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ISSN: 0928-9801
ID: 399181

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ISSN: 0928-9801
ID: 399190

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ISSN: 0928-9801
ID: 399191

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ISSN: 0928-9801
ID: 399192

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ISSN: 0928-9801
ID: 399193

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ISSN: 0928-9801
ID: 399194

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ISSN: 0928-9801
ID: 399195

When a debtor is notified by a bailiff that his creditors' claim is seized, Belgian law imposes several obligations on that debtor. From the time at which the act of seizure was received, the debtor of the seized claim cannot deliver or pay any longer or can be declared debtor of the seizing party himself (art. 1451 Belgian Judiciary Code). Further, he is obliged to make, within 15 days, a declaration specifying the seized sums or goods (art. 1452 Belgian Judiciary Code). These different effects do not necessarily come into force at the same moment. Although the period of 15 days for the obligation to make a declaration runs from the moment the seizure was notified, the debtor cannot be declared debtor himself because he paid or delivered despite the seizure, unless at the time he did so he knew or should have known the act of seizure.

This decision gives us the occasion to comment on the rules on the effects of notice in general, especially under Belgian, Greek, Dutch and English law.

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ISSN: 0928-9801
ID: 399196

The Océano Grupo Editorial is the first case referred to the European Court of Justice for a preliminary ruling regarding the interpretation of the Council Directive 93/13/EEC on unfair terms in consumer contracts (OJ 1993 L 95, p.29). The request for a preliminary ruling was made by a Court of First Instance in Barcelona.

The proceedings before the Spanish Court concerned the payment of sums due under the sale contracts concluded between the companies (plaintiffs) and a number of buyers (defendants). Each of the defendants, who all were Spanish residents, had entered into a contract for the purchase by installments of an encyclopaedia for personal use. The contracts contained a term conferring jurisdiction on the courts in Barcelona, a city where the plaintiffs had their principal place of business but in which none of the defendants was domiciled. When the defendants did not pay the sums due on the agreed days, the sellers brought actions before the courts in Barcelona in accordance with the jurisdiction clauses. The judge of the Court of First Instance in Barcelona emphasized that the Tribunal Supremo has held jurisdiction clauses of the kind at issue to be unfair. However, the Court was less confident on the question — and therefore it addressed it to the ECJ — whether the scope of the Directive on unfair terms is such that the national court may determine of its own motion whether a term of a contract is unfair when making its preliminary assessment as to whether a claim should be allowed to proceed before the courts.

First, the ECJ regarded the jurisdiction clause of the kind at issue to be unfair within the meaning of article 3 of the Directive. Secondly, as to the aim of article 6 of the Directive, which requires Member States to lay down that unfair terms are not binding on the consumer, the ECJ argued that such aim would not be achieved if the consumer were himself obliged to raise the unfair nature of such terms. Thus, the ECJ held that the protection provided for consumers by the Directive on unfair terms entails the national court being able to determine of its own motion whether a term of a contract before it is unfair when making its preliminary assessment as to whether a claim should be allowed to proceed before the national courts. In particular, the requirement for an interpretation in conformity with the Directive required the national court to favour the interpretation that would allow it to decline of its own motion the jurisdiction conferred on it by virtue of an unfair term.

The case has also been reported in the Common Market Law Review, 38:719–737, 2001, with a note by Jules Stuyck.

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ISSN: 0928-9801
ID: 399200

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ISSN: 0928-9801
ID: 399206

This joint response of the Commission on European Contract Law and the Study Group on a European Civil Code to the European Commission's Communication on European Contract Law outlines the difficulties confronting businesses and consumers in ascertaining foreign private law and the economic ramifications of legal diversity for the EU internal market. It demonstrates the limitations of freedom of choice of law and private autonomy and identifies inescapable distortions of competition. Considering the inextricable relevance of non-contractual liability and matters of property law, the response urges that measures in the field of contract law be contemplated only as part of a broad systematic view of European patrimonial law.

To overcome manifest problems of legal diversity, the joint response rejects leaving further development to market forces (Option I). Endorsing Option II, it advocates further work in formulating Principles of European patrimonial law of the type which the Commission has published and the Study Group is extending — both for their own sake as 'soft law' and as a pre-requisite for possible future legislation. Improving the quality of existing Community law (Option III) is considered desirable, but inadequate as a self-standing objective. The response concludes with a potential phased plan towards harmonising core areas of private law (Option IV).

