Muriel Fabre-Magnan, Les Obligations (Paris: PUF, 2004), 977 pp. + index, ISBN 2 13 050392 6, EUR 47 (paperback).
I have had my doubts about the notion (promoted most vigorously by Pierre Legrand in several articles and in his book Le Droit comparé) that there exists a deep cultural gulf between the civil-law world and that of the common law. However, this new treatise by Professor Fabre-Magnan has rather made me think again. There are common-law textbooks called 'Obligations' and some of them are pretty good. But there is a vast difference between them and the work under review, a difference which is a matter, not so much of the solutions to particular problems, but of the scope of the work, its overall legal approach, and perhaps of its underlying assumptions as to the role of the law and that of a law-book.
Other parts of the book also display the civilian habit of thinking in wider categories than does the common law. For instance, common lawyers grow impatient when I ask them a question which has long troubled me: are obligations born to die? Those incurred by sovereign states in their treaties with each other seem to be presumed to be eternal (Vienna Convention, art. 56). But as far as the rest of us are concerned, the whole point of most of our obligations is that they should end happily: contracts are to be performed, wrongs made good, unjustified enrichment returned. Even obligations not to do something - such as to compete - are likely, if permanent, to be held unenforceable. Fabre-Magnan, however, discusses at some length whether 'perpetual contracts' are reconcilable with the need to protect individual freedom - it would seem from C.civ 1780 (and BGB 624) that they are not, at least in the area of employment contracts. But such obligations seem able to flourish in the shade of property law. She cites the great Craponne Canal case of 1876, where the Cour de cassation refused to interfere with perpetual irrigation contracts made in the 1560s. And in the common law those who acquire freehold land can find themselves bound for ever to persons other than the seller. Usually, the obligation will be to refrain from a certain course of action, as in the normal 'restrictive covenant' or clause de résidence bourgeoise. But even positive permanent obligations can live on from feudal times. Admittedly, knight's service, tithes, and the like have gone, but the duty to stump up for repairs to the chancel of the local church can still be imposed on someone who buys what was once glebe land. This is a positive obligation which, until slain by statute or redeemed by mutual consent, will never die and one whose enforcement has recently been held, by the highest English court, to be immune from challenge under the Human Rights Act 1998.
Another example of the range of issues considered suitable for inclusion in a civilian's book on obligations is the matter included in smaller print after each main exposition. It covers, very effectively, an extraordinarily wide range of topics: bibliography, of course; but then such matters as anthropology, etymology, epistemology, sociology, legal theory, and judicial policy. And, of course, comparative law. The author's excursions into this field treat mainly of the common law, in which she is well read and within which she has clearly been impressed - though not always converted - by some of the leading American writers such as Posner and Calabresi. Her summary of such matters as economic analysis, game theory, 'efficient breach', and 'speech acts' is always fair and always lucid. My only doubt is whether many of us would agree with her statement that at common law a cash sale is not classified as a contract (pp. 138-9). True, Professor Farnsworth takes this view, but it does not seem to be shared by others, as may be seen from US UCC 2-106(1) and the British Sale of Goods Act 1979 s. 2(1).
The Code civil
One example of the convoluted caselaw which prompts the common lawyer to think that we might just occasionally do it better is the problems which arise where the parties have entered into a contract of sale without determining the price. Here the common law just says, get on with it and pay a reasonable price, while France seems to have been doomed to thirty years of costly litigation.
One might add that more of this dialogue is now available on the internet, for instance in the decision of the Full Bench of the Cour de cassation of 17 November 2000 (Perruche). The formal arrêt is less than a page in length, but on the court's database we can also read the arguments of counsel (5 pages), the submissions of the Advocate-General (57 pages), and the Report of the juge rapporteur (31 pages). A woman contracted rubella (German measles) and became pregnant; her doctor did not diagnose her illness; had he done so she would have terminated her pregnancy. So the child is saying to the doctor: you were careless, and I was born disabled. The doctor's reply is: had I been careful, you had not been born. Fabre-Magnan offers her own, wise, reading of this difficult decision and of the statute which promptly followed.
