Unifying European Private Law in the Interwar Period:  The Case of the Franco-Italian Draft Code of Obligations and the Polish Code of Obligations, by K. Kryla-Cudna

Introduction

In a previous post, Aleksander Grebieniow and Jan Rudnicki discussed the process of unification of the Polish law of obligations in the interwar period. As explained by the authors, the Polish Code of Obligations of 1933 was inspired by the law that was previously in force in Polish territories, that is, by Austrian, German and French law, as well as by the Swiss Code of Obligations of 1912 which was seen as a very innovative piece of legislations at that time. A major feature of the Swiss Code of Obligations was that it regulated complicated concepts in a very understandable and concise manner which made it accessible to a broader public. Hence, the Swiss Code of Obligations served as a model for the Polish legislator in terms of the quality of the drafting (H. Konic, Nowe prawo o zobowiązaniach w Szwajcarii, (1912) 29 Gazeta Sądowa Warszawska 444). 

This post will focus on a less-known cross-jurisdictional dialogue and a source of inspiration of the Polish legislator – the Franco-Italian Draft Code of Obligations of 1927.

The Franco-Italian Draft Code of Obligations

The idea of a Franco-Italian Code of Obligations was presented in 1916 by an Italian scholar, Vittorio Scialoja (V. Scialoja, Per un’alleanza legislativa fra gli stati dell’intesa, (1916) CLXXXI Nuova Antologia 451), and warmly received by Ferdinand Larnaude from the Faculté de droit de Paris (M. Rotondi, The Proposed Franco-Italian Code of Obligations, (1954) 3 American Journal of Comparative Law 345). Subsequently, two committees were created – one in Italy (Comitato italiano per un’alleanza legislativa fra nazioni amiche) and one in France (Comité français pour l’union législative entre les nations alliées et amies; see F. Maroi, Il progetto italiano-francese sulle obbligazioni, I. – parte generale, Modena 1928, p. 3, 5). Even though the formation of the committees was a private initiative of a group of scholars, they received an official recognition. The Italian committee acquired the status of a Royal Commission (a section of the ‘Commission for the Study of the Problems in the Transition from War to Peace’ created by the Decree No. 361 of 21 March 1918), while the French committee was recognised by the French Ministry of Justice (Decree of 18 February 1929) and operated under the auspices of the ministry.

The drafting process took more than ten years (for a report on the works of the two commissions, see Projetto di Codice delle obbligazioni e dei contratti. Testo definitivo approvato a Parigi nell`Ottobre 1927 – Anno VI. Projet de Code des obligations et des contrats. Texte définitif approuvé à Paris en Octobre 1927. Roma. Proveditorato Generale dello Stato. Libreria 1928. Anno VI, p. XXIII–XXXVII). The final draft of the code was published in 1927 and covered the general part of the law of obligations as well as the rules concerning specific contracts, including more than 700 provisions in total. The purpose of the draft code was not so much to introduce completely new rules governing the law of obligations. Rather, it was to unify the laws of both countries (V. Scialoja, op.cit.; A. Azara, Della locazione secondo il progetto italo-francese per un codice unico delle obbligazioni e dei contratti (Disposizioni generali), (1928) XX Rivista di diritto civile 522; R. Demogue, L’unification internationale du droit privé, Paris 1927).  The Italian Codice Civile of 1865, including its sections on the law of obligations, was inspired by the Code Napoléon, thus, the rules that were already in force in Italy and France in this area of law were similar to a large extent. The common code of obligations was meant to bring the two systems even closer to one another in recognition of ‘the brotherhood of two great Latin nations’ (S. G. Vesey-FitzGerald, The Franco-Italian Draft Code of Obligations, 1927, (1932) 14 Journal of Comparative Legislation and International Law 1, 3) and to update the rules that were already in force (A. Sraffa, C. Vivante, Intorno al „Progetto di codice delle obbligazioni e dei contratti”, (1928) 26 Rivista del diritto commerciale e del diritto generale delle obbligazioni 295).

The draft code was the result of a collaboration between distinguished Italian and French scholars, such as V. Scialoja, A. Ascoli, G.C. Buzzati, G. Segré, R. De Ruggiero and A. Azara (on the Italian part), and F. Larnaude, A. Colin, H. Capitant, L.F. Julliot de la Morandière and M.G. Ripert (on the French part) (M. Rotondi, op. cit., at 345). Ultimately, however, the code did not enter into force. The main reason was that very serious political problems emerged in both countries in the 1930s which made the desire for a unification of the law of obligations far less important than it originally was (M. Rotondi, op. cit., at 345). Nonetheless, the influence that the draft had on the Polish Code of Obligations proved that the efforts put into its preparation bore fruit.

