Kluwer Law International - Kluwer Law Online - European Review of Private Law

ISSUE 1

'The Convention of Cape Town: The Creation of International Interests in Mobile Equipment.', B. Patrick Honnebier, J. Michael Milo, Issue 1, pp. 3–8

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'The New Regimen: Its History and Future after South Africa', Martin J. Stanford, Issue 1, pp. 9–17

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Martin J. Stanford, 'The New Regimen: Its History and Future after South Africa' (2004) 12 European Review of Private Law, Issue 1, pp. 9–17

Abstract: The Convention on International Interests in Mobile Equipment and the Protocol thereto on Matters specific to Aircraft Equipment were opened to signature in Cape Town on 16 November 2001. Twenty-six States have to date signed both instruments and the signs are good for their early entry into force. The origins of UNIDROIT’s work in this area were both legal and economic in nature, legal in the sense that the lex rei sitae is not particularly appropriate for resolving disputes concerning the validity, enforceability and priority ranking of assets of a kind likely to be moving across or beyond national frontiers on a regular basis, economic by reason of the potential that asset-based financing could have in enhancing access to high-value mobile equipment for debtors in developing and emerging economies.

Considerable research by UNIDROIT, and in particular Professor R.C.C. Cuming, provided the basis for this work. A preliminary draft Convention, drawn up by a UNIDROIT study group, chaired by Professor Sir Roy Goode, between 1993 and 1997, and a preliminary draft Protocol on Matters specific to Aircraft Equipment, drawn up by a working group the core members of which were the International Civil Aviation Organization (ICAO), the International Air Transport Association (IATA) and the Aviation Working Group organized by Airbus Industrie and The Boeing Company, between 1997 and 1998, provided the basis for intergovernmental negotiations, co-sponsored by UNIDROIT and ICAO, between 1999 and 2000. The benefits of the new international regimen are intended to be extended to other categories of high-value mobile equipment, in the first place railway rolling stock and space assets. Governmental experts are already at work on a preliminary draft Protocol to the Cape Town Convention on Matters specific to Railway Rolling Stock. Governmental experts will commence consideration of a preliminary draft Protocol on Matters specific to Space Assets in December 2003. A Preparatory Commission was set up by the Cape Town diplomatic Conference, under the guidance and supervision of the ICAO Council, to act as Provisional Supervisory Authority for the establishment of the International Registry for aircraft objects that will underpin the Cape Town Convention and Aircraft Protocol. It was directed by the diplomatic Conference to ensure that the International Registry be set up at the latest by the time of the entry into force of the Convention and the Aircraft Protocol. Those States that participated in the diplomatic Conference and interested private parties were urged by the diplomatic Conference voluntarily to make available, at the earliest possible date, the start-up funding that will be needed for the Preparatory Commission and ICAO to carry out the tasks given to them by the diplomatic Conference. The new international regimen will greatly reduce the cost of credit for the financing of the different categories of high-value mobile equipment covered thereby. The economic gains expected to flow from effective implementation of the Convention and the Aircraft Protocol run to several billion dollars on an annual basis. It is anticipated that the novel solutions embodied in the new international regimen will filter through to the new generation of laws governing secured transactions in general being put in place. The new international regimen is likely to have special significance for developing countries, by providing them with the foreign capital investment needed to help them develop their infrastructure. The unique level of participation at all stages of the development of the new international regimen by representatives of the world of practice, and in particular the different business sectors involved, means that the Convention and its Protocols reflect industry consensus to an unprecedented degree and thus enhances the chances of the new international regimen attracting widespread acceptance.

ISSN: 0928-9801
ID: ERPL2004002

'The International Interest as an Autonomous Property Interest', Roy Goode, Issue 1, pp. 18–25

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'The Regimen of the Railway Rolling Stock Protocol.', Howard Rosen, Issue 1, pp. 26–36

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'The Protocol on Matters Specific to Space Assets', Olivier M. Ribbelink, Issue 1, pp. 37–45

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'The Dutch Real Rights can be the Basis of International Interests under the Convention of Cape Town, just like their equivalent American Security Interests.', B. Patrick Honnebier, Issue 1, pp. 46–66

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'Should we Ratify the Convention on International Interests in Mobile Equipment and the Air Equipment Protocol? Some Remarks from a Dutch Point of View', Arthur F. Salomons, Issue 1, pp. 67–74

