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'European Private Law and Existing EC Law', Reiner Schulze, Issue 1, pp. 3–19 |
infoReiner Schulze, 'European Private Law and Existing EC Law' (2005) 13 European Review of Private Law, Issue 1, pp. 3–19 | | EC law has expanded so much in recent decades that it is possible to develop overarching principles for contract law and other areas of law from the provisions for individual subjects and sectors. Unlike thirty years ago, when the ?Lando-Commission? began its work, today the existing Community law itself can form the primary source of academic works for the further development of European private law. On this basis the ?acquis research? contributes to remove substantive and terminological inconsistencies in the acquis communautaire, as well as creating a frame of reference for the development of European contract law through legislative measures. The ?acquis-approach? and comparative studies however have to supplement each other. Although the principles of the existing European Community law cover more objects of contract law than commonly supposed, they by no means cover all areas. Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 0928-9801
ID: ERPL2005001 | 
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'Article 6 of the Commission Proposal: Violation of Privacy - Defamation by Mass Media', Gerhard Wagner, Issue 1, pp. 21–37 |
infoGerhard Wagner, 'Article 6 of the Commission Proposal: Violation of Privacy - Defamation by Mass Media' (2005) 13 European Review of Private Law, Issue 1, pp. 21–37 | | The Commission?s Proposal for a Regulation on the Law Applicable to Non-Contractual Obligations (Rome-II) supplies a special conflicts rules for media torts and other invasions of privacy rights. The purpose of Article 6 of the Commission Proposal is to coordinate choice of law and forum selection. This objective deserves support but is difficult to specify and to translate into choice of law rules. Article 5 No. 3 Brussels-I Regulation establishes jurisdiction not only at the place where the injury was sustained, but alternatively at the place where the wrongful act occurred. Pursuant to the holding of the Shevill judgment of the European Court of Justice the court sitting at the place of the wrongful act has jurisdiction to award damages in full, for total harm, whereas the courts at the several places of injury may allow remedies only with respect to the harm suffered within the confines of their own jurisdiction. In contrast to the explicit intentions of the Commission, its proposal on conflicts law does not provide for a similar rule, i.e. it does not supplement the jurisdictional principles of the Shevill judgment with similar choice of law rules. The same failure, however, also affects the proposal of the European Parliament, laid down in the report of Diana Wallis, prepared for The Parliament Committee on Legal Affairs and the Internal Market. The prerogative of ?Gleichlauf? requires choice of law rules which allow the courts seized either at the place of publication or at the place of injury to apply their own law, i.e. the lex fori. Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 0928-9801
ID: ERPL2005002 |
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'BGH, 17.7.2003 - Set-off against a claim that had been awarded by an enforceable decision before the proceedings of the principal claim commenced', Gerard J.P. De Vries, Xabier Basozábal, Marc Billiau, G. Orfanidis, Mineke De Theije, Issue 1, pp. 39–65 |
infoGerard J.P. De Vries, Xabier Basozábal, Marc Billiau, G. Orfanidis, Mineke De Theije, 'BGH, 17.7.2003 - Set-off against a claim that had been awarded by an enforceable decision before the proceedings of the principal claim commenced' (2005) 13 European Review of Private Law, Issue 1, pp. 39–65 | | This decision by the Bundesgerichtshof (German Supreme Court) was based on the following facts. The claimant sought to obtain from the first defendant the sum of ?3,916.32, being the remainder of a tax consultation fee. She initiated the action by a writ of summons dated 29 December 2000. During the court proceedings, the first defendant submitted that a claim for ?1,632.72, which had been awarded to him by an enforceable decision of the Amtsgericht (District Court) of Landshut dated March 2001, should be set off against the principal sum claimed. Thereupon the claimant unilaterally declared that the dispute had been settled for that amount, and claimed the remainder of the principal sum claimed. The declaration of settlement submitted by the claimant was dismissed by the District Court, on the grounds that the action had already been brought before court proceedings in the principal claim had commenced. Because of Article 389 of the German Civil Code, it was necessary to conclude that the action should be dismissed in the light of the time at which eligibility for set-off arose. The Court of Appeal, on the other hand, decided that the dispute should be regarded as settled to the amount of ?1,632.74. It was not the elibility for set-off, but the set-off declaration made during the court proceedings which constituted the decisive development which caused the action, which initially was admissible and well-founded, to become unfounded. The Supreme Court application brought against this decision by the first defendant was unsuccessful. The Supreme Court was of the view that, even though the set-off mechanism had retrospective effect under the substantive law (Article 389 Civil Code), it was the set-off declaration which constituted the ?decisive development? for an action which up to that point had been admissible and well-founded. It is only as from the moment when the set-off declaration is made that the substantive law effect of set-off, i.e. the extinction of the claim in the main action, is achieved. This effect is not yet achieved when the claim becomes eligible for set-off. The annotations below examine this decision from the perspective of Belgian, French, Greek, Dutch and Spanish law. Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 0928-9801
ID: ERPL2005003 |
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'Cour de Cassation (France) 3 juillet 2002 - Damages for occupation of an immovable: ’culpa in contrahendo’ and unjustified enrichment under French and Spanish law', Asunción Asín, Angeles Parra, Issue 1, pp. 67–78 |
infoAsunción Asín, Angeles Parra, 'Cour de Cassation (France) 3 juillet 2002 - Damages for occupation of an immovable: ’culpa in contrahendo’ and unjustified enrichment under French and Spanish law' (2005) 13 European Review of Private Law, Issue 1, pp. 67–78 | | In this decision (Third Civil Division, 3 July 2002 RTD civ. 2002, 804 with ann. By Mestre and Fages) the French Supreme Court (Cour de Cassation) for the first time ruled that, in the case of negotiations for the sale of a building, the mere fact that one of the parties occupied the premises during these negotiations, even if this was with the owner?s consent, renders that party liable for payment of occupancy rent. This cannot be altered by the circumstance that the parties had abandoned their original plan by common consent or that liability for the fact that the contract did not come about cannot be specifically attributed to either of the parties. Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 0928-9801
ID: ERPL2005004 |
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'A.R. Buck, John McLaren and Nancy E. Wright, Land and Freedom. Law, Property Rights and the British Diaspora', John Michael Milo, Issue 1, pp. 78–81 |
infoJohn Michael Milo, 'A.R. Buck, John McLaren and Nancy E. Wright, Land and Freedom. Law, Property Rights and the British Diaspora' (2005) 13 European Review of Private Law, Issue 1, pp. 78–81 | | This book deals with the clash between the claims of western settlers for land and those of the indigenous inhabitants of Australia, New Zealand, Canada and the USA. It is about property law, particularly property rights in land, and in the diversity of its analyses, it skilfully shows that property rights are subject to ideological conceptions as to how society should be organized. It is at the same time also an historic research into the developments about the thinking on property rights in land. Law, political science and historic research form an excellent amalgam. This book is indeed very interesting. Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 0928-9801
ID: ERPL2005005 |
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'UNIDROIT Principles of International Commercial Contracts 2004', Viola Heutger, Issue 1, pp. 83–90 |
infoViola Heutger, 'UNIDROIT Principles of International Commercial Contracts 2004' (2005) 13 European Review of Private Law, Issue 1, pp. 83–90 | | Nur zehn Jahre sind seit dem Erscheinen der Grundregeln der Internationalen Handelsverträge, den sogenannten ?UNIDROIT Prinzipien 1994?, des Internationalen Instituts für die Vereinheitlichung des Privatrechts (UNIDROIT, Rom) vergangen und schon sind die UNIDROIT Prinzipien in einer ergänzten und erweiterten Version als UNIDROIT Prinzipien 2004 erhältlich. Anpassungen an neue Entwicklungen, wie den zunehmenden elektronischen Handel und die Anwendung der sogenannten Grundregeln der Internationalen Handelsverträge in der Rechtsprechung und Schiedsgerichtsbarkeit forderten eine Neuauflage und inhaltliche Erweiterung. Auch sind die Prinzipien fester Bestandteil der rechtsvergleichenden Ausbildung an den Universitäten in der ganzen Welt geworden. Kaum ein anderes internationales Vertragswerk kann auf so eine Entwicklungsgeschichte zurückschauen. Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 0928-9801
