Contract law or law of obligations? - The draft common frame of reference (DCFR) as a multifunction tool

Common Frame of Reference and Existing EC Contract Law

Volumn , Issue , 2009, Pages 47-63

  Schulte Nölke, Hans ^a  

^a BIELEFELD UNIVERSITY   (Germany)

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EID: 84881720870     PISSN: None     EISSN: None     Source Type: Book    
DOI: 10.1515/9783866538009     Document Type: Chapter

References (39)

1. Christian von Bar, Eric Clive, Hans Schulte-Nölke et al. Principles, Definitions and Model Rules on European Private Law - Draft Common Frame of Reference, Interim Outline Edition, Munich 2008.
2. This has been brought forward by many of the stakeholders consulted by the European Commission on early drafts of the CFR.
3. Cf. the contribution of Sjef van Erp, in this volume.
4. Ole Lando, The Structure and the Legal Values of the Common Frame of Reference, European Review of Contract Law (ERCL) 2007, pp. 245
5. Cf. in particular the early communications of 2001 and 2003 which initiated the political process: Communication on European Contract Law, COM(2001) 398 final
6. A More Coherent European Contract Law, an Action Plan, COM 68 final.2003
7. Ole Lando, Hugh Beale Principles of European Contract Law Parts I and II. Prepared by the Commission on European Contract Law, The Hague 1999
8. Ole Lando, Eric Clive, André Prüm and Reinhard Zimmermann Principles of European Contract Law Part III, The Hague, London and Boston 2003.
9. Christian von Bar, Ole Lando, Communication on European Contract Law: Joint Response of the Commission of European Contract Law and the Study Group on a European Civil Code, in Hans Schulte-Nölke, Reiner Schulze (eds.), European Contract Law in Community Law, Cologne 2002, pp. 291-297
10. Cf. the volume "Principles of the Existing EC Contract Law (Acquis Principles)", Volume Contract I - Pre-contractual Obligations, Conclusion of Contract, Unfair Terms; prepared by the Research Group on the Existing EC Private Law (Acquis Group), Munich 2007; preceding projects were the Training and Mobility Networks on "Common Principles of European Private Law" (1997-2002) under the fourth EU Research Framework Programme (co-ordinator: Reiner Schulze, Münster) and on "Uniform Terminology for European Private Law" (2002-2006) under the fifth EU Research Framework Programme (co-ordinator: Gianmaria Ajani, Turin).
11. Cf. Action Plan, fn. 5.
12. Christian von Bar, Coverage and Structure of the Academic Common Frame of Reference, ERCL 2007, pp. 350-351
13. Cf. DCFR, fn. 1.
14. As to the Interim Outline Edition of the DCFR cf. fn.1; as to the Acquis Principles (ACQP) cf. fn. 8. From the Study Group series "Principles of European Law" (PEL) the following volumes have already been published: Benevolent Intervention in Another's Affairs (PEL Ben. Int.), prepared by Christian von Bar, Munich, Brussels, Bern, Oxford 2006
15. Commercial Agency, Franchise and Distribution Contracts (PEL CAFDC), prepared by Martijn W. Hesselink, Jacobien W. Rutgers, Odavia Bueno Díaz, Manola Scotton, Muriel Veldmann, Munich, Brussels, Bern, Ox-ford 2006
16. Service Contracts (PEL SC), prepared by Maurits Barendrecht, Chris Jansen, Marco Loos, Andrea Pinna, Rui Cascão, Stéphanie van Gulijk, Munich, Brussels, Bern, Oxford 2006
17. Personal Security (PEL Pers.Sec.), prepared by Ulrich Drobnig, Munich, Brussels, Bern, Oxford 2007
18. Lease of Goods (PEL LG), prepared by Kåre Lilleholt, Anders Victorin, Andreas Fötschl, Berte-Elen R. Konow, Andreas Meidell, Amund Bjøranger Tørum, Munich, Brussels, Bern, Oxford 2007.
19. For a summary of the discussion on possible purposes cf. Hugh Beale, The Future of the Common Frame of Reference, ERCL et seq.2007, pp. 257-259
20. Green Paper on the Review of the Consumer Acquis, COM(2006) 744 final of 8 February 2007.
21. Christian von Bar, Coverage and Structure
22. In addition to the published volumes (cit. fn. 12) the following are in preparation: Sales, Unjustified Enrichment, Non-contractual Liability arising out of Damage caused to Another, Mandate, Loan Contracts, Contracts of Donation, Transfer of Movables, Security Rights in Movables.
23. Christian von Bar and Hans Schulte-Nölke, Gemeinsamer Referenzrahmen für europäisches Schuld- und Sachenrecht, Zeitschrift für Rechtspolitik (ZRP) 2005, p. 165
24. Cf. the Communications of 2001 and mentioned in fn. 5; readers will know that the later Communications of the Commission which were issued after the research contract had been concluded, are more restrictive with regard to the coverage of the exercise; cf. Commission of the European Communities. First Progress Report on The Common Frame of Reference, COM(2005), 456 final2003
25. Communi-cation from the Commission to the European Parliament and the Council, COM(2004) 651 final, 11 October 2004
26. Commission of the European Communities. Second Progress Report on the Common Frame of Reference, COM 447 final.2007
27. Cf. the Resolutions of the European Parliament of 26 May 1989 on action to bring into line the private law of the Member States (OJ C 158, 26.6.1989, p. 400
28. Of 6 May 1994 on the harmonisation of certain sectors of the private law of the Member States (OJ C 205, 25.7.1994, p. 518
29. 15 November 2001 on the approximation of the civil and commercial law of the Member States (OJ C 140 E, 13.6.2002, p. 538
30. 2003 On the Communication from the Commission to the European Parliament and the Council - A more coherent European contract law - An action plan (OJ C 76 E, 25.3.2004, p. 95
31. Of 23 March 2006 on European contract law and the revision of the acquis: the way forward (OJ C 292 E, 1.12.2006, p. 109
32. December 2007 on European contract law (P6_TA(2007)0615). 20 Communication on European Contract Law, COM(2001) 398 final, cf. e.g. paragraphs 8, 10, 12, 22 and Annex I.
33. Cf. DCFR, fn. 1.
34. Cf. PECL, fn. 6.
35. Cf. also the slightly different proposal of Ole Lando, The Structure and Legal Values of the Common Frame of Reference (cit. fn. 4), 251, who suggests "recontractualising" the Chapters on Performance and Remedies and to put them into Book II, but to provide a general rule in Book III that the provisions on Performance and Remedies apply with appropriate modifications.
36. Cf. the commentaries to Art. 2:207 and Art. 3:201 ACQP in the volume "Principles of the Existing EC Contract Law (Acquis Principles)" (cit. fn. 8), pp. 98 et seq., 118 et seq.
37. Cf. in particular the rules in Chapter 8 of the ACQP on Remedies (included in the annex of this volume), which also use "creditor" and "debtor" instead of "party" and a general notion of "obligation", which is not limited to contracts (Art. 8:101 ACQP).
38. As to the remedies for the non-performance of pre-contractual duties and of the obligation not to discriminate see the contributions of Christian Twigg-Flesner and Stefan Leible in part III of this volume.
39. Cf. the Commission Action Plan on Better Regulation, as revised in March 2005, COM 97 final, and the Inter-Institutional Agreement on Better Lawmaking signed by the European Parliament, the Council and the Commission in December 2003, OJ C 321, 31.12.2003, p.1.2005