Construction, sources, and implications of consensualism in contract: lesson from France

Abstract

This thesis is concerned with the historical origins, implications, and evolution of the principle of consensualism in contract. It presents ideas on consensualism as not innate but arrived at by stages. These are ‘the steps by which the human mind attains several truths’, Locke argued in his Essay Concerning Human Understanding (1690: I, ii, 15, 16). It highlights the legacy of the consensual doctrine, explores the problems that its reception in the Civil Code of France have raised in the early modern and modern periods, and examines its features and implications in French law as it exists. It consists of Part 1. ‘Idea and role of consent in the development of a taxonomy of contract in ancient law’; Part 2. ‘Reception, relevance, evolution, and implications in the Civil Code of France: de lege lata’; and Part 3. ‘Rethinking the French perspectives on consensualism: de lege ferenda’.

Altogether, these chapters study thinkers and ideas of consensualism in diverse transnational geographical settings. They discuss the reception of the consensual doctrine in French law and examine its evolution. They explore the scope, underpinnings, and the variety of approaches to the consensual doctrine in Roman law (Chapter 1), the municipal medieval French laws (Chapter 2), the ius commune, and modern French law (Chapter 3) to understand the historical foundations and evolution of the principle that French contract law came to embody under Article 1101, but also Articles 1109 and 1172 in the newly reformed Civil Code of France.

These provisions govern one of the basic rules underpinning French contract law. They embody a taxonomy by which, in principle, every agreement arising from consent can be a contract absent any form unless otherwise provided for by legislation. However, this taxonomy of contract is inadequate. For first, it overlooks the role of form in the formation of contracts irrespective of whether they are consensual, solemn, or real. Second, it overemphasises the self-agency of consent in the determination of the binding force of contract (Chapter 7). Third, it supports the questionable opposition between consensualism and formalism, whereas these doctrines historically proceed from the same continuum and complement each other.

Consequently, this thesis studies the prospect of redefining the consensual doctrine to make it more transparent by acknowledging its history and putting it into its political, cultural, intellectual, and social context, thus examining the alternatives to the debatable opposition between form and consent, exploring the role of consent in contract (Chapter 4), and investigating how form and consent can be combined into a more effective, coherent whole (Chapter 6).

In so doing, this thesis answers four main research questions: (i)what the underpinnings of consensualism are; (ii)what its implications are; (iii)what relationship consensualism entertains with formalism and how they can be made to exist in harmony despite different ideologies; and (iv)how ideas of consensualism ‘within the flows of the human experience that generated them’ can be combined into a more effective or coherent whole to posit a single, more precise definition of consensualism so that it can be grasped with greater probity and revealed in the full extent of its properties (Chapter 5) in its incorrupt state as untrammelled by prejudice and preconception.