Volume 1, Issue 2

The contract is a very special tool: for private law, for European Law and, more generally, for the development of societal beliefs over the last few centuries. For private law it is the basic tool for the shaping of the legal relationship between private law subjects and is also the clearest example of the freedom to shape this relationship autonomously, according to individual preferences, unhindered by public intervention (party autonomy). It is here as well that the corresponding trend, that of protecting the interests of other persons affected, becomes most clearly apparent, with consumer law, with information duties and with competition law (‘materialisation’ of contract law). In European Law, the fundamental freedoms (the core instruments in EC Treaty Law) are mainly concerned to extend party autonomy across borders. The one substantive law area included in the EC Treaty from the beginning, competition law, is very much about effectively preserving the freedom of contracting. Moreover, the contract is not just one of the most intensively harmonised areas, but is also the only area where European Codification is clearly on the political agenda and feasible within a reasonable time. Finally, the contract is special for societal beliefs more generally. The basic constitutional and economic understanding of today’s democratic society and its market economy (the two pillars of ‘European’ society) is based on contractual thinking, just as the philosophy of law explains the very legitimacy of the law in terms of quasi-contractual arrangements. The largest trend in politics over the last fifty years is seen to be a dominance of contract-based societies over authority-based societies. Even in literature, contemporary beliefs, and in good jokes, the contract is the dominant legal instrument.

Of greater help to the future of European contract law than any particular change in doctrines and rules would be a change in the prevailing view of why doctrines and rules should be accepted. In Europe, legal training, legal scholarship and the administration of justice are based on authoritative statements of the law by the legislatures or courts of single states. These statements rightly require deference when they are resolutions by a legislature of particular problems the legislature has actually considered. But the formulations of a high court and the provisions of civil codes are often no more than the best effort a court or a drafting committee made, often long ago, to resolve a knotty problem. If their formulation was imperfect, to follow it must sometimes lead to a wrong result. Courts must then either reach a wrong result or else pretend to apply a formula they are in fact disregarding. Moreover, to consider only the formulations of the courts and legislatures of a single state is to disregard the experience of other states, which may shed light on how a problem should be resolved. It would be better to base teaching, scholarship and the resolution of particular cases on the experience of all states in which similar problems have arisen.

European contract law has continuously developed over the last 25 years and it is a good moment to reflect on existing and future European contract law. The author argues that the current set of conflict rules provides for an equilibrium between party autonomy and necessary safeguards, but, in a future Code, these provisions can be designed more systematically. For substantive contract law, he argues that until 1999, EC Contract Law was mainly regulatory and not facilitative law. It focused on levelling out information asymmetries and was thus neither neo-liberal in approach nor heavily interventionist. With the Sales Directive of 1999, facilitative contract law also entered the scene. A fully fledged Code seems feasible now. It should be based on the acquis communautaire, should be optional (also in purely domestic cases), and modern, developing a design well beyond traditional Codes, dealing also with the host of new problems and solutions.

Countering the frequent assumption that the European consumer contract law directives could provide the hard core of a future European contract law code, this article argues that the instrumentalist conception of European consumer law, which is biased towards market integration, is fundamentally incompatible with the classic conception of private law, which aims at realising justice among the parties. This thesis is first expounded in a brief sketch of the societal development of modern private law and then illustrated by three examples drawn from the jurisprudence of the European Court of Justice. These downsides notwithstanding, this article concludes that a desirable shift of European private law back to a more justice-oriented conception might be facilitated by a European code provided that a set of legitimacy conditions were observed in its drafting and application.

A – Non-exhaustive list of non legislative and legislative proposals, acts, and actions B – The European Contract Law initiative – Preparation phase of the Common Frame of Reference C – The Unfair Commercial Practices Directive

This paper is aimed at considering the relationship between EC regulation and national regulations concerning the invalidity of the agreement made in infringement of article 81 and 82 EC Treaty (EC) and to investigate how some national legal systems (in particular: the German, French and Italian ones) have faced and solved the issue of the relationship between infringement of national competition law and the validity of the agreement. In particular, it focuses on the origins, rationale, ground and application of the nullity provided for by article 81 para 2 EC with regard to agreements between undertakings, and decisions by associations of undertakings, which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market. It will give also an outline of national regulations concerning the invalidity of the prohibited agreements. It will take in account also the problem of the so called ancillary contracts, namely those contracts made between a party to the prohibited agreement and a third person and whose content corresponds to what has been set out in the prohibited agreement. In conclusion, we will focus on the issues as to the invalidity of the agreements whereby the abuse of dominant position is carried out. Article 82 EC does not provide anything as to the validity of such agreements or of the abusive contract, but scholars seem to agree that in some cases such agreements can be considered void. This paper attempts to draw a distinction that turns on different kinds of abuse.

The Author deals with some recent Italian developments concerning contract law. First, some acts transposing EC directives are briefly described (with special regard to the points where they prove to be to some extent autonomous or deviating from the European source). The directives are those on consumer sales, on late payments in commercial transactions, and on electronic commerce. Furthermore, three acts transposing directives in the area of labour contracts are mentioned. Then, attention is devoted to two new acts, not having a European origin: one regulating franchise contracts, and the other deeply reforming company law. As to case law, two subjects are dealt with: a judgment by the Italian Constitutional Court, regarding unfair terms in consumer contracts; and some decisions by the Corte di Cassazione and the Consiglio di Stato, which may have a significant impact on a basic principle affecting the general structure of Italian (but not only Italian) contract law – the distinction between contract liability and tort liability.

Sacharias Votinius, Varandra som vänner och fiender. En idékritisk undersökning om kontraktet och dess grund (Summary: Friends or Foes – a Philosophical Study of the Role and Importance of Human Relationships in the Sphere of Contract Law), Stockholm: Symposion, 2004. 349 p. ( Thomas Wilhelmsson ) Karl Riesenhuber, Europäisches Vertragsrecht (European Contract Law). Berlin, de Gruyter, 2003. xxviii + 378 pp. ( Stephen Weatherill )