Academic journal article Texas International Law Journal

Two Hundred Years of a Famous Code: What Should We Be Celebrating?*

Academic journal article Texas International Law Journal

Two Hundred Years of a Famous Code: What Should We Be Celebrating?*

Article excerpt

I. INTRODUCTION

In Walpole's Anecdotes of Painting we are told the terms set by Oliver Cromwell for the painting of his portrait.' He thus told Peter Lely to "remark all these roughnesses, pimples, warts, and everything as you see me, otherwise I never will pay a farthing for it."2 Since neither the portraitist nor the subject were in any way diminished by the degree of frankness thus imposed (and achieved), the lesson for anyone celebrating the 200th anniversary of the French Code (CC) is clear. One must strike a balance between a panegyric, which some may feel an auspicious event such this calls for, and an accurate and thoughtful assessment of an historic enactment. To achieve this it seems to me one must try and pinpoint the Code's legacies for, indeed, there may be more than one.

Two hundred years of existence is a long time. The British who rightly lay great store on tradition will respect this. Yet, let us start by enquiring how many of the original provisions of the text we are celebrating are still in force?

On the last count, 1,115 original provisions survive out of the original 2,281.3 That is just less than half. The last time such a count was attempted was in 1965.4 At that time, 1,716 articles remained intact. It would seem, with the passage of time, the death of the cells accelerated. Indeed, remaining with our human metaphor, we are now celebrating the birthday of a person who has had a heart, lungs, and liver transplant. Depending how one looks at the patient, one could argue that even more of his features have gone during his long life! In many respects he is a different person; yet he is still alive. That is no mean achievement.

But what does our birthday man look like? The Code has for long been recognised by its good looks. By this I mean its lapidary style-a style which reputedly led Stendhal, when writing his Chartreuse de Parme, to claim that he read its text at least once a day in order to enjoy good French.5 No doubt this was true of many of its famous provisions.

Consider Article 312: L'enfant concu pendant le manage a pour pere le mari. (The child conceived in marriage takes the husband as its father). Or recall Article 2279: "en fait des meubles possession vaut titre." (In the case of movables, possession means title). As Zweigert and Kotz rightly state: "This provision can hardly be bettered for dramatic tautness";6 and it was not the only one, all of which may accounted for the fact that the Code proved so exportable as a legal model of regulating the bulk of private law.

Yet our German friends do not pay compliments easily; and in the case of Article 2279 for instance-and many other examples have been given by them-they observed "that it gives only the shadowiest indication of the underlying thought."7 Windscheid, that great German Romanist who was to have such a direct impact on the drafting and content of the newer (1896) and much more dour German Civil Code (BGB), thus thought that the French Code lacked the "true inner precision which comes from complete clarity of thought."8 So, still looking at Article 2279 CC, what does possession mean? Is good faith necessary? What amounts to good faith? And when must it exist?

These criticisms of the Code civil must not be dismissed lightly. The German Pandectists of the nineteenth century spent much time and effort discussing these issues. Paragraph 932 BGB was their answer. Whereas Article 2279 CC amounts to seven words, its German counterpart runs to nine lines. Like most German legal writing, judicial or legislative, the wording of Section 932 leaves little to the imagination. The nineteenth century German debates over the precise meaning of possession, detention and the like did not impress everyone. Among their American admirers, Holmes was among the most sceptical.9 The entire literature on this subject has now receded into the background. Its intellectual depth deprived of much of its original allure. …

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