CHAPTER 2.

OBLIGATION AND DUTY

 Main concerns

I. THE AMBIGUOUS USE OF THE TERM ‘OBLIGATION’

The term ‘obligation’ is widely used. Depending on the context, the use of the word leads to
an univocal meaning or to ambiguous meanings.
For instance, the term ‘obligation’ in the singular or ‘obligations’ in the plural is univocal
when it refers to what one party has agreed to perform under the terms of an agreement. In this
sense, the positive counterpart of the obligation is the right (‘rights and obligations’), that is to
say what the creditor is entitled to receive from the debtor. This is a classical view of the term
‘obligation’ seen as ‘a tie which exists between at least two individual persons which enables
one person to request something from the other’1. The obligation should therefore be perceived
as including a legal tie, a legal tie between at least two persons and a coercitive power enabling
the enforcement of the obligation. It should be distinguished from the chose in action which is
‘the anticipation of the objective economic result expected from the performance of the
obligations’2. In this context, it would seem preferable to focus on the term ‘obligation’
exclusively.
Other uses of the term ‘obligation’ would however appear ambiguous. Firstly, an ambiguity
occurs when the term ‘obligation’ is used to refer to the contractual relationship between the
parties. It would be preferable to refer to the global contractual relationship by the term
‘contract ’ or, in order to avoid any ambiguity, with wording such as ‘the relationship between
the parties’. Such a clarification would result in the parties having to fulfill obligations under the
terms of the relationship which holds them together. It would therefore be superfluous to specify
that the parties are under ‘contractual obligations’. Secondly, the use of the term ‘obligation’
is ambiguous in French when it is understood as meaning one of the terms and conditions of
performance for the obligations undertaken by the parties. Thus, the article 7:105 of the
Principles of European contract law (PECL), entitled ‘obligation alternative’ in French, deals
with ‘prestations alternatives’ in the body of the text, translated into English as ‘alternative
performance ’. In this context, the term ‘obligation’ could simply be replaced with the term
‘performance’ (‘exécution’ in French). Thirdly, it should be noted that the term ‘obligation’ is
used in a haphazard way to refer to the delivery of property. Without going into a detailed
analysis of delivery, the reference to the term ‘obligation’ may not be entirely appropriate in this
context.
Finally, an ambiguity occasionally arises, not from the use of the term ‘obligation’ but from
that of ‘engagement’ (in French). Indeed, although it is traditionally considered that consent
finds its source in the freewill of the parties and that it is the origin of the obligations, it would
appear that it is often used instead of such obligations. It would seem useful, in order to avoid
ambiguities, to determine a standard use of vocabulary, particularly since the English

1
J. GHESTIN, M. BILLIAU, G. LOISEAU, Le régime des créances et des dettes, Traité de droit civil, LGDJ,
2005, n°4, p.3. This definition appears as a common basis for the various academic proposals.
2
J. GHESTIN, M. BILLIAU, G. LOISEAU, op. cit. n°6, p. 8.

2
translations of certain French texts are surprisingly inconsistent. Therefore, it would seem
appropriate to assign an unambiguous use to the term ‘engagement ’ (in French): it should be
used as meaning the source of the obligation. Should that be the case, and on the basis that this
term is intrinsically an expression of unilateralism, it will be necessary to specify the nature of
the ‘engagement ’ and therefore to add to the expression the adjectives ‘contractual’ or
‘unilateral’, even if the expression ‘unilateral engagement ’ may seem pleonastic.

II. THE LEGITIMATE USE OF THE TERM ‘DUTY’?

Can there be a justification for the use of the term ‘duty ’ in a few specific cases or should the
term ‘obligation’ be given preference, for the sake of simplicity and clarity?
The analysis of Acquis International and Acquis Communautaire as well as comparative law
reveals terminological hesitations.
PECL devote a specific article to the ‘general duties’ of the parties (Section 2) and also refer to
the ‘duty’ of confidentiality (article 2:302).
Along the same lines, the term ‘duty’ could be narrowed to a specific use so that no confusion
arises with the term ‘obligation’. The double criterion which could be adopted in order to
differentiate ‘duty’ from ‘obligation’ could reside in the source and in the person to whom this
duty is owed.
With regard to the source, duty is a standard of behaviour inspired by principles of contractual
justice. A contract generates two types of effects. On the one hand, it produces ‘ general
behavioural standards of a moral and social nature ’3, duties under which the parties find
themselves no matter what their status or the nature of the contract. These duties make up a
behavioural charter; over and above the contract, a framework into which the contract fits. On
the other hand, the contract generates an ‘economic bloc relating to the promised performance of
a material or intellectual obligation’4; this economic bloc is made up of obligations and therefore
necessarily linked to the particularities of the contract.
The area covered by duties is wider than that covered by obligations. A duty may be owed to a
person other than the other party to the contract. This distinction is in fact applied in English
law, in order to define the duty of confidentiality. If this double criterion is used in the context
of PECL, some difficulties remain.
Should the use of the term ‘duty’ be limited to the duty of confidentiality, which, alone, could
be invoked by a third party? Or could the use of the term be widened, as is already the case, to
the ‘duty’ to behave in good faith and to the ‘duty’ to collaborate? The issues raised by these
questions are also linked to the liability regime which could be called into play: certain legal
systems have a tendency to punish the violation of duties under the rules of tort, although this
tendency is not always followed coherently.

3
D. MAZEAUD, critical comment below decision Civ. 3ème 14 September 2005, D. 2006.761, and the quotations
notes 16, 17 and 18.
4
Ibid, n° 8, p. 763.

3
 Acquis Communautaire and Acquis International
Both under Acquis Communautaire and Acquis International, the two most frequently used
terms are ‘obligation’ (same word in French) and ‘duty’ (‘devoir ’ in French). The term
‘engagement’ in French is used more seldom.
The meaning given to the word ‘obligation’ is two-fold: either the term refers to the entire
contractual relationship existing between the parties; or it describes more technically what is due
by the obligor to the obligee under the terms of the contract. The word ‘duty’ is often used in the
latter technical sense as a synonym of the term ‘obligation’ (I). However, whatever it refers to as
being provided under the contract is different from what is understood by the use of the word
‘obligation’. It is therefore legitimate to ask whether there exists an independent use of the term
‘duty’ (II). As for the term ‘engagement’ in French, its use is rare, but ambiguous (III).

I. THE INTERCHANGEABLE USE OF THE TERMS ‘ OBLIGATION ’ AND

‘DUTY’

The terms ‘obligation’ and ‘duty’ are sometimes used as synonyms. They refer either to the
entire contractual relationship between the parties (A) or, more narrowly, to what is due by the
obligor to the obligee (B).

A. A reference to the global contractual relationship: a rare use

The word ‘obligation’ and, much more seldom, the word ‘duty’ are used to describe the
contractual relationship existing between the parties.
Examples of this use, which is sparse, can be found in texts of European origin.
Article 6:101 of PECL is entitled ‘Statements giving rise to contractual obligations’. This
provision defines the scope of the statements made before or when the contract is concluded.
These statements give rise, in principle, to a (in the singular) contractual obligation. The use of
the term ‘obligations’ in the plural refers to the global contractual relationship: it comprises all
the various statements which come within the scope of the contract.
Articles 16:101 and 16:103 relating to the terms and conditions affecting an obligation use the
word ‘obligation’ with an abstract and general meaning, referring to the contractual relationship
affected by a condition. The use of the word ‘obligation’ is however ambiguous here: it is used,
in the text of the article, to designate the entire relationship which is affected by the existence of
a condition, but also to describe the specific obligation of a party subject to such a condition.
In any event, when PECL refer to the entire contractual relationship, the word ‘contract’ is
used most frequently.
In secondary Community legislation, the word ‘obligation’ is very rarely used to refer to the
global contractual relationship between the parties. Such a use can be found in Directive
1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a

4
Community framework for electronic signatures5: article 1 of this directive refers to the
conclusion and validity of contracts and other legal obligations. In this case, the term
‘obligation’ designates the global legal relationship. However, as will be shown hereunder, most
directives use the word ‘obligation’ to refer precisely to what the obligor has to do (as opposed
to the rights held by the obligee).
In the Rome Convention dated 19 June 1980 on the law applicable to contractual obligations6,
the term ‘obligation’ refers to the global legal contractual situation between the parties. Thus
article 1 sets out that the Convention rules apply to ‘contractual obligations’ in situation where a
conflict of laws arises. However, in this instance also, it should be noted that the Rome
Convention, in the provisions that follow, makes more use of the term ‘contract’ to refer to the
global contractual relationship linking the parties (see for example, among a number of
provisions, article 3 (‘a contract shall be governed by the law chosen by the parties […] ’), or
article 4 (‘To the extent that the law applicable to the contract has not been chosen in accordance
with Article 3, the contract shall be governed by the law of the country with which it is most
closely connected […] ’)).
Although the term ‘obligation’ used in article 1 does refer to the global contractual
relationship between the parties, the report on the Convention7 does not dwell on this use of the
word: in the general presentation of the genesis of the Convention it highlights that the efforts to
harmonize private international law focused on certain areas considered as being essential, and
in particular the field of contract law (point 1 of the report introduction). The reference to
contractual obligations in the very title of the Convention should be understood in this way (it is
worth remembering that the Convention was initially intended to cover the law applicable to
‘contractual and non-contractual obligations’, but was finally limited to the former, the latter
becoming the subject of a draft regulation dated 22 July 2003 on the law applicable to non-
contractual obligations).
Much more frequently, the term ‘obligation’ is used to designate what the obligor must carry
out in favour of the obligee. In this narrow sense, the texts usually use the term ‘obligation’ in
French, whilst the English versions would appear to vary, referring, indifferently to ‘obligation’
or ‘duty’.

B. A frequent use to refer to what is due by the obligor to the oblige

The use of the term ‘obligation’ or ‘duty’ refers, in this case, in a narrow and technical sense,
to what each party to the contract should do.
Many texts, both of European (1) as well as international origin (2), show evidence of this use.

1. Texts of European origin

Evidence of this use can be found in soft law such as PECL as well as in secondary legislation,
the Rome Convention and the European Convention for the protection of Human rights (ECHR
Convention).

