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JAMES GORDLEY
45
460
[Vol. 42
In the second part, we will examine the principles of the Revolution that did influence the drafters. We will see that even these did
not lead to a significant reshaping of French private law.
I.
THE PRINCIPLES
There are two reasons, prima facie, to doubt that the drafters
refounded private law on new, individualistic principles. First, they
say themselves that they are not breaking with the past. Portalis,
the chairman of Bonaparte's drafting committee, explained that "instead of changing the laws, it was almost always more useful to offer
the citizens new reasons for loving them," since "history shows us
hardly two or three good laws promulgated in the space of several
centuries."4 The rules concerning property law were therefore "conformable to that which has been practiced in every time. We have
only changed or modified those which were not any longer in accord
with the present order of things or of which experience has shown the
inconvenience."5 "[I]n treating contracts," he said, "we have developed those principles of natural law applicable to all."6 As we will
see, Portalis did not think these principles were newly discovered.
They had been implicit in Roman law and been made explicit by 17th
century natural lawyers such as Domat. Portalis hardly mentioned
the law of tort. Yet property, contract and tort were the fields in
which, according to Savatier, Halperin, and many others, the innovations were revolutionary.
Second, even if these drafters, intelligent as they were, had
wished to rebuild private law on new principles, they did not have
time. Bonaparte, who thought he knew how to get a job done, gave
them a short deadline, and in fact, Portalis' draft of the French Civil
Code was produced in four months. Most of this time, one suspects,
was spent on the law of marriage and family property and inheritance which had to be rewritten and made uniform.
Although no one knows how they spent their time, it is striking
that about two-thirds of the texts of the Code have close parallels in
the works of Domat and and the 18th century jurist Pothier. Such
parallels can be found in nearly all the provisions governing contracts, property, and tort. It is equally striking that when Portalis
delivered his report on the activities of the drafters, fourteen pages of
the report in the Fenet edition were an introduction, three and a half
4. Portalis, "Discours preliminaire prononce lors de la presentation du projet de
la Commission du gouvernement," in P.A. Fenet, Recueil complet des travaux
preparatoires du Code civil (1827; reprinted 1968), I, 467 [hereinafter cited as Fenet].
5. Id. 509.
6. Portalis, supra n. 4, in Fenet, I, 509. For similar remarks as to the lack of
innovation in the provisions on contract law in a previous draft, see Discours pr6liminaire prononce par Cambaceres, au Conseil des cinq cents, lors de la presentation
du 38. Projet de Code civil, messidor, an IV, in Fenet I, 174.
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concerned the nature of law, two concerned the use of droit ecrit and
customs as sources for the code, twenty-four pages concerned family
law, two domicile and citizenship, five and a half successions and testaments, and his concluding remarks consumed three-quarters of a
page. Six pages dealt with topics of contract law that were rather
remote from general theory including usury and mortgages. Only
two and one-quarter pages were spent on the rest of contract law and
the law of property. Tort law was scarcely mentioned. That does not
sound like someone whose revolutionary achievement was to
reformulate the law of property, contract, and tort.
Before Bonaparte had taken power, Cambaceres had chaired
commissions that produced three drafts which were never enacted.
The results are similar when one counts pages in the reports that
Cambaceres made on these drafts. In the first draft, there was onehalf page on property and one-half page on contract in general out of
twelve pages; in the second draft, one-half page on property and one
page on contracts in general out of ten and a half pages; in the third,
five and a half pages on property and contracts in general out of
thirty-six and one-quarter pages. Again, tort law was virtually
ignored.
The evidence usually cited to show that the drafters were innovating is a small number of provisions of the Code in which these
principles are supposedly expressed. With a few exceptions we will
examine later, no evidence is cited to show that these principles are
reflected in the rest of the Code. Consequently, even if these few provisions did express new and individualistic principles, this evidence
would indicate a rather superficial use of them. It would suggest that
the drafters stated these principles abstractly and appended a mass
of rules, said to follow from the principles, but actually taken from
the law of the Old Regime.
Recently, however, Alfons Burge has pointed out that there is no
reason to think that these few provisions express any new and individualistic principles.7 Bruge believes that the drafters were inspired, not by liberal ideas that became popular in the 19th century,
but by the statism of the 18th. Actually, as we will see, to the extent
the drafters were guided by general principles at all, these principles
had yet a different origin. They were commonplaces among the jurists of the 17th and 18th centuries who had taken them from the
founders of the natural law school, Hugo Grotius (1535-1645) and Samuel Pufendorf (1632-94), who had taken them, in turn, from 16th
century jurists such as Domingo de Soto (1494-1560), Luis de Molina
(1535-1600) and Leonard Lessius (1554-1623). These 16th century
jurists belonged to a group historians refer to as the late scholastics
7. A. Burge, Das franzdsische Privatrecht im 19. Jahrhundert zwischen Tradition und Pandektenwissenschaft, Liberalismus und Etatismus (1991), 3-149.
462
[Vol. 42
or the Spanish natural law school. They had formulated these principles in an effort to reconcile Roman law with the philosophical ideas
of Aristotle and Thomas Aquinas.
By tracing the principles of the drafters to these sources, we can
see that Bruge was correct to think that there is nothing modern or
individualistic about them. Individualistic principles were first discovered in these provisions by the 19th century interpreters of the
Code. By comparing their interpretations with the earlier natural
law ideas that influenced the drafters, we can see more clearly the
changes these 19th century jurists brought about.
A. Property
Article 544 is usually cited to show that the Code enshrines an
individualistic principle of property law.8 It states:
"Property is the right to enjoy and to dispose of things in the
most absolute manner provided that one does not make a
use of them that is prohibited by laws (lois) or regulations
(reglements)."
This provision paraphrases a passage in Pothier who speaks of "the
right to dispose of a thing at his pleasure, provided he does not violate the laws or the right of another: ius de re libere disponendi or ius
utendi et abutendi."9 In both cases, the meaning seems to be that one
can use one's property as one chooses. Pothier, interesting enough,
was describing the rights of the holder of a French feudal estate who
was entitled to use and alienate the land freely though he had to pay
feudal rents and duties to his "lord." Presumably, Pothier did not
have any new and individualistic principle in mind. There is no reason to think that Portalis did.10
Indeed, no starkly individualistic principle is suggested by the
statement in Article 544, which also appears in Pothier, that an
owner cannot make use of his property in a way prohibited by law or
regulation. To make Article 544 read more individualistically, modern French writers tend to gloss it-and the individualism is rather
8. See, e.g., Arnaud, supra n. 2, at 180; Carbonnier, supra n. 2, at III, 94; Colin,
Capitant & Juillot de la Morandiere, supra n. 2, at I, ? 232, p. 142; Halperin, supra n.
1, at 278; C. Larroumet, Droit civil (1985), II, ? 167, p. 95; Mazeaud, Mazeaud &
Mazeaud, supra n. 2, at I, ? 43, p. 63; Savatier, supra n. 3, at ? 2, p. 6; Weill & Terre,
Introduction, supra n. 2, at ? 95, p. 102.
9. R. Pothier, "TraitOdu droit de domaine de propriete," ? 4, p. 103, in Oeuvres
de Pothier (Bugnet ed. 1861), IX. For similar passages, see id. ? 14, p. 106; R. Pothier,
Introduction generale aux coutumes ? 100, p. 35, in Oeuvres, supra, I.
10. See Burge, supra n. 7, at 2-8. Villey and Arnaud ask instead, whether there is
any evidence that earlier jurists who used language like that in Article 544 had in
mind a modern, individualistic conception of the proprietor's rights. They conclude
that there is no such evidence. M. Villey, La Formation de la pens&ejuridique
moderne 239 (1968); Arnaud, supra n. 2, at 180-83. But the question is whether the
drafters of the Code had such a conception in mind.
1994]
463
more pronounced in their gloss." For example, Weill and Terre explain that though the use of property may be restricted by law and
regulations, "according to the conception [that inspired the article]
these provisions must be exceptional."12 Carbonnier's gloss swallows
the text:
"The Civil Code, in conformity with its liberal and individualist ideology, wished to proclaim as a principle that the
owner is not, in the exercise of his right, subject to any restriction whatever its source, not to other individual owners,
nor even to the state."13
If that is what the drafters really believed, they picked an odd way to
say it.
