Parágrafo III Régimen de dedicación
VINCULACIÓN DEL PERSONAL ACADÉMICO
In Acquis Communautaire and Acquis International, the law of obligations is not con- sidered as a whole, and therefore the distinction between juridical act and juridical fact is not, prima facie, relevant, whether under international law (A), or under Community law (B).
A. The lack of a distinction between juridical act and juridical fact in Acquis International
Acquis International would appear to give more weight to questions relating to contract. Only a limited number of international conventions relate to tortious liability: for ex- ample, The Hague Convention on the law applicable to Traffic Accidents of 4 May 1971 and The Hague Convention on the law applicable to Products Liability of 2 October 1973.100In addition, these conventions have a limited application since they only deal
with questions of private international law. They partially unify certain rules of conflicts but do not affect substantial law.
B. A distinction which is foreign to Acquis Communautaire
Acquis Communautaire, with its piecemeal approach to harmonisation, shows an ab- sence of systematization of the sources of obligation, with the exception of case law relating to the Brussels I Regulation, in which the quasi-contract appears to have ac- quired a particular role (1). Moreover, current developments in European contract law illustrate the interdependence between contract and delict (2).
1. A piecemeal approach, incompatible with the systematization of the sources of obligation
Under Community law, there are few direct references to any sort of harmonisation of the rules relating to liability (see for example one of the rare pieces of legislation on the issue: Directive 85/374 of 25 July 1985 relating to liability for defective products101).
Whilst the objective of contract is to enable the transfer of wealth, the raison d’être for the rules of liability in Europe is based more upon a requirement for economic effec- tiveness in the internal market, avoiding the distortion of competition linked to forum
100 The French Cour de cassation, in a judgment of 7 March 2000 (Cass. Civ., 1ère, 7 March 2000,
Torfwerke), held that the law designated by the contractual conflicts of law rule should govern the relationship between the victim and the person liable for the damage, whether the liability is labelled as contractual or tortious. Rev.crit. 2001.101, note P.LAGARDE.
101 Council Directive 85/374 /EECof 25 July 1985 on the approximation of the laws, regulations
and administrative provisions of the Member States concerning liability for defective products (OJL 210, 7.8.1985, p. 29-33).
and law shopping. The recent judgments of the ECJdated 25 April 2002,102declaring
Directive 85-374 as requiring complete harmonisation, follow this logic.
The RomeIIRegulation, which is not only the equivalent, for non-contractual ob- ligations, of the Rome convention on the law applicable to contractual obligations,103but
which also echoes article 5.3 of the Brussels I Regulation (it should be mentioned that the quasi-contract is not expressly referred to in this article), is also relevant to the issue.
In the RomeIIRegulation, a distinction is suggested between, on the one hand, torts / delicts (Chapter II) which, beside certain particular cases of liability (product liability (Article 5), unfair competition and acts restricting free competition (Article 6), envir- onmental damage (Article 7) and infringement of intellectual property rights (Article 8) and industrial action (article 9)) correspond to cases of tortious liability and, on the other hand Unjust enrichment, negotiorum gestio and “culpa in contrahendo” (ChapterIII). The RomeIIRegulation specifies in recital 7 that the material scope of application should be consistent with the provisions of the Brussels I Regulation, which distinguishes, in its articles 5.1 and 5.3, between “matters relating to contract” and “torts, delicts and quasi- delicts”.
Such distinctions do not touch upon the question of the place of quasi-contracts in this classification. Have they been omitted? Should they, if that is the case, be included within “matters relating to contract” in a wide sense? This option would appear to pre- vail.
Two judgments lean in this direction. First of all, in the Engler decision,104theECJ
held that a marketing prize draw did not constitute a contract within the meaning of article 13 of the Brussels Convention of 27 September 1968 (now covered by the Brussels I Regulation) but that it came under the definition of “matters relating to contract” as per article 5.1 of this Regulation, on the basis that there existed “a legal obligation which was freely assumed by one person as regards another and upon which the plaintiff’s claim is based”. Such an obligation was found to have arisen from the facts in the case (points 52- 56); theECJdeclares at point 56 that “(...) the intentional act of a professional vendor in circumstances such as those in the main proceedings must be regarded as an act capable of constituting an obligation which binds its author as in a matter relating to a contract.”