ID: ERPL2005006 |
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'List of contributors', Issue 1, pp. 91–92 |
info'List of contributors' (2005) 13 European Review of Private Law, Issue 1, pp. 91–92 | | List of contributors Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 0928-9801
ID: ERPL2005007 |
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ISSUE 2 | |
'The Way Forward in European Contract Law', Dirk Staudenmayer, Issue 2, pp. 95–104 |
infoDirk Staudenmayer, 'The Way Forward in European Contract Law' (2005) 13 European Review of Private Law, Issue 2, pp. 95–104 | | The Commission has gone one step further on its way to a coherent European contract law. The Communication ?European contract law and the revision of the acquis: the way forward? shows this already in its title. The Communication deals in particular with the development of the Common Frame of Reference which will serve as a tool to review and revise the contract?law?relevant EC acquis. In addition, it also develops some parameters for the discussion on future optional instruments in European contract law which the contractual parties can choose as the applicable law for cross?border contracts. Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 0928-9801
ID: ERPL2005008 |
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'Supervening Hardship as Subdivision of the General Frustration Rule: A Comparative Analysis with Reference to Anglo American, German, French and Greek Law', Antonis Karampatzos, Issue 2, pp. 105–147 |
infoAntonis Karampatzos, 'Supervening Hardship as Subdivision of the General Frustration Rule: A Comparative Analysis with Reference to Anglo American, German, French and Greek Law' (2005) 13 European Review of Private Law, Issue 2, pp. 105–147 | | The problem of ?frustration of contract? concerns the effect of supervening changes in circumstances, unforeseen and unforeseeable at the time of conclusion of the contract, on the obligations stemming from it. The present article addresses the more specific problem of ?supervening hardship? which arises when the performance, though physically (and legally) still possible, has become excessively difficult, that is, economically far more onerous than anticipated by the parties. The article is mainly a comparative analysis with reference to Anglo?American, German, French and Greek law. The analysis focuses on the case law of each legal system, without neglecting, at the same time, significant new developments in the field of statute law (such as the new provision of the German Civil Code ? § 313 BGB ? concerning the fundamental change in circumstances). Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 0928-9801
ID: ERPL2005009 |
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'Electronic Contracts and the Harmonization of Contract Laws in Europe - An Action Required, A Mission Impossible?', Katarzyna Kryczka, Issue 2, pp. 149–170 |
infoKatarzyna Kryczka, 'Electronic Contracts and the Harmonization of Contract Laws in Europe - An Action Required, A Mission Impossible?' (2005) 13 European Review of Private Law, Issue 2, pp. 149–170 | | The use of information technologies allows parties to enter into contracts in a manner that provides speed, ease, on a mass scale and with a cross?border range with which traditional means of contracting cannot easily compare. It also impacts several traditional concepts of contract law and the legal criteria based thereon. The focus of this paper is on the formation of contracts by electronic means. The ongoing discussion has resulted in establishing in the Member States certain legal rules aimed at answering the questions raised by the procedure of contract formation by electronic means. It is argued that, in order to promote electronic commerce in Europe and to eliminate the lack of predictability connected with electronic transactions, the harmonization of such rules at the European level could be the appropriate means. It is submitted that harmonizing the law concerning the formation of electronic contracts should not be made in isolation of the efforts aimed at the harmonization of contract law in general such as the Principles of European Contract Law. Therefore, the article further reflects on the applicability, for the purpose of electronic commerce transactions, of the provisions of the Principles of European Contract Law dealing with contract formation. Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 0928-9801
ID: ERPL2005010 |
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'Tribunal Supremo (No. 151/2003) of 21.02.2003 ? Product Liability', Diana Dankers Hagenaars, Valentina Jacometti, Issue 2, pp. 171–194 |
infoDiana Dankers Hagenaars, Valentina Jacometti, 'Tribunal Supremo (No. 151/2003) of 21.02.2003 ? Product Liability' (2005) 13 European Review of Private Law, Issue 2, pp. 171–194 | | According to the facts proven, the claimant was in the supermarket ?Torre Lucas? in the city of Murcia on 28 August 1994. There he took a glass bottle containing white lemonade from one of the shelves in order to buy it, which exploded just as he was placing it in a shopping bag. The shards reached his face and caused, among others, injuries to the iris and cornea of the right eye as a result of which his eyesight was reduced. The bottle has been identified as belonging to the commercial brand ?La Casera?. It is a product which is produced by the defendant, while a different firm, ?Carbónica Murciana S.L.?, is in charge of bottling and commercial distribution. It has also been proven that the only cause of the injuries was the low quality of the product destined to be sold, since the bottle exploded because it was defective. The claimant claimed the amount of 36.520.000 pesetas from the three companies mentioned above. The Court of First Instance partially admitted this claim in a decision on 18 April 1996; the commercial firm ?La Casera S.A.? appealed against the aforementioned decision before the Appellate Court of Murcia. On 21 March 1997 this Court rejected the appeal. The defendant brought an appeal before the High Court, which was denied. In its ruling, the Court rejected the arguments brought by the defendant, amongst them the following assertion. The defendant alleged that the claimant had not proven that the product was defective, according to Article 5 of the Products Liability Act. The point is that the explosion took place without the product having being manipulated by the consumer in any way; this means that the explosion was caused by the product itself. According to Article 3 of the Act referred above, a product is defective when it does not meet the safety that a person could lawfully expect from it, taking all circumstances into account and, in particular, the presentation of the product, the reasonably foreseeable use and the time when it was put into circulation. At any rate, a product is defective when it does not meet the safety normally offered by all the other items of the same series. In the case at stake it has been sufficiently proven that the bottle which caused the injuries to the claimant markedly lacked the safety required. Therefore, since it is an unsafe product, it was obviously defective in itself as from the time when it was put into circulation. The concept of defect laid down by the Act, which follows the EU Directive 85/374 EEC, is a flexible and broad one. In addition, since there is no place for subjective elements, the safety has to be seen as a requirement of the product, because every consumer is entitled to be able to use the product without any risk for his or her physical or patrimonial integrity. The existence of the defect results from the concept established by the Act 22/1994 and has to be connected to safety that the product must offer. If this requirement is not met, the product has to be deemed defective, thereby reversing the burden of proof, since it is the manufacturer who has to bring evidence that the product is suitable or that there are other causes that could exonerate him or her from liability. Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 0928-9801
ID: ERPL2005011 |
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'OGH, 6.12.2001 - Wirkliche Übergabe bei Schenkung auch durch Besitzkonstitut?', Annina H. Persson, Bert Van Schaick, Issue 2, pp. 195–207 |
infoAnnina H. Persson, Bert Van Schaick, 'OGH, 6.12.2001 - Wirkliche Übergabe bei Schenkung auch durch Besitzkonstitut?' (2005) 13 European Review of Private Law, Issue 2, pp. 195–207 | | A plusieurs reprises, pendant une période d?environ vingt ans avant sa mort, Mme F. a exigé du demandeur, chaque fois que celui?ci lui rendait visite, qu?il emporte avec lui un bien mobilier de valeur qu?elle déclarait vouloir lui donner. Mais de son côté le demandeur lui proposait de garder ce bien chez elle aussi longtemps qu?elle vivrait. Dans un premier testament de Mme F., mention fut faite de cette donation. Mais celle?ci n?ayant pas été reprise dans le dernier testament de la défunte, il s?en est suivi un litige sur la réalité de cette donation entre le demandeur et le défendeur. Dans l?arrêt commenté, l?OGH a déclaré que le demandeur était devenu propriétaire et que le défendeur, qui avait vendu le bien dont il n?était pas le possesseur de bonne foi, était tenu de l?indemniser. Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 0928-9801