Other scholars, such as Halperin and Lydie, have pointed to
some of Portalis' remarks about property. He spoke of the right of
property as "the universal soul of all legislation."'4 He said that
property was a basic right, one of the foundations of society. He also
said that the institution of property must serve the common goodbut, Lydie explains, that statement was not a qualification of the
rights of the owner but simply an indication of Portalis' moderation
and good sense.15 Nevertheless, these remarks show only that
Portalis thought that property was a fundamental right, not that he
held an individualistic theory of property.
Indeed, as Halperin himself observes, Portalis and the Code treat
the right of property in much the same way as 17th century members
of the natural law school such as Grotius and Pufendorf. According
to him, however, these natural lawyers held a theory of property that
was modern and individualistic.16
Grotius and Pufendorf, however, had taken the central elements
of their theory from the 16th century late scholastics. They, in turn,
had merely been elaborating a theory formulated, in outline, by
Thomas Aquinas in the 13th century. According to this theory, the
right to property was a far more qualified or limited right than it was,
for example, for John Locke in the 17th century or for most French
jurists in the 19th.
In formulating this theory, Thomas put together elements he
found in canon and Roman law and in Aristotle. One ingredient was
a text collected in Gratian's Decretum, in which Saint Ambrose admonished rich people who failed to provide for the needs of the poor:
11. See Burge, supra n. 7, at 3-4.
12. Weill & Terre, Introduction, supra n. 2, at ? 95, p. 102.
13. Carbonnier, supra n. 2, at III, 94.
14. Halperin, supra n. 1, at 277, quoting Pr6sentation au Corps legislatif, et expose des motifs, par M. Portalis, seance du 28 ventose, an XII (19 mars 1804), in Fenet
XI, 133.
15. A. Lydie, Portalis et son temps "LeBon ggnie de Napoleon" 275 (1936).
16. Halperin, supra n. 1, at 56-58. Similarly, Arnaud, supra n. 2, at 10-11, 183.
464
[Vol. 42
'Let no one call his own what is common."17 The Ordinary Gloss to
this text, ascribed to the canon lawyer Johannes Teutonicus, suggested that this maxim applied literally in a state of necessity.18 It
cited a Roman legal text that said all the passengers on a ship had a
right to share the provisions if food ran short during a voyage.'9
Another ingredient was Aristotle's attack, in the Politics, on the
theory of his teacher Plato that all property should be held in common. If it were, Aristotle argued, there will be perpetual quarrels,
and those who labor much and get little will complain of those who
labor little and get much.20
Putting these ideas together, Thomas Aquinas argued that by
natural law, all things were to be used to meet the needs of everyone.
Private property, however, is not contrary to natural law. It is a
human institution modifying natural law to eliminate the disadvantages that would arise if all things were held in common: for example,
people would quarrel, and some would not work.2' The primary end
of property is, nevertheless, to meet human needs. Therefore, a person in urgent need who has no other recourse may lawfully take another's property.22
Late scholastics such as Soto, Molina, and Lessius founded their
theories explicitly on that of Thomas, and natural lawyers such as
Grotius and Pufendorf borrowed from them. While these authors developed these ideas in different ways, they all said that by nature or
originally, all things belong to everyone. They all described private
ownership as instituted to overcome the disadvantages of common
ownership, usually the ones mentioned by Aristotle and Thomas.23
They all said the rights of a private owner are therefore qualified, and
must yield in certain cases to the needs of another. The standard
example is necessity,24 but Grotius also suggested there is a right of
innnocent use: one person can use another's property if he can do so
without causing any loss or inconvenience.25 In addition, some of
these authors such as Molina, Grotius and Pufendorf used the theory
17. Gratian, Decretum D. 47 c. 8.
18. Gloss to Gratian, Decretum D. 47 c. 8 to commune. Similarly, Gloss to ibid. D.
1 c. 7, to communis omnium; Gloss to Decretales (Liber Extra) 5.18.3 to poenitaet.
19. Dig. 14.2.2.2.
20. Politics II.v.
21. Thomas Aquinas, Summa theologica (Biblioteca de autores cristianos, 3d ed.
1963)(Leonine text), II-II, q. 66, a. 2.
22. Id. II-II, q. 66, a. 7.
23. D. Soto, De iustitia et iure libri decem (1553), lib. 4, q. 3, a. 1; L. Molina, De
iustitia et iure tractatus (1614), disp. 20; L. Lessius, De iustitia et iure, ceterisque virtutibus cardinalis libri quatuor (1628), lib. 2, cap. 5, dubs. 1-2; H. Grotius, De iure
belli ac pacis libri tres (de Kanter-van Hetting Tromp ed., 1939) II.ii.2; S. Pufendorf,
De iure naturae et gentium libri octo (1688), II.vi.5; IV.iv.4-7.
24. Soto, supra n. 23, at lib. 5, q. 3, a. 4; Molina, supra n. 23, at disp. 20; Lessius,
supra n. 23, at lib. 2, cap. 12, dub. 12; Grotius, supra n. 23, at II.ii.6-7; Pufendorf,
supra n. 23, at II.vi.5.
25. Grotius, supra n. 23, at II.ii.11.
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466
[Vol. 42
"alarmed" that the article made the owners' rights subject to an unspecified degree of regulation. "[L]aisser faire and laisser passer are
the best regulations that one could make in the area of agriculture
and commerce." The drafters should have imitated a law of 1791,
that had protected proprietors by providing that they were free to
plant their crops and dispose of them as they chose. "It is difficult to
find all these rights clearly enough expressed in the words "to enjoy
and dispose of one's thing" especially when one reads the following
words, "provided that one does not make a usage prohibited by laws
and regulations."30
The court would have been more alarmed had it heard the tribune Gillet defending the article before the Corps Legislatif: "There is
no property so absolute that it is not subordinated in some way to the
interests of the property of another."31
A new individualistic theory of property is missing, not only in
the drafting history of the Code, but also in the early commentaries.
Such a theory starts to appear in the commentaries written about
mid-century, and then, one has no trouble spotting it.
Toullier, who wrote the first commentary on the Code, gave a
traditional natural law account of how at first no one owned the
earth, and its fruits belonged to the first person to take possession.
Property rights were established as the population increased since
otherwise no one would labor. His citations are to lawyers in the natural law tradition or influenced by it: Pufendorf, Pothier, Wolf,
Heinccius, Bynkershoeck and Blackstone.32 Duranton gave a similar
account in his early commentary although he cited fewer natural lawyers and he ascribed the transition from common to private property
to long continued possession which created a "moral relationship" between possessor and thing possessed.33
In defining property, Toullier and Duranton both quoted Article
544 without, however, adding any individualistic gloss to the word
"absolute."34 They then described the owner's rights in traditional
Roman law categories: the owner had the right to use a thing, a right
to dispose of it, and so forth. Indeed, Toullier is still so far from an
individualistic theory that he is timid about the traditional jus
abutendi, the right to abuse a thing. Pothier had illustrated it by
giving extreme examples in which a proprietor refused to cultivate
30. Observations pr6sent6es par les commissaires nomm6s par le tribunal d'appel
de Lyon, Fenet IV, 95-96. See Bruge, supra n. 7, at 7-8.
31. Discussion devant le Corps l6gislatif, discours prononc6 par le tribun Gillet,
10 pluviose an XII (31 jan. 1804), in Fenet XI, 331.
32. C.B.M. Toullier, Le Droit civil fran,ais suivant l'ordre du Code (4th ed. 182437), III, 41-46.
33. M. Duranton, Cours de droit fran,ais suivant le Code civil (3d ed. 1834), IV,
202-03.
