LexisNexis

Duties to warn, advise and provide information: a comparative study of the obligations of contractors and design professionals in French and English law

Philip LawrensonTuesday 7 December 2021

Credit: xtock/Shutterstock

In French law, the duty to provide information is a longstanding principle, widely developed through case law. It was not until the French government amended the Civil Code in 2016 that the duty was afforded greater prominence by making it an independent provision. This article undertakes a comparative analysis of the far-reaching duty that exists within the construction sector in France with the current position on the same subject in English law. It argues that notwithstanding certain distinctive legal and cultural nuances, the two legal systems share underlying principles relating to the duty to warn, notify and advise.

Introduction

Parties to a construction project are potentially at risk of a claim that it is in breach of a duty to warn.

In French law, while the duty to inform already substantially existed as a result of judge-made rulings, it was not until the French government amended the French Civil Code in 2016 (the ‘Reform’)[1] that greater prominence was afforded to the now autonomous duty to inform by enshrining in the Code a general duty to provide information (devoir d’information) during pre-contractual negotiations.

Article 1112 provides that negotiations must mandatorily satisfy the requirements of good faith. Article 1112-1 states:

‘The party who knows information which is of decisive importance for the consent of the other, must inform him of it where the latter legitimately does not know the information or relies on the contracting party.

‘However, this duty to inform does not apply to an assessment of the value of the act of performance.

‘Information is of decisive importance if it has a direct and necessary relationship with the content of the contract or the status of the parties.

‘A person who claims that information was due to him has the burden of proving that the other party had the duty to provide it, and that the other party has the burden of proving that he has provided it.

‘The parties may neither limit nor exclude this duty.

‘In addition to imposing liability on the party who had the duty to inform, his failure to fulfil the duty may lead to the annulment of the contract under the conditions provided by articles 1130 and following.’[2]

The duty to inform has been described as ‘an essential principle for ensuring balance in contractual relations’[3] and illustrates the moral vision of contract shared by many French lawyers in that parties should refrain from behaving selfishly.[4]

This strategy is in contrast with the approach in English law, where ordinarily, no accountability results if a party fails to reveal information to the other throughout pre-contractual negotiations. The nonexistence of any general disclosure duty is based on the premise that pre-contractual negotiations between parties are carried out at arm’s length. Parties are presumed to serve only their own interests and information known to one party but not the other may be commercially advantageous to the party holding the information.

However, during the performance of the contract, the situation in English law is different. Ordinarily, there is a duty on participants to a construction contract to warn of defects or dangers in the works or proposed working methods. There are two principal sources for this duty: contractual obligations – construction contracts will usually convey an obligation to carry out work or discharge obligations with reasonable skill and care;[5] and common law obligations arising in tort, which may impose a duty to warn against hazards to life, limb or property.[6]

In these early introductory statements, reference has already been made to the varying terminology used within both the French and English construction sectors, those being: ‘duty to inform’, ‘duty to warn’, and ‘duty to advise’. It is worth briefly considering the distinctions from the outset. Linguistically, the Cambridge online dictionary provides us with the following definitions: information is defined as ‘facts about a situation, person, event, etc’.[7] Whereas the verb to warn is ‘to make someone aware of a possible danger or problem, especially one in the future’.[8] Finally, the verb advise is ‘to tell someone that they should do something’.[9]

In everyday parlance, the verbs are inter-changeable according to the situation, and will be used so throughout this paper. However, it is reasonable to attach ‘warn’ to situations relating particularly to safety. In the legal context, there is little by way of clear distinctions between either inform, advise or warn as pointed out by Malaurie et al.[10]

The modernisation of the French Civil Code (law of contract) and the codification of duty of information

For many French citizens, the Civil Code (often called the Code Napoléon after the First Consul when it was promulgated in 1804) has a central role in French society as well as in French law, and enjoys a cultural significance as well as a legal one.

This section is concerned with the modernisation of the section of the Civil Code on the law of contract. It will consider specifically Article 1112-1 of the newly codified provisions that came into force on 1 October 2016,[11] which imposes a duty to provide information (devoir d’information) during pre-contractual negotiations.

