8法律 外文翻译 外文文献 英文文献 法律中的违约责任

The breach of contract in French law: between safety ofexpectations and efficiencyPierre Garello∗1.Introduction: which path will lead us to a better understanding of French contract law?Contracts are marvellous tools to help us to live in a world of uncertainty. They allow us to project ourselves into an unknowable future, to invest. Lawyers who have inspired the French Civil law and contributed to its evolution, as well as most lawyers in the world, have clearly perceived the necessity to protect t hat institution. “The contract is, as far as the individual is concerned, the best forecasting instrument generating legal security, and the favored path to freedom and responsibility that is necessary for the flourishing of human beings in a society.Contracts are far from miraculous tools, however. If they make life easier, they do not necessarily make life easy. As the future unfolds, one or both contracting parties may be tempted, or compelled, to break his or her promise. But, the mere fact that the contract is running into difficulties does not force the law to do something!2 It is only when one of the parties does not perform that the law (the court, the legislation), backed with coercive power, has to give an opinion, to decide the case. In order to do so some principles, or theories, are required to reach a judgment as to what is the best thing to do.The present study of the French contract law is based on the premise that, from a law and economics point of view, there exists basically two possible ways to address this concern: the first approach requires that whenever a problem arises, an assessment be made of all costs and benefits incurred by the parties. In other words, one must attempt to evaluate in a sufficiently precise way the consequences of the court decision—or of the rule of law under consideration—for both parties as well as for third parties (including potential future contractors). The lawthen—and more precisely here, contract law—should aim primarily at providing the right incentiv es to contracting parties, where by “right incentives” one meansincentives to behave in such a way that the difference between social benefits and social costs be maximized. It will be argued below that French contract law sometimes follows this approach.The second possible attitude looks, apparently, pretty much like the first. The guiding principle is again that the law should provide to members of the society the right incentives. But one must immediately add that the judge—or the legislator, or the expert—is not in a position to evaluate and compare the social costs and benefits of alternative rules of law. He or she just does not know enough. One does not know, for instance, all the effects of a rule that would allow one party to breach a contract, without the consent of the other party. Indeed, even if the victim of the breach is promised a fair compensation, allowing such a rule globally might have a negative effect on the very purpose of the institution, which is to reduce uncertainty. As a consequence, the law should adopt a goal less ambitious than the maximization of social well being. That goal could be “to protect contracts,” or, in other terms, to create a set of incentives that lead individuals to feel confident that their legitimate expectations will be fulfilled.As pointed out, those two attitudes may appear the same, differing just in degree. The first one assumes more knowledge on the part of lawyers and legislators than the second. However, when it comes to practical decision-making, differences turn out to be important, because the more knowledgeable you think you are, the stronger will be the incentive to regulate the contract, and the lower will be the respect for tradition and customs on which daily expectations are based.The two approaches outlined above are well known to economists. The first one is the so-called “mainstream” (Paretian) approach and underlines most of the existing economic analysis of law.3 The second one, stressing the problem of knowledge, is far less developed.4 We will call it the “safety-of-expectations approach,” or the Austrian approach to law and economics, because it can be found primarily in thework of the Austrian school of economic thought, and especially in Hayek’s studies.“The rationale,” says Hayek, “of securing to each individual a known range within which he can decide on his actions is to enable him to make the fullest use of his knowledge, especially of his concrete and often unique knowledge of the particular circumstances of time and place. The law tells him what facts he may count on and thereby extends the range within which he can predict the consequences of his actions. At the same time it tells him what possible consequences of his actions he must take into account or what he will be held responsible for.The reason why these two approaches are mentioned at the outset is that, when one studies French contract law, it is difficult to reconcile all of it with a single approach. True, the mainstream, neoclassical approach, based on the assumption that rules be chosen that maximize social wealth (or, at other times, that lead to a Pareto-efficient outcome), can help us to understand an important part of that body of law. But, as will be shown, certain French doctrines cannot be reconciled with neither a Paretian approach, nor a wealth