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Abstract:
In this article, it is defended that a European Private Law should not come about in some centralist unification process, but through competition of legal rules. In particular the role of the courts in doing so is emphasised. This alternative road towards a European private law is much more in line with the historical development of the ius commune than other proposed methods to reach uniformity.

European Private Law, Unification, Comparative Law

Abstract:
This contribution focuses on European integration through private law. After a sketch of the existing European acquis in the field of the law of contract, tort and property, the question is discussed whether there is a need for harmonisation in view of the goals the European Union set itself. Subsequently, the question of how to design a future European private law is answered. In the field of contract law, the European Commission now follows a two-track policy: it intends to draft a 'Common Frame of Reference' ('CFR') as well as furthering the debate on the possibility of an optional code. It is debated what the contents of these two instruments should be and how they should be created, but also the more fundamental question as to whether they will really contribute to the solving of the present problems with the European acquis is touched upon. Finally, the influence of 'Europe' on national private law is looked at from a critical perspective. The author adopts the view that uniform private law should come about in a Hayekian way of a spontaneous legal order.

European integration, contract law, spontaneous order

Abstract:
This brief editorial (published in the Maastricht Journal) discusses the Draft Common Frame of Reference (DCFR) for a European Private Law (2008). It raises three points of criticism against the draft. The first point is that the draft stands too far apart from the present (consumer) acquis. The second it that it suffers from unclear methodology. Finally, the draft CFR seems to adopt the wrong view of when uniform law exists.

Common Frame of Reference (DCFR), European Private Law

Abstract:
This contribution explores the use of comparative law by the legislature and the courts in creating, reforming and interpreting national law. This practical use of comparative law by national institutions has increased considerably over the last few decades. Particularly in Europe, comparative reasoning seems to play an ever larger role in drafting statutes and deciding cases. Still, in legal systems that have been mainly national in outlook and character over the last two centuries, many aspects of this recourse to foreign law are far from clear. One of the key questions is the extent to which it is legitimate for a court to refer to foreign law in a purely domestic dispute. While in Europe the drawing of comparative inspiration in such cases is usually met with enthusiasm, this is different in the United States, where it is keenly debated whether such 'comparative reasoning' is allowed, particularly in constitutional cases. In this chapter, the scholarly state of affairs regarding the influence of comparative law in national systems is critically assessed. In so doing, emphasis is put on private law and constitutional law, as these are the two areas where comparative inspiration is discussed most vigorously.

Comparative law

Abstract:
This contribution discusses the question whether diversity of contract law among the European member states is a barrier to cross-border trade. This question is important in view of the ongoing debate about the need for a unified European private law. It has tried to answer the question by building upon insights from psychology, economics and law. It turns out that no definitive answer can be given to the question whether the savings in transaction costs through the removal of legal diversity are greater than the losses caused by the termination of competition of legal systems.

European Private Law, Unification, Interdisciplinary approach

Abstract:
An important problem of law making in a globalizing world is how to deal with diverging national legal cultures. Since the emergence of the nation-state, law making has primarily been a task for the national legislatures and courts. They 'make' law for relatively homogeneous societies that are usually characterized by a common language and culture. As a result of increasing globalization, this is now rapidly changing. If the law is to retain its role of regulating society (be it no longer a national, but a global one), new ways of making and enforcing law have to be found. This article offers an account of how to deal with some questions caused by increasing globalization in the field of private law. This account is not a general and theoretical one, but one that is based on the experience of the European Union (EU) in the field of contract law. European contract law is thus used as paradigmatic for globalisation and private law as a whole. There is every reason to do so: the European Union has wide experience with making law for diverging jurisdictions. In addition to this, contract law can be considered one of the most important vehicles for globalization as it facilitates economic transactions.

Globalization, Regulation, Contract Law, European Union

Abstract:
The Principles of European Contract Law (PECL) are explored from a viewpoint of their practical application. It is asserted that the main use of the PECL lies in their being an optional model to be chosen by commercial contracting parties in Europe.