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'The UNIDROIT Convention on International Interests in Mobile Equipment: a Belgian Perspective.', Vincent Sagaert, Issue 1, pp. 75–90

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'The Cape Town Convention: a Model for a European System of Security Interests Registration?', Sjef Van Erp, Issue 1, pp. 91–110

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'Cour de Cassation française, 2e chambre civile, 4 juillet 2002 – On the Assumption of Risk.', Sofia Del Pilar De Salas Murillo, André Gonçalo Dias Pereira, Britt Weyts, Issue 1, pp. 111–132

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Sofia Del Pilar De Salas Murillo, André Gonçalo Dias Pereira, Britt Weyts, 'Cour de Cassation française, 2e chambre civile, 4 juillet 2002 – On the Assumption of Risk.' (2004) 12 European Review of Private Law, Issue 1, pp. 111–132

Abstract: The young girl Vanessa, aged ten, was taking part in a football training session within the framework of a team organized by the association of the young firemen of Charost, in which she occupied the position of goalkeeper, when she was injured by a ball shot at her by Mr. Y, the assistant trainer who had been charged with the supervision.

Vanessa’s parents, as the legal guardians of their minor aged daughter, held Mr. Y, the association of the young firemen of Charost and the insurance company Allianz responsible and sued for compensation for the undergone damages.

On first instance and on appeal, the courts held that the parents could not claim for damages on the basis of Article 1384, paragraph 1, of the French Civil Code, the core text for establishing a strict liability regime (responsabilité objective or responsabilité du fait des choses). The justification for this was that in participating, the young girl had accepted the risks linked to the activity and had therefore given up her right to claim reparations in case of any prejudice which she could suffer in the course of that activity.

In its decision of cassation for violation of the law, however, the second Chambre Civile of the Cour de Cassation rejected the ‘assumption of risk’ theory. More precisely, it held that the fact that the child was participating in a pedagogical activity under the authority and supervision of a trainer excluded the assumption of risk.

As a result of this decision, the theory of the assumption of risk now has a more restricted scope in sports (it thus seems to be limited to competition games). The next question is whether it should be completely abandoned or not, especially considering the fact that in sports competitions, the associations or clubs must have insurance.

ISSN: 0928-9801
ID: ERPL2004010

'Report on the Symposium ‘Information Rights and Obligations – The Impact on Party Autonomy and Contractual Fairness’, University of Münster, 21-22 November 2003.', Dionysios Kelesidis, Issue 1, pp. 133–137

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'List of contributors', Issue 1, pp. 138–139

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ISSUE 2

'La Protection des Differents Membres de la Famille par le Droit Familial Patrimonial en Europe', Mieke Puelinckx-Coene, Issue 2, pp. 143–166

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'The Rome Convention of 1980 and its Revision at the Crossroads of the European Contract Law Project', Ana M. López-Rodríguez, Issue 2, pp. 167–191

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'The Country of Origin Principle in the E-commerce Directive – A Conflict with Conflict of Laws?', Michael Hellner, Issue 2, pp. 193–213

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'Fairchild v. Glenhaven Funeral Services Ltd and others, Fox v. Spousal (Midlands) Ltd, Matthews v. Associated Portland Cement Manufacturers (1978) Ltd and others [2002] UKHL 22.', Christian Hattenhauer, Kostas N. Christodoulou, Albert Ruda, Andreas Tamasauskas, Issue 2, pp. 215–258

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Christian Hattenhauer, Kostas N. Christodoulou, Albert Ruda, Andreas Tamasauskas, 'Fairchild v. Glenhaven Funeral Services Ltd and others, Fox v. Spousal (Midlands) Ltd, Matthews v. Associated Portland Cement Manufacturers (1978) Ltd and others [2002] UKHL 22.' (2004) 12 European Review of Private Law, Issue 2, pp. 215–258

