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 9: Legal Innovation in European Contract Law: Within and Beyond the (Draft) Common Frame of Reference

Florian Möslein


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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