The draft Common Frame of Reference (June 2005 version) (“draftCFR”) goes beyond the framework of the law of contracts, on the basis of an overriding principle of coher- ence, in order to deal more broadly with the law of obligations. In Book I (“General provisions”), at article I.–1.101 (“Intended field of application”), it is stated:
“(1) This Common Frame of Reference (CFR) is intended to be used primarily in relation to contractual and non-contractual rights and obligations [...]”.
The scope of application of the DraftCFRis much wider than that ofPECL, since it includes “non-contractual rights and obligations” as well as “related property mat- ters”.
However, whilst the scope of application has widened to include non-contractual sources,112it also includes what is named as “juridical acts”. This is evidenced by article
II.-1:104 (“Usages and practices”) which, it its paragraph 3, provides that the rules ap- plicable to contracts will also apply to “juridical acts” (“This Article applies to other juridical acts with any necessary adaptations”).
Another example is articleII-1:105, (“Good faith and fair dealing”) (1), according to which “A person has a duty to act in accordance with good faith and fair dealing in negotiating or concluding a contract or other juridical act [...]”, or article II.–1:106, (“Imputed knowledge”): “if any person who with a party’s assent was involved in making a contract or other juridical act ...”
The definition of the expression “juridical act” is provided by paragraph 2, of article
II.-101, which provides: “A juridical act is any statement or agreement or declaration of intention, whether express or implied from conduct, which has or is intended to have legal effect as such. It may be unilateral, bilateral or multilateral”. It is different from the definition given to a contract: “A contract is an agreement which gives rise to, or is intended to give rise to, a binding legal relationship or which has, or is intended to have, some other legal effect. It is a bilateral or multilateral juridical act”.
A number of points should be highlighted. From a positive point of view, it would appear relevant to include the notion of “juridical act”113in a more global thought process,
based in particular on the Pavia Project, which provides in article 4 entitled Rules relating to unilateral acts: “Unless otherwise provided for in this code or Community Law or mandatory rules in force in European Union Member States, the following rules relating to contracts must be observed, insofar as they are compatible, for unilateral acts carried out for the drawing up of a contract or during the subsequent relationship, even if intended to extinguish or invalidate said contract”.
By analogy, it can be deduced from the drafting of articleII.–1:101, that a contract is a type of “juridical act” which comes into existence in the form of a plurality of con- sents.
It would no doubt be relevant to mention, bearing in mind the English concept of consideration, thatPECLrecognize the validity of unilateral contracts. Yet this can only be inferred from a reading of article II.–1:103 (“Binding effect”) (which repeats, at paragraph (b), article 2:107 of PECL): “A valid unilateral promise or undertaking is binding on the person giving it if it is intended to be legally binding without accept- ance”.
112 Certain features relating to property rights should be borne in mind, although they do not fall
within the scope of the present study.
113 The name “juridical act” was left in English in the French original text, on the basis that,
although it is reminiscent of the French law “acte juridique”, at least etymologically, its history is too specific for it to be used without an in-depth analysis as to whether such a use would be appropriate, as is apparent from the comparative law section.
From this wording can be inferred that the binding effect does not necessarily arise out of an exchange of consents, but can result from a unilateral act, and, should the case arise, from a unilateral undertaking. However, it is not specified in any place thatPECL
apply to unilateral acts.
The notion of “juridical act” matches, in many respects, the notion of “acte juridique” (translated thoughout as “juridical act”). However, the categorization of the different sources of obligations does not appear clearly from the plan followed by the Draft
CFR.
Indeed, the scope of application of the project was initially “contractual and non- contractual rights and obligations”. It was possible to imagine a classification broadly organised around those two sources. However, chapter 4 (“Application of preceding rules of this book to non-contractual obligations”), within Book III(“Contractual and non- contractual rights and obligations”) follows BookII, which is entitled “Contracts and other juridical acts” which itself precedes Book IV, dedicated to “Specific contracts”. Should this be seen as the sign that certain contractual effects extend to non-contractual obligations? This would imply, however, a much more realistic approach to “contractual matter”.
Moreover, and perhaps this is more obvious, a Book V is dedicated to “Benevolent intervention in another’s affairs”, which precedes a BookVI, entitled “Non-contractual liability for damage” and a BookVII, which deals with” unjustified enrichment”.
From a French point of view, there appears to be a succession of mecanisms which all come under the category of “faits juridiques”. The proposed organisation, however, shows to some extent an absence of systematization. Indeed, it would appear that the mecan- isms of Benevolent intervention in another’s affairs and Unjustifed enrichment have, on the whole, been included for reasons of equity, in order to avoid the enrichment of one person to the detriment of another – even though this is not the former’s exclusive objective. It is regrettable that these two mecanisms were not dealt with one after the other.
The distinction between “acte juridique” and “fait juridique” is not formalised in the
PECLbut is not totally absent. The new category of “juridical acts”, to which the contract belongs, seems to match the category of” acte juridique”. However, difficulties are en- countered when it comes to the determination of the content of the “fait juridique”. Unlike for the “juridical act”, it is not considered as a whole.
Three types can be distinguished: Benevolent intervention in another’s affairs, Un- justified enrichment and non-contractual liability for damages. These three topics are dealt with one after the other, but do not appear to form part of a whole.
Therefore, following the example of comparative law, if it may seem premature at the moment to suggest grouping Benevolent intervention in another’s affair, unjustified en- richment and non-contractual liability for damages in one same category entitled “quasi- contract”, it remains possible that one day the sources of the European law of obligations will be classified in accordance with a tripartite distinction, namely “juridical acts”, “non- contractual liability” and “quasi-contracts”.114Such a classification would better reflect
114 The name would not in fact be shocking for common law countries, since it appears that the
notion of “quasi-contracts”, now named “Restitutions”, was used during theXVIIth andXVIIIth centuries. V. P.S.ATIYAH, The Rise and Fall of Freedom of Contract, Clarendon Press, Oxford, 1979, reedited 2003, p. 149.
the decline of intention as all-powerful source of obligations – intention which is the criterion for distinction between “acte juridique” and “fait juridique”.
A number of difficulties may however arise in relation to the area of quasi-contracts and to the notion of contractual liability. Should quasi-contracts be interpreted strictly, as only including Benevolent intervention in another’s affair and unjustified enrichment, that is to say those quasi-contracts which are specifically named, or should the oppor- tunity offered by Community law be seized in order to develop the notion of unnamed quasi-contract, with criteria which remain to be defined?
Moreover, could it be envisaged, as it is in the French Reform Proposals, that the contractual and extra-contractual liabilities be grouped at European level, within one same general category named “Civil liability”?
In any event, it is certain that a classification of obligations based around juridical act and juridical fact would only be relevant if it were the basis for a specific legal regime (prescription, evidence ...).