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Chapter 4 - Reliance in the Breaking-Off of Negotiations in French Law

Published online by Cambridge University Press:  23 January 2020

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Summary

After several projects to reform the French law of contract and obligations were prepared by academics and by the Ministry of Justice, Ordonnance no. 2016-131 of 10 February 2016 on the reform of the law of contract, the general regime of obligations and proof of obligations was published on 11 February 2016 in the Official Journal (‘the 2016 reform’). This substantial reform of the Code civil came into force on 1 October 2016 and is applicable to contracts entered into from that date onwards. Loi no. 2018-287 of 20 April 2018 ratified Ordonnance no. 2016-131 of 10 February 2016 but modified some of the articles of the Code civil introduced by the Ordonnance. Loi no. 2018-287 entered into force on 1 October 2018. The reform introduced significant modifications to the law of contract and obligations in general, but the most relevant for this book are the new general ‘Introductory Provisions’, amongst which new article 1104 expressly establishes that contracts must be negotiated in good faith, and the new chapter on ‘Formation of Contracts’, where new article 1112 expressly recognises liability for breaking off negotiations. The text of article 1112 as introduced by Ordonnance no. 2016-131 is the following:

The commencement, continuation and breaking-off of precontractual negotiations are free from control. They must mandatorily satisfy the requirements of good faith.

In case of fault committed during the negotiations, the reparation of the resulting loss is not calculated so as to compensate the loss of benefits which were expected from the contract that was not concluded.

The text of article 1112 as modified by article 3 of Loi no. 2018-287 is the following:

The commencement, continuation and breaking-off of precontractual negotiations are free from control. They must mandatorily satisfy the requirements of good faith.

In case of fault committed during the negotiations, the reparation of the resulting loss is not calculated so as to compensate neither the loss of benefits which were expected from the contract that was not concluded nor the loss of the chance to obtain such benefits.

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Reliance in the Breaking-Off of Contractual Negotiations
Trust and Expectation in a Comparative Perspective
, pp. 55 - 98
Publisher: Intersentia
Print publication year: 2019

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