David Pollard, A Sourcebook on French Law. Cavendish Publishing Ltd. 1996
7 OBJET
The third essential condition for the validity of a contract relates to a concept, which has no direct counterpart in English law, namely, l’objet. The Code civil provides that ‘tout contrat a pour objet une chose qu‘une partie s‘oblige a donner, ou qu‘une parties s’oblige a faire ou a ne pas faire’ and there must be ‘un objet certain qui forme la matiere de l’engagement’ (Code civil, Articles 1126, 1108 [C.1]. The objet of a contract is the subject matter or content of the contract, the duty which each party has to perform, the legal activity which the parties have agreed to undertake. In one sense, the objet of a contract is the legal activity which the parties have agreed to undertake (eg, the sale of property as opposed to its hire) but this also includes further features emanating from the very nature of that legal activity, namely: first that the parties have to transfer something (une chose or do or not do something in accordance with the duties which the contract creates for the parties (eg, to transfer ownership of the property and to pay the price); second, that there the contract involves a transfer of property the chose to be transferred is the objet of that obligation to transfer; and, third, where a contract involves the duty of doing (or not doing) something, the chose to be performed (or not) is the objet of that obligation to act (or not). The objet (in whichever sense is appropriate) must be certain, either in the sense that it relates to an activity or entity which is legally capable of being the subject matter of a contract or in the sense that it is legally capable of being the subject matter of a contract or entity which is legally capable of being the subject matter of a contract or in the sense that it is determined or determinable (or at least possible).
The obligation agreed by the parties may be impossible to perform for legal reasons in that the subject matter which purports to be the objet of a contract cannot in fact be transferred from one party to another because it cannot be the subject of commercial activity (Article 1128 [C.1]. there is no definition or list of matters which are dans le commerce and which, therefore, can be a valid objet of a contract. However, case law has excluded certain matters. First, a person’s personal clients (eg, the patients of a doctor or the clients of an architect) because the client – practitioner relationship is a personal one. To sell one’s clients is not permissible [C.54] but if an agreement is one which merges a practice or brings in a new practitioner and gives the clients a free choice between practitioners, the contract is not void for want of object [C.55]. Second, the right to hold certain offices cannot be transferred [C.56]. Third, neither tombs and tombstones [C.59] nor human beings [C.57] [C.58] may be the subjects of commercial activity (but it may be noted that donating organs and sperm is permissible under recently enacted statute law). In addition to matters, which are hors de commerce, the Code civil forbids the renunciation of the right, at some time in the future, to inherit property and, therefore, such a renunciation cannot be an objet of a contract [C.53]. The draftsmen of the Code civil were conscious of the fact that, if a contract is to be absolutely binding, then there must be no uncertainty ( or as little uncertainly as posible0 as to what was decided in the contract. A contract must have an objet and that objet must be certain. The legal activity contemplated must be certain (eg, that it is a contract for sale and not a contract for hire) and the thing to be transferred or the duty to be performed must be certain (eg, what land is to be conveyed, what type and size of car is to be hired, and at what price). Problems have arisen where the contracts is not sufficiently specific as to the amount or quantity of any subject matter involved. The Code civil provides that the amount or quantity of the chose (eg, the goods to be transferred and, especially, the price to be paid or the wages to be paid) may be specified in the contract without absolute precision provided that the chose is able to be quantified (Article 1129 [C.1]). Case law permits the courts to define the quantity of the chose, provided that they do so by referring to a sufficiently precise method of calculation based on objective criteria [C.49]. References to ‘the current market price’ or other similar phrases will often be too vague, resulting in the annulment of the contract because, if the object is undefinable, this is tantamount to there being no objet [C.50] [C.51]. if the performance of a contractual obligation is left to the complete discretion (une condition potestative) of the party committed to perform the obligation, that obligation is void (Article 1174) [C.52]. However, it is not necessary that the subject matter which is the objet of the obligation exists at the time the contract is made (eg, a contract to build a house or a ship will have an objet certain because the contract will have contained detailed specifications of the house or ship to be built) (Article 1131 – 1 [C.1]).