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Court of Cassation on moral rights, Paris (1902)
Source: Bibliothèque universitaire de Poitiers (SCD) : Dalloz, Jurisprudence générale. Recueil Périodique et critique de jurisprudence, de legislation et de doctrine, 1903.1.5
Citation:
Court of Cassation on moral rights, Paris (1902), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
Back | Record | Images | Commentaries: [1]
Translation only | Transcription only | Show all | Bundled images as pdf
13COURT OF CASSATION
cannot make any claims to properties acquired by her husband? Let us therefore limit the
scope of the article to the case where the wife’s matrimonial agreements do entitle her
to claim some right ». Palpably struck by how correct this observation was, M. Regnaud
(de Saint-Jean d’Angely) hastened to modify the article and to rectify it this sense the
wording that was finally adopted by the Council. Thus, adds M. Locré, the effect of Art. 39
is subordinated to any existing matrimonial agreements, whether the couple has opted for
the common law [statutory] system [of joint estate] or whether they have explicitly
stipulated everything [in a pre-nuptial contract] ».
It seems to me that after this explanation no further discussion is necessary on this
point. I won’t say anything about a famous bill which was presented to the two Chambers in
1841 and which contained a formal invocation of the regulations of the Code Civil and of the
community system, for this bill was not adopted.
However, I would like to emphasize that the Law of 8th April, 1854 (D.P. 54.4.68)
clearly manifested that its unique and precise purpose was to extend the enjoyment of
the right which the previous laws had granted to widows and children, and that the
legislator explicitly stated « that it did not make any new changes whatsoever to the
other legislative provisions which for such a long time now have been the basis of
all interpretations by our jurisprudence ».
And so now I come to the Law of 14th July, 1866 (D.P.66.4.96), which, if there are
still any remaining doubts after everything I have just said, will dispel even the slightest
of these. For here we find, indeed, everything concentrated that will help us to shed full
light on the matter. The exposé des motifs, the report, the discussion, the text itself all
repeat at every possible opportunity that the author’s right is movable, that it falls within
the system of community, that it is subject to common right, and that the law in question
was merely enshrining well-established judicial precedents.
Here is what the exposé des motifs says: « The very movable nature which has
been recognized as intrinsic to the author’s right caused not only the income from this
right to fall into the joint estate, but also the right itself ». And in support of this doctrine,
the exposé cites the opinion of M. Troplong (Moniteur, 24th Feb. 1866, p 205).
The report is no less significant. It justifies the provision which creates, for the
widow’s benefit, the new right of possession established by the law and adds (Moniteur,
p. 665): « The worthy M. Paulmier has presented an amendment containing a triple
proposition: 1°…, 2°…, 3° attribution of the author’s right to the joint estate or the
communal estate reduced to acquests as stipulated by the spouses. Such has been
jurisprudential practice, and so it is too for this bill ».
And during the discussion, the Reporter M. Perras, took up this very notion in
exactly the same terms:
It is with this unanimous agreement that the law was adopted; its Art. 1 is worded
as follows: « The duration of the rights accorded by the previous laws to the heirs,
irregular successors, donees or legatees of authors, composers or artists is set at
fifty years, counting from the author’s death. During this period of fifty years, the
surviving spouse, « whatever the matrimonial settlement that existed between the
spouses and regardless of the rights which might result in favour of this spouse
from the settlement », is entitled to the simple enjoyment of those rights which were
not transferred by the deceased spouse by donation inter vivos or by testament… ».
It was impossible to say it more clearly or more strongly that the new right granted
to the wife did not merge with the right she already had according to Art. 1401 and
1498 of the Code Civil; that the former right still continued to exist without interfering
with the new one; and that the author’s right remained part of the joint estate if the
prenuptial agreement or the law, in the absence of such an agreement, had established
a communal estate settlement between the spouses.
And yet M. Pouillet refuses to give in and protests. For him, there is no need to
take into account the exposé des motifs; it just asserts what it should actually be
trying to prove: that the Law of 1866 was not meant to examine the question, that its
aim was simply to fix the duration of the right; it had no reason to probe deeper into
questions relating to the author’s right taken as such, into its nature or character.