5
OJEC L 13 of 19 January 2000, p. 12.
6
OJEC n° C/27 of 26 January 1998, p. 34.
7
Report on the convention on the law applicable to contractual by M. GIULIANO and P. LAGARDE, OJEC n°
C 282 of 31 October 1980, p. 1.

5
 In PECL, articles 1:201 and 1:202 set out the general duties of the parties: duty of good faith
and duty to cooperate8. Article 2:301 refers to the duty of confidentiality.
These references aside, PECL make use of the terms ‘contract’ and ‘obligation’. The latter,
frequently recurrent, is used to define what each party owes to the other under the terms of the
contract. Numerous examples of such use can be found: article 6:101 (statements giving rise to
contractual obligations) – article 6:102 (Implied terms (‘obligations implicites’ in French) –
article 6:111 (fulfillment of a party’s obligations in the event of a change of circumstances –
article 7:101 (place of performance of a contractual obligation) – article 7:105 (alternative
performance of an obligation) – articles 8:101 et 8:103 on the non-performance of obligations –
article 9:101 (monetary obligations) – article 9:102 (remedies available to the aggrieved party in
the event of the defective performance of non-monetary obligations) – article 9:305 (effects of
termination on the parties’ obligations) – articles 10:101 to 10:205 (plurality of parties) – article
11:303 (effect of assignment on debtor’s obligation) – article 16:101 (conditions).
In Community secondary legislation, a large number of directives dealing with consumer
protection use the word ‘obligation’. Reference is generally made to ‘rights and obligations’
together: rights of the consumer, at the heart of the legislation, and correlatively, obligations
imposed on the professional generally. The common objective of these texts is to ensure a
minimal level of harmonization between Member State laws in relation to consumer protection,
in order to facilitate the organization and operation of the internal market.
For example, in Directive 2005/29/CE dated 11 May 2005 concerning unfair business-to-
consumer commercial practices in the internal market9, article 2 defines a ‘product’ as including,
inter alia, rights and obligations. This directive amends Article 9 of Directive 2002/65/CE so
that it exempts the consumer from any obligation in the event of unsolicited supplies. Annex 1
lists commercial practices which are in all circumstances considered unfair.
Points 25 and 26 relate to visits to the consumer’s home or persistent and unwanted
solicitations except where national law allows the professional to carry out such practices to
enforce a contractual obligation; point 31 relates to creating a false impression of a prize or gift
which the claiming of such prize or gift is subject to the consumer paying money (in French,
subject to an obligation to pay money).
Directive 97/7/CE of 20 May 1997 on the protection of consumers in respect of distance
contracts10 lists in its article 5 the supplier’s information obligations. Article 6 provides that the
consumer may withdraw in the event of a failure to fulfill these obligations.
In Directive 2002/65/CE of 23 September 2002 concerning the distance marketing of
consumer financial services11, articles 3.4 and 5 impose pre-contractual information obligations
on the supplier. Article 9 exempts the consumer from any obligation in the event of unsolicited
supplies, the absence of a reply not constituting consent.
Article 5 of Directive 85/577/CEE of 20 December 1985 to protect the consumer in respect of
contracts negotiated away from business premises12 provides that in the event of the consumer
renouncing the effects of his undertaking, he shall be released from any obligations under the
cancelled contract.

8
See also the comments at point B below.
9
OJEU n° L 149 of 11 June 2005, p. 22.
10
OJEC n° L 144 of 4 June 1997, p. 19.
11
OJEC n° L 271 of 9 October 2002, p.16.
12
OJEC n° L 372 of 31 December 1985, p. 31.

6
 In Directive 94/47/CE of 26 October 1994 on the protection of purchasers in respect of certain
aspects of contracts relating to the purchase of the right to use immovable properties on a
timeshare basis13, recital 9 states that it is necessary to stipulate minimum obligations with
which vendors must comply. The body of the text defines the rights of the purchasers (and
therefore correlatively the obligations of the seller).
Under the provisions of article 3.1 of Directive 93/13/CEE of 5 April 1993 on unfair terms in
consumer contracts14, an unfair term is defined as a term which causes a significant imbalance in
the parties' rights and obligations. The annex refers to rights and obligations of the parties a
number of times15.
Directive 1994/44/CE of 25 May 1999 on certain aspects of the sale of consumer goods and
associated guarantees16 emphasises the rights of the consumer. It specifies that the vendor must
deliver goods which are in conformity with the contract of sale [and provide a guarantee].
Finally, Regulation n° 44/2001 of 22 December 2000 on jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters17 provides in article 5.1 that a person
domiciled in a Member State may be sued in another Member State ‘in matters relating to a
contract, in the courts for the place of performance of the obligation in question’. The term
‘obligation’ refers to what is owed by the defendant to the plaintiff.
Article 1 of the Rome Convention defines the material scope of the rules of the
Convention. Paragraph b excludes in particular ‘ contractual obligations ’ relating to wills and
succession, rights in property arising out of a matrimonial relationship, rights and duties arising
out of a family relationship, parentage, marriage or affinity, including maintenance obligations
in respect of children who are not legitimate; are also excluded (article 1.c) ‘obligations’ arising
under negotiable instruments to the extent that the negotiable character of these instruments is in
question.
Article 10, relating to the scope of applicable law, provides that the law applicable to a
contract shall govern in particular performance (article 10.b) and the various ways of
extinguishing obligations (article 10.d).
Articles 12 and 13, which deal respectively with the assignment of debts and subrogation,
refer to the obligations between the assignor and assignee (article 12.1) and the obligation for a
third party to satisfy the creditor (article 13.1).
In these various provisions, the term ‘obligation’ is clearly used to refer to what each party
owes to the other under the terms of the contract between the parties (see in particular article
10.d. above).
Article 6.1 of the ECHR Convention provides that ‘in the determination of his civil rights and
obligations or of any criminal charge against him, everyone is entitled to a fair and public
hearing within a reasonable time by an independent and impartial tribunal established by
law (…)’. The English version refers to ‘civil rights and obligations’, which is a notion more
concerned with the distinction between private rights and public rights, distinction which is
required for the application of the Convention. From this point of view, the word ‘obligation’ is
not used in such a technical and narrow sense as described above: the expression ‘rights and

13
OJEC n° L 280 of 29 October 1994, p. 83.
14
OJEC n° L 95 of 21 April 1993, p. 29.
15
See in particular points b, e and o).
16
OJEC n° L 171 of 7 July 1999, p. 12.
17
OJEU n° L 12 of 16 January 2001, p. 1.

7
obligations’ is used here with a meaning which is admittedly limited, but it is more the public or
private nature of these rights and obligations, rather than their content, which gives rise to
difficulties.
Article 1 of the Fourth Protocol provides that ‘no one shall be deprived of his liberty merely
on the ground of inability to fulfill a contractual obligation’. Once again, the word ‘obligation’ is
used here to refer to what the obligor owes to the obligee under the terms of the contract.

2. Texts of international origin

The UNIDROIT Principles of international commercial contracts (2004 version)

systematically use the term ‘contract’ to designate the global contractual relationship between
the parties. The word ‘obligation’, however, is used in a narrow sense, to refer to what is owed
by one party to the other.
Many examples of such a use can be given: article 1.11 defines the obligor as the party who is
to perform an obligation, and the obligee, as the party who is entitled to the performance of that
obligation; articles 5.1.1 and 5.1.2, under chapter 5 (content and third party rights), section 1
(content), refer to contractual obligations of the parties, which can be implied, in particular from
the nature and purpose of the contract. Also relevant are articles 6.1.1 and 6.1.2, relating to the
time of performance, by one party, of its obligations, article 6.1.6, relating to the place of
performance of the obligations, article 7.1.1 which defines non-performance as the failure, by a
party, to perform any of its obligations under the contract, articles 7.2.1 and 7.2.2, which define
the rights of one party to require performance in the event of non-performance of an obligation,
with a distinction based on the nature of the obligations in question, articles 8.1 to 8.5 on the set
off of one party’s obligations against the other party’s obligations and article 9.2.1. on the
transfer of obligations.
The term ‘duty’ used in the English version appears in the following provisions:
- Article 1.7 duty to act in accordance with good faith and dealing in international trade
- Article 2.1.16 duty of confidentiality
- Article 5.1.4 duty to achieve a specific result – duty of best efforts
- Article 5.1.5 determination of kind of duty involved.
The French version makes use, indifferently, in the same provisions, of the term ‘ devoir ’
(duty) or ‘obligation’:
- The good faith referred to in article 1.7 becomes an ‘obligation’.
- Article 1.1.16 refers to the ‘devoir de confidentialité ’.
- The cooperation of article 5.1.3 becomes a ‘devoir de collaboration’
- Articles 5.1.4 and 5.1.5 related to ‘obligation de moyen’ (best efforts) and ‘obligation de
résultat’ (specific result).
In the French version, it would appear that both the terms ‘devoir’ and ‘obligation’ are used
interchangeably to describe what is owed by one party to the other. It is only for the ‘devoir de
confidentialité ’ that the specific word, corresponding to the English term ‘duty’ is used.
There are a number of different international banking law operations in respect of which the
International Chamber of Commerce has suggested a codification of professional practices. The
UCP relating to documentary credits are among the most long standing, the latest version of
which (UCP 500) came into force on 1 January 1994. The UCP 500 refer to credits which are
‘separate transactions from the sales or other contracts on which they may be based ’ (article
3.a). Articles 13 and following, which are part of a section entitled ‘ Liabilities and
responsibilities ’ (‘Obligations et responsabilités ’ in the French version), set out the obligations

