Article by Xavier Blanc-Jouvan
Revising, reforming, and updating the French Civil Code is by no means a new undertaking. Debates on this matter have been going on for a long time. During more than eighty years of euphoria, the Code was almost unanimously hailed, and the French took great pride in its remarkable expansion throughout the world. However, a period of doubt began with the promulgation of new codes at the beginning of the twentieth century, marking the end of a sort of Golden Age. In 1904, when the first centennial of the Napoleonic work was celebrated in France, worry started to emerge about a slow erosion of the influence it exerted abroad. Indeed, a number of commentators did not hesitate to raise openly the problem of its revision. Although they focused mostly on points of detail and claimed that all that was needed was to wipe off a few stains, some of their criticisms prompted the Minister of Justice to set up a commission composed of more than sixty members—including a few celebrities in vogue—with the mission to make proposals for a reform. However, it appeared very soon thereafter that this large assembly was getting lost in endless discussions, so much so that it finally ceased all activity after only a few meetings. In fact, the project had never been taken seriously and was finally abandoned. This was the Belle Époque . . . .
More than forty years later, in 1945, when the end of World War II led to the establishment of a new international order, a Commission for the Revision of the Civil Code was officially installed under the chairmanship of the Dean of the University of Paris Law Faculty. This small group of only twelve people— academics, judges, and practitioners—accomplished an important work, especially with regard to family law; unfortunately, it neglected tackling the law of obligations, which it considered too controversial at that time of great turmoil. In reality, the Commission was so divided on political, ideological, and technical grounds that it could not even agree on the ambit of the reform it should propose. For this reason, and because the updating of our civil legislation did not then seem to be a priority, the draft finally presented in 1953, which contained exclusively a Preliminary Book and Book I of a new Civil Code, was not even submitted to Parliament, so that it remains today simply as an interesting piece of doctrinal work. Subsequently, in 1954, the 150th anniversary of the Code Napoléon went practically unnoticed in France, with the mere exception of a few complaints about the regression or the decline of its influence all over the world.
Such exceptional stability of the letter of the Code does not mean, however, that, during this period, our law has remained frozen. It has, on the contrary, considerably evolved under the combined action of the legislature and the courts, to such an extent that we may wonder about the reasons which have made it so difficult to bring substantial modifications to the provisions enacted in 1804. The obvious answer is that the Code stood out as much more than a simple compilation of rules and principles. It was regarded as a symbol, much revered and admired, incorporating universal and permanent values. Some authors have made very popular a statement attributed to Demolombe, according to which the Civil Code was, in fact, the civil Constitution of France. As to the words pronounced by Napoléon himself in the last years of his life, they are engraved in marble as well as in our memory: “My real glory is not the forty battles I won . . . . [W]hat will live forever, is my Civil Code.” This alone was enough to justify a strong resistance to change.
But even symbols must be revisited, when they result in a complete discrepancy with reality. The fact is that our Code started progressively to resemble an empty shell, which no longer reflected the actual state of our law. This is why a new movement of reform was launched, more discreetly, after the establishment of the Fifth Republic in 1958. It coincided with an acceleration of the trend towards codification or recodification which developed in many countries as a consequence of such phenomena as the rise and fall of communist regimes, the process of decolonization, and the globalization of the economy. Some lessons were also learned from past experiments concerning the method to be followed. First, the choice was made to proceed on a piecemeal basis and deal with each of the main areas of droit civil separately (family, property, contracts, civil liability, etc.) rather than to embark immediately on the drafting of a complete code. Second, the idea prevailed to entrust the task either to a single person regarded as prominent in the field or to a limited number of experts rather than to a large commission which might be inefficient. Accordingly, a substantial modernization has taken place since the early 1960s, largely through the efforts of Jean Carbonnier. Entire parts of the Civil Code have been revised, and sometimes completely rewritten--especially in the areas of family law and matrimonial regimes, protection of minors and the mentally handicapped, successions and suretyship--without modification of the general structure of the original work.
Once again, however, the matter of obligations has long been left outside the agenda of reform. An explanation often advanced is that this branch of the law, because of its abstract nature and technical character, is the most stable and least receptive to possible variations. But a more convincing reason is that the prospect of some type of forthcoming European legislation in the field has encouraged potential reformers to adopt a “wait-and-see” attitude. In fact, the possibility of a harmonization at the European level has thus been seen as a proper justification for postponing a revision of our Code, rather than a motive to hasten it.
Still, several initiatives have been taken recently. The first one has come not from the government, but from a private group of academics, who started to meet in 2003, on the eve of the Bicentennial of the Code. The group had the deliberate ambition to embrace all matters traditionally covered in civil law countries by the concept of obligations (contracts, quasi-contracts, and civil liability), to the sole exclusion of rules specific to particular types of contracts. The result was a preliminary draft (avant-projet) of reform, which was presented to the Ministry of Justice in 2005. It constituted the basis on which the Ministry undertook to prepare, after many consultations, a provisional draft (projet), which was made public in July of 2008 and deals exclusively with the section on contracts. After a series of consultations, a final draft will likely soon follow, before being submitted to Parliament in 2009.
This naturally leads us to limit our observations here to the law of contract, and even more specifically to what we call the general doctrine of contract (théorie générale du contrat). Our purpose is simply to examine the reasons which make the reform of this part of our law imperative and urgent. Some reasons are purely domestic and stem from the necessity to renovate our Code in order to adjust it to the requirements of the present times. Others relate more directly to a common aspiration to restore the Code's position on the international scene. The reform should pursue both of these objectives.
About the Author
Xavier Blanc-Jouvan. Emeritus Professor of Law, University of Paris I Panthéon-Sorbonne. M.A. (Cantab.), University of Cambridge, England.
Citation
83 Tul. L. Rev. 853 (2009)