This strikes me as a very bizarre line of argument! The legislator asserts, and
that is enough. It is his will which he gives expression to. And if there happened to be
no discussion on the nature and character of the author’s right, then that is because
everyone concurred in their views on the matter and because this so clear and categorical
exposé des motifs really did convey the Chamber’s will.
Similarly, in M. Pouillet’s view, we should not be mentioning the report at all,
as it just restricted itself to referring to the judicial precedents which it claims to invoke,
whereas the records of these precedents are very rare and do not have sufficient
authority to cut all discussion short.
M. Pouillet obviously seems to be imagining that he is discussing a judicial decision.
Has he forgotten that it is the law itself, that the legislator is the master of his decisions,
of the provisions which he enacts, and that he gives to these judicial precedents, which
he deems to be good and decisive, all the authority he intends to ascribe to it?
M. Pouillet claims that the discussion of the law actually refuted the exposé des
Motifs and the report. However, it is altogether the opposite which is true. Yes, some
objections were raised, some criticisms were expressed: various speakers pointed out
the regrettable consequences, the shocking anomalies which might sometimes result
from the proposed system,
[2nd column:]
and which, to use the expression of M. Pouillet himself: « seemed to imply the negation
of any attribution whatsoever of author’s right to the joint estate » . These debates
stirred up the Chamber, and the Article was even referred back to the Commission.
Yet it returned from it without any modifications, and it remains in its original text. There
is no subtlety which could distort it in any way and give to the words it uses any other
meaning than that which they carry: « Independently of the rights which might result
in favour of the spouse from the communal estate settlement », this could never be taken
to mean « to the exclusion of the communal estate settlement ». And for anyone who
is unbiased and willing to go into the meaning and import of these words, this is what
will clearly emerge from such an investigation, without any room for doubt. Art. 1 of the
Law of 1866 and Art. 1401-1498 of the Code Civil are to be applied concurrently. The
rights which a wife derives from these are not the same; they accumulate. The wife who
is a party to a communal estate settlement will receive, by virtue of her pre-nuptial
agreement or the Code Civil, half of the full property in the author’s right, and by virtue
of Art. 1 of the Law of 1866 the enjoyment of the other half for the duration of her life.
The wife who is not a party to a communal estate settlement, who is married under a
dowry settlement, under a system of separation of marital property, or without joint
estate, will receive, by virtue of Art. 1 of the Law of 1866 the simple possession of the
whole.
Such is the system set up by the Law of 1866. It is as plain as daylight, and I am
Entitled to repeat with Messrs Aubry and Rau (4th, edit. vol. 5., p 284., note 11): « The
Law of 14th July, 1866, which, in its Article 1 formally reserves to the surviving spouse,
apart from the simple possession which it guarantees to her, also any rights which
might result in her favour from the communal estate settlement, does not leave any
room for misunderstandings » And it is difficult to see how the Court of Paris, in the
light of this very Art. 1, could possibly say « that the Law of 1866 has only taken the
communal estate settlement into account insofar as to reserve to the wife, in addition
(to the right that it grants to her), the proceeds from author’s rights that are realized
before the dissolution of this settlement and not these rights themselves ». Your decision
of 16th August, 1880, already refuted this rash claim: « Whereas, so it goes, the
provision of Art. 1 of the Law of 1866 is clear and precise, it obviously follows from this
that the movable nature which is recognized as inherent in the author’s right causes
not only the proceeds from this right to be included in the joint estate but also the
right itself ».
Now, are we more likely to find in the Law of 9th March, 1891, which modified
the rights of the surviving spouse on the pre-deceased spouse’s inheritance
(D.P. 91.4.17), any indication that would allow us to assume that the legislator had
abandoned all the principles he had previously and so explicitly established, and
that he had wished to remove from the communal estate settlement the author’s
right, which the Decree of 1810 and the Law of 1866 had, on the contrary, explicitly
subordinated to it?
