Mitos Del Codigo Civil Francés

Myths of the French Civil Code
Author(s): James Gordley

Source: The American Journal of Comparative Law, Vol. 42, No. 3 (Summer, 1994), pp. 459-505
Published by: American Society of Comparative Law
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JAMES GORDLEY
Myths of the French Civil Code

The French Civil Code is often said to enshrine the principles of
the French Revolution. If we count secularism and nationalism
among those principles, we can easily see that they affected the law of
marriage, matrimonial property and inheritance. A secular law of
marriage replaced the canon law. A national law of matrimonial
property and inheritance replaced regional customary laws.
But most modern scholars have seen the influence of revolutionary principles elsewhere. In his excellent recent history of the drafting of the Code, Halperin termed the provisions governing family law
reactionary and those concerning matrimonial property and inheritance a compromise. The truly revolutionary developments were the
treatment of property, contract, and possibly tort law. He believes
that these fields were reorganized around modern individualistic
principles.' Many scholars agree.2 The principles usually identified
are the freedom of the owner to do as he likes with his property, the
freedom of the parties to contract, and the liability of an individual
for his own fault. These principles, Rene Savatier explained in an
influential book, are the "[t]hree pillars [that] support the entire construction of the Napoleonic Code."3
In the first part of this study, we will see that, in fact, these principles were not those of the drafters. They were the principles of
French 19th century treatise writers who read them into the Code.
The drafters subscribed to traditional conceptions of private law that
were almost old-fashioned when the Code was enacted.
JAMESGORDLEY iS Professor of Law, University of California at Berkeley.
I am grateful to Professors John Fleming, Ugo Mattei, and Augustine Thompson
and to my wife Barbara for their comments. I am also grateful for the opportunity to
present the ideas on which this paper is based in lectures at McGill University, Montreal, Canada, in September, 1993, and at the UniversitA di Milano, Italy, in March,
1989.
1. J.-L. Halperin, L'Impossible Code civil (1992), 56-57, 276-78.
2. A.-J. Arnaud, Les Origines doctrinales du Code civil fran,ais (1969); J.
Carbonnier, Droit civil (llth ed. 1977), I, 66; A. Colin, H. Capitant & L. Juillot de la
Morandiere, Traite de droit civil (1957), I, ? 210, p. 129; G. Cornu, Droit civil (4th ed.
1990), I ? 289, p. 107; Ghestin & Goubeaux, Traite de droit civil (2d ed. 1983), I ? 137,
p. 96; L. Josserand, Cours de droit civil positif fran,ais (1938), I ?? 38-39, pp. 32-33;
H. Mazeaud, L. Mazeaud & J. Mazeaud, Le,ons de droit civil (4th ed. 1967), I, ? 43, p.
63; A. Weill & F. Terre, Droit civil Introduction generale (4th ed. 1979), ? 90, p. 98.
3. R. Savatier, Les Metamorphoses economiques et sociales du droit prive
d'aujourd'hui (2d ed. 1959), ? 2, pp. 5-6.
45
460
THE AMERICAN JOURNAL OF COMPARATIVE LAW
[Vol. 42
In the second part, we will examine the principles of the Revolution that did influence the drafters. We will see that even these did
not lead to a significant reshaping of French private law.
I.
THE PRINCIPLES
OF THE 19TH CENTURY
There are two reasons, prima facie, to doubt that the drafters
refounded private law on new, individualistic principles. First, they
say themselves that they are not breaking with the past. Portalis,
the chairman of Bonaparte's drafting committee, explained that "instead of changing the laws, it was almost always more useful to offer
the citizens new reasons for loving them," since "history shows us
hardly two or three good laws promulgated in the space of several
centuries."4 The rules concerning property law were therefore "conformable to that which has been practiced in every time. We have
only changed or modified those which were not any longer in accord
with the present order of things or of which experience has shown the
inconvenience."5 "[I]n treating contracts," he said, "we have developed those principles of natural law applicable to all."6 As we will
see, Portalis did not think these principles were newly discovered.
They had been implicit in Roman law and been made explicit by 17th
century natural lawyers such as Domat. Portalis hardly mentioned
the law of tort. Yet property, contract and tort were the fields in
which, according to Savatier, Halperin, and many others, the innovations were revolutionary.
Second, even if these drafters, intelligent as they were, had
wished to rebuild private law on new principles, they did not have
time. Bonaparte, who thought he knew how to get a job done, gave
them a short deadline, and in fact, Portalis' draft of the French Civil
Code was produced in four months. Most of this time, one suspects,
was spent on the law of marriage and family property and inheritance which had to be rewritten and made uniform.
Although no one knows how they spent their time, it is striking
that about two-thirds of the texts of the Code have close parallels in
the works of Domat and and the 18th century jurist Pothier. Such
parallels can be found in nearly all the provisions governing contracts, property, and tort. It is equally striking that when Portalis
delivered his report on the activities of the drafters, fourteen pages of
the report in the Fenet edition were an introduction, three and a half
4. Portalis, "Discours preliminaire prononce lors de la presentation du projet de
la Commission du gouvernement," in P.A. Fenet, Recueil complet des travaux
preparatoires du Code civil (1827; reprinted 1968), I, 467 [hereinafter cited as Fenet].
5. Id. 509.
6. Portalis, supra n. 4, in Fenet, I, 509. For similar remarks as to the lack of
innovation in the provisions on contract law in a previous draft, see Discours pr6liminaire prononce par Cambaceres, au Conseil des cinq cents, lors de la presentation
du 38. Projet de Code civil, messidor, an IV, in Fenet I, 174.
1994]
MYTHS OF THE FRENCH CIVIL CODE
461
concerned the nature of law, two concerned the use of droit ecrit and
customs as sources for the code, twenty-four pages concerned family
law, two domicile and citizenship, five and a half successions and testaments, and his concluding remarks consumed three-quarters of a
page. Six pages dealt with topics of contract law that were rather
remote from general theory including usury and mortgages. Only
two and one-quarter pages were spent on the rest of contract law and
the law of property. Tort law was scarcely mentioned. That does not
sound like someone whose revolutionary achievement was to
reformulate the law of property, contract, and tort.
Before Bonaparte had taken power, Cambaceres had chaired
commissions that produced three drafts which were never enacted.
The results are similar when one counts pages in the reports that
Cambaceres made on these drafts. In the first draft, there was onehalf page on property and one-half page on contract in general out of
twelve pages; in the second draft, one-half page on property and one
page on contracts in general out of ten and a half pages; in the third,
five and a half pages on property and contracts in general out of
thirty-six and one-quarter pages. Again, tort law was virtually
ignored.
The evidence usually cited to show that the drafters were innovating is a small number of provisions of the Code in which these
principles are supposedly expressed. With a few exceptions we will
examine later, no evidence is cited to show that these principles are
reflected in the rest of the Code. Consequently, even if these few provisions did express new and individualistic principles, this evidence
would indicate a rather superficial use of them. It would suggest that
the drafters stated these principles abstractly and appended a mass
of rules, said to follow from the principles, but actually taken from
the law of the Old Regime.
Recently, however, Alfons Burge has pointed out that there is no
reason to think that these few provisions express any new and individualistic principles.7 Bruge believes that the drafters were inspired, not by liberal ideas that became popular in the 19th century,
but by the statism of the 18th. Actually, as we will see, to the extent
the drafters were guided by general principles at all, these principles
had yet a different origin. They were commonplaces among the jurists of the 17th and 18th centuries who had taken them from the
founders of the natural law school, Hugo Grotius (1535-1645) and Samuel Pufendorf (1632-94), who had taken them, in turn, from 16th
century jurists such as Domingo de Soto (1494-1560), Luis de Molina
(1535-1600) and Leonard Lessius (1554-1623). These 16th century
jurists belonged to a group historians refer to as the late scholastics
7. A. Burge, Das franzdsische Privatrecht im 19. Jahrhundert zwischen Tradition und Pandektenwissenschaft, Liberalismus und Etatismus (1991), 3-149.
462
[Vol. 42
or the Spanish natural law school. They had formulated these principles in an effort to reconcile Roman law with the philosophical ideas
of Aristotle and Thomas Aquinas.
By tracing the principles of the drafters to these sources, we can
see that Bruge was correct to think that there is nothing modern or
individualistic about them. Individualistic principles were first discovered in these provisions by the 19th century interpreters of the
Code. By comparing their interpretations with the earlier natural
law ideas that influenced the drafters, we can see more clearly the
changes these 19th century jurists brought about.
A. Property
Article 544 is usually cited to show that the Code enshrines an
individualistic principle of property law.8 It states:
"Property is the right to enjoy and to dispose of things in the
most absolute manner provided that one does not make a
use of them that is prohibited by laws (lois) or regulations
(reglements)."
This provision paraphrases a passage in Pothier who speaks of "the
right to dispose of a thing at his pleasure, provided he does not violate the laws or the right of another: ius de re libere disponendi or ius
utendi et abutendi."9 In both cases, the meaning seems to be that one
can use one's property as one chooses. Pothier, interesting enough,
was describing the rights of the holder of a French feudal estate who
was entitled to use and alienate the land freely though he had to pay
feudal rents and duties to his "lord." Presumably, Pothier did not
have any new and individualistic principle in mind. There is no reason to think that Portalis did.10
Indeed, no starkly individualistic principle is suggested by the
statement in Article 544, which also appears in Pothier, that an
owner cannot make use of his property in a way prohibited by law or
regulation. To make Article 544 read more individualistically, modern French writers tend to gloss it-and the individualism is rather
8. See, e.g., Arnaud, supra n. 2, at 180; Carbonnier, supra n. 2, at III, 94; Colin,
Capitant & Juillot de la Morandiere, supra n. 2, at I, ? 232, p. 142; Halperin, supra n.
1, at 278; C. Larroumet, Droit civil (1985), II, ? 167, p. 95; Mazeaud, Mazeaud &
Mazeaud, supra n. 2, at I, ? 43, p. 63; Savatier, supra n. 3, at ? 2, p. 6; Weill & Terre,
Introduction, supra n. 2, at ? 95, p. 102.
9. R. Pothier, "TraitOdu droit de domaine de propriete," ? 4, p. 103, in Oeuvres
de Pothier (Bugnet ed. 1861), IX. For similar passages, see id. ? 14, p. 106; R. Pothier,
Introduction generale aux coutumes ? 100, p. 35, in Oeuvres, supra, I.
10. See Burge, supra n. 7, at 2-8. Villey and Arnaud ask instead, whether there is
any evidence that earlier jurists who used language like that in Article 544 had in
mind a modern, individualistic conception of the proprietor's rights. They conclude
that there is no such evidence. M. Villey, La Formation de la pens&ejuridique
moderne 239 (1968); Arnaud, supra n. 2, at 180-83. But the question is whether the
drafters of the Code had such a conception in mind.
1994]
463
more pronounced in their gloss." For example, Weill and Terre explain that though the use of property may be restricted by law and
regulations, "according to the conception [that inspired the article]
these provisions must be exceptional."12 Carbonnier's gloss swallows
the text:
"The Civil Code, in conformity with its liberal and individualist ideology, wished to proclaim as a principle that the
owner is not, in the exercise of his right, subject to any restriction whatever its source, not to other individual owners,
nor even to the state."13
If that is what the drafters really believed, they picked an odd way to
say it.
Other scholars, such as Halperin and Lydie, have pointed to
some of Portalis' remarks about property. He spoke of the right of
property as "the universal soul of all legislation."'4 He said that
property was a basic right, one of the foundations of society. He also
said that the institution of property must serve the common goodbut, Lydie explains, that statement was not a qualification of the
rights of the owner but simply an indication of Portalis' moderation
and good sense.15 Nevertheless, these remarks show only that
Portalis thought that property was a fundamental right, not that he
held an individualistic theory of property.
Indeed, as Halperin himself observes, Portalis and the Code treat
the right of property in much the same way as 17th century members
of the natural law school such as Grotius and Pufendorf. According
to him, however, these natural lawyers held a theory of property that
was modern and individualistic.16
Grotius and Pufendorf, however, had taken the central elements
of their theory from the 16th century late scholastics. They, in turn,
had merely been elaborating a theory formulated, in outline, by
Thomas Aquinas in the 13th century. According to this theory, the
right to property was a far more qualified or limited right than it was,
for example, for John Locke in the 17th century or for most French
jurists in the 19th.
In formulating this theory, Thomas put together elements he
found in canon and Roman law and in Aristotle. One ingredient was
a text collected in Gratian's Decretum, in which Saint Ambrose admonished rich people who failed to provide for the needs of the poor:
11. See Burge, supra n. 7, at 3-4.
12. Weill & Terre, Introduction, supra n. 2, at ? 95, p. 102.
13. Carbonnier, supra n. 2, at III, 94.
14. Halperin, supra n. 1, at 277, quoting Pr6sentation au Corps legislatif, et expose des motifs, par M. Portalis, seance du 28 ventose, an XII (19 mars 1804), in Fenet
XI, 133.
15. A. Lydie, Portalis et son temps "LeBon ggnie de Napoleon" 275 (1936).
16. Halperin, supra n. 1, at 56-58. Similarly, Arnaud, supra n. 2, at 10-11, 183.
464
[Vol. 42
'Let no one call his own what is common."17 The Ordinary Gloss to
this text, ascribed to the canon lawyer Johannes Teutonicus, suggested that this maxim applied literally in a state of necessity.18 It
cited a Roman legal text that said all the passengers on a ship had a
right to share the provisions if food ran short during a voyage.'9
Another ingredient was Aristotle's attack, in the Politics, on the
theory of his teacher Plato that all property should be held in common. If it were, Aristotle argued, there will be perpetual quarrels,
and those who labor much and get little will complain of those who
labor little and get much.20
Putting these ideas together, Thomas Aquinas argued that by
natural law, all things were to be used to meet the needs of everyone.
Private property, however, is not contrary to natural law. It is a
human institution modifying natural law to eliminate the disadvantages that would arise if all things were held in common: for example,
people would quarrel, and some would not work.2' The primary end
of property is, nevertheless, to meet human needs. Therefore, a person in urgent need who has no other recourse may lawfully take another's property.22
Late scholastics such as Soto, Molina, and Lessius founded their
theories explicitly on that of Thomas, and natural lawyers such as
Grotius and Pufendorf borrowed from them. While these authors developed these ideas in different ways, they all said that by nature or
originally, all things belong to everyone. They all described private
ownership as instituted to overcome the disadvantages of common
ownership, usually the ones mentioned by Aristotle and Thomas.23
They all said the rights of a private owner are therefore qualified, and
must yield in certain cases to the needs of another. The standard
example is necessity,24 but Grotius also suggested there is a right of
innnocent use: one person can use another's property if he can do so
without causing any loss or inconvenience.25 In addition, some of
these authors such as Molina, Grotius and Pufendorf used the theory
17. Gratian, Decretum D. 47 c. 8.
18. Gloss to Gratian, Decretum D. 47 c. 8 to commune. Similarly, Gloss to ibid. D.
1 c. 7, to communis omnium; Gloss to Decretales (Liber Extra) 5.18.3 to poenitaet.
19. Dig. 14.2.2.2.
20. Politics II.v.
21. Thomas Aquinas, Summa theologica (Biblioteca de autores cristianos, 3d ed.
1963)(Leonine text), II-II, q. 66, a. 2.
22. Id. II-II, q. 66, a. 7.
23. D. Soto, De iustitia et iure libri decem (1553), lib. 4, q. 3, a. 1; L. Molina, De
iustitia et iure tractatus (1614), disp. 20; L. Lessius, De iustitia et iure, ceterisque virtutibus cardinalis libri quatuor (1628), lib. 2, cap. 5, dubs. 1-2; H. Grotius, De iure
belli ac pacis libri tres (de Kanter-van Hetting Tromp ed., 1939) II.ii.2; S. Pufendorf,
De iure naturae et gentium libri octo (1688), II.vi.5; IV.iv.4-7.
24. Soto, supra n. 23, at lib. 5, q. 3, a. 4; Molina, supra n. 23, at disp. 20; Lessius,
supra n. 23, at lib. 2, cap. 12, dub. 12; Grotius, supra n. 23, at II.ii.6-7; Pufendorf,
supra n. 23, at II.vi.5.
25. Grotius, supra n. 23, at II.ii.11.
1994]
465
to explain, why, in Roman law, unowned property such as fish and

