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December 06, 2010

La “cause” en droit français

Writing about web page cause

I would like to focus the today’s blog entry on the additional requirement of “cause” within the conclusion of contract under French law- particularly with regard to the oppositional development of the German and French legal systems, in spite of being rooted in Roman law.

Under Roman law, a sole contractual agreement “conventio” couldn’t constitute a claim. The simple delivery of the goods “traditio” supplies the purchaser with property in cases, where the transfer of property was effected “ex iusta causa” i.e. in order to justify the transfer of ownership, a legal foundation is required.

The attempt to obtain a legal system, based upon a law of reason, as well as a connection between statute law and common law, which was being handed down in the North of France, was already behind the first bill of the Code Civil during the 17th century.
The notion of “cause”, which constitutes one of the decisive factors concerning the validity of a contract in French law, contains not only the motive, which induced a party to incur a liability, but also the pursued intention. Consequently, an obligation is void in cases, where an illegal “cause” underlies a transaction, due to a contravention, respectively a violation of public policy and morality (Art.1131 Code Civil)

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Compared with this, at the time, on which the BGB arose, the German law abandon the notion of “cause” within the contract, which appears now in cases of unjust enrichment, § 812BGB; concerning the conclusion of contract, the merely agreement suffices.

Nevertheless, under French law, the contents of contract are split into two parts by the further requirements of “cause” and “objet”. Furthermore, the condition of „cause“ is only legislatory relevant to the prevention of contracts, based on an illegal “cause”, which is in German law regulated by the imagination of the legal and moral subject matter of contract, §§ 134,138 BGB.


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