Published by De Gruyter

Volume 1 Issue 1

Issue of European Review of Contract Law

Contents
Journal Overview

July 27, 2005

Editorial

Hugh Collins, Muriel Fabre-Magnan, Stefan Grundmann, Martijn W. Hesselink, Vincenzo Roppo

Page range: 1-2

Abstract

The idea of building a European Contract Law was born in the 1990s. It represents an aspiration for the European Union to construct a harmonised set of principles and standards to govern contractual relations within the Single Market. The building blocks of European Contract Law can be discovered in European Union legislation, comparative enquiries into the similarities and differences between national legal systems, broader international sources of standards, and theoretical reflections on the appropriate principles for governing transactions. The aspiration to build a common legal framework for contracts out of these diverse materials springs in part from the desire to realise the market freedoms on which the European Community was founded, and in part from a deeper search for common European values and principles of social justice that will enhance in economic matters the solidarity of the peoples of Europe.

July 27, 2005

The European Principles in an Integrated World

Ole Lando

Page range: 3-18

Abstract

The article describes a plan to establish a World Code for international non-consumer contracts and deals with the parts of the Code which will cover the general part of the law of contract. The basis of the rules of the Code should be the Principles of European Contract Law and the Unidroit Principles of International Commercial Contracts both of which have borrowed many of their rules from The United Nations Convention on Contracts for the International Sale of Goods (CISG). The article also discusses the structure of this part of the code and the structure of the rules on failure to perform and non-performance (breach) of the contract, the interpretation of the Code and its relationship to national and international mandatory rules.

July 27, 2005

Contract Standards and the Markets in Financial Instruments Directive (MiFID): An Assessment of the Lamfalussy Regulatory Architecture

Guido Ferrarini

Page range: 19-43

Abstract

Rules of conduct, in addition to being part of the regulation of investment intermediaries, operate as contractual standards in the relationships between intermediaries and their clients. In this paper, I critically analyze the provisions of the Markets in Financial Instruments Directive (MiFID) regarding conflicts of interest, suitability of investment services and products, best execution of transactions, and prompt and fair handling of client orders. In addition, I consider the main goals of the Lamfalussy regulatory architecture and argue that the MiFID’s rules of conduct do not satisfy these goals, as they are too detailed and touch upon very technical issues. Also the (draft) implementing measures are too specific and will result in substantial re-regulation. Therefore, rules of conduct have possibly become more uniform in Europe, but also more abstract and rigid, while the scope of contract law has been reduced. Moreover, political compromises have been made on core provisions diminishing their regulatory bite and intrinsic logic. I conclude that the cost paid by EU securities law is substantial in terms of rigidity, complexity and politicization, while the effectiveness of harmonization still needs to be proven.

July 27, 2005

Non-Mandatory Rules in European Contract Law

Martijn W. Hesselink

Page range: 44-86

Abstract

This article examines whether the European Union should enact one or more sets of non-mandatory rules of contract law. In order to be able to answer this question, it examines several perspectives on non-mandatory rules and concludes that there is no decisive merely ‘technical’ answer; the question is political. The article further shows that, in spite of the principle of freedom of contract, many ‘non-mandatory rules’ are de facto mandatory. This leads to the conclusion that, in this respect, there is no categorical difference between mandatory rules and non-mandatory rules. The consequence is, on the one hand, that there is no reason to exclude non-mandatory rules as a category from unification efforts with regard to contract law, whereas, on the other, a political process is necessary with regard to non-mandatory rules which assures that the important political choices are made in a democratic way.

July 27, 2005

Cases and Case Notes

Jacobien W. Rutgers, Giorgio Afferni

Page range: 87-109

July 27, 2005

European Community Legislation and Actions

Stéphanie Pelet, Fabrice Campens

Page range: 110-114

Abstract

European Community Legislation and Actions A – Non-exhaustive list of legislative proposals or acts adopted in 2004 B – Latest developments regarding the European Contract Law initiative C – 2004 Important Proposals For Directives

July 27, 2005

European Social Policy and Contract Law

Hugh Collins

Page range: 115-128

Abstract

European social policy has increasingly sought to regulate the terms of contracts of employment. The methods of this regulation have often been distinctive with respect to the democratic processes leading to regulation, the procedures specified for permitting derogations from mandatory standards, and the wide application of a non-discrimination principle of fairness. It is argued that these regulatory techniques could be usefully employed to regulate some problems in contract law more generally in Europe.