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ISSN: 0928-9801
ID: 408350

In the political context, the Communication from the Commission lies at the intersection of three converging tendencies of development: the ambitions on the part of the European Parliament concerning the harmonization of Private Law; the increasing amount of academic preparatory work; and the impetus provided by the European Council in Tampere. The underlying question of the Communication is whether — in the light of the current degree of harmonization of European Contract LAw — there are still problems despite, or due to, the selective approach to harmonization that might call for a new approach. Areas where problems could occur concern the proper functioning of the Internal Market and the uniform application of Community law. The Communication raises four options for discussion. First, the solution is left to the market. The second option envisages the development of common principles that can be used as non-binding guidelines for contracting parties, national courts, arbitrators, and national legislators. The third option consists of revising the existing acquis communautaire. The fourth option devises the adoption of a new instrument at the EC level, where three criteria can be combined: the nature of the act to be adopted, the relationship with national law, and applicability by way of choice of law or automatically.

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ISSN: 0928-9801
ID: 408351

The Arkin case demonstrates that the principles applicable to limitation periods in a domestic legal system cannot necessarily be applied to actions arising under European law, even where these actions are brought in the domestic courts. A more sophisticated approach is needed, which will take into account the particular type of action and the particular remedy sought.

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ISSN: 0928-9801
ID: 408353

The meaning, function and desirable scope of good faith in contractual performance is one of the most pervasive problems of European as well as American contract law. Yet, the discussion seems to be locked into a set of inescapable dilemmas which frequently reappear as a typical, but unsatisfactory part of academic contributions and judicial opinions; namely, the controversies between an individualist ethics of freedom of contract and the opposing altruist value of interpersonal responsibility, between the danger of judicial arbitrariness and the demand for equitable flexibility, and, finally, between the legitimacy of judicial law making and the insistence on judicial restraint. This article attempts to show a pattern behind this structure, consisting of a relatively small set of typical arguments which appear in ordered pairs of diametrical oppositions such as those mentioned above. This suggests that good faith language is much less tailored to context and much more dependent on a preexistent structure of stereotyped arguments than it usually appears in the practice of legal discourse. This insight implies a new assessment of the cogency of argument patterns deployed in theoretical and doctrinal statements on good faith.

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ISSN: 0928-9801
ID: 408367

The ruling of the BGH was based on the following facts. In 1986 the claimant received several securities from the father of both litigating parties. Their father had a power of disposal over the claimant's bank account and the securities deposit, respectively. In 1994 the father — in agreement with Defendant, being the claimant's sister — arranged for a transfer of the securities to Defendant's deposit. The claimant argued that his father has thus abused the power of authority conferred upon him. Defendant allegedly knew of the ultra vires nature of this action. In addition, the transfer of the securities had fiduciary effect only. Defendant disputed that the securities were part of the claimant's property. Also, she argued that she was not aware that they were transferred from the claimant's deposit. From her point of view, the transaction was a gratuitous grant originating from her father's property.

The District Court ruled in favour of the claimant; whereas the Court of Appeals dismissed the action. The ensuing appeal to the BGH brought by the claimant resulted in a reversal of the latter ruling and the case was subsequently referred back to the Court of Appeals.

In this case, the BGH discussed the relevant provisions contained in the law of unjust enrichment. Art 816 para. 1 2nd sentence BGB was held not to be applicable since the element of disposal by an unauthorized person was missing. Then, the BGH considered Art 812 para. 1 1st sentence ('on account of the claimant') as a basis for holding the claimant accountable, the requirements of which are prima facie complied with:

The securities were part of the claimant's property; the excess of authority was met by the gratuitous disposal effected by the authorized person, i.e. the father. Both elements do not amount to a justification for keeping the securities in question in the meaning of Art 812 para. 1 1st sentence. It is, however, of the essence how the transfer of securities to Defendant is to be qualified (for instance, as a benefit/performance by the father to Defendant; cf. principle of priority of the Leistungskondiktion).

This assessment, in turn, depends on various other circumstances (such as the expectations of the parties involved; the viewpoint of the beneficiary, etc.) in respect of which the Court of Appeals has not yet asserted the necessary facts.

The following case note discusses the decision by the BGH in the light of Belgian, Dutch, Italian, and Greek Law.

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ISSN: 0928-9801
ID: 408373

In his decision of the 26 October 1999 the French "Cour de cassation" held that after an assignment of a guaranteed claim, the new creditor is not allowed to ask performance of the original guarantor. This decision was based on article 2015 of the French Civil Code: a guarantor can only be liable for the transferred guaranteed claim when he explictly agreed to do so.

The case is annotated from the perspective of Belgian, Portuguese and Greek law.

