BUILDING A EUROPEAN CONTRACT LAW: Five Fallacies and two castles in pain Wouter Snijders Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or othenvise, except for reasonable quoting clearly indicating th source. Readers are permitted to make copies, electronically or printed, for personal and sroom use Introduction I begin with a citation from Atiyah When laws and institutions grow organically in the English way, it is dangerous to tamper with the different bits which may seem useless and outdated The proof of this that the system works as a whole even if we cannot say why it works and what rational purpose the different bits may serve. Each part of the total edifice may well have its purpose, even where we cannot understand it. 2 Law is compared here with an edifice, obviously a very old edifice with parts the purpose of which has been forgotten. This view on common law reminds me of another citation by one of the great legal scholars of this university, Paul Scholten, who in a famous paper of 1938 explained why he was not in favour of a recodification of the Dutch civil code of 1838.He wrote others have been torn down . some rooms have been modernized.. l ed repair The civil code is a quiet possession. It is like a big old house. Some parts ne inhabitants long to improve it and complain of its defects, but they know very well that there will be no change.,. It is cosy and familiar, and the inhabitants feel at Again the metaphor of law as an old build ing is used The tone of both citations is one of resignation in view of the outdated parts of law. Both citations show the attachment of the authors to their own legal system, but they also suggest that their general attitude to their gal system is not very different. As we know, Scholtens view was disregarded by the Dutch legislature; Atiyah's ed if ice has hardly changed Presentation at the lus commune congress 28 Novem ber 2002. Amsterdam Ma e ps. Atiyah, Pragmatism and Theory in English Law, London 1987, p. 34, cited by J. Smits, The of European Private Law, Antwerp/Oxford/New York 2002, p. 100 P. Scholten, Verzamelde geschriften, vol 3, Zwolle 1951, p. 29BUILDING A EUROPEAN CONTRACT LAW: Five Fallacies and Two Castles in Spain1 Wouter Snijders Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use. Introduction I begin with a citation from Atiyah: When laws and institutions grow organically in the English way, it is dangerous to tamper with the different bits which may seem useless and outdated. The proof of this is that the system works as a whole even if we cannot say why it works and what rational purpose the different bits may serve. Each part of the total edifice may well have its purpose, even where we cannot understand it.2 Law is compared here with an edifice, obviously a very old edifice with parts the purpose of which has been forgotten. This view on common law reminds me of another citation by one of the great legal scholars of this university, Paul Scholten, who in a famous paper of 1938 explained why he was not in favour of a recodification of the Dutch civil code of 1838. He wrote: The civil code is a quiet possession. It is like a big old house. Some parts need repair, others have been torn down . . . some rooms have been modernized . . . The inhabitants long to improve it and complain of its defects, but they know very well that there will be no change . . . It is cosy and familiar, and the inhabitants feel at home.3 Again the metaphor of law as an old building is used. The tone of both citations is one of resignation in view of the outdated parts of law. Both citations show the attachment of the authors to their own legal system, but they also suggest that their general attitude to their legal system is not very different. As we know, Scholten’s view was disregarded by the Dutch legislature; Atiyah’s edifice has hardly changed. 1 Presentation at the Ius Commune Congress, 28 November 2002, Amsterdam. 2 P.S. Atiyah, Pragmatism and Theory in English Law, London 1987, p. 34, cited by J. Smits, The Making of European Private Law, Antwerp/Oxford/New York 2002, p. 100. 3 P. Scholten, Verzamelde geschriften, vol. 3, Zwolle 1951, p. 29