The criticized decision would like it to be so, but its assertion destroys itself,
because of the “whereas” clauses it contains: « Whereas, it says, the Law of 9th March,
1891, did not either include in the statutory communal estate the property as such in
these (author’s) rights ».
As if an explicit provision in the new law were necessary for this to be so, whereas,
in fact, according to the earlier legislation the author’s right did fall into the communal
estate settlement, and if the new law had wanted to break new ground, it would surely
have needed not a new provision which included the author’s right in the joint estate,
but, rather, a formal text which excluded it! And as if the silence kept in this respect
were not clear evidence that the previous state of affairs had not been modified!
What I am saying is so true that the criticized decision has to admit that the
debate in Parliament goes directly against the solution which it proposes: « Whereas
the Law of 9th March, 1891, did not either include in the statutory communal estate
the property as such in these rights, even though the debate in Parliament did for a
long time revolve around the similarity between this Law’s general provisions and the
special Law of 14th July, 1866 ».
Thus, as the criticized decision itself admits, the question was broached and
debated before the Chambers, and it is not because of negligence that the new Law
has allowed the previous system to remain in place. Indeed, it enshrined it most
deliberately and it did so in the most explicit and least equivocal fashion.
During the session of 2nd Dec., 1890, M. Bozérian presented an amendment,
which was worded as follows: « Art. 2. The Law of 12th July, 1866, on the rights of
the heirs or legal successors of authors will continue to be applied ». Justifying his
proposal, he said that the point was to reconcile the new law with the Law of 1866,
which gave the surviving spouse some special rights when he/she happened to
receive an inheritance consisting of author’s rights in the literary or artistic field.
What is this right of possession which the Law of 1866 gives to a widow? A right
of usufruct. So with this new law, which gives the surviving spouse a specific right
of usufruct, there will now be two possible usufructs if the inheritance should happen
to include author’s rights. How are these two laws to be reconciled?
And the Reporter, M. Lacombe, answering in the name of the Commission
(D.P. 91.4.23, col. 1) said: « that where the legislator is drafting a general law which
modifies the Code Civil, the Law of 1866 must still retain all its force; for it is a matter
of principle that general laws
No Transcription available.
Source: Bibliothèque universitaire de Poitiers (SCD) : Dalloz, Jurisprudence générale. Recueil Périodique et critique de jurisprudence, de legislation et de doctrine, 1903.1.5
Citation:
Court of Cassation on moral rights, Paris (1902), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
Back | Record | Images | Commentaries: [1]
Translation only | Transcription only | Show all | Bundled images as pdf
13
cannot make any claims to properties acquired by her husband? Let us therefore limit the
scope of the article to the case where the wife’s matrimonial agreements do entitle her
to claim some right ». Palpably struck by how correct this observation was, M. Regnaud
(de Saint-Jean d’Angely) hastened to modify the article and to rectify it this sense the
wording that was finally adopted by the Council. Thus, adds M. Locré, the effect of Art. 39
is subordinated to any existing matrimonial agreements, whether the couple has opted for
the common law [statutory] system [of joint estate] or whether they have explicitly
stipulated everything [in a pre-nuptial contract] ».
It seems to me that after this explanation no further discussion is necessary on this
point. I won’t say anything about a famous bill which was presented to the two Chambers in
1841 and which contained a formal invocation of the regulations of the Code Civil and of the
community system, for this bill was not adopted.
However, I would like to emphasize that the Law of 8th April, 1854 (D.P. 54.4.68)
clearly manifested that its unique and precise purpose was to extend the enjoyment of
the right which the previous laws had granted to widows and children, and that the
legislator explicitly stated « that it did not make any new changes whatsoever to the
other legislative provisions which for such a long time now have been the basis of
all interpretations by our jurisprudence ».
And so now I come to the Law of 14th July, 1866 (D.P.66.4.96), which, if there are
still any remaining doubts after everything I have just said, will dispel even the slightest
of these. For here we find, indeed, everything concentrated that will help us to shed full
light on the matter. The exposé des motifs, the report, the discussion, the text itself all
repeat at every possible opportunity that the author’s right is movable, that it falls within
the system of community, that it is subject to common right, and that the law in question
was merely enshrining well-established judicial precedents.
