Dissertations / Theses on the topic 'Vices du consentement'
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Pfalzgraf, Nathalie. "Vulnérabilité et vices du consentement." Thesis, Strasbourg, 2015. http://www.theses.fr/2015STRAA028.
Full textA recent phenomenon is the introduction in the law of less legal concepts with higher elasticity, which give the judge a broader discretion. This is the case for the concept of vulnerability. Although vulnerability was never completely absent from our law, more amazing is the fact that this notion is taken into consideration in the jurisprudence relating to defects of consent even if in contradiction with the texts of the Civil Code. If this term has been used it is because the Jurisprudence has since a long time distorted the meaning of the texts. To better understand this concept, a detour by other institutions will determine its future concerning defects of consent. The different French or European projects of contract law reform are also considering this notion. However, these discussions demonstrate that its introduction in the texts relating to the defect of consent is challenging
Valoteau, Aude. "La théorie des vices du consentement et le droit pénal /." Aix-en-Provence : Presses Univ. d'Aix-Marseille, PUAM, 2006. http://www.gbv.de/dms/spk/sbb/recht/toc/520818334.pdf.
Full textValoteau, Aude Maistre Du Chambon Patrick. "La théorie des vices du consentement et le droit pénal /." [Aix-en-Provence] : Presses universitaires d'Aix-Marseille-PUAM, 2006. http://catalogue.bnf.fr/ark:/12148/cb40196394z.
Full textSiri, Romain. "La théorie générale des vices du consentement, entre mythe et réalité ? /." Aix-en-Provence : Presses universitaires d'Aix-Marseille, 2008. http://catalogue.bnf.fr/ark:/12148/cb41273239q.
Full textMaume, Florian. "Essai critique sur la protection du consentement de la partie faible en matière contractuelle." Thesis, Evry-Val d'Essonne, 2015. http://www.theses.fr/2015EVRY0012/document.
Full textThe notion of « weak contracting party » is not conceptualized in French contract law. However, it is frequently invoked to the point of having been behind the creation of entire sections of law, such as consumer law. Therefore, the situation is paradoxical. Besides that, the protection of those presumed « weak contracting parties » are multiple, scattered and often ineffective. It is consequently appropriate to conceptualize this notion, and thereby clarify the protection of its consent. Moreover, these creations should be incorporated in the Civil Code, in order to constitute a genuine common law benefiting all, rather than a series of exceptions benefiting only some contractors
Vilotitch, Drag Yov. "De la nullité du mariage pour vices du consentement en droit français et dans les principales législations étrangères." Lyon : Université Lyon3, 2006. http://thesesbrain.univ-lyon3.fr/sdx/theses/lyon3/1990/vilotitch_y.
Full textJakouloff, Karim. "L'influence des droits de la consommation et de la concurrence sur la théorie des vices du consentement." Thesis, Paris Est, 2013. http://www.theses.fr/2013PEST0094.
Full textThe theory of the defect of consent offers a generic protection of the contracting party against all risk of consent modification. Having noticed its inadequacy, the laws of consumerism and competition have chosen to adopt a set of specific rules aiming to protect on one hand the consumer, and on the other hand the professional, both in a weak negotiating position, against these same risks. Within the consumerism law, this has been achieved under the European Rights impetus. The 11 May 2005 directive concerning unfair business-to-consumer commercial practices has largely dictated the content of the protective measures nowadays applicable to customers. In the same way, the Second Title of the First Book of Consumer Code, dedicated to commercial practices, consists of a preliminary chapter establishing the unfair business-to-consumer commercial practices. It follows by the 1st chapter, where the 1st section deals with misleading commercial practices, whilst the 2nd chapter, 5th section deals with aggressive commercial practices. Hence the competition law has resorted spontaneously to this option. Fourth Book includes fourth Chapter, where the second Chapter relates to the ban of competitive restrictive practices. These ones, forbidden per se, apparently have no link to this theory of the defect of consent. However, if we look closer, some of them have indirectly the aim to balance present forces at the negotiation stage via a distribution contract between professionals. In fact some will be keen to ban certain professional's behavior that, having a certain economical advantage, could be tempted to play in such a way so as to acquire unjustified contractual advantages from contractual partners, economically dependent. In doing so, the latter would need to have their consent protected.By developing such legislation, special laws have distanced themselves from their mutual purpose. Thus, if it is true that the consumerism law offers a set of rules aiming to prevent any defect of consent should it arise, it equally proposes a multitude of preventive rules but of a delicate maneuver – this being an original approach within the theory of defect of consent of common law, trying to repress the abuse effectively altering