For context, it is necessary briefly to clarify the reasons for the reforms and consider the main changes relating to devoir d’information. It was apparent that the 1804 Code was no longer an accurate reflection of the law of contract implemented by French courts. Broad judicial interpretation over 200 years resulted in an ever-expanding separation with the body and context of the Code. It was considered that this disconnect was in part responsible for the loss of influence of the French Civil Code internationally. French contract law was additionally observed to be less appealing than some common law administrations as a ruling law of choice in international contracts. The intention was that modernisation would make it more competitive internationally.

The new Civil Code (law of contract)

The Introductory Provisions of the new Code declare three very general propositions: freedom of contract (Art 1102), the binding force of contract (Art 1103) and that ‘Contracts must be negotiated, formed and performed in good faith’ (Art 1104).[12] Article 1102 states: ‘Everyone is free to contract or not to contract, to choose the person with whom to contract, and to determine the content and form of the contract, within the limits imposed by legislation.’[13]

Freedom of contract is an abiding principle in French law. Nevertheless, its importance was overlooked in the original Code in which it did not appear. It is now installed as the first rule following the definition of contract (Art 1101) to emphasise its importance.[14]

In a similar vein, the new Code now formally recognises the binding force of contracts: ‘Contracts which are lawfully formed have the binding force of legislation for those who have made them’,[15] meaning that agreements must be honoured.

Regarding good faith, it is widely known that English law provides a marked contrast to the position adopted under French law.[16] While the English law of contract  embraces freedom of contract and the binding force of contract, it does not assent to accept a general principle of good faith.[17] Good faith is thought to be incompatible with the relative roles of contracting parties whose interests oppose each other (adversarial rather than collaborative), particularly in the context of contractual negotiations.[18] Whittaker’s position is that the ‘principles of freedom of contract and the binding force of contracts should not face any counter-principle. Instead, the courts must justify any exceptions to their application in the particular context, in the absence of a legislative decision to do so.’[19] As Moore-Bick LJ stated in rejecting the comments of Leggatt J at first instance,

‘The better course is for the law to develop along established lines rather than to encourage judges to look for what the judge, in this case, called some “general organising principle” drawn from cases of disparate kinds […] There is […] a real danger that if a general principle of good faith were established, it would be invoked as often to undermine as to support the terms in which the parties have reached agreement.’[20]

In other words, the black letter provisions of the contract must come first.[21]

Pre-contractual duty of information

While in French law, the duty to inform was already well established by case law, in the context of pre-contractual negotiations, Article 1112-1 gave devoir d’information enhanced significance by making it an independent and separate duty.[22]

A general duty to provide information operates seamlessly alongside good faith.[23] Nevertheless, the Report to the President affirms that this new pre-contractual information duty is independent in relation to good faith.[24] Despite this prominence, it has been suggested that the effectiveness of this duty has been diminished. The Report to the President of the Republic presents this requirement as a ‘matter of public policy’,[25] which appears to reinforce the importance attributed to the duty. However, Article 1112-1(5) does not declare that the duty to provide information is a matter of public policy, (unlike good faith at Art 1104). Rather, it states that a duty to provide information duty cannot be limited or excluded, which might be considered a slightly weaker obligation.

Generality

On closer inspection, the generality of the pre-contractual duty of information, becomes questionable. A pre-contractual duty of information will arise if one party has information that the other can legitimately ignore, or if one party legitimately relies on the other to provide information. French law, therefore, accepts that parties at the time of pre-contractual negotiations may not be on an equivalent informational basis. While such a duty may exist in certain circumstances, it does not necessarily follow that it is a general duty in the context of it being the status quo in most cases. The requirement established for the existence of the duty is significant. It follows that the pre-contractual duty of information may be less beneficial than intended.

Features of Article 1112-1

Existence of duty

For a pre-contractual duty of information to exist, two fundamental circumstances must be present: (1) one party has knowledge of information (the ‘information-giver’) which is of decisive importance; and (2) the other party is legitimately ignorant of the information or relies on the information giver to provide it (the ‘recipient of the information’).

