say, and any sign of approval or disapproval was
strictly forbidden. In short, similar respect was due to the law whether it was applied by
a judge to a case, or taught in a law school by a law teacher. Although this similarity of
respect due to both court hearings and law lectures has completely disappeared today,
the French law lecture still remains very formal. This is now examined in more detail.
G E N E R A L ORG A N I S AT ION OF A C OU R S M AG I ST R A L
Law lectures in France are given by professeurs and maîtres de conférences. Both hold
doctorates, but unlike the latter, the former have successfully passed the concours
d’agrégation, a highly competitive examination open to doctorate holders only.
Cours magistraux take place in very large lecture halls (amphithéâtres) where
students are lectured to in large groups of several hundreds. Class size obviously
makes interaction between teachers and students during lecture time very diffi-
cult, if not impossible. However, this lack of exchange also reflects the tradition of
the French cours magistral in which law students are expected to listen and take
notes during lectures. In the past, it was even made compulsory for law teachers
to dictate the text of their lecture, as a preliminary to further development and ex-
planation on the subject (Decree 21 September 1804, art. 70). This rule of dictation
has fortunately disappeared but the cours magistral is still a very formal mono-
logue delivered without any possibility for discussion or exchange of views between
teacher and students. This tradition can be put forward in order to account for
the fact that French law teachers are not inclined to apply a method of instruction
based on questioning similar to, e.g. the Socratic method that is applied in most
American law schools. However, it has to be said in support of the French tradition
of lecturing that the digressions, potential conflicting arguments, and more gener-
ally the open debate generated by the questioning method, do not promote clarity
and considerably reduce the available time left for completing the programme that
has to be covered.
The formal nature of French law lectures is further reflected in the fact that they
follow a rigid abstract structure, called plan de cours, with multiple headings and
sub-headings. In the 19th century, following laws on legal education enacted under
Napoleon’s rule, this plan had to follow the structure adopted by the codes (Law of 13
March 1804, art. 2). Today, the structure is free from such constraints, but still reflects
the traditional generalised technique of deductive logic, from the general to the par-
ticular, of which French jurists are so fond.
This way of presenting a lecture is not merely a reflection of the French tendency to-
wards orderly arrangement and categorisation. It is also intended to fulfil at least three
precise purposes:
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Teaching Methods 165
(1) It acts as an aid to understanding the subject, by approaching it as a coherent

whole rather than as a piecemeal succession of legal aspects of any particular
question. In the same vein, it provides an appropriate structure for a better ex-
ploration of the links between general principles and particular circumstances.
(2) It is a convenient way of covering, in a minimum and measured timescale, the
required amount of a subject’s syllabus by the end of the semester.
(3) It is intended as a memory aid. Each heading of the so-called plan de cours
operates as a mnemonic device, in the sense that it helps to trigger the
memorising of each following heading, and thus assists in bringing each step
to mind with the attendant detail of the teacher’s lecture. One must, in this con-
text, bear in mind that the law curriculum in France is much larger, and lectures
are far greater in number than in England. For example, first-year students are
on average required to attend for twenty-four teaching hours per week. Thus,
French law students have a lot to memorise, especially if it is borne in mind that
teachers base their examinations on what they actually teach during lectures,
and that examinations are, by tradition, not open-book examinations.
P U R P O SE OF T R AVAU X DI R I G É S
Just as in English law schools, tutorial groups in France, called travaux dirigés
(abbreviated TD), are linked to a lecture programme and consider problems and
exercises arising out of material distributed in advance.
Travaux dirigés are intended to develop students’ legal skills using a set of trad-
itional legal exercises known as dissertation (essay), cas pratique (problem solving)
and commentaire d’arrêts (case study). However, it should be noted that whereas in
travaux dirigés the objective is to teach students to think and speak like lawyers, it
is not intended that students should, in class, reflect personally on what they are
learning, or express their own personal views about law or legal issues. Indeed, in
keeping with the tradition and spirit of French legal education, the knowledge of
substantive law is considered to be more important than legal imagination or cre-
ativity. Furthermore, the aim of TD is not to prepare students for the courtroom. As
a consequence, there is little scope provided in the TD programme for testing the
ability of students to present a legal argument, let alone to argue both sides of a case.
This is to be regretted in view of the central role that dispute and contention play in
the life of a lawyer. However, this was not always the case. It should be noted, first
of all, that controversy, as a method of expounding the law, has always been present
in scholarly works (see, in particular, the survey of French scholarly works carried
out by Professor Atias (Atias 1985)). Historically, it was also a widespread method
of teaching the law in the French law schools of the 14th and 15th centuries. In this
respect, French legal historians recount how students at that time used to argue in
class each side of a case in debates, called disputationes or, alternatively, in a more
specific exercise called quaestio disputata, similar to the moots organised at about
16
166 Legal Education
that time by the Inns of Court in England. This quaestio took the form of a ficti-
tious case with two speakers each arguing one side of the case and concluding with
a solutio given by the teacher, sitting for that purpose as a judge. Unlike English law
schools, where mooting is still practised and is, indeed, a very popular exercise,
French law schools have long since abandoned this method of teaching law by way
of arguments pro and contra. Confronted in the 16th century with new methods of
teaching based on deductive logic advocated by legal humanists, the controversy-
based teaching method gradually disappeared from law schools supplanted by a
legalistic approach to the law and its attendant belief that the true law is the law set
out in authoritative form, cleared of any doubtful elements.
Chapter References
and Further Reading
Atias, C., ‘La Controverse et l’Enseignement Holdsworth, W. S., A History of English
du Droit’ in Annales d’Histoire des Facultés Law, Vol. 2, 4th edn and Vol. 4, 3rd edn,
de Droit et de la Science Juridique, Vol. 2, Les London: Sweet and Maxwell, 1936, 1945.
Méthodes d’Enseignement du Droit, 1985, Kahn-Freund, O., ‘Reflections on Legal
107–23. Education’, Modern Law Review, 1966, Vol.
Atias, C., ‘La Mission de la Doctrine 29, 121–36.
Universitaire en Droit Privé’, JCP 1980, Lambert, J., ‘Le Rôle de l’Enseignement dans
I, 2999. la Différenciation du Système Juridique
Birks, P., Reviewing Legal Education, Oxford de Common Law et du Système Juridique
University Press, 1994. de Droit Civil’, Mélanges Roubier, 1961,
Birks, P., Pressing Problems in the Law, Vol. 295–303.
2, ‘What Are Law Schools For?’, Oxford Macmillan, lord, ‘Deux Manières de
University Press, 1996. Penser’, Introduction à l’Etude du Droit
Blanc-Jouvan, X., ‘Bijuralism and Legal Comparé, Vol. 2, Part 3, Paris: SireyLGDJ,
Education: a French View’, Journal of Legal 1938, 3–17.
Education, 2002, Vol. 52, 1 & 2, 61–67. Terré, F., and Simler, P. Droit Civil: Les
Borkowski, A., Roman Law, London: Biens, Paris: Dalloz, 2014.
Blackstone Press, 1994, 336–47. van Caenegem, R. C., Judges, Legislators
Boulanger, F., ‘Réflexions sur les Problèmes and Professors, Cambridge University
de Formation des Etudiants dans les Press, 1987.
Facultés de Droit’, JCP 1982, I, 3077. Vinogradoff, P., Roman Law in Medieval
Dainow, J., ‘The Civil Law and the Common Europe, 2nd edn, Oxford: Clarendon Press,
Law: Some Points of Comparison’, American 1929.
Journal of Comparative Law, 1967, Vol. 15, Wall, S., ‘Legal Education in France’, Journal
419–35. of the Association of Law Teachers, 1992,
Dawson, J. P., The Oracles of the Law, Vol. 26, 208–14.
University of Michigan Law School, 1968, Watson, A., The Making of the Civil Law,
34–65 and 122–34. Harvard University Press, 1981.
COURS MAGlSTR,\L
METHOD OF TEACHING
212 213
, mal nature of French law lectures is further r fl _

_ of approva 1or disapproval was strictly 'Jhe 1or e ected tn the fa
any sign _ forbidden. In short, similar
_ respect
•gid abstract structure, called plan de cours w·th _ ct that th'}·
er it was applied by a iudge to a case, or taught ma law school f,0!loW a fl , ' 1 rnulttple head·
wasduetot he aww1e
1 1 th d·ngs. In the 19th century, 1ollowing laws on legal d . tngs and
5ub-hea I e ucatton enacted
\by a 1aw teac her. Althoug h this similarity of respect due to both court hearings
_ and
,5 rule, this plan had to follow the structure adopted b h under
law lectures has completely disappeared today, the French law lecture still remains ]'lapo1eon Yt e codes (law0 f
h !804 art. 2). Today, the structure is free frorn such _
v0 formal. This is now examined in more detail. !3 Marc
reflects t
' . .
he traditional generalised techmque of deductive logic f
. . .
constraints, but still
h
, rorn t e general 10
t ·cular of which French Junsts are so fond. Bywayofillustrat"
1 h" .
the par ' . . . . wn, t ts ts how
ture on the law of obhgat1on 1s hkely to begin in France foll .·
GENERAL ORGANISATION OF A COURS MAGISTRAL a first 1eC • 011mg a plan
probably similar to this one:
Law lectures in France are given by professeurs and maitres de conferences. Both hold
. 1- Les Sources des Obligations
Part1e
doctorates, but unlike the latter, the former have successfully passed the concours
Livre 1-Le Contrat
d'agregation, a highly competitive examination open to doctorate holders only. In Titre l-La Formation du Contrat
the form in which it is presented, the concours d'agregation foreshadows the cours Chapitre I-Conditions de Validite
magistral in the sense that it consists of a series of four formal oral presentations Section I-Le Consentement
(called lerons) by the candidate, delivered to a jury. Whereas the first presentation § I-L'Existence du Consentement
focuses on the candidate's research output, the second is held on a general topic relat- A-Offre
ing either to the sources of law or to the civil law. The third presentation is held on !-Conditions de l'Offre
a) L'Offre doit etre Precise
a topic aimed at testing the candidate's general knowledge of the law (the subject
b) L'Offre doit etre Ferme
of which is given twenty-four hours in advance of the oral hearing) and the fourth
presentation revolves around a topic drawn from the candidate's own specialised This way of presenting a lecture is not merely a reflection of the French tendency
field oflaw. · ·
towards orderly arrangement an d categonsat10n. It 1s
· also intended to fulfil at least
Cours magistraux take place in very large lecture halls (amphitheatres) where three precise purposes:
students are lectured to in large groups of several hundreds. Class size obviously . t h e sub.iect, bYap proaching it as a coherent
(1) It acts as an aid to understandmg O
makes interaction between teachers and students during lecture time very diffi-
_ • •
. fI I ects of any parucular que,·

cult, if not impossible. However, this lack of exchange also reflects the tradition of whole rather than as a piecemeal success10n o ega asp . f
. . ure for a better exp1oration o
the French cours magistral in which law students are expected to listen and take !ton. In the same vein, it provides an appropriate struct
. between general principles an d parficu Jar circumstances.
th e Imks h
notes during lectures. In the past, it was even made compulsory for law teach-
. . . . . m and measured timescale, t e
ers to dictate the text of their lecture, as a preliminary to further development (2) It 1s a convenient way of covermg, ma mimmu
and explanation on the subject (Decree 21 September 1804, art. 70). This rule of .
required amount of a subject's syllabus bY t h e end of the semester. .
dictation has fortunately disappeared but the cours magistral is still a very for- d fun de corm
. . . din of the so-ca11e p .-•
mal monologue delivered without any possibility for discussion or exchange of (3) It 1s mtended as a memory aid. Each hea g . the meroonsin.
t it helps to tngger . h the
views between teacher and students. This tradition can be put forward in order to operates as a mnemonic device, in the sense t h a to mind \flt
. - · g each step
acc_ount fo~ th e fact that French law teachers are not inclined to apply a method of each following heading, and thus assists m bnngm . t bear in miod tbat
t in this conte:c ' . ber
of i~str~ctton based on questioning similar to, e.g. the Socratic method that is attendant detail of the teacher's lecture. One mus ' . far greater 10 nuro
applied m most American laws h 00 I H f h the [ nd lectures are " . d to a11,nJ
_. c s. owever, it has to be said in support o t e aw curriculum in France is much larger, a . . race requtrt' .
French tradition oflecturin th t th d. . Iha · dents are on J\< mernor.,r-
d g a e tgress1ons, potential conflicting arguments, n In England. For example, first-year st u . ts ha\·e a lot to el"
an more generally the open deb t for 18 h law studen ,~hl l th .
. a e generated by the questioning method, do not teaching hours per week. Thus, Frenc h . e.taniinations OO . ,,.. 0 •
promote c1anty and considerably d esp • II
e by tr.I d--
h h
re uce t e available time left for completing t e
h base t etr
ecia Y if it is borne in mind that teac ers iu,, n· not ''r·
programme t h at has to be covered. actuan xaminatioll.S ar .
Y teach during lectures, and that e1
book
examinations.
- COURS MAGISTR"'L
METHOD OP TEACHING
214 215
,MENTARY COURSE MATERIAL

slJPPLE
LECTURE NOTES tes are an essential, albeit insufficient s
. ne of the most important activities in student life h ecture no ' ource of le al .
Note taking constitutes o . . 'w ether L rse Tuey must be supplemented, in each sub' g matenal for cov
ding oflegal material or, as considered here, during the . g a cou . Ject, by othe cr-
it arises out of the rea . course 1n re a certain number of legal literary sources ·1 b . r course material
. s Yet few students are prepared to take this exercise as se . 1here a . . ava1 a le if one . .
of attending 1ecture • , . . nously ly into a particular subject. Only the most . 'fi Wishes to go
d to follow the necessary steps to improve their skills in this more deep . sigm cant- 1 ..
as they shou Id an . . . respect. and legal encyclopaedias-are considered here H po ycop1es, text-
with respect to cours mag1stral, and m view of what has be . books, , . owever, a few w d
It shou Id be no ted . en said theless be said about Melanges in view of their origi 1 . or sshould
above, that it is essential to acquire as soon as poss1b~e a good note-taking technique. never . na contnbution to F
·terature. These are edited works made up of a ser' f reach
Lecture notes are a very good learning tool and this must be considered from two tega l lI . . . . ies o essays on a co
e and written m honour of a d1stmgmshed scholar by coll mmon
points of view: them , . eagues, who may also
e been that scholars students and who wish to pay tribute to th . ,
hav e1r ,armer maitre
(a) being a first approach to a subject, they form an excellent basis for further e high quality of the work produced make Melanges a valuabl d ·
1h .. . . e an much sought
development, since they can be supplemented by the reading of other legal
after source of scholarly wntmg. Amongst the classICs m this range ofl'tI erature are
material Melanges Roubier (1961) and Melanges Raynaud (1985).
(b) with the examination in mind, they are an effective way of remembering the
content of a lecture. What one writes down oneself is better remembered. Polycopies
Because of the specific features of French lectures and to make best use oflecture Law teachers' lectures may, in some law schools, be made available online or in
notes, it is advisable to take the following steps: printed format called polycopies. However, polycopies should not be used as asubsti-
, I
tute for lecture attendance. On the contrary, they should be used in conjunction with
i (i) The plan of the lecture must be apparent. At the beginning of the lecture,
as well as at the beginning of each section, the lecturer announces the
lectures. In this respect, they have a certain number of advantages:
structure which is to be followed. Students must note this down straight (a) They provide a support for oral teaching. Notes are not always reliable.
I I away, if they wish to benefit from the lecture and do not want to get lost! Students may have missed important points through not paying attention
during the lecture.
(ii) All definitions given by the teacher must be noted in full. French law
students are expected to be able to define the concepts on which any legal (b) They allow students to 'think' about what they hear instead of focusing only
argument is based. on making sure they put down everything the teacher is saying.
(iii) Pages must be well spaced out and the content must be clear. This will make (c) students can better identify the key points and, instead of taking notes on
for easier subsequent reading. everything, they can concentrate on noting down the main points.
(d) It . 1 d . 1ctures and come
(iv) For greater efficiency within the time constraints, sentences must not be is ess tiring, as students can take brief notes unng e
taken down in full but in abbreviated form. back to the subject source later if more detail proves necessary.
(v) A margin mu st be left for adding more detail at a later date if necessary. Textbooks
(vi) As. they distinction
. will later be use d 10r
c • •
exam rev1s10n, these notes must be re-rea d Alongs'd b k In French 1aw, a
1 e polycopies there are the traditional text 00 s.
within two or th ree days of takmg• them in order to alter or improve t hem· . db 0ks) lhe latter
ts lilade b d , · (both ban
etween traites (treatises) manuels an precis
· °
d d treatisesare
(vii) Above all stude h ' he two ar I . ' . th former. In ee • nd .
.' nts s ould make an extra effort to concentrate on what t . e ess detailed and more student-friendly than e . cademics a pro
h
teac er 1s saying and · e to
fill • . note only what is essential. There will always be tun llilpress. I . by leading a Uy
m with more det ·11 . h 1cal v·d· Ive Y researched works of scholarship written f .w. 1bey are usua
act f ai ater. Taking notes is more than the mere mec an 1 tng a .. • Jar area o 1a h0f[a1~.
o a pen scratching paper! tn cntical and informed analysis in a partJcU whole branc d
ade up 0 f . ded to cover 3 sstarte
"n . a number of individual volumes mten . ·ty0fCaen, wa
•ne civ'l l h Un 1vers1
t aw treatise by Demolombre, Professor at t e
b )1 ..:1 d:Hi rii ;in: n;g ::ra:a, ,; \1,11
TRAVAUX DIRIGEs
,\! ET HOD Of- TE ACHING

217
216
. C . de Code Napoleon, and consisted finally of thirt TRAVAUX DIRIGEs

. 5 under the utle our, . . , . . Y-one
111I84 . . . law treatises include Aubry et Raus Dro,t Civil p~ .
volumes! Other classic ov1 1 ' ., . . . . anfars
Planiol et Ripert s Tra,te Prat,que de Dro,t C1v1/ (fourteen
(thirteen volumes) an d Vo1. L ORGANISATION
. t intended for use by first- or second-year students owin GENERA
umes). Treatises are no . ' g to
. ture of the work they con tam. Another drawback is that th . English Jaw schools, tutorial groups in Fr
the highly theoret1ca1na . ey st as in . ance, called trav .
d ted However, more recent treatises are regularly updated u . t d to TD), are hnked to a lecture programme d . aux drriges
are not regu IarIYup a · , e.g. bbrev1a e an consider pr bl
. G b 's Traite de Droit Civil (fourteen volumes) and Mazeaud's Le '(a . rising out of the material distributed in ad van . h O
emsand
Ghestin et ou eaux .. fons erc1ses a ce in t e form of fi
. c· .
de Droll 1v11 nm( . e volumes) · Treatises cannot replace the trad1tional, more accessi"bl e ex diriges, the French equivalent of the English hand t Tu· a che de
. to use student textbooks as produced in the form of manuels andprecis· Th e travaux . . ou . is fiche does not
an d easier consist of a readmg hst supplemented by a series of point tO b .
manuel provides a less exhaustive analysis than a treatise, and is in turn a more detailed ,nere Y I . s econsidered at
t tutorial, but rather a set of photocopies of full court J·ud
work than is to be found in a precis. An example of a manuel is P. Ardant's Institutions the nex gments, case notes
rned articles that are to be read and prepared in advanc Of th . '
Politiques et Droit Constitutionnel (LGDJ, 2008). Precis are concise textbooks aimed an d Iea , . . . e e tutonal. In
this respect, French law students hfe 1s, m one sense, made easier since they do not
at providing a condensed and objective description of a subject. The presentation is
at ]east at the commencement of their studies, have to hunt around for material i~
student-friendly and they are regularly updated. The most widely used precis are precis
Dal/oz (published by DallozJ and precis Do mat (published by Montchrestien). the law library to the same degree as their English counterparts are supposed to do.
There are further significant differences between the two systems of tutorial teaching
Legal encyclopaedias groups, especially with regard to work assessment and in terms of general organ-
These are weighty, collective works made up of a series of volumes and designed to isation. Generally, in French law schools, teaching groups contain more students
provide a complete statement of the law, in a particular branch, in a clear, exhaustive, than in their English counterparts, having roughly twenty-five to thirty students per
and accessible manner. The two most widely used French legal encyclopaedias are class. TD generally last one hour and a half each week for each core subject taught.
the Dalloz encyclopaedia, known also as Repertoires (cited as Rep. civ. for Repertoire Attendance and class preparation are rigorously enforced as both are taken into
de Droit Civil or Rep. pen. for Repertoire de Droit Penal et de Procedure Penale), and account for the final mark, the reason for this being the existence of ageneralised sys-
the much more voluminous Lexis Nexis JurisClasseurs (cited as J.-Cl). They both tem of continuous assessment (controle continu). Since the introduction of asemesler
have a similar content apart from the fact that, whereas in all the Repertoires topics system in 1997, subjects are examined at the end of each semester. Under thissystem,
covered are arranged by subjects in alphabetical order, some of the JurisC/asseurs at the end of each semester students receive a TD grade out of 20 for each subject.
follow the articles of each of the codes in numerical order. To facilitate research, This grade is subsequently added to the three-hour end of semester examinatio~
there is in both an alphabetical index under each topic, in addition to each volume's re su It c1or eac h subJect.
. .
However, some core sub1ects are on IYassessed by the students
own main index. They are also regularly updated. Turning now to section content, i; . d t nly by regular
per ormance in TD. The TD grade, in all cases, is determine no 0
bo th encyclopaedias provide each in its own way a description of the relevant rules att d
en ance, but also by the quality of the written wor an e '
k h d d 1·n on written tests
TD
and court rulings in a specific area of law. The approach is rather practical, espe- car · d
ne out during classes, and on overall participatwn. e
. Th weight accorded to
.·
cially in furisC/asseurs, and the emphasis is more on detailed information than on peri . I It ndance and preparation
ormance m course assessment explains why regu ar a e d. · ;, isto
detailed analysis, as reflected in the large number of quoted bibliographical and case for cla . . h fich ede trnva11x ,rig,.
references they suppl Yrea ders wit· h , the implied
• sses by the reading of assignments specified mt e
intention being to allow rea ders t0 be highly recommended in order to achieve success in the French systern.
acquire a quick and precise· answer to any particular point they may have. However,
.some contributing
. auth ors have succeeded in producing valuable scholarIY stud·
ie~ ohn particular topics with both a strong theoretical and contextual emphasis, yet PlJRpo
SE OF TRAVAUX DIRIGES . t ot·trad·
wit out neglecting d t ·1 d I a ,e .
d. A . . e ai an references traditionally associated with legal encyc o- Travau d" . , , le al skills using
.. r. it
Pae ias. striking example b . . in ·. x inges are intended to develop students g . hapter. Hoiieie
the D II R, . ' Y way of 1llustration, is the/urisprudence section, IttonaJ le I . . . h following c dents to
a oz eperto,re de Droit Civil. sh ga exercises that are described m t e . is 101each ,iu
ou]d be . . , the objecuve
noted that whereas in travaux dmges
Ill IJ
CHAPTER REFERENCES AND FU .

RfHER RE
ADi l\'G
METHOD OF TEACHING
l 19
218
.k
think and spea k lI e 1al\
,yers it is not intended that students should in cla
' . . ' ss, ref!eq
EXAMINATIONS
,h t they are learning, or express their own personal vie b
personally on " a . . . . . . ws a out
. Indeed in keeping with the trad1t1on and spint ofFren h 1 w schools, core subjects are assessed in b
law or lega I issues. • . . c egal frenc h Ia part YWritten e .
. h knowledge of substantive law 1s considered to be more im In t by continuous assessment of TD performan W . xam1 nations
educat10n, t e . portant din par ce. ntten exa .
. g,·nation or creativity. Furthermore, the aim of TD is not to an . h . n the next chapter together with legal exercises fi b minations are
than Iega I ,ma . . prepare
students for the courtroom . As a co~sequence, there 1s httle scope provided in dealt wit I . d or oth of which simil
kills are require . . ar
the TD programme for testing the ab1hty of students to present a legal argument s ubjects (usually optional) are assessed by way of 1 .
let alone to argue both sides of a case. This is to be regretted in view of the centra; Other s . ora examination 0
. tions, apart from bemg a very good way of testing st d , · ral
role that dispute and contention play in the life of a lawyer. However, this was not exarnina u ents memo nd
of mind, also contribute to the development of the· ry a
always the case. It should be noted, first of all, that controversy, as a method of presence . . . . Ir ora 1communication
. Students are asked, w1thm a restncted penod of time t
expounding the law, has always been present in scholarly works (see, in particular ski 11 s. . , o answer a question
ve drawn at random, which has been covered in the cours m . 1
the survey of French scholarly works carried out by Professor Atias (Atias 1985}): they ha . . . ag1stra , and for
Historically, it was also a widespread method of teaching the law in the French w 1c. h a ten-minute preparation penod 1s usually allowed · The mark awar ded will
h
law schools of the 14th and 15th centuries. In this respect, French legal histori- generally be dependent on a capacity to exhibit certain skills such as:
ans recount how students at that time used to argue in class each side of a case (a) giving an exhaustive answer to the question
in debates, called disputationes or, alternatively, in a more specific exercise called
(b) incorporating a structure in the general presentation of the answer
quaestio disputata, similar to the moots organised at about that time by the Inns of
Court in England. This quaestio took the form of a fictitious case with two speakers (c) being articulate, in particular ensuring that sentences are finished with
t' each arguing one side of the case and concluding with a solutio given by the teacher, thoughts worked out to their conclusion, together with a correct use oflegal
II sitting for that purpose as a judge. Unlike English law schools, where mooting is terminology
still practised and is, indeed, a very popular exercise, French law schools have Jong (d) being able to discuss the question in context, particularly in view of new
since abandoned this method of teaching law by way of arguments pro and contra. related developments.
I I
Confronted in the 16th century with new methods of teaching based on deductive
Owing to staff shortages and to lack of time, this tradition of oral examination has
logic advocated by legal humanists, the controversy-based teaching method grad-
tended to disappear from some French law schools. In recent years it has, in part,
ually disappeared from law schools supplanted by a legalistic approach to the law
been repIace d m
· some subiects
· by sh ort wntten
· · f10ns, 1·ntheformof either
examma
and its attendant belief that the true law is the law set out in authoritative form,
cleared of any doubtful elements. short essays or multiple choice questions.
However, the importance of being articulate is nevertheless acknowledged in
French law schools and is addressed in the form of oral presentations called exposes.
CHAPTER REFERENCES
Exposes
. are mad e bYm· d"1v1·d ua I stu d ents, usually at the beginning of each TD, on a
topic determined in advance w1·th t h e tutonal · instructor.
• They are intended to h e1P
AND FURTHER READING
develop and test stude n t s' ab"J· L I Education,
1 1t1es m as1c research and oral presentation sk'II
· · b · I s. BIRKS, r., Reviewing ega
Exposes follow the sam e basic · structure as dissertations (see at Chapter 11). They ATIAs ' C., 'L a Controverse et l'E nse1gne-
.
Oxford University Press. 199 . , \' I
must, however' be prese n ted wit · h"m a strict time limit (usually ten minutes) an d ment du Droit' in Annales d'Histoire des . bl.-nis in rfi eLa11, o .
tacu/tes de Droit et de la Science Juridique, BI RKS' P., Pressing Proshoos l for1' Oxford
should not be read out verb f f a 2 'What Are La,, c
·'
. a im rom notes. Exposes are important because they ouer Dol._ 2, Les Methodes d'Enseignement du
an opportunity to gain ex • . .11. ' . p ess 1996,
·th 1 . penence m public-speaking and to become more fam iar ro1t, 1985, 107-23. University r ' . London:
wi ega 1matenal and termin 0 I b · d d ATJAs C '
. , Ron1an I an,_
necessar fi , ogy, oth qualities very much relevant, and lil ee ·' ·• La Mission de Ia Doctrine BORKOWSKI, A., 1994, ~,6-~'-
1
y, or any awyers professional work requirement. Un· Blackstone Press,
I iversitaire en Droit Prive' JCP 1980,
,2999_ '
_ _ J
r sr )ll '. •• co
~I ET HOD OF TEAC HING

220
F 'Reflexionssurles Problemes de Droit Civil', Melanges Roubie,

' 1961 ,
IloULANGER . .,
de Formation des Etudiants ans e
d Is 295-303.
MACM ILLAN, LORD, 'Deux Mani'
11
Facultes de Droit', JCP 1982, I, 3077. eres de
Penser', Introduction a l'Etude d D .
O.,1N0W, J., 'The Civil Law and the Corn mo? , U ro1t
Compare, Vol. 2, Part 3, Paris· Si
Law: Some Points of Comparison'
American Journal of Comparative Law,
LGDJ, 1938, 3-17. . rey. LEGAL EXERCISES
1967, Vol. 15, 419-35. MERRYMAN, J. H ., The Civil Law "'r d" .
"a 1t1on
DAWSON. J. P., Tli e Oracles of the Law, 2nd edn, Stanford University Press, •
1985
University of Michigan Law School, VAN CAENEGEM, R. C., Judges Leg,· I ·
J s ators
1968, 34-65 and 122-34. and Professors, Cambridge Universit central feature of French legal education is the t' .
HowswoRTH, W. S., A History of English Press, I 987. y Afurl her . • .. . tme spent tn the !ear .
ss in testing students ability to apply to their written work th k ning
Law, Vol. 2, 4th edn and Vol. 4, 3rd edn, \11NOGRADOFF, P., Roman Law in Medieval proce . . e nowledgeand
of reasoning they are acqumng from theoretical teachin d f
London: Sweet and Maxwell, 1936, 1945. Europe, 2nd edn, Oxford: Clarendon rno de . . . . g an rom the read-
Press, 1929. . fcases. This practical aspect oflegal education 1s achieved th h
KAHK-FREUND, 0., 'Reflections on Legal ing o . . roug aset ofwell-
Education', Modern Law Review, 1966, defi n
ed formal legal exercises known as cas prat1que, dissertation d .
WALL, S., 'Legal Education in France', •an commentaire
Vol. 29, 121-36. Journal ofthe Association ofLaw Teachers, '
da •rre't for each of which
.
this section
. .
provides a method to follow ,.. h .
, en answering,
LAM BERT, )., 'Le Role de I'Enseignementdans 1992, Vol. 26, 208-14. together with practical applications.
la Dilferenciation du Systeme Juridique WATSON, A., The Making of the Civil Law
de Common Law et du Systeme Juridique Harvard University Press, 1981. '
I I
I CAS PRATIQUE (PROBLEM QUESTION)
Cas pratiques closely resemble problem questions used in teaching English law to
students. Thus, as with a problem question, what is required in a cas pratique is the
analysis of a fictitious factual situation raising a certain number oflegal issues. More
specifically, the aim of the exercise is to examine and discuss each of the issues iden-
tified in the cas pratique and arrive at a solution which is the outcome of a logical
chain of reasoning. The main difficulty in answering cas pratiques is to 'juSlify' the
answer correctly. Indeed, in constructing their answer, students must not only show
th at they have a sound working knowledge of the relevant law, in particular by iden-
tifying the facts which have legal significance and applying them to th e appropnate
rules of law; they must also display in their work a logical sequence of reasoning
when formulating and presenting their answer.
WHAT DOES ACAS PRATIQUE LOOK LIKE?

By wa . . roblem 1 and Problem 2)
Y of illustration, two examples of cas pratiques (P h 'Traiter' or
are set . . h request sue as
, out in Box 11.1. Cas pratiques usually start wit a
Resoud 1 .h .
re e cas pratique suivant' followed by eit er. ·s
.(1 . followe db),, asene
) a det ·1 d · ersed with, or h odel
of ai e account of a series of events mtersp . (folloll'ing t ern
specific . . tlegal point,
ofp questions, each concerned with a disunc
roblem l); or
iJ
CAS PRA TIQUE (PROBLEM ..
Ql EST JlJ~J
LEGAL EX ERC ISES
223
222
atee servie aux chevres de M. Seguin ...

.. a more condensed stor)'• followed • La P b ' aete1dent"fi•
(u) , , by a general request
_ addressed
, to th e stu. etant la source proba le de I epidemie. 1,ee coin Ille
h as 'Que Jui consei/lez-vous?; Que vaut le point de vue defendu Par X,'.
dent, sue . ,' (c II . h
'Quelles son/ /es chances de succes de son action. ,o owing t e model of Problem 2)_
., tte pa.tee a ete confectionnee apartir d
• Ce es reste, de i·i
rovenant de deux restaurants de la ville voisi , ande avariic
P · ' ne, Le Relais' ,
petite Chaum1cre . · et La
Ces restaurants ont l'habitude de se fournir .
• , , en v1ande chez It
Box JI.I PROBLEMS (OR CAS PRATIQUES) l AND 2 boucher local, Raoul, repute pour ses install f .
. . a IOns insalubres.
Le fils du ferm1er Se gum, Benoit, age de 4 ans ,
Problem I: Josserand v. Planiol and Ripert • , . , . 'samuse depuisfi n
fevrier a faire I aller-retour sur sa b1cyclette entre 1 ,
En avril, M. Josserand a achete une villa entouree d'un immense pare avec de . a ,enne de son ,
et celle de M. Durand, contnbuant ainsi apropa . pere
magnifiques statues ornant la terrasse. Lors de son installation, en octobre, ii ger 1e, irus.
Que Il es seront, avotre avis, !es chances de succes d'une actionenJusticeeno
s'aper~oit que le vendeur, M. Planiol, a emporte avant son depart, non seule- . .
,
ment Jes statues, mais encore les o~tils de_jardinage entreposes clans le garage,
par M- D urand a l'encontre de M. Seguin? oagee
la balan~oire et le toboggan qui ava1ent fa1t la JOie de ses enfants !ors de la visite
de la villa, et Jes poissons tropicaux aux couleurs chatoyantes qui nageaient
dans le petit etang du jardin.
(a) En novembre, M. Josserand vient vous consulter et vous demande s'il dis-
pose en droit d'une action pour recuperer ces dilferents objets. Si oui, sur Although, prima facie, students may be asked to do a variety of things in a cas prat-
I
quel fondement cette action peut-elle etre exercee? ique, ranging from determining one party's rights and liability to predicting the
I, Quelques mois plus tard, M. Josserand apprend que son nouveau voisin, M. possible outcome of a court case, whatever the question asked, the same tech~que
Ripert, a decide de surelever son pavilion de deux etages, ce qui aurait pour needs to be applied in constructing an answer. The basic techniques of answering cas
consequence, selon un rapport d'expert, de priver de lumiere sa nouvelle pro- pratiques are summarised below.
priete au sud et a!'est. M. Josserand vous consulte de nouveau pour savoir s'il
pourrait assigner en justice M. Ripert si celui-ci menait a terme son projet de
construction. ANSWERING CAS PRATIQUES
(b) Dans cette hypothese, quel serait le fondement d 'une telle action? Quelles Answering cas pratiques entails that students put themseh·es in the place of a judge
~era1ent ses chances de succes compte tenu du fait que M. Ripert etait delivering a judgment or, of a practitioner advising a client. Thus, what has been said
mstal_le s~r !es l!eux b!en avant M. Josserand et, de plus, a obtenu toutes Jes
autonsat1ons necessarres pour la surelevation de sa construction? previously about legal reasoning in Chapter 7, particularly with respect to syllogi st ic
logic and the process of qualification des fa its, is highly relevant here and will onh· be
Problem 2: The foot-and -mouth case
briefly touched upon in this section. A certain number of steps should be follwed
.Le 28 fevrier
. , dernier la ferme de M• Segum - a etc
, d ec , zone contammee
. aree
1
. , et when co ns t meting
• an answer to a particular cas prat,que;
. these ar e described below.
mtefir_d,te a toute circulation humaine ou animale suite ala decouverte d'un cas Althou h h · . · o especially when I
de evre aphteuse parmi J · . g t is method of answering may appear time con sumino, , d I
. es ammaux qm composent son cheptel Quelques used for . . . . d th t within the stan.iar •
~ours pus ta •. M. Dura , le fermier voisin, donne a son tour l'al.erte. Deux
1 rd nd exammation purposes, one must bear m mm a . ..
e ses pores presentent de · •, three h , II · asked to an,,1er
contraint d
'
'd s signes mam,estes de la maladie. II se voit des !ors
bovins JOO e proce er al'abattage d e t ous Jes ammaux
moutons et JOO pores D' , 1 . , .
· · 40 O
de sa ferme, so1t,
,.
only a ·
ours duration of a French law exam students are genera Y
thefacts.
h I0 sort out an a,.'
single problem, thus allowing plenty of time for t em
d ·css
I .
trainer devant l 1 .b
suivants:
es n unaux comme 1·1 I
1
· apres u1 e 1aut1f est M. Seguin qu ii veut
. . I 1 , .
e mente. I est pret a invoquer es 1a1ts The steps fi . .
or answering cas prat1ques are: _ . -e
I I
wh1:h 1ia,
I
(a) Ide ;r. facts are t Iiose
leg l . nt1.,y the facts which are relevant. Relevant · r-·i,rcrti1 :,nt;. Toe
a s1gu·fi . . 5 11 ti/•; or I"'.
1 cance. In French they are known as J,J1f ' •
J, .
I I'
I
r
i Al t
CAS PRATIQUE (PROBLEM _

QU EST ru:--.i
LEGAL EXERCISES
22~
and other movable property imm bl

e statues . eu es Par de .
. "Ii cance or relevance of a particular fact. is dependent on the context . For
legal s1gm (Me th of the house to which these objects a 5hnation th
I
of the sa e ,. re attached I) , us being
examp Ie, m. p ro blem !(a) the way the statues are
. . displayed on the terrace, wheth er 1n
.
Part urelevation de l 1mmeuble constitut
. h b se ·
1s relevant when determining whether or not they are includ ed (b)· La s e-t-elle u
a me e or on a a , 155 ue 2 · · ant droit a reparation? n trouble anor
.m the sa Ie of th e house , as the Civil Code (art. 525) and the courts take these ,acts
, 15. inage donn IJJa1de
into account when deciding in similar situations. vo .. ng of two further storeys on the neighb .
the ra1s1 . ounng house _
(Does de voisinage creatmg thereby a right to comp . constituteatrou.
(b) Tran slate facts into legal terms. Facts and questions related to the relevant facts b[e anorma I ensation1)
are generally formulated in non-legal terms in cas pratiques. Here, prior to identi-
problem Z: . . ,
fying the legal issues, and then establishing the rules applicable to the problem, one . . Y-a-t-il un hen de causahte entre le dommag b·
must first 'translate' the facts into legal terms. This step is clearly crucial since with- 111 ·n 1ssue. e su 1 par M D
ai t qui ont eu lieu clans la ferme de M. Seguin y . , · urand et les
out it no correct move towards the answer can proceed. Using the two examples of 'venemen s . ' compns I action d
e , dant ainsi M. Segum responsable de la perte sub· e son fils
cas pratiques provided, here are simple examples of'legal' translation. Benoit, ren te par M. Durand?
M Durand's loss caused by the sequence of events thatto 0 k 1
Problem l states: (Was · . • P ace at M.Seguin's
. eluding the acts of his son Benoit, thus making M Se . I
farm, IO · guin egallyliablel)
M. Josserand a achete une villa entouree d 'un immense pare avec de magnifiques statues
d legal issues: (i) Si ce lien existe, M. Seguin peut-il s
ornant la terrasse. Lors de son installation, en octobre, il s'aper~oit que le vendeur, M. ReIate . , • , e retourner contre
Planiol, a emporte avant son depart non seulement Jes statues, mais encore ... Ies re taurants qui ont confectJonne la patee et le boucher qui a ,,ourn1. 1a viand,
S .
avariee?
In legal terms this becomes:
(If this sequence of events is to be regarded as having caused the damage, can
p A la suite d'une vente portant sur un immeuble (la villa et le pare), l'acheteur constate que
certains meubles (!es statues ... ) ant ete enleves par le vendeur. M. Seguin claim against the restaurants and the butcher who both contributed to
M. Durand's loss?)
Problem 2 states:
I (ii) Peut-il aussi invoquer comme moyen de defense le jeune age de Benoit qui,
Il se voit des lors contraint de proceder a l'abattage de tous Jes animaux de sa ferme, soit
I·I 400 bovins, JOO moutons et JOO pores. D'apres Jui le fautif est M. Seguin qu'il veut trainer
n'etant pas capable de discerner !es consequences de ses actes, n'a pu de ce fait
commettre une faute?
devant !es tribunaux comme il le merite.
(Can M. Seguin use as a defence the fact that Benoit is a very young child and that,
This can be translated into legal terms as: therefore, he cannot be held liable for contributory negligence?)
Un fermier a subi un prejudice materiel residant clans la perte de son cheptel et tient le fermier (d) Apply the relevant rules. Once the facts have been translated into legal terms
voisin civilement responsable du dommage occasionne. II desire le poursuivre en justice. and the issues identified, it becomes possible to state the relevant rules and 10 apply
(c) Identify the legal issues (in French, problemes de droit or problemes juridiques). !hem to the issues of the case. In Problems 1 and 2 the relevant rules are as follows:
This step is the follow-up to the preceding one. It is also a vital move in the process Problem 1:
of answering a problem and indeed the hardest one, since the whole construction of
Issue J(a): Articles 524-525 of the Civil Code (both defining the notion of immeubks
the answer rests on it. In a French cas pratique, there may be either a series of major par des t ination;
·
on this notion, see Ville de Geneve et Fon datwn
· Abe"~"" v Co11sorfs
legal issues, each giving rise to a separate question, as in Problem I or a single main Marga"/d'
1 15
cussed at Chapters 8 and 16). .
~egal iss~e with a number of related legal points, as in Problem 2. Again using the two
1llustrat10ns, the legal issues can be identified as follows: Issue 2(b)· Th .d oisinagewherebyane1gh-
b · e so-called doctrine of troubles anormaux e v . onably
our can . . re than what is reas
Problem I: not impose on another a degree of nmsance 010 16)
consider d . ( further Chapter .
st e to be a normal standard of inconvenience see
Issue l(a!: Le_s atues et autres objets mobiliers sont-ils, au sens de la Joi, des immeubles In Probl
par destination fais t · • .
attaches? ' an ainsi partie de la vente de l'immeuble auquel ces objets sont Main is vision desmbing
,.
d't•
1 sue: Article 1382 of the Civil Code, the key pro f elel'ance are the
tons £ . . · Also o r
or civil liability, i.e. fault, damage, causauon.
D
{Jft ~I ill
\1r
A ll f- n C trl
l:; :e
7
'- DISSERTATION (ESSAY QU
EST(()N)
LEGAL EXERCISES
216
much the choice of a particular sol .
I·snot so . u1ion, but th
. causation in the French d ed on h t particular solution. However, this d e reasoni
articular rules governing . . law of dtort, as they
. . arise in th e -~ g to t a . oes not pr ng ' •h;ch
P db the courts, namely eqwva 1ence es cond1t1ons (any ev ! Jed 1heJJl h n necessary, especially when they hav b event student;, _.
two approaches adopte Y . ent pas ·fie W e e een spe ·fi utin°
without which. the Ioss wou Id not have been incurred 1s the . cause of this. loss) and, re speCI ' dvise' a plaintiff. In such a case, students . h . c, callya.1ked 6
J!lO . iie to a . . rn1g lindica . in a
. •adequate
causabte • (on 1Y the event which is regarded as bemg the determining cau se aspratiq this choice from possible options is correct! . . te their l<Jlut;
. 1o be treated as a cause in law). In respect of the animal feed • art · ' 1Ong as . .. YJustified (b ,on
of the damage 1s .nd, as Jaw or in academic wntmg, a call for re£ Yanew trend
.,. . in case orrn on the iss
1384 alinea I is also relevant (see further at Chapter 15). ef!lerging_
will bec onsidered acceptable and marked according!y. ue, etc.), their
. (') answer
Related issues: 1 Th e doctrine of subrogation under which. the .defendant. is entitled
to pursue any cIaim . that the plaintiff would. have had against third parties in respect TION OF THE ANSWER
of the loss. The doctrine of obligation in sohdum may also be of relevance here: where pRESENT.A .
damage is the result of the combined fault of others, the plaintiff can sue any one of determined formal presentation as is the case w·th .
the joint defendants for the whole sum of the damage suffered. eis no pre I essay wntin ·h
J1ier . spratique. Studentsareexpectedtodiscussthev . . g. en
swenng a ca . . . anous issues orle al
(ii) Article 1384 alinea 4 of the Civil Code on parents' liability for their children's an . cession followmg a short mtroduction stating the f H g
oints IO sue . .. . acts. owever in
negligence, as well as the relevant case law, especially Gabil/et v Noye (1984), D. 1984, P 1 a number of basIC wntmg skills are expected. These w ·r k· '
French aw, . . n mg s"ills are
525 and Fullenwarth v Felten (1984) JCP II, 20255, the two landmark decisions of the 'd din the next section on essay questions, but they apply equall t
,ons1 ere Yoansw,r.
Court of Cassation where it was decided that there was no further need for an injured ing problems.
party seeking damages to show, as had previously been the case, that a young child
who caused harm had the capacity to discern what he or she was doing at the material \
,,, time (see further Chapter 15). I
I
DISSERTATION (ESSAY QUESTION)
Whatever their sources, these rules must be examined and discussed at length
I, prior to their application to the facts. Thus, students must describe and explain the
1, Dissertation is the French equivalent to 'essay question' in English (note that the
relevant code and statute provisions (or general principles of law), as well as the rele-
vant case law. Academic writing must not be neglected, especially in controversial closest equivalent to the English term 'dissertation', in the context of French legal
areas or in areas where at the source of a judicial solution is a particular doctrine education, is memo ire, a very long essay that postgraduate studentsareasked to write
which has been developed by recognised academic lawyers. Such is the case in the as part of their course work). In the context of an examination dissertation is al.so
law of tort where the two main approaches to causation adopted by French courts referred to as sujet theorique and is of three hours' duration, the usual time givenfora
(referred to above) originate from the works of the German jurists Von Kries and law exam in France. When compared to an essay question in English law.dissertation
Von Buri. Thus, in cas pratiques which raise an issue of causation (such as Problem · a1anger and much more formal wntten
1s · · · g much more than
· a1so requmn
exercise
th b .
2), these authors must be cited when answering and their contributions to this area e asIC techmques usually mvolved m Eng11s ega essay wn·1m
. . . . h l I · g· Indeed •aFrench.
oflaw being discussed. Iega I essay has a particular format in that it must compIYwi'th a number of specific
(e) Propose a solution. The solution to a cas pratique must arise out of the applica- .
requirements. . mus t be brought out
In this respect, the layout of the discusSIOn . by h
tion of the relevant rules to the facts, following a line of reasoning similar to the syllo- th e use of headings and sub-headings, each of which bemg . cIearlYindicated.mt e
gistic approach adopted in judicial decisions (see Chapter 7). A good problem-solving ans wer. What follows is some guidance on how to wnte . a good (eaal
0
dissertaf1r11.
technique cannot do without showing this logical link between facts, rules, and the
solution proposed. Furthermore, in circumstances where there is more than one pos-
sible solution to the legal issue raised, either because the situation is not clearly dealt ~;UJEr, Tour LE SUJET, RIEN QUE LE SUJET
th st ELSEEBur TOPIC, ALL THE TOPIC AND NOTHING
wi by atute or code provisions or because case law is not consistent on this issue, it
is important that all these possible solutions are stated, for what students are primarily THE TOPIC) . rderant
11. , lyi,•hat ,s
'Ills is o .. gests that on ing to
t h ne of the golden rules of essay wntmg. It sug . h before ;tart
o t e to . h r entails t a •
I
Pie should form part of the essay. It fort e
LEG AL EXERC ISES
228
i
. h fthe question to be answered has been carefully thought h a way of answering will only result int
wnte, t e scope o . . . out and sue wo separate . .
. . ot an easy task especially as essay questions m French law her than an essay that compares and cont h mini-essays on each .
de ti ne d . Th 1s 1s n are very ra t rasts t em wh· h. notion
oft en word ed mg • eneral terms similar to chapter or lecture headings · Thus·• ·t1y required. The process of comparing inevit bl . ' . '' is the approach i 1.'
c1 . . . . a y implies the. . mp I·
Essay I: Le droit au respect de la vie privee two notions involved, but with a View to bringin the . _ )Uxtaposuion of the
. . ·1 . . d d" . . g m into relief d h
H the generali t}' of the question might suggest that all topics that fall With·
m~ I. bing their s1m1 ant1es an 1ss1m1larities. Su
g
f ,an t erebyestab-
right to privacy are relevant. However, this cannot be the case for that would only be effectively achieved by approaching the questi f panson can, th us, only
lead to a mere recital of the relevant part of the course that the question addresses . . on rom va nous .
lternattvely, by structuring the answer around a b perspectIYes or,
This is not the obJ·ect of the exercise. In fact, what students are expected to d h · a . num er of releva h . .
. . ow en ommon to each of the two given notions. Thus i E nt c aracten,tics
c , n ssay 3 above I
faced with this type of question 1s to bnng to the surface the underlying prob! .
ematic Co uld be contrasted from each of the following poi·nt s of view:
. ' aw and morals
aspects of the question for consideration and discussion. In Essay l this might be the
bound aries of privacy. Indeed, these boundaries are particularly problematic when (a) source
viewed against the competing right of freedom of expression. A further problematic (b) content
aspect of the question of privacy could be: can privacy be adequately protected and (c) objective.
how (legislation, self-regulation ... )?
Defining the scope of a question to be answered is equally difficult with two other Alternatively, comparison can be achieved by using themes com b h
mon to ot con-
cepts, such as:
frequently employed forms of essay question. The first, which follows now, refers to
questions which are formulated with a question mark such as: (a) law and morals as rules of conduct in society
Essay 2: Peut-on dire de la jurisprudence qu'el/e est une source de droit?
(b) law and morals as rules aimed at achieving justice.
The problem raised here is more identifiable than in the former type of essay question
(Essay 1). This implies, with greater force than in the previous example, that students
PLAN (LAYOUT)
limit the scope of their answer to what is asked for, and only for what is asked for.
Again, answering successfully requires a careful delimitation of the boundaries to Planning an answer is essential to essay writing. However, in French law, it is not an
/1 the question put, so that students do not end up writing everything they happen to overstatement to say that the structure of the answer is as important as its content. In
know on the various aspects of the general subject, in this case jurisprudence. Full this respect, French legal essays are expected to display a very formal structure called
general knowledge on a topic can never make up for the necessary thinking required plan supporting the argument developed in the discussion. A good plan is made up
to tackle an essay question. What lies behind the question mark is very often a con- of the three following elements:
troversy or, more generally, an important question which is open for debate. It is this
(a) introduction
hidden controversy or debate that, once again, needs to be brought out to the light
(b) two-part discussion
for consideration and discussion. This does not mean, however, that students are to
tak~ positions in this debate. French essay writing is concerned with presenting the (c) conclusion.
lawman objective way, not standing up for one's own personal opinions. Thus, what
students are asked to do · t t b h .d Introduction
. is o s ate ot s1 es of the legal argument raised by such a
questwn, refraining from g tt · II . . h 1 0 1di«ertaria11 in that J ~oud
e mg persona y mvolved in the controversy one way or The mtroduction is an important part of the Frenc e"a ··
another or starting a great debate on the question. . d im ression upc,n the persc,n
mtroduction will not only immediately create a goo P . h f II ..
Another common ki11d 0 f . . . . r of the discussion t at o o1».
d essay quest1011 that may cause difficulty 1s when stu- markmg, but will also strongly influence the qua ity I to the
ents are asked to compar d . . 1.n contex t, from tI1e genera
tJ
E . . e an contrast two not10ns or concepts. For example: A good introduction should put the que ionst . (fun nel). Taking
S dssay 3: D1stmguez la regle de droit et la regle morale . h hnique of w to11 no1r .
particular. This is known in French law as t e tee . Id first ascertarn
tu ents dealing with this . . . . he introducuon s1iou .
·d que s tion must be careful not to treat the notions side by as an example Essay 2 above on Jurisprudence, t . hen consider genm lh
s1 e or one after the oth d ·1 ( ource c,fla11 ), t
er, e.g. as I- La reg/e de droit!II- La regle morale. Indeed,
th
e meaning of the phrase source de roi s 'I
I
I
I I
'l I l
23°
LEGAL EXERCISES
-
h Jaw arises, namely legislation and DIS SER TA. TION (Ess•y Q
which Frenc . CUsto UEsn o~)
rces from t al question asked, 1.e. whether jurisp llJ,
.,,- nt sou 'd the ac u . . . rude 231
the d1uere . n to cons• er . fically, an introduction 1s intended t nee not only is this format the one adopted b d .
c re moving o
be10 rce oflaw. More spec• 7 o answer
. Yaca em1cs and r ..
constitutes _a so~What? Why? and How. ing learned articles and case notes but also th b . P achl!oners when writ-
plan as descnbed. '
above leads to poor mark eTh'
a sence
, 1n thei r papers of any v1s1ble ..
est10ns.
three qu s. is ,ormat actual!
purpose. First, from a teacher's or examiner's . f . . Yserves a twofold
point o view' II conve
at first glance, an appraisal of the structure of th _ . lYa 11ows,
ruent
cope o f t h e question and explaining its meaning, lb us, •n
.
7
what. e answer, makmg the marlu ng f a
. f defining the s t of source of law and then state what a h paper much easier and less time consuming. Seco dl f O
Consists o . d fining the concep re t e . headings and sub-headingsn Y, rom
2 begin by e a two-part plan with .d ahstudent's . point of view,·
Essay • flaw in France. essay which,. once put down m . wntmg,
.. hinder anyprovi
t tes I. e mam threads for an
official sources o
the subject. Havmg said this, the extreme emphasis law t ation
. . . . emp h to stray too far from
requirement for a plan often leads students mistakenly to th· ers
. eac k husually , place
, on the
Why? . the significance of the question asked. This Would . . m t at a good
'th presenting . . l d . be a substitute for lack of content. This is never the case sine , d' . plan can
Is con cerned w1
. . . a soc iological, h1stonca
levance in . , an .comparative
. perspec. . . . . e a goo p1an 1s not one
that merely exh1b1ts attractive headmgs but, more importantly · th h
.me1ude showing its reshow the re1evan ce of the question asked m. view of the particu. ately reflects what is being discussed. , IS e one t at accur-
2
. Thus ' in Essay , recedent in
uve. . F ranc e since the 1789 Revolution and of the French French law usually distinguishes between two kinds of plans· pla h · d
plan d'idees. • 11 Iec mque an
1ar status ascribed to. P
n of powers, as we JI as in the context of an absence of doctrine of
doctrine of separatio h t £ound in common law systems.
· ·Jar tot a (a) Plan technique adopts the technical subdivisions that are usually used in
binding precedent s1m1
legal writings to describe a notion, an institution, a right, or a particular court.
Thus:
How? . will be discussed, namely by outlining
. which the quest10n
ls showing the way in the argument (see the proposed plan for I- Definition/II- Application (for a notion, such as bonne Joi (good faith))
. h will then be used to deve1op
a plan wh 1c I- Conditions/II- Effets (for an institution such as marriage)
I- Formation/II- Execution (for a right such as the right of ownership)
Ii Essay 2 below).
It is advisable to wn e
d .
't the intro uction on
ly when all the various points of the
..
d d ft d . n rough the reason being that it is
I- Composition/II- Role (for a court such as the Court ofCassation).
h ht bout an ra e I ,
argument have been t oug a . t the full ambit of the question (b) Plan d'idees is built up around the main issues (ideas) taken from the question.
only at this stage that it becomes possible to apprecia e
For example, in Essay 1 above, a plan d'idees would be:
asked and to figure out the componen t p arts of the answer.
I-Faut-il proteger la vie privee?
A-Les difficultes adelimiter la sphere de la vie privee
Turo-part discussion d fi d parts. Unlike B-Les interets en conflit
d nd two well- e ne
A French legal essay is usually constructe arou . th ee parts (known as II-Les solutions adoptees en droit fran~ais:
. . d IOp an argument m r .
arts subjects where the practice IS to eve art dissertatwn, A-Par le legislateur
' . . tt ched to the two-p
these/antithese!synthese), French JUnsts are very a a 'd t legal argument. B-Par le juge
probably reminiscent of the fact that t h ere are a w ays two s1 es o a mbered on the
I
1 In Essay 2, it would be:
These two parts form the core of the plan an d s h ou Id be clear Y nu Id be further ub· 5
. a formal title
essay or exam paper with . for eac h o f t h em. Theyshou . are arranged I-La jurisprudence n'est pas une source formelle de droit:
divided into paragraphs where the various elements Of the discussion·f required ( ee 5
A- En raison du principe de la separation des pouvoirs
. separate sub-headings, preferably two, clearly l a b e ll e d A ' B, etc.,'Ibis
m I writing
. 0
r· B- En raison de la prohibition des arrets de reglement
, l d' 'd' s' below). hen II-La jurisprudence est une source effective de droit:
the practical applications provided under (b) p an I ee dents who, W .
. oft en a cause for astonishment, or even d ens1on,
. . A-De par !'existence d'une hierarchie judiciaire
mat 1s a mongst stu h' ng aca deJJ11c
fi . . '
rst mtroduced to it, think that it is a rather 'schoohsh way O fapproachey
I . that
realise
a
B-Grace la mission d'interpretation
· · However, they very quickly change that atti·t u de when t
1ega 1Wnting.
l:
LEGAL EX ERC!S ES
232
COMMENTAIRE DARR ET (
CASE STUDY)
. d plan d'idees is dependent upon the nat 233
tec/llllq11 e an Ure
. bel\,·een plan . t·ke those given above, 1end themselves t
The ch01ce ues11ons, 1 oa upon with some brief notes on the mai ·
estion itself. Some q bl s they raise or the controversy they generat n points to be addre d Th
of theq U O
fthepro em . . e. rough copy of the full introduction is als 0 sse · e preparation of a
recommended as th · ·
1 d'1.dees on accountd to technica
pan
.
1an d working aspects of a notion, an mstitution a very important part of the paper Stud t • ts rs considered to be
mpare, or contrast, call for plans technique · en s must refrain fro ·• .
Que stions 01 ore relate
. tO descn e, co
.b
s. work on the actual exam script which th h m wntmg their rough
right with a view bove on the distinction between regle de dro·r ey t en cross out whe th fi I
or a been written. Plenty of rough paper is prov·d1 ed dunng
. · n e na copy has
,
' ards Essay ., a , . . . , French Ia\\••exammal.Jons
· • for
This is the case as reg h 1 ;q 11 e such as: I D1strnctzon quant au domaine/ the students to use!
•h·ch fits a plan tee ,
and regle mora Ie," ' 1· , As regards content, students must also make sure th .
. nt ala fina rte. ·· h · d· · ey adopt, tn the process of
JI_ Distinctron qua _ . d . h t there is no 'ideal' plan. Thus, all the examples wntmg t eir 1ssertatro11, a strict legal approach I0 1h b.
. b r rn 0110 rs t a . ·1 h' 1 • . e su Ject under consideration
One thing to ea . As long as the plan adopted 1s correctly justi- Ph I osop 1ca cons,derahons, for example sh Id ·
e mere suggestions. . . ' ou not orm part of the discussion
illustrated above ar ts of the question it will pass as a 'possible' plan. A ph1losoph1cal approach to a legal question ve O ft k ·
II the relevant aspec ry en ma ·es the whole discussion
lied and covers a . k , bags! Students need a good working knowledge pompous and woolly when what is required is sim r 1·1 d ·
1
O ot found 1n uc ()
. . . P " Y an ngour. However, the
Also, plans are h d some practice before being able to find a plan mtroducllon may bnefly consider extra-legal im r t'10 f -
• lot of thoug I an . . P ICa ns o a question as long as
of the subject, a ·s Ii.nail)' adopted, the two parts must be counter- this 1s relevant. Personal comments value-1·udgem ts d •--
. ' en an even Cnt1C1sm are to be
. . table. Whatever p1an I . . avmded. Such personal statements as 'Je pense' or 'a mo ·, · d.
which 1s accep . . detailed as compared with the other 1s a sign _ _ 11 av,s areviewe ma very bad
d· art which is too 1ong or 100 hght by teachers and examiners alike who expect students t h ·
balance · a P , . d needs 10 be reconsidered. Furthermore, each _ . o answer t e queshon put
h h en plan is de,ecuve an to them man impersonal, _non-partisan way. Personal opinion is left to senior jurists
that t e c os h d' should be connected to each other by a transition
of the headings and sub ea rngs . such as law teachers who, m France at least , like to think that they kn · ow better t h an
linking the different parts of the discuss10n. ~he stu~ents themselves_! Having said that, some degree of criticism in essay writing
1s permitted as long as 11 reproduces an accepted view and is conveyed in non-per-
Conclusion sonal objective terms. Finally, the writing content should be shorn of needless repe-
• · clusion is not compulsory. In fact, some teachers tition and thereby comply with the norms of the ideal style oflegislative and judicial
In a French legal d1ssertatzo11, a con . . ..
. t dents not to write a conclusion since, not being intended by definition drafting as described earlier in Chapters 1 and 8 of this book.
d
even a vise s u h ·
thing to the discussion, it is therefore redundant. Furthermore, t ere ,s
to add any . . h • I ·on
. d the part of students to introduce points int eir cone us1
sometimes a ten ency on . fi d • t
that have been missed out earlier in the discussion or that they did not n time_ o COMMENTAIRE DARRET (CASE STUDY)
consider in the main body of the text. This produces a very bad effect, which explai~sf
· fa ct is only useful 1 Commentaire d'arret consists of a detailed analysis of a judicial decision, usu-
why in this case a conclusion should be avoide d . A cone1us10n · in
. · ortoopenupa ally a decision of a highest court (Court of Cassation, Conseil d'Etat and Co11seil
it serves to sum up the points made in a long and comp1ex d 1scuss10n . . Constitutionnel), with a view to evaluating this decision and assessing its legal impli-
discussion towards other perspectives, not spec1'fi. ca IIya dd resse d or contained rn the cations. This is an important exercise in that it enables law students to assess the true
question being considered. meaning and scope of legal rules through the interpretation made of them by the
courts. French law students, with some justification, particularly fear this exercise
STYLE OF WRITING A DISSERTATION in view of the hermetic jargon and peculiar structure featured in French judicial
decisions. These particular features forcefully highlight the main difficulties of com-
. attach great
The first thing to bear in mind is that French law teachers and examiners ft mentaire d'arret: how can anyone comment meaningfully on a text saying so little
. . d . very o en
importance to formal presentation. A piece of work that looks untl Y is , and in a style so unfavourable to further discussion? There is no magic recipe for
· It ·s there,ore
thought of and judged by teachers as unmethodical or unsystematic. 1 overcoming such difficulties. Mastering commentaire d'arret is a long process which
. •1 · the fina 1
essenl!al for students to write a first draft and then to check the detai m may take years of study and is achieved gradually through the ongoing process of
. f ns as they . . . l experience
· of reading cases. There 1s, how-
copy Of t h e work prior to submitting it for marking. During examma 10 ' . acqumng knowledge and the practtCa .
d0 h .
not ave lime to draft out answers in full, students should, before wn
'ting the1r
. d ever, a set of guidelines on the basic tee mques to e app lied to the reading, analysis,
. h . b
fi naI answer, wnte
· down m . rough in bullet-point form the plan they have deClde
a : At: t NJ
LEGA L EXERCISES
234
. d"cial decision that each generation oflaw t COMMENTAIRE DAR •

