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 3: The Role of Competition in the European Codification Process

Stefan Grundmann

Subjects: law - academic, european law


Stefan Grundmann I. CODIFICATION? QUALITY? Most notable contract lawyers in countries such as Germany and Italy (countries which are still rather positive about a European contract law, and even about its codification in an optional instrument) seem to be highly sceptical about the outcome of the (Academic) Common Frame of Reference (‘ACFR’).1 They have different concerns, reflecting their differing approaches to contract law. Amongst the concerns they have identified are that there is little new in the ACFR; it contains an abundance of vague decisions or nondecisions on core questions; it lacks a convincingly coherent structure; and it contains virtually no input from other branches of the social sciences which engage substantially with contract; and, more generally, it inadequately reflects concerns for ‘social justice’.2 Furthermore, the ACFR has been seen as 1 C. v Bar, E. Clive, H. Schulte-Nölke et al. for the Study Group on a European Civil Code and Research Group on EC Private Law (Acquis Group) (eds.), Principles, Definitions and Model Rules of European Private Law – Draft Common Frame of Reference (DCFR) (Munich: Sellier, 2008). Irrespective of the impact of the ACFR on it, this chapter does not deal with the so-called ‘horizontal directive’ in the core area of consumer law, consolidating the four directives on Sales, Unfair Terms, Doorstep and Distance Selling, in one; see now Proposal for a Directive of the European Parliament and of the Council on Consumer Rights, COM(2008)614 final. This directive mainly concerns the restructuring of a well...

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