WALTZ (Belinda) – FRAUD IN CONTRACT FORMATION: AN ESSAY IN A NEW THEORY, Jean Moulin University Lyon 3, Thesis (Jury: Carole Aubert de Vincelles, Blandine Mallet-Bricout, Denis Mazeaud, Stéphanie Porchy-Simon, Éric Savaux)
WALTZ (Belinda) – FRAUD IN CONTRACT FORMATION: AN ESSAY IN A NEW THEORY, Jean Moulin University Lyon 3, Thesis (Jury: Carole Aubert de Vincelles, Blandine Mallet-Bricout, Denis Mazeaud, Stéphanie Porchy-Simon, Éric Savaux)
    WALTZ (Belinda)
    FRAUD IN CONTRACT FORMATION: AN ATTEMPT AT A NEW THEORY, Jean Moulin University Lyon 3, Thesis (Jury: Carole Aubert de Vincelles, Blandine Mallet-Bricout, Denis Mazeaud, Stéphanie Porchy-Simon, Éric Savaux)
Édition :
    Lyon
Date :
    2011
    in-8, paperback, AUTHOR'S INSCRIPTION, very good condition, [this book comes from the personal library of Philippe Malinvaud], 599 p.
    Unpublished thesis. “Today, it is not uncommon for a person to find themselves in a position of weakness when entering into a contract. A company in a situation of economic dependence, a consumer facing a professional, the increasingly frequent use of adhesion contracts—all these factors can lead to the vulnerability of a contracting party. The risk then is that the so-called ‘strong’ party will abuse its position to push the other into entering into a highly unbalanced agreement, primarily benefiting the perpetrator of the abuse. Since this reprehensible type of behavior manifests itself during the formation of contracts, the injured party should be able to find protection through the theory of vitiated consent. However, this theory is now proving inadequate to effectively protect contracting parties who are victims of abuse. This observation is mainly explained by the fact that it has remained unchanged since 1804. Based on an individualistic conception of the contract, the conditions for admissibility specific to each vitiated consent—namely, mistake, duress, and fraud—are too restrictive.” However, given the current prevalence of contractual inequalities, which inevitably lead to more abuses, it is therefore necessary to reinstate such a theory to adequately protect contracting parties. We propose to do so through the concept of fraud. This choice is not accidental. It is justified by the fact that fraud is a civil wrong, even before it is a vitiation of consent. More precisely, it is a manifestation of pre-contractual disloyalty. Recognizing it as an act that alters the will then generates two negative effects. The first stems from the fact that it appears, in positive law, as a complex concept, a source of contradictions. The second consists of being able to only imperfectly punish dishonesty perpetrated during the formation of contracts, due to the overly narrow scope of fraud, which is limited to induced error. By restoring it to its true nature, that of a civil wrong vitiating the contract, and by addressing the breach of pre-contractual good faith, these two imperfections would be remedied.

Référence : 54266

45,00 €

Mots-clés : Law of Obligations

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