. fa Frenc h JU 1 eache L RET (C AS E sn·oy)
2 35
and discuss10n o Th idelines now follow. rs •1as
don to the next. ese gu
passe
Box 11.2 READING A FRENCH CA _ •
SE. ARRET l AND ARRE- T 2
READING A FRENCH CASE Arre/ I:
d in conjunction with the descriptions of the ,Par ~es motifs, et sa ns qu'il ait lieu
. . n should be rea . . . grarnill . [ N"IIS ]
d examiner les autre s griefs du poJrvoi:
This secllo fFren.:h judicial dec1s10ns m Chapters 7 and 8 b at,.
I nd logical structure o a ove 1h di;AS_SE ET ANNL;LE. dan, ioutes ' '"
ca a k ly at the way judicial decisions are laid out in la · e RESPONSABILITE DELICTUELLE O
ent~~r1a ns, _l'arret rendu le 21 av ril 20 00,
resent chapter loo son • w reports QUASI DELICTUELLE U
P . . two decisions (referred to as Arret 1 and Arret 2) a · sai lle/~:~:\1es, par la ~our d'arre.l de VC'r-
By way of 11lustrat1on, . re set out (l) Choses ~ont ~n a la garde - Garde - Pouvoirs les parties da~;~. ~ons~que nce, la C.3.USC' et
•ce made here of two Court of Cassation decisions is . . d ~ controle,_ d us_age et ~e direction - hcalade avan I d . . etat au ell es sc: lrOU\a ient
in Box I 1.2. Th e ch01 Justified dune parot - Pierre sen detachant t . e it a rret et, pour c!t re fa.i t droit, les
. F ench Jaw schools students usually start their apprenti h· . 1e renvo1e deva nt la cour d'arpet de Rouen.
by the fact that in r .. . ces 1p in (2) Ne dom,e p~s base legale ci sa dicision au
(Sl N• 00 -16.732.
.. b nal}·sing deos10ns of the Court of Cassation. These decis" r~g~rd de l art1:le 1384, alint?a l", du Code Socitte Azur a.ssurance.s
commenta11 e Ya ions are c,~,l, une cour d appel qui, pour condam11er w1 t t au tre.>
d do not require for first-year students who have not yet ac . gr_1mpeur, ~yant provoqueau cours de l'escalade cont rt AL Bauja rd
usua II y shor t an • . . quired d_,me falatse la _chute d'une pierre ble.ssa11t tm et autrt:.
the necessary expertise, the technical knowl~dge and skill mvolved in the reading of ti~rs, ti payer d1verses sommes a la ,•ictime en esidcnt: ~'L Ancel - Rapporteur: M. Bizot
(6) Pr_
reparatt~n de son prfjudice corporel, retient
a Conseil d'£tat or a Conseil Constitutionnel Judgment. qw: legr1mpeura prt?cistque la victimeavait ere
-Avoca t ¥b1fra l: M. Joi net -A meats; la SCP
Parmentier et Didier, la SCP l esourd
French law reports usually follow a standard more or less similar to that illustrated frap pee p~r une_pierre qui s' ftait dCtachte alors
qu_e_lle lur servai_t de prise, et que le grirnpeur, en
in Box 11.2. Thus, reading down the two cases in Box 11.2, the following elements ut,/Jsant une p,erre .dt:termin t:e com me prise,
en e~t devenu gard,en, sans preciser en quoi Arret 2:
can be identified (the bold numbers after each heading below correspond to those in le g:1mpe_u': en prenant appui sur cette pierre
determmee » avait acquis sur cette chose w1 N° ll6
the illustration):
c(
pouvoir d'usage, de contrOle et de direction

effectifet i11dt:pe11dnnt caractt!risant la garde.
(a) The abstrat (1): this is a short paragraph made up of a series of key words aimed 24 avril 2003
1• RESPONSABILITE DELICTUELLE
(3) Cassation OU QUASI DELICTUELLE
at identifying at first glance the subject matter of a case. (4) Sur le premier moyen, pris en sa premiere
branche: (I) Faule - Sporls - Escalade - Chute - Chule
(b) The sommaire (2): similar to a headnote in English law reports, it contains a (I .I) Vu !'article 1384, alinea I", du Code civil:
d'une pierre du parcours - Df denchement
non fautif
summary of the court's decision. Its size may vary (and can, indeed, be shorter or Attendu que, pour condamner in solidum
(1 .2)
and Mme Bersagol, la compagnie Azur assurances
longer than in the cases provided in illustration) according to the length of the deci- (UJ et la Mutuelle nationale des sports, devenue
2° RESPONSABILITE DELICTU EUE
OU QUASI DELICTUELLE
sion and the number oflegal points raised by the case. The sommaire is drafted by the La Mutuelle des sportifs, payer diverses a
a a
s~mrnes M. Bauj~rd et la caisse primaire (l) Choses donl on a la ga rde - Garde - Pou-
case reporter, not by the judge who gave the decision. It is, therefore, not part of the d assura nce malad,e du Val-d'Oise en repa- voirs de contr6le, d'usage et de direction -
ration du prejudice corporel resultant de la Escalade d 'une paro1 - Pierre s·en Jet Jcbant
judgment and cannot be used as a substitute for reading the case. chute d'une pierre provoquee, au cours de (2) 1° L'un de.s membres d'un groupc de cinq alpi-
l'escalade d'une falaise, par Mme Bersagol,
(c) The date of judgment (3): in law reports other than the Bulletin the date is u5u· l'arret retient que cette derniere a precise que
nistcs, rt!alisant un e escalad~- t"ll mo rit1.,1gne,
ayant f?ti! fn1pp i! par Wi t' pierre mise f1I mouw-
ally preceded by the name of the court in which the case was heard, a detail not needed M. Baujard avail ele frappe par une pierre mcnt par l'un de ses camaradi:s qui le prfrfd,1it
qui s' eta ii detachee alors qu'elle lui sen•ail de et aya nt Jait une chu tl' di.' ~iJix,rntc:-di:c mf'tres.
in the Bulletin since this publication only includes Court of Cassation decisions. prise, et que Mme Bersagot, en utilisanl une sc: blessant grit?vement, 1mt cour d',1ppd qw.
pierre dfterminee comme prise, en est dev- pour dCbiJuter 1a rictime de sa Jemandt en
(d) The text of the judgment (4): this is discussed below in the next sub-heading. enue gardienne; rfpara tion, rl"titn! qut' so r1 camaradt nin ·ait
(1.41 Qu'en statuant ainsi, sans precise r en quoi pas un, compt'toi ..:e diilprnistt' suffisa.,1tt· pour
. (~) The names of the parties (5): starting with the name of the appellant (or plain- Mme Bersagol, en prenant appui sur cette i tre q1rnlifii dt· clrl:f ck curJl;e tt pour tndos.sa
Ia ri:spo11sabi/1t f de la conduite de !'t·scaludc.
tiff 111 the lower courts), 10
c: II
owe d by the name of the respondent (or deien
c dant in pierre determinCe, avait acquis sur cette
qu'il ne pou\•ait r11courir It r,procli t d 'in·oir
chose un pouvoir d'usage, de contr61e et de
the lower courts) Th t . . Ih French omis, marcJtant en ti lt, d'i,l(o rmcr Si'!' ,1 mis
. · e erm contre 1s sometimes abbrievated c. and is e direction effectif et independanl caracteri-
du risque dl' d111 re dr pH'r-res pam: que ror, ~
1egal equivalent of'ver , b . , . h differ· sant la garde, la cour d'appel n'a pas J,mn e
le con1111is..,ait'rt t rur 111 /ti-tllU prt·dl.ible du
f sus ut, unlike versus', contre is not spoken 1n Frenc a
de base legale sa decision au regard du
guidc-hipo du p,m '.01ir~ cl pu rt"l' que la con-
ent 1y rom the way it is w ·1 r not i.t texte susvisC; naissana d'un tel ,lii nger sur rm parcours
the end f h . n ten. In other law reports names generally appea ' h
o I e Judg l"k . ' et e
judgment. ment I e 111 the Bulletin, but after the sommaire and be or
C
- 2_16
LEGA L EXERCISES
. ' us le Si.'11S co1m11 1111 >•: a

. ·rre1l.X .rombmt _o tata tio11s et h10no(1 -
et instable, et avoir pri d ,
. I' . . d /'
. s •lava
camara d es, dec/enche la h
c Ute d'
nc, ,,,,
,,,
COMMENTAIRE DARR ET (C ASE STUDY)
. 137
p1, /Muire de ces co11s t de la chute d'1111e a ong111e e accident d Un roch

pu ' · I dccle11ch,111e11 I'un des participants d ont a et; Vier'' (f) The composition of the court , together with th f _
tiorrs qu,t e_ asJa11tif. . • e sorte , re, ""• . ( )· h . e names o counsel appea rmg
pierre11 t'f.ll f P decision au san t d equalifierdefaut,if/ h quen m the case 6 . a 1t ough these details are importa t · F hI
t ·a , a c uted ,u. . . n , m rcnc aw reports they only
2' /11st1 ifie ./egakm e11 '
384 a/i11 ea I", d11 Co e
d prov_o1uee par M. Morris, la co roch., appear as footnotes to a dec1s1on and in small pri t It h Id h
. . _ n - s ou , owever, be noted that
d /'artlCICI ' , / · v,o/e I article 1382 du Code civit d appe1 Q
regard e d' el qui retie11t q11 "" a p1- the status of the pres1dmg Judge is usually a good ind· t f h -
civi/, 11 11i:COUf ~1pp { r ,mcpier re <1 ,ie po11 - (2.3.a) Mais attendu que J'arret r 1. ' . _ 1ca or o t e importance of the
- 111t /ep ic, SIi ., e 1ent p issue(s) raised ma case and may influence the weight th t d · · - · h. -
11iste po_~' n/lliblemen t diriger et contro ~r propres et adoptes, que M M' ar motifs a a ecmon carries lt 1s 1s
. · orris n'
vait raiso., la ,ulle ii marche auss P> pas u:'e competence d 'alpiniste avait certainly the case when the Head of the Court of Cassat.1· ·d
certe den11ere :rnr/ q as exerd sur celte pour etre quahfie de chef de d _5uffisan1, on pres, es over a case, a
•·1 1'1va1I i one P . cor ee et circumstance which is exceptional).
et qu i , ' . ·deco11trole et dedirect1011 en d osser 1a responsabilite d Pour
ia rc: Jes pouvo1r~ ' I I
de l'escalade et qu'il ne poue a conduit,
P , . t /aga rde d 1111 e c ,ose. ' . vau enc . Unlike English law reports, in French law reports, there are no identifying letters
qlli (d fO CIC rt $C11 .
Re;et
Ie reproc h e d avo1r omis mar h our,,
(J) 24 avril 2003 . d _,.m,ormer
, ' c antenr
ses amis du risque de ch et,, in the margin or even numbered paragraphs providing a reference point when citing
d selon l'a rret attaque (Paris, 9 m_a, p1erres pare~ que tousle connaissa/te de a judgment. The reason for this may lie in the brevity of French judicial decisions.
/' M. Martin Sabry, citoyen angb1s, la lecture prealable du guide-to dnt pa,
•.IJ embre d'un groupe de cinq alp1mstes t I po u par. However, decisions which are longer than normal, such as lower court decisions gen-
cours e parce que a connaissance d'un tel
~alisant une escalade dans le mass1t . de danger sur un parcours pierreux I b . erally, or higher court decisions raising a substantial number of issues, would cer-
1 « om a11
l'Oisans, a ete, au cours de la progress101'. sou s _e sens ~om~un »; que de ces con. tainly benefit from letters in the margin in that it would make the reading of such
ans un couloir pierreux, frapp e
du~uPe d I' statat10_n s et enonc1ations, Ja cour d'appel
par une pierre mise en mou~re?1e~t par u~1 a pu de?une que le declenchement de la decisions easier, especially during class time where at the moment the only way to
de ses camarades qui le preceda1t et a fa1t chute dune p1erre par M. Morris n'itait locate a piece of text which is being referred to is by counting the lines!
une chute de soixante-dix metres, se bles- pas fautif;
sant grievement; qu'imputant I~ chute de
D'ou ii suit que le moyen n'est pas fonde;
la pierre ason camarade M. Ahster Mor:
ris, M. Sabry l'a assigne en repara!Ion ams, (2.2. b) Sur le moyen unique pris en sa troisieme THE JUDGMENT
que son assureur, la Mutuelle nationale des branche:
Before examining in detail a Court of Cassation decision, a distinction must be
sports, devenue la Mutuelle des sportifs, Attendu qu'il est fait a l'arret, le meme
en presence du Department of Health et grief, alors, selon le moyen, !J.Hf_ J'alpiniste drawn between the two types of decisions given by the court, namely am!t de cas-
de la caisse primaire d'assurance malad1e qui provoque la chute d'une pierreen posant sation (as Arret 1) and arret de rejet (as Arret 2). Arret 1 is when the court upholds
de Grenoble; que M. Medhat Sabry et son le pied dessus doit en etre co11sidere comme
epouse, Mme Sine Andersen, pere et mere le gardien, qualitt! que la cour d'appel a the appeal, deciding thereby that the lower court came to the wrong decision . Arret
de la victime, son! interYenus a!'instance; refu see aM. Morris, en violation de /'article 2 is when the court dismisses the appeal, having thus agreed with the decision of the
(Z.2.a) Surle moyen unique, pris en sa premiere et sa 1384, alint!a 1", du Code civil; lower court. The outcome of a case is indicated in the final part of the court's judg-
deuxieme branche, laquelle est recevable: (2.3.b) Mais attendu que J'arret ayant retenu, par
motifs propres et adoptes, qu'un alpinist_e
ment, the dispositif as follows:
Attendu que les consorts Sabry font grief
al'arret confirmatif de Jes avoir deboutes posant le pied sur une pierre «ne peut ra,-
(a) Arret de cassation
de leurs demandes en reparation, alors, sonnablement pas dirigeret controlercette
selon le moyen: derniere sur laquelle ii marche aussi» et Casse et annule ... l'arret rendu par la Cour d'Appel de... (quashes the decisio n given
que M. Morris n'a done pas exerce sur cdte
I' qu'en 11'aya11t pas recherc/11!, com me elle . . d' usag e, de controle by the Court of Appeal of ...), in conjunction with an indication of the lower court to
y etait invitee, si /'expert M. Daubas n'avait pierre Jes pouvo,rs d
pas mis en evidence qu'un groupe d'alpinistes et de direction qui caracterisent la gar e which the case is referred back for reconsideration or,
etait necessairement place sous la responsa- d'une chose, la cour d'appel a legaleme~t
justifie sa decision au regard du texte vISe:
(b) Arret de rejet
bilite d'un chef de cordee charge de prendre
/es decisions relatives a /'itineraire et a la Rejette le pourvoi (dismiss the appeal). d
Par ces motifs:
securite et que M. Morris avait /'experience
It should be noted here that in appeals to the Court ofCassation the term use or
req,11s_e, tout en constatant qu'i/ etait le plus REJETTE le pourvoi.
competent du groupe et qu'il marchait a sa h el applies only to appeals from a
Consorts Sabr)' 'appeal' is pourvoi, not appel, The Frenc term' IPP '
tete /ors de «/'inco11testab/e erreur de par- (5) N' 01-00.450. cont re M. Morns
cou:s.' commise, la cour d'appel a prive sa et autres. court of first instance to a court of appeal. . ll f e an other in
· I differ substantla Y rom on
dens,o 11 de base legale au regard de /'article
Rapporte11r: M-
Arrets de cassation and arrets de re;e 1II so f th , d if-
l 382du Code civil; d" a case sh ould be aw,ire o c5c
(6) President: M. Ancel - . Avocats: terms of structure and content. Anyone rea mg ' h- h e i, about. Using the
ap~commet une faute l'alpiniste qui
, , al·M
Bizot-Avocatgener
1-
· ·.Jome1 Didier . d to understand w at t e cas .
r,s s etre engage . ' M . Blanc, la SCP Parmenti er e ferences before any attempt 1s ma e th , . arc now co nsidered:
sur un terram pierreux 1 0
two illustrations in Box 11.2, these differences b et ween e '
the kind
Source: Bulletins de • d Reproduced with
permi ssion of th C s arrets e la Cour de Cassation, 2003.
e ourt of Cassation.
,.,s; , 1 :::4 e:,141:§- g,

,~
LEGAL EX ERC ISES
• ) This takes the following form (the italic

. (Arret 1 .
ssat1011 . )·.
nurnber a~. COMMENTAIRE DARRET (CASE ST U DY)
d
Arret e ca h illustrat10n ~"I 239
d. refers to eac
each hea ing . h •tat ion of the relevant statute or code p . .
) which is t e c1 . rov1s1on \I· q 11 e', followed, when there are two or more branches b ·th h h 'd'
,. , ,, , , , , y e1 er t e p rases une
(a) A visa (I.I a chapeau where the court states m the forrn of a . · 15q Part, d autre part, en outre and enrjin or more si·mpl b b ( ·11 d
followed by • d • th . Prtncip'- • , y, y num ers as I ustrate
. sometimes . d t give to the text cite m e visa. This part f " in Arre/ 2). Each branche forms a separate point of criticism raised by the appellant
is . it in ten s o . o the d .
the interpretation_ h is the most informative part of the judgrn . eci- against the lower court decision. The court may either decide to reply 'en bloc' to the
Ihere is a c apeau, . . . ent SJ.nee .
branches or separately as in Arret 2 (in respect of the third brancl,e). Arrets de rejet
sion, where d , attention the pnnc1ple on which the solutio . 11
. to the rea er s . n given b say very little on the lower court decision other than by allusion. Since the Court
clear!)' brings . . b sed This clear expression of the principle allo Y
Of Cassat10n IS a . . . . Ws a corn of Cassation agrees with the solution adopted by the lower court, there is no need
the Court • . 1 established in earlier similar cases, more spec'fi ll ·
. with the pnnop e . . . I ca y as to repeat in full in the text of the judgment what is regarded by the court as being
panson h ·n the present case confirmed this pnnc1ple, wheth . the correct answer to the case. However, it may happen that the Court of Cassation,
h her the court as I er It has
tow et d hether it has been extended or interpreted more narr whilst dismissing the appeal, does not agree with the reasoning of the lower court. If
been reinterprete ' or w . ow1y.
. t of the facts (1 .2). This statement refers to the parties to the this is so, the court substitutes its own reasons in place of those adopted by the lower
(b) A bnef statemen court (substitution de motifs). However, even in this case, the lower court's reasoning
. fl
case and bne Y escn d 'bes the procedure leading up to the hearing
. before the Co Urt will generally still be omitted.
. Th 1s
of Cassat10n. " statement takes on board
. the
. facts as established by
. the Iowercou r1 (c) The refutation by the Court of Cassation of the appellant's arguments (2.3.a)
. '/ 'arret retient'' used m the Judgment, suggests), smce the Court of
(as the expression and (2.3.b). This refutation is easy to spot in the decision as it is always introduced in
Cassation does not reconsider facts, only law. an arret de rejet by 'Mais attendu'. In rare cases, the actual refutation may be prefaced
(c) A summary of the lower court's decision (1.3). by the statement of the principle on which the solution is based, similarly to a chap-
eau in arret de cassation.
(d) The reasons why the Court of Cassation considers_t~at the c~se wa~ not cor-
Tue difference in structure between arret de cassation and arret de rejet can be
rectly decided by the lower court (1.4). This is the det_e rmmmg ~art m the Judgment
shown in summary form as follows:
which, when considered with the statement and the mterpretahon made of the rule
Arret de cassation
oflaw at the beginning of the court's judgment, informs the readers as to why and to Vu (visa)
what extent the lower court has misinterpreted or ignored the applicable rule. Attendu que (chapeau) (optional)
Attendu, selon l'arret attaque, que (facts)
Arret de rejet (Arret 2) is composed of:
Attendu que ... l'arret releve / retient (lower court's decision) ..
(a) A brief statement of the facts (2.1). This statement is similar to the one in arrit Qu'en statuant ainsi, alors que (reasons for reversing the lower court dec1s1on)
de cassation. Casse et annule.
. d e f ro m the grounds Arret de rejet
(b) Asummaryofthemoyen(2.2.aand2.2.b).Amoyen1sma .
. • · I f n arret dere1et Attendu que, selon l'arret attaque (facts)
on which the appeal is based. The summary of the moyen 1s typ1ca o a
Attendu qu'il est reproche al'arret (moye11) ... alors que ..., alors que ... (bran ches)
since the court, before dismissing the appeal, indicates what indeed were th e a_rgu·
Mais attendu que (refutation)
ments of the appellant which are now being rejected. The moyen a Iways starts eitherX Rejette le pourvoi.
Wit· h the words 'attendu qu'il est reproche al'arret attaque d ,avo,r · ' or 'attendu q11 e.
[th aybe as1n·
e appellant]Jait griefal'arret d'avoir' (as illustrated in Arret 2). There m e
METHOD OF ANALYSIS AND DISCUSSION OF
I ( II
g e moyen ca ed moyen unique) as in Arret 2 or a series of moyens. n I the latter casr
A COURT DECISION .
the mo . '. h urt. Howeve'
yens are numbered and are exammed m rank order by t e co . ues .. h. h . the obJ·ect oi a co111111 enta1re
the court m d .d II when the iss . f · d · · I deos1on w IC is
. ay eci e to consider all the moyens together, usua Y t'me. The critical analysis o a JU icia . . ' f h d' ute leading to the case; (2)
d the same 1 •1 d ammat1on o t e isp . .
raised a · d'arret consists (l) of a detai e ex . . fthe legal imphcat1ons
re mterre1ated, and thus may decide on them all, at one an e sub·
The court in th · . , . , Movensar of an e~aluation of the decision; followed (3) by a d1scuss1on o
. . is case w1 1I then say: 'sur les [number] moyens reums · / 'a/ors
d1v1ded into b h . h phrase
ranc es, Introduced into the text of the judgment by t e
LEGAL EXE RC ISES COMMENTAIRE 0 ,
ARR.@T (CASE STUDY)
240 241
. d db th court giving the deci sion. These three aspects of case to be. commented
. upon. When criti ca11 y appraising th
of the solut10n
. . a hopte
I · Y emi nation evaluation, and d1scuss10n,
. . are usually sum- lowing quest10ns should be asked: c va/eurofthe decision the fol-
analysis in Frenc aw, 1.e. exa ' .
marised under the following separate headings: (i) Has the highest court followed a Iog1cal
. Ii f
decision? ne O reasoning when giving its
(a) sens
(ii) Is the solution adopted consistent wit. h the rules a d . .
(b) valeur the area of law concerned? n pnnc1ples governing
(c) portee. (iii) Is it consistent with the prevalent . .
view m academic writin 1
Before writing the actual commentary on the case, a preliminary task is to consider (iv) Is the solution adopted desirable? g.
each of these headings and the questions they may raise. A basic recommended tech-
(v) Is the solution adopted fair?
nique is to address each heading on a separate rough copy sheet, which will later
(vi) How does the decision fit into the 1.f 1 .
serve as a reference when drafting the actual commentaire itself. context? po • ica 'social, economic, and moral
Preliminary work Portee (third rough copy). Here ' the lega1.Imp11catlons
. . of th d · ·
considered around two main questions , wh·1ch are: e ec1S1on are to be
Each heading is addressed in turn.
Sens (first rough copy). This first rough copy determines the general legal back-
ground of the dispute. In this respect, each of the following questions should be
(i) Does this . . decision fit in with a consistent I'me Of precedents? To answer this
t h.e dec1S1on. to be commented upon sho uId be compared and contrasted '
addressed: with previous cases dealing with the same issue.
(i) What are the facts? (ii) Is this decision
. . authoritative
. (in the French Jega Jmeaning,
· see Chapter 4 on
(ii) What was the claim (in French 'objet de la demande')? factors g1vmg weight to precedents)?
(iii) What was the legal issue at the root of the appeal (in French 'probleme Common law students should be familiar with all the above points · since
· common
juridique')? law case study, in particular the search for the ratio of a case , ·mvo1ves most of th e
(iv) What was the decision of the lower court? questions listed. However, owing to the differences of 'orm
,, , style , and presentation
·
between judicial decisions in France and those in common law jurisdictions, some
(v) What are the arguments of both parties on this issue (in French' /es theses
points will be more difficult to determine in the one system as compared with the
en presence')? others. Thus, the ratio decidendi will prima facie be easier to determine in a French
(vi) What is the rule applied by the Court of Cassation to solve the issue?
case, since the rule or principle on which the solution is based is usually stated in
(vii) How does the court interpret this rule? the judgment; however the statement of the legal issue being decided is rarely made
(viii) What has the court decided and why; in particular, what are the factors overtly in a French case and has therefore to be identified. This is usually achieved by
which have determined the court to reach this decision? examining in detail the argument from both sides-in French les theses juridiques en
presence (i.e. each party's argument or each conflicting court's view, lower and higher
Valeur (second rough copy). Here, the reasons are to be assessed why the decision
court). So, the difficulty when analysing a French case is not so much to identify
reached by the Court of Cassation should be agreed or disagreed with. Academic
the legal rule on which a case was decided, but rather to define the legal issue to be
writing, conclusions of the Avocat General, as well as travaux preparatoires (where
decided in that case. For example, in the two illustrations provided in Box 11.2, it can
the issue raised in the case has been the object of recent reform) may be used to assist
be noted that the legal issue itself is not clearly stated in either of the cases. However,
students with their answer. However, during examinations, these are not provided
this may be induced from the statement of facts and arguments of the appellants (in
together with the text of the decision to be commented upon. It is assumed that, prior
Arret 2) when combined with the published phrase in the text 'pouvoir d'usage, de
to the examination, students have read extensively on the points raised in the case t h
controle et de direction .. . caracterisant la garde' to be found in the laS part ofbol
)l )l
+ 'K J't 5
LEGA L EX ERC IS ES CHAPTER REFERE NCES

242 AND FURTH ER READIN G
243
. Th' k hrase refers to the test applied in the case In cases raising one legal issue onl .
. b h C rt ofCassat1on. IS ey P y, a typical pla f
Arrets Y t e ou DC 1942 25 (see Chapter 15 on tort) relating
k Ch R ' un 2 December 1941, • . . . .. would be: n ° a commentaire d'arret
of Franc · e · . t alinea I of the CIVIi Code on hab1hty
· f arde referred to m ar · 1384 I- Analyse/II- Discussion
to the notion g
h.
° . b h the issue can be formulated as: 'Can the
Under analyse (I) comes an objective exam· .
f, 1·n one's care So m ot cases, ination of the dee· ·
or t mgs · •.d d gardiells (under the Franck test of garde) of the
mountain climbers be cons1 ere as . d h already prepared in rough to each questio dd . ismn, using the answers
. hh . . d the rest of the cohort of climbers an , t us, be n a ressed m th .
dislodged stones wh1c ave mJure (above). In an arret de rejet the main thrust 0 f h e secllon headed Sens
1 e analysis is t
held liable for the damage caused?' ments presented by the appellant in the 1110 ,, h . 0
contrast the argu-
. · ork has been done, students can proceed to the . . . . / en 1o t e solullon ado t d b h
Once this three-part pre 11mmaryw of Cassat10n when d1sm1ssmg the appeal In . P e Y t e Court
. an arret de cassation th·
actual commentaire. be made between the lower court's decision d h · ts contrast is to
an t e Court of C · , d . .
upholding the appeal, particularly in respect of th I . assallon s ec1S1on
The commentaire and their differing interpretations. e ru e apphed by each of the courts
· d' · d t
A commentaire arret a op s as r
t ucture and written format similar to a disserta- Discussion (II) is an evaluative and critical stud Of h d . . .
. • • d · d two-part plan. However, owing to the special nature . h . Y t e ec1S1on, usmg on this
tron, 1.e. an mtro uct10n an a . . occas10n t e answers given to the questions prev· I dd .
· exercise· b emg
· b ase d o n a J·udicial decision • there are techmques specific to , mus Y a ressed m the sections
of this headed Valeur and Portee. Thus, under discussion all th · . .
. . e pomts 11sted m these sec-
commentaire d'arret which need to be specified and described. , , • tions above are to be considered and discussed.
·
First, · t h e case w1·th an y commentary on a text • a commentaire d arret must
as 1s Turning now to cases where two or more legal issue b · •
s are emg raised the plan
avoid two pitfalls: should consider each issue in turn, such as: '
I- Issue 1/11- Issue 2
(a) a mere paraphrasing of the text under consideration
adding the parts for each issue raised, as required • Within each part , subd'1v1s1ons
··
(b) the writing of an essay on the general topic without reference to the text
should be then made into analyse and discussion, details of which are described
provided. above.
In both instances there would, in effect, be no commentaire at all, which would prod- As with what has been said earlier in this chapter about plan, the plan proposed
uce very poor results. . here is only a suggestion. Experience shows that, whilst during the first years of
Secondly, the nature of the text to be analysed in this case, namely a court Judg- study it is advisable to adopt a simple plan similar to the one set out above, increased
ment, determines the choice of a plan necessarily different to that of an essay. Thus, knowledge and experience in legal studies may, at a later stage, call for a more sophis-
the introduction to a commentaire d'arret will include the following elements: ticated plan to commentaire d'arret. In this respect, the plans adopted by arretistes
(see Chapter 9) in their case notes may serve as a source of further inspiration for
(a) a summary of the facts, including the name of the court hearing the case and
those who wish to improve their technique in this area.
the date of the judgment
(b) a description of what the case is about
CHAPTER REFERENCES
(c) a statement of the legal issue(s)
AND FURTHER READING
(d) a presentation of the significance of the question(s) raised by the case seen
ANCEL, P., and GouT, 0 ., Travaux Diriges GRUA, F., Methode des Ett1des de Droit,
from different perspectives, such as historical, sociological, legal policy, and
d'Jntroduction au Droit et Droit Civil, Dalloz, 2006.
comparative law,
Paris: Litec, 2002. M EN DEG RI S, R., and VERM ELLE, G., Le
The objective in the introduction is not to go into detail-as this will be done in the DEFREN01s-SouLEAU, I., Je Veux Reussir mon
Commentaire d'Arret en Droit Prive, 7th
actual discussion which follows-but to present the decision briefly. As far as the dis- Droit, 6th edn, Dalloz, 2007. edn, Dalloz, 2004.
cussion itself is concerned, it must adopt, as with dissertation, a two-part structure. GRIDEL, J.P., La Dissertation, le Cas Pratique
Here, a distinction must be drawn between cases raising only one legal issue and et la Consultation en Droit Prive, 4th edn,
those raising two issues or more. Paris: Dalloz, 1996.
169
11
ADMINISTRATIVE LAW
Il est ridicule de prétendre décider des droits des royaumes, des nations et de l’univers, par les
mêmes maximes sur lesquelles on décide entre particuliers d’un droit pour une gouttière, pour
me servir de l’expression de Cicéron.
Montesquieu, De l’Esprit des Lois.
T H E P U B L IC / P
R I VAT E L AW DI V I DE
I N F R E N C H L AW
In modern legal systems it is common to distinguish between two separate fields of
law: one of private law, the other of public law. This is true of European legal systems
such as Belgium, Germany, and Italy where, similar to France, there is an institutional
structure of separate public law and private law courts. Even in England, where, as
was stated in O’Reilly v Mackman, ‘the appreciation of the distinction in substan-
tive law between what is private and what is public law has itself been a latecomer
to the English legal system’ ([1982] 3 WLR 1096 at 1102, per Lord Diplock), there is
today a wide recognition of this distinctive separation, notably through the procedure
of judicial review and the existence since 2000 of an ‘Administrative Court’ in the
High Court.
Taken in its broad meaning, private law regulates the relationship of citizens as be-
tween themselves. However, within the area of public law falls:
(i) constitutional law, which includes the forms of constitutional government, the
working of governmental institutions, and the protection of citizens’ basic rights
(see Chapter 1), and
(ii) administrative law, which is concerned with the rules, procedures, and remedies
applying to the relations of individuals vis-à-vis public authorities. Public
authorities include both central and local government bodies but also state-run
companies and public organisations, agencies and institutions.
Thus, where a private person is challenging the conduct of a public authority or a
public body, or of anyone acting in the exercise of a public duty, this will gener-
ally fall within the domain of administrative law. However, as will be considered
170
170 Administrative Law
in this chapter, French administrative law in fact covers a much wider ambit than
this description implies since it embraces not only the judicial supervision of public
authorities or bodies in the exercise of their functions, but also inter alia the rules
governing the liability of public bodies in addition to the law of public contracts and
public property.
It is important to note that in the last decades, there has been a significant im-
pact of EU law on the development of administrative law in the legal system of
EU Member States, including France and the United Kingdom. In this respect,
the common adoption by European states of general principles such as the prin-
ciple of legitimate expectation and the principle of proportionality have had the
effect of bringing the public law body of these countries closer together (Wyatt
1994: 188).
Across the Atlantic, French administrative law was presented as a model to follow by
authors such as Schwartz (1954) who, like Hamson (1954) in England, offered through
his work an insight into the workings of the French Administration to American
jurists. Today, arising out of the application of the 1946 Administrative Procedure Act,
there is a well-developed branch of administrative law in the United States, although,
unlike in France, this has not been translated into the legal system as a separation be-
tween administrative and ordinary courts (Custos 2007: 285).
Following these preliminaries, and prior to examining in more detail the character-
istic features and principal rules, procedures, and remedies related to administrative
activities, consideration must now be given to administrative law in its historical per-
spective and how this has led to a major structural distinction which has been applied
in France since the 1789 Revolution—the distinction between public and private
‘functions’.
OR IG I N OF T H E P U B L IC / P R I VAT E DI ST I N C T ION
A foreign lawyer moving in French legal circles today soon realises how significant
the distinction between private and public ‘functions’ is in the daily running of French
legal affairs. First, there are two separate branches of the judiciary, the administrative
courts headed by the Conseil d’État, where cases involving the State and its officials
are decided, and the ordinary courts presided over by the Court of Cassation for cases
between private individuals. Secondly, each set of courts has its own group of judges
who do not share similar background, training, or status (see Chapter 6). This div-
ision is further reflected in the academic teaching of French law at all levels. French
law teachers are either publicistes or privatistes, never both, and they tend to guard
jealously the limits and boundaries which separate and define their respective areas of
specialism.
In order to understand this current state of affairs better, it is necessary to refer to the
events surrounding the 1789 French Revolution from which time the public/private
law divide originates.
17
The Public/Private Law Divide in French Law 171
The Law of 16–24 August 1790

The distinction between private and public law lies at the very heart of the foundations
of post-revolutionary French law and the values it reflects. It can be traced back to
Montesquieu’s typology of laws in his seminal work De l’Esprit des Lois (1748: Book
1, Chapter 3) where the political theorist singled out two forms of laws—political and
civil. This divide was formalised in a statute passed by the Constituent Assembly during
the period of the 1789 Revolution, the Law of 16–24 August 1790 (already mentioned
in Chapter 4), which remains in force today and which states in art. 13:
Judicial functions are and should remain separated from administrative ones. Ordinary judges
shall not interfere in any way whatsoever with the activities of public authorities, nor hear a
claim brought against a public authority in relation to the performance of their official duties.
Article 10 of the 1790 Law further prohibits judges from interfering with the legisla-
tive function. This ‘separation’ rule is a reflection of the French revolutionaries’ dis-
trust of the former royal courts of the Ancien Régime, the Parlements. As stated earlier
(in Chapter 4), the Parlements were very powerful during the period of the monarchy
and did not hesitate to obstruct the King’s decision-making powers through their
judicial activism. Under the 1641 Edict of Saint-Germain, an attempt had already
been made to remove from the jurisdiction of the Parlements part of the disputes
between the King and his agents in relation to the citizens. However, the Parlements’
interference with the King’s legislative prerogative remained a feature throughout the
course of the 18th century. Drawing on this experience, the main objective of the
promoters of the 1790 Law was to confine the ordinary courts of the land to disputes
adjudication which had to be devoid of any law-making and, further, to concern
themselves only to private issues, i.e. to cases related to individuals as between them-
selves. The 1790 legislation, enacted in this light, necessarily resulted in a rigid sep-
aration between legislative, executive, and judicial powers, the main objective of the
revolutionaries being to protect each branch of government from the risk of undue
interference by any of the other branches. However, in so doing, a greater preference
was given to both executive and legislature to the detriment of the judicial authority.
This is why, historically, the principle of separation of powers is approached in France
as much in terms of ‘hierarchy’ between the different powers as a balancing act be-
tween the competing sources of authority. The effects of this proved to be far reaching.
One of the consequences of the 1790 law has been the gradual implementation of a
special system of administrative justice and the incremental development of what is
known today as droit administratif. Indeed, since the separation between administra-
tive and civil judicial functions meant in practice that instances of misgovernment
and misrule were withdrawn from the authority of the ordinary courts, the question
of holding to account and keeping the executive under control needed somehow to be
dealt with. Unlike in England, where, since the end of absolutism from 1688, heavy
reliance upon parliamentary controls was applied, France opted instead—starting
with the 1790 separation of functions—for a method of scrutinising governmental
conduct through the jurisdiction of a distinct set of administrative courts.
172
The impact of the 1790 Law on the ordinary courts’ jurisdiction

One of the most significant consequences of the separation between private and public
law courts is that, in principle, ordinary courts can neither award an injunction against
administrative bodies, nor question the lawfulness or quash any administrative act or de-
cision. However, there are now a number of qualifications and limitations to this principle.
Since Septfonds, TC 16 June 1923, Rec. 498, civil judges have been allowed to interpret
administrative regulations even though they cannot to this day, other than in very ex-
ceptional circumstances, review their legality. Counted amongst these exceptions is when
there has been an alleged breach of civil liberty or rights of ownership (amounting to a
‘Voie de fait’; see below) in which case a ruling can be made on the lawfulness of an ad-
ministrative action. Otherwise, when one of the parties in the civil court is challenging
the legality of an administrative act or decision, the proceedings must be adjourned and
referred to the administrative courts on a preliminary reference (exception d’illégalité) for
the latter to issue a declaration on the legality of the act. However, the above does not apply
to the criminal courts which, under art. 111–5 of the Criminal Code, ‘have jurisdiction
to interpret administrative decisions whether regulatory or of individual effect, and to
review their legality where the outcome of the criminal case at hand depends upon such
review’. This rule is in fact a consolidation of old established case law dating to Avranches
and Desmarets, TC 5 July 1951, Rec. 638, where the Tribunal des Conflits decided that the
criminal court in which the case was being heard had the power to review the legality of
the hunting regulations which served as the basis for prosecuting the defendants.
The public and private law divide in its relation to successive constitutions
It is quite extraordinary that, despite the long-established basis in French law for the sep-
aration between ordinary and administrative courts, successive French constitutions,
also including the current one dating from 1958, never mentioned the fact of the exist-
ence of administrative justice. However, in 1987 (86–224 DC, 23 January 1987, Conseil
de la Concurrence, D. 1988, 117, concerning the transfer to the ordinary courts of the
power to review decisions made by the French Competition Commission), the Conseil
Constitutionnel, while considering the status of administrative justice in French consti-
tutional law, declared that the power vested in the administrative courts to scrutinise
and reform the decisions made by the executive in the exercise of its powers amounted
to a ‘fundamental principle recognised by the law of the Republic’ (on this notion, see
Chapter 1). However, the decision of the Conseil did not go so far as to ascribe consti-
tutional value to the principle itself of separation between administrative and judicial
authorities as laid down in the 1790 Law, which means, in practice, that the 1790 Law
does not form part of the Constitution and, as a consequence, Parliament could dero-
gate from it when it sees fit by transferring, e.g. to ordinary courts, issues which would
normally fall within the jurisdiction of administrative courts. However, following the
major 2008 constitutional reform, a break has been made with the past and now, for
the first time ever, the Constitution explicitly refers to the Conseil d’État and the Court
of Cassation side by side as being the respective heads of each branch of the judiciary
(new art. 61–1 and revised art. 65).
173
The Public/Private Law Divide in French Law 173
Following these developments in the history of the public/private divide, the next
part of the chapter will show that the making of administrative law as it is known today
in France did not happen instantly in 1790; it is the result of a long and complex pro-
cess carrying with it a series of factors which will now be addressed.
T H E M A K I N G OF DR OI T A DM I N I ST R AT I F
From justice retenue to justice déléguée
As the 1790 Law did not of itself institute a system of judicial review, a consequence was
that claims by private citizens against official bodies, having been formerly determined
by the King himself or his administrators, continued to be subject to adjudication by
the relevant minister or local administrative body until well into the 19th century.
In fact, in those times, there had not developed a general perception that, in their
dealings with the executive, citizens could obtain justice through the process of the law
courts. Instead, a generalised public belief held that administrative issues could, and
should, be raised and determined in the relevant government department and not in
the courts. This view was reflected in the well-known statement, ‘juger l’administration,
c’est aussi administrer’ (namely, administrative activity also includes the power by ad-
ministrative authorities to determine themselves cases related to such activity).
A step in the direction towards judicial review was reached in 1799 with the creation
of the Conseil d’État and, at local level, conseils de préfecture as advisory bodies. However,
their opinions at that time were non-binding—the head of the executive being the ul-
timate arbiter of individual grievances against the Administration. In 1806, adminis-
trative claims were eventually allocated to a special division of the Conseil d’État called
commission du contentieux and although in theory its opinions were still non-binding
and were given on behalf of the executive, in practice they became more systematic
and were usually enforced as with proper general court judgments. And so, the original
system of justice retenue (justice retained by the executive) gradually developed and
was superseded by one of justice déléguée (justice assigned to the judiciary), whereby
power to adjudicate on its own was conferred on the Conseil d’État, thereby eventually
assuming the jurisdiction formerly exercised by the head of the executive (Law of 24
May 1872, art. 9). However, despite the 1872 legislation, the scope of judicial review by
the Conseil d’État was still limited by a doctrine known as ministre-juge until the end of
the 19th century. Under this doctrine, governmental intervention in the adjudication
process of administrative matters was still operative in cases where the law did not ex-
pressly provide for a subject matter to fall within the jurisdiction of the Conseil d’État.
Therefore, where applicable, application for judicial review had to be addressed, in the
first instance, to the relevant minister, only appeals to such decisions being heard by
the Conseil d’État. In 1889, in the case of Cadot, CE 13 December 1889, Sirey, 1892,
17, the Conseil d’État abolished the doctrine of ministre-juge, thereby deciding from
that date and onwards that it would have exclusive jurisdiction over cases involving
instances of misgovernment. Today, the jurisdictional role of the Conseil d’État reflects
174
the gradual transformation it went through in the past. It acts at the same time as (a) a
court of first and last instance for the judicial review of governmental decrees and
orders issued by ministers; (b) a court of appeal to ensure regularity in respect of local
elections and in respect of certain instances of judicial review other than in (a); and
(c) an ultimate review court for decisions made by the administrative court of appeal.
The case of Blanco

In Blanco, TC 8 February 1873, Rec. 61, a father brought an action in the civil courts for
a declaration that the State was civilly liable under arts 1382, 1383 and 1384 of the Civil
Code for the damage suffered by his daughter as a result of a road traffic accident caused
by a vehicle driven by employees working for the State tobacco organisation. The Préfet of
the Département, acting on behalf of the State, raised the issue of conflict of jurisdiction,
arguing that the ordinary courts did not have the jurisdiction to deal with the matter. The
then newly created Tribunal des Conflits (on the Tribunal des Conflits, see below) held
that the rules and principles laid down in the Civil Code to deal with the relationships
between individuals could not apply to any liability incurred by the State for damage
caused to individuals by State employees. The Tribunal added that the responsibility of
the State, being ‘neither general nor absolute’, was subject to a ‘body of special rules which
would vary depending on the needs of public service in question or the general public
interest and the need to reconcile the rights of the State with the individual’s private
rights’. Blanco represents the cornerstone of French administrative law, not only because
it establishes the principle of state liability for damages caused to private individuals, but
also because it marks the independent autonomy of droit administratif from civil law.
However, in practice ‘autonomy’ has been qualified in two main ways:
(i) Many rules of private law have been transplanted into the body of administra-
tive law. This ‘reception’ of civil law into administrative law can be exemplified
within the area of employment law, generally considered in French law to be
a branch of private law. In this case, where civil servants’ employment rights
are in question, the administrative courts, when adjudicating, often refer to the
principles laid down in art. L1132–1 Code du Travail (previously art. L122–45)
of equal pay and equal employment opportunities for all (Adam, CE 8 July 1998
no. 191-812, Petites Affiches, 4 December 1998, no. 145), as well as the prin-
ciple that certain categories of employees, such as pregnant women, are to be
protected against unfair dismissal (Mme Peynet, CE 8 June 1973, Rec. 406).
(ii) There are areas where administrative activities are subject to private law, e.g. road
traffic accidents (see further ‘Administrative Law—Still an Elusive Concept’).
The role of doctrinal writing in shaping French administrative law

The role of French academics in the making of administrative law must not be overlooked.
Particularly to be considered is the classical contrast to be made between Hauriou’s or-
ganic approach to administrative law and Duguit’s functional one. According to Hauriou,
who drew heavily form German doctrinal writing, the notion of puissance publique
(public authority) is the key concept which legitimates the existence of droit administratif.
175
The Strength and Weakness of Droit Administratif 175
When acting as a public authority, the State enjoys a legal personality so as to enable its
representatives—the various administrative authorities—to take and enforce unilateral
decisions (actes administratifs unilatéraux) in the performance of their duties. Thus, in
this view, administrative law consists of the study of the content and limits of the special
rules and prerogatives associated with the activity of puissance publique. In contrast, for
Duguit, it is the pursuit of a public service or service public (e.g. social security, schools, and
public transport) which accounts for a special body of rules to be applied in relevant given
situations. The two schools of thought refer to two mutually complementary aspects of the
State’s function known in France as État-Gendarme (i.e. the enforcement arm of the State)
and État-Providence (i.e. the welfare arm of the State); and in the exercise of administrative
law these two aspects manifest themselves depending on circumstances at hand. The fact
that, today, in many areas, both State and administrative bodies enjoy special prerogatives
(e.g. law enforcement; monopoly powers in the provision of certain public services),
immunities (e.g. limits placed on criminal liability of public authorities) and privileges (e.g.
restricted powers to seize publicly owned assets) derives from Hauriou’s concept of puis-
sance publique. This doctrine is further embodied in the current 1958 French Constitution,
art. 20: ‘The Government shall decide and conduct national policy. It has at its disposal the
administrative authority and the military forces’. Similarly, the doctrine of service public
advocated by Duguit achieved some recognition in the courts in circumstances where pri-
vate individuals were held to be subject to administrative law when, in the conduct of their
activities, they took part in a public endeavour engaged in the pursuit of a public service.
Thus, in Monpeurt, CE 31 July1942, Rec. 239, committees were set up during the Second
World War with a view to regulating certain sectors of the economy. Although they did not
have the status of public bodies, it was nevertheless decided by the Conseil d’État that these
committees were invested with the task of carrying out a public service and were therefore
subject to administrative law in their decision-making. However, cutting across Duguit’s
doctrine of service public is the notion of services publics industriels et commerciaux (SPIC).
A SPIC can be defined as a public service being run as a private enterprise. In the case of
Bac d’Eloka, TC 22 January 1921, D. 1921, 3, 1, damage was caused to a vehicle in the course
of operation of a ferry-boat service in the then French colonial territory of the Ivory Coast.
Since this transport service was run as an ordinary private enterprise, its activity was held
by the Tribunal des Conflits to fall both outside the scope of administrative law and outside
the jurisdiction of the administrative courts.
T H E ST R E N G T H A N D W E A K N E S S
OF DR OI T A DM I N I ST R AT I F
In a lecture delivered in Cambridge in 1965, French law professor Prosper Weil

(1965: 242, 259) referred to the ‘strength and weakness’ of French administrative law
concluding that ‘the elements of strength in French administrative law should not be
allowed to obscure its weaknesses, as has too often been the case. Neither must its few
points of weakness lead us to forget its immense merits’. What follows is a further ap-
preciation of these aspects.
176
However, speaking of the strength and weakness of French droit administratif, prior
reference to the work of Dicey should be made. In Introduction to the Study of the Law
of the Constitution (1885: Ch. XII), Dicey launched an attack on the French system of
administrative law on two counts, saying:
(i) Droit administratif only exists to give government officials a body of special
rights, privileges, and prerogatives as against ordinary citizens. In other words,
it puts the executive above the law.
(ii) Under the doctrine of the rule of law, all cases, whether against a government
official or an individual, should come before the same courts.
Today, most legal commentators would agree that Dicey’s analysis of the French ad-
ministrative system was misconceived, although it is fair to say that, in his criticism,
Dicey was not necessarily rejecting the French system per se, but rather in the context
of its relevance as a model to be imported into the British system. And indeed, when
considering a number of historical factors such as early reliance on self-government,
absence of central administrative power, and establishment from the Middle Ages of
a common law covering the Kingdom, the emergence of a body of rules specifically
aimed at the scrutiny of the conduct of the administration was not favoured in England.
In fact, returning to the French system of administrative law, it benefits from a high
standard of international regard and has served as a model for other countries. In par-
ticular, the institution of the Conseil d’État has been the subject of constant praise. Although
the Conseil in its advisory function (see Chapter 1, ‘Legislative Drafting’) could be held to
be part of the executive branch of government, its aura as a public body lies in the exercise
of its judicial function as the ultimate supervisory authority over executive power.
A DM I N I ST R AT I V E L AW—P ROM OT I N G
E F F IC I E N C Y A N D J U ST IC E
Efficiency
Despite Dicey’s claims to the contrary, the existence of a system of administrative law
in France remains closely associated with the concept of democratic sovereignty and
the requirements for the rule of law or, in France, État de droit (see Chapter 1, under
‘General characteristics of legislation’). Indeed, authority for a separate body of rules
for administrative matters is legitimated, on the one hand, by the need to give the sov-
ereign power adequate tools to implement the law and, on the other hand, by the demo-
cratic necessity to authorise the courts to intervene in general whenever the legality of
governmental action is questioned and, in particular, when it affects individuals’ fun-
damental rights. So, administrative law of itself implicitly acknowledges the distinct
powers vested in the State which call for a countervailing set of specific rules that offer
adequate redress to the ordinary citizens in response to these prerogatives.
What further legitimates the existence of specific rules here is the qualitative
difference in nature between individual relationships and relations between individuals
and the State. Indeed, matters of public law encompass a totally different class of rights
17
The Strength and Weakness of Droit Administratif 177
and interests than those found in private law. Mitchell (1965: 102), a great admirer of
the French system of administrative law, said in this respect:
Private law operates between parties who exist in the same plane and are thus equal. Rights
are in issue. In public law properly conceived there is an inequality; private right is in con-
flict with public interest in a quite different way. The mechanisms appropriate to striking
a balance in the one condition will of necessity be inappropriate or inefficient in the other.
Following Mitchell’s statement, and to give an illustration, a personal debt between

private individuals and a debt owing to the State cannot be dealt with in a similar manner.
Whereas in the former case there is no external fall-out, in the latter, public interest is
at stake with adverse external effects on the wider community, and this legitimates the
need for special treatment. It is this need to balance the interests differently which is at
the heart of the public/private law divide and gives droit administratif its authority.
Justice
In the words of authors such as Wade and Forsyth (2004: 25), ‘undoubtedly the
French administrative courts have succeeded in imposing a genuinely judicial con-
trol upon the executive and in raising the standard of administration. They are
impartial and objective courts of law in the fullest sense. Though their judges are
government employees, they are no less critical of the administration than is the
British judiciary’. And indeed, in their task of striking a balance between the interests
of the State and those of individuals, the administrative courts have, over the years,
not only promoted standards of procedural fairness similar to those expressed in
the British concept of natural justice, but also recognised a number of fundamental
rights which have been given special legal protection. Illustrating this development
is the incremental identification and application by the Conseil d’État of a corpus of
unwritten rules known as ‘general principles of law’ aimed, where there are gaps in
the law, at securing the protection of individuals’ rights. General principles of law
are not necessarily confined to the field of public law. The Court of Cassation has
also identified a number of such principles (see Chapter 3 under ‘Methods of inter-
pretation’). Amongst the principles recognised by the Conseil d’État are: everyone
has the right to present a proper defence in court (Aramu, CE 26 October 1945, Rec.
213); equality of citizens before the law (Concerts du conservatoire, CE 9 March 1951,
Rec. 151); everyone, including foreign workers, is entitled to lead a normal family
life (GISTI, CE 8 December 1978, Rec. 493, where a government decree forbidding
members of foreign workers’ families to be reunited with their breadwinner, unless
they agreed to waive their rights in respect of access to employment, was held to be
unlawful); and legal certainty. As regards the latter (and more recent) principle, in
the case of Société KPMG, CE 24 March 2006, Rec. 154, the Conseil d’État declared
null and void a decree amending the code of practice of auditors on the grounds
that the new revised regulations did not make any special transitional provisions for
existing mandates by auditors, already in place at the time when the decree came into
force, with the dire consequence that the principle of legal certainty in contractual
relations was breached.
178
A DM I N I ST R AT I V E L AW— S T I L L A N E LU SI V E C ON C E P T
The main weakness of administrative law is the difficulty in defining its scope and
limitations. In France, as elsewhere, the public/private law divide has for a long time
been subject to controversy in theoretical discourse in respect of its definition. As a
consequence, its validity and usefulness has been questioned, especially in the past, by
authors such as Savatier (1946: 25) and Eisenman (1952: 923)—compare with the views
of Harlow (1980: 241) and Oliver (2002: 91) in England. This has not been helped by
the fact that, in practice, over the years, the boundary between civil and administrative
law has gradually blurred. This can be attributed to a number of reasons:
(i) One such reason is related to its history. Unlike private law, there has never been
a general law or code defining what counts as administrative and what does not.
As such, administrative law is at odds with the French tradition of codification.
This lack of a body of general administrative law may be adduced to account for
the fact that the rules applied to the Administration are, as mentioned earlier in
this chapter, generally widely inspired from civil law. This has been intensified
by the gradual alignment of the procedure of judicial review of administrative
action to the principles and rules of civil procedure and vice versa.
(ii) A further reason for the blurring of civil and administrative law is that today
there is no public activity which is exclusively such in character or without
any parallel in private law. In addition to this, in practice, public duties may be
delegated by public authorities to private persons and public bodies may also
act as a private commercial enterprise (see the section on EPIC below).
(iii) Moreover, from a substantive law point of view, there are many areas in French
administrative law where administrative activities may be subject to private
law. Here the difficulty lies in the absence of a fixed unique determinant test for
when such activities will be held to fall within the domain of either private or
public law. Sometimes, the legislature will decide, with a view to streamlining
legal procedures, that a given area will fall within the jurisdiction of the civil
courts when private law will apply. This has been the case since 1957 as regards
road traffic accidents where, even in circumstances where an accident has been
caused by an official body or its agent, the case will be heard by a civil judge
(unlike held previously in Blanco referred to above). Another example is the
Law of 6 July 1987 which transferred to the ordinary courts all litigation related
to the decisions made by Conseil de la Concurrence (the French Competition
Commission) in the area of competition law where there is a subtle interplay
between rules of public and private law (in this respect, see also the Conseil
Constitutionnel’s decision of 23 January 1987 above). When not statutorily
determined, the test as to when and where to apply administrative or private
substantive rules and remedies, and before which jurisdiction, is not neces-
sarily tied to the status of the body involved in the decision-making; rather the
nature and purpose of the activity carried out are the determinant criteria to be
applied (see illustrations provided below under ‘Selected areas of conflict’).
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Conflicts of Jurisdiction 179
(iv) More generally, there seems to be an overlapping of roles and responsibilities

amongst private and public law courts owing to the influence of EU and
European Human Rights law in French law. Today, both sets of courts are
organised around the promotion of civil liberties which inevitably leads to a
rapprochement between them.
Despite these developments in the law, the private/public law divide remains a strong
characteristic feature of the law of France. To summarise on what has been just said,
this division between private and public law is either statutorily defined or determined
on the basis of activity. In the latter case, whether or not a situation will fall within the
domain of administrative law will generally depend on the nature or purpose of the
decision or act at issue, even when taken or carried out by a private person.
In the absence of a particular defining statutory instrument, the difficulty in devising
precise and rational criteria to distinguish private and public law activity inevitably
leads to jurisdictional litigation known in France as ‘conflicts’ of jurisdiction. These are
considered below.
C ON F L IC T S OF J U R I SDIC T ION
Following what has been said above, one of the difficulties arising out of the existence
of two sets of courts is the possibility of conflicts of jurisdiction between them, when
it is not clear whether a case should fall within the jurisdiction of the administra-
tive courts or of the ordinary courts. To remedy this difficulty a specialised court, the
Tribunal des Conflits, was eventually set up in 1872 following earlier failed attempts.
However, difficulties have persisted and a host of cases have arisen in the Tribunal
des Conflits since its establishment which have complicated the law and have further
been a source of confusion and legal uncertainty for citizens. According to the latest
published figures, the Tribunal des Conflits hears about 100 cases each year (of these, a
number are grouped together as they cover similar questions).
T R I BU NA L DE S C ON F L I T S
The Tribunal des Conflits consists of eight judges drawn equally from the ranks of each
of the two supreme courts, i.e. the Court of Cassation and the Conseil d’État, appointed
for successive periods of three years each. The head of the Tribunal is the Minister of
Justice who also has the casting vote in the event of a tied vote. The fact that a min-
ister, and as such a member of the government, presides over the Tribunal has been the
subject of heated criticism, since there is always a suspicion of bias on his or her part
in matters where highly contentious issues are decided. A striking illustration of this
point was the high-profile case of Préfet de Police v Ben Salem and Taznaret, TC, 12
May 1997, RFDA 1997, 514 where two asylum-seekers were held by the French police
on the boat where they had been hiding, after being refused entry into French territory
(instead of being held in zone d’attente pending a judicial decision on their status and
180
fate). The case was referred to the Tribunal des Conflits following an application to have
the police order reversed in the ordinary court. In the Tribunal, the Minister of Justice
used his casting vote to decide in favour of the jurisdiction of the administrative court.
The decision provoked anger on the part of one of the members of the Tribunal (Court
of Cassation’s side) who decided to step down, arguing that the Tribunal had failed to
comply in its decision with the requirement of the European Convention on Human
Rights, art. 6(1) relating to the principle that everyone is entitled to a fair and public
hearing by an independent and impartial court. However, in response to this assertion,
it was argued, quite correctly, that the Tribunal, consistent with its judicial role, was not
judging on the merits of the case; it merely decided under which jurisdiction the case
would fall, leaving adjudication to the relevant judges.
C AT E G OR I E S OF C ON F L IC T S
The Tribunal des Conflits has jurisdiction over two main categories of conflicts: ‘posi-
tive conflict’ (conflit positif) and ‘negative conflict’ (conflit négatif):
(i) Conflit positif is by far the most common conflict and occurs when a case is
alleged by the relevant administrative authority to have been mistakenly
brought in the ordinary courts. In these circumstances, a formal request called
déclinatoire de compétence is addressed to the ordinary court hearing the case
by the representative of the central government in each French Département,
the Préfet, with a view to the case being referred to the administrative court.
In the event that the court rejects the Préfet’s request, the latter may issue an
order known as arrêté de conflit which has the effect of sending the case to the
Tribunal des Conflits. The Tribunal must then determine within three months
which court should hear the case. In so doing, the Tribunal either confirms the
Préfet’s arrêté, in which case the ordinary court is divested of its jurisdiction in
the case and the plaintiff must begin all over again in the administrative court,
or the Tribunal sets aside the arrêté and the case goes back to the ordinary court
where it is then heard.
(ii) With conflit négatif, both the administrative and the ordinary courts have
declined jurisdiction on the grounds that the other should hear the case. Since
1960, the second court being asked to hear the case submits the case directly
to the Tribunal. This is a time and money saver for the parties who before 1960
had to refer the case to the Tribunal by themselves. Within this latest category
of conflits négatifs, it is even open to the second court requested to hear the
case, in anticipation of conflit négatif, to have the case referred immediately to
the Tribunal without the need first to give a decision on the issue of jurisdiction
(procedure known as ‘conflit en prévention de conflit négatif ’ ). This preventive
anticipatory procedure is today widely applied by the courts.
(iii) Apart from ‘positive’ and ‘negative’ conflicts, each of the highest courts
on each side of the public/private divide—Court of Cassation or Conseil
18
d’État—may at its own discretion refer a case to the Tribunal in the event of
serious difficulties on issues of jurisdiction (‘conflit sur renvoi d’une juridiction
statuant souverainement’).
(iv) Finally, in certain circumscribed situations, the Tribunal can take the power to
decide on the merits of a case where both branches of the judiciary are in con-
flict on a particular legal issue. The first case to deal with such an extraordinary
occurrence was the liability case of Rosay (1933), Sirey 1933, III, 117, where a
person was injured by a car driven, at the time of the accident, by a civil ser-
vant acting in the course of his duties. The injured party brought the case in
the ordinary court where it was held that the public servant was responsible
for the accident. However, when the case came before the administrative court
for a determination of the quantum of the damage suffered, the judge decided
that the public servant was not responsible for the accident. The Tribunal des
Conflits had to settle the case.
SE L E C T E D A R E A S OF C ON F L IC T
Some of the most common areas of conflict in French administrative law—police, voie
de fait, and bodies known as EPIC and SPIC—are examined below.
Police
Policing in France serves two functions: judicial and administrative.
Police judiciaire, the most common police function, traditionally encompasses all
aspects of the pursuit of enquiries related to breaches of the law and the arrest of those
suspected of being responsible for these acts.
Police administrative, on the other hand, deals with issues of public order, state
and private security, and public health. A typical illustration of this function is the
ban in Commune de Morsang sur Orge, CE 27 October 1995 (also cited in Chapter 13
under ‘Decline of autonomy of the will’) imposed by the mayor on a show consisting
of a dwarf-throwing contest. This decision was made on the grounds that such a
contest infringed respect for human dignity held to be within the framework of
public order and was further upheld by the administrative court. In another re-
markable example, a mayor banned, under the heading of public order, a fashion
show reserved exclusively to Muslim women on the grounds that such an exclu-
sively Muslim female show was in breach of French secular traditional values and
furthermore was an infringement of the non-discriminatory value in French life
between men and women. However, in contrast to the case of Commune de Morsang
above, the ban was struck down by the administrative court on the grounds that
there was not sufficient evidence to suggest that this proposed event would actu-
ally cause a public disturbance (Société Jasmeen, Tribunal Administratif, Cergy-
Pontoise, 21 July 2005). In the same vein, the Conseil d’État ruled in Ligue des droits
de l’homme et autres, CE 26 August 2016, that the so-called ‘burkini bans’, enforced
at the time on a few of the country’s beaches and preventing Muslim women from
182
wearing full-body swimwear, were illegal and a violation of fundamental liberties.