Hence, this intentional act of the professional vendor is not strictly speaking a con- tract, but would appear to be treated as forming part of “matters relating to a contract”, as suggested by the word “as”. Moreover, the terms employed by theECJare reminiscent of article 1371 of the French Civil Code, which provides: “Quasi-contracts are purely vo- luntary acts of man, from which there results some undertaking towards a third party, and sometimes a reciprocal undertaking of both parties”. Under French law, the Chambre mixte of the Cour de cassation took the view, in a decision dated 6 September 2002 cited above,105that “the organiser of a lottery who announces the winning of a prize to a named
person without making it clear that there is an element of chance involved, assumes an
102 ECJ, 25 April 2002, Maria Victoria Gonzalez Sanchez c/Medina Asturiana SA, case 183/00,
Rec. p. I-03901; ECJ, 25 April 2002, Commission c/République Française, case C-52/00, Rec. p. I-03817.
103 OJn° C 27 of 26 January 1998, p. 34-46.
104 ECJ, 20 January 2005, Petra Engler c/Janus Versand Gmbh, C-27/02, Rec. p. I-00481. 105 Bull. Civ. Mixte, n° 4, p. 9.
obligation, by this purely voluntary act, to deliver such prize”, and qualified such market- ing prize draws as quasi-contracts. The German Supreme Court hesitated, as mentioned above, regarding how to qualify such lotteries: after taking the view that the promise of a prize should be analysed either as an obligation resulting from a consumer contract106or
as a delictual obligation,107it finally opted for the contractual qualification in line with
that adopted by theECJ(see the observations in the part on Comparative law below). Perhaps is theECJ’s position not so different from the position adopted by the French Cour de Cassation.108Firstly, the Brussels I Regulation does not contain any reference to
the notion of quasi-contract, even though article 5.3 lists delict and quasi-delict as parts of the juridical fact. Moreover, theECJdoes not hold the obligation of the professional vendor to be a contractual obligation: it merely specifies that it constitutes an obligation, which binds its author “as” in a matter relating to a contract. It is possible that this judgment is a solution of convenience for the ECJ, who, within the framework of the Brussels I Regulation, took the view that the undertaking assumed by the professional vendor organising the marketing prize draws was closer to a contractual obligation than it was to the field of delict. Beyond the apparent divergences in classification, what is obvious here is the difficulty encountered when seeking to apply strict legal categories, as sources of obligations. In any event, the scope of the proposed extrapolation is nec- essarily limited to the specific context of conflicts of jurisdiction.
Apart from this case,109there are very few formal references, under Community law,
to what French law would call “fait juridique”.110If a distinction is made, this is more
likely to be between contract and delictual liability than between juridical act and juridical fact. Such a distinction is reminiscent of that which is in existence in Anglo- saxon laws, which, aside from the recent emergence of the “Restitutions” category, dis- tinguish between Contract and Tort.
2. A contested autonomy for the notion of contract
Generally, the distinction between juridical act and juridical fact is not particularly relevant in a corpus which has, as its primary objective, the setting out of rules applicable to contract law, not to the law of obligations. It is however not absent from the Principles of European Contract Law (PECL), in the context of the distinction which opposes contract and civil delictual liability.
106 See, regarding this point, theECJjudgment Rudolf Gabriel mentioned hereafter. 107 BGH,NJW2003, 426, 428;BGH,NJW2204, 3039.
108 See P.REMY-CORLAY, Rev. crit.2003.484 below theECJjudgment, 11 July 2002 Rudolf Gabriel,
in which it was held that the lottery was a contract within the meaning of article 13 because in this case the hope to win a prize was indissociably linked to an order for goods.
109 See the claims brought for damage to the environment, for infringement of personality rights,
for infringement of intellectual property rights or claims for (action en cessation) in consumer law.
110 General studies on this subject are rare. See for example Principles of European Tort Law,
More specifically, the way in which the question of the breaking off of negotiations is dealt with in recent European codifications also raises the issue of the autonomy of the notion of contract, and more generally, the question as to whether the classifications are relevant.
Firstly, the Rome II Regulation refers in article 12 to the “culpa in contrahendo”, defined in article 12.1 as “a non-contractual obligation arising out of dealings prior to the conclusion of a contract”. The applicable law is, in principle, “the law that applies to the contract or that would have been applicable to it had it been entered into” (article 12.1). Article 12.2 designates the law applicable in the event that the applicable law cannot be determined in accordance with paragraph 1.
