THE STRUCTURE OF THE NEW EUROPEAN PRIVATE LAW Martijn W. Hesselink IB I Introduction For more than ten years there has been a debate going on in Europe on the future of European private aw, and especally on the desira bility and feasibility ofa European Civil Code. This debate has recently gained specal focus when the European Commission placed the need for a European Code of Contracts on the political agenda. Assum ing that at least part of private aw could and should be common in the future, the question arises what structure this future common European private law should ha ve. For most participants in the debate the default model for such a structure would be a European civil code3. In this paper I address the question whether a classical code in the sense of the French Code civil of 1804. the german Buirgerliches GesetEbuch of 1900 or indeed the Dutch Burgerlijik Wetboek of 1992 would be the most appropriate form for the new European private aw. I will discuss eight aspects of the structure of European private law which cast some doubt on the desira bility today of a civil code (or a code of contracts)in the classical sense. Some of these considerations are very practical, some others are more theoretical. In my paper I will pay special attention to Dutch law since this is meant to be a Dutch national report A Classical Civil Code The two main characteristics of a classical civil code are its (presumably) comprehensive and coherent character. Comprehensive in the sense that, as a result of abstraction, it deals in principle with all matters of private law(as opposed to public law), not in the sense of exclusivity the legislator (or the courts)may come up with specific rules outside the code( e.g. in separate statutes). The code is presumed to be coherent in the sense that there is no contradiction between the rules conta ned in it, that each rule has one true meaning, and that it provides only one right answer Martin W. Hesselink is Professor of Private Law and the Director of the Amsterdam Institute for Private Law(AIP)at the Universiteit van Amsterdam, the Netherlands Communication from the Commission to the Council and the European Parlament, COM(2001)398fmal(l107.2001)No.52 I have addressed this question elsewhere. See my The Politics of European Contract Law Who Has an Interest in What Kind of Contract Law for Europe?( Paperpresented at theconference entitled Communiation from the Commis ion on European Contract Law organised by the Society of European Contract Law on Novem ber, 30"and December, 1, 2001 in Leuven, Belgium the contrbutions will be publshed in 2002 by Stephan Grundmann(ed ) In bref, my position i is better insubs tance, Forme, that means, among other thng, that itshoul besufficiently social See eg ARTHUR HARTKAMP, MARTIN HESSELINK, EWOUD HONDIUS, CARLA JOUSTRA, EDGAR DU PERRON, Towards a European civil code, 2nd ed, Nimegen and The Hague/Lon- don/Boston 1 998 See my The New European legal Culture, Deventer 2001, p. Il and following, with further references
THE STRUCTURE OF THE NEW EUROPEAN PRIVATE LAW Martijn W. Hesselink** I B 1 1 Introduction For more than ten years there has been a debate going on in Europe on the future of European private law, and especially on the desirability and feasibility of a European Civil Code. This debate has recently gained special focus when the European Commission placed the need for a European Code of Contracts on the political agenda. 1 Assuming that at least part of private law could and should be common in the future2 , the question arises what structure this future common European private law should have. For most participants in the debate the default model for such a structure would be a European civil code3 . In this paper I address the question whether a classical code in the sense of the French Code civil of 1804, the German Bürgerliches Gesetzbuch of 1900 or indeed the Dutch Burgerlijk Wetboek of 1992 would be the most appropriate form for the new European private law. I will discuss eight aspects of the structure of European private law which cast some doubt on the desirability today of a civil code (or a code of contracts) in the classical sense. Some of these considerations are very practical, some others are more theoretical. In my paper I will pay special attention to Dutch law since this is meant to be a Dutch national report. 2 A Classical Civil Code The two main characteristics of a classical civil code are its (presumably) comprehensive and coherent character4 . Comprehensive in the sense that, as a result of abstraction, it deals in principle with all matters of private law (as opposed to public law), not in the sense of exclusivity: the legislator (or the courts) may come up with specific rules outside the code (e.g. in separate statutes). The code is presumed to be coherent in the sense that there is no contradiction between the rules contained in it, that each rule has one true meaning, and that it provides only one right answer ** Martijn W. Hesselink is Professor of Private Law and the Director of the Amsterdam Institute for Private Law (AIP) at the Universiteit van Amsterdam, the Netherlands. 1. Communication from the Commission to the Council and the European Parliament, COM(2001) 398 final (11.07.2001), No. 52. 2. I have addressed this question elsewhere. See my The Politics of European Contract Law: Who Has an Interest in What Kind of Contract Law for Europe? (Paper presented at the conference entitled Communication from the Commission on European Contract Law organised by the Society of European Contract Law on November, 30th and December, 1st, 2001 in Leuven, Belgium; the contributions will be published in 2002 by Stephan Grundmann (ed.)). In brief, my position is that it may be worthwhile to substitute national private law by European private law where the latter is better in substance. For me, that means, among other things, that it should be sufficiently social. 3. See e.g. ARTHUR HARTKAMP, MARTIJN HESSELINK, EWOUD HONDIUS, CARLA JOUSTRA, EDGAR DU PERRON, Towards a European civil code, 2nd ed., Nijmegen and The Hague/London/Boston 1998. 4. See my The New European Legal Culture, Deventer 2001, p. 11 and following, with further references
to each legal question. Other characteristics of a classical code include its systemat character and its use of abstract rules and concepts. The new Dutch civil code of 1992 has the characteristics of a classical civil code The Private/Public divide The assumption that a civil code deals with all matters of private law and is pplicable to all conflicts between private parties is based on anotherassumption,ie that it is possible(and indeed useful)to distinguish between private hw and public law. Private aw is usually defined as the aw which govems relationships between citizens as opposed to public law, which is the law which deals with the relationships between citizens and the state or among state institutions. However, this clear-cut distinction does give rise to some doubt. Not only as a result of the development of dm inistrative law and, especally, of functional fields of the law which do not seem to fit in very well with this distinction; there is also a more fundamental critique First, in many countries the cases where the state acts asa private problematic. Classical examples include the case where a municipality buys new office equipment. In many countries private law(the civil code)applies directly or by way of analogy to such cases. However, if a European Civil Code were to be enacted should that code then also apply to(some)national (and European) public authorities? Moreover, in some countries national administrative law and private law are increasingly intertwined. For example, the recent Dutch Algemene Wet Bestuursrecht(1994), which codifies the general part of administrative law contains many structural and conceptual aspects which resemble the general part of private law(patrimonial law) conta ined in Books 3, 5, and 6 of the civil code which were enacted in 1992. With the enactment of a European Civil Code this strong link between national private law and national administrative law would be broken Unless, of course, national adm inistrative law was to beadapted to the new European Civil Code. This would mean, however, thatadministrative law in Europe would also indirectly undergo further harmonisation Even more problematic in this respect are the so-called functional fields of the law. In many European countries private law is rapidly disintegrating into functional fields of law. Usually, these functional fields are the most dynam ic branches of the law labour law. medical law. env ironmental law information law. construction aw to name but a few. Their main characteristic, apart from their functional, pragmatic and non-dogmatic approach, is that they usually contain a mix between private and public lawaspects Some nostalgic civil law scholars will say that all these fields are in essence private law. However, they essentially miss the point. First, because these fields are mixes of private and public law(the relative quantity depending on the politico-economic climate of the day: reguation/deregulation). Secondly, because the approach to the aw in those functional fields is much more pragmatic and less dogmatic. They have, as it were, abandoned the general part of private aw. It would be anachronistic to dissect these fields into a private part, to be regulated on See generally on the Europeanisation of administrative law JH JANS, R. DE LANGE, S RECHAL,RJ.G M. WIDDERSHOVEN, Inleiding tot het Europees besmirsrecht, Nimegen
