Thèses soutenues

02/11/2011 Marion COTTET

The « accessoire » theory in French private law

Mention : Lieu : Horaire : Directeur de thèse : Judith Rochfeld

Description of the doctoral dissertation

The accessoire theory is used in French private law in an inconsistent way, due to its multiple applications. Therefore, it was necessary to study this theory and try to give it back some consistency so that it could be used predictably. In order to do that, we tried to identify the rules that are hiding behind the accessoire theory. We came to the conclusion that this theory should not be used to explain the mechanism of accession nor the dependence of the accessoire to the principal, especially in security law. We also brought to light the latent existence of a notion which is able to explain the accessoire theory in most of its applications, that is, the notion of function. This notion, which would allow judges to introduce the economic analysis into their reasoning, designates how a contract or a clause or an obligation contributes to achieve a certain economic result. If it was implemented in positive law, this notion of function could replace the accessoire theory in its normative role, which is to make the accessoire disappear along with the principal. The accessoire theory could then be confined to its preservative role, which is to maintain the link between the accessoire and the principal, in other words, to allow the accessoire to fulfil its function beside the principal. It appears thus that the accessoire theory can be renewed in a consistent way thanks to the notion of function. While carrying out such a renewal, we suggested to include personal burdens into the scope of the notion of accessoire, so that burdens responding to certain criteria can be transferred along, as accessories, with a property, as principal.