Absence
: absence : not the fact of being away from one's usual place
of residence (which is non-présence) but the situation of a
person missing and whose existence is uncertain (cf. Art. 112).
Absentee
: absent : not a person away from his usual place of
residence (who is non-présent ), but a person who is missing
and whose existence is dubious. (cf. Art. 112).
Affidavit
: acte de notoriété, cf. Art. 71, 311-3, 730-1.
Ante-nuptial agreement
: contrat de mariage: an agreement by which prospective
spouses exempt themselves from the statutory matrimonial regime by
regulating division of property and powers thereon during the
marriage. Cf.
Matrimonial regime.
Appeal
: appel .N.B. French
appel, 1) is only a method of review of the decision of a
court of first instance by an intermediate appellate court (cf.
Court of appeal);
and 2) involves re-consideration of the whole case (factual as well
as legal issues).
Authentic instrument:
acte authentique: is defined by Art. 1317; it has a special
probative effect , cf. Art. 1319; a
notarial instrument
is only one species of the category of acte authentique of
which a judgment, for instance, is another species.
Beneficiary heir
: héritier bénéficiaire: the heir who has accepted a
succession under benefit of inventory (Art. 793 et seq.), whose
patrimony thus remains separated from that of the deceased (comp.
Succession)
and whose liability is thus limited to the amount which he receives.
Benefit of seizure and sale
: bénéfice de discussion : the right of a surety to compel
the creditor to levy execution upon the property of the principal
debtor before resorting to the surety.
Benefit of division
: bénéfice de division : the right of one of several
co-sureties to require the creditor to divide his action and to
reduce it to the amount of the share and portion of each surety.
Bequeath (to)
: léguer. cf
Legacy.
Children's aid service
: service de l'aide sociale à l'enfance : service concerned
with child welfare and which provides particularly foster care.
Commencement of proof in
writing (also
translated by beginning of written proof, incipient written
evidence): commencement de preuve par écrit : an imperfect
written proof (Art. 1347) which allows oral evidence by way of
exception to the rule of Article 1341 which requires a writing in
order to prove most legal transactions.
Community regime
: régime en communauté: the matrimonial regime imposed by law
(failing a regime chosen by the parties in an
ante-nuptial agreement)
which involves, besides the property rights of each spouse, property
owned in common by both spouses.
Compulsory heir
: héritier réservataire : the heir entitled to that portion
of the succession (cf.
Reserve)
of which the deceased was not entitled to dispose freely.
Court of appeal:
cour d'appel : an intermediate appellate court; there are 30
thirty cours d'appel in Metropolitan France. Cf.
Appeal.
Creditor:
créancier: "Creditor" should be understood as meaning not
only a person to whom money is owed, but one to whom any debt
whatever is owed by another person, the
debtor.
Debtor:
débiteur: cf.
Creditor.
Decree
: décret : order of the Government, signed by the President
of the Republic, which may contain provisions either regulatory
(e.g. the decree referred to in Article 1341) or individual (e.g.
the decree of naturalisation referred to in Article 21-15).
Disposable portion
: quotité disponible : that portion of a succession of which
the deceased was entitled to dispose freely; comp.
Reserve.
Family causes judge
: juge aux affaires familiales : judge of the tribunal de
grande instance who has jurisdiction over family matters.
Firms and companies
: sociétés; cf. “companies or firms”, EC Treaty Art. 48 [ex
Art. 58], para 2; comp. “companies and other bodies”, ETS n° 57
(Establishment of Companies) Art. 1. The concept of Société
encompasses institutions homologous to companies limited by shares
as well as institutions homologous to partnership (cf.
Partnership);
all these institutions are considered as contracts (cf. Art. 1832,
1844-7, 3°, 1844-10, para. 1) and subjected to a common core of
rules.
Giving in payment
: dation en paiement : an act by which a debtor delivers a
property to his creditor, who is willing to receive it, in
satisfaction of a debt and in place of what was owed (usually, a
payment in money).
Government procurator
: procureur de la République; a member of the
Government procurator's office.
