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December 08, 2011

Good grief!

I too shared the surprise of the author when reading about acts contra bonos mores as interpreted by the BGH in the “Inaccurate audit” case. Just like the author I felt it was too broadly interpreted and stretches the law too far.

Negligence is typically not a state of mind one would perceive as going against good morals and custom. It is a state of utter carelessness, but not one that contravenes what society believes to be ethically valuable. The BGH circumvented this issue by judging the defendant acted willfully. But the facts of the case paint a totally different image. He seemed not to care at all either in the performance of his duties or in the consequences they would have. But labeling it contra bonos mores seems to me quite a leap. Surely such acts are reprehensible but not so far as to call them “acts against the good morals.”

There are two risks, in my humble opinion, in using boni mores to impose tortious liability in such a broad manner.

First, it can be perceived as outcome-based justice. The court wanted to find him liable and extended an area of the law that was relatively loosely defined to do so. One could understand this as judicial activism.

Second, I believe it does harm to the notion of boni mores. It effectively blurs the line of what is against good morals and values and what is not. This seemingly all-inclusive category has in a way become a filler for an otherwise partially ineffective tort law. Arguably one could say the same thing about the tort of negligence in English law. But the difference lies in the fact the tort of negligence was incremental progress of already existing law; it was new but not radically new. The application of boni mores in this specific case, on the other hand, constitutes an unsound expansion of a morally charged doctrine.


December 07, 2011

The 'Chronopost' Saga


This week, we will have a special look at a case which was held in 1996 and became the starting point of a famous a series of decisions, also known as the 'Chonopost' saga. In the first case it was decided that the relevance of an exclusion clause of a contract, limiting the liability of one party, could be controlled by th judges on the basis of article 1131 of the civil code.

Source of a lot of academic works, this case allowed the judges to scruntinize the terms of a contract and to remove those obviously making the contract unbalanced. What has been surprising in this decision was the ground. Using the 'cause' as a basis of a judicial control of the terms of a contract considerably extend its scope of application. In the case the clause was refused because contradicting an 'essential obligation' of the contract, withdrawing the cause of the obligation. We were close to accept such an ability for the judges as soon as in 1996, but several cases came to limit the scope of the input of the first Chronopost case.

The commercial Chamber of the cour de cassation has come to say in 2002, that in the case of a clause of 'legal' origin, the faute lourde was necessary to exclude an exclusion clause, the contradiction of an 'essential obligation' could not intervene. That was confirmed by a decision of the combined Chamber in 2005, gathering both civil and commercial Chamber, which also told that when a clause is not of 'legal origin', the Chronopost input of 1996 was still valid.

The discretion of the judges as to this matter seems restricted compared to the one granted by the section 11 of the Unfair Contract Terms Act 1977, which submits the validity of an exclusion clause to a test of 'reasonableness'.


Right to refuse consumers

   In an Indian Restaurant in Leamington spa, one sentence at the botton of the menu drawed my attention : « this restaurant reserves the right to refuse to serve a customer WITHOUT providing any justification or reason ». We can understand the aim of such a mesure : preserve the restaurant from entree of alcoholics, unruly customers etc. These are reasons the law generally protects. But the law also protects the customer from discrimination. Are such clauses conform with our respective laws ?

Under french law, this statement will be considered as void. Indeed, the code de la consommation prohibits « to refuse to sell a product, or supply a service, to a consumer WITHOUT a legitimate reason » (1), which can be for instance the offensive behaviour or the of the consumer (2). So france, as often, protects the consumer against such discrimination, by establishing a presumption of discrimination when there's no legitimate reason to refuse to supply a service or sell a product to a consumer.

In England, there's some statutory provision which protects against discrimination such as for instance the equality act 2010, but there are no special provisions concerning the consumer. What is punished is to refuse to sale a product or supply a service WITH a discriminating reason. The fact of not providing any reason is not forbidden in itself, following the principle of freedom of contract. Only one of the discriminating reasons listed in the act can be questionned, i.e. Age, Disability, Gender reassignment, Marriage and civil partnership, Race, Religion or belief, Sex, Sexual orientation. So this is to the "consumer" or other victim of discrimination to proof the discrimination and its nature, which is not really easy to do in practice. Hopefully we can note that case law complete efficiently this protection concerning insurance contracts by admitting a general duty of fairness and rationality to the insurer (4) - which is not the case everywhere (cf. debates on the insurance system in the U.S.A).

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  1. Art L122-1 of the code de la consommation

  2. « Constitue en revanche un motif légitime le comportement insultant et l'impolitesse d'un consommateur » ●Versailles, 7 mars 2003: Lettre distrib. mai 2003, p. 4.

  3. equality act 2010 c.15

  4. Wood v Wood (1874) L.R. 9 Ex. 190 and McInnes v. Onslow Fane [1978] 1 W.L.R. 1520 ; cited in « Common values in public and private law and the public/private divide », Dawn Oliver, P.L. 1997, Win, 630-646.


December 01, 2011

Trust and fiducie

England has been including the concept of trust in its legal system for such a long time that it has been recognized as a key feature of the Common Law. Trough a trust, a settlor transfers a property to a trustee for the benefit of a third party, the beneficiary. It can be created by a written trust instrument signed by the parties, orally, by the will of a de cujus or by court.

Introduced in France by the loi du 19 février 2007, the fiducie has tried to fill the absence off such a concept in French law, trying to adapt it into its civil legal system. Fiducie and Trust are quite different one from another, the French legislator having tried to answer a legal need without copying literally the use or the status of the English legal idea. In fact, it appears that the legislators did not intend to grant the same flexibility to this legal device as granted to trust. Thus, trust can be implied, that is to say created without express will, fiducie cannot. The conditions to create a trust1 are also less heavy thant those to create a fiducie2.

The incorporation of the fiducie into French law has been the subject of a very intense doctrinal debate, of which every French law student has heard of, because it was said to go against the principle of unicité du patrimoine. According to this principle, an unique patrimony is attached to a physical person, that may explain the reluctance of the parliament to accept such a flexible device as trust.

It is really interesting to look at the differences between the two notions because they highlight the differences between French and English broad legal principles.


1 Knight v Knight(1840) 3 Beav 148

2 Article 2018 of the civil code


November 30, 2011

Tort and contract

Interestingly enough I was expecting reading on the tort systems of France, Germany and England to have distinct objectives. As the reading revealed to me, the goals are quite similar and can even be considered common to all legal orders: compensation, deterrence and loss-spreading.