HESSELINK 2 to each legal question. Other characteristics of a classical code include its systematic character and its use of abstract rules and concepts. The new Dutch civil code of 1992 has the characteristics of a classical civil code. 3 The Private/Public Divide The assumption that a civil code deals with all matters of private law and is applicable to all conflicts between private parties is based on another assumption, i.e. that it is possible (and indeed useful) to distinguish between private law and public law. Private law is usually defined as the law which governs relationships between citizens as opposed to public law, which is the law which deals with the relationships between citizens and the state, or among state institutions. However, this clear-cut distinction does give rise to some doubt. Not only as a result of the development of administrative law and, especially, of functional fields of the law which do not seem to fit in very well with this distinction; there is also a more fundamental critique. First, in many countries the cases where the state acts as a private person are problematic. Classical examples include the case where a municipality buys new office equipment. In many countries private law (the civil code) applies directly or by way of analogy to such cases. However, if a European Civil Code were to be enacted, should that code then also apply to (some) national (and European) public authorities? Moreover, in some countries national administrative law and private law are increasingly intertwined. For example, the recent Dutch Algemene Wet Bestuursrecht (1994), which codifies the general part of administrative law, contains many structural and conceptual aspects which resemble the general part of private law (patrimonial law) contained in Books 3, 5, and 6 of the civil code which were enacted in 1992. With the enactment of a European Civil Code this strong link between national private law and national administrative law would be broken. Unless, of course, national administrative law was to be adapted to the new European Civil Code. This would mean, however, that administrative law in Europe would also indirectly undergo further harmonisa tion5 . Even more problematic in this respect are the so-called functional fields of the law. In many European countries private law is rapidly disintegrating into functional fields of law. Usually, these functional fields are the most dynamic branches of the law: labour law, medical law, environmental law, information law, construction law, to name but a few. Their main characteristic, apart from their functional, pragmatic and non-dogmatic approach, is that they usually contain a mix between private and public law aspects. Some nostalgic civil law scholars will say that all these fields are in essence private law. However, they essentially miss the point. First, because these fields are mixes of private and public law (the relative quantity depending on the politico-economic climate of the day: regulation/deregulation). Secondly, because the approach to the law in those functional fields is much more pragmatic and less dogmatic. They have, as it were, abandoned the general part of private law. It would be anachronistic to dissect these fields into a private part, to be regulated on 5. See generally on the Europeanisation of administrative law J.H. JANS, R. DE LANGE, S. PRECHAL,R.J.G.M.WIDDERSHOVEN, Inleiding tot het Europees bestuursrecht, Nijmegen 1999
THE STRUCTURE OF THE NEW EUROPEAN PRIVATELAW the European level in a European Civil Code, and a public part, to be regulated on the ational (and maybe sometimes the European or another international)level. In addition, such an approach would also be un-European: the European legislator has not demonstrated any great sensitiv ity to the public/private divide. On the contrary the eu has consistently adopted a functional approach to the aw, in which private law as much as public law is instrumental to the political aims which the EU means to achieve by way of its directives and regulations. The difference between the various Directorates-General of the European Commission seems to have been more detem inant of the structure of European private aw than a dogmatic, esthetical political dedication to the private/public divide As said, private aw is usually defined as the law which governs reltionships between citizens as opposed to public law, which is the law that deals with the relationships between citizens and the state, or among state institutions. This definition is quite descriptive. However, there is another recurrent definition of private law which is much more political. In this definition private law is the law relating to the private area which is free from State intervention In the latter view the only function of private law is allocation: suum cuique tribuere In that view private law has an intemal logic of its own which is politically neutral and is only concemed with giv ing every person what she or he is entitled to. Especially, private aw in that view has no distributionist nor any other paternalistic function: rather it is held that private aw should not be instrumenta lised for political aims. In that view the main pillars of private law are absolute property, freedom of contract and fault liability This view has been forcefully attacked, especially in the United States, by the Sociological, Realist and Critical Legal Studies movements. They challenged the idea that a bsolute property, freedom of contract, fault liability and party autonomy were the natural, apolitical foundations of private law, and they showed that this view of private law was instead closely linked to a laissez-faire Liberal( Conservative) view of the economy and society at large. Instead, they argued that there is no pre-legal entitlement and that all law is public law%. This second definition does indeed seem to be untenable in Europe today. There is no reason to accept any pre-legalright to property or binding force of contract or limitation of liability to fault uld by the courts. Even if( variant of n law or another, that people have pre-legal rights to property, that promises(or agreements)should be binding or that no -one should be liable except when she or he has caused damage by her or his fault, as soon as one is of the opinion that the State should protect and enforce such a right with the aid of the law, the State shall do so only to the extent and in the way agreed upon democratically(including the democratically accepted rigid constitutions and international treaties which protect See further my The New European Legal Culture, p. 37ff Compare Daniela Caruso, The Missing View of the Cathedral: The Private Law Paradigm of European Legal Integration 3 European Law oumal(1997) pp 3-32 See M. D.A. FREEMAN, Lbyd s Introduction to Jurisprudence, 6th ed, Sweet Maxwell London 1994, p. 669, and DUNCAN KENNEDY, A Critique of Adjudication ffin de siecle/, Cambrid Massachusetts 1997. both with further references. See MoRTON JHORWITZ, The Transformation of American Law 1870-1960: The Crisis of