34. Toullier, supra n. 32, at III, 54; Duranton, supra n. 33, at III, 210-11.
1994]
467
his land or threw a book into the fire,35 drawing the line, like other
natural lawyers, when there was a state of necessity: a merchant
could not let his grain perish in a famine.36 Toullier explained that
though the jus abutendi includes the right to consume a thing, "the
abuse of things that belongs to us may be without punishment, but it
is never permitted. Law and police regulations check this abuse in
several cases."37 Duranton observes that the "general interest ... is
even stronger than the right of property itself, and that is why the
owner cannot lawfully destroy his thing if this destruction could result in a prejudice to another."38
In contrast, later commentators such as Aubry and Rau, Laurent, and Demolombe no longer describe the origin of property at the
beginning of human society. They are not squeamish about the jus
abutendi,39 except for Demolombe who nevertheless conceded it is
"the inevitable consequence of one's absolute right to property."40
Rather than explaining how the disadvantages of common property
gave rise to private rights, they simply define property in terms of the
will of the proprietor. Thus according to Aubry and Rau, the definition in Article 544 is inadequate because it simply enumerates certain rights, such as that to enjoy a thing or dispose of it. Correctly
defined, "property ... expresses the Idea [sic] of the most complete
legal power of a person over an object and can be defined as the right
by virtue of which a thing is submitted in an absolute and exclusive
manner to the will and the conduct of a person."'4' Laurent explained
that a proprietor could use his thing however he wishes until prohibited by law or until he injured the rights of others.42 According to
Demolombe, "an absolute right, property confers upon the master a
sovereign power, a complete despotism over the thing."43
Having defined property as a seemingly limitless right over an
object, these writers faced a new theoretical difficulty. They had to
explain how the limitless rights of two adjoining landowners could be
limited vis-a-vis each other. While the Code contained many limitations on an owner's rights, it did not have a general provision governing the extent to which one person can use his land in a way that
interferes with the use of another. The omission seems to have been
a pure oversight. Both Pothier and Domat, interpreting a Roman
35. Pothier, Traite du droit de domaine de propriete, supra n. 9, at ? 5, p. 103.
36. Id. ? 14, p. 107.
37. Toullier, supra n. 32, at III, 57.
38. Duranton, supra n. 33, at IV, 212.
39. C. Aubry & C. Rau, Cours de droit civil fran9ais (1869-71), II, ? 191, p. 175; F.
Laurent, Principes de droit civil frangais (1869-78), VI ? 101, p. 135.
40. C. Demolombe, Cours de Code Napoleon (1854-82), IX, ? 544, p. 487.
41. Aubry & Rau, supra n. 39, at II, ? 190, p. 170.
42. Laurent, supra n. 39, at VI, ? 101, p. 135.
43. Demolombe, supra n. 40, at IX, ? 543, p. 485.
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[Vol. 42
text,44 had explained that there were limits to the smoke that an
owner could make and allow to go on a neighbor's land. The limits
depended, according to Pothier, on the quantity of smoke, and according to Domat, on the character of the neighborhood.45 Even without a
text, French courts recognized similar limitations early in the 19th
century.
Though the later 19th century commentators approved of such
limitations, their conception of property entangled them in theoretical problems that had not troubled Pothier or Domat. If the right to
property were absolute in the sense of unlimited, then any limitation
on what an owner could do with his property abridged his rights.
Thus according to Aubry and Rau, the "respective rights of [the] proprietors" of adjacent land were in a "conflict [that] cannot be resolved
except by means of certain limits imposed on the natural exercise of
the powers inherent in property."46 According to Demolombe, if all
proprietors could "invoke their absolute right, it is clear that none
would have one in reality." What would be the result? "It would be
war! It would be anarchy!" Similarly, Laurent thought that
"[a]ccording to the rigor of the law, each proprietor would be able to
object if one of his neighbors released on his property smoke or exhalations of any kind, because he has a right to the purity of air for his
person and his goods."47 If that were so, he admitted, the existence of
towns would be impossible.48 In a later volume of his work, Laurent
finally decided that "[t]he Code was wrong to say that the owner has
the right to enjoy and to dispose of his thing in the most absolute
manner... ."49 Nevertheless, he did not suggest any other way that
property could be defined.
Here we see here a feature of 19th century legal thought that we
will encounter again when we discuss contracts. A right is defined
abstractly in terms of the will rather than in terms of any purpose
that recognition of the right might serve. Thus defined, the right interferes with the purposes one would wish its recognition to serve.
No way to limit the right can be found in the definition. This problem
did not arise with Toullier, Duranton, the drafters of the Code, or the
older natural lawyers. It did arise in the mid-19th century because
then property was defined individualistically in terms of the subjection of a thing to the will of a proprietor.
44. Dig. 8.5.8.5-6.
45. R. Pothier, Traite du contrat de sociWtdApp. 2, Du voisinage ?? 235, 241, in
Oeuvres, supra n. 9, IV; J. Domat, Les Loix civiles dans leur ordre naturel (1713), liv.
1, tit. 12, sec. 4, 9-10.
46. Aubry & Rau, supra n. 39, at II, ? 194, p. 194.
47. Laurent, supra n. 39, at VI, ? 144, pp. 195-96.
48. Id.
49. Id. XX, ? 417 pp. 437-38.
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B.
469
Contract
470
[Vol. 42
In the Ethics, Aristotle described exchange as a type of commutative justice. While distributive justice secured for each citizen a fair
share of whatever wealth and honor the society had to divide, commutative justice preserved the share he had received.56 Thus, according to Aristotle, each party to an exchange had to give something
of equivalent value to what he received.57 In another passage in the
Ethics, Aristotle discussed the virtue of "liberality":the liberal person
disposed of his money wisely, giving "to the right people the right
amounts and at the right time."58 Thomas Aquinas put these ideas
together: when one person transferred a thing to another, either it
was an act of commutative justice that required an equivalent or it
was an act of liberality.
The need for an equivalent, according to Thomas, explained the
Roman law remedy for what was known in the Middle Ages as laesio
enormis. A Roman text provided that if a seller of land received less
than half the just price, he could demand that the buyer either make
up the difference or rescind the contract.59 Medieval jurists had generalized the remedy to buyers as well as sellers, and to other types of
contracts.60 Thomas explained that, in principle, an equivalent was
always required, but that, for practical reasons, civil law remedied
only large deviations.61
As I have described in detail elsewhere,62 the late scholastics
built a theory of contract on this groundplan that was then borrowed
by the 17th century natural lawyers. According to the theory, a party,
by expressing his will to be bound, might enter into either of two basic types of arrangements, a gratuitous contract in which he enriched
the other party at his own expense, or an onerous contract in which
he exchanged his own performance for one of equivalent value. Grotius and Pufendorf present elaborate schemes of classification in
which they show how the contracts familiar in Roman law can be fitted into these two grand categories.63 Domat and Pothier explain
that these are the two causes or reasons for making a binding promise.64 In the natural law theory, this classification meant more than
the tautology that a party either does or does not receive back something in return for what he gives. In a gratuitous contract, the donor
must actually intend to benefit the other party, and if he does not, the
contract is not a gratuitous contract whatever the document to which
56. Nicomachean Ethics V.ii.
57. Id. V.iv-v.
58. Thomas Aquinas, supra n. 21, at II-II, q. 61, a. 3.
59. Cod. 4.44.2.
60. J. Gordley, The Philosophical Origins of Modern Contract Doctrine 65 (1991).
61. Thomas Aquinas, supra n. 21, at II-II, q. 77, a. 1, ad. 1.
62. Gordley, supra n. 60, at 69-133.
63. Grotius, supra n. 23, at II, xii, 1-7; Pufendorf, supra n. 23, at V.ii.8-10.
64. Domat, Les Loix civiles, supra n. 45, at liv. 1, tit. 1, ? 1, nos. 5-6; ? 5, no. 13; R.
Pothier, Traite'des obligations ? 42, in Oeuvres, supra n. 9, II.
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471
472
[Vol. 42
Id. I.i.iii.l.
69. Id. I.i.4; J. Domat, Traits des loix vi.9, in Domat, Les Loix civiles, supra n. 45.
70. Domat, Les Loix civiles, supra n. 45, at liv. 1, tit. 1, ? 2.
1994]
473
But it is precisely when the question of fixing these limits arises that all the difficulties are presented.
There are situations as to which justice is clearly manifested. A partner, for example wishes to divide all of the
profits of a partnership without taking part in the risks. The
claim is revolting. One need not look outside such an agreement for an iniquity that is perpetrated by the letter of the
agreement itself. But there are matters where the question
of justice is complicated with other questions, often foreign
to law....
474
[Vol. 42
that have their effect, although they are not expressed at all. Such is,
among others, the guarantee."77
These remarks, it must be emphasized again, are scraps of
thought thrown out as the occasion demanded, and while they indicate a familiarity with the older natural law theory of contract, they
do not necessarily show a serious commitment to it or even more than
a superficial understanding of it. Nevertheless, they certainly do not
indicate that the old theory had been abandoned for a new one.
