ARTICLES and NOTES - Notarius International

Notarius International 3-4/2002 C. Hertel, Preventive Consumer Protection 225
- Formal requirements are one major distinction between
continental and common law. You cannot
achieve harmonisation without also adressing this difference.
- Formal requirements are also a method for consumer
protection – although they have hardly been used
so far in European law.
Thus, the necessity to include rules on formal requirements
is also mentioned in the resolution of the European
Parliament on European contract law. In its resolution
of 15 november 2001 on the European Commission's
Communication on European Contract law, the European
Parliament "notes that current problems concerning the
conclusion, performance and termination of contracts
cannot be solved unless issues relating to general formal
provisions, non-contractual liability, the law of restitution
and property law are also addressed" 30 .
4.1. Three Methods of Consumer Protection
Concerning the methods or consumer proctection in
private law, one might distinguish three basic methods of
consumer protection:
- mandatory norms,
- the right to withdrawal (combined with information
duties),
- and formal requirements.
So far, EU-legislation has concentrated almost exclusively
on the first two methods. In particular, the right to
withdrawal is a feature of almost all directives on consumer
protection. However, in an optional instrument,
the EU-legislator would have to consider all three possible
forms of protection of the weaker party.
4.2. Formal Requirements as a Method of Consumer
Protection
Formal requirements are a common feature of the law
of most continental states (whether in the French or in the
German legal tradition and also in most of the candidate
states). However, formal requirements are less frequent
in the common law states and in the Nordic states. In particular,
there is no equivalent to an acte authentique (“autenthic
act” or notarial act) in the common law states or
in the Nordic states – there is not even a fixed term for the
legal concept.
Formal requirements are meant to or result in protecting
the weaker party – one might also say, the consumer
31 :
- Formal requirements warn the parties that this is a
contract with important consequences.
- If a notarial act is required, the parties also receive
impartial legal counselling. In all states with Latin
notaries, the Notarial Code and the jurisprudence
have developed a whole set of duties for the notary to
protect and warn the weaker party. In German law,
this duty is regulated in art. 17 of the Code on Notarial
Acts (Beurkundungsgesetz) and has been developed
by the courts to include a duty to warn the weaker party,
if there is an impeding danger, which the party herself
does not realise due to lack of knowledge of some
facts or of the legal situation (“erweiterte Belehrungspflicht”
or “betreuende Belehrungspflicht” 32 ).
- Third, formal requirements are an indispensable first
control for the public registers (such as the register
of companies or the real estate register). In many
cases, formal requirements depend on whether a certain
contract has to be registered. The whole task of
the register – even the whole system of what we call
“Freiwillige Gerichtsbarkeit” (non-contentious jurisdiction)
would be altered, if you take the formal requirements
out of it 33 .
There are some formal requirements already in existing
directives 34 . However, they are limited to the purpose
of providing the consumer written information by
the entrepreneur or by providing proof of the contract.
The existing formal requirements do not grant the consumer
independent legal advise.
4.3. Comparison between the different methods
Let me close by comparing formal requirements with
other methods of protecting the weaker party.
4.3.1. Mandatory Rules and Formal Requirements
complement each other
Consumer protection by mandatory rules and formal
requirements complement each other.
- This might be seen in the existing directives‘ rules on
mandatory information which has to be included in
writing in the written or in the contract (e.g. art. 4
consumer credit directive; art. 4 timesharing directive;
art. 4 package tour directive).
- Also in a notarial act, the notary has to abstain from
the act, if it violates mandatory rules (e.g. under German
law: art. 4 BeurkG; art. 14 BNotO). Thus the formal
requirement helps enforcing the mandatory rules,
because it prevents even the existence of the impres-
30 COM (2001) 398 - C5-0471/2001 - 2001/2187(COS) - emphasis
added.
31 for the raison d’être of formal reqirements comp. in particular: W.
Rechberger, Formpflicht und Gestaltungsfreiheit, Wien (Manz Verlag)
2002.
32 comp. BGHZ 58, 343, 348 = NJW 1972, 1422; BGH DNotZ 1981,
775 = WM 1981, 942, 943; DNotZ 1989, 45 = NJW 1988, 2538 =
WM 1988, 722, 724; DNotZ 1989,. 452 = NJW 1989, 586 = WM
1988, 1853, 1854; DNotZ 1991, 759 = NJW 1991, 1346, 1348;
DNotZ 1992, 813 = NJW-RR 1992, 1178, 1180; DNotZ 1994, 485 =
NJW 1993, 2744, 2745; DNotZ 1996, 118 = NJW 1995, 2713.
33 Also, if a legal check of a certain contract has already been made due
to formal requirements (in particular in a notarial act), the contract
does not need the same control of the register authorities (e.g. the register
of companies) as other contracts. (This however, is more important
for the harmonisation of companies law).
However, one might consider to limit judicial discretion in controlling
a contract if the contract has been controlled by an official such as a
notary during the notarial act. Under a similar rule, in some common
law countries, e.g. the validity of a marriage contract depends also on
the possibility for both parties to seek independent legal counsel before
signing the marriage contract.
34 art. 6 sales directive; art. 13 and 20 sales agents‘ directive; art. 4 timesharing
directive; art. 4 consumer credit directive; art. 4 package tour
directive.