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Electronic copy available at: http://ssrn.com/abstract=1098869Electronic copy available at: http://ssrn.com/abstract=1098869
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This paper was published in: Martijn W. Hesselink, Gerard de Vries, Principles of European
Contract Law, Preadviezen uitgebracht voor de vereniging voor Burgerlijk Recht Deventer 2001,
pp. 5-95 (= ‘The Principles Of European Contract Law: Some Choices Made By The Lando
Commission’ Global Jurist Frontiers: Vol. 1: No. 1, Article 4)
The Principles Of European Contract Law:
Some Choices Made By The Lando Commission
Martijn W. Hesselink*
I. Introduction ............................................................................................................ 2
II. Purpose.................................................................................................................. 3
III. Authors and Working Method........................................................................... 14
IV. Format and Style................................................................................................ 18
V. Subject Matter..................................................................................................... 22
VI. Politics ............................................................................................................... 29
VII. Culture.............................................................................................................. 42
VIII. Economics....................................................................................................... 51
IX. Progress v Tradition........................................................................................... 57
X. Final remarks....................................................................................................... 60
* Professor of Private Law at the University of Amsterdam. I partly wrote this paper as a visiting scholar
at Boalt Hall, School of Law, UC Berkeley. This paper has been prepared for the annual meeting of the
Vereniging voor Burgerlijk Recht (The Hague, April 26th, 2001) and will be published in the Netherlands
by Kluwer, Deventer. The author would like to thank Maurits Barendrecht, Hugh Beale, Arthur
Hartkamp, Peter Morris, and Edgar du Perron for their valuable comments on earlier versions of this
paper.
Electronic copy available at: http://ssrn.com/abstract=1098869Electronic copy available at: http://ssrn.com/abstract=1098869
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I. INTRODUCTION
A. Making Law is Making Choices
Contrary to the American situation, in Europe throughout the 20th century the mode of
scholarship, education and practice in private law has been that of integrity and
deductive reasoning. Whereas today most leading American scholars in the US are
involved in law & society, law & politics (in particular Critical Legal Studies), and,
especially, law & economics, after the successful revolt against formalism by American
legal Realists like Holmes, Llewellyn, and Pound had paved their way, in Europe the
dominant mode of legal reasoning is still largely based on the idea of the integrity of the
law: scholars interpret and further elaborate the - presumably coherent - system of the
law which is based on the code or, in England, Ireland and Scotland, on precedents.
However, since the emergence of the new discipline of European private law the
European (academic) legal landscape, at least as far as private law is concerned, seems
to be undergoing a radical change. It is interesting to see how the object and
methodology of European legal scholarship is changing rapidly from emphasis on
formal deductive reasoning to a more substantive approach. The first example of this
development is the success of the functional approach to the law. Scholars involved in
European private law tend to concentrate their comparative research more on functional
equivalents than on conceptual, dogmatic differences. The most eminent example is
Hein Kötz’ European Contract Law1. The functional approach was also adopted by the
European legislator. The legislative instrument of EU Directives is based on the idea of
functional equivalents: the EU is concerned with a certain substantive result and it is left
to the national legislators to decide in which form they prefer to implement it. Secondly,
those involved in the European private law debate emphasise the importance of law in
context, especially the importance of the law’s relation to culture2, and the fact that
there is more to law than just formal rules: what matters as well is the way they are
applied, by whom, against what institutional background et cetera3. Still others propose
to base the preparation of a common European private law on economic analysis4.
Finally, there are scholars who emphasise the political dimension of the enterprise and
claim that a European civil code should be sufficiently social5. What we are facing
could be called, with only slight rhetorical exaggeration, a European revolt against
formalism.
1 Kötz 1997.
2 See especially Pierre Legrand (Legrand 1996, Legrand 1997, Legrand 1999-1, Legrand 1999-2).
3 See Rodolfo Sacco’s theory of ‘legal formants’ (Sacco 1991), which, together with Rudolph
Schlesinger’s Common Core project (Schlesinger 1968), has provided the methodological basis for the
Trento Common Core of Private Law in Europe project (see Bussani/Mattei 1998 and
www.jus.unitn.it/dsg/common-core).
4 See especially Ugo Mattei’s comparative law & economics (Mattei 1994, Mattei 1997, Mattei 1998-1,
Mattei 1999), followed by Jan Smits (Smits 1998, Smits 1999).
5 See Wilhelmsson 1995. See also the papers presented at the Amsterdam seminar on Critical Legal
Theory and European Private Law which will be published this year in a special issue of the European
Review of Private Law: Kennedy 2001, Legrand 2001, Maris 2001, Mattei/Robilant 2001, McKendrick
2001, Wilhelmsson 2001 and Hesselink 2001-2.
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This development from form to substance is not surprising. Without the secure
framework of the national code or precedents to hold on to, one can only see integrity
when one looks backward, as some neo-pandectist suggest6. Or indeed upward, but
today only a few people have a firm belief in natural law; most of us seem to have lost
faith. Who looks forward only sees choices to be made7 8.
Therefore most scholars involved in European private law agree that choices will
have to be made and many see it as their task not only to present the various positions in
a neutral, objective ‘scientific’ mode, but also to show more engagement and to actually
propose and defend their own choices.
In December 1999, after nearly twenty years of preparation, the Lando Commission
presented its Principles of European Contract Law (PECL)9. This was a major event in
the development of European private law. In this paper I will discuss some of the main
choices made by the Lando Commission when drafting its principles.
