All entries for Friday 19 November 2010
November 19, 2010
I would like to focus my blog this week on the issue of cause. This Romantic construction is a feature of the laws of Quebec, Italy and most relevantly for us, France. The idea of cause attempts to find the interest in which parties have in making the contract – and to ensure that this interest is both serious and legal.
This is particularly relevant with regards to the legality of a contract. In cases where the object of the contract is illegal in criminal law, the law of contract intervenes and holds the contract to be void through lack of necessary cause. Sales of drugs or weapons for example are voided, not because of the criminal law, but because of the failure to adhere to contractual requirements. I find it interesting to see that other jurisdictions would highlight the issue of public policy to prevent this contract’s enforceability – whilst French jurisprudence in this field (such as the Hocus Pocus case) bases its reasoning on the foundations of the obligation.
The creativity of judges here is also seen with the use of cause in relation to unfair clauses. The notable 1996 case of Chronopost shows the innovation of cause being used to restore a sense of fairness through a failure to carry out a fundamental duty under the contract. Since this case, cause has been further developed around the idea of fundamental duty, to the point where all limiting clauses applying to fundamental obligations are disregarded. I feel personally that such an extrapolation is a far cry from the original conception of the notion, which is continued with cases such as The Video Club. Here, the contract was annulled because the advantages did not correspond to those which were sought on the basis of the same doctrine – which I believe is perhaps too far removed from the idea of seriousness in cause