8. A Series of Contrasts

This book has explored a number of distinctions and contrasts within the laws of France and England and how the law stemming from two European directives has interacted with them. It has involved consideration of the relationships between contractual liability and extra-contractual liability; administrative liability and private (or at least non-administrative) liability; criminal responsibility and civil liability; and liability for fault, liability for negligence and liability without fault or negligence. It has also sought to explain certain aspects of the relationship between legal institutions, legal procedures and substantive decision making; and between law, fact and the characterisation of facts. In so doing, it has sought to go beyond the formal aspects of the harmonisation of laws which European directives require and begin to look at their substantive effect. But there are many significant aspects of the relationship between the European harmonisation of laws in areas such as contract law or civil liability and their practical application in terms of legal (and non-legal) institutions and procedures which this study has not touched on. And its focus has been restricted to just two Member States at a time when the European Union has expanded considerably and looks as though it will expand again. There is very much more work to be done.

Notes:

(¹) Above, pp. 566–72.

(²) Above, pp. 438, 566–68.

(³) For a development of this theme in the context of English law, see S. Whittaker, ‘Privity of Contract and the Tort of Negligence: Future Directions’ (1996) 16 OJLS 191, 207–212 .

(⁴) Above, p. 488.

(⁵) Above, p. 598.

(⁶) Above, pp. 587–8, 604 and see Below, pp. 662–3.

(⁷) 1999 Directive, art. 4 and see Above, pp. 625–7.

(⁸) Above, p. 42.

(⁹) Above, pp. 45–6, 374, 393.

(¹⁰) Above, p. 29.

(¹¹) Above, pp. 45–6.

(¹²) Above, p. 51.

(¹³) Above, pp. 189–202.

(¹⁴) Carbonnier, Obligations, 414 , Above, p. 44.

(¹⁵) Above, p. 25.

(¹⁶) Above, pp. 52–9.

(¹⁷) Above, pp. 59–61.

(¹⁸) E.g. Above, p. 28.

(¹⁹) Above, p. 89.

(²⁰) Above, p. 140.

(²¹) Above, pp. 99–104, 142–3.

(²²) Above, p. 67.

(²³) Above, p. 101.

(²⁴) Above, p. 67.

(²⁵) Above, pp. 78–9, 456.

(²⁶) Above, pp. 373–4.

(²⁷) Above, pp. 389–93.

(²⁸) Pradel, Procédure pénale, 230 , Above, pp. 384–5.

(²⁹) Above, pp. 389–93.

(³⁰) Above, pp. 19, 30–3, 310–15.

(³¹) Cf. Above, pp. 310–11, 389.

(³²) Above, pp. 31–2.

(³³) Above, pp. 315–18.

(³⁴) Above, pp. 313–14.

(³⁵) Above, pp. 126, 145–6.

(³⁶) Ibid.

(³⁷) Above, p. 152.

(³⁸) This is because damage to property may still figure in a claim for damage in private nuisance and under the rule in Rylands v Fletcher: Above, p. 163.

(³⁹) Above, Chap. 9. Other types of ‘fault’ may be seen in relation to private nuisance, where the reason ableness of one person’s interference with the use or enjoyment of another’s land is determined by reference to a set of factors distinct from those employed in determining negligence. It could be thought that such an unreasonable interference is a ‘fault’ in a neighbour, but if so, it is a fault in a different sense from the ‘fault’ required of a defendant under the tort of negligence.

(⁴⁰) Above, pp. 186–202.

(⁴¹) Above, pp. 193–200.

(⁴²) Above, pp. 209–10.

(⁴³) Above, pp. 190–1.

(⁴⁴) Above, pp. 218–20.

(⁴⁵) Brown v Boorman (1842) 3 QB 511, 526 and see Above, p. 157.

(⁴⁶) This can be seen in the law governing the contractual provision of services, Above, pp. 271–4.