B. Plan of Discussion
What choices have the Lando Commission made? Here I will concentrate on choices
with regard to the purpose of the PECL (II), the authors and working method (III), the
format and style (IV), the subject matter (V), politics (VI), culture (VII), economics
(VIII), and. progress v. tradition (IX). Finally, I will make some concluding remarks
(X). Clearly, there are some overlapping grounds among most of my themes (as usually
happens with rational distinctions), but they nevertheless seem to be sufficiently
distinctive to justify separate discussion.
II. PURPOSE
With regard to the purpose of the PECL the Commission on European Contract Law did
not make a choice for just one purpose. They rather opted for a number of purposes at
the same time. They clearly wanted the PECL to be as widely used as possible.
In their Introduction the Commission on European Contract Law formulate five
‘benefits’ that can be derived from the PECL, and five ‘purposes’ for which they are
designed10. Moreover, in art. 1:101 (Application of the Principles), the first article of the
PECL, under the Section ’Scope of Principles’, six situations are envisaged in which
6 See especially Zimmermann (e.g. Zimmermann 1998). For (sometimes very fierce) criticism see Caroni
1994 , Mattei 1998-2, Hesselink 1999.
7 See on the need to make choices when determining rules of contract law and on the fact that the
principle of party autonomy is of no assistance in making such choices - except with regard to rules on the
limits of freedom of contract - , because it is by definition neutral with regard to the content of (default
and mandatory) ‘back ground rules’, Craswell 1989.
8 It is important to note that all these choices are made twice. First, on an abstract level, by the legislator,
then, when the abstract rule must be applied in a specific case, usually by the court. Frequently an effort is
made by the legislator to limit the court’s freedom or need to choose, by drafting very sharp rules. To
some extent this practice is based on an illusion since it follows from the character of a system of abstract
rules as a basis for decision in a concrete case that the courts will always have to concretise, supplement
and correct these rules in order to deal with problems of indeterminacy, gaps, and contradiction.
Sometimes, on the contrary, the legislator explicitly gives the courts a margin of choice by deliberately
drafting a vague rule or by referring to an open textured standard. See Hesselink 1998, Hesselink 1999.
9 A first part had been published in 1995 (Lando/Beale 1995).
10 PECL, Introduction, p. xxi.
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they can be used. Although these ‘benefits’, ‘purposes’ and ‘uses’ are not completely
identical they do overlap to a great extent.
As a matter of fact, one can distil from them three aspirations of the Lando
Commission. First, to state the common core of the contract laws of Europe (A).
Second, to contribute to a future unification of contract law in Europe (B). Third, to
provide a set of rules that can be applied as law in Europe as from today (C). A fourth,
and in my view highly important, purpose of the Principles of European Contract Law is
not mentioned as such among the Commission’s aspirations: they may provide us with a
common European language for discussions on contract law (D).
A. Restatement of the Common Core
In their Introduction and in other places the Commission on European Contract Law
emphasise that the PECL should be regarded as a statement of the common core of
contract law in Europe11. Both from their format and from their content it is clear that
the PECL have been inspired by the American Restatements of the Law and Uniform
Commercial Code (UCC)12, and by the UNIDROIT Principles. The American
experience with restatements and with the UCC may help us to appreciate the Lando
Commission’s aim to provide a restatement of the common core of contract law in
Europe.
1. The American Restatements of the Law. - The American common law has never
been codified13. However, the United States have adopted their own unique method for
making the common law more coherent and accessible: the Restatements of the Law.
The Restatements are published by the American Law Institute (ALI), a private
organisation which was founded in 1923 with the help of the Carnegie Corporation and
the Rockefeller Foundation. Today the ALI has nearly three thousand members,
including the most distinguished judges, practitioners and scholars. The object of the
ALI is ‘to promote the clarification and simplification of the law and its better
adaptation to social needs, to secure better administration of justice, and to encourage
and carry on scholarly and scientific legal work.’14 The first Restatement which the ALI
published was the Restatement of Contracts (1932). Since then, Restatements have been
published relating to many fields of the law including Agency, Conflict of Laws,
Property, Torts, Trusts. In 1952 the ALI started the drafting of the Restatements
(Second), most of which were completed half way through the 1980s. Currently, the
11 PECL, Introduction, p. xxii.
12 PECL, Introduction, p. xxvi.
13 Codes are not completely alien to the American legal system: most States have a Penal Code and a
Code of Civil Procedure. There was also a codification debate in the 19th century, but, apart from
California and Louisiana that have enacted civil codes, private law has never been codified. There was a
fierce debate between David Dudley Field, who was impressed by Napoleon’s civil code and had made a
draft for this purpose, and James C. Carter, who was influenced by the German Historical School, and
who feared that a code would prevent natural evolution. Field’s Civil Code was rejected by most States
including New York (on several occasions). However, it was not a complete failure since it was adopted
in some Western States including California. See Friedman 1985, p. 403ff; Horwitz 1977, p. 265, and
Horwitz 1992, p. 117 ff.
14 Certificate of Incorporation, reproduced in: The American Law Institute Annual Reports, 77th annual
meeting 1999, p. 57.
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Restatements (Third) are being drafted15. It is important to note that Restatements are
not law in a formal sense. The courts are not bound by them. The Restatements do not
have a formal but only a substantive authority which heavily depends on the reputation
of the ALI and of the specific Reporter16.