Secondly, on a general level, in the preliminary observations ofPECL, the commen- tators note that certain provisions, and in particular those which appear in chapter 9 section 3, are, for certain countries, cases of quasi-contract.
This observation cannot, it would appear, apply to the French system. Indeed, the various instances of restitution provided in this section relate to the consequences of rescission, as a sanction for breach of contract.
Consequently, this sanction finds its source in the notion of contract itself – more precisely, in the effects which the law attributes to certain sanctions for breach – and not in the rather more vague notion of quasi-contract, understood in the English “Restitu- tions” sense.
Moreover, the commentators mention that “most of the topics dealt with in chapters 10 to 17 relate not only to contractual obligations, but also to obligations generally. Thus, the term ‘créance’ frequently employed in these chapters, refers to a right to obtain performance, which is the counterpart of an obligation to perform, whether the source of the obligation be contractual or extra-contractual’. They add that the fact that ‘fairly large sections of this part III relate to general obligations rather than to the law of contractual obligations only, caused, for the Commission, a problem of discrepancy with the title ‘principles of European contract law’. The view was finally taken that the title should be maintained whilst at the same time it should be recognized that certain prin- ciples also apply to non-contractual obligations and it would therefore be preferable to set them out in general terms”.111
More specifically, articles 2:301 and 2:302 included in a section 3 which is entitled “Liability for Negotiations”, touch upon a topic which in a number of Romanist laws falls within the category of extra-contractual liability. However, the basis for the “liability” referred to under articles 2.301 and 2.302 is not clarified.
Although the various commentators seem to take the view that such a provision is not incompatible with the solutions generally adopted in the Member States (and there- fore could fall within the scope of extra-contractual liability), such a position could be opposed on the basis that these principles form part of Principles of European “Contract” law. A fortiori, if a strict approach of the matter is adopted, it could be argued that if this provision appears in a set of rules which are only intended to govern the area of contract, any sanction attaching to the infringement of any rule belonging to this corpus neces- sarily falls within the contractual domain.
111 Principes du droit européen du contrat, Société de Législation comparée, coll. Droit privé comparé
Thirdly, in the European Code of Contracts drafted by the Academy of European Private Lawyers of Pavia (“the Pavia Project”), article 6 contains similar provisions on the question of the nature of the liability. However, the limitation on the sources of compensation is striking:
“1. Each of the parties is free to undertake negotiations with a view to concluding a contract without being held at all responsible if said contract is not drawn up, unless his behaviour is contrary to good faith.
2. To enter into or continue negotiations with no real intention of concluding a contract is contrary to good faith.
3. If in the course of negotiations the parties have already considered the essentials of the contract whose conclusion is predictable, either party who breaks off negotiations without justifiable grounds, having created reasonable confidence in the other, is acting contrary to good faith.
4. If the situations considered in the above paragraphs occur, the party who acted contrary to good faith shall be liable for the harm he has caused to the other party to the extent of the costs the latter had to incur while the contract was being negotiated. Loss of opportunities caused by the negotiations underway shall also be made good.”
The limit on the damages allowable would appear to result from the indirect appli- cation ofJHERING’s theory on culpa in contrahendo; indeed, the damage referred to is a maximum and the drafting does not allow for much doubt regarding damages for loss of expected gain. It would appear that the Pavia Project favoured predictability, as under- stood by the faulty party. Once again, the basis for the liability is not made clear.
Finally, this issue has been touched upon in other texts. For instance, theUNIDROIT
Principles of International Commercial Contracts (version 2004) sanction “Negotiations in bad faith” in article 2.1.15, which provides:
“A party is free to negotiate and is not liable for failure to reach an agreement. However, a party who negotiates or breaks off negotiations in bad faith is liable for the losses caused to the other party.
It is bad faith, in particular, for a party to enter into or continue negotiations when intending not to reach an agreement with the other party.”
Final Observations.PECLdeal with questions which relate to the law of obligations in general; this illustrates how difficult it is to approach the notion of contract in isola- tion. The study and comprehension of the notion form part of a “complexified (con- tractual) whole”. The last working document relating to the Common Frame of Refer- ence draws the conclusions from this state of affairs and considers not just the law of contracts, but the law of obligations as a whole.