However, as I suspected and as the text proved, the weighting given to each of these is differs from country to country. Thus, French tort law is a lot more paternalistic and focuses much more on preventing the occurrence of socially undesirable behavior. By contrast, German law has a more rights-based speech, a trait well-engrained in the German legal culture.

Seemingly the fact French law does not recognize either a neighbor principle or a fixed list of protected legal interests. At first hand it would appear as being extremely broad and highly susceptible to the English “floodgates” argument. Without having specific knowledge of any precise cases or classes of torts (such as defamation or trespass to the person), I suspect French law answers the “floodgates” concern with a stricter interpretation of the other requirements for a successful tort action. Hence notions such as damage or causation can be interpreted in ways that would limit the number of claimants.

Distinct to this general regime of tortious liability, in French law, is the tort of defamation. Defamation in French law is mostly governed by provisions of criminal law. The civil liability however is dealt with in the law concerning defamation rather than the general principle of liability. Again, without having looked into it too deeply, I believe it stems from a desire to provide a better balance between freedom of speech and protection of one’s honor and reputation. I think a comparison of all three legal systems and their approach to defamation would give a solid insight in how they conduct the right-interest balancing act.


The problem of precontractual liability in Europe

Today, I want to speak about the different approach of precontractual liability in Europe and the consequence in cross-borders disputes.

In the different law systems, there are 2 viewpoints concerning the possible liability of one party breaking off precontractual negotiations:

-The negotiations are purely preparatory and cannot have a legal significance.

-The negotiations are a collaboration between the parties who are protected by the law.

  • In the common law jurisdictions, there is a reluctance to attribute legal significance to the precontractual phase.

There can be no duty to negotiate in good faith because, by entering into negotiation, one party has not given up the freedom to change his mind, he is entitled to pursue his own interest, so long as he avoids making misrepresentations.

see case Wilford v. Miles [1992] 2 AC,128,138 (Lord Ackner)

Thus English law doesn't reject all liability during the negotiations for example when the defendent makes a false statement during the course of the negotiations, which the claimant believes and act on.

  • In Germany, the beginning of the negotiations have a formal legal significance. A special relationship (Sonderrechtsverhältnis) is created between the negotiating parties by virtue of the law (gesetzliches Schuldverhältnis) imposing on both parties duties of protection and loyalty (Schutzpflichten). A party liable on the ground of culpa in contrahendo in paragraph 311 BGB (fault in conclusion of a contract) has to make up for the aggrieved party's reliance interest (Vertrauenschaden), but it is not sufficient for a party to say that he relied on the future contract to obtain a remedy where negotiations are broken off.


  • In France, the precontractual negotiations between two parties (les pourparlers) are also following the principle of freedom of contract and each party is free to break off the negotiations. But this rupture cannot be the consequence of a fault or an abuse of one of the parties, otherwhise he will engage his liability in tort. (Article 1382 and 1383 of the french civil Code)

→The claimant must prove a fault, a prejudice and a causality link.

Since the "Manoukian" decision of the Cour de cassation of the 26 November 2003, it is not possible for a party to ask for damages for the loss of the chance to conclude a contract. Also, in an other decision of the 14 September 2005 (3ème chambre civile), the Court held that the obligation of good faith suppose the existence of a contractual relationship.

We can see that the french, english and german legal systems recognise, in effect, that there is a balance to be struck in the analysis of the precontractual phase but there is a difficulty to determine the form of liability in the precontractual phase because in most of the law systems, there's a distinction between the regime of contract and tort.

For example, in Germany, the special nature of the precontractual phase merits special treatment, "a tertium quid" between contract and tort whereas in France, the rules of tort must be applied without any significant amendment.

The European Court of Justice has held that for the purpose of the Brussels Convention of the 27 September 1969 on Jurisdiction and the Enforcement of Hudgements in civil and Commercial matters (OJ 1978 L 304 p.36), a claim for damages for breach of the precontractual duty to negotiate in good faith is a claim in tort (article 5.3) rather than a claim in contract (article 5.1). This distinction is also held in the Rome I (EC 593/2008, recital 10) and Rome II (EC 864/2007, recital 30 and article 2.1, 12.1) Regulations.

To conclude, I will add that the Draft Common Frame of Reference contains specific provisions concerning precontractual liability (II-3:301: Negotiations contrary to good faith and fair dealing ) and specifies that most of the questions would be determined by a general duty of precontractual good faith, in the same way as in most of the european legal systems.


Good faith

It is an often repeated mantra that English law knows no doctrine of good faith. Since drafts of proposed European private law contain provisions regarding good faith or use good faith as an instrument, is its absence in English law detrimental to the possible success of these drafts?

I think the doctrine of good faith does not exist in English law on a purely semantic level. The law is shy to impose an obligation on contracting parties to operate in good faith, maybe because they fear it would be an additional burden on them. In addition to being reasonable, parties would have to negotiate in good faith, a general requirement whose scope they would be unsure of. The uncertainty argument has been used by the court in Walford v Miles. The case itself limits itself to pre-contractual situations: an agreement to use best endeavours to agree on the terms of the contract is equated to an agreement to negotiate, which courts are reluctant to enforce because it is uncertain.

But as Walford v Miles shows, this does not exclude the ‘best endeavours’ principle from applying to the performance of a contract. In that sense, it is similar to Article 1134 of the French Code Civil. In the former case it is subject to an express or implied, often by courts giving due regard to the circumstances of the contract, agreement to perform using ‘best endeavours’. In the latter case it is a State-imposed duty. Furthermore, regulation 5 of the Unfair Terms in Consumer Contracts Regulations, although only limited to B2C transactions, makes explicit reference to good faith and offers aids to interpretation in Schedule 2. Subsequent cases have shown courts are not hesitant or reluctant to effectively interpret this provision.

No overview of good faith in English law would be complete without reference to Equity. As a legal tool it is very much anchored around unconscionability, fairness and justice. Much like the notion of continental good faith.

I think, beyond the idea that strict adherence to a no-good faith policy is purely a belief, there is an economic argument. Businesses with little or poor legal advice will jump at the occasion to do business in a country which, at first hand, does not recognize a duty to negotiate in good faith, because it is a system that is portraying itself as placing paramount importance on freedom of contract.