July 27, 2005

Germany and the Schuldrechtsmodernisierung 2002

Stefan Grundmann

Page range: 129-148

Abstract

The Schuldrechtsmodernisierung of 26 November 2001 is probably the largest reform of German codified contract law undertaken for a century. The three substantive law parts of this reform are discussed in this contribution: the new regime on breach of contract, the new regime on limitation, and the new law on sales and works contracts. Reference is made also to a fourth major element, the integration of consumer law into the civil code. It is argued that German law now follows a uniform concept of breach and distinguishes quite convincingly with respect to three major remedies. It is argued, that the reform was quite successful.

July 27, 2005

Other News

Page range: 149-152

Abstract

Conference in Prague on “Standard Contract Terms in Europe” (17–18 June 2005) Conference in Frankfurt/Oder (Germany) on “European Methodologie – fundamental questions of a methodologie in European Private Law“ (3–4 June 2005) Conference in Ferrara (Italy) on “European Contract Law: techniques and values” (10–11 June 2005)

July 27, 2005

Books Received and Book Reviews

Page range: 153-160

Abstract

Comparative Remedies for Breach of Contract. Edited by Nili Cohen and Ewan McKendrick. Hart Publishing, Oxford, 2005. ( John Cartwright ) Towards a European Civil Code. Edited by Arthur Hartkamp, Martijn Hesselink, Ewoud Hondius, Carla Joustra, Edgar du Perron, and Muriel Veldman. Kluwer Law International, Ars Aequi Libri, Nijmegen. Third Fully Revised and Expanded Edition, 2004. ( Bénédicte Fauvarque-Cosson ) Contract Theory. Stephen A. Smith. Oxford University Press, 2004. ( Ruth Sefton-Green )

About this journal

This Journal deals with contract law and serves as a pan-European platform for discussion and analysis. The concept of a European Contract Law is still rather recent: the phrase was first coined in the 1990s. Since the early 2000s when this journal was created, European Contract Law has come to encompass an increasingly comprehensive body of law. There were three driving forces behind this development: the EC harmonisation of laws in the area of the internal market, a generally increased interest in comparative law discussions in contract law, and the European Commission’s Communication on European Contract Law, the Commission’s Action Plan and the Common Frame of Reference process. These developments brought about a changed climate of discussion. The foundations of contract law, examined from many perspectives and in view of various national legal systems and an increasing number of disciplines, are currently being discussed in great detail in the European arena. In 10 years contract law may be the first area of European private law to be regulated in a fully fleshed out European Code.

European Contract Law comprises diverse areas of the law such as sales, standard contract terms, distribution chains, marketing practices, research and development agreements, contract law copyright aspects, financial and investment services contracts, insurance contracts and e-commerce as well as non-discrimination within and beyond labour law and more generally, important aspects of labour contracts and other symbiotic contracts.

The importance and breadth of the field and the methods and questions involved are such that ERCL has established itself as the specialised European journal in this area. Since 2004 the standard of information and discussions on this platform have been consolidated: ERCL discusses the body of law in three sections: articles, case law, and literature on EC Contract Law. This takes place mainly in book reviews and, in addition, contains short sections on the most recent EC legislation, sectoral developments, national developments and other news. The Review focuses on existing law at the EC level and all rules influencing the formation, content and execution of contracts from default rules to regulation, from marketing aspects to the content of contracts, from consumer (and also labour) law to general contract law. The Review is open to a variety of approaches and provides the opportunity to read traditional 'dogmatic' explanations of the upcoming and existing law, assessments through comparative law studies as well as economic analysis and discussions of the philosophical foundations and major structural features. The Review is and has been the site of intense discussion of proposals for codification or, more generally, systemisation and comprehensive development of contract law at the EC level. The European Contract Law Code is too realistic an option and much too important not to be thoroughly discussed as transparently as possible with as many competing ideas and approaches as possible. Several special issues have followed this process in great detail. The journal is meant to help in establishing a functional market of ideas in one of the core areas of private law and one of the most important areas of European private law. ERCL is the journal covering this large body of law and the modern solutions to the problems encountered.