The Construction, Sources, and Implications of Consensualism in Contract: Lesson from France (Studies in the History of Law and Justice, 27)

This book offers a comprehensive introduction to French contract law with a focus on the role of consent and the evolution of consensualism, considering its immediate historical sources. The book provides a clear, in-depth, and analytical discussion of the contingency of consensualism and how the development of consensual ideas across time and transnational geographical settings has specifically underpinned modern French contract law, which has inspired other legal systems and continues to do so. It also challenges the macro-narratives of European legal history and redefines consensualism so that it may be properly understood, addressing its manifest contemporary misinterpretations. Thorough, engaging, well-structured and inventive, there is no other English-language scholarly work that offers a similar analysis. “This monograph makes an evident contribution to the field by offering an original interpretation of several provisions in the Code Civil which relate to the law of contract. The author demonstrates an impressive grasp of Latin, French and English sources as well as knowledge of Roman law, legal history, and contemporary French law. It is well-referenced and offers an extensive bibliography”. – Dr Stephen Bogle, Senior Lecturer in Private Law, University of Glasgow, UK “The author brings a critical perspective to bear throughout the monograph and develops a clear and quite sophisticated position on the interaction between consensualism and formalism in Roman and French law and the intervening European ius commune”. – Prof Hector MacQueen, Emeritus Professor of Private Law, University of Edinburgh, UK Preface 7 Contents 10 Chapter 1: Introduction 14 1.1 Sources 23 1.2 Methodology 29 1.3 Chapters Outline 34 Case Law 35 Statutory Provisions 35 References 36 Books 36 Articles 40 Part I: Idea and Role of Consent in the Development of a Taxonomy of Contract in Ancient Law 42 Chapter 2: Consensualism in Roman Law 43 2.1 Introduction 43 2.2 Roman Formal ``Contracts ́ ́ and Consent 45 2.2.1 Formalism and Consent 46 2.2.2 Ritualism and Consent 50 2.2.3 Roman Quasi-Informal and Informal Contracts, and Form 53 2.2.4 Stipulatio and the Erosion of Form 56 2.2.5 Adaptation of the Roman Contractual Forms 58 2.2.6 Procedural Reform and Primacy of Consent 61 2.3 Conclusion 65 Statutory Provisions 66 References 70 Books 70 Articles 73 Chapter 3: Consensualism in mos gallicus and iuris Franco-Gallici 75 3.1 Introduction 75 3.2 Germanic Law and Formalism 76 3.3 Customary Law and Consensualism 80 3.4 Conclusion 83 Statutory Provisions 83 Canon Law 84 References 84 Books 84 Articles 85 Chapter 4: Consensualism in Modern Law 86 4.1 Introduction 86 4.2 Canon Law and Roman Gloss 87 4.3 Natural Law and the Rise of the Ius Commune 101 4.4 Conclusion 118 Statutory Provisions 120 Roman Law 120 Canon Law 120 References 121 Books 121 Articles 123 Part II: Reception, Relevance, Evolution, and Implications in the Civil Code of France: De Lege Lata 124 Chapter 5: Article 1101 and the Systematisation of Consent as a General Principle of Contract 125 5.1 Introduction 125 5.2 Reconstructing Conventio 128 5.2.1 Conventio as Mutual Consent: Consensual Approach 128 5.2.2 Conventio as Unilateral Consent: Voluntarist Approach 130 5.2.3 Consolidation of Consensualism and Voluntarism as False Opposites 131 5.3 Practical Consequences 133 5.3.1 Offer and Acceptance: Premise 134 5.3.2 Implication in the Civil Code 134 5.3.3 Developments Since Codification 135 5.3.4 Significance 136 5.4 Conclusion 138 Statutory Provisions 139 Roman Law 139 Case Law 139 Case Reports 141 References 141 Books 141 Articles 143 Chapter 6: Article 1108 et seq. and the Specification of the Consensual Doctrine 145 6.1 Introduction 145 6.2 Defects in Consent and the Vindication of the Consensual Doctrine 147 6.3 Cause: An Agency of the Efficacy of Consent 152 6.3.1 Meaning and Implications 152 6.3.1.1 Reconstruction of the Meaning of Causa in the Civil Code 153 6.3.1.2 Judicial Specification 154 6.3.1.3 Jurisprudential Developments 156 Causa as a Lawful and Equitable Object 156 Causa as a Requirement for Consideration 157 Causa as an Instrument of Social Control 158 Chronopost and the Implication of Causa as a Tool of Business Efficacy and Sufficient Consideration 159 6.3.1.4 Implications 161 6.3.2 Doctrinaire Reconsiderations of Causation as an Agency of Consent: Pro-Causalism -v- Anti-Causalism 162 6.3.2.1 Pro-Causalism and the Extension and Vindication of Causa 163 6.3.2.2 Anti-Causalism and the Dismissal of Causa as a Useless Doctrine 165 6.3.2.3 Critique 166 6.3.3 Ordinance n2016-131 of 10 February 2016 and the Rejection of Causa from French Contract Law: Seeming Victory of Anti-Cau... 167 6.3.3.1 Background 167 6.3.3.2 Underlying Permanency of Causa in French Law 169 6.3.3.3 Overview of the Rise and Fall of Causa in Scots Law (16th-18th century) 171 Acknowledgment of Causa in Scots Law in the 16th to 18th Century 172 Continued Relevance of Causa 175 Significance 178 6.4 Conclusion 179 Statutory Provisions 180 Roman Law 181 Case Law 181 Case Reports 185 References 185 Books 185 Articles 187 Other 188 Part III: Rethinking the French Perspectives on Consensualism: De Lege Ferenda 189 Chapter 7: Articles 1109 and 1172, and the Classification of Contracts: Problems and Perspective 190 7.1 Introduction 190 7.2 Inadequacy of the taxonomy: Consent -v- Form 193 7.3 Role of Form and Instability of the Taxonomy 199 7.4 Conclusion 202 Statutory Provisions 203 Case Law 203 References 206 Books 206 Articles 207 Other 208 Chapter 8: Reconsidering Consensualism and the Role of Consent in Contract 209 8.1 Introduction 209 8.2 Normativism and Consent 211 8.3 Implications 215 8.4 Conclusion 217 Statutory Provisions 217 Case Law 218 References 218 Books 218 Articles 219 Other 220 Chapter 9: Conclusion 221 9.1 What Are the Underpinnings of Consensualism? 221 9.2 What Are the Implications of Consensualism? 222 9.3 What Relationship Does Consensualism Entertain with Formalism and How Can They Be Made to Exist in Harmony Despite Differe... 223 9.4 How Can Ideas of Consensualism be Consolidated to Posit a Single, More Precise Definition and Reveal It in the Full Extent... 223 Table of Authorities 225 Bibliography 240 Primary Sources 240 Secondary Sources 240