Vol. 9.1 January 2005

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.

First of all, the French treatment is settled firmly and comfortably within a tradition which dates back some two thousand years and treats 'obligations' as an independent and major category within the legal order. By contrast, the common lawyer's instinctive categories for study, teaching, and practice are contract and tort, and there is sometimes something a little artificial - a sense of elevating our discourse ('talking posh') - when we change the name. Thus, in 1993 in England the professional bodies competent to supervise legal education simply renamed the examination subjects Contract and Tort as Obligations I and Obligations II; as far as I can see, the content and techniques are little changed. At a more academic level, Oxford University Press has recently published an excellent two-volume account of English Private Law, written by leading scholars under the direction of the late, lamented, Peter Birks. His Preface tackles seriously the problem of taxonomy within the English legal system, and the first part of Volume II is entitled 'The Law of Obligations'. But in it the reader will find no general account of the concept of an obligation, its birth, modalities, death, and afterlife. Instead, the volume begins at once with contract's general rules, followed by chapters on agency, sale of goods (not 'sale' in general), carriage of goods by sea, employment, and tort. This method of treatment is, to a common lawyer, at once the most familiar and the most helpful. It is also defensible on several grounds, not least of which is the simple fact that contracts are good and torts are bad.

The plan
The second difference between this work and the common-law textbooks is apparent at once. Despite the huge mass of material to be covered, Fabre-Magnan's book is clearly planned, helpfully laid out, and written in language which is fresh, lucid, and often witty. The plan follows tenacious French custom: an introduction, followed by two major parts, each divided into two, with further sub-divisions clearly set out, if not so strictly dyadic. Thus, Book I is entitled Les engagements volontaires and - over 600 pages later - comes Les engagements involuntaires. In its turn, the first part of Book I is entitled L'accord des volontés: le contrat and takes up some 600 pages. The second part, La volonté d'un seul: l'engagement unilatéral is a mere 9 pages in length, and deals largely with one issue - the offer of a reward. It might be felt that the imbalance of treatment suggests a certain strained artifice in the plan, but at least the division is clear and readers will know where they are - which is rarely the case in a common-law treatise. Not only is the work organised on a defensible plan but, as usual with French textbooks, the publisher has laid it out in a helpful way with the main matter printed in normal font and a smaller font then being used for additional material.

General approach
Admittedly, in the French tradition there is no Code section devoted to obligations in general comparable to that of the German BGB 241-92. Nonetheless, the generalist tradition has long since permeated French law and so, before getting down to detail, the book offers a confident and succinct account of the concept of obligation, whether legal, moral, or 'natural', and of its general sources (though she does not treat of kinship as such).

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.

This material demonstrates another cultural difference between the two traditions. The French work is presumably intended as a basic text (it does not, for instance, deal in any detail with the nominate contracts), yet it contrives to indicate the reach of its topic by including sections (albeit brief) on conflicts of laws and on some of the obligations which are governed by public law but are comparable to those of private law's categories. English law has never developed any general theory of public contracts and, on the whole, disputes about such matters tend to be adjudicated by officials or settled by confidential arbitration, rather than litigated publicly before the courts. So one can peruse an entire English textbook on contract law without learning that, through central and local government and public authorities, the State is the great buyer of services and of things, and that it concludes with its suppliers procurement contracts of a fairly standard pattern.

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 book demonstrates another feature of the civil lawyer's perception of the legal order, namely a sense of a hierarchy of norms. So, in regard to contracts, the author explains the powers conferred by the Constitution on the legislator to fix the fundamental principles of obligations, and deals with the decisions of the Constitutional Council on whether laws affecting contracts can be retroactive. Similarly as regards tort law, we are given the decision of the same body affirming the constitutional strength of the general tort principle embodied in C.civ. 1382. The place of EU norms is also covered, as what the author describes as the 'forced march' towards a European Civil Code.