Decisively important information

Article 1112-1 is quite precise about when a negotiating party is under the duty of information. It states: ‘Information is of decisive importance if it has a direct and necessary relationship with the content of the contract or the status of the parties.’[26]

Nature of duty

What defines a breach of Article 1112-1 and the consequent liability incurred is now considered. In the absence of an intention to fraudulently deceive,[27] a breach of a general pre-contractual duty of information will therefore equate to either a negligent omission to inform, or to have negligently provided incorrect or inaccurate information.[28]

Remedies

Recognising that a breach of the duty of information can follow either a negligent provision or a negligent omission will assist in the understanding of the remedies attached to this article of the Code and their association with Article 1130ff.

In the event of a breach of the duty, the due recipient of the information may claim damages; such an event may occur when the party who was under an obligation to provide the information has either negligently omitted to present the information at all, or has given it, but in a negligent fashion, that is, given incorrect or inaccurate information. If the negotiations subsequently fail as a result of such a breach to the extent that no contract is concluded, the beneficiary or due recipient of the information is able to bring a claim for damages restricted to wasted incurred costs and the loss of opportunity.

Article 1112-1(5) states that a duty to provide information duty cannot be limited or excluded

Should a breach of the duty of information occur, and the parties have reached an agreement (contractually), the potential remedies are greater, in that the claimant (recipient of the information) can claim damages and also have the contract annulled. Prima facie, the scope of the pre-contractual duty of information is considerable. However, the claimant can claim nullity only if the provisions of Article 1130ff are met, that is, by demonstrating that the negligent failure to provide information, or the negligently provided information, had induced a mistake.

As observed by one legal academic:

‘Once you start thinking about it, this might not be so easy to prove: an intended recipient of information has to demonstrate that she should have received the information, with which she would not have concluded the contract, or only on different terms, and since the information was not received, she made a mistake. In other words, in order to annul the contract, the claimant has to prove the existence of the duty, the breach and the mistake. In my view, this difficult evidential obstacle may mean that in practice bringing claims for breach of an information duty make it less useful than it at first appears. If there is any overtone of fraudulent information-giving or fraudulent concealment, such a breach falls under article 1137 on fraud. Either there was an intention to deceive, or there was not. It is axiomatic that negligently given information cannot become or turn into something fraudulent.’[29]

It might be considered that negligent misrepresentation under English law is more protective than the pre-contractual duty of information provision established in the Civil Code, subject to an important reservation regarding when misrepresentation is generated since within English law a general pre-contractual duty of information does not exist.

It is given that a claim for negligent misrepresentation can arise under the Misrepresentation Act 1967[30] (damages) or at common law (recission) whereby inaccurate information has negligently been given and a contract concluded. The comparison between French Civil Code and English law can only be made in circumstances whereby the information has positively been given (albeit negligently), as opposed to the negligent failure to provide information. Under English law, the claimant does not need to prove a mistake to rescind the contract. Under English law, the claimant asserting a misrepresentation must only demonstrate that the pre-contractual information received is inaccurate or incorrect, and that when concluding the contract he substantially relied on it.

If it can be established that either a negligent, or even an innocent, misrepresentation has been given, then the claimant (the recipient of the information) can rescind the contract and seek for damages under the Misrepresentation Act 1967.

In reality, the courts do not always rescind the contract in such circumstances but may instead award damages in lieu if it is equitable to do so.

It can therefore be seen that under English law there is no requirement to establish that the misrepresentation induced a mistake (although this might be the case). The requirement to positively provide true and accurate information is one of strict liability. This is important from a comparative position. Having considered the restrictive conditions, the evidentiary difficulties associated with establishing a pre-contractual duty of information and the need to identify a mistake, in order to be able to claim an annulment of the contract under the new Code, it is, therefore, questionable that the new pre-contractual duty of information under French law is as protective as initially intended.