Government procurator's office
: ministère public . It should be noted 1) that the
ministère public which acts as prosecutor in criminal cases,
also plays an important part in civil proceedings; 2) that its
members, like the judges, are members of the judiciary (magistrats)
and are subjected to many rules, relating in particular to
selection, professional training, appointment and promotion, which
also apply to judges.
Institute
: grevé: a person instituted as heir by a gratuitous transfer
of property, but with the obligation to pass over the property at
his death to children born or to be born, called the
substitutes.
Interim ex parte order
: ordonnance sur requête : a remedy granted on the
application of a party without his opponent being heard, often in
case of urgency, to obtain interim relief.
Joint and several creditors
: créanciers
solidaires. French law does know the institution of joint and
several creditors, cf. Art. 1197-1199.
Judge of guardianships
: juge des tutelles : a judge of the tribunal d'instance
in charge of the protection of minors and adults under a disability.
Judicial arrangement:
redressement judiciaire: a reorganization plan, ordered by
the court, of a merchant unable to meet its obligations.
Judicial liquidation:
liquidation judiciaire: realization of assets and discharge
of liabilities of a merchant unable to stay in business, through
distribution among the creditors.
Juvenile judge
: juge des enfants : a judge of the Juvenile Court (tribunal
pour enfants), a court with criminal jurisdiction, who has
jurisdiction in all matters relating to educational assistance.
Lease with option to sell an
immovable:
location-accession à la propriété immobilière, Act n° 84-595 of
12 July 1984 : a contract (of rare occurrence) by which a seller
binds himself towards a prospective owner to convey to him for value
the ownership or all or part of an immovable after a time of
enjoyment through a subsequent declaration of intention, on
condition of payment in instalments or deferred of the purchase
price, and of a rent until the declaration.
Legacy
: legs : as to testamentary dispositions, French law does not
distinguish with respect to the nature of the property which is the
subject-matter of the disposition. Accordingly, the words
Bequeath,
Legacy and
Legatee
have been used
indiscriminately in any case.
Legatee
: légataire : cf.
Legacy.
Loss
: lésion: disproportion between what one party receives and
what he gives in a contract (Art. 491-2, 510-3, 1118, 1304 et seq;,
1312-1314, 1674 et seq.), or between the shares of co-parceners
(Art. 887 et seq.), or between the hope of an heir and the reality
of a succession (Art. 783).
Management of another's
business :
gestion d'affaires (negotiorum gestio) : the conducting
of another's affair or affairs, on his behalf and in his interest,
but without authority nor authorization; a kind of spontaneous
agency.
Matrimonial regime
: régime matrimonial
: "A matrimonial regime is a system of principles and rules
governing the ownership and management of the property of married
persons as between themselves and toward third persons"(Civil Code
La. art. 2325). Cf.
Ante-nuptial agreement.
Mortgage
: hypothèque..The word "mortgage" has been used for greater
convenience; although there is an essential difference between the
traditional mortgage and an hypothèque : the latter is not a
transfer of the legal title to the mortgagee, defeasible on payment
of the debt, but is only a right in the property owned by another (ius
in re aliena), a charge on another's property, securing a claim.
Thus, it offers similar features with the charge by way of legal
mortgage.
Notarial instrument
: acte notarié : instrument drawn up by a
notaire
and which has
the character of an
authentic instrument.
Partnership for commercial
purposes :
corresponds more or less to société en nom collectif.;
Partnership for
non-commercial purposes
: corresponds more or less to société civile .
The word "partnership" has been used for the sake of commodity,
although there are significant differences between a partnership and
a société : notably, (unless it is undisclosed) the latter
must be registered and has a separate juridical personality from the
date of that registration. Comp.
Firms and companies.
Payment
: paiement : "Payment"
should be understood as meaning not only the delivery of money due,
but the performance of any obligation whatsoever.
Patrimonial rights
: droits patrimoniaux : rights pertaining to a person's
patrimony, i.e. which have a pecuniary value.
Periodic penalty payment:
astreinte : cf EC Treaty, Art. 83 [ex Art. 87] (2) (a)
Peremptory exception
: fin de non-recevoir : bar to proceedings.