wild animals could be acquired by occupatio, that is, why the first
person to take possession becomes the owner.26 Since no private
rights in such things yet exist, they are still held in common, and so
can be acquired by anyone.
The drafters of the French Civil Code did not tell us much about
their own theories of property. One senses that they wished to leave
theoretical issues aside as much as possible. Nevertheless, so far as
one can tell, they subscribed to the old natural law ideas.
Cambaceres explained when presenting his first and third drafts that
it was not his task to decide theoretical controversies about the origin
of property.27 That disclaimer did not prevent him, however, from
explaining the acquisition of property by possession or occupation in
the traditional natural law manner. Before the establishment of private property as we know it, in the first ages of the world, there was a
"universal community" of goods. While "that which was necessary to
all cannot belong to one," nevertheless, since a person cannot benefit
from the use of some objects without appropriating them, by convention these objects belonged to the first to take possession.28
Portalis addressed the theory of property in a few remarks
designed to show that property was not fully common even in an original state in which anyone could acquire anything by occupation or
taking possession of it. Even then, after taking possession, a person
became the proprietor. He did so by natural law, since he needed
things for his subsistence, and necessity constitutes a true right.29
His remarks, like those of Cambaceres, presuppose the natural lawyer's account of the origins of property, and yet his purpose is not to
argue the merits of this account.
If these remarks are too brief and tepid to suggest a full commitment to the old natural law theory of property, they certainly do not
show the drafters embracing a new individualistic theory. Consequently, there is no reason to believe such a theory is implicit in Article 544. Indeed, the clearest anticipations of the individualistic
principles of the 19th century are found in a criticism of what became
Article 544 by the Tribunal d'appel of Lyon. This court was
26. Molina, supra n. 23, at disp. 20; Grotius, supra n. 23, at II.ii.3-5; Pufendorf,
supra n. 23, at IV.vi.2.
27. Rapport fait A la convention nationale par Cambacdr6s sur le 1,r projet de
Code civil, s6ance du 9 aou't 1793, in Fenet I, 7; Cambarc6r6s, supra n. 6, in Fenet I,
161.
28. Cambarc6res, supra n. 6, in Fenet I, 164.
29. Portalis, supra n. 14, in Fenet XI, 112-14. Similar remarks were made by
Tribune Grenier in his defence of Portalis' draft. He explained that property arose
when the necessity of a partition of goods among people became clear, but this was
less a new convention than the execution of a preexisting right. Discussion devant le
Corps l6gislatif. Discours prononc6 par le tribun Grenier, 6 pluviose, an XII (27 jan.
1804), in Fenet XI, 157.
466
[Vol. 42
"alarmed" that the article made the owners' rights subject to an unspecified degree of regulation. "[L]aisser faire and laisser passer are
the best regulations that one could make in the area of agriculture
and commerce." The drafters should have imitated a law of 1791,
that had protected proprietors by providing that they were free to
plant their crops and dispose of them as they chose. "It is difficult to
find all these rights clearly enough expressed in the words "to enjoy
and dispose of one's thing" especially when one reads the following
words, "provided that one does not make a usage prohibited by laws
and regulations."30
The court would have been more alarmed had it heard the tribune Gillet defending the article before the Corps Legislatif: "There is
no property so absolute that it is not subordinated in some way to the
interests of the property of another."31
A new individualistic theory of property is missing, not only in
the drafting history of the Code, but also in the early commentaries.
Such a theory starts to appear in the commentaries written about
mid-century, and then, one has no trouble spotting it.
Toullier, who wrote the first commentary on the Code, gave a
traditional natural law account of how at first no one owned the
earth, and its fruits belonged to the first person to take possession.
Property rights were established as the population increased since
otherwise no one would labor. His citations are to lawyers in the natural law tradition or influenced by it: Pufendorf, Pothier, Wolf,
Heinccius, Bynkershoeck and Blackstone.32 Duranton gave a similar
account in his early commentary although he cited fewer natural lawyers and he ascribed the transition from common to private property
to long continued possession which created a "moral relationship" between possessor and thing possessed.33
In defining property, Toullier and Duranton both quoted Article
544 without, however, adding any individualistic gloss to the word
"absolute."34 They then described the owner's rights in traditional
Roman law categories: the owner had the right to use a thing, a right
to dispose of it, and so forth. Indeed, Toullier is still so far from an
individualistic theory that he is timid about the traditional jus
abutendi, the right to abuse a thing. Pothier had illustrated it by
giving extreme examples in which a proprietor refused to cultivate
30. Observations pr6sent6es par les commissaires nomm6s par le tribunal d'appel
de Lyon, Fenet IV, 95-96. See Bruge, supra n. 7, at 7-8.
31. Discussion devant le Corps l6gislatif, discours prononc6 par le tribun Gillet,
10 pluviose an XII (31 jan. 1804), in Fenet XI, 331.
32. C.B.M. Toullier, Le Droit civil fran,ais suivant l'ordre du Code (4th ed. 182437), III, 41-46.
33. M. Duranton, Cours de droit fran,ais suivant le Code civil (3d ed. 1834), IV,
202-03.
34. Toullier, supra n. 32, at III, 54; Duranton, supra n. 33, at III, 210-11.
1994]
467
his land or threw a book into the fire,35 drawing the line, like other
natural lawyers, when there was a state of necessity: a merchant
could not let his grain perish in a famine.36 Toullier explained that
though the jus abutendi includes the right to consume a thing, "the
abuse of things that belongs to us may be without punishment, but it
is never permitted. Law and police regulations check this abuse in
several cases."37 Duranton observes that the "general interest ... is
even stronger than the right of property itself, and that is why the
owner cannot lawfully destroy his thing if this destruction could result in a prejudice to another."38
In contrast, later commentators such as Aubry and Rau, Laurent, and Demolombe no longer describe the origin of property at the
beginning of human society. They are not squeamish about the jus
abutendi,39 except for Demolombe who nevertheless conceded it is
"the inevitable consequence of one's absolute right to property."40
Rather than explaining how the disadvantages of common property
gave rise to private rights, they simply define property in terms of the
will of the proprietor. Thus according to Aubry and Rau, the definition in Article 544 is inadequate because it simply enumerates certain rights, such as that to enjoy a thing or dispose of it. Correctly
defined, "property ... expresses the Idea [sic] of the most complete
legal power of a person over an object and can be defined as the right
by virtue of which a thing is submitted in an absolute and exclusive
manner to the will and the conduct of a person."'4' Laurent explained
that a proprietor could use his thing however he wishes until prohibited by law or until he injured the rights of others.42 According to
Demolombe, "an absolute right, property confers upon the master a
sovereign power, a complete despotism over the thing."43
Having defined property as a seemingly limitless right over an
object, these writers faced a new theoretical difficulty. They had to
explain how the limitless rights of two adjoining landowners could be
limited vis-a-vis each other. While the Code contained many limitations on an owner's rights, it did not have a general provision governing the extent to which one person can use his land in a way that
interferes with the use of another. The omission seems to have been
a pure oversight. Both Pothier and Domat, interpreting a Roman
35. Pothier, Traite du droit de domaine de propriete, supra n. 9, at ? 5, p. 103.
36. Id. ? 14, p. 107.
37. Toullier, supra n. 32, at III, 57.
38. Duranton, supra n. 33, at IV, 212.
39. C. Aubry & C. Rau, Cours de droit civil fran9ais (1869-71), II, ? 191, p. 175; F.
Laurent, Principes de droit civil frangais (1869-78), VI ? 101, p. 135.
40. C. Demolombe, Cours de Code Napoleon (1854-82), IX, ? 544, p. 487.
41. Aubry & Rau, supra n. 39, at II, ? 190, p. 170.
42. Laurent, supra n. 39, at VI, ? 101, p. 135.
43. Demolombe, supra n. 40, at IX, ? 543, p. 485.
468
[Vol. 42
text,44 had explained that there were limits to the smoke that an
owner could make and allow to go on a neighbor's land. The limits
depended, according to Pothier, on the quantity of smoke, and according to Domat, on the character of the neighborhood.45 Even without a
text, French courts recognized similar limitations early in the 19th
century.
Though the later 19th century commentators approved of such
limitations, their conception of property entangled them in theoretical problems that had not troubled Pothier or Domat. If the right to
property were absolute in the sense of unlimited, then any limitation
on what an owner could do with his property abridged his rights.
Thus according to Aubry and Rau, the "respective rights of [the] proprietors" of adjacent land were in a "conflict [that] cannot be resolved
except by means of certain limits imposed on the natural exercise of
the powers inherent in property."46 According to Demolombe, if all
proprietors could "invoke their absolute right, it is clear that none
would have one in reality." What would be the result? "It would be
war! It would be anarchy!" Similarly, Laurent thought that
"[a]ccording to the rigor of the law, each proprietor would be able to
object if one of his neighbors released on his property smoke or exhalations of any kind, because he has a right to the purity of air for his
person and his goods."47 If that were so, he admitted, the existence of
towns would be impossible.48 In a later volume of his work, Laurent
finally decided that "[t]he Code was wrong to say that the owner has
the right to enjoy and to dispose of his thing in the most absolute
manner... ."49 Nevertheless, he did not suggest any other way that
property could be defined.
Here we see here a feature of 19th century legal thought that we
will encounter again when we discuss contracts. A right is defined
abstractly in terms of the will rather than in terms of any purpose
that recognition of the right might serve. Thus defined, the right interferes with the purposes one would wish its recognition to serve.
No way to limit the right can be found in the definition. This problem
did not arise with Toullier, Duranton, the drafters of the Code, or the
older natural lawyers. It did arise in the mid-19th century because
then property was defined individualistically in terms of the subjection of a thing to the will of a proprietor.
44. Dig. 8.5.8.5-6.
45. R. Pothier, Traite du contrat de sociWtdApp. 2, Du voisinage ?? 235, 241, in
Oeuvres, supra n. 9, IV; J. Domat, Les Loix civiles dans leur ordre naturel (1713), liv.
1, tit. 12, sec. 4, 9-10.
46. Aubry & Rau, supra n. 39, at II, ? 194, p. 194.
47. Laurent, supra n. 39, at VI, ? 144, pp. 195-96.
48. Id.
49. Id. XX, ? 417 pp. 437-38.
1994]
B.
469
Contract
With contract as with property, the argument that the Code

adopted an individualistic theory is often pinned to a single text.
This time the text is Article 1134 which states:
"Agreements legally formed take the place of law for
those who have made them.
They can only be revoked by mutual consent or for reasons authorized by law.
They must be executed in good faith."
The statement that contracts take the place of law between the
parties paraphrased a passage from Domat that we will quote at
length later on. Domat had taken it from a collection of decretals
promulgated by the medieval pope Boniface VIII,50 who had taken it
in turn from the Corpus Juris Civilis, the 6th century compilation of
the Emperor Justinian.51 As Burge has observed, the passage says
agreements take the place of law; it does not say anything about autonomy.52 Yet according to many scholars, this text proclaimed the
autonomy of the Will53and the freedom of contract,54-indeed, it exalted contract to the same level as law.55 Some writers seem to believe that the drafters themselves discovered this principle, a
possibility we shall examine shortly. Halp6rin suggests that, as in
the case of property law, the drafters drew upon individualistic principles already espoused by members of the natural law school such as
Domat.
Just as the natural lawyers had a theory of property, so also they
had a theory of contract. Again, it was neither modern nor individualistic. It originated in much the same way as the theory of property.
The basic structure was developed by Thomas Aquinas on the basis of
some ideas he found in Aristotle. The theory was elaborated by the
late scholastics and then borrowed by the natural lawyers. While
this theory recognized that the parties enter into a binding contract
by expressing their will be be bound, it did not attach the same significance to the will as the 19th century theories of contract that grew
up after the Code was enacted.
50. Liber Sextus V.13.85.
51. Dig. 50.17.23.
52. Burge, supra n. 7, at 64-65.
53. See e.g., Cornu, supra n. 2, at I, ? 289, p. 107; Halperin, supra n. 1, at 279;
Larroumet, supra n. 8, at III, ? 116, p. 105; F. Marty & P. Reynaud, Droit civil Les
Obligations (2d ed. 1988), I, ? 33, p. 1; Mazeaud, Mazeaud & Mazeaud, supra n. 2, at
I, ? 43, p. 64; II, ? 116, pp. 92-93.
54. See e.g., Ghestin & Goubeaux, supra n. 2, at I, ? 137, p. 96; Marty & Reynaud,
supra n. 53, at I, ? 33, p. 1; A. Weill & F. Terre, Droit civil Les Obligations (4th ed.
1986), ? 10, p. 10;
55. See e.g., Carbonnier, supra n. 2, at I, 66; IV, 35; Mazeaud, Mazeaud &
Mazeaud, supra n. 2, at I, ? 43, p. 64; Savatier, supra n. 3, at ? 2, p. 6; Weill & Terre,
supra n. 54, at ? 18, p. 18; Weill & Terr6, supra n. 2, at ? 96, p. 103.
470
[Vol. 42
In the Ethics, Aristotle described exchange as a type of commutative justice. While distributive justice secured for each citizen a fair
share of whatever wealth and honor the society had to divide, commutative justice preserved the share he had received.56 Thus, according to Aristotle, each party to an exchange had to give something
of equivalent value to what he received.57 In another passage in the
Ethics, Aristotle discussed the virtue of "liberality":the liberal person
disposed of his money wisely, giving "to the right people the right
amounts and at the right time."58 Thomas Aquinas put these ideas
together: when one person transferred a thing to another, either it
was an act of commutative justice that required an equivalent or it
was an act of liberality.
The need for an equivalent, according to Thomas, explained the
Roman law remedy for what was known in the Middle Ages as laesio
enormis. A Roman text provided that if a seller of land received less
than half the just price, he could demand that the buyer either make
up the difference or rescind the contract.59 Medieval jurists had generalized the remedy to buyers as well as sellers, and to other types of
contracts.60 Thomas explained that, in principle, an equivalent was
always required, but that, for practical reasons, civil law remedied
only large deviations.61
As I have described in detail elsewhere,62 the late scholastics
built a theory of contract on this groundplan that was then borrowed
by the 17th century natural lawyers. According to the theory, a party,
by expressing his will to be bound, might enter into either of two basic types of arrangements, a gratuitous contract in which he enriched
the other party at his own expense, or an onerous contract in which
he exchanged his own performance for one of equivalent value. Grotius and Pufendorf present elaborate schemes of classification in
which they show how the contracts familiar in Roman law can be fitted into these two grand categories.63 Domat and Pothier explain
that these are the two causes or reasons for making a binding promise.64 In the natural law theory, this classification meant more than
the tautology that a party either does or does not receive back something in return for what he gives. In a gratuitous contract, the donor
must actually intend to benefit the other party, and if he does not, the
contract is not a gratuitous contract whatever the document to which
56. Nicomachean Ethics V.ii.
57. Id. V.iv-v.
58. Thomas Aquinas, supra n. 21, at II-II, q. 61, a. 3.
59. Cod. 4.44.2.
60. J. Gordley, The Philosophical Origins of Modern Contract Doctrine 65 (1991).
61. Thomas Aquinas, supra n. 21, at II-II, q. 77, a. 1, ad. 1.
62. Gordley, supra n. 60, at 69-133.
63. Grotius, supra n. 23, at II, xii, 1-7; Pufendorf, supra n. 23, at V.ii.8-10.
64. Domat, Les Loix civiles, supra n. 45, at liv. 1, tit. 1, ? 1, nos. 5-6; ? 5, no. 13; R.
Pothier, Traite'des obligations ? 42, in Oeuvres, supra n. 9, II.
1994]
471
the parties subscribed may say.65 In an onerous contract, a party