(⁴⁷) This analysis puts aside a further possible moral dimension to French law’s response to contractual non-performance, as the Civil Code itself distinguishes between deliberate or other ‘bad faith’ non-performance (l’inexécution dolosive) and other non-performance: art. 1150–1151 C. civ. In principle, in English law, a deliberate breach of contract is treated no differently from any other: Chitty on Contracts, para. 1–020 .

(⁴⁸) Above, pp. 157–8, 270–6.

(⁴⁹) Above, pp. 235–42.

(⁵⁰) E.g. occupiers’ liability, Above, p. 182 n. 38.

(⁵¹) Cf. Above, p. 197.

(⁵²) Above, pp. 162–3, 220.

(⁵³) Ibid.

(⁵⁴) Above, p. 412.

(⁵⁵) Above, p. 634 and cf. p. 188.

(⁵⁶) Above, pp. 340, 342.

(⁵⁷) Above, pp. 339–40.

(⁵⁸) Above, pp. 486–8.

(⁵⁹) Above, pp. 489–91.

(⁶⁰) Above, p. 67.

(⁶¹) Above, pp. 493–4.

(⁶²) This includes France, Belgium, Luxembourg, Italy, Greece and Spain.

(⁶³) Above, pp. 189–90.

(⁶⁴) Above, pp. 191–2.

(⁶⁵) Above, pp. 40–1, 44–5, 78.

(⁶⁶) J-.E.-M. Portalis, Discours préliminaire sur le projet de Code civil présenté le ler pliiviose an IX [1799] repuplished in Discours et Rapports sur le Code civil (Centre de philosophie politique et juridique, Caen, 1989), 7 .

(⁶⁷) Contracts (Rights for Third Parties) Act 1999.

(⁶⁸) Above, pp. 235–9, 245.

(⁶⁹) Constitution of 1958, esp. arts. 3, 24.

(⁷⁰) See, e.g., the likely interpretation of the changes of the criminal law of involuntary homicide in 2000, whose main aim was the protection of elected officials, even though this was not the way in which the legis lation was actually cast: Above, pp. 388–91.

(⁷¹) Above, pp. 79–80, 250–60.

(⁷²) Above, pp. 570–1.

(⁷³) Above, pp. 614–15, 618.

(⁷⁴) Above, pp. 613, 618.

(⁷⁵) Above, pp. 48–50, 211–14.

(⁷⁶) Above, p. 495.

(⁷⁷) Above, pp. 373–6.

(⁷⁸) Above, pp. 389–93.

(⁷⁹) Above, pp. 393–4.

(⁸⁰) Above, pp. 384–5.

(⁸¹) Above, Chap. 15.

(⁸²) Above, pp. 202–3, 219–20, 424.

(⁸³) Above, pp. 46–8.

(⁸⁴) Above, pp. 205–10.

(⁸⁵) Above, pp. 206–8.

(⁸⁶) Above, p. 44.

(⁸⁷) Above, pp. 189–90.

(⁸⁸) Above, pp. 408, 412.

(⁸⁹) Above, pp. 215–16.

(⁹⁰) Above, p. 216.

(⁹¹) This neat line is, of course, blurred to the extent to which the Product Liability Directive provides for recovery in respect of damage to property: Above, p. 503.

(⁹²) Above, pp. 436–44, 567–8.

(⁹³) Above, p. 493.

(⁹⁴) Ibid.

(⁹⁵) Above, pp. 504–5.

(⁹⁶) Above, pp. 319–30.

(⁹⁷) Above, pp. 115, 120–1, 151–2.

(⁹⁸) Above, pp. 118–131.

(⁹⁹) Above, p. 133.

(¹⁰⁰) Above, pp. 134–5.

(¹⁰¹) Above, p. 135.

(¹⁰²) Above, pp. 123–4, 136.

(¹⁰³) Above, pp. 166–9, Chap. 12.

(¹⁰⁴) Above, pp. 199, 335–44.