8
imposed on the banks taking part in the documentary credit operation. The UCP 500 therefore
clearly use the term ‘obligation’ (in French) in order broadly to define what the bank owes to the
principal.
The INCOTERMS, also elaborated by the International Chamber of Commerce, codify the
rights and obligations of the purchaser and seller regarding the delivery of goods18. In such a
context, the word ‘obligation’ is again used in a technical sense to refer to what the seller owes
to the buyer in relation to the delivery.
A number of international conventions, not all of them in force, operating in the area of
international commerce, make use of the term ‘obligation’ in French, often translated into
English with the same word. The term is systematically used in its narrow sense to refer to what
each party owes to the other under the terms of the contract.
In this way, in the Hague Convention of 15 June 1955 on the law applicable to the
international sale of goods, article 1 which determines the scope of application of the convention
refers to sales and by analogy to contracts for the delivery of goods to be manufactured or
produced to the extent that the party under an obligation to deliver (the seller) must provide the
necessary raw materials. Article 5.3 specifies the scope of applicable law which includes the
obligations of the parties, and in particular, those relating to risk, excluding the transfer of title.
The Hague Convention of 14 March 1978 on the law applicable to agency refers to the agency
relationship between the parties (article 10), and also to the obligations of the parties in respect
of the scope of the applicable law (article 8).
The Hague Convention of 1st July 1985 on the law applicable to trusts and on their
recognition refers, in its French version, to the trustee’s ‘obligation’ to manage, employ or
dispose of the assets in accordance with the terms of the trust and the special duties imposed
upon him by law (article 2); article 8 provides that the applicable law governs in particular the
rights and ‘obligations’ of the trustees among themselves. In both cases, the English version
uses the term ‘duty’ instead of ‘obligations’.
The Hague Convention of 22 December 1986 on the law applicable to international sale of
goods refers in the scope of applicable law to the rights and obligations of the parties (article
12).
The Hague Convention of 5 July 2006 on the law applicable to certain rights in respect of
securities held with an intermediary refers, in the French version, to the ‘obligations’ of the
intermediary (articles 2.1 and 2.3) whilst the English version uses the term ‘duty’.
The Vienna Convention of 11 April 1980 on the international sale of goods makes a clear
distinction between a contract of sale and the obligations which arise between the buyer and the
seller and which come under the scope of the Convention (article 4). A chapter deals with the
seller’s obligations (Part III, chapter 2), another with the buyer’s obligations (Part III, chapter
3), finally, another with the provisions common to the obligations of the seller and of the buyer
(Part III, chapter 5).
The United Nations Convention of 9 December 1988 on International Bills of Exchange and
International Promissory Notes and the United Nations Convention of 11 December 1995 on
Independent Guarantees and Stand-by Letters of Credit both refer to the rights and obligations
of the parties to the banking operations (chapter IV of each of these texts).
The United Nations Convention of 12 December 2001 on the Assignment of Receivables in
International Trade refers in article 11.1 to the mutual rights and obligations of the assignor and

18
INCOTERMS 200, ICC publication n° 560.

9
the assignee.
The UNIDROIT Conventions on International Factoring and International Financial Leasing
(both dated 28 May 1988), refer in their French version to the rights and ‘obligations’ of the
parties (chapter 2 in each text) whilst the English version uses the terms ‘right and duties’.
In this last example, the term ‘duty’ is used as a synonym of the term ‘obligation’: each party
finds itself sometimes under ‘obligations’ (in French) or duties owed to the other party and
sometimes the holder of rights.
However, with regard to certain types of obligations, it is notable that preference is given to
the term ‘duty ’.

II. THE AUTONOMOUS USE OF THE TERM ‘DUTY’

Although, as was illustrated above, certain texts make use of the terms ‘obligation’ and ‘duty’
(‘obligation’ and ‘devoir’) as if they were synonymous, certain ‘obligations’ are almost always
referred to by the term ‘duty’ or ‘devoir’. As was mentioned above regarding PECL and the
UNIDROIT Principles, some obligations are almost always referred to as ‘duties’ in English,
with the French version sometimes following suit with the word ‘devoirs’. Thus, legislation
refers to the duty to act in good faith, the duty of cooperation and the duty of confidentiality.
The most pronounced specificity is found in PECL which classify the duty to act in accordance
with good faith and fair dealing and the duty to cooperate under a common heading: the ‘general
duties’ of the parties.
The question arises as to whether such a use is justified. Arguments in favour are based on one
hand on the nature of the obligations in question (A) and on the other hand, on the sanctions
arising out of a failure to comply with such obligations (B).

A. Specific nature of the obligations

The obligations to which these duties relate are standards of behaviour which imply a certain
ethical code in the contract, a degree of solidarity between the parties.
PECL gives them the status of general duties which permeate the more specific obligations of
the parties. The comment under article 1:201 of PECL thus specifies that the ‘aim [of the
concept of good faith] is to promote collective standards of good behaviour, of fairness and of
reasonableness in economic transactions. It complements the provisions of the Principles and
even takes precedence over them in cases where a narrow application of a provision would lead
to a result which is obviously unfair’.
It has been argued that the term ‘duty’ was different from the term ‘obligation’ in that the party
to whom the duty is owed is not predetermined, whilst by definition the party entitled to the
performance of the obligation is. Such a distinction is not entirely convincing: the party to
whom are owed the various duties set out by PECL or by the UNIDROIT Principles is the
contracting party: the duty to cooperate, for example, is expressly owed by each party to the
other.

B. Sanctions specifically applicable to the breach of a duty

10
 The question arises as to whether the sanctions applicable to a breach of these duties is
identical to the sanctions which apply for the breach of ‘classical’ contractual obligations. PECL
would appear to suggest a distinction. Article 1:301 sets out the definition of the term ‘non-
performance’. It refers to a failure to perform an obligation under the contract, delayed
performance, defective performance and failure to cooperate. On that basis, one can query
whether a breach of the duty to act in good faith, which is not referred to expressly, will entail
the same sanction as the non-performance of a classical obligation under the contract.
The answer to this question is not clear cut. It rests on the analysis of the notion of an
‘obligation under a contract’19. On the one hand, this can be seen as a very narrow notion,
focusing on the non-performance of an obligation which arises specifically under the contract.
On the other hand, it can be understood as a wide notion, which must include a breach of rules
of behaviour implied by the contractual relationship.
Finally, the last term which is recurrent both in texts of European origin and in those of
international origin is that of ‘engagement’.

III. SPECIFIC USE OF THE TERM ‘ ENGAGEMENT ’ (IN FRENCH)

The word ‘engagement’ in French is ambiguous. Sometimes it designates the global

contractual relationship between the parties, sometimes it refers to the mandatory character of
the relationship between the parties. [There is no single translation for the word in English, as
specified in the footnotes and the English versions of legislation use ‘ undertaking’, ‘obligation’
or ‘commitment’ depending on the context. In the interests of consistency, the French word
‘engagement’ has been adopted throughout the translation].
The term ‘engagement’ in French is much less frequently used than the terms ‘duty’ or
‘obligation’20.
It is used in international banking operations in which the bank undertakes (‘prend
l’engagement’) to pay in particular in documentary credit operations21.
In this context, it does not appear that the term ‘engagement’ should have a different meaning
from the term ‘obligation’.
The use of this term in the context of the above mentioned Regulation n° 44/2001 would
appear more specific. Its use arises from the interpretation made by the European Court of
Justice (ECJ) of the notion of ‘ matters relating to a contract ’ referred to in article 5.1 of this
text. The ECJ took the view that this notion was independent and should be understood as an
‘obligation which is freely assumed by one party towards another’ (‘engagement librement
assumé’ in French). Such an interpretation is justified, according to the ECJ, by the objective of
strengthening the legal protection of persons referred to in the Regulation22. The ECJ has

19
See also article 8.101 which allows the aggrieved party to resort to the remedies set out in chapter 9 when the
other party does not perform an obligation under the contract.
20
See also the analysis of the distinction between the term « engagement » and the term « contract » in the
document analysing the term « contract ».
21
See, for example, article 3.a of the UCP relating to documentary credit which refers to the « engagement » on
the part of the Bank to pay or article 9.a which defines the obligations of the bank with regard to an irrevocable
documentary credit.
22
See in particular CJEC Jakob Handte C-26/91 of June 17, 1992.

11
applied this notion several times without seeking further to clarify the abstract phrase23.
The term ‘engagement’ emphasises the voluntary character of the contractual relationship24.
This notion appears to differ from the classical notion of obligation: there has to be a
contractual relationship between the plaintiff and the defendant, out of which obligations arise.
The ECJ itself however moved away from this conception in a case where it had to decide
whether the promise by a mail order company to award a prize to a consumer could be
considered as contractual in nature: The ECJ took the view that it could, on the basis that there
existed an ‘obligation freely assumed’ by the company which had taken the initiative of sending
a letter to the consumer, which obligation was the basis for the claimant’s action25.

Comparative Law

No matter which country is in question, it is usual to identify different meanings attributed to

the notion of ‘obligation’26. It sometimes refers to the legal relationship existing between two or
more persons, in accordance with which a person, the obligor must perform its obligations
(‘vinculum juris’ – specific term in German law , ‘schuldverhältnis’) as regards the obligee. But
the ‘ obligation ’ also refers to what is due by the obligor to the obligee as a result of the
contractual relationship, it is then often presented as being synonymous with the notion of
‘duty’.
The fact that the term ‘obligation’ should be interchangeable with the term ‘duties’ or even
‘liabilities’ reveals terminological inconsistencies (I). On this point, this observation matches
those made in relation to the Acquis Communautaire and Acquis International. However, in
certain particular contexts, the term ‘duty’ is given preference over the term ‘obligation’. (II).
Nevertheless, a common base for the specific use of the terms ‘obligation’ and ‘duty’ would
appear to be emerging (III). Finally, a clarification of the notion of ‘engagement’, often used
improperly instead of ‘ obligation ’ would seem necessary (IV).

I. THE INTERCHANGEABLE USE OF THE TERMS ‘OBLIGATIONS’ AND

‘DUTY’

Under American law and English law, as under French law, an informal consensus would
appear to have emerged, to the effect that the terms ‘duty’ and ‘obligation’ are synonymous.
In the American Uniform Commercial Code (hereafter UCC) it is apparent that the terms
‘obligations’, ‘liabilities’ and ‘duties’ are used interchangeably in order to refer to what one
party is required to do in favour of another. The following expressions are used: ‘rights and

23
It is probable that the type of appeal made to the Court on these questions of interpretation was not without
incidence on the decision.
24
See also our comments on the document relating to the analysis of the term « contract ».
25
CJEC Petra Engler C-27/02 of January 20, 2005, in particular recitals 50, 51 and 52.
26
For a historical approach of the notion, see in particular, Ph. STOFFEL-MUNCK, L’abus dans le contrat. Essai
d’une théorie, Préf. R. Bout, LGDJ, 2000, n°145 and following; J. GHESTIN, M. BILLIAU, G. LOISEAU, Le
régime des créances et des dettes, LGDJ, 2005, n°3 and following.

