Hors collection - Le nouveau droit des contrats - 252

ThE NEW FRENCh CONTRACT LAW

between European legal systems, as well as from UNIDROIT Principles of
International Commercial Contracts, a model code for international trade.
Throughout the process, academics have played an important role in the
contract law reform. From 2005 to 2016, many of them were involved with the
Chancellerie, along with other stakeholders, so that one cannot subscribe to the
denunciation made by some of an "ordonnance-express". This expertise was
independent, contradictory and dynamic. The work of a joint working group
of the Association Henri Capitant des amis de la culture juridique française
and the Société de legislation comparée, set up within the framework of the
European Network of Excellence, constituted a formidable source of comparative law. This work was published by the Société de législation comparée in two
separate volumes in 2008 (Terminologie contractuelle commune (2008) and
Principes contractuels communs (Common Contractual Principles hereinafter
"CCP")3) and it was translated into English (as regard the CCP, the translation
was limited to the black letter provisions). The Chancellerie (Minister of Justice),
was inspired by the work of this joint working group, in particular its guiding
principles built on the three pillars of freedom, security and contractual fairness, as well as the analysis of each article of the CCP, insofar as they had been
confronted with other sources (UNIDROIT Principles ; Vienna Convention on
the International Sale of Goods, CESL, Catala project and also the DCFR, an
enterprise still ongoing at that time). In the part that was not translated, the CCP
explain the changes proposed to the PECL, and analyse them in the light of the
two French drafts (Projet Catala and Terré) as well as in the light of the existing
soft law (PECL, UNIDROIT Principles, Code Européen des contrats). The "principes directeurs du droit européen du contrat" (liberté contractuelle, sécurité
contractuelle, loyauté contractuelle) which precede the CCP have formed the
basis for an introductory passage entitled "Principles" in the first volume of the
DCFR (where four principles are listed : freedom, security, justice, efficiency).
Perceived by European scholars as particularly "French", this work has had
a limited influence on the final text of the DCFR. However, and much more
importantly, they influenced the European Commission's decision to set up its
own group of experts and to limit its ambition to the codification of the law of
contracts (a decision which was subsequently further narrowed down to sales
contracts).4
27. Comparative, international, and European perspective. The "2008 draft"
caused a certain surprise, to say the least. The choice of a chronological plan of
the new contract law and the accentuation of the distinction between contract
law and the regime of obligations were inspired by the European projects. With
3. Terminologie contractuelle commune (Paris, Société de législation comparée, 2008) and Principes contractuels communs (Paris, Société de législation comparée, 2008).
4. N. Jansen and R. Zimmermann eds, Commentaries on European Contract Law, Oxford, 2018, Introduction.

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