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Published online by Cambridge University Press: 02 January 2018
In an earlier paper, we had occasion to examine the French and English law of forenames. Possibly to his surprise, the English lawyer will have discovered that, certain minor reforms apart, legislation of the Revolutionary era still governs this aspect of French life, purportedly restricting the forenames a person may bear, and, after registration of birth, all but forbidding their subsequent modification or substitution. Such a position contrasts dramatically with the received wisdom of English law, where forenames can be freely acquired and abandoned by use and reputation, the French rigidity of outlook being utterly alien to an English lawyer’s relativist attitude in the matter.
1. The Girl They Named Manhattan: The Law of Forenames in France and England (1985) 5 LS 331.
2. On this facet of forenames, see generally Levy, Le Manuel des Prinoms (1922, Paris).
3. On the crucial division French law draws between civil and administrative law, see generally David, Le Droit Francais (1960, Paris) vol I, pp 85 et seq; Brethe de la Gressaye, ‘Droit administratif et droit privé in Le droit privé francais au milieu du Le siècle. études offertes à Georges Ripert (1950, Paris) vol 1, pp 304 et seq.
4. Cf Lyon, 30 August 1827, Jur gén v Nom-Prénom, para 29.
5. Under the old law, parties who assumed names other than their own were to suffer six months' imprisonment and a fine equivalent to a quarter of their annual income (art 3). Public officials who failed to use the names on citizens' birth certificates were to be stripped of their posts, declared ineligible to hold any further public office and fined the equivalent of a quarter of their annual income (art 5). Article 780 of the current Code of Criminal Procedure now lays down that it is a specific punishable offence for anyone ‘to assume the name of a third party in circumstances which either lead to or could have led to a conviction being registered on the latter's criminal record.’ This article applies only to criminal records proper, not to more specialised registers or to mere technical breaches of the law, which are not included on a party's criminal record anyway: Art 768, al 2, Code of Criminal Procedure. (This has recently been confirmed by the Court of Cassation: Crim, 12 January 1983, JCP 1984.II.20233, note Chamhon). This provision, therefore, designed to help ensure the accuracy and reliability of criminal records, offers a further indication of French law's stern outlook on matters of identity and public record.
6. In its formality, this method is perhaps broadly reminiscent of English changes of name by Act of Parliament: see Josling, Change of Name (12th edn, 1980, London), p 39.
7. See arts 4–8.
8. Law of 11 germinal, Year XI, art 5.
9. See ministerial order of 25 June 1828, art 3; Constitution of 27 October 1946. D 1946.422. See more generally Jubineau & Meyer, ‘Des changements de nom par décret’, Gaz Pal 1948.1.Doct 33.
10. As a means of public notice, this may be compared with the publication of notices in, say, the London Gazette.
11. See decree of 8 January 1859, DP 59.4.5, art 5.
12. It is to be noted that refusal of a change of name does not amount to res judicata and it is open to an applicant to submit a second application following exactly the same procedure.
13. Law of 11 germinal Year XI, arts 6–8.
14. The example commonly cited is the case of General de Hautecloque who was allowed to call himself General Leclerc de Hautecloque: see JO, 20 November 1945, p 7694.
15. Taking just the first nine months of 1984, no less than eleven Cuckolds (variantly, Cocu or Le Coqu) chose to be called something else. More generally, alongside a rather indeterminate Sexe, one finds in this sample five Labittes, a Verge, a Laverge and even a Belverge, not to mention a Couillin, several Couillards (equally well, a term of ripe abuse), a Couille and a Gland. There is even one instance of self-abuse in the guise of Branle. A Crotte, and a Crottes, two Lapisses, a Pipy and a Prouté have been granted fresh identities. Names of animals and fish, too, offer a standard category of case. No woman wishes to be known as a cow, even by association: thus the names Lavache and Tournevache are abandoned by their female owners. The nine months surveyed further reveal several Cochons, a Cochonneau, a Chameau (with their additional insulting connotations), a Sanglier, a Canard, a Pigeon and an Harang. Some names are simply an embarrassment. There are several virgins in the lists - variously rendered Pucel or Pucelle— and there is both an Assassin and his unfortunate victim, a Crcvet. For the gourmet one finds two Fromages, a Saucisse, a Navet, a Cornichon and two Boudins (the latter being also terms of common abuse). It is perhaps incongruous to find them listed together with a Meurdefaim. Finally, there are names which also constitute insults of varying degrees of grossness In addition to those mentioned already (the Cocus, Cornichons, etc) there is a Grosmolard, a Salot, several Conards and Connarts, a Crétin and a Tetu. Not surprisingly, requests to change surnames such as these are granted as a matter of routine.