must receive, not simply a counterperformance, but one of equivalent
value.
In this theory, the requirement of a just price was not thought to
interfere with the desires of the parties. A party chose the type of
contract that answered to his purpose: either to enrich another, or
merely to exchange. Each type of contract had rules that would answer to his purpose. In a contract of exchange, each party must receive an equivalent because each merely wished to exchange and not
to enrich the other party at his own expense.
The late scholastics and the natural lawyers approached the particular contracts a party might make-for example, a gratuitous
loan, a sale, a lease, or a partnership-in the same way. They
thought that once one knew the type of arrangement the parties
wished to enter in to, one could infer the rules that were appropriate
to govern it. These rules would not only be appropriate to the parties'
needs but fair as well. They would ensure, in the case of an onerous
contract, that each party received an equivalent, and in the case of a
gratituous contract, that the donor's liberal intentions were fulfilled.
Grotius and Pufendorf developed elaborate classifications in
which they defined each particular contract, first as either onerous or
gratituous, and then in terms of the specific needs to which it answered.66 Domat explained:
"Agreements are engagements formed by the mutual consent of two or more persons who themselves make a law between themselves to do that which they promise each other.
The use of agreements is a natural consequence of the order
of civil society and the bonds that God forms between men.
For He has made necessary for all their needs the reciprocal
use of their industry and labor, and various sorts of commerce in things and it is principally by agreements that men
satisfy these needs. Thus for the use of industry and labor,
men form partnerships, hire each other, and act in various
ways for each other. Thus, for the use of things, when they
need to acquire or alienate them, they enter into commerce
through sales and barter, and when they only need to have
them for a time, they rent or borrow them. And so, according
to other and different needs, there are different types of
agreements."67
65. Thus according to Grotius: "Nor is it enough for anyone to say that what the
other party has promised more than equality is to be regarded as a gift. For such is
not the intention of the contracting parties, and is not to be presumed so, except it
appear." Grotius, supra n. 23, at II.xii.11.1.
66. Grotius, supra n. 23, at II.xii.1-7; Pufendorf, supra n. 23, at V.ii.8-10.
67. Domat, Les Loix civiles, supra n. 45, at liv. prelim., introduction.
472
[Vol. 42
According to Domat, once one enters into an agreement of a given

type, one is bound "not only by what is expressed but also to everything that is required by the nature of the agreement and to all the
consequences that equity, statute and usage give to the obligation
one has undertaken."68 According to differences in their needs, the
parties could modify these provisions as they saw fit.69 But they
could not do so in a way that would violate law, good morals, or the
"equity" that ought to prevail in an onerous contract. For example,
absent agreement by the parties, the seller must guarantee his goods
against defects since otherwise the buyer would have paid the fair
price for nondefective goods and received defective ones instead. If
they wished, Domat explained, the parties could agree that the seller
will not be liable for defects, but they could do so only if the seller
reduces the price to preserve equality.70
It is not clear how much of this theory the drafters accepted or
understood. Nevertheless, their remarks and the Code itself are
more consistent with these earlier ideas than with the individualistic
theories that emerged later in the 19th century. Articles 1108 and
1131 require that the contract have a lawful cause. Article 1104 explains that when a contract is "commutative" (commutatif) "each of
the parties commits himself to give or do a thing that is regarded as
the equivalent of that which is given or done for him." Article 1135
provides: "Agreements are obligatory not only as to that which is expressed in them but also as to all the consequences that equity, usage
or statute give the obligation according to its nature." Apparently we
are still in a world in which contracts have a "nature," in which certain consequences follow according to "equity" from that "nature,"
and in which the nature of some contracts requires, in principle, an
exchange of equivalents.
That is not to say that the drafters believed in the old natural
law theory of contract in the same way as Grotius or Domat. They
were not theorists, and, in drafting a code, theory was not their primary concern. Moreover, by the end of the 18th century the natural
law theory was growing old, and the drafters may have drawn on it
less from conviction than familiarity. Nevertheless, the texts do not
suggest that they had some new individualistic theory in mind.
Moreover, on the rare occasions when they speak about the basic
principles of contract law, their statements are consistent with the
old theory and do not suggest they are formulating a new one. For
example, according to Portalis:
"The freedom to contract cannot be limited except by
justice, good mores and public utility.
68.
Id. I.i.iii.l.
69. Id. I.i.4; J. Domat, Traits des loix vi.9, in Domat, Les Loix civiles, supra n. 45.
70. Domat, Les Loix civiles, supra n. 45, at liv. 1, tit. 1, ? 2.
1994]
473
But it is precisely when the question of fixing these limits arises that all the difficulties are presented.
There are situations as to which justice is clearly manifested. A partner, for example wishes to divide all of the
profits of a partnership without taking part in the risks. The
claim is revolting. One need not look outside such an agreement for an iniquity that is perpetrated by the letter of the
agreement itself. But there are matters where the question
of justice is complicated with other questions, often foreign
to law....
In these matters, the question of law or morality
is subordinated to the question of planning or administration."17'
For Portalis, then, the elements of substantive justice in the earlier

theory had not given way to a new idea that contract is simply the
will of the parties.
Again, according to Cambarceres, an agreement must have a
cause to be enforceable since otherwise it is an act d'risoire.72 He, at
any rate, did not think the doctrine of cause was a tautologous requirement that a party either receive or not receive something in return. Cambarceres explained that "[e]very contract is essentially an
exchange; it presupposes therefore the return of an equivalent ...."73
According to Portalis, "[U]ndoubtedly . .. good faith, reciprocity, and
equality are required in contracts. .. ."74 Jaubert asked rhetorically,
"Do not agreements have their true foundation in natural equity?
Should not the civil law be to the extent possible the minister of consciences? From that [come] these beautiful rules on the nature and
the effect of agreements."75 Bigot-Preameneu said that the provisions of the Code governing the effects of a contract were based on
features "which are inherent in the agreement, which diversify its
nature and effects...."76 When a critic of the draft, Lacuee, objected
that the Code might "extend engagements well beyond the limits the
contract debtor consented to give them" by "imposing on this debtor
obligations he could not have foreseen," Tronchet answered: "The
contract of sale, for example, admits obligations that are the natural
result of the contract because they are drawn from its essence, and
71. Portalis, supra n. 4, in Fenet, I, 510.

72. Cambarc6r6s, supra n. 6, in Fenet I, 170.
73. Rapport fait A la convention nationale sur le 2e. projet de Code civil, par
Cambac6res, s6ance du 23 fructidor, an II (9 sept. 1794), in Fenet I, 107.
74. Portalis, supra n. 4, in Fenet I, 513.
75. Jaubert, Discours prononc6 devant le Corps l6gislatif, 30 ventose, an XII, in
Fenet I, cxi-cxii.
76. Pr6sentation au Corps-Legislatif, et expos6 des motifs, par M. BigotPr6ameneu, in Fenet XIII, 239.
474
[Vol. 42
that have their effect, although they are not expressed at all. Such is,
among others, the guarantee."77
These remarks, it must be emphasized again, are scraps of
thought thrown out as the occasion demanded, and while they indicate a familiarity with the older natural law theory of contract, they
do not necessarily show a serious commitment to it or even more than
a superficial understanding of it. Nevertheless, they certainly do not
indicate that the old theory had been abandoned for a new one.
Indeed, almost the only thing that the drafters did or said that
seems, at first glance, to be a break with the older theory was that
they limited relief for lesion, the French laesio enormis. Article 1674
gave a remedy only to sellers of land, as in the original Roman text.
Nevertheless, article 1674 merely preserved a limitation on the remedy that had already been established by French customary law
before the Revolution.78 Moreover, the reason the drafters gave for
limiting the remedy was not scepticism about the principle of equality in exchange but pragmatism in its application. According to
Portalis, relief would be confined to sales of land because its price was
more stable.79 According to Bonaparte, who took an active part in
the discussion, such property was more important.80 The buyer was
denied a remedy, according to Portalis, Tronchet and Faure, because
he was less likely to accept the wrong price through necessity,81 according to Segur, because he was less likely to have done so by mistake,82 and according to Bonaparte, because he was more likely to try
to avoid the transaction because his plans had changed.83
Berlier did claim that "[t]hings do not in general have a just
price. They are worth less to one, more to another," borrowing his
77. Discussion du Conseil d'6tat, Proces-verbal de la s6ance du 11 brumaire, an
XII (3 nov. 1803), in Fenet XIII, 54-55.
78. C.-L. de Ferriere, Dictionnaire de droit et de pratique (nouv. ed. 1769), II, v.
"lIzion d'outre moit6 de juste prix," 135, 137; H. Lacombe de Prezel, Dictionnaire
portatif de jurisprudence et de pratique (1763), II, v. "lezion,"430.
79. Portalis, Discussion du Conseil d'6tat, Proces-verbal de la s6ance du 21 nivose
an XII (12 jan. 1804), in Fenet XIV, 49; Portalis, Presentation au Corps Legislatif, et
expose des motifs, par M. Portalis, 7 ventose an XII (27 fev. 1804), in Fenet XIV, 14041.
80. Bonaparte, Discussion du Conseil d'etat, Proces-verbal de la seance du 21 nivose an XII (12 jan. 1804), in Fenet XIV, 57-58.
81. Portalis, Presentation, supra n. 78, in Fenet XIV, 145; Tronchet, Discussion
du Conseil d'etat, Proces-verbal de la seance du 7 pluviose an XII (28 jan. 1804), in
Fenet XIV, 75; Faure, Rapport fait au Tribunat, 8 ventose an XII (28 f6v. 1804), in
Fenet XIV, 177. Portalis had originally wished to give the buyer a remedy but was
outvoted. Portalis, Discussion du Conseil d'etat, Proces-verbal de la seance du 7 pluviose an XII (28 jan. 1804), in Fenet XIV, 76.
82. Segur, Discussion du Conseil d'etat, Proces-verbal de la seance du 7 pluviose
an XII (28 jan. 1804), in Fenet XIV, 75.
83. Bonaparte, Discussion du Conseil d'etat, Proces-verbal de la seance du 7 pluviose an XII (28 jan. 1804), in Fenet XIV, 77.
1994]
475
arguments from the German jurist Thomasius.84 Portalis responded

that while faith in contracts must be respected, "there are rules of
justice that are anterior to contracts themselves, and from which contracts draw their chief force. The ideas of just and unjust are not the
unique result of human convention."85 He presented a thoroughly
traditional defence of the principle of equality:
"Todetermine the priniciple, one must begin with truths
that are agreed upon.
Now it is admitted that a contract of sale is a commutative contract, that is to say, one in which each party gives
only in order to receive an equivalent, or, if one will, a price
proportionate to the value of the thing which he transfers.
Therefore, is of the essence itself of the contract that it
be rescinded when the equivalent of the thing is not
provided.
Another maxim that is no less certain in law is that
there is no obligation without a cause.
What are the causes of contracts?
In contracts of liberality (bienfaisance) the cause is liberality itself.
But in self-interested contracts, the cause is the interest,
that is to say, the advantage that the parties find in making
them.
In sale, this interest is, for the seller, to have the price
that represents the thing sold rather than the thing itself;
for the buyer, to have the thing rather than the sum of
money that represents its value.
These principles granted, one can see that there is no
cause in a sale unless the price is in proportion to the value
of the thing sold."86
Cambaceres and Tronchet also argued that the nature of a commutative contract required equality.87 Bonaparte said that "[t]here is not
84. Berlier, Discussion du Conseil d'etat, Proces-verbal de la seance du 30 frimaire an XII (22 dec. 1803), in Fenet, XIV, 36, summarizing C. Thomasius, "De aequitate cerebrina legis II: Cod. de rescind. venit. et eius usu pratico cap. II ? 14, 15, 19,
25," printed as Dissertatio LXXIII, in C. Thomasius, Dissertationum academicorum
varii inprimis iuridici argumenti (1777), iii.43. See Luig, "Der gerechte Preis in der
Rechtstheorie und Rechtspraxis von Christian Thomasius (1655-1728)," in Diritto e
potere nella storia europea (1982), II, 775.
85. Portalis, Presentation, supra n. 78, in Fenet XIV, 130.
86. Portalis, Discussion, supra n. 78, in Fenet XIV, 46-47. He had made the argument about the nature of a commutative contract in Portalis, Discussion du Conseil
d'etat, Proces-verbal de la seance du 30 frimaire an XII (22 dec. 1803), in Fenet, XIV,
43. He made the argument based on cause in Portalis, Presentation, supra n. 78, in
Fenet XIV, 130-31.
87. Cambaceres, Discussion du Conseil d'etat, Proces-verbal de la seance du 30
frimaire an XII (22 dec. 1803), in Fenet, XIV, 43; Tronchet, supra n. 80, in Fenet XIV,
63.
476
[Vol. 42
a contract of sale when one does not receive the equivalent of what
one gives."88 Berlier, who wished to abolish the remedy entirely, was
outvoted.89
There really is little else to indicate the drafters subscribed to an