ID: ERPL2005012 |
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'EuGH, 9.9.2003 (Fall Jäger) - Der Bereitschaftsdienst eines Arztes in einem Krankenhaus - Arbeitszeit oder Ruhezeit im Rahmen der Richtlinie 93/104/EG?', Klara Boonstra, Johanna Trambowicz, Christophe Vigneau, Issue 2, pp. 209–224 |
infoKlara Boonstra, Johanna Trambowicz, Christophe Vigneau, 'EuGH, 9.9.2003 (Fall Jäger) - Der Bereitschaftsdienst eines Arztes in einem Krankenhaus - Arbeitszeit oder Ruhezeit im Rahmen der Richtlinie 93/104/EG?' (2005) 13 European Review of Private Law, Issue 2, pp. 209–224 | | The plaintiff, who was working as an assistant?doctor in a hospital, was obliged to be on stand?by for emergency duties. He was running six such duties per month, which were reimbursed partly by compensatory time?off and partly by extra remuneration. Stand?by duties followed the regular duty and amounted to 16 hours on weekdays, 25 hours on Saturdays (8:30am to 9:30am Sunday) and 22 hours and 45 minutes on Sundays (8:30am to 7:17am Monday). The plaintiff spent these hours in the hospital and rendered his services, if called for. During the times he was not needed, he could sleep in a room at the hospital. On average, he was working 49% of the time of the stand?by duty. The plaintiff argued that, in the light of Directive 93/104/EEC the entire time for his on?duty service were to be considered as full?working time in the meaning of the German law on working time. The defendant was of the opinion that, in the light of jurisprudence and the prevailing doctrine, the idle time within the framework of a stand?by duty had to be considered resting, and not working time. The European Court of Justice was asked by the second instance labour Court to rule on the question whether such stand?by duties are idle time or working time. The ECJ held that such duty?calls are indeed working time, since such work bears the hallmark of the notion of working time in the meaning of Directive 93/104/EEC. It was, inter alia, decisive that the Plaintiff had to stay at a place determined by the employer and that he had to be at the latter?s disposal to render his services immediately if need be. Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 0928-9801
ID: ERPL2005013 |
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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, Issue 2, pp. 225–263 |
infoThomas 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, 'Recent case law/Arrêts récents/Aktuelle Gerichtsentscheidungen' (2005) 13 European Review of Private Law, Issue 2, pp. 225–263 | | 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 of the most important decisions of European courts in ERPL?s case note section. Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 0928-9801
ID: ERPL2005014 |
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'The Symposium ’Parallel and Conflicting Enforcement of Law’ in Thoresta, Sweden, 18-19 August 2004', Torbjörn Andersson, Issue 2, pp. 265–269 |
infoTorbjörn Andersson, 'The Symposium ’Parallel and Conflicting Enforcement of Law’ in Thoresta, Sweden, 18-19 August 2004' (2005) 13 European Review of Private Law, Issue 2, pp. 265–269 | | The symposium, as its title suggests, was about parallel proceedings, or to put it another way, parallel enforcement. The origin of the symposium may be traced back to a research project concerning parallel and conflicting enforcement of law, a project that I have been involved in for some years and which tend to grow constantly. The project has resulted in a number of articles, but the expected monograph is still waiting to be published. Furthermore, some years ago I found out that there is a similar project at the British Institute of International and Comparative Law in London, where research is conducted by Mads Andenäs and Renato Nazzini. Since then, there has been sporadic, but very valuable, cooperation between London and Uppsala in this area. Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 0928-9801
ID: ERPL2005015 |
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'Jean Yves Carlier, Marc Fallon, Bernadette Martin Bosly, Code de droit international privé 2004. Édition à jour au 1er septembre 2004', Katharina Boele Woelki, Issue 2, pp. 271–271 |
infoKatharina Boele Woelki, 'Jean Yves Carlier, Marc Fallon, Bernadette Martin Bosly, Code de droit international privé 2004. Édition à jour au 1er septembre 2004' (2005) 13 European Review of Private Law, Issue 2, pp. 271–271 | | In dieser umfangreichen Textsammlung zum belgischen IPR sind alle für den belgischen Rechtsanwender relevanten Regelungen für grenzüberschreitende Rechtsverhältnisse zu finden. Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 0928-9801
ID: ERPL2005016 |
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'Maria Elena Sanches Jordan and Antonio Gambado (eds), Land Law in a Comparative Perspective', John Michael Milo, Issue 2, pp. 273–274 |
infoJohn Michael Milo, 'Maria Elena Sanches Jordan and Antonio Gambado (eds), Land Law in a Comparative Perspective' (2005) 13 European Review of Private Law, Issue 2, pp. 273–274 | | This book deals with comparative land law, and is a reflection of the annual colloquium of the International Association of Legal Science, which was held in 2001 at the La Laguna University of Santa Cruz de Tenerife, Canary Islands. Land law is property law?s national refuge par excellence. Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 0928-9801
ID: ERPL2005017 |
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'List of Contributors', Issue 2, pp. 275–277 |
info'List of Contributors' (2005) 13 European Review of Private Law, Issue 2, pp. 275–277 | | List of Contributors Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 0928-9801
ID: ERPL2005018 |
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ISSUE 3 | |
'Editorial', Aurelia Colombi Ciacchi, Issue 3, pp. 281–283 |
infoAurelia Colombi Ciacchi, 'Editorial' (2005) 13 European Review of Private Law, Issue 3, pp. 281–283 | | Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 0928-9801
ID: ERPL2005019 |
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'Non-Legislative Harmonisation of Private Law under the European Constitution: The Case of Unfair Suretyships', Aurelia Colombi Ciacchi, Issue 3, pp. 285–308 |
infoAurelia Colombi Ciacchi, 'Non-Legislative Harmonisation of Private Law under the European Constitution: The Case of Unfair Suretyships' (2005) 13 European Review of Private Law, Issue 3, pp. 285–308 | | Keywords:
Suretyships, European Constitution, Case-Law Harmonisation This paper explores the horizontal effect of European constitutional rights, freedoms and principles as an alternative method of harmonisation based on case-law convergence. The feasibility and the appeal of this method are illustrated with specific reference to the case of unfair suretyships. A comparison of the existing national instruments protecting vulnerable sureties from disproportionate obligations enables us to detect spontaneous convergences and ?cryptotypes?, but also dramatically different levels of protection. This paper argues that to give equally effective protection to sureties? (and lenders?) fundamental rights in all Member States, a new system of judicial harmonisation would be necessary. Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 0928-9801
ID: ERPL2005020 |
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'Surety Agreements and the Principle of Accessority - Personal Security in the Light of a European Property Law Principle', Sjef Van Erp, Issue 3, pp. 309–331 |
infoSjef Van Erp, 'Surety Agreements and the Principle of Accessority - Personal Security in the Light of a European Property Law Principle' (2005) 13 European Review of Private Law, Issue 3, pp. 309–331 | | Keywords:
Surety Agreements, Accessority, Personal Securities The surety?s duty is both subsidiary and accessory to the principal debtor?s duty. Subsidiarity means that the surety only has to pay in case the principal debtor is unable or unwilling to do so. Accessority means that the (continued) existence, extent and contents of the surety?s duty depend on the (continued) existence, extent and contents of the principal debtor?s duty. The accessority principle applies particularly to real securities, but it also plays an important role with regard to personal securities, protecting (non-professional) sureties. It is submitted that the accessority principle should be seen as a fundamental principle of surety protection, not only at a national, but also at a European level. Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 0928-9801
ID: ERPL2005021 |
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'Decision-Making about Suretyships under Empirical Uncertainty - How Consequences of Decisions about Suretyships Might Influence the Law', Lorenz Kähler, Issue 3, pp. 333–355 |
infoLorenz Kähler, 'Decision-Making about Suretyships under Empirical Uncertainty - How Consequences of Decisions about Suretyships Might Influence the Law' (2005) 13 European Review of Private Law, Issue 3, pp. 333–355 | | Keywords:
Decisions under Uncertainty, Suretyship, Underprotection, Overprotection The paper addresses the uncertainty that prevails if courts have to decide about the fairness of suretyships. They do not know whether creditors will refrain from giving a credit in similar situations or increase the interest rate. Similarly, they do not know to what extent strict rules will ruin the lives of sureties. Several strategies how to deal with this uncertainty are analysed like the ignorance of adverse effects, the minimax-strategy and the choice of an overprotective or an underprotective rule. It will turn out that an underprotective rule creates a smaller risk than an overprotective rule. Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 0928-9801
ID: ERPL2005022 |
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'The Position of Family Sureties within the Framework of Protection for Consumer Debtors in European Union Member States', Rebecca Parry, Issue 3, pp. 357–381 |
infoRebecca Parry, 'The Position of Family Sureties within the Framework of Protection for Consumer Debtors in European Union Member States' (2005) 13 European Review of Private Law, Issue 3, pp. 357–381 | | Keywords:
Sureties, Consumer Protection, European Law Harmonisation Different approaches to the protection of sureties are currently taken in the European Union member states. A consideration of these different levels of protection requires an examination of social welfare law, contract law and bankruptcy law. This consideration is important because different approaches to surety protection represent potential barriers to the integration of the credit market, as envisaged under the draft Directive on consumer credit. The draft Directive may eliminate some of these barriers, but not others. In addition the Directive also has the potential to bring other, negative, consequences. If the Directive is successful it may have a significant impact on the level of over-indebtedness among consumers and, consequently, there will be a need to monitor the adequacy of consumer bankruptcy laws in the member states, in particular in light of any changes to the social welfare systems in operation. Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 0928-9801
ID: ERPL2005023 |
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'Consumer Guarantees in the Future Consumer Credit Directive: Mandatory Ban on Consumer Protection?', Peter Rott, Issue 3, pp. 383–404 |
infoPeter Rott, 'Consumer Guarantees in the Future Consumer Credit Directive: Mandatory Ban on Consumer Protection?' (2005) 13 European Review of Private Law, Issue 3, pp. 383–404 | | Keywords:
Consumer Guarantees, Maximum Harmonisation, Underprotection The proposed new Consumer Credit Directive will not only deal with credit contracts but also with surety agreements, including consumer guarantees. The latter will for the first time undergo harmonisation at EC level, and this will be in the form of total harmonisation. However, the Commission never undertook serious comparative analysis of the Member States? protection of consumer guarantors, and the proposal does not take account of the existing levels of protection. In contrast, the proposed protective instruments are incomplete and rather weak, and thus they would considerably reduce the protection of the guarantors in various Member States if the Directive disallowed more stringent national rules. Copyright © 2005 Kluwer Law International
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ID: ERPL2005024 |
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'Reflections on the EC’s Competence to Develop a ’European Contract Law’', Stephen Weatherill, Issue 3, pp. 405–418 |
infoStephen Weatherill, 'Reflections on the EC’s Competence to Develop a ’European Contract Law’' (2005) 13 European Review of Private Law, Issue 3, pp. 405–418 | | Keywords:
European Contract Law, Harmonisation, Competence Does the EC have competence to legislate in the field of contract law? This paper demonstrates that there are ambiguities to be confronted, especially in the wake of the treatment of the permissible scope of legislative harmonisation by the Court in its Tobacco Advertising judgment (Case C-376/98). The paper tracks the Commission?s evident preference to avoid plunging into the ?competence question? in its contract law documentation of 2001, 2003 and 2004. It finds such caution to be entirely understandable, though the matter remains of lurking significance in the development of European contract law. Copyright © 2005 Kluwer Law International
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ID: ERPL2005025 |
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'EuGH, 30.9.2003, C-224/01, Gerhard Köbler v. Republik Österreich - Liability of a Member State for Damage Caused to Individuals by Infringements of Community Law for Which It Is Responsible', Mark H. Wissink, Michael Stürner, Walter Cairns, Issue 3, pp. 419–442 |
infoMark H. Wissink, Michael Stürner, Walter Cairns, 'EuGH, 30.9.2003, C-224/01, Gerhard Köbler v. Republik Österreich - Liability of a Member State for Damage Caused to Individuals by Infringements of Community Law for Which It Is Responsible' (2005) 13 European Review of Private Law, Issue 3, pp. 419–442 | | Mr Köbler has been employed since 1 March 1986 under a public-law contract with the Austrian State in the capacity of ordinary university professor in Innsbruck (Austria). He applied for the special length-of-service increment for university professors. He claimed that, although he had not completed 15 years? service as a professor at Austrian universities, he had completed the requisite length of service if the duration of his service in universities of other Member States of the European Community were taken into consideration. He claimed that the condition of completion of 15 years service solely in Austrian universities amounted to indirect discrimination unjustified under Community law. The Verwaltungsgerichtshof (Supreme Administrative Court) referred to the Court a request for a preliminary ruling, which it later withdrew. It also dismissed Mr Köbler?s application on the ground that the special length-of-service increment was a loyalty bonus which objectively justified a derogation from the Community law provisions on freedom of movement for workers. Then Mr Köbler brought an action for a declaration of liability against the Republic of Austria for breach of a provision of Community law by a judgment of the Verwaltungsgerichtshof, Austria before the Landesgericht für Zivilrechtssachen Wien (Regional Civil Court, Vienna), which referred to the Court for a preliminary ruling several questions. The Court held that the principle that Member States are obliged to make good damage caused to individuals by infringements of Community law for which they are responsible is also applicable where the alleged infringement stems from a decision of a court adjudicating at last instance where the rule of Community law infringed is intended to confer rights on individuals, the breach is sufficiently serious and there is a direct causal link between that breach and the loss or damage sustained by the injured parties. In order to determine whether the infringement is sufficiently serious when the infringement at issue stems from such a decision, the competent national court, taking into account the specific nature of the judicial function, must determine whether that infringement is manifest. Secondly, the Court held that a measure such as the special length-of-service increment under Austrian law results in an obstacle to freedom of movement for workers which cannot be justified by a pressing public-interest reason. Finally, the Court decided that an infringement of Community law, such as that stemming in the circumstances of the main proceedings from the judgment of the Verwaltungsgerichtshof, does not have the requisite manifest character for liability under Community law to be incurred by a Member State for a decision of one of its courts adjudicating at last instance. Copyright © 2005 Kluwer Law International
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ID: ERPL2005026 |
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'Cour de Cass., 26.11.2003 - ’Perte de Chance’ (Expectation Interest) and Liability of a Third Person in Case of Breaking Off Negotiations', María Paz García Rubio, Gerald Mäsch, John Cartwright, Martijn W. Hesselink, Issue 3, pp. 443–461 |
infoMaría Paz García Rubio, Gerald Mäsch, John Cartwright, Martijn W. Hesselink, 'Cour de Cass., 26.11.2003 - ’Perte de Chance’ (Expectation Interest) and Liability of a Third Person in Case of Breaking Off Negotiations' (2005) 13 European Review of Private Law, Issue 3, pp. 443–461 | | This case deals with the interruption of negotiations, where the chambre commerciale of the Cour de cassation, for the first time, teaches two important lessons, a theoretical as well as a practical one. On the one hand, the loss of the possibility to make earnings which the conclusion of the contract led to hope for does not constitute a reparable damage, because it is not caused by circumstances constituting a fault in the interruption of the negotiations. On the other hand, the simple fact of contracting, even with full knowledge of the fact, with a person who is already engaged in negotiations with a third party, does not constitute as such a fault which may engage the liability of its author, unless it is inspired by an intention to harm or is accompanied by fraudulent misrepresentations. Copyright © 2005 Kluwer Law International