maximizing approach. In some instances, the lawseems to be more concerned with the safety of expectations.In the next two sections we will examine the main doctrines and rules of French contract law trying to identify those that are compatible with both principles and those that are compatible with only one. If none of those sets are empty, it will mean that the French law of contract is not totally coherent; it cannot be brought under a unique unifying principle of explanation. The next natural questionwould then be whether French lawismoving towards one principle and away from the other. However, this paper will not address this question.The paper is organized in two parts. Indeed, for reasons briefly mentioned above, it is important to underline in a first part the many things the law does in order to avoid breach of contract: what can be done in order to save a contract when the parties are having difficulties performing, and what is forbidden? The second part deals directly with the breach of contract. It will be shown that French law differs in some important respects from other contract laws. 2.Saving the contract63.We will study the various attempts to “save” the contract by looking first at the conditions for invalidity (Section 2.1), then at the various possibilities left to the judge to interpret the terms of the contract (Section 2.2) and end with the study of the cases where the judge is authorized to change the terms of the contract (Section 2.3).2.1. Invalid contractsOne way to save the contract is to prove that there was no valid contract in the first place! Formation defenses as defined in the French law are roughly identical to those found in the contract laws of other countries. The main defenses are: incompetency (incapacité), mistakes (erreur), fraud (dol), duress (violence), absence of cause (reminding us of the doctrine of consideration in the bargaining theory), failure to disclose information, lésion (a defense close to unconscionability),7 or, may be more specific to French law, a conflict between the private agreement and ordre public, i.e. public policy, or “law and order” (see art. 6 and 1134 of the French Civil Code, henceforth C.civ.). In all these instances, an action may be taken for annulment of the contract, the judge being the only one entitled to invalidate a contract.But, what exactly is meant by invalidity in the French law? What are the consequences? The French law distinguishes between absolute invalidity (nullitéabsolue) and relative invalidity (nullité relative). The first category includes all the contracts that are against what is called ordre public de direction, that is to say, contracts that violate a public policy judged to be beneficial to the society as a whole and not only to those individuals involved in that particular contract. For such contracts nothing can be done and complete nullity cannot be avoided. The second category is made of contracts that violate the ordre public de protection, that is, contracts in which one party does not respect a public policy designed to protect weaker parties. In those circumstances, the victim who the law is trying to protect may choose to let the contract stand after modifications to the contract.In both cases, however, the result is as if the contract had never existed, and retroactivity with restitution is the general principle: one is supposed to go back to the situation that prevailed before the contract was created: the status quo ante. Parties are relieved of their obligations, and damages can no longer be awarded, but it is still possible to bring a tort law action.From an economic point of view, most of the formation defenses mentioned have already been analyzed in various places, the bottom line being: any contract that is not voluntary must be considered as invalid. One can see however that, from a strictly Paretian point of view, it is not clear that all involuntary contracts—e.g. contracts relying on a mistake—will always be dominated by the situation prevailing before the contract. If one chooses the Hayekian, safety-of-expectations point of view, such a dilemma is less likely to occur to the extent that people expect transactions to be voluntary. Consequently, any involuntary transaction violates some “legitimate exp ectations.Before leaving the topic of nullity, two interesting facts deserve attention. First, it must be pointed out that exceptions exist to the general principle of retroactivity with restitution. In particular, if the contract is null due to the deliberate action of one of the parties (e.g. In the case of fraud), the principle is softened; the victim sometimes will not have to return the object, or the payment. The action for annulment can even be rejected by the judge if this favors the victim. Finally, because few cases of fraud are brought to court, the legislator has stepped in to regulate the contractual process. This is the case, for instance, with the law of August 1, 1905 on fraud (now part of consumer law, Code de la Consommation, article L. 213–1), or the law of December 27, 1973 on advertising (today C. Consommation a. L.124–1).10 Legislation sometimes seeks to protect potential victims of fraudulent behaviour. This type of intervention can be easily justified in the Paretian or wealth-maximization frameworks because it reduces some transaction costs. It is better that the law sends