individualistic theory of contract. Savatier thinks that Article 1147
shows that contractual commitments were sacred to the drafters.90
But this article merely states that a party who fails to perform must
pay damages unless he can prove that the failure was due to an extraneous cause (cause etrang&e). According to Batiffol, Article 1156
means that "[t]here is only an obligation to the extent that the parties
so willed," an idea in perfect accord with the conception affirmed by
the doctrine of the period.91 But this article merely provides that
agreements should be interpreted not literally, but according to the
"common intention of the contracting parties," an ancient idea that
the drafters took from Domat and Pothier.92 According to Halperin,
the Code magnifies the importance of the individual will since it allows property to be transferred as soon as the parties assent to a sale
rather than upon delivery as Roman law provided. He acknowledges
that the drafters took this provision from 17th century natural lawyers such as Grotius,93 but he believes, partly for this reason, that
Grotius espoused a new theory of contract that stressed the will.94
Grotius, however, had taken this principle from the late scholastics,
probably from Lessius,95 who had not seen why delivery should be
necessary if, as Aristotle and Thomas Aquinas said, a contract was an
act of voluntary communtative justice.
Again, some of the best evidence that the drafters did not subscribe to a will-centered theory of contract is that one can see such a
theory taking shape in the 19th century, this time, beginning with
the early commentators such Toullier, Duranton and Demante.
Whereas the natural lawyers had explained the binding force of a
contract in terms of two causes or reasons a party might have for
88. Bonaparte, supra n. 79, in Fenet XIV, 58. I admit to having misinterpreted
his views and those of the drafters in Gordley, supra n. 60, at 202-03.
89. The attitude of the drafters towards le'sionwas the subject of a thorough study
by Boulanger, "Le Probleme de la lesion dans le droit intermediare," in A. Decoufle, F.
Boulanger, & B.-A. Pierrelle, Etudes d'histoire economique et sociale du XVIIie siecle
53 (1966), at 62, 73-74. Although he believes the drafters were ideologically opposed
to giving a remedy, and reads that view into every ambiguous text, it is striking how
few of his texts have any bearing on the theoretical reasons for opposing or supporting
the doctrine.
90. Savatier, supra n. 3, at ? 2, pp. 6-7.
91. Battifol, "La 'Crise du Contrat' et sa portee,"Archives de philosophie du droit
(1968), XVIII, 13 at 17.
92. Domat, Les Loix civiles, supra n. 45, at liv. 1, tit. 1, ? 8; Pothier, Obligations,
supra n. 64, at ? 91.
93. Grotius, supra n. 23, at II.xii.15.1. See Pufendorf, supra n. 23, at V.v.3; Domat, supra n. 45, at liv. 1, tit. 2, ? 7.
94. Halperin, supra n. 1, at 57, 130, 207.
95. Lessius, supra n. 23, at lib. 2, cap. 3, dub. 3; cap. 21, dub. 12.
1994]
477
promising, the 19th century French jurists simply explained that the
wills of the parties formed a contract.96 As Ranouil observes, they
took the binding force of contract for granted rather than demonstrating it.97 She quotes Gounot's description of their view: "The contract
is obligatory simply because it is the contract."98
Article 1108 and 1131 required the contract to have a lawful
cause. The 19th century jurists defined the cause in traditional
terms. In a gratuitous contract, it was to perform an act of liberality
or render a service.99 In an onerous contract it was the advantage
each party intended to obtain.'00 Nevertheless, the doctrine had become perplexing. It seemed to mean merely that a party must have
some motive for contracting, either to get something or not to get
something. Thus the 19th century jurists frequently said that they
found difficulty imagining a contract without a cause.101 They had
various conjectures as to what a cause might be. Aubry and Rau said
it was a "legally sufficient motive."'02 Toullier said a contract without a cause must have been entered into by mistake.103 Demolombe
suggested that a contract lacked a cause if it concerned a nonexistent
object such as a harvest that was never produced.'04 Larombiere
thought a purchase of one's own property would be a contract without
a cause.105 In point of fact, no one could find a good reason why there
should be a doctrine of cause rather than simply one of mistake. The
96. See, e.g., M. Duranton, supra n. 33, at X, ?? 1-2; A. M. Demante and E. Colmet
de Santerre, Cours de Code Napoleon (1854-82), V, ?? 2, 2 bis, 3; Demolombe, supra n.
40, at XXIV, ? 12; F. Laurent, supra n. 39, at XV, ?? 424-27; M. L. Larombi6re, Theorie et pratique des obligations (1857), I, ? 41.
97. V. Ranouil, L'Autonomie de ln volont: Naissance et Evolution d'un concept 7172 (1980).
98. E. Gounot, Le Principe de l'autonomie de la volontg en droit prive: contribution
a l'etude critique de lindividualisme juridique (thesis, Paris, 1912), 129; quoted by
Ranouil, supra n. 97, p. 72, n. 31.
99. Aubry & Rau, supra n. 39, at IV, ? 345; Demolombe, supra n. 40, at XXIV,
? 352; Larombiere, supra n. 96, at I, 272.
100. Aubry & Rau, supra n. 39, at IV, ? 345.
101. Aubry & Rau, supra n. 39, at IV, ? 345 n. 7; Demante & Colmet de Santerre,
supra n. 96, at V, ? 47; Demolombe, supra n. 40, at XXIV, ? 357; Toullier, supra n. 32,
at V, ? 166; Laurent had a more elaborate argument. According to Article 1108 of the
French Civil Code, "Fourconditions are essential for the validity of an agreement: the
consent of the party who obligates himself; his capacity to contract; a definite object
that forms the matter of the engagement; a lawful cause of the obligation." Since the
cause of an onerous contract was the obligation of the other party, Laurent argued,
there was no difference between saying the contract must have a cause and saying it
must have a "definite object." Thus, the requirement of a cause was superfluous. Laurent, supra n. 39, at XVI, ?? 110-11. In a gratuitous contract, the cause was the will
to confer a benefit, which meant merely the will to give, and so there was no difference
between saying the contract had a cause and saying the donor consented. Again, the
requirement of a cause was superfluous. Id. ? 111.
102. Aubry & Rau, supra n. 39, at IV, ? 345.
103. Toullier, supra n. 14, at VI, ? 168.
104. Demolombe, supra n. 40, at XXIV, ? 357.
105. Larombi6re, supra n. 96, I, 273-75.
478
[Vol. 42
doctrine of cause, as traditionally understood, had disappeared, leaving only the idea of will.
The 19th century commentators were also at a loss to explain
why relief should ever be given for lesion or disparity in the values
exchanged. Their difficulty was theoretical. They did not see how
there could be equality in exchange or a just price. Thus Demolombe
and Laurent questioned whether relief should be given at all.
Demolombe argued that value was "subjective," "variable and relative."'106Laurent observed that the value of things was not "absolute"
but that things worth one amount "from a commercial point of view"
might be worth a different amount of the parties because of their
"needs, tastes and passions."107 Other jurists such as Duranton,
Colmet de Santerre and Marcade explained that, while inadequacy of
price was not in itself a ground for relief, it was evidence of a "defect
in consent" such as fraud, mistake or duress.108 Glasson thought
that although relief for le'sion violated "the principle of the freedom of
contract," relief could be justified as an exception to the normal rules
for reasons of "humanity."109
When the principle of equality of exchange had been discarded,
there was no way to claim that the terms that the law read into the
contract were the consequences of "equity" in the sense of equality.
None of the 19th century jurists say that they are. According to Laurent they are merely terms the parties themselves would have willed,
stated in the Code in order "to dispense the parties from writing them
into their instruments... "110 Indeed, according to Laurent, Article
1134 meant that the judge should regard the decisions of the parties
as having the force of law and not modify them while pretending to do
equity. The will had become the source of all the parties' obligations,
and there was no higher standard by which the will itself could be
criticized or supplemented."'
In short, when the French jurists really began to develop will
theories of contract, it is easy to see the break from the past. The
break had not been made by the drafters.
106. Demolombe, supra n. 40, at XXIV, ? 194.

107. Laurent, supra n. 39, at XV, ? 485.
108. Duranton, supra n. 33, at X, ?? 200-1; Demante and Colmet de Santerre,
supra n. 96, at V, ? 28 bis (by Colmet de Santerre); V. Marcad6, Explication the'oretique et pratique du Code Napoleon (Paris, 1859), 357-8. According to Colmet de
Santerre, the victim of lesion acted 'under the dominion of an imperious necessity' and
therefore was 'under a kind of moral constraint' (pp. 357-8). He seems to regard
moral constraint as tantamount to duress.
109. E. Glasson, Elements du droit frangais (1884), 550, 553. Glasson denied that
relief could be justified by 'purely legal arguments' (p. 559).
110. Laurent, supra n. 39, at XVI, ? 182.
111. Id. XVI, ? 178.
1994]
479
C. Tort
Most authors have seen individualistic principles in the Code
provisions governing property and contract. Savatier and Halperin
have seen them in the provisions governing torts as well. Articles
1382-83 impose liability on one who has caused another damage by
his own fault. The fault principle, according to Savatier, was "the
corollary of the liberty of the individual."1"2 Halperin traces this
principle to what he again takes to be the individualism of the 17th
and 18th century natural lawyers.113
It is true that for the natural lawyers, fault was the basic principle governing liability in tort. As in the case of property and contract,
however, the principle was part of a theory that was neither modern
nor individualistic. Its basic structure, again, was put together by
Thomas Aquinas on the basis of Roman law and Aristotle, passed on
to the late scholastics, and borrowed by the 17th century natural
lawyers.114
Roman law had given an action, by the lex Aquilia, for damage
done by fault (culpa),"l5 although it had also recognized cases of strict
liability. Aristotle had distinguished voluntary from involuntary
commutative justice. In the former case, the parties exchanged
equivalents; in the latter, one party had wrongfully deprived the
other of something and had to restore equality by giving him an
equivalent.1"6 Thomas put the two ideas together: a party who injured another through his fault was obliged as a matter of commutative justice to compensate him.117 If the party was not at fault, he
was not obliged to compensate because, according to Thomas, qua
human being, he had not caused the harm.118 Here again, he was
applying ideas he found in Aristotle. Aristotle had said that man was
a rational animal, and that therefore, a person was not responsible if
he did not choose, for example, if he did harm because his body was
moved by irresistible force.119 Therefore, according to Thomas, he
only owed compensation for his fault.
The fault principle was embraced by late scholastics who built
explicitly on Thomas such as Molina, and Lessius,120 and then by
112. Savatier, supra n. 3, at ? 2, p. 6.
113. Halp6rin, supra n. 1, at 57.
114. See Gordley, "Tort Law in the Aristotelian Tradition," in Philosophical Foundations of Tort Law: A Collection of Essays (D. Owen, ed., forthcoming, Oxford University Press).
115. Dig. 9.2.
116. Nicomachean Ethics V.ii.
117. Thomas Aquinas, supra n. 21, at q. 61, a. 3; q. 64, a. 8.
118. Id. I-II, q. 6, aa. 1, 5-8; II-II, q. 64, a. 8.
119. Nicomachean Ethics III.i.
120. Molina, supra n. 23, at disp. 698; Lessius, supra n. 23, at lib. 2, cap. 7, dubs. 2
& 6.
480
[Vol. 42
natural lawyers such as Grotius, Pufendorf, Domat, and Pothier.'21

Had all the natural lawyers regarded it as the exclusive basis for liability, and had that conclusion passed unambiguously into the Code,
it would hardly show the drafters had embraced some new individualistic principle.
As it happens, however, though the natural lawyers regarded
fault as the principal basis for tort liability, some claimed it might
not be the exclusive basis. Others were not clear, notably Domat and
Pothier. This ambiguity passed into the Code. It only disappeared
with the 19th century commentators who regarded fault as the only
principled basis for liability.
Grotius found no basis in the law of nature for imposing liability
without fault.'22 Pufendorf, however, thought he could find a principled explanation for the Roman actio de pauperie which recognized
liability without fault for damage done by certain animals. The
owner was liable because in the original state when property was
held in common the injured person would have had a right to seek
compensation from the animal, and also because "the owner gets the
profit from his animal while [the victim] suffered loss from it."123
Though relying on the fault principle, Domat also made an argument like Pufendorf's to explain the liability of a person who has custody (garde) of a fierce animal. "[A]s he profits from the use he can
make from this animal, being its owner, and as he can obtain possession of it again, having acquired it for money or by his own efforts,
and having expended time and trouble to acquire some profit, he
should answer."124
Although Pothier did not make this argument, he may not have
regarded fault as the exclusive basis of liability. He said that parents, guardians and teachers were not liable for torts they could not
prevent committed by those under their authority. In contrast, masters were liable vicariously for torts of their servants even when they
could not prevent them. They, apparently, were liable without fault,
although Pothier threw this conclusion in doubt by adding: "This has
been established to render masters careful to employ only good
servants.'25
In the Code, the fault principle is stated in Articles 1382 and

1383. Articles 1384 and 1385 were based on the passages from Domat and Pothier just described. The ambiguities which we have just
seen passed into the Code. Article 1384 provides that "a person is
liable not only for the damage he causes by his own act but also for
121. Grotius, supra n. 23, at II.xvii.1; Pufendorf, supra n. 23, at III.i.6; Domat,
supra n. 45, at liv. II, tit. viii; Pothier, Obligations, supra n. 64, at ?? 117, 121.
122. Grotius, supra n. 23, at II.xvii.21.
123. Pufendorf, supra n. 23, at III.i.6.
124. Domat, Les Loix civiles, supra n. 45, at liv. 2, tit. 8.
125. Pothier, Obligations, supra n. 64, at ? 121.
1994]
481
that caused for the acts of persons for whom he is responsible or

things that he has under his care (garde)." The article goes on to
provide for the vicarious liability of parents, artisans, teachers, masters and employers. Parents, artisans and teachers may escape liability by proving that they could not have prevented the act that
caused damage. No such privilege is given to the masters and employers. Article 1385 imposes liability on those who own or use animals. Whether fault is the exclusive principle of liability is as
ambiguous under these provisions as it is in the original texts of Domat and Pothier.
One can see the ambiguity in the legislative history of these provisions. Bertrand-de-Greuille explained why masters and employers
cannot escape liability for acts they could not prevent in the same
way that Domat had explained the liability of the owner of wild animals. "Is it not the service from which the master profits that has
produced the evil that he is condemned to repair?" But he immediately followed this question by another that suggests that liability is
based on fault: "Does he not have to blame himself for having given
his confidence to men who are bad, clumsy, or imprudent"? He explained the liability of the owner of animals by stating the "general
thesis" that "nothing that belongs to a person can injure another with
impunity."126
Tarrible and Treilhard, in contrast, seem to base liability exclusively on fault.127 Why, then, does the Code not include masters and
employers when it enumerates the people who can escape vicarious
liability by proving that they could not have prevented the act that
causes damage? Treilhard does not mention them, and Tarrible
seems to be unaware that masters and employers have not been
included.128
Such ambiguities are not to be found in the work of the 19th century commentators. For virtually all of them, fault was the only principled explanation of tort liability.'29 They found it puzzling that
126. Rapport fait par Bertrand-de-Greuille, Communication officielle au Tribunat,
10 pluviose an XII (31 jan. 1804), in Fenet XIII, 477.
127. According to Tarrible, vicarious liability and liability for animals are based on
the principle that "damage, to be subject to reparation, must be the effect of a fault or
an imprudence on the part of someone" since otherwise "it is only the work of
chance."Discours prononc6 par le Tribun Tarrible, Discussion devant le Corps-Legislatif, 18 pluviose, an XII (8 f6v. 1804), in Fenet, XIII, 488. According to Treilhard,
some are liable for weakness, others a bad choice, "all [for] negligence." Presentation
au Corps L6gislatif, et expos6 des motifs par Treilhard, 9 pluviose, an XII (30 jan.
1804), in Fenet XIII, 468.
128. After enumerating them and all the other people who may be liable for the
acts of another, Tarrible says that liability "is at an end with regard to all of them if
they prove that they could not prevent the act that gives rise to it." Tarrible, supra n.
127, in Fenet, XIII, 489.
129. Aubry & Rau, supra n. 39, at IV, ? 446, pp. 754-55; Duranton, supra n. 33, at
XIII, 741; Larombi6re, supra n. 96, at V, 738, 767; Laurent, supra n. 39, at XX, ? 387,
p. 409; ? 550, p. 589; ? 639, p. 694; Toullier, supra n. 32, at XI, 138.
482
[Vol. 42
masters and employers cannot escape liability by proving the absence

