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Les pouvoirs contractuels : étude de droit privé.

Abstract : The contemporary evolution of the private law of contracts is marked by the multiplication of the hypotheses in which one or other of the parties has the possibility of acting alone on the content or fate of a definitively formed contract. For example, since 1995, it has been accepted that one of the parties to a framework contract can only fix the price. Similarly, in the event of a serious breach by one of the parties, the other party may, at his own risk, proceed to the termination of the contract. These two types of contractual prerogatives belong to a broader category that the doctrine commonly refers to as "contractual powers". However, contractual powers disrupt the traditional rules of private contract law in two respects. On one hand, contractual powers introduce a unilateralist logic, synonymous with inequality, in the contract that traditionally responds to a consensualist logic synonymous with equality. On the other hand, the mechanism of contractual powers implies a redefinition of the judge's place in contractual disputes since the latter will no longer necessarily be seized to settle disputes between the parties relating to the performance of the contract. It will be seized after the modification of the effects of the contract decided unilaterally, and this, by the party who intends to contest the regularity. To devote a study to the contractual powers therefore presupposes seeking to identify more precisely this mechanism that introduces into the contract a logic of power that is not its own, and then attempts to define the contours of the judge's intervention.
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Submitted on : Wednesday, December 19, 2018 - 5:03:05 PM
Last modification on : Monday, July 15, 2019 - 1:24:02 PM


Version validated by the jury (STAR)


  • HAL Id : tel-01961112, version 1



Marc Cassiède. Les pouvoirs contractuels : étude de droit privé.. Droit. Université de Bordeaux, 2018. Français. ⟨NNT : 2018BORD0278⟩. ⟨tel-01961112⟩



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