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ISSN: 0928-9801
ID: 408375

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ISSN: 0928-9801
ID: 392855

This article contemplates a new European tort law, based on entirely new, reformed common princinples and not a conceptual amalgamation of the common or not so common principles of existing national laws in the EU. It starts with discussion of the arguments for and against a common European tort law. Then the article addresses the question of how this new law should be created. It proposes five new liability principles as anchors of liability, with examples of how they should work. And it suggests a method similar to that of the American restatements, with the creation of a European Law Institute, for the production and promotion of a uniform text of European Tort Law.

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ISSN: 0928-9801
ID: 5091679

In November 2001 the Convention on Interests in Mobile Equipment (CIME) and the Aircraft Equipment Protocol (AEP) have been concluded. The CIME is a framework convention incorporating general provisions. The regime relates only to certain categories of mobile equipment, which are defined in separate protocols. The AEP is the first protocol that has been introduced. It relates exclusively to aircraft, aircraft engines and helicopters. The Railway Rolling Stock Protocol and Space Assets Protocol are to follow in due course. Furthermore, protocols for oilrigs, containers and trucks may follow. The CIME/AEP is an ambitious project from a legal point of view. This document contains uniform substantive provisions relating to property law. Furthermore, it introduces rules in respect of the enforcement and priority of interests in aircraft objects in case of and outside the bankruptcy of the debtor. Previous attempts at codifying these areas of the law at the international level have been unsuccessful. Particularly, the complexity and diversity of European property rights account for this fact. The creation of uniform law regarding security interests in movables requires by far the most drastic change in European national laws. The past has proved how extremely difficult it is to transcend the parochialism that exists in the property regimes of European states. The CIME/AEP provides for the creation of an international interest. Furthermore, the convention establishes an International Registry at which an international interest may be entered. Additionally the CIME/AEP regime lays down the remedies of the holder of an international interest. Following international registration, and depending on its priority status the holder can exercise its international interest in respect of the debtor in any contracting state. Finally, the CIME provides that a Regional Economic Integration Organisation also may sign it. Consequently, if the European Union accepts the convention, it has the rights and obligations of a contracting state.

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ISSN: 0928-9801
ID: 5091680

Before the coming into force of the Treaty of Amsterdam, the cooperation in civil and judicial matters was realized under the institutional framework of the third pillar and particularly via the classical type of international conventions/ treaties concluded between the Member States. Article 65 of the Treaty of Amsterdam transferred part of the cooperation in civil and judicial matters from the third to the first pillar, which consequently led to the adoption of first pillar legal instruments in this field. In the current article, we aim at drawing the present picture of external competences of the European Community and the Member States regarding the cooperation in civil and judicial matters among themselves, but most importantly with third non-Member States. The case law of the European Court of Justice has established certain criteria regarding the exclusive character of the external competences of the Community. For the moment, however, the solutions adopted by the Community organs in the area of cooperation in civil and judicial matters from the point of view of external competences seem to be frequently inconsistent. The perspective of an international convention, a multinational instrument dealing with matters of civil and judicial cooperation just like secondary EC law highlights the perplexity of the questions concerning the sharing of competences between the Member States and the Community. In this new — apparently vague — legal environment, the definition of the role and significance of classical private international law rules needs to be systematically elaborated.

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ISSN: 0928-9801
ID: 5091681

The prevalence of visual representations of legal ideas in accounts of the “Common Core of European Law” at Trento (Italy) serves to fix lawyers' attention on law-as-shape rather than law-as-word, as the shape or representation explains the legal idea in a way that words alone cannot. This recognition of the viability of non-verbal communication in law suggests that Trento scholars view the law of the common core, notwithstanding the choice of English for its language of expression, as fundamentally meta-linguistic. Indeed the Trento project, which involves scholars who typically work in the broad range of languages most generally associated with the formal expression of their own national law, appears to have adopted the idea that law has no necessary relationship with the words or the language ordinarily used to give it expression as a working postulate. The dynamic established between law and language at Trento demonstrates — obliquely but assuredly — that law and language can be disconnected: that the common law tradition, for example, has no natural or necessary relationship with English that confines it to that language any more than the civil law in the French tradition is bound up in some hexagonal linguistic form or Parisian idiom. Moreover it should also ground the view that the law of the common core — assuming such a category exists — belongs to all the languages of Europe and to none of them.

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ISSN: 0928-9801
ID: 5091682

The BGH based its ruling on the following facts: the defendant manufactured high-quality garden furniture and wooden fences. He used the plaintiff's products for the coating process since 1987. In the beginning, the varnishing took place in Denmark. In the wake of problems that occurred in 1988 when using varnish of other producers for the coating process, the defendant asked the plaintiff for advice. Early in 1989, she asked for further advice, when she had decided to build an own varnishing plant, which she subsequently acquired for 500.000 DEM. Later on, the defendant's products were refined by using — amongst others — plaintiff's varnish. As complaints about the quality of the varnish arose, an expert examined the varnishing process. In 1992 he concluded that the process recommended by the plaintiff was unfit. The plaintiff sued for payment of the delivery of varnish; the defendant invoked set-off with damages and filed a counter-claim.