In their ruling, the judges found that no evidence produced in favour of the prohib-
ition proved a risk to public order.
Areas of contention between police administrative and police judiciaire have included:
(i) Protection of commercial premises: in this respect, it has been decided that when
the issue concerns the preventative aspect of damage to property or to the safety
of individuals, then administrative courts will have jurisdiction over the case
and administrative law will apply (see for example, Préfet Région Champagne-
Ardennes, TC 23 January 2006); if, however, the police are called upon to arrest
a car park thief in the course of which the suspect is hurt, then the judicial or-
dinary courts will hear the case (Littman v Villeneuve Loubet, TC 26 June 2006).
(ii) Sectioning under mental health provisions: in this area, challenges to any
sectioning order can be made in the administrative courts on aspects con-
cerning the formalities leading to the decision, whereas aspects concerning the
appropriateness of the order and the consequent deprivation of the individual’s
freedom and civil liberties are addressed by the judicial court system (well-
established case law). However, where the administrative authority decides not
to section or to set a mental health patient free into the community, state re-
sponsibility falls within the ambit of the administrative courts, not the judicial
ones (for example, Président Conseil de Paris v Préfet Police de Paris, TC 26
June 2006).
Voie de fait
A further area of conflict is voie de fait.
Definition
Voie de fait can be defined as a gross infringement of civil liberty or the rights of
ownership by a public body. This type of dispute is by tradition assigned to the or-
dinary courts which, under the French Constitution, art. 66, are the guarantors of
civil liberties. In the context of criminal justice, art. 136 of the Code of Criminal
Procedure further states that in cases of the non-observance by judges of the
formalities laid down for committal orders, arrest warrants, and search warrants,
and, in any circumstances, where there has been a violation of personal freedom or
enforced unlawful entry into a person’s home in the course of criminal proceedings,
the issue may never be raised by administrative authorities, and judicial courts always
have exclusive jurisdiction over such cases. However, new developments in the law
suggest that judicial courts have lost the monopoly of dealing with voie de fait they
enjoyed until recently. In January 2013, the Conseil d’État decided to grant interim
relief to a victim of voie de fait (under the administrative procedure of référé-liberté,
see below) ruling that an application for interim relief in a case of an alleged breach
of fundamental freedom is available in administrative courts even in circumstances
of voie de fait; and a few months later, in B. v société ERDF Annecy Léman, TC 17
183
June 2013, the Tribunal des Conflits decided to refer back to an administrative court
a case of obvious voie de fait. In this case, the state-owned French electricity com-
pany had mounted poles on private property without first seeking the owner’s con-
sent. The Tribunal nevertheless decided that the establishment of a public work on
the property of a private person, even without a title, did not proceed from ‘an act
manifestly insusceptible to fall within the power of the administration’, and as such
did not amount to voie de fait.
Typical illustrations
Where, for non-payment of taxes, the Inland Revenue demanded and obtained from
the border and immigration police the withdrawal of an individual’s passport without
the engagement of any then current legal procedure, it was held that the circumstances
amounted to a voie de fait and the case was referred to the ordinary courts (Eucat v
Trésorier-Payeur Général du Bas-Rhin, TC 9 June 1986, Rev. Fr. Dr. Admin. 1987, 57).
Another classic illustration of a breach of an individual’s rights of ownership recognised
by the courts is the case of Barinstein, TC 30 October 1947, Rec. 511, where the
plaintiff ’s property was requisitioned against his consent. He was then subjected to a
forced eviction from his home without due process of law, the objective on the part
of the public authorities being to repossess the dwelling with a view to assigning it to
someone else.
Conditions to be met for voie de fait to apply

French courts over the years have established rules to determine whether the doctrine
of voie de fait applies in given circumstances. For the doctrine of voie de fait to apply,
three conditions must be met:
1. the public authority must have already acted in a material way and, therefore, a
mere decision or order does not generally suffice;
2. there needs to have been a breach of public or civil liberty or an infringement of
rights of ownership; and
3. the measure taken by the public body has to be truly disproportionate to the ex-
tent that it cannot be held to fall within the normal exercise of the power vested
by the law in the public body—a mere irregularity or defect in the degree of the
measure taken will not be sufficient to constitute a voie de fait.
Industrial and Commercial Public Bodies (EPIC) and Providers of a Public
Service (SPIC)
Both EPIC and SPIC have generated a considerable amount of case law.
(i) EPIC can roughly be described as public bodies in terms of legal status, but run
as a private enterprise. They have therefore the characteristics of both a public
and a private body with the consequence that they will be subject to either
184
administrative or ordinary jurisdiction, depending upon the nature of the ac-

tivity which is being challenged.
An example of EPIC is French navigable waterways which are subject to ad-
ministrative courts in respect of all litigation arising out of navigation rules
and policing. However, when aspects of management and maintenance of the
waterways are concerned, then the ordinary courts will have jurisdiction (see
Croisières Lorraines La Bergamote v Voies Navigables de France, TC 12 December
2005, Rec. 67, where a dispute arose following the collapse of a movable bridge,
and Catalayud v Voies Navigables de France, TC 20 March 2006, where a danger
on the waterway was not signposted and thus caused injury).
(ii) SPIC: when a public service, such as rubbish collection or water supply, is
managed by a delegated service provider (SPIC) in consideration of a specific
user service charge (redevance) and not paid for directly out of taxation, it has
been held that the ordinary courts should deal with any dispute related to the
service and/or payment of the charge (on water supply, see Monteil v Syndicat
Intercommunal de gestion d’irrigation, TC 16 October 2006; on rubbish
collection, see SA Camping les Grosses Pierres v Communauté de Communes
de l’Île d’Oléron, a series of 22 decisions given by Tribunal des Conflits on 16
October 2006).
A DM I N I ST R AT I V E P RO C E DU R E S A N D R E M E DI E S
Looking closely beyond the differences in constitutional experience and court struc-
ture existing between legal systems, it would appear that, when it comes to the rules
governing judicial review and public law remedies, there is really quite a high degree
of similarity between them. In essence, what is different is the way in which these rules
are classified as well as the technicalities relevant to each respective legal tradition.
Focusing on French law, various classifications of administrative procedures and
remedies have been proposed. The first most important classification was established
at the end of the 19th century by E. Laferrière—the then vice-president of the Conseil
d’État (from 1886 to1898)—in his treatise of administrative justice and remedies
(1887). Based on the nature of the litigation and the scope of judges’ discretion (which
are both dependent on the type of remedy sought), Laferrière distinguished be-
tween (i) contentieux de pleine juridiction (full discretion including power to award
of damages), (ii) contentieux de l’annulation (limited to the power to annul an ad-
ministrative decision), (iii) contentieux de l’interprétation (power to interpret and/or
decide on the legality of an administrative act) and (iv) contentieux de la répression
(power to carry out criminal sanctions for minor offences related to administrative
law). This classification is still used today, although it has been challenged by authors
such as L. Duguit (1859–1928) and, in modern times, R. Chapus. Speaking of the latter,
he has focused on the purpose of the application itself: is it ‘directed’ against an act
(recours) or against a person (poursuite)? However, even in Chapus’ categorisation, the
185
Administrative Procedures and Remedies 185
fundamental distinction between annulation and pleine juridiction remains valid. The
following section explores these two main categories of judicial control of administra-
tive action in more detail.
However, prior to that, a few words should be said on interim relief procedures.
Since the Law of 30 June 2000, interim relief (référé) in French administrative pro-
cedure has been greatly improved. There are three forms of interim relief:
(i) Référé-suspension (Code of Administrative Justice, art. L 521–1) where the
principal function is to obtain an order preventing the defendant administra-
tive body from giving effect to its decision, pending trial of the action.
(ii) Référé-liberté (Code of Administrative Justice, art. L 521– 2) where, in
circumstances of an alleged breach to civil liberty, an injunction can be awarded
against the Administration. The judge must decide within forty-eight hours of
the application. Appeal is to the Conseil d’État within fifteen days of the first
instance judgment. This form of interim relief is widely used in the context of
immigration and asylum seeking.
(iii) Référé-conservatoire (Code of Administrative Justice, art. L 521–3) where the
order does not suspend the administrative decision, its main function being to
prevent the claimant’s situation getting worse by ordering interim appropriate
measures such as the safeguarding for evidential purposes of certain items or
documents.
C ON T E N T I E U X DE L’A N N U L AT I ON
As previously mentioned, the procedure known as contentieux de l’annulation is where
a claimant is primarily seeking a declaration of nullity of an administrative act or deci-
sion which affects his or her rights either as a private person or as a member of a group
of people. Decisions which can be challenged include those which are of general appli-
cation such as orders issued by ministers or other officials or public bodies. However,
a certain number of conditions need to be satisfied in order for an application to be
successful.
Standing (intérêt à agir)

Any legal person affected by an administrative act or decision, whether in respect
of individuals or of general application, can lodge an application for judicial review
referred to in France as recours pour excès de pouvoirs (REP). The right to judicial re-
view exists even if the law governing the relevant circumstances may not expressly pro-
vide for such a procedure to be available (see Ministre de l’Agriculture v Mme Lamotte,
CE 17 February 1950, Rec. 110). The applicant can be a person acting in a private
capacity or as a member of a group. Therefore, being a taxpayer gives locus standi to
challenge any amendment being made by a local authority to the tax system; being
an elector also gives standing to seek the annulment of local election proceedings in
the event of irregularity; in the same vein, a journalist also has standing in respect of
186
seeking a declaration that a decree banning the press from attending court proceed-
ings is unlawful (Dame David, CE 4 October 1974, Rec. 464). Corporate bodies such as
trade unions and associations are also entitled to make applications for judicial review
when they purport to represent the collective interests of a group of individuals. It is
important to stress again that judicial review in France is not restricted to decisions
affecting individuals alone, but also embraces decisions affecting society. Thus, e.g.,
any French citizen is entitled to challenge the legality of a ministerial order banning
smoking in designated areas or an order forbidding the marketing of a drug aimed at
curing a certain type of illness. So, the emphasis in the French procedure of judicial
review is clearly placed on administrative compliance with legality from which derives
the actual protection of individuals’ subjective rights from administrative interference.
Formal requirements
Access to justice in respect of the procedure for lodging a REP is by no means difficult: a
French applicant for judicial review does not need first to obtain leave to proceed, as is
necessary, e.g., in England; even legal representation is not a requirement—at least at
first instance—as would be the case in an ordinary action before the local private law
court, tribunal de grande instance; an application for judicial review can be drafted by
the applicants themselves and in any format.
However, with a view to avoiding a flood of applications, the courts have established
a number of safeguards against abuse, misguided, or trivial complaints. In par-
ticular, prior to examining the merits of an applicant’s case, judges will require suffi-
cient supporting evidence in respect of the application, failing which the application
will not be allowed to proceed. Also, applicants must show that the act or decision
they are complaining about has indeed interfered with their rights (décision faisant
grief), although the test for this is quite flexible and easy to achieve. Furthermore,
REP is excluded where an alternative statutorily based procedure is available in the
circumstances (recours parallèle). Finally, the applicant must comply with a time limit
within which proceedings must commence. This is two months from the date of pub-
lication or notification of the decision to be challenged.
Grounds for review (cas d’ouverture)

Grounds for judicial review are limited by law, but are still drawn sufficiently wide to
encompass the majority of possible public misconduct and illegality. An important
distinction is drawn between categories of grounds based on légalité externe, which
refers to procedural aspects, such as incompetence and formalities, and légalité interne
concerned mainly with aspects of violation of the law and abuse of powers by the ad-
ministrative body. A brief description of grounds for review follows:
(a) Incompétence: the administrative body or official did not have the power or have
exceeded their powers in making a particular administrative decision.
(b) Vice de procédure and vice de forme: here the administrative authority did not
follow the correct procedure prior to its decision (vice de procédure) or observe
187
the necessary formalities in drawing up the instrument which serves as the

basis for its decision (vice de forme). However, whilst vice de forme can only
be invoked in respect of rules which are of fundamental importance (formalité
substantielle) and go to the heart of an issue, vice de procédure can be raised
irrespectively of such a limitation so long as the irregularity at stake is likely
to have had an adverse consequence on the challenged administrative decision
(e.g. failure to consult with an advisory body prior to a decision being taken
such as in Danthony CE 23 December 2011, Rec. 649).
(c) Violation de la loi: any administrative authority must act in accordance with the
law. In this context, law is defined as including the Constitution and all the rele-
vant constitutional texts such as the 1789 Declaration, international treaties and
conventions, EU law, the general principles of law, statutes passed by Parliament
and governmental regulations—decrees and ministerial orders in particular
(on these sources, see Chapter 1). Under violation de la loi, depending on the
circumstances, French judges employ various standards of review. In addition to
reviewing compliance with the law strictly (contrôle minimum), judges may also
review whether facts are correct and whether the law has been correctly applied
to these facts (contrôle normal). The courts’ scrutiny is more severe in areas such
as expropriation or in respect of property issues where they examine not only
the legality of the administrative act or decision, but also their appropriateness
and merits of the case (contrôle maximum). However, even in areas where by
tradition there is a minimal standard of review, judges may give redress to an
applicant on the grounds of erreur manifeste d’appréciation (serious error as to
the facts) on the part of the administration (e.g. in circumstances where an em-
ployee has been dismissed by the Administration for mistaken motives).
(d) Détournement de pouvoirs: here the administrative authority has acted against
the purpose for which the power to act was originally granted. Two main
categories of acts fall within the ambit of détournement:
(i) an act carried out is held not to be in the public interest, e.g. a politically
partisan act;
(ii) an act carried out is in the public interest, but that interest is held not to be
the one for which the power was originally vested in the authority, e.g. if
the law provides for a mayor to shut off certain roads from traffic for safety
purposes, then the mayor is not authorised to shut them off for the purpose
of saving on costly maintenance.
Effects of a declaration of nullity in a REP action

The main effect of a declaration of nullity by the administrative court is that it deprives
the administrative decision originally challenged of legal effect. This decision is there-
fore treated as if it never existed. However, when exercising their jurisdiction to
annul an administrative decision on grounds of illegality, the administrative courts
cannot substitute their own decision for that of the Administration. Neither can the
18
administrative courts force the Administration to execute the judgment by, for ex-
ample, reinstating to his employment a successful claimant who, under the original
challenged decision, had been dismissed. However, an astreinte order by the Conseil
d’État may be made which consists in an ongoing cumulative penalty imposed to force
the Administration to execute the judgment (Law of 16 July 1980). In order to ration-
alise and simplify the procedures for the enforcement of judgments delivered against
administrative bodies by the Conseil d’État, the law was changed in 2017 (Decree of 6
April 2017), giving the Conseil more extensive powers of astreinte.
Acts which cannot be called into question in any court of law

Apart from Acts of Parliament which can only be reviewed in the Conseil
Constitutionnel, not in the ordinary or administrative courts (see however new art.
61–1 of the Constitution on QPC, referred to in Chapter 1), there are certain govern-
ment acts known as actes de gouvernement which are never subject to review. Since the
landmark case of Prince Napoléon, CE 19 February 1875, Rec. 155, where the Conseil
d’État overturned its previous case law by accepting jurisdiction to review government
decisions inspired by political motives, the list of actes de gouvernement has shrunk. In
Prince Napoléon, following the fall of the Second Empire, the name of Prince Napoléon,
a relative of Napoléon III, was omitted by the new republican government from the
official list of high-ranking army officers. The Conseil d’État decided to review the deci-
sion despite the fact that the omission had been made on political grounds (however, in
the event, Prince Napoléon’s name was not reincorporated into the list). Nevertheless,
today, a few cases inspired out of political motives remain free from challenge. They are:
(i) Any decision-making in respect of the conduct of international relations by
the French government. Typical illustrations include a ministerial circulaire
banning Iraqi students from French universities during the Gulf War (Gisti and
Mrap, CE 23 September 1992, Rec. 346); the decision of the President of the
Republic to carry out nuclear trials in the Pacific (Greenpeace France, CE 29
September 1995, Rec. 347); and the permission granted to UK and US armed
forces to fly over French territory in the course of the conflict in Iraq (Comité
contre la Guerre en Irak, CE 30 December 2003).
(ii) Decisions made in relation to the internal organs of the State. An example
is a decision by the competent authority to appoint a member of the Conseil
Constitutionnel (Mme Ba, CE 19 April 1999). Within this second category, many
decisions have also concerned the special powers vested by the Constitution in
the President of the Republic, i.e. recourse to art. 16 (Rubin de Servens, CE 2
March 1962), decision to call for a referendum (Brocas, CE 19 October 1962) or
to dissolve Parliament (Allain, CE 20 February 1989).
In addition to actes de gouvernement not subject to challenge are mesures d’ordre
intérieur (regulation of the internal affairs of administrative bodies) such as those con-
cerning discipline in schools, in prisons, or in the armed forces. These were originally
categories which could not be challenged in the administrative courts. However, in
189
recent years, the administrative courts have shown a greater willingness to intervene
in respect of these matters especially in the context of pupil exclusion from schools
(Kherouaa, CE 2 November 1992), and in respect of prison affairs and discipline
(Hardouin; Marie, CE 17 February 1995 and, more recently Boussouar; Planchenault;
Payet, CE 14 December 2007).
C ON T E N T I E U X DE PL E I N E J U R I DI C T I ON
This second category of litigation arises not only in contract and tort, but also in areas
such as tax and election proceedings. It embraces those categories of actions where
administrative courts not only have the power to review the administrative act or de-
cision, but can also award damages for the redress of public law wrongs or breach of
contract in the carrying out of a public duty. It is important to note that in France,
unlike e.g. in England, there is a special separate law for administrative contracts and
state liability. Therefore, there is no need in the French administrative system to invoke
private law in order to obtain damages for tort or breach of contract against govern-
ment departments or public bodies. As far as public liability for a wrong is concerned,
again, damages for breach of duties will lie in public law courts under public law, not
private law. Thus, a person who suffers damage as a result of breach of duty by a public
body can bring an action in tort for damages before the administrative courts. One
common path to a successful claim in this area is to show fault on the part of the ad-
ministrative body in the operation of the public service (faute de service) in which case
it will be held fully liable. They are however specific areas (public industrial accidents,
public nuisance, and dangerous products and activities) where a plaintiff would be
entitled to damages in respect of harm resulting from administrative activity regardless
of fault. Also, in some instances, liability compensation schemes have been established
whereby compensation to injured individuals will be paid for public law wrongs (e.g.
terrorism, contracting AIDS following contamination by blood transfusion).
With regard to the notion of faute de service, the case law has established various
degrees in the level of fault to be proved depending on the complexity of the activity
carried out by the administrative body. In the majority of cases a mere negligence
(faute simple) will be sufficient to establish liability. In certain sensitive areas of ad-
ministrative activity such as police, prisons and the medical sphere, a higher standard
called faute lourde (gross negligence) has been traditionally demanded in order to hold
the Administration liable. Although faute lourde has continued to apply in a number
of areas (e.g. border surveillance by police officers, Mme Garagnon CE, 26 June 1985;
State banking supervision, Ministère de l’Economie, des Finances et de l’Industrie
c/Expx Kechichian, CE 30 November 2001), under the influence of the Strasbourg jur-
isprudence, the Conseil d’État has moved away from its previous approach in a number
of areas of administrative activity. Thus, it is no longer necessary for the victim to
show faute lourde in the context of hospitals (since 1992) and prison (Chabba CE 23
May 2003, where a prisoner committed suicide following a series of negligence by the
prison service).
190
When faute de service is associated with personal fault on the part of the civil servant
undertaking the act which is being challenged, then the plaintiff can seek monetary
remedy in full either from the administrative body involved or from the civil servant
who, depending of the circumstances, will each have possible recourse against the
other (following Laruelle and Delville, CE 28 July 1951, Rec. 357). A high-profile ex-
ample of such circumstances is the case of Papon CE 5 April 2002, Rec. 139. Papon was
a former high-ranking civil servant who was involved in the arrest and deportation
to their deaths of Jews during the Second World War. In circumstances where he was
being sued for damages for his personal part in these events, the Conseil d’État ruled
that there had also been fault on the part of the French State in addition to Papon’s
personal fault, thus dividing into two halves the relative proportion of damages be-
tween the two defendants. In the event, since the plaintiffs had elected to claim the
sum awarded by the court from Papon alone, Papon himself then proceeded in turn to
claim against the French State to pay its share in the sum of the total damages.
Chapter References
and Further Reading
Bell, J., ‘Administrative Law in a Comparative Eisenman, C., ‘Droit Public et Droit Privé’, RD
Perspective’ in E. Örücü and d. nelken Public 1952, 923.
(eds), Comparative Law, Oxford: Hart Errera, R., ‘Dicey and French Administrative
Publishing, 2007, 287–311. Law: a Missed Encounter’, PL, 1985,
Bell, J., ‘Droit Public et Droit Privé: une 695–707.
Nouvelle Distinction en Droit Anglais’, Errera, R., ‘The Scope and Meaning of No-
Revue Française de Droit Administratif, fault Liability in French Administrative
1985, 399. Law’, Current Legal Problems, 1986, 157.
Bell, J., and Neville-Brown, L., French Hamson, C. J., Executive Discretion and
Administrative Law, Oxford University Judicial Control: An Aspect of the French
Press, 1998. Conseil d’État, Hamlyn Lectures, London:
Bingham of Cornhill, Lord, ‘Dicey Stevens and Sons, 1954.
Revisited’, PL, 2002, 39. Harlow, C., ‘Public’ and ‘Private’ Law:
Caillosse, J., ‘Droit Public, Droit Privé. Sens et Definition without Distinction, MLR, 1980,
Portée d’un Partage Académique’, Actualité Vol. 43, 241–65.
Juridique du Droit Administratif, 1996, 960. Harlow, C., and rawlings, R., Law and
Cane, P., Administrative Law, Oxford Administration, Cambridge University Press,
University Press, 2004. 2009.
Custos, D., ‘Droits Administratifs Américain Mitchell, J. D. B., ‘The Causes and Effects of
et Français: Sources et Procédures’, Revue the Absence of a System of Public Law in
Internationale de Droit Comparé, 2–2007, the United Kingdom’, PL, 1965, 95.
285–305. Oliver, D., ‘Public Law Procedures and
Devolve, P., Le Droit Administratif, Paris: Remedies—Do We Need Them?’, PL, 2002,
Dalloz, 2014. 91–110.
19
Savatier, R., ‘Droit Privé et Droit Public’, Testu, F. X., ‘La Distinction du Droit Public
D. 1946, Chr. 25. et du Droit Privé est- elle Idéologique?’,
Sargos, P., ‘Points Communs et Divergences D. 1998, Chr. 348.
des deux Ordres de Juridiction’, Actualité Wade, H. W. R., and Forsyth, C. F.,
Juridique du Droit Administratif, 1990, Administrative Law, 9th edn, Oxford
585–90. University Press, 2004.
Schwartz, B., French Administrative Law Weil, P., ‘The Strength and Weakness of
and the Common Law World, New York: French Administrative Law’, CLJ, 1965,
New York University Press, 1954. 242–59.
Seerden, R., and Stroink, F. (eds), Wyatt D., ‘European Community Law and
Administrative Law of the European Union, Public Law in the United Kingdom’ in B.S.
its Member States and the United States, markesinis (ed), Foreign Ideas, Foreign
Cambridge: Intersentia, 2002. Influence and English Law on the Eve of
Strirn, B., Le Conseil d’État, son Rôle, sa the Twentieth Century, Oxford: Clarendon
Jurisprudence, Hachette, 1994. Press, 1994, 188–201.
192
12
PRO CEDURE
En France, les procès finissent toujours par celui de la justice.

A. Frossard, Pensées.
In previous chapters of this book several aspects of civil, criminal, and administrative
procedural law, such as those related to the role of judges and the court structure, have
already been considered (see Chapters 4, 7, 8 and 11). The purpose of this chapter
is to focus on the core principles which in France govern the justice process and the
underlying values on which it rests, followed by an overview of the main stages of
the pre-trial process in criminal procedure. However, before exploring how the justice
process unfolds, an introductory section will look at the place of the justice function
within the overall context of the public workings of the State. The ongoing process of
scrutiny and reform that characterises the current approach towards the justice process
in France and elsewhere will be also considered in the same introduction. Preliminary
consideration will be given to the question of to what degree the French model of jus-
tice is inquisitorial when compared with the adversarial system prevalent in common
law jurisdictions.
The present chapter will be organised as follows:
Following an introductory part, the question whether France is an inquisitorial
system will be discussed and the core principles governing its justice process set out.
Finally, the main stages of the pre-trial process in French criminal procedure will be
examined.
I N T RODU C T ION
J U ST IC E — A P U B L IC SE RV IC E OF T H E STAT E
In France, the institutions, procedures, and individuals which together make up a legal
system are commonly associated with the notion of public service and, as such, fall
within the area of public law. In this context, as with health and education, the justice
system, both civil and criminal, forms part of the State’s function to provide, within a
social framework, rules and institutions whose purpose is to deal with cases in an ap-
propriately efficient and just manner. The administration of the justice system comes
within the jurisdiction of the Ministry of Justice and its specialised departments such
193
Introduction 193
as the department of civil affairs (direction des affaires civiles et du sceau), the depart-
ment of criminal affairs (direction des affaires criminelles et des grâces) and the prison
service (direction de l’administration pénitentiaire). The notion of public service with
its concomitant emphasis on public law partly accounts for the fact that French pro-
cedural law favours, in a long-established tradition, professional judges rather than
lay personnel and, more generally, the use of inquisitorial rather than adversarial
methods in the application of the process of justice. Identifying justice as part of the
State’s functions can also account for the fact that, like other European jurisdictions,
there has been a high level of public debate in recent years in France about the need for
the justice system to become closer to the people, and to be more efficient and more
transparent. A particular tendency of modern systems of justice such as in France is
the constant search for improved justice policy to enable the legal system to become
more cost-effective and the body of rules supporting it to achieve a maximum degree
of efficiency through a process of rationalisation. Evidence of this is to be found in
the number of code revisions and the variety of official reports and enquiries which
have been conducted and published in both civil and criminal procedure during re-
cent decades. Greater attention will now be paid in the next sub-heading to procedural
reform.
P RO C E DU R A L R E F OR M
Similarly to other codified systems, the French rules which determine how pro-
ceedings are to be conducted before the courts are to be found in the codes. More
specifically, the rules of civil procedure are to be found spread across the Code de
Procédure Civile (CPC) and the Code de l’Organisation Judiciaire (COJ). The CPC
is the older one of the two. Dating back to 1806, then reissued in 1975 and 2007,
it deals with the actual conduct of proceedings in court whereas the COJ is more
recent (1978, then reissued in 2006) and is more concerned with the general or-
ganisation of the courts and the distribution of work and function between them.
As far as rules concerning criminal procedure are concerned, these are contained
in what has been known since 1959 as Code de Procédure Pénale (CPP), but which
was enacted in the Napoleonic era as the Code d’Instruction Criminelle (1811) (the
1811 provisions are now defunct). Nowadays civil and criminal procedure are both
subject to a continuous and ongoing reform. Although the pace of change has been
more marked in the area of criminal justice (to be addressed below under ‘The main
stages of the pre-trial process’), it is however in civil procedure that the most dra-
matic reforms have been introduced as part of the wider movement towards more
efficiency in the administration of justice. Starting in 2000, the French Minister of
Justice instructed Paul Boucher, a high-ranking judge in the Conseil d’État, to re-
view and assess the French system of legal aid within the wider context of access
to justice. A commission called Commission de Réforme de l’Accès au Droit et à la
Justice, headed by Paul Boucher, and consisting of four members (two judges, one
practising lawyer, and one consultant in social affairs), was appointed and submitted
194
194 Procedure
its report to the government in April 2001. In its consultation, the Commission
heard from a large and diverse number of individuals and organisations who
are directly involved in the administration of justice—such as judges, practising
lawyers, civil servants of the Ministry of Justice—but also including those less dir-
ectly involved, such as insurance companies, consumer associations, trade unions,
and a broad range of lay organisations. This influential report was in fact a follow-up
to the 1996 Coulon Report entitled Réflexions et Propositions sur la Procédure Civile
(1997) in which Jean-Marie Coulon, the then head of the Paris court of first in-
stance (tribunal de grande instance), similarly to the Woolf Report in England, made
recommendations on various aspects of the French system of civil justice; some
of these recommendations were later implemented in a Decree of 28 December
1998 modifying the Code of Civil Procedure in respect of court structure, legal
aid, and alternative dispute resolution. In this context of ongoing and continuing
reform of civil procedure there was, in 2002, another noteworthy reform of the
Code of Civil Procedure. New legislation made changes in such areas as the institu-
tion of proceedings, appeal procedure and recovery of small claims. Then, in 2007,
on President Sarkozy’s coming to power, a far-reaching incremental reform of the
French ‘judicial map’ (carte judiciaire) took place with a view to rationalising the
geographical distribution of court sites across the country and to reflect changed
patterns in demand since the end of the 18th century when the map was created. As
a consequence of this reorganisation, a number of these courts which did not have
sufficient activity to justify their existence were shut down. This provoked anger
amongst staff who had to be reassigned elsewhere. Despite these changes being un-
popular, the purpose of efficiency was served, and by 2016 there were 307 district
courts (tribunaux d’instance) instead of the 476 previously, and 164 local courts
(tribunaux de grande instance) instead of the 181 previously.
Again, in the 2008 Guinchard Report towards a more balanced distribution of liti-
gation between courts, a reduction of the courts’ workload was accomplished through
the transferred allocation of particular procedures to specialised clerks, the further de-
velopment of existing modes of alternative dispute resolutions, and, more generally, a
move towards a culture of dispute settlement within the justice process with the intro-
duction of a new procédure participative. Taken from the American system of justice,
procédure participative is based on a contractual agreement between litigating parties
not to seek recourse to a court or arbitration tribunal, but instead, to settle the issues
themselves through bona fide negotiations in the presence of their respective lawyer
(codified in art. 2062 of the Civil Code).
The latest major procedural reform which has been implemented in recent years is
the result of the Law of 18 November 2016 on the modernisation of various aspects
of the civil and criminal justice systems (known also as J21: Justice of the 21st cen-
tury). The main goals of the law are to strengthen the effectiveness and efficiency of
the justice system through the redeployment of cases from one category of courts to
another and by encouraging even further the use of alternative dispute resolutions. The
new legislation further promotes an accessible system for processing cases quickly and
195
France—an Inquisitorial System? 195
cheaply especially in the context of divorce, juvenile justice, rectification of civil status
documents and class actions.
F R A N C E — A N I N QU I SI TOR IA L SYST E M ?
A prominent feature of civil law systems of procedure such as that in France or in
Germany (Kötz 2003) is that their courts generally operate under what is called an
‘inquisitorial’ system, which is usually contrasted with the adversary or ‘accusatorial’
system prevalent in common law countries. In brief, a procedure which is ‘inquisi-
torial’ gives a more active role to judges in the conduct of the proceedings, whereas
in an adversarial system this is in the hands of the parties. In comparing the pro-
ceedings in a French court with those of a common law court, it may be noted that
they bear little resemblance in respect of the way in which facts are established in the
court hearing, the choice and consideration of witness statements and expert evi-
dence, and, in addition, the manner in which the division of labour between judges
and advocate is reflected in the court’s procedural detail. For example, in France,
much of the task of preparing a case for trial is carried out by the judge who will be
presiding over the hearing whereas, in common law jurisdictions, such a task lies
with counsel. Also, trials in France are shorter than in common law systems, one
reason for that being that witnesses are rarely cross-examined, except in the con-
text of criminal proceedings, notably in the Cour d’Assises where the most serious
offences are tried by jury.
It is often claimed by legal theorists that the inquisitorial approach to justice is more
suited to criminal proceedings whereas adversarial procedure is more appropriate to
the civil process where private interests are at stake. However, it would appear that the
choice of one system over another is instead determined by differing perceptions of
how truth may best be arrived at in the justice arena. Dealing with administrative pro-
cedure, Cane (2004: 136–7) rightly states in this respect:
The basic idea underlying the adversarial system is that truth is best discovered by
allowing parties who allege conflicting versions of what happened (or of what the law
is) each to present, in its strongest possible form, their own version of the truth, and
leave it to an impartial third party to decide which version more nearly approximates
to the truth. An inquisitorial system depends much more on the third party making
investigations and, by questioning each of the parties and other relevant persons,
deciding where the truth lies.
In practical terms, this difference of approach towards the best way to pursue truth in
the process of justice may be sumarised as follows:
In adversarial justice, when compared to inquisitorial:
(i) A greater role is played by the parties and counsel during the proceedings,
judges having a more passive and less leading role.
196
196 Procedure
(ii) There is a greater involvement of lay personnel in the form of magistrates and
juries whereas civil law systems make greater use of professional judges.
(iii) There is a stronger preference for oral (i.e. witness statements) versus docu-
mentary evidence as well as greater limits imposed on admissibility of evi-
dence. For example, under English common law, the admissibility as evidence
of a defendant’s past misconduct or convictions has always been more cau-
tiously considered on account of the adverse effect it could have on the fairness
of the proceedings, whereas in France background evidence has always been
perceived as relevant in support of a prosecution.
However, the combined pressures of global markets, European integration, and the
need to modernise and rationalise the justice system in particular jurisdictions, have
encouraged legal borrowings from both sides giving rise to systems of ‘mixed’ proced-
ural law through a process of ‘hybridisation’. For example, changes such as the system
of active case management by judges introduced in England by the Woolf reforms to
civil justice actually mirrors the procedure known as mise en état in France (CPC, arts
763 et seq.). A further striking illustration of such a process of ‘mixing’ is the intro-
duction in 2004 of the common law practice of plea bargaining in French criminal
proceedings, which will be addressed in more detail below (see also what is said on the
principle of contradiction under ‘The core principles governing the justice process in
France’ later in this chapter).
Focusing now on French procedure, the next sub-heading examines further to what
extent the French model of justice is of a hybrid character.
T H E F R E N C H M ODE L — A M I X E D SYST E M ?
Historical overview
From an historical perspective, and contrary to what is often thought in the common
law world, it would be wrong to assume that adversarial procedure is only a char-
acteristic of the common law. In fact, inquisitorial proceedings were introduced in
France by ecclesiastic courts from the 12th century onwards—and the system was later
consolidated in 1670 by royal decree—with a view to putting an end to the settlement
of disputes by force of arms (duel judiciaire) and vendettas that had prevailed under
the pre-existing feudal adversarial system. In feudal society, prosecutions were further
initiated by plaintiffs who then had a central role in the conduct of such proceed-
ings. However, the inquisitorial procedures of the ecclesiastic courts proved to be as
oppressive as the previously used adversarial methods because confessions in these
religious courts were very often obtained through the use of torture, a situation which
forced a total reconsideration of the justice system during the course of the revolu-
tionary period. Thus, a reformed system was introduced at the time of the 1789 French
Revolution which, despite retaining the overall general framework of the inquisitorial
system, added adversarial elements such as the principle of presumption of innocence,
the provision of a lawyer to assist the accused concurrently with the introduction of
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France—an Inquisitorial System? 197
the jury system. Today, as a result of ongoing reforms aimed at reconciling the State’s
interest in efficiency of justice with the rights of the parties to a case, both civil and
criminal justice systems carry elements and features of both approaches as regards
court procedure. This combined, but uneasy balance, is described in more detail below.
The current state of hybridisation

Starting with criminal procedure, the institution of an investigating magistrate (juge
d’instruction) together with the option for the victim to take an active role in the pro-
ceedings, notably, by initiating a prosecution through a constitution de partie civile
(see later in this chapter) is one illustration, amongst others, of the hybrid character of
the French system of criminal justice today. More generally, since the Law of 15 June
2000, known as Loi Guigou, a definite trend towards adversarial procedure is gradually
emerging. Indeed, the 2000 Law introduced in the Code of Criminal Procedure a new
preliminary article which lays down a set of guiding principles, amongst which is one
that states: ‘criminal procedure should be fair and adversarial and preserve a balance
between the rights of the parties’.
In civil procedure, similar forces are at work. The fact that up until now, French pro-
cedural law has been characterised by an inquisitorial approach originates from arts 10
and 11 of CPC, which deal with the role of judges in respect of ‘investigative measures’
(mesures d’instruction), more specifically the rules surrounding disclosure of evidence.
Under art. 10, the judge has the discretion to order any legally appropriate investiga-
tive measures such as appointing an expert or summoning a party to appear in court.
Article 11 further specifies that the parties are under a legal obligation to co-operate in
the implementation of the investigative measures ordered and it is open to the judge
to draw any conclusion from an abstention or refusal to do so. In addition, under the
same code provision, where one party holds evidential material, the judge may, upon
the petition of the other party to the case, order disclosure upon the first party, failing
which penalty payment may be imposed on an ongoing basis until such evidence is
disclosed. Similar rules apply in respect of disclosure for all documents held by third
parties where there is no legitimate impediment on their part to withhold. However,
when the following provision, art. 12 CPC, is considered, civil procedure becomes
more adversarial in texture. Under this article, whereas questions of law are sorted out
by the judge who must ‘settle the dispute in accordance with the rules of law applic-
able in the case’, questions of facts are considered to be the ‘monopoly’ of the opposing
parties in the case. Further, consistent with the adversarial approach, judges may not
base their decision on facts falling outside the scope of the parties’ dispute (CPC, art. 7);
they can only rule upon what is ‘claimed’, the subject matter and limits of such claims
being determined by each of the parties (CPC, arts 4 and 5). However, when it comes
to assessing whether the alleged facts are true, the juridical question arises whether
the court should merely consider the facts which remain at issue or also question prior
facts which have been agreed. In this respect, the Court of Cassation has decided that
facts agreed between the parties may be re-examined to be used in the judges’ deci-
sion, thereby leaning back again towards the inquisitorial method (see, e.g., Civ. 1, 4
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198 Procedure
July 1995, Bull. civ. I, 294); therefore, even though particular factual circumstances
of a case are not in dispute (known as faits constants), this does not prevent judges in
France from questioning their ‘truthfulness’ and use such a revisiting of prior agreed
facts in their judgment.
T H E C OR E P R I N C I P L E S G OV E R N I N G
T H E J U ST IC E P RO C E S S I N F R A N C E
Both the Code of Civil Procedure and the Code of Criminal Procedure include a pre-
liminary part, which lays down the leading principles governing their respective areas.
Many of these principles mirror the multifaceted fundamental right to a fair trial
guaranteed by art. 6 of the European Convention on Human Rights (ECHR) which
was ratified by France in 1974. Amongst these rights are the right to be assisted by a
lawyer and the right to be tried within a reasonable period of time. The purpose of the
following sub-headings is to examine in more depth the overarching principles which,
at their heart, regulate the justice system in France. In French legal literature these
principles are usually addressed in the context of civil proceedings, but it should be
noted that they are also relevant in criminal procedural law. These principles are now
considered in turn.
T H E P R I N C I P L E OF E QUA L I T Y
First and foremost is the principle of equality. This principle, which pervades the whole
process of justice, requires that all litigants have a right to equal and effective access to
the courts. This implies generally both equal treatment by the courts and equal pro-
cedural rights, such rights being also upheld by the European Court of Human Rights
under art. 6(1) of the ECHR. In this respect, the Strasbourg Court has developed,
through its case law, a ‘principle of equality of arms’—one of the elements of the
broader concept of a fair trial in art. 6(1)—which requires each party to an action to be
given a reasonable opportunity to present their case under conditions that do not place
them at a substantial disadvantage vis-à-vis their opponent.
T H E P R I N C I P L E OF DE C E N T R A L I S AT ION OF J U ST IC E
As already mentioned, in France, judicial courts—with the exception of the highest
ones, which are based in Paris (i.e Court of Cassation, Conseil d’État and Tribunal des
Conflits)—are spread out across the country. They are jurisdictionally independent of
each other and cover a certain geographical area. This fact raises issues of geographic
jurisdiction known as compétence territoriale, or ratione loci. The general rule is that
the jurisdiction of the court is determined according to where the domicile of the de-
fendant is situated, i.e. for individuals, it will be generally their actual residence and, in
the case of legal persons, the headquarters (CPC, arts 42–43). However, certain specific
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The Core Principles Governing the Justice Process in France 199
subject matters are governed by special rules of geographic jurisdiction: real estate
cases fall within the jurisdiction of the court where the land at issue is situated (CPC,
art. 44); contract cases, where the performance has been carried out or where the de-
livery of goods has taken place (CPC, art. 46); tort, the court where the harm was
caused or where it was actually suffered (CPC, art. 46). The reform of the French ‘ju-
dicial map’ mentioned above has impinged upon these criteria with the consequential
effect that litigants have sometimes to travel greater distances in order to have their
cases heard.
T H E P R I N C I P L E OF F R E E AC C E S S TO J U ST IC E
The French State bears the costs generated by the administration of the justice system,
save for the fact that litigants still have to pay fees when they employ the services of
lawyers. However, it may be remarked that until the 1789 Revolution litigants had to
pay for the judges hearing the case, first by payment in kind, then later in the form of
fees. This was known as the système des épices, a practice which was abolished by the
Law of 16–24 August 1790 which, inter alia, introduced the principle of free access to
justice (gratuité). Today, judges are civil servants and as such are paid for by the State.
The principle of gratuité is enshrined in art. L 111–2 of COJ, and finds extended ex-
pression in the existence of a system of legal aid known as aide juridictionnelle whose
management is entrusted to special organisations called bureau d’aide juridictionnelle
located at the site of every tribunal de grande instance. To be eligible for full legal aid,
applicants must show a monthly income of less than 1,007 euros; a monthly income
between 1,008 and 1,510 euros is required to be able to benefit from partial legal aid.
Allowances against gross income figures are made for maintenance of dependants in
the form of raising the allowable gross income ceiling for which full, or alternatively,
partial legal aid will be made. Thus, for each dependant there is a grossed-up allowance
of 181 euros, reduced to 114 euros from the third dependant onwards. Independently
of income, the other criterion to qualify for legal aid is whether the applicant can
provide serious grounds for bringing the claim. In other words, legal aid will not be
granted for frivolous actions. Those who are not eligible for legal aid have to pay their
own lawyers’ fees and the court’s legal costs known as dépens. In principle, any litigant
who loses their case has to pay dépens. However, each of the parties, whether winning
or losing, still bears its own lawyer’s fees. However, art. 700 CPC gives discretion to the
judge to decide otherwise; subject to the financial capacity of the losing party to pay,
and if equity so requires, the judge can order the loser to make a specified contribution
towards what would otherwise be, in the absence of such an order, wholly unrecover-
able costs (known as frais irrépétibles) spent by the successful party in the action.
T H E P R I N C I P L E OF C OL L E G IA L I T Y
Civil and criminal cases in France are usually heard by a panel of three judges both
at first instance and at appellate levels (art. L 212–1 of COJ in respect of tribunal de
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200 Procedure
grande instance, the court where generally the most important cases are heard at first
instance, and art. L 312–1 of COJ for the courts of appeal). The merits of collegiality are
well known. There is less room for bias when judges are hearing cases in a group. Also,
being part of a panel makes it less likely that one of them will be singled out and pos-
sibly targeted by the media. However, in view of the increasing case workload and in
order to reduce costs and encourage specialisation, successive reforms have introduced
single judge proceedings at first instance level. Thus, under the current system, a case
goes to a single judge in matters of road traffic accidents, in interim proceedings
(référé: COJ, art. L 213–2), divorce proceedings (juge aux affaires familiales: COJ, art.
L 213–3) and, more generally, for cases heard by tribunal d’instance, the court dealing
with civil claims not exceeding 10,000 euros (COJ, art. L 222–1).
T H E P R I N C I P L E OF C ON T R A DI C T I ON
Articles 14–16 of CPC deal with the principle of contradiction to which judge and both
litigating parties are subject. This principle implies that:
(a) From the start of the proceedings, the judge is under an obligation to call and
hear all the parties concerned.
(b) During the course of the proceedings, parties must disclose in due time to one
another (i) the factual arguments supporting their claims (moyens de fait),
(ii) the evidential means they intend to produce in bringing their case, and
(iii) the legal arguments (moyens de droit) they rely upon, so that each side to the
case can organise their respective positions and bring to the court’s attention all
the facts and arguments required to convince the judge of the veracity of what
is claimed.
(c) At the end of the proceedings, the judge’s decision may take into consideration
the arguments, submissions, and documents relied upon or produced by the
parties only if the parties have both had an opportunity to discuss them in an
adversarial manner. Judges cannot base their decision on legal arguments that
they have raised of their own volition without first having invited both of the
parties to comment upon them.
A series of rulings by the European Court of Human Rights, under art. 6 (1) of the
ECHR, in respect of lack of a fair hearing and breach of the adversarial principle and the
principle of equality of arms, have led in recent years to France’s highest courts (Court
of Cassation and the Conseil d’État) altering their practice (see, notably Reinhardt and
Slimane-Kaïd v France, 31 March 1998; also Borgers v Belgium, 30 October 1991; Kress
v France, 7 June 2001; Le Duigou v France, 19 May 2005). According to the Strasbourg
Court, the right to adversarial proceedings means in principle ‘the opportunity for
the parties to a criminal or civil trial to have knowledge of, and comment on, all evi-
dence adduced or observations filed, even by an independent member of the national
legal service, with a view to influencing the court’s decision’. As a consequence of this
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The Core Principles Governing the Justice Process in France 201
case law, written reports made to the Court of Cassation by conseillers rapporteurs (see
Chapter 8, ‘Absence of Policy Arguments’ above), which were formerly communicated
to both the judges and the Avocat Général—to the exclusion of the parties to the case—
are now disclosed to the parties as well as to the Avocat Général. However, the section
containing their personal opinions is held secret in a separate document known as
‘note’ or ‘avis’, together with the draft judgments (called projets d’arrêt) which it is their
practice to prepare, and which documents will only be considered by the panel of
judges hearing the case. Consequently, note and projets are no longer communicated,
as was formerly the case, to the Avocat Général who, for the purpose of upholding the
contradiction principle, is now considered to be one of the litigating parties. Similarly,
following the same jurisprudence, Avocats Généraux and their equivalent in the Conseil
d’État, i.e. Rapporteurs Publics (formerly known as Commissaires du Gouvernement),
are now both excluded from participating in their respective court’s deliberations.
The principle of contradiction as defined above, despite holding a degree of simi-
larity in common with the common law adversarial principle, does not however suggest
that the truth will necessarily emerge from the hearing of all evidence presented, as is
believed to be the case in common law courts. In fact, contradiction is no more than a
formal procedural safeguard which has no significant impact on the underlying French
procedural value that, really, it is the pre-trial investigation by an independent judge
which is still perceived as the best way to find the truth in the most impartial and
egalitarian manner. This is why a 2009 governmental proposal to abolish the position
of investigating magistrate (juge d’instruction) in criminal proceedings was regarded
at the time as being highly contentious and was eventually abandoned. Many lawyers
in France still associate the adversarial common law system of justice with a kind
of ‘contest’ reminiscent of the feudal practice of duel judiciaire and whose outcome
depends much on each party’s individual financial ability to hire a high-profile defence
team. For illustration of this, one need look no further than the highly publicised 1995
American O. J. Simpson murder case, which is still exercising the minds of French
critics of an exclusively adversarial system of justice.
T H E P R I N C I P L E OF D OU B L E DE G R É DE J U R I DI C T I ON
Under this last principle, everyone has the right to challenge in a court of appeal—
on issues of fact as well as issues of law—the judgment of a court of first instance
provided that the value of the matter in dispute is higher than 4,000 euros. The pro-
cedure of appeal (CPC, art. 542), which has to be distinguished in France from the
appellate procedure of pourvoi en cassation (CPC, art. 604), allows not only a review
of the conclusions reached by the court in the first instance on points of law, but also
allows for a reconsideration of the facts. By contrast, when appealing to the Court of
Cassation by way of pourvoi en cassation, only issues of law can be challenged (COJ,
art. L 411–2); this restriction disqualifies the Court from being a ‘third degree of juris-
diction’. The most common grounds for pourvoi en cassation against a lower court deci-
sion are violation de la loi, i.e. breach of law (which most of the time means a challenge
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202 Procedure
based on a misinterpretation of a legal text or principle); allocation of a case to the

wrong court (incompétence); lack of or insufficient legal justification (manque de base
légale) and, finally, failure to observe a required formality (vice de forme).
Much concern has been expressed in recent years regarding the ways appeals and
pourvois are processed in France. Since both are virtually open to any litigant wishing
to challenge a lower court decision, the high appeal rate in courts of appeal across the
country and before the Court of Cassation means that they are all having difficulty
managing their respective workloads. Unlike other legal systems, where litigants face
a number of disincentives to appeal, in France, most unsuccessful litigants think they
have nothing to lose in lodging an appeal, even when their counsel advises that the
chances of success are small.
As a final point under this heading, it is interesting to note that the right to appeal
in civil proceedings is not guaranteed by art. 6(1) of the ECHR; only in criminal pro-
ceedings, under art. 2(1) of Protocol 7 to the Convention, is there a statement of a right,
not to be denied, to have a conviction or sentence reviewed by a higher court. On this
account, the law in France was changed in 2000 to allow appeal against Cour d’Assises
judgments in matters of serious offences. Before this date, appeal from Cour d’Assises to
a court of appeal was barred, only the review of procedural issues being allowed in the
Court of Cassation. Accounting for this limitation to the principle of double degré was
the fact that in Cour d’Assises defendants are tried by jury. Since jurors are considered
to be the representatives of the French people, and as such sovereign in the land, their
decision could not be challenged. It was argued that this approach to jury trial did
not necessarily serve the cause of justice since the opportunity to appeal and to have
a conviction reviewed, thus avoiding a possible miscarriage of justice, was even more
justified in complex cases such as those heard by Cour d’Assises than in instances of less
serious offences where an appeal procedure was already in place.
T H E M A I N STAG E S OF T H E P R E - T R IA L P RO C E S S
I N F R E N C H C R I M I NA L P RO C E DU R E
P R E L I M I NA RY R E M A R K S
Two preliminary comments should be made prior to examining in more detail the
manner in which criminal proceedings are conducted in France.
(1) The law on punishable offences is to be found in the Criminal Code (CP). As
with other codes, the Criminal Code is a statutory instrument which binds the
courts (see Chapter 2, ‘Codification’).
Similarly to the method adopted in the majority of other criminal systems, for the
purposes of determining what court has jurisdiction over a case, the French Criminal
Code classifies criminal offences according to their seriousness. Thus, in French law,
criminal offences are categorised either as crimes, délits or contraventions (CP, art.
111–1). Crimes, such as murder or rape, are the most serious offences, are tried in
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THE MAIN STAGES OF PRE-TRIAL CRIMINAL PROCESS 203
the Cour d’Assises and are punishable by a term of imprisonment on a scale up to life

imprisonment; délits, such as non-aggravated theft, are heard and tried by tribunal
correctionnel; and contraventions by tribunal de police.
(2) Consistent with the requirement of independence and impartiality laid down
in art. 6(1) of the ECHR, the French system of criminal justice is based on
separating the functions of prosecution, investigation, and trial (CPP, prelim-
inary art. I). This implies that, e.g., the judge investigating the case cannot take
part in the associated trial or judgment, a rule which is enshrined in domestic
law in art. 49 alinéa 2 of CPP.
However, there are a few exceptions to the principle of separation, one being the
juvenile court (Tribunal pour Enfants) where, based on the special circumstances
of the quasi-parental role held by the juge des enfants in such proceedings, offences
committed by minors are investigated and tried by the same judge.
T H E P RO SE C U T ION P RO C E S S
French criminal prosecution or poursuites are usually initiated on the instruction
of the French public prosecutor—commonly known in France as Procureur de la
République or Ministère Public—with a view to bringing charges, following a prelim-
inary police enquiry against a wrongdoer. According to art. 41 of CPP, ‘the public
prosecutor carries out and/or conducts any acts which are necessary for the discovery
and prosecution of offences’. However, it should be noted that other public govern-
ment agencies, such as Customs and Excise, can conduct their own prosecution. Also,
as already stated and as further developed below, a victim of a crime in France can
also instigate a prosecution.
The process of prosecution engenders three separate, but related, issues that need to
be addressed here: the question of the presumption of innocence, the status of public
prosecutors, and, finally, the issue of the decision to prosecute. We now look at these
questions in turn.
Prosecution and the presumption of innocence

Contrary to what is often heard in the common law world, there is, in French law, a
long-established principle of presumption of innocence, which is enshrined in a series
of fundamental texts:
(a) 1789 Declaration of the Rights of Man and Citizen, art. 9, which states: ‘Every
man being presumed innocent until found guilty, if it is thought necessary to
arrest him, any harshness that may not be necessary to secure his person must
be strictly suppressed by law’;
(b) Code of Criminal Procedure, preliminary article para. III: ‘Every person
suspected or prosecuted is presumed innocent as long as his guilt has not been
established. Any infringement of presumption of innocence is proscribed,
compensated and punished within the conditions laid down by the law’;
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204 Procedure
(c) Civil Code, art. 9–1: ‘Everyone has the right to respect of the presumption of in-
nocence. Where, prior to any sentence, a person is publicly shown as being guilty
of facts which are in the course of being investigated, the court, even by interim
order and without prejudice to compensation for injury suffered, may order any
measure . . . with a view to ending such an infringement of presumption of innocence,
at the expense of the individual or legal person held liable for this infringement.’
Focusing on criminal proceedings, the presumption of innocence implies that:
(i) The onus is on the prosecution to prove the accused is guilty.