To answer my initial question, I do not believe the absence of a notion of good faith is detrimental to a future implementation of harmonized European private law. If the argument is that good faith is too uncertain, surely it is overcome by precise definition of its content and scope in instruments such as the PECL.


November 29, 2011

International labels protecting food specialities

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Reading my new cooking book, I asked me a question : is it true that, as said Jamie Oliver, England doesn't have any label protecting foods specialities, as the french AOC Label (1)? This question deals with the interests of Consumers who can know what they are eating, its origins, how it is producted, etc. ; the one of Local producers who can increase in value their products, prooving that they follow a special and traditionnal method of production etc. And we know how tourists -but locals so- are fan of this « traditionnal » things. But it also concerns Bigger Producers who have to take care about how they make and how they call there products.

Making some researches I've found that if France is a reference in this matter, having protected his famous cheese and wine for a long time (2), its system - and notably the AOC Label (« Appelation d'origine controlée »)- inspired two international Labels :

The international « Appelation of Origin »

Creaded by the Lisbon Agreement in 1958 , this Label is administered by the International Bureau of the World Intellectual Property Organization (WIPO). It covers « the geographical denomination of a country, region, or locality, which serves to designate a product originating therein, the quality or characteristics of which are due exclusively or essentially to the geographical environment, including natural and human factors »(3). It has currently 27 member countries, among them France, but Germany and England are not part of this organization (4). it protects products like Porto (Portugal), Champagne (France), Tequila (Mexique) - (5). This topic will be re-debate in december 2011 in Genève by the actual working group on the development of the Lisbon System (Appelation of Origin) - (6).

The European Protected Designation of Origin (PDO)- in french AOC ("appelation d'origine protégée.")

This Label was introduced in 1992 and is today coverred by a regulation of 2006 (7), which was modified in 2008 (8). It protects, as said in the European Commission website «agricultural products and foodstuffs which are produced, processed and prepared in a given geographical area using recognised know-how. » (9). Moreover, there are two other relevant labels protecting the goods, the PGI (protected geographical indication) and TSG (traditional speciality guaranteed) (cf. 9). And, as shows the official databases, some english products are protected by this Label like white Stilton cheese, Blue Stilton cheese, West Country farmhouse Cheddar cheese (…). So "Jamie" was wrong : England Protects its food, and particularly his Cheddat! Of course still not so good as France in terms of quantity of products protected (currently 17 english v. 82 french products protected by this label). The quality of the protection allowed doesn't seems to be better either. For instance we can question the power of the well-named "West Country farmhouse Cheddar cheese" label : Do the english consumers really distinguish between this Cheddar and another one?

(PS : Thank you girls for the book!)

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  1. Jamie does... easy twists on classic dishes inspired by my travels, Ed. Pjoseph Michael, 22/04/10, p 284 : « Something France really gets right is the way it fights to protect the heritage and integrity of its food products and producers (…) by the AOC label (appelation d'origine controlée or « controlled term of origin »). (…) I think it's a shame we don't really do that in England. Just think : if Cheddar...».

  2. The first protection was the « Appelation Châteauneuf-du-pape » for wine in 1933.

  3. Lisbon Agreement, art 2 (1) http://www.wipo.int/lisbon/fr/legal_texts/lisbon_agreement.html

  4. About the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration, see : http://www.wipo.int/lisbon/en/general/

  5. To search Appelation of Origin (Lisbon Express) : http://www.wipo.int/ipdl/en/search/lisbon/search-struct.jsp

  1. Drafts and notes of the working Group on the development of the Lisbon System (Appelation of Origin) in http://www.wipo.int/meetings/fr/details.jsp?meeting_id=24524

  2. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32006R0510:EN:HTML

  3. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:173:0003:01:EN:HTML

  4. European Commission, Agriculture and Rural Development, http://ec.europa.eu/agriculture/quality/schemes/index_en.htm


November 23, 2011

Pre–contractual liability : a comparative perspective


A pre-contractual liability is foreseen by both Principles of European Contract Law and UNIDROIT Principles of International Commercial Contracts for bad faith, or lack of good faith. It is true that the concept of pre-contractual liability is well-known in continental europe, even though not achieved by the same means. Established in Germany through the doctrine of culpa in contrahendo, through the civil code of 1942 in Italy including the concept of good faith and in France through the jurisprudence, a liability during the period of negociation before a contract is absent of the English common law.

Thus, according to the decision of the House of Lords, Walford v Miles, a withdrawal of any of the parties is possible at any time before conclusion of a contract. Surprisingly, Canada has decided otherwise, finding a pre-contractual liability through Estoppel.

The position of English law, though well understandable to keep will, through contract, as the main source of obligation, appears to be outdated. Would an european project of unication of the law of contract see the light, there is few chances that the English position would be kept. As far as I am concerned, I believe this subject is a perfect example of the difficulty of according the different legal traditions in Europe, of putting in a place an uniform contractual regime within the EU.


Negligent and innocent misrepresentation (UK) v. Mistake as to the substance (France)

Whereas English law focusses on the concept of « Misrepresentation », subdivided in fraudulent, negligent and innocent misrepresentation, French law distinguishes between Dol (fraudulent misrepresentation) and Erreur sur la substance (Mistake as to the substance of the contract) – (1)

rjo0248l.jpg

The rules concerning dol and fraudulent misrepresentation are quite similar : where there is an intent to deceive and knowledge that the information provided is false, the other party can claim for damages and rescission of the contract (2&3). The most relevant difference between these two systems concern the so-called "negligent and innocent misrepresentation" and" mistake as to the substance": Whereas English law focusses on the act of one party (misrepresentation), french law focusses on its consequences concerning the act of the other party (mistake as to the substance). As a result, the English law borders more the scope of its protection and consequently the possibility of remedies than French law.

Scope of the protection -

Under english law, a mistake has to be based under an act of misrepresentation of the party, that is to say a positive act of the party. Consequently a party is under no duty to disclose facts even if (s)he is aware that knowing the facts would make a difference to the other party (4). On the other hand french law imposes an “obligation d'information” (duty to disclose facts) to the seller (/!\ but still not to the buyer, e.g. in the case of an auction). As a result it punishes omissions like silence, even if there was no intent to deceive. However this difference reduces through the influence of E.U law. For instance today English law does recognize a limited group of cases in which a duty of disclosure is imposed upon the parties to the contract (contracts of “good faith” or contracts “uberrimae fidei”), such as insurance contracts, fiduciary contracts or consumer contracts (5).


