Chapter 4 - French Law

Summary

Introduction

French law addresses precontractual negotiations as a relationship that may be regulated by law. The idea of legal duties imposed on the parties once they enter into negotiation is rooted in the views of Saleilles, who came up with a concept of responsabilité précontractuelle (precontractual liability) in 1907. In a manner innovative for his time, Saleilles suggested that the mere process of negotiations inevitably binds negotiating parties together by practical, social, and moral links. He advocated that breaking these ties should be qualified as a tort and lead to precontractual liability.

Subsequently, legal regulation of the precontractual period has attracted considerable attention in the French literature. The interest has been further revived with the drafting of the PECL and DCFR and the projects of reforming the French law of obligations.

Since the nineteenth century, precontractual liability has become a usual concept in French law. However, it was scarcely incorporated in legal texts, the main source of French law. This concept was not incorporated into the Code civil. The regulation of precontractual relations was based on general principles of the law of obligations and the ‘praetorian’ judge-made rules. Since the adoption of the Napoleonic Code two centuries ago, French courts have come some distance in interpreting its provisions in the context of practical changes. Over the years of application and interpretation of the Code civil, judges have developed standards of conduct to be respected by the parties during negotiations. These standards have been referred to as ‘particularly rigorous ethics of negotiations’. The sanction for their breach is a liability in tort.

French case law or, to use the exact term, jurisprudence has not confined the legal regulation of negotiations to precontractual liability in tort. In French law, parties may organize negotiations contractually. During the last few decades, French judges and scholars have become receptive to the practice of creating various precontractual documents. Drawing on the general provisions of contract law, they have recognized a plethora of avant-contrats, including the project of contract, agreement in principle, pre-emption agreement, promise to contract and others. The validity of these documents is underpinned by the distinction made in French scholarship and case law between the future contract and the process of negotiations towards this contract. It is the process of negotiations that is privatized by contractual obligations.