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Defining as “bastard” any child born outside of legitimate marriage, sixteenth-century French jurists alleged that all such offspring were tainted with a mark of criminal unworthiness stemming from their illicit origins. This mark, rather than uncertain paternity, was the basis for their exclusion from both paternal and maternal inheritance. Jurists grounded this doctrine on diverse elements of “French law”—a concept originating in this period—particularly the droit de bâtardise, the right of the king to confiscate the estates of extramarital offspring who died without legitimate descendants. The doctrine helped to protect lineal interests, complementing the contemporaneous efforts of the royal courts to assure parental control over marriage choice through the assertion of appellate jurisdiction over disputed nuptials. In spite of the doctrine, children born of parents free to marry continued to inherit from their mothers under the terms of Roman law in the south-eastern province of Dauphiné.

The chapter examines the law of termination for breach of contract in England and France. It shows that the differences between the two jurisdictions are extensive. Whereas English law confers a relatively broad right to terminate on the injured promisee, French law aims to preserve the contractual bond created by the parties. The conclusions drawn from these findings reinforce the argument made in the monograph that the desire to protect contractual performance in England is in many circumstances equivocal. A second and connected conclusion is that the remedial regimes of both English and French law are internally coherent and consistent. Comparison of the English and French approaches to termination for breach of contract also serves to illustrate that the defaulting promisor may himself have an ‘interest in performing’ the contract that is deserving of protection.

This chapter explores the Continental position with a view to explaining the differences and similarities identified. Focusing on the French and German systems, the first part describes the doctrinal positions in each of these jurisdictions and illustrates their practical operation in reaction to situations in which strict or constructive liability arises under English criminal law. The second part comments on the findings: to what extent are the Continental approaches really different? What has historically driven these systems to move away from strict and constructive liability? Can its remnants be reconciled with the rationales offered for avoiding it? And to the extent that Continental criminal law does without crimes of strict or constructive liability, how does this affect the law's capacity to meet its preventative and desert-oriented objectives? The chapter concludes with some observations on the merits and limitations of the Continental approach.

This chapter considers the specific remedies available in England and France. It shows that, in stark contrast with the position in France where specific remedies are unequivocally the rule, the availability of specific relief in England is limited, with remedies such as specific performance and mandatory injunctions being very much the exception. The chapter shows that a multitude of factors are behind the difference between England and France. The comparatively moderate protection afforded by English law to the performance interest is subjected to scrutiny. Consideration is given to whether the proffered justifications for the narrow availability of key specific remedies are sustainable. By reference to the approach of French law, it is contended in the chapter that, should there be a desire in England to improve protection of the performance interest, this could be achieved partly through the development of these remedies.

The focus of this chapter is on the exploration of some central aspects of the law of damages which shed light on the degree to which the performance interest is protected in English law. The protection afforded to the performance interest by damages in English law is contrasted with the way in which the remedy operates in France. The first three sections of this chapter discuss how damages awards are measured, damages for non-pecuniary loss and damages for loss suffered by third parties respectively. In the fourth section, consideration is given to a common law limit on the right to recover compensatory damages which is often regarded as being incongruous with the protection of the performance interest, namely loss mitigation. The final section departs from the compensatory theme of the chapter by considering gain-based monetary awards. The chapter shows that whilst the protection of the performance interest through damages is stronger in France than in England, courts in the latter jurisdiction have recently exhibited greater willingness to adopt more protective and flexible solutions for contractual default.

The second European directive that impacts significantly on liability for products is the Directive on certain aspects of the sale of consumer goods and associated guarantees enacted in May 1999, which is referred to as the Consumer Guarantees Directive or the 1999 Directive. This chapter looks first at very broad differences between the Product Liability and Consumer Guarantees Directives; then at the debates in France and the UK concerning how the Consumer Guarantees Directive should be implemented; and finally at the substantive legal impact of this Directive on French and on English law.

This chapter offers more general conclusions to the work as a whole in terms of the relationships between the broad bodies of law under consideration and any lessons to be drawn for the harmonisation of laws in Europe. It discusses the differences between the Product Liability Directive and the Consumer Guarantees Directive; the meaning of fault under English and French laws; the relationship between the interpretation of substantive legal rules, the legal procedure by which they are applied to facts, and the judicial institutions which decide the outcome; the impact of the French and English laws of liability for products from the perspective of administrative law as well as of private law; the connections between legal institutions, legal processes, and substantive laws within Member States; and the European harmonising effect of the two directives.

This chapter discusses English law governing the sale of goods. From the starting point of a general immunity enjoyed by sellers expressed by the catchy (if un-Roman) tag caveat emptor, English law has developed a number of different bases of liability based on the law of sale, or appearing in its context. As in the French law, under the garantie légale or for défauts de non-conformité, liability is strict in the sense that the buyer does not need to show ‘fault’ or negligence for liability to be established; as in French law, ‘liability’ extends to rights in a buyer to claim termination of the contract and restitution of the price, as well as to damages. And as regards both systems, we can see the growing significance of consumer sales in the development of the rules and concepts used by the law.

This chapter suggests that French employment law has recently entered an acute phase of rapid and probably quite fundamental change; it is felt that nothing less than un bouleversement (a complete overturning of the existing order) is in the course of occurring, though not by any means solely engendered by the Presidential Election of 2007. Those embarking upon the study of employment law quickly come to realize that it is a highly political or politicized legal subject whose boundaries and purposes are more hotly contested than with most legal subjects. In this, French employment law is no different from that of the United Kingdom or other European countries. What is special to the French system is the extent to which one can express those difficulties by locating the subject in relation to the distinction between public law and private law.