the contractual consent. Their comprehension as well as the putting it into practice would require a certain skill, to the point of risking the protection effectiveness that it aims to provide. As to the competition law, a set of rules aiming to forbid per se sensitive behavior, it would endanger only particular interests of professionals in a weak negotiating position, and not the whole market, manifestly tending to divert the matter from its initial result.To find a solution to these observations would imply to take into account the possibility of cutting off special rights of certain legal rules aiming to protect contractual consent they are under the obligation of, in favor of the theory of defect of consent. Such solution would lead to re-focusing on consumer and competition laws around their respective result, which are on one hand the protection of consumer's personal interests, and on the other hand market protection. It would then mean that the contracting party, sheltered by special rules, would not see their protection level diminish. To be re-assured there's the need to determine the nature of the improvements the theory of defect of consent would require, so as to include a part of the litigation of special law. The latter, inspired by a study of special law, could then benefit of the whole contractual under the common law
Waltz, Bélinda. "Le dol dans la formation des contrats : essai d'une nouvelle théorie." Thesis, Lyon 3, 2011. http://www.theses.fr/2011LYO30109.
Full textProfessional, or the increasing use of adhesion contracts (“take it or leave it agreements”), all are factors that can lead to the contractor’s vulnerability. The risk is, for the so-called “strong” party, to abuse its position in order to force the other party into a strongly unbalanced agreement, mainly in its own benefit. Since such a reprehensible behavior occurs during the contract formation, the weakened party should be able to find protection through the use of the defects of consent theory. However, this theory has proven inadequate to effectively protect abused contractors today. A major explanation is due to the fact that this theory remains unchanged since 1804. Based on an individualistic conception of the contract, conditions of admission of each defects of consent, such as error, abuse and fraud, are too restrictive. However, the more contractual inequalities exist, the more they will turn into abuse. Therefore, this is why such a theory should be restored in order to protect contractors. It is through the notion of “dol” (willful misrepresentation or fraudulent concealment) that we propose to do so. This choice is not a coincidence. It is justified by the fact that “dol” is a tort, even before being a defect of consent. Specifically, it is the manifestation of pre-contractual disloyalty. Its recognition as a fact altering willpower will generate two negative effects. The first is linked to the fact that “dol” appears to be a complex notion and a source of contradiction in substantive law. The second is not permitting to properly penalize the dishonesty perpetrated during the contract formation due to a too narrow scope of the “dol”, the latter being understood as an induced error. Giving it back its real nature of a civil tort defecting the contract and undermining the pre-contractual good faith, our work aims at finding a remedy to these two shortcomings
Marie, Alexis. "Le silence de l'Etat comme manifestation de sa volonté." Thesis, Paris 2, 2013. http://www.theses.fr/2013PA020061.
Full text. During the work of the International Law Commission regarding Unilateral Acts of States, the Special Rapporteur denied that State’s silence could be qualified as a manifestation of its will. Nevertheless,no theoretical reason justifies this position. The study of the practice reveals more over that, as the casemay be, State’s silence can be qualified as refusal or as acquiescence and that it plays a fundamental role in the formation, the interpretation or the modification of legal interstate relations. Indeed, since it is the State’s prerogative to appreciate the legality of the behavior of others States, legal certainty imposes to hold the legal relevance of their silence. Under its diverse facets, this objective constitutes the raison d’être of the effect attributed to silence and thus allows a systematization of the various hypothesis in which it is taken into account. Depending on the situation to which it reacts, silence ensures the current or future determination of legal relations. Furthermore, the study of the conditions necessary for the production of the silence’s effects reveals that positive law consecrates the theoretical possibility of qualifying silence as a legal act. International law requires, in order toattribute an effect to silence, that the silent State was free to react and had knowledge of the situation that made his silence legally relevant. Moreover, the rules governing the proof of the knowledge and of the existence of silence do not necessarily justify the criticism towards the fictive character of the voluntarist explanation of the phenomena. There is, in any event, no legal fiction in qualifying silenceas a legal act
Machefaux, Erwan. "L'obligation d'information dans les cessions de contrôle." Thesis, Paris 1, 2020. http://www.theses.fr/2020PA01D042.
