Why remedies is not a legal subject in civil(ian) law?
This conference has been accredited by the Barreau du Québec for 1.5 hours of continuing legal education. Activity no. 10042873.
Abstract
The aim of the presentation is to focus on the absence of remedies and the pre-eminence of rights in civil law. More precisely, we need to explore whether it is the concept of remedies that is lacking in civilian law (with a focus on French law), or just the language of remedies. Dr Sefton-Green's working hypothesis is that the concept is missing; civil law does not think in terms of remedies; there is no legal categorization of remedies. If this is so, the gap is conceptually embedded and is not just a question of language.
Furthermore, if remedies are absent, what does this tell us about the nature of rights (droits subjectifs) in civil law? Can inferences be drawn about the relationship between rights and obligations? If remedies are absent, does this mean that wrongs are absent as well? Or is there a way to square the circle?
Finally, the quest for remedies in civil law is inevitably linked to an enquiry into the dual relationship between the parties (and their respective rights) in private law and the triangular relationship between the parties and the judge. The pre-eminence of rights and the absence of remedies in civil law, paralleled by the presence of remedies in the common law, will impact on these two relationships.
About the speaker
Ruth Sefton-Green is qualified as a solicitor in England and an avocate in France. She is Maître de conférences of comparative private law at the École de droit de la Sorbonne, Université Paris 1 (Panthéon-Sorbonne) where she obtained her doctorate (PHD, 1997) and attached to the comparative law research centre UMR de droit comparé de Paris. She will be a Visiting Professor (Wainwright Senior Fellow) at McGill for the winter semester 2012.
She teaches mainly the comparative law of obligations and introduction courses to foreign legal systems using comparative law methodology. Her thesis La notion d'obligation fondamentale: comparaison franco-anglaise (LGJD, 2000) was awarded the Levy-Ullmann prize for comparative law. She has also published, as editor, a book in the Common Core of European Private Law series: Mistake, Fraud and Duties to Inform in European Contract Law (Cambridge University Press, 2005), republished in paperback (Cambridge University Press, 2008). She has participated as a reporter in other Common Core of European Private Law volumes and as an active member of the Study Group for Social Justice in European Private Law, whose manifesto was published in the European Law Journal (2004) and translated in the Revue trimestrielle de droit civil (2005). She has published numerous articles, singly and collectively, in French and English law books and periodicals on themes and issues relating to comparative law in general, the comparative law of obligations and European private law.