ARTICLES and NOTES - Notarius International

222 C. Hertel, Preventive Consumer Protection Notarius International 3-4/2002
tract law might bring calls for harmonisiation of the
rules on securities and insolvency, because this is
when the economic value of a contractual obligation
will be tested.
- Contract law also affects real estate law, in particular,
if the transfer of real estate requires a valid contractual
causa (as it does in many European states).
- In labour law one might ask for example whether or
not the rules on unfair terms are also applicable to labour
law This is a question now heavily debated in
Germany after the integration of the rules on unfair
clauses in our civil code 19 .
- Even marriage law and inheritance law could be affected.
E.g. one might ask whether the rules apply also
to contracts on matrimonial property or on maintenance
of the divorced spouse – or for the contractual renunciation
of an inheritance or for a contractual will
(such as they exist for example in the German system).
Here, an optional instrument will avoid some, but not
all of the problems mentioned. An optional instrument
does not replace the existing national contract law. Therefore,
its scope could be restricted, thus as to exclude, for
example, labour law, marriage or inheritance law. Even if
the scope is not limited by law, well advised parties probably
will not choose the instrument for contracts for
which it is not suitable.
However, some problems arising from differences between
an European contract law and national law on securities,
real estate, insolvency etc. are the same with an
optional instrument. Therefore, also an optional instrument
would require further harmonisation in other areas
of law.
2.4. Harmonisation requires a European judicial system
There is an old saying: The law is what the court says
that it is. Therefore, harmonising the substantive law
will be incomplete without providing a possibiliy for
judicial review 20 . We have seen this happen in the interpretation
of the various directives and the national law
implementing the directives. Otherwise, there will be
French European contract law, British European contract
law, German European contract law and so on.
The European Court of Justice and the Court of First
Instance in their present form could not handle the task of
a supreme court for European contract law. They would
be overwhelmed by the caseload. At least, one would
need a multi-chamber court, probably even two instances
of European courts.
This problem would be smaller with an optional code,
because the caseload would be smaller. However, still
the European legislator would have to provide a venue
for revising the European contract law.
2.5. Harmonisation requires a European lawyer
Any harmonisation will also change the way national
lawyers work. Harmonisation will contribute to the development
of a European lawyer, but it will also require
a European lawyer.
French lawyers tick differently from their British counterparts,
British lawyers differently from their German
counterparts and so on. For a German lawyer, an article
in an Italian or French law review might read more like a
poem than like a scientific research. On the other hand,
the Italians or French might complain that a German law
review article is two thirds footnotes in fine print and one
third text only. In Germany, the courts and the jurisprudence
will quote each other, in other systems they might
largely ignore each other. These differences, of course,
will also influence the interpretation of a harmonised European
contract law.
European contract law will be a hybrid of the different
systems 21 – such as European law in general now is a hybrid
system. Therefore, all European lawyers will need to
adjust to the new system. An optional instrument would
give more time for this learning process – but unlike a
mere restatement it would also force the legal practitioner
to give some attention to the new instrument.
2.6. Do we really need European Contract Law
Finally an optional instrument will tell us, whether the
business community and consumers really want a unified
contract law – and for which purposes they want it.
Many of the applications of European contract law
which first come to one’s mind are already covered by the
UN-Convention on the Sale of Goods. This is all the
more important, because traditionally most national contract
laws are developed taking the sales contract as the
basic example also for the general rules. If we do the
same for the European contract law, we might end up only
duplicating something we already have. 22
However, an optional instrument might be used for
types of contract which nobody considered in the first
place. Prof. Basedow made a convincing case for the inclusion
of the insurance contract in an optional instru-
19 C. Brors, ZGS 2003, 34-38; M. Gotthardt, ZIP 2002, 277-289; R.
Hansen, ZGS 2003, 173; W. Hromadka, NJW 2002, 2523-2530; J.
Joussen, NZA 2001, 745-751; S. Lingemann, NZA 2002, 181; V. Rieble/S.
Klumpp, ZIP 2002, 2153-2161; G. Thüsing, BB 2002, 2666-
2674; C. Wallstein, DStR 2002, 1490-1495.
20 comp. J. Basedow, Die Klauselrichtlinie und der Europäische Gerichtshof
– eine Geschichte der verpaßten Gelegenheiten, in: H. Schulte-Nölke/Reiner
Schulze (ed.), Europäische Rechtsangleichung und
nationale Privatrechte (note 13), p. 277-290; J. Basedow, Der Raum
des Rechts – ohne Justiz, ZEuP (Zeitschrift für Europäisches Privatrecht)
2001, 437-440; K. Kerameus, Procedural Implications of Civil
Law Unification, in: A. Hartkamp/M. Hesselink/E. Hondius/C.
Joustra/E. Du Perron, Towards a European Civil Code (note 18); Ch.
Schmid, Legitimitätsbedingungen eines Europäischen Zivilgesetzbuchs,
JZ 2001, 674, 683.
The necessity to create a European jurisdiction has also been seen for
the community patent (comp. COM/2000/0412, Official Journal 2000
C 337 E, p. 0278).
21 J. Smits, The making of European private law, Towards a Ius Commune
Europaeum as a Mixed Legal System, Antwerp/Oxford/New
York (Intersentia) 2002.
22 However, P. Huber, European Private International Law, Uniform
Law and the Optional Instrument, ERA-Forum 2/2003, has pointed
out there are many gaps in the CISG, so that even a European Contract
Law designed exclusively to fill out these gaps might make
sense.