Interestingly, establishing unity among the States of the Union is neither mentioned
as one of the objects of the ALI nor as one of the purposes of the Restatements. In his
Introduction to the Restatement of Contracts (First), W.D. Lewis, the Director of the
ALI, said: ‘The vast and ever increasing volume of the decisions of the courts
establishing new rules or precedents, and the numerous instances in which the decisions
are irreconcilable has resulted in ever increasing uncertainty in the law. The American
Law Institute was formed in the belief that in order to clarify and simplify the law and
to render it more certain, the first step must be the preparation of an orderly restatement
of the common law, including in that term not only the law developed solely by judicial
decision but also the law which has grown from the application by the courts of
generally and long adopted statutes.’ Thus the ALI was mainly concerned with
uncertainty with regard to the law as a result of an unmanageable number of cases and
with contradictions among precedents, and not primarily with inconsistency between the
various American jurisdictions.
The first restatements, which were characterised by classical legal thought and
inspired by Hohfeld and others in their analytical attempt to create a coherent system of
rules, a uniform terminology, and to eliminate contradictions17, met with some severe
criticism18. The black letter rules were thought to be too abstract and therefore of little
relevance in deciding cases. Moreover, because of their abstraction the black letter rules
were said to be too detached from the cases they were said to be based on, and the link
between the restatements and the authorities they were supposed to be based on was
generally held to be insufficiently documented. Another point of criticism, which came
from the then emerging Realist movement, was that the restatements would never create
certainty and coherence - which was, as said, the main purpose of the ALI - because the
real law is made by men and is therefore inherently uncertain and it changes all the
time. Many authors were critical because, in their view, the focus on coherence had led
to artificial closure and had killed off fruitful debates. Finally, the first restatements
were criticised because they did not bring the announced improvement of the law; they
merely restated the law as it was. One of the harshest critics was Charles E. Clark, the
then dean of the Yale School of Law, and Adviser to the ALI on Property19. He said20:
15 The ALI was also involved in various codifications, studies and other projects, including the Uniform
Commercial Code. See below.
16 See W.D. Lewis, p. xi: ‘The function of the courts is to decide the controversies brought before them.
The function of the Institute is to state clearly and precisely in the light of the decisions the principles and
rules of the common law.
The sections of the Restatement express the result of careful analysis of the subject and a thorough
examination and discussion of pertinent cases - often very numerous and sometimes conflicting. The
accuracy of the statements of law made rests on the authority of the Institute. They may be regarded both
as the product of expert opinion and as the expression of the law by the legal profession.’
17 See Friedman 1985, p. 676: ‘perhaps the high-water mark of conceptual jurisprudence'.
18 See White 1997, and Hyland 1998, both with further references.
19 Another fervent critic of the Restatements was Ehrenzweig 1969, p. 345: ‘dieses unglücklichster Weise
die bedeutsamste Schwäche europäischer Kodifikationen, nämlich ihre Starre, mit der des common law,
nämliche seine Systemlosigkeit, verbindet und damit gleichzeitig auf die Stärken beider, Systematik
einerseits und Beweglichkeit andererseits, verzichtet.’
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‘I see my own group so often turn in impatience if not disgust from the attempt to force
a black letter sentence do what it can never do - state pages of history and policy and
honest study and deliberation - and long for freedom of expression which scholars
should have.’ See also Yntema21: ‘The decision to restate the law as it is, rather than to
put forth a candid effort to improve the law by critical formulation, as originally
designed; the omission of the treatises; the imperfect provision for incisive independent
criticism of tentative restatements as the condition sine qua non of their submission for
approval: these are phenomena which are difficult to explain except upon the
supposition that the policy of securing the public acceptance of the restatement has
affected its content and perhaps even partially diverted the fundamental purpose.’ See
finally (and more recently) Lawrence Friedman22: ‘They took fields of living law,
scalded their flesh, drained off their blood, and reduced them to bones. The bones were
arrangements of principles and rules (the black-letter law), followed by a somewhat
barren commentary.’
The criticism was taken into account by the ALI and they soon started the
preparation of a second Restatement23. In the Restatement (Second) there is a clear shift
in emphasis from the black-letter rule to the comments, which are much more extensive
than before. The Restatements (Second) do not attempt to put an end to the debate, but
rather try to state which positions are taken and leave it for the courts to decide. As a
result there is also a shift in interest from the black-letter rule to the comment. The new
restatements are also much less rigidly formulated. The black-letter rules frequently
confine themselves to listing a number of aspects that should be taken into account
when resolving the conflict. The Restatements (Third), however, which are currently
being drafted seem to be characterised by an attempt to attain fine-tuned detailed
momentary compromises between all the interests at stake and between the interest
groups affected by the issue. The result is a less elegant draft characterised by lengthy
technocratic wording24.
Although, as said, this was not the initial aim, the restatements certainly have also
had a unifying effect on adjudication, teaching and academic debate. At the very least
they have provided a common framework for debate. Compare Hyland25: ‘In sum, the
dichotomous structure of the common law convinced the drafters of the Restatement
(second) and the UCC to prefer a dialogic form for its systemisation. Both are flexible
and open-textured. Neither truly resolves the difficult questions - in fact, they seem to
suggest that no final resolution will ever be achieved, Their goal is rather to provide the
long term discussion with a convenient framework.’
20 Clark 1933, p. 646.
21 Yntema 1936, p. 468.
22 Friedman 1985, p. 676. He continues: ‘The restatements were, basically, virginally clean of any notion
that rules had social and economic consequences. The arrangements of subject matter were, on the whole,
strictly logical; the aim was to show order and unmask disorder. (Courts that were out of line could cite
the restatement and return to the mainstream of common-law growth.) The chief draftsmen (...) expended
their enormous talents on an enterprise which, today, seems singularly fruitless, at least to those legal
scholars who adhere to later streams of legal thought. Incredibly, the work of restating (and rerestating) is
still going on.’