Full textTransfers of control are a particular type of share transfer, with their own legal framework, as they form, at the same time, the main means of transferring companies. As such, they are a major economic challenge; difficult to control since the company itself is a complex construct. Moreover, there is an important imbalance of knowledge in relation to the transferred company between the parties. Also, very frequently, transfers of control disputes arise from an event occurring after the transfer, but which originates during the period of management by the transferor. The transferee is therefore disappointed by the devaluation of the shares and has to deal with the adverse consequences following its acquisition of the company. In the first instance, the main recourses available to the disappointed transferee allowing notably the sanction of the violation of the transferor’s duty to inform are examined within the legal framework. This includes notably the defects in consent (mistake and fraud), the guarantees related to the sale (the guarantee against latent defects and the guarantee against dispossession), as well as the duty to inform formalized by the reform of French contract law dated 10 February 2016. In the second instance, the main agreements which formalize the operation and allow the parties to deal contractually with such duty to inform are analyzed. This comprises notably the liability guarantee, price adjustment clauses and due diligence. The recourse to professional experts and the reliability of information provided are also examined. This analysis through the spectrum of the duty to inform sheds an updated light on transfers of control. It contains the tools to assess the chances of success of the different recourses available and the implementation of a global legal strategy
Martinez-Cardenas, Betty Mercedes. "La responsabilité précontractuelle : étude comparative des régimes colombien et français." Thesis, Paris 2, 2013. http://www.theses.fr/2013PA020005/document.
Full textPre-contractual liability is derived from the transfer of the duty of the contracting parties to act in good faith from the contract performance phase to the contract formation phase. This transfer was carried out in Colombia by legislative action through the 1971 Commerce Code and in France, by jurisprudence. Nevertheless, the repressive nature of liability during contract formation is still interpreted as simply a reminiscence of delictual liability, at best, and as a marginal sanction for contractual liability, at worst. The goal of this study in comparative law is to find a criterion that confers autonomy and specificity to pre-contractual liability. Therefore, careful analysis by the author led to the discovery that those who insist on denying the existence of pre-contractual liability by linking it to delictual liability have based their argument on a chronological perspective taken from the old notion of contract, i.e., the time of execution. Furthermore, in their view, the absence of a contract justifies the application of the non-contractual liability regime. However, a comparison of the Colombian and French systems on this matter shows the fragility of the argument when faced with the large number of victims of defects of consent who, day after day, prefer indemnification of damages instead of a ruling of nullity of contract. This fragility is much more evident when judges order the indemnification of damages in well-formed contracts, due not to faults related to failure to meet any of the obligations that are derived from them, but to faults originating in the contract formation phase. In essence, finding common ground and discrepancies between the Colombian and French law systems regarding the contract formation phase and comparing them with the mutations of the good faith regime seem to actually contribute to consolidating pre-contractual liability as an autonomous institution
Rovinski, Jean. "La violence dans la formation du contrat." Aix-Marseille 3, 1987. http://www.theses.fr/1987AIX32004.
Full textViolence in our society is all-pervading, but economic exchanges carried out by means of a contract are shown to be implicated most of all in the sense that they call into use agents having a dominant position. Today's economic and social realities provoked us into deepening our thoughts on the legal definition and the role of violence in the contract laws. The contract, in fact, sanctions conflictual relationships, which stem from the heart of a number of other economic pressures. When some already speak of the abuse of contractual power, the abuse of economic power, the exploitation of the contractuants weaknesses, what should the notion of contractual violence be today? after having systematically analysed the whole of the case laws concerning the violence flaw, so as to isolate the criteria and conditions of enforcement, having successively studied the perpetrators and victims of violence then the contractual situations which favour violence, we then attempted to get a better grasp of the new notions of contractual violence by studying it in its relationship with the totality of judicial notions both subjective and objective which oppose it, and also by judging the effect of legislative reforms which have recently come into use in the matter of contracts. We therefore have tried to define the place of renowed violence flaws within the framework of modern contract laws. The contractual flaws of violence, such as they are defined by the law courts, appears to us to be the abusive use by a dominant contractuant of his state of contractual superiority during the period of negociation, caracterised by material or psychological pressure which affects the freedom of the agreement of the contract in a way which is strong enough to later justify the cancellation of the unbalanced contract, which in so doing creates unfair advantages in favour of the dominant contractuant. Thus "objectivised' and better defined in its double form of civil contravention
Abdelwahed, Mohamed. "Le droit au prix dans le marche public de travaux. Etude comparee en droit francais - droit egyptien." Rennes 1, 1991. http://www.theses.fr/1991REN11016.