THE STRUCTURE OF THE NEW EUROPEAN PRIVATE LAW 3 the European level in a European Civil Code, and a public part, to be regulated on the national (and maybe sometimes the European or another international) level. In addition, such an approach would also be un-European: the European legislator has not demonstrated any great sensitivity to the public/private divide. On the contrary, the EU has consistently adopted a functional approach to the law, in which private law as much as public law is instrumental to the political aims which the EU means to achieve by way of its directives and regulations6 . The difference between the various Directorates-General of the European Commission seems to have been more determinant of the structure of European private law than a dogmatic, esthetical or political dedication to the private/public divide. As said, private law is usually defined as the law which governs relationships between citizens as opposed to public law, which is the law that deals with the relationships between citizens and the state, or among state institutions. This definition is quite descriptive. However, there is another recurrent definition of private law which is much more politica l. In this definition private law is the law relating to the private area which is free from State intervention. In the latter view the only function of private law is allocation: suum cuique tribuere. In that view private law has an internal logic of its own which is politically neutral and is only concerned with giving every person what she or he is entitled to7 . Especially, private law in that view has no distributionist nor any other paternalistic function: rather it is held that private law should not be instrumentalised for political aims. In that view the main pillars of private law are absolute property, freedom of contract and fault liability. This view has been forcefully attacked, especially in the United States, by the Sociological, Realist and Critical Legal Studies movements8 . They challenged the idea that absolute property, freedom of contract, fault liability and party autonomy were the natural, apolitical foundations of private law, and they showed that this view of private law was instead closely linked to a laissez-faire Liberal (Conservative) view of the economy and society at large. Instead, they argued that there is no pre-legal entitlement and that all law is public law9 . This second definition does indeed seem to be untenable in Europe today. There is no reason to accept any pre-legal right to property or binding force of contract or limitation of liability to fault, which should be protected by the courts. Even if one accepts, in one variant of natural law or another, that people have pre-legal rights to property, that promises (or agreements) should be binding or that no -one should be liable except when she or he has caused damage by her or his fault, as soon as one is of the opinion that the State should protect and enforce such a right with the aid of the law, the State shall do so only to the extent and in the way agreed upon democratically (including the democratically accepted rigid constitutions and international treaties which protect 6. See further my The New European Legal Culture, p. 37 ff. 7. Compare Daniela Caruso, The Missing View of the Cathedral: The Private Law Paradigm of European Legal Integration , 3 European Law Journal (1997), pp. 3-32. 8. See M.D.A. FREEMAN, Lloyd s Introduction to Jurisprudence, 6th ed., Sweet & Maxwell, London 1994, p. 669, and DUNCAN KENNEDY, A Critique of Adjudication {fin de siècle}, Cambridge Massachusetts 1997, both with further references. 9. See MORTON J HORWITZ, The Transformation of American Law 1870-1960; The Crisis of Legal Orthodoxy, New York/Oxford 1992
fundamental rights including private property ) Therefore, property is protected promises (agreements)are bindingand people are liable for their torts only when and to the extent that the law says so( Constitutional lawand private law). In that sense all law, including private law, is indeed public law there is no area of the law which free from paternalistic, distributionist and other functional and instrumenta intervention by the State. Also in practice it has become obvious in the course of the 20th century that large parts of private la ware subject to State intervention, which is worker s, tenant s and consumer protection in the special part, whereas objective causation rules, the doctrines of abuse of right and of good faith in the general part have similar effects). Moreover, as said, the whole acquis communautaire is Instrumental, also in the case of private law. These developments raise the question whether it still makes sense to uphold a sharp distinction between private and public law. Moreover, within the English legal system there has never been a strong tradition of distinguishing private law and public law, although some scholrs- who incidenta lly share an interest in Civil Law have recently made use of this term inology. Therefore, it may be worthwhile to go ahead with the functional and piecemealapproach which the European legislator has adopted and to address functional fields of the law rather than to embrace the grand idea of includingall private law within a civil code, and thus reviving a distinction which does not seem desirable neither from a political nor from a practical perspective. Instead, it may be adv isa ble to enact one or more functional European codes, for example in the area of distribution law, company law, or la bour law Civil Law. Commercial Law. Consumer Law Another instance of the fragmentation of private law is not new at all. Indeed, it has been present from the first codif ications the div ision of private law according to the status of the persons involved In many European countries different(or additional) rules apply depending on whether the parties are ordinary citizens or merchants. In addition, more recently a newcategory has developed: the consumer In the first wave of codifications most continental European legal systems dopted both a civil code and a commercial code. However, since the first half of the Oth century the significance of this distinction has gradually decreased. And some countries, notably Italy(1942)and the Netherlands(1992), officially abolished the distinction on the occasion of the implementation of their new civil codes 2 Interestingly, however, during the ast de f the 20th counter-development started to arise asa result of the birth of consumer aw. Thus See e.g. PETER BIRKS(ED h English Priate la, Oxford 2000. Moreover, Professor Ewan McKendrick occupies a Chair in English Private Law at Oxford. 1 ompare PIERRE LEGRAND, Against a European Civil Code, MLR [VoL 60]199744-62 In the Nether lands the distinctions between hooplieden and other persons, and between daden koophandel and other acts was abolished as early as nm 1934. See RJ.Q. KlOMP, Opkomst en degang nam het handelsrecht: verde aard en de positie van hethandelsrecht, in het bijanderin verhouding tot het burgerljk recht n Nederland in de negentiende en twintigste een, Nijmegen 1998p.165
HESSELINK 4 fundamental rights including private property). Therefore, property is protected, promises (agreements) are binding and people are liable for their torts only when and to the extent that the law says so (Constitutional law and private law). In that sense all law, including private law, is indeed public law: there is no area of the law which is free from paternalistic, distributionist and other functional and instrumental intervention by the State. Also in practice it has become obvious in the course of the 20th century that large parts of private law are subject to State intervention, which is driven by political concerns many of which are distributionist (strict liability, worker s, tenant s and consumer protection in the special part, whereas objective causation rules, the doctrines of abuse of right and of good faith in the general part have similar effects). Moreover, as said, the whole acquis communautaire is instrumental, also in the case of private law. These developments raise the question whether it still makes sense to uphold a sharp distinction between private and public law. Moreover, within the English legal system there has never been a strong tradition of distinguishing private law and public law, although some scholars - who incidentally share an interest in Civil Law - have recently made use of this terminology10. Therefore, it may be worthwhile to go ahead with the functional and piecemeal