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The Division of WrongsA Historical Comparative Study$
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Eric Descheemaeker

Print publication date: 2009

Print ISBN-13: 9780199562794

Published to Oxford Scholarship Online: September 2009

DOI: 10.1093/acprof:oso/9780199562794.001.0001

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Pothier and the French Civil Code

Pothier and the French Civil Code

(p.107) 5 Pothier and the French Civil Code
The Division of Wrongs

Eric Descheemaeker

Oxford University Press

This chapter looks at the division of wrongs into délits and quasi-délits in the most significant work of the French ancien droit, Pothier's Traité des obligations, and then in the Code civil of 1804. It explains how Pothier redrew the line between delicts and quasi-delicts one rung higher on the ladder of blameworthiness (between dolus and culpa rather than culpa and casus), thereby opening up a structural gap at the level of casus. The Civil Code, which does not define délits or quasi-délits, is invariably believed to have followed Pothier on this point, hence the modern French definition of délit as an intentional wrong and quasi-délit as a negligent wrong. A systematic study of the travaux préparatoires of the Code shows, however, shows that this assumption is mistaken, the draftsmen of the Code having in reality sat on the fence in respect of this question.

Keywords:   Pothier, Traité des obligations, Theophilus, Code civil, of obligations, délit, quasi-délit, travaux préparatoires

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