clear signals to potential wrongdoers thanto correct wrongdoings once they have occurred. From an Hayekian perspective, the benefits of such intervention are less evident because you have to take into account the fact that the potential victims may, as a result, be less careful, and behave in a less responsible way. In any case, one should keep in mind that courts consider invalidity to be something exceptional. “T o restrict as much as possible the number of nullity cases seems to fit with the contemporary need to bring more security to business.”11.2.2. Interpreting the contractTo save the contract, the judge may have to interpret its terms or to modify them. When reading legal scholars on the topics, one comes rapidly to the conclusion that there is no unanimity in France about what is the proper role for the judge when performance is problematic. As explains Ghestin: “Hence, always referring to justice, it is po ssible to forbid to the judge any intervention, or at the opposite, and as is done today, to justify his/her corrective interference, so that he/she can guarantee that there is at least a relative balance between the promises that are being exchanged.”12 This analysis can also be found in Delebecque, Pansier: The role of the judge in appreciating the terms of the contract is a matter of great controversy.On one hand, you may wish to deprive the judge of any power arguing that he is not a party to the contract; consequently, the judge should never intervene, nor modify such and such elements of the contract. On the other hand, one can admit the intervention of the judge in contractual matters in order to introduce a light wind of fairness in the contract. The law is rather based on the first approach.Indeed, as we have noticed already, the legislator allows himself or herself the right to perfect and regulate some contracts, and the judge, stimulated and reassured by such intervention, has decided that he also as a right to step in.13 Keeping in mind this controversy, let us see what the French written law says.A major principle of French law is juridical consensualism (consensualisme juridique). Deeply rooted in French tradition—it goes back to the 18th century and became prominent in the 15th century14—this principle is closely related to a more recent one: the autonomy of the will.15 In contractual matters this means that the contract should be interpreted, not literally, but according to good faith. This is also called the subjective method of interpretation and is grounded in art. 1156 to 1164 C.civ.: “As far as conventions are concerned, one must look for the common intention of the contracting parties rather than look for the literal meaning of the terms” (art. 1156 C.civ.). Now, if to interpret is to try to rediscover what the parties really wanted, does this method make sense from an economic point of view, or should it be changed for the objective method?On the bright side, whether you are Paretian or Austrian, you can argue that this method of interpretation reduces transaction costs since the parties may leave the contract incomplete: if necessary, the judge—or more generally, the law through default rules—will interpret thecontract as they would have written it, if it was not for the cost of writing done a complete contract. Not only that, but the very possibility to leave gaps in the contract may be desirable to allow the parties to signal a high degree of confidence that promises will be performed; in other words, gaps may be useful strategic tools.On the dark side, it may be pointed out that the objective method, chosen in other countries such as Germany, forces the parties to be more explicit on what they expect and this, in turn, may reduce future transaction costs. Also it should be recalled that it is not always easy to interpret the will of the parties, and it is good for that reason to give them strong incentives to fill up as many gaps as possible.Anyway, the French law will not let the judge interpret the terms of the contract, or fill gaps as it pleases her. The judge will have to follow certain rules. Here are some of them.16 First maxim: better to interpret the contract in such a way that it will survive (art. 1157 C.civ.). Again one can read here an a priori in favour of voluntary exchanges which, as was pointed out earlier, is economically sound. It is also the desire to avoid that efforts invested in the contractual relationship be wasted.Second maxim (only for unilateral contracts such as loan contracts): the judge should interpret the contract in the way which is most favorable to the debtor (art. 1162 C.civ.). One can perceive two economic reasons to this rule. Firstly, it increases the probability of performance since it is the debtor who is having difficulties. Secondly, the maxim let the creditor bears the risks related to a lack of precision in the terms of the contract. This in average is a good thing since the creditor is often the one who has the greatest influence on the choice of the terms of the contracts and is therefore in a position to avoid risk at least cost. The same logic can be found when the French law stipulates that, in contracts of adhesion, whoever has written the contract should bear the risks associated with ambiguity in the terms of the contract, and consequently, the contract should be interpreted against him or her. It is always desirable from an efficiency