Published since May 1, 2005

European Review of Contract Law

ISSN: 1614-9939

Managing Editor: Stefan Grundmann

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.

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Supplementary Materials

Topics

Volume 19 Issue 1

April 2023

Publicly Available May 3, 2023

Frontmatter

Page range: i-iii

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Articles

Open Access May 3, 2023

Foreign Currency Loans and the Foundations of European Contract Law – A Case for Financial and Contractual Crisis?

Stefan Grundmann, Nikolai Badenhoop

Page range: 1-36

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Abstract

Loans with variable interest rates indexed to foreign currencies carry a double risk for borrowers: a rise of interest rates and an adverse development in the exchange rate. While they therefore could have been forbidden for consumer credit, they are allowed both at EU and (most) national levels. Consumer credit arrangements indexed to foreign currencies that were legal in principle have raised enormous problems when they occurred in large numbers in Eastern and Central European countries and reference was not directly written into the terms (like in Romania), but could change with additional discretionary decisions (such as in Poland and Croatia). While Croatia has introduced special legislation to cure the overall problem, Polish cases are potentially not only causing a systemic risk for the whole banking system, but abundantly are the subject of CJEU case law. This triggers the core interest in contract law, namely an unheard-of relevance in EU law of general and more specific questions of the law of restitution – on the basis of unjust enrichment and/or of damages. This article presents the following five main theses. Firstly, while the Unfair Contract Terms Directive (UCTD) contains too vague a scheme of remedies/sanctions for detailed answers, the overarching benchmark is clear, namely a fair balance of interests and the meeting of justified expectations, which the parties, especially on the consumer side, could have had at the moment when the loan was issued. Secondly, general (EU) principles of unjust enrichment, as well as of damages, are recognised by the CJEU in EU law. They order the restitution of what was gained above the status quo ante, but could not have been acquired on markets even by informed and proper contracting at that time and/or the restitution of losses incurred as compared to the status quo ante. Thirdly, Articles 23 and 24 of the Mortgage Credit Directive (MCD) constitute a suitable model around which a set of claims in unjust enrichment can be shaped and can be applied also to old cases. Fourthly, any windfall profit of borrowers (gain beyond what could have been achieved at the moment of formation of the contract) has to be avoided in the name of fairness and justified expectations – which are recognised in CJEU case law as the two main benchmarks of the regime of sanctions of the UCTD. Finally, a fair restitution regime is reached if the borrower, who had not been properly informed (with the nullified clause), can now make an informed choice between the different offers that were offered on markets when the loan was issued. Thus, he/she could now opt for a loan in either the national currency plus applicable interbank interest rate (in the Polish case Zloty tied to WIBOR) or their foreign currency counterparts (i.e. a loan in CHF tied to LIBOR). Expropriation (of banks) of the loan capital, as well as the possibility to use that capital to generate interest have to be avoided, for penalisation is neither an aim of European contract law nor of the UCTD.

May 3, 2023

The ISDA Master Agreement and the Recognition of a Latent Contractual Network

Matthew Armitage

Page range: 37-56

Abstract

It is argued that contract law has yet to develop a coherent approach for recognising networks. This article uses the International Swaps and Derivatives Association Master Agreement, along with the systems which have been developed around it, as a case study for contractual networks which exist at the peripheries of current conceptions, partially recognised by law but also developing private technological solutions to augment their connectivity.

Publicly Available May 3, 2023

Interpreting Interpretation in Private Law

Leandro Martins Zanitelli

Page range: 57-75

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Abstract

The article addresses the following question: why do we interpret private law? My aim is, first of all, to make use of the theory of interpretation presented by Ronald Dworkin in Justice for Hedgehogs (Dworkin 2011) to emphasize the methodological importance of this issue. Second, the article casts doubt on the thesis that different interpretations of private law – for example, the so-called structuralist interpretations and instrumentalist interpretations such as the economic analysis of law – are rival interpretations. Like Dworkin, I argue that it is our interpretive responsibilities that define whether or not two interpretations of the same object should be treated as rivals. These responsibilities, in turn, are measured in light of the purpose of the interpretation. The interpretation of private law is a peculiar case of legal interpretation because it is not eminently concerned with determining the content of that law. On the other hand, if justification is the point of interpreting private law, then there seems to be no reason why different interpretations should necessarily be interpretations in competition with each other. The justification of private law may depend on a plurality of normative injunctions being met, and the features by which private law satisfies these injunctions can be highlighted sometimes by one interpretation, sometimes by another.

EU Case Law

May 3, 2023

EU Contract Case Law, July – December 2022

Fabrizio Esposito, Lucila de Almeida

Page range: 76-89

Abstract

This article provides an overview of the most relevant cases decided by the Court of Justice of the European Union concerning contract law. The present issue covers the period between the beginning of July 2022 and the end of December 2022. Out of a total of 265 judgments decided in this period, 57 had a contract law dimension.