Abstract: This case concerns three appeals, heard together, which resulted from actions brought by employees who had developed the mesothelioma disease as a result of being exposed at work to asbestos dust. In these actions, the claimants sought compensation against employers who had exposed them to substantial inhalation of asbestos dust or fibres. At first instance, two of the claims were dismissed on the basis that the claimants could not establish, on a balance of probabilities, which of the defendants had exposed the employee to the asbestos dust which caused the disease. In the third case the judge found that, by exposing the claimant to asbestos fibres, the defendant had materially contributed to, and thus caused, the occurrence of mesothelioma. He accordingly apportioned liability between the defendants. The claimants in the first two actions, and the defendants in the third, appealed. Before the Court of Appeal it was common ground that (a) the mechanism initiating the genetic process which culminated in mesothelioma was unknown, (b) the factor triggering off the disease might, with an equal degree of probability, be a single, a few or many fibres, and (c) the condition, once caused, was not aggravated by further exposure – however, the greater the quantity of fibres inhaled the greater the risk of developing the disease. This caused the Court of Appeal to conclude that, since mesothelioma was an indivisible disease triggered on a single unidentifiable occasion by one or more fibres on a single unidentifiable occasion, it could not be proved on a balance of probabilities which period of exposure had caused the disease. The Court accordingly held that the claimant in each case had failed to establish causation against any of the defendants. It accordingly dismissed the appeals in the first two cases and allowed the appeal in the third case.

The claimants appealed to The House of Lords, which overturned these decisions. The Law Lords held that, where an employee had been exposed by different defendants, during different periods of employment, to inhalation of asbestos dust, in breach of each defendant’s duty to protect him from the risk of contracting mesothelioma, and where that risk had arisen but, in current medical knowledge, the onset of the disease could not be attributed to any particular or cumulative wrongful exposure, a modified approach to proof of causation was justified. In such cases, evidence that each defendant’s wrongdoing had materially increased the risk of contracting the disease was sufficient to satisfy the causal requirements for his liability. Accordingly, applying that approach and in the circumstances of each case, the claimants could prove, on a balance of probabilities, the required causal connection to establish the defendants’ liability.

ISSN: 0928-9801
ID: ERPL2004016

'Recent case law réArrêts récents réAktuelle Gerichtsentscheidungen', Matthias Hünert, Eugenia Dacoronia, Máire Ní Ní Shúilleabháin, Raffaele Caterina, Bert Van Schaick, Paulo Mota Pinto, Laura Macgregor, Miquel Martín-Casals, Jordi Ribot Igualada, Albert Ruda González, Anne-Catherine Hahn, Thomas Petz, Vincent Sagaert, Kim Østergaard, Christina Tvarnø, Andreas Tamasauskas, Walter Cairns, Valérie Pironon, Issue 2, pp. 259–290

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Matthias Hünert, Eugenia Dacoronia, Máire Ní Ní Shúilleabháin, Raffaele Caterina, Bert Van Schaick, Paulo Mota Pinto, Laura Macgregor, Miquel Martín-Casals, Jordi Ribot Igualada, Albert Ruda González, Anne-Catherine Hahn, Thomas Petz, Vincent Sagaert, Kim Østergaard, Christina Tvarnø, Andreas Tamasauskas, Walter Cairns, Valérie Pironon, 'Recent case law réArrêts récents réAktuelle Gerichtsentscheidungen' (2004) 12 European Review of Private Law, Issue 2, pp. 259–290

Introduction:

In this section authors from various European countries report the recent case law in their country on the field of private patrimonial law, that is decisions on the law of property, juridical acts, the law of obligations, contract law and prescription. The European Review of Private Law (ERPL) started this section in 2003. The section aims to give our readers an overview of what is happening in the most recent European case law. We have asked the national reporters to report the juridical essence of the decisions given by the highest courts in their country. These national reports are integrated in one general report that arranges the decisions by subject, so that our readers can easily find out whether decisions on their special interest were given in any European country or whether decisions on one subject have been taken in various European countries. In principle, this section does not relate the facts of the decision, nor the personal opinion of the reporter. One can find discussions on the most important decisions of European courts in ERPL’s case note section.

The recent case law section gives overviews of decisions published in periods of four months. The period of January-April is published in the fourth issue, the period from May to August is published in the sixth issue, and the period from September to December is published in the second issue of the next year. In this issue, we publish decisions of high courts taken from September to December 2003. As yet, some decisions can only be found on the internet. Therefore, at the end of this section we have listed web sites where one can find European high court decisions. The Board of Editors of the ERPL wants to thank the national contributors to this report, who worked very hard to have their reports ready in time. Further, the Board considers itself very fortunate that Mr. Ross MacDonald (University of Dundee, Scotland) has been willing to edit the contributions and, by doing so, contribute substantially to the quality of this section.