European private law, comparative law, contract law

Abstract:
This contribution discusses the European principles on unjustified enrichment as recently published in the Draft Common Frame of Reference (2007). These principles (or rather: model rules) were drafted with a view to the improvement and elaboration of the present European acquis in the field of private law. This contribution considers not so much the substantive details of the new model rules, but more the need for and the function of drafting principles in this area of the law. This is a legitimate approach as the law of restitution is traditionally not a core area of European legislative intervention. It is concluded that, in view of the multilevel regulation of European private law, enrichment law is better regulated at the national level than at the European one.

European private law, draft Common Frame of Reference, restitution, multilevel governance

Abstract:
This contribution argues that convergence of (European) contract law should not be found in uniform rules, principles or outcomes, but in identifying common sets of arguments to be weighed in different ways in various national jurisdictions. Convergence of law in the European Union should take place at this argumentative level. This view is illustrated by reference to three 'converging tendencies', one at the level of rules, one at the level of fundamental rights and one at the level of 'common results'. First, the reform of the German law of obligations of 2002 is looked at: the new rules on the unitary concept of breach and on prescription periods are compared with Dutch law and are used to illustrate convergence by way of harmonising rules. Second, the unifying effect of fundamental rights is taken into account. Apart from the well-known contribution of the European Court of Justice to the harmonisation of private law, it is important to see how fundamental rights in national law or as laid down in the European Convention on Human Rights may, or may not, contribute to convergence of national contract law. The third method of convergence looked at in this contribution concerns the influence of European directives on national contract law. In theory, European harmonisation through directives is the most vigorous method of convergence of contract law in the European Union. But reality is different because of considerable differences in the way these directives are implemented in the various European jurisdictions.

Measuring convergence, private law, European harmonisation, breach of contract, prescription

Abstract:
This contribution - a chapter in a well-known textbook on comparative law - discusses several of the questions which the emergence of a European private law raises. First, attention is paid to the need for convergence of private law: what are the reasons usually given for harmonising or unifying private law and are these reasons in any way convincing? Secondly, the question is raised how convergence of private law takes place at present. Thus, unification by treaties and harmonisation through Directives are discussed, together with the far-ranging idea of creating a European civil code. A third question is whether convergence of private law is at all possible. Some have argued that the differences among the 28 private law systems we have in Europe (27 national systems and Scots law) are too large to come to any real convergence. Finally, various other methods to reach (further) convergence of private law in Europe will be considered. Should the European Union continue with the present harmonisation process by issuing European directives or should other methods (also) be used to reach more convergence of law? For instance, such wide-ranging pleas have been made for promoting a European legal science and education and for convergence of law through competition of legal systems.

Convergence; private law; ius commune; comparative law

Abstract:
In this article, it is investigated whether it is possible to predict the evolution of (parts of) national European private law systems toward a uniform private law. In doing so, insights of evolutionary theory, economic analysis of law and (socio)biology are taken into account in what is essentially an interdisciplinary approach toward the evolution of European private law.

European Private Law, Evolution, Comparative Law

Abstract:
This contribution looks into the Proposal for a European directive on consumer rights as published by the European Commission on 8 October 2008. It specifically questions the European Commission's ambition to turn consumer law into an area suited for full harmonization: is it really true that consumer law should be almost exclusively a European competence (as the Commission seems to suggest by proposing maximum harmonization in some important areas of consumer law) and no longer one shared by the EU and the member states? The adoption of the Consumer rights proposal would mean that the national legislatures and courts are no longer competent in setting diverging rules. This far-reaching consequence justifies the question of what is the best level of regulating consumer protection. It is argued that this is dependent on a number of factors and that the Commission's approach to fully harmonise this area because it is consumer protection is not adequate.

Consumer Law, Directive on Consumer Rights, Maximum Harmonisation

Abstract:
This paper focuses on the consequences of the Europeanisation of private law for national legal thinking. It is restricted to a discussion of the consequences of Europeanisation in civil law countries. Discussed are the influence on the plurality of sources of law, systematisation of law, legal reasoning, interpretation and style of legal scholarship.