Comparison with other systems

By comparison to the laws of other European countries, the recognition of a general duty of information is uniquely French. It is a truism that all continental legal systems acknowledge the presence of a pre-contractual obligation to inform, but by means of the requirement of good faith in pre-contractual negotiations, rather than by establishing a legal duty independent of good faith as is the case under the new French Civil Code. The contrast is clearly even starker with the position under English law, which does not accept any general pre-contractual duty of information.[31]

Duty to warn, inform and advise in English law

In English law no pre-contractual duty of information or disclosure exists. ‘Silence is golden, for where there is no obligation to speak, silence gives no hostages to fortune.’[32] However, during the performance of a construction contract there commonly exists obligations to warn of design defects, unsafe working methodologies, or other dangers to life, limb or property.

It is given that many standard building contracts impose contractual obligations on contractors by way of discrepancy clauses.[33] However, this section is largely concerned with the circumstances in which such duties are implied in construction contracts.

Who has a duty to warn?

Contractors

Duty to warn proceedings involving contractors have usually been determined by restricting the contractor’s obligations to their workmanship obligation. The accepted benchmark for such a duty is that of an ‘ordinary competent contractor’ to undertake the works with ‘reasonable care and skill’.

In the case of EDAC v Moss[34] HHJ Newey QC held there to be an implied term that the contractor, either as a result of experience or on examination of drawings, would warn of design defects as soon as they came to believe that they existed.

The same judge in Lindenberg v Joe Canning and Ors[35] found that a reasonably competent contractor would have warned the employer that the plan was defective.

In the case of Plant Construction v Clive Adams Associates (first defendant) and JMH Construction (second defendant)[36] the claimant, Plant, contracted with Ford Motor Company to construct pits for engine mounts at its research, development and engineering centre. Ford’s own engineer ignored JMH’s design proposal and instead instructed JMH to place temporary propping in specified positions to support the roof trusses. As competent engineers and contractors, both Clive Adams and JMH realised that the props were woefully inadequate but proceeded as per the instructions of the owner. Following heavy rain, the roof subsequently collapsed, entirely due to the inadequacy of the temporary supports.

It was held that JMH had an obligation to alert Plant that the system proposed by Ford’s engineer was inadequate as part of its implied contractual duty of reasonable care and skill. To discharge this duty, it should have ‘protested more vigorously’.

In his judgment May LJ said:

‘These temporary works were, to the knowledge of JMH (sub-contractor), obviously dangerous to the extent that a risk of serious personal injury or death was apparent. JMH were not mere bystanders and, in my judgment, there is an overwhelming case on the particular facts that their obligation to perform their contract with the skill and care of an ordinary competent contractor carried with it an obligation to warn of the danger which they perceived.’

The slightly later decision in Aurum Investments Ltd v Avonforce Ltd[37] emphasised that it must be reasonable to impose a duty to warn in the circumstances.

Professional consultants

A professional consultant’s involvement in a construction project might be from the early design concept through to the end of the defects liability period. It is entirely possible that the consultant might have an overarching role that involves approving the contractor’s proposals for the design of temporary and permanent works. This makes professional consultants particularly exposed to a claim that it has breached a duty to warn. As a competent professional with an advisory role, its obligation to apply skill and care may be interpreted widely.

The duty to warn usually arises in respect of errors in design and methods of working. Generally, case law shows that the duty extends only to dangers to life, limb or property.

Ordinarily, a design professional may be held accountable for permanent works, whereas the building contractor is accountable for its method of working and temporary works.

The leading case of Goldswain v Beltec Limited,[38] involving a professional engineer’s duty to warn on temporary works, Judge Akenhead considered five guiding principles regarding the duty to warn:

‘(a) Where the professionals are contractually retained, the Court must initially determine what the scope of the contractual duties and services were. It is in the context of what the professional person is contractually engaged to do that the scope of the duty to warn and the circumstances in which it may in practice arise should be determined.

(b) It will, almost invariably, be incumbent upon the professional to exercise reasonable care and skill. That duty must be looked at in the context of what the professional person is engaged to do. The duty to warn is no more than an aspect of the duty of a professional to act with the skill and care of a reasonably competent person in that profession.

(c) Whether, when and to what extent the duty will arise will depend on all the circumstances.

(d) The duty to warn will often arise when there is an obvious and significant danger either to life and limb or to property. It can arise however when a careful professional ought to have known of such danger, having regard to all the facts and circumstances.