(ii) The judge in charge of the investigation of the case (juge d’instruction) is
obligated by code provision to seek out evidence of innocence as well as guilt
(CPP, art. 81).
(iii) When there is a doubt as to the guilt of an accused, he or she cannot be found
guilty. This is an application of the principle of in dubio pro reo—where there is
a doubt, this will benefit the accused.
However, in practice the operation of the presumption of innocence has not proved
to be easy and its application has been undermined in several ways, ranging from re-
verse burden of proof cases (e.g. there is a presumption of mens rea for certain crim-
inal offences) to the admissibility of mere inferences as evidence (known as ‘serious,
precise and concordant presumptions’). This stance away from the presumption of
innocence is not particular to France since, on the back of rising crime figures, many
exceptions to the general rule that the burden of proof rests with the prosecution
exist in the majority of criminal legal systems where the principle of presumption
of innocence is applied. The European Court of Human Rights has also recognised
reasonable limited qualification to the presumption of innocence provided that a
defendant’s right to fair trial is generally maintained. In Salabiaku v France (1988)
13 EHRR 379 the applicant had been convicted for smuggling prohibited goods.
He alleged that his conviction was secured in a manner which was not compatible
with the presumption of innocence. Indeed, he argued, that the courts in France
had convicted him on the basis that he ‘showed no surprise’ when the offending
packages were opened by Customs in his presence. This attitude appeared to the
courts to establish the fact of his ‘bad faith’ and it was thus decided that there were
‘presumptions . . . sufficiently serious, precise and concordant’ to justify a conviction.
For the European Court of Human Rights, such inferences drawn by French judges
in this case from factual circumstances were not, by their nature, an infringement of
the presumption of innocence, thus avoiding condemnation of France on this point.
The status of public prosecutors

Public prosecutors are trained and recruited as magistrats (magistrats du parquet) in
the same manner as judges sitting on the bench (known as magistrats du siège) (see
Chapter 6 above). However, unlike the latter, public prosecutors do not enjoy the
same degree of independence from executive power. Indeed, under the now revised
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Ordonnance of 22 December 1958 dealing with the status of the judiciary, public
prosecutors are responsible to the Minister of Justice. Article 30 of CPP further states
that the Minister of Justice, being in charge of carrying out government policies related
to the prosecution process, has the responsibility for instructing public prosecutors of
these policies. However, since 2013, under the same code provision, public prosecutors
cannot be compelled by the Minister either to initiate or to discontinue individual
prosecutions. Before 2013, the Minister could indeed notify the public prosecutor’s
office in respect of the commission of offences of which he or she had cognisance
and had the power to instruct in writing any individual public prosecutor to initiate
prosecution proceedings in given circumstances. However, since public prosecutors
are still vulnerable to the power their immediate superiors have over them, they may
legitimately feel that if they make decisions within their powers which may act against
their superior wishes, then this can quite possibly have a permanent adverse effect
on their own immediate and future career prospects. The general subordination of
public prosecutors’ functions to the hierarchy’s wishes is heightened by the fact that,
in court, they cannot instruct self-employed lawyers to present any prosecution case
in their stead. However, during the hearing, in any submissions they may make, whilst
bound to follow written instructions coming from above, they can express their per-
sonal views orally freely and without constraint. This licence avoiding restriction is
expressed under the format of an old saying ‘la plume est serve, la parole est libre’.
The above outline of the position of public prosecutors in French criminal procedure
has been a source of recurring official concern for decades. In 1997, the then President
of the Republic instructed the head of the Court of Cassation to inquire, inter alia, into
the degree of dependence existing between the public prosecutor’s office and the gov-
ernment. A commission, headed by the high-ranking judge Truche, concluded in fa-
vour of maintaining the link between the executive power and the prosecution service
with the caveat that the Minister of Justice should be prevented by law from giving spe-
cific instructions in individual cases, a recommendation whose implementation was fi-
nally taken up in 2013 (see above). The status of French public prosecutors was further
challenged in the European Court of Human Rights in Medvedyev and others v France,
Case no. 3394/03, 10 July 2008. Here, the applicants claimed that they had been arbitrarily
deprived of their liberty by being detained on board a vessel for thirteen days under the
guard of French military forces without their detention being supervised by any ‘compe-
tent legal authority’ within the meaning of art. 5 (1) (c) of the ECHR which states:
1. Everyone has the right to liberty and security of person. No one shall be deprived of his lib-
erty save in the following cases and in accordance with a procedure prescribed by law: . . .
(c) the lawful arrest or detention of a person effected for the purpose of bringing
him before the competent legal authority on reasonable suspicion of having
committed an offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so.
The French government submitted in response that the deprivation of liberty concerned
had taken place under the supervision of a public prosecutor, being in this case the
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‘competent legal authority’ required by law. However, on this particular point, the
Strasbourg Court decided that there had been a violation of art. 5 (1) on the grounds
that French public prosecutors could not be such an authority within the meaning
that the Court’s case law gives to that notion since they lacked ‘the independence in
respect of the executive to qualify as such’ (The European Court confirmed Medvedyev
on this point in Moulin v France, Case no 37104/06, 23 November 2010). It should be
noted that this ruling by the European Court conflicts with established domestic case
law of Conseil Constitutionnel on the same issue. In its leading Decision 93–326 DC of
11 August 1993 concerning the 1993 reform of criminal procedure, the Conseil ruled
that, under art. 66 of the Constitution, public prosecutors belonged to the judiciary as
much as ordinary judges and therefore were to be considered as ‘independent’ bodies.
As the foregoing discussion demonstrates, the constitutional position of public
prosecutors in France has been for years the subject of heated debate. It may be argued
that since public prosecutors and judges are trained together in the same school as
magistrats (see Chapter 6), thus naturally sharing the same values and ethics, then the
former—as much as the latter—should be entirely free from the executive power and
no longer be treated as a subordinate category within the judiciary.
The decision to prosecute

When an offence has been committed, the police will generally be in charge of initiating
preliminary investigations under the supervision of the local public prosecutor to
whom they have a duty to report their action. When the case is concerned with minor
offences, the public prosecutor will usually refer the case directly to the trial court by
way of an official instruction to the offender to appear before the court called citation
(CPP, art. 388). The citation states not only the identity of the accused, but also the
facts and statutory provisions on which the charge against the accused is based (CPP,
art. 551). In the case of serious offences or complex cases, a preliminary judicial in-
vestigation being compulsory, the public prosecutor has to refer the matter to a juge
d’instruction, the French investigating magistrate, by issuing a formal request to do so
called réquisitoire introductif (investigation and juge d’instruction are examined below).
However, the public prosecutor may also decide to take no further action (known as
classement sans suite), a decision which, since 2004, can now be challenged by the plaintiff
(CPP, art. 40–3). Since 2004, when a form of plea negotiation was introduced in France,
it has even been possible for public prosecutors to propose, as an alternative to trial, a
discounted sentence to defendants prosecuted for an offence carrying a sentence of up
to five years’ imprisonment (CPP, arts 495–7 et seq.). This type of procedure, known as
comparution sur reconnaissance préalable de culpabilité, or, shorter, plaider-coupable, is in
fact an addition to already existing alternative procedures to trial such as mediation pénale
and composition pénale (supplemented in 2014 by transaction pénale, see below). With
plaider-coupable, the public prosecutor can propose to the defendant up to no more than
half of the sentence. If such offer is accepted, then approval by the court is still required.
The court may decide not to approve the proposed arrangement if, in its view, the tariff
proposed and agreed is too low or too high or, if there is no sufficient evidence to show
prima facie guilt. It is important to note here that the French procedure of guilty plea is not
207
in reality ‘plea bargaining’. It does not permit negotiation as such, either on the nature or
category of the alleged offence or on the tariff proposed by the public prosecutor.
Generally, French criminal culture is at odds with negotiated justice; however, for
efficiency purposes, there has been in recent years an increasing emphasis on the
development of alternative dispute resolution methods such as plaider-coupable in
French criminal justice. On the law front, there is a danger that such methods of
resolving cases may fall foul of art. 6 of the ECHR by denying offenders a right to be
informed promptly and in detail of the nature and cause of the accusation against
them and to have adequate time and the facilities for the preparation of their de-
fence. These issues were raised successfully in CE Syndicat de la Magistrature et
Autres, 24 May 2017, with regard to the then newly introduced transaction pénale
(out of court settlement). Article 41-1-1 of the Code of Criminal Procedure and its
implementing set of regulations allow police officers to use this rapid penal measure
for minor offences, such as drug use, instead of prosecution or other alternatives
to prosecution. As it turned out, in practice, offenders have not always been fully
informed of the exact nature of facts held against them when accepting such a settle-
ment. In Syndicat de la Magistrature, the Conseil d’État ruled that this criminal pro-
cedure should be based on the free and unequivocal agreement of the perpetrator,
which implies in particular full knowledge by the person concerned of the nature of
the alleged acts and their legal classification. In the case at hand, the Conseil found
that neither art. 41-1-1 of the Code of Criminal Procedure nor the provisions of
the contested implementing decree provided that the person to whom the settle-
ment is proposed be duly informed of the nature of the allegations and of their legal
characterisation.
The final relevant point to be mentioned under this sub-heading is the status of
the victim at the stage of the prosecution. As already stated, in France, victims of a
crime, apart from being entitled to sue the wrongdoer for civil damages in the crim-
inal courts (CPP, art. 3), can also initiate a prosecution on their own account. In this
respect, victims hold a unique position in criminal procedure in the sense that they
can not only become a proper party (known as partie civile) to a criminal case by
‘joining’ the public prosecutor in any action against an offender, but can also take upon
themselves the role of launching criminal proceedings if or when the public pros-
ecutor has declined to do so (CPP, art. 1 alinéa 2). In cases where an investigation is
mandatory (crimes) or desirable (complex cases), a private prosecution by the victim
will take the form of a plainte avec constitution de partie civile addressed to the juge
d’instruction handling the investigation (CPP, art. 85). However, such a constitution
may be challenged by the public prosecutor or the accused (CPP, art. 87) and it also
involves—taking into account the actual resources of the partie civile—the payment of
a sum called consignation intended to cover the potential costs of the proceedings (CPP,
art. 88). Constitution de partie civile has proved in the past to be an efficient means of
initiating a prosecution where scandals with a political dimension were involved such
as the contaminated blood scandal in the wake of the AIDS tragedy in the 1990s. Here
state prosecutors were reluctant to initiate on their own account proceedings against
government ministers and civil service health officials who were allegedly accused of
208
208 Procedure
knowingly distributing AIDS-tainted blood products to hemophiliacs at the end of the

1980s, with fatal consequences.
T H E I N V E ST IG AT ION OF T H E C A SE
This phase is dominated by the French investigating magistrate, the juge d’instruction.
Interestingly, the role of the French investigating magistrate has been proposed, in some
official draft reports issued in common law countries, as a possible alternative model
for the investigation and prosecution of suspects in those jurisdictions. However, one
common conclusion of these various studies was that to import the juge d’instruction
system would require fundamental changes to the adversarial common law tradition.
The purpose of the following sections of this chapter is to explore the role and status
of juge d’instruction, especially against the backdrop of the past unsuccessful govern-
mental attempts to abolish the position as it stands today.
The role of juge d’instruction

French juges d’instruction are members of the judiciary and are independent of the
prosecution service. Their task is to examine all the evidence which has been gathered
during police enquiry and to obtain such additional evidence, as they see fit, with a view
to determining whether or not the accused should be sent to court to stand trial. In this
respect, juges d’instruction have the power to issue warrants, such as arrest warrants, or
intercept warrants, such as telephone tapping. If, at any stage of the examination process,
‘there exists serious and/or corroborative material making it likely that he or she [the
accused] may have participated, whether as author or accomplice, in the commission of
the offence under consideration’, then the juge d’instruction will ‘put under examination’
(mise en examen) the person identified in the public prosecutor’s réquisitoire (CPP, art.
80–1). Since the Law of 15 June 2000 aimed at strengthening the presumption of inno-
cence and reducing the number of mises en examen in criminal proceedings, mise en
examen can only be applied when there is serious and corroborative evidence making
it likely that the accused person has committed the offence. If this is not so, the juge
d’instruction must apply the less onerous procedure of témoin assisté, where the person
is heard as a witness with the presence and assistance of a lawyer pending a possible mise
en examen. Once the juge d’instruction has concluded his investigation—following the
public prosecutor’s opinion on both legal and factual issues arising from the dossier—
the juge makes his final decision on the case by either referring the defendant to the trial
court (ordonnance de renvoi) or discontinuing the process of prosecution by issuing an
order of no case to answer (ordonnance de non-lieu).
Juge d’instruction—the most powerful person in France?

By reason of these extensive powers as outlined above, the juge d’instruction has been
described as the most powerful person in France. It was Balzac, the French novelist, who
in 1847, declared that ‘no power in the land, neither the King nor the Keeper of the
Seal, nor the Prime Minister, can impinge on the powers of a juge d’instruction. Nothing
constrains him, no one has power over him. He is sovereign in his actions, responsible
only to his conscience and to the law’. On account of this considerable power and in
209
view of recent miscarriages of justice involving juges d’instruction, there have been calls
for reform. It was in fact the 2000 child abuse scandal of Outreau, a poor suburb of
Boulogne sur Mer in Northern France, where several people were charged and convicted
on very thin evidence with offences of paedophilia and incest, before eventually seeing
their convictions overturned on appeal, which precipitated radical proposals for reform.
This led to a parliamentary inquest where the judge involved was cross-examined and,
subsequently, reprimanded for his negligence by the Conseil Supérieur de la Magistrature,
the body dealing with disciplinary cases involving judges (see also at Chapter 6).
The Outreau case brought to light a number of issues, the most significant being
that, by reason of the way in which they were recruited, juges d’instruction were often
young and lacking experience. The fact that they worked alone, and not in a team, was
perceived as an additional flaw. More generally, juges d’instruction, it was said, were in
an untenable position, exercising the functions both of police and judge. Finally, it was
said that despite the fact that, in theory, their decisions could be challenged on appeal,
the Chambre de l’instruction, the special Court of Appeal division dealing with appeals
against juges d’instruction’s orders, in practice hardly ever overturned their decisions.
However, to put the above into perspective, all these criticisms have to be gener-
ally considered against the background of the juges d’instruction’s real activity and
powers in practice. Despite high media coverage of what they are doing, in reality
they only deal with a minority of cases. Approximately only 5 per cent of criminal
cases are handled by juges d’instruction. Indeed, the vast majority of cases are generally
investigated by the police under the supervision of public prosecutors. Furthermore,
in recent years, a number of changes in the law have been aimed at strengthening the
presumption of innocence (see above) and reducing the exclusive powers of the juges
d’instruction. For example, they no longer deal with decisions of detention on remand
pending trial (CPP, art. 137-1). Finally, recent figures also show that out of the number
of cases handled by investigating magistrates, approximately 20 per cent result in a de-
cision of no case to answer (non-lieu).
Nevertheless, following Outreau, a working group, the Commission on the Reform
of Criminal Justice headed by Avocat Général Léger, was set up to consider possible re-
form of criminal proceedings including a look at the position of the juge d’instruction
in criminal proceedings.
Without waiting for the Commission’s conclusions, in January 2009, at the annual
opening session of the Court of Cassation, the then President Sarkozy announced a major
overhaul of the criminal justice system including his intention to abolish the position of
juge d’instruction in its present form. This immediately raised concerns and sharp criticism
amongst judges. Indeed, unlike public prosecutors, as discussed above, juges d’instruction
are independent of the executive branch of government. As such, their track record shows
that they have had no hesitation in charging politicians with corruption during various
financial scandals in the 1980s and 1990s. The President’s expressed intention to remove
them was looked upon by the judiciary as an attack, perhaps even a settling of accounts,
on the part of the political class against those in the justice system who were perceived as
imposing judicial retribution for financial wrongdoing in the body politic.
However, the Sarkozy’s proposed measures were not intended to completely
abolish juges d’instruction. They promoted instead a collegial body of instruction
210
210 Procedure
with a limited role of arbitrator between the defence and the prosecution in the
proceedings before trial. This proposal was purportedly an attempt to move from
an inquisitorial system to an adversarial one with the difference being, however,
that under this new system the public prosecutor would still be under the authority
of the Minister of Justice, and therefore will not be independent of the executive
power. The reform was subsequently postponed, and finally abandoned in 2016,
mainly for lack of financial resources.
Chapter References
and Further Reading
Cane, P., Administrative Law, Oxford Context of Recent Reform’, ICLQ, Vol. 51,
University Press, 2004. 2002, 781–816.
Coulon, J. M., Réflexions et Propositions sur la Hodgson, J., French Criminal Justice: A
Procédure Civile, Paris: La Documentation Comparative Account of the Investigation
Française, 1997. and Prosecution of Crime in France,
Delmas-Marty, M. (ed.), The Criminal Process Oxford: Hart, 2006.
and Human Rights: Toward a European Kötz, H., ‘The Role of the Judge in the Court
Consciousness, The Hague: Martinus Nijhoff, Room: the Common Law and the Civil Law
1995. Compared, Journal of South African Law,
Delmas-Marty, M., and Spencer, J. R. (eds), 1987, Vol. 104, 35.
European Criminal Procedures, Cambridge Kötz, H., ‘Civil Justice Systems in Europe and the
University Press, 2002. United States’, Duke Journal of Comparative
Fairchild, E., and Dammer, H., Comparative and International Law, 2003, Vol. 13, 61–77.
Criminal Justice Systems, Wadsworth/ Leigh, L. H., and Zedner, L., A Report on the
Thomson Learning, 2001. Administration of Criminal Justice in the Pre-
Fennell, P., Harding, C., Jőrg, N., and Swart, trial Phase in France and Germany, Royal
B., Criminal Justice in Europe: A Comparative Commission on Criminal Justice Research
Study, Oxford: Clarendon Press, 1995. Study No. 1, London: HMSO, 1992.
Guinchard, S., L’Ambition Raisonnée d’une Pradel, J., ‘Tous les Péchés du Juge
Justice Apaisée, Paris: La Documentation d’Instruction Méritent— ils sa Mise à
Française, 2008. Mort?’, D. 2009, 438–9.
Herzog, P., Civil Procedure in France, The Pradel, J., ‘Le Plaider-Coupable, Confrontation
Hague: Martinus Nijhoff, 1967. des Droits Américain, Italien et Français’,
Hodgson, J., ‘The Police, the Prosecutor and RIDC, 2–2005, 473–91.
the Juge d’Instruction: Judicial Supervision Trouille, H., ‘A Look at French Criminal
in France, Theory and Practice’, Brit. Procedure’ [1994] Crim LR 735.
J. Criminology, 2001, Vol. 41, 342–61. Zweigert, K., and Kötz, H., Introduction to
Hodgson, J., ‘Suspects, defendants and Comparative Law, Oxford University Press,
Victims in the French Criminal Process: the 1998, Ch. 18, 256–75.
21
13
THE LAW OF CONTRACT
On lie les boeufs par les cornes et les hommes par les paroles, et autant vaut une simple
promesse ou convenance que les stipulations du droit romain.
Loysel.
T H E P L AC E OF T H E C ON T R AC T I N
T H E F R E N C H C I V I L C ODE
The overhaul of the French law of obligations which took place in 2016 was a milestone in
the history of French contract law. For the first time since the Civil Code’s enactment in
1804, the part of the code relating to contractual obligations was completely redesigned
and updated. This reform of contract law, which had been underway for more than ten
years, was eventually completed by the publication of the Ordonnance 2016-131 of 10
February 2016. The new legislation is a work of compromise which draws its inspiration
from the previous proposals for reform made by working groups of academics, but also
from European endeavours such as the Principles of European Contract Law.
Prior to and following the bicentenary of the Civil Code in 2004, voices were
raised amongst French jurists in a call to improve the law governing contracts in
France. Indeed, the part of the Civil Code entitled ‘Des contrats ou des obligations
conventionnelles en général’ (former arts 1101–1369) had remained mostly unchanged
in its structure since 1804. As far as its content was concerned, only a few articles had
been deleted, and more than 90 per cent of those remaining were still to be found in
their original form, leaving to the judiciary the task of developing the law in this area.
The resulting dispersion of the rules of contract law in court decisions in a country
such as France, which claims to be in the vanguard of codification, caused French
jurists to raise an eyebrow over the then current state of the law. The constitutional
requirements of greater accessibility and certainty in the law further called for a con-
solidation of otherwise fragmented case law.
By 2000 some updating of the law of contract had already taken place, but only
in the field of evidential requirements where, in respect of information technology,
new means needed to be introduced to establish the contract in writing (Law 2000–
230 of 13 March 2000). Additional provisions relating to contracts made in electronic
form were further introduced in 2004 and 2005 (Law 2004–575 of 21 June 2004 and
Ordonnance of 16 June 2005).
21
212 The Law of Contract
A first attempt to look more generally into the ways of clarifying and modernising
the general law of obligations was carried out by a committee of academics headed
by the late law professor Pierre Catala. The proposals issued by the Catala working
group were presented to the French Minister of Justice in 2005 (on these proposals, see
Cartwright, Vogenauer and Whittaker 2009). The purpose of the proposals was not to
upset the original framework of the law of contract, but rather to fill the gaps left in the
text of the code by its drafters, thereby consolidating the existing case law and making
contract law more consistent with the requirements of the modern market. Some of the
proposals of the Catala project were implemented in a Law of 17 June 2008, but only in
the related field of the law of prescription, not in contract (on the notion of prescrip-
tion, see Chapter 15, Property). A more innovative set of recommendations was issued
in 2009 by the committee led by another law professor, François Terré. Subsequently,
a new draft, partly inspired by both the Catala and the Terré projects, was put forward
by the Ministry of Justice, itself following an extensive period of public consultation.
This ministerial draft formed the basis of the 2016 reform.
However, as will be seen in more detail in the following sections of the chapter, while
the new legislation introduces a fresh equilibrium between the contracting parties, and
enhances accessibility and legal certainty in contract, it does not radically change the
state of the law in this area; nor does it upset dramatically the traditional philosoph-
ical foundations of the law of contract. The reform looks more like a tidying-up oper-
ation, rather than a far-reaching transformation of the law. Therefore, it is questionable
whether the new law, which was also intended to increase France’s attractiveness against
the background of a world market dominated by the common law, will keep its promise.
ON E OF T H E P I L L A R S OF T H E C I V I L C ODE
In his work, Flexible Droit, Carbonnier presents contract as one of the three pillars of
the Civil Code, along with ownership and the family. Indeed, whilst common lawyers
are accustomed to find the principles of the law of contract in cases, French judges,
practitioners, and academics look first at the Civil Code which provides not only the
essential framework of the law of contract but also the particular rules applicable to spe-
cific contracts. The French adopt an approach to contract which is both conceptual—
there is in French law ‘a general theory of contract’—and practical through the detailed
study of the technicalities of specific contracts. The draftsmen of the Civil Code were
the recipients not only of the general theory and principles developed by jurists of
preceding centuries like Domat (1625–96) and Pothier (1699–1772), but also of the
body of Roman law which only addressed a limited number of specific contracts but
was devoid of any conceptual framework. In consequence, they clothed the Civil Code
not only with the general principles governing the law of contract such as the prin-
ciple of autonomy of the will and the principle of good faith (former art. 1134; new
arts 1103–1104), but also gave it rules addressing particular categories of contracts
such as, e.g., the sale of goods (vente) or contracts of agency (mandats) with their own
specificities and qualifications departing from the general law.
213
The Place of the Contract in the French Civil Code 213
Although the mainstream of contract law is now, especially since 2016, to be found
in the Civil Code, large segments of the law governing contractual obligations are still
found elsewhere.
First, alongside the Civil Code there are other codes in which further rules arising out
of contractual relations have been set out. Since 1993 there has been in France a Code
de la Consommation containing the rules governing business–consumer transactions.
There is also a separate Commercial Code providing for special rules for commercial
contracts. In 2000, owing to the obsolescence of the 1807 Napoleonic code, a new com-
mercial code was enacted in replacement. Unlike English law, for instance, where com-
mercial law has been generally treated as a collection of specific contracts with no legal
category for commercial contracts, French law formally separates the rules governing
civil contracts from those concerned with commercial transactions. The defining com-
mercial nature of a contract derives either from an objective test—the characterisation
of the transaction as acte de commerce (Com. Code, arts L110–1 and L110–2)—or a
subjective test—the quality of the parties who are considered as commerçants (Com.
Code, art. L121–1). To strengthen further the formal separation in French law between
civil and commercial contracts, the contractual rights of commerçants are enforced by
special commercial courts.
Secondly, in France as elsewhere, contractual relationships have also been gradually
drawn under the authority and influence of international law. International treaties
such as the UN Convention on Contracts for the International Sale of Goods (Vienna
1980) and the EC Convention on the Law applicable to Contractual Obligations (Rome
1980), to which must be added European norms such as the 1985 and 1993 Council
Directives on liability for defective products and unfair terms in consumer contracts,
have played a major role in the ongoing attempt to unify and harmonise the contract
law of the signatory States of the European Union. The drafting of principles of con-
tract law such as the principles of international commercial contracts finalised by
UNIDROIT in 1994 and the restatement since 1995 of principles of European con-
tract law by the Lando Commission were further aimed at responding to current inter-
national needs and practices, whilst being at the same time a source of inspiration and
a potential model for community or national legislation on contract.
Thirdly, French judges have also played a major role in shaping modern contract
law. Encouraged by scholarly writings, French courts have been able to create a body
of substantive rules aimed at providing a greater degree of balance in contractual
obligations. For example, the introduction at the beginning of the 20th century of
an obligation de sécurité in contracts of carriage is a pure product of court decisions
and, as a matter of law, cannot be excluded by the terms of a contract. Under such
an obligation any carrier impliedly undertakes to carry passengers safe and sound to
their destination (Case of Compagnie Générale Transatlantique (1911)). Obligation
de sécurité has been extended to the doctor–patient relationship and to other spe-
cific contracts where the contracting parties’ health and safety is at risk as a conse-
quence of the performance of the contract (also discussed in Chapter 4 under the
heading ‘Precedents praeter legem’).
214
T H E P R I N C I P L E OF AU TON OM Y OF T H E W I L L
A core principle
At the heart of French contract law lies the central doctrine of autonomie de la
volonté.
Autonomy of the will is the product both of natural law and the 18th century
philosophical assumption that the binding force of a contract can only rest on the
will of the parties. What is striking is the similarity existing between the civil con-
tract and Rousseau’s concept of ‘social contract’. As much as the latter, the former
is rooted in a deliberate act of will—whether individual or general—with its conse-
quent ability to generate rights and obligations. Autonomy of the will is also a con-
cept associated with the idea of justice. When the parties decide for themselves there
cannot, by definition, be injustice since as Rousseau says: ‘No one can be unjust to
himself ’ (Contrat Social, II, 6). French philosopher and sociologist Alfred Fouillée
(1838–1912) expressed this idea in the following famous dictum: ‘Qui dit contractuel
dit juste’.
The Civil Code, enacted in 1804, was influenced by this doctrine of its time—the will
theory—which was enshrined as a core principle in a contract provision in the then
art. 1134, which stated:
Agreements legally formed have the character of law for those who have made them.
This general statement, which means that by entering into a binding contract contracting
parties make law for themselves, has been reiterated in 2016 in new art. 1103. It is actu-
ally taken from Domat’s seminal work Les Loix Civiles dans leur Ordre Naturel (Book I,
Title 1, Section 2, VII) and carries with it a number of important consequences:
(i) Individuals are free to make any kind of agreements that they may wish, sub-
ject to the restrictions provided for by law and by those rules relating to public
policy. Under the theory of autonomy of the will these restrictions should, in all
cases, be kept to a minimum.
(ii) The courts cannot modify the terms of a contract or fill any gaps left by the
parties thereto. Interpreting such a contract, judges cannot substitute their own
will to that of the parties involved.
(iii) Individuals cannot be made to enter a contract against their free will nor can
they be bound by any and all agreements made between others.
(iv) There are no formal requirements for the expression of each party’s will and for
the terms of their final agreement. This is the practical expression of the prin-
ciple of consensualisme which is developed later in this chapter.
The decline of autonomy of the will

Theoretical considerations
From the beginning of the 20th century, the idea of autonomy of the will became
the subject of criticism. Two of the most outspoken and, probably, most influential
215
critics were two French legal scholars of the period prior to the Second World War, J. P.
Niboyet and E. Gounot.
In his 1927 celebrated lectures given at The Hague Academy of International Law,
Niboyet argues that autonomy of the will does not exist. In fact, he suggests, there was
confusion between this concept and the sister concept of ‘freedom of contract’.
Indeed, the term ‘autonomy’ suggests the power to make law. Viewed in this way,
the will of the contracting parties is elevated to the status of proper source of law
which, for Niboyet, is a fallacy since only the sovereign state authority can hold such a
power. According to him, the only correct relevant principle in the area of contractual
obligations is freedom of contract which as with other fundamental freedoms can only
be granted by the authority invested with the power to make the law.
In a famous address at the ‘Semaines sociales de France’, Gounot, espousing the tenets
of catholic social doctrine, also criticised the doctrine of autonomy, this time from a
social justice perspective. Giving all power to parties’ autonomy, he said, contravenes
the basic principles underlying commutative justice in so far as it allows the strongest
party to take advantage of the weakest one. According to him, social justice, to the ex-
tent that it calls for fundamental fairness in all agreements between contracting parties,
must always prevail in contract; and the ‘will of the parties’ can only be the regulator
of the parties’ mutual interests under the authority of the ‘objective’ law, solely capable
of ensuring equal treatment of contracting parties. Thus, ‘the will should serve the law,
and the law not be at the service of the will’.
Echoing Niboyet’s and Gounot’s criticism, it may be said, first, that autonomy of
the will can indeed be seen as a distortion of reality. In practice, it is indeed the legal
system through its courts that will ensure that terms and conditions in contract may
be respected and fulfilled. Secondly, autonomy of the will is utopian. Experience has
shown that parties to a contract are rarely on a par in the balance of negotiations. In
many cases, one party may dictate terms and conditions to the other, e.g. if a person is
desperately searching for a job, or to find a place to live, or to borrow some money to
repay debts, that person will, under pressure, have no choice but to accept the terms and
conditions offered by the employer, the landlord, or the loan company. In fact, looking
at the legislative and judicial history of the contract, one soon realises that the principle
of autonomy of the will runs counter to the practice and the main preoccupation of the
legislature and the courts, which have both acted over time, within their jurisdiction, to
restore the balance between the unequal bargaining powers of the parties, a trend fur-
ther accentuated by the 2016 reform. Finally, the doctrine of autonomy of the will might
be undesirable as it may lead to unjust results in so far as any declaration of will unlim-
ited by any reservation is capable of hiding some mistake, misunderstanding, or mis-
representation generated at the time of the formation of the contract. However, when it
comes to the actual performance of the contract, since the 2016 reform, the application
of the autonomy principle no longer prevents amendments and alterations to the con-
tract when supervening events that were not in the anticipation of the parties might
otherwise cause the ruin of one of them if the contract were to be strictly upheld (see
what is said below about the doctrine of imprévision under ‘The Effects of the Contract’).
216
State intervention and consumer protection

The above criticisms, coupled with the arrival of politically inspired state intervention in
various areas such as health, employment, and land use, together with the rise of corporate
interests, account for the fact that in the past century and, more particularly the past forty
years, there has been a decline of freedom of choice in contract. This state of affairs is not
particular to the French legal system. In England, Professor Atiyah, in a major work The
Rise and Fall of Freedom of Contract (1979), studied the legal and intellectual backgrounds
leading to the decline of free choice and consent. In France, individual freedom has, as
described in Atiyah’s work, also been overridden in a variety of ways ranging from the
extensive use of standardised written contracts to the existence of compulsory contracts
in various contexts. Moreover, today, the rights and duties of the parties to a contract are
in large part the product of the law, whether statute law or case law. The 1804 Civil Code
already provided for minimum restrictions to freedom of choice: public policy (art. 6),
immorality (arts 6 and 1131), choses hors commerce such as trade in human organs and
illegal substances (art. 1128) and the restrictive use of lésion, a remedy provided in cer-
tain contexts when there is a disparity between the undertakings of contracting parties.
In recent times, the most significant restriction to the principle of autonomy of the will
was the introduction in the late 1970s of the first legislative framework for consumer pro-
tection. The developing idea of social justice accounts for the fact that, like the UK Unfair
Contract Terms Act 1977, legislation on consumer protection was introduced in France
in 1978. The 78–23 Scrivener Law of 10 January 1978 on protection and information of
consumers of goods and services states in art. 35 (now art. L 212–1 of the Code de la
Consommation) that the government has the right to determine, by way of decrees, clauses
which, in a contract between a businessman and a consumer or a non-businessman, are
to be considered as unfair terms-in French, clauses abusives. A special Commission has
been set up to this effect with a view to investigating whether the standard clauses inserted
in determined categories of contract are unfair and to recommend to relevant ministries
whether these should in future be scrapped. Thus, it has been decided that any term in a
contract for the sale of goods should be deemed to be void if the term tended to restrict or
suppress the right of a consumer to claim damages against a professional supplier of any
good or service who does not fulfil the contractual obligation to which it is bound. Since
1991 (Cass. Civ. 1, 14 May 1991, Lorthioir, Minit Foto v Baucheron, D. 1991, 449) judges
are even allowed to strike down a clause they believe to be abusive even in the absence of
governmental intervention. Article 1171 of the Civil Code, which results from the 2016
reform, further strengthens the protection of parties to a contract by introducing a general
test of ‘significant imbalance’ in the rights and obligations of the parties to a standard form
contract, alongside the already existing rules in consumer and commercial law. Such a sig-
nificant change, brought about by the 2016 ordonnance, further undermines the doctrine
of autonomy of the will.
Role played by judges

There is further a growing recognition by the law of the role played by judges in con-
tract, especially where private autonomy has been abused by parties with greater
bargaining power. The 2016 legislation reinforces the role of French judges who are
217
now empowered, inter alia, to modify contract terms or terminate the contract for
reason of unforeseen circumstances ‘which render performance excessively onerous
for a party who had not accepted the risk of such a change’ (new art. 1195 of the Civil
Code). The new test of significant imbalance introduced in art. 1171 (see above) will
further promote judicial intervention in contract law. Another classical example where
authority has been granted for judge intervention in the contractual sphere is now to
be found in art. 1231-5 (former art. 1152) of the Civil Code which allows judges to
alter the content of penalty clauses whereby parties have agreed in advance payment
of a sum of money by the party in breach of particular terms or conditions. It follows
that judges have the power to moderate or increase penalties which had been previ-
ously agreed if they are held to be disproportionately high and they are allowed to act
independently in this respect without being asked by the parties.
The will theory and fundamental freedoms

To complete this overview of the decline of the theory of autonomy of the will in con-
tract, it is interesting to note that, despite the tendency in the last decades to ascribe
constitutional status to many aspects of private law, the Conseil Constitutionnel has
long been reluctant to attribute such a status to the principle of freedom of contract
(Conseil Constitutionel Decision 94–348 DC of 3 August 1994 on the law relating to
social protection in the context of employment); perhaps in order not to restrict the
margin of appreciation granted to the legislator when introducing exceptions to this
principle. However, since 2000, the Conseil has moved towards a gradual recogni-
tion of this principle using the broad concept of freedom laid down in art. 4 of the
Declaration of the Rights of Man and the Citizen. Thus, in its latest 2013 decision on
the subject, the Conseil says:
It is permissible for the legislator to impose limitations, based on constitutional
requirements or justified by the general interest, to freedom of enterprise and freedom of
contract arising from Article 4 of the 1789 Declaration provided that it does not result in
disproportionate violations of the principle with regard to the objective pursued. (Decision
2013-672 DC, 13 June 2013)
In respect of other fundamental rights, again freedom of contract has not been given
precedence when conflicting with such rights. An example is the 1995 Conseil d’État
Decision Commune de Morsang-sur-Orge (Rec. Lebon, 372) concerning the controver-
sial ‘showground attraction’ of the ‘bouncing dwarves’. In this case, in which persons of
restricted growth agreed to be thrown around in a form of entertainment, judges ruled
that it was within the mayor’s authority to forbid within the geographical limits of the
municipality such an activity as infringing upon the fundamental right to human dig-
nity of these individuals, even though the participants had consented to take part in
such a spectacle. Therefore, it would appear that a significant aspect of this decision is
that fundamental freedoms are not to be waived in the name of freedom of contract.
It is worth mentioning here that the Canadian Supreme Court, in the case of Syndicat
Northcrest v Amsellem [2004] 2 RCS 551, had to decide a similar issue of conflict be-
tween freedom of contract and basic individual rights in the context of freedom of
religion. In this case, to comply with the requirement of Mosaic Law, orthodox Jews
218
wished to put a succah-booth on their balcony for seven days of the Jewish festival.
However, the co-ownership property agreement to which they were subject forbade
the construction of any structures on balconies or terraces. In order to resolve the
issue, the Supreme Court held that freedom of religion was to be considered above
their right to have contracted freely in the co-ownership agreement and, thus, they
were permitted to override the agreement in this respect.
The residual power of autonomy of the will

Despite the limiting of the scope of the doctrine of autonomy in French law, it never-
theless still retains its vitality in two respects:
(i) It remains a central feature of French contract law that the parties to a con-
tract may decide to tailor their own contract even when this contract does not
fall within a category provided for by the Civil Code. Hence the distinction
made in French law between contrats nommés (nominated in the Civil Code)
and contrats innommés (not nominated in the Civil Code). As such, contrats
innommés apply to an infinite range of possible agreements from subscriptions
to journals to the so-called contrats de wagon-lits (couchettes-sleepers) to in-
clude cloakroom contracts (contrats de vestiaire) and car park agreements.
(ii) The parties to a contract are also free in principle to decide the terms and
conditions of their contract provided they do not violate what is known in
French law as loi impérative. In this respect, French law distinguishes between
lois impératives which are mandatory and, thus, cannot be altered by pri-
vate agreement between the parties, and lois supplétives which may be expli-
citly excluded and are merely intended to fill gaps left by the parties when not
excluded by them (here the law makes up—or ‘supplée’—for the silence of the
contracting parties). An example of loi supplétive is art. 1651 of the Civil Code
which states that in a sale of goods the buyer pays the contracted price at the
time when the items are delivered. Here the parties are at liberty to decide that
the price will be paid at an earlier or later stage than provided for in art. 1651. But
if they say nothing art. 1651 will apply. The main difficulty associated with this dis-
tinction between loi impérative and loi supplétive is that the Civil Code does not al-
ways specify which rule is impérative and which one is merely supplétive, although
it is well established in the practice of the courts that the former, as opposed to the
latter, are generally concerned with issues of public policy. Consistent with the
doctrine of autonomy of the will, lois supplétives tended to be more numerous than
lois impératives in the original Civil Code. However, nowadays the tendency has
been reversed not only, as already mentioned, in the field of consumer protection,
but also in specific areas such as tenancy agreements, insurance, employment,
and agricultural leases (see also the new arts 1104, 1112-1, 1170, 1171, 1231-5 and
1343-5 introduced by the 2016 legislation, which are all lois impératives).
Although there is no similar formal equivalent distinction between rules governing
contract in English law, a similar construction can be achieved with the doctrine of
implied terms. Thus, according to Nicholas (1992: 33):
219
In English law there is no such express distinction but we arrive at much the same result
by another route. We start from the principle that rules of law cannot be excluded, but we
express what are in substance lois supplétives, not in the language of rules, but of implied
terms. They are therefore necessarily capable of being excluded (expressum facit cessare
tacitum).
To conclude on autonomy of the will, the fact of the declining power of this principle
does not of itself foretell a decline in use of the technique of contract. On the contrary,
contract has increasingly become a means to regulate socio-economic relationships,
as can be seen in France in the area of employment law with the growing import-
ance of conventions collectives, a collective agreement made between trade unions and
employers in particular sectors. Also, to be seen in matrimonial law, spouse and co-
habitant obligations are increasingly regulated by private agreements, one modern
recent illustration of this trend being PACS legislation (the French civil registered part-
nership law). Further, with the advent of new technologies, the scope of contract law
has been extended by the advent of new categories of agreements such as trading on
the Internet.
C AT E G OR I E S OF C ON T R AC T S
The need for classification
One important aspect of the French conceptual approach to contract is particularly
reflected in the preliminary provisions in that part of the Civil Code relating to con-
tract which specify a number of classifications of contracts. The 2016 reform offers a
new categorisation of contracts, mostly based on the previous classification with new
entries which arose in the past from Roman law, case law and doctrinal writing (see
Box 13.1).
The need to distinguish between different types of contract is not merely a reflec-
tion of the French legal penchant for categorisation. It also has, as discussed further
below, some practical implications. However, classification of this kind may sound
artificial, especially to a common lawyer’s way of thinking. Further, since categories
of contracts often overlap, one may question why it is felt necessary to distinguish
between different classes of contracts. One striking illustration is provided by one of
the most common contracts, the sale of goods, which finds a niche in all categories
as a contrat synallagmatique, à titre onéreux, commutatif, nommé, and on most
occasions, consensuel, instantanné and de gré à gré. Further, it should be noted that
since all classes of contracts are subjected in the same way to the essential principles
governing the law of contract under art. 1105 of the Civil Code, the specific rules
generated by each class of contract should not generally make a difference on their
binding effect.
However, the need to categorise is often the result of distinctions drawn by the
law itself. For example, within the summa divisio originally rooted in Roman law be-
tween real, consensual, and formal contracts, the particular details of these types of
contract impinge on the formation of the contract itself. Thus, real contracts such as
loans and deposits come into existence only when the thing, object of the contract,
20
Box 13.1 CLASSIFICATIONS OF CONTRACTS

1. Contrat nommé (i)/Contrat innommé (ii)—arising from the wording of art.
1105 Civil Code
Contracts named and regulated by the Civil Code (i) (e.g. sale of goods, lease,
agency)/no specific regulation in the Civil Code (ii) (e.g. parking, subscription).
2. Contrat synallagmatique (i)/Contrat unilatéral (ii)—art. 1106 Civil Code
Mutual rights and obligations (i) (e.g. sale of goods)/obligation for one party
only (ii) (e.g. donation).
3. Contrat à titre onéreux (i)/Contrat à titre gratuit (ii)—art. 1107 Civil Code
Both parties confer a benefit to each other (i) (e.g. sale of goods)/only one party
confers a benefit to the other (ii) (e.g. donation).
4. Contrat commutatif (i)/Contrat aléatoire (ii)—art. 1108 Civil Code
The extent of both parties’ obligations is known at the time of the contract (i) (e.g.
sale of goods)/the extent of at least one party’s obligation depends on a future un-
certain event (ii) (e.g. sale en viager, a sale of property whose part of the price
consists of the payment of a life annuity to the vendor).
5. Contrat consensuel (i)/Contrat réel (ii)/Contrat solennel (iii)—art. 1109
Civil Code
Contract is formed by the sole exchange of consent (i) (e.g. sale of goods)/
contract is formed only when the promised thing is delivered (ii) (e.g. loan of
money)/contract whose existence is dependent on particular forms (iii) (e.g.
mortgage, donation of immovable property).
6. Contrat d’adhésion (i)/Contrat de gré à gré (ii)—art. 1110 Civil Code
The terms of the contract are not negotiated (i) (e.g. transport)/the terms of the
contract are freely discussed (all other contracts) (ii).
7. Contrat cadre—art. 1111 Civil Code
The contracting parties agree in advance on the general terms of their future
conventions.
8. Contrat à exécution instantanée (i)/Contrat à exécution successive (ii)—art.
1111-1 Civil Code
Parties’ obligations are performed instantaneously (i) (e.g. sale of goods)/parties’
obligations are spread out over time (ii) (e.g. lease, employment).
has been delivered to the borrower. Also, in relation to evidentiary requirements

and availability of remedies, synallagmatic and unilateral contracts are not subject
to the same rules. Thus, e.g., under art. 1375 of the Civil Code ‘instruments under
private signature which contain synallagmatic agreements are valid only in so far
21
as they have been made in as many originals as there are parties having a distinct
interest’.
In England, Lord Diplock once borrowed from French legal conceptualism when he
decided to use the expressions ‘unilateral’ and ‘synallagmatic’—also found in the French
Civil Code—to justify his judgment in the Court of Appeal in United Dominions Trust
Ltd v Eagle Aircraft Services Ltd [1968] 1 WLR 74, a case concerning a promise by an
aircraft-owning company (Eagle) to repurchase an aircraft under a recourse agreement
with a finance company (United Dominions Trust (UDT)) in respect of a hire-purchase
sale to a third party. The issue turned on the interpretation of a ‘condition precedent’
that, on termination of the hire-purchase agreement, UDT would call on Eagle to re-
purchase. Lord Diplock used the distinction between unilateral and synallagmatic
contracts to justify the fact that, only upon the occurrence of the event specified in the
contract and the subsequent communication of this fact to Eagle, was Eagle bound to
fulfil its obligation under the original agreement which, for the purpose, was held to be
a unilateral contract becoming synallagmatic only upon the informed occurrence of
the specific event. It was held by the Court of Appeal that, since the call to repurchase
was not given within a reasonable time, the condition governing repurchase had not
been fulfilled and the obligation on Eagle to repurchase could not be enforced. Lord
Diplock’s approach did not find favour in all quarters. Professor Atiyah, who referred
to the judgment as a ‘conceptual mumbo-jumbo’ (Atiyah 1968), favoured a straight
common law approach to the issue at hand. Thus, instead of justifying the decision by
having recourse to conceptual French analysis, in his view, the court should have asked
under such a common law approach whether it was fair, just or reasonable to treat
Eagle’s obligation to repurchase as conditional on UDT calling (within a reasonable
time) on Eagle to repurchase.
The predominance of contrats consensuels

The classification in Box 13.1 which best reflects the spirit of French contract law is the
one made between contrats consensuels and contrats solennels.
The general rule in French law is that all contracts are consensuels, that is to say
that no written form is required for a contract to be binding—solus consensus obligat.
Thus, a contract may arise from a mere exchange of words. On this point, French law
is different to Roman law where the nudum pactum, the ‘naked contract’, devoid of
any forms, was not binding despite some eventual relaxation of formal requirements
and the introduction of consensual contracts at the time of Rome’s economic expan-
sion. These consensual contracts were sale (emptio venditio), hire (locatio conductio),
partnership (societas) and agency (mandatum). However, as just said, in early Roman
law, no obligation could arise from an informal agreement between the parties. The
rule then was: ex nudo pacto actio non nascitur. The typical contract was the stipulatio
which required the formal declaration of a specific sequence of words by both parties.
Although the consensualism principle is commonly associated with the doctrine of
autonomy of the will, its original development in the French tradition is rooted back in
the Christian moral precept of respect de la parole donnée, taken from the maxim pacta
2
sunt servanda (agreements are to be kept). Under the increasing influence of Christian
theologians, from the period of the Middle Ages onwards, the governing rule became,
contrary to Roman law, nudo pacto actio nascitur. The consensualism principle, now
established, was espoused by the jurisconsults of the 16th, 17th and 18th centuries—
Dumoulin, Loysel, Domat, and Pothier.
Underlying the consensualism principle is the idea that it would be morally wrong
for someone to escape a contractual obligation by simply relying on an absence of a
particular formality. However, it seems difficult to take a position against those who, in
opposing consensualism, make the case that putting words on to paper allows parties
to a contract to be more aware of the seriousness of their undertaking. The requirement
of certain forms is thus more consistent with certainty and predictability in contract.
This advantage attaching to form may be held to account for the fact that, even in the
original code of 1804, consensualism is made subject to some significant exceptions.
The Civil Code expressly specifies that in certain cases a written document is necessary
to give a contract binding force. In those cases, failure to document in writing has the
effect of making the contract void. Thus, gifts inter vivos (donation, art. 931 Civil Code),
contracts regulating ownership of assets of prospective spouses (contrat de mariage, art.
1394 Civil Code), mortgage (hypothèque conventionnelle, art. 2416 Civil Code) and debt
assignement (cession de créance, art. 1322) are all contrats solennels.
More generally, recent decades have seen what has been called the ‘rebirth of for-
malism’ in French civil law; formalism here meaning the requirement for particular
forms in contract. French laws nowadays increasingly require the drafting of a contract
as a necessary condition for a contract to be binding (see, e.g., Code de la Construction,
art. L 261–11 on the sale of immovable property and Code de la Consommation, art. L
312-18 on the protection of those who borrow on credit).
Although not directly related to the rise of formalism, evidential requirements in
contract, to which the Civil Code devotes a series of fairly detailed provisions, have
also weakened contractual consensualism. Thus, subject to certain limitations and
exceptions, for all sums in excess of 1,500 euros (see Decree 2016-1218 of 29 September
2016, art. 1), art. 1359 of the Civil Code requires proof of contract by an instrument be-
fore a notaire or by a signed and dated document by the parties themselves. Here, des-
pite the fact that a document in writing is not required ad validitatem (for a contract
to be valid), the proof of its existence, in the event of there being a dispute, plays to a
need to put the detail of the agreement into writing. Failure to adhere to such eviden-
tial requirements would not, however, in principle, make such a contract void. Rather,
it might make it impossible to enforce.
F OR M AT ION OF C ON T R AC T
When does a French contract come into existence? To answer this question, the Civil
Code, in its new art. 1128 (resulting from the 2016 reform) defines the conditions ne-
cessary to make an agreement binding:
23
Formation of Contract 223
Are essential for the validity of an agreement:

(i) The consent of the parties;
(ii) Their capacity to contract;
(iii) A content which is both lawful and certain.
Prior to 2016, former art. 1108 provided in place of (iii) for a ‘definite object which
forms the subject matter of the contract; and a lawful cause for each party’s obliga-
tion’. Thus, since 2016, at least on the face of it, the sister concepts of objet and cause
have disappeared from the list of requirements for the validity of a contract (see fur-
ther discussion below).
The following text considers each of the above conditions in turn, with the ex-
ception of capacity. Indeed, the rule that both parties must be regarded as having
capacity to contract for a contract to be valid is not, in French law, an issue
which causes frequent problems and the rules are not too dissimilar from other
jurisdictions.
But, first, the absence of any requirement for consideration in French contract law
needs to be addressed, especially in view of its significance in common law. Comparison
between English and French law seems relevant here.
A B SE N C E OF R E QU I R E M E N T OF C ON SI DE R AT ION
Gratuitous contracts in French law
One fundamental difference between English and French law is the absence, in the
latter, of the requirement for consideration. However, it will be seen later in this
chapter, that many situations—formerly covered by the concept of cause—are now
included under the rubric of ‘content’ (new arts 1162 et seq.), which would other-
wise be held to fall within the ambit of consideration. Despite some outward simi-
larity between these situations and consideration, French law still recognises the
existence of so-called ‘gratuitous contracts’, contrats à titre gratuit, motivated by
benevolent reasons (intention libérale). In this type of contract one party confers a
benefit on the other party without the intention of obtaining a reciprocal benefit for
himself. In this respect, contrats à titre gratuit are also ‘unilateral contracts’ within
the French law meaning of contracts where only one party is obligated towards the
other to do or to give something of value. As already mentioned, donation (a gift
inter vivos) is one typical example of this type of contract. Here, only one party, the
donor, is obligated to give something of value to a beneficiary with no intention of
obtaining a reciprocal advantage. By accepting the gift, the beneficiary makes the
agreement a binding contract. The characterisation of donation as contract is often
presented by comparative lawyers as what lies at the very heart of what distinguishes
the French and English law of contract: in French law, a gift may be legally enforce-
able and the actual exchange that characterises consideration is not a necessary
condition of a French contract.
24
It may be questioned, however, whether the use of the notion of gratuitous contracts
to justify what distinguishes the French and English law of contract from each other
has not been overstated. Two points may be noted here:
(i) Under the doctrine of promissory estoppel, there can in effect be a promise for
which there is no consideration. Despite the fact that estoppel reduces the need for
consideration, only in relation to the variation or discharge of a contractual obliga-
tion, not in relation to the creation of such an obligation, and is further subject to a
number of limitations, it cannot be denied that it considerably affects the character-
isation of consideration as a core indispensable element of a common law contract.
(ii) Consideration need not be adequate. The fact that the courts will not gener-
ally inquire into the adequacy of consideration means effectively that a nominal
consideration could be used to make a seemingly gratuitous promise binding,
thereby bridging the gap between English and French law in this respect. Such
a possibility of nominal consideration was the main reason for justifying the
omission of the doctrine of consideration in English contract law by Dr Harvey
McGregor when he was asked to draft a code of contract for the Law Commission
in the 1970s. In the presentation of his draft Code, published in Milan in 1993
by the Academy of European Private Lawyers, Dr McGregor argued in favour of
the abolition of the doctrine of consideration:
The doctrine of consideration never succeeded in drawing a clear distinction be-
tween agreements which were bargains and agreements which were gratuitous. From
the moment that it was accepted that consideration need not be adequate, all chance
of carving out a satisfactory division along these lines disappeared . . . It therefore
cannot truthfully be said that the doctrine acts in any real sense as a sieve through
which only bargains can pass.
Commutative justice in French contract law

The fact that consideration need not be adequate does not affect, as McGregor
acknowledges, its function ‘to protect the party who has made a good bargain and to
hold to his promises the person who has made a bad one’. Here, the very assertion that
one of the parties can secure a ‘good bargain’ to the detriment of the other party does
not sit very well with the French idea of what a contract is or may be. Although au-
tonomy of the will and legal certainty both preclude a French contract being set aside
on the grounds that one party did not receive an equivalent for what he/she gave (art.
1168 Civil Code), commutative justice still widely pervades the French approach to
contractual obligation. Indeed, it is this principle of commutative justice that underlies
rulings of the courts aimed at re-establishing a balance between each party’s under-
taking, either when striking down unfair terms, or when annulling contracts vitiated
by defective consent and absence of contrapartie (the latter now mentioned in new
art. 1169 Civil Code). Underlying the French theory of contract still lies a memory of
Christian abhorrence for usurious agreements.
25
Intent to enter into a legal relationship

