European Private Law after the Common Frame of Reference
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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.
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Chapter 6: The Empirical Missing Links in the Draft Common Frame of Reference

Fernando Gomez


* Fernando Gomez 1. INTRODUCTION The Principles, Definitions and Model Rules of European Private Law, known as the Draft Common Frame of Reference (‘DCFR’)1 constitute the impressive output of an important academic and legal endeavour in the field of private law and, in particular, of contract law,2 in the European context. Although largely academic in inspiration and spirit, and almost entirely in manufacture, the DCFR is not the typical academic product: it is not a commentary, treatise, collection of essays or papers devoted to European contract law or to contract law generally. It is a body of proposed model rules, accompanied3 by a set of standard terms, or definitions, to facilitate comprehension, use and application, which may eventually govern real-world behaviour of individuals or firms or, at least, influence real-world law-makers in the drafting of rules which will directly govern the behaviour of economic agents in society. Law, understood as the set of social institutions ruling behaviour in organised and purposeful ways, and not as an academic discipline or field for intellectual scrutiny, and private law in particular, are essentially practical or * I am grateful to participants at a workshop on the DCFR at the European University Institute for helpful discussions of the ideas reflected in the chapter, to the Spanish Ministry of Innovation and Science for financial support, under grants SEJ2007-60503 and SEJ2006-10041, and to Marian Gili for excellent research assistantship. 1 All references will be made to the Interim Outline Edition of the DCFR, published by Sellier,...

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