Full textThis study is to give a description and an analysis of the most important right that a contracting party with the civil service seeks to acquire in order to car ry out a public enginering operation in return for a public market, meaning the right to a price fix. The aim is to compare this right within two systems one of wich is a strong derivation from the other. Egyptian law as a consequences of a geographic proximity primarily refers to french laws. But is it the same when it is a matter of applicable rules as far as the price is concerned. It appears that france has proved to be concerned with improving the image of its civil service it aims at expanding its scop from a legislation designed exclusively for the be nefit of the civil service to a legislation drafted for the contractor. However we must keep in mind that the goal of such reforms is to bring about a certain balance between the rights and obligations of each party and not to unbalance in favour solely of the contractor. In egypt the evolution in the field has not yet taken place. In fact the improvement of the contractors' situation in france is based primarily on the research into a reinforcement of the interests on arreas scheme, whilst in egypt the interest system, wether excessive or not constitues a usury prohibited by charia
Tamod, Nafissa Luana. "L'abus de l'état de dépendance en droit des contrats." Thesis, Montpellier, 2019. http://www.theses.fr/2019MONTD015.
Full textThe Ordinance n° 2016 – 131 of February 10, 2016 — reforming Contract Law, the General Rules and Proof of Obligations —, ratified by Act n° 2018-287 of April 20, 2018, announces a paradigm shift in French Contract law.So far, the freedom of contract and legal certainty were the cornerstone of the French Civil Code. Nowadays, it will also have to deal with the protection of the weaker party.The abuse of the state of dependence’s legal recognition illustrates it. This enshrinement, coming from influences at both an international — the harmonisation projects, the foreign legislations which compete with French law but also foreign legislations which drew inspiration from it, have all enacted statutory provisions punishing the abuse of the state of dependence —, and national level — the legal doctrine and the case law which encouraged the lawmakers to recognise the notion — looked promising.However, as a result of the Ratification Act, restrictions were imposed — owing to disquiet about legal certainty and fears of economic circles —, and raised concerns about the implementation of article 1143, particularly with regard to the connivance of the third party which corresponds to the doctrine of notice in equity.Thus, it appears that the stated objectives of legal certainty and protection of the party in a state of dependence might be irreconcilable.Indeed, under article 1143 of the French Civil Code, « There is also duress where one contracting party exploits the other’s state of dependence on him and obtains an undertaking to which the latter would not have agreed in the absence of such constraint, and gains from it a manifestly excessive advantage ». Contrary to this opinion, this thesis aims at proving that legal certainty and the protection of the weaker party are not antinomic. Indeed, the abuse of the state of dependence can achieve both objectives. This is attested to, for example, by English law and Argentine law and these laws will help us in our conceptualisation of the abuse of the state of dependence in Contract law
Niel, Paul. "Essai sur les fonctions du juge administratif face aux principes civils du contrat de transaction." Thesis, Aix-Marseille, 2014. http://www.theses.fr/2014AIXM1017.
Full textParticipant of a mixed nature, by its contractual source, legal in its object, the transaction and allows the parties to end a dispute arising or prevent future litigation. It has a remarkable usefulness for administrative matters. The transaction, civil law concept borrowed by the administrative judge, gave rise to various interpretations praetorian. The law is not static, the administrative judge, under cover of a personal philosophy, worked to preserve its interests gradually detaching civilians principles of contract transaction. The term "administrative transaction" refers to the fact that the transaction is entered into by or on behalf of a public entity. This can however be a private contract or an administrative contract. Admittedly, the term "administration" can be interpreted broadly and narrowly. Litigation of the transaction is booming. Has long been public law borrows the civil rules of contract transaction subject to different legal regimes. Serious difficulties remain. Also, it was necessary to demonstrate why and how the administrative judge undertook a clarification of the law of the transaction in administrative matters. The study was an opportunity to distinguish the function of adaptation and systematization of administrative courts, where this differentiation was rarely considered