(e) In considering a case where it is alleged that the careful professional ought to have known of danger, the Court will be unlikely to find liability merely because at the time that the professional sees what is happening there was only a possibility in future of some danger; any duty to warn may well not be engaged if all there is, is a possibility that the contractor in question may in future not do the works properly.

The courts do not always rescind the contract... but may instead award damages in lieu

The kind of hazard or risk about which the professional designer has a duty to warn depends on its contractual obligations and the scope of services it is providing.

In Hart Investments Limited v Fidler,[39] it was held by the court that an engineer had an obligation to warn the contractor and the client in respect of the inadequacy of the temporary works solution. The engineer was employed in connection with the permanent construction works, which included an implied duty to inspect the permanent structural works and also included a duty to warn ‘if it observed a state of temporary works that was dangerous and causing immediate peril to the permanent works’.[40]

Case law provides that the duty to warn obligation extends to other professional consultants. Chesham Properties v Bucknell Austen Project Management Services and Ors[41] considered to what extent the duty to warn obligation concerning other professionals applies. In this case, Chesham made allegations of professional negligence against its project managers and other members of its professional design team. Chesham asserted that its project managers owed them a duty to warn of actual or potential deficiencies in the performance of the architect, engineer and/or quantity surveyor.

The kind of hazard or risk about which the professional designer has a duty to warn depends on its contractual obligations and the scope of services that it is providing

In his judgement, HHJ Hicks QC held that:

‘The Project Manager was under a duty to inform their Client (Chesham) of actual or potential deficiencies in the performance of others. This arose out of its contractual obligation to “implement all monitoring procedures including the performance of consultants.” Monitoring in such a context could not sensibly be confined to passive observation only; it must include reporting to the principal on the performance being monitored by reference to the standards that should be achieved.’

However, where a claimant made a similar allegation as in the case of Royal Brompton Hospital NHS Trust v Hammond (No 7)[42], the Judge found that it was not part of the Project Manager’s duty to second-guess the decisions of the Architect.

Duty to warn in tort

When parties are not in contract, duty to warn obligations are limited. In the case of Cleightonhills v Bembridge Marine Ltd & Ors,[43] a case involving severe injuries to an employee and where several third parties were sued, Akenhead J stated:

‘In conclusion on this topic, I consider that an obligation to warn may arise in the context of a tortious duty of care, certainly in the case of a danger to people, known to exist by the person who it is said should be giving a warning. This will depend on all the facts and the circumstances, including what function and role the person said to be required to warn is fulfilling. All other aspects of the law relating to whether duties of care exist at all and the scope of such duties apply to the issue of whether warnings should be given. It is at least possible that where someone is charged, contractually, with an obligation to ascertain or check whether designs or works are safe for human beings, his or her tortious duty of care may extend to warning or advising about inherent dangers of which he or she should have been aware.’

In Stagecoach South Western Ltd v Hind,[44] Coulson J was concerned with the accountability of a tree surgeon (who was retained by the land owner) following the collapse of a tree onto a railway track. It was argued that the tree surgeon should have realised that there was a danger of the tree collapsing and owed a duty to warn to the claimant. In addressing the duty to warn, Judge Coulson said:

‘However, it does not seem to me that such a duty arises on the facts of this case. First, the “duty to warn” cases all arise in the context of a contractual relationship: there are no reported cases in which this kind of duty to warn is said to arise in tort, owed to a third party. There is no reason, either on the facts or as a matter of policy, to extend the duty in this case, particularly as [defendant] was a contractor, not a professional. That conclusion may be another way of expressing the conclusion I have reached above about the absence of sufficient proximity.’

