Edited by Hans-W. Micklitz and Fabrizio Cafaggi
Chapter 9: Legal Innovation in European Contract Law: Within and Beyond the (Draft) Common Frame of Reference
Florian Möslein I. DYNAMICS OF CHANGE AND LEGAL INNOVATION: A NEVER-ENDING PROCESS The plea for a modern legislative framework for European contract law is on almost everyone’s lips, articulated by supporters of the Common Frame of Reference (CFR) as well as its critics.1 If one important function of contract law is to reduce transaction costs, the need to mirror actual market reality seems indeed rather obvious.2 In this perspective, modern types of contracts, modern governance instruments of contractual relationships as well as modern drafting techniques should promptly be reflected in the contract law provided by the legislator. Responsiveness to actual market developments seems particularly relevant on the European level: due to the allocation of competences, European contract law must effectively contribute to the establishment and the proper functioning of the Internal Market,3 for instance by reducing negotiating costs of international transactions.4 Moreover, the legislative project of the CFR is explicitly linked to the so-called Lisbon agenda with its strategic goal to make the EU ‘the most competitive and dynamic knowledge-based economy in the world’.5 A modern approach seems paramount for a future 1 On the one hand, for instance: COM(2007)447 final, at p. 11 (‘coherent modern rules of contract law’); on the other: Grundmann (2008), p. 246. 2 For general discussions of the relationship between default rules and hypothetical consent see Ayres/Gertner (1989), pp. 89–93; Coleman/Heckathorn/Maser (1989); Posner/Rosenfield (1977), p. 89. 3 In much more detail see Hesselink/Rutgers/de Booys (2008); Ziller (2006), pp. 92–99;...
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