Presumptive heir
: héritier présomptif :
a person entitled to the succession of another, in the lifetime of
the latter.
Prior charge
: privilège : "The notion of privilège is a curious
compound of the English concept of lien, including both the
possessory lien of the common law and the non-possessory equitable
lien, and of the idea of priority between categories of competing
creditors" (Amos and
Walton's
Introduction to French Law, second ed. by
F. H. Lawson, A. E. Anton, L.
Neville Brown, Oxford, Clarendon Press, 1963, p. 248).
Prudent administrator, prudent
owner : bon
père de famille (litt. prudent man of property), rough
functional equivalent of the reasonable man.
Real subrogation
: subrogation réelle :
the substitution of one thing in the place of another.
Redhibitory vice
: vice rédhibitoire :
an essential defect in a thing sold which involves rescission of the
sale.
Reserve
: réserve : portion of the succession of which the deceased
was not entitled to dispose freely. Comp.
Disposable portion.
Substitute
: appelé : cf
Institute.
Succession
: succession. It should be kept in mind that in French law,
the deceased's patrimony (assets and liabilities) vests by operation
of law in the heirs at the moment of the death (acceptance is
retroactive to the opening of the succession; but an heir may
repudiate it) and is in undivided ownership between them until
partition, which relates to liabilities as well as to assets. Comp.
Beneficiary heir.
Term
: terme: a period of time
granted to a debtor for the performance of the obligation.
Undisputable date
: date certaine
: a date of which an instrument is evidence with regard to third
parties (cf. Art. 1319, 1328).
II
Untranslatable French
terms
Arrondissement
: cf. Commune.
Avoué
: a quasi-public officer, although he has a profession, who acts as
agent of the parties in civil proceedings and takes all procedural
steps before a
court of appeal.
Canton
: cf Commune.
Cause
: a rather confused concept.
Roughly speaking, there is want of
cause
in a contract when the performance of one party is not
counterbalanced by a performance of the other party, and an unlawful
cause
is an unlawful
motive.
Commune.
Note on the
Administrative Organization of France. France is divided into 26
régions
(including four
overseas regions); the régions, created in 1960/1972
are not alluded to in the Civil Code. Régions are divided
into
départements;
there are 96 metropolitan départements. Départements are
divided into
arrondissements;
there are 339 arrondissements. Arrondissements are divided
into cantons;
there are 3 995 cantons. Cantons are divided into
communes;
there are 36 555 metropolitan communes. Thus, a commune
is only a rough equivalent to an English parish.
Conseil d'État
: an administrative (and jurisdictional) body which acts as advisor
to the Government as to legislation and regulations.
Département
: cf. Commune.
Force majeure
: an event beyond the control of a party, which he could not
foresee, prevent or avoid.
Journal Officiel
: an official
publication in which statutes and regulations are authoritatively
published.
Juge d'instance
: a judge of the
tribunal d'instance.
Livret de famille
: a booklet which the officer of civil status establishes, inter
alia, at the time of the marriage and hands over to the spouses. It
contains an extract of the record of marriage of the spouses and
will be completed later on by extracts of the records of birth of
the children born of the marriage, of those adopted, by extracts of
the records of death of them all and by mention of the records or
judgments having an incidence on a record, an extract of which
appears on the livret de famille. A photocopy of that
livret is conclusive evidence of the civil status and family
position of the person concerned with respect to administrative
bodies and public institutions.
Notaire
: a public officer, although he has a profession, one of whose
duties is to draw up
authentic
instruments
between private persons.
Préfet
: the depositary of the
authority of the State in a
département
; there are also
Préfets de région.
Tribunal de grande instance:
court of major jurisdiction of first instance.
There exist 175 metropolitan
tribunaux de grande instance,
at least one per département.
Tribunal de première
instance:
court of first instance.
Tribunal d'instance
: court of minor jurisdiction of first instance. There exist 462
metropolitan tribunaux
d'instance,
each of them having jurisdiction over the territory of several
cantons.
