法学专业毕业论文外文翻译--法国法律中的违约责任：在安全的期望值和有效性之间-法律法学(编辑修改稿)

法学专业毕业论文外文翻译--法国法律中的违约责任：在安全的期望值和有效性之间-法律法学(编辑修改稿)内容摘要：

t wrongdoings once they have occurred. From an Hayekian perspective, the benefits of such intervention are less evident because you have to take into account the fact that the potential victims may, as a result, be less careful, and behave in a less responsible way. In any case, one should keep in mind that courts consider invalidity to be something exceptional. ―To restrict as much as possible the number of nullity cases seems to fit with the contemporary need to bring more security to business.‖11. . Interpreting the contract To save the contract, the judge may have to interpret its terms or to modify them. When reading legal scholars on the topics, one es rapidly to the conclusion that there is no unanimity in France about what is the proper role for the judge when performance is problematic. As explains Ghestin: ―Hence, always referring to justice, it is possible to forbid to the judge any intervention, or at the opposite, and as is done today, to justify his/her corrective interference, so that he/she can guarantee that there is at least a relative balance between the promises that are being exchanged.‖12 This analysis can also be found in Delebecque, Pansier: The role of the judge in appreciating the terms of the contract is a matter of great controversy. On one hand, you may wish to deprive the judge of any power arguing that he is not a party 6 to the contract。 consequently, the judge should never intervene, nor modify such and such elements of the contract. On the other hand, one can admit the intervention of the judge in contractual matters in order to introduce a light wind of fairness in the contract. The law is rather based on the first , as we have noticed already, the legislator allows himself or herself the right to perfect and regulate some contracts, and the judge, stimulated and reassured by such intervention, has decided that he also as a right to step Keeping in mind this controversy, let us see what the French written law says. A major principle of French law is juridical consensualism (consensualisme juridique). Deeply rooted in French tradition—it goes back to the 18th century and became prominent in the 15th century14—this principle is closely related to a more recent one: the autonomy of the In contractual matters this means that the contract should be interpreted, not literally, but according to good faith. This is also called the subjective method of interpretation and is grounded in art. 1156 to 1164 .: ―As far as conventions are concerned, one must look for the mon intention of the contracting parties rather than look for the literal meaning of the terms‖ (art. 1156 .). Now, if to interpret is to try to rediscover what the parties really wanted, does this method make sense from an economic point of view, or should it be changed for the objective method? On the bright side, whether you are Paretian or Austrian, you can ar gue that this method of interpretation reduces transaction costs since the parties may leave the contract inplete: if necessary, the judge—or more generally, the law through default rules—will interpret the contract as they would have written it, if it was not for the cost of writing done a plete contract. Not only that, but the very possibility to leave gaps in the contract may be desirable to allow the parties to signal a high degree of confidence that promises will be performed。 in other words, gaps may be useful strategic tools. On the dark side, it may be pointed out that the objective method, chosen in other countries such as Germany, forces the parties to be more explicit on what they expect and this, in turn, may reduce future transaction costs. Also it should be recalled that it is not always easy to interpret the will of the parties, and it is good for that reason to give them strong incentives to fill up as many gaps as possible. Anyway, the French law will not let the judge interpret the ter ms of the contract, or fill gaps as it pleases her. The judge will have to follow certain rules. Here are some of First maxim: better to interpret the contract in such a way that it will survive (art. 1157 .). Again one can read here an a priori in favour of voluntary exchanges which, as was pointed out earlier, is economically sound. It is also the desire to avoid that efforts invested in the contractual relationship be wasted. Second maxim (only for unilateral contracts such as loan contracts): the judge should interpret the contract in the way which is most favorable to the debtor (art. 1162 .). One 7 can perceive two economic reasons to this rule. Firstly, it increases the probability of performance since it is the debtor who is having difficulties. Secondly, the maxim let the creditor bears the risks related to a lack of precision in the terms of the contract. This in average is a good thing since the creditor is often the one who has the greatest influence on the choice of the terms of the contracts and is therefore in a position to avoid risk at least cost. The same logic can be found when the French law stipulates that, in contracts of adhesion, whoever has written the contract should bear the risks associated with ambiguity in the terms of the contract, and consequently, the contract should be interpreted against him or her. It is always desirable from an efficiency point of view, as well as from a safety of expectations point of view, to unify knowledge and decisionmaking. The third maxim of interpretation is derived from art. 1136 of .: ―Conventions pel the parties to perform not only according to what is written, but also according to the requirements of fairness, customs and existing legislation.‖ This somehow echoes the famous article 6 of。