of fault. Duranton and Larombiere said that the masters could have
been more careful in choosing whom to employ.130 Laurent, Aubry
and Rau gave no explanation.13' Laurent discussed the explanation
of Bertrand-de-Greuille that the master profits from the work that
gave rise to the injury but he rejected it on the ground that the work
"is the occasion, not the cause".132 Thus even if one were disposed to
see the recognition of fault as the sole basis of liability as an individualistic development, one does not find it unambiguously in the Code
but, again, one does in the commentators.
D.
Other Traces of 19th Century Principles
We have examined the principal reasons that have been given for
thinking that the Code incorporated new and individualistic principles that are supposedly those of the Revolution. There are a few
others. Some have seen a mark of individualism in the phrasing of
Article 1371 which describes a quasi-contract as a "purely voluntary
human act" which gives rise to an obligation.133 But the Code does
not use the word "voluntary" because of some belief that all obligations, even quasi-contracts, should spring from the human will. In
the immediately preceding article, Article 1370, the Code distinguishes two types of obligations that arise without a contract: those
"resulting from the authority of the law alone" which are "formed involuntarily" such as the obligations between neighboring landowners
and those "arising from a personal act of the party who was obligated" such as quasi-contracts and torts. It is simply a matter of
classfication, and that is how it was presented by those who reported
on these provisions to the Tribunat and the Corps Legislatif.134 Indeed, it would be hard to think that voluntary acts create liability in
quasi-contract because they are acts of individual liberty. One such
act is receiving money in the erroneous belief that it was due as the
payment of a debt.135
Still others have thought the Code individualistic because it does
not cover certain topics, such as labor law136 and corporation law.137
130. Duranton, supra n. 33, at XIII, 741; Larombiere, supra n. 96, at V, 767.
131. Aubry and Rau, supra n. 39, at IV, ? 447, p. 761; Laurent, supra n. 39, at XX,
? 588, p. 628.
132. Laurent, supra n. 39, at XX, ? 588, p. 628.
133. Colin, Capitant & Juillot de la Morandiere, supra n. 2, at II, ? 1276, p. 724
(1959); Weill & Terr6, supra n. 54, at ? 790, p. 216;
134. Treilhard, supra n. 127, in Fenet XIII, 464; Bertrand-de-Greuille, supra n.
126, in Fenet XIII, 469; Tarrible, supra n. 127, in Fenet, XIII, 480-81.
135. Code civil art. 1376.
136. Ghestin & Goubeaux, supra n. 2, at I, ? 137, pp. 96-97; Josserand, supra n. 2,
at I, ? 39, p. 33; Mazeaud, Mazeaud & Mazeaud, supra n. 2, at I, ? 43, p. 64.
137. Ghestin & Goubeaux, supra n. 2, at I, ? 137, pp. 96-97; Weill & Terr6, supra n.
54, at ? 10, p. 10.
1994]
483
The assumption seems to be that these topics would have been covered but for a liberal or bourgeois preoccupation with formal individual rights. There is no evidence, however, that the drafters thought
that providing rules for these subjects was part of their job description. Guilds were abolished in 1791, but none of the drafts of the
Code contains a provision prohibiting guilds. Had the Code dealt
with corporate property, some historian would now be claiming that
the provisions were written because of a bourgeois need to allow the
accumulation of capital.
Indeed, one who judged by the attention that the Code gave various realms of private law might imagine it was drafted in the interests of a landed aristocracy rather than a commercial bourgeoisie. As
has often been observed, the protection of landed property is emphasized.138 The provisions governing mortgages, which would protect a
commercial class lending money on the security of land, are generally
acknowledged to be among the least well considered.139 As some
scholars have observed, the Code does little to protect fortunes held
in assets other than land140 or to provide for the needs of commerce.'41 Savatier argues that the Code is "bourgeois"but "it is not
at all a question of the commercial bourgeoisie." "Commerce was the
object of another world, and the Commercial Code is the one concerned with risks and adventure. The Civil Code, on the contrary, is
the code of the stable acquired fortune...."142 It is true that many of
the bourgeoisie wished to protect the fortunes they had acquired and
sunk in landed property. That hardly makes protection of landed
property a bourgeois principle or one peculiar to the French
Revolution.
II.
THE PRINCIPLES
OF THE REVOLUTION
Some of the principles that influenced the drafters were genuinely revolutionary. Indeed, people argued at the time that a code
was needed to bring the law into harmony with the principles of the
new revolutionary order.
They are often indefinite about which specific revolutionary principles they have in mind and what changes these principles require.
We are told, for example, that the old laws were the "fruit of monar138. Mazeaud, Mazeaud & Mazeaud, supra n. 2, at I, ? 44, p. 64; Savatier, supra n.
3, at ? 3, p. 8.
139. M. Planiol & G. Ripert, Trait6 dlmentaire de droit civil (5th ed. 1950), I ? 87,
p. 37; Tunc, "The Grand Outlines of the Code," in The Code Napoleon and the Common Law World, supra n. 208, 19, at 40.
140. Mazeaud, Mazeaud & Mazeaud, supra n. 2, at I, ? 44, p. 64.
141. Savatier, supra n. 3, at ? 3, pp. 8-9.
142. Id.
484
THE AMERICAN JOURNAL OF COMPARATIVELAW
[Vol.42
chical despotism;"143that they emerged from the chaos of feudalism

and therefore could not be appropriate for a nation that the 18th century had enlightened,'44 that new laws were needed that "conform
more to republican institutions"145 or to philosophy,146 or to liberty.'47 We find a number of statements that the Code should serve
the interests of public morality'48 into which we can, if we wish, read
anything from a conventional desire to make people behave better to
a Rousseauian dream of a virtuous republic. Presumably the latter
inspired the statements one occasionally finds that a civil code would
regenerate the people of France.149
It is much harder to find a discussion of what specifically was the
matter with the old law and what particular changes might be
needed. It is hard, in other words, to find anything like a program for
reforming the civil law in the spirit of the Revolution.
Nevertheless, two principles of the Revolution were mentioned
repeatedly when the Code was drafted. One is a republican ideal of
what a code should be. The other is the revolutionary principle of the
equality of all citizens. We will examine the influence of each of these
ideas on the drafters. We will see that the first of these principles
had many supporters, it was repudiated by Portalis and his committee. The second was endorsed by drafters but did not lead to any
major reshaping of private law.
A. A Republican Code?
The republican ideal was explained by the tribune Malia-Garat:
"The law in a republic is an emanation of sovereignty. It is
the work of the people by itself or through its representatives, by the power that the constitution has established to
make law. Law is the national will .... [T]hat is why it is
the only power that free human beings can acknowledge...."150
143. Lucas Bourgerel, speaking in favor of his own Motion d'ordre au conseil de
Cinq-cents, 8 prarial, an VII, in Fenet I, lvi.
144. Projet de Code civil, pr6sent6 par Jacqueminot, au nom de la section de l6gislation, a la Commission l6gislative du Conseil des Cinq-Cents, s6ance du 30 frimaire,
an VIII (21 dec. 1799), in Fenet I, 327.
145. Cambac6res, supra n. 6, in Fenet I, 175.
146. Jaubert, supra n. 75, in Fenet I, civ; Jacqueminot, supra n. 144, in Fenet I,
327.
147. Discussion devant le Corps l6gislatif. Discours prononce par le tribun Savoie
Rollin, 4 pluviose, an XII (25 jan. 1804), in Fenet XI, 48; Jacqueminot, supra n. 144, in
Fenet I, 327.
148. Jaubert, supra n. 75, in Fenet I, civ, cxvi; Portalis, supra n. 4, in Fenet I, 46566.
149. Cambarc6res, supra n. 27, in Fenet I, 11; Tribunal d'appel de Lyon, supra n.
30, in Fenet IV, 349.
150. Tribunat, Opinion du Tribun Mallia-Garat, s6ance du 19 frimaire, an X (10
d6c. 1801), in Fenet VI, 151, 162.
1994]
485
Because the laws were to be the sole measure of the rights and duties
of the citizen, they had to be transparently clear. Not only must each
citizen be able to understand them, but no one must interpret or add
to them. Malia-Garat concluded: "The origin of the law in a republic
does not permit any human power to change the law or to modify it in
its execution or to supplement its insufficiency, let alone its silence."
One who judges without a statute is not truly a judge. He is a
despot.151
In the republican vision, the Code could be clear and self-sufficient because its rules would describe simple, natural relationships
based on reason. In a republic, according to Maria-Garat, the enacted laws can determine the relations among citizens with precision
because these relations are natural whereas in a monarchy they are
arbitrary.'52 The tribune Savoie Rollin explained that because the
Code would prescribe all the private rights required by civil liberty
and appropriate to man in a state of society, "[i]t is therefore necessary that a civil code contain a reasoned system of all these rights;
and as they are necessarily linked among themselves, because they
advance the same end, it is necessary that the system demonstrate
this linkage."153
Cambacerrs, as chairman of the committee that produced three
drafts of a code, professed his allegiance to this republican ideal. His
objective was "a collection of precepts where everyone could find the
rules for his conduct in civil life.... Where judges are not legislators,
it is not sufficient to insure the authority of law by justice; it is also
necessary that the laws be so disposed as to eliminate doubt by clarity and to prevent exceptions by foresight."154 In producing a "code of
simple laws in which the expression aids the understanding" he had
been careful "to separate principles from consequences, rules from
corollaries..
.."155
Like the revolutionary ideologies of our own century, however,

the republican vision of the code had the defect that it did not correspond to anything humanly possible. No one could have made a code
with the logical coherence, universal intelligibility, and comprehensiveness that the vision demanded. Certainly Cambarc6res could not
do so. The disappointment that ensued is the best explanation of why
his drafts were not enacted.
His first draft was a collection of legal maxims and rules, some
quite abstract, some very particular, taken from earlier authors. In
151.
152.
153.
154.
155.
Id.
Id. at 157.
Savoie Rollin, supra n. 147, in Fenet XI, 48.
Cambarc6res, supra n. 6, in Fenet I, 140-41.
Cambarc6res supra n. 6, in Fenet I, 140-41.
486
[Vol. 42
presenting his draft to the National Convention, he tried to explain

that the republican ideal did not require anything more systematic.
"Far from us is the presumption to have invented a theory or
a system. A system! ... we do not have it. Persuaded that
all sciences have their chimera, nature is the only oracle that
we have consulted. Happy, one hundred times happy, the
filial return to this common mother!"156
To the members of the National Convention, the sprawling collection
of rules that Cambarceres said he received from their common
mother seemed uncomfortably long. Even at that, he admitted, the
code would not foresee everything. To do so it would have to add
more laws, and a large number of laws was itself an evil.157
Cambarceres' draft was voted down. The reason given in the
drafting history is that it was "too complicated, showing the effects of
the habits of lawyers and the maxims of courts. More simple and
more philosophical conceptions were wanted."'58 Although historians have speculated about other factors that may have influenced the
vote, this explanation seems to be the most persuasive. The draft
simply did not match the republican vision of what a code should
be.'59
A year later, in September, 1794, Cambarceres was back with a
new draft that he hoped would match that vision more closely. This
one was much shorter than the first and consisted almost entirely of
laconic very general principles-one might almost say, of banalities.
In defending this draft, Cambaceres presented his ideas as though
they were a series of consequences inferred from principles. For
example:
"Three things are necessary and sufficient for man and
society:
To be master of his person;
156. Cambaceres, supra n. 27, in Fenet I, 10.
157. Cambaceres, supra n. 27, in Fenet, I, 2.
158. Discussion devant le conseil des cinqs cents, sur le 3 projet de Cambarceres,
s6ance du 9 pluviose, an V, in Fenet I, liv.
159. Halperin finds this explanation plausible, not only because it is the only one
found in the drafting history, but because Cambarceres' first draft was rejected during an anti-lawyer campaign begun in September, 1792, when Danton called lawyers
a "revolting aristocracy." Halperin, supra n. 1, at 135. Nevertheless, he is not entirely convinced since the Convention had already adopted the parts of the draft put
before it without any real debate, and, indeed, found the provisions on marriage too
revolutionary rather than too moderate. Id. at 136. To me, however, it seems quite
consistent with the explanation in the drafting history that the members of the Convention would have no objection to the draft's content and still believe it failed to
satisfy the revolutionary ideal. Halperin suggests that the adoption of a civil code at
that point would have signaled an end to revolutionary government (id. 140). Similarly, Debbash suggests that because of the revolutionary upheaval, it did not seem a
time for laws. R. Debbasch, Le Principe revolutionnaire d'unitg et d'indivisibilite de la
republique 257 (1988). But it is hard to see why the adoption of a Code answering to
revolutionary republican principles would have done any such thing.
1994]
MYTHS OF THE FRENCH CIVL CODE
487
To have goods to meet his needs;

To be able to dispose of his person and his goods in his
greatest interest.
All civil rights reduce themselves therefore to the rights
of liberty, of property, and of contract."'60
The National Convention voted this draft down as well. The reason given in the drafting history is that it was too short, resembling a
table of contents rather than a civil code.'6' The delegates seemed to
realize that it would leave too much open. Perhaps as well, watching
Cambarceres pretend to move from one banality to the next by deductive logic left them unconvinced that his draft was the incarnation of
reason they were seeking.'62
He eventually returned with a third draft, longer than the second, that aroused so little enthusiasm that it died without a reason
for its rejection being recorded.
The project might have ended there had not Bonaparte seized
power and decided to revive it. He appointed a four-man drafting
committee chaired by Portalis which produced the draft that ultimately was enacted. Portalis made it clear that this draft was not
supposed to conform to the republican ideal. One could try to make
the laws as simple as possible, but in a great state such as France,
both agrarian and commercial, with so many different professions,
the laws could not be as simple as in those of a poor society.'63 Nor
would the code make the dangerous attempt "to govern all and to
foresee all." "Whatever one does, positive law can never completely
replace the use of natural reason in the affairs of life."'64
As a result, the judge would constantly confront problems that he
could not resolve merely by applying the texts of the Code. Indeed, he
would confront such a problem in virtually every case before him
since "no one pleads against a clear statutory text."'65 "Few cases are
susceptible of being decided by a statute, by a clear text. It has always been by general principles, by doctrine, by legal science, that
most disputes have been decided. The Civil Code does not dispense
with this learning but, on the contrary, presupposes it."166 In Turkey
the magistrate can "declare whatever he wishes" because "legal studies are not an art." In France, "[i]t is only too fortunate that legal
160. Cambac6res, supra n. 73, in Fenet I, 100.
161. Discussion devant le conseil des cinqs cents, supra n. 158, in Fenet, I, liv.
162. Halperin thinks the defeat of the draft may have been caused by the reaction
against the radicals. Halperin, supra n. 1, at 214. They, however, were by no means
the only ones to subscribe to a republican vision of a code, and it is hard to think
Cambaceres draft answered to this vision.
163. Portalis, supra n. 4, in Fenet I, 467-68.
164. Id. at 469.
165. Corps lgislatif, Discours prononce par Portalis, s6ance du 23 frimaire, an X
(14 dec. 1801), in Fenet VI, 269.
166. Portalis, supra n. 4, in Fenet I, 471.
488
[Vol. 42
studies form a science" to which "[a]n entire class of men devotes itself," becoming a "sort of seminary of magistrates."'67 The cultivation of this legal science "presupposes compendia, digests, treatises,
and studies and dissertations in numerous volumes."168
It followed that the code by itself would not inform each citizen
what his rights and duties were. "The people, one may say, cannot in
this labyrinth [of commentaries] discern what they must avoid and
what they must do to be certain of their possessions and their rights.
But would a code, even the simplest, be within the reach of every
class in society?"169
Republican convictions were still sufficiently alive in 1801 for
Portalis' opinions to provoke a major battle. His claim that a code
could not decide all cases was supported by many170 including his
colleagues on the drafting committee Tronchet'7l and BigotPreameneu.172 A concern that the judges would enjoy too much authority was raised by the courts of Lyon and Rouen'73 when the draft
was circulated to the appellate courts for comment. When it was debated in the Conseil d'etat, Cambaceres, now elevated to the post of
Second Consul, warned that "it could facilitate usurpations by the
courts of legislative power."174 Roederer, another leader of the Conseil, raised similar concerns.175
The draft was approved by the Conseil d'etat and submitted to
the Tribunat, a body of one hundred members appointed by a senate
controlled by Bonaparte's supporters. Under the Bonaparte constitution, it could debate laws but could only recommend that they be enacted or not enacted. In the Tribunat, Malia-Garat attacked the
draft, describing the rule of law in a republic in the words quoted
167. Id. at 471.
168. Id. at 471.
169. Id. at 471.
170. See e.g., Jaubert, supra n. 75, in Fenet, I, cxvi; Tribunat, Opinion du Tribun
D6meunie, seance du 18 frimaire, an X (9 dec. 1801), in Fenet VI, 93; Tribunat, Opinion du Tribun Ludot, seance du 18 frimaire, an X (9 dec. 1801), in Fenet VI, 106-07;
Tribunat, Opinion du Tribun Huguet, seance du 19 frimaire, an X (10 dec. 1801),
Fenet VI, 138-39; Tribunat, Opinion du Tribun Portiez (de l'Oise), seance du 21 frimaire, an X (12 d6c. 1801), in Fenet VI, 228; Discours prononce par le conseiller d'etat
Berlier, seance du 24 frimaire, an X (15 d6c. 1801), in Fenet VI, 335; Communication
officielle au Tribunat. Rapport fait au nom de la section de legislation par le Tribun
Grenier, seance du 9 ventose, an XI (28 fev. 1803), in Fenet VI, 375; Corps legislatif,
Discours prononc6 par le Tribun Faure, seance du 14 ventose, an XI (5 mars 1803), in
Fenet VI, 162.
171. Conseil d'etat, Proces-verbal de la seance du 14 thermidor, an IX (2 aouit
1801), in Fenet VI, 23.
172. Id. at 23.
173. Tribunal d'appel de Lyon, supra n. 30, in Fenet IV, 34; Observations arr8tees
par le tribunal d'appel seant a Rouen, d'apres et sur le rapport de sa commission, in
Fenet V, 455-56.
174. Discussion, supra n. 171, in Fenet VI, 21.
175. Id. at 23.
1994]
MYTHS OF THE FRENCH CWIL CODE
489
earlier. He described the power granted the judge as "despotic,"'76