12
liabilities’ (§3-206, §3-405 (b), §2-608 (3), §8-110 (a)(2), §8-110 (b)(2)), or also ‘rights and
duties’ (§8-207), or finally ‘rights and obligations’ or ‘obligations under the contract’ (§1-301
(c)(1), §1-301 (c)(2), §1-301 (d), §2-106). The Uniform Commercial Code refers to the term
‘obligation’ around 400 times, and to the term ‘duties’ around 100 times.
In English law, from a Statute law point of view, the inconsistencies in the terminology are
also blatant. Section 27 of the Sale of Goods Act 1979, entitled ‘Duties of the seller and buyer’
is drafted as follows: ‘It is the duty of the seller to deliver the goods and of the buyer to accept
and pay for them, in accordance with the terms of the contract of sale’ or even under Section
20.3 of the same Act: ‘Nothing in this section affects the duties or liabilities of either seller or
buyer as a bailee or custodier of the goods of the other party’. On the contrary, Section 5 (1) of
the Unfair terms in consumer contracts regulations 1999 states that: ‘A contractual term which
has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of
good faith, it causes a significant imbalance in the parties’ rights and obligations arising under
the contract, to the detriment of the consumer’, or even in Appendix 1 (b) of the same Act:
“inappropriately excluding or limiting the legal rights to consumer vis-à-vis the seller or supplier
or another party in the event of total or partial non performance or inadequate performance by
the seller or supplier of any of the contractual obligations; including the option of off-setting a
debt owed to the seller or supplier against any claim which the consumer may have against
him’; in Appendix 1 (o): ‘obliging the consumer to fulfil all his obligations where the seller or
supplier does not perform his’ or finally, under Appendix 1 (p): ‘giving the seller or supplier the
possibility of transferring his rights and obligations under the contract, where this may serve to
reduce the guarantees for the consumer, without the latter’s agreement’.
These inconsistencies in the use of terminology, in English law, are not limited to Statute law
(as would appear to be the case in American law), but recur in case law and academic works.
Reference is often made, in the context of ‘fiduciary relationships’ to the existence of a ‘duty of
care and skill’, a ‘duty not make a secret profit’ or also of a ‘duty of disclosure’ owed by one
party to the other, because of the particular nature of the contract between them, whether or not
such duties were expressly set out. However, certain cases mention, in the same context, the
existence of ‘obligations’. For example, in relation to a ‘fiduciary relationship’, the court stated
that: ‘The distinguishing obligation of a fiduciary is the obligation of loyalty’27 or ‘The essence
of a fiduciary obligation is that it creates obligations of a different character from those deriving
from the contract itself’28.
Under French law, the interchangeability is also clear. One of its most obvious expressions is
the multiplication of obligations during the XXth century, among which the obligation of
information, the obligation to advise, the obligation to supervise or even the obligation to ensure
safety, which in certain respects would appear to be a mere transposition into contract law of
duties which are by nature outside the scope of contract. Certain types of behaviour have
generated obligations or duties without the distinction between the two terms being clearly
established29.

27
Bristol & West B.S. v. Motthew [1998] 1 Ch. 1, at p.17.
28
Re Goldcorp Exchange Ltd. [1995] 1 A.C. 74, at p.98.
29
Regarding the confusion between the contractual and tortious nature of good faith, see Ph. STOFFEL-MUNCK,
op. cit. n°145 and following. The author shows that the good faith as referred to in article 1134 para. 3 of the Civil
Code is not an « obligation » but a « duty » in that it imposes a general behavioural standard. Article 1134 para. 3
would merely be a reminder of a wider requirement of public-spiritedness (or civility). Therefore, a breach of the
duty of good faith could only be sanctioned under the rules of tort. In a similar vein, M. AYNES developed the idea

13
 These inconsistencies in the use of terminology are particularly obvious in relation to
the ‘obligation’ to ensure safety. Indeed the wording ‘obligation’ in relation to safety only
appeared from 1911 in order to benefit the victims of transport accidents in proving a fault on
the part of the transporter. In this way, safety passed from the field of tort to the field of
contract, from a ‘duty’ to an ‘obligation’ but not without the academic body expressing
significant doubts30.
In any event, a ‘contractual obligation’ of ensuring safety is now imposed on the manager of
sports and leisure activities31, on the organiser of a holiday camp32, on a school33, on a medical
practitioner34 and on many others35. Contractual principles are therefore obscured by the
presence of ‘obligations’ which were originally ‘duties’. This situation raises a number of
questions, both terminological and conceptual. Indeed, if a contractual ‘obligation’ to ensure
safety is considered as just being the expression in a contract of a ‘duty’ in the wider sense,
should it really be named ‘obligation’ or should the word ‘duty’ be maintained. Is this duty to
ensure safety not in fact an expression of a general standard of behaviour, of a general duty not
to cause harm to others (duty of care). Should the remedies for the breach of such a requirement
not be found exclusively under the principles of tort?36 The question is just as relevant in the
case where a breach of a contractual ‘obligation’ is also a breach of a general duty of care which
causes loss or damage to a third party. The aggrieved third party is given the right to rely
directly on the breach of contract provided such breach is the direct cause of the damage37. The
central idea is as follows: if a person who is not party to the contract (penitus extranei), suffers
loss or damage arising out of the breach of contract by one of the parties to such contract, it is
because the unfulfilled contractual ‘obligation’ also constituted a ‘general duty not to harm
others ’38. Nevertheless, it would appear that the courts have preferred to refer to the term

of « contract ethics ». In this case, « ethics appear as a set of rules of behaviour, close to the very heart of the
contractual relationship, preceding the conclusion of the contract, governing its performance and sometimes its end;
and this, in order for the contract to be individually and socially beneficial » (L. AYNES, « Vers une déontologie
du contrat? », Cour de cassation symposium, 11 May 2006, n°3, available on line at :
http://www.courdecassation.fr/jurisprudence publications documentation 2/bulletin
_information_cour_cassation_27/bulletins_information_2006_28/no_646_2151/). It is a « set of duties intended to
enable human action to fulfill the principle of usefulness, that is to say to produce « the most happiness for the
benefit of those in whose interest the measures are taken » ». (L. AYNES, op. cit., n°2).
30
Regarding the detrimental effects of the change from the « duty » to ensure safety to the « contractual
obligation » to ensure safety, see G. VINEY, P. JOURDAIN, op. cit. n°501-1, p.472.
31
Civ.1ère March, 27 1985, Bull. civ. I, n°111, p. 102.
32
Civ. 1ère 11 March 1997, Bull. civ. I, n°89, p. 58.
33
Civ. 1ère 17 January 1995, Bull. civ. I, n°43, p. 29.
34
Civ. 1ère 9 November 1999, Bull. civ. I, n°300, p. 195.
35
For a particularly exhaustive and critical approach to the various ways in which the safety obligation has been
invoked, see G. VINEY, P. JOURDAIN, Les conditions de la responsabilité, LGDJ, 2006, n°499 and following;
adde. The bibliography cited at note 437.
36
G. VINEY, P. JOURDAIN, op. cit. n°501-1.
37
Putting an end to an opposition between the first civil chamber and the commercial chamber, see A.P., 6
October 2006, n°05-13.255, to be published at Bull. ; JCP G 2006, II, 10181, opinion A. GARIAZZO, note
M. BILLIAU; JCP G 2007, I, 115, obs. Ph. STOFFEL-MUNCK; D. 2006, p. 2825, note G. VINEY; RLDA déc.
2006, p. 70, note Ph. JACQUES; RLDC janv. 2007, p. 5, note Ph. BRUN; adde. P. ANCEL, « Présentation des
solutions de l’avant-projet », RDC 2007/1, p. 27 spec. n°19.
38
Article 1342 of the Catala Project offers to solve this problem in two stages and provides to this effect
that: « When the failure to perform a contractual obligation is the direct cause of damage suffered by a third party,

14
‘obligation’ rather than ‘duty’39.
This difficulty with terminology has been increased, these last few years, by the discovery of
pre-contractual obligations of information, or to act in good faith. The breach of these
‘obligations’ is in principle actionable under the principles of tort: whether it be the breach of an
obligation created by statute or by the courts, the obligations do not arise under the contract.
Therefore it could be argued that the use of the term ‘obligation’ is not appropriate and that the
term ‘duty’ should be chosen40. And yet, both in judgments and in various works on civil law,
references are made indistinctly to ‘obligation and/or duty to advise’, ‘obligation and/or duty to
inform’, ‘obligation and/or duty of good faith’ as well as the usual corollary ‘duty and/or
obligation to act fairly’… Caselaw has also made this confusion and, in relation to the
‘obligation’ of information, the Cour de Cassation (Highest appeal court in France) has stated
that ‘whatever the contractual relationship between a client and a bank, the bank has the duty to
inform him of the risks taken… ’41.
In German law, the legislative texts and academic writings hardly ever refer to the traditional
Gernan word ‘obligation’, despite the fact that such term was in regular use among the drafters
of the BGB who had a solid Roman law training. Instead, several terms are used including the
term ‘Schuldverhältnis’ which, as is the case with the term ‘obligation’, can take on two
different meanings.
The ‘ Schuldverhältnis ’ is used in a wider sense, explained in § 241 BGB (used for example
in §§ 273 (1), 292 (1), 314 (1), 425 (1)), when it refers to the legal tie between the obligee and
the obligor and is the source of ‘ancillary’ duties of information, of safety, and in a more general
way, of respect for the rights and interests of the other party ((§ 241 (2) BGB). The breach of
these duties gives rise to a liability labelled as contractual.
The BGB also contains reference to a ‘Schuldverhältnis’ in a narrow sense, used in §§ 362,
364 et 397 BGB, when it designates the obligation alone, without the ancillary duties. But the
term is no longer used by academics in this narrow sense.
This ‘Schuldverhältnis’ can arise out of a contract, a tort, an unjust enrichment, but also out of
property law (for ex. the actio rei vindicatio (§ 985 BGB) or the actio negatoria (§ 1004 BGB))
or out of family law (for ex. the right to food or to an allowance).
Both in European texts and in PECL, the term ‘Schuldverhältnis’ is never employed, which is
not surprising bearing in mind the concept of ‘Schuldverhältnis’ in the wider sense is a feature
specific to German law. The German versions of the above mentioned texts generally translate
the term ‘obligation’ as ‘Verpflichtung’, sometimes also as ‘Pflich ’, ‘Verbindlichkeit’ or even
‘ Schuld ’, whilst ‘duty ’ is generally translated as ‘Pflicht’. In German legal terminology, the
two terms ‘Verpflichtung’ and ‘Pflicht’ are synonymous, and refer to the opposite of a ‘Recht’
(right). Indeed, the BGB refers to the ‘Verpflichtung zur Leistung’ (cf the title before § 241) and,