ISSN: 0928-9801
ID: ERPL2004017

'Danny Busch, Ewoud H. Hondius, Hugo J. van Kooten, Harriët N. Schelhaas, Wendy M. Schrama (eds), The Principles of European Contract Law and Dutch Law – A Commentary, Ars Aequi Libri & Kluwer Law International: Nijmegen & The Hague/London/New York 2002, 471p.', André Janssen, Issue 2, pp. 291–292

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'Terms and Conceps: Towards a syllabus for European Private Law', Piercarlo Rossi, Christian Vogel, Issue 2, pp. 293–300

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'List of contributors', Issue 2, pp. 301–302

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ISSUE 3

'The Contractual Clause: In Search of a Definition', Gianluca Sicchiero, Issue 3, pp. 305–320

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'Diverging Legal Culture but Similar Jurisprudence of Overruling: The Case of the House of Lords and the Belgian Cour de cassation', Isabelle Rorive, Issue 3, pp. 321–346

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'Epistemological Value of Roman Legal Rules in European and Comparative Law', Francisco J. Andrés Santos, Issue 3, pp. 347–357

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'BGH, 12.12.2000, VI ZR 345/99 JZ 2001, 711 – Zur Verjährung eines Schadensersatzanspruchs bei mehreren Gesamtschuldnern', Bert Van Schaik, Māire nī Shūilleabhāin, Issue 3, pp. 359–377

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Bert Van Schaik, Māire nī Shūilleabhāin, 'BGH, 12.12.2000, VI ZR 345/99 JZ 2001, 711 – Zur Verjährung eines Schadensersatzanspruchs bei mehreren Gesamtschuldnern' (2004) 12 European Review of Private Law, Issue 3, pp. 359–377

Abstract: The decision by the BGH was based on the following facts. The plaintiff, born in 1982, claimed material and immaterial damages for the destruction of his milk teeth denture. He maintained that, during the first two years of his life, he had been fed a tea product made by the defendant by way of “permanent suckling”. In doing so, a plastic feeding bottle, which has also been distributed by the defendant and which lacked a proper warning, had been used. In 1985 the mother of the plaintiff learnt from the dentists treating her child that the damage to the milk teeth may have been caused by the consumption of the tea. In 1993 she was informed about the possibility of claiming damages from the tea producer by her health insurance. In 1996 the plaintiff lodged a claim for damages against the defendant and the co-defendants, some of her senior staff members (such as members of the executive board, the authorized officer, and head of departments) whom the plaintiff thought jointly responsible for the development, production and distribution of the tea product causing the damage to his teeth. The defendants raised the objection of limitation of the plaintiff’s claim.

The previous Courts dismissed the claim due to the objection raised by the defendants. However, the plaintiff succeeded with his appeal in respect of the co-defendants. The BGH argued that the requirements for the period of limitation and its commencement have to be verified for each co-defendant separately. If several persons may have caused the damage, the period of limitation starts to run for each of them as from the point in time the aggrieved party has become aware of the respective person causing the damage. It is therefore possible that the period of limitation may start to run, and expire, from different points in time, notwithstanding the fact that the underlying claim is based on the same event and damage. This also holds true in respect of co-defendants being an enterprise on the one hand, and its legal representatives or senior staff on the other hand, who are liable for the enterprise according to §31 or §831 BGB.

ISSN: 0928-9801
ID: ERPL2004024

'EULIS – At the Beginning of the Road to Harmonization of Land Registry in Europe', Hendrik Ploeger, Bastiaan Van Loenen, Issue 3, pp. 379–387

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'Steffen Klumpp, Die Privatstrafe – eine Untersuchung privater Strafzwecke, Duncker & Humblot, Berlin 2002', Harriet Schelhaas, Issue 3, pp. 389–391

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'List of contributors', Issue 3, pp. 393–394

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ISSUE 4

'The European Commission?s Action Plan: Towards a More Coherent European Contract Law?', Martijn W. Hesselink, Issue 4, pp. 397–419

