Sleutel tot succes: het 28ste stelsel van contractenrecht als sociale norm (Choosing an Optional Instrument and the Use of Social Norms)

Abstract

This paper applauds the prevalence of an optional instrument for a European contract law as the preferred policy option above the other possibilities mentioned in the Green paper on policy options for a European contract law (COM(2010) 348). Nonetheless, the author questions the wisdom of a likely limited scope of application of this optional instrument. Opting for an instrument which solely covers cross-border contracts and domestically leaving contract law untouched may indeed encounter little resistance, yet it is highly doubtful whether this approach provides sufficient substance in order for the optional instrument to be elected.

The fate of an optional instrument is by nature dependent on the legal practice it peruses to govern. As such it is left to the market to decide on the application of the optional instrument. Contracting parties will only opt in when the optional instrument has gained the status of a social norm. Therefore, a substantively high legislative quality and the promotion of the European philosophy are essential factors in order for this development to take place. However, instead of utilizing the power of the European ideal for free and equally unrestricted international and national trade, the above mentioned limited optional instrument will in fact undermine the intended implementation of that philosophy.

Note: Downloadable document is in Dutch.

Keywords: K12

JEL Classification: european contract law, DCFR, optional instrument, green paper