(¹⁰⁵) Above, pp. 344–56.

(¹⁰⁶) Above, Chap. 11 and see esp. pp. 276–9, 291–2.

(¹⁰⁷) Above, pp. 270–1, 291–2.

(¹⁰⁸) Above, pp. 515–18. I have also suggested that a ‘supplier’ within the meaning of art. 3(3) of the 1985 Directive may extend to all those in the chain of distribution who use a product: Above, pp. 523–7.) Case C-203/99 of 10 May 2001, [2001] ECR 1–3569.

(¹⁰⁹) Veedfald v Århus Amtskommune, at para. 21, Above, pp. 515–16.

(¹¹⁰) Cf. for a similar theme in relation to Dir. 93/13/EC on unfair terms in consumer contracts, see S. Whittaker, ‘Unfair Contract Terms, Public Services and the Construction of a European Conception of Contract’ (2000) 116 LQR 95 .

(¹¹¹) Above, pp. 380–2.

(¹¹²) Above, p. 384.

(¹¹³) Above, pp. 369, 386.

(¹¹⁴) Above, pp. 372–6.

(¹¹⁵) Above, pp. 378, 388.

(¹¹⁶) Above, pp. 388–94.

(¹¹⁷) Above, pp. 389–93.

(¹¹⁸) This is defined by reference to the criterion of the legality of their delegation: Above, pp. 379, 388.

(¹¹⁹) Above, pp. 378, 389.

(¹²⁰) Above, pp. 398–400.

(¹²¹) Cf. D. Oliver, Common Values and the Public–Private Divide (Butterworths, 1999) who argues not merely for the essential similarity of function of the law governing public and private powers, but that in English law these controls are based on a common set of values (though her discussion does not include the place of criminal law).

(¹²²) Above, pp. 219–20.

(¹²³) As to these features of English civil procedure, see Above, pp. 189–90, 211–12; as to private prosecu tion, Above, pp. 419–20.

(¹²⁴) Above, pp. 191–2, 211–12, 420–3.

(¹²⁵) Above, p. 426.

(¹²⁶) Above, pp. 223, 337, 469.

(¹²⁷) E.g. Occupiers Liability Act 1957; Occupiers Liability Act 1984, Above, pp. 182–3. The Employers’ Liability (Defective Equipment) Act 1969 forms something of an exception, Above, p. 182.

(¹²⁸) Above, pp. 162–3.

(¹²⁹) Cf. Above, pp. 202–5, 218–24. This possible conflict between the standards imposed by the law of civil liability and more generally is implicit in the English approach to the tort of breach of statutory duty. For, where a court holds that a statutory duty (typically sanctioned by the criminal law) does not give rise to civil liability this has the potential to contrast with the standard set by the general law of the tort of negli gence. So, a person may be liable criminally without negligence (depending on the content of the statutory offence), but liable in damages only on proof of negligence.

(¹³⁰) So, for example, if it is said that liability without negligence is justified in the case of manufacturers’ liability for products on the basis that they can more easily insure or otherwise spread the cost of the liability, this could equally be said of liability for motor accidents, which still rests in English law on proof of negligence.

(¹³¹) Above, pp. 485–92, 499–502.

(¹³²) Above, pp. 570–1, 587–8.

(¹³³) Above, pp. 250–7, 604–11.

(¹³⁴) Above, pp. 452–5.

(¹³⁵) Above, pp. 453–4.

(¹³⁶) Above, pp. 450, 455–7.

(¹³⁷) Above, pp. 457–8.

(¹³⁸) Above, pp. 460–1, 495, 538.

(¹³⁹) Terré, Simler, Lequette, Obligations, 938 .

(¹⁴⁰) Above, pp. 458–60. The defences were those found in art. 7(d) and (e) of the 1985 Directive.

(¹⁴¹) Above, pp. 440–4, 460.

(¹⁴²) Above, pp. 459–60.

(¹⁴³) Above, pp. 461–5.