Indeed, almost the only thing that the drafters did or said that
seems, at first glance, to be a break with the older theory was that
they limited relief for lesion, the French laesio enormis. Article 1674
gave a remedy only to sellers of land, as in the original Roman text.
Nevertheless, article 1674 merely preserved a limitation on the remedy that had already been established by French customary law
before the Revolution.78 Moreover, the reason the drafters gave for
limiting the remedy was not scepticism about the principle of equality in exchange but pragmatism in its application. According to
Portalis, relief would be confined to sales of land because its price was
more stable.79 According to Bonaparte, who took an active part in
the discussion, such property was more important.80 The buyer was
denied a remedy, according to Portalis, Tronchet and Faure, because
he was less likely to accept the wrong price through necessity,81 according to Segur, because he was less likely to have done so by mistake,82 and according to Bonaparte, because he was more likely to try
to avoid the transaction because his plans had changed.83
Berlier did claim that "[t]hings do not in general have a just
price. They are worth less to one, more to another," borrowing his
77. Discussion du Conseil d'6tat, Proces-verbal de la s6ance du 11 brumaire, an
XII (3 nov. 1803), in Fenet XIII, 54-55.
78. C.-L. de Ferriere, Dictionnaire de droit et de pratique (nouv. ed. 1769), II, v.
"lIzion d'outre moit6 de juste prix," 135, 137; H. Lacombe de Prezel, Dictionnaire
portatif de jurisprudence et de pratique (1763), II, v. "lezion,"430.
79. Portalis, Discussion du Conseil d'6tat, Proces-verbal de la s6ance du 21 nivose
an XII (12 jan. 1804), in Fenet XIV, 49; Portalis, Presentation au Corps Legislatif, et
expose des motifs, par M. Portalis, 7 ventose an XII (27 fev. 1804), in Fenet XIV, 14041.
80. Bonaparte, Discussion du Conseil d'etat, Proces-verbal de la seance du 21 nivose an XII (12 jan. 1804), in Fenet XIV, 57-58.
81. Portalis, Presentation, supra n. 78, in Fenet XIV, 145; Tronchet, Discussion
du Conseil d'etat, Proces-verbal de la seance du 7 pluviose an XII (28 jan. 1804), in
Fenet XIV, 75; Faure, Rapport fait au Tribunat, 8 ventose an XII (28 f6v. 1804), in
Fenet XIV, 177. Portalis had originally wished to give the buyer a remedy but was
outvoted. Portalis, Discussion du Conseil d'etat, Proces-verbal de la seance du 7 pluviose an XII (28 jan. 1804), in Fenet XIV, 76.
82. Segur, Discussion du Conseil d'etat, Proces-verbal de la seance du 7 pluviose
an XII (28 jan. 1804), in Fenet XIV, 75.
83. Bonaparte, Discussion du Conseil d'etat, Proces-verbal de la seance du 7 pluviose an XII (28 jan. 1804), in Fenet XIV, 77.
1994]
475
476
[Vol. 42
a contract of sale when one does not receive the equivalent of what
one gives."88 Berlier, who wished to abolish the remedy entirely, was
outvoted.89
1994]
477
promising, the 19th century French jurists simply explained that the
wills of the parties formed a contract.96 As Ranouil observes, they
took the binding force of contract for granted rather than demonstrating it.97 She quotes Gounot's description of their view: "The contract
is obligatory simply because it is the contract."98
Article 1108 and 1131 required the contract to have a lawful
cause. The 19th century jurists defined the cause in traditional
terms. In a gratuitous contract, it was to perform an act of liberality
or render a service.99 In an onerous contract it was the advantage
each party intended to obtain.'00 Nevertheless, the doctrine had become perplexing. It seemed to mean merely that a party must have
some motive for contracting, either to get something or not to get
something. Thus the 19th century jurists frequently said that they
found difficulty imagining a contract without a cause.101 They had
various conjectures as to what a cause might be. Aubry and Rau said
it was a "legally sufficient motive."'02 Toullier said a contract without a cause must have been entered into by mistake.103 Demolombe
suggested that a contract lacked a cause if it concerned a nonexistent
object such as a harvest that was never produced.'04 Larombiere
thought a purchase of one's own property would be a contract without
a cause.105 In point of fact, no one could find a good reason why there
should be a doctrine of cause rather than simply one of mistake. The
96. See, e.g., M. Duranton, supra n. 33, at X, ?? 1-2; A. M. Demante and E. Colmet
de Santerre, Cours de Code Napoleon (1854-82), V, ?? 2, 2 bis, 3; Demolombe, supra n.
40, at XXIV, ? 12; F. Laurent, supra n. 39, at XV, ?? 424-27; M. L. Larombi6re, Theorie et pratique des obligations (1857), I, ? 41.
97. V. Ranouil, L'Autonomie de ln volont: Naissance et Evolution d'un concept 7172 (1980).
98. E. Gounot, Le Principe de l'autonomie de la volontg en droit prive: contribution
a l'etude critique de lindividualisme juridique (thesis, Paris, 1912), 129; quoted by
Ranouil, supra n. 97, p. 72, n. 31.
99. Aubry & Rau, supra n. 39, at IV, ? 345; Demolombe, supra n. 40, at XXIV,
? 352; Larombiere, supra n. 96, at I, 272.
100. Aubry & Rau, supra n. 39, at IV, ? 345.
101. Aubry & Rau, supra n. 39, at IV, ? 345 n. 7; Demante & Colmet de Santerre,
supra n. 96, at V, ? 47; Demolombe, supra n. 40, at XXIV, ? 357; Toullier, supra n. 32,
at V, ? 166; Laurent had a more elaborate argument. According to Article 1108 of the
French Civil Code, "Fourconditions are essential for the validity of an agreement: the
consent of the party who obligates himself; his capacity to contract; a definite object
that forms the matter of the engagement; a lawful cause of the obligation." Since the
cause of an onerous contract was the obligation of the other party, Laurent argued,
there was no difference between saying the contract must have a cause and saying it
must have a "definite object." Thus, the requirement of a cause was superfluous. Laurent, supra n. 39, at XVI, ?? 110-11. In a gratuitous contract, the cause was the will
to confer a benefit, which meant merely the will to give, and so there was no difference
between saying the contract had a cause and saying the donor consented. Again, the
requirement of a cause was superfluous. Id. ? 111.
102. Aubry & Rau, supra n. 39, at IV, ? 345.
103. Toullier, supra n. 14, at VI, ? 168.
104. Demolombe, supra n. 40, at XXIV, ? 357.
105. Larombi6re, supra n. 96, I, 273-75.
478
[Vol. 42
doctrine of cause, as traditionally understood, had disappeared, leaving only the idea of will.
The 19th century commentators were also at a loss to explain
why relief should ever be given for lesion or disparity in the values
exchanged. Their difficulty was theoretical. They did not see how
there could be equality in exchange or a just price. Thus Demolombe
and Laurent questioned whether relief should be given at all.
Demolombe argued that value was "subjective," "variable and relative."'106Laurent observed that the value of things was not "absolute"
but that things worth one amount "from a commercial point of view"
might be worth a different amount of the parties because of their
"needs, tastes and passions."107 Other jurists such as Duranton,
Colmet de Santerre and Marcade explained that, while inadequacy of
price was not in itself a ground for relief, it was evidence of a "defect
in consent" such as fraud, mistake or duress.108 Glasson thought
that although relief for le'sion violated "the principle of the freedom of
contract," relief could be justified as an exception to the normal rules
for reasons of "humanity."109
When the principle of equality of exchange had been discarded,
there was no way to claim that the terms that the law read into the
contract were the consequences of "equity" in the sense of equality.
None of the 19th century jurists say that they are. According to Laurent they are merely terms the parties themselves would have willed,
stated in the Code in order "to dispense the parties from writing them
into their instruments... "110 Indeed, according to Laurent, Article
1134 meant that the judge should regard the decisions of the parties
as having the force of law and not modify them while pretending to do
equity. The will had become the source of all the parties' obligations,
and there was no higher standard by which the will itself could be
criticized or supplemented."'
In short, when the French jurists really began to develop will
theories of contract, it is easy to see the break from the past. The
break had not been made by the drafters.