The Code civil
The key provisions of the French Civil Code afford a civilian writer the great advantage of being able to organise the exposition of many topics around a plain text simply stated and uncluttered by the details of a particular case. Fabre-Magnan uses this advantage in two ways. First, she points out that many of the relevant provisions deal with short-term transactions, so that several widespread and long-lasting contractual relationships have had to be dealt with in special legislation. Insurance is one example, lease would be another, but the topic which she uses again and again to illuminate particular features is the law of employment. Second, returning to the basic structure, the Code's key provisions have been made to work in situations undreamt of by their creators; and for this we must thank the dialogue between doctrine and jurisprudence. So her citation of the Code is often followed by the word mais. As to the academic contribution, the author pays due regard to the great names such as Josserand, Starck, Carbonnier, Tunc. As to the courts, she provides an acute and meticulous analysis of the leading cases (which are cited in the index) so that the reader can follow the twists and turns of the litigation. She also states, bluntly, that a revirement has retroactive effect.

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.

Looking at the topic from a general comparative point of view, the author's work enables us to perceive major differences in the common law's categories, resting on preconceptions which are all the more powerful for being rarely made articulate. Take, for instance, the domain of contract. Common-lawyers can well see that, in the normal healthy contract, both parties, in their own estimation, benefit. Sale is the simplest example: the buyer would rather have the thing than the money, the seller would rather have the money than the thing. The transaction thus increases human satisfaction. From this, however, common lawyers come to think that a transaction from which only one party benefits cannot really be a contract; hence their insistence on 'consideration' and their assumption that a unilateral undertaking, while it may be enforceable if clothed with a certain form (such as a deed), is not exactly a contract. But the civil lawyer, if properly brought up (i.e. with Gaius and Justinian), learns as the very first examples of contracts the loan and deposit, mutuum and depositum, both still in principle gratuitous (C.civ. 1876, 1917). So the domain of contracts is wider and warmer than that of the harsher common law, which confines its generosity to the law of trusts and the empire of 'Equity'. For instance, the author frequently avers that a gift is a contract and she seems never to feel the necessity of distinguishing, as must the common lawyers, between promising a present and making a present. For them, the first is in principle unenforceable since only the donee would benefit; the second is a completed transaction, leaving nothing to be enforced or undone.

Her excellent survey of tort law shows the impact of doctrine and of jurisprudence, and the intervention of the legislator. It seems to be the case that in many legal systems the history of this branch of law shows liability being imposed on an ever-widening number of persons for an ever-widening number of reasons. Roman law appears to have developed towards general liability for culpa even for injury to a free person. English law has certainly seen such a movement, and Fabre-Magnan's magisterial account demonstrates the same tendency in France. Very often it is writers who take the lead, followed by the courts, and finally the major legislation such as that of 1898 on workers' injuries, 1985 on traffic accidents, and March 2002 on medical malpractice. The published decisions of the Cour de cassation in the leading cases are both laconic and courageous, although Mitchel Lasser has analysed the more detailed and hesitant dialogue between the ministère publique, the juge rapporteur, and the Code (Mitchel Lasser, Judicial Self-Portraits: Judicial Discourse in the French Legal System, 104 Yale LJ 1325 (1995); Lit.Theory Put to the Test, 111 Harv L Rev 689 (1998)).

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.

Thinking over the book in general, I am not surprised that often, in particular cases, the civil and the common law solutions coincide. Yet, when I look at the overall landscape of obligations, I am struck by certain contours which differ from those that are dear to us Anglophones: some features stand out in Fabre-Magnan and some are (to a common lawyer) more conspicuous by their absence.

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.

My brief account of the difference in the landscapes of the civil law and the common law was provoked by a perusal of this rich and stimulating work and is in no way intended to cast doubt on the excellence of Professor Fabre-Magnan's superb treatment of the subject. She succeeds in being both thoughtful and thought-provoking, so my impressions may, perhaps, offer a few suggestions for the next edition - which is bound to be demanded. On reading a treatise of 977 pages, many of them in small print, it is rare to wish it longer. But this book is too short.

Bernard Rudden, FBA,
Emeritus Professor of Comparative Law, Oxford
Penzance, Cornwall,
December 2004

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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