23 Hyland 1998, p. 63; White 1997, p. 46.
24 See Hyland 1998, p. 65. He does not seem to be very impressed by it, and rather favours the second
style.
25 Hyland 1998, p. 64.
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2. The Restatements of Contracts. - As for contract law, the first Restatement of
Contracts was published in 1932. The Reporter was Samuel Williston, Arthur L. Corbin
serving as a Special Reporter on Remedies. Although this Restatement was also met by
some sharp criticism right after its publication (see above), it did become a success, both
because it was generally held to clarify the law (it was cited in contract cases in virtually
all American states), and because it contributed to a more uniform contract law in the
United States26. The Restatement (Second) of Contracts was drafted between 1962 and
1979 and was published in 1981. The general reporter was first Robert Braucher and
then E. Allan Farnsworth. The Restatement (Second) of Contracts was also clearly
influenced by American Legal Realism. It is much less conceptual, more functional and
more open to dialogue. Also many provisions of the UCC, that were published in the
meantime, have been taken into account. The Restatement (Second) has had
considerable success as well, but has not been accepted by all the courts. Some courts,
in some cases, continue to rely on the Restatement (First)27. Compare Melvin A.
Eisenberg: ‘The restatements may be most helpful when there is no clear law on the
point or when there is reason to believe that the courts might change the law. In the
latter respect, the Restatement (Second) serves as a conventional statement of “the
modern view” of the law, even when it differs from the formal law in a particular
jurisdiction. It has considerable “persuasive authority”.’
3. The Uniform Commercial Code. - Another source of inspiration for the Lando
Commission has been the Uniform Commercial Code28. One of its purposes was to
create unity among the various States of America29. It was drafted by the National
Conference of Commissioners on Uniform State Laws and the ALI30 between 1942 and
1954, under Chief Reporter Karl Llewellyn. Llewellyn was one of the leading figures in
the American Legal Realist movement and his anti-formalist, functional approach is
easy to recognise, e.g. in its structure: no abstract concepts and general parts, but articles
on Negotiable Instruments, Bulk Sales, Secured Transactions et cetera. See also UCC §
1-102 (1): ‘This Act shall be liberally construed and applied to promote its underlying
purposes and policies.’31 The underlying purposes and policies of the act are to
simplify, clarify, and modernise the law governing commercial transactions; to permit
continued expansion of commercial practice through custom, usage, and agreement of
the parties; and to make uniform the law among the various jurisdictions32. The style of
the UCC is very similar to the second wave of restatements (or rather the other way
26 Burton/Eisenberg 1999, p. 2.
27 Burton/Eisenberg 1999, p. 3. See on the relationship between the Restatement (First) and the
Restatement (Second), Herbert Wechsler, the then director of the ALI: ‘The Reporters, their Advisers and
the Institute approached the text of the first Restatement with the respect and tenderness that are
appropriate in dealing with a classic. As the work proceeded, it uncovered relatively little need for major
revision, in the sense of changing the positions taken on important issues, although the Uniform
Commercial Code inspired a number of significant additions. (…) It does not denigrate the 1932 volumes
to say that the revisions and additions here presented greatly augment their quality. This is, indeed, very
close to a new work.’ (Foreword, in 1 Restatement (Second) of Contracts (1981), p. viii)
28 See PECL, Introduction, p. xxvi.
29 Burton/Eisenberg 1999, p. 4.
30 The Commissioners are appointed by the governors of each state.
31 U.C.C. § 1-102 (1) seems to have inspired art. 1:106 PECL, which, however, is less liberal.
32 See for scepticism Friedman 1985, pp. 675-676, on the UCC: ‘It took a heavy effort to sell it to the
legislators, who had no idea they needed a code.’ ‘It was, in a way, curiously old fashioned.’ ‘The Code
was a product of a time that now seems as quaint and old-fashioned as the era of high-button shoes.’
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around). Compare Hyland33: ‘the Code itself, especially the Sales article, which has
proved to be one of the great achievements of American codification, rarely provides a
specific answer to any question.’ In contrast to the restatements the UCC is law in a
formal sense. It consists of 11 ‘articles’, which each consist of several ‘Sections’. Each
Section is followed by a Comment. Although these Comments formally are not part of
the law, courts often give considerable importance to them34. Article 2, on Sales, which
has clearly inspired the Lando Commission, has been adopted in 49 American States.
The UCC is under continual revision by the Permanent Editorial Board for the Uniform
Commercial Code. At this moment art. 2 (Sales) is under revision.35
4. UNIDROIT Principles. - By far the most important source of inspiration have
clearly been the UNIDROIT Principles of International Commercial Contracts (UP)
which were published in 1994. The PECL look very similar to the UP in all respects36
and the Lando Commission has followed the UP (often literally) on many points37. This
is not surprising because there has been an important overlap between the commissions
that prepared the two sets of Principles and they have worked contemporaneously most
of the time38. It should be noted, however, that the Working Group that drafted the UP
themselves of course were not working in splendid isolation. They were inspired by the
Vienna Sales Convention39, the UNIDROIT draft on validity of sales contracts40, the
Restatement (Second) of Contracts41, and the UCC42.