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ID: ERPL2005027 |
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'Peter Schlechtriem and Ingeborg Schwenzer (eds), Kommentar zum Einheitlichen UN-Kaufrecht. Das Übereinkommen der Vereinten Nationen über Verträge über den internationalen Warenkauf - CISG (4th ed.)', André Janssen, Issue 3, pp. 463–464 |
infoAndré Janssen, 'Peter Schlechtriem and Ingeborg Schwenzer (eds), Kommentar zum Einheitlichen UN-Kaufrecht. Das Übereinkommen der Vereinten Nationen über Verträge über den internationalen Warenkauf - CISG (4th ed.)' (2005) 13 European Review of Private Law, Issue 3, pp. 463–464 | | Copyright © 2005 Kluwer Law International
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ID: ERPL2005028 |
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'List of contributors', Issue 3, pp. 465–466 |
info'List of contributors' (2005) 13 European Review of Private Law, Issue 3, pp. 465–466 | | Copyright © 2005 Kluwer Law International
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ID: ERPL2005029 |
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ISSUE 4 | |
'Effective Unilateral Ending of Complex Long-term Contracts', Machteld W. De Hoon, Issue 4, pp. 469–490 |
infoMachteld W. De Hoon, 'Effective Unilateral Ending of Complex Long-term Contracts' (2005) 13 European Review of Private Law, Issue 4, pp. 469–490 | | Should contract law enable (and perhaps even stimulate) contracting parties to achieve a settlement that is compatible with both their needs? According to some scholars it should. If this is indeed one of the aims of contract law, the unilateral ending of complex long-term contracts is one of the topics that may need a critical evaluation. It seems that the power to end complex long-term contracts unilaterally is not really the issue, since no complex cooperation can be forced to continue if commitment is lacking; it is the way in which a long-term cooperation comes to an end that matters. Reasonable expectations need to be taken into account to some extent; conflicts often arise because contracting parties disagree on this ?reasonable expectations?-part. The costs of these conflicts can be high, even without legal proceedings. The purpose of this paper is to explore the possibilities of contract law to help reduce both the number and the intensity of conflicts arising from the unilateral ending of a complex cooperation. For this purpose, the unilateral ending instrument is reframed into a model of negotiations. Copyright © 2005 Kluwer Law International
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ID: ERPL2005030 |
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'Capacity and Capability in European Contract Law', Martijn W. Hesselink, Issue 4, pp. 491–507 |
infoMartijn W. Hesselink, 'Capacity and Capability in European Contract Law' (2005) 13 European Review of Private Law, Issue 4, pp. 491–507 | | So far, the concept of legal capacity is absent in the acquis communautaire on contract law. This article argues that a common frame of reference and an optional European code of contracts cannot do without rules on legal capacity. In the national contract laws of the Member States the main aim of the invalidity of contracts for incapacity has been the protection of persons against the consequences of a misjudgment of their own interests. This raises the question why the law should only protect persons who belong to a limited number of categories who are presumed not to be able to take proper care of their own interests. This article argues that under European contract law a person who has concluded a contract which is actually (extremely) unbalanced deserves equal protection. Such a ?fair price? rule would contribute to substantive freedom of contract as it would facilitate access to the market. Finally, this article questions whether European contracts should be enforceable if they contribute to severely undermining the capabilities of other people (e.g. child workers in sweatshops) to choose the lives they have reason to value. Copyright © 2005 Kluwer Law International
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ID: ERPL2005031 |
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'Schweizerisches Bundesgericht, 4C.175/2003 vom 28.10.2003 - Zur Frage der rechtsmißbräuchlichen Berufung auf Formnichtigkeit bei einem bereits teilweise erfüllten Vertrag', Michael Stürner, Klaus Reichert, Graham P. Kenny, Issue 4, pp. 509–518 |
infoMichael Stürner, Klaus Reichert, Graham P. Kenny, 'Schweizerisches Bundesgericht, 4C.175/2003 vom 28.10.2003 - Zur Frage der rechtsmißbräuchlichen Berufung auf Formnichtigkeit bei einem bereits teilweise erfüllten Vertrag' (2005) 13 European Review of Private Law, Issue 4, pp. 509–518 | | The decision by the Swiss Bundesgericht was based on the following facts. The parties were the sole shareholders of the X-AG [public limited company] and the Y-GmbH [limited company]. In 1999 they agreed, without being aware of the special form requirement in respect of the transfer of a share in the GmbH, that the plaintiff would resign from both companies and transfer his shares in the X-AG to the GmbH and his core-shares in the Y-GmbH to the defendant. In exchange the plaintiff was entitled to a sum of 670,000 Swiss Francs, payable in four instalments. After having paid the first instalment of 400,000, the defendant denied further payment upon knowledge and immediate notification of the lack of form, i.e. the missing notarisation of their agreement. All instances, including the Swiss Bundesgericht, rejected the claim by the plaintiff, arguing that the defendant did not abuse his right by invoking the lack of form of their agreement, i.e. the fact that the transfer of the shares was not notarised. Their agreement was concluded without the knowledge of this form requirement. In addition, it was considered indivisible, and thus completely void; it was irrelevant that the agreement was performed partly. Copyright © 2005 Kluwer Law International
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ID: ERPL2005032 |
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'House of Lords, 19 November 2003, Shogun Finance Limited v. Hudson - Effect of Fraudulent Misrepresentation on the Formation of a Contract', Madeleine Van Rossum, Bénédicte Fauvarque-Cosson, Nieves Fenoy Picón, João António Pinto Monteiro, Issue 4, pp. 519–552 |
infoMadeleine Van Rossum, Bénédicte Fauvarque-Cosson, Nieves Fenoy Picón, João António Pinto Monteiro, 'House of Lords, 19 November 2003, Shogun Finance Limited v. Hudson - Effect of Fraudulent Misrepresentation on the Formation of a Contract' (2005) 13 European Review of Private Law, Issue 4, pp. 519–552 | | In order to obtain possession of a car under a hire-purchase agreement with the claimant firm, a person who can only be described as a fraudster availed himself of a false identity, i.e. that of a Mr. Patel. The firm concerned, Shogun Finance, performed all the necessary identity and credit checks in relation to the Mr. Patel. The defendant duly paid a deposit, and the dealer delivered the vehicle to the fraudster. The latter then sold the car to a third party, one Norman Hudson, and disappeared with the money. Once it appeared that the fraudster had defaulted on the agreement, the claimants demanded that the vehicle be returned to them. Under S. 27 of the Hire Purchase Act 1964, Mr. Hudson could have retained the car lawfully if he could prove that the agreement between the rogue and Shogun was merely voidable by the latter. If, on the other hand, the contract had been void ab initio, the hapless Mr. Hudson would be compelled to return the vehicle to the claimants. The House of Lords, by a majority of 3 to 2, awarded the action to Shogun. The basis for their ruling was that, since the pre-contractual negotiations had not been conducted on a face-to-face basis, and since the circumstance of Mr. Patel being the purchaser was fundamental to Shogun, no contract could have been made since no agreement had been reached. Had the negotiations taken place on a face-to-face basis, the Law Lords would probably have found in favour of Mr. Hudson. In a dissenting opinion, Lords Millett and Nicholls of Birkenhead opined that, in today?s world of customer identification and credit checks, it was impossible to make a distinction between negotiations conducted face-to-face and those which took place by telephone, fax or even videolink. Copyright © 2005 Kluwer Law International
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ID: ERPL2005033 |
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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, Gillian Black, Miquel Martín-Casals, Jordi Ribot Igualada, Albert Ruda González, Issue 4, pp. 553–592 |
infoThomas 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, Gillian Black, Miquel Martín-Casals, Jordi Ribot Igualada, Albert Ruda González, 'Recent Case Law' (2005) 13 European Review of Private Law, Issue 4, pp. 553–592 | | 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 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 publish decisions of high courts taken from January to April 2005. 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. Copyright © 2005 Kluwer Law International
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ID: ERPL2005034 |
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'The Commission Proposal for a Regulation Establishing a European Small Claims Procedure: An Analysis', Georg Haibach, Issue 4, pp. 593–601 |
