November 22, 2012

My experience with comparative law.

During the three first years of my studies in Lille, I learned French law, but I also had modules about Belgian law, Spanish law, we had German law in German and English law in English. Before I started the ICP, I had an overview about different legal cultures, which is probably why I choose the ICP.

I think that we can’t understand a society without its legal system, and vice-versa. So, this programme gave us the opportunity to live in different countries, to learn different languages, and to understand and learn different legal cultures. Even sometime, it is really difficult to understand. For example, the german “Abstraktionsprinzip” is still abstract for me.

Moreover, in the way of harmonization of law, we have to be able to understand and have knowledge about the different legal system. We can observe an harmonization in European contract law, we have several examples with the Lando Principles, or UNIDROIT principles, or also the DCFR.

I think that to understand and improve a system, we have to learn from the other system. The French Civil Code is now really old, and we have in Europe countries, which have developed a very modern private law, Dutch law is a good example on that point. Beyond the development of the harmonization, countries can learn from the other systems, and improve their owns.

In Europe, all the legal systems come from same legal families, even every country developed its own legal culture.

To study comparative private law has many benefits, we learn different legal cultures, we learn why a harmonization of some area of law is necessary, and we learn how and why this harmonization is possible. And the most important it brings open-mindness.

Essay: the good faith.

I choose as topic the good faith. This is first and foremost a moral concept, it is a requirement of honesty, loyalty or sincerity. Good faith is an essential institution of social life, it is considered that the relationship between individuals must be imbued with this good faith. All legal systems attach a certain place and importance to it. However, this place is not the same in every legal system and the concept has different meanings.

The concept of good faith crossed through the ages and scored the different legal systems we know. The question is then, to what extent the differences in understanding the concept of good faith can be found in the application of contract law in the English and French legal systems ?

I will try to focus first on the difference in legal culture in the both legal systems. Is there a true principle of good faith in English law ? What is the importance of the concept of good faith in french civil law ? Then, I will focus on the usufulness and the application of goof faith in contract law. How do the two different légal systems apply the principle of good faith ? What is the influence of international law on the development of European contract law ?

The good faith is a very important and complex notion. This is a moral concept, a religious concept, the good faith has its origins in Roman law is the « Bona Fides ».

I find interesting to study a subject with so complex and distant origins and which still is an important issue in the national legal systems, as well as in European and international law.

Codes and conventions : Code civil, United Nations Convention on Contracts for the International Sale of Goods (CISG) – 1980, UNIDROIT Principles, Draft Common Frame of Reference.
Theses and comments : La règle morale dans les obligations civiles, Georges Ripert, 1939, Congrès de l’Association Henri Capitant des Amis de la culture juridique française, Louisiane, 18/22 juin 1992, « La bonne foi », Rapport français par Patrice Jourdain, Professeur à l’Université de Paris XII
Books : Beale, Bishop and Furmston ‘Contract Law – Cases and Materials’, (2007) 5th edn. OUP, Zimmerman and Whittaker ‘Good Faith in European Contract Law’, (2000), CUP 1 edn.
Cases : Walford v Miles (1992), Smith v Hughes (1871).

The duty of good faith in the pre–contractual negotiations.Many different Civil Codes contain elemen

Many different Civil Codes contain elements which establish a général duty of pre-contractual good faith.

The pre-contractual negotiations are often as important as the contract between the parties. During this time, the parties agree on the terms of the contract, which will be legally binding for them.

The good faith is a principle which is essential to the contract. Some Civil Codes refer to it. In the French Code Civil, in the Article 1134 it is written that « Contracts (…) must be performed in good faith » It does not refer especially to pre-contractual negotiations, but french autors do recognize a général duty of good faith in the pre-contractual negotiations.

In German law, the parties enter in a legal relationship just by taking up negotiations. It means that they have duties, as the good faith, even befor the formation of the contract.

The italian Codice civile is probably the most explicit, in the Article 1337 is is written « During the course of the negotiations and in the formation of the contract, the parties must act in good faith ».

The UNIDROIT principles and PECL also accept the notion of good faith.

The good faith is a moral concept, it is very difficult to define it. But in the perspective of the formation of a contract, most legal cultures agree about the importance of this concept. The good faith is a very important élément of legal relationship, especially in cases of contracts of sell for example. If someone wants to buy a house, it is understanble that this person is expecting from the seller, that he really wants to sell it. Then even before they sign the contract, both parties have to be in a Relationship of good faith.

Does the agreement transfer the property ?

The question is to know when is the property transfered, and does the agreement between the parties have an effect on this transfer of property ?

We can have as example different system in different coutries :

We can observe in the French Civil Code, in the articles 1138 and 1583, that the property is acquired by the buyer at the moment the parties in contract have agreed about the object and the price. For example, the payment of money as nothing to do with the transfer of property.