point of view, as well as from a safety of expectations point of view, to unify knowledge and decision-making.The third maxim of interpretation is derived from art. 1136 of C.civ.: “Conventions compel the parties to perform not only according to what is written, but also according to the requirements of fairness, customs and existing legislation.” This s omehow echoes the famous article 6 of C.civ. It is based on this philosophy that the courts have recently established some new bonds for the parties. Hence, each party ought to inform properly the other parties, especially as far as safety is concerned: a surgeon must inform the client of the likely consequences of the operation, the producer must inform the client of the composition of the product, the transporter must safely perform his/her job. In each case, if the obligation is not fulfilled, the party who has failed to disclose information will be held liable.17 Now, what is the economist’s point of view on those matters? For a Paretian, one could argue that this maximallows a reduction of transaction costs. But it can also be seen as a desire to protect legitimate expectations. Everyone, including third parties, expect others to behave according to custom, state-of-the-art, and the law. Therefore, such expectations should not be disappointed. One can add, however, a proviso to that opinion: if one accepts that the parties might in some cases be surprised by the interpretation given by a judge based on customs, state-of-the-art and legislation,18 it should nonetheless be added that, as soon as the law becomes too complex, to follow this line of thought would not be reasonable and wouldwork basically against the safety of expectations. As Carbonnier puts it with humour: “laws and contracts are valid to the extent that they take into account the capacity of our brains.”19Finally let us recall that in French law, if the judge goes beyond the mere interpretation of the contract, the judgment will be broken by the Cour de Cassation. This, surely, is compatible with the safety of expectations.2.3. Modification of the contract by the judge“To interpret the contract is to pay due homage to the autonomy of the will. To modify a contract is to testify against it.”20The life of a contract being full of unexpected events, there is nothing more economically sound as far as Paretian efficiency is concerned as well as for the safety of expectations, to let the parties renegotiate to the extent, of course, that both parties agree to the change. French contract law understands this and facilitates such commonly agreed upon changes. It can even go further: if the contract includes a revision clause, the courts have the possibility to impose a revision if the negotiation fails. Also, if one of the parties refuses to negotiate, it can be condemned to pay damages for an amount corresponding to the loss incurred by the other party because of that refusal.21 In the same spirit, in order to facilitate the revision of the contract, clauses establishing an automatic revision of the contract are lawful. Such clauses, that reduce further transaction costs, are nonetheless controlled by the judge. In particular, the event triggering off the revision should be beyond the control of the parties, this in order to avoid any moral hazard problem.Difficulties arise of course whenever one of the parties refuses to negotiate. In such circumstances French contract law takes a path different from the one taken by most other contract laws, and forbid any modification of the contract by the judge. Exceptions exist to this reject of the so-called théorie de l’imprévision, but they are few. Hence, it is possible to rescind a contract (this is called rescision pour lésion) following the realization of an unforeseeable event (art. 1675 C.civ.), but one should recall that “l’aléa exclut la lésion,” which means that if the contract is contingent by nature (for instance an insurance contract), then there cannot be any lesion and therefore there exists no way to modify such contract following an unforeseen event.This position against a modification of the contract by the judge has a long standing inFrench law, going back to the famous 1876 decision of the supreme court of appeal in the Canal de Craponne case. In that case, the heirs of Mr. Adam de Craponne wanted the price for maintenance of a canal to be raised, a price that was contractually fixed in 1567 by Adam de Craponne. Relying on art. 1134 C.civ., the court replied that: “It is not the business of the courts to take into account time and circumstances in order to modify the conventions decided previously upon by the parties, even if such a modi fication appears fair.”Two last remarks before leaving that topic. First, let us note that if the position of the French courts has been accepted by the business community, it is because parties always keep the possibility to add some clauses to the contract regarding unforeseen events and, actually, they have made extensive use of it.26 Finally, if the position of the Civil law is against judiciary revision, administrative law has taken an other path, allowing for the revision of the contract,27 and the legislator also organizes the revision in some cases (e.g. leases and intellectual property rights).法国法律中的违约责任：在安全的期望值和有效性之间Pierre Garello1论文简介：哪个途径可以让我们更好地了解法国合同法？合同是帮助我们在不确定的世界上生活的很好的工具，它们可以使我们计划自己不知道的未来和投资。