At the beginning of the year, the Draft Common Frame of Reference (DCFR) was published. The text is the result of the work of a broad range of private law scholars from the Member States of the European Union, and it presents itself as an ‘academic’ document, committed to the precepts of scholarship rather than politics. Notwithstanding its unwieldy name, the text is nothing less than the draft of the central components of a European Civil Code. The following article aims (...) to inform the reader about this potentially important document and to initiate further academic debate about it. Following an overview of the genesis and content of the DCFR (Part 1), the discussion focuses on whether, and to what extent, it is based upon consistent and convincing core aims and values (Part 2). The article then proceeds to address, more specifically, the significance of private autonomy, and it examines the extent to which the proposed rules satisfy the requirements of legal certainty and legal clarity (Part 3). Thereafter, the DCFR is measured against the criteria of internal consistency and systematic integrity (Part 4). Also (Part 5) the question is asked whether the Draft critically reflects and convincingly integrates the sources on which it is based (that is the Lando Commission's Principles of European Contract Law and the Acquis Principles, as well as the private law traditions of the Member States). Also deserving of attention is the inclusion of more than 120 definitions of central concepts of private law, which are not to be found in this form or level of detail in either the Lando Principles or the national private laws (Part 6). (shrink)

The article examines how the rules on formation of contract and on mistake, contained in the various transnational model rules that have been published over the past two decades, have taken shape. The approach adopted here is based on an analysis of the ‘textual stratification’ of European private law. The relevant instruments (Convention on Contracts for the International Sale of Goods, Principles of European Contract Law, UNIDROIT Principles of International Commercial Contracts, Draft Common Frame of Reference, Principes contractuels communs) are (...) analysed and compared in their historical sequence. To what extent and why have the texts been transformed in the process? The article demonstrates that there is a very considerable common ground reflecting the state of the art of comparative research in these fields over the past hundred years. It also highlights issues on which consensus must still be reached and it suggests patterns towards reaching such consensus. It is argued that the Principles of European Contract Law, rather than the Draft Common Frame of Reference, should provide the point of departure for future discussions. The scene for the article is set by a critical examination of the concepts of contract and legal act, as used in the Draft Common Frame of Reference. (shrink)

Recent theoretical analysis has exhibited a structural ambiguity in the normative foundation of the tort of negligence, namely uncertainty whether liability is based on the breach of a legal duty or on the responsibility for the victim's loss. This normative ambiguity is due to the fact that the European law of extracontractual liability was conceptually framed for purposes totally different from modern ideas of fair distribution of risks that have historically been connected with rights- based conceptions of tort law. From (...) a comparative point of view it becomes apparent thatdf the idea of protecting individual rights by tortious remedies is constitutive for the modern European law of extracontractual liability, although hidden beyond the dominant terminology of duties, breach and wrong. Thus it is submitted that a rights-based analysis of the law of torts offers a significantly better understanding than traditional duty-models can achieve. (shrink)

The idea that a lost chance could be a harm generating recovery is relevant for cases of unclear causation. This article examines that idea explaining it as being conceptually based on the common linguistic separation between changes and final events. The idea of a lost change establishes changes as legal rights which constitute limits against tracing hypothetical consequences, where it is principally impossible to establish a causal connection between a damaging event and a finally suffered injury or loss. This article (...) claims that both English and German law should generally accept the idea of a lost chance. It aims to show, however, that this is not due to epistemic or logical ('philosophical') reasons, but to normative legal considerations. The idea of a lost chance makes it possible to overcome structural difficulties of the present law which are shown by comparing the similar deficiencies of the totally different German and English legal answers to problematic cases of unclear causation. (shrink)

The article analyses and reconstructs a broad idea of legal responsibility which underlies and normatively links tort law with the law of unjustified enrichment. The article’s central proposition is that responsibility for damage caused and enrichment-responsibility are closely interrelated. Both aspects of obligations are equally an expression of corrective justice, and ultimately serve to protect the civil rights of citizens. It is shown that the idea of civil equality and the principle against unjustified enrichment require citizens to assume responsibility not (...) only for the consequences of their misbehaviour, but also for the consequences of lawful actions that non-reciprocally endanger the rights of others. This can be seen particularly clearly in cases of necessity like Vincent v Lake Erie. Under current law, those cases fall in between the categories of unjustified enrichment and wrongs; in most legal systems, they are therefore regarded as particularly hard cases. Nevertheless, the liability of a person lawfully causing damage in a situation of necessity exemplifies the idea of legal responsibility, and thus helps in better understanding the law of non-contractual obligations. Methodologically, the article combines historical arguments derived from the late scholastic theory of restitution with a comparative analysis of Western legal systems and contemporary private law theory. This approach is designed to overcome the conceptual boundaries of national private laws on both sides of the English Channel; it may help to address difficult legal problems more appropriately. (shrink)