French Contract Law

The 2016 Reform

French contract law was restructured by Order 2016-131 of 10 February 2016 (effective 1 October 2016), replacing the 1804 Code Civil provisions that had remained substantially unchanged since Napoleon. The reform modernised the law, codified decades of jurisprudence, and introduced the binding unilateral promise, unforeseen circumstances (imprévision), and the contract of adhesion. The reformed law occupies Articles 1100 to 1231-7 of the Code Civil, with transitional provisions preserving the former law for contracts concluded before 1 October 2016.

Freedom of Contract

Article 1102 affirms freedom to contract or not, to choose the contracting party, and to determine the content and form within legislative limits. This liberté contractuelle is fundamental but subject to public policy (ordre public). The reform codified three categories: protective (protecting weaker parties), directive (structuring economic relations), and mandatory laws. Article 1103 affirms the binding force of contracts (force obligatoire). Article 1104 imposes good faith (bonne foi) throughout formation, performance, and termination, elevating it from a performance-stage duty to a principle governing the entire contractual life.

Classification of Contracts

The Code Civil (Articles 1106-1111) classifies contracts bilaterally (contrats synallagmatiques — reciprocal obligations) versus unilaterally; onerously (contrats à titre onéreux — each party receives an advantage) versus gratuitously (contrats à titre gratuit — benefit without return); commutatively (obligations fixed at formation) versus aleatorily (performance dependent on chance). Consensual contracts are formed by mere agreement; solemn contracts require a particular form (notarial deed for donations); real contracts require delivery of a thing. The reform added contracts of adhesion (Article 1110) — standard-form contracts whose conditions are determined by one party and not negotiable — subjecting them to specific interpretation and control rules, including the rule that terms creating a significant imbalance are deemed unwritten.

Validity Requirements

Article 1128 identifies three essential conditions: consent (consentement), capacity (capacité), and lawful and certain content (contenu licite et certain). Consent must be free and informed. Capacity (Articles 1145-1155) is restricted for minors (under 18) and protected adults under judicial safeguards (sauvegarde de justice, curatelle, tutelle). The content must be lawful — not contrary to public policy — and certain: the obligations must be determinate or determinable.

Offer and Acceptance

Formation (Articles 1113-1127-3) requires a meeting of offer and acceptance. An offer (offre) is a proposal containing the essential elements, indicating the offeror’s intention to be bound upon acceptance. Under Article 1116, the offeror may revoke only until acceptance reaches them; revocation thereafter engages delictual liability. The unilateral promise (promesse unilatérale de contrat) under Article 1124 — by which the promisor grants an option to the beneficiary — is binding; if revoked during the option period, the promised contract may be specifically enforced, overruling earlier contrary jurisprudence. Acceptance must correspond to the offer and is effective upon receipt. Article 1112-1 imposes a pre-contractual information duty: a party knowing information decisive of the other’s consent must disclose it, failing which the contract may be annulled.

Defects of Consent

The Code Civil (Articles 1130-1144) recognises three defects (vices du consentement): mistake (erreur), fraud (dol), and duress (violence). Mistake (Article 1132) grounds nullity only where it bears on essential qualities of the prestation or the other party (erreur sur les qualités substantielles). Mistake on value is not a ground. The reform expressly admits mistake as to the other party’s essential qualities in contracts concluded intuitu personae. Fraud (Article 1137) renders the contract voidable where consent is obtained by manoeuvres, lies, or deliberate concealment (réticence dolosive). Duress (Article 1140) includes economic duress (violence économique) — exploitation of a state of dependence to obtain a commitment not otherwise given.

Unforeseen Circumstances

The most significant innovation is imprévision under Article 1195. French law had, since the arrêt Canal de Craponne (1876), consistently rejected revision for changed circumstances as contrary to force obligatoire. Article 1195 now provides that where an unforeseeable change of circumstances renders performance excessively onerous for a party who did not assume the risk, that party may request renegotiation. If renegotiation fails, either party may seek judicial adaptation or termination at a date and on conditions the judge determines. The provision is suppletive — parties may exclude it. This brings French law closer to the German doctrine of Geschäftsgrundlage (§ 313 BGB) and the UNIDROIT Principles (Article 6.2.2).

Binding Force and Good Faith

Article 1103 codifies force obligatoire: contracts lawfully formed have the force of law for the parties, who may not revoke them except by mutual consent or on grounds provided by law. Article 1104 provides that contracts must be negotiated, formed, and performed in good faith — a matter of public policy, not subject to exclusion. Good faith governs pre-contractual negotiations (faute dans les pourparlers engaging delictual liability), formation (including the information duty), and performance (the duty not to abuse contractual rights).

Remedies for Non-Performance

Articles 1217-1231-7 provide a comprehensive framework. The creditor may (1) suspend performance (exception d’inexécution), (2) seek specific performance (exécution forcée en nature — Article 1221 makes this the primary remedy unless impossible or manifestly disproportionate), (3) obtain price reduction, (4) seek termination (résolution), or (5) claim damages cumulatively where compensation is due. Termination (Articles 1224-1230) may be by notice, express termination clause, or judicial order. Damages (Articles 1231-1231-7) compensate the actual loss that was foreseeable at formation, unless the breach is due to gross fault or fraudulent intent.