At the heart of the dispute is the following question: under which requirements does an independent advice contract come into existence, that is next to the seller's secondary duties to advise as a result of a sales contract? Which period of limitation is therefore applicable: the general one of § 195 BGB, or the shorter, sales-specific one in § 477 BGB? In this case, the BGH ruled in favour of a separate advice contract by arguing that this is justified in exceptional circumstances, i.e. if the activity of advice exceeds by far the scope of the regular secondary duties to advise in sales contracts, taking into account the content, scope, intensity and significance of the advice for the buyer. The authors of the following case notes analyse this decision from the Austrian and the Spanish point of view.

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ISSN: 0928-9801
ID: 5091683

The BGH based its ruling on the following facts: the plaintiff bought land from the defendant in a notary contract dating 10/07/1992. The defendant was represented by an agent without power of agency, who previously had bought the piece of land from a third party in the name of the defendant, but also without power of authority, in contract dating 15/04/1992. Then the defendant approved the sales contract with the plaintiff; he did, however, not approve the previous transaction. As a result, he could not transfer property in the land to the plaintiff. The latter incurred expenses for the notary and the Court in the course of concluding the contract. In addition, he had to consult a lawyer in order to ask for legal advice concerning the non-performance of the sales contract. The first Court ruled in his favour, the Court of Appeal reversed the decision. The plaintiff's appeal at the BGH proved successful: the buyer can ask for compensation for expenses incurred that are rendered futile by the seller's non-performance of the contract if these expenses would have resulted in a counter-value in the case of performance, a condition which is governed by a — rebuttable — presumption (‘presumption of profitability’).

In another case (BGH NJW 1993, 2527), the BGH held that this presumption, in relation to a pending transaction, was rebutted since expenses were incurred despite the fact that the other party was entitled to terminate the contract. The present case is, however, different in that the transaction ceased to be pending as soon as the contract was approved of. Only then did the defendant refuse to perform for reasons outside the parties' relationship. In the following case notes, the authors will analyse this decision from the Austrian and Spanish point of view.

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ISSN: 0928-9801
ID: 5091684

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ISSN: 0928-9801
ID: 5091747

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ISSN: 0928-9801
ID: 5091685

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ISSN: 0928-9801
ID: 392867

The subject of security over movable property is rightly seen as belonging to the core of activities dealing with the harmonisation and unification of European private law. The current differences in the laws of Member States of the European Union inhibit the free movement of capital and delay the completion of the internal market. English law is widely considered as sympathetic to secured credit and has therefore facilitating the making of loans to industry and commerce. In this article, the author emphasises the ease and simplicity with which a creditor can take security, drawing attention to the celebrated floating charge. He points to the current failure of English law to subscribe to the functional policies underpinning article 9 of the American Uniform Commercial Code (so influential in the model law drafted for the European Bank for Reconstruction and Development). Finally, he draws attention to the way English law focuses on freedom of contract between secured creditor and debtor, refusing to take account of distributional (or third party) considerations. Change, however, is in the air. The Privy Council has recently imposed controls over the taking of fixed security and the creditor's self-help remedies are under threat from proposed legislative change.

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ISSN: 0928-9801
ID: 5096730

The following paper will deal with the question of whether a spouse who grants a security for the business debts of the other spouse can escape liability because he or she has not been properly advised by the creditor. After an introduction into this topic (1), I will outline the legal position in English, Scots and German law (2). As for English and Scots Law, I will focus on the decisions of the House of Lords in Barclays Bank plc. v. O'Brien and Smith v. Bank of Scotland, and, as for German law, I will deal with the reasoning of a duty to advise and the decisions of the Bundesgerichtshof (German Supreme Court). In the second part of this essay the similarities and differences of these legal systems will be compared and interpreted (3). In particular, I will consider the practical results as well as the existing and lacking legal concepts of each legal system. In the last part I will expound my own opinion (4). In this context, it will be discussed whether the principles of good faith and culpa in contrahendo are sound and whether a duty to advise keeps the balance between the interests of guarantors and creditors. As a result, it is submitted that the answer to these questions is in the affirmative.

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ISSN: 0928-9801
ID: 5096732

The judgment of 1 December 1999 by the Court of Cassation relates to the responsibility of organisers of sport events, and more precisely, to that of users of go-cart circuits. This responsibility was relied upon by a go-cart driver who suffered an accident on a circuit of this type.