approach which the European legislator has adopted and to address functional fields of the law rather than to embrace the grand idea of including all private law within a civil code11, and thus reviving a distinction which does not seem desirable neither from a political nor from a practical perspective. Instead, it may be advisable to enact one or more functional European codes, for example in the area of distribution law, company law, or labour law. 4 Civil Law, Commercial Law, Consumer Law Another instance of the fragmentation of private law is not new at all. Indeed, it has been present from the first codifications: the division of private law according to the status of the persons involved. In many European countries different (or additional) rules apply depending on whether the parties are ordinary citizens or merchants. In addition, more recently a new category has developed: the consumer. In the first wave of codifications most continental European legal systems adopted both a civil code and a commercial code. However, since the first half of the 20th century the significance of this distinction has gradually decreased. And some countries, notably Italy (1942) and the Netherlands (1992), officially abolished the distinction on the occasion of the implementation of their new civil codes 12 . Interestingly, however, during the last decades of the 20th century a counter-development started to arise as a result of the birth of consumer law . Thus 10. See e.g. PETER BIRKS (ED.), English Private Law, Oxford 2000. Moreover, Professor Ewan McKendrick occupies a Chair in English Private Law at Oxford. 11. Compare PIERRE LEGRAND, Against a European Civil Code , MLR [Vol. 60] 1997 44-62. 12. In the Netherlands the distinctions between kooplieden and other persons, and between daden van koophandel and other acts was abolished as early as in 1934. See R.J.Q. KLOMP, Opkomst en ondergang van het handelsrecht : over de aard en de positie van het handelsrecht, in het bijzonder in verhouding tot het burgerlijk recht, in Nederland in de negentiende en twintigste eeuw, Nijmegen 1998,p. 165
THE STRUCTUREOF THE NEW EUROPEAN PRIVATELAW a new distinction arose, between general civil law, which was thought to be largely based on party autonomy, and specific consumer law, which exceptionally was more protective. In the course of the 1980s and 90s in many European countries consumer law developed into an important branch of the law(not least as a result of the many European directives), with a great deal of autonomy vis-a-vis general private law. In France, all consumer regulations have even been brought together in the Code de la Consommation(1997). This development was enhanced by the way in which European Union bureaucracy is organised in Brussels. Different Directorates-General are responsible for the Common Market and for Consumer Protection, a factor which has significantly increased the tendency to enact separate rules for consumers and commercal parties. However, there are also counter-developments: many countries have tried to integrate consumer law into their civil codes as faras possible, thus try ing to mainta in the integrity of civil law A clear example is the 1992 Dutch civil code. Another recent example is the Principles of European Contract Law which were drafted by the Lando Commission and which are meant to apply to all contracts independent of the status of the parties involved 4 There are some strong arguments against schizophrenic European priva te law as Ugo Mattei has called it 5. First, the distinction between consumer contracts and commercial contracts is very problematic. Compare Mattei6: Since there is no such thing as a separate market for consumers(demand) and a separate market for producers(supply ), contract hw has to face the problem of how to merge supply and demand into a single market. The creation of two different bodies of law at odds with each other would ignore this reality, and, as a result, reduce the chance of building efficient private law institutions for modem Europe. Secondly, by(re)introducing hizophrenic contract law the definition and proof of status(consumer professional) becomes all-important, whereas it seems much more efficient to concentra te on contract rather than on status However, adopting uniform European contract aw, as proposed, for example by the Lando commission in its Principles of European Contract Law, carries its own risks as well. That is, if one is concemed that European contract law should be sufficiently socal 7. If contract law is dealt with on a general, abstract level there See for the Netherlands R.P. JL. DITIES redhtsvergelijkend onderzoek naarde betekenis van de(onderlinge) hoedanigheid van partijen voor de totstandkoming en de vaststelling van de inhoud van shande lingen, Deventer 1994 OLE LANDO, HUGH BEALE(EDS) Principles of European Contract La, Pants I and I, Prepared by The Commission on European Contract Law, The Hague 2000 UGO MATTEL Efficiency and Equal Potection In The New European Contract Law Mandatory, Default and Enforcement Rules 39 Va J Int IL 5 16 MATTEL, loc cit, P. 538 See n favour of social European private law THOMAS WILHELMSSON, Social Contract Law and European Integration, Dartmouth 1995: BRIGITTA LURGER, Vertraghche Solidaritat Entwicklung scancen fir das allgemeine Vertragsrecht in Osterreich tad in der Europischen Union, Baden-Baden 1998; JAN B M. VRANKEN, Over partijautonomie, contractsvrijheid en de grondslag van gebondenheid in het verbinten ssenrecht n: JM BARENDRECHT, M.A.B
THE STRUCTURE OF THE NEW EUROPEAN PRIVATE LAW 5 a new distinction arose, between general civil law, which was thought to be largely based on party autonomy, and specific consumer law, which exceptionally was more protective13 . In the course of the 1980s and 90s in many European countries consumer law developed into an important branch of the law (not least as a result of the many European directives), with a great deal of autonomy vis-à-vis general private law. In France, all consumer regulations have even been brought together in the Code de la Consommation (1997). This development was enhanced by the way in which European Union bureaucracy is organised in Brussels. Different Directorates-General are responsible for the Common Market and for Consumer Protection, a factor which has significantly increased the tendency to enact separate rules for consumers and commercial parties. However, there are also counter-developments: many countries have tried to integrate consumer law into their civil codes as far a s possible, thus trying to maintain the integrity of civil law. A clear example is the 1992 Dutch civil code. Another recent example is the Principles of European Contract Law which were drafted by the Lando Commission and which are meant to apply to all contracts independent of the status of the parties involved14 . There are some strong arguments against schizophrenic European private law, as Ugo Mattei has called it15. First, the distinction between consumer contracts and commercial contracts is very problematic. Compare Mattei16: Since there is no such thing as a separate market for consumers (demand) and a separate market for producers (supply), contract law has to face the problem of how to merge supply and demand into a single market. The creation of two different bodies of law at odds with each other would ignore this reality, and, as a result, reduce the chance of building efficient private law institutions for modern Europe. Secondly, by (re)introducing schizophrenic contract law the definition and proof of status (consumer or professional) becomes all -important, whereas it seems much more efficient to concentrate on contract rather than on status. However, adopting uniform European contract law, as proposed, for example, by the Lando Commission in its Principles of European Contract Law, carries its own risks as well. That is, if one is concerned that European contract law should be sufficiently social 17. If contract law is dealt with on a general, abstract level there 13. See for the Netherlands R.P.J.L. TJITTES, De hoedanigheid van contractspartijen; Een rechtsvergelijkend onderzoek naar de betekenis van de (onderlinge) hoedanigheid van partijen voor de totstandkoming en de vaststelling van de inhoud van rechtshandelingen, Deventer 1994. 14. OLE LANDO, HUGH BEALE (EDS.), Principles of European Contract Law, Parts I and II, Prepared by The Commission on European Contract Law, The Hague 2000. 15. UGO MATTEI, Efficiency and Equal Protection In The New European Contract Law: Mandatory, Default and Enforcement Rules , 39 Va. J. Int l L. 537. 16. MATTEI, loc. cit., p. 538. 17. See in favour of social European private law THOMAS WILHELMSSON, Social Contract Law and European Integration, Dartmouth 1995; BRIGITTA LURGER, Vertragliche Solidarität, Entwicklungschancen für das allgemeine Vertragsrecht in Österreich und in der Europäischen Union, Baden-Baden 1998; JAN B.M. VRANKEN, Over partijautonomie, contractsvrijheid en de grondslag van gebondenheid in het verbintenissenrecht in: J.M. BARENDRECHT, M.A.B
