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9 - The Romanistic tradition: application of boilerplate clauses under French law

from PART 3 - The applicable law's effects on boilerplate clauses

Published online by Cambridge University Press:  11 April 2011

Xavier Lagarde
Affiliation:
Université Paris Ouest Nanterre La Défense
David Méheut
Affiliation:
Clyde and Co, Paris
Jean-Michel Reversac
Affiliation:
Clyde and Co, Paris
Giuditta Cordero-Moss
Affiliation:
Universitetet i Oslo
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Summary

Preliminary observations

Even in international matters, there is no such thing as ‘lawless contracts’ under French law, although it is perfectly admissible in international arbitrations to provide that the arbitral tribunal shall rule in ‘amiable composition’, which does not require the tribunal to apply a law except for fundamental rules of due process and international public policy. However, by virtue of the principle of contractual freedom, a contract governed by French law may also refer to other norms and customs, e.g., the trade practices of the shipping industry. The general observations contained in this chapter must therefore be adapted to the specific business norms and customs that may apply to a given contract according to the field of activity involved.

These general observations should also be qualified to take into account the general approach of French judges towards contracts. The Civil Code does contain a few rules of construction in Articles 1156–1164. One should, however, point out certain qualifications regarding their exact scope and effect:

– First of all, the French Supreme Court decided that these rules of interpretation are not mandatory.

This lack of mandatory character applies to all rules of interpretation, including the rule provided by Article 1162 of the Civil Code, according to which: ‘when in doubt a contract is interpreted against he who stipulated and in favour of he who contracted the obligation.’ This is the equivalent of the English law principle of contra proferentem. […]

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Publisher: Cambridge University Press
Print publication year: 2011

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References

Webster's New World Law Dictionary, 2010, Wiley Publishing, Inc.

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