The ‘Trognon affair’ illustrates the influence an unfortunate surname can wield. M and Mme Trognon had applied to adopt a child, Philippe Brulrfer. The Tribunal de grande instance at Melun was satisified that they were suitable parents to adopt a child, but refused to sanction the adoption on the ground that their surname might hold the boy up to ridicule as he grew up. There was an immense public outcry at this decision and thr Paris Court of Appeal reversed the court of first instance, holding that a grotesque surname was only a minor inconvenience when compared with bring an orphan: Paris (Ire ch supp), 22 September 1972, D 1974.199, note Foulon-Pigariol.
16. D 1972.549. For earlier legislation, see: Ordonnance of 2 November 1945, D 1946.24 (art 34); Law of 3 April 1950, D 1950.94; Law of 3 July 1965, D 1965.209.
17. See generally Loisel, ‘La francisation des noms et prénoms étrangers’, JCP 1950.1.865.
18. Law of 25 October 1972, arts 8 and 9.
19. The recours for excès de pouvoir is a standard remedy of French administrative law, reminiscent in some ways of the English remedy of certiorari.
20. Law of 25 October 1972, arts 11 and 12.
21. Ibid, art 12, para 3.
22. Ibid, art 2.
23. Ordonnance of 2 November 1945, n 16 supra.
24. Paris (Ire ch), 16 June 1948, D 1948.561.
25. Paris, 10 November 1951, unreported (cit Ponsard & Blondel, Enc Dalloz. Droit Civil, sub nom Nom-Prénom para 266). These decisions appear incongruous when one considers that in the Journal Official of 3 March 1946 the following changes in spelling were ruled licit: Niedachkowsky, Nidaque; Bilinski-Tarosowicz, Bilainque; Revchdeuski, Revel (pp 1856–1857).
26. Decree of 9 July 1984, JO 31 July 1984, NC, p 6847.
27. The name is obviously Europeanised; but in what way is it frenchified, one wonders?
28. Loisel, op cit n 17 supra, observed a similar phenomenon in 1950.
29. D 1924.4.6. See generally Perreau, ‘Le relèvement des noms des victimes de la guerre’, Rev crit dr civ 1924.585.
30. The Law of 2 July 1923 allowed only two years. This period was extended to five years by Law no 57–13 of 8 February 1957, D 1957.53.
31. The mechanical character of the law is perhaps illustrated by a decision of the Paris Court of Appeal of 12 January 1926 (DH 1926.137). The Court held that, not being an heir, the deceased's brother-in-law was not entitled to adopt the dead soldier's name; the deceased's sister had no right to adopt his name because technically she already possessed it as her maiden name; and the couple could not claim the name on behalf of any children that might in the future be born of their union because that might deprive other more remote but living heirs of their right to perpetuate the deceased's memory.
32. Art 4. For the relevant provisions on the law succession, see art 755 of the Civil Code.
33. Eg ’Attendu, en effct, que le nom patronymique ou de famille constitute pour tous les membres qui le composent une véritable propriété: Trib civ de la Seine (Ire ch), 23 July 1891 cit Levy, Le Manuel des Prénoms (1922, Paris), pp 177–178).
34. (1814) 3 M & S 250 at 257.
35. (1835) 1 Bing NC 597 at 618.‘… Any one may take upon him what surname, and as many surnames as he pleases, without an act of Parliament’: Barlow v Bateman (1730) 3 P Wms 65. See also Doe v Yates (1822) 5 B & Ald 544 at 556: ‘A name assumed by the voluntary act of a young man at his outset into life, adopted by all who know him, and by which he is constantly called, becomes, for all purposes that occur to my mind, as much and effectually his name as if he had obtained an Act of Parliament to confer it upon him’ (per Abbott CJ).
36. 1961 SLT 325.
37. Ibid, at 326–327.
38. (1869) LR 2 PC 430 at 441–442.
39. [1901] AC 450.
40. Ibid, at 460.
41. The House reached a similar decision in Lady Dacre's case in 1661: whilst her remarriage to a commoner deprived her of the privilege of peerage, as a matter of courtesy the usages of society entitled her to retain her old title: Lords' Journal, 4 July 1661, p 298.
