FRENCH CONTRACT LAW AND THE UNIDROIT PRINCIPLES

In these troubled times for contract law across the globe, a comparison between French contract law and the UNIDROIT Principles of International Commercial Contracts seems not nearly as odd as it would have only a few years ago. Indeed, although designed to apply to international commercial contracts, the UNIDROIT Principles offer a set of coherent and homogeneous solutions that go to the heart of the matter and transcend any strictly national considerations. The UNIDROIT Principles, drafted in easy but accurate language, and conforming to a simple pattern, are the embodiment of a modern version of general contract law. Any comparison with French law must be hedged with caution. French law is based on a text (the civil code) that has remained largely unchanged since its inception and which can only be properly understood by taking into account the case law and trends in scholarly analysis as well as the doctrinal controversies that have accompanied its path through life. Yet a comparison may usefully be made, and while such a comparison affords clear evidence that French law has its own specific, incontrovertible features, it also highlights many areas of convergence where French law has already, of its own accord, made the changes that bring it closer to the UNIDROIT Principles. This report undertakes such a comparison from three angles. With regard to the formation of the contract, the report looks first of all at the common will of the parties. Both the UNIDROIT Principles and French law agree that there must be a common will, even though they do not necessarily see eye to eye on all aspects of that common will. As to contractual obligations, the report compares the ways in which the UNIDROIT Principles and French law deal with the binding nature of such obligations and with party autonomy. Here again, both marked divergence and considerable areas of convergence are in evidence, such as the growing recognition of a true contractual link capable of producing specific results between the parties. Finally, with respect to non-performance of the contract, the report examines the difference between a legal philosophy that sets great store by contractual liability, and the more pragmatic system that emphasises non-performance and its remedies. However, French law is currently undergoing serious change on this point and may prove quite receptive to the solutions offered by the UNIDROIT Principles.