Very much present in this book is the frequently repeated assertion that property in things passes by the exchange of consents. I realise, of course, that this is the French way of looking at the terrain of obligations, and is expressed in several articles of the Code. Yet to the common lawyer's mind it may offer a rather strange picture of the effect of contracts in general. Article 711 provides that property passes by inter alia 'the effect of obligations', but it does not say that it must so pass. Article 1138 says that the obligation to transfer (livrer) is 'perfect' by the mere consent of the contracting parties, but presumably this consent should include agreement that, before the item is handed over, property and risk will pass. Because such matters will rarely occur to them, we need a default rule, given for sale by 1583 and exchange by 1703. But since contracts depend on l'accord des volontés, do not the articles operate as what we would call a presumption; clearly parties can expressly agree that property will not pass until physical delivery of the thing, or until payment of the price - hence the popularity of reservation of title clauses. Furthermore, even where the default rule applies on sale it does not - it cannot - mean that ownership of the price passes to the seller on formation of the contract; the price is the seller's only when the money is handed over or an appropriate financial transfer effected. So the solo consensu rule sets up a limping transaction.
Furthermore, the rule can apply only to specific things in existence at the time the contract is made. But a very large number of deals concern future or generic or unascertained goods, property which can pass only on delivery to the buyer or a carrier (as is made clear in C.civ. 1130, 1585). VAT statistics suggest that, by value, some 80% of sales are of this type. Take, for example, the vast petroleum market: the upstream trades from oilfield to carrier, the midstream network to the refinery, the downstream chain from distributor to filling station to motorist - at all these stages property in the fuel passes only on delivery. Much the same is true of beer and bread.
Finally, one may note that other systems seem to manage quite well by a default rule which links the passing of property to traditio of the thing. The Dutch Code of 1992 requires levering (3:84 subs. 1), the German Übergabe (929), and the UCC 'physical delivery' (2-401(2)). British law states that, as between the parties, property in the goods passes to the buyer when they intend it to pass - which seems like a robust application of l'accord des volontés. Where intent is not expressed but the goods are specific or ascertained, it does go on to lay down the same default rule as the French, that property passes when the contract is made. Nowadays, however, very little is needed to rebut this presumption, and the passing of property is readily tied to delivery or payment (Sale of Goods Act 1979 ss. 17, 18).
One contour which is absent from the book's landscape is any general treatment of the most common positive legal obligation: the primary obligation to pay money. This is the essential undertaking of one of the parties in almost all the traditional nominate contracts, while in some it is the obligation of both: banking, insurance, contracts for differences on the stock market. When one adds the vast number of monetary obligations owed to the public (or privatised) services (for fuel, electricity, water, communications), and those imposed by central and local taxation, it would seem that the simple monetary obligation is so pervasive as to deserve its own section. Its rigour deserves to be emphasised: the debtor cannot plead lack of fault nor force majeure, nor the fault of the creditor, and the latter need not demonstrate that he or she has suffered any damage. Only in exceptional circumstances are the courts empowered to modify the price in the absence of some relevant variation in the counter-prestation - for instance, the EC Unfair Terms Directive 93/13/EEC art. 4(2) does not permit revision of 'the adequacy of the price and remuneration'. Another feature of this, the commonest of all positive obligations, should serve as a corrective to the assumption that obligations are personal relationships. Once created, they can be easily detached from the original parties - a monetary obligation may be discharged by anyone and anyone may take an assignment of the créance (C.civ. 1236, 1689). And, most curiously, private-law obligations may be fully discharged by transferring the benefit of a public-law obligation embodied in currency (novation?): English and Scottish banknotes still 'promise to pay the bearer on demand'.
I note another difference in the contours of the landscape of obligations in Professor Fabre-Magnan's excellent and up-to-date sections on non-contractual liability. Her treatment is subtle and thorough, yet it does not depict the most common types of 'torts'. Surely, the number of instances of murder, manslaughter, rape, robbery, burglary, theft, swindling, arson, shop-lifting, vandalism, graffiti-daubing and the like must equal, or even surpass, that of road accidents, workplace accidents, and medical malpractice. No doubt to a French reader it is obvious that these crimes fall under C.civ. 1382, and the appearance of the victim as partie civile in the prosecution must drive the point home. Yet, in terms of the general efficacy of tort law it would be interesting to know how many miscreants are identified, and of these how many actually do compensate their victims, even partially. Her chapter on the various indemnity schemes describes the guarantee funds for victims of terrorism, aids, road accidents, and asbestos, but not for (the surely much more numerous) victims of crime.
Bernard Rudden, FBA,
Cite as: B. Rudden, Review of Muriel Fabre-Magnan, Les Obligations, vol 9.1 ELECTRONIC JOURNAL OF COMPARATIVE LAW, (January 2005), <http://www.ejcl.org/91/review91.html>
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