NULLITÉ PARTIELLE, CLAUSE RÉPUTÉE NON ÉCRITE ET INTÉGRATION CORRECTIVE DU CONTRAT : PERSPECTIVES DE DROIT EUROPÉEN

The discipline on the partial avoidance of a contract has significantly evolved over the past few years in the European law. The traditional position has been that when the contract is only partly lawful, severance of the illegal promises is possible only if the preservation of the contract, once it is deprived of the illegal clause, does not alter the whole nature of the covenants (i.e the economic meaning of the contract). If not, the whole contract is void. However, this rule is clearly inadequate when the illegality of the contractual clauses arises from the need to ensure protection of one of the contracting parties. In this case it is always necessary that only the unfair terms are void (and so cut out) whereas the rest of the contract stays valid. In this context, both the law and the courts often limit the effects of the declaration of illegality by disposing a « statutory severance » of lawful and illegal terms. This solution, which is very common in the area of consumer contracts, ensures that the contract, without the unfair terms, keeps its effects. This paper aims to analyse the evolution of the treatment of partial invalidity, in the light of the rules regulating the consumer contracts in the European countries (especially after the Directive 93/13) as well as of the general rules on the partial avoidance recently provided by the Roumanian Civil Code (2011), the French Project of reform of the contract law (2014) and the Draft common frame of reference. This article also studies the connections between the partial avoidance and the ineffectivity of contract (or rule of « clause réputée non écrite ») as well as the effects of the declaration of partial avoidance, which often could trigger the redrafting of the contract by the judge.