Lloyd's Maritime and Commercial Law Quarterly


PRINCIPLES, DEFINITIONS AND MODEL RULES OF EUROPEAN PRIVATE LAW: Draft Common Frame of Reference (DCFR): Interim Outline Edition. Edited by Christian von Bar, Eric Clive, and Hans Schulte-Nölke. Sellier, Munich (2008) v and 346 pp, plus 50 pp Index. Paperback9.90.
No doubt there have always been people beavering away in institutes and attics, devising new codes of law for the day they become autocrat. There is nothing necessarily wrong with that: from Hammurabi to Napoleon the urge to codify has proved irresistible, and not just to maniacs. Now we have another, a Draft Code for the private law of Europe. Such a text has been published by Sellier. This is the one unmixed blessing to which this reviewer is happy to bear witness: Sellier is a German house which produces books which look and feel wonderful, and at a price which, even for a work in progress and which will have a limited shelf life, is uniquely honest. This compact paperback sets out a draft civil code, together with an illuminating introductory essay. The Draft has the ambition of being comprehensive for the territory which it covers. It states a law of contract (general part and specific contracts), tort, and unjust enrichment. It structures itself in the style of Book-Chapter-Section-Subsection: an obsessive-compulsive ordering so beloved of codifiers. It is as far removed from the common law as it is possible for law to be.
The Draft was prepared by the soi-disant Study Group on a European Civil Code and the Research Group on EC Private Law. A substantial part is expressed, as must be inevitable, at the level of platitude and generality: according to the Introduction (at 9), it comprises “principles, definitions and model rules”. It is replete with the principles and demands of proportionality, appropriateness, good faith and fair dealing, and (more disconcertingly) “solidarity and social responsibility”. One or two sections will raise the odd eyebrow. The “Book on Benevolent Intervention” (at 33) turns out, when you reach it in Book V, to have nothing to do with acts of God. A little further on, Book VI, which is entitled “Non-contractual liability arising out of damage caused to another”, which seems to mean torts, proposes to enact a rule to deal with “Damage caused by a criminal to a collaborator” (at 313). No doubt Europe is wise to be prepared for such eventualities. Naturally, and ominously, the very first page of the Draft states that “these rules are to be interpreted and developed autonomously and in accordance with their objectives”. Some of us will have heard that before.
Where did it come from, and where is it going?
The answer to the former question lies in the assertion in para 7 of the Introduction, that the text which has been thrashed out will help reveal that national private laws are “regional manifestations of an overall common European legacy”. No doubt the duties to keep your promises, not tell lies, pay for what you break, and give it back if you have no right to keep it, are part of a common European legacy; but, at any level other than the banal, this is not a useful truth. In the Introduction the Editors, commendably, discuss the extent to which an obligation to deal in good faith is inveterate, or implicit unless positively excluded, or inapplicable unless drafted in particularized detail. In doing so, they are not unaware that the common law’s view of every man being for himself is at fundamental odds with systems which claim to start from the opposite point of view. No doubt comparative lawyers do this sort of thing all the time. They may go on to inform us that our law, like M. Jourdain, has been respecting the principles of solidarity and social responsibility, without realizing it, for more than 40 years. But they do not then generally go on to draft codes and to claim


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