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