The Impact of the Franco-Italian Project on the Polish Codification Commission

In 1919, the Polish parliament established a Codification Commission in order to unify the law in the Polish territories, previously divided between the Austro-Hungarian, the German, and the Russian Empires. One of the sections of the Commission was created specifically to unify the law of obligations. The unification of commercial law was seen as particularly urgent. The fact that five different legal systems were in force on Polish lands necessitated the creation of special rules on conflict of laws within the country (Ustawa z 2 sierpnia 1926 o prawie właściwem dla stosunków prywatnych wewnętrznych, available at: https://isap.sejm.gov.pl/isap.nsf/DocDetails.xsp?id=WDU19261010580 ) which resulted in a rather complicated legal situation for merchants and hindered the intrastate trade.

Koschembahr-Łyskowski initially reached out to both Vittorio Scialoja (from the Italian committee) and Henri Capitant (from the French committee) and, over time, developed strong, professional relationships with the two scholars. During the summer holiday of 1926, he met with Henri Capitant on numerous occasions in order to thoroughly discuss specific solutions adopted in the Franco-Italian draft (A. Moszyńska, Międzynarodowe ujednolicanie prawa zobowiązań w okresie międzywojennym, (2012) XI Studia Iuridica Toruniensia 129, 134).

The conversations with Henri Capitant resulted in a number of proposals which Koschembahr-Łyskowski presented to the Polish Codification Commission. Most of these suggestions were warmly received and accepted by the Commission in 1926 (I. Koschembahr-Łyskowski, O zagadnieniu międzynarodowego ujednostajnienia prawa o zobowiązaniach, (1928) 9 Themis Polska 25, 26).  Additionally, Koschembahr-Łyskowski himself prepared a modified version of the 1927 Franco-Italian draft (a counter-draft) and submitted it to the Italian and French committees for consideration. Some of the suggestions that he made were accepted by the drafters of the Franco-Italian code (L. Górnicki, op. cit., at 138).  From this time on, the Polish Codification Commission maintained a regular contact with the French and Italian committees.

In 1926, a notable Polish scholar, Ludwik Domański, wrote an extensive commentary to some of the provisions of the Franco-Italian draft, which was published in twenty (!) consecutive issues of a leading Polish law journal at that time (L. Domański, Prawo o zobowiązaniach w ogólności według projektu komitetu francuskiego do spraw zjednoczenia ustawodawczego, (1926) 54 Gazeta Sądowa Warszawska no. 1-20, p. 2, 17, 33, 49, 66, 74, 90, 101, 116, 131, 144, 160, 170, 185, 197, 215, 228, 239, 255, 271, available at: https://crispa.uw.edu.pl/object/files/368069/display/Default). The text of the Franco-Italian draft was translated into Polish and published in the same journal in 1929 (Projekt kodeksu francusko-włoskiego zobowiązań i umów. Tekst ostateczny przyjęty w Paryżu w październiku 1927 r., translated by J. Wasilkowski, (1929) 57 Gazeta Sądowa Warszawska, issues: 15–16, 21–26, 35–45 [addendum]).

The Idea to Adopt the Franco-Italian Draft Code in Poland

Given the great enthusiasm that the Franco-Italian draft raised among Polish scholars, the Codification Commission started considering adopting the text of this draft as the basis of the new Polish law of obligations (R. Longchamps de Bérier, Projekt francusko-włoski o zobowiązaniach z 1927 r. Uwagi krytyczne, ze względu na kodyfikację prawa o zobowiązaniach w Polsce, (1929) 24 Gazeta Sądowa Warszawska 873). Thus, instead of preparing an entirely new legal act regulating the law of obligations, the Commission considered to simply introduce some changes to the draft already prepared by the French and Italian committees and put this set of rules into force in Poland.

One argument that was raised in support of this solution was that the Franco-Italian draft resembled the French Civil Code to a large extent, a version of which was already in force on a part of the Polish territory. It was also claimed that bringing the Polish law of obligations closer to the French legal tradition would constitute a significant step towards the internationalisation of private law and its unification across Europe (see R. Longchamps de Bérier, op. cit., at 873).

During a press conference in 1927, the head of the Polish Codification Commission announced that it was considered that a group of Polish scholars could join the Italian and French committees in the works on the draft code of obligations (Konferencja prasowa Sekretarza Generalnego Komisji Kodyfikacyjnej R.P. (protokół), odbyta 31 października 1927, Komisja Kodyfikacyjna Rzeczpospolitej Polskiej. Dział ogólny, Tom 1, Zeszyt 10, p. 284).

The Criticism of the Idea

In terms of the substance, Longchamps de Bérier argued that some of the solutions adopted in the Franco-Italian draft were too conservative (e.g. contrary to most of the modern pieces of legislation, the draft code did not explicitly introduce a strict liability for a damage caused by a vehicle, leaving this issue unclear). Furthermore, he argued that the draft did not ensure sufficient certainty in commercial affairs (e.g. in the process of establishing whether a contract was concluded, the draft code referred to the subjective will of the parties rather than to the declarations that they made).

Moreover, Longchamps de Bérier pointed out that the draft code allowed for a court’s intervention into the parties’ agreement in a number of instances (e.g. when one of the parties did not perform their side of the bargain, the draft required the court (rather than the other party) to fix an additional period of time for performance). Longchamps de Bérier argued that such a broad involvement of the court was against the approach normally adopted in contract law across Europe. Furthermore, seeking a court’s decision may have taken a long time which might hinder commercial transactions.

