The Duty of Disclosure: Tendencies in French Law, Dutch Law and English Law; Criterions, Differences and Similarities between the Legal Systems

DOI10.1177/1023263X0000700305
AuthorMadeleine van Rossum
Publication Date01 September 2000
SubjectArticle
Madeleine van Rossum *
The Duty
of
Disclosure: Tendencies in French Law,
Dutch Law and English Law; Criterions, Differences and
Similarities between the Legal Systems
§1. Introduction
The question how far a duty of disclosure exists is an old moral and legal crux.
Furthermore, a comparative investigation of the scope of the duty to disclose is most
rewarding because it leads us straight to the heart of the philosophy underlying the law
of contracts. 1
In this respect Cicero already made a distinction between what is morally right and what
is expedient. He gave the hypothetical example
of
a merchant who arrives in Rhodes
from Alexandria with a cargo of corn at a time of famine. On his voyage he has
overtaken anumber of other ships also bringing corn, and so knows that the shortage
will soon been over. Should he reveal what he knows or is he free to say nothing and
sell his cargo at extortionate prices? One philosopher said that all the merchant need
do is to abstain from active deception. The other appealed to the ideal of serving one's
fellow man.
Cicero put a second case: that of the seller of a house which he knows to be dangerous
and likely to collapse. Must he reveal the defects? The first philosopher said that the
buyer must rely on his own judgment; the other compared such a position to failing to
put a blind man right when he has taken the wrong road. Cicero gave his support in
both cases to the second philosopher, thus incorporating morality into the heart of law.
These illustrations clearly show the dilemmas which a duty of disclosure could produce.
*
1.
300
Senior Lecturer in Private Law, Maastricht University.
Kessler and Fine, 'Culpa in Contrahendo, Bargaining in Good Faith, and Freedom of Contract: A
Comparative Study', 77
Harvard
Law Review(1964), 401 at 438.
7 MJ 3 (2000)
IMadeleine van Rossum
In this article I will first make some general remarks about the legal attitude towards
a duty of disclosure under French law, Dutch law and English law. On this basis I will
try to formulate some criterion which might lead to an obligation to give relevant
information and elaborate on the way these criterion are worked out in the legal systems
under investigation. I will also pay attention to the economic analysis of law which is
very interesting in this context because it gives a remarkable view on the aspect of
knowledge and deals with the question whether and under which circumstances
knowledge could impose a duty of disclosure.
The dilemmas that a duty of disclosure may evoke can be clearly illustrated by some
striking court decisions concerning the sale of art. In this respect some leading cases
will be evaluated and compared.
I will conclude with summarizing the main tendencies as regards the duty of disclosure
under the legal systems under review and point out the main differences and similarities.
I will also try to assess whether a red thread could be traced through the various legal
systems, which might bind them together.
§2. French Law: Towards a General Duty of Disclosure
One of the most striking recent developments of French contract law has been the
multiplication of pre-contractual duties of disclosure. 2Several duties
of
disclosure have
been imposed by legislation, with most of the duties enacted for specific purposes:
insurance, credit and guarantee, distribution, traded securities. Legislation even seems
to go further, moving towards a general duty of disclosure in the contractual
relationship between consumers and professionals.
Alongside legislation, case law has established duties of disclosure based on the Code
Civil, particularly in the area of lack of consent (vices du consentement, erreur, dol),
latent defects (garantie des vices caches) and liability for pre-contractual fault ifaute
precontractuellei .
It may be argued that French courts have extended and interpreted the scope of these
provisions so broadly that they result in a general doctrine of pre-contractual duties to
disclose information. Ghestin3traces in French law the elements
of
an ever growing
synthesis
of
legislative and judicial rules, resulting in a more or less consistent concept
of an obligation precontractuelle de renseignements in which the nature of the contract
and the relationship of the parties, especially between laymen and professionals, is
2. Fabre-Magnan, 'Duties of Disclosure and French Contract Law: Contribution to an Economic
Analysis', in I.Beatson and D.Friedrnan (eds.), GoodFaith and Fault in
Contract
Law, (Clarendon
Press, 1995), 99 et seq.
3. Ghestin, 'The Obligation to Disclose Information, I: French Report', in D. Harris and H. Tallon
(eds.), ContractLaw
Today,
Anglo-French
Comparisons,
(OxfordUniversity Press, 1989), 151etseq.,
I.Ghestin, Traitede droit civil, Les obligations; formation, (L.G.D.I., 1988), 502 et seq.
7 MJ 3 (2000) 301

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