1994]
479
C. Tort
Most authors have seen individualistic principles in the Code
provisions governing property and contract. Savatier and Halperin
have seen them in the provisions governing torts as well. Articles
1382-83 impose liability on one who has caused another damage by
his own fault. The fault principle, according to Savatier, was "the
corollary of the liberty of the individual."1"2 Halperin traces this
principle to what he again takes to be the individualism of the 17th
and 18th century natural lawyers.113
It is true that for the natural lawyers, fault was the basic principle governing liability in tort. As in the case of property and contract,
however, the principle was part of a theory that was neither modern
nor individualistic. Its basic structure, again, was put together by
Thomas Aquinas on the basis of Roman law and Aristotle, passed on
to the late scholastics, and borrowed by the 17th century natural
lawyers.114
Roman law had given an action, by the lex Aquilia, for damage
done by fault (culpa),"l5 although it had also recognized cases of strict
liability. Aristotle had distinguished voluntary from involuntary
commutative justice. In the former case, the parties exchanged
equivalents; in the latter, one party had wrongfully deprived the
other of something and had to restore equality by giving him an
equivalent.1"6 Thomas put the two ideas together: a party who injured another through his fault was obliged as a matter of commutative justice to compensate him.117 If the party was not at fault, he
was not obliged to compensate because, according to Thomas, qua
human being, he had not caused the harm.118 Here again, he was
applying ideas he found in Aristotle. Aristotle had said that man was
a rational animal, and that therefore, a person was not responsible if
he did not choose, for example, if he did harm because his body was
moved by irresistible force.119 Therefore, according to Thomas, he
only owed compensation for his fault.
The fault principle was embraced by late scholastics who built
explicitly on Thomas such as Molina, and Lessius,120 and then by
112. Savatier, supra n. 3, at ? 2, p. 6.
113. Halp6rin, supra n. 1, at 57.
114. See Gordley, "Tort Law in the Aristotelian Tradition," in Philosophical Foundations of Tort Law: A Collection of Essays (D. Owen, ed., forthcoming, Oxford University Press).
115. Dig. 9.2.
116. Nicomachean Ethics V.ii.
117. Thomas Aquinas, supra n. 21, at q. 61, a. 3; q. 64, a. 8.
118. Id. I-II, q. 6, aa. 1, 5-8; II-II, q. 64, a. 8.
119. Nicomachean Ethics III.i.
120. Molina, supra n. 23, at disp. 698; Lessius, supra n. 23, at lib. 2, cap. 7, dubs. 2
& 6.
480
[Vol. 42
1994]
481
Such ambiguities are not to be found in the work of the 19th century commentators. For virtually all of them, fault was the only principled explanation of tort liability.'29 They found it puzzling that
126. Rapport fait par Bertrand-de-Greuille, Communication officielle au Tribunat,
10 pluviose an XII (31 jan. 1804), in Fenet XIII, 477.
127. According to Tarrible, vicarious liability and liability for animals are based on
the principle that "damage, to be subject to reparation, must be the effect of a fault or
an imprudence on the part of someone" since otherwise "it is only the work of
chance."Discours prononc6 par le Tribun Tarrible, Discussion devant le Corps-Legislatif, 18 pluviose, an XII (8 f6v. 1804), in Fenet, XIII, 488. According to Treilhard,
some are liable for weakness, others a bad choice, "all [for] negligence." Presentation
au Corps L6gislatif, et expos6 des motifs par Treilhard, 9 pluviose, an XII (30 jan.
1804), in Fenet XIII, 468.
128. After enumerating them and all the other people who may be liable for the
acts of another, Tarrible says that liability "is at an end with regard to all of them if
they prove that they could not prevent the act that gives rise to it." Tarrible, supra n.
127, in Fenet, XIII, 489.
129. Aubry & Rau, supra n. 39, at IV, ? 446, pp. 754-55; Duranton, supra n. 33, at
XIII, 741; Larombi6re, supra n. 96, at V, 738, 767; Laurent, supra n. 39, at XX, ? 387,
p. 409; ? 550, p. 589; ? 639, p. 694; Toullier, supra n. 32, at XI, 138.
482
[Vol. 42
We have examined the principal reasons that have been given for
thinking that the Code incorporated new and individualistic principles that are supposedly those of the Revolution. There are a few
others. Some have seen a mark of individualism in the phrasing of
Article 1371 which describes a quasi-contract as a "purely voluntary
human act" which gives rise to an obligation.133 But the Code does
not use the word "voluntary" because of some belief that all obligations, even quasi-contracts, should spring from the human will. In
the immediately preceding article, Article 1370, the Code distinguishes two types of obligations that arise without a contract: those
"resulting from the authority of the law alone" which are "formed involuntarily" such as the obligations between neighboring landowners
and those "arising from a personal act of the party who was obligated" such as quasi-contracts and torts. It is simply a matter of
classfication, and that is how it was presented by those who reported
on these provisions to the Tribunat and the Corps Legislatif.134 Indeed, it would be hard to think that voluntary acts create liability in
quasi-contract because they are acts of individual liberty. One such
act is receiving money in the erroneous belief that it was due as the
payment of a debt.135
Still others have thought the Code individualistic because it does
not cover certain topics, such as labor law136 and corporation law.137
130. Duranton, supra n. 33, at XIII, 741; Larombiere, supra n. 96, at V, 767.
131. Aubry and Rau, supra n. 39, at IV, ? 447, p. 761; Laurent, supra n. 39, at XX,
? 588, p. 628.
132. Laurent, supra n. 39, at XX, ? 588, p. 628.
133. Colin, Capitant & Juillot de la Morandiere, supra n. 2, at II, ? 1276, p. 724
(1959); Weill & Terr6, supra n. 54, at ? 790, p. 216;
134. Treilhard, supra n. 127, in Fenet XIII, 464; Bertrand-de-Greuille, supra n.
126, in Fenet XIII, 469; Tarrible, supra n. 127, in Fenet, XIII, 480-81.
135. Code civil art. 1376.
136. Ghestin & Goubeaux, supra n. 2, at I, ? 137, pp. 96-97; Josserand, supra n. 2,
at I, ? 39, p. 33; Mazeaud, Mazeaud & Mazeaud, supra n. 2, at I, ? 43, p. 64.
137. Ghestin & Goubeaux, supra n. 2, at I, ? 137, pp. 96-97; Weill & Terr6, supra n.
54, at ? 10, p. 10.
1994]
483
The assumption seems to be that these topics would have been covered but for a liberal or bourgeois preoccupation with formal individual rights. There is no evidence, however, that the drafters thought
that providing rules for these subjects was part of their job description. Guilds were abolished in 1791, but none of the drafts of the
Code contains a provision prohibiting guilds. Had the Code dealt
with corporate property, some historian would now be claiming that
the provisions were written because of a bourgeois need to allow the
accumulation of capital.
Indeed, one who judged by the attention that the Code gave various realms of private law might imagine it was drafted in the interests of a landed aristocracy rather than a commercial bourgeoisie. As
has often been observed, the protection of landed property is emphasized.138 The provisions governing mortgages, which would protect a
commercial class lending money on the security of land, are generally
acknowledged to be among the least well considered.139 As some
scholars have observed, the Code does little to protect fortunes held
in assets other than land140 or to provide for the needs of commerce.'41 Savatier argues that the Code is "bourgeois"but "it is not
at all a question of the commercial bourgeoisie." "Commerce was the
object of another world, and the Commercial Code is the one concerned with risks and adventure. The Civil Code, on the contrary, is
the code of the stable acquired fortune...."142 It is true that many of
the bourgeoisie wished to protect the fortunes they had acquired and
sunk in landed property. That hardly makes protection of landed
property a bourgeois principle or one peculiar to the French
Revolution.
II.
THE PRINCIPLES
OF THE REVOLUTION
Some of the principles that influenced the drafters were genuinely revolutionary. Indeed, people argued at the time that a code
was needed to bring the law into harmony with the principles of the
new revolutionary order.
They are often indefinite about which specific revolutionary principles they have in mind and what changes these principles require.
We are told, for example, that the old laws were the "fruit of monar138. Mazeaud, Mazeaud & Mazeaud, supra n. 2, at I, ? 44, p. 64; Savatier, supra n.
3, at ? 3, p. 8.
139. M. Planiol & G. Ripert, Trait6 dlmentaire de droit civil (5th ed. 1950), I ? 87,
p. 37; Tunc, "The Grand Outlines of the Code," in The Code Napoleon and the Common Law World, supra n. 208, 19, at 40.