Remedies allowed by the courts - ;

Onces again, the French rules were more protective than the English ones, which are rather based on freedom of contract. French law allows since a long time the right of rescission of the contract in case of mistake as to the substance (6) which was not the case of english law. But the regimes concerning Mistake as to the substance (“erreur sur la substance”) and innocent and negligent misrepresentation come closer together since the English Misrepresentation act (7) which allows a party to rescind the contract or to obtain damages in lieu of rescision if “it would be equitable to do so, having regard to the nature of the misrepresentation and the loss that would be caused by it if the contract were upheld, as well as to the loss that rescission would cause to the other party.” The british courts considers in case of negligent misrepresentation, that is to say when the defendant carelessly makes a representation while having no reasonable basis to believe it to be true, this rescission and damages will always be allowed (8). In case of innocent misrepresentation, i.e. when the representor had reasonable grounds for believing that his or her false statement was true, are let to the appreciation of the judges, the courts do also allow rescission if the statement in question was (1) very important and (2) already spoken. Then, they can consider it as a term of the contract and applying the rule of breach of contract (9).

This comparisom shows the different ways England and France have balanced two interests in Law : to punish the wrongdoers (and just them?) v. to provide remedies for (any?) loss suffered. But it shows also the different essences that is given to the notion of contract : For the French law, a contract cannot exist without any "cause", any aim, whereas the english law requires just a consideration provided to the other party, i.e. an economical exchange.

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  1. NB : But this distinction is today criticized, dol causing the Mistake as to the substance of the contract of the other party as well. c.f. J. GHESTIN, La réticence, le dol et l'erreur sur les qualités substantielles, D. 1971, chron. 247 ].

  2. In English law, c.f. Hedley Byrne & co ltd v Hellers & partners ltd

  3. In French law, c.f art 1116 and 1117 code civil concerning the rescission and Cass. Com and 15 janvier 2002 concerning the damages

  4. c.f Keates v Cadogan [1851] 10 CB 591, Bradford Third Equitable Benefit Building Society v. Borders [1941] : “MERE silence, however morally wrong, will not support an action of deceit”

  5. e.g. Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantee – art 2 :

    Consumer goods are presumed to be in conformity with the contract if they: (…) (d) show the quality and performance which are normal in goods of the same type and which the consumer can reasonably expect, given the nature of the goods and taking into account any public statements on the specific characteristics of the goods made about them by the seller, the producer or his representative, particularly in advertising or on labelling.”

  6. French civil code, art 1117.

  7. Misrepresentation act 1967 – section 2(2)

  8. Hedley byrne v heller, Esso Petroleum co ltd v mardon (Lord Denning stated the rule by transporting the tort of negligence into contract law).

  9. [Birch v Paramount Estates (1956) 167 EG 196].


November 20, 2011

Pre–contractual negotiations (Ius Commune ch. 9)


This weeks reading is about the role of good faith in pre-contractual negotiations.

The combination of the words „good faith“ and „pre-contractual“ immediately triggers the association of culpa in contrahendo in a german law students mind. However, I learned that the c.i.c does not only comprise situations where there is a claim for personal damages in question, but also the obligation to negotiate in good faith. More precisely, there can even be situations when it is contrary to good faith to end negotiations.

While I can understand that it is important for a party to rely on the other's sincerity, my first reflex was to ask for the implications this has on contractual liberty (Vertragsfreiheit).

Why should it be against good faith to end negotiations? The point of negotiations is for the parties to find an agreement. However, if one party does not feel confident that there will be an agreement, contractual liberty allows to stop negotiations and look for better deals elsewhere. It seems that this was a misconception, taking the meaning of good faith too far. The authors explain on p. 381 that good faith in pre-contractual negotiations does not amount to what could be conceived as a “Kontrahierungszwang”. This would be contrary to a free economy.

The role of good faith is therefore to protect the party which is led to believe that there will be a subsequent contract in the future.


Also, it was interesting to see that although there is no general duty of good faith in common law, the outcomes are not very different. Other doctrines, like the doctrine of fraud, fulfill the same role.



November 17, 2011

Cause and consideration



The two concepts of cause and consideration evolved parallely in France and in England, as answers to the legal rising of contracts. As checks of the validity of contract, the absence of it, whether consideration in England and cause in France, the contract is void.

Although, the developpement of each was very different. Consideration doctrine is a narrow one, playing a significant role in the formation of contracts in Common law but not as wide as the doctrine of cause, which serves not only the purpose of checking whether a material exchange is made. It is to be understood that nder the concept of cause are gathered many of the functions dealt with by other concepts of the Common law. Thus, under the french concept of cause are solved the matters which would be, in Common law, by the concepts of illegality, public policy, frustration and consideration.

Public policy allows a margin of interpretation for the Common law judge, as does cause for the French judge. Both articles 1131 and 1133 of the civil code, the first one dealing with the objective cause of the contract and the secund one dealing with the subjective cause, allow the judges to evaluate the contract, to scutinize it, so that they appear as 'policemen of the contract'.

Under the concept of consideration, judges do not have but a narrow margin of interpretation. In itself, this makes a big difference between the ways those concepts are used. The question would be, why is it then, that the two concepts are always compared to each other ?


Cause considered

Unfortunately for me, this week’s reading concentrated on the fiend of French contract law: la cause. Consideration, I have no problem with. Perhaps I am bias because I have English “legal training” rather than French.

One thing however does puzzle me: why does the state have to go so deep into people’s minds? The use and interpretation of subjective cause stipulates that if I take out a loan to buy a machine gun and use it to commit a crime, the contract is void because the cause is illegal. This of course entails its own consequences in civil law but I fail to see how it is helpful from a social or a criminal law perspective.

First of all, if such a contract is judged to be void for illegal cause it means the whole case has gone to court and the law has failed in its preventive aspect. Doubtless that is one of the objectives of such a strange concept: to instill in people a certain respect for the law, to point out where the limits of their transactions are.

Secondly, cause is a very awkward tool. By way of contrast, the requirement for consideration answers the question ‘why enter into this contract?’ from an objective standpoint. Cause goes even further and asks ‘why do YOU want to form this contract?’ looking at the subjective intention and will of the party. This, I believe is going too far and is open to criticism.

