The Framing Principles of the Contract Theory in the New French Civil Legislation: Comparative and Original Critical Study
Prof. Mohammad Irfan Alkhatib
Professor of Civil Law – Ahmad Bin Mohammad Military College – Doha – Qatar
The research presents an academic attempt to clarify the modernist aspects of the legislative principles framing the contract theory in the French civil law: “the principle of contractual freedom, the principle of good faith, and the principle of binding force of the contract”, after the last amendment of this law in 2016, in order to demonstrate the success of this amendment in addressing legislative flaws in the previous civil legislation. It also aims to inform Arab law and jurisprudence on these modern aspects, in order to draw their attention to them, and the need to review the actual reality of these principles in their countries, according to a comparative critical analytical legal approach that analyzes the fundamental aspect of these principles in the new civil law on the one hand, and compares with a critical view, the current reality with the previous civil law on the other, according to a research plan that deals with the specificity of the idea of “General Principle” in the amended civil law and the problem that accompanied its adoption. The research presents modernist aspects of each of these three doctrines of the contract theory in three consecutive sections.
The research has shown how the legislators of the new French Civil Code, although the designation of the “General Principle” to these principles is still being considered by supporters and opponents, have re-adapted them with social, economic and legal variables to make contract theory more responsive to these variables. The research also highlighted the new legal vision that characterized the contract theory as a result of these principles, which deserves to be commended in one aspect and requires correction and revision in others.
The research stressed that the new law, as well as granting the will more space in determining the quality and nature of the obligation, it must re-position on the freedom of this will to determine the counterparty in the contractual process, because of the discriminatory criterion contrary to the law, and pointing out that as the law expanded the protection of the principle of good faith for the various stages of the contract, it should not exclude the termination of the contract from this protectionism, hoping that it will reconsider its current position to reach a full contract protection. The research praised the critical reconciliation adopted by the new law between the binding force of the contract and the contractual security, while at the same time alerting the seriousness of the consequent greater presence of the judiciary in the future organization of the contract, as a «contractual» party that may not be desirable, calling for jurisprudence and the judiciary and the legislator for further work, in order not to let this consensus deviate from the legislative objectives for which it was established.
Keywords: Contractual Justice, Contractual Balance, Contractual Safety, Contractual Freedom, good will, Binding Force of Contract, French Civil Code.