Here is what the exposé des motifs says: « The very movable nature which has
been recognized as intrinsic to the author’s right caused not only the income from this
right to fall into the joint estate, but also the right itself ». And in support of this doctrine,
the exposé cites the opinion of M. Troplong (Moniteur, 24th Feb. 1866, p 205).
The report is no less significant. It justifies the provision which creates, for the
widow’s benefit, the new right of possession established by the law and adds (Moniteur,
p. 665): « The worthy M. Paulmier has presented an amendment containing a triple
proposition: 1°…, 2°…, 3° attribution of the author’s right to the joint estate or the
communal estate reduced to acquests as stipulated by the spouses. Such has been
jurisprudential practice, and so it is too for this bill ».
And during the discussion, the Reporter M. Perras, took up this very notion in
exactly the same terms:
It is with this unanimous agreement that the law was adopted; its Art. 1 is worded
as follows: « The duration of the rights accorded by the previous laws to the heirs,
irregular successors, donees or legatees of authors, composers or artists is set at
fifty years, counting from the author’s death. During this period of fifty years, the
surviving spouse, « whatever the matrimonial settlement that existed between the
spouses and regardless of the rights which might result in favour of this spouse
from the settlement », is entitled to the simple enjoyment of those rights which were
not transferred by the deceased spouse by donation inter vivos or by testament… ».
It was impossible to say it more clearly or more strongly that the new right granted
to the wife did not merge with the right she already had according to Art. 1401 and
1498 of the Code Civil; that the former right still continued to exist without interfering
with the new one; and that the author’s right remained part of the joint estate if the
prenuptial agreement or the law, in the absence of such an agreement, had established
a communal estate settlement between the spouses.
And yet M. Pouillet refuses to give in and protests. For him, there is no need to
take into account the exposé des motifs; it just asserts what it should actually be
trying to prove: that the Law of 1866 was not meant to examine the question, that its
aim was simply to fix the duration of the right; it had no reason to probe deeper into
questions relating to the author’s right taken as such, into its nature or character.
This strikes me as a very bizarre line of argument! The legislator asserts, and
that is enough. It is his will which he gives expression to. And if there happened to be
no discussion on the nature and character of the author’s right, then that is because
everyone concurred in their views on the matter and because this so clear and categorical
exposé des motifs really did convey the Chamber’s will.
Similarly, in M. Pouillet’s view, we should not be mentioning the report at all,
as it just restricted itself to referring to the judicial precedents which it claims to invoke,
whereas the records of these precedents are very rare and do not have sufficient
authority to cut all discussion short.
M. Pouillet obviously seems to be imagining that he is discussing a judicial decision.
Has he forgotten that it is the law itself, that the legislator is the master of his decisions,
of the provisions which he enacts, and that he gives to these judicial precedents, which
he deems to be good and decisive, all the authority he intends to ascribe to it?
M. Pouillet claims that the discussion of the law actually refuted the exposé des
Motifs and the report. However, it is altogether the opposite which is true. Yes, some
objections were raised, some criticisms were expressed: various speakers pointed out
the regrettable consequences, the shocking anomalies which might sometimes result
from the proposed system,
[2nd column:]
and which, to use the expression of M. Pouillet himself: « seemed to imply the negation
of any attribution whatsoever of author’s right to the joint estate » . These debates
stirred up the Chamber, and the Article was even referred back to the Commission.
Yet it returned from it without any modifications, and it remains in its original text. There
is no subtlety which could distort it in any way and give to the words it uses any other
meaning than that which they carry: « Independently of the rights which might result
in favour of the spouse from the communal estate settlement », this could never be taken
to mean « to the exclusion of the communal estate settlement ». And for anyone who
is unbiased and willing to go into the meaning and import of these words, this is what
will clearly emerge from such an investigation, without any room for doubt. Art. 1 of the
Law of 1866 and Art. 1401-1498 of the Code Civil are to be applied concurrently. The
rights which a wife derives from these are not the same; they accumulate. The wife who
is a party to a communal estate settlement will receive, by virtue of her pre-nuptial
agreement or the Code Civil, half of the full property in the author’s right, and by virtue
of Art. 1 of the Law of 1866 the enjoyment of the other half for the duration of her life.