"without break, without measure, without guarantee, without precaution."'77 The Tribunat voted a negative recommendation on the
portions of the Code submitted to it. These portions were then submitted to the Corps Legislatif, a legislative body of three hundred
members, also chosen by the senate, which voted in secret and without debate, and had the power to decide if a law should be enacted.
The Corps Legislatif rejected a portion of the draft submitted to it.
Bonaparte then withdrew the remaining portions from further
consideration, reduced the Tribunat to fifty members by eliminating
his opponents, and resubmitted the draft. This time it was approved
and enacted.
One cannot tell if the Tribunat and Corps Legislatif rejected the
draft simply because it did violence to the republican idea. These
bodies may have disliked the provisions on family law, which were
considered concurrently, or disliked Bonaparte, or wished to show
that they still retained some independent constitutional power,
which they apparently did not. The criticisms directed against
Portalis' conception of a code do show that the old republican vision
was still alive.
Portalis had rejected that vision, not only because he was skeptical about how comprehensive, simple and clear a code could be, but
because he had a fundamentally different, non-republican, and traditional view of what it meant for law to be based on nature and reason.
For the republicans, law was the will of the people or their representatives. It was coherent because it consisted of the simple principles
necessary for the protection of civic liberty. These principles had
been recognized only in the new republican era. For Portalis, law
was founded on human nature, reflected in the laws of all civilized
peoples but particularly those of the Romans, and discovered through
the efforts of jurists and scholars over the centuries.
"Law (droit) is universal reason," he explained, "supreme reason
founded on the very nature of things. Enacted laws (lois) are or
ought to be only the law (droit) reduced to positive rules, to particular
precepts."''78 This higher law was reflected in those "valuable collections for the science of laws" made by the Roman jurists.179 The Romans, however, never systematically formulated the principles on
which their law was based, and for centuries, the task of doing so was
neglected. "Literary people only looked to the ancients for what was
pleasant, and philosophers limited themselves to that which con176. Mallia-Garat, supra n. 150, in Fenet VI, 151.
177. Tribunat, Opinion du Tribun Chazal, seance du 18 frimaire, an X (9 dec.
1801), in Fenet VI, 76.
178. Portalis, supra n. 4, in Fenet, I, 476.
179. Portalis, Presentation et expose des motifs devant le Corps-L6gislatif, 28 ventose, an XII, in Fenet I, xcv.
490
[Vol. 42
cerned the speculative sciences." "Unfortunately," the Roman texts

were studied only by "those destined to the bench or the bar."'180A
true science of law began in the 17th century with the work of jurists
such as Domat. These jurists examined enacted laws with "a reason
exercised by observation and by experience," "compared enacted laws
to enacted laws," and "studied them in their relationship to the rights
of man and the needs of society."18'
Since Portalis believed that legislators were simply laying down
particular precepts of a higher law based on reason, principles implicit in earlier legislation and discovered through legal scholarship,
there was no great cause for concern if the legislator left a question
open. The judge could simply consult natural reason with the "natural light of justice and good sense."'182He would consult, not his own
conscience alone, but the learning of the "entire class of men" trained
in legal science who had produced "compendia, digests, treatises, and
studies and dissertations in numerous volumes." "If the foresight of
legislators is limited," Portalis argued, "nature is infinite. It may be
applied to everything that could concern men. Why would one wish
to ignore the resources that she offers us?"183
Domat and other 17th and 18th century natural lawyers had described the law of nature in much the same way as Portalis. By the
late 18th century, however, belief in a law founded on human nature,
valid in all times and places, and discoverable by jurists through systematic study had already begun to fade. It is paradoxical that,
though the Code of Portalis opened a new era in legal history,
Portalis himself was one of the last to hold this older view. In the
19th century, the conviction grew that the Code should be interpreted
exegetically without looking beyond its own texts. And so, strangely
enough, the Code was treated as self-sufficient even though its drafters had not intended it to be, and even though its drafter-in-chief had
risked the defeat of his project rather than abandon his conviction
that self-sufficiency was an unnecessary and impossible goal.
Toullier, who wrote the first commentary on the Code soon after
its enactment, did try to interpret its provisions by consulting and
citing both Roman law and writers on natural law.184 Later in the
19th century, leading commentators on the Code did not do so. They
usually professed to believe in a natural law, but, as I have shown
elsewhere, their protestations were sentimental introductions to exe180. Id. at xcv.
181. Portalis, supra n. 179, in Fenet I, xcvi-xcvii.
182. Presentation au Corps legislatif. Expose des motifs, par Portalis, seance du 4
ventose, an XI (23 fev. 1803), Fenet VI, 360.
183. Id. at 360.
184. Toullier, supra n. 32. For an example, see p. 9, infra. As Ghestin and
Goubeaux have observed, the fact that Toullier did not regard the texts as self-sufficient is good evidence that the drafters did not either. Ghestin & Goubeaux, supra n.
2, at I, ?? 142-45, pp. 99-103.
1994]
491
getical commentaries on the texts.185 Doubtless, there was a natural

law of some sort, Demolombe explained, but from the point of view of
a jurist the one true law was the positive law. His motto, he said, was
"the texts before all else."'86 The jurist, according to Troplong,
should measure his work against the inflexible text of the Code.187
According to Laurent, if the jurist observed defects in the positive
law, he should leave to the legislature the task of bringing it into
accord with the natural law.'88 Aubry and Rau gave an account of
the interpretation of law that made no reference to natural reason or
equity.189
The reason 19th century commentators treated the Code as selfsufficient was not that they believed in the republican ideal that
Portalis had opposed. As I have shown elsewhere, they had quite diverse opinions about the nature of law.190 They treated the Code as
self-sufficient because they did not believe, as Portalis had, in the
possibility of a transnational, transtemporal legal scholarship that
could give the texts meaning. Since there was nowhere else to look
except the texts of the Code, the Code had to be self-sufficient. So
they created the myth that it was.
The myth has often been accepted by historians. According to
van Caenegem a "fundamental feature of the Code is its positivism,
which was to mark the Exegetical School."'191"The Code civil ...
rejects all borrowing from natural law: from now on the established
order was the Code, and all reference to natural law .
order."'92
. was out of
In an important book in 1899, Frangois Geny showed that the

Code cannot be self-sufficient.193 Since that time, some French jurists have rejected the myth of its self-sufficiency. They regard judicial decisions and the writings of scholars as sources of French law.
They take it for granted, however, that French law is to be found by
consulting exclusively the French judges and French scholars who
have interpreted the Code. Thus the paradox continues that the
185. Gordley, supra n. 60, at 220-22.
186. Demolombe, supra n. 40, at I, 1st preface, p. vi.; ? 8, p. 53.
187. R. Troplong, De la vente ou Commentaire du Titre II du Livre III du Code
Napoleon (1837), I, preface, p. 8.
188. Laurent, supra n. 39, at I, ?? 5, 30. According to Laurent, is permissible for a
judge to decide a case by natural law only when the texts are insufficient, and then it
is a necessary evil. Id. at ?? 256-57. Laurent's own commentary suggests that he
rarely found the texts insufficient. Moreover, for Laurent, the natural law that the
judge should consult seems to have been his own sense of what is suitable, not an
organized body of knowledge.
189. Aubry & Rau, supra n. 39, at I, ?? 40-41.
190. Gordley, supra n. 60, 221-24.
191. R.C. van Caenegem, An Historical Introduction to Private Law 8 (D.E.L. Johnston, trans. 1992).
192. Id. at 9.
193. F. G6ny, Methode d'interprdtation et sources en droit prive (1899).
492
[Vol. 42
Code is regarded as part of a self-contained French law although its

drafters thought its texts would be meaningful only when read in the
light of a transnational legal science.
B. An Egalitarian Code?
Portalis claimed that the Code did reflect the principles of the
Revolution though not the republican ideal just described. He described how it would do so in a brief statement made to the Corps
Legislatif. The Code would eliminate all civil differences based on
religious conviction'94 or hereditary social status.
"Formerly, the humiliating distinctions that political law
had introduced among persons had even slipped into civil
law. There was one manner in which the nobles would succeed to property and another manner for those who were not
noble. There were privileged properties which the nonnobles could not possess, at least without a dispensation
from the sovereign. All the traces of barbarism are effaced.
The law is the common mother of the citizens, and it accords
an equal protection to all."195
The Code, then, would be egalitarian in its treatment of persons and
property. As Planiol described the change wrought by the Code,
"every trace of the feudal hierarchy of persons and land
disappeared."196
We will examine how the drafters applied the principle of equality first, to persons, and then, to land. In neither case, we will see,
were the rules of private law fundamentally reshaped.
1. Equality of persons. -We need not spend much time on the
establishment of equality among persons. The drafters recognised
this important principle without changing much of French private
law. The National Assembly had abolished the privileges of the nobility by a law of June 19-23, 1790. It had granted Protestants and
Jews freedom to worship freely by a decree of February 13, 1790. The
Constituent Assembly had extended full civil rights to Jews by a decree of September 27, 1791. The drafters did not have to change the
law of France to make it conform to the principles of the Revolution
in these respects. They simply had to avoid reintroducing special
privileges for nobles and special disadvantages for Protestants or
Jews.
194. Portalis, supra n. 179, in Fenet, I, cii.
195. Id. at cii. Similarly, the Tribune Jaubert explained in his defence of the draft
that the civil laws would be based on "[respect for morality, national honor, a passion
for public liberty, the maintenance of the sacred rights of property, the need to recognize no other distinctions than those of virtue and talent." Jaubert, supra n. 75, in
Fenet I, cix-cx.
196. Planiol & Ripert, supra n. 139, at I, ? 85, p. 36.
1994]
493
Moreover, while the elimination of the privileges of the nobility

and the proclamation of religious liberty were of great importance,
they had little to do with the content of the civil law. The civil law did
not have to be changed to give equal rights to Jews and Protestants.
They simply were given the same rights as everyone else.
Nobles had been treated differently by the civil law in the two
ways that Portalis mentions. Somewhat different rules governed inheritance in noble fanmilies. Also, if a noble sold land held as a feudal
fief to a commoner, the commoner had to pay the king a sum of money
known as the franc-fief for the right to acquire it. In addition, nobles
were exempt from the banalites which sometimes required a non-noble to use a certain oven, mill, or wine press. They did not have to
provide labor that could be required of a commoner subject to a corvee, although if they bought land subject to such a requirement, they
were only exempted from providing such labor in person. These,
however, are the only privileges of the nobility mentioned by Pothier
that had much to do with civil law. The others concerned the right to
enjoy certain honors and tax exemptions, the right to hold certain
offices and to receive degrees without the normal period of study, the
right to have certain lawsuits tried in certain courts, and the right, on
conviction for a serious offense, to be decapitated rather than
hanged.'97 It was, of course, of great social and political significance
that these privileges were abolished or, in the case of decapitation,
extended to all Frenchmen. But one hardly needed to redesign the
civil law to weed out the few of these privileges that, as Portalis put
it, had slipped in.
Indeed, the content of the Code was largely independent of the
principle of equality among persons. The Code was formally adopted
by a law passed on March 21, 1804. On May 2, 1804, another law
declared that Bonaparte was no longer First Consul of a republic but
rather Emperor. With the empire came the institution of an hereditary nobility. These events required some modification in the Civil
Code, Bigot-Preameneu explained to the legislative bodies charged
with enacting them. Phrases such as "first consul, republic, and nation, had to be changed to emperor, empire and state." Moreover,
under legislation enacted August 14, 1806:
"When His Majesty judges it appropriate, whether to recompense great services or to excite a useful emulation or to add
to the eclat of the throne, he can authorize the head of a family to entail his goods to form the endowment of an hereditary title that His Majesty will create in his favor,
transmissible to his eldest son, born or to be born, and to his
197. R. Pothier, Traite des personnes et des choses ? 31, pp. 12-13, in Oeuvres,
supra n. 9, IX.
494
[Vol. 42
descendants in a direct line, from male to male, by order of

