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 7: A Spontaneous Order for Europe? Why Hayek’s Libertarianism is not the Right Way Forward for European Private Law

Martijn W. Hesselink


Martijn W. Hesselink 1. INTRODUCTION With the recent publication of the draft Common Frame of Reference,1 the process of revising the Consumer Acquis under way,2 and the idea of an optional European code of contract law under consideration,3 today the Europeanisation of private law is at a defining stage where crucial choices will have to be made. Some of the main issues include regulatory legitimacy (who should bring about the revised acquis, the CFR and any optional code of contract law: scholars, courts, or parliament?), the level and scope of mandatory rules for the protection of weaker parties such as consumers and SMEs, 1 Von Bar et al. (eds.), Principles, Definitions and Model Rules of European Private Law; Draft Common Frame of Reference (DCFR) Interim Outline Edition (Munich: Sellier, 2008). 2 Green Paper on the Review of the Consumer Acquis, Brussels, 8 Feb. 2007, COM(2007)744. 3 See A More Coherent European Contract Law, an Action Plan, Brussels, 12 Feb. 2003, COM(2003)68 final. See also: European Contract Law and the Revision of the Acquis: the Way Forward, 11 Oct. 2004, COM(2004)651 final. Today, the idea of an optional code of contracts seems to be lower on the political agenda than it was in 2003 when the Commission launched its ambitious Action Plan (see the First Annual Progress Report on The Common Frame of Reference, 23 Sept. 2005, COM(2005)456 final, 5; Second Progress Report on The Common Frame of Reference, 25...

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