Book Review

Open Access May 3, 2023

TommasoDallaMassara: Il consenso annichilito, La critica radicale del contratto in Siegmund Schlossmann

Gregor Albers

Page range: 90-101

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Volume 19 (2023)

Issue 1

Volume 18 (2022)

Volume 17 (2021)

Volume 16 (2020)

Volume 15 (2019)

Volume 14 (2018)

Volume 13 (2017)

Volume 12 (2016)

Volume 11 (2015)

Volume 10 (2014)

Volume 9 (2013)

Volume 8 (2012)

Volume 7 (2011)

Volume 6 (2010)

Volume 5 (2009)

Volume 4 (2008)

Volume 3 (2007)

Volume 2 (2006)

Volume 1 (2005)

European Reference Index for the Humanities

Submit

All contributions must be submitted in the European Review of Contract Law house style. The Editors will be happy to discuss proposed contributions and drafts with contributors.

General

Contributions should be double spaced and with a 2.54 cm (one-inch) margin on both sides of the page. Contributions must be submitted in English, German, or French. They should be accompanied by an abstract in English of 100-150 words in length. German authors should hand in also an abstract in German language, French authors also in French. The length of articles should not exceed 8,000 words, the length of reports (sectoral and national) 5,000 words, the Case Notes 3,000 to 3,500 words including abstract (applicable to articles and reports) and footnotes. No table of contents will be published not even in articles; it therefore is not needed.

Authors should submit their contribution as an attachment to an email addressed to:

schreiter@rewi.hu-berlin.de

The author’s name should appear under the title, and should be asterisked, with the author’s designation - in all contributions - just above the footnotes.

Guidelines Style Sheet
Special Requirements for Case Notes

Hybrid Open Access

In this journal, authors have the option to publish their article under an open access license. Open Access allows you as an author to retain copyright and share your findings with colleagues and interested parties worldwide without any restraints.
Please note that authors from institutions with which we have a transformative agreement can publish open access without paying an article processing charge (APC). More information on the eligible institutions and articles can be found　under the "Funding and Support" tab here.

Editorial

Managing Editor

Prof. Stefan Grundmann, LL.M. (Berkeley), Humboldt-Universität zu Berlin (Germany)

Managing Board

Prof. Hugh Collins, London School of Economics and Political Science (London, United Kingdom)
Dr. Mateja Durovic, King’s College London (London, United Kingdom)
Prof. Fernando Gómez Pomar, Universitat Pompeu Fabra (Barcelona, Spain)
Prof. Julie Klein, Paris Sciences Po (Paris, France)
Prof. Jacobien W. Rutgers, Vrije Universiteit Amsterdam (Amsterdam, The Netherlands)
Prof. Pietro Sirena, Bocconi University (Milan, Italy)

Consulting Board

Prof. Avv. Guido Alpa, Università di Roma La Sapienza (Rome, Italy)
Prof. Esther Arroyo, Universitat de Barcelona (Barcelona, Spain)
Prof. Em. Hugh Gurney Beale, School of Law - University of Warwick (Warwick, United Kingdom)
Prof. Rui Dias, University of Coimbra (Coimbra, Portugal)
Prof. Fabrizio Esposito, Assistant Professor of Private Law, NOVA School of Law (Lisbon, Portugal)
Prof. Muriel Fabre-Magnan, Université Paris 1 Panthéon-Sorbonne (Paris, France)
Prof. Vincent Forray, Paris Sciences Po (Paris, France)
Prof. Em. Daniel Friedmann, LL.M. (Harvard), The Buchmann Faculty of Law – Tel Aviv University (Tel Aviv, Israel)
Prof. James R. Gordley, Tulane University (New Orleans, United States of America)
Prof. Mateusz Grochowski, LL.M. (Yale), Max-Planck-Institute for Comparative and International Private Law (Hamburg, Germany)
Prof. Aristides Hatzis, National and Kappodistrian University of Athens (Athens, Greece)
Prof. Johnny Herre, Justice at the Swedish Supreme Court (Stockholm, Sweden)
Prof. Christophe Jamin, Paris Sciences Po (Paris, France)Prof. Dr. iur. Antonios Karampatzos, National and Kapodistrian University of Athens (Athens, Greece)
Prof. Dorota Leczykiewicz, Associate Professor of Law, Oxford University (Oxford, United Kingdom)
Prof. Margarida　Lima　Rego, NOVA School of Law (Lisbon, Portugal)
Prof. Brigitta Lurger, LL.M. (Harvard), Universität Graz (Graz, Austria)
Prof. Florencia Marotta-Wurgler, New York University School of Law (New York, USA)
Prof. Ugo Mattei, Università degli Studi di Torino (Turin, Italy)
Prof. Denis Mazeaud, Université Panthéon-Assas (Paris, France)
Prof. Francesco Paolo Patti, Bocconi University (Milan, Italy)
Prof. Karl Riesenhuber, M.C.J., Ruhr-Universität Bochum (Bochum, Germany)
Prof. Martin Schauer, Universität Wien (Vienna, Austria)
Prof. Karin Sein, University of Tartu (Tartu, Estonia)
Prof. Em. Lajos Vékás, Eötvös Loránd University (Budapest, Hungary)
Prof. Em. Stephen R. Weatherill, University of Oxford (Oxford, United Kingdom)
Prof. Thomas Wilhelmsson, University of Helsinki (Helsinki, Finland)

(Deutsch)

Online ISSN: 1614-9939
Print ISSN: 1614-9920
Type: Journal
Language: English
Publisher: De Gruyter
First published: May 1, 2005
Publication Frequency: 4 Issues per Year