개정 프랑스 채권법상 사기, 강박의 의사표시

The provisions concerning fraud and threat included in the recently undertaken reform of french civil code show some interesting issues. Regarding fraud and threat the reform eliminates some outdated provisions which had lasted from the day on which the French Civil Code was enacted and amends new articles on the basis of the doctrines developed by the jurisprudence. With regard to fraud the Order (Ordonnance n° 2016-131 dated 10 February 2016) codifies fraudulent silence which was already permitted by the French Supreme Court. But the new article doesn't presuppose the duty of disclosure. Therefore the relation between fraud and mistake is somewhat uncertain und should be still discussed. For now the prevailing opinion is that only a fraudulent intention and no breach of duty of disclosure is required. Furthermore the Order provides fraud by third persons. To the third person for whose acts a contract party is responsible belong the party’s representative, employee, business manager and standing surety. In the case of any other third person who commits fraud and the contract party has been led to conclude the contract, the party can avoid the contract if the third person is the other party’s complice. Finally the Order abolishes the distinction drawn between dol principal (without which the victim would never have entered the contract at all) and dol incident (where the victim would have entered the contract but on different, less onerous terms). Regarding threats it is notable that the Order codifies the economic duress which the french case law has developed in order to fill the gap that stemmed from the lack of a general provision of excessive benefit and according to the 1804 French Code Civil only certain contracts can be avoided on account of lésion (contractual imbalance). New article 1143 provides that there is also duress where one party exploits the other’s state of dependence in order to obtain an undertaking to which the latter would not have agreed if he had not been in that situation. The objective and subjective prerequisites for economic duress is almost same with ones demanded by our case law.