HESSELINK is a serious risk that those rules will not be sufficiently socialand protective as far as weaker parties are concerned, as a result of the argument that such rules would otherwise not fit in with major international commercial contracts. The end result may then be that general contract law will be mainly autonomy-based and hardly protective at all. Indeed, it seems worry ing that the PECl are very similar to the UNIDROIT Principles of International Commercal Contracts, which are exclusively intended for commercial contracts. Does this mean that the PECl have applied business logic to consumers? 18 should general contract aw be neutral, and should the protective rules(in protection of categories which are presumed to be weaker, like consumers, employees, tenants)be regarded as special private law, as opposed to general private law, which should be placed elsewhere(maybe even outside the code)? However, this approach also has certa in bear its risks. In the first place, there is no such thing as neutral general contract aw. autonomy based contract law is not neutral but Liberal (in the European sense), that is Conservative, or right wing, and it is highly questionable whether today s general contract law should be based exclusively or ma inly on party autonomy 9. Secondly, a system where all the protective rules are moved into(the)special part(s)makes the autonomy-based general contract law of little re levance since, on the one hand, the multinationals and other strong commercal parties will make their own contractual arrangements in long and detailed contracts for every imaginable contingency and will therefore probably find the default rules conta ned in the code of general contract law of little use for their Irposes, whereas, on the other hand, for consumers, employees, tenants and other weaker parties many(or even most)of these rules would not be applicable whereas the important rules would be found in the Consumer, Labour or Housing(part of the) Code Concluding, from both a practical and a political perspective it is not all that obvious whether European private law should be unitary as far as the status of parties is concerned. In any case, a classical civil code which conta ins only general private law does not seem to be the obvious structure for framing the needs of European citizens and business CHAO-DUIVIS EN H.A. W. VERMEULEN(EDS ) Beginselen van contractenrecht: Opstellen aangeboden aan B W M Nieskens-sphonding, Deventer 2000; CHRISTOPHE JAMN, Plaidoyer pour le soldarime contractual, n: Gilles Goubeaux et al (ed ) Etudes offertes a Jacques Ghest: le contrat au debutdu Xe sieck, Paris 2001, and my The Politics of European Contract Law. Who Has an Interest in What Kind of Contract Law for Europe?, cited above, footnote 2. In their Preface and Introduction the PECL frequently refer t busness. See eg. p.xXv international business community See dUNCAn KENNEDY, The Political Stakes n Merely Technical Issues of Contract Law ,10ERPL(2002), pp 7-28. See further below, VIll
HESSELINK 6 is a serious risk that those rules will not be sufficiently social and protective as far as weaker parties are concerned, as a result of the argument that such rules would otherwise not fit in with major international commercial contracts. The end result may then be that general contract law will be mainly autonomy-based and hardly protective at all. Indeed, it seems worrying that the PECL are very similar to the UNIDROIT Principles of International Commercial Contracts, which are exclusively intended for commercial contracts. Does this mean that the PECL have applied business logic to consumers?18 . Or should general contract law be neutral , and should the protective rules (in protection of categories which are presumed to be weaker, like consumers, employees, tenants) be regarded as special private law, as opposed to general private law, which should be placed elsewhere (maybe even outside the code)? However, this approach also has certain bear its risks. In the first place, there is no such thing as neutral general contract law. Autonomy based contract law is not neutral but Liberal (in the European sense), that is Conservative, or right wing , and it is highly questionable whether today s general contract law should be based exclusively or mainly on party autonomy19. Secondly, a system where all the protective rules are moved into (the) special part(s) makes the autonomy-based general contract law of little relevance since, on the one hand, the multinationals and other strong commercial parties will make their own contractual arrangements in long and detailed contracts for every imaginable contingency and will therefore probably find the default rules contained in the code of general contract law of little use for their purposes, whereas, on the other hand, for consumers, employees, tenants and other weaker parties many (or even most) of these rules would not be applicable whereas the important rules would be found in the Consumer, Labour or Housing (part of the) Code. Concluding, from both a practical and a political perspective it is not all that obvious whether European private law should be unitary as far as the status of parties is concerned. In any case, a classical civil code which contains only general private law does not seem to be the obvious structure for framing the needs of European citizens and business. CHAO-DUIVIS EN H.A.W. VERMEULEN (EDS.), Beginselen van contractenrecht: Opstellen aangeboden aan B.W.M. Nieskens-Isphording, Deventer 2000; CHRISTOPHE JAMIN, Plaidoyer pour le solidarisme contractuel , in: Gilles Goubeaux et al. (ed.), Études offertes à Jacques Ghestin; Le contrat au début du XXIe siècle, Paris 2001, and my The Politics of European Contract Law: Who Has an Interest in What Kind of Contract Law for Europe? , cited above, footnote 2. 18. In their Preface and Introduction the PECL frequently refer to business. See e.g. p. xxv ( international business community ). 19. See DUNCAN KENNEDY, The Political Stakes in Merely Technical Issues of Contract Law ,10 ERPL (2002), pp. 7-28. See further below, VIII
THE STRUCTURE OF THE NEW EUROPEAN PRIVATELAW A Multi-Level System A third fragmentation trend is what has been referred to as the development of European law into a multi-level system of governance where several institutions are responsible for the development of certa in aspects of the law but no institution is in charge of private law in its entirety. Christian Joerges suggests that: the much criticised patchwork character of European private law initiatives reflects the lack of a hierarchical order, and that Europe s legal pluralism will inevitably result in disintegrative effects within fomerly national systems. Accordingly, he argues that legal scholarship should try to imagine and conceptualise a aw of uropeanisation rather than some pan-European system that might be codified or compiled out of Europe s common legal heritage. Rather than creating new static coherent structures or rigid institutional arrangements we should find a dynamic solution for the interplay between EU law and 15 national legal systems of private law. In the process we will inevitably have to give up some of our hopes for nationa normative coherence The problems would not disappear (they would not even become significantly minor )in this respect if the eU decided to enact a European code of general contract law or even a European Civil Code2I. The presence of such a code would inevitably give rise to many questions with regard to the connection with the rest of the law First, some parts of private law would presumably remain national: the general aw ofobligations, the aw of specif ic contracts(especally protective regulation ) the hw