Edited by Christian Twigg-Flesner
Chapter 20: The idea of an optional contract code
The aim of private law harmonisation in Europe is the elimination of barriers within the internal market. During the past decades, with that goal in mind, a number of Directives aiming to equalise the provisions governing transactions in the internal market, especially where consumers are involved, have been enacted. However, on the one hand, minimum harmonisation directives have not yielded the expected resultsand, on the other, the change in policy prioritising the enactment of a horizontal directive on consumer contract law, following the technique of full harmonisation, has been met with hostility as well. The Commission has also discarded unifying contract law by means of binding regulations, since deep changes in the domestic systems would have been excessive, if the only objective was to facilitate cross-border commerce. This explains why in the end a middle road was pursued, with the Commission attempting to overcome the failure of the Proposal for a Horizontal Directive, as well as solving the issue of domestic legislation clarity and consistency, therefore avoiding its excessive fragmentation. The road chosen is an optional regulation (that is, not binding), applicable only to certain contracts among businesses and with consumers, if the parties choose it instead of the law that would normally apply to the transaction.
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