NEWS

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24-11-2017

 

The Senate adopts the ratification bill in first reading

of the order reforming contract law 

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The bill to ratify Ordinance No. 2016-131 of February 10, 2016 reforming contract law, the general system and proof of obligations was examined and voted on by the Senate at first reading on October 17, 2017 .

 

The text adopted by the Senate, following the filing of several amendments and the work of the law commission, comprises fifteen articles. These provisions make simple technical adjustments, but also substantial modifications to the 2016 ordinance.

 

The technical adjustments make it possible to correct several drafting blunders which had slipped into the order. Thus, in particular, article 1327-1 of the Civil Code on the assignment of debt is amended in order to restore the correct coordinating conjunction. The text thus now imposes a notification to the creditor or a deed by the latter " if he has given his agreement in advance to the assignment and has not intervened_cc781905-5cde-3194 -bb3b-136bad5cf58d_”.

 

Similarly, article 1305-5 of the Civil Code has been amended to specify that the forfeiture of the term incurred by the debtor is unenforceable against his co-obligors, but also against his sureties. This is the re-establishment of the true intention of the drafters of the order who wrongly thought that the guarantors were included in the co-obligors.

 

As for the substantial modifications, the senators intended to reduce the place given to the judge in the 2016 ordinance. Thus, the reference to " délais raisonables " is replaced by a fixed period of two months within articles 1158 (concerning representation) and 1123 (questioning actions in the preference pact) of the Civil Code.

 

Concerning one of the major innovations of the reform, namely the revision for unforeseeability of article 1195, here again the Senate reduced the power granted to the judge. If the text were to be promulgated as it stands, the judge would no longer have the power to revise the contract but only to terminate it in the event of failure of the renegotiation requested by one of the parties.

 

The senators also wished to recall that the contracts concluded prior to the entry into force of the reform, on October 9, 2016, remained subject to the old law, " including for their legal effects and for public order provisions ”. This is an important clarification because case law had already been able to judge the contrary and draw inspiration from the new law for contracts concluded prior to the entry into force of the reform (see e.g. _cc781905-5cde -3194-bb3b-136bad5cf58d_: mixed cass., Feb. 24, 2017, No. 15-20.411 and Soc. cass., Sept. 21, 2017, No. 16-20.103). 

 

Finally, note the change in the definition of the membership contract. It is no longer the criterion of the absence of negotiation of the general conditions, but that of the absence of negotiability of the contractual clauses which is retained by the senators. The definition of over-the-counter contract is also amended accordingly.

 

The text adopted by the Senate was transmitted to the National Assembly on October 18, 2017. We will have to wait for the work of the commission to come to know more precisely the contours of the ratification law.

 

Carole Couson-Warlop, associate lawyer ARTLEX

Guillaume Masson, ARTLEX lawyer

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