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 5-95HESSELINK 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