Private Law Theory

ABSTRACT
The French legislator asserts that the reasonable person, now enshrined as an objective standard of interpretation in Article 1188 of the Code civil following the 2016 reform, has been present in the code since 1804. Yet a historical overview reveals that the reasonable person in French law is not a homogenous character – distinct conceptions of reasonableness paved their way to French law in different periods and with different purposes. As the reasonable person in Article 1188 is a brand-new character on the French legal stage, French judges have to apply this legal standard, but little guidance can be found in French law. It may be tempting to think that lessons can be learned from English law where the reasonable person plays a central role. However, an inquiry into the development of the reasonable person in English law illustrates why the reasonable person à l’anglaise is a faux ami of the French reasonable person. This historical and comparative study has both pragmatic and broader conceptual implications. It informs the application of Article 1188. Moreover, it shows why the introduction of the reasonable person in Article 1188 evidences a formal empowerment of the French judge by the legislator. The flexibility and versatility of the reasonable person device, which can be better appreciated via a comparison with English law, further unties the hands of the French judiciary and provides them with one more tool to enforce the values of French law as they see them evolve.

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Catherine Pédamon and Radosveta Vassileva, The Reasonable Person in French and English Law: Insights on Contractual Interpretation from a Tale of Faux Amis, European Review of Private Law volume 34, issue 4 (2026).