invisible hand that will lead to better results than interference of a European legislat or s an partly unintended legal system. 14 What is supposedly at work here can be described As a metaphor, the theory seems interesting. It describes and predicts possible future developments from a meta point of view. It reminds one of the famous word of Portals: Les codes des peuples se font avec le temps; mais, a proprement parler, on ne les fait pas '15 But clearly it cannot serve as a basis for a practical policy of abstaining from interference in those developments. Portalis had to create the code he was talking about. It may be interesting from a scientific point of view to analyse the process that leads to the development of rules and to predict the way this process will take. But the prediction can only become true if the workers in the legal field make the necessary efforts to follow this way. If nobody interferes, the train will go on along the same railway track. If you do not like this, you have to make the effort of build ing another railway track, new railway yards and new stations. I just remind you of the QWERTY phenomenon. Again the build ing metaphor appears appropriate; it stresses the human efforts needed for breaking through QWERTY. As far as judges are involved, the theory neglects that usually their main concern is to stay in line with their own case law. And they will have to come to a decision within a reasonable time. For those reasons, they will rarely indulge in the luxury of investigating the solutions offered by the national law systems of the other Member States of the European Union, though comparative law may be helpful where their own legal system is uncertain Moreover, the theory trusts that enterprises, serving their own interests, will unintentionally choose in their contracts the rules that are in the interest of society as a whole Also this part of the theory is unrealistic. It is not the task of an enterprise to protect its customers against its own strong bargaining power, nor to protect weak parties in general That is a matter for legislation. This brings me to the next fallacy 5. The fallacy of the needs of business Of course, the classical argument for a codification of European contract law is that it is in the interest of industry and commerce, operating in the European Common Market. It reduces transaction costs. It furthers transparency. It facilitates operating in all Member States of the European Union without the risks of an unknown legal system if the other party wants to retreat from the contract or does not perform his obligations. The combined reaction of Messrs Lando and Von bar to the communication of the European Commission 6 stresses this point with many examples, which at first sight seem quite convincing. It is certainly true that d iversities of contract law are an obstacle to the full use of the common market But the question is: How important is this obstacle? The reactions to the communication of the ec from the business world itself show J. Smits, ' How to Predict the Differences in Uniformity between Different Areas of a Future European Private Law?', in A Marciano and J -M. Josselin(eds ) The Economics of Harmonizing European Law pton2002,p.66 Discours prelim na ire, prononce le 24 therm adore an 8, lors de la presentation du projet du Code civile, arrete par la commission du gouvernement O Lando and C von Bar, " Communication on European Contract Law. Joint Response, published also in 10ERPL 2002, p. 183 ff.partly unintended legal system.’14 What is supposedly at work here can be described as an invisible hand that will lead to better results than interference of a European legislator. As a metaphor, the theory seems interesting. It describes and predicts possible future developments from a meta point of view. It reminds one of the famous word of Portalis: ‘Les codes des peuples se font avec le temps; mais, à proprement parler, on ne les fait pas.’15 But clearly it cannot serve as a basis for a practical policy of abstaining from interference in those developments. Portalis had to create the code he was talking about. It may be interesting from a scientific point of view to analyse the process that leads to the development of rules and to predict the way this process will take. But the prediction can only become true if the workers in the legal field make the necessary efforts to follow this way. If nobody interferes, the train will go on along the same railway track. If you do not like this, you have to make the effort of building another railway track, new railway yards and new stations. I just remind you of the QWERTY phenomenon. Again the building metaphor appears appropriate; it stresses the human efforts needed for breaking through QWERTY. As far as judges are involved, the theory neglects that usually their main concern is to stay in line with their own case law. And they will have to come to a decision within a reasonable time. For those reasons, they will rarely indulge in the luxury of investigating the solutions offered by the national law systems of the other Member States of the European Union, though comparative law may be helpful where their own legal system is uncertain. Moreover, the theory trusts that enterprises, serving their own interests, will unintentionally choose in their contracts the rules that are in the interest of society as a whole. Also this part of the theory is unrealistic. It is not the task of an enterprise to protect its customers against its own strong bargaining power, nor to protect weak parties in general. That is a matter for legislation. This brings me to the next fallacy. 5. The fallacy of the needs of business Of course, the classical argument for a codification of European contract law is that it is in the interest of industry and commerce, operating in the European Common Market. It reduces transaction costs. It furthers transparency. It facilitates operating in all Member States of the European Union without the risks of an unknown legal system if the other party wants to retreat from the contract or does not perform his obligations. The combined reaction of Messrs Lando and Von Bar to the communication of the European Commission16 stresses this point with many examples, which at first sight seem quite convincing. It is certainly true that diversities of contract law are an obstacle to the full use of the Common Market. But the question is: How important is this obstacle? The reactions to the communication of the EC from the business world itself show 14 J. Smits, ‘How to Predict the Differences in Uniformity between Different Areas of a Future European Private Law?’, in A. Marciano and J.-M. Josselin (eds.), The Economics of Harmonizing European Law, Cheltenham/Northhampton 2002, p. 66. 15 Discours préliminaire, prononcé le 24 thermidore an 8, lors de la présentation du projet du Code civile, arrêté par la commission du gouvernement. 16 O. Lando and C. von Bar, ‘Communication on European Contract Law: Joint Re sponse’, published also in 10 ERPL 2002, p. 183 ff