'A European Civil Code in All But Name': Discussing the Nature and Purposes of the Draft Common Frame of Reference
Cambridge Law Journal (CLJ), Vol. 69, No. 1, pp. 98-112, March 2010
Posted: 17 Sep 2010 Last revised: 31 Aug 2012
Date Written: March 1, 2010
This contribution critically examines the assertion that the Draft Common Frame of Reference has a (primarily) academic, non-political character and that, essentially, it merely serves to “restate” what is generally recognized anyway in the national legal systems in Europe. This assertion, on the part of some of the draftsmen of the Draft Common Frame of Reference, attempts to play down the potential impact of a document that is in reality designed to establish a kind of conceptual and definitional sovereignty in European private law: for it claims to be an authoritative text in the form of a non-legislative codification.
If, then, the DCFR is to be regarded as a political document, this is due also to a proximity of that project to the political actors hitherto hardly imaginable. That has repeatedly been emphasized even by those participating in the preparation of the DCFR, but it is concealed by the assertion that the scholarly and political agendas are strictly separated.
What need to be established is, on the one hand, whether lawyers in Europe are prepared to accept a systematic body of legal rules, drafted on the model of a codification, as a text of reference carrying an authority similar to that of the American Restatements. On the other hand it has to be debated whether the European bodies responsible for legislation should endorse or adopt the draft as a “political” CFR, or as an optional code. Those discussions can no longer revolve around individual rules, concepts, doctrinal arguments, or even individual parts of the DCFR, after it has found its definitive form as a rigidly systematized, non-legislative codification of patrimonial law in Europe. The European legal community has to recognize this and to point out the deficits that militate against an application of the DCFR, in whatever form.
Availability of the full-text paper:
The Cambridge Law Journal, Vol. 69, Issue 1, pp. 98-112, March 2010 (doi:10.1017/S000819731000019X). Copyright © Cambridge Law Journal and Contributors 2010
Keywords: codification, Draft Common Frame of Reference, European legal scholarship, patrimonial law, Principles of European Contract Law, restatement, system
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