The consequence of the absence of the doctrine of consideration does not mean, how-
ever, that in French law, under art. 1128 of the Civil Code, all promises are regarded
as legally binding. Even when the purpose pursued by the parties is purely gratuitous
their common intention must still be, as with English law, to give legal effect to what
they have agreed. Intent to enter legal relations is as important in French law as it is in
Anglo-American law. However, this added requirement is more difficult to establish in
a system such as that in France which neither requires formalities nor consideration
for a contract to be binding. Indeed, formal requirements, when they are compulsory,
are a good indication of an intention to enter a legal relationship and consideration,
even nominal, may be held to have the power to reassure the courts that legal enforce-
ability was intended.
Intention to create a legal relationship in contract has been tested in French law in
two main areas: (i) when distinguishing an offer from an invitation to treat and (ii) in
respect of moral duties not held to amount to an actionable obligation. Whilst the first
category is dealt with further on in this chapter (see ‘Offer and acceptance’), the second
one is briefly described here.
The general rule in French contract law is that mere moral duties or an offer of gra-
tuitous services, whatever the context, do not give rise to civil law obligations unless
they can be classified as obligations naturelles, e.g. paying without obligation a debt
which is no longer enforceable (money paid in such circumstances cannot, under the
doctrine of obligation naturelle, be the object of a claim for restitution).
The Paris Court of Appeal decision in Belhomme v Parti Socialiste et autres (1994),
RTDC 1995(2), 351 is a good illustration of French judges’ reluctance to give legal
effect to mere promises, in this case in the particular context of the political arena.
Following the death of his son in a road traffic accident, the plaintiff made contact
with François Mitterrand, at that time a Member of Parliament and the head of the
Socialist Party, to express his concerns about the police investigation into the death
of his son, which had not found any material conclusion. The future President of the
Republic made a certain number of promises at that time which encouraged the plain-
tiff to become a member of the Socialist Party and to provide substantial funds for
the presidential election campaign. However, following 10 May 1981, at which date
François Mitterrand was elected President of the Republic, the plaintiff did not hear
from him anymore. He then decided to sue the Socialist Party for damages for the
non-adherence to what he considered to be its contractual promise. The Court of
Appeal decided that promises of this nature did not constitute an obligation under
civil law and so could not give rise to any contractual liability. Consistent with the
general French judicial style, the court was not very explicit regarding the reasons for
justifying its decision. However, deducing from the facts, it may be surmised that it
was not plausible, from the defendant’s conduct, that there was an intention to enter a
legal relationship. Indeed, the defendant had no authority over the process of judicial
enquiry at issue and his promise to help was vague and indefinite. In other words, and
26
this would seem consistent with the English approach, the plaintiff could not rely on
an expectation that, in lieu of all his time, money, and efforts expended, the promised
actions on the defendant’s behalf were reasonably likely to take place.
T H E NAT U R E OF C ON SE N T
General considerations
At the heart of a valid contract in French law lies the notion of consent. Generally,
consent means an agreement to do something. This understanding of what consent
means does not differ much from its legal interpretation in the context of contract in
so far as there is necessarily between contractual parties a concurrence of two or more
individual agreements. The Civil Code emphasises the notion of agreement in new art.
1101 which provides a definition for contract:
A contract is an agreement between two or several persons to create, modify, transfer, or
extinguish obligations.
According to this definition, when contracting parties give their consent, they are
indeed committing themselves towards each other. The ‘binding’ function of consent
accounts for the fact that French courts focus more than their English counterparts on
whether consent does exist and has been given ‘freely’ by the parties, with a view to
determining whether the parties are bound. However, art. 1101 is of little help when it
comes to specifying how parties’ agreements should actually be determined. Is it simply
a question of looking at what the parties have said or done or, more problematically, of
discovering their actual state of mind at the time when they gave their assent? Further,
should the judge take into account the declaring party’s personal understanding of the
situation or rather the meaning that normally attaches to his declaration or his action
in the given circumstances? And what should be decided where there is a discrepancy
between unexpressed and declared intention? All these questions have received much
attention in a number of legal systems, leading sometimes to intellectual battles be-
tween those in favour and those against ‘objective’ or ‘subjective’ approaches to consent.
One striking illustration is Germany where in the late 19th century, at the time of the
drafting of the German Civil Code (BGB), a controversy arose between the advocates
of the ‘real intention’ will theory (Willenstheorie) and those of the ‘declared intention’
theory (Erklärungstheorie). The BGB still reflects to this day the tension between these
two approaches. In English law, the objective theory seems to have prevailed, although
the concept of objectivity has given rise to much debate, which has led to the courts
adopting a variety of tests depending on the particular circumstances of the case at
hand. French law has long favoured the subjective approach as particularly reflected in
former art. 1156 (now art. 1188) on interpretation of contracts, which states:
One must, in contracts, seek what the common intention of the contracting parties was,
rather than pay attention to the literal meaning of the terms.
However, in 2016, a new paragraph was added to art. 1188:

27
If this common intention cannot be identified, then one must rely on the meaning a rea-
sonable person placed under the same circumstances would give to the contract.
It seems therefore that, from now on, both subjective and objective tests coexist in
French law. It remains to be seen whether commitment by the courts to the subjective
view will remain strong in the future despite this change. However, even prior to 2016,
when it came to ascertaining the ‘common intention of the parties’ under former art.
1156, their conduct and expressed intentions at the time of the contract often served
as the basis for inducing their real intention since what is unexpressed is impossible to
gauge for sure.
More generally, in practice, the way intention is dealt with depends much on
how contractual obligations are perceived in given legal systems. In common law
systems such as England, where the idea of exchange is, through the concept of
consideration, central to the law of contract, it is not surprising to find that lawyers
have opted for an objective approach to intent. Such an approach further favours
reliance and certainty, two key requirements in English contract law. By contrast,
French law is more interested in achieving a kind of ‘contractual justice’ under-
stood in a moral sense and this can only be achieved through examining the minds
of the parties with the view to ascertaining whether or not they have broken their
promise.
This difference of approach between the two systems is examined further in the
following sub-headings.
Promise v Bargain
Although the equation of consideration and bargain has not gone unchallenged in the
history of English contract law, traditional common law scholarly works on contract
recognise the importance of bargain in English contract law. An example of this is
found in Cheshire, Fifoot and Furmston’s Law of Contract, which states:
The common law has long stressed the commercial flavour of its contract. An Englishman
is liable, not because he has made a promise, but because he has made a bargain. (Furmston
2001: 32)
By contrast, French law, under the influence of Pothier (Treatise on Obligations, Part 1),
applies a less mercantilist and more idealised approach to a contract as being ‘a con-
currence of intentions between two parties, one of whom promises something to the
other, who on his part accepts such promise’. A combined reading of new arts 1101 and
1113 of the Civil Code show that Pothier’s definition is still relevant today.
The foregoing does not imply however that English law devalues the basic concept
of consent or that French law is not concerned with bargain. Indeed, the standpoint
of both legal systems remains that all contracting parties are bound because they have
agreed to be bound and that, in order for there to be a valid agreement to contract,
there must be an offer and a concordant acceptance for such an agreement to be prop-
erly formed. From the bargain side perspective, in France as elsewhere, the impact
of socio-economic theory in the legal context and the development of consumer and
28
competition laws have in modern times reframed the notion of contract into a con-
cept which nowadays fits as much the marketplace as the narrower world of individual
relationships.
What, in its essence, makes a French contrat different from an English one is the
definition attributed to the word ‘agreement’ (‘accord de volontés’ in new art. 1101 Civil
Code). As already noted above, in English contract law, an agreement is not viewed,
as in France, as a mental state; it is rather viewed as an act and, as such, a matter of in-
ference from conduct. Thus, to check whether or not in France the contracting parties
were bound at the time of the contract, the question to ask would be, ‘what was in your
mind when you gave your assent?’ (inner test of intention), rather that checking in the
first instance, as in England, what the parties actually said or wrote in the contract, or
what can be reasonably deduced from their conduct (outer test of intention). Again, in
the words of Cheshire, Fifoot and Furmston’s Law of Contract:
The parties are to be judged, not by what is in their minds, but what they have said or
written or done. While such must be, in some degree, the standpoint of every legal
system, the common law, preoccupied with bargain, lays particular emphasis upon ex-
ternal appearance. The function of an English judge is not to seek and satisfy some elusive
mental element but to ensure, as far as practical experience permits, that the reasonable
expectations of honest men are not disappointed. (Furmston 2001: 32)
Across the Atlantic, American theorists and judges have devoted lengthy studies to
the objective and subjective theories of assent in contract and have been hesitant as to
which theory to support or criticise. However, American law still reflects the common
law objective standard with emphasis being placed on the ideas of ‘bargain’, ‘exchange’,
and ‘consideration’. Thus, in Restatement (Second) of Contracts, § 17(1):
Except as stated in subsection (2), the formation of a contract requires a bargain in which
there is a manifestation of mutual assent to the exchange and a consideration.
Contractual certainty v Contractual justice—the principle of good faith

A recurrent theme in the development of English contract law is the importance attached
to certainty. Since contract law is seen primarily as a law relating to businessmen it has
been seen as crucial that parties to a contract can rely on some continuity in legal
thinking without judges being too concerned about the individual’s need for justice
in their transaction. Certainty is afforded more protection when people can rely on
objective standards, which means a strict adherence to the stipulations of the contract
deemed to reflect the intentions of the parties at the time of their dealings. In this re-
gard, the French view on contractual justice seems inimical to certainty since most of
the time when checking the state of minds of the parties the court has to second guess
what the parties intended which, in a sense, threatens the security of all transactions.
In France, emphasis is placed instead on the notion of good faith, a principle
which is present throughout the law of contract as being the most likely to pro-
mote justice in contractual relations. In this respect, new art. 1104 of the Civil Code
lays down the rule that contracts must be negotiated, concluded and performed in
29
good faith by the parties. Before 2016, this principle had already been extended by
judges to pre-contractual negotiations. With the reform, good faith has become in
the Civil Code an all-pervasive principle of contract law. As a consequence, liability
may arise from breaking off negotiations if done in bad faith (see further new art.
1112 Civil Code). Also, under new art. 1112-1, during pre-contractual negotiations,
a party who is aware of an information which is critical enough to determine the
other party to enter the contract must inform him/her as long he/she is legitimately
unaware of such information or relies on his/her contracting party (on the duty to
inform, see further below under ‘Dol’). During the performance of a contract the
duty of good faith can take many forms, ranging from an obligation to inform to
a so-called duty to ‘co-operate’. Co-operation is particularly relevant in contracts
involving more than two parties (contrat conjonctif) such as, e.g., contracts of con-
struction. It has also been applied in the context of contracts of employment where it
was decided that employers have a duty to ensure that their employees are given lati-
tude which may assist in the development of their career (see Cass. soc., 25 February
1992, D. 1992, 390). More generally, under the principle of good faith, individual
parties to a contract may be prevented from insisting on the application of the strict
terms of the contract in their favour when adherence to this may result in what can
be construed as unfair treatment to the other party. There is sufficient case law in
the area of tenancy where the courts have constantly refused to enforce so-called
clause résolutoire, whereby a contract with a tenant can be automatically terminated
by landlords under certain circumstances, to the advantage of landlords acting in
bad faith. (For example, in Cass. Civ. 3, 6 June 1984, Bull. civ., 111, a clause résolutoire
was invoked by a landlord in the absence of his tenant who was on holiday. It was
decided that the landlord, in taking advantage of the absence of his tenant in this
case, was acting in bad faith.)
Whilst good faith as a principle has been adopted by other common law systems
such as the United States, in particular in the Uniform Commercial Code, para. 1–
203, in English contract law there is no such general requirement, despite positive
developments towards the recognition of such a principle in case law (see the case of
Yam Seng Pte Ltd v International Trade Corp Ltd [2013] EWHC 111, QB). The question
of whether such a principle should be introduced into English law was revived in
the context of legislative harmonisation in Europe. The UNIDROIT Principles of
International Commercial Contracts (art. 1.7) and the Principles of European Contract
Law (art. 1.106) both regard good faith as a core principle. However, there was, and still
is, a concern that the introduction of a general good faith doctrine in England would
necessitate fundamental changes in the ‘existing pattern of legal rules and outcome’ and
thereby lead to a ‘destabilisation of the underlying socio-economic arrangements which
those rules support’ (Teubner 1988; Stapleton 1999). It may also be suggested that the
hostility and reluctance of a number of English lawyers to adopt such a principle lies in
the fact that there is no one clear definition of what good faith might be; such a lack of
definition can only have the effect of threatening the security of transactions. However,
it would be wrong to assert from the absence of such a requirement of good faith that
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fairness is absent from the English contractual legal sphere. Doctrines such as undue
influence and unconscionability, albeit used with restraint and in a piecemeal fashion,
have nevertheless been recognised in favour of vulnerable parties as grounds for relief
against enforcement. More generally, foreign non-common law jurists commonly ac-
knowledge that procedural fairness and honesty are inherent features of English con-
tract law which partly accounts for the popularity of the UK legal system in the process
of forum shopping as the law of choice by parties to agreements.
VA L I DI T Y OF C ON SE N T
Not only must consent exist, it must also be valid. In French law, consent is valid when:
(i) There is a meeting of an offer and an acceptance which puts the parties’
agreement in concrete form.
(ii) The agreement reached is freely made. This raises the question of defects of con-
sent (vices du consentement).
Offer and acceptance

One of the most significant improvements brought about in 2016 was the codification
of the case law related to pre-contractual negotiations and to offer and acceptance.
These issues were indeed previously determined by case law. Prior to 2016, the French
Civil Code, unlike other foreign codes, did not deal with pre-contractual negotiations,
and said nothing about the point at which an offer is capable of being converted into a
binding contract on having been accepted by the other party. It had therefore been left
to the courts to develop the law in this area.
Issues related to offer and acceptance turn mainly on the expression of the parties’
intention. Because, as already discussed, intention can be expressed in various ways, it
has not always been easy to determine when the contracting parties are actually bound.
In this respect three specific questions have given rise to difficulty:
(i) Where is the line to be drawn between an invitation to treat and an actual offer?
(ii) What is the point in time at which the acceptance meets the offer?
(iii) Can silence constitute acceptance?
Each of these questions is considered in turn, taking into account the new provisions
of the Civil Code.
Offer or invitation to treat?

The contracting process may take sometimes before the parties finally reach an
agreement. To take a basic example, Mr and Mrs Leroux wish to sell their house. They
try to negotiate a price with Mr Lebrun without success. Some time afterwards Mr and
Mrs Leroux write to Mr Lebrun asking whether he is still interested to buy the house
and at what price. Mr Lebrun replies by offering a buying price of 500,000 euros. The
Leroux accept the offer. However, when asked to complete the sale, Mr Lebrun argues
231
that he is not bound by his agreement since the actual terms under which the money
is to be paid have not yet been agreed. In dealing with such a situation, French courts
have decided that, unless the parties have agreed to postpone the conclusion of the
contract until the occurrence of a specific event, they are bound when the offer having
been accepted specifies the essential terms that constitute the subject matter and a
given agreed price without the need for full agreement on all subsidiary terms (leading
case: Cibiel v Dieulafoy Req., 1 December 1885, S. 1887.1.167). This solution is now
consolidated in art. 1114 of the Civil Code in the following terms:
An offer, whether made to a specified person or not, must include the essential terms of the
contract, as well as showing the willingness of the offeror to be bound in the event of an
acceptance by the offeree. Failing that, there is only an invitation to treat.
Thus, in the example given above, Mr Lebrun would, under French law, be bound since
both parties to the contract have agreed what thing is sold and at what price, even
though the terms of payment had not yet been agreed.
The solution adopted by French courts takes a different position to German law
where, under § 154(1) BGB, so long as the parties have not agreed to all the contrac-
tual points, then no contractual obligation can arise. By contrast, Swiss law takes a view
similar to that of French law. Under the Swiss Code of Obligations (art. 2 (1)) ‘when
the parties have reached agreement on all essential terms, the contract is deemed to be
concluded even though unessential terms remain open’.
The rule of essential terms has been applied to a number of circumstances—a classic
example being the display of goods in a shop window or inside a shop with a price
attached. Unlike English law, such a display under French law constitutes an offer to
sell at a given price. Thus, the shopkeeper cannot turn away a customer who comes
into the shop and asks for the article at the price marked. In contracts other than sales
of goods, further terms have been ruled to be essential, based on the nature of the con-
tract. Thus, it has been decided that in order to be binding an offer to let a flat must
specify, together with the amount of the rent, the length of the lease (Cass. Civ. 3, 22
February 1982); and that an offer to employ an actress for a film, once accepted, is a
contract so long as, alongside the amount of fees to be paid, the date when the shooting
of the film is due to start has been specified and agreed (CA Paris, 13 December 1984,
RTDC 1986, 97).
However, since a series of rulings in 1995 on the issue of the contract price, the
Court of Cassation has greatly limited the effect of the rule of essential terms in that, in
specified circumstances, failure by the parties to specify a set price in a contract does
not necessarily make, as was previously the case, a contract void. This important point
will be further discussed below under the heading ‘Content’.
When does the acceptance meet the offer?

According to contract theory, for a contract to be valid, acceptance must meet the
offer. The main issue here lies therefore at the moment in time when the meeting of
wills is deemed to occur. The answer to this question is crucial, since completion of
23
the contract can only take place when the offer has been accepted. The particular date
on which acceptance has taken place is also relevant to the law governing such a con-
tract in the event of new legislation being enacted during the course of the contracting
process.
Generally, once an offer is made it can be withdrawn within any period up to the
point that acceptance by the offeree has been made. However, in French law, if the
offeror has fixed a given period for acceptance, then the offer cannot be withdrawn
during this period and premature withdrawal of the offer opens the offeror to liability
in damages. It has also been ruled in this respect by the French courts that, even when
no particular period for acceptance is fixed, a reasonable period will be regarded as im-
plicitly agreed provided that it appears from the circumstances of the case that the offer
was indeed to be held open for acceptance for a ‘reasonable period’ (délai raisonable).
Both of these rules deriving from pre-existing case law have been codified in 2016 in
new art. 1116 of the Civil Code.
Specific rules apply in the context of consumer protection where acceptance can
only be made, or be withdrawn, following the elapse of a certain reflection period
known as délai de réflexion or délai de rétractation. Consequently, the offer needs to
be held open during a certain period. For example, in credit agreements, art. L 313-34
of the Code de la Consommation provides that the offer needs to be maintained for
thirty days or more following receipt of the offer by the prospective borrower, who
is not allowed to accept the offer before a period of ten days has elapsed. Since 2016,
an important innovation is the possibility for any party to any contract to provide for
either of these délais in the contract if they so wish (art. 1122). This shows, among
other changes, how the 2016 reform tends to narrow the gap which existed so far be-
tween consumers and professionals.
An offer made between parties who are not in close physical proximity further
calls for particular rules. In the past, two principal approaches were used in French
law. In a first approach, entitled the ‘emission theory’, the contract was completed as
soon as the acceptance of the offer was communicated (Lloyd de France v Faucheux
(1932) S. 1932.1.278). The second approach, the ‘reception theory’, postulated that
the contract was binding only when the acceptance reached the offeror (Chomel v
Roqueta (1960) D. 1961, 417). The French Court of Cassation, in line with the rea-
soning of the English Court of King’s Bench in Adams v Lindsell (1818) 106 ER 250,
opted in 1981 in favour of the emission theory (Cass. com., 7 January 1981, Société
l’Aigle v Société Comase (1981) Bull. civ. IV, no. 14). Indeed, in both jurisdictions,
the main difficulty with the reception theory was that the formation of the contract
was dependent on the good faith of the offeror, who could always argue that he
had not received the letter of acceptance. However, there has always been a lack of
decisions by the Court of Cassation on this issue. This is due to the fact that the date,
as much as the place, where a contract is formed has been ruled to be a question of
pure fact to be solely determined by lower courts taking into account in each case
of all the particular circumstances, including the intention of the parties. Therefore,
since 1981, there has been no final adjudication of this point at the highest level. The
23
2016 reform fills this gap, opting contrary to what was ruled in 1981 for the recep-
tion theory (new art. 1121 Civil Code).
Silence as acceptance?
Generally, an actual declaration of acceptance is required for any contractual obligation
to arise. Thus, except in specific exceptional circumstances, silence is not considered
to be taken as acceptance. This principle, now enshrined in new art. 1120 of the Civil
Code, was first formulated in Guilloux v Société des Raffineries Nantaises, Civ., 25 May
1870, D. P. 1870, 1.257. Nearest to the present time, in Madar v AFAN, 24 May 2005,
Bull. civ. I, 223, the Court of Cassation extended the scope of circumstances that po-
tentially can be held to give rise to acceptance in the case of silence by ruling in very
general terms that ‘although, in principle, silence does not in and of itself constitute
acceptance, this will not be so when the circumstances of a case are such that the si-
lence of the offeree can be treated as acceptance’.
Known in the majority of legal systems, the principle that silence does not con-
stitute acceptance has always been subject to limitations, which may vary from one
jurisdiction to another, despite certain constant features. For example, the American
Restatement (Second) of Contracts, § 69(1) (Acceptance by Silence) gives a list
of situations where silence may be held to constitute ‘assent’, amongst which is to
be found, as in French law, a history of previous dealings between the parties. In
France, under new art. 1120, and consistent with pre-existing case law, there is a set of
circumstances where silence and inaction may both be treated as forms of acceptance.
These circumstances include:
(i) Statute provisions: e.g. art. 1738 of the Civil Code, whereby if, at the expir-
ation of a lease, the lessee remains on the premises, the lease is automatically
extended without the need to sign a new agreement.
(ii) Commercial transactions: when the contracting parties are already involved
in pre-existing dealings, an offer to enter a contract similar in nature to the
previous ones does not need to be accepted in an express way. This applies in
like manner to parties who belong to a profession where existing usage permits
silence as a form of acceptance.
(iii) Where an offer is made for the exclusive interest of the offeree—as with a re-
lease of a debt—there is a presumption that acceptance has taken place, the
agreement being therefore binding on the offeror.
Defects of consent (vices du consentement)

The work carried out by groups working on the harmonisation of the law of contract
in Europe highlighted the fact that in every European legal system being considered
the law of contract recognises some form of ‘defects’ that may nullify the parties’ con-
sent. Indeed, mistake, fraud, and duress are common grounds for a contract to be held
invalid in most legal systems. However, these ‘defects’ in their variety do not exactly
234
cover the same situations or lead to similar conclusions in all cases. So, to avoid con-
fusion, instead of using English literal or legal equivalents, the French terms of ‘erreur’,
‘dol’ and ‘violence’ will be employed in the discussion that follows.
Since 2016, under art. 1130 of the Civil Code, dealing with vices du consentement,
erreur, dol and violence vitiate both parties’ consent when they are such that without
them either party would not have entered the contract or would have done it in signifi-
cantly different terms. To these three categories the Civil Code traditionally adds the
concept of lésion. However, as we shall see, lésion is not really a ‘vice’ since it applies
only to a limited number of contracts and is not generally applicable as with erreur, dol
and violence. These four categories are examined below.
Erreur (Civil Code, arts 1132–1136)

The new provisions introduced by the 2016 reform merely consolidate pre-existing
case law.
As a preliminary comment, it should be noted, however, that there are errors
going to the heart of the contract which are so important that they have the effect of
preventing the formation of the contract itself. In such a case the contract is considered
never to have existed. A typical example is where the parties misunderstood each other
regarding the nature or the subject matter of the contract: one party intended to sell
an object, the other thought he/she was receiving it as a gift; one party believed he was
buying a house with an attached flat, while the other was only selling the house. This
type of error—which has been labelled erreur-obstacle in doctrinal writing—does not
amount to a vice du consentement within the meaning of the Civil Code since consent
never existed in the first place. Erreur-obstacle is a kind of ‘mistake negativing consent’
as found in English law: in both categories the contracting parties are considered not
to have reached any agreement.
With erreur-vice du consentement contracting parties have actually reached an
agreement, but one of them is mistaken on a particular point of fact or law and if he
had known the reality of the situation he would not have entered such a contract or
would have done so in ‘substantially’ different terms. Article 1132 only considers as
vice what is known as erreur sur la personne and erreur sur les qualités essentielles (for-
merly known as erreur sur la substance).
Erreur sur la personne only relates to those contracts which have been concluded
intuitu personae, i.e. the consideration of a particular person forms an essential pre-
requisite for the agreement (art. 1134). These types of agreements include in French
law gratuitous contracts, insurance policies, leases, and partnership agreements, where
the identity of the other contracting party plays an essential role. Whilst erreur in this
context generally consists of a mistake by one of the parties as to the identity of the
other one, the courts have extended the scope of this category by deciding that it may
also relate to the essential attributes of the other party, such as e.g. his respectability,
solvency, and family situation.
Erreur sur les qualités essentielles is a mistake as to the ‘quality’ of what the parties
have contracted about. Thus, to be made operative, erreur must relate to a ‘quality’
235
which has been a key consideration in the mind of the mistaken contracting party and
has determined that party to enter into the contractual relationship (arts 1132–1133).
As sometimes expressed by judges in the past, the mistaken quality must have entered
‘le champs contractuel’ (the contractual arena). Further, in order to have the contract
annulled, it is also necessary to show that both parties have considered, either expressly
or implicitly, as essential the quality about which one of them was mistaken (known as
erreur commune, art. 1133). Since such a proof might be difficult to establish, the courts
themselves have, over the years, progressively determined what essential qualities may
be expected from the kind of contract at issue. Thus, in a contract for sale of an antique,
the relevant period when the object was made is considered to have been a key factor
of the buyer’s consent. For a work of art, it is the authenticity of the work by a given
artist which will be seen as an essential character defining possible erreur. In addition,
erreur must be ‘excusable’, which means here ‘forgivable’, to allow the party making the
erreur to avoid the contract (art. 1132). In the context of art dealing, this will be the
case when an ordinary member of the public makes an erreur as to the exact attribu-
tion of a painting.
To illustrate further what has been explained above, the landmark Poussin case is
now considered.
The Poussin case, which lasted fifteen years in the courts, from 1972 until 1987,
had an important impact on the law relating to erreur. The facts were that a couple
named Saint-Arroman owned a painting that family tradition attributed to the French
17th-century artist, Nicolas Poussin. In 1968, they decided to sell the painting at an
auction and contacted a famous Parisian auctioneer who had it evaluated by an expert.
The expert concluded that the painting was, in fact, not by Poussin, but was rather a
minor work of the Italian School of Caracci, for which he gave an estimated price of
1,500 FF. The painting was therefore sold at auction as a Carracci for a price of 2,200
FF. With a view to acquiring the painting, the Louvre Museum exercised its right of
pre-emption afforded by the law to national museums in these circumstances. In the
weeks following the sale, various press articles and specialised art reviews presented
the newly acquired painting as a Poussin, and in 1969 it was exhibited in the Louvre as
such. Appalled and upset by such news, the Saint-Arromans decided to sue the Louvre
Museum to have the contract of sale set aside.
There were two main issues raised by Poussin that are briefly considered here. One
was whether, instead of the buyer, the seller was himself able to allege the then erreur
sur la substance (since 2016, erreur sur les qualités essentielles). This question was not
new, as it had already been raised in the courts in previous cases. However, although
in such cases French courts would generally decide that the law does not distinguish
between the non-professional seller and the non-professional buyer, when it came to
erreur, some writers suggested in the past that to allow the seller in these circumstances
to invoke their erreur would put at risk the certainty of contract in general, thereby
discouraging buying collectors in search of a valuable find entering the contract. It
would also have meant that ipso facto buyers would have a duty to underwrite the
quality of the artwork they were buying. On the other hand, it was argued that to allow
236
such a contract to stand would unfairly discriminate against non-professional sellers.

This issue seems to have been resolved in new art. 1133 alinéa 2, which states without
any qualification that erreur can be raised by ‘either party’ to a contract.
The other issue raised by Poussin was whether erreur could be sustained at all when
the reality as to the authenticity of the painting was in doubt. Generally, an erreur is
meant to be a distortion, a false assessment, or an incorrect understanding of the ob-
jective reality of a given situation. In the Poussin case, experts appointed to give opinion
never agreed as to whether or not the painting was actually by Nicolas Poussin. It was
nevertheless decided that this uncertainty did not preclude the plaintiffs’ mistaken be-
lief to be an operative erreur. According to the Court of Cassation, what was relevant
here was the firm belief of the sellers when they sold the painting—on the advice of
the expert appointed by the auctioneer—that it could not have been a Poussin, when
it might well have been. Thus, in French law, erreur can derive from a discrepancy be-
tween the plaintiff ’s belief and a questionable reality.
From the foregoing, it can be assumed that French law has developed a rather sub-
jective approach to erreur. What is then the relevance of objective factors in the deter-
mination of erreur? In this respect, French law generally refuses to set aside a contract
on grounds of erreur when particular external factors are present. These factors are:
(i) The risk factor (aléa): under new art. 1133 alinéa 3, a contract will not be set
aside when the mistaken party took a risk as to a quality considered to be essen-
tial. Thus, no contract will be rescinded on the grounds that a painting bought
as ‘attributed’ to a famous painter turns out in fact not to be a work by that
painter (Civ. 1, 24 March 1987, D. 1987, 489, the famous case of Le Verrou (The
Bolt), a painting attributed to the French painter Fragonard at the time of the
purchase). Here, unlike the plaintiffs in Poussin, the purchasing party took a
risk that the painting might not have been the work of the great master and,
therefore, had to live with the consequences. Similarly, although not in the field
of art dealing, in a case where A, a textile manufacturer of upholstery materials,
sold to B, a trade customer specialising in manufacturing men’s clothing, a
quantity of fabric for making up into men’s trousers, it was decided that the
fact that the fabric turned out to be unsuitable for the intended purpose did not
make the contract void on the grounds of erreur. In this case, the buyer took a
risk in buying the fabric since he knew that the fabric, originating as it did, was
intended for purposes other than the one he had in mind (Cass. com. 4 July
1973, Société Karim v Société Ten Cate France).
(ii) Personal considerations: Erreur on ‘essential qualities’ must be distinguished
from an error as to the personal considerations that a plaintiff may have for
wishing to enter into a contract (new art. 1135). Whilst erreur, as defined earlier,
if proved, will succeed in court, personal considerations for purchase will not
be taken into account by the judges, unless the parties have agreed that these
considerations were to be taken as an essential part of their agreement (art.
1135 alinéa 1 in fine). Thus, if, e.g., a person buys a new house in contemplation
237
of a forthcoming marriage, erreur cannot succeed in court in the event that the
wedding is subsequently called off, unless the flat was bought on the specific
condition that marriage would take place. The same reasoning applies where a
parcel of land is purchased with a view to building a house on it; if the purchaser
loses his livelihood and can no longer afford the cost of building the house, the
sale will not be rescinded. In a 2001 decision, the Court of Cassation held that a
plaintiff ’s belief that he would gain tax benefits through the purchase of a prop-
erty was not a ground for setting aside the contract of sale (Lucas v SAGEP, 13
February 2001, Bull. civ. I, 31). More subsidiary personal considerations of the
mistaken party are also taken to be irrelevant in this context. In a famous 1950
case, the local Paris court refused to set aside the sale of a painting by Delacroix
on the grounds that the buyer thought that the painting was hung in Delacroix’s
room when the painter was alive, when in fact this was not the case (Trib. Civ.
de la Seine, 8 December 1950, Gaz. Pal. 1951.1.153).
(iii) Value: Erreur must also be distinguished from miscalculation or error as to the
true market value, which will not be held as grounds on which a contract can
be rescinded when the plaintiff is in possession of all the relevant information
(new art. 1136). The attitude of French courts would be to say that the mistaken
party has only him/herself to blame for this mistake. French judges, despite
their less harsh approach to parties’ weaknesses, can also apply severity when
they feel that common sense must prevail in particular circumstances.
Dol (Civil Code, art. 1137)

Within the meaning of new art. 1137, a dol is any attempt by one party to trick the other
with a view to obtaining his or her consent to a contractual agreement. Following this
definition, an innocent misrepresentation will not constitute a dol. Indeed, with dol, an
error is induced by a guilty party who thereby acts deliberately with a view to leading
the innocent party to enter the contract. Further, unlike erreur, a mistake induced by
dol does not need to relate to an essential quality for the contract to be set aside; what
is relevant is that the act of the guilty party has induced the other party to enter the
contract. Dol may consist not only in a positive act such as a false representation, but
also in a lie or fraudulent misstatement and may even be occasioned by mere silence.
Indeed, failure to disclose information—known as réticence—even in the absence of
any legal duty to do so, may be held to constitute a dol (art. 1137 alinéa 2) A classic il-
lustration is provided by the 1974 case of Goutaillier v Epoux Jacob (cited in Chapter 7
under ‘Judicial syllogism’) where the vendor of a house in the countryside did not re-
veal to the purchaser prior to the sale the existence of a plan to set up a pig farm nearby.
Prior to 2016, the concept of réticence was applied by the courts in a number of other
circumstances such as the failure by a company director to disclose the true financial
situation of the company prior to a sale of shares, or the non-disclosure by sellers of a
well that the well did not provide drinking water. Through the development of the con-
cept of réticence as dol, there has been over the years in French contract law a general
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legal obligation between contracting parties to inform each other of all the relevant
facts (see also the above-mentioned art. 1112-1 on the duty to inform at the stage of
pre-contractual negotiations). This may be contrasted with the absence of any such a
general duty in English law. This general obligation to inform must be added to that
already existing in a number of specific French contracts. For example, according to
art. 1602 of the Civil Code, the seller is obliged to explain clearly to the buyer what he
binds himself to and any obscure or ambiguous agreement will be interpreted against
the seller. Also, in consumer law, under art. L 112-1 of the Code de la Consommation,
‘all product vendors or service providers must inform the consumer—by means of
marking, labelling, bill-posting or by any other appropriate procedure—of prices and
special terms of sale and services, in accordance with the procedures laid down by
arrêtés issued by the ministre chargé de l’économie, subsequent to consultation with the
Conseil national de la consommation’. Furthermore, French judges have interpreted
broadly the concept of obligation in the former source art. 1135 Civil Code—now art.
1194—on contractual liability, imposing on certain categories of professionals such as
estate agents, notaires, and doctors, a duty to inform their clients on all the relevant
facts surrounding their contractual relationship.
The introduction of a general duty to inform was a cause for concern during the
preparatory stage of the 2016 reform, especially to professionals, businesses and more
generally the various participants in economic life. Nevertheless, the French legislator’s
commitment to the ideals of contractual justice and social morality, which embody
the protection of the weaker party, stood in the way of what would seem otherwise a
legitimate fear expressed by the proponents for free markets and freedom of contract.
Violence (Civil Code, art. 1140)

Violence is probably the defect of consent which bears most resemblance to English
contract law. Violence is roughly the French equivalent to duress and undue influence
to the extent that an agreement will not be valid under French law if consent has been
given under threat, physical violence, psychological influence, or economic pressure.
In accordance with the post-2016 provisions of the Civil Code, violence amounts
to vice du consentement when used by either a contracting party or a third party (art.
1142) against either the other party or his/her next to kin (art. 1140). When attempting
to identify the relevant factors as to whether a person has acted under violence, judges
will have regard to whether the defendant’s act is ‘of a nature to have an effect upon
a reasonable person and whether this will fill him/her with a fear of putting his/her
person or wealth in the way of significant and present harm’. In consistence with pre-
existing case law it is expected that regard might be paid on this question to subjective
factors such as the age, the sex, and the vulnerability of the persons so affected, thereby
combining both the objective and subjective approach to violence which prevailed pre-
viously. To be operative violence must also be ‘illegitimate’, i.e. outside the scope of what
is considered to be legal. Thus, a threat by a creditor to bring an action to enforce a debt
is not considered to be ‘illegitimate’ unless such a threat is exercised in order to obtain
a manifestly excessive advantage (art. 1141).
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In the original Civil Code, there were traditionally only two forms of violence, phys-
ical and psychological—the latter being associated with contracts entered into as a re-
sult of threats, blackmail, or fear. However, in 2000, the Court of Cassation, overruling
its previous case law, decided that, under certain circumstances, economic pressure
might also amount to violence (Cass. 1, 30 May 2000, Bull. civ. 1, 169). However, im-
proper commercial pressure on its own would not release the parties from contract
unless it could be shown that there was an ‘abusive economic exploitation of a situation
of economic dependence with a view to obtaining a profit’. The basic test for such de-
pendence was the existence of a particular relationship between the parties showing
some inequality between them, such as between employers and employees (Cass. 1,
3 April 2002, Bull. civ. 1, 108; D. 2002, 1860; RTDC 2002, 502). The 2016 reform has
consolidated this doctrine of economic duress in art. 1143 of the Civil Code, using
instead the more general notion of ‘abuse of state of dependence’, whereby one of the
party to the contract tries to exploit the other’s state of dependence, gaining from it
a manifestly excessive advantage. Here, the 2016 legislator drew its inspiration from
the UNIDROIT Principles of International Commercial Contracts, art. 3.2.7 of which
states that ‘a party may avoid the contract or an individual term of it if, at the time of
the conclusion of the contract, the contract or term unjustifiably gave the other party
an excessive advantage’. According to the same provision, ‘regard is to be had, among
other factors, to (a) the fact that the other party has taken unfair advantage of the first
party's dependence, economic distress or urgent needs, or of its improvidence, ignor-
ance, inexperience or lack of bargaining skill.’ It remains to be seen whether French
courts will apply such factors in full when dealing with this type of duress.
Lésion
Lésion is the term applied to the loss suffered by a party when what he receives from the
contract is manifestly less valuable than what he/she is to give. In such a situation, there
is a disproportion between the respective obligations of the contracting parties. Many
authors consider lésion as not being a true defect of consent but rather an element
relating to the content of each party’s obligation. In support of this view, lésion, unlike
the other defects, can only be a ground for rescission under certain circumstances
specified by the Civil Code. Indeed, there is no general principle that contracts may be
set aside for lésion. In fact, the opposite rule prevails in new art. 1168 of the Civil Code,
which clearly states: ‘in synallagmatic contracts, the mere disparity between the
obligations of the party is not a case for nullity of the contract, unless otherwise stated
in the law’. Indeed, only in a few exceptional cases does French law allow for judges to
rescind a contract on grounds of lésion, amongst which are contracts entered into with
an under-age party (art. 1149) and contracts for the sale of land when the contractual
price falls below seven-twelfths of the market value of the land (Civil Code, art. 1674).
Remedies for defects of consent

The principal remedy for defect of consent is nullité or rescision (French spelling), the
latter terminology being only used in case of lésion. In fact, nullité as a contractual
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remedy acts similarly to the English equitable remedy of ‘rescission’ to the extent that,
as in rescission, (i) the parties will be, in principle, restored to their original position,
(ii) there is a lapse of time of five years following which nullité is precluded, and (iii) the
remedy is no longer available in case of ‘confirmation’ of the contract by the plaintiff
(Civil Code, arts 1181–1182). ‘Confirmation’, similarly to affirmation in English con-
tract law, means that the contract will go ahead in the event the plaintiff has decided to
renounce his/her right to rescind.
Damages can be added to nullité when associated with cases of dol and violence
where the defendant will be held liable under the general rules of civil liability (art.
1178 alinéa 4). A contract set aside for nullité is deemed never to have existed and will
be declared void ab initio (art. 1178 alinéa 2). In practice, this means that between the
parties the situation prior to the contract will be restored. Thus, in a contract for the
sale of goods, both the goods and the price paid for them must be returned.
It is noteworthy that for the first time in the history of French civil law, the doctrine
of restitution, so relevant to common law legal systems, finds its own niche in the Civil
Code in no less than ten articles—arts 1352 to 1352-9. One of the main rules under the
new regime is that restitution should be in kind (art. 1352); however, where restitution
is not possible (the thing, object of the contract, has perished) an allowance in money
will be made instead. In both cases, the value of the thing at the date of restitution
will apply. It should further be noted that there is a significant limitation to restitution
when nullité affects the rights of innocent third parties, such as bona fide purchasers of
the contractual object which, under certain circumstances, will not have to be returned
to the original owner (see further on this point Chapter 15, Property).
T H E C ON T E N T OF T H E C ON T R AC T
In order to be a valid contracts and agreements must also have a ‘content’ which is ‘cer-
tain’ and ‘lawful’ (Civil Code, art. 1128). Under the word ‘content’ the new provisions
adopted in 2016 seemingly embody the former concepts of objet and cause. Thus, one
can assume that ‘content’ means not only the subject matter of the contract, but also the
content of each party’s obligation.
The content of the contract must be ‘lawful’ (arts 1128 and 1162)

This requirement is not new. The Civil Code has always prohibited contracts con-
cerning things which cannot be the subject of commercial transactions, such as the
human body, state property, or illicit substances. Another illustration concerns organ
donations, which are only permitted if carried out as part of a therapeutic course of
medical treatment, with the consent of the donor and without monetary payment.
The content of the contract must be ‘certain’, ascertained or ascertainable

(arts 1128 and 1163)
In every agreement the object of the contract or the obligation must exist or be ‘cer-
tain’. This means not only that it must have a physical existence, but also that it must
241
be ‘possible’. Thus, under the first case of physical existence, a sale of an item which
has perished, prior to completion, would be considered as void; and any contract
containing an undertaking which is not plausible or feasible would also be void.
That the content must be ascertained or, at least, ascertainable, means that not only
must the subject matter be specified, e.g. this building, this piece of furniture, this
car, etc., but also the price. This last requirement has been the subject of discussion in
recent years in the context of the specification of the contractual price in framework
agreements, particularly those in the field of contracts of distribution or contracts
for the hire of services and maintenance. In these categories of contracts the price
payable under the supplementary agreements is not usually fixed in the initial con-
tract and its determination is left to the discretion of the supplier who, under the con-
tract, may decide to increase the price charged when taking into consideration any
increase of the retail price he may require. In a series of landmark decisions given in
full assembly by the Court of Cassation in 1995 it was decided, by the overruling of
former case law, that under former art. 1129, the indeterminate nature of the price in
a framework agreement did not invalidate that or subsequent agreements (Ass. Plén. 1
December 1995, D. 1996, 13, JCP 1996, II 22565). In 2016, this jurisprudence on price
was consolidated in new arts 1164–1165 Civil Code.
The abolition of the concept of cause

Defining the former concept of cause
Before 2016, under the requirement of cause, a French contract was not legally binding
if there was no justification for each party’s undertaking and when the parties pursued
an unlawful or immoral purpose (Civil Code, former arts 1131–1133). This essential
requirement was maintained in the Catala proposals for reform, mentioned at the be-
ginning of this chapter, despite criticism against keeping this concept in French law
and the fact that most European legal systems ignored it. Even the Court of Cassation,
in its response to the Catala proposals, did question the maintenance of this complex
and rather confusing concept (Rapport du Groupe de Travail de la Cour de Cassation,
15 June 2007, 29–31).
The controversy surrounding cause was not new and could be traced back in the
writings of Planiol to his Traité Élémentaire (Vol. II, 1037). It was there argued that
the concept of cause was not only useless, since the then concept of objet could be
relied upon instead to make sure that each party’s undertaking did indeed exist, but
also redundant, considering that the requirement of a lawful cause in former art. 1133
duplicated art. 6 of the Civil Code which provides to this day that ‘one cannot by
agreements between individuals derogate from rules which involve public policy and
good morals’. The confusion regarding cause derived from the fact that the draftsmen
of the Civil Code had used the same word to describe both the existence of each party’s
undertaking and the ends pursued by each of them. It was as if English law were to use
the same umbrella word to cover both consideration and illegality in contract. This
lack of dissociation between two different things—the existence and the lawfulness of
the cause—led French scholars and judges to create artificial distinctions such as the
24
one between cause abstraite (the undertaking) and cause concrete (the ends pursued) in
order to reflect this twofold aspect of cause. It is this lack of dissociation between two
distinct aspects of contractual relationships that has caused confusion and controversy.
However, all these criticisms were not fully justified; in fact, as we shall see, cause has
been a concept of practical relevance in French law which found in recent years new
grounds on which to flourish, especially with regard to the first aspect, i.e the existence
of an undertaking.
Cause and consideration

Much has been written in the past about the possible resemblance between the con-
cept of cause and the requirement of consideration in common law systems. Most
comparative legal commentators agreed that the starting point in an examination
of the two notions was the Roman law of contract, where agreements that were
not properly formed were not enforceable unless they fell into certain recognised
categories of contract. In order to fill the gap left by bare agreements, which would
not otherwise have been actionable, the concept of cause was introduced. As noted
by Ryan (1962: 45), ‘causa was [then] regarded as matter which served to clothe the
pact’. Later developed by Domat and Pothier, under the influence of canon law, cause
became a necessary condition for a contract to be valid in French law. Consideration
in common law systems has also been perceived as a means of establishing clear evi-
dence for the existence of a contract in the absence of writing or other forms. For
the French comparative law scholar David (1959: 119), ‘consideration is a notion
which is purely objective and appears to us as a new formalism which has substituted
the formalist rules of the ancient law of contract’. However, the renaissance of for-
malism in both English and French law did not end in cause and consideration being
perceived as any less in demand in either of these two systems.
Besides a seemingly common origin, it was further claimed that cause in French law
coincided with consideration, especially from the point of view of a requirement, in
both cases, of a ‘counterpart’ to each party’s obligation. However, practical illustrations
that follow may help to show that cause was, in fact, considerably more far reaching
than consideration.
Practical applications of the concept of cause before the reform of 2016

Cause or, rather, ‘lack of cause’ has been applied in the following situations:
(i) ‘No cause at all’: it was decided that there was no cause in a contract of rente
viagère where one of the parties bought and paid for an annuity based upon the
life of the other party who, unknown at the time of the contract, had already
died or was about to die.
(ii) Contract being of no use (cause inutile): in respect of fees already paid to a
genealogist, in a case where the plaintiff was in the position of knowing her
succession rights without any intervention on the genealogist’s part, it was
decided that the contract was lacking cause and, consequently, could not be
enforced (Cass. Civ., 18 April 1953, D. 1953, 409).
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(iii) One of the terms of the contract being not consistent with the ‘essence’ of the
contract: in the landmark case of Chronopost (Cass. com., 22 October 1996,
D. 1997, 121) the Court of Cassation decided to set aside a limitation clause
which was not consistent with the essential nature of the contract. Company B
entered into a contract with Chronopost, a specialist mailing company which
guaranteed the reliability and speed of its services, with the expectation that
B’s mail would be delivered faster than the general postal service. On failure by
Chronopost to fulfil its obligation, B sued for damages. In court, Chronopost
relied on a clause of the contract which limited the amount of damages B
could claim in the event that Chronopost did not fulfil its obligation. The
Court of Cassation, citing former art. 1131 of the Civil Code, decided that the
limitation clause should be struck out as being in conflict with the obligation
Chronopost agreed to undertake. In other words, the premium in price that B
agreed to pay for a faster delivery had no cause. In 2010, in Faurecia 2 (Cass.
com., 29 June 2010), the Commercial Chamber of the Court of Cassation
confirmed the solution held in Chronopost—albeit with a different outcome—
ruling that ‘[a limitation clause] can only be deemed unwritten . . . when it
“contradicts” the scope of the essential obligation subscribed by the debtor’.
(iv) The end purpose of the contract could not be achieved: in Société Nouvelle
DPM v Mme Piller et autres (Cass. civ. 1, 3 July 1996, D. 1997, 500), also known
as the Point Club Vidéo case, the Pillers agreed to hire video cassettes from
DPM with a view to opening a video rental shop in a rural community. Shortly
after the opening, the Pillers became aware that there was insufficient trade and
that they were going to run at a loss. Despite the fact that they knew the risk, in
such circumstances, of ‘a bad bargain’ and that they had already started to per-
form the contract, both the Court of Appeal and the Court of Cassation held
the contract to be void for lack of cause.
Further, under the heading of ‘unlawful cause’, French courts annulled pre-2016 illegal
contracts such as:
(i) Contracts relating to brothels and gambling houses.

(ii) A contract between two fellow clairvoyants for the sale of items relating to for-
tune telling, when such an activity is an offence punishable by the Criminal
Code (Pirmamod v Guichard, Civ. 1, 12 July 1989, Bull. civ. I, no. 293, 194).
(iii) An agreement for payment to arrange an adoption, payment of a fee for services
in the process of adopting a child not being authorised by French law; only re-
imbursement of expenses incurred, as opposed to fees, were allowed (Casa del
Niño, Cass. Civ. 1, 22 July 1987, D. 1988, 172).
Has cause completely disappeared since 2016?

When the foregoing discussion is set against the reading of the 2016 legislation, it
becomes apparent that the essential functions which were assigned to the concept of
24
cause before 2016 have been retained in the new law. Thus, the function of justification
for each party’s undertaking is now to be found in art. 1169 of the Civil Code, according
to which the ‘counterpart’ to each party’s obligation may not be illusory or derisory. As
far as the function of lawfulness is concerned, new art. 1162 now covers the situations
which fell previously within the ambit of unlawful cause. Thus, under art. 1162: ‘A con-
tract cannot derogate from public policy either by its stipulations or by its purpose,
whether or not this was known by all the parties’ (translation by Cartwright, Fauvarque-
Cosson, Whittaker).
In addition, the above-mentioned case of Chronopost has been consolidated in new
art. 1170 and, similarly, Point Club Vidéo in art. 1169 (since under the terms of art.
1169, a bad appreciation from the start of the ‘economy’ of the contract such as in Point
Club Video would be considered as ‘illusory’).
To conclude on this point, one may question whether the abandonment of the doc-
trine of cause in contract was justified or, indeed, desirable. As evidenced above, cause
as a multi-faceted concept has played a dominant role in the development of con-
tract law in France. French judges are now faced with the challenge to find substitute
concepts capable of embracing legal situations that would have fallen previously under
the ambit of cause, substitutes that will take decades to reinvent.
E F F E C T S OF T H E C ON T R AC T
Following the 2016 reform, the part of the Civil Code devoted to the effects of contracts
was redesigned to include not only the effects of contracts as between the parties them-
selves and with respect to third parties, but also the duration, assignment and non-
performance of contracts. In the following we examine the main rules and principles
related to these effects.
E F F E C T S B E T W E E N PA RT I E S
As previously mentioned, under new art. 1103 of the Civil Code, the contract has the
force of ‘loi’ between the parties. This is known as the ‘obligatory force’ of the contract.
From this principle are derived two main consequences:
(i) the parties are under an obligation to perform what they have promised
(art. 1194);
(ii) the contract can be revoked only by mutual consent of the parties (art. 1193).
However, in spite of the obligatory force that the law vests in the contract, there are
some supervening events which can hold parties back from the performance of their
obligations and discharge them from these obligations under the contract. Although
these circumstances are now dealt with in a separate sub-section of the Code, as a
matter of convenience, they will be examined here. In addition, remedies for breach of
contract will also be considered here.
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Effects of the Contract 245
Discharge from performance
Force majeure
According to new art. 2018 of the Civil Code, it may happen that a contract has be-
come impossible to perform by one of the parties by reason of an event which could not
have been reasonably foreseen or avoided by that party. These types of events are called
events of force majeure and do not differ radically from events which will be regarded
as frustrating a contract in English law, although the scope of force majeure is much
narrower than that of frustration. In addition, as with English law, the fact that a contract
has been made more difficult or more expensive to perform—as, e.g., in the case of a
change of route in a contract for transport services—does not amount to force majeure.
Imprévision
Apart from force majeure there may be a change of circumstances which, without
making the contract impossible to perform, make it more onerous for one of the
parties, thereby necessitating a change in the terms of the agreement. This situation
is known in French law as imprévision. Until 2016, the Court of Cassation always
refused to allow revision of a contract on grounds of imprévision when the parties
had failed to reach agreement on fresh terms for their contract. The most famous
case, reflecting the then current approach of the civil courts, dates back to 1876 and
is known as l’affaire du Canal de Craponne. In this case, following agreements made
in 1560 and 1567, landowners agreed to pay a fixed annual sum for irrigation water
supplied by the company managing the Canal de Craponne in southern France. By
the 19th century the sum paid had become very low and the management costs were
more expensive than the sum received. It was requested by the company that the
contract price should be revised upwards in order to restore the financial balance of
the contract in their favour. The Court of Cassation quashed the Court of Appeal de-
cision which had allowed such a rise in the fees to be paid by the landowners on the
grounds that ‘it was not open to the courts, however equitable their decision might
like to be, to take into consideration the lapse of time and circumstances in order
to modify an agreement, thereby substituting new terms to those which had been
freely agreed upon by the parties’ (Civ., 6 March 1876, D. 76, 1, 193, De Galliffet v
Commune de Pélissanne) . This policy of non-involvement in parties’ business by the
Court of Cassation was deliberate. Indeed, the Court was of the view that deciding
otherwise would only encourage defendants not to perform their obligations in con-
tractual agreements, thereby promoting legal uncertainty. Also, judges considered
themselves not to be best placed to foresee the economic consequences that would
flow from such revision if they were to allow it. Nevertheless, this approach taken
by the Court of Cassation was criticised for being too harsh on those for whom
this unwillingness to change may lead to their financial ruin. It is interesting to
note that, in contrast to the Court of Cassation, the Conseil d’État had developed
since 1916 a different approach in respect of public law contracts. The leading case,
decided in 1916, allowed an increase in the price to be paid for the gas supplied
within the City of Bordeaux by a private company following a rise in the price of
246
coal after the outbreak of the First World War (Compagnie Générale d’Éclairage de
Bordeaux v Ville de Bordeaux CE, 30 March 1916, S. 1916, 3, 17). However, the law
relating to imprévision in civil cases has changed with the 2016 reform. Already, the
Avant-Projet Catala had provided for the possibility for a court to take changes of
circumstances into account where these changes could neither have been foreseen
nor prevented by the parties to a contract. Today, ending a long tradition of non-
recognition of the doctrine of imprévison in private law, the Civil Code in its new
art. 1195 provides that if change of circumstances renders performance excessively
onerous for a party, that party may ask the other one to renegotiate the contract,
failing which the parties may agree to terminate the contract under the terms they
determine, or ask the judge to adapt the contract to the new circumstances.
Remedies for non-performance
In French law, damages do not constitute the primary remedy. A claimant’s primary
recourse is, in principle, to have the contract performed in kind, unless such a per-
formance is not possible, or where there is a gross disproportion between the cost to
the debtor and the advantage conferred to the creditor (art. 1221 Civil Code). Thus,
the claimant will first seek to obtain from the court a judgment for specific perform-
ance against the party who has failed to fulfil his contractual obligations. Prior to this,
the claimant must serve on the defendant a notice called mise en demeure, whereby he
urges him/her to perform his/her obligation. The mise en demeure may take the form
of either an official summons or, simply, a letter (Civil Code, art. 1344). However, there
are alternative measures to specific performance which are considered in the following.
Exceptio non adimpleti contractus and exceptio timoris

In synallagmatic agreements exceptio non adimpleti contractus consists in the suspension
by one of the parties of the performance of his/her obligation so long as the other party
does not perform his/her own, provided such a non-performance is sufficiently serious.
This defence, included since 2016 in art. 1219 of the Civil Code, is not subject to any form
and is allowed so long as the party invoking the exceptio acts in good faith. So, a tenant
cannot use the exception for not paying his rent, on the grounds that the landlord did
not carry out some repair. However, the solution would be different if the failure to repair
would make it impossible to use the rented premises (for an example, see Cass. Soc., 7 July
1955, D. 1957, 1). Exceptio timoris, laid down in art. 1220, is slightly different. Inspired
by the Principles of European Contract Law, art. 9.201, it allows a party to withhold per-
formance when it is clear that the other party will not perform his/her obligation when
it becomes due and provided that the consequences of such non-performance are suffi-
ciently serious for him/her. It is thus a kind of ‘anticipatory non-performance’, not to be
confused with anticipatory breach, the latter not being recognised in French law.
Damages
When (i) specific performance is not possible, or when (ii) in the absence of a
case of force majeure the defendant has not performed his/her obligation or
247
has delayed its performance, then a claimant will have recourse to damages—
in French, dommages-intérêts (Civil Code, arts 1231 et seq.). There is currently
no provision in French law for punitive damages to be awarded in a claim for
breach of contract. Indeed, since new art. 1231-4 specifies that even when non-
performance is the result of a gross negligence or of a dol, damages only include
what is a direct consequence of non-performance, this has the effect of excluding
any type of damages intended to deter or reform the defendant. Exclusion of puni-
tive damages is surprising, considering that the 2005 Avant-Projet Catala proposals
included the introduction of a new art. 1371 in the Civil Code, providing that
such damages should be paid in addition to compensatory damages when the de-
fendant has broken the contract deliberately and tried to make an additional profit
(the initial project of the 2016 reform also listed in its art. 1266 the possibility of
‘amende civile’ in similar circumstances). Apart from the argument often raised
that punitive damages may seem out of place in the context of civil liability, it could
be said in support of their non-recognition in French law that there are already
ways of punishing wilful misconduct in contracts—for instance, astreinte and pen-
alty clauses. Further, the law provides for penalties in specific contracts such as
building contracts in the event of failure to deliver the building on time (Code de
la Construction, arts L 231–2).
Résolution
In cases of failure to perform, instead of an enforced performance, the plaintiff may
choose to have the contract rescinded for breach of contract—a remedy known in
French law as résolution. To this effect, the plaintiff needs not to apply to the court to
obtain a résolution; since 2016 résolution can be the result of a mere notification to
the defendant preceded by a mise en demeure, but only when the non-performance
by the defendant is sufficiently serious as to justify such an expedient action (arts
1224 and 1226 Civil Code). Further, when the parties have provided for a clause
résolutoire in the contract, a judgment in court is not required and, subject to the
requirement of good faith, the contract is automatically terminated in the event of
non-performance.
Note: under new art. 1223 of the Civil Code, it is also possible for the plaintiff to
accept an ‘imperfect execution of the contract’ and consequently ask for a proportional
reduction of the price originally stipulated in the contract.
E F F E C T S ON T H I R D PA RT I E S
The French legal equivalent to the English doctrine of privity is the principle of ‘relative
effect of the contract’ stated in art. 1199 of the Civil Code: contracts create obligations
only as between the parties. As with privity, there are two consequences deriving from
‘relative effect’ which are referred to in art. 1199: the burden of a contract should not
be placed on a third party and the third party cannot benefit from a contract, except in
certain circumstances, which include notably stipulation pour autrui.
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Stipulation pour autrui
Long before the Contracts (Rights of Third Parties) Act 1999, which allowed third
parties in England to enforce a term of a contract in their own right if either the con-
tract expressly provides for it or if the contract confers a benefit on them, French law
has used the convenient device of stipulation pour autrui formerly provided for in
art. 1121 of the Civil Code (now in new arts 1205 et seq.) to achieve the same result.
A simple common example of stipulation pour autrui is donation avec charge whereby
A, the stipulator, makes a donation to B, the promisor, on condition that B pays to C,
the beneficiary, an annuity of a certain amount. Another illustration of stipulation is
life insurance whereby a stipulator insures his life for the benefit of his dependants.
Stipulation pour autrui found new areas of application when, from the beginning of
the 20th century, French courts ‘discovered’ implicit stipulation pour autrui in a var-
iety of contracts. Thus, it was decided that in a contract between a passenger and a
railway company, when the passenger had become the victim of a fatal accident while
travelling, his heirs were allowed to sue in their own right in respect of damages for
the loss suffered by virtue of an implicit stipulation whereby the deceased was deemed
to have intended to confer this right on his heirs in the event of his death (Cass. Civ.,
6 December 1932, DP 1933, 1, 37, Chemin de Fer de Paris à Orléans v dame Veuve
Noblet). The same remedy was applied to contracts between patients and hospitals
in the context of blood transfusion. In the contract between a hospital and a blood
transfusion centre, the court found a stipulation pour autrui for the benefit of infected
patients from contaminated blood products (Cass. Civ. 2, 17 December 1954, JCP
1955, II, 8490; Cass. Civ. 1, 12 April 1995, Bull. 1, 214). However, in Jean Philippe X
and Madeleine Y v Axa Courtage et autres (2003), the Court of Cassation seems to have
taken a more restrictive approach in respect of implicit stipulation by deciding, in the
context of a package holiday contract, that the families of holiday makers who had
died in a boating accident in Cambodia could not, in such circumstances, use implicit
stipulation in contract against the travel agent. Their claim could only be made under
tort law. The difficulty here was that, in ruling in this case that the action was in tort
and not under contract—and thus subject to the law where the damage took place (the
lex loci delicti)—the Court of Cassation thereby transferred the jurisdiction for the li-
ability to Cambodia where there was no legal remedy for personal suffering. However,
if the claim had been made under contract, French law would have applied as being the
law under which the parties agreed to contract.
Chain sales and groups of contracts

Apart from stipulation pour autrui, there are other exceptions to the principle of
‘relative effect’ in French law, especially in the context of ‘chain sales’ and ‘groups of
contracts’. In the case of chain sales any seller in the chain can sue in contract, as the
individual contracts are all considered to be homogeneous in respect of breaches.
However, where groups of contracts are concerned, where a more heterogeneous rela-
tionship exists between the contracting parties, then the solution may vary depending
on the circumstances. Thus, in the area of building contracts, it was decided in1986 by
249
the Full Assembly of the Court of Cassation that an individual A who had instructed
an architect B to erect a building could sue in contract the supplier of defective ma-
terial C with whom B had contracted. However, in 1991, the same Assembly took the
opposite position when deciding that in similar circumstances the action brought by
A against C, who was in this case a sub-contractor for the plumbing, was in tort, not
in contract.
Chapter References
and Further Reading
Atiyah, P. S., ‘Conceptualism Triumphant David, R., ‘Cause and Consideration’ in
in the Court of Appeal’, MLR, 1968, Vol. Mélanges Maury, Vol. 2, 1959, 111.
31, 332. Fabre-Magnan, M., and Sefton-Green,
Atiyah, P. S., The Rise and Fall of Freedom of R., ‘Defects of Consent in Contract law’
Contract, Oxford University Press, 1979. in A. S. Hartkamp and M. Hesselink
Beale, H., Tallon, D., Vogenauer, S., and (eds), Towards a European Civil Code,
Rutgers, J., Contract Law: Ius Commune Kluwer, 2004.
Case Books for the Common Law of Europe, Furmston, M. P., Cheshire, Fifoot and
Oxford: Hart Publishing, 2009. Furmston’s Law of Contract, 14th edn,
Bell, J., Boyron, S., and Whittaker, S., London: LexisNexis UK, 2001.
Principles of French Law, Oxford University Nicholas, B., The French Law of Contract,
Press, 2008, Ch. 10, 294–360. Oxford: Clarendon Press, 1992.
Blanc-Jouvan, X., ‘Toward the Reform of the Ryan, K. W., An Introduction to the Civil Law,
Law of Obligations in France: the Reasons Law Book Australia, 1962.
for the Reform’, Tulane Law Review, 2009, Smits, J. and Calomme, C., ‘The Reform of
Vol. 83(4), 853–76. the French Law of Obligations- Les Jeux
Cabrillac, R., Droit des Obligations, Paris: Sont Faits’, 23 MJ 6 (2016), 1040–50.
Dalloz, 2016. Stapleton, J., ‘Good Faith in Private Law’,
Cartwright, J., Contract Law—An Introduction Current Legal Problems, Vol. 52, 1999, 1–36.
to the English Law of Contract for the Civil Tallon, D., and Harris, D. (eds), Le
Lawyer, Oxford: Hart Publishing, 2016. Contrat Aujourd’hui: Comparaisons Franco-
Cartwright, J., Vogenauer, S., and Anglaises, LGDJ, 1987.
whittaker, S., Reforming the French Law Teubner, G., ‘Legal Irritants: Good Faith in
of Obligations, Oxford: Hart Publishing, British Law or How Unifying Law Ends up
2009. in New Divergences’, MLR, 1988, Vol. 61, 11.
Chloros, A. G., ‘The Doctrine of Zimmermann, R., and Whittaker, S., Good
Consideration and the Reform of the Law Faith in European Contract Law, Cambridge
of Contract’, ICLQ, 1968, Vol. 17, 137. University Press, 2000.
Couturier, J. P., ‘La Résistible Ascension Zweigert, K., and Kotz, H., An Introduction
du Doute (quelques réflexions sur l’affaire to Comparative Law, Oxford University
Poussin)’, Paris: Dalloz, 1989, Chr. 23. Press, 1998, 323–536.
250
14
THE LAW OF TORT
Il faut rougir de faire une faute et non de la réparer.

