Contract Law in the European Union: Convergence or Not?
Sammelband 4. Europäischer Juristentag, Wien 2008 pp. 45-65
TICOM Working Paper Series on Comparative and Transnational Law No. 2008/1
21 Pages Posted: 13 May 2008 Last revised: 25 May 2015
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.
Keywords: Measuring convergence, private law, European harmonisation, breach of contract, prescription
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