ARTICLES and NOTES - Notarius International

Notarius International 3-4/2002 C. Hertel, Preventive Consumer Protection 221
English language does not have a proper word I
think, it is either the first or the latter, but I do not yet
see a common terminology here.
- Is the concept of “Freiwillige Gerichtsbarkeit” translated
adaequately by “voluntary jurisdiction” or rather
by “non-contentious jurisdiction” Here at least,
we have two possible translations, though none yet
has been fixed as a technical term.
- And how about “Vorsorge als Rechtsprinzip” which
had been the title of a lecture on a similar subject as
today during the German Notary Congress 2002 in
Dresden 12 Is it “preventive protection” (as in the title
of this article) or “preventative protection”
So I warmly welcome the Action’s Plan proposal to
start with a common frame of reference 13 which would
define at least the most basic terms and concepts of contract
law and provide us with a common legal language
even if we still talk different linguistic languages.
The definitions in a common frame of reference would
also help us to get rid of the superfluous definitions
contained in every single directive now. I still remember
very clearly the first time I read a European directive
in law school. Having been trained in the German law
with a very clear system of definition of legal terms, I
was abhorred by finding every single term defined in every
single directive – and even defined differently in different
directives.
2.2. Harmonisation cannot avoid hard choices
One problem an Optional Code cannot avoid is to
make hard choices between different solutions in the
existing national laws. Any harmonisation of the substantive
civil law in Europe will have to bridge the differences
between the national legal cultures. The main difference,
of course, is the one between the continental law
on the one hand and the common law on the other hand
(with the nordic countries somewhere in between), but
many legal questions are also solved differently in the
various continental states, not to mention further specific
problems of the candidate states due to their recent transition
from communist rule.
Just to give you two examples:
- Probably, the common law states would have to accept
specific performance as the rule rather than the
exception.
- Also the concept of precontractual liability (if one
party does walk off from contract negotiations) is well
known in many continental legal systems, but largely
unknown in the common law.
There is no common denominator for these differing
concepts. Here, the legislator will have to make some
hard choices 14 . It is not possible to bridge the difference
by a mere formula compromise – neither in mandatory
law nor in an optional instrument. Thus the PECL rules
on these two points (PECL 2:301 and 9:102) have been
critized as deliberately vague recently by Smits 15 .
Prof. Remy Corlay, has said she would not be afraid
just to codify the abstract concept such as precontractual
disclosure. I strongly object. In the national context,
such abstract principles have been defined by several
decades of jurisdiction and jurisprudence. In the context
of any given national law, the national lawyer knows
what the outcome of such an abstract principle would be
if being applied to a given case. However, with a European
abstract concept, nobody would know 16 . Instead one
would have to ask on which national system the particular
European concept is based – but still one would have
to take into account, that mostly the European concept
would be a mix of several national models.
Can we manage this task without developing too complicated
rules There are warning examples in European
law. I might mention the 11th directive on Company Law
concerning foreign branch offices 17 . The rules thereby
created on foreign branch offices are so complicated, that
in practice most companies prefer to establish a foreign
subsidiary, because it is easier. Normally, it should be
rather the other way round.
2.3. Impacts of European Contract Law on other
areas of the law
Any change in contract law might have far reaching
consequences in other legal areas, e.g.:
- Normally, one would first think of securities and insolvency:
One might think about the halfhearted regulations
on the reservation of title in the late payments
directive 18 . European contract law might also bring
up the question which types of contracts can be invalidated
by insolvency. Thus, the harmonisation of con-
12 Richter, Vorsorge als Prinzip einer sozialen Rechtsordnung in Europa,
DNotZ 2002, 29* (special edition Deutscher Notartag).
13 Similarly, the European Parliament in its resolution on European contract
law of 15th november 2001 proposed to create first a database
for the legal terms of contract law.
14 Some of the changes caused in the Dutch law by the application of
the Lando Principles are discussed by D. Busch/E. Hondius, Ein neues
Vertragsrecht für Europa: Die Principles of European Contract
Law aus niederländischer Sicht, ZEuP (Zeitschrift für Europäisches
Privat-recht) 2001, 223-247.
15 J. Smits, Some critical remarks ont the use of the principles of European
Contract Law, Notarius International 2001, 142.
16 For an excellent case study of the application of the concept of good
faith in different European jurisdictions comp. R. Zimmermann/S.
Whittaker, Good Faith in European Contract Law, Cambridge (Cambridge
University Press) 2000. The diffenences in some other general
concepts are discussed in some contributions in: A. Hartkamp/M.
Hesselink/E. Hondius/C. Joustra/E. Du Perron, Towards a European
Civil Code, 2nd ed., The Hague/London/Boston (Kluwer Law International)
1998. My scepticism is shared e.g. by E. Hondius, Finding
the Law and Harmonisation of Private Law in Europe, in: H. Schulte-Nölke/Reiner
Schulze (ed.), Europäische Rechtsangleichung und
nationale Privatrechte, Baden-Baden (Nomos) 1999, p. 393.
17 Eleventh Council Directive 89/666/EEC of 21 December 1989 concerning
disclosure requirements in respect of branches opened in a
Member State by certain types of company governed by the law of
another State, Official Journal 1989 L 395 , P. 36-39.
18 Retention of title – article 4 of the Directive 2000/35/EC of the European
Parliament and of the Council of 29 June 2000 on combating
late payment in commercial transactions, Official Journal L 200,
08/08/2000 p. 35-38, in internet see: http://europa.eu.int/eur-lex/pri/
en/oj/dat/2000/l_200/l_20020000808en00350038.pdf