cannarsa's lecture

• Contract law is at the heart of the functioning of the market and carries few political, cultural and ethical baggage than other legal areas.
• Contract law is regulated mainly in the Code Civil in France.
• In the first decades of the 21st century in France, major reforms of the Code civil took place to bring back order, consistency and sistematicity in French private law, and to enhance its attractiveness.
• Contract law went through a major reform in 2016: Amendment of the Civil Code by Ordinance n° 2016 - 131 of 10th February 2016 relating to the law of contract, the general regime of obligations and proof of obligations, entered into force on 1st October 2016 and ratified by Act No 2018 - 287 of 20th April 2018.
• The third book of the Code has been largely reshaped in its structure and content, especially Title III.
• The procedure is governed by the Code of Civil Procedure and the protocol of procedure which has the objective of organising “proceedings by which cases will be heard and judged before this new Chamber”.
• The International Commercial Chamber of Paris Court of Appeal is competent for international commercial disputes for which the parties have chosen Paris as their jurisdiction by the stipulation of a jurisdiction clause inserted in the contracts.
• The International Commercial Chamber of Paris Court of Appeal (art. 1519 CPC) is competent for appeals against arbitral awards (annulment & enforcement) as of January 2019.
• Parties are invited to agree to apply the specific protocol.
• The parties may state their oral arguments, file documents, written statements or ask for the witnesses or experts to be heard in English.
• Only procedural documents must be written in French: The notice of appeal, The submissions, The judgment: According to Article 7 of the Protocol, the judgment "shall be drafted in French together with a sworn translation in English".
• At the EU level, legislative activity in the field of contract law materialized mainly in the field of consumer protection, though several attempts to harmonise EU private law occurred in the first two decades of the 21st century.
• The legal landscape of European consumer law has evolved quite significantly in the past years and had various impacts on French contract law, from a substantive perspective as well as from a structural one.
• A new landscape in the digital economy is taking shape, with impacts on the law of contract.
• A contract is a concordance of wills of two or more persons intended to create, modify, transfer or extinguish obligations.
• Everyone is free to contract or not to contract, to choose the person with whom to contract, and to determine the content and form of the contract, within the limits imposed by legislation.
• Contractual freedom does not allow derogation from rules which are an expression of public policy.
• Contracts which are lawfully formed have the force of legislation for those who have made them.
• Contracts must be negotiated, formed and performed in good faith.
• Whether or not they have their own denomination, contracts are subject to general rules, which are the subject of this sub-title.
• Ordinance n°2021-1734 of 22 December 2021, on e-commerce introduces new pre-contractual information obligations imposed on businesses in case of distance contracts and contracts negotiated away from business premises, specifically adapted to sale of digital content (e.g. online comments).
• Directive 2019/770 is one of the first EU legislation directly and specifically covering contracts of supply of digital contents and digital services.
• Its implementation in French law, with the same ordinance as for directive 2019/771, is having a significant impact on French contract law and creates a new law for digital contracts.
• Rules particular to certain contracts are laid down in the provisions special to each of these contracts.
• The 1999 directive on sale of consumer goods and associated guarantees was repealed by directive 2019/771 of 20 May 2019, and the French legislator implemented the new directive into the consumer code through ordinance n°2021-1247 of 29 September 2021.
• The duties to inform cover the functionality of goods with digital elements, digital content and digital services, but also, where applicable, any relevant compatibility and interoperability of goods with digital elements, digital content and digital services that the trader is aware of or can reasonably be expected to have been aware of.
• The concept of contract suspension is newly introduced in article 1220: "A party may suspend the performance of his obligation as soon as it becomes evident that his contracting partner will not perform his obligation when it becomes due and that the consequences of this non-performance are sufficiently serious for him.
• According to article L.217-6 of the consumer code, non-compliance with personal data protection on the occasion of the contract is assimilated to a non-conformity if it leads to non-compliance with one of the other conformity requirements.
• The 2016 reform introduced innovations such as hardship, which allows courts, on the request of a party, to revise the contract or put an end to it.
• The general rules are applied subject to these particular rules.
• The assessment of significant imbalance in the rights and obligations of the parties to the contract must not relate to the main subject-matter of the contract nor to the adequacy of the price in relation to the act of performance.
• France chose to keep general civil law (the droit commun) separate from consumer law, the latter being considered as a specific area of law (le droit spécial).
• The definition of conformity is extended in order to include aspects specifically relating to the goods with digital elements, the seller having to “ensure that the consumer is informed of and supplied with updates, including security updates, that are necessary to keep those goods in conformity, for the period of time” making the conformity obligation a continuous one.
• The concept of standard contracts, now formally recognised in article 1110 § 2 of the Code civil, is an example of an innovation influenced by EU consumer contract law.
• The new provisions apply to every sales contract concluded after 1st January 2022, be it electronic or not, as long as the sold item is a tangible object.
• The reasons for this separation include structural imbalances in B2C relations.
• The prohibition of unfair contractual terms is transplanted from Council Directive 93/13/EEC to article 1171 of the French Civil Code.
• The reception area of most of EU consumer provisions in France is the consumer code, formally enacted in 1993.
• In standard contracts, any non-negotiable term, pre-formulated by one of the parties, which creates a significant imbalance in the rights and obligations of the parties to the contract is deemed not written.
• A standard-form contract is one which comprises a collection of non-negotiable terms which are determined in advance by one of the parties without negotiation.