such third party may claim compensation for such damage on the basis of articles 1362 to 1366. He then becomes
subject to all the limitations and conditions which bind the creditor in seeking reparation for his own damage.
He may also obtain compensation on the basis of extra-contractual liability, but must then prove the cause of the
damage in accordance with articles 1352 à 1362 ».
However, article 1352 sets out, as a source of tortious liability « the infringement of a rule of conduct imposed by
law or a breach of a general duty of pudence or diligence ».
39
The Commercial chamber seemed attached to a strict distinction between the two.
40
Along the same lines, Ph. JACQUES, Regards sur l’article 1135 du Code civil, Preface. F. Chabas, Dalloz,
2005, n°390 and following, spec. n°390-1, p. 832.
41
Cass.com., 18 May 1993, Bull.civ.IV, n°188.

15
without any difference, to ‘Leistungspflicht ’ (cf the title of § 275). However, the terms
‘Verbindlichkeit’ and ‘Schuld ’ which are also synonymous, can only refer to obligations to
perform something concrete, not to an abstract behaviour. These are therefore the negative
counterparts of the ‘Anspruch’ (claim) (and which, in fact, can also refer to debts).
The terms ‘Verbindlichkeit’ and ‘ Schuld ’ are therefore more specific terms than ‘Pflicht’ ou
‘Verpflichtung’, which means that every ‘Verbindlichkeit’ (or ‘Schuld’) is at the same time a
‘Pflicht’ or ‘Verpflichtung’. For example, the contractual obligation to perform is referred to in
the BGB ‘ Leistungspflicht ’ or ‘Verpflichtung zur Leistung’, but also ‘Schuld’ or
‘Verbindlichkeit’, whilst there is no ‘Verbindlichkeiten’ or ‘Schulden’ to ensure safety, but only
‘Schutzpflichten’ or ‘Informationspflichten’, which may, for linguistic reasons, also be
‘Verpflichtungen zur Information’ without any change in content. Moreover, the use of the terms
‘Pflicht’ and ‘Verpflichtung’ is not limited to legal language, but can also be found in a moral
context (the two terms are not even listed as technical terms in Creisfelds’ Rechtwörterbuch),
whilst ‘Verbindlichkeit’, ‘Schuld’ and ‘Schuldverhältnis’ are strictly legal terms.
These various observations lead to the impression that the two notions – obligation and duty –
are not easily distinguishable and not in fact clearly distinguished. However, it would seem
possible to identify a specific use of the term duty.

II. AN INDEPENDENT USE OF THE NOTION OF ‘DUTY’ / ‘DEVOIR’

Under American law, a group of scholars argues for a differentiation of the terms obligation
and duty. For instance, professor Wesley Newcomb HOHFELD, who devised the terminological
system known as ‘Hohfeldian terminology’42 recommended a specific use of the terms. He
proposed in particular that, in order to refer to a claim or rather to its opposite – that is to say to
the debt owed by one party to the other – one should not talk of ‘rights and obligations’ or of
‘rights and liabilities’ but rather of ‘rights and duties’. American caselaw sometimes echoes
these proposals. For example, the term ‘duties’ or ‘duty’ is consistently made use of by the
judges in the application of the ‘implication’ theory, which finds the existence of a ‘duty of good
faith’43 or a ‘duty of best efforts’44.
Under French law, the distinction made between obligation and duty is essentially academic,
but is sometimes applied by the courts. This distinction is based on three main criteria. The first
criterion relates to the nature of the liability incurred in the event of a breach: a breach of duties
would entail a liability under the principles of tort, whilst a breach of obligations would be
sanctioned under the rules of contract. The second criterion relates to the area covered by the
performance to be made by the obligor. The distinction would then be based on the
identification of the person for whose benefit the obligor is performing: the obligation would
only bind the parties to the contract, whilst duties could also benefit third parties who could have
a claim in the event of a breach. The third criterion is concerned with the effects of the contract.
Effects can be classed into two categories45: General effects which occur independently from the
42
This system is described in W.N. HOHFELD, Fundamental Legal Conceptions, New Haven, Yale University
Press, 1919.
43
Anthony’s Pier Four v. HBC Assocs., 583 N.E. 2d. 806 (Mass. 1991).
44
Milau Assoc. V. North Ave. Dev. Corp., 368 N.E.2d 1247 (N.Y. 1977).
45
On this point, see. D. MAZEAUD, note under Civ. 3ème 14 September 2005, D. 2006.761.

16
nature of the contract and effects which are specific to each contract.
If the contract is intangible and irrevocable, it must come into existence, be entered into and
implemented fairly: its effects go beyond the performance under the contract and impose general
duties on the parties before, during and after the contract.
As noted by Prof. MAZEAUD, ‘in addition to the specific obligations to which they have
agreed, the parties are bound, as they would be by law, by standards of legal origin which
constitute a general framework inside which such obligations will be implemented’46. In
accordance with this principle, the so-called ‘obligation’ of good faith which is imposed on the
parties under the terms of article 1134 al. 3 of the Civil Code would merely be a reminder of a
wider requirement to behave fairly, a rule of good behaviour in society, which should be
generally complied with, whether or not a contract is in existence47. Following the same ideas,
the ‘obligation’ to ensure safety, the ‘obligation’ of information, of warning or advice, which
have been added, inter alia, to the mandatory content of a contract, are part of this ‘general
framework’ inside which every person must meet a ‘basic standard of behaviour’48, a ‘general
standard of civility’49; in other words, every person has ‘a general duty of good behaviour,
which is the equivalent of the general duty of prudence and diligence described by H. and L.
MAZEAUD50, and which finds an expression in the Civil Code’51, in particular in articles 1382
and 1383. Indeed, it had been noted that these obligations are imposed primarily on
professionals as a standard which is inherent to their profession, whether or not a contract is
entered into (such a contract ‘would only have the consequence of bringing into effect pre-
existing professional rules’52).

46
Ibid, n° 8, p. 763.
47
The same questions seem to arise in Belgium. Indeed, if the third Civil Chamber of the Cour de cassation, in a
judgment dated 19 September 1983 (RCJB 1986, 282, note. J.-L. FAGNART), clearly designates article 1134 para
3 of the Civil Code as the basis for the breach of a contractual right, the authors raise the question of the existence
of « a more general principle of liability, with articles 1134 para.3 and 1135 of the Civil Code being the translation
into the field of contract of such principle ».
48
M. PUECH, L’illicéité dans la responsabilité civile extra-contractuelle, LGDJ, 1973, n°31 and following cited
by G. VINEY, P. JOURDAIN, op. cit. n°473, p. 413.
49
J. DARBELLAY, Théorie générale de l’illicéité, Friboug, 1955, n°69 and following cited by G. VINEY, P.
JOURDAIN, op. cit. n°473, p. 413.
50
H. et L. MAZEAUD and A. TUNC, Traité théorique et pratique de la responsabilité civile délictuelle et
contractuelle, t. I, 6ème édition, Montchrestien, n°103-109; H., L. et J. MAZEAUD and F. CHABAS, Leçons de
droit civil, Montchrestien, 9ème édition, n°21.
51
G. VINEY, P. JOURDAIN, op. cit. n°473, p. 413.
52
G. VINEY, P. JOURDAIN, op. cit. n°515, p. 498. The authors note that this distance from the contract is even,
in fact, in certain cases, officially established by caselaw. The courts now accept, for example, that the obligation to
advise imposed on notaries, because of its « professional » nature, can only be actionable under the principles of
tort, they refuse to « treat this duty as an implied obligation under a contract » and they turn it into « in any
circumstance, an implied legal duty » actionable under the rules of tort (see J. DE POULPIQUET, La responsabilité
civile et disciplinaire des notaires, LGDJ, 1974, Preface P.-A. Sigalas, n°160, p. 192 and n°155) ».