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'Types and Styles of Family Proceedings - Rapport Général au XIIème Congrès Mondial de l’Association Internationale de Droit Judiciaire Mexico, 22-26 Septembre 2003', Marie-Thérèse Meulders-Klein, Issue 4, pp. 421–469

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Marie-Thérèse Meulders-Klein, 'Types and Styles of Family Proceedings - Rapport Général au XIIème Congrès Mondial de l’Association Internationale de Droit Judiciaire Mexico, 22-26 Septembre 2003' (2004) 12 European Review of Private Law, Issue 4, pp. 421–469

Le thème des procédures familiales envisagé sous un angle comparatif est d?une complexité extrême dans la mesure où il implique à la fois le droit substantiel de la famille et le droit procédural, eux-mêmes intimement liés aux cultures et aux particularités des différents systèmes juridiques.

A cela s?ajoute la spécificité du contentieux familial en raison de la nature propre de son objet, car l?état des personnes et les relations familiales ne revêtent pas seulement un intérêt social évident qui leur confère traditionnellement un caractère d?ordre public les soustrayant en tout ou en partie à la libre disposition des volontés. Ces relations et leurs crises ont aussi un caractère privé, humain et psychologique qui fait qu?on ne peut les traiter comme un contentieux ordinaire. En outre il s?agit moins dans ces cas de ?dire le droit? pour le passé, que de régler le mieux possible des situations de fait engageant l?avenir des individus et des familles dans l?intérêt général et particulier. Les modes de résolutions des conflits familiaux se situent donc à la croisée du privé et du public, au même titre que du droit substantiel et du droit processuel.

Or, depuis plus de trente ans, et plus particulièrement dans les pays occidentaux, une évolution rapide se manifeste à la fois par une désaffection du mariage, une revendication d?autonomie individuelle et de privatisation des relations personnelles et familiales, une fragilisation croissante des couples, mariés ou non, et des familles. Depuis les années 70 tous les États ont donc modifié leur droit substantiel de manière plus ou moins radicale en matière de mariage, divorce, filiation, autorité parentale, tant sur le plan personnel que patrimonial, et ouvert le prétoire à une explosion de conflits et à une demande de justice à laquelle les tribunaux ne parviennent plus à faire face, le contentieux familial représentant en moyenne 50 à 60% du contentieux des juridictions civiles. Il en résulte une situation paradoxale entre une demande de plus de droits et moins de Droit, plus de justice et moins de procédure, plus de liberté et plus de protection, et une tension dans les choix politiques à adopter.

Le droit judiciaire, en tant qu?auxiliaire du droit substantiel et serviteur de la justice est ici directement concerné et appelé non seulement à s?adapter à un contentieux différent de tous les autres, mais aussi à en atténuer si possible les effets négatifs et destructeurs. Mais ses structures traditionnelles sont plus lourdes et plus lentes à mouvoir que le droit du fond en raison de l?accumulation des strates législatives ou réglementaires relatives à l?organisation judiciaire et aux règles de compétence et de procédure, à l?insuffisance de moyens humains et matériels disponibles. Au risque d?aboutir à la désaffection de la justice et à la tentation de ?déjudiciarisation? des conflits familiaux au profit de leur ?privatisation? et de leur ?contractualisation?, sans autre forme de protection des parties les plus faibles.

ISSN: 0928-9801
ID: ERPL2004029

'Immobiliarsicherheiten in England, Schottland und Deutschland, oder: Mortgage, charge und standard security versus Hypothek, Grundschuld und Sicherungsübereignung.', Eva Schäper, Issue 4, pp. 471–507

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Eva Schäper, 'Immobiliarsicherheiten in England, Schottland und Deutschland, oder: Mortgage, charge und standard security versus Hypothek, Grundschuld und Sicherungsübereignung.' (2004) 12 European Review of Private Law, Issue 4, pp. 471–507

Keywords:
interests in land, real securities over land, equitable interests, conveyance of land as security, ’Eurohypothek’, Grundpfandrechte, billigkeitsrechtliche Rechte, Sicherungsübereignung, Grundstücksrechte