It is not the role of legislation and law to go so far and attempt to mould our thoughts. Of course, law should be favoring ethical conduct but it then has to define what ethical behavior is. This, in democratic countries where people hold their own opinions, can be a nigh impossible task. Even if one agrees with the argument that the law should have such a pervasive role, why is contract law such a tool? Is criminal law, because of the punitive consequences which follow illegal behavior, not more suited to shape our morals?


November 16, 2011

Cause and consideration (Ius Commune ch. 5.1–5.3)


I read Ius Commune Contract ch. 5.1-5.3 in preparation for this weeks class.

The chapters deal with additional requirements to contracts. In France this is “la cause”, while in England the “consideration” forms such a requirement.

For a german law student these concepts are not so easily to grasp (at least this goes for me: I am still not quite confident to be able to fully appreciate the concept of consideration although it has been explained to me on numerous occasions). This is owed to the fact that in german law those supplementary conditions do not exist.

The other jurisdictions will deny the enforceability or even the existence of a contract in case of lack of consideration, respective lack of cause. This context makes the requirements seem rather important. Considering this, it is astonishing to see that a clear doctrine of consideration does not exist.

Also I find it quite intriguing, that an offer which is deemed to be “irrevocable” can in fact be freely revoked unless the promissee provides some kind of consideration. Why bother calling it irrevocable then?

But why does the BGB get on without these conditions? The Ius Commune authors explain this as one of the effects of the abstraction principle: the obligatory contract (schuldrechtlicher Vertrag) may be void without causing any damage to the real contract (dinglicher Vertrag). The real contract does not need a “cause of transfer”. This situation is remedied by the doctrine of unjust enrichment. Therefore the doctrine of unjust enrichment takes the place of cause and consideration in the BGB.


November 09, 2011

Explication : the revocability of the offer

Follow-up to The postal rule – Acceptance sent through the post from Aurelie's blog

This difference can be explained by the difference concerning the revocability of the offer in the 3 systems. Whereas German law considers the offer as irrevocable (1), French and English law accept this possibility of revocability in the name of freedom of contract, but with some limitations or exceptions.

The revocability of the offer is possible in England only when no consideration was provided and in case of bilateral contracts (2). In France, the general possibility of revocation (3) is limited to a “reasonable time” by jurisprudence (4). Moreover can the offeror bound himself by proposing a period of validity of the offer (5), which is not possible under English law (6). But this liability is limited to damages. Indeed, French law refused to govern pre-contractual period by contract law, and let apply tort law (droit délictuel) in such situations.

As said before, the choice between the two principal theories of emission and reception allows to answer in three different situations between the time the letter of acceptance was sent and the time it arrives :

- Did the offeree miss the deadline proposed by the offeror to accept the offer?

- Can the offer be revocked by the offeror?

- Is the offeree which send an acceptance and revocked it just after by mail bound when both arrived at the same time? NB: an acceptance is always NOT revocable when the contract was concluded, but is here the contract concluded?

The answers to the first and third question depend purely on the applicable theory. The answer to the second one depends on the applicable theory AND on the applicable law. Indeed, German law which doesn’t allow to revoke the offer has no interest to choose the theory of emission, which will just add problems concerning proofs for the 1st and 3rd situations. On the other hand, English and French law need this theory to protect the offeree from offeror’s revocation during this period.

There’s still one question: why does French law in this Avant projet Catala opt for the reception theory? This project conserved the possibility of revocability and its limitations, but allows the offeree to enforce the contract when it’s not respected (7). As explained by the authors, This “progress” in favour of the offeree is compensated by the theory of reception, which protects more the offeror, and reinforces its possibility to revoke the contract (8)…

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(1) 145 BGB<http://www.gesetze-im-internet.de/bgb/index.html#BJNR001950896BJNE031602377>

(2) Dickinson v. Dodds, 2 Ch. D. 463 (1876). For unilateral contracts, cf. Daulia Ltd v Four Millbank Nominees Ltd [1977] EWCA Civ 5

(3) Civ., 3 févr. 1919, DP 1923. 1, 126. But there are some situation where French law forbid to revoke the offer during a précised time such as consumer credit law (15 days), electronical contracts (while it is accessible on the website)…

(4) Civ. 3e, 25 mai 2005, no 03-19.411 , Bull. civ. III, no 117 ; CCC 2005. no 166, obs. Leveneur.

(5) Civ. 3e, 7 mai 2008, no 07-11.690, Bull. civ. III, no 79 ; D. 2008. AJ 1480, obs. G. Forest ; Pan. 2969, obs. Amrani Mekki ; RTD civ. 2008. 474, obs. Fages ; CCC 2008, no 194, obs. Leveneur. - Déjà Civ. 1re, 17 déc. 1958, Bull. civ. I, no 579 ; RTD civ. 1959. 336, obs. J. Carbonnier.

(6)

(7) Avant projet Catala, art 1105-4

(8) Avant projet Catala, section “formation of contracts”, art 1104-1107, commentary by Delebecque P. & Mazeau, D., §3 “certainty” < http://www.justice.gouv.fr/art_pix/rapportcatatla0905-anglais.pdf>


November 02, 2011

'Cause' and Consideration : two different concepts, two sources of headache


During the past few weeks I have struggling with a concept well established in the Common Law system though completely unknown by the civil Law system from which I come : The consideration, one of the key elements of the English contract, because without it a bilateral contract cannot be concluded.

At first sight it would appear that this concept looks like the one of 'cause' known in the French legal system, the 'cause' being also one of the needed elements of a contract in French Law1. They both have been in their legal system a source of intenses doctrinal debates, and still constitute a challenge of understanding for legal students.

In the French civil code no definition of the concept of 'cause' can be found, leaving the matter to the appreciation of the judges. The thing is, the interpretation of it has evolved since the creation of the civil code (1804), from a classical approach for which the cause would be what is expected in return of one's own performance, to a modern approach for which the cause would be the reasons which decided the party to enter a contract. But, the concept could not be reduced to only one of those approches, giving birth to a dualistic and complicated concept.

In the British Common Law as well, no absolutely clear definition of the concept of consideration has arisen, though a famous one has been given in the case Currie v Misa2 : ''A valuable consideration, in the sense of the law, may consist either in some right, interest, profit or benefit accruing to one party or some forbearance, detriment loss or responsibility, given, suffered or undertakent by the other.'' Thus, we can see that consideration would, partly at least, correspond to the classical approach of the French 'cause', without being able to cover every aspect of the dualistic notion.

