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Monday, September 10, 2007

French Contract Remedies

Every year, a few LLM students populate my classes.  And they teach me a tremendous amount about my own subjects.  This year, I have a French student in my Contracts course who has been bewildered by aspects of remedies, with which we began.  Charles Fried made sense to him (they read some Fried and Atiyah for the first day) -- but he is utterly baffled by the expectancy remedy.  The aggrieved party's so-called "duty to mitigate" sent him over the edge.  He's a French lawyer and gave me a basic education in French remedies for breach of contract through Barry Nicholas's The French Law of Contract (2d ed Oxford 1992).

Most of us generally know that Civil Law countries are much more likely to award "specific performance" in theory than Common Law countries like our own.  But I suppose it came as some surprise to me to hear just how moralized the French law of contract seems to be:  "French law takes a moral stance while English law emphasizes the security of transactions and economic efficiency, so also French law treats breach of contract as a form of moral wrongdoing, while the Common law looks more to commercial considerations."  (p. 212).

Nicholas also has a further account of how this divergence took place: "This fundamental difference of approach no doubt reflects the fact that the case-law of the Common law systems in the field of contract has been concerned to a far greater extent than French law with commercial transactions."  (Id.).  This explanation makes sense to me in light of my general feeling that certain contract doctrines harmonize with certain "types" of contracts (person-to-person, person-to-organization, organization-to-organization) better than others. So case-law evolution can be path-dependent, depending on the types of cases with which courts are presented.

Interesting, also, is that the "contract-as-promise" types -- at least those who want to see Anglo-American contract law as orbiting the moral promise  -- probably need to explain why Civil law systems are not better understood as embodying the contract-as-promise idea much better than our own. 

Posted by Ethan Leib on September 10, 2007 at 03:18 PM in Life of Law Schools | Permalink


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I always try to point out to students this distinction between the American "contract as commercial exchange" approach and the continental "contract as promise" approach. What strikes me as interesting every year is the extent to which the contract-as-commercial-exchange view of contracts seems to be part of our culture. Even on the first day of class, American law students think there is and ought to be a big difference between (1) "I will mow your lawn tomorrow" and (2) "I will mow your lawn tomorrow for $20." And while I think this is an interesting distinction, I have had a hard time engaging students in a productive discussion about it, perhaps because their view is so deeply engrained.

Posted by: viva moffat | Sep 11, 2007 2:20:22 PM

On my first day of contracts class in fall of first year, we were handed an excerpt of a speech by a continental academic expressing essentially the same views as your french LLM student. But then I went to a civil law / common law school.

Posted by: anon | Sep 10, 2007 4:23:21 PM

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