Jean-Jacques Rousseau, Emile.
I N T RODU C T ION
As for the law governing contract, the bicentenary of the French Civil Code in 2004
was an opportunity to raise the alarm about the state of extra-contractual liability
in France. Since the enactment of the Civil Code in 1804, the legislative framework
relating to tortious liability had only been detailed in five provisions of the Code, arts
1382 to 1386 (numbered today arts 1240–1244), thus leaving to the courts the task
of developing—often randomly—the law in this area. It is therefore not surprising to
find to this day a developed and complex body of case law governing civil liability in
France. As part of the reform process to rewrite the law of obligations triggered by
the 2005 Catala proposals (see previous chapter), and following a public consultation
undertaken between April and July 2016, the French Government eventually published
in March 2017 the long-awaited draft parliamentary bill for the Reform of the Law of
Civil Liability (referred to as the ‘2017 Bill’ or ‘the Bill’ in the following developments),
largely based as in contract on the Catala project.
At the time of writing this chapter, it was still unclear when the 2017 Bill would be-
come binding law. What follows examines the law as it stands at the time of the Bill.
T H E F R E N C H B ROA D A P P ROAC H TO TORT L IA B I L I T Y

Although for purposes of convenience this chapter is entitled ‘The Law of Tort’, a more
appropriate title would be either ‘The Law of Civil Liability’ (responsabilité civile) or, more
precisely, ‘The Law of Delictual Liability’ (responsabilité délictuelle), which are the tech-
nical expressions under which the law in this area is usually known in France. The 2017
Bill rather refers to ‘extra-contractual’ liability, thereby promoting an approach based
on the ‘field’ covered by the new provisions rather than on the intrinsic nature of civil
liability. Such a description is open to criticism considering that the borders between
contract and tort have never been strictly delineated in French Law, as is the case in the
Bill itself. As an illustration, the new proposed art. 1233-1 states that ‘any compensation
of physical injury even arising from contract is made using the rules provided in tort law’.
251
Introduction 251
Although the word ‘tort’ is used in everyday French language to describe a wrong,
there is no concept as such in French civil law. The idea that tort liability should arise
from an exhaustive list of specific acts which can be regarded as ‘torts’ is alien to French
law which, instead, has opted for a more generalised approach to civil liability based on
the notion of ‘fault’. Historically, French law departed from the Roman law of delicts,
modelled on criminal law, which offered, as in today’s English law, a list of nominate
wrongs as possible causes of action.
The French concept of ‘faute’, taken from the Latin word culpa, is deeply rooted in
natural law and religious doctrine, both of which provided the basic material on which
French jurists relied in order to fashion the law in this area. The complementary gen-
eral clauses of arts 1240 and 1241 of the Civil Code are striking illustrations of the uni-
versality, both in terms and in spirit, which to the present day characterises the French
concept of civil liability:
Article 1240
Any act whatever of man, which causes damage to another, obliges the one through
whose fault it occurred, to compensate it.
Article 1241
Everyone is liable for the damage he/she causes not only by his/her [intentional] act, but
also by his/her negligent conduct or by his/her imprudence.
Amongst the principal civil law systems, this level of generality apparent within the
French Civil Code is uncommon. Even § 823(1) of the German Civil Code (BGB), the
German provision equivalent to art. 1240, contains some degree of generality and yet
still provides a list of protected interests and rights whose infringement may give rise
to a claim in compensation.
The categorisation approach to tort law, prevalent in legal systems such as that in
England, presents the advantage of reducing judicial discretion as well as highlighting
the distinctive aspects of each type of wrong by treating them separately. However, the
main drawback to having a finite list of nominate torts is the existence of gaps within
the law that this engenders, with the adverse and unjust consequence that potential
claimants may be denied any legal remedies when their case and circumstances do not
fit within the existing legal classification.
However, the distinction between the common law ‘tort’ model and the concep-
tual model of civil law systems such as in France, although true, has been somehow
exaggerated. In fact, separate from the general principle based on fault found in art.
1240, since its enactment the Civil Code has also provided for specific regimes which
are generally of strict liability where fault does not need to be proved. These are liability
for damages caused by things (art. 1242 alinéa 1), by the actions of persons other than
the defendant (art. 1242 alinéas 1, 4 and 5), by animals (art. 1243), and by defective
buildings (art. 1244). Today, the law relating to civil wrongs is even more fragmented
with a multiplication of special causes of action in a variety of areas such as, e.g., road
traffic accidents (Law of 5 July 1985) and defective products (arts 1245 et seq. of the
Civil Code, implementing the European Directive of 25 July 1985). The 2017 Bill fur-
ther strengthens the dualism between generality and particularism in the law of civil
25
252 The Law of Tort
liability. Indeed, the Bill provides a new general definition of fault side by side with the
special regimes of strict liability described above which, for that purpose, have been
broken down into separate headings, including two innovations: the consolidation of
the judicial doctrine of troubles anormaux de voisinage (new proposed art. 1244) and
the codification of the basic provisions of Law of 5 July 1985 on road traffic accidents
(new proposed arts 1285–1288).
Conversely, in common law systems such as England, it has been felt necessary to
move away from the strict nominate tort approach and to formulate the rules governing
civil liability more broadly, especially in the context of actionable negligence and the
duty of care. In Donoghue v Stevenson [1932] AC 562, Lord Atkin’s famous formulation
of what is commonly known as the ‘neighbour principle’ illustrates well that need for
generalisation:
In English law there must be, and is, some general conception of relations giving rise to
a duty of care, of which the particular cases found in the books are but instances. The li-
ability for negligence, whether you style it such or treat it as in other systems as a species of
‘culpa,’ is no doubt based upon a general public sentiment of moral wrongdoing for which
the offender must pay.
However, in delivering his ‘neighbour principle’, Lord Atkin was aware of the danger of
stating propositions of law in wider terms than is necessary and was very careful not to
provide an all-embracing cause of action similar to those found today in arts 1240 and
1241 of the French Civil Code.
He added:
But acts or omissions which any moral code would censure cannot, in a practical world, be
treated so as to give a right to every person injured by them to demand relief. In this way
rules of law arise which limit the range of complainants and the extent of their remedy.
The rule that you are to love your neighbour becomes in law, you must not injure your
neighbour; and the lawyer’s question, who is my neighbour?, receives a restricted reply.
You must take reasonable care to avoid acts or omissions which you can reasonably foresee
would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer
seems to be—persons who are so closely and directly affected by my act that I ought rea-
sonably to have them in contemplation as being so affected when I am directing my mind
to the acts or omissions that are called in question.
What may account for the more restrictive model of civil liability adopted by English
lawyers is the fact that tort law in England grew up out of the difficulty to accommodate
a number of new situations arising within the framework of existing contractual duties
(Markesinis 1977: 88–9). As a consequence, tort law helped fill the gaps left by con-
tractual causes of action, developing as such in a piecemeal fashion as circumstances
arose. In contrast, in French law, contractual and extra-contractual liability developed
in such a way that contractual claims were governed by a set of special rules set against
the general tort liability clause of the then art. 1382 (now 1240). In this respect, the
rule of non-cumul, in preventing plaintiffs from the possibility of bringing their case
concurrently in tort and contract when their claim fell under the ambit of contract
253
Introduction 253
law, demonstrates further the specificity of French contract law against the generality
of tort-based liability. These remarks must be further considered in the general back-
ground of a law largely shaped in France by doctrinal writing around ideas based on
individual responsibility and standards expected for citizen behaviour, where any evi-
dence of ‘proximity’ or ‘special relationship’ between the parties, such as those required
by common law judges, were not seen as essential.
However, when looking more closely at the way in which French judges have dealt
with claims in tort, it will be apparent that the need to avoid extending the scope of
civil liability to an unlimited extent has also been present in French law. Indeed, in
order to achieve desirable results, French judges have on many occasions used their
discretion to interpret restrictively the elastic concepts of fault, damage, and caus-
ation, thereby dismissing claims which, for policy reasons, would have created unjust
results or would have opened the gates to a flood of new claims. Thus, even though
French judges do not admit to it openly in their judgments, they are also influenced as
regards the matter of deciding the limits of liability by general policy considerations,
especially the ‘floodgates arguments’ which their English counterparts will also readily
understand.
HOW T H E L AW OF TORT DE V E L OP E D I N F R A N C E
Since the end of the 19th century, the French law of tort has seen a continuous develop-
ment in response to a number of deep and widely felt changes in social and economic
conditions.
First, the industrialisation of society which had taken place by the end of the 19th
century had the effect of shaking to its foundations the fault-based civil liability system
of the original Civil Code of 1804. In 1897, prominent authors such as Saleilles and
Josserand both proposed in their respective works a risk-based approach to civil li-
ability (the party who carries out an activity must underwrite the financial risks
generated by such an activity), which eventually led the legislature and the judiciary
in its turn to introduce to the law regimes of strict liability, notably in the context of
industrial accidents and damage caused by things held in a person’s care. At the same
time, statutory developments in the fields of insurance and social security had the
effect of spreading the cost of compensation for personal injury caused by individual
negligence, thus extending in part to the community at large the distribution of risk
previously reserved to individual responsibility.
Secondly, in the course of the 20th century, doctrines based on the idea of social
solidarity transformed legal attitudes to the way in which compensation should be paid
to those suffering the consequences of wrongful acts. Following this, since the 1950s,
there has been an increase in France in so-called ‘guaranty funds’, a system of compen-
sation which has the purpose of awarding damages to the victims of personal injury
where the party responsible for the injurious act has remained unknown, or is fully or
partially insolvent. One of the oldest of these funds is Fonds de Garantie Automobile
(FGA), a fund financed partly by insurance companies and partly by motorists, which
254
254 The Law of Tort
since 1951 has allowed victims of road traffic accidents or their dependants to recover
damages for personal injury. Similar guaranty funds have been established more re-
cently in the context of victims of criminal offences, terrorism, and illnesses from HIV-
contaminated blood transfusions and asbestos.
Thirdly, the increase in large-scale catastrophes has affected the way French jurists
approach civil liability. Tragedies such as the 1978 Amoco Cadiz tanker oil spill on the
Brittany coast which polluted 360 km of shoreline, the 1992 deadly collapse of a tem-
porary stand in the Furiani Stadium that killed and injured many supporters, the 1999
blaze in the Mont Blanc tunnel where many motorists perished, or the sinking of the
tanker Erika (also in 1999), resulting in about 30,000 gallons of heavy fuel oil spilling
into the sea, are all catastrophic events that have little in common, both in magnitude
and with regard to the amount of damages awarded, with the type of actions com-
monly heard by courts two centuries ago when the Civil Code was enacted.
G E N E R A L C ON DI T ION S F OR C I V I L L IA B I L I T Y
Generally, before a plaintiff can recover damages in French law, he must show that
he has suffered damage and that damage was caused (lien de causalité) by an act or
omission for which the defendant was liable (faute or fait générateur). This part of the
chapter will examine the general conditions of what is known as liability for fait per-
sonnel, i.e. where a person may be held liable as a result of a personal fault (Civil Code,
arts 1240 and 1241).
However, and this will be considered later in this chapter, a person can also be sued
in tort as a consequence of damage caused by a thing in his/her care (responsabilité du
fait des choses que l’on a sous sa garde—Civil Code, art. 1242 alinéa 1), or because that
person is answerable in law for another’s action (responsabilité du fait d’autrui—Civil
Code art. 1242 alinéas 4 and 5).
T H E C ON C E P T OF FAU LT
A lack of definition in the 1804 Civil Code
As already stated, the traditional basis of tort liability in French law is fault on the part
of a defendant. As a consequence of fault not having been defined in the Civil Code,
authors and judges have commonly relied on the definition given by the 17th-century
French jurist Domat, who is reputed to have inspired the principled approach to civil
liability in the then arts 1382 and 1383 of the Civil Code. In his seminal work, dated
1689, les Loix Civiles dans leur Ordre Naturel (Book 2, Title 8, Section 4, paragraph 1),
Domat gives the following definition of faute:
Any loss and damage whatsoever arising through the act of a person, whether being an
act of negligence, of recklessness [légèreté], an absence of knowledge of what ought to be
known, or any similar fault, whatever their importance, must give rise to compensation.
For this constitutes a tort [c’est un tort qu’il a fait] even though there was no intention
to harm.
25
General Conditions for Civil Liability 255
Thus, following Domat, fault should be generally understood today to include any kind
of deliberate act (Civil Code, art. 1240) or any reckless or negligent conduct (Civil
Code, art. 1241).
Fault and duty of care

At first, the notion of fault in arts 1240 and 1241 might appear to be too vague to a
lawyer trained in a common law jurisdiction. And it is true that, as a consequence of
this broadly defined character of fault, French judges have felt free to hold the existence
of a wrong in a number of situations, even in the absence of any statutory basis, or any
line of precedents, or a relationship between the parties involved.
In attempting to systematise the case law related to fault, it would appear that a
person at fault in French law is in fact someone who has breached a kind of ‘general
duty of good conduct’, whether this conduct was dictated by legal norms or by social
standards. The Catala working group on the reform of the law of obligations in 2005
picked up this approach by proposing a definition of ‘fault’ similar to the one finally
adopted by the 2017 Bill in new art. 1242: ‘A violation of a legislative requirement or
a failure in the general duty of care and diligence constitutes a fault’ (translated into
English by Whittaker, S. under the auspices of the French Ministry of Justice).
It could be argued that, prima facie, this approach does not greatly differ in its essence
from the common law notion of duty of care as defined in Donoghue in so far as in both
cases there seems to be an underlying moral obligation not to harm your neighbour.
In fact, the difference with French law is in degree, rather than in nature, and lies in
the fact that the French duty encompasses many more situations and bears less re-
striction in its ambit than its common law counterpart. Thus, in theory, in French law,
subject to legal or judicial recognition, a person may be held liable when causing any
damage to someone else’s property; when inflicting harm or injury, either deliberately
or negligently, to another whoever this other is; or when hurting the feelings or causing
emotional suffering to others whatever the circumstances. Moreover, following well-
established case law, misconduct of the kind described above can be the result of either
(i) a ‘positive act’, such as the knocking over of a pedestrian by a motorist, or the act of
offending somebody, or (ii) an omission, such as any wrongful failure to do something
or to act in a certain way. In respect of omissions, French courts have decided that, in
certain circumstances, there is a specific obligation to act, making breach of this obli-
gation actionable. For example, there is in French law a general obligation placed on
individuals to rescue others who are in danger or, in a more restricted context, a duty
imposed on an employer to ensure safety in the workplace. Whereas there has been no
difficulty in imposing such a duty to act where there is a relevant statute or a contract,
it has been more problematic in circumstances where no juridical source for such an
obligation could be found. However, here again, lack of legal basis has not prevented
judges from extending the notion of wrongful abstention to non-statute-based areas
such as professional practice as can be illustrated by the famous case of Branly (Cass. 1,
27 February 1951, D. 1951, 329), where an historian writing on the history of wireless
telegraphy (TSF) omitted to mention the name of Edouard Branly, one of the inventors
of this means of communication. However, it was later decided by the courts that a
256
256 The Law of Tort
mere abstention, in the absence of any recognised duty to act, whether prescribed by
statute, contract, or—as in Branly—by professional standards, cannot be construed as
a wrong, unless such an abstention is proved to be malicious. For instance, in the case
of a newspaper, La Haute Marne Libérée, a lawyer claimed damages after his name
was not mentioned in a case report (Civ. 2, 17 July 1953, D. 1954, 533). The Court of
Cassation, dismissing the appeal, ruled that ‘an omission, where there is no intention
to cause harm, cannot constitute a fault unless there was at least a professional obliga-
tion to include the fact omitted’. In this case, the lawyer’s name not being essential to
the reporting of the case, no duty of care could be held against the newspaper in the
absence of any malicious intent. However, in converse to the ruling in La Haute Marne
Libérée, an intentional or malicious abstention will always give rise to a wrong. This is
supported by well-established case law. Classical illustrations of malicious abstention
include the refusal by a husband of Jewish faith to grant his ex-spouse a bill of divorce
or ‘get’, thus making a religious marriage to another man by his ex-wife impossible (e.g.
Cass. Civ. 2, 5 June 1985. JCP 1987, II, 20728; Cass Civ. 2, 15 June 1988, JCP 1989, II,
21223; Cass Civ. 2, 12 December 1994, JCP 1995, IV, 416).
Determination of fault
The determination of fault raises two separate questions:
(i) What is the standard of care to be expected from the person at fault? The answer
to this question is that fault is externally determined by consideration of the
nature of the act itself (in abstracto), independently from the defendant’s par-
ticular circumstances such as his/her age, intelligence, and emotional state and
feelings. In order to determine the standard of care required of a defendant, his/
her conduct is compared with the way a reasonable person would have acted
in the given circumstances. The reasonable man of the Civil Code was known
until 2014 as the bonus pater familias, ‘the good family father’, an outmoded
notion rooted in Roman law. From now on, the Civil Code uses instead the ad-
verb raisonnablement (reasonably) (e.g. in art. 1880), a notion more familiar to
common lawyers, to describe the degree of care expected from a defendant.
(ii) What is the degree of fault required to incur liability? Generally, any kind of fault,
however serious, may incur liability in tort. However, a closer look at case law
shows that repetitive misconduct will more likely be held to amount to a fault
rather than behaviour which may be considered as being ‘proportionate’, in the
context of the particular circumstances of the case. In Cass. civ. 2, 2 April 1997,
D. 1997, 411, SA Automobiles Citroën v SA Canal Plus, the Court of Cassation
quashed a judgment given by the Court of Appeal of Paris which had decided that
one of the sketches of a TV satirical series, featuring a rubber puppet representing
the managing director of the car company Peugeot/ Citroen in a crude and un-
flattering manner, did not cause him or the company harm, since the show, in
the Court of Appeal’s view, was not malicious but rather pure entertainment. The
Court of Appeal had concluded that the depiction of the plaintiff, being merely a
parody of the reality, was not therefore considered likely to cause disrepute to the
plaintiff or to the trade brand he represented. However, the Court of Cassation
257
held that the broadcasters of the series did indeed incur liability, even in the ab-
sence of any malicious intent, in view of the ‘outrageous, provocative and repeti-
tive’ character of the comments made against the plaintiff during the programme.
In contrast with the SA Automobiles Citroën case, in the later 2006 decision Comité
National contre les Maladies Respiratoires et la Tuberculose (CNMTR) v Société JT
International GmbH et autre, the Court of Cassation again quashed a Paris Court of Appeal
decision which had, on this occasion, found the defendant liable. In this case, the defendant,
the National Committee for protection against respiratory illnesses, had published, in the
course of its public campaign against smoking, posters and stamps featuring the image of
a camel smoking a cigarette, surrounded by a cloud of smoke in which could be seen a
human skull. The company marketing the Camel brand of cigarettes sued the Committee,
claiming that these facts amounted not only to an abuse of freedom of expression but also
constituted a ‘fault’ under the then art. 1382 of the Civil Code. Whilst the Court of Appeal,
on the one hand, agreed with the plaintiff in so far as the defendant’s acts were of a nature
such as to bring discredit to Camel, the Court of Cassation, on the other hand, considered
that the image giving rise to the litigation was essentially humorous and was above all
proportionate to the legitimate aim pursued by the defendant, i.e. the protection of young
people against the potential health hazard arising out of the smoking habit.
A more recent decision illustrates further the more cautious approach to fault adopted
by the highest court in the Camel case. In Cass. Com. 1 March 2017 (the Meccano case),
the Court of Cassation quashed the judgment of the Court of Appeal of Paris in a case
where the defendant, a well-known weekly magazine-format newspaper, had used in
various articles the word Meccano (from the registered brand of construction toys) to
describe complex scientific, political and intellectual constructs, without mentioning
the origin of the term Meccano itself. The Court of Appeal’s view was that the defendant
had been at fault in not specifying that Meccano was a protected brand, thus implying
that it has become a generic term or word of the language, contributing in the long run
to a process in which the trademark would lose its distinctive character. According to
the Court of Cassation, such a justification by the appeal judges was not sufficient to
establish a fault on the part of the defendant. Indeed, for the Court of Cassation, there
was nothing in the circumstances of the case to suggest that the use of a trademark in
a metaphorical way ran the risk of degenerating it into a word of common language.
Fault: a concept in decline?

As already noted, the risk theory introduced at the end of the 19th century weakened
the fault-based system of the Civil Code. As a consequence, emphasis in tort law shifted
from the defendant’s conduct to the plaintiff ’s claim, making compensation the prin-
cipal concern and issue in a tort action. French judges have been driven by an ‘ideology
of compensation’ which has given rise to a new interpretation of the key elements of
civil liability, in particular in the concept of fault itself.
Formerly, before a person could be held liable under French law— apart from
committing a wrongful act—that person would have to be able to understand the
consequences of his or her own actions (discernement). Thus, on the basis of this def-
inition and requirement, very young children and mentally handicapped adults were
traditionally exempt from liability. However, in 1984, the Court of Cassation decided in
258
258 The Law of Tort
a series of five judgments that very young children, although lacking the power of dis-
cernment, make their parents liable to answer for their wrongful acts (Ass. Plén., D. 1984,
525). Following the 1984 rulings, not only can young children be held liable for damage
caused to others, despite them being unable to understand the consequences of their
actions, but also a claim on their behalf can be reduced on the basis of the child’s con-
tributory negligence where such circumstances apply. Thus, in Derguini, one of the five
1984 judgments, contributory negligence was held against a girl of five who was fatally
injured when running into the road without looking, and, in Lemaire, another of the 1984
rulings, the same applied in the case of a boy electrocuted while attempting to change a
bulb without first switching off the electricity (however, case law may change under new
proposed art. 1255 of the 2017 Bill, which states that ‘unless it bears the characteristics of
force majeure, the act of a victim lacking discernment has no exonerating effect’.)
Prior to this case law on children, in 1968, Parliament introduced art. 489–2 in the
Civil Code (later to become art. 414-3) whereby mentally ill people can be held li-
able for their own acts. This followed the landmark case of Trichard (Cass. Civ. 2, 18
December 1964, D. 1965, 191) where a person caused an accident during the course of
an epileptic fit and it was held that persons committing a tort whilst in a state of uncon-
sciousness were nevertheless still liable for the damage they caused.
These developments in France may be set as ‘a striking counter-example’ (Von Bar
1998: 90) to other European laws of delict which are, by and large, more protective
than in France, particularly in the case of young children. As an illustration, art. 2046
of the Italian Civil Code lays down that any person who does not have the capacity
d’intendere o di volere is exempt from liability. The Swiss Code of Obligations offers
a halfway solution between full liability and total exemption in that if in principle
persons lacking discernment cannot be held liable, they can nevertheless be asked to
compensate the loss suffered when ‘equity requires it’ (Code of Obligations, art. 54§1).
Despite the apparent decline in the notion of fault in French civil law, conservative
scholars such as Mazeaud (1985) prefer to speak of a transformation of the concept of
fault into a faute objective, rather than admitting that the principle of fault itself has
been abandoned.
In addition to these considerations applying to the concept of fault, there are a
number of situations where it is not necessary for the plaintiff to prove fault and/or
where the absence of fault cannot of itself provide a defence:
(i) where the damage has been caused by things which are in the defendant’s care
(art. 1242 alinéa 1);
(ii) where the defendant is liable for the acts of another, e.g. parents for their chil-
dren, employers for their employees (art. 1242 alinéas 4 and 5);
(iii) where the defendant has the use, management, and control of an animal
(art. 1243);
(iv) where the defendant is the owner of a building which has caused damage on
account of any structural defect or lack of maintenance (art. 1244).
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R E C OV E R A B L E L O S S I N F R E N C H L AW
As a preliminary comment, it is important to note that the basic rule in French law for
recovery of damages is that plaintiffs may sue for the entire loss suffered so that they
are returned to the position that they were in prior to the act causing injury. This rule is
better known as the principle of réparation intégrale du préjudice (or full compensation
principle) which is now expressly referred to in new proposed arts 1258–1259 of the 2017
Bill. This is a pervasive principle which not only accounts for the general tendency of the
French courts to expand the number of heads of losses that can be brought in tort claims,
but also has all sorts of other ramifications in a variety of specific circumstances. Thus,
e.g., the principle that compensation is due for ‘all the damaging consequences of one’s
actions’ underlies the refusal so far by the Court of Cassation to recognise, by reference
to former art. 1382 of the Civil Code, a plaintiff ’s duty to mitigate his/her losses (see two
leading judgments in Cass. Civ. 2, 19 June 2003, JCP 2003, II, 10170; case law confirmed
in Cass. Civ. 2, 22 January 2009, D. 2009, 1114). It should be noted that the current view
of the Court of Cassation on the injured party’s duty to mitigate his/her loss is at odds
with a number of other European legal jurisdictions, including England and Germany,
and also runs counter to various European and international texts which have indeed
recognised such a duty (see e.g. the UNIDROIT Principles of International Commercial
Contracts 2016, art. 7.4.8 (1) and (2), the Principles of European Contract Law 2002,
art. 9.505 (1) and (2), and the UN Convention on Contracts for the International Sale
of Goods 1980, art. 77). However, things will slightly change in the future in France
since the 2017 Bill provides (in what would become new art. 1263 of the Civil Code) for
the possibility that a court may reduce the claimant compensation package where he/
she has allowed his/her situation to worsen and has not acted in mitigation of the loss.
However, under the Bill, mitigation is still not permitted with regard to the victim’s phys-
ical injuries.
Réparation intégrale is further adduced to explain the feature of compensation that
the poor condition of the thing damaged (e.g. an old car) will not be taken into account
to reduce the figure when calculating the quantum of damages. Equally, a court cannot
reduce the victim’s compensation for personal injury due to a pre-existing condition
or pathological predisposition which may have contributed to the occurrence of the
injury (Cass. Civ. 2, 19 May 2016; solution consolidated in the 2017 Bill, art. 1268).
Finally, for the Court of Cassation, full compensation for loss incurred also means that
a plaintiff suffering from an irreversible and unconscious condition in consequence
of a road traffic accident can nevertheless recover for pain and suffering and loss of
amenities, even though, in such circumstances, the plaintiff cannot feel anything and
is not aware, as in the case at hand, of her state (see Cass. Civ. 2, 22 February 1995, JCP
1995, I, 3853, Mlle X . . . v Société Transport Agglomération Elbeuvienne).
As regards the general categorisation of damages applied in French Law, legal scholars
and judges usually distinguish between (a) damage to property which results in an eco-
nomic loss known as préjudice matériel; (b) emotional harm giving rise to préjudice moral,
and (c) physical injury which engenders préjudice corporel. Yet, this traditional tripartite
classification has never been expressed in the Civil Code. However, based on the fact that
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260 The Law of Tort
each préjudice has a pecuniary as well as a non-pecuniary element, the drafters of the 2017
Bill have opted instead for a classification based on patrimonial (referring to a person’s
wealth or estate) v extra-patrimonial losses (art. 1235). When comparing the two, the
tripartite classification rests on the nature of the injury suffered and as such presents the
advantage of recognising physical injury as a category distinct from the two other ones
mentioned above. Indeed, not only do several rules apply differently to physical harm but,
also, unlike the other two, damages for bodily injury are awarded following a complex
detailed nomenclature (see below). It is interesting to note that Quebec, France’s sister civil
law system, moved from a bipartite to a tripartite division in its new 1994 Civil Code (art.
1457). Thus, according to art. 1457:
Every person has a duty to abide by the rules of conduct incumbent on him, according
to the circumstances, usage or law, so as not to cause any injury [préjudice, in the French
version of the article] to another.
Where he is endowed with reason and fails in this duty, he is liable for any injury
[préjudice] he causes to another by such fault and is bound to make reparation for
the injury [préjudice], whether it be bodily, moral or material in nature [emphasis
added].
For the sake of consistency and clarity, the traditional doctrinal and jurisprudential tri-
partite classification used in France will be adopted (using French terminology) in the
following brief examination of categories of recoverable loss in France. Each category
has further subdivisions which are also considered in turn below.
Prejudice matériel
Under préjudice matériel a person can not only recover the actual money value of
losses sustained (damnum emergens) for (a) damage to property as well as (b) expenses
incurred as a consequence of personal injury, but also the loss of earnings and loss of
profits (lucrum cessans) consequent upon the act of the defendant, such as, e.g., a loss
of commercial opportunity.
Unlike some common law jurisdictions, pure economic loss, defined as a pecu-
niary loss which is not consequent upon physical harm or property damage, is not
treated as a separate category of loss in France. There is no legal objection in French
law against the recovery of such loss, so long as a causal link can be established between
the defendant’s wrongful conduct and the plaintiff ’s loss. When reviewing the case law
in this area, it would appear that French judges have often taken the view that when
the damage claimed was ‘uncertain’ due to lack of causation, then the loss could not be
recovered—in this respect acting not that much differently from an English judge using
the test of remoteness of damage. In practice, uncertainty of damage is likely to arise in
French law where economic loss might have been due to other factors, thus making this
damage unforeseeable to the defendant. Thus, claims for loss of profit allegedly caused
by the death of key employees against a defendant involved in their death have been
rejected by French courts in view of the fact that various circumstances other than the
defendant’s act and involvement in their demise might have been at the root of such a
financial loss. A similar approach was taken when a talented opera singer was injured
261
and unable to perform any longer at the plaintiff ’s opera house, allegedly causing a
drop in the number of tickets sold. Here again the Court of Cassation decided that the
drop could have been caused by a multitude of other circumstances which were not
necessarily related to the defendant’s act.
Préjudice moral
There was a time when it was debatable in French law whether non-pecuniary loss
known as dommage/préjudice moral should be recoverable at all. Three arguments were
put forward against recovery for losses of this kind:
(i) it is morally wrong for those suffering to claim money for the pain and suffering
they experience following the death or total incapacity of their loved ones;
(ii) in any event, recovery of damages for loss suffered will not assuage the true loss
suffered;
(iii) préjudice moral is difficult to assess in monetary terms.
However, despite these objections, the Court of Cassation has allowed plaintiffs to re-
cover for their pain and suffering since its landmark decision of 25 June 1833 (S. 1833,
I, 458). Under French law it is even possible to claim for the pain and suffering caused
by the death of an animal, following the landmark case of the racehorse Lunus, Cass.
Civ. 1, 16 January 1962, D. 1962, 199).
Préjudice corporel
In France, compensation for physical damage claims is determined with the aid of tables
established by the courts themselves in collaboration with medical experts. Damages
are categorised following either a traditional listing, or a more recent listing known as
the ‘Dintilhac nomenclature’, named after the Court of Cassation judge who presided
over the commission that submitted a report to the Minister of Justice in October 2005.
The aim of the Dintilhac nomenclature is to harmonise the system of compensation
of personal injury in order to promote better equality of treatment between victims.
Although it has not been formally adopted by Parliament, the courts have often referred
to it and applied its definitions. It should be noted that lower courts play an essential
part in the assessment of the quantum of damages awarded for each item of bodily in-
jury claims in liability cases. On this matter, the 2017 Bill (art. 1271) provides for the
establishment of a national database that will bring together the final decisions given by
the courts of appeal across the country on quantum of damages awarded for the com-
pensation of personal injury suffered by victims of road traffic accidents.
Préjudice corporel may take a variety of forms: physical pain (formerly called pretium
doloris), nervous breakdown, distress experienced following physical disablement
and loss of amenities of life. One important detail in respect of the French system
of assessment of damages is that each of these sub-categories of préjudice corporel
constitutes an individually separate and distinct head of damages—assessment of which
is independent of each other—which means that, in practice, a plaintiff can recover a
sum of money for each of them. Since the 1990s, there has been a tendency on the part
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262 The Law of Tort
of the courts to extend the list of heads of damages for pain and suffering linked to phys-
ical injury. Thus, in addition to standard bodily injury claims, plaintiffs have been able
to recover over the years damages for personal distress consequential to AIDS-related
illnesses following infection with HIV (préjudice de contamination); for asbestos-related
anxiety (préjudice d’anxiété); for the loss of sexual potency (préjudice sexuel); and, more
recently, for the impaired ability to establish a family (préjudice d’établissement).
Special categories of loss

Loss of chance
Loss of chance, or perte d’une chance, can be generally defined as a loss of opportunity
of a desired outcome. As a sort of ‘virtual’ damage, loss of chance has the particular
feature that, to be recoverable, it does not necessarily need to have occurred prior to
the claim. However, according to new art. 1238 (2017 Bill), a loss of a chance is recover-
able only where it is the present and certain disappearance of a favourable eventuality.
The doctrine of loss of chance is recognised in both civil and common law systems and
has been applied in a variety of contexts. Some classic illustrations of claims for loss of
chance drawn from case law now follow:
(a) The loss of a chance of competing in a beauty contest owing to the defendant’s act.
(b) The loss of a chance, for the owner of a horse, to win a race when, owing to a
driver’s negligence, the horse is injured and can no longer run in the race.
(c) The loss of a chance, for a litigant, to win a case owing to his lawyer’s negligence
in lodging a claim or lodging an appeal on time.
(d) The loss of opportunity, for a student, to take an examination owing to a bodily
injury caused by the defendant.
(e) The loss of a commercial opportunity owing to a defendant’s negligence.
In French law, before someone suffering a lost chance can recover damages, he must
show that the alleged ‘lost chance’ is ‘real and serious’ and not hypothetical, i.e. there
is a real likelihood that, but for the event causing loss, the future gain or benefit would
have been realised. Thus, it was decided in Erhard v Bennoun (Cass. Civ. 2, 12 May 1966,
D. 1967, 3) that the loss claimed by a 19-year-old victim of an accident, no longer able to
embark on a career as a pharmacist, was purely conjectural at the time of the accident,
since the claimant had just failed the first part of her baccalaureate and, therefore, it was
held that her prospects of becoming a pharmacist were too uncertain and remote.
Over the years, cases involving loss of a chance have consistently been subject to
controversy, both in civil and in common law systems, especially in matters concerned
with medical negligence. The question raised by loss of chance in medical liability cases
is the following: is it possible for an action in tort to succeed when a doctor negligently
fails to inform a patient of a medical condition, thus depriving the patient of a chance
or an opportunity of obtaining proper treatment?
This question is particularly problematic because, unlike classic loss of chance
cases where future actual damage has not yet occurred and remains contingent (i.e.
winning or losing a beauty contest, passing or failing an exam, winning or losing a
case, etc.), in the medical context the event for which loss is claimed is most likely
263
to have actually occurred and the chance for positive remedial action has already
been lost. Indeed, when patients or their dependants are seeking damages for having
lost the chance for a cure or improvement in their condition and, in extreme cases,
for their survival, it has been suggested that what they are effectively claiming for is
compensation for illness, injury, or death. Therefore, the damage caused is the actual
illness, injury, or death which has occurred and not the ‘loss of a chance’ claimed for
a better life or for life itself. Despite this, French courts have widely recognised the
loss of chance in this field by referring to the notion of ‘loss of chance of recovery’
(perte d’une chance de guérison) or, in the case of death, ‘loss of chance of survival’
(perte d’une chance de survie). In fact, as many French authors have argued (see, e.g.,
Viney and Jourdain 2006: 229), what French courts are trying to do in applying the
doctrine of loss of chance in such cases is to make the proof of causation easier for
the victims of a medical negligence by shifting what is to be proved in their favour.
Thus, the plaintiff does not have to prove the causal link between the doctor’s negli-
gence and the actual death or injury, but rather between the doctor’s negligence and
the easier-to-prove, fuzzier notions of loss of chance of recovery or loss of chance of
survival. By shifting the issue of proof of causation from the actual damage to the
loss of a chance, French judges, unlike their common law counterparts, avoid getting
involved with the factual and statistical considerations as to whether, but for the
defendant’s negligence, the claimant would have been in the same situation anyway.
The House of Lords case of Gregg v Scott [2005] UKHL 2 is a good illustration of
how English judges have been much more cautious than their French counterparts
in dealing with loss of chance claims in medical negligence cases. Thus, in a typical
case of a patient whose condition was not correctly diagnosed, which resulted in a
delay in his treatment and, possibly, reduced his chances of being cured, the House
of Lords held that he had not established that, on the balance of probabilities, the
defendant’s negligence had had an effect on the outcome of the disease because it was
held more probable than not that the patient would have been in the same position,
even if his treatment had not been delayed by the defendant’s negligence.
A similar approach was taken more than a decade earlier by the Canadian Supreme
Court in the seminal case of Lawson v Laferrière [1991] 1 SCR 541. Here, a doctor
failed to inform a patient that she had cancer before it was too late and had become
terminal. The claimant was awarded damages only for the psychological distress of
not being informed earlier and for the better quality of life she would have been likely
to enjoy if she had been informed promptly. However, the claim for loss of chance to
benefit from proper medical care was dismissed after a lengthy judgment which still
provides the best summary in the English language of French doctrinal writings on the
issue of loss of chance in the context of medical negligence.
Wrongful life and wrongful birth claims

Can the birth of a child be considered as a recoverable loss? This question has been
debated in a number of legal jurisdictions including the United States (Procanik v Cillo
97 NJ 339 (1984)), England (McKay v Essex Area Health Authority [1982] 1 QB 1166),
and France (Perruche, Cass. Ass. Plén., 17 November 2000, D. 2001, 332). It raises a
variety of legal and ethical issues for which space is not available here to consider fully.
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264 The Law of Tort
However, within this rubric, French courts have had to consider three principal types
of claims:
1. Action brought by parents claiming for the birth of a healthy child following a
failed abortion.
2. Action brought by parents of a child born disabled, claiming that but for the neg-
ligence of the medical practitioner or hospital they would not have to support a
child born with a disability (wrongful birth claim).
3. Claim brought on behalf of a child born disabled that he would have been better
off if he had never been born (wrongful life claim).
Claim 1 is not recoverable under French law since the birth of a child is not
considered in itself as a source of damage (Mlle P. v Picard, Cass. Civ. 1, 25 June
1991, D. 1991, 466).
Under claim 2, parents can usually recover for emotional harm and medical expenses
incurred. However, since the Law of 4 March 2002 on the rights of the patient and the
quality of the health care system, parents can no longer claim for the extra costs of
bringing up a disabled child (art. L114-5 in fine of the Family and Social Action Code).
It is claim 3 which has given rise to most controversy since, it has been argued, what
is being claimed is that the child’s life is ‘a wrong’. In the 2000 case of Perruche, a child
was born severely disabled as a result of German measles having been contracted by
his mother during pregnancy. The Court of Cassation, sitting on this occasion in full
formal assembly, held that the child had the right to claim damages from the blood-
test laboratory and from the doctor who both failed to give the correct information to
the mother in respect of her blood tests, which would have detected her condition and
alerted her to the fact that she had German measles.
Perruche was subsequently taken up and followed (in Cass. Ass. Plén., 13 July
2001, D. 2001, 2325), but provoked such an uproar amongst academics, politicians,
organisations for the rights of the disabled, and the medical profession that it was fi-
nally overruled by the Law of 4 March 2002 which stated in its art. 1 the principle that
‘no one can seek damages for the sole fact of being born’ (principle to be found today
in art. L114-5 of the Family and Social Action Code). However, the European Court of
Human Rights struck a blow to this new legislation by subsequently ruling in Maurice
v France and Draon v France (2005) that the Law of 4 March 2002, by applying im-
mediately to pending cases, had the effect of retrospectively depriving parents of chil-
dren born disabled of the possibility of claiming compensation for ‘special burdens’
arising from their child’s disability and, by so doing, had therefore interfered with the
exercise of the pre-existing rights to compensation which could have been exercised
under the domestic law applicable until that date. As a result of the Strasbourg juris-
prudence, it is assumed today that whereas the 2002 ‘anti-Perruche’ legislation applies
to children born after the entry into force of the 2002 law, i.e., as of 7 March 2002, the
Perruche jurisprudence prevails for all claims filed before 7 March 2002. However, prior
to 2011, there was still uncertainty as to the case of children born before 7 March 2002
for which legal action was introduced after 7 March 2002. This was resolved in Cass.
265
Civ. 1 15 December 2011, where the Court of Cassation upheld the Court of Appeal deci-
sion to apply the Perruche jurisprudence to all children born before 7 March 2002, regard-
less of the date by which the claims were filed. However, this solution adopted by the Court
in 2011 was fiercely criticised for considerably reducing the ambit of the 2002 legislation.
In parallel with these developments, a Law of 11 February 2005 on equal opportunities
for the disabled introduced new provisions with a view to increasing benefits in the case
of children born with a disability. In addition, laws enacted in 2015 and 2016 in the area
of healthcare introduced programmes of prevention and awareness for the disabled, to-
gether with compensation schemes based on the principle of social solidarity.
Ecological damage
Contemporary evolution of the law of civil liability has seen the emergence of new
heads of damages such as environmental or ecological damage. Law 2016-1087 of 8
August 2016 introduced in the French Civil Code (arts 1246 et seq.) a fourth category
of damage, i.e. ecological damage (préjudice écologique). These new provisions deal with
civil liability cases of water pollution, land contamination and damage to biodiversity
by individuals or corporations. Prior to 2016, French courts were faced with a lack of
a clear statutory basis for suing the perpetrators of such damage to the environment.
They relied therefore essentially on the general Civil Code provisions on the law of civil
liability. However, the sinking and massive oil spill from the tanker Erika off the coast
of Brittany in 1999 raised the question of compensation for ecological harm and the
setting of broader rules on environmental liability. In its 2012 final judgment on this
case, the Criminal Chamber of the Court of Cassation, whilst recognising for the first
time the principle of environmental liability, also highlighted the need to introduce such
a principle in the statute book. This evolution as regards environmental liability will be
fully completed once the 2017 Bill is implemented (new arts 1279-1 et seq.).
What is the effect of death on a cause of action?
In the field of tort, French law also recognises the distinction common in many
jurisdictions between (i) transmission to the heirs of causes of action on the death
of a victim, and (ii) death as a cause of independent action on the part of the
dependants.
Under (i), since the landmark judgments in Ch. Mixte, 30 April 1976, D. 1977, 185, an
estate can claim in respect of any losses sustained by the deceased before his death, even
though no action was commenced by the deceased himself before the event. As far as (ii)
is concerned, such an action raises in French law the possibility of a claim for préjudice par
ricochet, i.e. losses suffered by dependants of victims of fatal accidents. Under this heading,
dependants have a cause of action against a defendant to whom a claim in damages can
be made for bereavement, loss of dependency (perte de subsides), and funeral expenses.
The question of who may be considered to be within the class of dependants has
caused some difficulties on account of the absence in French law of any special text
providing a list of persons entitled to recover damages as dependants of the deceased.
It has been left once again to the judiciary to develop legal devices aimed at limiting li-
ability in this context. Faced with the danger of a multiplicity of claimants, the Court of
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266 The Law of Tort
Cassation introduced in 1937 the requirement of intérêt légitime juridiquement protégé,

which, in practical terms, meant that only those able to show a specific blood or legal
relationship between themselves and the deceased could possibly succeed in their claim
(Civ., 27 July 1937, Métenier v Epoux Luce, D.P. 1938, 1.5). Notably, the 1937 ruling had
the effect of excluding, from the circle of dependants, unmarried partners, known as
concubins. However, a divergence of views soon arose on this issue between the crim-
inal and the civil divisions of the Court of Cassation. The Veuve Gaudras v Dangereux
landmark judgment, given in Chambre Mixte in 1970, eventually settled this contro-
versy by agreeing to award damages to the long-term unmarried partner of the victim
of a road traffic accident, stating that under the broad principle of the then art. 1382 of
the Civil Code there was no specific requirement for a pre-existing legal relationship
between the deceased partner and the plaintiff for the latter to recover damages for
losses suffered following death (Ch. Mixte, 27 February 1970, D. 1970, 201).
Today, French courts have inclined to an even more open-handed approach with
respect to dependants by awarding damages to anyone who can establish a loss of de-
pendency and/or a préjudice d’affection (emotional loss), thereby implying a certain
degree of ‘proximity’ with the deceased prior to his death. This development has, as a
consequence, effectively widened the concept of dependency, leading on occasion to
embarrassing social situations. Thus, it is not uncommon nowadays to find both the
deceased’s spouse and mistress claiming side by side in court for economic and emo-
tional loss following the death of their spouse or partner (for an early illustration, see
Court of Appeal of Riom, 9 November 1978, JCP 1979, II, 19107).
C AU S AT ION
The third condition, under arts 1240 and 1241 of the Civil Code, for which a de-
fendant may be held liable for a plaintiff ’s loss is that the plaintiff must prove that the
defendant’s act has caused the damage.
Generally, causation problems arise if, when looking at the damage, it would appear
that this was actually caused by a number of different factors or events. How to deter-
mine, in such a case, which, if any, of these events was relevant, is a question which
must be addressed, so as to be able to hold liable the person responsible for the damage.
This issue has vexed jurists in many parts of the world for years. The problem stems
from the fact that obtaining strict proof of causation is almost impossible, and thus
it will always present inherent practical difficulties. This partly explains why judges’
views on causation are very often muddled or inconsistent since, when faced with the
difficulty of proving causation, courts would rather focus on the need to produce a just
result to the parties involved than display a coherent logical approach. In England, this
concern for justice is clearly seen in Fairchild v Glenhaven Funeral Services Ltd [2002]
UKHL 22. In this case a group of employees had been exposed to inhalation of asbestos
during different periods of employment and while working for different employers
and, following claims for asbestos-related illnesses, it became difficult to attribute li-
ability to one or the other wrongful exposure. However, the then House of Lords held
that claimants could recover damages where they had been working for more than one
267
employer and there was no means of discovering which exposure had caused them to
become ill.
In addressing the issue of causation in cases where there was more than one cause of the
damage, French courts have vacillated between two main tests of causation. The first one,
often referred to as the ‘sine qua non test’, is inspired by theory of equivalence expressed by
the 19th-century German criminalist Von Buri. According to Von Buri’s analysis, every
concurrent event contributing to the damaging result is a ‘cause’, with the proviso that the
damaging result is not cancelled out once any or each of these events is removed. In an
attempt to limit the wide scope of the equivalence theory, the German philosopher Von
Kries proposed another test based on the theory of adequacy. Under this test, a cause will
only be considered relevant if not improbable. Unlike the former, this test presupposes an
element of prioritising between events which may have concurred to produce a damaging
result. The judge hearing the case will have to choose which is the event most likely to have
produced the damage in the circumstances (the cause adéquate).
In considering the case law generated by the French courts on the issue of causation,
it is hard to reconcile the various solutions given in a variety of contexts. However,
looking more closely, in an attempt to categorise court solutions, two types of situations
can be distinguished:
(i) When several persons have caused the damage by one unlawful act committed
in common, each will be held responsible for the whole of the damage, though
amongst themselves they could sue one another for different contributions (and
unless they can show that they could not have caused the damage). This solu-
tion based on the theory of equivalence has been applied in French law to a
number of circumstances such as hunting accidents or accidents caused by a
group of children. The underlying rationale seems to be that the risk undertaken
by the group through its negligent conduct gives rise to liability on the part
of each member of that group (Civ., 5 June 1957, D. 1957, 493, about a group
of huntsmen). Here, French law appears to take its cue again from a German
source. Indeed, the BGB, § 830 (1) provides that where several persons have
caused damage by a wrongful act committed in common each is responsible
for the damage. The 2017 Bill consolidates this approach in its new proposed
art. 1240 of the Civil Code, extending it further to joint tortfeasors ‘exercising a
similar activity’ (such as successive employers).
(ii) When one event has generated a plurality of damaging results (dommages en
cascade). The famous 18th-century French jurist Pothier gave the following well-
known example to illustrate this situation: a livestock dealer sells an infected
cow to a farmer; the cow dies after having contaminated the whole herd; the
farmer goes bankrupt; he then commits suicide. In similar circumstances French
courts will opt for the theory of adequacy by looking for the event which was
the determining factor in producing the ultimate wrongful result. Therefore,
in Pothier’s example, the dealer avoids liability if it would be decided that the
most likely cause for the farmer having committed suicide was his bankruptcy
and not the defective sale of the contaminated cow. In modern times, a similar
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268 The Law of Tort
analysis has been applied to AIDS patients who have died following a chain
of circumstances as follows: a road traffic accident which necessitated a blood
transfusion; the blood supplied to the hospital was contaminated; the patient
was contaminated with HIV following blood transfusion; the patient died from
an AIDS-related disease. Here, the negligence on the part of the organisation
supplying the blood would be held to be the most likely cause of death. By con-
trast, when applying the theory of equivalence, the negligent driver who origin-
ally caused the accident would be held equally liable for the cause of death.
In conclusion, it should be noted that, in recent years, the Court of Cassation has had
to deal with issues of causation in the context of industrial accidents. In Assemblée
Plénière, 24 June 2005, Bull. 7, G, an employee of N, was electrocuted and left
incapacitated whilst trying to move scaffolding with a colleague which then hit an
electrical pylon. In the lower courts, G’s claim was rejected on the grounds that, despite
the employer’s wrongful omission to take all the measures necessary to avoid such an
accident, such an omission was not the determining cause of the accident, which was
in fact due to G’s lack of care in moving the scaffolding. The Court of Cassation did
not concur with this view, based on ‘adequacy of cause’. Applying instead the equiva-
lence test, the court ruled that, although the employer’s negligence was not in this case
a determinant cause, it was nevertheless a ‘necessary condition’ for the damage to have
taken place, thus making the employer liable for the employee’s injury. This example
shows, once again, how causation has been in France, as elsewhere, a fluctuating legal
notion, greatly dependent on factual circumstances and policy considerations.
SP E C IA L R E G I M E S OF L IA B I L I T Y
L IA B I L I T Y F OR T H I N G S I N ON E’ S K E E P I N G
Liability for things in one’s keeping (fait des choses) is governed by art. 1242 alinéa 1 of
the Civil Code which states:
One is liable not only for damages caused by one’s own act, but also for that which is caused
by the acts of persons for whom one is answerable, or by things which are in one’s keeping
[emphasis added].
The last part of art. 1242 alinéa 1 has certainly been, in the history of judicial statutory
interpretation, one of the most debated texts of the French Civil Code. Whereas today
it is no longer at issue that art. 1242 is indeed an instance of strict liability, this inter-
pretation is the result of incremental developments which have taken place between the
end of the 19th century and the first decades of the 20th century. However, the fact that
most of the controversy on the nature of the regime of liability provided for by the then
art. 1384 was settled by the mid-1940s does not mean necessarily that this text is no
longer the subject of legal debate in court and in doctrinal writings. On looking closely
at various law reports it becomes apparent that French litigants are still keen to argue on
the definition of what may be considered as a chose and as a gardien in art. 1242, which
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Special Regimes of Liability 269
accounts for the huge body of case law existing in this area. Even if French rules of statu-
tory construction are rather flexible as compared to other jurisdictions (see in Chapter 3,
Statutory Interpretation), it is questionable as to what degree the wording of art. 1242 can
be stretched to meet new circumstances without betraying the intention of the framers
of the Civil Code who lived within the confines of a more limited agrarian society. On
account of this, art. 1242 cannot be read and understood today without looking at the
fast-evolving case law relating to this text. In an attempt to restore the upset balance be-
tween codification and judicial creativity on this topic, the authors of the 2005 Catala
reform proposals had rewritten this part of the Civil Code by consolidating in part the
existing case law on the subject (arts 1354 et seq. of the proposals). Similarly, the 2017
Bill also introduces a new art. 1243 which incorporates in the Civil Code the main rules
established by the courts in respect of the connected notions of chose and garde.
When considering today the situations in which art. 1242 applies, three questions
need to be addressed:
(i) What is the meaning of chose in article 1242?
(ii) What does garde mean?
(iii) What defences are available to the defendant or gardien when sued for liability?
The meaning of chose

Chose—a developing concept
Originally, when the Civil Code was enacted and during the most part of the 19th cen-
tury, it was held that the term chose used in former art. 1384 alinéa 1 was only intended
to cover the specific code provisions which followed art. 1384, namely art. 1385 on
liability for damage caused by animals and art. 1386 on liability for damage caused by
the collapse of buildings in a ruinous state, thereby restricting the ambit of art. 1384
to those things only. However, as France industrialised, with the concomitant rise of
industrial accidents at the end of the 19th century, and in order to facilitate compensa-
tion for the victims of such accidents without the burden of proving the fault of the em-
ployer, it became necessary to widen the scope of art. 1384, so as to include machinery.
A first step in this respect was taken in Veuve Teffaine (Civ., 16 June 1896, D.P. 1897,
I, 433) where a ship’s engineer was fatally injured by the explosion of the pipe of a boiler
attached to a tugboat. The Court of Cassation ruled that, under art. 1384 alinéa 1, the owners
of the tugboat (also employers, in this case) were liable without the possibility for them as
a defence to use their absence of fault, or the fact that the accident was due to an inherent
defect in the thing, this being unknown to them (the welding of the tube was defective).
With the Jand’heur case, a new and decisive turn took place in the development of
art. 1384, when, at the turn of the 20th century, new problems arose with the arrival of
the first motor vehicle accidents. In Jand’heur v Les Galeries Belfortaises (Ch. Réunies,
13 February 1930, D. 1930, 1, 57), a young girl was run over by a lorry belonging to
the defendant, Galeries Belfortaises. A series of five decisions were made in this case
in which the notion of ‘chose’ in art. 1384 was fiercely debated. This issue of deciding
whether or not the defendant’s lorry was a ‘chose’ under the terms of art. 1384 was
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270 The Law of Tort
crucial since, if this was not held to be the case, the plaintiff (here, the girl’s mother)
would have had to prove the fault of the driver in order to be awarded damages. In
the Courts of Appeal of Besançon (29 December 1925) and, later, Lyon (7 July 1927),
the plaintiff ’s claim failed on both occasions on the grounds that the lorry being, at
the time of the accident, a thing under human agency, art. 1382 was the only relevant
text to be applied and, in consequence, the fault of the driver needed to be proved in
order for the plaintiff to be awarded damages. In a closely argued judgment, the Court
of Appeal of Lyon further held that only damage resulting from an inherent defect of
the object could give rise to an application of art. 1384. The Court of Cassation, in its
1930 final decision in this case, quashing the Lyon Court of Appeal judgment, held in
Chambres Réunies (today Assemblée Plénière):
For the purpose of applying the presumption of liability laid down in article 1384, the law
does not distinguish between things causing damage when handled by man or causing
damage by themselves; nor is it necessary that the damage resulted from an inherent de-
fect in the object.
The Jand’heur decision was groundbreaking. Not only did it establish, under art. 1384,
a presumption of liability against any keeper of a thing which could only be rebutted
by proving circumstances amounting to a case of force majeure (on this notion, see
‘Defences’ below) or any other circumstances not attributable to the keeper (e.g. the act
of a third party), but, also, since Jand’heur, the term chose, as used in former art. 1384
and current art. 1242, has acquired an all-inclusive definition. Nowadays, art. 1242
applies to all choses, whether defective or not, whether moving or inert, whether or not
of a dangerous nature, whether liquid, gaseous, or in solid form, and whether movable
or immovable. However, it must be pointed out that there are notable exclusions from
the general regime of art. 1242 alinéa 1. These are, inter alia, motor vehicles which are
governed by the Law of 5 July 1985 (considered below), as well as nuclear energy and
cable cars, which are both governed by special statutes.
It may be further noted that the Belgian courts took a different approach to dealing
with the concept of chose under art. 1384 of the Belgian Civil Code which was modelled
on the French provision. Indeed, in contrast with French law, since a landmark deci-
sion of the Belgian Court of Cassation, dated 26 May 1904, only damage caused by a
defective object has given rise to liability under art. 1384.
Chose must have played an ‘active role’

It is not enough to prove the existence of a chose; the chose must have been the cause of
the damage or, to use an expression commonly found in decisions, must have played
an ‘active role’ or be ‘the instrument of damage caused’. In other words, there must
be a causal connection between the object itself and the damage caused. In assessing
this further requirement, French judges examine whether or not the object was in the
wrong place (position anormale), even though it was defect-free. For example, it was
decided that a folding chair lying on the terrace of a café in the evening played an ‘active
role’ in the occurrence of damage as being in the wrong place at the wrong time (Pialet,
Cass. Civ., 24 February 1941, D.A. 1941, 129). On the other hand, where a customer in
271
the defendant’s bathhouse fainted and burnt herself on a heating pipe when she fell, the
defendant avoided liability for the accident as it was held that the pipe was in no way
‘acting or involved abnormally’ (Cadé, Cass. Civ., 19 February 1941, D.A. 1941, 211).
In respect of involvement of the object, French courts make certain distinctions,
which can be summarised as follows:
(i) Where damage involves a chose in movement which has made direct physical
contact with the property damaged or the person injured, e.g. a bicycle hitting a
pedestrian, then ‘active role’ is presumed. The onus is then for the defendant to
show that the chose was acting normally or played a ‘passive role’ when damage
took place.
(ii) Where damage involves (a) a chose which is inert, or where (b) there was no
direct physical contact between the chose in contention and the person or thing
damaged, e.g. the wheel of a car which dislodges a stone or a nail which then
breaks a window or hurts a passerby, then in both cases the onus is for the plain-
tiff to prove ‘active role’.
In practice, it is difficult to distinguish between what is inert and what is moving. For
example, it was decided that a trampoline in use was to be considered as inert, the
onus therefore being on the plaintiff to prove ‘active role’. In contrast, in a judgment
given the same day, the Court of Cassation held that an automatically opening garage
door was held to be a moving object where a child was hurt when the door opened,
transferring to the defendant the burden of proof that the object did not play an ‘active
role’ in the damage caused (both judgments in Cass. Civ. 2, 8 June 1994, Bull. civ. II,
no. 151 and 152).
What does garde mean?

