Contract Validity Theory in the Modern French Civil Legislation Changing & Unchanging: Critical Reading in Reform Law of Contracts and Proof No 2016-131
Prof. Mohamed Arfan Alkhatib
Law Department – Professor of Civil Law – Ahmad bin Mohammad Military College – Qatar,Doha School of Law – University of Damascus – Syria
Abstract:
Since it was established in 1804, the intellectual philosophy -on which the authors of French civil law founded, was equally praised but considered ambiguous as criticized in many respects! Especially in aspects related to the “Contract Validity Theory” specifying the terms of the contract, known as the theory of “Pillars of Contract”. Which formed a great burden on French jurisprudents scholars and comparative jurisprudence. It was yet different for French civil legislator therefore, as it was mainly based on the bilateral coexistence of legislation and justice in framing the intellectual philosophy of this theory. However, the theory became legally critical with the rise of globalization and the increase of legal openness of Western law systems onwards. Criticism calling for the amendment of its texts increased to start later in 2004. The French civil legislator adopted an ambitious legislative plan aiming to amend several civil law rules, including legal rules related to the contract and commitment principles. This was embodied in Law No. 131-2016 dated 10/02/2016 known in French law as the “Contract Reform Law and Proof”, which defined substantial amendments to the rules underlying contract theory, including the: “Contract Validity Theory”.
To this end, this paper examines changing and unchanging in this theory in modern French civil legislation, considering the latest legal amendment, through a comparative legal analytical study of the founding texts of this theory in both “current” and “previous” French civil law that generated this theory, and engaged in framing the pillars of this theory. Aiming to clarify the various modern aspects of this new law, and the effects resulted from this theory in terms of both form and subject, either through its three pillars in the current law, and the four pillars in the previous law through two main categories; the subjective and objective significance of the: “Validity of the Contract Theory”. The first (Subjective) dealing with the elements if the contract related to the two parts of the contract, while the second (Objective) dealing with the same elements related to the contract itself, to finally conclude the actual legal position of the French civil legislator towards this theory and its developments as well.