National Codification

1. National Codification • Codification • Background • Sources of code provisions • “modernized version of Roman law”? • Interpretation • Relevance of pre-Code sources • Analogy, customs, natural law • Code commentary

2. French Civil Code

3. French Civil Code PRELIMINARY TITLE OF THE PUBLICATION, OPERATION AND APPLICATION OF STATUTES IN GENERAL Art. 1 Statutes become in force throughout the French territory by virtue of their being promulgated by the President of the Republic [Constitution of 4 Oct. 1958, art. 10]. Art. 2 Legislation provides only for the future; it has no retrospective operation.

4. French Civil Code PRELIMINARY TITLE OF THE PUBLICATION, OPERATION AND APPLICATION OF STATUTES IN GENERAL Art. 3  Statutes relating to the status and capacity of persons govern French persons, even those residing in  foreign countries. Art. 4 A judge who refuses to give judgment on the pretext of legislation being silent, obscure or insufficient, may be prosecuted for being guilty of a denial of justice.

5. French Civil Code PRELIMINARY TITLE OF THE PUBLICATION, OPERATION AND APPLICATION OF STATUTES IN GENERAL Art. 5 Judges are forbidden to pronounce decisions by way of general and regulative disposition on causes which are submitted to them. .  Art. 6 Statutes relating to public policy and morals may not be derogated from by private agreements .  

6. Background Drafters French nationalism (Napoleon) Sources Relation to Roman law Relation to ius commune Role of legal actors Judges Commentators Law professors “Mon code est perdu” Napoleon, on hearing of the publication of first commentary on Code Napoleon French Civil Code

7. Structure of the French "Code Civil" • Preliminary Title: Publication, Effects and Application of the Laws in General (arts. 1-6) • Book One: Persons (arts. 7-515, including civil status, marriage, divorce, adoption, parental authority, guardianship) • Book Two: Property and Different Types of Ownership (arts. 516-710, including ownership, usufruct, servitudes) • Book Three: Different Modes of Acquiring Ownership (arts. 711-2283, including • intestate succession, gifts inter vivos and wills (arts.718-1100), • contracts in general (arts. 1101-1369), • quasi-contracts, delicts and quasi-delicts (arts. 1371-1386), • marriage contract, sales, exchanges, rental or hire, partnership, loan, deposit, agency, surety, pledge, mortgage, prescription and possession)

8. Gaius, Institutes personae (‘persons’) res (‘things’: property, inheritance, and ‘obligations’, i.e. contracts and delicts) actiones (‘actions’, i.e. civil procedure) French Code civil (1804) Persons (including family law) Things (property) Modes of acquiring property (inheritance, obligations) Structure of the French "Code Civil"

9. Sources - French Civil Code Roman influence • Organization • French Civil Code: Justinian Institutes • Non-Roman sources • Feudal customs • Canon law • Law merchant • Scholarly writings

10. National Codification “Whereas an English lawyer seeking to interpret a legal principle will look first to its pedigree, a continental lawyer will search for its policy.”

11. Sources – French Civil Code • Formation of contract • What sources? • What result – revoked offer? • Strict liability in tort • Use of Roman and pre-code law? • What result – object tossed from building? • Bona fide purchaser • What rules? • What result – purchaser of stolen art?

12. Formation of contracts A offers to sell B his watch for $5. B looks the watch over. A then says he’s changed his mind. B, however, accepts the $5 offer. • Is there a contract? • How did Roman law resolve the question? • What about Medieval law? • What did Code drafters say?

13. Formation of contracts • Roman law (only limited agreements enforced) • Canon law (“pacta sunt servanda”) • Law merchant • Natural law • Party freedom / consent • Grotius: offer and acceptance • Codes (revocability of offers) • French Civil Code: not resolve • German Civil Code: irrevocable for reasonable time

14. Strict liability for objects from building Pedestrian walks on the public sidewalk beside Owner’s house. A brick sails through a window of the house and hits Pedestrian. Pedestrian sues Owner. • Is Owner liable? See Williams (5th Cir 1961) • How did Roman law resolve the question? • What did Code drafters say?