primogeniture."'98
With these minor amendments, Bigot-Pr6ameneu explained, though
"the Code had been prepared during the consular government, its
principles contain nothing that does not accord with the imperial
power and dignity."199
Indeed, it turned out that even though Portalis had said the Code
was based on the principle of equality, the far-sighted individual after whom it would henceforth be named had wanted a Code that
would "be able to accord with different systems of government."200
Though "no legislator had ever attempted to resolve this great problem,"920' His Majesty had done so, without even telling his drafters
which great problem they were supposed to resolve. The principles of
the Code were not "subordinated to different political systems,"202
could survive revolutions,203 and so were suited to the happiness, not
only of France, but of all other peoples his Majesty might add to the
Empire.204 "Here you may admire, Messieurs, with what profundity
all the conceptions of His Majesty are linked together to attain the
end of bettering the condition of men and above all establishing peace
among them."205
Just as His Majesty had planned, the Code proved suitable to
various forms of government. By an ordinance of July 17, 1816, Louis
XVIII adopted it with no significant changes except the terms such as
"emperor"and "empire"were replaced by "king"and "kingdom."206
The fact that the Code could be adopted without change by such
different regimes leads us to suspect that the Code reflected the principle of equality among persons, chiefly, by leaving out the special
privileges of the nobility. It proved easy enough to reinstate these
privileges when desired.
2. The Abolition of Feudalism.-According to Planiol, the Code
destroyed the "feudal hierarchy," not only among persons but in
land.207 Many scholars have claimed that feudal property disappeared, and its place was taken by a new kind of property.208 To
198. Senatus-consulte du 14 aouft 1806, quoted by Bigot-Preameneu, Expose des
motifs devant le Corps-Iegislatif, in Fenet I, cxxxii.
199. Bigot-Preameneu, supra n. 198, in Fenet I, cxxviii.
200. Id. at cxxv.
201. Id. at cxxv.
202. Id. at cxxv-cxxvi.
203. Id. at cxix, cxxvi-cxxvii.
204. Id. at cxxv.
205. Id. at cxxvi-cxxvii.
206. Ord. du 17 juill. 1816, in Fenet I, cxxxv-cxxxvi.
207. Planiol & Ripert, supra n. 139, at ? 85, p. 36.
208. Arnaud, supra n. 2, at 172-75; M. Garaud, La Revolution e la propriete
fonciere 1-7 (1958); Savatier, supra n. 3, at ? 2, pp. 5-6; Sereni, "The Code and the
Case Law," in The Code Napoleon and the Common Law World 55 (B. Schwartz 1956)
1994]
495
evaluate this claim, we must see how land was held in the Old
Regime.
In 18th century France, a person might owe obligations of feudal
origin because of where he lived or because of what land he held. Because he lived in a certain area he might be subject to rights of banalite which required him to use a certain oven, mill or wine press. He
might be subject to rights of corvee personnelle which obligated him,
unless he was a noble, to work a few days a year on another's land.
He might have to bring certain claims in a private court that belonged to another.
These obligations had originated at a time when local feudal
lords holding the seigneurie or lordship of the area constituted a kind
of local government. In the 18th century, the seigneurie was a private right which allowed the seigneur who owned it to hold people in
the territory to the obligations just described. It was not a right attaching to any property that he owned, and he could transfer it to
another person.209
Other rights and obligations of feudal origin belonged to people
because of the land that they held. These rights had originated, not
in the power the feudal lords had once enjoyed to govern a certain
territory, but in the feudal relationship between a lord and those who
held land from him. One sort of relationship was that between a lord
and his military vassals. After a ceremony in which he pledged faith
and did homage to the lord, the vassal held land as a fief. He was
obligated to support the lord in war and to give him counsel. Another
sort of relationship was that between the feudal lord and tenants who
held land of him in return for a periodic payment of money or the
products of the land called a cens. Land held in this way was called a
censive.
Although fiefs and censives had become inheritable and alienable
in the Middle Ages, the holder still had to pay a sum of money to the
lord for the privilege of alienating it. In the case of a fief, the payment, known as a quint denier, was typically one fifth of the sales
price. In the case of a censive, the payment, known as lods et ventes,
was typically one-twelfth. A censive might also be burdened by certain rights that the lord had originally reserved to himself such as
exclusive hunting rights or the right to keep pigeons. It might be
subject to a corvee realle requiring the holder to work a few days a
year on the lord's land.
By the 18th century, the duties of the holder of a fief to provide
military support and counsel had long since died out.210 Most lords
at 56; A. Soboul, "La Revolution frangaise et la 'f6odalit6.' Notes sur le prelbvement
feodal," Revue historique (1968) CCXL, 33, 36-39. See also nn. 233, 234, & 238, infra.
209. R. Pothier, Coutumes d'Orleans ? 352 p. 138, in Oeuvres, supra n. 9, I.
210. Garaud, supra n. 208, at 17.
496
[Vol. 42
entitled to cens had agreed to take cash instead of commodities. Centuries of inflation had made most of these cash payments
insignificant.211
Moreover, the interest in land a person held no longer necessarily corresponded to his hereditary social status.212 Originally, the
lord and vassal of a fief and the lord of a censive belonged to the hereditary military aristocracy. The party owing cens or other periodic
payments was a commoner. Commoners, however, had acquired the
right to become "lords"of a fief or censive if they paid a franc-fief to
the king. Nobles had bought land in censive, paying cens to a "lord"
who might be a commoner, and renting the land to someone else who
might be a noble.
Moreover, the sort of people who counted as "nobles" had
changed as well. One could become a noble by getting letters patent
from the king which the king was willing to sell in times of financial
crisis.213 Since the 14th century one could become a noble by holding
certain offices. In some parts of France the majority of noble families
had risen to that rank by their purchases of office. These people were
called "nobility of the robe" to distinguish them from the old "nobility
of the sword." Their children would serve in the army, however, and
there would be a fusion between the two nobilities.214 For centuries,
non-noble families had purchased fiefs or other prestigious interests
in land, "lived nobly," and in due time claimed noble rank. Since the
nobility were exempt from paying certain taxes, from 1463 to 1727,
the king had periodic investigations made into the credentials of
those claiming nobility.215 Nevertheless, in Moliere's play, Le Bourgeois gentilhomme, Cl6onte acknowledges that many in his position
would call themselves nobles: his parents had held honorable positions, he had been six years in military service, and he had sufficient
money to live appropriately.216
Finally, by the 18th century, the original feudal tenures such as
fief and censive no longer corresponded to the way that land was exploited economically. The revenues of a rich landholder often came
not from collecting rent but from hiring landless laborers to work his
land.217 Moreover, those who rented property, even in perpetuity,
could do so in a variety of ways that did not entail, even in theory, a
feudal relation of lord to tenant: for example, emphyteose, rente
fonciere, rente constituee, and bail a ferme or a loyer.
211. F. Olivier-Martin, Histoire du droit fran,ais des origines d la Revolution 64748 (1951); Garaud, supra n. 208, at 31; A. Aulard, La Rgvolution fran,aise et le regime
fiodal 37 (1919).
212. A. Cobban, The Social Interpretation of the French Revolution 28-32 (1964).
213. Olivier-Martin, supra n. 211, at 638.
214. Id. 638-39.
215. Id. 637.
216.
Act III, sc. xii.
217. Olivier-Martin, supra n. 211, at 648.
1994]
497
In these non-feudal arrangements, 18th century jurists explained, the payment of rent did not constitute a recognition of the
lordship or seigneurie of the other party. In contrast, the holder of
land in fief or censive recognized the lordship or seigeurie of the person from whom it was held, in the case of a fief, by pledging faith and
homage, and in the case of a censive, by paying the cens.218 While
this difference did not matter economically, it might socially.219 In
some places, the honor of having one's lordship recognized was so little thought of that faith and homage could be given by a paragraph of
boilerplate inserted by lawyers in a document, and the nominal cens
was never collected.220 In other places, however, it must have been a
matter of considerable prestige to judge from the attention the jurists
gave to how faith and homage must be made or a nominal cens must
be paid.221 One hears of people of moderate means flattering their
egos by having the document creating an ordinary rent dressed up by
a notary to make the landlord sound as though he possessed some
feudal dignity.222
On the night of August 4, 1789, "feudalism" was abolished. During July, waves of peasant unrest had spread across the country.
Peasants had refused to pay their taxes and attacked tax collectors.
They had refused to pay the charges on their land, and marched on
chateaux demanding to see the documents proving these charges
were due. Sometimes they burned the documents that were produced. Sometimes they burned the chateaux.
On August 4th, the National Assembly considered how to respond. Some delegates argued that, though the violence was
deplorable, the peasants were angry because they were oppressed by
"feudalism."223 That night, the National Assembly decreed that it
"entirely destroys feudalism...."
The question then became, what
was "feudalism"?
In the months that followed a solution was worked out. Obligations such as the banalite and corve personnelle which a person owed
because of the territory he lived in, not the land he held, were abolished. So were exclusive rights to hunt and keep pigeons. So were
rights to receive faith and homage or other recognition of one's supe218. F. de Boutaric, Traits des droits seigneuriaux et des matueres fe'odales ii, 40
(nouv. ed. 1775); C.-J. de Ferriere, Dictionnaire de droit et de pratique (nouv. ed.
1771), I, v. "cens,"249; Preudhomme, Traitigdes droits appartenans aux seigneurs sur
les biens poss6di's en roture 96 (1781).
219. Whitman, "Les Seigneurs descendent au rang de simples cr6anciers: Droit
romain, droit feodal et revolution," Droits: Revue fran,aise de la the'oriejuridique
(1993), XVII, 19, 32; J.Q.C. Mackrell, The Attack on 'Feudalism' in Eighteenth-Century France 180 (1973).
220. Garaud, supra n. 208, at 29, 32.
221. See Whitman, supra n. 219.
222. Garaud, supra n. 208, at 232; P. Sagnac, La LUgislation civile de la re'volution
147 (1898).
223. For the ideas that inspired this diagnosis, see Mackrell, supra n. 219.
498
[Vol. 42
rior status or dignity. But unless the contrary could be proven, payments of money were assumed to be the price of an original
concession of land. Thus those who owed annual payments of cens or
rent were to continue to pay them though the cens was no longer to be
considered recognition of another's lordship. Those who held fiefs or
censives were still to make a payment upon sale. The holder of the
land could redeem it from the obligation to make annual payments or
payments on sale, but to do so he would have to pay an amount that
corresponded to the economic value of these obligations.
This solution was explained by Merlin de Douai in a report of the
Feudal Committee to the National Assembly: "In destroying the feudal regime, you did not mean to despoil of their possessions the legitimate proprietors of fiefs, but you changed the nature of this property:
they ceased to be fiefs and have become allodial."224 A decree of
March 15, 1790, provided that the payments formerly due as part of
feudal law were now "simple rents and land charges."
There was a howl of outrage from the peasants. Not understanding "feudalism" as well as the members of the National Assembly
supposedly did, they had imagined that if feudal oppression ended,
they would be economically better off. Certainly, they did benefit
when they were relieved of a few days of corve'e labor a year, and
when the exclusive hunting rights were abolished that protected animals that ate their crops. They may have benefitted when they no
longer had to use an inconveniently located oven, mill, or wine press.
The great burden, however, had been rent, and according to the Feudal Committee, they still had to pay.
Like the peasants, many historians have thought that the Feudal
Committee defaulted on the promise to abolish feudalism made the
night of August 4th.225 Even Alfred Cobban, one of the strongest critics of traditional accounts of the French Revolution, has interpreted
the action of the Committee as an attempt to preserve "seigneurial
dues and rights" by renaming them.226 Nevertheless, it is hard to see
what else the Committee was to do. "Feudalism" was not supposed to
mean that some landowners were nobles, or that rich people lived off
rents, or that wealth was inequitably distributed. To make it mean
any of these things would have turned the abolition of feudalism
either into a general persecution of the nobles or into a modern-style
program of agrarian reform. "Feudalism" meant that certain rights
in land were "feudal" and therefore oppressive. The difficulty was
that the rights that looked the most "feudal"were also the least eco224. Report of the Feudal Committee, Feb. 8, 1790, quoted in Aulard, supra n. 211,
at 109.
225. See e.g., Garaud, supra n. 208, at 196, 124; Soboul, supra n. 208, at 37-38; S.
Herbert, The Fall of Feudalism in France 139 (1920).
226. Cobban, supra n. 212, at 42-43. For a similar view, see Mackrell, supra n.
219, at 174.
1994]
499
nomically significant. Abolishing the payments due on a censive

would not have satisfied the peasants. The value of the cens was typically small due to centuries of inflation, and they sold their land infrequently. But if the Feudal Committee had tried abolish the
economically more significant rents, it would have been embarking
on a program agrarian reform. Even had it wished to do so, cancelling rents would have been both insufficient and bizarre. The peasants benefitted would have been only those who already held land,
not the millions who were landless. The landowners affected would
be only those who collected rents, not those who worked their estates
with hired labor.
W7henunrest continued in the countryside, the legislators in
Paris tried other solutions. Finally, a law of July 17, 1793, destroyed
without indemnity all "seigneurial rights" of every kind except "rents
or performances that are purely land charges and not feudal." The
same day a decree was issued which said that this law would suppress without indemnity rents owed in perpetuity (rentes foncieres) if
they were mixed with "cens or other signs of seigneurie or feudalism."
Since the decree gave no indication of what constituted a "sign of
seigneurie or feudalism," the courts and government agents charged
with administering this rule were confused as to what had been abolished.227 Nevertheless, pressure had been taken off the lawmakers
in Paris and shifted to courts and officials in the countryside who
could be expected to apply the rule flexibly, according to the kind of
pressures their region was experiencing.
For present purposes, the important point is that while de facto,
the law of July 17, 1793, may have been politically more acceptable
than the decree of March 10, 1789, de jure, it described a "feudal"
property right in much the same way. A rent was feudal if payment
was a "sign of seigneurie." As we have seen, according to the French
jurists of the Old Regime, it was the recognition of seigneurie that
distinguished the censive from the non-feudal land tenures.
Certainly, it was of social and political significance that one could
no longer buy the right to a formal act of deference. Like the abolition of the special privileges of the nobility, this change marked the
transition from an order that protected the trappings of upper class
superiority to an order committed to some foirmof social and political
equality.228
Nevertheless, this change, of itself, did not involve a reworking of
the law of real property. All it meant was that, as the Feudal Committee had said, a rent payment would be merely a rent payment and
not a recognition of anyone's seigneurie. Nor did one have to rework
the law of property to abolish exclusive hunting rights, or, for that
227. See Aulard, supra n. 211, at 248, 256-57; Garaud, supra n. 208, at 223-38.
228. See Whitman, supra n. 219, at 32.
500
[Vol. 42
matter, rights like the banalite or corvee personelle which, in any

case, depended on the area one lived in rather than the land one
owned. If these had been the only changes made during the Revolution and preserved in the Civil Code, scholars would find it hard to
claim that a new system of property law had replaced an older one.
Indeed, the scholars who make this claim point to other changes
that took place in the law of real property. A law of December 18-29,
1790, provided that all rents on land must be redeemable, and that
land could not be rented for longer than ninety-nine years. The drafting committee incorporated the right to redemption in Article 530 of
the Civil Code. It provides:
"Every rent established in perpetuity as the price for the
sale
of real property
. . . is by its nature
subject
to
redemption.
Nevertheless, the creditor is permitted to specify the
terms and conditions of redemption.
He is also permitted to specify that the rent cannot be
redeemed except after a certain term which, however, can
never exceed thirty years, and any stipulation to the contrary is void."
The drafters made another change as well. Article 529 classified
the right to receive the rent in perpetuity as a kind of personal property (meuble) rather than real property (immeuble). As Article 530
indicates, a person paying the rent was considered to be the sole
owner of the property subject to it.
In contrast, under the law of the Old Regime a person owing rent
generally did not have the option to redeem the land with a lump sum
payment, though in a rente constituee he did. Moreover, the parties
might hold various interests in the land depending on the type of arrangement. In a fief, a censive, and an emphyteose, even though the
latter was not a feudal tenure, "domaine"or "ownership"was divided
between the parties. The person entitled to homage, cens, or rent
owned an interest called the domaine directe, and the other party
owned one called the domaine utile. Both interests were treated as
types of real property.229 In contrast, in a rente fonciere, the person
owed rent held an interest in the land that was recognized as a type
of real property but not as ownership.230 In a rente constituee, he had
only a contractual right against the party paying rent although often
229. Boutaric, supra n. 218, at ii-iii, 429; de Ferriere, supra n. 218, at 584; C.
Loyseau, TraitW du deguerpissement et delaissement par hypotheque 26 (1636);
Pothier, TraitMdu droit de domaine de proprigt*, supra n. 9, at ? 4, p. 103; Coutume de
Orelans, supra n. 209, at ?? 3-7, p. 175.
230. de Ferriere, supra n. 218, at II, v. 'rente fonciere," 548; Loyseau, supra n. 229,
at 28; Pothier, Traits du contrat de bail a rente, no. 3, p. 172; no. 16, p. 177; no. 19, p.
178 in Oeuvres, supra n. 9, IV, 171; Preudhomme, supra n. 218, at 95.
1994]
501
he would insist that the land be mortgaged to secure it.231 In a bail a

