chapter
completely submerged under the new doctrine. Indeed, even the non-contractual debt claims were rationalised in terms of implied contract or equitable property rights (Sinclair v Brougham [1914] AC 398), and it is only today that the courts are beginning to rethink and reformulate at a theoretical level the categories of debt liability (Kleinwort Benson v Glasgow CC, p 71). Whether an English contract can be seen as a form of private legislation as in France (CC, Art 1134) is not easy to determine, since its basis is in promise rather than agreement (below, p 402). But freedom of contract was, until the consumer society of the postwar period, the dominant ideology of the courts. And, even today, contract, as an aspect of commercial law, is an instrument for businesses to establish their own rights and duties and it is for the courts to enforce these terms without regard to notions such as good faith (Photo Production, p 552; cf UNIDROIT, Art 1.1; PECL, Art 1:102). Only where consumers (interpreted widely?) are concerned will the courts take a more interventionist approach (Interfoto, p 409). 3 In all the continental codes, the part or book devoted to the law of obligations is dominated by the law of contract. In the French Code civil, non-contractual obligations take up only a few articles compared with the large number dealing with contract in general and with the various named contracts. Contracts are binding agreements—a legal chain (vinculum iuris) between two people (J 3.13pr)—which, in some systems, as we have seen, have the force of private legislation. Any failure, for whatever reason, to perform such an obligation is regarded as a non-performance (inexécution) with the result that liability for such non-performance starts out from the reason for non-performance (CC, Art 1147; PECL, Art 8:101). Was the non-performance the result of the contractor’s fault? Did the contractor undertake to guarantee a result or did he undertake only to use skill and care? This idea of liability being based on fault comes from Roman law (Dig 13.6.5.2, 7; below, p 389) and is still a central feature of the modern civil law (PECL, Art 8:108; Treitel, Remedies for Breach of Contract, 1988, OUP, Chapter 2). However, the actual position is more complex, since liability (la responsabilité contractuelle) in contract is linked to the formation and contents of the contractual obligation itself, and this may depend on the actual facts of the contract problem in issue (see, for example, Boy note to TGI Paris 5.5.1997, Dalloz Jur 558; cf Atias Dalloz 1998 Chron 137). The point to be stressed, then, is that contract and liability in contract must be distinguished to the extent that the former is concerned with rights (obligationes, iura, droits subjectifs) while the latter is primarily a matter of remedies (actiones). Thus, when viewed from the position of compensation based on either fault (obligation de moyens) or strict liability (obligation de résultat), there is little difference between contractual and non-contractual liability. This makes it possible for the
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