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6 Oxford J. Legal Stud. 275 (1986)
Contract and Agreement in English and French Law

handle is hein.journals/oxfjls6 and id is 281 raw text is: CONTRACT AND AGREEMENT IN ENGLISH
AND FRENCH LAW
ANNE DE MOOR*
In the preface to his book, The French Law of Contract,1 Professor Nicholas
describes his aim as primarily practical: making the French law relating to
voluntary obligations accessible to lawyers not familiar with the arrangement and
divisions of the French 'traitis'.2 As he repeats on several occasions, those
structures reflect the distinctive theoretical basis of the French law of Contract.
Separated from this basis, the actual French contractual rules and doctrines will,
consequently, not be accessible and, as the author has warned in previous
comparative work in the field of contract,3 barely be comprehensible to a common
lawyer.
Given the connection between the rules and the conceptual and theoretical
framework of the French law of Contract that Nicholas acknowledges, it is
necessary, if his book is to realize its practical goal, for it to clarify that
framework. Such clarification may have the further merit of contributing to an
understanding of the source of the differences between the law of Contract in
England and France. Since, as Nicholas also notes in his preface,4 the ideas and
developments of a political, social, or moral nature usually associated with this
branch of the law are generally thought to be largely shared on both sides of the
Channel, the source of the differences in the rules cannot lie there; and their
distinctive theoretical basis must be relatively insulated from these moral ideas.
Defining what a contract actually is in each legal system may allow us to
determine the legal theoretical framework of its rules of Contract. We are indebted
to Professor Nicholas for providing such a definition: 'While, in French law, a
contract is an agreement between the parties, in English law, it can be more
nearly be said to be a promise in return for good consideration.':5 Having made
the conceptual distinction, the author does not, however, pursue, in a uniform
manner,6 the relationship between the distinctive conceptual framework and the
*Fellow of Somerville College, Oxford.
London, Butterworths, 1982.
2 Nicholas, v. As Nicholas points out (i9), French treatises aim at presenting, if necessary in several
volumes, a coherent picture, if not of the entire droit civil, at least of a large and unified part of it,
such as the law relating to 'les obligations' which covers what the common lawyer calls tort, as
well as contract.
3 Nicholas (1974) 48 Tulane LR, 946, especially at 972.
4 Nicholas, vii.
5 Nicholas, 138.
6 Nicholas does, on occasion, explain the distinct character of the French law by reference to
agreement, see p 37ff, 63, 72.
275

t Oxford University Press 1986

Oxford journal of Legal Studies Vol. 6, No. z

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