ferme or a' loyer, the person collecting rent was considered to be the
sole owner, and the person paying it had no interest in the land but
rather a contractual right to its use.232
The fact that, under the Code, the land has only one owner has
made a great impression on some modern scholars. They have described the change as a "liberation of the land" which previously had
belonged to two owners and henceforth can belong to only one.233
Others have talked about the abandonment of feudal ideas of property and the return to Roman ideas.234
It would promote clarity of thought if those who attach importance to this change would say what practical consequences they believe it to have had. As between the parties, one can find few, if any.
Indeed, although the various arrangements recognized under the Old
Regime were described differently by the jurists, their economic effects were much the same. One party had the use of the land. The
other was entitled to rent, and had his claim to it secured by the land,
even in the case of a rente constituee provided it had been secured by
a mortgage. Moreover, these arrangements were used for similar
purposes. An emphyteose was sometimes created when land was sold
so that the seller would receive the purchase price in a perpetual series of payments rather than a lump sum.235 A rente fonciefre sometimes used to secure a loan and sometimes to camoflage a usurious
interest rate.236
After the enactment of the Code, under the arrangement described in Article 530, one party was again entitled to rent, and the
other obligated to pay it. As before, the land secured the claim of the
person entitled to rent. Since he was considered a "seller" and the
rent a "price," he could proceed against the land under Article 2103
for nonpayment of the price.237
As between the parties, then, it really did not matter whether
one or both parties were deemed to have a property interest in the
land, any more than it matters when land is rented or mortgaged
231. de Ferri6re, supra n. 218, at II, v. "rentefonciAre"at 548-49; Loyseau, supra n.
229, at 30; Pothier, supra n. 230, at no. 19, p. 178; no. 21, p. 179.
232. Pothier, Contrat de bail a rente, supra n. 230, at no. 3, p. 172.
233. See, e.g., Arnaud, supra n. 2, at 173-75; Garaud, supra n. 208, at 1-3; Savatier, supra n. 3, at ? 2, p. 6; Weill & Terre, supra n. 54, at ? 11, p. 11; Mazeaud,
Mazeaud, & Mazeaud, supra n. 2, at I, ?? 36-38, pp. 58-60, ? 43, pp. 62-63; Sagnac,
supra n. 222, at 62-70; Wilhelm, "Gesetzgebung und Kodifikation im Frankreich im
17. und 18. Jahrhundert," Ius Commune (1967), I, 241, 266.
234. Lewy, "The Code and Property," in The Code Napoleon and the Common Law
World, supra n. 208, 162, at 164.
235. de Ferri6re, supra n. 218, at I, v. "emphyt6ose,"p. 584.
236. Boutaric, supra n. 218, at 57.
237. His right to do so was recognized in the first commentary on the Code. Toullier, supra n. 32, at III, no. 102, p. 66. It is recognized by modern commentators as
well. Planiol & Ripert, supra n. 139, at III, no. 1005, p. 992.
502
[Vol. 42
today in other countries. Under English and American law, both parties have a property interest when land is rented: the lessor, if his
property were otherwise unencumbered, has a fee simple, and the
lessee has a leasehold estate. In some American states, a person who
mortages his land remains the owner; in others, the lender becomes
the owner; and if the mortgage is effected by an instrument called a
deed of trust, there will be two owners, legal title belonging to the
bank and equitable title belonging to him.
Article 530 made another change that has been regarded as part
of the breakthrough to a modern system of property law.238 When
land is rented in perpetuity, the person paying rent has the right to
redeem the land after thirty years on terms and conditions specified
by the other party. But again, nothing of economic significance turns
on the change. Under the Old Regime, any party could buy out of his
obligation to pay cens or rentes by offering the other party enough
money to persuade him to part with his interest. The result is no
different under Article 530 of the French Civil Code as long as the
party owed rent makes a wise use of his right to specify the terms and
conditions under which the rent can be redeemed.
Indeed, Article 530 of the Civil Code was a compromise measure
adopted after the Conseil d'etat rejected an initial proposal to reestablish the rent fonciefre without the privilege of redemption. The
proposal had been supported by all four members of the drafting committee as well as by Cambaceres. They explained that the rente
foncie're was an excellent arrangement for encouraging improvements
to land while increasing the number of proprietors. A person with
uncultivated land would transfer it to someone else whose only asset
was his willingness to work, and that person would have every incentive to do so, since he would become the owner.239 According to
Cambaceres, the law abolishing nonredeemable rentes foncieres "is
not founded on the principles of legislation; it was a matter of politics,
a matter of circumstance. ..."240
238. Colin, Capitant & Juillot de la Morandiere, supra n. 2, at II, ? 26, p. 29;
Garaud, supra n. 208, at 258; Soboul, supra n. 208, at 36.
239. Discussion du Conseil d'6tat, Proces-verbal de la seance du 7 pluviose, an XII
(28 jan. 1804), in Fenet XI, 56-59 (Cambac6r6s, Tronchet, Malleville); 62-64
(Cambac6r6s); 66-67 (Bigot-Preameneu); 68 (Malleville); 69 (Portalis). For similar remarks, see Portalis, supra n. 14, in Fenet XI, 73-75. Indeed, Malleville claimed that
France had been repopulated by means of such arrangements after the barbarism and
internecine war that followed the fall of the Roman Empire. Because of such arrangements "the great majority of the people became proprietors again and were able to
recover their liberty, to cut down forests, and to dry marshes... ." "It is true," he
added, that with the rente fonciere, the lessors (bailleurs) required seigeneurial rights
to maintain their superiority, but these rights are not essential to this contract...."
Id. at 57-58. Pelet seconded his point, noting that "the departments of the south have
always demanded the reestablishment of rentes foncieres. They need them more than
the north because the land is not fertile." Id. at 60.
240. Id. 63.
1994]
503
The principal objection, which was raised by Berenger, Crette,

and Regnaud de Saint-Jean-d'Angely was that there would be inequality between those who paid heavy rents and those who collected
them.24' Pelet and Malleville answered that there would be no more
inequality with the rente fonciere than without it.242 Bonaparte, who
had been attending the session, echoed the fears of inequality and
said that those owed rents under a rente fonciere might be more likely
to become absentees, spending their money in the city.243 No one
asked the First Consul why that would be so, but the Conseil d'etat
voted to reject the proposal to reestablish rentes foncieres.244
Three months later, Bigot-Preameneu was back with another
suggestion. It had occurred to him, he said, that despite the last vote,
rentes foncie?resmight someday be considered legal under the Civil
Code because the law is deemed to permit whatever it does not prohibit. To prevent that eventuality (for which he had argued the first
time around), he had a new proposal, the substance of which was
adopted without debate and passed into Article 530. It permitted
rents subject to a right of redemption.245 In presenting the provision
to the Corps Legislatif, Portalis explained that the rentes foncieres
were beneficial, and "we would have shocked the general spirit of the
nation without any deign in utility by reestablishing nonredeemable
rents."1246
The compromise struck in Article 530, as we have seen, allowed

the parties to enter into an arrangment with much the same economic consequences as the old rente fonciere. The person owed rent
could claim the land if the rent was not paid, and with a little ingenuity, could defeat the right to redeem even if that right was thought to
be economically significant. It was written into the Code by a drafting committee that favored allowing rentes foncieres without a redemption privilege. Indeed, the drafting committee had wished land
law to look, prospectively, much as it would have looked had the original recommendations of the Feudal Committee been followed.
After the Code was enacted, however, the parties sometimes did
not cast their arrangment as a sale under Article 530. The courts
came to the rescue by rediscovering emphyt6ose. According to the
Cour de cassation, the highest French court, "the Code neither
changed nor modified the rules concerning emphytgose."247 There241. Id. 61-62 (Berenger); 64-65 (Cretet); 68-69 (Regnaud de Saint-Jean-d'Angely).
242. Id. 65 (Pelet); 68 (Malleville).
243. Id. 68.
244. Id. 69.
245. Discussion du Conseil d'etat, Proces-verbal de la seance du 19 ventose, an XII
(10 mars 1804), in Fenet XI, 70. The final text, now the first paragraph of Article 540,
was approved at the Discussion du Conseil d'etat, Proces-verbal of 26 ventose, an XII
(17 mars 1804), in Fenet XI, 73.
246. Portalis, supra n. 14, in Fenet XI, 75.
247. Cass. req., 19 juill. 1832, S. 1832.1.531.
504
[Vol. 42
fore, the party paying rent pursuant to such an arrangement had a

type of real property. The courts concluded that he could use the possessory remedies of the Code against third parties (which at that
time, a lessee could not);248he could mortgage his interest;249 his interest would pass as real property on his death;250and the state could
treat its transfer as one of real property.251
It is fanciful to think the drafters themselves imagined that emphyteose would survive the enactment of the Code. Had they done so,
they would not have attempted to preserve non-redeemable rentes
foncieres. Indeed, during a discussion of the rules on mortgages,
Tronchet was asked if an emphyteose could be mortgaged, he answered that there was now no occasion to speak of emphyteose. In the
Old Regime, the purpose of this arrangement had been to avoid seigneurial rights, and so it now had become pointless.252
Nevertheless, 19th century courts not only recognized such an
arrangement but sometimes explained it in the same way as the Old
Regime jurists. The Cour de cassation said in 1822 that it "divide[s]
the ownership
of the domaine
..
. into two parts: one forming the
domaine directe ...,

the other called domaine utile...."253
Sometimes, the courts spoke of a temporary transfer of property to the
party paying rent.254 The 19th century jurists rejected these formulations but recognized emphyt6ose as a type of real property.255 They
thus acknowledged that two people could hold real property rights in
the same land. The legal consequences were the same as if these
rights had been called domaine directe and domaine utile. Emphytheose was recognized as a type of real property by the law of June 25,
1902, which is now included in the Code rurale. Neither the courts,
the commentators or the statute recognize a mandatory right of
redemption.
Though a rente fonciere under Article 530 can be perpetual, emphyteose was thought to be governed by the law of December 18-29,
1790, which forbids rental for a period of more than ninety-nine
years. That rule was included in the law of June 25, 1902. If feudal248. Cass. civ., 26 juin 1822, S. 1822.1.99.
249. Cass. req., 19 juill. 1832, S. 1832.1.531; Cour royal, Paris, 10 mai 1831, S.
1831.2.152; Cour royal, Douai, 15 dec. 1832, S. 1833.2.65.
250. Cass. civ., 24 juill. 1843, S. 1843.1.830.
251. Cass. civ., 1 avr. 1840, S. 1840.1.433; Cass. civ., 18 mai 1847, S. 1847.1.623.
252. Tronchet, Discussion du Conseil d'etat, Proc6s-verbal de la seance du 5 ventose, an XII (25 fdv. 1804), in Fenet XV, 360.
253. Cass. civ., 26 juin 1822, S. 1822.1.99, 101; Cour royal, Paris, 10 mai 1831, S.
1831.2.152, 154.
254. Cass. civ., 1 avr. 1840, S. 1840.1.433, 435; Cass. civ., 24 juill. 1843, S.
1843.1.830, 831; Cass. civ., 18 mai 1847, S. 1847.1.623, 624.
255. Merlin, Recueil alphabdtique des questions de droit (4th ed. 1828), III, v. "emphytdose" V.viii pp. 648-51; Duranton, supra n. 33, at IV, no. 80, pp. 70-76;
Demolombe, supra n. 40, at IX, no. 485, p. 391 (acknowledging emphytdose had been
recognized as such in the courts but arguing that doing so contradicted the Code).
1994]
505
ism means that one cannot rent property for longer than ninety-nine
years, then we must conclude that feudalism was abolished by the
Revolution though not by the Civil Code. We would also have to conclude that feudalism still exists in other Western industrialized countries. Indeed, the only reason for defining feudalism that way is so
that the French Revolution will have abolished it in France. Even
then, imposing a ninety-nine year limit on the term of rentals is not
the sort of change one would call a reconceptualization of the law of
property.
III.
CONCLUSION
The Code did not rebuild the law of property, contract or tort on
new and individualistic principles. Indeed, it was drafted in what
one can only describe as the trough between two intellectual waves: a
wave of natural law theory that crested in the 16th and 17th centuries, and a wave of individualistic will-centered theory that did not
emerge clearly until the 19th century. To the extent the drafters
were guided by general principles at all, they used those of the natural lawyers which were already old-fashioned.
The principles of the Revolution that did influence the drafters
were a republican vision of law and the principle of human equality.
The republican vision, however, was rejected by the drafters themselves, and the principle of equality did not lead to a reshaping of
private law. Although the Code is often said to have abolished feudal
property, it is hard to find much of economic consequence that
changed.
Some scholars seem to think that unless the Code made great
and revolutionary changes it would not be worthy of admiration. According to Portalis, some people felt that way when the Code was
drafted. They complained that they found "no grand conception" of
civil law in it. They found only a reworking of Roman law, ancient
customs, and ancient maxims. Portalis asked them what they meant
by a grand conception. A bold novelty, after the manner of Solon or
Lycurgus? Such novelties, he said, are often brilliant errors.256
Indeed, it is odd to think that the Code would be more admirable
if it had been founded on principles that were revolutionary at the
beginning of the 19th century and outmoded by the 20th. It would be
more in the spirit of Portalis to recognize that often, "[n]ew theories
are the systems of a few individuals: ancient maxims are the spirit of
centuries."257
256. Corps Idgislatif, Presentation et expose des motifs par M. Portalis, s6ance du 3
frimaire an X (24 nov. 1801), in Fenet VI, 38-40.
257. Id. 38-40.

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Myths of the French Civil Code

Author(s): James Gordley

Myths of the French Civil Code

THE AMERICAN JOURNAL OF COMPARATIVE LAW

OF THE 19TH CENTURY

MYTHS OF THE FRENCH CIVIL CODE

THE AMERICAN JOURNAL OF COMPARATIVE LAW

MYTHS OF THE FRENCH CIVIL CODE

THE AMERICAN JOURNAL OF COMPARATIVE LAW

MYTHS OF THE FRENCH CIVIL CODE

to explain, why, in Roman law, unowned property such as fish and

THE AMERICAN JOURNAL OF COMPARATIVE LAW

MYTHS OF THE FRENCH CIVIL CODE

THE AMERICAN JOURNAL OF COMPARATIVE LAW

MYTHS OF THE FRENCH CIVIL CODE

With contract as with property, the argument that the Code

THE AMERICAN JOURNAL OF COMPARATIVE LAW

MYTHS OF THE FRENCH CIVIL CODE

the parties subscribed may say.65 In an onerous contract, a party

THE AMERICAN JOURNAL OF COMPARATIVE LAW

According to Domat, once one enters into an agreement of a given

MYTHS OF THE FRENCH CIVIL CODE

In these matters, the question of law or morality

is subordinated to the question of planning or administration."17'

For Portalis, then, the elements of substantive justice in the earlier

71. Portalis, supra n. 4, in Fenet, I, 510.

THE AMERICAN JOURNAL OF COMPARATIVE LAW

MYTHS OF THE FRENCH CIVIL CODE

arguments from the German jurist Thomasius.84 Portalis responded

THE AMERICAN JOURNAL OF COMPARATIVE LAW

There really is little else to indicate the drafters subscribed to an

MYTHS OF THE FRENCH CIVIL CODE

THE AMERICAN JOURNAL OF COMPARATIVE LAW

106. Demolombe, supra n. 40, at XXIV, ? 194.

MYTHS OF THE FRENCH CIVIL CODE

THE AMERICAN JOURNAL OF COMPARATIVE LAW

natural lawyers such as Grotius, Pufendorf, Domat, and Pothier.'21

In the Code, the fault principle is stated in Articles 1382 and

MYTHS OF THE FRENCH CIVIL CODE

that caused for the acts of persons for whom he is responsible or

THE AMERICAN JOURNAL OF COMPARATIVE LAW

masters and employers cannot escape liability by proving the absence

Other Traces of 19th Century Principles

MYTHS OF THE FRENCH CIVIL CODE

THE AMERICAN JOURNAL OF COMPARATIVELAW

chical despotism;"143that they emerged from the chaos of feudalism

MYTHS OF THE FRENCH CIVIL CODE

Like the revolutionary ideologies of our own century, however,

THE AMERICAN JOURNAL OF COMPARATIVE LAW

presenting his draft to the National Convention, he tried to explain

MYTHS OF THE FRENCH CIVL CODE

To have goods to meet his needs;

THE AMERICAN JOURNAL OF COMPARATIVE LAW

MYTHS OF THE FRENCH CWIL CODE

earlier. He described the power granted the judge as "despotic,"'76

THE AMERICAN JOURNAL OF COMPARATIVE LAW

cerned the speculative sciences." "Unfortunately," the Roman texts

MYTHS OF THE FRENCH CIVIL CODE

getical commentaries on the texts.185 Doubtless, there was a natural

In an important book in 1899, Frangois Geny showed that the

THE AMERICAN JOURNAL OF COMPARATIVE LAW

Code is regarded as part of a self-contained French law although its

MYTHS OF THE FRENCH CIVIL CODE