infoGeorg Haibach, 'The Commission Proposal for a Regulation Establishing a European Small Claims Procedure: An Analysis' (2005) 13 European Review of Private Law, Issue 4, pp. 593–601 | | On 15 March 2005 the European Commission adopted a proposal for a Regulation establishing a European Small Claims Procedure. The aim of the proposal is to simplify, speed up and reduce the costs of litigation concerning small claims by establishing a European Small Claims Procedure. The new procedure will be available to litigants as an alternative to the procedures existing under the laws of the Member States. For the first time, citizens and businesses will have a speedy and affordable civil procedure at their disposal which is uniform in all Member States and in all procedural steps from the commencement of the procedure to the enforcement of the judgment. This Article lays out the main features of the Commission proposal. Copyright © 2005 Kluwer Law International
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ID: ERPL2005035 |
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'Bericht über die Tagung ’agere in rem’ - Eigentumsschutz in Kontinentaleuropa: Theorie und Praxis, 7.-10. Oktober 2004 im Centro Congressi Panorama, Sardagna, Trento', Michael Giebel, Issue 4, pp. 603–609 |
infoMichael Giebel, 'Bericht über die Tagung ’agere in rem’ - Eigentumsschutz in Kontinentaleuropa: Theorie und Praxis, 7.-10. Oktober 2004 im Centro Congressi Panorama, Sardagna, Trento' (2005) 13 European Review of Private Law, Issue 4, pp. 603–609 | | Die Rechtsvereinheitlichung auf europäischer Ebene fokussiert sich in immer stärkerem Maße auf das Privatrecht. Auch wenn sie sich bisher eher auf einzelne Spezialfragen auf dem Gebiet des Schuldrechts konzentriert, können sich auch aus unterschiedlichen Regelungen auf dem Gebiet des Sachenrechts Hemmnisse für den Binnenmarkt ergeben. Vor diesem Hintergrund fand vom 7.-10. Oktober 2004 im Centro Congressi Panorama zu Sardagna, Trient, die Tagung ?agere in rem? statt. Juristen aus verschiedenen europäischen Ländern ? Wissenschaftler wie Praktiker ? diskutierten über vier Tage hinweg über den Eigentumsschutz in Kontinentaleuropa, um eine mögliche Basis für eine europaweit einheitliche Regelung zu finden. Eingeladen dazu hatten Massimo Miglietta und Gianni Santucci aus Trient sowie Christian Baldus aus Heidelberg. Copyright © 2005 Kluwer Law International
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ID: ERPL2005036 |
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'Hugh Collins (ed.), The Forthcoming EC Directive on Unfair Commercial Practices: Contract, Consumer and Competition Law Implications', Rogier De Vrey, Issue 4, pp. 611–613 |
infoRogier De Vrey, 'Hugh Collins (ed.), The Forthcoming EC Directive on Unfair Commercial Practices: Contract, Consumer and Competition Law Implications' (2005) 13 European Review of Private Law, Issue 4, pp. 611–613 | | Copyright © 2005 Kluwer Law International
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ID: ERPL2005037 |
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'List of contributors', Issue 4, pp. 615–617 |
info'List of contributors' (2005) 13 European Review of Private Law, Issue 4, pp. 615–617 | | Copyright © 2005 Kluwer Law International
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ID: ERPL2005038 |
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ISSUE 5 | |
'Regulating Contracting Behaviour: The Duty to Disclose in English and French Law', Paula Giliker, Issue 5, pp. 621–640 |
infoPaula Giliker, 'Regulating Contracting Behaviour: The Duty to Disclose in English and French Law' (2005) 13 European Review of Private Law, Issue 5, pp. 621–640 | | The nature and content of any duty to provide information prior to contract is a matter which lies at the heart of European private law. It forms part of the acquis communautaire and is seen as a basic tool of consumer protection. It is not neglected in the proposed Common Frame of Reference which, in its third part, will produce Model Rules which, inter alia, specify the information which should be given before the conclusion of a contract. Yet, this is a topic in which one sees a particular common and civil law divide. The author uses English and French law to demonstrate differing approaches to this question, termed ?non-disclosure? by one system and ?l?obligation de renseignement? by the other. The reasons for this divide, in particular the forms of reasoning adopted by the courts, are examined and signs of overlap identified. It is suggested that only by first recognizing the diversity in approach can one move forward to find core principles which will reflect a common understanding of the moral, economic and political issues at stake. Copyright © 2005 Kluwer Law International
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ID: ERPL2005039 |
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'The Cape Town Convention on Interests in Mobile Equipment as Applied to Aircraft: Are Lenders Better Off Under the Geneva Convention?', Giulia Mauri, Issue 5, pp. 641–655 |
infoGiulia Mauri, 'The Cape Town Convention on Interests in Mobile Equipment as Applied to Aircraft: Are Lenders Better Off Under the Geneva Convention?' (2005) 13 European Review of Private Law, Issue 5, pp. 641–655 | | In November 2001, several countries signed, in Cape Town, the Convention on Interests in Mobile Equipment and its Aircraft Specific Protocol. The declared aim of the Convention is the introduction of more transparency and predictability in aviation finance deals. Already the Geneva convention, signed back in 1948, tried to address the concerns of the international financial community. However, this convention is now generally considered to be insufficient and not adapted to new financing instruments. In order to gain widespread approval, the Cape Town Convention provides for an opt-out system whereby Contracting States can decide not to apply or how to apply certain provisions of the Convention. Since these opt-out provisions relate to core area of the Convention, it is legitimate to ask whether this system, that has on the one hand granted the Convention general approval, would not, in the end, jeopardize its scope. Would then the lenders be better off under the existing system ? After having analyzed the core opt-out provisions and having tried to evaluate their impact on the scope of the Convention, the author concludes that the overall project of the Convention brings about more predictability and transparency in aviation finance and that the opt-out system is a ?necessary evil to obtain a higher good?. Copyright © 2005 Kluwer Law International
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ID: ERPL2005040 |
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'The Distinction between Obligations de Résultat and Obligations de Moyens and the Enforceability of Promises', Dario Alessi, Issue 5, pp. 657–692 |
infoDario Alessi, 'The Distinction between Obligations de Résultat and Obligations de Moyens and the Enforceability of Promises' (2005) 13 European Review of Private Law, Issue 5, pp. 657–692 | | The distinction between obligations de résultat and obligations de moyens was proposed at the beginning of the last century by Demogue, a famous French scholar. According to the distinction, while an obligation de résultat is directed at guaranteeing the attainment of a specific result, an obligation de moyens consists of the employment of the duty of care in performing a contractual obligation. Such distinction gained some success and was transplanted in many jurisdictions. This contribution considers the distinction between obligations de résultat and obligations de moyens as a juridical epiphany of those conceptions of contract law founding the enforceability of promises on the mere will of the parties. In this contribution two questions are posed: the first concerns the conditions under which responsibility for breach of contract is triggered and the second deals with the extent to which the promisor shall be bound to the given promise. By providing an answer to these questions, this contribution reveals that the distinction between obligations de résultat and obligations de moyens is logically based upon a questionable method of abstraction rooted in the evolution of the law towards the abandoning of the traditional ideas and concepts having characterized contract law for centuries. The historical process of abandonment of the criteria of enforceability of promises, with particular regard to the subjectivization of causa, has provided the conceptual grounds for the coming into existence of the distinction between obligations de résultat and obligations de moyens. The distinction between obligations de résultat and obligations de moyens is based upon the reduction of causa to any subjective reason or motive for contracting. Precisely, the distinction between obligations de résultat and obligations de moyens holds and presupposes causa as the promisor?s subjective motive to which the obligation tends and which shall be realized by the promise. This process is however flawed since causa in its objective meaning represents something unavoidable for the enforcement of promises. The existence of causa (intended as the contractual exchange) represents a juridical necessity in contracts. Although shaped into different forms, the objective contractual exchange represents the same entity for every obligation; thus, in every obligation the requirement of an objective causa must exist to make it enforceable. As the necessity of the existence of an objective causa is ascertained, the validity of the distinction between obligations de résultat and obligations de moyens is strongly challenged. Copyright © 2005 Kluwer Law International