The judgment is classic in its principle: the Court of Cassation rules that organisers of sport activities have to guarantee the security of participants. However, this security obligation is limited to an “obligation of means”. Thus, the organiser is only liable in case of defective means. Participants of this dangerous sport are supposed to have accepted its risks; that is why they cannot expect from the organiser to offer an absolute guarantee of safety. Moreover, as participants play an active role in the sport activity, they introduce an uncertain external factor into the organiser's security obligation: their own behaviour. The consequences are nevertheless potentially serious for the participant, because the participant is not entitled to compensation if the organiser cannot be proven to have been at fault. Only a very rigorous interpretation of the obligation of cautiousness and surveillance on the part of the organiser can avoid this result.

The judgment, being further proof of the difficulties arising from the distinction between obligation of means and obligation of result, is analysed in the following comments from the point of view of Austrian, Scottish and Spanish law.

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ISSN: 0928-9801
ID: 5096733

The decision of the BGH was based on the following facts: The claimant made a living as an ‘heir locator’. Following an advertisement published in the Bundesanzeiger on behalf of the probate court inviting the heirs of an estate to make themselves known, the claimant identified the defendant and his sister as the deceased's intestate successors. He indicated this to the defendant and offered to make full disclosure to him of the particulars of the estate after conclusion of an agreement for a fee of 20 per cent of the inheritance due to him plus VAT. The defendant refused the contract offered and himself traced the inheritance on the basis of the information provided by the claimant; he obtained assets amounting to almost 50,000 Euro as a result. In his action the claimant demanded payment of 20 per cent of that sum plus VAT. The claim failed, both before the Landgericht and the Oberlandesgericht as well as before the BGH.

In its reasoning the BGH indicated that the claim to a fee could not be based on a right arising in negotiorum gestio under §§ 683, 670 BGB or §§ 684, 812 BGB. Admittedly the location of an heir could constitute an undertaking which was also in another's interest, and the matter would turn on whether the factual presumption of an intention to manage another's affairs (equally applicable to an undertaking which was also in another's interest) was rebutted. That way of formulating the issue, however, would misconceive the approach to the allocation of risk which should follow from the principles of private law, and in affirming the presence of an intention to manage another's affairs would lead to results which would not be intrinsically appropriate and would not do justice to the interests in focus. In the first place, it is the preparation and opening of negotiations which is in issue. The heir locator intended to ‘sell’ the information he had uncovered and thus carried the risk that the negotiations might fail. According to the rules of private law one's own preliminary expenditure should remain unrecompensed. The fact that the claimant had in part already conveyed his results to the heir does not change anything: there is no obligation to provide recompense for unsolicited communication of information; a consideration for that service is payable solely on a contractual basis. Secondly, the acceptance of a negotiorum gestio would lead to the unfair result that were multiple heir locators to operate independently of one another the heir would see himself burdened with claims from all of those tracing him and his estate and, though notified by the first of them, would not be able in relation to the others to rely on the fact of his prior knowledge — as is the case with multiple brokers.

The following contributions examine the decision from the perspective of Austrian, Portuguese, Spanish and English and Irish law.

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ISSN: 0928-9801
ID: 5096734

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ISSN: 0928-9801
ID: 5096735

The European Court of Justice annulled the Tobacco Advertising Directive because it could not be justified as an internal market measure. This article contrasts that decision with a couple of US Supreme Court cases that also struck down laws that had been enacted under their Commerce Clause. The approaches of the courts are compared. The different political contexts are noted and in particular comment is made of the fact that the US federal government is subject to greater direct democratic controls that the Community legislators might favour a more relaxed approach from their courts. In Europe the lack of accountability means that the Court is right to be vigilant on the use of powers, but it should be careful not to become too interventionist. Europe has a young and flexible constitution, which should be amended to give clearer powers in social policy areas where Community activity is seen as desirable rather than these policies having to be treated as internal market measures.

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ISSN: 0928-9801
ID: 5103415

The Spanish Civil Code of 1889, in keeping with the liberal ideas of the period, refrained from legislating on the principle of preferential acquisition. However, some pre-emption rights have survived in certain regional laws, in spite of severe criticism, which proposed its restriction or even its abolition. This study tries to show that those rights, still existing in the Civil Codes of Aragon, Catalonia, Navarre and the Basque country, serve a social function that deserves to be protected. In 1951 the Swiss legislator integrated a similar right, the parental pre-emption right (reformed in 1991). We analyse the similarities and differences between this institution and their Spanish counterparts and assess their importance in our time.

