European Private Law after the Common Frame of Reference

European Private Law after the Common Frame of Reference

Edited by Hans-W. Micklitz and Fabrizio Cafaggi

This book paves the way for, and initiates, the second-generation of research in European private law subsequent to the Draft Common Frame of Reference (DCFR) needed for the 21st century. The book gives a voice to the growing dissatisfaction in academic discourse that the DCFR, as it stands in 2009, does not actually represent the condensed available knowledge on the possible future of European private law. The contributions in this book focus on the legitimacy of law making through academics both now and in the future, and on the possible conceptual choices which will affect the future of European private law. Drawing on experience gained from the DCFR the authors advocate the competition of ideas and concepts.

Chapter 2: The Interpretation According to Human Rights, Fundamental Freedoms and Constitutional Laws (art. 1:102 DCFR)

Giuseppe Vettori

Subjects: law - academic, european law

Extract

Giuseppe Vettori 1. INTERPRETATION AND RIGHTS Whenever there is an artistic, literary or legal objective expression, our interpretation comes into play. This has led some authoritative authors to search for a common element therein1 – to reproduce someone else’s thought and thus discover the spectacular, orchestral, literary and philosophic key to the work that is the object of exegesis. Within such a hypothetical genus, legal interpretations play a specific role dictated by the peculiarity of each text. They must lay down a principle so as to decide on or to take stands over a conflict of interests, over a demand for protection or over a relevant ascertainment. The DCFR confirms well-known rules and lays down some new provisions. Article 1:102 says that the rules are to be read in the light of any applicable instruments guaranteeing human rights and fundamental freedoms and any applicable constitutional laws. Chapter 8 on the Interpretation of contract2 includes a number of ambiguous provisions, some compromises and some new provisions. The fundamental principle is the need to reconstruct the common intention of the parties, even where this differs from the literal meaning of the words (8:101 I). Importance is attached (according to a common law rule, embodied in Article 8 1 CVIM) to awareness of the true intention of a party if, at the time of the conclusion of the contract, the other party was aware, or could reasonably be 1 E. Betti, Interpretazione della legge e degli atti giuridici (teoria generale e dogmatica)...

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