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ID: ERPL2005041 |
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'Non-Optional Elements in an Optional European Contract Law. Reflections from a Private International Law Perspective', Helmut Heiss, Noemí Downes, Issue 5, pp. 693–712 |
infoHelmut Heiss, Noemí Downes, 'Non-Optional Elements in an Optional European Contract Law. Reflections from a Private International Law Perspective' (2005) 13 European Review of Private Law, Issue 5, pp. 693–712 | | The EC Commission is considering the enactment of an optional instrument of European Contract Law. From a common market perspective such instrument will only be successful if it covers areas of mandatory law (consumer protection and insurance). A fundamental question relates to the regulatory model that could be used to provide parties with an option to choose the instrument. Legal literature proposes a change of Art. 3 para. 1 of the Rome Convention to the effect that an optional instrument may be chosen as the lex causae of a contract. There are, however, several technical problems making this regulatory model burdensome. This is particularly true with an optional instrument covering areas of mandatory law (?non-optional elements?). A second model would be to implement a rule on direct applicability similar to Art. 1 para. 1 lit. a) CISG. However, since a European optional instrument would cover all types of contracts, it would be very hard if not impossible to find a proper rule of direct applicability for all possible cases. Therefore, an optional instrument should simply be enacted as an EC regulation establishing substantive contract law that is directly applicable in all member states and providing parties with an option. The choice granted in the optional instrument would thus depend on the applicability of the law of an EC member state to the contract. An analysis shows that such a regulatory approach would produce the best results. Copyright © 2005 Kluwer Law International
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ID: ERPL2005042 |
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'Cour de Cassation (Belgique), 2 septembre 2004 - Honoraires et frais d’avocats et conseil technique à cause de dommages contractuels à indemniser', Carmen Bayod Lopez, Matthias Kilian, Kalliopi Christakakou-Fotiadi, Issue 5, pp. 713–735 |
infoCarmen Bayod Lopez, Matthias Kilian, Kalliopi Christakakou-Fotiadi, 'Cour de Cassation (Belgique), 2 septembre 2004 - Honoraires et frais d’avocats et conseil technique à cause de dommages contractuels à indemniser' (2005) 13 European Review of Private Law, Issue 5, pp. 713–735 | | In this judgment, the Cour de cassation held that the legal fees and expenses of a lawyer or of a technical expert to which the victim of a contractual fault is exposed may constitute an element of damage that may give rise to compensation. These expenses are an element of the damage because they are made necessary by the non-performance of the agreement. In this particular (and most likely exceptional) case, it was clear that the legal statutory reimbursement which comprises the procedural indemnities (of first instance and of appeal) must be considered completely insufficient; moreover, in this case, considering the complexity of the cause, it must be admitted that an amount of expenses and fees (exceeding the allowances for procedure) forms an integral part of the damages suffered by defendants in the relationship between necessary causality and the faults made by applicants. Copyright © 2005 Kluwer Law International
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ID: ERPL2005043 |
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'’Europäische Methodenlehre’ - Tagung am 3./4. Juni 2005 an der Europa-Universität Viadrina zu Frankfurt (Oder)', Alexander Von Vogel, Issue 5, pp. 727–740 |
infoAlexander Von Vogel, '’Europäische Methodenlehre’ - Tagung am 3./4. Juni 2005 an der Europa-Universität Viadrina zu Frankfurt (Oder)' (2005) 13 European Review of Private Law, Issue 5, pp. 727–740 | | Copyright © 2005 Kluwer Law International
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ID: ERPL2005044 |
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'M. Bianca, S. Grundmann et S. Stijns (eds), La Directive communautaire sur la vente - Commentaire', Pauline Rémy-Corlay, Issue 5, pp. 741–748 |
infoPauline Rémy-Corlay, 'M. Bianca, S. Grundmann et S. Stijns (eds), La Directive communautaire sur la vente - Commentaire' (2005) 13 European Review of Private Law, Issue 5, pp. 741–748 | | Copyright © 2005 Kluwer Law International
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ID: ERPL2005045 |
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'Luisa Antoniolli and Anna Veneziano (eds), Principles of European Contract Law and Italian Law - A Commentary', Olaf Meyer, Issue 5, pp. 749–751 |
infoOlaf Meyer, 'Luisa Antoniolli and Anna Veneziano (eds), Principles of European Contract Law and Italian Law - A Commentary' (2005) 13 European Review of Private Law, Issue 5, pp. 749–751 | | Copyright © 2005 Kluwer Law International
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ID: ERPL2005046 |
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'List of Contributors', Issue 5, pp. 753–753 |
info'List of Contributors' (2005) 13 European Review of Private Law, Issue 5, pp. 753–753 | | Copyright © 2005 Kluwer Law International
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ID: ERPL2005047 |
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ISSUE 6 | |
'Contractual Control and Contractual Review in England and France', Simon Whittaker, Issue 6, pp. 757–778 |
infoSimon Whittaker, 'Contractual Control and Contractual Review in England and France' (2005) 13 European Review of Private Law, Issue 6, pp. 757–778 | | In this article, the author looks at two very different techniques for the control of the terms on which contracts are made. The first technique consists of the insertion of contract terms into the contract directly by law or by standard conditions set by public authorities or, less directly, as a result of a regulatory regime set up for the conduct of the business in the course of which the contracts are made. The second technique ? familiar to all European lawyers from Article 7 of the EC Directive on unfair terms in consumer contracts ? consists of the policing of unfair terms by public or private bodies taking preventative measures, whether judicial or extra-judicial. The author then looks at the interaction between these two types of control in the exclusion from judicial review by Article 1(2) of the Directive of contract terms ?which reflect mandatory statutory or regulatory provisions?. These issues are discussed from the point of view of English and of French law, examining their different choices in implementing the EC Directive, and contrasting the different mixtures of public and private law ways of thinking which are revealed. Copyright © 2005 Kluwer Law International
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ID: ERPL2005048 |
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'Information and Formal Requirements in EC Private Law', Peter Mankowski, Issue 6, pp. 779–796 |
infoPeter Mankowski, 'Information and Formal Requirements in EC Private Law' (2005) 13 European Review of Private Law, Issue 6, pp. 779–796 | | Modern Community law utilises duties to inform as instruments of consumer protection to a great extent. Rather often such duties appear as formal requirements the spectre of which is not all too wide. The business has to guarantee that the information is provided in documented form in order to overcome informational asymmetry. Furthermore, a specific array of sanctions for non-compliance has developed in the legal orders of the Member States. The sanctions traditionally stemming from non-compliance with formal requirements do not apply regularly whereas novel sanctions prevail which mainly instrumentalize the time limit applicable to the consumer?s right of withdrawal. Additionally, damages or alterations the burden of proof could become material. Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 0928-9801
ID: ERPL2005049 |
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'Registration of Interests as a Formality of Contracts: Comparative Remarks on Land Registers within the Frame of European Private Law', Sergio Cámara-Lapuente, Issue 6, pp. 797–839 |
infoSergio Cámara-Lapuente, 'Registration of Interests as a Formality of Contracts: Comparative Remarks on Land Registers within the Frame of European Private Law' (2005) 13 European Review of Private Law, Issue 6, pp. 797–839 | | Keywords:
Registration, contract, formality, Land Register, conveyance, mortgage This paper analyses the existing divergence between the systems of land registers in the Member States of the European Union and its impact in a partially harmonized field as European contract law. Taking as a starting point the notion of the registration as an additional formality required to gain full effectiveness of the contract before third parties, the acquis communautaire is reviewed while looking for some rules that deal with rights in rem that may be registered (i.e. reservation of title, timesharing) with land contracts or with mortgaged credits. From a comparative law approach several problems are studied that have to be tackled by all the registration systems (like the role of registration in the transfer of property, the contractual form entering the Register, the registration gap). The idea of computerization of registers as a possible path towards convergence is also explored, taking into account the patterns the English e-conveyance and e-registration, as designed by LRA 2002, the EU Eulis project and the International Register of the unidroit Convention of Cape Town of 2001 on international securities in mobile equipment. Finally, the possibilities for a harmonization of the existing registration systems and the present convergence features are evaluated. Copyright © 2005 Kluwer Law International
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ID: ERPL2005050 |
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'Precontractual Duties and Conclusion of Contract in European Law', Reiner Schulze, Issue 6, pp. 841–866 |
infoReiner Schulze, 'Precontractual Duties and Conclusion of Contract in European Law' (2005) 13 European Review of Private Law, Issue 6, pp. 841–866 | | For the future development of European contract law, one can extract from existing Community law not only fundamental principles like freedom of contract, non-discrimination on grounds of race, ethnic origin or gender and the protection of contractual parity in situations of structural imbalance. Moreover, the underlying principles of contract law provisions of Community law also form the basis for a set of rules for precontractual duties and formation of contract, which in some respects have innovative features in comparison with the traditional laws of most member states, for example in respect of information duties, the binding effect of precontractual statements and the rights of withdrawal. The planned Common Frame of Reference for European contract law will thus be able to build both on common traditions of the member states and on the autonomous principles of the Acquis communautaire. Copyright © 2005 Kluwer Law International
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ID: ERPL2005051 |
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'Schweizerisches Bundesgericht, Urteil vom 16.10.2003, 5C.109/2003/rov ? Zum Anspruch des Scheinvaters auf Erstattung geleisteten Kindesunterhalts gegen den leiblichen Vater aus ungerechtfertigter Bereicherung.', Caroline Forder, Eric Clive, Bernd Linke, Issue 6, pp. 867–887 |
infoCaroline Forder, Eric Clive, Bernd Linke, 'Schweizerisches Bundesgericht, Urteil vom 16.10.2003, 5C.109/2003/rov ? Zum Anspruch des Scheinvaters auf Erstattung geleisteten Kindesunterhalts gegen den leiblichen Vater aus ungerechtfertigter Bereicherung.' (2005) 13 European Review of Private Law, Issue 6, pp. 867–887 | | From mid 1980 to the spring of 1982 the Plaintiff and X lived in cohabitation. X gave birth to a child in July 1980, which was recognized by the Plaintiff as his child. Subsequently, the Plaintiff paid maintenance to the child and continued to do so after the cohabitees separated. Upon attaining the age of majority, the child commenced proceedings with the aim of establishing that the Plaintiff was no this father, but that the Defendant was. Following a DNA-test establishing that the Defendant was indeed the biological father, the Defendant assumed, with retrospective effect back to March 2000, the obligation to pay maintenance. In November 2000 the Plaintiff brought an action in unjust enrichment against the Defendant in respect of those maintenance payments as to which the claim was not extinguished by the absolute limitation period. The previous courts upheld the claim, as did the Bundesgericht (Central Appeal Court). According to the Bundesgericht, the rules of unjust enrichment are applicable to this case, since the Swiss Civil Code does not contain any special provisions on the repayment of child maintenance. Once the family law relationship between the Plaintiff and the child was terminated, Plaintiff?s obligation to pay maintenance consequently also extinguished retrospectively, and the Plaintiff was mistaken about the legal obligation to pay maintenance. In such a case, the man registered as legal father can sue the child, the mother and the begetter. It is irrelevant that, when suing the begetter, the claim is not brought against the recipient of the maintenance payments. In fact, the claim based on unjust enrichment does not require a direct movement of property between the claimant and the person alleged to have been unjustly enriched; what needs to be established is rather the enrichment which one person has gained at the cost of another person. Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 0928-9801
ID: ERPL2005052 |
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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, Gillian Black, Miquel Martín-Casals, Jordi Ribot Igualada, Albert Ruda González, Ross MacDonald, Issue 6, pp. 889–934 |
infoThomas 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, Gillian Black, Miquel Martín-Casals, Jordi Ribot Igualada, Albert Ruda González, Ross MacDonald, 'Recent case law' (2005) 13 European Review of Private Law, Issue 6, pp. 889–934 | | 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. Discussions on the most important decisions of European courts can be found 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 publish decisions of high courts taken from May to August 2005. 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. Ross Macdonald from Dundee University (Scotland) has edited the national reports. Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 0928-9801
ID: ERPL2005053 |
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'Wege zur Konkretisierung von Generalklauseln: Was leistet die deutsche Wissenschaft vom Europäischen Privatrecht? (Tagung am 29. April 2005)', Lena Kunz, Issue 6, pp. 935–943 |
infoLena Kunz, 'Wege zur Konkretisierung von Generalklauseln: Was leistet die deutsche Wissenschaft vom Europäischen Privatrecht? (Tagung am 29. April 2005)' (2005) 13 European Review of Private Law, Issue 6, pp. 935–943 | | Essentially, directives that base on detailed language as well as blanket clauses achieve the current progress in harmonization of Private Law. To the detriment of legal security, the enhanced vagueness of blanket clauses provides extensive flexibility to national courts for reaction to changing social needs. Indeed, their indefinite language facilitates the unification of the different European Private Law systems. Nonetheless, varied interpretation of blanket clauses ? although a unique chance ? may undermine the setting of a legal framework and entails the risk of unilateral reception of approaches of one favoured Private Law system. For that reason, it is necessary to find a way of application of blanket clauses without putting the harmonization of Private Law in Europe at risk. Facing this situation and subsequent to an inaugural lecture on methodology of EC Private Law, a conference in Heidelberg discussed about blanket clauses in the process of harmonization of European Private Law and the role of German jurisprudence therein. Summarizing and taking into account the present shape of EC Private Law harmonization, the conference allowed to question the suitability of blanket clauses as an instrument of harmonization. However, deeming the EC ready, the autonomous development of case patterns was proposed as a methodically acceptable way to interpret blanket clauses. Rejecting case patterns as too inflexible, guidelines for interpretation were alternatively suggested as an adequate way of interpretation. Moreover, German jurisprudence was criticized for its minor interest in the dialogue with other European Private Law systems. Copyright © 2005 Kluwer Law International
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ID: ERPL2005054 |
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'Clara-Erika Dietl und Egon Lorenz, Wörterbuch für Recht, Wirtschaft und Politik (Teil I - Englisch-Deutsch, 6. Auflage, 2000; Teil II - Deutsch-Englisch, 5. Auflage, 2005)', Bartosz Sujecki, Issue 6, pp. 945–947 |
infoBartosz Sujecki, 'Clara-Erika Dietl und Egon Lorenz, Wörterbuch für Recht, Wirtschaft und Politik (Teil I - Englisch-Deutsch, 6. Auflage, 2000; Teil II - Deutsch-Englisch, 5. Auflage, 2005)' (2005) 13 European Review of Private Law, Issue 6, pp. 945–947 | | Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 0928-9801
ID: ERPL2005055 |
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'Index 2005', Issue 6, pp. 949–952 |
info'Index 2005' (2005) 13 European Review of Private Law, Issue 6, pp. 949–952 | | Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 0928-9801
ID: ERPL2005056 |
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'List of Contributors', Issue 6, pp. 953–955 |
info'List of Contributors' (2005) 13 European Review of Private Law, Issue 6, pp. 953–955 | | Copyright © 2005 Kluwer Law International
All rights reserved ISSN: 0928-9801
ID: ERPL2005057 |
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