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 referencesTHE 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/Lon￾don/Boston 1998. 4. See my The New European Legal Culture, Deventer 2001, p. 11 and following, with further references