15. Strict liability for objects from building Roman law (person in possession presumptively liable) • Justinian Digest, Institutes • Siete Partidas • Codes • Enlightenment: individualism, free will, moral responsibility • Code Napoleon (master liable on showing of guilt) • Compare to Blackstone

16. Strict liability for objects from building Digest of Justinian - Book 9, Title 3 ('Those Who Pour Anything Out or Throw Anything Down.‘) • The Praetor grants a cause of action: 'Where anything is thrown down or poured out from anywhere upon a place where persons are in the habit of passing or standing, I will grant an action against the party who lives there for twofold the amount of damage occasioned or done. • Ulpian says that this praetorian edict is 'of the greatest advantage, as it is for the public welfare that persons should come and go over the roads without fear or danger.' d.9.3(1).

17. Strict liability for objects from building French Civil Code: Art 1384 … a person who possesses … a building … in which a fire has originated is not liable towards third parties for damages caused by that fire unless it is proved that the fire must be attributed to his fault of to the fault of persons for whom he is responsible. Art. 1386 The owner of a building is liable for the damage caused by its collapse, where it happens as a result of lack of maintenance or of a defect in its construction .

18. Strict liability for objects from building Blackstone: 'A master is, lastly, chargeable if any of his family layeth or casteth anything out of his house into the street or common highway, to the damage of any individual, or the common nuisance of his majesty's liege people: for the master hath the superintendence and charge of all his household. And this also agrees with the civil law; which holds that the pater familias, in this and similar cases, 'ob alterius culbam tenetur, sive servi, sive liberi.'

19. Rights of bona fide purchaser Owner gives goods to Bailee, who sells the goods to Purchaser. Owner then seeks recovery from Purchaser. (Variation on story: Owner’s goods are stolen by Thief, who sells them to Purchaser.) • Who prevails – Owner or Purchaser? • How did Owner lose possession -- voluntary or involuntary? • Purchaser’s -- good faith, time of possession, open market? • Roman law, customary law, law merchant, codes?

20. Rights of bona fide purchaser Roman law (Owner prevails) • Even if Purchaser acted in good faith, paid value • Exception: Purchaser holds for one year in good faith (adverse possession) and Owner gave not by larceny • Germanic customary law (Owner prevails, if lost possession against will / otherwise Purchaser prevails) • Protects Purchaser’s expectations • Owner protected only when victim • Owner who voluntarily gives goods must sue Bailee

21. Rights of bona fide purchaser • Law merchant (Purchaser prevails, if acquired in open market) • Protects commercial expectations • Puts Owner on notice to check in market • Spanish Civil Code (Owner prevails, unless Purchaser bought goods in shop with good faith) • Roman rule with law merchant exception • French/German/Swiss Civil Codes (Owner prevails if goods stolen, otherwise Purchaser prevails if acted in good faith) • Stolen element - based on Germanic customary law • Good faith element – based on Roman law exception

22. AP (2000): British museums and art galleries could contain up to 600 pieces of art looted by the Nazis. Uncertain history: Nicolaes Verkoje's "Two Ladies and an Officer Seated at Tea“ Ambrosius Benson's "The Virgin and Child with St. Anne" Roman law – still kicking?

23. Roman law – still kicking? Nemo plus juris ad alienum transferre potest quam ipse haberet. No one can transfer to another a greater right than he himself might have. Dig. 50.17.54.

24. Roman law – still kicking? UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (Rome, 24 June 1995) Article 3 (1) The possessor of a cultural object which has been stolen shall return it. Article 4 (1) The possessor of a stolen cultural object required to return it shall be entitled, at the time of its restitution, to payment of fair and reasonable compensation provided that the possessor neither knew nor ought reasonably to have known that the object was stolen and can prove that it exercised due diligence when acquiring the object.

25. Roman law – still kicking? UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (Rome, 24 June 1995) Article 4 (4) In determining whether the possessor exercised due diligence, regard shall be had to all the circumstances of the acquisition, including the character of the parties, the price paid, whether the possessor consulted any reasonably accessible register of stolen cultural objects, and any other relevant information and documentation which it could reasonably have obtained, and whether the possessor consulted accessible agencies or took any other step that a reasonable person would have taken in the circumstances.

26. National Codification • Interpretation • Relevance of pre-Code sources • Analogy, customs, natural law • Code commentary • Legislative materials (“intent of legislator”)