of contracts concluded by the State(adm inistrative aw), (real) property aw(transfer of property ) the law of persons, the law of succession, the law of evidence, the law of civil procedure. This would presumably be the case for national public law, parts of which may be closely connected to private law(adm inistrative law, crim inal law constitutional law). Secondly, a part of private bw(in the sense of the awapplicable to conflicts between private persons) would indeed be adm inistered on a European level, but presumably not in the civ il code. A first example is provided by European ompetition law. This branch law frequently has a decisive influence on the ontractual relationship between private parties(distribution and franchise contracts are among the most typical examples)but it is unlikely that it will be transferred from ean Civil Code Another important example is provided by human rights. In some Europea countries an important source of private lw is the Constitution. In those countries human rights do not only have a vertical effect( they may be invoked by citizens vis-a-vis the State) but also a horizontal one(they may be invoked by citizens vis-a-vis other citizens). This horizontal effect may be either direct or indirect. In the fomer case. in her or his suit against another citizen a citizen has a claim and a See especially CHRsTIAN DERGES, Interactive Adjud caton n the Europeanisation Proce A Demanding Perspective and a Modest Example, ERPL2000, p. 1-16. See also OLIVER REMIEN Einheit, Mehrstufigheit und Flexibilitat im europaischen Privat-und Wrtschaftsrecht, 62 Rabelsz (1998),p.627f As said, the Commiss ion recently instigated the debate by publishing its Con uropean Contract La(seeabove footnote D)
THE STRUCTURE OF THE NEW EUROPEAN PRIVATE LAW 7 5 A Multi-Level System A third fragmentation trend is what has been referred to as the development of European law into a multi-level system of governance where several institutions are responsible for the development of certain aspects of the law but no institution is in charge of private law in its entirety20. Christian Joerges suggests that: the much criticised patchwork character of European private law initiatives reflects the lack of a hierarchical order, and that Europe s legal pluralism will inevitably result in disintegrative effects within formerly national systems. Accordingly, he argues that legal scholarship should try to imagine and conceptualise a law of Europeanisation rather than some pan-European system that might be codified or compiled out of Europe s common legal heritage. Rather than creating new static coherent structures or rigid institutional arrangements we should find a dynamic solution for the interplay between EU law and 15 national legal systems of private law. In the process we will inevitably have to give up some of our hopes for national normative coherence. The problems would not disappear (they would not even become significantly minor) in this respect if the EU decided to enact a European code of general contract law or even a European Civil Code21. The presence of such a code would inevitably give rise to many questions with regard to the connection with the rest of the law. First, some parts of private law would presumably remain national: the general law of obligations, the law of specific contracts (especially protective regulation), the law of contracts concluded by the State (administrative law), (real) property law (transfer of property), the law of persons, the law of succession, the law of evidence, the law of civil procedure. This would presumably be the case for national public law, parts of which may be closely connected to private law (administrative law, criminal law, constitutional law). Secondly, a part of private law (in the sense of the law applicable to conflicts between private persons) would indeed be administered on a European level, but presumably not in the civil code. A first example is provided by European competition law. This branch of the law frequently has a decisive influence on the contractual relationship between private parties (distribution and franchise contracts are among the most typical examples) but it is unlikely that it will be transferred from art. 81 EC Treaty into a European Civil Code. Another important example is provided by human rights. In some European countries an important source of private law is the Constitution. In those countries human rights do not only have a vertical effect (they may be invoked by citizens vis-à-vis the State) but also a horizontal one (they may be invoked by citizens vis-à-vis other citizens). This horizontal effect may be either direct or indirect. In the former case, in her or his suit against another citizen, a citizen has a claim and a 20. See especially CHRISTIAN JOERGES, Interactive Adjudication in the Europeanisation Process? A Demanding Perspective and a Modest Example , ERPL 2000, p. 1-16. See also OLIVER REMIEN, Einheit, Mehrstufigheit und Flexibilität im europäischen Privat-und Wirtschaftsrecht , 62 RabelsZ (1998), p. 627 ff. 21. As said, the Commission recently instigated the debate by publishing its Communication on European Contract Law (see above footnote 1)
remedy which are directly based on the Const itution. In the latter situation, the chim and remedy are based on a prov ision in the civil code, e.g. on a provision for liability in tort or on a general good faith chuse in contract cases. A typical example is the German cases where the Bundesverfassungsgericht has dechred that extensive personal securities provided for the debts of close relatives are invalid due to a lation of the fundamental right to live one s own life(Personlichkeitsrecht, art. 2 Grundgesetz)which is protected in relationships between private persons by art. 138 BGB on immorality(Sittemvidnigkeit )2. Another example comes from Italy where t was held that the Constitutional obligation of solidarity(solidarieta sociale)has a horizontaleffect between contracting parties by way of the general good faith clauses conta ined in artt. 1366. 1374 and 1375 Codice Civile23 Within the European context fundamental rights are not only protected by national law but also by international law, notably the Convention for the Protection of Human Rights and Fundamental Freedoms(Rome, 1950). This Convention gives citizens an individual right of complaint in Strasbourg (when all national remedies/instances have been exhausted), and in some countries also in their own national courts 24. This means that yet another authority is involved in the adm inistration of private aw. Moreover, the European Convention chaired by Valery Giscard D Estaing is currently preparing a European constitution which will undoubtedly conta in a chapter on fundamental rights>, similar to the Charter of Fundamental Rights of the European Union(Nice, 2000)26. This raises the quest of the relationship between that Charter or the Constitution and a possible European Civil Code(or, for the time being, national civil codes). The Charter contains a arge num ber of provisions which may be of direct relevance for private law(ie. for relationships between citizens). Moreover, the values conta ined in it may be regarded as the common values of the European Union which could be the basis of a European Civil Code. The Preamble states27: Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom equality and solidarity. The Charter contans rights, freedoms and principles relating to Dignity (Chapter 1), Freedom(Chapter 2), Equality( Chapter 3), Solidarity( Chapter 4), Citizens Rights( Chapter 5), and Justice( Chapter 6). A hint as to its horizontal effect is to be found in the same preamble 28: Enjoyment of these Decisionof 19Octber 1993, BlerGE 89, 214, NJW 1994, 36. See PALANDT/HENRICHS, 60 23. See e.g Cass, 20 April 1994, nr. 3775, Corr gir. 1994, p. 566, note CARBONE. che I ossequio alla legalita formale non si traduca n sacrificio della giustizia sostanziale e non risulti quindi, dsatteso quel dovere(inderogabile)di solidarieta, ommai costituzonalizzato(art. 2 Cost), che, applicat ai contratti, ne determina mtegrativamente il contenuto o gh effetti(art. 1374 cc)e deve, adun tempo, orentame I interpretazione(art 1366c. c )e I esecuzione( art. 1 37 See in the Netherlands art. 93Grondwet(Constitution), which gives such prow sions direct Seeonitsprogresshttp://european-conventioneuint Seeforthefulltextwithcommentshttp://ue.eu.int/df/default.asp P lI P.12
