This is an introduction to my upcoming series of blog posts on the topic of pre-contractual duties of information in English, French and EU contract law.
“[an] investigation of the scope of the “duty to disclose” on a comparative law basis is most rewarding; it leads us straight to the heart of the philosophy underlying the law of contracts”1
The issue of pre-contractual information duties takes us to the very core of European private law, which must wrestle with competing conceptions of the negotiation process. How one views this stage, be it as an adversarial, or cooperative adventure, or even a hybrid thereof, will invariably inform the scope of these obligations. This is, arguably one of the areas where the divide between common and civil law is the most apparent. As such, a comparative study of the English and French approaches seems an opportune way to delve into this fascinating debate. This is even more so the case in light of the continuing pressure towards the development of common approaches at the European level.
It is submitted, in line with Sefton-Green’s reasoning2, that information duties not only imply positive duties to provide information but also providing accurate and non misleading information. This series of blog posts will, therefore, look at both types of information duties.
Accordingly, I shall show that English and French contract law, in light of their competing dogmatic underpinnings, have markedly different approaches to positive information duties, and, therefore, present significant obstacles to harmonisation. Taking this into account, I shall argue that the new Consumer Rights Directive represents a timid step towards harmonisation in this area.
To do so, I shall first consider how both legal systems deal with defective information at the pre-contractual stage (Part II), I shall then evaluate the extent to which they recognise a positive duty of information and the means used thereto (Part III). This will lead me to evaluate the acquis communautaire in this area and the new Consumer Rights Directive in light of the challenges of harmonisation (Part IV).
- Friedrich Kessler and Edith Fine, ‘Culpa in Contrahendo, Bargaining in Good Faith, and Freedom of Contract: A Comparative Study’  77 Harvard Law Review at 438 [↩]
- Ruth Sefton-Green, ‘Duties to Inform versus Party Autonomy: Reversing the Paradigm (from Free Consent to Informed Consent)? – A Comparative Account of French and English Law’ in Geraint Howells, André Janssen and Reiner Schulze (eds.), Information Rights and Obligations (Ashgate 2005) at 174 [↩]