The wife who is not a party to a communal estate settlement, who is married under a
dowry settlement, under a system of separation of marital property, or without joint
estate, will receive, by virtue of Art. 1 of the Law of 1866 the simple possession of the
whole.
Such is the system set up by the Law of 1866. It is as plain as daylight, and I am
Entitled to repeat with Messrs Aubry and Rau (4th, edit. vol. 5., p 284., note 11): « The
Law of 14th July, 1866, which, in its Article 1 formally reserves to the surviving spouse,
apart from the simple possession which it guarantees to her, also any rights which
might result in her favour from the communal estate settlement, does not leave any
room for misunderstandings » And it is difficult to see how the Court of Paris, in the
light of this very Art. 1, could possibly say « that the Law of 1866 has only taken the
communal estate settlement into account insofar as to reserve to the wife, in addition
(to the right that it grants to her), the proceeds from author’s rights that are realized
before the dissolution of this settlement and not these rights themselves ». Your decision
of 16th August, 1880, already refuted this rash claim: « Whereas, so it goes, the
provision of Art. 1 of the Law of 1866 is clear and precise, it obviously follows from this
that the movable nature which is recognized as inherent in the author’s right causes
not only the proceeds from this right to be included in the joint estate but also the
right itself ».
Now, are we more likely to find in the Law of 9th March, 1891, which modified
the rights of the surviving spouse on the pre-deceased spouse’s inheritance
(D.P. 91.4.17), any indication that would allow us to assume that the legislator had
abandoned all the principles he had previously and so explicitly established, and
that he had wished to remove from the communal estate settlement the author’s
right, which the Decree of 1810 and the Law of 1866 had, on the contrary, explicitly
subordinated to it?
The criticized decision would like it to be so, but its assertion destroys itself,
because of the “whereas” clauses it contains: « Whereas, it says, the Law of 9th March,
1891, did not either include in the statutory communal estate the property as such in
these (author’s) rights ».
As if an explicit provision in the new law were necessary for this to be so, whereas,
in fact, according to the earlier legislation the author’s right did fall into the communal
estate settlement, and if the new law had wanted to break new ground, it would surely
have needed not a new provision which included the author’s right in the joint estate,
but, rather, a formal text which excluded it! And as if the silence kept in this respect
were not clear evidence that the previous state of affairs had not been modified!
What I am saying is so true that the criticized decision has to admit that the
debate in Parliament goes directly against the solution which it proposes: « Whereas
the Law of 9th March, 1891, did not either include in the statutory communal estate
the property as such in these rights, even though the debate in Parliament did for a
long time revolve around the similarity between this Law’s general provisions and the
special Law of 14th July, 1866 ».
Thus, as the criticized decision itself admits, the question was broached and
debated before the Chambers, and it is not because of negligence that the new Law
has allowed the previous system to remain in place. Indeed, it enshrined it most
deliberately and it did so in the most explicit and least equivocal fashion.
During the session of 2nd Dec., 1890, M. Bozérian presented an amendment,
which was worded as follows: « Art. 2. The Law of 12th July, 1866, on the rights of
the heirs or legal successors of authors will continue to be applied ». Justifying his
proposal, he said that the point was to reconcile the new law with the Law of 1866,
which gave the surviving spouse some special rights when he/she happened to
receive an inheritance consisting of author’s rights in the literary or artistic field.
What is this right of possession which the Law of 1866 gives to a widow? A right
of usufruct. So with this new law, which gives the surviving spouse a specific right
of usufruct, there will now be two possible usufructs if the inheritance should happen
to include author’s rights. How are these two laws to be reconciled?
And the Reporter, M. Lacombe, answering in the name of the Commission
(D.P. 91.4.23, col. 1) said: « that where the legislator is drafting a general law which
modifies the Code Civil, the Law of 1866 must still retain all its force; for it is a matter
of principle that general laws
No Transcription available.