HESSELINK 8 remedy which are directly based on the Constitution. In the latter situation, the claim and remedy are based on a provision in the civil code, e.g. on a provision for liability in tort or on a general good faith clause in contract cases. A typical example is the German cases where the Bundesverfassungsgericht has declared that extensive personal securities provided for the debts of close relatives a re invalid due to a violation of the fundamental right to live one s own life (Persönlichkeitsrecht, art. 2 Grundgesetz) which is protected in relationships between private persons by art. 138 BGB on immorality (Sittenwidrigkeit) 22. Another example comes from Italy where it was held that the Constitutional obligation of solidarity (solidarietà sociale) has a horizontal effect between contracting parties by way of the general good faith clauses contained in artt. 1366, 1374 and 1375 Codice Civile23 . Within the European context fundamental rights are not only protected by national law but also by international law, notably the Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 1950). This Convention gives citizens an individual right of complaint in Strasbourg (when all national remedies/instances have been exhausted), and in some countries also in their own national courts 24 . This means that yet another authority is involved in the administration of private law . Moreover, the European Convention chaired by Valéry Giscard D Estaing is currently preparing a European constitution which will undoubtedly contain a chapter on fundamental rights25, similar to the Charter of Fundamental Rights of the European Union (Nice, 2000)26. This raises the question of the relationship between that Charter or the Constitution and a possible European Civil Code (or, for the time being, national civil codes). The Charter contains a large number of provisions which may be of direct relevance for private law (i.e. for relationships between citizens). Moreover, the values contained in it may be regarded as the common values of the European Union which could be the basis of a European Civil Code. The Preamble states27: Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity. The Charter contains rights, freedoms and principles relating to Dignity (Chapter 1), Freedom (Chapter 2), Equality (Chapter 3), Solidarity (Chapter 4), Citizens Rights (Chapter 5), and Justice (Chapter 6). A hint as to its horizontal effect is to be found in the same preamble28: Enjoyment of these 22. Decision of 19 October 1993, BVerfGE 89, 214, NJW 1994, 36. See PALANDT/HEINRICHS, 60th ed., 2001, 138 no. 37ff. 23. See e.g. Cass., 20 April 1994, nr. 3775, Corr. giur. 1994, p. 566, note CARBONE. che l ossequio alla legalità formale non si traduca in sacrificio della giustizia sostanziale e non risulti, quindi, disatteso quel dovere (inderogabile) di solidarietà, ormai costituzionalizzato (art. 2 Cost.), che, applicato ai contratti, ne determina integrativamente il contenuto o gli effetti (art. 1374 c.c.) e deve, ad un tempo, orientarne l interpretazione (art. 1366 c.c.) e l esecuzione (art. 1375). 24. See in the Netherlands art. 93Grondwet (Constitution), which gives such provisions direct effect. 25. See on its progress http://european-convention.eu.int 26. See for the full text with comments http://ue.eu.int/df/default.asp 27. P. 11. 28. P. 12
THE STRUCTURE OF THE NEW EUROPEAN PRIVATELAW rights entails responsibilities and duties with regard to other persons, to the human community and to future generations There is yet another level. Some parts of the private hw which is applicable in the Member States of the European Union are dealt with on a global level. For example, the most important contract is dealt with, as regards international cases, on a world-wide scale in the United Nations Convention on contracts for the Intemational Sa le of Goods(CISG)(Vienna, 1980). This convention has now been ratified by 61 countries all over the world- Therefore, it is very unlikely, also from the perspective of the hierarchy of sources of aw, that all(or even most)of the private a applicable in Europe will be dealt with on the same level of governance, let alone in one single European civ il code. Private aw (like public law) will rather continue to be dealt with on various levels including(as a result of globalisation)increasingly on a world-wide level. This means that control over the development of private law will increasingly be in the hands of various institutions. This will inevitably have some consequences for our hopes of normative integrity(within and among each of the levels Integrity Tod The use of codes is based on the assumption that it is possible to derive right answers to questions of law relating to specific cases from the words and the system of the code. This assumption also underlies the use of statutory rules generally. However what is typical of a code is that it is more comprehensive(it deals with a greater part of the law)and it is usually more systematic: not merely a set of articles, but a system which itself has a nomative meaning. However, today, n en deplaise Ronald Dworkin, there is increasing scepticism with regard to the possibility to deduce right answers for concrete cases from abstract rules and general principles(rule scepticism), also in Europe. According to some observers this is the majority view today. The most radical sceptical view conceming a European Civil Code would therefore be that it would be completely useless to enact any code at all Of course, (nomative)integrity is a highly important characteristic of any legal rder, because it is ultimately based on the fundamental value of equa lity. That value is deeply embedded in the European tradition. See for example art. 14 ECHR and more recently ChapterIll of the European Charter. Therefore, an argument in favour of a code could be that it would express the aspirations of a legal order to attain normative integrity, without necessarily believing that the mere enactment of such a code would n itself lead to(or even enhance )normative integrity. It would have the (rhetorical) function of a symbol which shows that the legal community does still elieve in this great idea and does not surrender, in a post-modem sceptical way, to infinite fragmentation of the lay A less radical sceptic would therefore advise the drafting and enactment of a See UNgtrAL Status of Conventions and Model Laws, update 14 March 2002(see 30 ee especally hs Law s Empire, London 1986 See in the Netherlands J M BARENDRECHT, Doormuren kijken; suggesties voor hervoming
THE STRUCTURE OF THE NEW EUROPEAN PRIVATE LAW 9 rights entails responsibilities and duties with regard to other persons, to the human community and to future generations. There is yet another level. Some parts of the private law which is applicable in the Member States of the European Union are dealt with on a global level. For example, the most important contract is dealt with, as regards international cases, on a world-wide scale in the United Nations Convention on Contracts for the International Sale of Goods (CISG) (Vienna, 1980). This convention has now been ratified by 61 countries all over the world29 . Therefore, it is very unlikely, also from the perspective of the hierarchy of sources of law, that all (or even most) of the private law applicable in Europe will be dealt with on the same level of governance, let alone in one single European civil code. Private law (like public law) will rather continue to be dealt with on various levels including (as a result of globalisation) increasingly on a world-wide level. This means that control over the development of private law will increasingly be in the hands of various institutions. This will inevitably have some consequences for our hopes of normative integrity (within and among each of the levels). 