The case of Franck
The Franck case gave the Court of Cassation the opportunity to define the second con-
dition of liability for damage caused by things in former art. 1384 alinéa 1: the notion of
garde. In Franck (Ch. Réun., 2 December 1941, DC 1942, 25) a car belonging to Franck
was entrusted to his son. It was stolen on Christmas Eve 1929. In the course of that
evening, the thief, who was driving the car and was never found, ran over and fatally
injured Connot, a postman. In a first judgment in this case (Civ., 3 March 1936) the Court
of Cassation took the view that the garde of the car still belonged to its owner, Franck,
despite the fact that it was in the charge of his son from whose hands the car was stolen. In
so doing, the Court of Cassation was applying the doctrine of garde juridique according
to which the thing’s owner remained as the gardien, whatever the circumstances, and
was thus liable for the damage caused by the thing. The rationale underlying this deci-
sion was an application of the principle of risk in respect of which an owner who takes
the benefit of a thing—here a car—must be responsible for any damage arising out of its
use. However, following the case being sent back by the Civil Division of the Court of
Cassation to the Court of Appeal of Besançon, the latter declared, contrary to the highest
court, that at the time of the accident the gardien was actually the thief, since he had the
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272 The Law of Tort
physical possession of the car at the material time of the accident. On second appeal the
case was referred back to the Chambres Réunies of the Court of Cassation. In a landmark
decision given in 1941, the Chambres Réunies, reversing the prior 1936 Civil Division
ruling and agreeing with the Court of Appeal, held that the definition of the gardien of
a thing is not necessarily related to the legal status of the keeper, but rather to the ‘use,
direction and control’ of this thing at the time of the accident.
The scope of the Franck ruling

Under Franck, liability for damages caused by things is primarily related to its physical
keeping at the time of the accident (garde matérielle).
However, physical keeping is not sufficient. The French terms ‘direction’ and
‘contrôle’, used by the Chambres Réunies, suggest a further power to supervise the
thing. For example, an employee who has the use of a thing does not necessarily be-
come its gardien if he is acting under the supervision of the employer. Only if he is
using the thing contrary to the instructions of his employer, and thus holds control
over it, does he become its gardien. In a more recent illustration, a woman was held
liable for the injury caused to a friend whom she had asked to hang her curtains on
the grounds that she remained the gardien of the stool on which the friend had been
standing when he fell, as he was all along operating on her instructions (Civ. 2, 7 May
2002, D. 2003, somm. 463).
Further, under the Franck ruling, even a temporary use of a thing can transform a
user into a gardien. Thus, it was decided that a person opening a door or a child kicking
a bottle both became gardiens when injury was caused. However, things which are
ownerless and belong to nobody (res nullius) cannot bestow the status of garde: e.g.
the owner of a block of flats could not be held liable when a shower of snow fell from
a roof and hurt someone (Civ. 2, 9 April 1973, Bull. Civ. II, 142.); nor can alpinists be
held gardiens of stones falling beneath them and causing injury as they make their way
in the mountains (Civ. 2, 24 April 2003, D. 2003, IR 1340).
Subsequent developments
Although French courts have over the years adhered to the Franck decision when
deciding who may be considered as gardien, subsequent developments to this case
need to be considered when refining the definition of garde:
From garde matérielle to garde intellectuelle: over time, garde has become a very ab-
stract concept in the sense that the power of supervision can be determined even in
the absence of any effective physical control over a thing. Thus, it has been held that
a lack of discernment and a state of unconsciousness does not necessarily exclude the
possibility of garde being applied: a young child (infans) can be held to be a gardien
despite not being able to understand the consequences of his or her acts (Gabillet, 9
May 1984, Bull. civ. Ass. Plén, 1); similarly, in Trichard (cited above) the defendant was
held to be the gardien despite him suffering from an epileptic fit at the material time
of the accident. Furthermore, in a case where the driver of a car entrusted the driving
273
wheel of her car to her passenger friend, so as to have a rest, following which an acci-
dent occurred, it was decided that the driver, despite having fallen asleep and no longer
being at the wheel of the car, had nevertheless retained the garde of the vehicle at the
time of the crash (FGA v Rebeuh, Civ. 2, 8 November 1989, RTDC 1990, 92).
Garde de la structure, garde du comportement: in the field of product liability French
courts have further distinguished between gardien de la structure (the producer/manu-
facturer/owner) and gardien du comportement (the user of the product), as a way in
which to reintroduce a specific regime of liability for defective products or products
which, by their nature, are intrinsically dangerous. Thus, the owner/manufacturer of
oxygen bottles was held liable when one of the bottles exploded while being transported
(Civ. 2, 5 January 1956, D. 1957, 261). This distinction has been further applied to cases
involving the explosion of highly pressurised glass bottles, such as fizzy drinks, or the
implosion of a television set, for which in both cases the distributor/manufacturer was
held liable. But, in contrast, judges have refused to extend liability to the manufac-
turer of cigarettes in a case where a smoker died from his heavy smoking habits. It was
held, in such circumstances, that the smoker’s conduct was to blame and that a pack
of cigarettes, unlike bottles of oxygen or over-pressurised glass bottles, did not have
within itself a ‘dynamism of its own’ capable of creating injury without firstly having to
be used (SEITA v Consorts X, Cass. Civ. 2, 20 November 2003, Bull. II, 355).
Defences
Force majeure
The gardien or keeper of a thing which has caused damage will be able to avoid liability
if it can be shown that at the relevant time there were some external circumstances that
the keeper could not have avoided or have reasonably foreseen (combined conditions
of unforeseeablity and unavoidability). These circumstances are known in French
law as cas fortuit or force majeure. The concept of force majeure was originally taken
from the law of contract (Civil Code, former art. 1148; since 2016, art. 1218) and was
extended to the law of tort to be used as a defence for damage caused by things (but this
defence could also be used by a defendant sued under former art. 1382 in the context
of fault-based liability). For clarity purposes, the 2017 Bill introduces a specific defin-
ition of force majeure for extra-contractual liability taking into account recent trends
observed in case law (see below).
Because the circumstances of force majeure are external to the keeper of a thing,
it cannot be raised as a defence to show that there was a defect in the thing or that,
at the material time, the keeper’s actions were beyond his/her own control by reason
of any ‘internal’ physical circumstances such as, e.g., a heart attack or an epileptic fit.
Over time, in weighing up the other circumstances allegedly amounting to force ma-
jeure, French judges put more emphasis on whether or not the event could have been
avoided, in spite of the fact that it could have been foreseen. So, e.g., in the case of a
storm, gales, or black ice, circumstances which most of the time can be foreseen, but not
necessarily prevented, judges would determine the issue by looking closely at whether
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274 The Law of Tort
the defendant in these particular circumstances was in a position to have prevented

the damage. If all reasonable, necessary steps had been taken to avoid the damage,
then this would usually have been sufficient for the defendant to argue force majeure
and escape liability. However, in 2006, the Full Assembly of the Court of Cassation
cast a doubt upon these developments by switching back to the combined require-
ment of unforeseeability and unavoidability in the assessment of the events amounting
to force majeure (Ass. Plén. 14 April 2006, two decisions, one in tort, Brugiroux, the
other in contract, Mittenaere). Such a rigorous approach was criticised by a majority
of scholars. Indeed, they argued that in requiring in all cases—in contract as well as
in tort—a combination of these characteristics, the highest court was unrealistic, for
there are predictable events which may constitute force majeure when it is not possible
to prevent them, or even avoid their harmful effects, regardless of the precautions taken
by the defendant. The 2017 Bill seems to go back to a more sensible and practical view-
point by laying down in its proposed art. 1253 that, in tort, force majeure is ‘an event
whose occurrence and consequences could not have been avoided [emphasis added]
by taking appropriate measures’, not mentioning the requirement of predictability.
Today, once force majeure is found, this will generally free the defendant entirely
from liability. In the past, the effect of a finding of force majeure was merely to reduce
the amount of damages awarded, to the extent that the chose in former art. 1384, or the
defendant’s own negligence under former art. 1382, contributed to the accident or the
damage (Lamoricière, Cass. com., 19 June 1951, D. 1951, 717; Houillères du Nord, Cass.
Civ., 13 March 1957, JCP 1957, II, 10084).
Act of a third party (fait d’un tiers)

Two situations need to be distinguished:
(i) Where the act of a third party meets the characteristics of an event of force ma-
jeure as outlined above, then the defendant will not be held liable for the damage
at all (solution consolidated in new proposed art. 1253 of the 2017 Bill).
(ii) Where two or more persons (including the defendant) contributed to the
damage, then, under the principle of obligation in solidum, they will all be held
responsible to pay for the damage in its entirety. In practice, this means that the
party who was sued (the solvens) will have to pay the damage in full but will
then have recourse against one or more of the other parties for their part in the
damage (action récursoire) (see further new proposed art. 1265 of the 2017 Bill).
Contributory negligence (fait de la victime)

Prior to 1982, in circumstances where a defendant could neither have foreseen nor have
avoided the act of a plaintiff or of a victim of an accident, then liability was avoided
in full. However, if it could have been shown that the accident or damage was due in
part to the defendant’s act and in part to the plaintiff ’s or victim’s own contributory
negligence, the damages awarded to the plaintiff would have been reduced. However,
in the 1982 Desmares decision, where two elderly pedestrians were knocked over by
275
the defendant’s car when attempting to cross a busy road not at a pedestrian crossing,
the Court of Cassation excluded the possibility of the damages awarded to the injured
couple being reduced for their contributory negligence (Cass. Civ. 2, 21 July 1982).
Desmares proved to be a very controversial decision in so far as drivers were put under
a great deal of pressure in circumstances when accidents were caused in part by the
gross negligence of the victim. Indeed, in such cases, as contributory negligence was
no longer a defence, the only recourse left was to establish that the act of the injured
party amounted to an event of force majeure. The rigid approach taken in Desmares
nevertheless had the effect that the lower courts ignored the Court of Cassation ruling
and so continued to apply the traditional rules of contributory negligence in respect of
personal injuries sustained in road traffic accidents. This unsustainable state of affairs
pushed the legislature to intervene in 1985 so as to clarify the system of compensa-
tion for victims of road traffic accidents (Law of 5 July 1985 on road traffic accidents;
see below). In 1987, Desmares was also overturned by Mettettal (Civ. 2, 6 April 1987,
D. 1988, 32), which marked a return to the traditional approach to contributory neg-
ligence, but only in cases other than accidents caused by road motor vehicles since the
latter were governed by the 1985 Law, which remains in force.
Defences under the Law of 5 July 1985 on road traffic accidents

The law passed by the French Parliament on 5 July 1985 (known as Loi Badinter) was
designed to improve the position of the victims of road traffic accidents and to speed
up compensation procedures. However, concern for a rational legislative scheme in
this area was not new. Already, in 1964, a Commission had been set up to look at the
issues raised by traffic accident compensation and examine proposals made in this re-
spect by Professor Tunc (Tunc 1983) who had written extensively on this matter and
had been crusading for years for reform to take place. However, until 1985, all attempts
to reform the law failed on account of the hostility of the legal profession who feared
that cases in this area would no longer be litigated in the courts if a new system of auto-
matic compensation for victims of road traffic accidents was introduced.
Surprisingly, in contrast to what had been expected, the 1985 Law has generated
far more litigation than originally anticipated. This has been mainly due to the open-
textured nature of its principal provisions—arts 1 to 6 (these articles of the 1985 Law are
codified in the 2017 Bill as new proposed arts 1285–1288 of the Civil Code). According
to its art. 1, the 1985 Law is concerned with the victims of road traffic accidents in
which a motor vehicle is ‘involved’ or, in French, impliqué. The definition of what is a
motor vehicle is quite wide and includes such vehicles as cars, lorries, coaches, buses,
motorbikes (but not bicycles), and also tractors or road sweepers. However, trains and
trams running on their own tracks are expressly excluded by art. 1. Impliqué is a term
which has given rise to much discussion in court. According to the latest case law, a
vehicle is impliqué in the accident when it has the effect of disrupting the traffic, even
though it may have been stationary at the time of the accident and even though there
was no physical contact between it and the victim. Since the Law only deals with ‘road
traffic accidents’, accidents occurring on fair grounds, although possibly involving
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276 The Law of Tort
motor vehicles, do not fall within its scope. Yet, it has been held that accidents taking
place on private roads, ski slopes, farmlands, or race circuits are to be considered as
‘road traffic accidents’ and therefore are included within the provisions of the 1985 Law.
As far as defences under the 1985 Law are concerned, art. 2 provides that force
majeure and acts of a third party no longer constitute a valid defence against injured
parties who are victims of road traffic accidents—this provision includes injured
drivers. Furthermore, according to art. 3, in respect of pedestrian or vehicle passenger
victims, contributory negligence on their part is not a defence for the perpetrator of
the injury and they are all entitled to full compensation for personal injury irrespective
of any fault they may have committed, unless it can be proved that their fault was the
sole cause of the accident and that it can further be classified as ‘inexcusable’. Faute in-
excusable is a concept borrowed from labour law which has been defined as being ‘de-
liberate and of exceptional seriousness, exposing the person at fault to a danger that he
or she should have been aware of ’(Ouradi v Gabet, Cass. Civ. 2, 20 July 1987, Bull. Civ.
II, 160). However, the Court of Cassation interprets faute inexcusable in a very narrow
way. Foolish behaviour on the part of the plaintiff victim will not suffice as evidence
constituting such a degree of fault. Thus, it has been held that the act of an intoxicated
victim who crosses the highway and stands on it for a while, at a place where there was
no light and when it was raining, is not to be considered as ‘inexcusable’ (Ass. Plén.,
10 November 1995, D. 1996, 633). The same solution applies to failure by an injured
passenger to wear a seat belt (Civ. 2, 20 March 1996, Bull. Civ. II, 68, 43.). Victims less
than 16 or more than 70 years old and those who have been held permanently disabled
or incapacitated to at least 80 per cent are entitled to full damages in all circumstances,
notwithstanding their faute inexcusable, except if they deliberately incurred the harm
suffered such as, e.g., in the case of an attempted suicide. It should be noted that art. 3
provisions which have just been outlined above do not apply to injured drivers who,
under art. 4, can be held as being contributorily negligent. As far as damage to property
is concerned, under art. 5 of the Law, contributory negligence can be held against all
victims of road traffic accidents, whether drivers or pedestrians, the effect of which is
to reduce or exonerate from damages the party held liable.
V IC A R IOU S L IA B I L I T Y
Preliminary comments
Vicarious liability, which is examined here, is not the only instance existing in the
French civil law of ‘liability for the act of another’ (fait d’autrui). Under new art. 1242
alinéa 4 of the Civil Code, parents are also liable for the acts of their children. Parents’
liability has over time become a case of strict liability, especially since the landmark
judgments given by the Court of Cassation in Bertrand (Cass. Civ. 2, 19 February 1997,
D. 1997, 265) and in Levert (Cass. Civ. 2, 10 May 2001, D. 2001, 2854). Today, there is
little margin for manoeuvre for parents to avoid liability for the acts of their children,
even when the child is not held to be at fault or was not under their supervision at the
time of the damage. According to the Court of Cassation, ‘only force majeure and the
27
contributory negligence of the injured party can free a father and mother from liability
for damage caused by children less than 18 years of age who are still living with them’.
However, the 2017 Bill, apart from removing the former requirement of ‘cohabitation’
between parents and child, provides for specific situations where parents can no longer
be held liable, i.e. (i) when the child is under the care of a guardian or (ii) when a
person has been entrusted by judicial or administrative decision with organising the
child’s life on a permanent basis (new proposed art. 1246). More generally, since the
landmark case of Association des centres éducatifs du Limousin v Blieck (Ass. Plén., 29
March 1991, D. 1991, 324), there is now in French law, under art. 1242 of the Civil
Code, a general principle of liability for acts carried out by persons who are in the care
of institutions or organisations where patients or residents are supervised on a long-
term basis and in a structured environment. The Blieck principle has been applied to
mental institutions, sport associations, and homeless communal shelters. The 2017 Bill
proposes to introduce the Blieck principle into the Civil Code, in a new art. 1247.
Turning now to the specific question of vicarious liability, the liability of employers
will be addressed below in terms of matters regarding definition, judicial interpret-
ation, and the scope of the liability.
Defining employers’ liability

In French law, employers or masters (known in French civil law as maîtres or
commettants) are vicariously liable for their employees or servants (domestiques or
préposés) when they have committed a tort ‘dans les fonctions auxquelles ils les ont
employés’ (Civil Code, new art. 1242 alinéa 5). The search for a satisfactory test to be
applied when deciding whether or not an employee is acting ‘dans les fonctions . . .’ has
generated as much debate in France as in the common law jurisdictions when trying to
define the English phrase, ‘in the course of employment’. In both jurisdictions, judges
have had to face linguistic difficulties in that expressions such as ‘course of employ-
ment’, in English, and ‘dans les fonctions’, in French, do not necessarily display their
legal content purely by virtue of their semantic meaning. Thus, in both jurisdictions,
it has not always been easy to decide with certainty whether or not an employee was
indeed acting in the course of employment. For example, should an employer be held
vicariously liable in situations where an employee carried out a criminal act whilst at
work, or where an employee, despite having been warned against doing something,
nevertheless went ahead and did it?
In considering the content of the terms of art. 1242 alinéa 5, French courts have
used a case-by-case approach, not so dissimilar from their common law counterparts,
examining in detail factual circumstances and, when necessary, distinguishing be-
tween cases, with a view to applying the most suitable criterion of liability. In so doing,
French judges have attempted to provide, under the guise of logical analysis, a just
and practical remedy for those suffering as a consequence of wrongs perpetrated by
employees. Here again, the ‘risk doctrine’ advocated by Saleilles and Josserand has over
time legitimated the idea that employers, who introduce a risk in carrying out an en-
terprise, incur liability if loss is caused in the course of that enterprise. Importantly, it
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278 The Law of Tort
was generally thought that employers, being the stronger parties in the employment
relationship, were the ones who, through liability insurance, could provide the most ef-
fective means of redress. Deterrence of future harm was a further major consideration
underlying the way French courts dealt with vicarious liability. Because employers
were under a duty to provide a safe environment in the workplace, they have been
considered to be the most able to enforce regulations and ensure efficient supervision
at work. Holding employers vicariously liable for the wrongs of their employees was
thought to encourage employers to take such steps as necessary to reduce the risk of
future harm.
Judicial interpretation relating to employers’ liability

Before 1960, the second civil division of the Court of Cassation took a restrictive view
on the connection to be established between the wrongful act of employees and their
employment. Indeed, for that division, there had to be a strong causal connection be-
tween the employees’ duties and the act causing damage (Civ. 2, 1 July 1954, D. 1954,
628). So, where an employee was acting without permission and for a purpose unre-
lated to his employment, such a causal link was missing and the employer was free from
liability. Under this test of causation, it was relatively easy for an employer to avoid li-
ability for the tortious act of an employee by showing that the act had no relation to
the tasks assigned to the employee who was furthermore acting without permission.
However, before 1960 and in contrast to the civil division, the criminal division of the
Court of Cassation, when dealing with vicarious liability in cases where the employee
had been charged with a criminal offence carried out whilst at work, took a much
wider interpretation of the phrase ‘dans les fonctions’. Under the criminal division test,
employers were held vicariously liable where the criminal offence was only made pos-
sible on account of facilities enjoyed by the employee by reason of his employment. In
practical terms this meant that, where the criminal act was carried out in the work-
place and during hours of employment, this was sufficient to make a case for tortious
liability against the employer (see, e.g., Crim. 5 November 1953, D. 1953, 698, where a
cinema owner was held vicariously liable for the act of one of his employees who, while
showing a woman the way to the lavatory, raped and killed her).
From 1960 to 1988, in a series of five decisions given in full assembly, the Court of
Cassation struggled to resolve the divergence of view existing between the criminal and
the civil divisions of the Court as outlined above. The judgment in Société d’assurances
La Cité v Héro, Ass. Plén. 19 May 1988, D. 1988, 513 eventually settled the controversy.
Here, an insurance broker employed by the insurance company La Cité was charged
with embezzling sums taken from insurance policies sold door to door. Héro was a bor-
derline case in the sense that, although this insurance broker was acting in part without
authority and for his own purposes, he was still collecting and registering policies for
the benefit of the insurance company for which he was working. In other words, he was
not acting completely outside the scope of his functions but rather beyond this scope,
what is known in French as abus de fonctions. Consequently, the test laid down by the
court in Héro was that an employer was not to be held vicariously liable where the
279
employee was acting (i) completely outside the scope of his employment, (ii) without
authorisation, and (iii) for personal purposes (now codified in the 2017 Bill in new
proposed art. 1249 alinéa 3). In a subsequent case it was held that a combination of
these three necessary conditions had not been met where a bank employee was held
guilty of misappropriation of funds and, in consequence, the bank was held liable for
this act (Civ. 2, 8 June 1995, Bull. civ. II, 53).
The same outcome was applied where an employee stole goods entrusted to him by
his employer during working hours and in the workplace (Crim., 16 February 1999,
JCP 2000, I, 199, 11). In both the bank case and the stolen goods case, although the
employees were acting without permission and for personal purposes, their wrongful
acts were not carried out completely ‘outside the scope of their actual employment’
and, therefore, one of the three conditions in Héro was missing, thus ascribing liability
to the employer.
The scope of employers’ liability

As for fait des choses, art. 1242 alinéa 5 is also an instance of strict liability. Once it
can been shown that the employee has acted within the course of his employment
as defined earlier, employers cannot avoid liability unless proof can be given that the
employee’s act amounted to circumstances of force majeure. Arguing the absence of
any negligence on their part or on the fact that they were not on the premises when the
wrongful act of their employee was carried out is not a defence.
One way employers would be able to avoid liability is to show an absence of an employ-
ment relationship (lien de subordination) between them and their alleged employees.
However, French courts have restrictively interpreted attempts by employers to avoid
liability in this respect. For example, the absence of any formal contract of employment
will not suffice as a defence. Thus, it was decided—in a case where A, a helper, had hit
customers when hired on an informal basis for the summer vacation by B, a restaurant
owner—that the employer/employee relationship as per the then art. 1384 alinéa 5
did not need to have formal expression for lien de subordination to exist; nor did it
need to have been based on a long-term arrangement or indeed was there any need
for a salary to have been paid. All that was required for the employer to be held liable
was the power on his part ‘to give orders or directives’ (Bettembourg, Crim., 14 June
1990, D. 1990, IR, 208. See also the 2017 Bill which adopts this definition in art. 1249
alinéa 1). This ‘power of order and directive’ has been further extended to independent
contractors or to professionals who, despite their independent status, are nevertheless
assimilated within the term ‘employees’ where they have placed themselves, even tem-
porarily, under the authority of the defendant employer.
Finally, in consequence of the Costedoat case (Ass. Plén., 25 February 2000,
JCP 2000, II, 10295), once the employer has been found vicariously liable, only
he, and not his employee, can be required to pay damages in compensation, even
though the employee was found to be negligent. Prior to Costedoat, there was the
possibility given to the injured party to seek damages from either the employer
or the employee who then had recourse against each other. Generally, it was the
280
280 The Law of Tort
employer who was pursued for money, vicarious liability being then a way to guar-
antee payment against the limited means of an employee. However, it was formerly
still possible to sue the employee where recourse to the employer was not possible
for whatever reason. Since Costedoat, the nature of employer liability has moved
towards a regime of individual liability, employers now being liable for themselves
only and not as guarantors for the vicarious acts of their employees. In spite of
this, recourse by the employer against the employee for his negligent act still lies
in contract law, within the contract of employment, and in criminal law, when the
employee’s wrongful act also constitutes a criminal offence.
Chapter References
and Further Reading
Bell, J., Boyron, S., and Whittaker, S., Mazeaud, H., La Faute Objective et la
Principles of French Law, Oxford University Responsabilité sans Faute, Paris: Dalloz,
Press, 2008, Ch. 10, 360–417. 1985, 13.
Cartwright, J., Vogenauer, S., and Moreteau, O., F., ‘France: French Tort Law
Whittaker, S., Reforming the French Law of in the Light of European Harmonization’,
Obligations, Oxford: Hart Publishing, 2009. Journal of Civil Law Studies, 2013, Vol. 6
Catala, P., and Weir, T., ‘Delict and Torts: a (2), 759–801.
Study in Parallel’, Tulane Law Review, 1962– Redmond-Cooper, R., ‘The Relevance of
63, Vol. 37, 573; 1963–64, Vol. 38, 258 and Fault in Determining Liability for Road
663; 1964–65, Vol. 39, 701 and 734. Accidents: The French Experience’, ICLQ,
David, R., et al. (eds), International 1989, Vol. 38, 502.
Encyclopaedia of Comparative Law, XI (A. Tunc, A., ‘The French Law of Traffic Victims’
Tunc), Torts, Kluwer Law, 1986. Compensation: the Present and the
Giliker, P., ‘Codifying Tort Law: Lessons from Possible’, AJCL, 1983, Vol. 31, 489–98.
the Proposals for Reform of the French Civil Van Dam, C., European Tort Law, Oxford
Code’, ICLQ, 2008, Vol. 57, 561–82. University Press, 2014.
Markesinis, B. S., ‘The Not So Dissimilar Tort Viney, G., and Jourdain, P., Les Conditions
and Delict’, LQR, 1977, Vol. 93, 78–123. de la Responsabilité Civile, LGDJ, 2013.
Marshall, D., ‘Liability for Pure Economic von Bar, C., The Common European Law of
Loss Negligently Caused— French and Torts, Vol. 1, Oxford: Clarendon Press, 1998.
English Law Compared’, ICLQ, 1975, Vol.
24, 748–90.
281
15
PROPERT Y LAW
Le but de toute association politique est la conservation des droits naturels et imprescriptibles
de l’homme. Ces droits sont la liberté, la propriété, la sûreté et la résistance à l’oppression.
Declaration of the Rights of Man and the Citizen, 26 August 1789, art. 2.
M A R K I N G T H E B OU N DA R I E S
The object of this preliminary part is to introduce readers to some basic definitions,
notions, and concepts in French property law, a subject known to French lawyers as
‘droit des biens’ or ‘law of things’. Here again, the Civil Code is the starting point for
studying the subject. It should be noted that apart from a series of one-off reforms
in this field, property law has never been thoroughly reformed since the Napoleonic
codification. As a result, in some places, the Code still reflects a past society whose
population was predominantly rural and where wealth consisted mainly in real es-
tate. Nevertheless, behind this apparent inadequacy of the Civil Code, it has over the
years presented a formidable capacity to adapt to new type of wealth, due to the fact
that it brings together in this area of law a series of overarching principles and inclu-
sive concepts. However, in 2006 a working group was set up under the auspices of
the learned French legal society, Association H. Capitant, with the view to drafting a
proposal for reform of Book II of the Civil Code in order to clarify the law of property
rights. The new breakdown of Book II of the Civil Code proposed by the Association
was presented to the Ministry of Justice on 12 November 2008; at the time of writing
the present chapter, these proposals had still not been implemented. Nevertheless,
French courts have sometimes relied on the Capitant’s preliminary draft to clarify and
update some provisions of the Code dealing with property.
T H E C I V I L C ODE : A B R E V IA RY F OR OW N E R S
The Civil Code has been described as a ‘breviary for owners’ (Halperin 1996) on
account of the fact that two out of a total of its three original parts were devoted to
the law of property. Indeed, whilst Book II deals with categories of property and the
ways ‘things’ are enjoyed and managed, with a strong emphasis placed on immov-
able property, Book III is concerned with the different ways ‘things’ are acquired or
transferred such as, e.g. through contract or inheritance. However, Book III is, in fact,
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282 Property Law
mainly concerned with the law of obligations and the law of inheritance, and includes a
number of provisions dealing with movable property and the concept of possession. In
2006, when the law relating to security interests was restated, Book IV was added to the
original text of the Civil Code, fragmenting even further the body of rules concerned
with things.
It would therefore be wrong to assume that in France, because the law of property
is stated in a code, it is therefore more systematically organised than its English coun-
terpart. However, the two systems still considerably differ in so far as, unlike England,
the French law relating to land and the rules concerned with things other than land did
not develop separately. Thus, droit des biens, in French law, is treated as a single body of
rules both in the statute book and in textbooks. One will not find in French law schools
two different sets of books for real and personal property.
Moreover, in contrast to English law, the French law of property is, to a certain de-
gree, less dense and easier to grasp. This is due to the fact that the boundaries of the
subject are, in France, relatively well defined. Indeed, the central focus in French law
is on the nature and characteristics of the right of ownership, its limits, and its distinc-
tion from another key concept, the notion of possession. Leases are not part and parcel
of the subject since a lease in France is less a property interest than a contract and, as
such, belongs to the area of contractual obligations. To distinguish further, there is in
French property law no juxtaposition of legal and equitable interests and no law of
trust either, both of which contribute considerably to reducing the burden of com-
plexity English law students have to surmount when studying property law.
T WO F U N DA M E N TA L C ON C E P T S :
OW N E R SH I P A N D P O S SE S SION
In French legal theory, ownership and possession represent two fundamental separate
concepts. Whereas ownership is defined as being the legal relationship of a person to
a thing, possession is the factual situation which describes the physical control of a
person over the thing. In practice, however, since in most cases the owner of a thing
is also in possession of it, the distinction is not apparent. At the least, as suggested by
Carbonnier (1992: 212), ‘possession (the fact) is the shadow of ownership (the right)’.
It is only when the owner becomes separated from his/her thing, either voluntarily
or without his/her consent, that the distinction between the two becomes relevant.
In such a case, the owner might even, under certain circumstances, lose his/her right
to own the thing to the benefit of the person who might have found or purchased it.
In this case, the law will paradoxically treat the one who possesses the thing as the
true owner. In this respect, possession not only creates a presumption of title, it may
also lead the possessor to become the true owner after a lapse of time. This process of
acquiring ownership by long possession is called in French ‘prescription acquisitive’ or
‘usucapion’. However, as to be seen later, the legal recognition of a possessor as owner
is subject to a number of other necessary conditions which vary with the nature of the
thing involved.
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Marking the Boundaries 283
T H E C ON C E P T OF PAT R I MOI N E
Definition and functions of patrimoine
In French property law, the rights of individuals which can be assessed in terms of
wealth— positive or negative— belong to their patrimoine. A person’s patrimoine
consists of rights in rem (property rights) and rights in personam (obligations). In the
context of patrimoine obligations are seen not just as a burden on a debtor, but also in
counterpoint as an asset in the hands of a creditor. Hence, in French legal terminology
this dual aspect is reflected in the combined use of two separate terms to refer to a
debt: the dette (the debtor’s obligation) and the créance (the creditor’s asset). Rights of
no pecuniary value, such as family rights, are extra-patrimonium rights and, as such,
do not belong to a person’s patrimoine.
The distinction between rights in rem and rights in personam is derived from ancient
Roman procedural laws. During the course of the 2nd century, it was developed by the
jurist Gaius whose famous tripartite classification of all the laws into ‘persons’, ‘things’,
and ‘actions’ (i.e. obligations) was adopted by the Napoleonic Code in the 18th century.
The concept of patrimoine, albeit not currently defined in the Civil Code, fulfils a
number of functions in French property law. It is used to explain:
(i) The principle of ‘universal’ succession whereby both assets and liabilities are
transmitted as a whole to the heirs.
(ii) The extent and nature of creditors’ interest in the debtor’s estate: under arts
2284 and 2285 of the Civil Code, the debtor’s patrimoine is the ‘common pledge’
of his creditors, the debtor being bound out of all his property, whether mov-
able or immovable, existing and to come.
(iii) The principle of ‘real subrogation’ according to which, when a property is sold,
the property received in exchange for it takes its place in the patrimoine and is
subject to the same regime.
Aubry and Rau’s conception of patrimoine

In modern times, the doctrine of patrimoine was developed by Charles Aubry (1803–
82) and Charles Frédéric Rau (1803–77), two law professors of the University of
Strasbourg who later became judges at the Court of Cassation. In their 1873 course
on French civil law, Aubry and Rau adopted a very subjective approach to patrimoine
characterising it as an indivisible legal entity (universalité de droit) attached to the
person.
Under Aubry and Rau’s conception, any individual could only have one patrimoine,
which meant that businessmen, for example, could not exempt their personal assets
from liability for their business debts. Thus, until 1985 when the law was changed, it
was not possible, in French law, to devote a certain proportion of one’s assets to a par-
ticular commercial purpose in the form of a patrimoine d’affectation (a fund intended
for a special purpose). In this respect French law was at odds with a number of other
civil law systems such as Germany and its concept of sondervermögen. To address and
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284 Property Law
remedy this legal constraint, French businessmen used the framework of the law of
limited partnership to operate their businesses, thereby allowing for a distinction and
separation between their personal and business debts.
However, the French subjective concept of patrimoine has been on the decline since
the introduction by the Law of 11 July 1985 of the EURL (followed by the EIRL in
2011), allowing for a sole-trader enterprise to limit their liability without the need to
establish a full-fledged company (art. L 526-6 of the Commercial Code). More signifi-
cantly, the Law of 19 February 2007 (revised in 2008 and 2009) has revived the Roman
concept of fiducia in French law. The new fiducie is considered below in more detail.
A SU M M A DI V I S I O : M OVA B L E A N D I M M OVA B L E P ROP E RT Y

General considerations
The basic classification of ‘things’ known in modern civil law systems derives from
Roman law. In Ancient Rome, one of the most important divisions of things was that
between res mancipi and res nec mancipi, a distinction based on the economic value
of the thing. Under such a distinction, agricultural land, slaves, and animals, being
an essential part of the agricultural economy, belonged to the category of res mancipi.
Another distinction was that between things in commercio, capable of being owned
by individuals, and res nullius those which were not. For example, temples and tombs
which belonged to the gods were known as res nullius divinis juris and could not be
owned by individuals.
However, it was the distinction made between movable and immovable property,
based on the presence or absence of physical mobility of the thing, which was adopted
by French law. Thus, art. 516 of the Civil Code states: ‘All property is movable or im-
movable’. From the Middle Ages up to the 1789 Revolution, this summa divisio, or
fundamental distinction, reflected pure economic considerations. Only immovable
property was considered to be worthy of legal protection as being solely capable of
productive input as well as a sign of wealth. On the contrary, movable property had an
inferior status and was not afforded legal protection as shown by the then maxim res
mobilis, res vilis. In fact, movable items had no proper legal identity not being separated
from the person owning it: mobilia sequuntur personae. Today, through the develop-
ment of commercial transactions, the progressive recognition of intellectual property
rights and the birth of the art market, movable things have become as much relevant to
physical wealth in the modern age as immovable property.
Difference in treatment between movable and immovable property

The sharp differentiation in legal status accorded to movable and immovable prop-
erty is, to a degree, still reflected in the Civil Code with a different prescriptive
regime applying to each category. Thus, different sets of rules govern acquisitive
prescription and transfer of property in each domain (see below). Moreover, in
case of a dispute, the category to which the thing belongs will determine the court
285
Marking the Boundaries 285
in which the case will be heard (compétence territoriale), the principle being that
any litigation related to movable property falls within the jurisdiction of the court
of the place where the defendant is domiciled (Code of Civil Procedure, art. 42);
for immovable property such as a building it will be the court of the place where
the building is located (Code of Civil Procedure, art. 44). However, as mentioned at
the beginning of this chapter, despite the existence of separate treatment accorded
to each category, in France, the distinction between land and other classes of
assets has never, as in England, developed into two separate branches of the law of
property.
Classification
According to art. 517 of the Civil Code, immovable property consists principally
of land including whatever is built upon it (e.g. a building) or planted in it (e.g.
trees, crops, vegetables, fruit). Movables are anything which can be moved from
one place to another, including animals. However, the law has fictitiously extended
the status of ‘immovable’ to movable things when these are considered as adjuncts
to land by virtue of an economic relation linking the two, or in circumstances
where the owner is deemed to have attached them to his property. This category
of things is called immeubles par destination (Civil Code, arts 524 and 525). It
includes animals and machinery used in agriculture and all sorts of equipment
used in specific industry so long as they are absolutely necessary to ‘the service
and exploitation’ of the land to which they are ‘attached’ and that they already
belong to the one who owns the land. In the context of a household, immeubles
par destination consist of things the owner has wished to be part of the main
structure of the building as things placed ‘à perpétuelle demeure’ such as wood
panelling and mirrors fixed to the wall or statues displayed in a ‘niche’ (alcove)
(Civil Code, art. 525). In respect of the notion à perpétuelle demeure the full as-
sembly of the Court of Cassation ruled, in the landmark case of Ville de Genève et
Fondation Abegg v Consorts Margail (1984), D. 1985, 208, that frescoes detached
from the wall of a chapel on which they had been painted and, then, moved to
Switzerland where some of them were acquired by the Geneva Museum, were no
longer considered to be immovable, whether by ‘their nature’ or by ‘destination’,
but had become movable property, thereby being under the jurisdiction of the
Swiss law courts.
Prior to concluding on this point, it is important to note that the terms ‘immovable’
and ‘movable’ do not refer only to things which are material objects. Thus, under art.
529 of the Civil Code (meubles par détermination de la loi), movables also extend to
non-material objects such as copyright, patent rights, shares in a company, business
goodwill, life annuities (rentes), and other rights related to movable property such
as pledges and bailees’ interests. Immovable property also includes real interests and
securities such as usufructs, servitudes, and hypothecs (Civil Code, art. 526 (immeubles
par l’objet auquel ils s’appliquent)).
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286 Property Law
T H E R IG H T OF OW N E R SH I P
Prior to exploring the nature and typical characteristics of ownership in French law, a
few linguistic points of definition need to be considered.
First, the term ‘propriété’, used in French legal terminology to describe ownership,
comes from the Latin word proprietas which suggests the exclusive holding of the thing
to the exclusion of everybody else. Moreover, propriété encompasses both the thing
owned and the right itself. These two aspects of propriété are picked up below in the
section relating to the exclusive character of ownership. Lastly, ‘droit de propriété’ only
refers to ownership and not to other real rights such as, e.g., usufruct (life tenancy)
or servitude (easement). As far as these latter rights are concerned, the broader ex-
pression of droits réels or rights in rem will rather be used. These considerations as to
terminology are important in view of the fact that French law does not treat all prop-
erty rights in the same way, the right of ownership being the most important one as
compared to the status of other lesser property rights.
The central place of the right of ownership is reflected in art. 544 of the Civil Code
where ownership is defined as ‘the right to enjoy and dispose of things in the most abso-
lute manner, provided they are not used in a way prohibited by statutes or regulations’.
However, examination of the core features of the right of ownership that follows will
show that this rather absolutist conception of ownership has undergone substantial
changes since the original enactment of the Civil Code in 1804.
T H E C HA R AC T E R I ST IC F E AT U R E S OF T H E R IG H T
OF OW N E R SH I P
Although art. 544 of the Civil Code solely refers to the ‘absolute’ character of the right
of ownership, French legal theory also includes two other essential features: exclusivity
and perpetuity. These are considered below.
The right of ownership is an absolute right

Given a central place in art. 544 of the Civil Code, the ‘absolute’ character of ownership
had been emphasised in the 1789 Declaration of the Rights of Man and the Citizen,
arts 2 and 17. According to art. 2 of the Declaration, ‘the final end of every political
institution is the preservation of the natural and imprescriptible rights of man. These
rights are liberty, property, security and resistance to oppression’. Under art. 17 of the
Declaration, ownership is an ‘inviolable and sacred right’. This depiction of ownership,
both in the 1789 Declaration and the Civil Code, reflects the liberal individualism of
the 18th century.
Absolute does not mean unlimited

The fundamental character of the right of ownership has been considerably eroded by
the rise in the collective demands made by modern society.
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The Right of Ownership 287
First of all, from the outset of the age of individualism, the right of ownership was
never meant to be unlimited in the face of the public interest. In fact, limits to this right
were already laid down in both the 1789 Declaration and the Civil Code. Thus, the use
of ownership contrary to law and regulations is prohibited in art. 544 and, in art. 17 of
the 1789 Declaration, the possibility is stated that owners’ rights may be infringed in
cases where political control and public necessity demand it, such as where national-
isation of private property or expropriation is required.
Secondly, since the beginning of the 20th century, public restrictions have been
imposed upon individual property through the regrouping of agricultural lands
(remembrement), planning laws, housing law (there is in France a right to be housed or
droit au logement), and, more recently, environmental legislation.
However, despite these developments, it would appear that the French legislature
and judiciary are still very much attached to the old, established definition of the es-
sential nature of ownership. In a landmark 1982 decision (Decision 81-132 DC, 16
January 1982, Loi de nationalisation), the Conseil Constitutionnel ascribed constitu-
tional value to the core provision of art. 17 of the 1789 Declaration by restating the ‘sa-
cred and fundamental character of the right of ownership’. In a later decision (Decision
89-256 DC, 25 July 1989, Loi en matière d’urbanisme et d’agglomérations nouvelles), the
Conseil reasserted the legal principle of the protection of ownership delegated into the
hands of the judges as ‘a fundamental principle recognised by the laws of the Republic’.
Absolute does not mean ‘absolute title’

Absolute also does not imply that the owner enjoys an absolute proof of title. Indeed,
proof of ownership cannot be established by title in French law. A title, e.g. the sale of a
building, only indicates that the owner has acquired the property from somebody else
who, in fact, may not be the true owner. Therefore, in order to prove his/her right ‘abso-
lutely’, the person claiming to be the true owner would need to establish that the person
who sold the property to him/her was himself the true owner and so on. In view of this
difficulty, the proof of ownership has been labelled in French law a ‘probatio diabolica’.
It has to be further noted that registration of title in the context of immovable property
is not an evidentiary device either. The registration of land merely makes it possible to
inform potential buyers of the presumptive owner. In fact, unless the current holder
of the property can establish that he/she has possessed it for a qualifying period of
acquisitive prescription (usucapio), then the proof of his/her right will be held to be
lacking. But this again needs to be qualified. In the absence of usucapio, the actual
property holder will remain in possession against a plaintiff in restitution unless the
plaintiff is able to show a better title, that is, according to well-established case law, a
title preceding in date the defendant’s possession.
So what does ‘absolute’ mean?

In a technical sense, ‘absolute’ means that ownership, when compared to other real
rights such as usufruct (usufruit) and easement (servitude), is the most comprehensive
of all in that it allows the holder of a thing to do everything with it, except that which
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288 Property Law
is prohibited by law. By contrast, the beneficiary of a usufruct or of an easement is

merely entitled to what has been specifically provided for by law or by contract. Here,
it should be stated that in order to protect the ‘completeness’ of the right of ownership,
French law, like many other civilian systems, has always emphasised the principle of
numerus clausus, inherited from Roman law, and according to which real rights or
proprietary interests are limited by law and cannot be freely created by contracting
parties. This principle, which contrasts with the more flexible common law approach
to property rights, is recognised in art. 543 of the Civil Code. However, illustrating
further the intricacies of any definition of the term ‘absolute’, the Court of Cassation
in France has never considered the numerus clausus principle of itself to be absolute in
application. In particular, the Court has never been willing to forbid outright tailor-
made real rights, unknown to the Civil Code, such as droit de superficie (e.g. when a
right of use for a piece of land was granted by an owner to a charitable institution,
in Cass. Civ. 3, 6 March 1991, Bull. civ. III, 84), droit d’affichage (e.g. Cass. Civ. 3, 18
January 1984, D. 504, where the sellers of a block of flats reserved for themselves the
right, following sale, to use one of the building walls as an advertising hoarding), and
droit de jouissance spéciale (Cass. Civ. 3, 31 October 2012, decision known as Maison
de Poésie, where a buyer of a mansion house conferred on the seller a right of exclusive
use, enjoyment and occupation of part of the house)
From a historical perspective, the term ‘absolute’ is further used in the Civil Code
to mark a clear cut-off point from the preceding period of feudalism with its attendant
fragmentation of domains and system of land tenures.
The right of ownership is an exclusive right

In French law, exclusivity means that only one person can be the owner of a thing at any
one time. This consideration must be set against the fact that, in French law, the right
of ownership is identified with the thing owned and, thus, cannot be divorced from it.
Therefore, the only way in which property may be enjoyed by a number of people is to
vest the property, and with it the right to it, to each of them in turn. By contrast, in a
system such as in England where ownership can be detached from the property itself,
it becomes possible, through the abstract common law concept of estate, to create all
sorts of competitive interests in the same property. French law still permits to a degree
the splitting of interests in a thing (called démembrements). In such circumstances, the
owner will always have the greatest interest in the thing in the sense that, whilst other
interests are limited in their duration or scope, by contrast the owner’s right is ad in-
finitum and unrestricted. To emphasise this distinction between the right of ownership
from other proprietary interests, Oxford scholar Tony Honoré (1961: 127–8) spoke of
the owner’s ‘residuary’ right: the extinction of other interests in the thing will always
enure to the owner’s benefit.
Exclusivity does not further preclude the possibility of shared ownership. A classic il-
lustration would be ‘the state of indivision’ (Civil Code, arts 815 et seq.) which follows
the death of a person at which time his heirs become jointly and severally owners of the
deceased’s patrimoine. In addition, French law also recognises the situation known as
copropriété, a common form of residential tenure in France whereby individual owners of
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flats enjoy the separate ownership of their respective dwellings as well as sharing together,
as co-owners, the property of the common areas such as stairs, halls, elevators, and gar-
dens. Copropriété is governed by a special statute dating back to 10 July 1965 which gives
details of the rights and duties of the co-owners who, for this purpose, are grouped in a
syndicat having at its head a syndic responsible for the day-to-day running of the property.
The right of ownership is a perpetual right

‘Perpetual’ in the context of ownership means three things:
(i) Ownership lasts as long as the thing lasts. This ‘perpetual’ characteristic
of ownership is to be distinguished from the temporary character of other
interests such as usufruct which only lasts for as long as the usufruitier lives
(droit viager).
(ii) ‘Perpetual’ means that the owner is entitled to reclaim his property from
whoever holds it without a set time limit (Civil Code, art. 2227). This is an
exception to the French law procedural rule that all interests are limited in
time. For example, in the area of tort law, the right to claim damages for
personal injury sustained following an accident is limited to ten years (Civil
Code, art. 2226).
(iii) ‘Perpetual’ means that ownership cannot be lost in spite of the fact that the
owner has not exercised his/her rights within a certain period of time. This as-
pect of perpetuity in the right of ownership can be illustrated by the famous
case of Etang Napoléon decided in 1972 by the full assembly of the Court of
Cassation. In this case, D was the owner of a fifteen-acre lake, called Etang
Napoléon, situated in the Camargue region of Southern France. The lake was
separated from the sea by an offshore bar which was destroyed by a storm in
1872, the lake then becoming part of the sea. However, the story did not end
there. In 1942, the offshore bar was naturally recreated and the lake recovered
its initial shape. To oppose D’s successor’s claim for the recovery of their prop-
erty, the State argued in court that it had become the owner by the incorporation
(accessio) of the lake into the sea in 1872 with the consequence that D’s owner-
ship had been irretrievably lost since that date and thus could not be revived
later. The Court of Cassation, applying the principle of perpetuity of ownership,
held that the owner, who had been temporarily deprived of his property by nat-
ural circumstances, was nevertheless entitled to recover it back when the obs-
tacle which had prevented him from enjoying his property had disappeared.
OW N E R SH I P, T RU ST A N D F I DU C I E
The absence of patrimoine d’affectation in French law, coupled with the exclusive char-
acter of the right of ownership, both account for the fact that an institution such as a
trust, which (i) allows for the creation of a separate fund which does not form part
of the trustee’s own personal estate, and (ii) distinguishes between the ‘legal owner’
and the ‘equitable owner’, has always been inimical to the French legal tradition of
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ownership. However, the introduction of fiducie into the French Civil Code in 2007
has been regarded as a move towards the recognition of a trust-like institution into the
French legal system (Matthews 2007).
Article 2011 of the Civil Code defines fiducie as ‘a transaction under which one
or several persons (the constituants) transfer assets, rights or securities, present or
future, to one or several others (the fiduciaires) who agree to hold them separately
from their own patrimoine, for a specified purpose and for the benefit of one or
several beneficiaries’. Originally, fiducie was not open to individuals (Civil Code,
former arts 2014 and 2015); only recognised corporations such as banks or finan-
cial institutions could use this new mechanism, either for management purposes
(fiducie-gestion) or for security purposes (fiducie-sûreté) (Civil Code, art. 2011).
Today it is open to individuals as well and counsels are now allowed to act as
fiduciaires.
The background to the 2007 legislation on fiducie

The Law of 19 February 2007, which amends former arts 2011 to 2031 of the Civil
Code and lays down the rules governing fiducie, was long overdue. Three proposals on
fiducie were introduced in 1989, 1992, and 1995, but without any practical successful
outcome. Yet, the idea of fiducie was not unknown to French law. Inherited from
Roman law, fiducie-like institutions in France can be traced back to the Crusades when
lords wishing to have their domains managed while they were away would entrust
them to others. During the 15th and 16th centuries, ‘substitutions fidei commissaires’,
whereby an owner’s assets were transferred to the charge of another person, with sub-
sequent transmission to nominated heirs at the original owner’s death, were widely
used by the gentry as a means of protecting their assets and passing them undepleted
to the next generation. But all forms of ‘substitutions’ were abolished during the 1789
Revolution and the 1804 Civil Code perpetuated this prohibition in art. 896, subject
to a few exceptions.
However, art. 2011 deals with another form of fiducie, one which is only applied to
relations inter vivos. Before 2007, two major obstacles prevented this type of fiducie
being applied to the French law of property. The first obstacle was a fiscal caveat in
that the tax authorities were very reluctant to support the introduction of an institu-
tion which would appear to facilitate tax avoidance. The second obstacle was juridical
in nature: fiducie would permit the fiduciaire to have in effect a second patrimoine,
separate from his own; this was felt to be in conflict with the traditional principle that
every person was only to have one patrimoine. However, for a number of years the
French legislature had been under political pressure to enact legislation designed both
(a) to enable ratification of the 1985 Hague Convention on the law applicable to trusts
and on their recognition, as well as (b) to align France to other jurisdictions close to
the French model by virtue of their legal tradition, such as Luxembourg and Quebec
which had already introduced the concept of fiducie into their law. Moreover, the phe-
nomenon of globalisation pushed many French companies to move part of their asset
base to jurisdictions offering them more competitive and flexible legal instruments to
manage their activities.
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Characteristic features of the new French fiducie—comparison with a trust

Although it has been suggested that the new French fiducie is modelled on a trust,
it is, however, neither in scope nor in its operation equivalent to the common
law trust.
Firstly, fiducie does not touch upon issues of personal gifts inter vivos or inherit-
ance (Civil Code, art. 2013). One of the leading principles of French inheritance law
is saisine héréditaire, i.e. the automatic transfer of property from one person or gener-
ation to the next (Civil Code, art. 724) as illustrated by the famous maxim of Loysel: le
mort saisit le vif son hoir le plus proche et habile à lui succéder. The concept of fiducie, in
that it introduces an intermediary between the constituant and the beneficiary, would
not sit very well with this approach in respect of inheritance.
Secondly, in the way it operates fiducie belongs to the sphere of contractual
relationships rather than to the domain of proprietary rights. By contrast, although
sometimes the distinction may be difficult to draw, trust and contract are generally
two different concepts, trust being a proprietary relationship, not a personal obli-
gation. The fact that fiducie is intended as a kind of contract clearly arises from the
place it has been given in the Civil Code amongst other specific contracts and from
the use of the expression ‘contrat de fiducie’ in the new provisions (e.g. arts 2013,
2016 and 2017).
Finally, fiducie is by legal necessity a ‘formal’ contract. It has to be made in writing
with a specific list of details to be mentioned and must be registered (arts 2012, 2018
and 2019). Thus, the new law precludes an implied or constructive fiducie such as in
the law of trusts.
In fact, the most remarkable and innovative aspect of fiducie, which it holds in
common with a trust, is that it allows for the recognition of patrimoine d’affectation,
separate from the fiduciaire’s personal assets, and so represents a clear break with the
unitary conception of patrimoine in French law in the past. In consequence, fiducie
assets will never form part of the fiduciaire’s patrimoine upon insolvency or bankruptcy.
E X E RC I SE OF T H E R IG H T OF OW N E R SH I P
Usus, fructus, and abusus
Under art. 544 of the Civil Code ownership encompasses the right to use, manage and
dispose of property. When dealing with the owner’s prerogatives French legal literature
refers to the Roman classification: usus, fructus and abusus.
Usus refers to the owner’s personal use and enjoyment of the thing owned whereas
fructus is concerned with the right to the income generated by the thing, whether fruits,
rents, or profit. In 1999, in Gondrée-Pritchett (Civ. 1, 10 March 1999, Bull. no. 87), the
Court of Cassation considerably extended the right to enjoyment of the ownership
and use of things, provided for in art. 544, by including within its ambit the right
to exploit economically the image of one’s own property. In this case, the owner of a
café situated in Normandy, famous for being the first house liberated by the Allies in
1944, successfully sued the defendant for having taken and sold photographs of the
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café without the owner’s permission. However, since 2001, the Court has curtailed the
scope of a person’s right to his property’s image by making interference with this right
actionable only when the owner can show that he has suffered actual damage in the use
or enjoyment of his property, from its commercial exploitation by a third party (e.g.
unwanted attention of tourists flocking around the property following photo publicity
of the property).
According to art. 537 of the Civil Code, ‘private individuals have the free disposal
of property which belongs to them, subject to the modifications established by legis-
lation’. Following this, abusus is the right to dispose of the thing, either in a material
way (destroy the thing) or by a legal method. In this latter meaning, abusus includes
the right of transmissibility to the owner’s successors, the right to sell it, and the right
to mortgage it with a view to obtaining credit.
Limitation to the owner’s right—the doctrine of abuse of right

Propriété fonction sociale
Law makers and judges often reflect on Cicero’s famous dictum ‘Summum jus, summa
injuria’ (De Officiis, I, 10, 33) which means that strict enforcement of a law or a right
may sometimes lead to a great injustice. And, indeed, the majority of legal systems
reflect this idea, in the area of property, by setting rules which in some way limit an
owner’s rights, especially when these rights are being exercised with a degree of con-
siderable disregard for the interests of other persons.
In France, it was under the influence of social doctrines at the end of the 19th
century that the liberal conception of ownership was gradually replaced by the one
prevailing today which lays more stress on social considerations. In his early 20th cen-
tury writings, public law jurist Léon Duguit coined the famous expression ‘propriété
fonction sociale’ whereby owner’s rights are to be balanced with the competing and
conflicting economic interests of the community at large. Suffice it to say that in pur-
suit of this balance there have been a large set of restrictions, sometimes of great com-
plexity, which have been placed upon the free exercise of the right of ownership to the
advantage of the public good. However, the next section deals with one of the most
imaginative restrictions to owner’s rights: the doctrine of abuse of right. The general
principle of this doctrine is that no one, in the exercise of his property rights, should
have as his sole purpose the intention of harming his neighbour. In other words, in
certain circumstances, the use of one’s property will become illegal when held as being
prompted by a motive which is improper or malicious.
Birth and subsequent development of the doctrine of abuse of right