(¹⁴⁴) Above, p. 464.

(¹⁴⁵) Above, pp. 464, 583.

(¹⁴⁶) Above, pp. 574–83.

(¹⁴⁷) Above, pp. 575–6 and cf. pp. 452–5.

(¹⁴⁸) Above, p. 568.

(¹⁴⁹) Above, pp. 576–82.

(¹⁵⁰) Above, p. 583.

(¹⁵¹) Whittaker (1985), 236 .

(¹⁵²) Above, pp. 436–7, 503–5, 508, 511–14.

(¹⁵³) 1985 Directive, art. 13, Above, pp. 437–8, 442–4.

(¹⁵⁴) Above, pp. 188–200, 235–9, 245.

(¹⁵⁵) Above, pp. 44–5, 78.

(¹⁵⁶) [2001] 3 All ER 289, Above, pp. 486–9.

(¹⁵⁷) Above, pp. 46–50, 205–18.

(¹⁵⁸) Above, Chap. 18.

(¹⁵⁹) Above, pp. 538–53, 556–63.

(¹⁶⁰) Above, pp. 550–3, 561–3.

(¹⁶¹) Above, pp. 35–8, 173–8, 449.

(¹⁶²) Above, pp. 440–4.

(¹⁶³) Above, pp. 442–3.

(¹⁶⁴) Ibid.

(¹⁶⁵) Above, pp. 151–3.

(¹⁶⁶) Above, pp. 61–2, 524–6.

(¹⁶⁷) Above, p. 568.

(¹⁶⁸) Above, pp. 567–8.

(¹⁶⁹) Above, pp. 604–18.

(¹⁷⁰) EC Commission, Report from the Commission on the Application of Directive 85/374 [etc.] Com/2000/0893 final (2001), para. 4, Above, p. 447.

(¹⁷¹) Above, p. 631.

(¹⁷²) Above, pp. 239, 242, 245–6.

(¹⁷³) Above, pp. 22, 27–8, 67–9, 73–4, 95–7.

(¹⁷⁴) Zimmermann, Liability for Non-Conformity .

(¹⁷⁵) Above, pp. 575–6, 583.

(¹⁷⁶) Above, pp. 441–2.

(¹⁷⁷) See particularly clearly W.-H. Roth, ‘Transposing “Pointillist” EC Guidelines into Systematic National Codes—Problems and Consequences’ (2002) 10 ERPL 761 .

(¹⁷⁸) This can be seen in the Communication from the Commission to the European Parliament and Council, A More Coherent European Contract Law: An Action Plan Com. (2003) 68 final ; EC Commission, Communication from the Commission to the European Parliament and the Council: European Contract Law and the revision of the acquis: the way forward (2004) Com (2004) 651 final.

(¹⁷⁹) EC Commission, Communication from the Commission to the European Parliament and the Council: European Contract Law and the revision of the acquis: the way forward, ibid., 3 . This communication specifically denies any intention on the part of the Commission to ‘propose a “European civil code” which would harmonise contract laws of Member States’, but does intend to ‘examine whether non-sector-specificmeasures such as an optional instrument may be required to solve problems in the area of European contract law’: ibid., 8 . The Annex I putting forward a possible structure of the Common Frame of Reference contains headings which suggest the construction of principles or rules, rather than merely terminological definitions.

(¹⁸⁰) E.g. Roth, op. cit. n. 177, (2002) 10 ERPL 761 .

(¹⁸¹) M. Reimann, ‘Product Liability in a Global Context: the Hollow Victory of the European Model’ (2003) 11 ERPL 128, 151, 154 .

(¹⁸²) Above, pp. 466–8.

(¹⁸³) Above, pp. 450, 454–5, 457–60.

(¹⁸⁴) Above, p. 446.

(¹⁸⁵) Above, pp. 447.

(¹⁸⁶) Above, pp. 79–86, 258–60, 570–1, 604–10.