From 1789 to the Code civil. – This period, called intermediate law, marks the transition from old to modern French law. The work of the French Revolution certainly took place to a greater extent in the field of public law; nevertheless the assemblies of the revolution introduced various very important reforms also in private law. They aimed above all at two fundamental purposes: to stabilize the unity of French law by means of the suppression of conflicting customs, and to make the last traces of feudalism in civil relations disappear. This double action has developed above all in two fields: that of landed property and that of successions.
On the night of August 4 (p. 946), the Constituent Assembly affirmed the principle of individual and absolute property, consecrating a reform that had been taking place for several centuries. The regime of this property was then organized by the laws of 9 messidoro year III (27 June 1795) and 11 brumaire year VII (1 November 1798) which instituted the advertising of mortgages and real estate transfers. Land ownership thus ordered still forms the basis of the social organization of France today.
According to philosophynearby, there was not much of the feudal inheritance right at the time of the revolution. But this made disappear the last remnants of the major males and the privileges of the males, proclaiming on April 8, 1791 the complete equality of the heirs. These leveling tendencies were exaggerated by the unfortunate law of rainy 17th year II (February 5, 1794), which forbade any testamentary disposition in favor of a single heir, and assimilated natural children to legitimate children: too radical measures that soon had to be repealed.. At the same time there were the first attempts to obtain the drafting of a civil code; but, in the confusion of ideas and political agitation of the revolutionary period, it was impossible to get the three projects prepared by Cambacérès to vote (see also: code: History of Modern Codification, X, p. 678 ff.).
The Code civil. – The projects of a civil code were translated into action thanks to the will of Bonaparte: a commission of four members (Tronchet, Portalis, Bigot-Préameneau and Malleville) was appointed in 1800, the preparatory works were carried out quickly and the Code civil it could be promulgated on the 30th windy year XII (21 March 1804). At that time France enjoyed the peace provided by the Consulate at home and abroad. Therefore the civil code was a conciliation between the different influences of which, for some ten centuries, French law felt the action: Roman law, canon law, feudal customs, philosophical ideas of the century. XVIII and of the revolution. To this conciliation, as well as to its conspicuous merits of form, the French civil code owes its enormous success (see also: code, X, p. 679).
The three books of the Code civil contain the fundamental elements of French civil law.
The right of persons is founded on the secularization of the family and of marriage; civil status registers are kept by municipal officials; marriage is a contract that can be terminated by divorce. But, alongside these, various rules of ancient law have passed into modern law, p. eg, the parental authority.
In the law of things the conception of individual and absolute property dominates. Made for a people of peasants and landowners, the Code civil meticulously regulates real estate, walls, buildings and ditches, and servants; dedicates only a few articles to movable property; only one provision concerns incorporated movable property. The mortgage regime is inspired by the rules of specialty and advertising, but for not having been able to repudiate the hidden legal mortgages of ancient law, the drafters of the code have imposed serious burdens on landed property which has not yet been able to be remedied.. Prescription is regulated by the general ideas of Roman law; but a notable exception to these is the article 2279, the result of the development of trade since the century. XVI onwards, which allows the purchase of corporal movable property on the basis of the simple possession of good faith.
But the conciliatory spirit of the civil code was manifested above all in the succession regime. As in Roman law, the idea of patrimonial unity is the foundation of hereditary devolution; on the other hand, in imitation of the droit coutumier, the ab imestato succession is considered as the true succession, and the saisine (see, XXX, p. 481), hereditary (i.e. the immediate transfer of the estate or a share to the heir, even without his knowledge, investing him with civil possession even without detention: le mort saisit le vif) has a very important function. In turn, the ideas of the revolution led to the introduction of the concept of absolute equality of heirs and to granting natural children certain rights in the succession of their parents.
The regime of donations and wills is directly inspired by the royal ordinances of the century. XVIII. The hereditary reserve has a new and freer regime. Of course, the great testamentary freedom of Roman law has not been re-established; but the Code civil ignores the great rigidity of the droit coutumier reserve, still reinforced by the law of the revolution: it limits the reserve to the direct heirs and admits the availability of a share, which can be up to half of the inheritance axis, and which the testator has the right to use also for the benefit of the heirs.
Patrimonial relations between spouses are also regulated under the prevailing inspiration of ancient law: the communion of property between spouses, which constitutes the common law of the French, is an institution of the droit coutumier. But, at the request of the populations of the South, the drafters of the code have preserved the dotal regime of Roman law as a regime subject to convention. The droit coutumier principle of the immutability of marriage conventions reigns over all these norms.
On the other hand, Roman law dominates the whole matter of obligations. It directly inspires the chapters of the code dedicated to contracts and obligations that are contracted without convention, to sale, to lease and to all other civil contracts. Only some rules have different origins. Old French law made the principle of transfer of ownership by effect of consent pass into the chapter of the sale; and from the ideas of the revolution the editors of the code drew upon the rule (art. 1780) that no one can lease his work for an indefinite period.
However great its merits were, the civil code certainly could not definitively halt the development of French civil law. On the one hand, some of his dispositions were notoriously flawed; for example, the position of the married woman and the advertising of property transfers. And on the other hand, in the course of the nineteenth and twentieth centuries, new institutions appeared that were not, or were insufficiently regulated by the civil code: for example, insurance, moral persons. Hence the need for continuous legislative work in order to improve or complete the code; however, these are always only improvements or additions and the Code civil remains the basis of French civil law.