42. Eg Marty & Raynaud, Droit Civil. Les Personnes (3rd edn, 1976, Paris), para 726, p 817.
43. Eg Article 259, Penal Code; Article 261, Penal Code; Article 780, Code of Criminal Procedure. See n 5 supra
44. Art 99, Civil Code.
45. Aliens Restriction (Amendment) Act 1919, s 7; Defence (General) Regulations 1939 (S R & O 1939, No 927), reg 20.
46. Enrolment of Deeds (Change of Name) Regulations 1949 (SI 1949/316), reg 1.
47. See pp 80–82 supra.
48. Cons d'Et, 13 March 1953, S 1953.3.59, concl. Devolvé.
49. Cons d'Et (2nd and 6th subsections), 23 May 1984, Gaz Pal 1985.1.49.
50. Although it is difficult to generalise, the Counseil d'état appears more receptive to objections founded on the risk of commercial passing off or of the public's confusing two similarly named businesses (eg Cons d‘ét, 5 February 1915, Rec Cons d’ét, p 18). Alternatively, successful objections can flow from a petitioner's being shown to have submitted inaccurate documentation in support of his application for a change of name (eg Cons d'Et, 18 January 1935, DH 1935.136).
51. Eg Trib gde inst Paris (3e ch), 20 June 1970, D 1971 Somm 38; Trib civ de la Seine (Ire ch), 23 July 1891, n 33 supra; Civ (Ire ch), 19 December 1967, D 1968.277, note Beaumaine. So, too, has the legislature in its Law of 2 July 1923, art 4: see n 29 supra.
52. This state of affairs may be contrasted with Germany and Italy: see, eg, art 12, BGB; ss 7–8, Italian Civil Code.
53. For a good account of this matter, see Agostini, ‘La protection du nom patronymique et la nature du droit au nom’, D 1973 Chr 313. See also Lindon, Les Droits de la Personnalité (1983, Paris), pp 167–193.
54. Save in a restricted commercial setting (see, eg Com, 12 March 1985, JCP 1985.11.20400, note Bonet (the ‘Bordas affair’)), or in the context of the Law of 2 July 1923 (see pp 84–85, supra).
55. Planiol & Ripert, Traité Pratique de Droit Civil. Les Personnes (1952, Paris) vol I, by R. and J. Savatier, s 114, p 141.
56. For a leading Frrnch account of delictual liability, see H. and L., Mazeaud and Tunc, Traité de la Responsabilité Civile (6th edn, 1965–78, Paris). In English, see Lawson, Negligence in the Civil Law (1950, Oxford).
57. Only rarely does one find indications that the law's protection can extend to forenames—as, for example, in the case brought by Princess Soraya: Trib gde inst Scine, 9 Octobrr 1963, Gaz Pal 1964.1.73.
58. Colin, note to Paris, 21 January 1903, DP 1904, 2.1.
59. H. L. & J. Mazeaud, Leons de Droit Civil (4th edn, 1967, Paris) by de Juglart, vol I, para 565, pp 562–563; Baudry-Lacantinerie, Précis de Droit Civil (14th edn, 1926, Paris) by Guyot, vol I, para 157, p 83; Ripert & Boulanger, Traité de Droit Civil (1956, Paris) vol I, para 906, p 377; Kayser, ‘La défense du nom de famille d'après la jurisprudence civile et d'après la jurisprudence administrative’, Rev trim dr civ 1959 10; Trib gde inst Seine, 22 October 1963, Gaz Pal 1964.1.86.
60. Eg Riom, 2 January 1865, DP 65.2.17.
61. Eg Agostini, loc cit n 53 supra.
62. That is, to serve merely as illustrations of the rule rather than as hard-and-fast categories.
63. This analysis is to be found, for example, in Professor Mousseron's note to Trib gde inst Paris, 7 January 1972, JCP 1973.11.17389.
64. Civ (Ire sect), 11 June 1963, II. 1964.186.
65. See eg Mazeaud, op cit n 59 supra at p 562.
66. Eg Req 14 April 1934, DH 1934.1.265.
67. Eg Cons d'Et, 13 March 1953, S 1953.3.59. See p 88 supra.
68. Solus & Perrot, Droit Judiciaire Privé (1961, Paris) vol I, para 222, p 197.
69. Civ(Ire ch), 17 May 1966, JCP 1967.11.14934, notr Nrpveu. Srr also Trib dr Ia Seine, 19 December 1947, S 1948.2.95.
70. Trib gde inst Paris, 7 January 1972, JCP 1973.11.17389. The courts, it should be said, are not always consistent in their reasoning. Thus, it has been held by one court that no one may use another's name for advertising purposes even if there is no risk of confusion: Trib gde inst Paris (3e ch), 20 June 1970, D 1971 Somm 38.