5. The PECL as a restatement. - It is clear that the American Restatements had a
different objective from the PECL. The ALI presumed the unity of the common law but
was concerned with its uncertainty as a result of an unmanageable number of cases and
with its internal contradictions. What the law in the US was lacking, according to the
ALI, was a systematic restatement in general rules of the law which had developed on a
case to case basis. In Europe, however, the law of contract in all countries except
England and Wales, Ireland and Scotland, is formulated as a coherent system of abstract
rules in civil codes (though interpreted and further developed on a case to case basis).
Therefore the concern in Europe is rather with reconciliation of the different abstract
formulas and their tradition of interpretation. The Lando Commission is concerned with
diversity among the various legal European systems and tries to create some unity. On
the other hand, however, the Lando Commission also presumes the presence of a
common core of European contract law, and has tried to restate it.
It is interesting to see that in the U.S. the first approach to the restatement endeavour
did not work out. The strong emphasis on abstract black-letter rules in the Restatements
(First) met with broad criticism. It seems likely that today in Europe such an approach
33 Hyland 1998, p. 64.
34 Burton/Eisenberg 1999, p. 4.
35
36 An important point of difference, however, is that only the PECL contain Notes. See further below.
37 On other points the drafters of the UP followed the Lando commission, especially with regard to non-
performance and remedies. Compare Bonell 1997, p. 87, and Hondius 2000
38 Professors Joachim Bonell, Ulrich Drobnig, Arthur Hartkamp, Ole Lando and Denis Tallon were
members of both Commissions.
39 See UP, Introduction, p. viii.
40 Projet de loi pour l’unification de certaines règles en matière de validité des contrats de vente
internationale d’objets mobiliers corporels, R.D.U. 1973, p. 60.
41 It is important to note that E. Allan Farnsworth, as said the Reporter of the Restatement (Second) of
Contracts, was also the Chairman of the Editorial Committee for the UNIDROIT Principles.
42 See on the American influence Farnsworth 1997, and Gordley 1996.
9
authority .
and regulation that surmounts the obstacles to trade and the distortions of the market
would not work either. The days of strong formalism in Europe (École de l’exégèse,
Begriffsjurisprudenz, legisme) are long gone, and, although Europe is still much more
formalist than the US, it does not seem very likely that many European courts would
‘apply’ a European restatement in a rigid way when that would lead to a result which
would be, in their view, patently unfair, particularly if they would regard the solution
under their own national law as being fairer. Also, a restatement of such a kind would
be likely to remain sterile since, as a result of the high degree of abstraction of black-
letter rules, it would be of little use as a source of inspiration to national legislators,
courts, teachers and scholars. However, the approach of the Restatement (Second) could
be successful in Europe. A restatement which provides a framework for dialogue could
be extremely helpful43. There does not seem to be anything against such a framework. It
could even help to make our law ‘better’. The PECL clearly look more like the
Restatement (Second) than the Restatement (First). Especially, they contain extensive
and highly informative Comments. On the other hand, however, they sometimes give
more of an impression of closure (as opposed to being open to dialogue) than is the case
with the Restatement (Second). They are therefore somewhat ambivalent44.
Whether the PECL will be successful as a European restatement of contracts will, of
course, in the end depend entirely on how European lawyers are going to deal with
them, on whether the parties, courts, legislators and the EU directives will quote them
and be inspired by them. As said, the success of a restatement depends on its
45
B. The Basis for Unification
1. The Need for the Unification of Contract Law in Europe. - Providing an authoritative
statement of the law similar to the American Restatements is not the only purpose of the
PECL. The Lando Commission also has other purposes in mind. Contrary to the drafters
of the American Restatements the Lando Commission hopes that its Principles will one
day be enacted as law in a formal sense, preferably as a European Code of Contracts46.
The Lando Commission makes a clear choice with regard to the need for uniform
rules of contract law in Europe. Why do we need uniformity? The Lando Commission
tells us explicitly. First, uniform law would facilitate cross-border trade within
Europe47: ‘both within and outside Europe there is a growing recognition of the need for
measures of harmonisation to eliminate those differences in national laws which are
inimical to the efficient conduct of cross-border business within Europe.’ More
specifically, in the view of the Lando Commission, a uniform European contract law
would help to strengthen the Single European Market48: ‘The harmonisation of
principles of contract law is of especial importance to the proper functioning of the
Single European Market, the very essence of which is a broadly unitary approach to law
43 Compare also Barendrecht 2000 and Basedow 2000.
44 See also Hyland 1998, p. 60.
45 For a parallel see the European Charter of Fundamental Rights, promulgated in December 2000 in Nice
which, in spite of its unclear formal status, may be regarded as binding in substance by European
institutions. See Rodotà 2001.
46 PECL, Introduction, p. xxiii.
47 PECL, Introduction, p. xxi.
48 PECL, Introduction, p. xxi.
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resulting from differences in the national laws of Member States affecting trade within
Europe.’
The Commission does not say anything as to the possible benefits that could (and
may now) be derived from ‘those differences in national laws which are inimical to the
efficient conduct of cross-border business within Europe’, both specifically and more in
general. It is, of course, possible that those differences in the law are differences that
people care about. Admittedly, general contract law is not likely to provoke strong
patriotic feelings among most European citizens, but some English tradesmen might
prefer the tougher English rule on ‘frustration of contract’ to art. 6:111 PECL (‘Change
of Circumstances’), whereas a Scandinavian consumer might prefer a more general test
of the fairness of all contract terms than art. 4:109 PECL (‘Excessive Benefit or Unfair
Advantage’) would allow. In other words, many Europeans may regard their law on
some points not merely as different from that of other European countries but also as
better. Moreover, we might derive a benefit from difference in another way. Mattei and
other proponents of the theory of comparative law & economics tell us that international
competition of legal rules and doctrines may lead to an improvement in the quality of
each of our legal systems49. Finally, the need for unity of private law in Europe is
strongly contested by Legrand. He derives his arguments from arguments that are put
forward against European unification in general, most of which are concerned with the
preservation of national culture. He argues that law is culture and that diversity is
richness and that in this post-modern age we rather need legal pluralism50. I will come
back to these objections in the following chapters51.