Conclusions

In French law, the duty of information imposes obligations on the client to thoroughly appraise the building contractor about the project in terms of its precise deliverables, specifications, requirements to be achieved and general purpose. However, the extent of this duty needs to be nuanced. The courts will always attempt to reach a balance when considering the parties’ responsibilities. It is widely accepted and non-controversial that an experienced and competent building contractor would always seek to establish all relevant information, especially where the client is inexperienced in the particular type of project to be undertaken.[45] In all situations, the building contractor must carry out appropriate enquiries about the requirements of the employer and the purpose of the project.[46] Furthermore, the position established by case law is that the pre-contractual duty of information imposed on one party does not exempt the other party from discharging its responsibility of care and prudence. As pointed out by Rosher, the ‘French courts have even considered that the duty of using reasonable skill and care may result in an obligation to search for information and advice.’[47]

Legal systems are derived from legal theories, heritage and cultures. The difference between French contract law and the English legal system on the approach to the application of a pre-contractual duty of information at contract formation is an example of this reality.

As discussed, French law embraces an overarching principle that, as a matter of public policy, the parties negotiate, form and perform their contracts in good faith. Autonomous to good faith is the newly codified provision of a pre-contractual duty of information that ‘must mandatorily satisfy the requirements of good faith’.[48] Under English law, however, there is no such pre-contractual duty of information, often referred to as disclosure, nor is there recognition of a general guiding principle of good faith, which was unequivocally rejected by Lord Ackner in Walford v Miles[49] in which he famously said ‘the concept of a duty to carry on negotiations in good faith is inherently repugnant to the adversarial position of the parties when involved in negotiations’.

Notwithstanding the foregoing, several comparative elements appear. First, both systems recognise the important principles of freedom of contract and the binding force of contract; second, both espouse the value of contractual certainty.

French law has culturally forced on parties a greater degree of contractual loyalty. Pre-contractual duty of information is an aspect of such loyalty and follows in this tradition. Sensitive to perceived inequality of control between contracting parties, French law endeavours to guard a contracting party whom it regards as vulnerable so as to restore the status quo.

The modernisation of the Civil Code has achieved its stated objective of making French contract law more practicable and user-friendly. Its text is undoubtedly a more comprehensible, contemporary and reliable account of contract law in the 21st century. The codification of legal principles established in case law has achieved enhanced contractual certainty. No longer does one need to trawl through masses of case law developed over two centuries to understand the code.

However, while the new legislation introduces a fresh equilibrium between the contracting parties, and enhances accessibility and legal certainty in contract, it does not radically change the state of the law in this area; nor does it upset dramatically the traditional philosophical foundations of the law of contract. The reform looks more like a tidying-up operation rather than a far-reaching transformation of the law. Therefore, it is questionable whether the new law, which was also intended to increase France’s attractiveness against the background of a world market dominated by the common law, will keep its promise.[50]

In general, the duty to inform, advise or warn in French contract law is more onerous and far-reaching than English law in the fact that due to the pre-contractual nature of the obligation that exists in French contract law, attention is sometimes drawn to the inaction or failure of the construction client. This is not the case in English law, where claims for breach of such duties are generally directed towards contractors or professional consultants during or after the performance of the contract.

Table of cases

English law

Cleightonhills v Bembridge Marine Ltd and Ors [2012] EWHC 3449 (TCC)

Equitable Debenture Assets Corporation v Moss (1984) 1 Const. L.J. 131

Goldswain and Hale v Beltec Ltd [2015] EWHC 556 TCC, 159 Con LR 46

MSC Mediterranean Shipping Co SA v Cottonex Anstalt [2016] EWCA Civ 789

Yam Seng Pte v International Trade Corp Ltd [2013] EWHC 111 (QB)

Walford v Miles [1992] 2 AC 128, HL

ING Bank NV v Ros Roca SA [2012] 1 WLR 472

Lindenberg v Joe Canning and Ors (1992) 62 BLR 147

Plant Construction Plc v Clive Adams Associates and JMH Construction Services Ltd [2000] BLR 137, [2000] EWHC Tech 119

Aurum Investments Ltd v Avonforce Ltd and Ors [2000] 2All ER385

Hart Investments Ltd v Terence Maurice Charles Fidler and Larchpark Ltd [2007] EWHC 1058 (TCC)

Chesham Properties v Bucknell Austen Project Management Services and Ors [1997], 82 BLR 92

Royal Brompton Hospital NHS Trust v Hammond (No 7) 76 Con LR 148

Stagecoach South Western Ltd v Hind [2014] EWHC (TCC)

French law

Cass civ (3), 3 November 2011, no 09-13.575

Cass civ (3), 6 October 2010, no 09-68.989

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S Jackson, Good faith: what is it good for? (November 2018) 13 (3) Construction Law International.

