Essai sur les fonctions de la responsabilité contractuelle : l'éclairage du débat doctrinal par la pratique judiciaire française

Doctoral thesis (2021)

In French law, the debate regarding the functions of contractual damages still divides legal scholars. On the one hand, an unitarian approach argues that contractual damages should only compensate the ... [more ▼]

In French law, the debate regarding the functions of contractual damages still divides legal scholars. On the one hand, an unitarian approach argues that contractual damages should only compensate the creditor for his loss (‘réparation’). On the other hand, a dual approach argues that damages should protect the creditor’s right to performance (‘exécution par équivalent’). As a result, damages are not awarded because the debtor is liable, but because the contract guaranteed the performance of an obligation. However, some scholars take a position which aims at reconciling these conflicting positions by recognising the dual function of contractual damages. At a time when the French civil Code is being remodelled, our work tackles this debate with an innovative approach. Using both a comparative and an empirical method, our research verifies the viability of the theoretical arguments. The comparative perspective seeks to highlight the shortcomings in the structure of the debate in French law. The empirical perspective is testing the proposals put forward in the scholarly literature in order to pave the way for a renewed and structured duality of functions of contractual damages. [less ▲]