The French Subjective Theory of Contract: Separating Rhetoric from Reality

Abstract

Most of the world, including Anglo-American jurisdictions, conforms to the objective theory of contract, which posits that contract formation is determined by reference solely to external evidence of manifestations of assent. On the other hand, France uniquely clings to the rhetoric of its “subjective” theory of contract, championing the freedom of the individual and the autonomy of the will. France’s association with a subjective theory of contract is widely recognized and assumed. One would initially assume that the French subjectivist philosophy would result in dramatically different outcomes in actual cases, when compared with the objectivist rules-based perspective that obtains in most of the rest of the world’s jurisdictions. However, an examination of several actual areas of contract formation in both the French subjective system, as well as the objectivist common law system, reveals that the practical difference in actual outcomes is surprisingly small. This article looks at several areas of contract formation in particular. The revocability of offers provides an interesting case study in that the two legal systems start out from very different beginning points, but through a series of labyrinthine doctrinal paths, end up in a very similar endpoint. Just as importantly, in several other areas, the rules in the two systems are quite similar to one another from the outset, with many of the so-called “objectivist” common law rules turning out to be more subjective, and some even having been borrowed directly from the French. The rules compared include the communication of acceptances, the death of offerors, mistakes, and interpretation of contracts. The picture which emerges from this analysis is that the French “subjective” contract system has much in common with the “objective” contract system in Anglo-American jurisdictions and elsewhere (and vice versa), in spite of entrenched perception to the contrary.