^Abstract:The following paper deals with the national law in England, Scotland and Germany governing real securities over land. After an introduction (under I) a short outline over the generally possible interests in land and their protection within the three considered legal systems follows (under II) to allow a better understanding of some special terms. A brief comparison concludes this overview. In the main part (under III) the different types and contents of real securities over land are shown, compared and discussed. Especially their technical construction (under 1), the English equitable mortgages and charges over legal interests in land (under 2), other rights in land, such as the English equitable interests in land, as security (under 3) and the possibility of a conveyance of land as security (under 4) are examined. Here it is focused especially on the law?s consideration of the arising practical needs and interests of mortgagor/chargor and mortgagee/chargee as well as on the systematical clearness of the law. In the final conclusion (under IV) it is pointed out that within the rules governing real securities over land there are similarities as well as differences between the three legal systems. However the differences partly result from general phenomena which are sometimes deeply rooted in the legal system. Since their harmonisation does not seem probable in the near future the creation of a special international ?land charge or mortgage? is finally recommended.

ISSN: 0928-9801
ID: ERPL2004030

'Cour de Cassation française, 2e chambre civile, 24 janvier 2002 - Compensation for Lost Undeclared Income', Franz Fayot, Sofía De Salas Murillo, Thierry Erniquin, Gian-Franco Raneri, Dimitra Papadopoulou-Klamaris, Issue 4, pp. 509–542

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'Recent case law', Thomas Petz, Vincent Sagaert, Kim Østergaard, Christina Tvarnø, Andreas Tamasauskas, Walter Cairns, Valérie Pironon, Matthias Hünert, Eugenia Dacoronia, Máire Ní Shúilleabháin, Raffaele Caterina, Bert Van Schaick, Paulo Mota Pinto, Laura Macgregor, Miquel Martín-Casals, Jordi Ribot Igualada, Albert Ruda González, Anne-Catherine Hahn, Issue 4, pp. 543–580

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Thomas Petz, Vincent Sagaert, Kim Østergaard, Christina Tvarnø, Andreas Tamasauskas, Walter Cairns, Valérie Pironon, Matthias Hünert, Eugenia Dacoronia, Máire Ní Shúilleabháin, Raffaele Caterina, Bert Van Schaick, Paulo Mota Pinto, Laura Macgregor, Miquel Martín-Casals, Jordi Ribot Igualada, Albert Ruda González, Anne-Catherine Hahn, 'Recent case law' (2004) 12 European Review of Private Law, Issue 4, pp. 543–580

In this section authors from various European countries report the recent case law in their jurisdiction in the field of private patrimonial law, that is decisions on the law of property, juridical acts, the law of obligations, contract law and prescription. The ERPL started this section in 2003. The section aims to give readers an overview of what is happening in the most recent European case law. We have asked the national reporters to report the juridical essence of the decisions given by the highest courts in their country. These national reports are integrated in one general report that arranges the decisions by subject, so that readers can easily find out whether decisions on their special interest were given in any European jurisdiction or whether decisions on one subject have been taken in various European countries. In principle, this section does not relate the facts of the decision, nor the personal opinion of the reporter. One can find discussions on the most important decisions of European courts in ERPL?s case note section.

The recent case law section gives overviews of decisions published in periods of four months. The period of January-April is published in the fourth issue, the period from May to August is published in the sixth issue, the period from September to December is published in the second issue of the next year. In this issue, we report decisions of high courts taken from January to April 2004. As yet, some decisions can only be found on the internet. Therefore, at the end of this section we have listed web sites where one can find European high court decisions.

The Board of Editors of the ERPL wants to thank the national contributors to this report, who worked very hard to have their reports ready in time. Further, the Board considers itself very fortunate that Mr. Ross MacDonald (University of Dundee, Scotland) has been willing to edit the contributions and, by doing so, contribute substantially to the quality of this section.

ISSN: 0928-9801
ID: ERPL2004032

'List of Contributors', Issue 4, pp. 581–583

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ISSUE 5

'Editorial', Jacobien W. Rutgers, Issue 5, pp. 587–588

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'National Procedures, Public Policy and EC Law. From Van Schijndel to Eco Swiss and Beyond', Sacha Prechal, Natalya Shelkoplyas, Issue 5, pp. 589–611

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'Holding Back the Tide? Cross-Border Recognition of Same-Sex Partnerships within the European Union', Mark Bell, Issue 5, pp. 613–632

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'Why Object to the Harmonization of Private Law by the EC?', Stephen Weatherill, Issue 5, pp. 633–660

