THE MYSTERIES OF FRENCH LAND LAW
An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers
We had just finished re-reading Peter Mayle’s ‘A Year in Provence’ when this remarkable book landed on our doorstep and we began to read it in more detail with some enthusiasm. Like many of our colleagues, knowledge of the principles and practice of French property and inheritance law has been limited to excursions across the Channel and my pupil master explaining the intricacies of buying an old farm in Normandy.
Henry Dyson has produced a most readable book, which will appeal to a market that is continually expanding as more and more Britons buy property abroad. Now, we have all seen the horror stories on the television so is it really as bad?
The answer is, probably, no! The problem with French property law is the way in which they do things and Dyson has a splendid way of setting out French methods. To highlight this point, we read his statement about how the table of cases is created and how the court hierarchy operates.
The best statement of all is ‘notwithstanding that the rule of judicial precedents is not known in French, it may well surprise the English practitioner that of over 180 judgments referred to … more than 140 are those of the Cour de Cassation (the highest court in the land).
Also of great use are details of the address where one can obtain copies of the various judgments in Paris and French Internet references for the adventurous. Such information is most useful ignoramuses such as us who have absolutely no idea how the system operates. This was our chance to improve our knowledge so we followed Dyson’s advice and referred to Part III of Principles of French Law by Bell, Boyron and Whittaker (OUP) and the chapter entitled ‘Studying French Law’.
Suddenly things became much clearer such as the acceptance that French law is formalist with main emphasis on the written word. Dyson continues writing ‘it is not without significance that an English transfer of land can be achieved by means of a single printed page whilst the majority of French conveyances are likely to run to over a dozen closely typed pages’!
There is no equity jurisdiction in France, no system of binding precedents and the concept of the trust has no place in French law. A comment by Professor Malinvaud sums it all up when he writes:
“It may happen in fact that a rule of law, conceived in the abstract, proves to be unjust, inequitable, when brutally applied to a concrete situation.”
The Professor then looks at the judiciary (again created on a very different model) and he says, “It is to be hoped that the judge can reach a fair decision. Arbitrators, when so authorized by the parties can reach a fair decision. Judges do not have that power. Their judgments may be overturned if they openly apply Equity…. A Court of first instance is free not to follow even the most established rule of law; the worst that can happen will be that its judgment will be overruled on appeal”.
It is most useful to read and re-read Dyson’s introduction to gain the basic understanding of what this book is all about. It is clearly intended to enlighten the practising English lawyer who may be involved in French property transactions in their widest sense and with French inheritance law that is so different from the English legal system.
Dyson also has the academic community in his sights which is to be applauded because both the French and German legal systems are being studied to a much larger extent in our British universities today – it becomes noticeable when you seen the number of textbooks on these subjects now available at Hammicks.
The book is well structured with 39 chapters. The first chapter sets the scene with a description of the legal profession and – to state the obvious – should be read first! Then the author progresses through two distinct parts: Part 1 – Land Law- (chapters 2 –23) and Part II – Inheritance Law - (chapters 24 – 39).
Areas for Part I, which will be of interest to English lawyers, include:
• The sale of land • compromise de vente/promesse de vente • Completion • Property owning companies • Sales en viager/by auction • Charges on property • Joint ownership of land • Powers of attorney • Land and its taxation • Capacity
Areas for Part II covering inheritance include:
• Inheritance law introduction • Domicile/residence • Effects of an English trust • Intestate succession/the surviving spouse • Wills/legacies • Gifts inter vivos and inheritance and gifts tax
There is an appendix on precedents at the back running to 70 pages, followed by an absolutely essential glossary, which is what Dyson describes as a ‘secondary index’ because it is so useful. Where the explanation of a word or phrase itself contains a French phrase, an explanation of what appears in French also appears in the Glossary together with words and phrases which may not appear in the text but will require some understanding for readers like us who’s French is rather limited.
Anyone who thinks they are going to be involved in land transactions in France should get this book – if they don’t then the mysteries of many features of the French system will not be unravelled for those who wish to purchase either a main or a second home in France.
Dyson also offers advice on how, for instance, beneficiaries can avoid personal liability for the debts of the deceased and he provides practical guidance on the administration of estates.
Reading this book did actually make us want to go out and buy a little piece of France (if we had the money) and we were taken aback by this thought because prior to reading the book it would have been the last thing on our mind.
This is definitely one for the bookshelf in the French farmhouse.