This article was previously published in Maastricht Journal of European and Comparative Law 5(1998), p. 328-340 A European Private Law as a Mixed Legal System Towards a lus Commune through the free Movement of legal rules l. How to Arrive at a European Private law The most striking development in private law over the past decade is undoubtedly its Europeanization. The desire to achieve a European private law has, apart from the much longer existing Directives legislation, resulted in an avalanche of scholarly national and international organs and texts which are intended to serve as a first step towards a European ius commune of private law. If the tone set in these writings were all to go on, we would be inclined to think that the realization of a European private law may be just a matter of rules or principles drafted by designated committees or institutes. No longer the question as to whether a European private law is desirable,or even as to how such a law can be achieved, but rather the question as to when it will be realized, seems to prevail in many publications In this article, the desirability of a European private law is assumed. Its practical significance is evident: as a justification, it has been pointed out that if a proper internal European market is to be created, a uniform private law is a prerequisite. This purely economic motive is usually exemplified by the situations in italy and germany in 1866 and 1900, respectively, in these countries, unification of the law came about after political and economic integration. It is then said that integration and unification must go hand in hand. However, it is not just practical interest which makes unification necessary; it is also challenging academically to achieve a uniform private law which is apable of removing the alleged contradistinctions between Civil Law and Common aw What is disputed in this article, however, is the way in which a ius commune A slightly different version of this article has been published in Dutch in 73 Nederlands Juristenblad(1998), p. 61 ff. I am grateful to Wies Rayar for helping me with the translatio For an overview see E. Hondius, General Introduction, in Towards a European Civil Code (2nd. ed, Nijmegen, 1998), 13, supplemented by, e. g, De Groot/Schneider, in Bleckmann (ed ) Europarecht, 6ed, (1997), 480 ff. The following are published in the Netherlands: Maastricht Journal of European and Comparative Law(1994), European Review of Private Law(1993)and Tilburg Foreign Law See, e.g., Taschner,s and Hayder's articles in Muller-Graff(ed. ) Gemeinsames Privatrecht in der Europaischen Gemeinschaft, (Baden-Baden, 1993), 155 ff. Ole Lando, Principles of European Contract Law, 56 RabelsZ (1992), 262. Error! bookmark not definedError! Bookmark not defined. This article was previously published in: Maastricht Journal of European and Comparative Law 5 (1998), p. 328-340. A European Private Law as a Mixed Legal System Towards a Ius Commune through the Free Movement of Legal Rules Jan Smits* 1. How to Arrive at a European Private Law? The most striking development in private law over the past decade is undoubtedly its Europeanization. The desire to achieve a European private law has, apart from the much longer existing Directives legislation, resulted in an avalanche of scholarly publications,1 a dozen or so new journals,2 strong political stands by the various national and international organs and texts which are intended to serve as a first step towards a European ius commune of private law. If the tone set in these writings were all to go on, we would be inclined to think that the realization of a European private law may be just a matter of rules or principles drafted by designated committees or institutes. No longer the question as to whether a European private law is desirable, or even as to how such a law can be achieved, but rather the question as to when it will be realized, seems to prevail in many publications. In this article, the desirability of a European private law is assumed. Its practical significance is evident: as a justification, it has been pointed out that if a proper internal European market is to be created, a uniform private law is a prerequisite.3 This purely economic motive is usually exemplified by the situations in Italy and Germany in 1866 and 1900, respectively; in these countries, unification of the law came about after political and economic integration.4 It is then said that integration and unification must go hand in hand. However, it is not just practical interest which makes unification necessary; it is also challenging academically to achieve a uniform private law which is capable of removing the alleged contradistinctions between Civil Law and Common Law. What is disputed in this article, however, is the way in which a ius commune * A slightly different version of this article has been published in Dutch in 73 Nederlands Juristenblad (1998), p. 61 ff. I am grateful to Wies Rayar for helping me with the translation. 1 For an overview see E. Hondius, `General Introduction', in Towards a European Civil Code, (2nd. ed., Nijmegen, 1998), 13, supplemented by, e.g., De Groot/Schneider, in Bleckmann (ed.), Europarecht, 6 ed., (1997), 480 ff. 2 The following are published in the Netherlands: Maastricht Journal of European and Comparative Law (1994), European Review of Private Law (1993) and Tilburg Foreign Law Review (1991). 3 See, e.g., Taschner's and Hayder's articles in Müller-Graff (ed.), Gemeinsames Privatrecht in der Europäischen Gemeinschaft, (Baden-Baden, 1993), 155 ff. 4 Ole Lando, `Principles of European Contract Law', 56 RabelsZ (1992), 262