Pragmatism in French Law

Abstract The chapter examines the extent to which it is correct to describe French contract law as ‘principled’, as it has been traditionally characterized. Drawing inspiration from Contract Law Today: Anglo-French Comparisons (1989), edited by Harris and Tallon, the chapter explores both the principled nature and the pragmatism of French contract law. It focuses on the interpretation of erreur (mistake) under article 1110 of the French Civil Code from 1804 to its revision in 2016, an area described as ‘one of the most characteristic examples of the creation of law by case law’. In particular, it examines the interpretation of ‘substance’, substantial qualities, mistake as to value, and the connection between mistake and the concepts of consent, cause, fraud, and hidden defects. The chapter observes that judicial decision-making has competing functions—to resolve specific disputes and to declare the principles which can guide legal actors in future—and actual decisions seek to balance this tension. By contrast, legal scholarship is primarily concerned with a systematic and coherent presentation of the law, but it also must take account of developments in case law. The chapter’s examination of the judicial interpretation of erreur and its relationship to related provisions reveals that French cases do not demonstrate a consistent line of principle but typically reflect a pragmatic focus on achieving a fair result. In contrast, French scholarly writing on this topic demonstrates that even on the same topic, the balance between principle and pragmatism can be struck differently by different legal actors.