140. Mazeaud, Mazeaud & Mazeaud, supra n. 2, at I, ? 44, p. 64.
141. Savatier, supra n. 3, at ? 3, pp. 8-9.
142. Id.
484
[Vol.42
1994]
485
Because the laws were to be the sole measure of the rights and duties
of the citizen, they had to be transparently clear. Not only must each
citizen be able to understand them, but no one must interpret or add
to them. Malia-Garat concluded: "The origin of the law in a republic
does not permit any human power to change the law or to modify it in
its execution or to supplement its insufficiency, let alone its silence."
One who judges without a statute is not truly a judge. He is a
despot.151
In the republican vision, the Code could be clear and self-sufficient because its rules would describe simple, natural relationships
based on reason. In a republic, according to Maria-Garat, the enacted laws can determine the relations among citizens with precision
because these relations are natural whereas in a monarchy they are
arbitrary.'52 The tribune Savoie Rollin explained that because the
Code would prescribe all the private rights required by civil liberty
and appropriate to man in a state of society, "[i]t is therefore necessary that a civil code contain a reasoned system of all these rights;
and as they are necessarily linked among themselves, because they
advance the same end, it is necessary that the system demonstrate
this linkage."153
Cambacerrs, as chairman of the committee that produced three
drafts of a code, professed his allegiance to this republican ideal. His
objective was "a collection of precepts where everyone could find the
rules for his conduct in civil life.... Where judges are not legislators,
it is not sufficient to insure the authority of law by justice; it is also
necessary that the laws be so disposed as to eliminate doubt by clarity and to prevent exceptions by foresight."154 In producing a "code of
simple laws in which the expression aids the understanding" he had
been careful "to separate principles from consequences, rules from
corollaries..
.."155
Id.
Id. at 157.
Savoie Rollin, supra n. 147, in Fenet XI, 48.
Cambarc6res, supra n. 6, in Fenet I, 140-41.
Cambarc6res supra n. 6, in Fenet I, 140-41.
486
[Vol. 42
1994]
487
the magistrate can "declare whatever he wishes" because "legal studies are not an art." In France, "[i]t is only too fortunate that legal
160. Cambac6res, supra n. 73, in Fenet I, 100.
161. Discussion devant le conseil des cinqs cents, supra n. 158, in Fenet, I, liv.
162. Halperin thinks the defeat of the draft may have been caused by the reaction
against the radicals. Halperin, supra n. 1, at 214. They, however, were by no means
the only ones to subscribe to a republican vision of a code, and it is hard to think
Cambaceres draft answered to this vision.
163. Portalis, supra n. 4, in Fenet I, 467-68.
164. Id. at 469.
165. Corps lgislatif, Discours prononce par Portalis, s6ance du 23 frimaire, an X
(14 dec. 1801), in Fenet VI, 269.
166. Portalis, supra n. 4, in Fenet I, 471.
488
[Vol. 42
studies form a science" to which "[a]n entire class of men devotes itself," becoming a "sort of seminary of magistrates."'67 The cultivation of this legal science "presupposes compendia, digests, treatises,
and studies and dissertations in numerous volumes."168
It followed that the code by itself would not inform each citizen
what his rights and duties were. "The people, one may say, cannot in
this labyrinth [of commentaries] discern what they must avoid and
what they must do to be certain of their possessions and their rights.
But would a code, even the simplest, be within the reach of every
class in society?"169
Republican convictions were still sufficiently alive in 1801 for
Portalis' opinions to provoke a major battle. His claim that a code
could not decide all cases was supported by many170 including his
colleagues on the drafting committee Tronchet'7l and BigotPreameneu.172 A concern that the judges would enjoy too much authority was raised by the courts of Lyon and Rouen'73 when the draft
was circulated to the appellate courts for comment. When it was debated in the Conseil d'etat, Cambaceres, now elevated to the post of
Second Consul, warned that "it could facilitate usurpations by the
courts of legislative power."174 Roederer, another leader of the Conseil, raised similar concerns.175
The draft was approved by the Conseil d'etat and submitted to
the Tribunat, a body of one hundred members appointed by a senate
controlled by Bonaparte's supporters. Under the Bonaparte constitution, it could debate laws but could only recommend that they be enacted or not enacted. In the Tribunat, Malia-Garat attacked the
draft, describing the rule of law in a republic in the words quoted
167. Id. at 471.
168. Id. at 471.
169. Id. at 471.
170. See e.g., Jaubert, supra n. 75, in Fenet, I, cxvi; Tribunat, Opinion du Tribun
D6meunie, seance du 18 frimaire, an X (9 dec. 1801), in Fenet VI, 93; Tribunat, Opinion du Tribun Ludot, seance du 18 frimaire, an X (9 dec. 1801), in Fenet VI, 106-07;
Tribunat, Opinion du Tribun Huguet, seance du 19 frimaire, an X (10 dec. 1801),
Fenet VI, 138-39; Tribunat, Opinion du Tribun Portiez (de l'Oise), seance du 21 frimaire, an X (12 d6c. 1801), in Fenet VI, 228; Discours prononce par le conseiller d'etat
Berlier, seance du 24 frimaire, an X (15 d6c. 1801), in Fenet VI, 335; Communication
officielle au Tribunat. Rapport fait au nom de la section de legislation par le Tribun
Grenier, seance du 9 ventose, an XI (28 fev. 1803), in Fenet VI, 375; Corps legislatif,
Discours prononc6 par le Tribun Faure, seance du 14 ventose, an XI (5 mars 1803), in
Fenet VI, 162.
171. Conseil d'etat, Proces-verbal de la seance du 14 thermidor, an IX (2 aouit
1801), in Fenet VI, 23.
172. Id. at 23.
173. Tribunal d'appel de Lyon, supra n. 30, in Fenet IV, 34; Observations arr8tees
par le tribunal d'appel seant a Rouen, d'apres et sur le rapport de sa commission, in
Fenet V, 455-56.
174. Discussion, supra n. 171, in Fenet VI, 21.
175. Id. at 23.
1994]
489
490
[Vol. 42
1994]
491
The reason 19th century commentators treated the Code as selfsufficient was not that they believed in the republican ideal that
Portalis had opposed. As I have shown elsewhere, they had quite diverse opinions about the nature of law.190 They treated the Code as
self-sufficient because they did not believe, as Portalis had, in the
possibility of a transnational, transtemporal legal scholarship that
could give the texts meaning. Since there was nowhere else to look
except the texts of the Code, the Code had to be self-sufficient. So
they created the myth that it was.
The myth has often been accepted by historians. According to
van Caenegem a "fundamental feature of the Code is its positivism,
which was to mark the Exegetical School."'191"The Code civil ...
rejects all borrowing from natural law: from now on the established
order was the Code, and all reference to natural law .
order."'92
. was out of
492
[Vol. 42
We will examine how the drafters applied the principle of equality first, to persons, and then, to land. In neither case, we will see,
were the rules of private law fundamentally reshaped.
1. Equality of persons. -We need not spend much time on the
establishment of equality among persons. The drafters recognised
this important principle without changing much of French private
law. The National Assembly had abolished the privileges of the nobility by a law of June 19-23, 1790. It had granted Protestants and
Jews freedom to worship freely by a decree of February 13, 1790. The
Constituent Assembly had extended full civil rights to Jews by a decree of September 27, 1791. The drafters did not have to change the
law of France to make it conform to the principles of the Revolution
in these respects. They simply had to avoid reintroducing special
privileges for nobles and special disadvantages for Protestants or
Jews.
194. Portalis, supra n. 179, in Fenet, I, cii.
195. Id. at cii. Similarly, the Tribune Jaubert explained in his defence of the draft
that the civil laws would be based on "[respect for morality, national honor, a passion
for public liberty, the maintenance of the sacred rights of property, the need to recognize no other distinctions than those of virtue and talent." Jaubert, supra n. 75, in
Fenet I, cix-cx.
196. Planiol & Ripert, supra n. 139, at I, ? 85, p. 36.
1994]
493
494
[Vol. 42
1994]
495
evaluate this claim, we must see how land was held in the Old
Regime.
In 18th century France, a person might owe obligations of feudal
origin because of where he lived or because of what land he held. Because he lived in a certain area he might be subject to rights of banalite which required him to use a certain oven, mill or wine press. He
might be subject to rights of corvee personnelle which obligated him,
unless he was a noble, to work a few days a year on another's land.