71. Civ (Ire ch), 26 May 1970, D 1970.520.
72. Civ (Ire ch), 13 February 1967, Gaz Pal 1967.1.259, note Beaumaine; Rev trim dr com 1967.1067, obs Chavanne.
73. Paris, 14 January 1962, D 1962.639.
74. Trib civ Seine, 18 July 1941, DA 1942.30.
75. Trib civ Seine, 10 December 1958, Gaz Pal 1959.1.243.
76. Paris, 25 May 1975, D 1975.488, note Lindon.
77. Paris, 28 February 1968, D 1968.437.
78. Trib civ Seine, 8 November 1950, D 1950.762.
79. Paris, 10 July 1957, D 1957.622, note tindon.
80. Eg trib civ Seine, 18. July 1941, n 74 supra.
81. Eg Trib civ Seine, 10 December 1958, n 75 supra; Trib gde inst Seinr (3r ch), 22 October 1963, Gaz Pal 1964.1.86.
82. Trib civ Seinr (3e ch), 28 March 1944, Gaz Pal 1944.2.14.
83. Trib gde inst Seine, 13 April 1967, D 1968.437. See also Paris, 25 May 1975, n 76 supra.
84. Eg Trib civ Seine, 8 November 1950, n 78 supra; Trib gde inst Seine, 13 March 1962, Gaz Pal 1962.2.158.
85. Paris 28 February 1968, n 77 supra; Paris, 10 July 1957, n 79 supra. Most authors in these circumstances appear to have followed the path of discretion. It should perhaps be noted that article 9 of the Civil Code (introduced by a Law of 17 July 1970) may have largely superseded these literary cases. Article 9 boldly declares that ‘Everyone's private life is entitled to respect’ (Chacun a droit au respect de sa vie privée). This expansive provision could easily encompass the literary cases (see eg Carbonnier, Droit Civil. Les Personnes (15th edn, 1984, Paris), vol I, para 59, p295) for its growth in the last 15 years has been rampant (see eg Nerson, Les limites à l'extension indélinie dc la notion de droit dr la personalité, Rev trim dr civ 1983.107). But this merely confirms French law's active concern for the protection of the human personality and rights of privacy.
86. See eg Carbonnier, op cit n 85 supra, para 59, p 293.
87. Agostini, loc cit n 53 supra. On the notion or troubler de voisinage, see Carbonnier, Droit Civil. Les Biens (11th edn, 1983, Paris), vol 3, s 57; Wrill, Droit Civil. Les Biens (2nd edn, 1974, Paris), ss 142 et seq. For succinct comparison of the English and French laws of nuisance, see Dias & Markesinis, The English Law of Torts. A Comparative Introduction (1976, Brussels) pp 117–119.
88. For an excellent general survey or the history and literature on French surnames, see Lebel, Les noms de personnes en France (8th edn, 1981, Paris).
89. Eg Loisel, ‘La francisation des noms et prenoms etrangers’, JCP 1950.1.865.
90. Loisel, loc cit n 89 supra. With hindsight, the narnrs Judge Loisel plucked from the air were perhaps ill-chosen.
91. See Walton, The Comparative Law of the Right to Privacy: French Law’ (1931) 47 LQR 219 at pp 223–224. For the text or article 9, C Civ, see n 85 supra.
92. The Right to Privacy’ (1890) 4 Harv LR 193.
93. ‘Privacy’ (1960) 48 Cal L Rev 383.
94. Ibid, at pp 389 and 401–407.
95. See especially. Griswold v Connecticut, 381 US 479, 14 L ed 2d 510, 85 S Ct 1678 (1965).
96. See eg Bloustein. ‘Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser’ (1964) 39 NYUL Rev 962. For more general consideration of the philosophical bases for the right. see Schoeman (ed), Philosophical Dimensions of Privacy: An Anthology (1984, Cambridge).
97. See eg Nerson, op cit n 85 supra.
98. Report of the Committee on Privacy (1972) Cmnd 5012, para 659.
99. ‘Privacy’ (1931) 47 LQR 23 at 34.
100. See eg Wacks, ‘The Poverty of “Privacy”’ (1980) 96 LQR 73.
101. Seipp, ‘English Judicial Recognition of the Right to Privacy’ (1983) 3 OJLS 325 at 363.
104. Eg Bernstein v Skyviews & General Ltd [1978] QB 479.
103. Eg Tolley v J. S. Fry and Sons Ltd [1930] 1 KB 467; [1931] AC 333; Hulton & Co v Jones [1910] AC 20.
104. Eg Ghani v Jones [1970] 1 QB 693; Chic Fashions (West Wales) Ltd v Jones [1968] 2 QB 299.
105. Cf Stoliar, who argues in an ingenious paper that although English law may have committed itself to conceptual configurations that exclude a right to privacy, it still contains within it all the seeds of an independent tortious privacy principle: ‘A Re-Examination of Privacy’ (1984) 4 LS 67. See also Frazer, ‘Appropriation of Personality - A New Tort? (1983) 99 LQR 281.
106. Romeo and Juliet, Act 11, Scene 2.