Another question is whether the unification of contract law should be limited to
Europe. Certainly, there is a clear development towards further integration in Europe, in
all sorts of ways. However, that is not the only, and possibly not even the most
important, trend today. If uniform rules are needed in order to facilitate international
trade, it is doubtful that such unification should stop at the European borders. Rather,
there seems to be a trend towards globalisation of the economy, a trend that seems to be
enhanced by the Internet and the related New Economy52. As a matter of fact, also in
contract law until the publication of the PECL the unificatory trends seemed to be rather
in the direction of sustaining those developments. In 1980 the United Nations
Convention for the International Sale of Goods (CISG) was adopted. It has now been
ratified by 58 countries all over the world53. And in 1994 the UP were published, which
also have a global scope. One could ask whether we really need European Principles,
especially since they seem to differ so little from the UP54. On the other hand, however,
the risk for the PECL to compromise trends towards global unity seems to be rather
limited. First, because there is no formal conflict since neither of them is law in a formal
sense. Secondly, because they are very similar to both the UP and CISG.
49 See Mattei 1998-1. There are also risks of a race to the bottom, which would make the most liberal rule
survive. See for the United States, Friedman 1985, p. 410.
50 Legrand 1999-1. See also Smits 1998 and Smits 1999-1, p. 46.
51 See Chapters VI Politics, VII Culture and VIII Economics.
52 See Teubner 1997, Twining 2000, Rodotà 2001.
53 See UNCITRAL Status of Conventions and Model Laws, update 17 January 2001 (see
www.uncitral.org).
54 See on the differences Hartkamp 1994, Bonell 1997, p. 85 ff. It is interesting to note that the UP have
found their way into many a book on cases and materials for contracts courses in the US, e.g.
Burton/Eisenberg 1999.
11
There is another problem with regard to the Lando Commission’s claim of a need for
unification. It seems to be in contradiction with their claim that the PECL ‘represent the
common core of the European systems’. There is some tension between, on the one
hand, the strong assertion that unification is needed because diversity is an obstacles to
trade, and, on the other, the equally strong claim that the PECL represent the common
core of European contract law. Is there great diversity or overwhelming unity? To the
extent that the PECL are a reliable restatement of the common core of European
contract law, they actually form a strong statement against unification efforts for the
simple reason that unity already exists. Conversely, if there are important differences
between the European systems of contract law, how was it possible for the Lando
Commission to find a common core? Compare Yntema on the American restatements55:
‘This much is certain, that the notion of improving the law by restating it as it is, is
unsatisfactory. (...) Where there is diversity in the law, how can it be stated in a single
rule? Where there is uniformity, what is the need for restatement?’ To some extent, of
course, both claims can be reconciled: the Lando Commission’s largely implicit56 but
very plausible57 assumption seems to be that the commonalties and differences are
different in kind (commonalties in substance and differences in form) and that one is
more important than the other.
2. The PECL as a Foundation for European Legislation. - Like many others, the
Lando Commission is clearly concerned with the impressionistic way in which the
European Union is harmonising private law, especially contract law58. Frequently the
European Commission seems to possess a very narrow-minded view (the view of its
Brussels Directorate-General) and does not seem to care about the broader picture, i.e.
the rest of the national legal system into which the directive must be implemented. The
implementation of directives on unfair terms59, consumer guarantees60, and, most
recently, on late payment of money debts61, have raised some very difficult systematic
questions in various legal systems in Europe62. Moreover, directives sometimes seem to
contradict one another. Therefore, another purpose (the first) of the PECL mentioned by
the Lando Commission is to provide a foundation for European legislation, in order to
assure a more orderly development of the law.
3. A European Code of Contracts?. - However, the PECL are not only meant to assist
the institutions of the European Union in drafting directives et cetera. The PECL are
also explicitly meant to provide a basis for a future European civil code: ‘One objective
the Principles of European Contract Law is to serve as a basis for any future European
55 Yntema 1936, p. 468.
56 See however, PECL, Introduction: ‘systems often reach the same solution in different ways.’
57 See further below.
58 P. xxii.
59 1993/13/EEC.
60 1999/44/EC.
61 2000/35/EC.
62 On the other hand, the need for the implementation of directives may also sometimes be beneficial to
the system. In Germany, for example, there are plans to use the implementation of the directives on
consumer guarantees and on late payment of money debts to establish some order in the very complicated
system of remedies for non-performance. See the Diskussionsentwurf eines
Schuldrechtsmoderniserungsgesetzes issued by the Bundesministerium der Justiz on August 4th, 2000. A
similar operation was attempted in France when the directive on product liability had to be implemented
but unfortunately failed due to a strong producer’s lobby. See Ghestin 1998.
12
Code of Contracts’63. This may explain why in its deliberations the Lando Commission
paid most attention to the formulation of the black-letter rules64.