He might have to bring certain claims in a private court that belonged to another.
These obligations had originated at a time when local feudal
lords holding the seigneurie or lordship of the area constituted a kind
of local government. In the 18th century, the seigneurie was a private right which allowed the seigneur who owned it to hold people in
the territory to the obligations just described. It was not a right attaching to any property that he owned, and he could transfer it to
another person.209
Other rights and obligations of feudal origin belonged to people
because of the land that they held. These rights had originated, not
in the power the feudal lords had once enjoyed to govern a certain
territory, but in the feudal relationship between a lord and those who
held land from him. One sort of relationship was that between a lord
and his military vassals. After a ceremony in which he pledged faith
and did homage to the lord, the vassal held land as a fief. He was
obligated to support the lord in war and to give him counsel. Another
sort of relationship was that between the feudal lord and tenants who
held land of him in return for a periodic payment of money or the
products of the land called a cens. Land held in this way was called a
censive.
Although fiefs and censives had become inheritable and alienable
in the Middle Ages, the holder still had to pay a sum of money to the
lord for the privilege of alienating it. In the case of a fief, the payment, known as a quint denier, was typically one fifth of the sales
price. In the case of a censive, the payment, known as lods et ventes,
was typically one-twelfth. A censive might also be burdened by certain rights that the lord had originally reserved to himself such as
exclusive hunting rights or the right to keep pigeons. It might be
subject to a corvee realle requiring the holder to work a few days a
year on the lord's land.
By the 18th century, the duties of the holder of a fief to provide
military support and counsel had long since died out.210 Most lords
at 56; A. Soboul, "La Revolution frangaise et la 'f6odalit6.' Notes sur le prelbvement
feodal," Revue historique (1968) CCXL, 33, 36-39. See also nn. 233, 234, & 238, infra.
209. R. Pothier, Coutumes d'Orleans ? 352 p. 138, in Oeuvres, supra n. 9, I.
210. Garaud, supra n. 208, at 17.
496
[Vol. 42
entitled to cens had agreed to take cash instead of commodities. Centuries of inflation had made most of these cash payments
insignificant.211
Moreover, the interest in land a person held no longer necessarily corresponded to his hereditary social status.212 Originally, the
lord and vassal of a fief and the lord of a censive belonged to the hereditary military aristocracy. The party owing cens or other periodic
payments was a commoner. Commoners, however, had acquired the
right to become "lords"of a fief or censive if they paid a franc-fief to
the king. Nobles had bought land in censive, paying cens to a "lord"
who might be a commoner, and renting the land to someone else who
might be a noble.
Moreover, the sort of people who counted as "nobles" had
changed as well. One could become a noble by getting letters patent
from the king which the king was willing to sell in times of financial
crisis.213 Since the 14th century one could become a noble by holding
certain offices. In some parts of France the majority of noble families
had risen to that rank by their purchases of office. These people were
called "nobility of the robe" to distinguish them from the old "nobility
of the sword." Their children would serve in the army, however, and
there would be a fusion between the two nobilities.214 For centuries,
non-noble families had purchased fiefs or other prestigious interests
in land, "lived nobly," and in due time claimed noble rank. Since the
nobility were exempt from paying certain taxes, from 1463 to 1727,
the king had periodic investigations made into the credentials of
those claiming nobility.215 Nevertheless, in Moliere's play, Le Bourgeois gentilhomme, Cl6onte acknowledges that many in his position
would call themselves nobles: his parents had held honorable positions, he had been six years in military service, and he had sufficient
money to live appropriately.216
Finally, by the 18th century, the original feudal tenures such as
fief and censive no longer corresponded to the way that land was exploited economically. The revenues of a rich landholder often came
not from collecting rent but from hiring landless laborers to work his
land.217 Moreover, those who rented property, even in perpetuity,
could do so in a variety of ways that did not entail, even in theory, a
feudal relation of lord to tenant: for example, emphyteose, rente
fonciere, rente constituee, and bail a ferme or a loyer.
211. F. Olivier-Martin, Histoire du droit fran,ais des origines d la Revolution 64748 (1951); Garaud, supra n. 208, at 31; A. Aulard, La Rgvolution fran,aise et le regime
fiodal 37 (1919).
212. A. Cobban, The Social Interpretation of the French Revolution 28-32 (1964).
213. Olivier-Martin, supra n. 211, at 638.
214. Id. 638-39.
215. Id. 637.
216.
1994]
497
In these non-feudal arrangements, 18th century jurists explained, the payment of rent did not constitute a recognition of the
lordship or seigneurie of the other party. In contrast, the holder of
land in fief or censive recognized the lordship or seigeurie of the person from whom it was held, in the case of a fief, by pledging faith and
homage, and in the case of a censive, by paying the cens.218 While
this difference did not matter economically, it might socially.219 In
some places, the honor of having one's lordship recognized was so little thought of that faith and homage could be given by a paragraph of
boilerplate inserted by lawyers in a document, and the nominal cens
was never collected.220 In other places, however, it must have been a
matter of considerable prestige to judge from the attention the jurists
gave to how faith and homage must be made or a nominal cens must
be paid.221 One hears of people of moderate means flattering their
egos by having the document creating an ordinary rent dressed up by
a notary to make the landlord sound as though he possessed some
feudal dignity.222
On the night of August 4, 1789, "feudalism" was abolished. During July, waves of peasant unrest had spread across the country.
Peasants had refused to pay their taxes and attacked tax collectors.
They had refused to pay the charges on their land, and marched on
chateaux demanding to see the documents proving these charges
were due. Sometimes they burned the documents that were produced. Sometimes they burned the chateaux.
On August 4th, the National Assembly considered how to respond. Some delegates argued that, though the violence was
deplorable, the peasants were angry because they were oppressed by
"feudalism."223 That night, the National Assembly decreed that it
"entirely destroys feudalism...."
The question then became, what
was "feudalism"?
In the months that followed a solution was worked out. Obligations such as the banalite and corve personnelle which a person owed
because of the territory he lived in, not the land he held, were abolished. So were exclusive rights to hunt and keep pigeons. So were
rights to receive faith and homage or other recognition of one's supe218. F. de Boutaric, Traits des droits seigneuriaux et des matueres fe'odales ii, 40
(nouv. ed. 1775); C.-J. de Ferriere, Dictionnaire de droit et de pratique (nouv. ed.
1771), I, v. "cens,"249; Preudhomme, Traitigdes droits appartenans aux seigneurs sur
les biens poss6di's en roture 96 (1781).
219. Whitman, "Les Seigneurs descendent au rang de simples cr6anciers: Droit
romain, droit feodal et revolution," Droits: Revue fran,aise de la the'oriejuridique
(1993), XVII, 19, 32; J.Q.C. Mackrell, The Attack on 'Feudalism' in Eighteenth-Century France 180 (1973).
220. Garaud, supra n. 208, at 29, 32.
221. See Whitman, supra n. 219.
222. Garaud, supra n. 208, at 232; P. Sagnac, La LUgislation civile de la re'volution
147 (1898).
223. For the ideas that inspired this diagnosis, see Mackrell, supra n. 219.
498
[Vol. 42
rior status or dignity. But unless the contrary could be proven, payments of money were assumed to be the price of an original
concession of land. Thus those who owed annual payments of cens or
rent were to continue to pay them though the cens was no longer to be
considered recognition of another's lordship. Those who held fiefs or
censives were still to make a payment upon sale. The holder of the
land could redeem it from the obligation to make annual payments or
payments on sale, but to do so he would have to pay an amount that
corresponded to the economic value of these obligations.
This solution was explained by Merlin de Douai in a report of the
Feudal Committee to the National Assembly: "In destroying the feudal regime, you did not mean to despoil of their possessions the legitimate proprietors of fiefs, but you changed the nature of this property:
they ceased to be fiefs and have become allodial."224 A decree of
March 15, 1790, provided that the payments formerly due as part of
feudal law were now "simple rents and land charges."
There was a howl of outrage from the peasants. Not understanding "feudalism" as well as the members of the National Assembly
supposedly did, they had imagined that if feudal oppression ended,
they would be economically better off. Certainly, they did benefit
when they were relieved of a few days of corve'e labor a year, and
when the exclusive hunting rights were abolished that protected animals that ate their crops. They may have benefitted when they no
longer had to use an inconveniently located oven, mill, or wine press.