Comparative Law; Europe; Legal Reasoning;

Abstract:
This paper (based on the author's inaugural address) discusses the liability of the Good Samaritan in European and American private law. Attention is paid to the questions a) whether there is a duty to come to the rescue of people in distress, b) whether damages or fees could be awarded to the Samaritan, and c) whether the Samaritan himself is liable in case he would cause damages in aiding the other party. Building upon this comparative study, it is subseqently investigated what this means for the unification of law in Europe. It is contended that the drafting of principles of European private law is not the right way to proceed. Philosophical and anthropological insights are used to substantiate this thesis. This culminates in a 'praise of diversity' for European private law.

Abstract:
Both the Netherlands and Germany have recently introduced important reforms of their law of obligations. In the Netherlands, the new Civil Code of 1992 reformed the existing private law entirely, while Germany revised its law of obligations extensively in 2002. Both reforms were partly driven by similar motives. This contribution offers a comparison between these two reforms by considering five different points: the motives for re-codification in both countries, the unitary concept of breach of a duty, the right to a second chance to perform, prescription of claims for damages in case of personal injury and the way in which European directives are implemented in German and Dutch private law.

Law of obligations, reform, Dutch Civil Code, BGB

Abstract:
Over the last decade or so, many European countries have seen a growing influence of fundamental rights in contract, tort and property law. This development, sometimes referred to as the 'constitutionalisation' of private law, is often regarded as highly beneficial. It seems after all to be a noble idea to allow fundamental rights to play a role in relationships between private persons. However, the application of universal standards of what is regarded as fair in the relationship between the State and the citizen to private parties can also be looked at with suspicion. The aim of this contribution is to reflect on the desirableness of the constitutionalisation of private law and to show the adverse effects of this development.

private law, fundamental rights

Abstract:
The Draft Common Frame of Reference for a European Private Law (DCFR) suffers from so-called methodological nationalism: the DCFR adopts a view of law and lawmaking developed for national jurisdictions and in doing so, it takes too little into account that what is best at the national level may not be optimal at the European one. The argument is made by reference to three different features of the DCFR: the idea of comprehensive codification, the choice of the relevant rules and the way in which law is represented. It is then argued that the DCFR should be presented in a differentiated way, dependent on whether its function is to create binding rules, offer a source of inspiration for legal scholarship and teaching or to take the first step towards the creation of an optional contract code.

Common Frame of Reference, DCFR, European Private Law, Methodological Nationalism

Abstract:
This contribution offers an overview of Dutch efforts in law reform in Central and Eastern Europe. Apart from the overview that is provided, these efforts are critically assessed. It thus tries to provide empirical materials to evaluate theories on legal transplants.

Comparative Law, Legal Transplants

Abstract:
This paper considers the future of contract law in Europe. With the recent publication of the European Commission's Communication on European Contract Law, the debate on the feasibility and contents of a unified European contract law will probably broaden from a merely academic debate to a political one. The main tenet of this paper is that a proper political perspective on the future of European contract law cannot consist of a 'generalizing approach' such as the formulation and enactment of principles of European contract law. The future of contract law in Europe lies in recognizing tendencies of divergence in the law of contract, rather than in enacting general abstractions. This plea for a fragmented European contract law is preceded by a sketch of the historical development toward a general law of contract.

Contract Law, Harmonisation, Europe

Abstract:
The concept of legal culture plays an important role in the debate about the unification of private law within the European Union. The question whether national cultural differences or differences between the civil law and the common law tradition, in particular, stand in the way of establishing a uniform private law led to a fierce debate. The aim of this contribution is to offer a general account of how we should deal with legal culture in the European context. In doing so, we build upon the work of Geert Hofstede. The point is made that when discussing the Europeanization of private law, we should turn away from national legal cultures and pay more attention to so-called 'cultural segments', legal cultures that are not national but functional in nature and that cross state borders. This is not to say that such an approach can be applied easily: the problems it raises will also be discussed.

legal culture, unification, Hofstede

Abstract:
In this paper, the author discusses one of the options for the future development of European contract law as sketched in the European Commission's Communication on European Contract Law of 2001. It is defended that a uniform contract law for Europe will necessarily be multi-layered and fragmentary. The best way to achieve uniform contract law is by way of an optional code.