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'The Enforcement of EC Law in Contractual Relations: Case Studies in How Not to ’Constitutionalize’ Private Law', Harm Schepel, Issue 5, pp. 661–673

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'OGH, 28.6.2001, 2 Ob 271/00t, JBl 2002, 42 et seq. - Zur Hemmung der Verjährung wegen psychischer Erkrankung oder geistiger Behinderung', Máire Ní Shúilleabháin, Bertrand Fages, Bert Van Schaick, Issue 5, pp. 675–690

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Máire Ní Shúilleabháin, Bertrand Fages, Bert Van Schaick, 'OGH, 28.6.2001, 2 Ob 271/00t, JBl 2002, 42 et seq. - Zur Hemmung der Verjährung wegen psychischer Erkrankung oder geistiger Behinderung' (2004) 12 European Review of Private Law, Issue 5, pp. 675–690

The facts of this case before the Austrian OGH were as follows. The late plaintiff suffered severe head injuries in a traffic accident in November 1994. The insurer of the defendant was notified in the same month; consequently, criminal charges were raised against the defendant. In May 1996 the late Plaintiff was placed under guardianship in respect of legal representation before civil authorities and vis-à-vis private contractual partners. In mid-1996 the late plaintiff engaged a lawyer, who entered into negotiations with the Defendant?s insurer. In October 1996 the plaintiff was diagnosed with a severe psychological disorder in the context of introducing legal guardianship. In April 1998 the defendant was convicted to pay a fine in the criminal proceedings; the late plaintiff was referred to the civil courts as regards his claim for compensation. The late plaintiff lodged a claim in June 1998; the proceedings were continued by his heirs after his death. The defendant invoked prescription of the claim.

The Court of first instance rejected the claim. The Court of Appeal squashed the judgement and referred the case back to the Court of first instance, while allowing an appeal to the OGH.

The OGH rejected this appeal by the defendant. The interruption of prescription under Section 1494 ABGB applies also if the psychological disorder or mental disability is of such nature that a legal guardian is needed to lodge, or defend against, legal claims. This holds even more true if a legal guardian has been appointed for exactly this reason. It is irrelevant that the late plaintiff was then represented by a lawyer, because Section 1494 ABGB cites only the representation by guardianship as a ground for ending the interruption. The prescription of the claims has been interrupted at least since October 1996; thus, they were not prescribed when lodging the claim in June 1998.

ISSN: 0928-9801
ID: ERPL2004039

'Cass. Ass. Plénière, 13 décembre 2002, Bull. civ. AP, No. 3, J.C.P. G 2003 II, 10010 - Parental liability for the acts of their children', Miquel Martín-Casals, Noortje Lavrijssen, Willem H. Van Boom, Gerhard Wagner, Susanna Hirsch, Ken Oliphant, Jordi Ribot, Josep Solé, Angelo Venchiarutti, Theresa Frizberg, Issue 5, pp. 691–751

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'Iwan Davies (ed.), Security Interests in Mobile Equipment, Ashgate, Dartmouth 2002, 548 pp, ISBN 1 84014 792 X', John Michael Milo, Issue 5, pp. 753–755

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John Michael Milo, 'Iwan Davies (ed.), Security Interests in Mobile Equipment, Ashgate, Dartmouth 2002, 548 pp, ISBN 1 84014 792 X' (2004) 12 European Review of Private Law, Issue 5, pp. 753–755

In 1999 Iwan Davies published a book on retention of title clauses. I warmly welcomed the book since books in English on property law in a comparative context are needed, by academia and practice, yet these are scarce. This scarcity is slowly disappearing; Davies and his Centre for Installment Credit Law at the University of Wales, Swansea, is partially responsible for this positive tendency, since he has once more published a volume on an enormously important subject, the law of proprietary security in personal property in cross-border transactions, entitled: Security Interests in Mobile Equipment. And once again, retention of title reappears. A book is necessarily divided in three parts. The first part deals with domestic law, the second with private international law, and the third with uniform law. I have read the contributions with great pleasure, yet I do have an overall reservation. The last part deals with the most challenging subject: how on earth is it possible to create a uniform law on the basis of the immensely diverging bodies of national mandatory law of proprietary security? The unification has taken shape in a fairly specific area. The economic need for unification or harmonization in the case of security interests in expensive equipment which by its nature continually crosses borders of national jurisdictions is evident. It has led to the Convention on International Interests in Mobile Equipment concluded in Cape Town, in December 2001. This convention and the protocol on Aircraft equipment have been ratified by three and acceded to by one jurisdiction, and have in the meantime (1 April 2004) entered into force. There are unmistakable signs that the United States, Canada, Singapore, Vietnam and Kenya will soon follow.