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ISSN: 0928-9801
ID: 5103416

The communitarisation of judicial cooperation in civil matters by the Treaty of Amsterdam marks a new epoch in the unification of law in Europe. The European law of conflict of jurisdictions is affected by this, too. On 1 March 2002 Council Regulation (EC) No. 44/2001 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters entered into force, thus replacing the European Convention of 27 September 1968 (the so-called Brussels Convention). However, the “re-enactment” of the Brussels Convention as a Community regulation is only the first move towards a profound change in the European law system of recognition, a change aimed at the abolition of the exequatur. In accordance with the principle of mutual recognition the objective is to create “freedom of movement for judgments” between the EU Member States (I).

First this paper presents the procedure of recognition and enforcement of foreign judgments under the Brussels Convention as well as the modifications introduced by the new regulation (II), focussing on the catalogue of defences to recognition in article 27 of the Brussels Convention, which until now have had to be controlled ex officio by the judge responsible for the recognition of proceedings. Under the new regulation the test of defences to recognition is no longer applied ex officio but shifts to the appellate procedure (articles 43 and 45; III). The paper concentrates on the consequences of the new regulation for the equity of the procedure. Therefore problems resulting from the intended abolition of the exequatur are discussed (IV). Central features of the analysis are the ensuing curtailment of judicial review (and thus of legal protection) and the abolition of the ordre public test. The concludes that the latter cannot be given up as ultima ratio as long as there remain differences between procedural (and hence constitutional) standards in the EU member states, i.e. as long as there is no truly European judicial area (cf. Article 61 EC Treaty; V).

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ISSN: 0928-9801
ID: 5103418

Concerning the facts of the decision see Spanish case note (1. Background facts).

Any comment on the ruling by Austria's Supreme Court of 23 November 1999 must necessarily address the subject of patients' right to information. In Spain this right is recognised in article 10.5 of the Health Law, as well as in regional legislation in Catalonia and Galicia. Also required is reflection on information as one of the doctor's duties, particularly as a prerequisite for a patient to consent to an intervention and treatment proposed by the doctor responsible for his care (so-called “informed consent”). Furthermore, the issue of the secrecy by which doctors are bound must also be addressed, as regulated in different pieces of legislation, in order to determine its exact scope. Appropriate too is an examination of case law developments with regard to the burden of proof in civil liability generally and, more specifically, medical liability. In this latter area there has been a notable shift towards facilitating the position of the patient, among other ways by focusing on the better probatory position of the doctor. The present commentary concludes with brief reference to the negative consideration given by the courts to the plaintiff's refusal to relieve the doctors from their duty of secrecy. This consideration ultimately led the Austrian Supreme Court to send the proceedings back to the court of first instance, with instructions to question the doctors as witnesses and rule once again on the plaintiff's application.

The case is annotated from the perspective of Spanish, Luxembourg and Greek law

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ISSN: 0928-9801
ID: 5103420

The decision of the German Federal Supreme Court was based on the following set of facts:

The defendant was a sole trader in Berlin selling carpets and carpeting. As an insert in a Berlin newspaper he distributed the brochure “Fantastic Choice of Chinese carpets”. On page 4 of this, under the heading “consistent good value”, carpets with Persian patterns were pictured which bore descriptions such as “K. Medaillon-Moud”. “K. Birdjend” or “K. Herati”. The carpets concerned were machine made. The claimant, an association with legal personality, established in order to oversee compliance with the rules relating to unfair competition, considered that this advertisement was misleading and sought an injunction. As the basis for this it was alleged that the format of the brochure and the lay-out of the advertising would lead the reader to think, in the absence of any express reference to the fact that the carpets concerned were woven, that hand-knotted oriental carpets were being advertised.

The courts at first and second instance allowed the claim for an injunction, but the Federal Supreme Court dismissed it. In substance the reason for this was that, in answering the question whether advertisements or leaflets conveyed a misleading impression, reference was not to be made to the passing consumer when the goods concerned were not without some value and were reasonably durable (here: carpets). The standard of care of the averagely well-informed and sensible average consumer, whose level of comprehension was decisive, depended on the situation in question. Furthermore, the expressions “passing” and “sensible” were not mutually exclusive. The reader of the advertising brochure in question, who was interested in the acquisition of a carpet, would also read the explanations in small print under each picture, and therefore would not be misled into thinking that an original oriental carpet was being advertised.

The following authors examine the decision from the point of view of Spanish and Austrian law.