It would be very intersting to compare the different aspects of law each of those concepts cover, and by what means legal answers are given in one State to the problems solved under its concept in the other one.

1 French civil code, article 1108.

2 Currie v Misa (1875) LR 10 Exch 153, 162


November 01, 2011

The social impact of contract law

I had to take a bus last Thursday and I was 50p short. Luckily a kind gentleman was generous enough to give me the money I needed. I could not help but think (sadly enough) that English contract law as it stands actually promotes this kind of positive behavior.

English law requires consideration for a contract. This means there is no contract when one party gives something to another party without the latter incurring any obligation. This in turn means that acts of pure generosity to do not bear the stigma of legal obligation: to give something does not mean you have entered in a contract with someone else; purely and simply it means you are giving. In other legal systems, at least as far as I have understood, a contract would be formed between the giver and the receiver. Of course in the example used above it would be ludicrous for me to claim my legal rights. But the simple fact that it is possible is, for me, troubling.

This is all based on the premise that people know what the law is. The fact of the matter is, the layman is ignorant of these fine legal details, so much so that acts of generosity are not limited to England & Wales.

Another point which I thought played a social role was the determination of an offer in a supermarket. I find that the English position – an offer being made by the buyer when he presents the goods at the till and accepted by the shop after scanning the goods – is perhaps awkward from a property point of view: the buyer is offering to goods he does not own; it seems antithetic with a ‘gut feeling’ so to speak. On the other hand I feel it is a sound policy: it means a cashier can refuse to sell alcohol to a person who evidently does not need more, or a pharmacist can refuse to sell painkillers to a person who is an obvious drug abuser.


The postal rule – Acceptance sent through the post

When does an acceptance sent through the post become effective? The answer to this question determines where and when the contract is formed, and allows to answer to three important questions : Did the offeree miss the deadline proposed by the offeror to accept the offer? Is a revocation made by the offeror between the time the letter of acceptance was sent and the time it arrives possible? Is the offeree which send an acceptation and revocked it just after by mail bind when both arrived at the same time?

There are 4 possibilities of answers :

  • when the offeree decide to accept (externalisation theory Äußerungstheorie)

  • when the offeree posts its acceptance (expedition or emission theory, dispatch theory, “postal rule”, übermittlungstheorie).

  • when he recieves the acceptance (reception theory, Empfangstheorie) - with presumption he will knew it.

  • when the offeror knows the acceptation (information theory, Vernehmungstheorie)

The most extrem possibilities (the 1st and the last) are innapplicable for proof reasons.

English law opted for the emission's theory under its “postal rule” (1), and then limits its application. For instance it's only applicable when it was reasonable to use post as a method of acceptance (2), the letter of acceptance was properly posted (3) and it didn't produced a “manifest inconvenience and absurdity” (4)

French civil code doesn't generally regulate this matter (5). French Cours de cassation decided for a long time that it was a question of facts, and should be decide “following the circumstances of the case” by the judges (6). Sometimes it decided to apply the expedition theory, sometimes the reception theory. But it definitely decided to support the emission theory in 1981 if the seller didn't stipulate anything (7). However it could change in a few years, a current law project recommending to delete it and to replace it by the reception theory (8). This theory has the inconvenience to protect more the seller than the buyer, seller who already often imposes his terms and conditions, for instance in consumer relationship.

Can we accept that a second acceptance from an other place after ours, which arrived before ours because of a strike in our post center is valid and that we consequently loose the contract? Is the contract law a game in which the more lucky win?

Anyway, today the reception theory (Empfangstheorie) is not out-of-the-way : German law opted for it in §130 BGB (9), just like the CISG (10) and Unidroit principle chose the reception theory (11).

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  1. Adams v Lindsell (1818) 1 B & Ald 681, confirmed in Dunlop v Higgins (1848) 1 HLC 381.

  2. Henthorn v Fraser [1892] 2 Ch 27. For instance, it doesn't apply if the offeree knows that there is going to be some delay to his acceptance due to an event such as a postal strike.

  3. Getreide-Import GmbH v Contimar SA Compania Industrial, Comercial y Maritima [1953] 1 WLR 207 (misaddressed acceptance).

  4. Holwell securities Ltd v Hugues [1974] 1 WLR 155 (CA), per Lawton L.J

  5. But art 932 code civil choose the “reception” system concerning donation contracts and art 1985 choose emission system concerning power of attorney (mandat).

  6. Cass. req. 6 août 1867

  7. Cass. com. 7 janv. 1981, Bull. civ. IV, no 14, RTD civ. 1981. 849, obs. F. Chabas

  8. Avant-Projet Catala, Art 1107.

  9. Art 130 BGB : Effectiveness of a declaration of intent to absent parties; (1)A declaration of intent that is to be made to another becomes effective, if made in his absence, at the point of time when this declaration reaches him. It does not become effective if a revocation reaches the other previously or at the same time.

    See statement in http://dejure.org/gesetze/BGB/130.html

  10. United Nations Convention on Contracts for the International Sale of Goods, art 18 : “A statement made by or other conduct of the offeree indicating assent to an offer is an acceptance”.

  11. Unidroit principles of international commercial contracts 2010 – art 2.1.6-2° : “An acceptance of an offer becomes effective when the indication of assent reaches the offeror”.

Sources :

Patrick CHAUVEL, localisation du consentement dans le temps et dans l'espace, répertoire de droit civil DALLOZ (online), CONSENTEMENT, section 5, notes 238-255.

E. Mckendrick, Contract law, Text, cases and materials, 9rd ed. Oxford press.

Einsele, MüKo-BGB, §130.


October 30, 2011

The relationship of § 309 Nr. 9 BGB and § 307 BGB

Follow-up to Roll–over contracts and the BGB from Per's blog


In the last entry, I referred to the argument on the relationship of § 309 Nr. 9 BGB and § 307 BGB being unclear.

Having done further research on that matter, it became clear that § 307 BGB serves as a catchall element (Auffangtatbestand) to § 309 Nr. 9 BGB. Therefore, § 309 Nr. 9 BGB only provides for the outer boundary of legality of rollover clauses1.