On this point there is a clear difference between the PECL and the American
Restatements of the Law. The Restatements have never been meant to provide a basis
for a code. However, it is not immediately clear what the benefit would be of adoption
as a code as compared to its status as a restatement, particularly if the code would only
consist of the black-letter rules. As said before, much of the substantive value of the
PECL lies in the Comments. And it is not all that clear whether the adoption of only the
black-letter rules of the PECL as a European Code of Contracts without any
harmonisation of regulations concerning specific contracts, without a common law of
civil procedure, and without a common jurisdiction that would guarantee uniform
interpretation, would lead to a significant degree of uniformity in Europe. However, if it
was decided to enact such a European code of general contract law, the PECL would
obviously provide an eminent basis for such a purpose.
C. Applicable Law Today
1. Incorporation. - The PECL are not only meant to serve as a basis for future law. They
are also intended to be used by contracting parties in Europe today. Of course, the
incorporation of the PECL by the parties into their contract is one possibility65. In
principle parties are free to declare the PECL to be part of their contract (freedom of
contract). This may be useful to parties who wish to have a neutral set of contract
clauses without time-consuming negotiations and delicate drafting exercises. For
example the famous Channel-tunnel contract, that now refers to the law common to
France and England, could have adopted the PECL as part of their contract66.
2. Choice of law. - However, a choice of law in favour of the PECL, as art. 1:101 (2)
also suggests, seems to be more problematic. It is not at all certain that in many
European legal systems conflict rules would allow parties to make a choice of law in
favour of the PECL67. The argument in favour is obvious: the PECL are truly European
and therefore probably better adapted to international situations68. However, the
argument against is equally obvious: the PECL are not ‘law’ in a formal sense. They
have not been enacted by any public authority, nor are they democratically justified in
any other way (e.g. consultation of those interested, et cetera). They are no more the
law than, say, Kötz’s book ‘European Contract Law’69. Nevertheless, several European
authors have argued that a choice of law in favour of the PECL should be possible70.
However, these authors have been met with criticism71.
63 See PECL, p. xxiii. Explicit reference is made to the European Parliament Resolutions calling for the
preparation of a European Code of Private Law, one in 1989 (Resolution of 26 June 1989, OJEC No. C
158/401) and the other in 1994 (Resolution of 6 May 1994, OJEC No. C 205 (519)).
64 P. xv.
65 Art. 1:101 (2).
66 See Lando 1998, Hondius 2000.
67 The same problem arises with regard to the UP.
68 This argument is even stronger for the UP, that are exclusively intended for international (commercial)
contracts.
69 Kötz 1997. Indeed the American Restatements never seem to have aspired to be the object of a choice
of law.
70 See Hartkamp 1995, Lando 1996, Boele-Woelki 1995, Boele-Woelki 1996.
71 Very sceptical is Kessedjian 1995..
13
3. Formulation of the Lex Mercatoria. - Another purpose mentioned by the Lando
Commission is that the PECL may be applied when an international contract states that
the arbitrators are to resolve their dispute on the basis of the Lex Mercatoria72. The
PECL may then be regarded as a restatement of the Lex Mercatoria73.
When contracting parties instruct arbitrators to apply the Lex Mercatoria, a problem
might arise with regard to the choice between the PECL and the UP. The PECL claim
that they are ‘a modern European Lex Mercatoria’. However, they also claim that they
contain rules of general contract law, not only for international commercial contracts,
but also for national and consumer contracts. The UP, on the other hand, claim to be the
Lex Mercatoria for international commercial contracts74. And there is also the Central
project, led by Berger, which is specifically meant to provide guidelines for
arbitrators75. However, in practice the difficulties will not be as great as they seem: as
said, the UP and the PECL are very similar76.
D. A Common Language
One of the most important benefits of the European private law movement has been that
academic debate on private law has rapidly become international. In my view the most
important achievement of the Lando Commission is that it has provided us with a
common language for that debate.
Probably the most important function of the PECL will be that they provide us with a
common European language for discussions on contract law77. This common language
provides us with a clear, efficient and sufficiently neutral framework for a fruitful
European discussion on contract law78. It helps us to formulate the various conflicts79.
And it is highly accessible and thus allows everyone to participate in the debates.
This common language is not meant to replace the national languages. It simply
helps us when we want to talk about the commonalties and differences between our
systems. Many commonalties in substance are hidden by differences in terminology
(Babel) and, vice versa, many differences in substance are hidden by common terms
(false friends). The use of a common language may make communication easier80. For
72 The Lex Mercatoria is not recognised in all countries. See De Ly 1989 and Osman 1992.
73 Art. 1:101 (3).
74 See UP, Preamble (p. 10), and Bonell 1997.
75 Central 2000 and www.uni-muenster.de/Jura.iwr/central/english/central.html
76 See also Bonell 1997, p. 87 ff.
77 See p. xxv: ‘Those attempting to unify European contract law, particularly within the Community, need
above all uniform principles and a uniform terminology.’ Strangely enough one other, and in my view
very important, possible function of the PECL is not mentioned by the drafters: education. First, of
course, they can be extremely useful in optional courses on ‘European Contract Law’ as we have seen in
many Dutch universities for some years now. But, secondly, in my view the PECL provide excellent
material for teaching the ordinary (mandatory) contract law course in a less positivist, more problem-
oriented way. And it is obvious that if all over Europe in contract law courses attention would be paid to
the PECL this would contribute enormously to unification. See further Kötz 1992, Hesselink 1999, p. 17
and Basedow 2000.
78 See on taxonomy: Mattei 1997-1.
79 See also Barendrecht 2000 ‘giving the problem a name’. It should not be understood too much as an
answer to those conflicts. See Hyland 1998, p. 65-67: ‘What the American experience teaches is that
differences disappear very slowly if at all. If they are suppressed in one domain, they resurface elsewhere.
