All entries for Wednesday 12 May 2010
May 12, 2010
Non-pecuniary loss is mainly framed by in France and in England. Whereas in German law there are some provisions related to this notion but case-law remains important.
In France, it is possible to get damages awarded even if the claimant has no blood relationship or a relationship by marriage. I was during a long time only the case in criminal law. But since the Lunus, it is possible to recover in civil and in criminal law. It was an injustice in regards of fiancé(e) and foster parents.
In England, it is possible to get damages on the basis of a contract (Jarvis v Swans Tours). Before Jarvis v Swans Tours, the case law allowed to award damages only in cases where the plaintiff suffered physical inconvenience (Bailey v Bullock). The case-law seemed to be indecisive at the scope to give to non-material damages. Finally, Ruxley upheld Swans Tours by permitting a claimant to get damages for the breach of a swimming pool building contract. The court considered that a contract can be intended to provide enjoyment as providing works or goods. This approach may be made in order to take into account the psychology of a claimant who has the feeling to suffer an injustice.
In German law, damages are only allowed on the basis of a specific statutory authorization (§ 253 BGB). But because this provision would let many plaintiffs without remedies, courts usually allowed damages in order to overcome this issue. Parties can even substitutes themselves to the courts by inserting damages clause in their agreements or by bringing evidence to the court.
German law may be the legal system which is the keenest to allowed damages by giving several possibilities to courts and parties in case of non-pecuniary loss compare to French and English law.
Pierre-Patrice TIFI MAMBI
The mechanism of hardship varies from one country to another.
Attempts of harmonization have been made at European level with the PECL.
The French legal system does not admit “revision pour impévision” as said in the judgement of principle Canal de Craponne. But this doctrine is challenged by Terré’s Draft and the Government’s Draft which are following the recent evolution of the PECL. Only the Avant-projet Catala keep with the French tradition. It is maybe distancing his self from his initial aim: becoming the reference tool for companies which are mainly using common law.
The English legal system is alike the French system by not allowing the judges to intervene on the contract and by preferring the parties to include hardship clauses in their agreements. That is what Lord Radcliffe said in Davis Contractors. Its characteristic is the doctrine of Frustration which applies only in cases of impossibility, illegality or when the contract becomes radically different. This doctrine applies rarely but its consequences are drastic. Its application entails disappearance of the contract not only revision as in German law.
In case of inflation a contract would not bring to an end as in French Law.
The German legal system is forged around the “doctrine of disappearance of the basis of the transaction” (Wegfall der Geschäftgrundlage) created by Oertmann. In 1922, the Reichsgericht invoke for the first time the unwritten clausula rebus sic stantibus in order to adapt the price agreed by the parties. Then on the 27th June 1922 the Reichsgericht recognizes judicial revision to rescission on the basis of Oertmann Theory). In the Bundesgerichtshof decision of the 16th of January 1953, the court will seek to adapt the contract equitably. The German reunification case renew the theory of disappearance but in regard of good faith in § 242 BGB.
Pierre-Patrice TIFI MAMBI
The places and sources of contract law
In comparison with the BGB, the code civil is less structured. The main principles are split in different codes as the Code de consummation, the code de commerce or other specific legislation. The Code has been relatively little altered since 1804, thanks to its term’s flexibility. Nonetheless, it was thought that it needs a modernization in order to restore his place inside French law and to preserve its influence outside France. This idea led to the Law of 17 June 2008 reforming the law of prescription. The Code civil is better structured and has several innovations. But, it still keeps the concept of cause. Whereas the Chancellerie’s reform and the Terré’s group dropped this concept of their project.
The BGB is more structured. It is organised in five books. The approach of the BGB is systematic. That renders the using not obvious for non-lawyers. Althought its codification is consistent and coherent. Its wording avoids repetition and is a good tool for lawyers. Gaps are filled by case-law and legal writings like the Wegfall der Geschäftsgrundlage. These doctrines were incorporated in the BGB in 2001 by the Schuldrechtsmodernisierungsgesetz and entered into force on 1 January 2002. This reform did not change the substance of the law compare to the French projects.
English depart from German and French law by basing on the common law and not mainly on legislation. It is framed by a unique concurrence between common law and equity. Equity could sometimes supersede the common law. The English law of contract is less structured because it is judge-made law. The will theory did not penetrate the English law because it was not influence by Roman law.
Maybe, thanks to its huge flexibility, English law is much keen to adapt itself to legal evolution than the civil law countries which codes are all written.
Pierre-Patrice TIFI MAMBI