This special relationship is a consequence of the making of § 309 and cannot be derived immediately from the wording, which seems to be quite specific about what is allowed and what is not. In the process of making § 309 BGB, the legislator intended to create an abstract provision which covers the vast majority of cases2. This approach necessarily led to a compromise concerning the acceptable length of time. Consequently the limits are now simply too long for some contracts3. Therefore the purpose of customer protection requires the test according to § 307 BGB.

Interestingly enough, the above issue points to one of the issues of statutory law: it is difficult to create abstract, all-covering provisions while considering the particular case at the same time. A possible remedy for this is to create a catchall provision like § 307 BGB. At that point, the rest is left up to the judge who will decide the particular cases. Therefore, in constellations like above, a “common law element” enters into the german black letter civil law jurisdiction. Taking into account the growing complexity of life, it might be sensible to consider a blended “civicommon law”, when talking about the future of a common european law. There could be statutory rules to set the basis of law, while the particular application heavily relies on judges.

Would this be a means to combine the positive features of both systems?


Footnotes:

1 compare Staudinger BGB §§ 305 – 310 (2006), D. Coester-Waltjen, § 309 Nr. 9 Rn. 18, also: Münchener Kommentar BGB 4. Aufl. - Basedow, § 309 Nr. 9 Rn. 11.

2 Staudinger – Coester-Waltjen § 309 Nr. 9 Rn. 2.

3 Staudinger ibid.


October 26, 2011

The French legal position concerning ARCs concluded by Service providers


Created in 20051 under the impulsion of minister Châtel, the article L136-1 of the code de la consommation deals with the tacit renewal of a contract, concluded by a professional service provider. It imposes a duty from a service provider to its customer, to inform him the earliest 3 months and the latest 1 month before the end of the minimum contract period that the contract will be renewed, in order to leave the time to the customer to switch his provider, should he want to.

This article does not concern merely the communciations market, but all service providers. Although those are yet to be defined by the legislator, it appears that a lot of professionnals are concerned. It is the case of the Internet providers, phone providers, a subscription to a cinema, a theatre or a bus company, would they conclude a contract in which a clause of tacit renewal would be inserted.

Exceptions to this broad domain of application, a fourth alinéa was added in 20062, excluding the water suppliers from this duty of information. A sentence, added to it in 20083, provides that this article applies to the profit of customers, traditionnal protected subject of the code, and, which is more surprising, to the non-professionnals. It would mean that not only customers, physical persons, would be protected by this article, but also whoever legal person not deemed as a professionnal.

The consequences of not respecting this rule are, according to this article, the possibility of ending the contract without penalty for the customer and the refund of his financial advances. As we can see, not going as far as Ofcom does about ARCs in the communication market, the french legislation targets not only this market but tries to put in place a wider principle of protection against the tacit renewal of contract concluded between a professionnal and a non-professionnal.

1 Loi n°2005-67 du 28 janvier 2005 - art. 1 JORF 1er février 2005 in force on the 28th july 2005

2 Loi n°2006-1772 du 30 décembre 2006 - art. 66 JORF 31st december 2006

3 Loi n°2008-3 du 3rd january 2008 - art. 33



The "Battle of the forms

Comparative approach of different laws shows that there are different approaches to resolve a conflict between general conditions of sale and general conditions of supply. One of this approach, chosen by English law, is the « Last shot rule ».

In Butler, Lord Denning wrote (1): nki0091l.jpg

where there is a battle of the forms, there is a contract as soon as the last of the forms is sent and received without taking objection to it. In some cases, the battle is won by the person who fires the last shot. He is the person who puts forward the latest term and conditions; and, if they are not objected to by the other party, he may be taken to have agreed with them.

The reference to combat terms, like « Battle », « Last shot » shows the importance of freedom of contract and of taking care about clauses contained in the agreements and terms and conditions send by the other party.

In France and Germany prevails an other rule : the Knockout Rule or the Restgültigkeitstheorie, which considers that terms and conditions of both parties are neutralized when they enter into conflict. They are considered as non-invokable and the general rules of law applied (2). This rule seems to be more objective and protect more the inattentive party. However, French administration and law which is not so strict fixed and organised as the german one sometimes differs from this rule, by trying to to impose general conditions of sales as the most important contractual document and asking judges to let it prevail - which can in my opinion appear quite injust for the buyer (3), or letting prevail the conditions which are the most visible (4).

This can be inimaginable and quite difficult to understand for english lawyers, which are strictly opposed to the idea to let the judges add terms into the contract or interpret it.

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NB : This knock-out rule was adopted UNIDROIT PICC (5) and by the American Uniform Commercial Code (6). There is a third approach followed by the Dutch civil code, the « first blow » rule, in which prevail the terms and conditions of the offeror, unless they are expressly rejected by the acceptor.

(1) Butler Machine Tool Co v Ex-cell-o-Corp [1979] 1 W.L.R. 401.

(2) For exemple, Ccass mars 1995, (pourvoi n°83-15936) in France and BGH, 20 mars 1985 (NJW 1985, 1838) in Germany, cited in Cases, Materials and Text on Contract Law, Ius Commune Casebooks for the Common Law of Europe, Second Edition, p 309 and p312 note (7).

(3) circulaire Dutreil du 16 mai 2003, Avis de la commission d'examen des pratiques commerciales n°04-04, 7 juil. 2004.

(4) Com. 20 oct. 1964, Bull civ. III, n°458

(5) article 2.1.22

(6) §2-207(3)


October 22, 2011

Roll–over contracts and the BGB

In German law, a roll-over clause in a B2C-contract must comply with § 309 Nr. 9 BGB.

1. Applicability of § 309

According to § 310 I, II BGB, § 309 BGB is applicable only if 1) the contract is a B2C-contract and 2) the contract is not with an energy or water supplier. Also excluded are insurance contracts, contracts on goods which were sold as belonging together and contracts on copyrights (§ 309 Nr. 9 BGB).

2. Dauerschuldverhältnis

If these provisions are met, § 309 Nr. 9 BGB provides that the contract in question must be a "Dauerschuldverhältnis" (the regular exchange of goods or services over a certain time).

This condition is to be taken literal. The BGH recently handed down a decision stating that the contract on a BahnCard (a card by the Deutsche Bahn, entitling the customer to discounts on train fares) does not fulfill this requirement. On the grounds the customer is merely entitled to discounts, there is no regular exchange of services or goods to be seen in this contract. Therefore it is not a "Dauerschuldverhältnis" (BGH, Urteil vom 15. 4. 2010 - Xa ZR 89/09 in NJW 2010, 2942, (2943)).

