Article 8 of Law No. 2015-177 of February 16, 2015, concerning the modernization and simplification of law and procedures in the areas of justice and home affairs, declared constitutional by the Constitutional Council on February 12 (No. 2015-710 DC of February 12, 2015), authorized the government to take, by ordinance, the measures within the legislative domain necessary to amend the provisions of the Civil Code relating to obligations.
On February 25, 2015, the Ministry of Justice published a draft ordinance on its website and launched a public consultation, open until April 30, 2015. The ordinance was expected to be presented a few weeks after the consultation closed.
The draft published online on February 25 introduces amendments of widely varying significance. While some provisions aim to incorporate case law into the Civil Code, others depart from it.
Preliminary provisions for the conclusion of the contract and rules for contract formation
Among the provisions planned, the following elements should be highlighted:
- The project defines or redefines the different types of contracts. In particular, it introduces a definition of the framework contract and the adhesion contract;
- The requirement of good faith is extended to the formation of the contract;
- The draft specifies the terms of withdrawal and acceptance of the offer;
- Right of first refusal: the penalty for breach of the right of first refusal provided for by case law is modified and incorporated into the code.
Contract validity
The draft establishes a general duty to provide information and outlines the penalties for failing to fulfill this duty.
Among the key changes, it is worth noting the removal of "cause" as a condition for the validity of a contract. However, the concept is not entirely eliminated from contract law. On the contrary, the draft ordinance incorporates existing solutions, particularly those from case law, and integrates them with the rules applicable to the object of the contract.
Sanctions
The project creates a general regime of nullity and lapse.
Effects of the contract
The draft enshrines the theory of unforeseen circumstances.
The rules governing stipulations for the benefit of a third party are detailed in the draft.