17
 It would appear, finally, that it is more the consequences of the requirements imposed on
individuals, rather than the source of such requirements, which will condition whether the word
‘obligation’ or ‘duty’ is used and to a greater extent, the remedies for breach applicable to one or
the other53.
Similarly, under English law, when parties are bound by a legal relationship, and that some
hold a dominant position, Equity requires the imposition of certain ‘duties’ (as seen above, the
term ‘duties’ should not here be understood as necessarily excluding the notion of ‘obligation’
but rather as the statement of a standard of behaviour not expressly provided for in the contract
but directly linked to the relationship created by the contract). These duties are imposed upon
the parties based on the role they hold in the legal relationship and with the aim of preventing
any form of abuse. The observation is valid in relation to agency relationships but also in
relation to trust relationships, in which the trustee, because of the place he holds in the legal
relationship, owes a number of duties to the beneficiary of the trust, even though there is no
contract between them. These relationships are traditionally regarded as status-based fiduciary
relationships. More recently, the existence of ‘fact-based’ fiduciary relationships was identified,
in instances where the rules of Equity do not necessarily apply ab initio (unlike the case of
status-based relationships), but where, having regard to the particular relationship between the
parties, a fiduciary relationship is created54. One party therefore finds itself under certain
obligations to which it did not expressly agree. Such obligations are imposed in cases where one
party has, in relation to the other, a particularly advantageous position, in particular with respect
to information. They are intended to prevent the abuses which could arise out of this de facto
superiority, by forcing the contracting party to adopt certain types of behaviour. The finding of
such duties remains strictly limited, undoubtedly because of the economic approach to
contractual relationships55.56.
Two cases alone always employ the same terminology. One of them is the duty created by
caselaw in order to sanction a party at fault on the basis of the principles of tort, the other is the
restitutionnary duty imposed in the context of unjust enrichment. Although the difference
between the duties imposed by law and obligations derived from a contract is sometimes
tenuous, the term which, almost systematically, is used, is that of duty, not obligation. Finally, it
would appear that the use of the term duty does not depend so much on the existence of a
contract (even if, as described, a contract may be a catalyst) but rather on a standard of
behaviour.
Quebec law is one of the most rigorous regarding the distinction between obligation and duty
(‘devoir’). The mandatory or obligatory content of a contract comes under the name ‘obligation’
notwithstanding the fact that a so-called obligation is in fact the transposition into a contract of a

53
Ph. STOFFEL-MUNCK, op. cit. n°153 ; G. VINEY, Introduction à la responsabilité, LGDJ, 2ème édition, 1995,
n°168. Regarding an analysis making a distinction between the source and the nature of a standard in order to
determine whether it should be categorised as an obligation or a duty, see Ph. JACQUES, op. cit. n°405 and
following.
54
Reading v. Attorney-General [1951] A.C. 507.
55
Nottingham University v. Fishel [2000] I.C.R. 1462.
56
This approach is in fact very close to that developed by Mr AYNES (L. AYNES, « Vers une déontologie du
contrat », op. cit.) when he writes about contract ethics. Indeed, the author considers that ethics, and a fortiori the
behavioural standards which result from such ethics, should be treated as a « counterbalance in relation to the
position of strength or influence held by one person over another » (op. cit. n°6). The ethics act as a sort of
counterbalance in relation to unilateralism, by imposing limits to prevent and sanction any form of abuse.

18
standard which is intrinsically extra-contractual, in other words, a duty. Reference is even made
to an obligation ‘par accessoire’ (that is to say which derives its status as ‘obligation’ from its
position as accessory to another obligation), which implies that it is a duty ‘by nature’.
Conversely, anything which is not contractual and finds its source in the law is named ‘duty’.
The distinction between tort and contract is therefore clearly made, even in cases where a duty
which is extra-contractual in nature, is incorporated into a contract: such duty becomes
thereafter an obligation.
German law also operates a very strict distinction, but the distinction is not based on the
source of the obligation (or duty) but on its subject matter. The distinction is only
comprehensible by considering the position of the obligee: when the obligee’s right is an
‘Anspruch’, that is to say the right to the performance of an obligation (see Art 14:101 PECL,
which is apparently an approximate copy of § 194 (1) BGB containing the legal definition of the
‘Anspruch’), then the obligor is subject to a ‘Verbindlichkeit’ or a ‘Schuld’. When the obligee’s
right is not in itself enforceable but only takes effect in the event of its violation, then the obligor
is only under a ‘Pflicht’ or ‘Verpflichtung’.

III. TOWARDS A COMMON BASE IN THE DISTINCTION BETWEEN

‘OBLIGATION’ AND ‘DUTY’?

A survey of comparative law leads to an emphasis being placed on the contractualization of

standards which were originally extra-contractual and thus on the transition from the notion of
‘duty’ to that of ‘obligation’.
In theory, the parties to a contract can only be bound by those obligations to which they have
agreed. However, the issue has arisen in various legal systems, in the name of some sort of
contractual justice, as to whether obligations which were not expressly set out in the contract
could be imposed upon the parties.
In this way, English law saw the development of the theory of implied terms or, in Quebec
law, the idea of ‘implied obligations’, set out in article 1434 of the Quebec Civil Code: ‘A
contract validly formed binds the parties who have entered into it not only as to what they have
expressed in it but also as to what is incident to it according to its nature and in conformity with
usage, equity or law’. This article is the equivalent of article 1135 of the French Civil Code:
‘Contracts are binding not only as to what is expressed therein, but also as to all the
consequences which equity, usage or law attach to an obligation according to its nature’. The
same terms can be found in the Belgian Civil Code, with, as a corrollary, the obligation to act in
good faith which appears in article 1375: ‘Good faith should govern the behaviour of the
parties, whether it be at the time the obligation comes into existence, during its implementation
or when it is extinguished’.
English law does not recognize a general principle of good faith (although such a statement is
gradually losing relevance in the face of Community directives which refer more and more
frequently to the principle57) unlike number of national laws (France, Belgium, Switzerland,
Quebec, United States) and projects of uniformisation of contract law (PECL for example). The

57
See for example the Directive 93/13 of 5 April 1993, on unfair terms in consumer contracts OJEC L095 of
21/04/1993, p.29-34.

19
English notion of contract, essentially economical, tends to limit its content so that the parties
are only bound by those obligations to which they have expressly agreed. However, the theory
of implied terms allows the judges, to a limited extent, to find the existence of implied terms in a
contract.
There is however, a double limit to the judges’ power: on the one hand, the judges cannot
imply a term which contradicts an express provision of the contract, and on the other hand, they
must act on the basis of a legal basis which is threefold: ‘unexpressed intentions’, ‘importation
of general civil obligations’ and ‘model contracts’. In practice, it is a standard of behaviour,
‘duties’ which are extra-contractual by nature, which are incorporated into the contract. It would
therefore appear that under English law, a duty of legal origin can become an implied term in a
contract.
The obvious inconsistencies in terminology which occur in the use of the terms ‘obligation’
and ‘duty’ epitomize the difficulty caused by the theory of implied terms, which tends to impose
on the parties various standards of behaviour (based on equity, usages or on the law) which are
not expressly provided for in the contract. Extra-contractual matters are therefore brought into
the contractual sphere and generate difficulties from a terminological point of view but also with
regard to the question of how such standards should be treated legally (Should a breach of such
standards be actionable in tort or in contract?). In order to deal with these difficulties, Quebec
law adopts a position which is perfectly clear: For example, M. CREPEAU58, is of the view that
certain ‘ancillary obligations’59 acquire ‘because they are fitted into the contractual mould, a
contractual tint or qualification’. ‘Messrs BAUDOUIN and JOBIN60, do not hesitate to state that
the breach of an obligation61 arising out of a contract, even if it is imposed by law, gives rise to
the application of the rules governing contractual liability’62. Certain duties, the breach of which
is generally sanctioned under the principles of tort, are therefore contractualized. Since 1994 and
the new Quebec Civil Code – and in contrast with the large volume of civil liability litigation
arising out of the provisions of the Civil Code of Lower Canada –, more and more obligations
are implied, whether it be on the basis of the nature of the contract, of commercial practices, law
or equity.
This evolution is reminiscent of article 1135 of the French and Belgian Civil codes and would
appear to share similarities with the Anglo-American theory of implied terms.
Prima facie, the German distinction based on the subject matter of the obligation does not fit
in with the theory outlined above. However, a more careful analysis shows that the difference
with the proposed solution is not so significant. At the outset, the German system of civil
liability is fundamentally different from the French and Common Law systems. There is in the
BGB a strict distinction between the liability known as ‘contractual’, dealt with under §§ 241
(2), 280 (1) BGB and liability in tort, dealt with under §§ 823 and following BGB. This liability
known as ‘contractual’ concerns not only the non performance or inadequate performance or an
obligation, but also any breach of a duty of information or duty to ensure safety, including in
respect of any injury or loss sustained by a party to the contract during the implementation
58
P.-A. CREPEAU, « Le contenu obligationnel d’un contrat », Rev. bar. Can. 1965.1, esp. p. 28, cited by Ph.
JACQUES, op. cit. n°411, p. 872.
59
These are obligations which are ancillary to the contract and which find their source in article 1135 of the Civil
Code. Ph. JACQUES, op. cit.
60
J.-L. BAUDOUIN, P.-G. JOBIN, Les obligations, 5ème édition, Yvon Blais, 1998, n° 813.
61
Our emphasis.
62
Ph. JACQUES, op. cit. n°411, p. 872.

20
thereof (for example, an injury caused by a banana skin on the floor of a shop on which a
customer has skidded). Such duties are expressly dealt with in § 241 (2) BGB as arising out of
‘ Schuldverhältnis ’ in the wider sense: ‘Das Schuldverhältnis kann nach seinem Inhalt jeden
Teil zur Rücksicht auf die Rechte, Rechtsgüter und Interessen des anderen Teils verpflichten’.
(The ‘Schuldverhältnis’ may, depending on its content, oblige each party to respect the rights,
the ‘Rechtsgüter’ (for example, property, health or freedom) and the interests of the other party).
Moreover, according to § 311 (2) BGB, the mere fact that the parties have entered into
negotiations with a view to concluding a contract constitutes this special tie named
‘Schuldverhältnis’ which gives rise to the same duties of information, to ensure safety and to act
in good faith as those arising out of a contract: ‘Ein Schuldverhältnis mit Pflichten nach § 241
Abs. 2 entsteht auch durch 1. die Aufnahme von Vertragsverhandlungen, … (A
‘Schuldverhältnis’ giving rise to duties in accordance with § 241 (2) BGB will also be created
when the parties enter into negotiations). The civil liability which arises out of a breach of such
pre-contractual duties (‘culpa in contrahendo’) is therefore identical to contractual liability.
However, liability in tort is also dependent on the breach of ‘allgemeine Verkehrspflichten’
(general duties) which constitutes a fault and which gives rise to an obligation
(‘Verbindlichkeit’/ ‘Schuld ’): the obligation to pay damages. The theory – whether regarding
terminology or content – is therefore identical: there are ‘Pflichten’ (duties without a
corresponding right) which only trigger consequences in the event of their breach. This
‘consequence’ is an obligation, which this time is paired with a right.
By noting that under French law as well as under the other laws under study, the result of a
liability in tort is an obligation (imposed on the party found liable to pay damages to the victim)
and that such a liability only arises in the event of a fault (therefore in the event of a breach of a
general duty of good behaviour), a striking parallel appears between all these systems: the
obligations (‘Verbindlichkeiten’) which correspond to a claim, that is to say their subject matter
is an obligation the performance of which can be required by the obligee, and the duties
(‘ devoirs ’, ‘Pflichten’) the sole aim of which is to avoid loss or damage on the part of the other
party, by establishing standard of behaviour. These ‘duties’ are treated (under French law,
Quebec law, and to a certain extent, under English law) as being of a legal (rather than
contractual63) nature.
Although there are clearly obstacles to a coherent use of the terms ‘obligation’ and ‘duty’
within the various legal systems (whether it be the source, the subject matter or the scope of the
standard), it is necessary to reserve a specific use to each one, so that a uniformisation of their
legal treatment should become possible. Although this is not a task which had been taken on by
certain contemporary academics, it would appear that recent academic studies have attempted
better to define the limits of these different notions64. Such works do not all reach the same
conclusions, but it is positive that they should rekindle a debate which is gaining more weight at
a time when the construction of European contract law is taking place.

