The negotiation stage of a contract in Maltese and French contract law

Abstract

This work aims to examine the similarities and differences that exist between the Maltese and the French legal systems in what concerns the precontractual stage, with the main focus being the element of good faith, the principle of freedom to contract coupled with the pacta sunt servanda rule, and the precontractual duty to inform. After having examined the provisions found in the Maltese and the French Civil Codes, together with the relevant jurisprudence, one can see that whilst the former has almost invariably relied on the courts for a case-by-case approach, with very little legislative revision over time, the latter instrument has strived to introduce a specific section in the reformed French Code Civil to specifically regulate the negotiation stage. An intriguing finding is that although both the French and the Maltese legal systems wholeheartedly follow the volonta (will) theory, and unquestionably uphold the principle that no person is bound unless he agrees and intends to bind himself, in practice, the volonta theory’s promoted equality had to give way to the affidamento (trust) theory, where the legitimacy of contracts is regarded to be governed by good faith rather than by contractual freedom. The study ultimately concludes that legislative intervention, as is the case under the French legal system, is necessary to address certain uncertainties that may exist, thus providing the Maltese legal system with greater certainty and clarity on the duties that apply in the contract negotiation stage.