3. Forbidden stipulations

The clause then is not permitted to a) bind one party for more than two years or b) provide for a tacit extension of the contract for more than one year at a time or c) stipulate a notice exceeding 3 month for ending the contract. The wording is identical to the old § 11 Nr. 12 AGBG, which was in force until 31.12.2001. As the wording is unambiguous, it seems that these conditions are met most of the times. In decisions, this question is even treated as a triviality (OLG Hamm, Urteil vom 8.4.2010 - I-17 U 203/09 in MMR 2010, 607).

4. Alternative test according to § 307 I BGB

If the roll-over clause has proven to be valid so far, it could still be violating the provision of the more general § 307 I BGB. While it is accepted, that § 307 BGB can be applied next to the § 309 Nr. 9 BGB (MMR 2010, 607), it is contested in how far the wording of § 309 Nr. 9 BGB sets the track for the evaluation of the clause according to § 307 BGB. This matter needs to be examined in further depth, taking into account concurring opinions of literature and jurisdiction.


Rollover contracts in France

Follow-up to Rollover contracts in the UK and in the EU legislation from Florent's blog

In the third Title of the first book of the french consumer code,chapter 6, called "Reconduction des contrats" (renewal of contracts) there is an article L136-1 ,created by the "Châtel" Bill of the 28th january 2005, which specifies that a provider must inform in a written form the consumer, the soonest 3 months and the latest 1 month before the end of the period autorising the reject of the renewal that he has the possibility not to renew the contract he signed with a tacit renewal clause.

The paragraph 2 specify that if this obligation of information has not been adressed to the consumer in accordance of the provisions given in the first paragraph, the consumer can terminate the contract free of charge at any moment from the date of the renewal.

The third paragraph add that this article doesn't interfere with other provisions which legally submit other contracts to particular rules concerning the information of the consumer.

A new Bill of the 30 December 2006 added that those 3 paragraphs are not relevant for operators of drinking water services and sanitation.

A last Bill of the 3 January 2008 completed that those paragraphs are relevant for consumers and non-professionals.

The"Châtel" Bill of the 28th january 2005 tending to reinforce the trust and the protection of the consumerhas been voted in order to facilitate the termination of tacit renewal contracts in all areas and especially for mobile phones contract. This vote appeared to be necessary after the french Consumer rights group "UFC-que choisir" showed that it will make the market more competitive. Indeed there is a monopoly of the 3 biggest telecoms providers of the country who represents 75% of the sector and they already have been accused of raising barriers to effective competition. In 2005, the Competition Council inflicted a penalty record of 534 millions euros for having an agreement between each other to distort competiton by exchanging confidential informations concerning the number of new subscriptions and terminations.

Today, in France, the biggest issue is to avoid the abuses of the operators trying to renew a contract by offering an application to the consumer in his package without telling him that this application will renew his contract and that he has only 7 days to withdraw his acceptance.


October 20, 2011

Reading Week 1 and 2

Doing the reading for these two weeks, I was reminded how much English Law caters to commercial folk. For example, the doctrine of consideration is a purely English phenomenon absent in the continental legal systems I have had the chance to study. Having started my law studies in England this gave me the impression that contracts are used as a tool to create legally binding obligations between people having commercial interests only. To me the English system seems very favorable to business by making it easy to get out of a contract without losing the goods to specific performance. But then what becomes of the ‘gentleman’s word’? Personally I feel the continental system which focuses much more on enforcing a promise provides for the establishment of a more ethical social structure: if people promise something, they cannot buy their way out of it. This generalization is crude but it, in my opinion, aptly summarizes what the lay-man would perceive as being the difference between the two systems.

On the other hand, English law has a mechanism unknown to continental system: the trust. My brief brush with this enigmatic notion has led me to understand why English contract law focuses much on the commercial. The trust fulfills certain roles, for example protecting a weaker party or assuring the financial security of future generations, much better than a contract (at least an English contract) could ever accomplish.

Finally, I would like to say a few words about the projects of creating a European Civil Code. From a purely economic point of view this would be a serious mistake. As it stands the multitude of legal systems provides for a healthy competition between Member States of the EU: all seek to find a balance between commercial viability and moral sustainability. Fusing all contract laws would rob the EU of its uniqueness in this respect.


October 19, 2011

Does Law protect fools ?


'La loi ne protège pas les imbéciles'1, a well known adage among the french legal community, does not seem to find an application in the decision of the Ofcom2 to ban the automatically renewable contracts in communications market. This type of contract includes a clause so that at the end of a minimum contract period, without proactive information from the consumer saying that he does not want this happen, another minimum contract period is automatically renewed.

In the case the contract is tacitly renewed, the consumer who forgot to inform his communication provider often has to pay a termination fee. Seen as a restriction for the consumer to switch his provider, these contracts will be forbidden on 31st December 2011. This decision of Ofcom is partly based on a directive of the EU3,which aims to modify the comsuption legislation within the member states, and especially on the 30th (6)article which declares :

"Without prejudice to any minimum contractual period, Member States shall ensure that conditions and procedures for contract termination do not act as a disincentive against changing service provider."

As we can see, the members states are given all liberties to regulate contract termination in the matter of electronic communications, so that the consumer would not find himself prisoner of a service provider through the contract. We can ask ourselves if it is really necessary to go as far as banning a so-called 'rollover contract' to protect the consumer. Within the EU, the communications providers are already forced to inform the client before the end of the minimum contract period to leave hime the time to cancel the contract. For instance, in France a provider cannot inform its consumer later than a month before the end of the period, and if he does, or does not even inform him, the consumer is allowed to denounce the contract without any penalty.

This obligation to inform is already a big restriction for the communication providers. The ban decided by Ofcom seems on one hand a step forward in favour of competition but on the other hand a protection of one's negligence.

In my opinion, consumption law in the EU and its member states is a really big issue, but which tends to expand itself as overprotective for the consumer, as far as protecting him against his own foolness, and to limit excessively a 'former' well-established legal principle in Europe, the freedom of contract. The decision of Ofcom constitutes one example of this tendency.


1 "Law does not protect fools"
2 Office of Communications ( United-Kingdom )
3 Directive 2009/136/EC of the European Parliament and of the Council amending Directive 2002/22/EC on universal service and users' rights relating to electronic communications networks and services