Longchamps de Bérier’s criticism of some of the substantive solutions adopted in the Franco-Italian draft may be seen in a broader context of a conflict between a liberal approach and a social justice approach in the works of the Polish Codification Commission. Longchamps de Bérier himself supported the liberal approach which shaped his views on specific solutions proposed in the draft code (J. Halberda, Instytucja niesłusznego wzbogacenia w polskim Kodeksie zobowiązań z 1933 roku na tle współczesnych kodyfikacji, (2012) 5 Krakowskie Studia z Historii Państwa i Prawa 307, 312).

In terms of the quality of the drafting, Longchamps de Bérier criticised, for example, the inclusion of rules on the types of evidence in the general part of the law of obligations instead of regulating this issue separately in a legislative piece on civil procedure.

Finally, Longchamps de Bérier pointed out that it was not certain whether the draft code would come into force in Italy and France in the first place. If this did not happen, Poland would again be left alone with its ambitions to internationalise and unify private law across Europe, as it happened before in the case of the law governing bills of exchange (R. Longchamps de Bérier, Projekt francusko-włoski o zobowiązaniach z 1927 r., (1929) 57 Gazeta Sądowa Warszawska, published in four parts in issues 24–27, p. 874, 889, 405, 421, available at: available at: https://crispa.uw.edu.pl/object/files/367927/display/Default).

The Final Decision

The time proved that Longchamps de Bérier was right in his prediction that the Franco-Italian draft might never come into force even in Italy and France. In 1929, after long consultations, the Polish Codification Commission made the decision not to adopt the Franco-Italian draft as the basis of the Polish law of obligations. Nevertheless, it was decided that the solutions introduced in the draft would be taken into account ‘to a large extent’ in the final text of the Polish Code of Obligations.

Indeed, the Franco-Italian draft influenced more than 20 provisions included in the final version of the Polish Code of Obligations (for an overview, see R. Szponder, Geneza przepisów części ogólnej polskiego kodeksu zobowiązań z 1933 r., Kraków 2020, a PhD thesis available at: https://ruj.uj.edu.pl/xmlui/bitstream/handle/item/277238/szponder_geneza_przepisow_czesci_ogolnej_2020.pdf?sequence=1&isAllowed=y). For instance, it was broadly used in the regulation of precontractual arrangements which were only scarcely tackled or not addressed at all in the German, Austrian and French Civil Codes. Furthermore, it influenced rules on delictual liability, including the most fundamental rule which allowed for compensability of a damage suffered by the injured party regardless of the type of fault of the person who caused it, and the exceptions to the strict liability for damage caused by a thing.

Hence, even though the idea of the uniform Code of Obligations for France and Italy did not succeed, it did offer a helpful source of inspiration for the unification of private law in Poland.

Conclusion

The Polish Code of Obligations of 1933 had been inspired by solutions adopted in three European jurisdictions, in which Polish jurists were trained, and by the most modern legislation in this area of law at the time, which was introduced in Switzerland. The engagement with the draft Franco-Italian Code of Obligations shows the openness of Polish lawyers to new initiatives and a willingness to join forces with scholars from other European jurisdictions aimed at the unification of private law across Europe. Polish jurists of the interwar period were well prepared for undertaking such initiatives – they had to deal with five different legal orders on a daily basis. Hence, they were in a particularly good position to be able to identify strengths and weaknesses of specific solutions available to the legislator.

A strong reliance on comparative law did not disappear from Polish legal scholarship and case law after the unification of law in Polish territories. Even nowadays, Polish textbooks for law students include numerous references to solutions adopted in other jurisdictions. A comparative approach is widely present in Polish legal writings and the courts often refer to solutions adopted in other countries when they have doubts about the interpretation of certain provisions of Polish law. Comparative law, therefore, remains an important component of the Polish legal culture.

Posted by Dr Katarzyna Kryla-Cudna, Lecturer in Law, University of Bristol, United Kingdom (katarzyna.kryla-cudna[@]bristol.ac.uk).

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Suggested citation: K Kryla-Cudna, “Unifying European Private Law in the Interwar Period:  The Case of the Franco-Italian Draft Code of Obligations and the Polish Code of Obligations”, BACL.blog, available at https://wp.me/p80U0W-1mA.

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Photo Credits:

Roman Longchamps de Bérier: Polish National Archives 

Ignacy Koschembahr-Łyskowski: National Library of Poland

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This piece belongs to the “Cross-jurisdictional dialogues in the Interwar period” series dedicated to less-known legal transfers which have had a palpable impact on the advancement of the law. The Interwar period was a time of disillusionment with well-established paradigms and legislative models, but also a time of hope in which comparative dialogue and exchange of ideas between jurisdictions thrived. The series is edited by Prof Yseult Marique (Essex University) and Dr Radosveta Vassileva (Middlesex University).