Clifford Chance

French Contract Law Reform (Client Briefing - February 2016)

21 March 2016

After a decade of discussion and the failure of several previous reform projects, French contract law has finally been reformed by way of an ordinance ("ordonnance") published on 11 February 2016.

Introduction

The objectives of the reform are notably the simplification, modernisation and, ultimately, attractiveness of French contract law.

The reform codifies in particular a number of principles that have emerged in case law, thus stabilizing these solutions and improving legal certainty (e.g., in varying degrees, in respect of good faith in the pre-contractual phase, certain unilateral remedies or assignment of contract).

At the same time, the reform does away with certain previous concepts (like the doctrine of "cause", a key feature of traditional French contract law), whilst introducing new ones that are often borrowed from other theories of law, such as 'hardship' and the control of 'unfair contract terms'.

On certain aspects, the reform has been seen by some as an enhanced protection of the "weak" party and an increased interference by the courts in the life of the contract. This being said, the final version of the ordinance takes account of some of the comments and criticisms raised in this respect. For instance, as regards 'unfair contract terms' and the notion of 'significant imbalance', as further described below, the new regime introduced by the reform now applies to standard-form contracts only ("contrats d'adhésion"), a more limited scope

than that envisaged in the preliminary draft of the ordinance of February 2015.

Although the reform continues to raise certain questions and concerns, it nonetheless makes various improvements and useful contributions to French contract law, many of which have been called for by scholars and practitioners.

Moreover, the changes introduced further reinforce the importance of adopting appropriate drafting of contractual provisions.

This article discusses some of the key aspects of the reform.

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