Friedrich Niggemann publishes an analysis of the new article 1171 of the French Civil Code

13 November 2018
Friedrich Niggemann

Close to the date of entering into force of the ratification law of the ordinance 2016-131 of 20 February 2016, reforming the

essential part of the contract law of the French Civil Code, the author examines the application of article 1171 Civil Code in commercial matters. This provision provides that in standard contrats (“contrat d’adhésion”) sich clauses shall be invalid, which create a significant disequilibrium between the rights and obligations of the parties.

This analysis is done for German lawyers which are interested in this subject because of German exports to France.

The author examines the discussions of the ratification law in the various French parliamentary bodies, during which the opinion of a non-application of article 1171 to commercial matters was dominantly expressed. According to this position the application of art. 111 Civil code would conflict with article L.442-6 I No. 2 of the French Commercial Code. According to this legal provision a person which tends to submit or submits its commercial partner to obligations which create a significant disequilibrium between the rights and obligations of the parties is liable for damages. The author further devellops the opinions in French legal doctrine, where the preponderant opinion is the an application of Art. 1171 Civil code in commercial matters as well. He then examines Art. L 442-6 I Nr. 2 Commercial code and stresses its character as a tort provision and its specific sanctions. The author further analyses whether the application falls under article 1105, 3rd para. Civil Code, by which special rules prevail over general ones (in this context : the “special” Art/ L 442-6 I Nr. 2 might prevail over the “general” Art. 1171 Code Civil), but comes to the conclusion that both provisions have different spheres of application. He hence arrives at his conclusion that article 1171 Civil Code has to be applied in commercial matters.

Thus, French law has made a (too ?) great step towards more contractual justice. The details of this reform have, however, to be defined by the French courts. There will necessarily be a period of contractual insecurity.

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