63
Contra Ph. JACQUES, op. cit. n°408.
64
See inter alia, Ph. JACQUES, Regards sur l’article 1135 du Code civil, Dalloz, 2005 ; Y.-M. LAITHIER, Les
sanctions de la rupture pour inexécution en droit comparé, LGDJ, 2004; Ph. STOFFEL-MUNCK, L’abus dans le
contrat, Essai d’une théorie, LGDJ, 2000.

21
 IV. TERMINOLOGICAL INCONSISTENCIES IN THE USE OF THE TERM
‘ENGAGEMENT’65(IN FRENCH)

The term ‘engagement’ (in French) is used in a surprising variety of ways66.

If the Principles of European Contract law67, the UNIDROIT Principles68 or even the Gandolfi
Project69, do not refer to the term very much, it is frequently used under various laws. For
example, the French Civil Code contains 48 articles which refer to it, the French Commercial
Code has 108, the French Consumer Code 31, the Labour Code 127…Other Francophone laws
are also familiar with the concept: For example, the Swiss Code of obligations refers to it 11
times whilst the Swiss Civil Code refers to it 7 times. Belgian law is also familiar with the term
‘engagement’, referred to in its various codes, as is the case for Quebec law.
The term ‘engagement’ is, very often, used out of convenience, without being
conceptualized70. However, it would appear that a common base can be determined regarding
what is perceived by the notion of ‘engagement’, as perfectly illustrated by German law. Indeed,
the terms ‘engagement’ and obligation are translated by the use of the same term
‘Verpflichtung’.
Finally, it would appear that the source of the obligation, the ‘engagement’ and its result, the
obligation, are de facto treated as one and the same.
This observation is confirmed by the examination of certain provisions of French law and
other Francophone laws, such as Belgian and Quebec law. The fact of treating the two the same,

65
Aside from the variations on the use of the term by the legislator or the courts, it would appear that the term
« engagement » has aroused the interest of modern academics. Indeed, Mr. GHESTIN, in his work on the cause
(consideration) (J. GHESTIN, Cause de l’engagement et validité du contrat, LGDJ, 2006, n°1) uses the term
« engagement » with a new meaning. « The expression cause of the « engagement » aims first to emphasise, from a
negative point of view, the appropriateness of avoiding inappropriate distinctions (…) made between the cause of
the obligation and the cause of the contract. From a positive point of view, it means that consideration should be
assessed in relation to all the « engagements » of the parties arising out (…) of a contract (…) ». This is the
meaning which was adopted by the Pilot Project for the reform of the law of obligations and limitations, which
takes the view that «the « engagement » seems more appropriate to name the act which gives rise to the contract
understood as a legal or even economical, global operation, and not only, in an analytical way, to one or more
obligations placed side by side » (J. GHESTIN, Introduction, Article 1124).
66
Legal « engagements » must be distinguished from moral « engagements », the first being sanctioned by law
and the second not. It is traditionally taught that moral « engagements » fall within the field of lawlessness, or
conscience and are not sanctioned by the law (see in particular, on this question, Ph. MALAURIE, L. AYNES, Ph.
STOFFEL-MUNCK, Les obligations, Defrénois, 2005, n°439). However, a recent judgment seems to cast doubt on
the assertion: Cass. com. 23 January 2007, n°05-13189, to be published at D. 2007, p. 442, obs. X. DELPECH ;
CCE, n°4, April 2007, comm. 54 Ch. CARON; Contrats, conc. consom., n°4, April 2007, comm. 104, M.
MALAURIE-VIGNAL: « By committing (s’engageant) itself, even morally, « not to copy » the products which
were commercialised by a competitor, a company had expressed its unambiguous and deliberate intention to be
bound with regard to its competitor ».
67
The main examples of use occur in articles 2:105 and 6:101.
68
The main examples of use occur in articles 3.8, 3.9 and 6.1.7. In the first two articles the term « engagement »
appears to have been used in lieu of « consent».
69
The Gandolfi project uses the term « engagement » a little more frequently than the various other projects. It
can be found in articles 48, 121, 144, 146… It is sometimes used to mean the source of the obligations, sometimes
in lieu of the obligation itself.
70
See, however, C. GRIMALDI, Quasi-engagement et engagement en droit privé. Recherches sur les sources de
l’obligation, Préf. Y. Lequette, Defrénois, 2007.

22
or even confusion between the two, is understandable. After all, if traditionally, it is the
obligations which suffer from non-performance, in fact the ‘engagement’ is necessarily also not
performed (A).
If a confusion is both obvious and understandable, it is accepted that the term ‘engagement’ is
however generally used as the source of the obligation. A difficulty then arises in working out
how the terms ‘engagement’ and ‘contract’ interrelate (B).

A. Evidence of a confusion between ‘engagement’ and obligation

There are provisions which bring confusion to the logical distinction between ‘engagement’
and obligation, the first being the source of the second.
Indeed under Swiss law, article 175 of the Code of obligations provides in its paragraph (2)
that ‘ the debtor cannot enforce performance of the ‘engagement’ of the purchaser of a debt so
long as such debtor has not fulfilled his obligations towards such purchaser under the contract
for the purchase of the debt ’. This is an expression of the fine distinction between the source of
the obligation and the obligation itself. Indeed, if through the performance of the obligations
which I have undertaken, I fulfill the terms of my contractual (or unilateral) ‘engagement’, then
should the term ‘obligation’ not have been used in this article, with its traditional meaning of ‘a
tie which links at least two persons which enables one of them to require that the other perform
something’.
Under Quebec law, article 1458 of the Civil Code is particularly revealing. It provides that
‘every person has the duty to honour the ‘engagements’ which that person incurred’. The second
paragraph reveals what the Quebec legislator intended by ‘engagement’, in this instance, an
‘obligation’.
The second paragraph provides that: ‘such person is, when it breaches such duty, liable for any
personal injury, damage to property or mental distress caused to the other party to the contract,
and must make good such injury or damage; neither party can prevent the application of the
rules regarding contractual liability by opting for the application of rules which are more
favourable to them’. It is clear that in this instance the term ‘engagement’ is used in lieu of the
term ‘obligation’71. Article 1486 of the same code appears to confirm this observation when it
states that the managed party (in a business management contract) ‘must also fulfill the
necessary or useful ‘engagements’ which were incurred in its name or for its benefit, by the
manager as regards third parties’. In this instance, the term is ambiguous, it seems to refer just as
much to ‘obligations’ insofar as the said ‘engagements’ arise out of the conclusion of a contract
and of the contracts which could have been entered into by the managed party 72’. Article 2001
of the same code provides, moreover, in its paragraph 2, in respect of chartering, that ‘ the
contract, when it is in writing, is evidenced by a charter party which sets out, in addition to the
names of the parties, their ‘engagements’… ’. In this provision again, the term ‘obligation’
would have been more appropriate as the consequence of the conclusion of the contract73.
Under Belgian law, article 1143 of the Civil Code, provides that ‘the obligee has the right to
request that whatever was done in breach of the ‘engagement’, be destroyed; and he may be
71
It should, however, be noted that the English translation of the text (available at the following Internet address:
http://www.canlii.org/qc/laws/sta/ccq/20070117/whole.html) uses the term « undertaking » rather than
« obligation ».
72
It should be noted again in this instance that the English translation refers to the term « obligation ».
73
Here, it is the term « undertaking » which was chosen as the English translation of the term.

23
authorised such destruction at the expense of the obligor, without prejudice to any damages, if
relevant’. In this instance, it would appear that the article refers to the ‘obligation’ rather than its
source. Article 1184 of the same code provides that ‘there is an implied condition that a bilateral
contract may be avoided in the event that one party does not fulfill its ‘engagements’. In
paragraph 2, the article provides that ‘the contract is not void as of right. The party in relation to
which the ‘engagement ’ was not fulfilled (…)’. Here again, the term ‘obligation’ could have
been used instead of ‘engagement ’, even if, in fact, the failure to perform any contractual
obligations necessarily implies the failure to fulfill the ‘engagement’ of that party. The question
therefore arises as to what it is that the party failed to perform: is it the obligation or rather the
‘engagemen ’, source of such obligation?
Under French law, the position is very similar to that described un relation to Belgian, Swiss
and Quebec law, essentially for historical reasons74. Therefore the comments relating to articles
114375 and 118476 of the Belgian Civil Code also apply. Moreover, article 1836 paragraph 277,
of the Civil Code states that ‘the ‘engagements’ of a member cannot, in any event, be increased
without his consent’. In this case, it would seem that the term ‘engagement’ is used in lieu of the
term ‘obligations’. Article 1371 is also interesting in that it concerns implied contracts (‘quasi-
contrats’). These are defined as ‘ purely voluntary acts of one party resulting in some sort of
‘ engagement ’ as regards another party and in some instances a reciprocal ‘engagement’ on the
part of both parties ’. Here the term ‘engagement’ is used as meaning the consequence of a
voluntary act. It is not the source, but the consequence. It would therefore be, prima facie, more
appropriate to use the term ‘obligation’. Article 110378 of the Civil Code79 provides that ‘it [the
contract] is unilateral when one or more persons are under obligations in relation to one or more
others, without there being any ‘engagement’ on the part of such others’. In this case, the
contracting party shows its intention to become obligee but without any commitment, it does not
show evidence of consent from which an ‘engagement’ would result. It is therefore not under
any obligation. Thus, the drafting of this article is evidence, to a certain extent, of the different
nature of the terms ‘engagement’ and ‘obligation’.
The pilot project for the reform of the law on obligations and limitations also seems to use the
term ‘engagement’ and ‘obligation’ in turn, as evidenced by the drafting of article 1158 which
provides:’ In all contracts, the party for whose benefit the performance of an ‘engagement’
(‘obligation’ in the English translation) was not carried out, or was poorly carried out, may
either seek performance of the obligation or cause the dissolution of the contract or ask for the
payment of damages that may be added, depending on the circumstances, to the performance or
the dissolution’ Just as in the examples outlined above, it is likely that the authors of the report
had in mind the obligations arising out of the ‘engagement’80. However, if from a terminological
and conceptual point of view, the difference between ‘engagement’ and obligation exists, it
74
The Civil Code having been used as a basis for the foreign codifications.
75
In the English translation of the Civil Code (www.legifrance.gouv.fr), the term « engagement » is translated as
« undertaking ».
76
Here, the term « engagement » is translated as « undertaking ».
77
Here, the term « engagement »is translated as « commitment ».
78
Here, the term « engagement » is translated as « obligation ».
79
Article 1103 of the Belgian Civil Code is identical to the French Civil Code article.
80
This view would appear to be confirmed by the English translation of the article: « in all contracts, the party for
whose benefit the performance of an obligation was not carried out, may either seek performance of the obligation
(…) ».