R Jackson, Does good faith have any role in Construction Contracts? (January 2018) 207 Society of Construction Law.

R Sefton-Green, ‘Formation of Contract: Negotiation and the Process of Agreement’ in J Cartwright and S Whittaker (eds), The Code Napoléon Rewritten: French Contract Law after the 2016 Reforms (Hart 2017).

C Aubert de Vincelles, ‘Dol, Erreur and Obligation d’Information’ in J Cartwright and S Whittaker (eds), The Code Napoléon Rewritten: French Contract Law after the 2016 Reforms (Hart 2017).

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Ordonnance no 2016-131 du 10 février 2016 portant réforme du droit des contrats, du régime général et de la preuve des obligations, JORF no 0035 of 11 February 2016. The Ordonnance was translated by John Cartwright, Bénedicte Fauvarque-Cosson and Simon Whittaker www.textes.justice.gouv.fr/art_pix/THE-LAW-OF-CONTRACT-2-5-16.pdf.

 

[1] Ordonnance no 2016-131 du 10 février 2016 portant réforme du droit des contrats, du régime général et de la preuve des obligations, JORF no 0035, 11 February 2016.

[2] The Ordonnance was translated by John Cartwright, Bénedicte Fauvarque-Cosson and Simon Whittaker, see www.textes.justice.gouv.fr/art_pix/THE-LAW-OF-CONTRACT-2-5-16.pdf accessed 8 October 2021.

[3] Rapport au Président de la République relatif à Ordonnance no 2016-131 du 10 février 2016 portant réforme du droit des contrats, du régime général et de la preuve des obligations, JORF no 0035, 11 February 2016 see www.legifrance.gouv.fr/eli/rapport/2016/2/11/JUSC1522466P/jo/texte accessed 8 October 2021.

[4] O Desayes,T Genicon and Y-M Laither, Réforme du droit des contrats, du régime général et de la prevue des obligations, Commentaire article par article (LexisNexis, Paris 2016) 79 (as cited in S Rowan, British Institute of International and Comparative Law), The new French law of contract (May 2017) http://eprints.lse.ac.uk/75815 accessed 24 May 2020.

[5] Goldswain and Hale v Beltec Ltd [2015] EWHC 556 TCC, 159 Con LR 46.

[6] Cleightonhills v Bembridge Marine Ltd & Others [2012] EWHC 3449 (TCC).

[7] Cambridge Dictionary, https://dictionary.cambridge.org/dictionary/essential-british-english accessed 7 June 2020.

[8] Ibid.

[9] Ibid.

[10] Relating to the French obligation d’information, a variety of terms are sometimes used, including obligation de rensignement, which is relevant to the supply of information as opposed to advice; obligation d’avertir, which is used in the context of warnings against possible dangers; and obligation de conseil, which is utilised for advice. Notwithstanding the foregoing, there are no fixed distinctions between them. P Malaurie, L Aynès and P Stoffel-Munck, Droit civil: les obligations, (2nd edn) (Defrénois 2005), 251–52, as cited in J Bell, S Boyron and S Whittaker, Principles of French Law (2nd edn, OUP 2008) 309.

[11] See n 1 above.

[12] Art 1104 of the Civil Code.

[13] Art 1102 of the Civil Code.

[14] S Rowan, (British Institute of International and Comparative Law), The new French law of contract (May 2017) 7 http://eprints.lse.ac.uk/75815 accessed 24 May 2020.

[15] Art 1103 of the Civil Code

[16] See, eg, Shy Jackson, ‘Good faith: what is it good for?’ Construction Law International 13(3) November 2018.

[17] See, eg, Sir Rupert Jackson, ‘Does good faith have any role in Construction Contracts?’ Society of Construction Law, January 2018, 207.

[18] Walford v Miles [1992] 2 AC 128, HL.