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ISSN: 0928-9801
ID: 5103424

Delivery of the goods in a sale of standard software. The decision of the German Federal Supreme Court was based on the following set of facts:

On 15.7.1991the claimant delivered a payroll programme that it had developed to the defendant for a price of 200,000 DM (= ca. 100,000 euro), payable in four instalments. The programme was first capable of being called up on the defendant's data processing equipment in August 1991 and, after debugging by the claimant, the programme was capable of running in a limited way on the defendant's equipment from 22 October 1991. In the meantime the defendant paid the claimant the first instalment. In a letter of 11 December 1991 the defendant complained about further bugs in the programme and sought their correction. The claimant brought proceedings for the payment of the remainder of the sale price in an amount of ca. 150,000, — euro plus interest. The defendant claimed rescission of the contract and in a counterclaim sought restitution of the first instalment, plus interest, and the return of the payroll programme.

The Landgericht found for the claimant and rejected the counterclaim. Appeals to the Court of Appeal and the Supreme Court were fruitless. The Supreme Court explained in its decision that §§ 433, 359 ff BGB and § 377 HGB were to be applied, at least by analogy. As in other sale cases, in the case of a sale of standard software the goods were “delivered”, in the absence of agreement to the contrary, when they were placed by the seller — with the intention of performing the contract — within the sphere of power of the purchaser in such a way that the latter could examine them for the existence of faults. In the absence of any appropriate legal ground, for which there was also no sufficient need, and contrary to other opinions expressed in the legal literature on the question of “delivery”, the matter was not to be assessed by reference to whether a largely trouble-free trial run of the programme had been carried out, nor was it decisive whether the software had appeared to be bug free in a detailed test phase carried out while it was still with the claimant. Thus the software was delivered on 15 July 1991. The fact that some online-help functions were still unavailable did not affect this conclusion, since their absence influenced the usability of the programme and made the software faulty. At the end of the debugging process it was agreed between the parties on 22 October 1991 that the programme was — even though to a limited extent — capable of running and it was up to the defendant, according to § 377 HGB to check the goods again and to complain about faults without delay. Its complaints of 11 December 1991 did not however satisfy this requirement.

The following author examines the judgment from the point of view of Austrian law.

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ISSN: 0928-9801
ID: 5103430

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ISSN: 0928-9801
ID: 5103758

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ISSN: 0928-9801
ID: 5103761

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ISSN: 0928-9801
ID: 5103763

A regulation of the conflict of laws in receivables financing in Europe still remains incomplete. Unlike the uniform secured transactions statutes in Canadian provinces and the United States, the European Contracts Convention lacks a comprehensive evaluation of interests that would clarify the law applicable to competing creditors. Notwithstanding, courts do not seem prepared to reconsider whether the Convention could ever cover charges on claims. Instead of taking on a homogeneous interpretation they seem to neglect fundamentally diverging views on proprietary aspects of claims in the substantive law of Contracting States, and continue to uphold traditional national concepts. Consequently, the need for the enactment of harmonized and straightforward European law cannot be denied.

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ISSN: 0928-9801
ID: 5114787

The fragmentary character of directives in the field of private law has led not only to unsystematic solutions on the level of Community law, but it also poses a threat to the legal orders of the Member States as far as basic notions of coherence and consistency are concerned. The national legislator may evade this problem by extending the transforming legislation beyond the scope of the respective directive. Where the directive pursues an unconvincing policy, an (unavoidable) inconsistency in the private law is likely to be accepted. Member States that follow the codification approach may be inclined to evade incoherent solutions within the code by transforming the directives into special statutes. Though there may be good reasons for such an approach, in the long run any legal system following the codification principle is bound to integrate Community-based law into its national code. This will lead to increased complexity. In the future, the Community should give up the piecemeal approach to harmonization, and rather strive for a consolidated civil code in the form of a restatement or recommendation.

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ISSN: 0928-9801
ID: 5114788

The harmonisation of law by means of directives is increasingly assuming the role of creating a common market in Europe, principally by means of civil and business law. This paper will briefly trace this legislation. In addition, the Reformed German Law of Obligations Act of 2002 (Schuldrechtsmodernisierungsgesetz) is to be examined, which reintegrates private law statutes into the German Civil Code. Numerous conventional civil law principles will have to be rationalised anew.

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ISSN: 0928-9801
ID: 5114789

The decision made on February 21 2001 by the Cour de Cassation establishes the irrelevance of a non-excusable mistake committed by a party when it results from fraud on the part of the other contracting party.

The case at hand concerned a buyer who, after having purchased a building and business, claimed the nullity of the sale due to the seller's fraud. However, the Court of first instance had ruled against him as he, in his capacity as a professional, should have informed himself properly. Since he did not do so, his mistake is deemed non-excusable.