The great burden, however, had been rent, and according to the Feudal Committee, they still had to pay.
Like the peasants, many historians have thought that the Feudal
Committee defaulted on the promise to abolish feudalism made the
night of August 4th.225 Even Alfred Cobban, one of the strongest critics of traditional accounts of the French Revolution, has interpreted
the action of the Committee as an attempt to preserve "seigneurial
dues and rights" by renaming them.226 Nevertheless, it is hard to see
what else the Committee was to do. "Feudalism" was not supposed to
mean that some landowners were nobles, or that rich people lived off
rents, or that wealth was inequitably distributed. To make it mean
any of these things would have turned the abolition of feudalism
either into a general persecution of the nobles or into a modern-style
program of agrarian reform. "Feudalism" meant that certain rights
in land were "feudal" and therefore oppressive. The difficulty was
that the rights that looked the most "feudal"were also the least eco224. Report of the Feudal Committee, Feb. 8, 1790, quoted in Aulard, supra n. 211,
at 109.
225. See e.g., Garaud, supra n. 208, at 196, 124; Soboul, supra n. 208, at 37-38; S.
Herbert, The Fall of Feudalism in France 139 (1920).
226. Cobban, supra n. 212, at 42-43. For a similar view, see Mackrell, supra n.
219, at 174.
1994]
499
500
[Vol. 42
of real property
. . . is by its nature
subject
to
redemption.
Nevertheless, the creditor is permitted to specify the
terms and conditions of redemption.
He is also permitted to specify that the rent cannot be
redeemed except after a certain term which, however, can
never exceed thirty years, and any stipulation to the contrary is void."
The drafters made another change as well. Article 529 classified
the right to receive the rent in perpetuity as a kind of personal property (meuble) rather than real property (immeuble). As Article 530
indicates, a person paying the rent was considered to be the sole
owner of the property subject to it.
In contrast, under the law of the Old Regime a person owing rent
generally did not have the option to redeem the land with a lump sum
payment, though in a rente constituee he did. Moreover, the parties
might hold various interests in the land depending on the type of arrangement. In a fief, a censive, and an emphyteose, even though the
latter was not a feudal tenure, "domaine"or "ownership"was divided
between the parties. The person entitled to homage, cens, or rent
owned an interest called the domaine directe, and the other party
owned one called the domaine utile. Both interests were treated as
types of real property.229 In contrast, in a rente fonciere, the person
owed rent held an interest in the land that was recognized as a type
of real property but not as ownership.230 In a rente constituee, he had
only a contractual right against the party paying rent although often
229. Boutaric, supra n. 218, at ii-iii, 429; de Ferriere, supra n. 218, at 584; C.
Loyseau, TraitW du deguerpissement et delaissement par hypotheque 26 (1636);
Pothier, TraitMdu droit de domaine de proprigt*, supra n. 9, at ? 4, p. 103; Coutume de
Orelans, supra n. 209, at ?? 3-7, p. 175.
230. de Ferriere, supra n. 218, at II, v. 'rente fonciere," 548; Loyseau, supra n. 229,
at 28; Pothier, Traits du contrat de bail a rente, no. 3, p. 172; no. 16, p. 177; no. 19, p.
178 in Oeuvres, supra n. 9, IV, 171; Preudhomme, supra n. 218, at 95.
1994]
501
502
[Vol. 42
today in other countries. Under English and American law, both parties have a property interest when land is rented: the lessor, if his
property were otherwise unencumbered, has a fee simple, and the
lessee has a leasehold estate. In some American states, a person who
mortages his land remains the owner; in others, the lender becomes
the owner; and if the mortgage is effected by an instrument called a
deed of trust, there will be two owners, legal title belonging to the
bank and equitable title belonging to him.
Article 530 made another change that has been regarded as part
of the breakthrough to a modern system of property law.238 When
land is rented in perpetuity, the person paying rent has the right to
redeem the land after thirty years on terms and conditions specified
by the other party. But again, nothing of economic significance turns
on the change. Under the Old Regime, any party could buy out of his
obligation to pay cens or rentes by offering the other party enough
money to persuade him to part with his interest. The result is no
different under Article 530 of the French Civil Code as long as the
party owed rent makes a wise use of his right to specify the terms and
conditions under which the rent can be redeemed.
Indeed, Article 530 of the Civil Code was a compromise measure
adopted after the Conseil d'etat rejected an initial proposal to reestablish the rent fonciefre without the privilege of redemption. The
proposal had been supported by all four members of the drafting committee as well as by Cambaceres. They explained that the rente
foncie're was an excellent arrangement for encouraging improvements
to land while increasing the number of proprietors. A person with
uncultivated land would transfer it to someone else whose only asset
was his willingness to work, and that person would have every incentive to do so, since he would become the owner.239 According to
Cambaceres, the law abolishing nonredeemable rentes foncieres "is
not founded on the principles of legislation; it was a matter of politics,
a matter of circumstance. ..."240
238. Colin, Capitant & Juillot de la Morandiere, supra n. 2, at II, ? 26, p. 29;
Garaud, supra n. 208, at 258; Soboul, supra n. 208, at 36.
239. Discussion du Conseil d'6tat, Proces-verbal de la seance du 7 pluviose, an XII
(28 jan. 1804), in Fenet XI, 56-59 (Cambac6r6s, Tronchet, Malleville); 62-64
(Cambac6r6s); 66-67 (Bigot-Preameneu); 68 (Malleville); 69 (Portalis). For similar remarks, see Portalis, supra n. 14, in Fenet XI, 73-75. Indeed, Malleville claimed that
France had been repopulated by means of such arrangements after the barbarism and
internecine war that followed the fall of the Roman Empire. Because of such arrangements "the great majority of the people became proprietors again and were able to
recover their liberty, to cut down forests, and to dry marshes... ." "It is true," he
added, that with the rente fonciere, the lessors (bailleurs) required seigeneurial rights
to maintain their superiority, but these rights are not essential to this contract...."
Id. at 57-58. Pelet seconded his point, noting that "the departments of the south have
always demanded the reestablishment of rentes foncieres. They need them more than
the north because the land is not fertile." Id. at 60.
240. Id. 63.
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504
[Vol. 42
of the domaine
..
1994]
505
ism means that one cannot rent property for longer than ninety-nine
years, then we must conclude that feudalism was abolished by the
Revolution though not by the Civil Code. We would also have to conclude that feudalism still exists in other Western industrialized countries. Indeed, the only reason for defining feudalism that way is so
that the French Revolution will have abolished it in France. Even
then, imposing a ninety-nine year limit on the term of rentals is not
the sort of change one would call a reconceptualization of the law of
property.
III.
CONCLUSION
The Code did not rebuild the law of property, contract or tort on
new and individualistic principles. Indeed, it was drafted in what
one can only describe as the trough between two intellectual waves: a
wave of natural law theory that crested in the 16th and 17th centuries, and a wave of individualistic will-centered theory that did not
emerge clearly until the 19th century. To the extent the drafters
were guided by general principles at all, they used those of the natural lawyers which were already old-fashioned.
The principles of the Revolution that did influence the drafters
were a republican vision of law and the principle of human equality.
The republican vision, however, was rejected by the drafters themselves, and the principle of equality did not lead to a reshaping of
private law. Although the Code is often said to have abolished feudal
property, it is hard to find much of economic consequence that
changed.
Some scholars seem to think that unless the Code made great
and revolutionary changes it would not be worthy of admiration. According to Portalis, some people felt that way when the Code was
drafted. They complained that they found "no grand conception" of
civil law in it. They found only a reworking of Roman law, ancient
customs, and ancient maxims. Portalis asked them what they meant
by a grand conception. A bold novelty, after the manner of Solon or
Lycurgus? Such novelties, he said, are often brilliant errors.256
Indeed, it is odd to think that the Code would be more admirable
if it had been founded on principles that were revolutionary at the
beginning of the 19th century and outmoded by the 20th. It would be
more in the spirit of Portalis to recognize that often, "[n]ew theories
are the systems of a few individuals: ancient maxims are the spirit of
centuries."257
256. Corps Idgislatif, Presentation et expose des motifs par M. Portalis, s6ance du 3
frimaire an X (24 nov. 1801), in Fenet VI, 38-40.
257. Id. 38-40.