Pre-Contractual Duties of Information in English & French law and the Consumer Rights Directive: Conclusion (5/5)

This is the conclusion of my series of blog posts on the topic of pre-contractual duties of information in English, French and EU contract law.

Go to: Introduction -> Part II -> Part III -> Part IV -> Conclusion

As we have seen, there is a certain level of convergence between French and English law with regards to false representations inducing a party to enter into a contract. This pre-contractual information duty to not mislead relies on different concepts but produces broadly similar outcomes.

The chasm occurs when one turns to positive duties to provide information. English law still largely abides by contractual freedom and, accordingly, does not recognise any broad doctrine of contractual behaviour involving a positive duty of information at the pre-contractual stage. There has, nonetheless, been a move towards a dynamic market individualistic approach and, therefore, some intervention, notably on consumer grounds, has been accepted. French law, by contrast, has developed an obligation d’information based on the concept of good faith in contracting. This is a remarkable collaborative framework which attempts to put weaker parties on a more equal footing by ensuring they possess all the facts which may influence their decision to contract1.

Reconciling these differences is a considerable challenge, especially when attempting to draw up common European principles of disclosure. It is interesting to note that article 4:107 of the Principles of European Contract Law, relating to disclosure, clearly endorses the French and civil law approach. Yet in doing so, it envisages that the question of whether a duty to disclose exists will rest upon, inter alia, not only the expertise of the party and the importance of the information to the other party, but also the cost of acquiring such information and whether the other party should have reasonably been able to acquire it by himself2. As Gilliker convincingly argues, this represents “a merger of common and civil law concerns”3 and paves the way for a potential compromise.

Common principles will, however, be meaningless if national courts are unable to transcend their dogmatic context and develop a consistent interpretation of these4. As such, one may wish for strong external intervention, perhaps from the European Court of Justice which could, perhaps, be accompanied with a focus on an economic perspective analogous to that adopted in EU competition law5.

This prospect appears fanciful when one considers the Consumer Rights Directive, which, as we have seen, is disappointing in its lack of ambition. Given the limited scope of maximum harmonisation, traders targeting consumers in other EU countries will still be faced with multiple standards of information duties, especially those falling under the umbrella of ‘general concepts of contract law’6. As a result of article 6 of the Rome I Regulation7, these traders will not be in a position to exclude these national information duties.

Therefore, the limited scope of the changes introduced by the Consumer Rights Directive can only increase the pressing need for a Common European Sales Law. This would, in the absence of a fully fledged European contract law, provide us with an optional instrument, that would be classified as a ‘second national regime’ under the Rome I Regulation8, and thus finally bring about a uniform trading platform for business and consumers throughout Europe.9

  1. Pierre Legrand Jr, ‘Information in formation of contracts: a civilian perspective’ [1991] 19 Canadian Business Law Journal at 336 []
  2. 4:107(3);  See also: Draft Common Frame of Reference, article II.–7:205 []
  3. Paula Gilicker, ‘Regulating Contracting Behaviour: The Duty to Disclose in English and French Law’ [2005] 5 European Review of Private Law at 636 []
  4. Ibid. at 639 []
  5. See for eg. Simon Bishop and Mike Walker, The economics of EC competition law : concepts, application and measurement (3rd ed. Sweet & Maxwell 2010); Kim Lane Scheppele, Legal secrets : equality and efficiency in the common law (University of Chicago Press 1988) []
  6. Peter Rott, ‘Information obligations and withdrawal rights’ in Christian Twigg-Flesner (ed.), The Cambridge Companion to European Union Private Law (Cambridge University Press 2010) at 200 []
  7. Rome I Regulation’ – Regulation 593/2008/EC of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations []
  8. Martijn Hesselink, ‘How to Opt into the Common European Sales Law? Brief Comments on the Commission’s Proposal for a Regulation’ [2012] 1 European Review of Private Law at 195 []
  9. Ewoud Hondius, ‘The Proposal for a Directive on Consumer Rights: The Emperor’s New Clothes’, [2011] 2 European Review of Private Law at 164; Christoph Busch and Ronny Domröse, From a Horizontal Instrument to a Common European Sales Law: The Development of European Consumer and Market Law in 2011 [2012] 1 Journal of European Consumer and Market Law at 50 []