개정 프랑스민법전상 급부반환

Restitution under the French Civil Code -focusing on the 2016 amendment to the Napoleonic civil code-

Since 1804, the law of contracts and obligations has evolved very significantly outside the french civil code thanks to the Court of Cassation, which has established very important rules that govern positive law but that have not found their place in the Civil Code. Reform was instituted at the time of the bicentennial of the Civil Code based on the observation that the law of contracts and obligations had become a largely judge-made law, incomprehensible to non-specialists and often unpredictable. Accordingly the first goal of the reform was to codify rules created by the Court of Cassation, notably, those regarding restitution. Restitution of a thing other than a sum of money takes place in kind or, where this is impossible, by value assessed at the date of the restitution. A person who makes restitution of a thing is responsible for any degradations or deteriorations which have reduced its value unless he was in good faith and these were not due to his fault. A person who sells a thing which he received in good faith must make restitution only of the sale price. If he received it in bad faith, he must pay the value at the date on which he makes restitution where that is higher than the price. Restitution includes its fruits and the value of the enjoyment to which the thing has given rise. The value of the enjoyment is to be assessed by the court as at the date of its decision. Unless otherwise stipulated by the contracting parties, if the fruits no longer exist in kind, their restitution takes place, according to a value assessed at the date of reimbursement, on the basis of the condition of the thing at the date of satisfaction of the obligation. Restitution owed to an unemancipated minor or to a protected adult is reduced in proportion to the profit which he has drawn from the act that has been annulled. The amount of restitution is fixed taking into account for the party who owes restitution any necessary expenses incurred in the maintenance of the thing, and expenses which have increased its value, limited to the increase in value assessed atthe date of restitution. Restitution of a sum of money includes interest at the rate set bylegislation and any taxes paid to the person who received it. A party in receipt in bad faith owes interest, the fruits he has taken andthe value of enjoyment from the moment of receipt of satisfaction. A party in receipt in good faith owes these only from the date when they are claimed. Restitution in respect of a supply of a service takes place by value,assessed at the date at which the service was supplied. Securities created for the satisfaction of an obligation are transferred by operation of law to the obligation to make restitution, although the guarantor does not lose the benefit of any time delay.