[19] Simon Whittaker, ‘Contracts, Contract Law and Contractual Principle’ in John Cartwright and Simon Whittaker (eds), The Code Napoléon Rewritten: French Contract Law after the 2016 Reforms (Hart 2017) 45.

[20] MSC Mediterranean Shipping Co SA v Cottonex Anstalt [2016] EWCA Civ 789. Leggatt J had developed a view supportive of good faith in Yam Seng Pte v International Trade Corp Ltd [2013] EWHC 111 (QB).

[21] See n 17 above.

[22] Rapport au Président de la République relatif à Ordonnance no 2016-131 du 10 février 2016 portant réforme du droit des contrats, du régime général et de la preuve des obligations, JORF no 0035 of 11 February 2016 see www.legifrance.gouv.fr/eli/rapport/2016/2/11/JUSC1522466P/jo/texte accessed 8 October 2021.

[23] Ruth Sefton-Green, ‘Formation of Contract: Negotiation and the Process of Agreement’ in John Cartwright and Simon Whittaker (eds), The Code Napoléon Rewritten: French Contract Law after the 2016 Reforms (Hart 2017) 61.

[24] See n 22 above.

[25] Ibid.

[26] Ibid.

[27] Fraudulent deceit is a provision in the Civil new Code at Art 1137 (réticence dolosive). Although briefly mentioned here, it is beyond the scope of this article.

[28] See n 22 above.

[29] See n 23 above, at 64.

[30] Misrepresentation Act 1967 s 2(1).

[31] See n 18 above.

[32] Lord Justice Rix in ING Bank NV v Ros Roca SA [2012] 1 WLR 472 at 92.

[33] See, eg, the JCT SBC/Q 2016 Contract clause 2.15. However, such clauses impose a duty to notify (in the event of becoming aware of) rather than a positive duty to find.

[34] Equitable Debenture Assets Corporation v Moss (1984) 1 Const L J 131.

[35] Lindenberg v Joe Canning and Ors (1992) 62 BLR 147.

[36] Plant Construction Plc v Clive Adams Associates and JMH Construction Services Ltd [2000] BLR 137 EWHC Tech 119.

[37] Aurum Investments Ltd v Avonforce Ltd and ors [2000] 2All ER385.

[38] Goldswain and Hale v Beltec Ltd [2015] EWHC 556 TCC, 159 Con LR 46.

[39] Hart Investments Ltd v Terence Maurice Charles Fidler and Larchpark Ltd [2007] EWHC 1058 (TCC)

[40] Ibid.

[41] Chesham Properties v Bucknell Austen Project Management Services and Ors [1997] 82 BLR 92.

[42] Royal Brompton Hospital NHS Trust v Hammond (No 7) 76 Con LR 148.

[43] Cleightonhills v Bembridge Marine Ltd and Ors [2012] EWHC 3449 (TCC), 78-79

[44] Stagecoach South Western Ltd v Hind [2014] EWHC (TCC)

[45] Cass 3e civ, 3 November 2011, no 09-13.575. After undertaking works on a residential property, the client asserted that the building contractor was culpable for defects, particularly relating to the floor joists on the first floor, which prevented the property being fully used as intended. The Cour de cassation held that the building contractor should have made appropriate enquiries as to the final use of the project and advised the client on potential problems and the measures to be taken.

[46] Cass 3e civ, 6 October 2010, no 09-68.989. This case related to the construction of a warehouse. The second floor was intended to be used to store heavy goods. The building contractor was not made aware of its intended use and constructed a floor incapable of withstanding the intended loads. Similarly, the Cour de cassation found that it was the duty of the building contractor to enquire as to the intended use and build accordingly.

[47] Peter Rosher, ‘Good faith in construction contracts under French law and some comparative observations with English law’ (2015) The International Construction Law Review, 302.

[48] Civil Code 1112.

[49] See n 18 above.

[50] E Steiner, French Law: A Comparative Approach (2nd edn, OUP 2018) 212.

Philip Lawrenson is a senior commercial manager at Jacobs. He can be contacted at phil.lawrenson@jacobs.com.