ISSN: 0928-9801
ID: ERPL2004041

'Reinhard Zimmermann, Roman Law, Contemporary Law, European Law - The Civilian Tradition Today, Oxford University Press, Oxford 2001, 197 pp, ISBN 0-19-829913-3', Pablo Lerner, Issue 5, pp. 757–763

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'List of contributors', Issue 5, pp. 765–767

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ISSUE 6

'’Unevenly Formed Contracts’: Ignoring the ’Mirror of Offer and Acceptance’', Mathias M. Siems, Issue 6, pp. 771–788

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'Hof van cassatie van België / Cour de cassation de Belgique, 31 January 2002 - The effect of avoidance in bankruptcy as against a third party acquirer in good faith', Matthias E. Storme, Brigitta Lurger, Isabel González Pacanowska, Arthur Salomons, Issue 6, pp. 789–809

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'Recent case law/Arrêts récents/Aktuelle Gerichtsentscheidungen', Thomas Petz, Vincent Sagaert, Kim Østergaard, Christina Tvarnø, Andreas Tamasauskas, Walter Cairns, Valérie Pironon, Matthias Hünert, Eugenia Dacoronia, Máire Ní Shúilleabháin, Raffaele Caterina, Bert Van Schaick, Paulo Mota Pinto, Laura Macgregor, Miquel Martín-Casals, Jordi Ribot Igualada, Albert Ruda González, Anne-Catherine Hahn, Issue 6, pp. 811–849

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Thomas Petz, Vincent Sagaert, Kim Østergaard, Christina Tvarnø, Andreas Tamasauskas, Walter Cairns, Valérie Pironon, Matthias Hünert, Eugenia Dacoronia, Máire Ní Shúilleabháin, Raffaele Caterina, Bert Van Schaick, Paulo Mota Pinto, Laura Macgregor, Miquel Martín-Casals, Jordi Ribot Igualada, Albert Ruda González, Anne-Catherine Hahn, 'Recent case law/Arrêts récents/Aktuelle Gerichtsentscheidungen' (2004) 12 European Review of Private Law, Issue 6, pp. 811–849

In this section authors from various European countries report the recent case law in their jurisdiction in the field of private patrimonial law, that is decisions on the law of property, juridical acts, the law of obligations, contract law and prescription. The ERPL started this section in 2003. The section aims to give readers an overview of what is happening in the most recent European case law. We have asked the national reporters to report the juridical essence of the decisions given by the highest courts in their country. These national reports are integrated in one general report that arranges the decisions by subject, so that readers can easily find out whether decisions on their special interest were given in any European jurisdiction or whether decisions on one subject have been taken in various European jurisdictions. In principle, this section does not relate the facts of the decision, nor the personal opinion of the reporter. One can find discussions on the most important decisions of European courts in ERPL?s case note section.

The recent case law section gives overviews of decisions published in periods of four months. The period of January-April is reported in the fourth issue, the period from May to August is published in the sixth issue, the period from September to December is reported in the second issue of the next year. In this issue, we report decisions of high courts taken from April to August 2004. As yet, some decisions can only be found on the internet. Therefore, at the end of this section we have listed web sites where one can find European high court decisions. The Board of Editors of the ERPL wants to thank the national contributors to this report, who worked very hard to have their reports ready in time.

ISSN: 0928-9801
ID: ERPL2004046

'Craig Rotherham, Proprietary Remedies in context. A study in the judicial redistribution of property rights, Hart Publishing, Oxford-Portland Oregon 2002, 354 p., ISBN 1 84113 165 2', John Michael Milo, Issue 6, pp. 851–853

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'European Private Law - Survey 2002-2004', Ewoud Hondius, Issue 6, pp. 855–899

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'Index 2004', Issue 6, pp. 901–907

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'List of contributors', Issue 6, pp. 909–911

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