European Private Law, Contract Law

Abstract:
This contribution argues that there is no "transnational" concept of human dignity or of public policy. These concepts are essentially local and we should not try to harmonize them by drafting common principles or rules. To substantiate this thesis, the inquiry into the harmonizing effect of human dignity and public policy takes place at four different levels. First, two instruments in the field of international contract law (the PECL and the Unidroit Principles) are considered. Second, some case law of the European Court of Justice (notable the Omega case) is looked at. A third level of inquiry concerns a representative case of the Human Rights Committee of the United Nations (the Wackenheim case). The fourth level of analysis is whether a uniform interpretation of human dignity is likely at the national level. In the absence of one uniform concept of human dignity, one should stop claiming that it could form a barrier against the negative effects of globalization.

Public policy, ordre public, human dignity, human rights, harmonization

Abstract:
Academic legal scholarship increasingly relies on non-normative perspectives. This raises the question what is actually the core of academic legal scholarship and what methodology legal academics should adopt. In this contribution, it is argued that the focus in the present debate should not be on how other disciplines than the law can help us to make the academic study of law more 'scholarly.' Instead, the question should be how the legal approach itself can better match the expectations one has about a truly scholarly discipline of law. To this end, the purpose of normative legal scholarship is redefined.

Legal science, Methodology, Normative approach

Abstract:
This contribution looks at Nordic law in a comparative perspective. It discusses four features of law in Finland, Sweden, Norway and Denmark and considers to what extent these are unique features compared to other European jurisdictions. The four features are: law as a tool for social engineering, the role of the citizen in law making, pragmatism and legal cooperation.

Nordic law, Scandinavia, comparative law, social engineering

Abstract:
This paper investigates to what extent legal transplants can contribute to the emergence of a harmonised private law for the European Union. Its focus is not on the way in which or why legal transplants take place, but on what they lead to. The paper discusses several views on why legal transplants are important and puts forward one particular view of legal harmonisation in which the borrowing of law is of main importance.

Legal transplants, ius commune, harmonisation

Abstract:
The two types of situations discussed in this contribution show how the principle against unjust enrichment interrelates with formation of contract. It is defended that the wish to avoid unjust enrichment plays an important role as a policy factor in cases that are often regarded as contract cases. The situation in which goods are supplied or services are performed without a contract and the case of apparent intention are used to explain this. The contribution shows that in these cases it is the cumulative impact of reliance and enrichment that accounts for obligations coming about. Subsequently, the consequences this may have for the taxonomy of the law of obligations are discussed and a plea is made for the resurgence of a separate category of 'quasi-contract' at the European level to accommodate the cases discussed.

restitution, contracts, comparative law

Abstract:
An important strand of scholarship claims that creating a new European private law (such as the drafting of a Common Frame of Reference for European Private Law) should not primarily be the work of legal scholars, but of politicians and parliaments. Another view would purportedly lead to a lack of democratic legitimacy. This raises the more general question what should be the exact relationship between private law and (national) democracy. This contribution - written in the Festschrift for Anthony Ogus - argues that the relationship between European private law and democracy is often misunderstood. Legitimacy of private law cannot only be established through the national democratic institutions, but also in other ways. The Common Frame of Reference for European Private Law is an important example of this: as a non-binding instrument, it need not fulfill the same requirements as binding law. But also private law in the more traditional sense does not always have to be legitimised at the state level: the democratic functions of law can sometimes be provided by others than the State. The exact conditions under which this is the case still need to be explored.

Democracy, Private Law, Legitimacy

Abstract:
This contribution contains an evaluation of Book VII (Unjustified enrichment) of the Draft Common Frame of Reference (DCFR). It was written as part of the evaluation carried out by the Common Core of European Private Law group in the context of the Joint Network on European Private Law (CoPECL). The explicit aim of this evaluation is to put the black letter rules of the DCFR to the test by applying them to a set of three hypothetical cases. On the basis of this analysis, several criticisms may be made, which we summarize by making three different points. First, the question of taxonomy is discussed. Secondly, it is questioned whether the DCFR fully grasps the function of the law of unjustified enrichment. Finally, we look into the function of the DCFR and what this function brings with it for dealing with restitutionary claims.

Draft Common Frame of Reference, Harmonisation, European private law, Unjustified enrichment