6 Integrity Today The use of codes is based on the assumption that it is possible to derive right answers to questions of law relating to specific cases from the words and the system of the code. This assumption also underlies the use of statutory rules generally. However, what is typical of a code is that it is more comprehensive (it deals with a greater part of the law) and it is usually more systematic: not merely a set of articles, but a system which itself has a normative meaning. However, today, n en déplaise Ronald Dworkin30, there is increasing scepticism with regard to the possibility to deduce right answers for concrete cases from abstract rules and general principles (rule scepticism), also in Europe. According to some observers this is the majority view today31. The most radical sceptical view concerning a European Civil Code would therefore be that it would be completely useless to enact any code at all. Of course, (normative) integrity is a highly important characteristic of any legal order, because it is ultimately based on the fundamental value of equality. That value is deeply embedded in the European tradition. See for example art. 14 ECHR and, more recently Chapter III of the European Charter. Therefore, an argument in favour of a code could be that it would express the aspirations of a legal order to attain normative integrity, without necessarily believing that the mere enactment of such a code would in itself lead to (or even enhance) normative integrity. It would have the (rhetorical) function of a symbol which shows that the legal community does still believe in this great idea and does not surrender, in a post-modern sceptical way, to the infinite fragmentation of the law. A less radical sceptic would therefore advise the drafting and enactment of a 29. See UNCITRAL Status of Conventions and Model Laws, update 14 March 2002 (see www.uncitral.org). 30. See especially his Law s Empire, London 1986. 31. See in the Netherlands J.M. BARENDRECHT, Door muren kijken; suggesties voor hervorming van de civiele cassatierechtspraak , NJB 2002, p. 297
code which does not pretend to conta in all the right answers but which in its sty le and its structure would openly recognise that in any dispute resolution important choices will inevitably have to be made no matter how accurately the abstract rules of the code and its system are drafted. A contemporary code should therefore be open and discursive. It should provide an efficient language and terminology(categories)for the debateand it should indicate which interests are at stakeand wh ich policy choice the legislator has made. An interesting example is provided by the American Restatements(Second). In this second wave of restatements strong criticism of the first Restatements. from Realists and others. was taken into account 33. In the Restatements(Second) there was a clear shift in emphasis from the black-letter rule to the comments which were much more extensive than before. The restatements Second)did not attempt to bring an end to the debate, but ra ther tried to state which positions had been taken and to leave it to the courts to decide. As a result there was also a shift in interest from the black-letter rule to the comment. The new restatements were also much less rigidly formulated. The black-letter rules frequently conf ined themselves to listing a number of aspects that should be taken into account when resolving the conflict. Similarly, also the PECL contain a number of rules which are rather discursive. Sometimes they do little more than provide the relevant elements for debate. Often they merely mention a set of factors which should be taken into account 34 7 Default Rules or Mandatory Rules? There is a tendency in the European private law debate to mainly focus on default rules. The best example is provided by the Principles of European Contract Lamw35 This focus is expla ined in part by the fact that those parts of private law which are mainly mandatory are usually regarded as being too political. The academ ics who 32. This is not the same as soft. See below. VIL See Charlese. OARk, The Restatement Of The Law Of Contracts, 42 Yale L J643-667 HESSEL E YNTEMA, What Should The American Law Institute Do?, 34 Michigan Law Review (1936)461-473, ALBERTA EHRENZWEIG, Das Desperant des zweiten Restatement of Conflict of Laws, n: ERNST VAN CAEMMERER cS. (eds ) lus Prinanan Gentium (Festschrift Mar Rhenstei), Vol l, pp. 343ff, p. 344. Compare LAWRENCE M. FRIEDMAN, A History ofamerican Law, 2nd ed Touchstone, New York 1985, p. 676f, G EDWARD WHITE, The American Law Institute and the Trumph of Modemst Jurisprudence Law and History Review(1997) VoL 16, p. and RIChARd hyland. The american restatements and the uniform Commercial code.as HARTKAMP ET AL.(EDS), Towards a European Civil Code, 2ed., Nijmegen and The Hague/London/Boston 1998, pp, 55 required that a party disclose particular nformation, regard shoud be had tb all the circumstances, indudng(a) whether the party had specal expertise; (b)the cost to it of acquiring the relevant information; (c)whether the other party could reasonably acquire the infomation for itself, and(d the apparent importance ofthe information to the other party 35. Seeon the PECL my The Principles Of European Contract Law: Some Chores Made By The Lando Commission n: MARTUN W. HESSELINK, GERARD DE VRIES, Principles of European Contract Law, Deventer 2001, Pp 5-95
HESSELINK 10 code which does not pretend to contain all the right answers but which in its style and its structure would openly recognise that in any dispute resolution important choices will inevitably have to be made no matter how accurately the abstract rules of the code and its system are drafted. A contemporary code should therefore be open and discursive32. It should provide an efficient language and terminology (categories) for the debate and it should indicate which interests are at stake and which policy choices the legislator has made. An interesting example is provided by the American Restatements (Second). In this second wave of restatements strong criticism of the first Restatements, from Realists and others, was taken into account 33 . In the Restatements (Second) there was a clear shift in emphasis from the black-letter rule to the comments, which were much more extensive than before. The Restatements (Second) did not attempt to bring an end to the debate, but rather tried to state which positions had been taken and to leave it to the courts to decide. As a result there was also a shift in interest from the black-letter rule to the comment. The new restatements were also much less rigidly formulated. The black-letter rules frequently confined themselves to listing a number of aspects that should be taken into account when resolving the conflict. Similarly, also the PECL contain a number of rules which are rather discursive. Sometimes they do little more than provide the relevant elements for debate. Often they merely mention a set of factors which should be taken into account34 . 7 Default Rules or Mandatory Rules? There is a tendency in the European private law debate to mainly focus on default rules. The best example is provided by the Principles of European Contract Law35 . This focus is explained in part by the fact that those parts of private law which are mainly mandatory are usually regarded as being too political . The academics who 32. This is not the same as soft . See below, VII. 33. See CHARLES E. CLARK, The Restatement Of The Law Of Contracts , 42 Yale L J 643-667, HESSEL E. YNTEMA, What Should The American Law Institute Do? , 34 Michigan Law Review (1936) 461-473, ALBERT A. EHRENZWEIG, Das Desperanto des zweiten Restatement of Conflict of Laws , in: ERNST VAN CAEMMERER c.s. (eds.), Ius Privatum Gentium (Festschrift Max Rheinstein), Vol. I, pp. 343ff, p. 344. Compare LAWRENCE M. FRIEDMAN, A History of American Law, 2nd ed., Touchstone, New York 1985, p. 676f, G. EDWARD WHITE, The American Law Institute and the Triumph of Modernist Jurisprudence , Law and History Review (1997) Vol. 16, p. 1, and RICHARD HYLAND, The American Restatements and the Uniform Commercial Code , A.S. HARTKAMP ET AL. (EDS.), Towards a European Civil Code, 2nd ed., Nijmegen and The Hague/London/Boston 1998, pp. 55. 34. See, for example, art. 4:107 (3) (Fraud): In determining whether good faith and fair dealing required that a party disclose particular information, regard should be had to all the circumstances, including: (a) whether the party had special expertise; (b) the cost to it of acquiring the relevant information; (c) whether the other party could reasonably acquire the information for itself; and (d) the apparent importance of the information to the other party. 35. See on the PECL my The Principles Of European Contract Law: Some Choices Made By The Lando Commission , in: MARTIJN W. HESSELINK, GERARD DE VRIES, Principles of European Contract Law, Deventer 2001, pp. 5-95