24
remains that from the point of view of terminology and meaning, the confusion is
understandable. When the obligations are not performed, the ‘engagement’ which is at the
source of such obligations is also not performed. The same observations can be made, for
example for articles 1158 paragraph 2 or even article 1159.
If the ‘engagement’ is the result of the exercise of freewill, it is the source of the obligation.
However, as has been observed, the proposed distinction is not so clear in its terminological
expression. In any event and despite a certain amount of uncertainty in the use of the words, it
would seem that the term ‘engagement’ is regularly used to refer to the source of the obligations.
The question does however remain as to how it should be distinguished from the notion of
‘contract’.

B. Evidence of a specific use of the term ‘engagement’ as the source of the obligation

Although in the relationship existing between an obligation and an ‘engagement’, the two are
often confused, it remains that in a large number of instances, it is used specifically to mean the
source of the obligation, often indistinguishable from the contract.
A clarification should be made in this respect. The term ‘engagement’ is frequently used in
lieu of the term ‘contract’. This substitution is not intrinsically wrong in that the contract ‘is the
result of two unilateral acts since it is the result of two ‘engagements’, that of the offeror and
that of the offeree, two unilateral ‘engagements’ which will become a contract when they
meet’81. So that when the term ‘engagement’ is used instead of the term ‘contracts’, it is an
involuntary but nevertheless inappropriate ellipsis.
Indeed, the ‘engagement’ is necessarily unilateral ‘because it emanates from one sole
individual ’82 – and the addition of the adjective ‘unilateral’ to the term ‘engagement’ would
appear pleonastic. That is why it is important that when legislators, judges and academics
replace the word ‘contract’ with the word ‘engagement’, they should qualify it with the
adjective ‘contractual’83. Without this qualification, there remains a doubt as to the nature of the
‘engagement’: unilateral or contractual.
The following paragraphs will examine the use of the term ‘engagement’ used instead of the
term ‘contract’ but also in a more ambiguous sense in which the term can also be understood to
have a unilateral meaning.
Under French law, the new article 435 paragraph 2 of the law n° 2007-3080 dated March 5,
2007, provides that ‘the acts which [the person placed under the protection of the courts] has
carried out and the ‘engagements ’ which such person has contracted during such placement can
be rescinded on the basis of loss or reduced if they are excessive, even though they cannot be
cancelled under the terms of article 414-1’. In the same way, article L. 210-6 of the Commercial

81
C. GRIMALDI, Quasi-engagement et engagement en droit privé. Recherches sur les sources de l’obligation,
Pref. Y. Lequette, Defrénois, 2007, n°600.
82
Ibid.
83
We refer the reader to the work relating to the notion of contract and the relationship between this notion and
that of « engagement » and in particular that of unilateral « engagement ». It should however be made clear that a
unilateral « engagement » is sometimes considered to be the direct source of the credits and debts without the
intermediate step involving the creation of an obligation (see generally on this question, J. GHESTIN, M.
BILLIAU, G. LOISEAU, Le régime des créances et des dettes, Traité de droit civil, LGDJ, 2005, n°103 and
following; C. GRIMALDI, Quasi-engagement et engagement en droit privé. Recherches sur les sources de
l’obligation, Preface. Y. Lequette, Defrénois, n°937, p. 430.

25
Code provides in paragraph 2 that ‘persons who acted in the name of a company before its
incorporation are held jointly and indefinitely liable for the acts so performed, unless the
company, once it is duly incorporated and registered, takes over such ‘engagement ’. These
‘engagements ’ are then deemed to have been contracted by the company ab initio.’. In the same
spirit, article L. 210-9 of the Commercial Code provides, in its first paragraph, that ‘neither the
company, nor any third parties may refuse to honour such ‘engagements’ (…)’84.
The pilot project for the reform of the law on obligations and limitations also occasionally uses
the expression ‘engagement’ in lieu of the term ‘contract’, as evidenced for example by the
drafting of article 1172-285 which provides that ‘however, certain clauses which appear in one of
the contracts apply to the parties to the other contracts, provided such parties were aware of such
clauses at the time of their ‘engagement’ and did not express any reservations ‘. The term
‘engagement’ is also used in ways which are ambiguous in that they could be referring to the
term ‘contract’ as well as to the unilateral ‘engagement’. In any event, these different examples
reveal that the term ‘ engagement ’ is used to mean the source of the obligation, or even of the
claim. Thus, article 1116 provides that ‘in order to be valid, an ‘engagement’ requires the
contracting party to be capable of enjoying or holding a right ’86. Article 1182 paragraph 2
provides that: ’ in the event of the fulfillment of the condition, the obligation is deemed to have
existed from the date the ‘engagement ’ was contracted’87. In this instance, if it can be
considered that the article could apply to a unilateral ‘engagement’, the use of the verb ‘to
contract’ is likely to introduce some uncertainty as to the scope of the article.
Under Belgian law, article 1125 of the Civil Code provides that ‘a minor and a person under
judicial disability may not claim incapacity in order to avoid their ‘engagements’ except in the
cases provided for by law ’. Similarly, article 1185 of the same code provides that ‘ the term
differs from the condition, in that it does not suspend the ‘engagement ’ but merely delays its
fulfillment’.
Under Swiss law, the Civil Code provides in its article 779 l (2) that: ‘It [the building lease]
may be extended at any time, in the form which is prescribed for its constitution, for a new
maximum term of one hundred years, but any ‘engagement’ made in advance in this respect is
void’. It would not appear that the code refers here to the obligation in its various meanings but
rather to the ‘engagement’ which is its origin. Due to the lack of precision of the term, the
reference could just as well be a reference to a unilateral ‘engagement’ as to a contractual
‘engagement’.
Along the same lines, article 7(1) of the Code of obligations, entitled ‘Offer without
engagement and public offer’ provides that: ‘The offeror is not bound if he made express
reservations or if his intention not to be bound arises either out of the circumstances or out of the
nature of the offer’. In this hypothesis, it would appear that an expression of freewill and
consent, understood as the intention to be bound, should be distinguished. If the offeror does not
agree to fulfill the obligation towards the offeree, that is to say he does not subscribe to any
‘engagement’, it could be considered that this ‘ offer without ‘engagement’’ is a mere invitation
to treat, without any mandatory force because there is no intention to be bound. In any event, it
would appear that this article of the Swiss Code of obligations only refers to the source of the

84
The English translations of the term « engagement » in these instances use the term « obligation ».
85
The English translation of the text uses the expression « global undertaking ».
86
Here, it is the term « convention » which was chosen to translate the term « engagement ».
87
Here, it is the term « commitment » which was chosen to translate the term « engagement ».

26
obligation and not to the obligation directly. Article 40 b follows the same logic, when it states
that when the ‘engagement’ was contracted in certain circumstances, whether it is an offer or an
acceptance, such ‘engagement’ can be revoked. Article 497 (3) of the Code of obligations
provides that: ‘if the creditor knew or could have known that the guarantor had agreed to the
guarantee on the assumption that the same debt would be guaranteed by other guarantors, the
guarantor is not bound by his agreement if this assumption proves wrong or if, at a later stage,
one of the guarantors is released by the creditor or if his ‘engagement’ is declared void’. In this
case, the term ‘engagement’ is used instead of the term ‘contract’.
Under Quebec law, article 1574 of the Civil Code provides in paragraph 2 that: ‘They [the
offers] may also by made by the production of an irrevocable, unconditional ‘engagement’ with
an indefinite term, subscribed by a financial institution exercising its activities in Quebec, to pay
to the creditor the sum which is the object of the offers if such creditor accepts them or if they
are declared valid by a tribunal’88.
If conceptually, ‘engagement’ and ‘obligation’ can clearly be distinguished, the latter being
the source of the other, it remains that the way they are used shows a certain confusion between
the two. If it is evident that such confusion is regrettable with regard to clarity and precision, it
would appear that it is comprehensible and does obscure the meaning of the provisions in
question. A reservation should however be expressed.
It is really in its relationship with the term ‘contract ’ that the term ‘engagement’ causes the
most difficulty. Indeed, if it is interpreted as being at the very origin of the obligation or the
claim, the elliptical use of the term introduces some doubt as to the scope of the rule: is the
particular provision applicable to contractual ‘engagements’ (to contracts) or can it also be
applied to unilateral ‘engagements ’?
Finally, the need to clarify the meaning given to the term ‘engagement’ is particularly
important in view of the fact that English translations of this term are varied and cannot be
ordered in any way.

88
Here, the English translation uses the term « undertaking » to translate the term « engagement ».

27