The Cour de Cassation then qualified this decision as follows. It held that, in general, fraudulent omission of facts, given that it has been well established, always makes the resulting mistake excusable. In other words, a mistake is only non-excusable, and thus cannot lead to the nullity of the contract, as long as it is spontaneous. It is, however, without influence, i.e. excusable, when it becomes neutralised by fraudulent behaviour of the other party. This is a general rule, which applies even in case of fraudulent non-disclosure by one of the parties, which relates to substantial facts for the conclusion of the contract.

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ISSN: 0928-9801
ID: 5114790

The French Cour de Cassation delivered on 26 April 2000 a decision dealing with the priority conflict between a seller under title retention and the assignee, pledgee or subrogee of the claim of the purchaser who re-sold the goods. The Court granted priority to the former, relying on the argument that the latter could not acquire more rights than these belonging to the re-seller.

The decision is closely related to the principle of “real subrogation” (“tracing”), which exists of the substitution in the object of a proprietary interest. Indeed, the priority conflict as mentioned only arises if the proprietary right of the original seller under title retention is maintained on the claim out of the resale. This implies the substitution of the originally sold assets by the claim out of the sub-sale as object of the proprietary right. The decision witnesses of the possible far reaching consequences of real subrogation within the field of security law. The judgment is analysed in the following comparative comment from the perspective of French, German, English, Dutch and Belgian law.

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ISSN: 0928-9801
ID: 5114791

The decision made on 13 January 1999 deals with an unusual application of coercion upon conclusion of the contract in respect of relationships between leaders and followers of a sect, a situation in which psychological pressure and other influences are often seen as modifying free will.

In this case a woman, having been a member of a sect community for 15 years, had sold her own house during this period to a company, the associates and manager of which belonged to the same sect. After having left the community, she asked for nullity of the sale on grounds of moral coercion. The Paris Court of Appeal ruled in her favour, noting that this former follower had indeed suffered from physical and moral coercion on the part of the other community members from 1972 until her departure in November 1987, a period in which she was particularly vulnerable, as she lived separated from her husband and in care of her children. The judges made it clear that it was this type of coercion that had led her to conclude the sale of her house, so that the members of the community could live there. The Cour de Cassation dismissed the appeal against this decision. This outcome seems to encourage the use of such a mode of recession, as it has proved rather easy to establish coercion in concluding the contract.

Although the existence of moral coercion was not really contested in this case, the plaintiff before the Cour de Cassation, on one hand, criticized the appeal judges for having based their decision on sporadic and vague acts that were separated in time or that were characterized as having taken place after the sale, without establishing a direct temporal link between the noticed behaviours and the conclusion of the contract. However, in reply to this criticism, the Cour de Cassation held that the Court of Appeal could indeed base its decision on elements of assessment that happened after the date of the conclusion of the contract. Thus, this decision freely admits the proof of coercion based on repeated acts, even from such posterior to the contract, if they make it possible to assess the reality of the fear at the time of the conclusion of the contract.

On the other hand, the Cour de Cassation dismissed the argument of the plaintiff, who criticized the judges for not having firmly enough established the crucial role of coercion. It is solely a matter for the Court of first instance to render a subjective assessment of the gravity of fear, taking into account the psychological state of the victim, and to consider its crucial influence on the conclusion of the contract.

This particular application of the defect of coercion for sect matters has found a certain resonance in a law of 12 June 2001, which added section 223-15-2 to the Penal Code. From now on, this law punishes the fraudulent abuse of the situation of weakness of a person under psychological or physical coercion, resulting from serious or repeated pressure or from techniques bound to alter his or her judgement, leading to an act or an omission, which is seriously detrimental to this person.

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ISSN: 0928-9801
ID: 5114792

This preliminary ruling deals with the conditions for an exemption from liability for defective products pursuant to Directive 85/374/EEC.

The plaintiff, Mr Veedfald, was due to undergo a kidney transplant operation at a hospital. After a kidney had been removed from the donor, in this case Mr Veedfald's brother, the kidney was prepared for transplantation through flushing with a perfusion fluid designed for that purpose. This fluid proved to be defective and a kidney artery became blocked during the flushing process, making the kidney unusable for any transplant. The fluid had been manufactured in the laboratories of the dispensary of another hospital, and prepared with a view to its use in the hospital. The defendant is owner and manager of both hospitals. Relying on the Danish product liability law, Mr Veedfald claimed damages from the defendant.

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ISSN: 0928-9801
ID: 5114793

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ISSN: 0928-9801
ID: 5114794

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ISSN: 0928-9801
ID: 5114795

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ISSN: 0928-9801
ID: 5114796

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ISSN: 0928-9801
ID: 5114797

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ISSN: 0928-9801
ID: 5114798

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ISSN: 0928-9801
ID: 5114799