In English law, there is no unified transfer system, but the rule on sale has been codified in the Sale of Goods Act 1893 and the Sale of Goods Act 1979. From that time there were three ways of transferring title in movables in English common law.

An other example is Austrian law, in which a contract of sale does not itself transfer the property. The agreement between the parties is not sufficient to transfer the property.

We will focus on French law and try to explain that, the fact that the transfer of the object is not a requirement for the transfer of property could be a disadvantage for the buyer. For example, if A sells a boat to B. They agree about the object, the price, a contract is formed, so the transfer of property is done. B is now the owner of the boat, even if he hasn’t paid yet the price. If between the moment of the agreement between the both parties, and the moment B receive the boat, this one has been destroyed, then B still has to pay A.

The transfer of property with the agreement between the parties is the general rule in French law, but the parties can agree that the transfer of property will happen at an other time.

Because there are different systems, we can then understand the need of the CISG, which provide a fair and uniform regime for contracts for the international sale of goods.

October 18, 2012

The necessity of comparative law

During the 19th and 20th centuries the globalisation and a significant increase of the number of transnational contracts explained the need of knowledges about the other legal systems. It is the role of the comparative law.

This is the study of differencies and similarities between different legal systems. There are differents aims to the comparative law.
First of all, to improve knowledges. The law is no longer considered merely national, comparative law can allow to learn about foreign legal systems. The study of different legal systems can also help find the best solution for a given problem, like in contract law, by offering a variety of solutions that can not be offer by the study of a single system.
Second of all, and according to Th. Kadner Graziano, the comparative law was « primarily used to improve one’s own domestic law ». The analysis of foreign legal systems may, by contrast, understand its national law. This give the possibility to discover the originality of its law and its shortcomings.
Finally, the comparative law brings to the development of europeanisation and internationalisation.

In Europe, for example,contract is a concept thatdoes not touch the same aspects in all legal systems. There are three major legal families. The « contrat » in French law is not totally the same than the « contract » in English common law or « Vertrag » in German legal system.To be able to establish contracts we need to understand and know the differences between them. The Europeanisation of private law refers to a process that aims to the soft harmonisation of private law. We need to understand the niceties of every legal systems to be able to develop texts like « The Principles of European Contract Law » or « The UNIDROIT Principles of International Commercial Contract ».

Nowadays it’s a necessity for the european lawyers to understand and learn about the different legal systems to develop a European legal system.

Sources: Th. Kadner Graziano ; H. Beale, B. Fauvarque-Cosson, J. Rutgers, D. Tallon and S. Vogenauer, Casebook on the Common Law of Europe: Contract Law (Hart, ed. 2, 2010).

October 11, 2012

The current Europeanization of law : result of the history.

Today, Europe is creating a new common law. It’s seems to be something new, complicated and frightening for many. But it’s not a real novelty. Europe used to have a common law, which was dominated by the ius commune.

The common law of Europe has never been a real common law. First of all, it was a legacy of Rome, with the Corpus iuris civilis, which was a compilation of Roman law, made by the Emperor Justinin in the 6th century ; but also a shared legal culture, and a same language using by legal scholars.The ius commune was based on Roman and canon law. It refers to the set of rules that apply generally to a given territory, which formed the basis of legal thinking in Western Europe. The humanist school brought a truly ius commune in the 16th century.

Down the centuries, there have been many evolutions of law. For example, from the 19th century, the codification in many countries (as in France, Italy, or Germany) contained an unification of a country’s laws, and abolished the old customs and the ius commune. The 19th and the first part of the 20th centuries represent the nationalisation of the law. Two world wars and a common desire to unite ,so that it doesn’t happen again, led to the European Communities. Then we saw the rebirth of an old idea, the ius commune.

Nowadays, sources of law so as legal systems of Member States are different, but we can notice that the European Union and the globalisation create new legal problems and solutions.

For example, contract law is no longer exclusively national. This is one of the reasons why there are so many study group within the European Union working on an unification. The fact that the Commission on European Contract law drafted the Principles of European Contract Law in 1999, and that in 2009 a commission directed by Professor Landö published the Draft Common Frame of Reference proves the importance, but also the difficulty, of the unification for Europe.

The example of contract law shows how hard it is today to develop an european common law. We could just take history into account and remember that there is only one European family of law.

Sources:D. Heirbaut and M.E. Storme, The historical evolution of European private law (the Cambridge Companion to European Union Private Law, Cambridge University Press, 2010); H. Beale, B. Fauvarque-Cosson, J. Rutgers, D. Tallon and S. Vogenauer, Casebook on the Common Law of Europe: Contract Law (Hart, ed. 2, 2010).

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