The Concept Of Contract in The Code Napoleon

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Introduction and historical background leading to the formation of the Code Napoleon

One of the biggest dilemmas that jurist over the course of history have faced is over the question of codification of law. One school of thought believes that the best and most just application of law can be achieved only when the principles that will finally be used for dispute resolution are enunciated beforehand. These principles can then be applied to each case. A conflicting view held by proponents of the other school of thought holds the view that each problem that reaches the courts of law is sui generis[1] i.e. distinct in its own sense; therefore, it would not be apt to apply a premeditated solution to the case. The principle so laid down beforehand might not be able to anticipate the kind of problems it will be called upon to address in the normal course of working of the courts. The judges should, thus, be allowed to lay down principles in every case. This ideological difference formed a part of the intense tussle between 16th century English jurists Francis Bacon and Edward Coke. While Bacon espoused the cause of a uniform code, Coke was in favour of judges laying down the law. This aspect of the source of law, ultimately forms the biggest point of difference between the English common law and Continental Civil Law. The Code Napoleon or the Code Civil des François was declared as the supreme law to be used for governance in the territories of France[2] . The name Code Napoleon was ascribed to it in the year 1807. After Napoleon had been forced into exile, it reverted back to its original name but again in 1852 its name was changed to Code Napoleon. The code is nowadays commonly known as the French Civil code. While studying the historical background of the Napoleonic code, it would serve us well to keep in mind the fact that the Code Napoleon was not the first extensive codification of laws under one umbrella code. The very first such code was the Roman code “corpus juris” of emperor Justinian. This code formed the basis for modern jurisprudence and largely affected the subsequent codes in various countries. The notable among such codes were the “danske lov” of Denmark established by Christian V, Sweden’s (Sverige rikes lag) of 1736 and the “Allgemeines Landrecht für die Preußischen Staaten”,which was compiled on the orders of Frederick the Great in the year 1794.[3] The French civil code is more important than others because of the fact that it forms the basis of the legal systems in almost the whole world except for the common law countries like the United Kingdom, USA and India.[4] The legal system of post revolution France was, to put it mildly, in shambles. The country was plagued by multiplicity of laws operating in different parts of the country. While one section was governed by the older Roman law principles (droit écrit),

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