This chapter introduces the regulatory regime for government contracts in English law, highlighting three key features of that regime. First, although government contracts are commonly thought of as a matter for private law, public law rules — both common law and statutory — play an important role in their regulation. Second, it is not possible to understand the formal legal regime without considering internal government guidance. Often, this is more important than common law or statute as a source of rules for officials. Third, it is essential to consider the interaction between ‘domestic’ law and EU law (and the Government Procurement Agreement at the international level) in regulating the procurement process in particular. The chapter also gives an overview of the way in which government contracts are regulated in two other jurisdictions, French law, and US federal law. Both jurisdictions offer important comparisons and contrasts with English law's approach.

This chapter focuses on a debate that has recently been ignited in England as to whether there may be a role for punitive damages for breach of contract. Should there be a desire to increase the protection afforded to the performance interest by English law, might punitive damages be the answer? It is suggested in this chapter that English law should proceed cautiously. Absent wider reform, the adoption of punitive damages may lead to incoherencies in a system which has hitherto shown reluctance to consider contractual default as being reprehensible. Legal intervention by way of regulation in particular contexts may be more appropriate than punitive damages. Comparative analysis of French law is instructive. In France, the advent of a punitive damages regime is a distinct possibility following proposals of the Catala reform project. In contrast with English law, by reason of the strong emphasis on performance in French remedies for breach of contract, there would be no incongruity in French courts making punitive awards. This contrast is relied upon to reinforce the argument that the introduction of punitive awards into English law would risk creating incoherency and that caution should be exercised before any such reform is embarked upon.

This chapter aims to provide accounts of the most significant similarities and differences of legal rules on the issues of damages caused by administrative wrongdoings (economic loss, loss of a chance, moral damages, damages for injury to the person, death and damages liability, and property damages) in English and French laws. Though French law holds a wider jurisdiction than English law, it is flawed — liberalism in their system is sometimes more apparent than real — with restrictions and control mechanisms at play, such as rare findings of requisite entry and careful causation examinations. The French judiciary takes into consideration influential policies regarding types of recoverable loss and the quantification of damages. The measurement of damages for personal injury and dependency loss in particular are seemingly unfavourable in the French system.

This chapter deals with how the Council acts as both legal advisor of the government and highest administrative judge. It identifies the key issues and changes that lie before the French administrative justice system in the years ahead. It deals with problems such as how to address the massive increase in the number of claims; how to reconcile determining an ever increasing number of claims and retaining high quality standards; how to make the Council of State and administrative courts more effective; and what approach they should follow in order to fulfill adequately their mission in the framework of European law.

This chapter addresses the question of English legal nationalism by analyzing England's relation to France in terms of competing accounts of law French, the much-ridiculed professional language of the common law. It argues that legal Normanism can best be understood as the historical and structural internalization of France in English institutional life and, indeed, in the English language. Legal humanists and common lawyers worked to overpower the potentially embarrassing implications of law French for English national law by relating the common law to an exemplary classical past and by remaking the Norman Conquest itself as its own reiteration and reversal in the Anglo-French wars of the fourteenth and fifteenth centuries. The chapter argues that William Shakespeare's English histories draw powerfully on their own metadramatic resources to represent France as a continuous historical presence within England, a shadow jurisdiction to the centralizing royal authority they represent in the person of Hal/Henry V. As these plays argue it, national sovereignty, like the power of the stage itself, emerges as the hypothetical projection of jurisdiction in and through its alternatives.

This chapter looks in turn at the background to the Product Liability Directive and the key decisions of the European Court of Justice in 2002, which declared that its purpose was to effect ‘complete harmonisation’ of the law within those matters that it governs; at the different processes of its implementation in the UK and France; and then at the review and reform of the directive at the EU level. This Directive is a key example of the problems facing legal systems in implementing directives in an area already broadly governed by national law. While some of these problems are shared by English and French law, some are significantly different, stemming in particular from the different roles of legislation in a codified and non-codified system and from the different way in which the central distinctions between public and private law, and between civil and criminal liability, are treated.

This chapter explores the Product Liability Directive’s provisions in more detail, looking at how they have been implemented and interpreted by French and English lawyers. In the case of French law, we still have to rely on la doctrine, given that there are only one or two decisions applying the loi of 1998 itself: the jurisprudence of the 1990s which ‘implemented’ the Directive can be only an approximate guide given its formal basis in other provisions of the Civil Code and its doubtful present status. In the case of English law, there are a handful of decisions applying the 1987 Act, including the important decision in A v The National Blood Authority. There are also two important decisions of the European Court itself in Commission v United Kingdom and Veedfald v Århus Amtskommune.

French tradition combines the privileged position given to written law, and especially to codification over two centuries, with the desire to control ‘judicial authority’ by limiting the importance of jurisprudence and by avoiding general judgements. France reinforces this well established domestic law tradition on the international level by the primacy that is granted to the expression of the will of the state, which goes hand in hand with a distrust of spontaneous or vague obligations, ranging from soft law to jus cogens. For a long time French judges had a global approach to international law, without any distinction of categories, either on a material basis (humanitarian law), on a geographic basis (European law), or on a legal basis (self-contained regimes). This approach is problematic in reference to Community law, which, from these three points of view is not a law like others, but by maintaining the approach Community law has become a spearhead of progress for international law.