The doctrine of ‘abuse of right’ was developed in France by the judiciary in the late
19th century. Also known in other civilian systems such as, e.g., Germany (§ 226 BGB)
and Switzerland (Civil Code, art. 2), the doctrine never really flourished in English
property law, penalising an owner’s malicious motive being inimical to the common
law approach of laissez-faire. Instead, in England, disputes between neighbouring
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landowners are dealt with by the torts of private nuisance and trespass which are used
to protect a person’s interest in land from being adversely affected by the activities
of his neighbours. However, in France, the doctrine was criticised by some authors.
Planiol argued that the expression ‘abuse of right’ was a contradiction in terms. An act
exercised in an abusive way, he said, is in reality an act which is done without right,
for ‘Le droit cesse où l’abus commence’ (‘the right ends where abuse begins’). For Léon
and Henri Mazeaud, abuse of right was no more than a type of wrong and belonged as
such to tort law, not to property. Despite these criticisms the doctrine was endorsed by
the French courts and can be traced back to the landmark case of Doerr, also known
as the ‘false chimney affair’, which was decided by the Court of Appeal of Colmar on 2
May 1855 (D. 1856, 2, 9). In this case, the defendant had erected chimneys on his roof
with the sole purpose of restricting his neighbour’s access to light in his own house.
The general principle laid down by the Court of Appeal of Colmar was that the use
of one’s property rights prompted by the sole intention of harming other members of
the community was forbidden and could not be justified by the absolute character
of those rights. Years later, in 1915, the Court of Cassation restated this principle in
the case of Clément-Bayard (Req. 3, August 1915, D. 1917, 1, 79). Here, the plaintiff
owned hangars where airships were stored. The owner of the adjoining site, upset by
the fact that Clément-Bayard would not purchase his property, erected high wooden
structures topped with spikes on the boundaries of his land. Owing to this construc-
tion one airship was severely damaged. In court, the defendant argued that in acting
as he did, he only exercised his right to enclose his property by whatever means he
wished. It was further his contention that he had a legitimate motive, namely to specu-
late on Clément-Bayard buying out his property. The Court of Cassation held that the
abuse of right was characterised by the fact that the structures could not be considered
to be a fence since there were wide gaps between each of the structures. Moreover,
even though one of the defendant’s motives might appear to be legitimate, this motive
should only be achievable by legitimate means, which was not the case here since the
threat of damage and injury to the plaintiff ’s airship could not constitute a legitimate
way of exercising the defendant’s right. The defendant was therefore ordered to remove
the offending structures and to pay damages to the plaintiff for the damage caused.
Doerr and Clément-Bayard are also important in respect of the test applied to estab-
lish malicious motive on the part of the defendant, a circumstance not easy to prove.
In both decisions the court deduced this intention from the fact that the exercise of the
defendant’s right did not serve any serious or legitimate interest at all. Thus, perforce,
the act could have no other purpose than to cause harm. A more recent application of
the doctrine of abuse of right has been in the context of ‘tour d’échelle’. Here, courts
have been dealing with situations where owners have denied their neighbours per-
mission to erect scaffolding on their land for the purposes of carrying out repair or
maintenance works. In a leading judgment, the Court of Cassation decided in 2012
that permission should be granted in such a case where access could not be gained via
an alternative route (or only at great expense), failing which there would be an abuse of
right on the part of the owner (Cass. Civ. 3, 15 February 2012).
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As can be seen, the doctrine of abuse of rights is still applied today and sits together
with its sister judicial doctrine of ‘troubles anormaux de voisinage’ whereby minor dis-
comfort and inconvenience between neighbours is tolerated, but serious disturbance
will give rise to a claim in damages. Unlike what has happened in other jurisdictions,
both doctrines have not, so far, been consolidated within the Civil Code. However, in
the continuation of the the 2005 Catala proposals (new art. 1361 in the Civil Code)
on the reform of the law of obligations (considered in Chapters 13 and 14), the 2017
Government Bill on the reform of tortious liability seeks to introduce in the Civil
Code under the heading troubles anormaux de voisinage a new article 1244 which
states:
Any person who owns, rent, holds or exploits land . . . who disturbs his/her neighbours
to a degree which goes beyond the standard of annoyance commonly expected between
neighbours, is automatically liable for the consequences of this disturbance.
It is noteworthy that, although sometimes it is considered as falling within the ambit of

property law, the doctrine of troubles anormaux has become under the new Bill a cat-
egory of tort. It is also an issue that affects public health. Indeed, art. R 1334-31 Code
of Public Health provides:
No particular noise shall, by its duration, repetition or intensity, affect the tranquility of the
neighbourhood or the health of man in a public or private place, or through any person,
thing in his/her custody or an animal under his/her responsibility.
P O S SE S SION
W HAT I S T H E M E A N I N G OF P O S SE S SION ?
Distinction between possession and detention
Traditionally, possession consists of two elements: (i) a physical element, also known as
corpus, which consists of the actual use and enjoyment of the property and which must
be fully established in court (as illustrated in the overseas property case of Cass. Civ. 3,
4 May 2011 regarding a disputed parcel of land situated in La Réunion) and (ii) a psy-
chological element, the animus domini, which is the intent to hold the thing as his own
property. However, it is important not to confuse and to distinguish between animus
domini and ‘good faith’. A possessor with animus domini acts as an owner whereas a
bona fide possessor truly believes he has become the owner.
However, when defining possession, in art. 2255, as ‘the detention or enjoyment
of a thing or of a right which we hold or exercise by ourselves, or by another who
holds and exercises it in our name’, the Civil Code entwines two different legal
concepts: possession and detention. In French law, a détenteur, unlike a possessor,
does not have an animus domini. As examples, lessees and borrowers in French law
are merely détenteurs since they are holding the property on the basis of a contrac-
tual right and cannot therefore maintain to be the owners of the property rented
or lent.
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possession 295
Savigny and Ihering on possession

The distinction between possession and detention was the subject of controversy be-
tween the great 19th century German Roman jurists Savigny and Ihering, both famous
for writing treatises on possession which inspired Continental civil law systems.
According to Ihering, possessors and detentors share the same animus and, thus, are
both entitled to use the same possessory remedies in order to protect their possession—
the difference between the two lying in the fact that detentors hold the property by
virtue of a title (loan or hire) which necessarily implies restitution. This title, described
by Ihering as ‘causa detentionis’, means that a detentor, unlike a possessor, will never
be able to acquire ownership by prescription (usucapion). In contrast with Ihering’s
approach, Savigny argued that the determining criterion distinguishing between the
two notions is indeed the mental state, the animus. He added that detentors do not have
the animus domini (but only the animus detinendi) and, consequently, they can neither
benefit from the remedies offered to possessors for the protection of their possession
nor can they acquire ownership by usucapion. Carbonnier (1992: 229) summarises
both views using the equations set out in Fig. 15.1.
Fig. 15.1 Carbonnier’s equations on the Savigny/Ihering debate
While art. 2255 of the Civil Code is not clear when it comes to distinguishing be-
tween detention and possession, French law solutions on possession used to be
halfway between Savigny and Ihering’s views: possession and detention being two
separate legal concepts—mere detentors (called in French détenteurs précaires) thus
not being able, in accordance with Savigny, to prescribe ownership through prolonged
possession; but, following Ihering, possessory remedies being made available to
détenteurs précaires following the passing of the Law of 9 July 1985. However, since
2015, when the provisions dealing with these possessory remedies were repealed (see
below under ‘Protection of one’s possession’), one could assume that Savigny’s views
have been reinforced in French law, except that the motive behind the change was that
these remedies had over time become obsolete.
T H E ‘B L E S SI N G S’ OF P O S SE S SION
As Carbonnier suggests (1992: 219), a French possessor is ‘blessed’ in many ways. Apart
from the fact that every possession creates a presumption of title, which means that in
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a claim for recovery against a possessor, the onus rests on the plaintiff to rebut this pre-
sumption, there are, in addition, two main legal effects of possession: protection of the
possessor’s interest and acquisition of ownership. These are now examined in more detail.
Protection of one’s possession

Until 2015 French law recognised a number of possessory remedies, which could be
used by those who possessed immovable property against anybody interfering with
their possession.
Rules governing possessory remedies were to be found in the Civil Code (former arts
2278 and 2279) and in the Code of Civil Procedure (former arts 1264 to 1267). However,
both codes said very little about the kind of remedies available to the possessor. Yet,
according to legal tradition, there were three types of possessory actions, all different
in nature and origin.
The most commonly used was complainte. Dating back to the 12th century, this
action could be brought against any current interference with the possessor’s right.
The second remedy, known as réintégrande or réintégration, had been introduced in
the 9th century by canon law as a remedium spolii aimed at preventing the Church’s
property from being unduly or illegally seized, a frequent occurrence at that time.
Réintégrande was later extended to secular victims of violent dispossession enabling
them to be restored to the position they occupied prior to being dispossessed. Finally,
dénonciation de nouvel oeuvre was the old Roman remedy of operis novi nuntiatio in so
far as it allowed a possessor to prevent the continuation of construction works carried
out by a neighbour when there was a threat of interference with his possession.
However, in recent years, these possessory actions became obsolete and were replaced
by the more efficient and less onerous application for interim measures under the gen-
eral rules of civil procedure. Eventually, the Law no. 2015-77 of 16 February 2015, aimed
at modernising and simplifying civil procedure, removed them from the statute book.
Acquisition of ownership
The doctrine of usucapion
With the passage of time, possession can mature into ownership through the doctrine
of usucapion, known more commonly as ‘prescription acquisitive’. Usucapion is thus in
France a mode for acquiring property and this is clearly stated in art. 2258 of the Civil
Code. The Civil Code’s provisions relating to usucapion were amended in 2008 (Law
of 17 June 2008), both in form and content—one drawback of this being that lawyers
who were used to the old article numbering have had to adapt, as in contract and tort,
to new numbering.
The rationale behind usucapion is that, after a certain period of time, the person who
has taken care of the thing should be confirmed in his/her possessory situation without
the risk of being evicted. From the point of view of true owners, this rule of prescription
might appear and sound harsh, but it is an incentive for them to attend to their property.
However, time is not the only factor necessary to transform such possession into
ownership. First, a certain number of qualities, attached to the possession, need to be
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possession 297
present (Civil Code, art. 2261). In order to ‘prescribe’ ownership the possessor must
necessarily have come to possess it in a peaceful way (i.e. without the use of force),
openly, on a continuous basis, and in an unequivocal manner. If one of these qualities
is missing the possession will be ‘vitiated’ and the possessor will not be able to rely
on usucapion to rebut the owner’s claim. The question of unequivocal character of a
possession has given rise to problems of definition, especially in the context of mov-
able property. However, it is generally assumed today, in a dispute between a possessor
(P) and a person claiming to be the true owner (O), that P’s possession will be held
to be equivocal in character in the event that P was living under the same roof (as
cohabitee or civil partner, with regard to any household items) or sharing the same ac-
tivity (say as a writer’s secretary, for instance, in respect of unpublished manuscripts) as
O. In both set of circumstances, ownership cannot be claimed in court to have passed
through usucapion since it is not clear whether the possessor was holding the disputed
property as possessor or as mere detentor.
Turning now to the question of time, the period of time which has to elapse for a
property to be acquired will vary greatly in length depending on whether the property
held is immovable or movable. Applicable rules in both cases, being quite complex, are
now each examined under separate sub-headings.
Immovable property
The rule that is relevant here is to be found in art. 2272 of the Civil Code, which states:
Ownership of immovable property is acquired by prescription following a period of time
of thirty years.
However, a person who acquires an immovable in good faith and under a just title
prescribes ownership of it by ten years.
According to art. 2274 of the Civil Code, good faith is always presumed, and it is on
the person who alleges bad faith to prove it. Further, under art. 550 of the Civil Code,
‘a possessor is in good faith where he possesses as an owner under a title whose defects
are not known to him. He ceases to be in good faith from the moment in time when
those defects become known to him’.
‘Just title’ is a misleading expression which must not be confused with the evidential
requirement of ‘good title’ in English property law. ‘Just title’ has been defined by French
jurists as a title which would have conveyed ownership had it emanated from a true
owner. Therefore, a ‘just title’ is in fact an imperfect title. But for the purpose of acqui-
sition by usucapion it is ‘good enough’, as long as the only defect is indeed the lack of
right of the person who passed on the property. Any other defect, such as incapacity or
lack of required formalities, will disqualify the title from being considered as a ‘just title’.
Movable property
In matters of movable property acquisition of title may be instantaneous when the
possessor was in good faith at the time of the acquisition (Civil Code, art. 2276 alinéa
1). However, there is a need to establish whether the owner has originally been divested
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of his property against his will (by theft or trespass). Two situations arise which can be
summarised as follows:
(i) Situation 1: A entrusts his property to B who sells it to C, a bona fide purchaser.
(ii) Situation 2: B finds or steals A’s property and sells it to C, a bona fide purchaser.
In (i), the bona fide possessor/purchaser gets an immediate title as from the day of
the acquisition (or, if they do not coincide in time, from the day the purchaser gains
actual possession of the property): ‘possession of movable property is equivalent to
title’ (Civil Code, art. 2276 alinéa 1). This rule may be considered to be drastic from
the point of view of owners. However, it has been justified in the interest of commer-
cial transactions. If everybody were to be in doubt of their title when buying mov-
able property it would seriously affect the smooth running of commerce, trade, and
business. In any event, in situation 1, the owner always has the possibility to pursue
a personal claim against the person he/she initially entrusted with his/her property.
In (ii), recovery by the owner is possible against the possessor/purchaser within
three years of the loss or of the theft (Civil Code, art. 2276 alinéa 2). Where the acqui-
sition took place in a fair, a market, at an auction, or in a shop selling specialised items
(such as an antiques shop), the owner who is seeking to recover his property can do so
only after reimbursing the purchaser for the price paid which, in the majority of cases,
will differ from the actual market value of the thing purchased (Civil Code, art. 2277).
As a last point, it should be further noted that since the decision of Pélegrin (Criminal
Division of the Court of Cassation, 24 November 1977, D. 1978, J. 42, mentioned in
Chapter 4), the bona fide purchaser of movable property, who meets all the conditions
necessary to become the owner immediately as stated under new art. 2276 alinéa 1,
cannot be prosecuted for being a receiver of fraudulently acquired goods when, following
acquisition, he finds out about the origin of the property. Prior to Pélegrin there was a
continuous conflict on this issue between the civil and the criminal courts, the latter
deciding that someone who had become an owner under the then art. 2279 rule could
nevertheless be prosecuted as being a receiver of stolen goods under the criminal law
once having been made aware of the origin of his purchase. The conflict surrounding
Pélegrin was finally resolved by the Criminal Chamber of the Court of Cassation which
came out in favour of the same solution adopted previously by the civil courts.
BA SIC RU L E S A N D P R I N C I P L E S ON T R A N SF E R
OF T I T L E I N F R A N C E
P R I N C I PA L M E T HOD S OF AC QU I R I N G P ROP E RT Y
IN FRANCE
Book III of the Civil Code deals with the principal ways in which property may
be acquired and transferred. In its opening articles, 711 and 712, Book III gives,
at a glance, a list of the different modes in which property, under French law, is
conveyed.
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Basic Rules and Principles on Transfer of Title in France 299
Article 711
Ownership of property is acquired and transferred by inheritance, gift inter vivos or
will, and by the working of the law of obligations.
Article 712
Ownership is also acquired by accession or incorporation, and by prescription [i.e.
usucapion].
French legal commentators have offered further classification of methods by which

property may be transferred. These are:
(i) Modes à titre universel /à titre particulier:
(a) modes à titre universel is when, on a person’s death, his or her patrimoine, or
part of it, is transferred to the heirs, whether the person has died leaving a
will or not;
(b) modes à titre particulier is when what is transferred is only a particular right
or asset (e.g. a sale of goods).
(ii) Modes à cause de mort/entre vifs:
(a) modes à cause de mort concern any transfer of ownership on a person’s death;
(b) modes entre vifs (inter vivos) is when title has been acquired through gift or
contract.
(iii) Modes originaires/dérivés:
(a) modes originaires refer to a passive way in which property may be acquired
independently of human agency, such as accession-incorporation (Civil
Code, art. 551), which takes place when ownership of a lesser property,
whether movable or immovable, is merged together with a greater one
within which it is incorporated;
(b) modes dérivés imply active participation of the parties in the process of
transfer, e.g. circumstances of inheritance or contractual arrangements.
Whenever property rights are acquired through one of the methods described above,
the same basic rules of transfer will apply. These rules are briefly examined below.
T H E T R A N SF E R OF P ROP E RT Y
French law draws a distinction between rules applicable between parties to a transfer
and those which concern third parties.
As between parties
Ownership of property is transferred between the parties solo consensu, by the
agreement to convey. Thus, a title in principle passes as soon as the parties reach
agreement, even though the thing has not yet been delivered or paid for (Civil Code,
arts 1196 and 1583). An important consequence of such a rule is that, in the case of a
sale, the buyer will bear the loss, if the property is stolen or destroyed pending comple-
tion of the sale. It is interesting to note that the French law of property, in spite of its
Roman roots, has here taken an opposite approach to Roman law in which intention to
30
300 Property Law
transfer was not sufficient to convey property and needed to be supplemented, either
by one of the two existing formal processes of mancipatio or in jure cessio (which both
necessitated the presence of witnesses), or by physical transfer (traditio), depending on
the nature of the property transferred. It has to be added that French law on this point
also contrasts with the legislation of other civil law jurisdictions, such as, e.g. Germany,
where the rule is that title passes when the thing is delivered by the seller into the hands
of the buyer in the case of movable property (§ 929 BGB) and, in principle, upon regis-
tration (§ 873 BGB) in the case of real estate.
However, under the above- mentioned art. 1196 of the Civil Code, the solo
consensu rule will only apply when the parties or the law have not expressly provided
otherwise.
As regards third parties

Here, ‘third party’ means a person who has acquired a property which, unknown to
him at the time of the contract, had already been sold to someone else by the seller.
In the case of immovable property, the conflict of title between the two successive
purchasers will be resolved by priority of registration. In other words, if the first ac-
quirer in time fails to register, his right will be ineffective (inopposable) against the
second purchaser, considered for this purpose as a ‘third party’, who will then acquire
a good title provided that he himself has registered his interest.
The legislative framework for the system of land registration in France (publicité
foncière) is the Decree of 4 January 1955 (revised on several occasions) under which,
registration of all land interests must take place at a the local land registry office, to
be found in every commune, where an up-to-date file on private property (fichier
immobilier) is kept under the owners’ names.
In the matter of movables, priority will be given to the purchaser who has first been
given effective possession of the thing, at which point arts 2276 and 2277 of the Civil
Code (see above) will decide the outcome of any contention in this respect.
Chapter References
and Further Reading
Bell, J., ‘Property and Legal Culture in France’ Emerich, Y., ‘Les Fondements Conceptuels
in P. Birks and A. Pretto (eds), Themes in de la Fiducie Française face au Trust de la
Comparative Law, Oxford University Press, Common Law: entre Droit des Contrats et
2002, 83. Droit des Biens’, RIDC, 1-2009, 49–71.
Bell, J., Boyron, S., and Whittaker, S., Fusaro, A., ‘The Numerus Clausus of Property
Principles of French Law, 2nd edn, Oxford Rights’ in E. Cooke (ed), Modern Studies
University Press, 2008, Ch. 9, 268–93. in Property Law, Vol.1, Hart Publishing,
Carbonnier, J., Droit des Biens, PUF, 1992. 2000, 309.
Dyson, H., French Property and Inheritance Gordley, J., and Mattei, U., ‘Protecting
Law, Oxford University Press, 2003. Possession’, AJCL, 1996, Vol. 44, 293–334.
301
Basic Rules and Principles on Transfer of Title in France 301
Halperin, J. L., Le Code Civil, Paris: Dalloz, Murphy, T., Roberts, S., and Flessas, T.,
1996, 55. Understanding Property Law, London:
Harding, C. S. P., and Rowell, M. S., Sweet and Maxwell, 2004.
‘Protection of Property versus Protection Planiol, M., and Ripert, G., Treatise on
of Commercial Transactions’, ICLQ, 1977, Civil Law, Vol. 1(2), Louisiana State Law
Vol. 26, 354. Institute/
LGDJ, 1939, 2263 (possession),
Honoré, T., ‘Ownership’ in A. G. Guest (ed.), 2322 (ownership).
Oxford Essays in Jurisprudence, Oxford Reid, E., ‘The Doctrine of Abuse of Rights:
University Press, 1961. Perspective from a Mixed Jurisdiction’,
Larroumet, C., ‘La Fiducie Inspirée du Trust’, Electronic Journal of Comparative Law,
D. 1990, Chr. XXI, 119. 2004, Vol. 8(3), <http:// www.ejcl.org/ 83/
Lawson, F. H., Anton, A. E., and Neville art83-2.html>.
Brown, L., Amos and Walton’s Introduction Renaut, M. H., Histoire du Droit de la
to French Law, Oxford University Press, Propriété, Ellipses, 2004.
1967, Ch. 5, 87. Stoljar, S., ‘Possession in the Civil Codes’,
Matthews, P., ‘The French Fiducie: and Now ICLQ, 1984, Vol. 33, 1026.
for Something Completely Different?’, Trust Watkin, T. G., An Historical Introduction to
Law International, 2007, Vol. 21, 17. Modern Civil Law, Ashgate, 1999, Ch. 11, 219.
30
INDEX
abstract concepts 157 puissance publique 174, 175 Bentham, Jeremy 19, 29

abuse of right 142, 292–3 référé-conservatoire 185 Bigot-Préameneu,
abusus 291–2 référé-liberté 185 Félix-Julien-Jean 25
academic writing 149–52 référé-suspension 185 binding precedent 74–5
access to justice 199 remedies 184–90 Birks, P. 161
Accursius 160 scope 169–70, 178–180 bloc de constitutionnalité 6
acte: meaning 134 service public 175 Boucher, Paul 193
actes administratifs standing (intérêt à agir) 185–6 Bracton, Henry de 160
unilatéraux 174 strength and weakness 175–9 Brexit 44
actes de gouvernement 188–9 Tribunal des Conflits 179–80 ‘burkini bans’ 181–2
administrative law (droit voie de fait 182–3
administratif) 169–90; adversarial system 195–6, 201, 210 Cabrillac, R. 150, 151
see also judicial review Advisory committees 95-97 Cane, P. 195
actes administratifs Advisory Committee on Legal Capitant, Henri 57, 149
unilatéraux 174 Education and Training Carbonnier, Jean 14, 44, 149,
Blanco case 174 (ACLEC) 161 162, 212, 282, 295
Code Administratif 27 AIDS patients, compensation Carré de Malberg, Raymond 15
conflicts of jurisdiction 179–84 of 94–5, 207, 261, 267–8 cas d’ouverture 186–7
Conseil d’État 4 Almairac, G. 128 case law, see jurisprudence
contentieux de l’annulation 184, alternative dispute codification and 35
185–9 resolution 207 method of deciding
contentieux de la répression 184 ambiguous words 137 cases 101
contentieux de American Uniform Commercial case notes (notes
l’interprétation 184 Code (UCC) 29, 230 d’arrêts) 149–55
contentieux de pleine amnesty laws 94 clarification of judicial
juridiction 184, 189–90 animus domini 294 decisions 154
definition 178-9 appeal, right to 201–2 doctrine and 149–52
Dicey’s critique of 175–6 archaic language 136–7 form 152–3
doctrinal writing 174–5 arrêtés 13, 16 functions 154–5
efficiency 176–7 arrêtistes 152, 153, 154, 155 precedent and 154–5
functional approach 174 arrêts de principe 75, 79–81 case workload 141
impact of EU law 170, 178–9 arrêts de règlement 66–8, 77, 80 Catala, Pierre 212
Industrial and Commercial arrêts de rejet 118–19 Catala reforms 212, 241, 246,
Public Bodies arrêts d’espèce 79 247, 250, 255, 294
(EPIC) 183–4 articles 23, 37 causation 266–8
interim relief 185 Assemblée Nationale 11 cause 240–4
justice 177 Assemblée Plénière 72–3 certainty 16, 148
justice retenue/justice Association H. Capitant 281 binding precedent 75
déléguée 173–4 Atias, C. 153, 162, 165 codification 33
organic approach 174 Atiyah, P. S. 216, 221 contract 228–30
police 181–2 ‘attendu que’ 139, 147 dissenting opinions and 146
preliminary reference Aubry, Charles 55, 149, 283 judicial syllogism 121
(exception d’illégalité) 172 autonomy of the will 214–19 chain sales 248
principes généraux de droit 52 Avant-Projet Catala 246, 247 Chambre Mixte 72–3
procedures 184–90 avis 62 Chapus, R. 184
Providers of a Public Service Avocat Général 58, 143–4, 201 chefs de la decision 138
(SPIC) 183–4 children, liability
public/private law Balladur Committee 95, 96, 109 of 257–8, 276–7
divide 169–75 Bartolus 160 circulaires 5
304
304 Index
Civil Code Commission Supérieure de abuse of right v

arrêts de règlement, prohibition Codification 2, 26, 32, laissez-faire 292
of 66–7, 68, 77 33, 36, 37 codification 27–30
‘breviary for owners’ 281 composition 40–1 judicial reasoning 112
contract law 211–13, 214, drafting techniques 41–2 statutory
216, 217, 219–20, 222–3, duties and functions 40 interpretation 44–5
228–9, 232, 234–41, 243–7 working method 41 contrasted with French
Discours Préliminaire 46–7 compilations 30 law 4, 16
drafters 149, 212 consolidation 30 legal education 156, 157,
enactment 25 cross-references 39 158, 160–1
equity, recourse to 51–2 definitions 26–7 commutative justice 224
national prestige 25 functional approach 30–1 compensation, see damages
numbering system 37 indexes 39 AIDS patients 94–5, 207,
property law 281–2, 284, 286, lois 38 261, 266–8
287, 289–91, 293–9 methods and techniques 36–9 Dintilhac nomenclature 261
provisions for spousal multiplicity of codes 25 conflicts of jurisdiction 179–84
maintenance 17–18 new codes 26 conflit négatif 180
scope 28 numbering system 37 conflit positif 180
statements of general objections to 33–4 Conseil Constitutionnel 7, 8, 9,
principle 15, 16 feasibility 34 10, 23, 32
tort 250, 251, 254–5, 260, 261, ossification of the law 34–5 question prioritaire de
266, 268–70, 275, 277 relearning of the law 35–6 constitutionnalité
updating and reform 31 (QPC) 11–12
amendment 34–5 règlements 37 recours pour excès de pouvoirs
civil law, see Civil Code restatements 31 (REP) 13
common law versus structure 36 reference to travaux
abuse of right v supplementary notes 38–9 préparatoires 58–9
laissez-faire 292 tables of contents 39 teleological method of
codification 27–30 Coing, Helmut 27 interpretation 53–4
judicial reasoning 112 collective agreements 219 Conseil d’État
statutory interpretation 44–5 collegiality 144–5, 199–200 administrative law 4
inquisitorial system 195 Commentators 160 creation 173
legal education 156, 157, Commercial Code 26, 60, general principles of law 177
158, 159–60 213, 284 precedents 71, 72
civil liability 254–68; see also tort commercial premises, public report 98
civil liberties 7, 172, 179, 182 protection of 182 question prioritaire de
civil procedure 192–201 Commission de Modernisation du constitutionnalité
Civil Procedure Code Langage Judiciaire 130, (QPC) 11–12
(CPC) 193, 194, 296 133, 136 supervision of legislative
Code Civil, see Civil Code Commission de Réforme de drafting 14
Code de l’Organisation Judiciaire l’Accès au Droit et à la Conseil Supérieur de
(COJ) 193 Justice 193–4 la Magistrature
Code de Procédure Civile Commission Supérieure de (CSM) 109–10
(CPC) 193, 194, 296 Codification 2, 26, 32, conseiller rapporteur 143, 144
Codes Dalloz 38 33, 36, 37 consensualism 221–2
codification 1–2, 3, 25–42; see composition 40–1 consent 226–40
also Civil Code drafting techniques 41–2 defects (vices du consentement)
advantages 25, 31–2 duties and functions 40 233–4, 238
accessibility and working method 41 dol 237–8, 240
comprehensibility 32–3 common law vii; see also English law 229–30
consistency and English law erreur 234–7
certainty 33 absence of central good faith 228–30
articles 37 administrative power 176 lésion 239
civil versus common law adversarial system 195, 201 objective v subjective
approach 27–30 civil law versus 27–30 approaches 226–7, 228
305
Index 305
offer and acceptance 230–3 defects (vices du lois impératives/lois

promise v bargain 227–8 consentement) supplétives 218
remedies 239–40 233–4, 238 non-performance 246–7
silence as acceptance 233 dol 237–8, 240 nullité 239–40
test of intention 228 English law 229–30 obligation de sécurité 213
validity 230–40 erreur 234–7 pacta sunt servanda 222–3
violence 238–9, 240 good faith 228–30 promises 224, 225, 227–8
consideration in contract lésion 239 reform 211–12
absence of requirement 223–6 objective v subjective remedies
doctrine of consideration 132 approaches 226–7, 228 defects of consent 239–40
English law 132, 224 offer and acceptance 230–3 non-performance 246-7
gratuitous contracts 223–4 promise v bargain 227–8 rescission 239–40
Constitution 5 remedies 239–40 résolution 247
as supreme norm 6–7, 9 silence as acceptance 233 restitution 240
Balladur Committee 95, test of intention 228 réticence 237
96, 109 validity 230–40 socio-economic
conformity of statutes with 7 violence 238–9, 240 relationships 219, 229
preamble 6 consideration state intervention 216
Question prioritaire de absence of requirement 223–6 stipulation pour autrui 248
constitutionnalité English law 224 synallagmatic contracts 219,
(QPC) 11, 12 gratuitous contracts 223–4 220, 221
Revision 7, 11, 12, 95 consumer protection 216, 238 third parties 247–8
Vedel Committee 95, 96 content 240–4 UNIDROIT Principles of
constitution de partie civile 197 contrats consensuels 219, International Commercial
constitutional law 169 220, 221–2 Contracts 213, 229,
constitutional values 53–4 contrats nommés/contrats 239, 259
consumer protection 216, 238 innomés 218 unilateral contracts 219,
contentieux de contrats solennels 220, 221 220, 221
l’annulation 184, 185–9 damages 240, 246 United States 228, 230
contentieux de la répression 184 délais 232 violence 238–9, 240
contentieux de discharge from contradiction, principle of 200–1
l’interprétation 184 performance 244–5 contributory
contentieux de pleine dol 237–8, 240 negligence 74, 274–5
jurisdiction 184, 189–90 donation 223 copropriété 288
Continental legal systems vii, effects of the contract 245–9 Cornu, G. 134
19, 26, 29, 159–60; see also erreur 234–7 Corpus Juris Civilis 159, 160
civil law exceptio non adimpleti costs 199
statutory interpretation 44, 45 contractus 246 Coulon, Jean-Marie 194
contract viii, 211–48 exceptio timoris 246–7 cours magistraux 163–5
ascertainable content 240–1 force majeure 245–6 Court of Cassation
autonomy of the will 214–19 formation of contract 222–44 annual report 97–8
Avant-Projet Catala 246, 247 freedom of contract 217–18 case workload 141
balance in contractual German law 226, 231 double degré de
obligations 213, 217 good faith 228–30 juridiction 201–2
bargain 227–8 gratuitous contracts 223–4 judgments 138, 139, 143–4,
categories of contracts 219–22 groups of contracts 248 145, 147, 154
cause 240–4 implied terms 218–19 non-binding opinions
certainty 228–30 imprévision 245 (avis) 62
chain sales 248 intent to enter a legal precedents 71, 72
Civil Code 211–13, 214, 216, relationship 225–6 question prioritaire de
217, 219–20, 22–3, 228–9, international law 213 constitutionnalité
232, 234–41, 243–7 judges, role of 216–17 (QPC) 11–12
commutative justice and 228–30 right of appeal to 201–2
justice 224 lawful content 240 secrecy 145
consent 226–40 lésion 239 syllogistic reasoning 116–26
306
306 Index
Criminal Code Dicey, Albert Venn 175–6 English law, see common law

numbering system 37 dictionaries 131–2 contract 132
statements of general digital economy 162 consideration 224
principle 15, 16 Dintilhac nomenclature 261 good faith 229–30
criminal procedure discourteous expressions 137 promise v bargain 227
categorisation of crimes 202–3 dispositif 138 rescission 240
Code of Criminal Procedure dispositions diverses et Halsbury’s Statutes 29, 30
(CPP) 193, 197 transitoires 24 judicial appointments 106–7
inquisitorial dissenting opinions, absence judicial reasoning 109
approach 195, 210 of 144–6 legal education 157,
investigation of the divorce 158–9, 163
case 208–10 Art 271, Civil Code 17–18 Advisory Committee on
presumption of séparation de corps 48 Legal Education and
innocence 203–4 doctrine Training (ACLEC) 161
pre-trial process 202–7 administrative law 174–5 Inns of Court 160–1
decision to prosecute 206–7 clarification and transformation 161–2
plaider-coupable 206, 207 guidance 150 precedent 74–5
preliminary remarks 202–3 de lege lata/de lege property law 282
prosecution process 203–7 ferenda 150–1 statutory interpretation 44, 45
public prosecutors 205–6 doctrine classique 151 tort 251, 252
victims of crime 207 doctrine moderne 152 Woolf reforms 194, 196
custom 47, 51, 54, 87 status and role of academic Enlightenment 25
writing 149–52 environmental legislation 287
Dainow, J. 156 dol 237–8, 240 equality 198
Dale, Sir William 19 Domat, Jean 149, 212, 214, 222, equity, recourse to 51–3
Dalloz 27, 30, 150 254, 255 erreur
Codes Dalloz 38 donation 223 consent 234–7
law reports 152 double degré de juridiction 201–2 contract 234–7
damages drafting of legislation 13–14 meaning 132
contract 240, 246 Commission Supérieure de erreur manifeste
pain and suffering 135, 143, Codification 41–2 d’appréciation 187
259, 260, 261 generality v État de Droit 5–6
punitive 246 particularity 15–18 EU law 6
tort 253, 259, 289, 293 simplicity v complexity 19–20 consolidation 30
Dintilhac nomenclature 261 droit administratif, see domestic law and 8–9
David, R. 109, 242 administrative law impact on administrative
Dawson, J. P. 149 droit des biens 281, 282 law 170, 178–9
death penalty, abolition of 94 Duguit, Léon 174, 175, 184, 293 national codification and 33
decentralisation of justice 198–9 Dumoulin, Charles 222 Euler, Leonhardt 115
décrets 13, 16 Dupeyroux, O. 87 European Charter on the Statute
de Cruz, Peter 28 duty of care 255–6 for Judges 104
deductive reasoning 111–12, European Convention on Human
113, 115, 164; see easements 287 Rights (ECHR) 8, 59, 83,
also logic École de l’Exégèse 151 198, 200, 202, 205; see also
Défenseur des Droits 91 École Nationale d’Administration fair hearings
Dekeuwer-Defossez, (ENA) 104 exceptio non adimpleti
Françoise 97 École Nationale de la Magistrature contractus 246
de lege lata/de lege ferenda 150–1 (ENM) 104, 107–8 exceptio timoris 246–7
deliberations 146 entrance examinations 105–6 exception d’illégalité 172
Denning, Alfred Thompson, ecological damage 265 Exegetical method 50
Lord Denning 44 economic loss 259 exposés des motifs 140
Deprez, J. 98 efficiency 176–7
detention 294–5 Eisenman, C. 178 fair hearings 78, 84, 146–7,
détournement de pouvoirs 187 employers’ liability 268, 277–80 198, 200
Dewey, John 122 employment law 219 family law 97, 149, 153
307
Index 307
fault Holdsworth, Sir William 160–1 judges 103–10; see also judicial

decline of the concept 257–8 Holland, J. A. 28 style; judicial syllogism;
determination of 256–7 Holmes, Oliver Wendell 114 juge d’instruction;
duty of care 255–6 homosexuality 93, 150–1; see statutory interpretation
lack of definition 254–5 also same-sex couples academic qualifications v
faute 251 Houin, R. 90 experience 106–7
faute de service 189–90 human rights, see fair hearings Conseil Supérieur de
faux-amis 133 European Convention on la Magistrature
fees 199 Human Rights 8, 59, 83, (CSM) 109–10
fiducie 284, 289–91 198, 200, 202, 205 contract law and 216–17
Field, David Dudley 29 Human Rights Act 1998 44, 59 diversity 105
force majeure 74 École Nationale
contracts and 244–5 ignorance of the law 42 d’Administration
tort 273–4 Ihering, Caspar Rudolph (ENA) 104
Forsyth, C. 177 von 55, 295 École Nationale de
Fouillée, Alfred 214 immeubles par la Magistrature
free access to justice 199 destination 142, 285 (ENM) 104, 107–8
freedom of contract 217–18 immovable property 142, 59, 83, entrance examination 105–6
freedom of religion 217–18 198, 200, 202, 205, 296 efficiency 104
French Revolution 160, 170, implied contractual European Charter on the
171, 199 terms 218–19 Statute for Judges 104
fructus 291 imprévision 245 feminisation of the
fundamental incompétence 186 profession 105
freedoms 217–18 indexes 39 independence 95, 96, 104, 110
industrial accidents 268 recruitment 105–7
Gaius 283 Industrial and Commercial selection process 103–4
Gautier, P. 36 Public Bodies separation of powers 4, 65–6
general principles of law 15–16, (EPIC) 183–4 training 107–10
52–3, 157, 177 innocence, presumption judgments
Gény, François 45, 53, 54–5, 152 of 203–4 ‘attendu que’ 139, 147
geographic jurisdiction 198–9 Inns of Court 160–1 brevity 139
German law 28, 29, 283 inquisitorial system 193, clarification in case
Civil Code (BGB) 226, 231, 195–8, 210 notes 154
251, 267, 292, 300 historical overview 196–7 Court of Cassation 138, 139,
Ghestin, J. 125 hybridisation 196, 197–8 143–4, 145, 147, 154
globalisation vii insurance 253 form and structure 137–9
Glossators 159–60 intérêt à agir 185–6 grammatical aspects 139
good faith 228–30 interim relief 185 justification 139
Goodhart, A. L. 74–5 international law 6, 213 absence of dissenting
Goubeaux, G. 125 interpretatio cessat in opinions 144–6
Gounot, E. 215 claris 47 deliberations 146
government regulations, see interpretation, see statutory exposés des motifs 140
règlements interpretation fair trial rights and 146–7
gratuité 199 investigating magistrate, see juge legal rather than policy
gratuitous contracts 223–4 d’instruction arguments 140
guaranty funds 253–4 Irnerius 160 new
Guinchard Report 194 recommendations 146–8
jargon 131, 135–7 policy arguments 140–4
Hahlo, H. R. 35 Jestaz, P. 87 opacity 148
Hamson, C. J. 170 Jhering, see Ihering procedural aspects 138–9
Harlow, C. 178 Jolowicz, J. A. 146 terminology 134
Hauriou, Maurice 152, 174, 175 Josserand, Louis 53, 149, judicial independence 95, 96,
hierarchy of courts 71–4 253, 277 104, 110
hierarchy of norms (hiérarchie Journal Officiel (JO) 11, judicial law-making, see
des normes) 5–6, 9, 59 38, 57, 61 jurisprudence
308
308 Index
judicial reasoning 101, 111– 27; legal jargon 131, 135–7 revirement de

see also judicial syllogism; polysemy 134 jurisprudence 75
statutory interpretation terminology 131–7 definition 76
civil law v common law 112 useless or empty Molfessis Report 77–8
English v French judicial phrases 137 prospective
practice 109 judicial syllogism 113, overruling 77, 78–9
deductive method 111–12, 114, 115–22 retrospective
113, 115 arrêts de rejet 118–19 application 77
logic 111–12, 113, 114 categorisation separation of powers 65–6
Magnaud phenomenon 113 problems 125–6 source of law 64–5
motifs de droit 69 certainty 121 stare decisis, no doctrine
rules of law to be Court of Cassation 116–26 of 68–71, 77
applied 113, 114 definition 115 status 65–71
syllogisme judiciaire 111 Euler’s diagram 115, 116, 117 subordinate to legislation 81–4
judicial review (recours pour excès fact finding 125–6 jus commune 33
de pouvoirs) (REP) 13 functions 121–2 justice
acts which cannot be called guidance for resolution of access to 199
into question (actes de further cases 121–2 administrative law 177
gouvernement) 188–9 illustration 115–18 consent 228–30
declaration of nullity 187–8 justification 121 decentralisation of 198–9
détournement de pouvoirs 187 limits 122–7 public law 192–3
formal requirements 186 major premise 123–5 justice retenue/justice
grounds for review (cas persuasion and 127 déléguée 173–4
d’ouverture) 186–7 qualification des faits 125–6 Justinian 159, 160
incompétence 186 rationality 121
légalité externe/légalité syllogisme ascendant/syllogisme Kahn-Freund, Otto 161–2
interne 186 régressif 126 Kelsen, Hans 5
standing (intérêt à agir) 185–6 variations 118–21 Kötz, Hein 35–6, 113
vice de procedure/vice de juge d’instruction 197,
forme 186–7 206, 208–10 Labbé, J. E. 152
violation de la loi 187 miscarriages of justice 208–9 La Bruyère, Jean 103, 156
judicial style 128–48 proposed abolition of the Laferrière, E. 190
accessibility 135 role 201, 209 laïcité (secularism) 92
ambiguous words 137 juridiction 134 Lambert, J. 158, 159
archaic language 136–7 juries 196, 197 land registration 299
areas of difficulty 132 jurisdiction, conflicts of 179–84 Latin phrases and maxims 135–6
words having ordinary and jurisdiction, geographic 198–9 law-making process 1–2
legal meaning 133 jurisprudence, see precedent law reform vii, 90–8
words in legal language advocates and advisory committees 95–7
with more than one opponents 64 Catala reforms 212, 241, 246,
meaning 134–5 arrêts de règlement, prohibition 247, 250, 255, 294
words used in legal language of 66–8, 77 Conseil d’État’s public report 98
only 132–3 complementary to contract law 211–12
Commission de legislation 84–6 Court of Cassation’s annual
Modernisation du Langage consensus 87–8 report 97–8
Judiciaire 130, 133, 136 custom 87 Défenseur des Droits 91
criticism 129–30 duty to adjudicate 88 genesis 91–5
dictionaries 131–2 French v English individual campaigners 92, 94
discourteous expressions 137 terminology 134 lack of systematisation 90
judgments, form and structure implicit acceptance 87 Members of Parliament 90
of 137–9 jurisprudence projets de loi 90
justification for constante 69, 74–5 procedural reform 193–5
decisions 139–48 legislation and 81–6 property law 281
Latin phrases and legitimacy of judicial law propositions de lois (private
maxims 135–6 making 87–8 members’ bills) 91
309
Index 309
public opinion 92, 93 legislative agenda 12 Malaurie-Vignal, M. 153

social forces 92, 93 legislative drafting 13–14 Markesinis, B. S. 109
law reports 152, 153 Commission Supérieure de Massip, J. 153
leases 282 Codification 41–2 Maury, J. 87
legal aid 199 generality v Mazeaud, H. 97–8, 258
legal certainty, see certainty particularity 15–18 McGregor, Harvey 224
legal education 156–66 simplicity v complexity 18–21 mental health provisions 182
abstraction 157 legislative process 11–12 mesures d’ordre
civil law tradition 156, 157, vote of confidence 12 intérieur 188–9
158, 159–60 legislative sources 4 Mimin, P. 129–30, 137
common law tradition 156, Constitution as the supreme ministre-juge 173
157, 158, 160–1 norm 6–7 Ministry of Justice 192–3
cours magistraux 163–5 government regulations, see mistake 132; see also erreur
cultural and historical règlements Mitchell, J. D. B. 177
context 157–63 jurisprudence 64–5 Molfessis Report 77–8
curriculum 165 complementary to Montesquieu, Charles-Louis
digital economy 162 legislation 81, 84–6 Secondat, Baron de 3,
disputationes 165 main categories 5 19, 65–6
English system 157, 158–9, 163 parliamentary statutes, see lois motifs 137–8
Advisory Committee on treaty provisions and domestic motion de censure 12
Legal Education and law 8–9 movable property 284–5, 297–8
Training (ACLEC) 161 legislative supremacy 1, 3, 4 Muslims 93, 181–2
Inns of Court 160–1 lésion 239
transformation 161–2 Lindon, R. 139 Napoleonic codes 25, 50, 160,
examinations 164, 165 locus standi 185 164, 213, 283
Glossators 159–60 logic 111–12, 113, 114, negligence
impact on legal systems 156 158, 164 contributory negligence 274–5
lectures 164 loi, meaning of 134 employers 268
logic 158, 164 lois (parliamentary statutes) 5 public bodies 189
maîtres de conferences 164 articles 23 New Rhetoric 127
multidisciplinary codification 37–8 Niboyet, J. P. 215
approach 163 component parts 21–4 non-binding opinions
plan de cours 164, 165 date 21 (avis) 62
post Glossators/ enacting formula 22–3 normographie 13
Commentators 160 layout 21, 24 notes d’arrêts 149; see also
professeurs 164 lois de circonstances 94–5 case notes
quaestio disputata 165–6 lois impératives 218 nullité 239–40
Roman law 157, 158, 159–60 lois interprétatives 60–1 numerus clausus 288
teacher’s law v practitioner’s lois ordinaires 10–11
law 159–61 lois organiques 9 obligation de sécurité 213
teaching methods 163–6 lois référendaires 10 Oliver, D. 178
textbooks 162 lois supplétives 218 omissions 255–6
transformation 161–3 ordonnances 10 ordonnances 10
travaux dirigés 165 preamble 22 Ormrod Committee 161
légalité externe/légalité title 22 ownership 282
interne 186 loss of chance 262–3 absolute right 286–8
legal jargon 131, 135–7 Loysel, Antoine 222 abuse of right 142, 292–4
legal norms 5–6, 9, 59 abusus 291–2
legal principles 15–16 Mackay, James, Lord exclusive rights 288–9
legislation Mackay of fiducie 284, 289–91
general characteristics 4–6 Clashfern 106, 107 fructus 291
interpretation, see statutory Macmillan, Harold, Lord limitation 292–4
interpretation Macmillan 158 perpetual right 289
number of statutes and magistrats 204 propriété 286
regulations 3–4 Magnaud phenomenon 113 usus 291
310
310 Index
pacta sunt servanda 221–2 contra legem 86 projets de lois (governmental

pain and suffering, liability English law 74–5 bills) 11, 90
for 135, 143, 259, factors giving weight promises 224, 225, 227–8
261, 262 to 71–9 promissory estoppel 224
Pannick, David, Lord hierarchy of courts 71–4 property law 281–300
Pannick 107 higher court decisions 71–2 Civil Code 281–2, 284, 286,
parental liability 257–8, 276–7 implicit acceptance 87 287, 289–91, 294–300
Parliament jurisprudence copropriété 288, 289
Assemblée Nationale 11 constante 69, 74–5 droit des biens 281, 282
Sénat 11 lower court decisions 73–4 easements 287
parliamentary statutes, see lois praeter legem 85–6 English law 282
patrimoine 283–4 revirement de jurisprudence 75 fiducie 284, 289–91
Perelman, C. 127 definition 76 immovable property 142,
personal injury 253–4, 261, 289 Molfessis Report 77–8 284–5, 297
plaider-coupable 206, 207 prospective land registration 300
Planiol, M. 241, 293 overruling 77, 78–9 movable property 284–5, 297–8
plea bargaining 196 retrospective numerus clausus 288
police application 77 ownership 282
administrative law 181–2 secundum legem 84–5 absolute right 286–8
criminal procedure 206 stare decisis 68–71, 75, 77 abuse of right 142, 292–4
police administrative 181, 182 statement of principles of abusus 291–2
police judiciaire 181, 182 general application 79–81 exclusive right 288–9
powers 94 préjudice corporel 259, 260–1 fiducie 284, 289–91
protection of commercial préjudice d’affection 266 fructus 291
premises 182 préjudice matériel 259, 260–1 limitation 292–4
sectioning under préjudice moral 261 perpetual right 289
mental health prescription acquisitive 282, 296 propriété 286
provisions 182 presumption of innocence 203–4 usus 291
policy considerations 141–4 principes généraux de droit 52–3 patrimoine 283–4
polysemy 134 private law, see public/private possession 282
Posner, R. 112 law divide acquisition of
possession 282 privity of contract 247 ownership 296–8
acquisition of procedure 192–210; see also animus domini 294
ownership 296–8 civil procedure; criminal detention and 294
animus domini 294 procedure protection of one’s
corpus 294 administrative law 184–90 possession 296
detention and 294 Civil Procedure Code usucapion 282, 296–7
immovable 297 (CPC) 193, 194 prescription
movables 297, 298 Code de l’Organisation acquisitive 282, 296
prescription Judiciaire (COJ) 193 propriété fonction
acquisitive 282, 296 collegiality 199–200 sociale 292
protection of one’s contradiction 200–1 public interest 287
possession 296 core principles 198–202 reform 281
usucapion 282, 296–7 decentralisation of Roman law 283, 284, 288,
Pothier, Robert justice 198–9 291
Joseph 149, 160, 212, 222, double degré de third parties 300
227, 267 juridiction 201–2 transfer of title 298–300
precedent equality 198 troubles anormaux de
arrêts de principe 75, 79–81 free access to justice 199 voisinage 294
Assemblée Plénière 72–3 inquisitorial system 193, trusts 289–91
binding authority 74–5 195–8, 210 usucapion 282, 296–7
case notes and 154–5 judgments 137–8 usufruct 287, 289
Chambre Mixte 72–3 justice 192–3 propositions de lois (private
consistent line of reform 193–5 members’ bills) 11, 91
precedents 74–5 procédure participative 194 propriété 286
31
Index 311
propriété fonction sociale 292 religious freedom 217–18 balance of powers 96

Providers of a Public Service réparation intégrale du Sériaux, A. 151
(SPIC) 183–4 préjudice 259–60 service public 175
proximity 253 réponses ministérielles 61–2 Simler, P. 162
public bodies 183–4 rescission 239–40 Sirey law reports 152
faute de service 189–90 restitution 240 social change 49
justice system 192–3 réticence 237 social forces 92, 93
liability 189 revirement de jurisprudence 75 social security 253
public interest 287 definition 76 socio-economic
public opinion 92, 93 Molfessis Report 77–8 relationships 219, 229
public/private law divide viii prospective sources of law, see legislative
administrative law 169–75 overruling 77, 78–9 sources
conflicts of jurisdiction 179–84 retrospective application standard of care 256–7
controversy 178–9 and prospective standing ( intérêt à agir) 185–6
Law of 16–24 August 1790 171 overruling 77 stare decisis 68–71, 75, 77
origin of the Revolution (1789) 160, 170, statutes, see legislation; lois
distinction 170–3 171, 199 statutory interpretation
preliminary reference Ripert, G. 90, 91–2, 94, 149 English and Continental law
(exception d’illégalité) 172 road traffic accidents 275–6 approaches 44–5
successive constitutions 172–3 Robespierre, Maximilien 64 equity, recourse to 51–3
public prosecutors 204–6 road traffic accidents 20 exceptio est strictissimae
puissance publique 174, 175 Roman law interpretationis 59
punitive damages 246–7 abusus 291–2 exegetical method 50
contract 219, 221–2 external aids 56–60
quaestio disputata 165–6 delicts 251 historical method 54
qualification des faits 125–6 fiducia 284 internal aids 55–6
question prioritaire de fructus 291 Libre Recherche
constitutionnalité Gaius’ classificatory Scientifique 54–5
(QPC) 11–12 distinctions 283 literal approaches 47–8
Latin phrases and lois interprétatives 60–1
Rapporteur Public 58 maxims 135–6 maxims 59–60
ratio decidendi 75 legal education 157, presumption of
ratio legis 55 158, 159–60 interpretation 59
Rau, Charles Frédéric 55, numerus clausus 288 purposive approach 44, 53
149, 283 property law 283, 284, 288, 291 quand elle [la loi] est
reasoning 55–6 res mancipi/res nec mancipi 284 obscure, il faut en
justification for res nullius 284 approfondir les dispositions
decisions 139–48 usus 291 pour en pénétrer
recours pour excès de pouvoirs Romano-Germanic tradition vii, l’esprit 47, 50
(REP), see judicial review 26, 160 quand la loi est claire, il faut la
recoverable loss 259–60 Rousseau, J. J. 1, 3, 15, 214 suivre 46, 47–50
référé-conservatoire 185 Ryan, K. W. 242 référé legislatif 60
référé législatif 60 réponses ministérielles 61–2
référé-liberté 185 Saleilles, Raymond 152, 253, 277 scientific method 54–5
référé-suspension 185 same-sex couples 93, 150–1 si l’on manque de loi, il faut
reform, see law reform Sauvel, T. 154 consulter l’usage ou
règlements (government Savatier, René 152, 153, 178 l’équité 47, 51–3
regulations) 5, 12–13 Savigny, Friedrich Carl specialia generalibus
arrêtés 13, 16 von 295 derogant 59
codification 38 Schwartz, B. 170 teleological method 53–4
décrets 13, 16 secrecy 145 travaux préparatoires 22, 56–9
règlements autonomes 13 sectarian groups 95 ubi lex non distinguit,
règlements d’application 13 secularism 92 nec nos distinguere
religious belief, outward signs Sénat 11 debemus 59
of 92–3, 181–2 separation of powers 4, 65–6 stipulation pour autrui 248
312
312 Index
suicide, incitement to 94 force majeure 273–4 Tunc, André 140–1, 143,

surrogacy 97, 151 general conditions for civil 152, 275
syllogisme judiciaire 111; see also liability 254–68
judicial syllogism guaranty funds 253–4 UNIDROIT Principles
syllogistic reasoning, see judicial historical development 253–4 of International
syllogism industrial accidents 268 Commercial
synallagmatic contracts 219, legal provisions 15 Contracts 213, 229,
220, 221 liability for things in one’s 239, 259
keeping 268–76 Uniform Commercial Code
Tallon, D. 30 loss of chance 262–3 (US) 29, 230
tax law 19 neighbour principle 252, unilateral contracts 220, 221, 223
Terré, François 72, 162, 212 255 United States
terrorism 94 non-pecuniary loss 261 contract law 228, 230
Théry, Irène 97 omissions 255–6 Uniform Commercial
third parties pain and suffering, liability Code 29, 230
contract 247–9 for 135, 143, 259, usucapion 282, 287, 296–7
property law 300 261, 262 usufruct 287, 289
tort 274 pecuniary loss 260 usus 291
title, transfer of 298–300 personal injury 253–4, 261
tort viii, 250–80 préjudice corporel 261, 262 Van Caenegem, R. C. vii
abstention 255–6 préjudice d’affection 266 Vaugelas, Claude Favre de 130
broad approach to 250–3 préjudice matériel 259, 260–1 Vedel Committee 95, 96
categorisation approach 251 préjudice moral 261 vicarious liability 276–80
causation 266–8 proximity 253 vice de procédure/vice de
children, liability public bodies 189 forme 186–7
of 257–8, 276–7 recoverable loss 259–60 vices du consentement
Civil Code 250, 251, 254–5, réparation intégrale du 233–4, 238
260, 261, 266, 268–70, préjudice 259–60 victims
275, 277 road traffic accidents 275–6 contributory
contributory standard of care 256–7 negligence 274–5
negligence 74, 274–5 third party, act of 274 death of, effect on cause of
damages 253, 259, 289, 293 troubles anormaux de action 265–6
Dintilhac nomenclature 261 voisinage 294 of crime 207
punitive 247 vicarious liability 276–80 Vignau, M. 108
death: effect on cause of wrongful life/wrongful birth Villey, M. 111, 123
action 265–6 claims 263–5 violation de la loi 187
defences 273–6 Touffait, Adolphe 140–1, 143 violence 238–9, 240
dependants 265, 266 transparency 148 voie de fait 182–3
duty of care 255–6 transfer of title 297–9 von Buri, Maximilian 267
duty to mitigate loss 259 travaux dirigés 165 Von Kries, Johannes 267
ecological damage 265 travaux préparatoires 22, 56–9 vote bloqué 12
economic loss 259 treaties 5
emotional loss 266 Constitution superior to 7 Wade, H. W. R 177
employers’ domestic law and 8–9 Waline, M. 87
liability 268, 277–80 Tribunal des Watson, A. 159
English law 251, 252 Conflits 179–80 Webb, J. S. 28
equivalence test 267–8 tribunaux de Weil, Prosper 175
fault grande instance 71, Woolf reforms 194, 196
decline of the concept 257–8 199–200 wrongful
determination of 256–7 tribunaux d’instance 71, 200 life/wrongful birth
duty of care and 255–6 troubles anormaux de claims 263–5
lack of definition 254–5 voisinage 294
faute 251 trusts 289–91 Zweigert, K. 113

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i

Adam, CE 8 July 1998 . . . 174 Brunet-​Lecomte and Lyon Mag v France

xiv Table of Cases

Chabba, CE 23 May 2003 . . . 189 Conseil Constitutionnel Decision 89–​1138 AN of

xvi Table of Cases

Table of Cases xvii

TABLE OF LEGISL ATION

French Constitution 1992 Maastricht Treaty . . . 7

art. 711 . . . 298–9 art. 1165 . . . 241

Table of Legislation xxi

art. 1271 . . . 261 art. 2279 . . . 124, 296, 298

xxii Table of Legislation

art. 15 . . . 200 Lois

Table of Legislation xxiii

4 August 1981 . . . 94 12 April 2000 on the rights enjoyed by

xxiv Table of Legislation

2016–​1088 of 8 August 2016 on quality of Canada

THE LAW-​M AKING

2 The Law-Making Process

setting up of a Commission Supérieure de Codification in 1989. Chapter 3 examines the

Contemporary legal writers sum up Montesquieu’s statement in the following catch-

4 LEGISLATION AND THE CONSTITUTIONAL FRAMEWORK

This over-​abundance of statutory instruments has, in recent years, been a cause of

6 LEGISLATION AND THE CONSTITUTIONAL FRAMEWORK

8 LEGISLATION AND THE CONSTITUTIONAL FRAMEWORK

10 LEGISLATION AND THE CONSTITUTIONAL FRAMEWORK

12 LEGISLATION AND THE CONSTITUTIONAL FRAMEWORK

under review. More generally, QPC, by broadening constitutional review in France,

an important distinction must be drawn between règlements autonomes and règlements

14 LEGISLATION AND THE CONSTITUTIONAL FRAMEWORK

(a) generality v particularity;

These are now considered in turn.

16 LEGISLATION AND THE CONSTITUTIONAL FRAMEWORK

18 LEGISLATION AND THE CONSTITUTIONAL FRAMEWORK

20 LEGISLATION AND THE CONSTITUTIONAL FRAMEWORK

Il y a également délit, lorsque la loi le prévoit, en cas de faute d’imprudence, de négligence

Layout and Component Parts of a Statute 21

22 LEGISLATION AND THE CONSTITUTIONAL FRAMEWORK

Layout and Component Parts of a Statute 23

Where the loi has been adopted by referendum, the formula is:

24 LEGISLATION AND THE CONSTITUTIONAL FRAMEWORK

W HAT D OE S C ODI F IC AT ION M E A N ?

What Does Codification Mean? 27

What Does Codification Mean? 29

F U N C T IONA L A P P ROAC H TO C ODI F IC AT ION

A DVA N TAG E S OF C ODI F IC AT ION

Accessibility and comprehensibility can both be reasonably achieved by codification

Consistency and certainty

OB J E C T ION S TO C ODI F IC AT ION

Adjusting to codification techniques may be very demanding for lawyers in legal

C ODI F IC AT ION M E T HOD A N D T E C H N IQU E S

Codification Method and Techniques in France 37

Codification Method and Techniques in France 39

The Commission SupÉrieure de Codification 41

departments, sections of the Conseil d’État, and parliamentary commissions relevant

WOR K I N G M E T HOD OF T H E C OM M I S SION

The Commission SupÉrieure de Codification 43

L’interprétation est la forme intellectuelle de la désobéissance.

supplementing the codes through the process of interpretation, being as it is a question

M E T HOD S OF I N T E R P R E TAT ION

Nowhere, in French law, do we find any general authoritative statement concerning

S I L’ON M A N QU E DE LOI , I L FAU T C ON SU LT E R L’ U S AG E OU

Particular instances of recourse to equity

Adam, CE 8 July 1998 . . . 174 Brunet-Lecomte and Lyon Mag v France

Chabba, CE 23 May 2003 . . . 189 Conseil Constitutionnel Decision 89–1138 AN of

2016–1088 of 8 August 2016 on quality of Canada

THE LAW-M AKING

This over-abundance of statutory instruments has, in recent years, been a cause of

(i) In Société France-Éditions et Publications v Société Laboratoires Solac et Chambre