Aspects of building contracts: A comparative view of english and french law in the light of potential harmonisation

The approach to and mechanisms of building contracts in England and France are securely entwined in their respective systems of law and histories, but merely acknowledging separate existence is no longer acceptable. The traditional imposition of national law is surrendering to uniform rules for the furtherance of trade and in the interests of competition, and construction cannot remain immune. The protective wall of national legal systems was distinctly exposed by proposals for a community strategy for the construction industries in the EC, and confluence will be the future. How it will be shaped will depend on the reactions to each other of the heritages of the common law and civil law systems, but contribution is due from both. Part I investigates comparative influences and approaches that lie behind some of the main features of building contracts, to see under what principles they operate, where their ends are similar, and what represents the perceived great divide. Part II looks at areas where particular legislation has been introduced to overcome problems, and at the influence of fault and the experience with tort. Part III in conclusion examines approaches to harmonisation and identifies principles behind some aspects that are being considered in the European Commission. Future direction in England may involve proposals to renounce the third-party rule in common law. These are viewed in the context of construction. There is also the question of the potential impact of competition law on standard forms. In England their adoption will, practically, represent the law of building contracts to the parties, whereas in France the overriding effects of the Code Civil are felt in and alongside standard form. The potential for a European standard form is recognised, although the way forward to harmonisation will depend on what are seen to be the appropriate goals.