The only question is how best to take advantage of them.’
80 On the other hand the use of a third language may also complicate matters
14
the first time in recent history we now have in Europe a sort of meta-language for
debates on contract law. This may reduce to some extent - but not completely! - the
Babylonian conversations between scholars and practitioners from different European
jurisdictions81.
Of course this language is by no means completely neutral. The choice of concepts et
cetera made by the Lando Commission implies cultural, political and other choices. I
will return to this later.
Although the PECL’s language is limited to Europe, it will not isolate Europeans
from the rest of the world since it is very similar (though not identical) to CISG and the
UNIDROIT Principles.
III. AUTHORS AND WORKING METHOD
A. Authors
Who drafted the Principles of European Contract Law? The PECL were prepared by the
Commission on European Contract Law, and edited by Ole Lando and Hugh Beale. The
Commission on European Contract Law consists of members from each country of the
European Union, including from Scotland. With the expansion of the Union the number
of members of the Commission has increased over the years82.
Who asked this Commission to draft the PECL? The answer is in fact: nobody. In
1974 Professor Ole Lando concluded that the EEC Convention on the Law Applicable
to Contractual and Non-Contractual Obligations would be insufficient: ‘They would
never establish the legal uniformity necessary for an integrated European market.’83
Although funds were provided by the European Commission84, the Commission never
asked them to draft Principles of European Contract Law. Therefore the Lando
Commission cannot be said to represent the European Union in any official way. Nor do
its members formally represent their countries. Their countries are not bound by them
and they are not bound by directives or guidelines from their respective governments.
To be clear: the Lando Commission do not claim that they represent anybody. On the
contrary, they emphasise the fact that they have worked with great independence.
The members of the Commission on European Contract Law are virtually all
university professors. However, several of them are also practising lawyers85. How
were the members selected? The Preface to the PECL does not explicitly mention
anything with regard to the selection of Commission members, but it is clear that they
were selected by co-option. Although the Commission consists of specialists of the
81 And the world. See Gordley 2000: ‘If we break our last ties with the traditional English common law,
the number of [legal] families will be reduced to one. I have argued that we must do so simply in the
interest of coherent thinking and sensible outcome. If we do, however, we may also discover that
coherence and good sense have little to do with national boundaries. We will have moved toward a world
in which jurists everywhere recognize that the fundamental problems are the same, and can talk to each
other about them in the same vocabulary.’
82 The Commission only has members from the current EU Member States. Therefore the laws of
prospective new members have not been explicitly taken into account.
83 PECL, Preface, p.xi.
84 The EC paid most of the expenses up to 1994. Other funds were provided by some 15 private and
public sponsors. See PECL, Preface, p. xv.
85 PECL, Preface, p. xiii.
15
highest international esteem, the Commission is not democratically legitimised in any
formal way. For most of the purposes for which the PECL are intended (see above) this
is not a problem whatsoever, but for some (especially the model for a European Code) it
may be questionable from a political perspective.86 On the other hand, even if the PECL
were to be the basis for a European code of contact law, from the perspective of most
European countries it is not at all extraordinary for a code to be drafted mainly by
scholars. Especially in Germany there is a long-standing tradition of this from the
drafting of the BGB until the recent proposals for a Schuldrechtreform87. And in the
Netherlands Meijers and most of his successors who drafted the 1992 Civil Code were
academics88. Also in Great Britain many statutes and law reforms are prepared by the
Law Commissions, which also (but not exclusively) include academics89. And in France
many pieces of private law legislation, like family law (Carbonnier), traffic liability
(Tunc) and product liability (Ghestin) have been prepared by academics. The main
difference seems to have been that the members of the Commission on European
Contract Law were not formally appointed by their governments to do the drafting90.
Many of America’s prominent law professors, judges, and attorneys are members of
the ALI, and, more or less actively, are involved in the drafting and final adoption of the
Restatements. This, of course, helps considerably in broadening the support for the
restatements. The PECL have not undergone such an elaborate drafting process where
literally thousands of people have been involved. They were drafted by some 20
professors. This could of course lead to indifference or scepticism or even hostility on
the part of those academics who were not involved in the drafting. In order to broaden
support for the project it would be desirable if a European Law Institute, similar to the
ALI and UNIDROIT, were to be established, and the EU should invest in this91. Such
an institute could provide the infrastructure for the successor of the Lando Commission,
the Von Bar group, which is currently working on the European Civil Code project. It
could also guarantee the continuity of the project (similar to Restatements Second and
Third).
Of course, all this could not be expected from the Lando Commission. The
publication of the PECL is a major achievement. However, it should also be openly
recognised that it is essentially an academic achievement, albeit, I repeat, a collective
achievement by some of Europe’s most renowned experts in the field. The PECL are the
private academic work of a group of the most outstanding European scholars with an
undisputed reputation in general contract law, most of them with an inclination towards
comparative law.
86 Compare White 1997, p. 1, on the ALI: ‘an organization of elite lawyers and judges’.
87 Among the members of the Kommission zur Überarbeitung des Schuldrechts who presented its
proposals in 1992 were Professors Hein Kötz, Dieter Medicus, and Peter Schlechtriem, The recent
proposals to reform the law of obligations (on which further below) is largely based on the findings of
that committee (see Abschlußbericht 1992).
88 Snijders, however, was a senior judge.
89 E.g. at this moment Professor Hugh Beale, a prominent former member of the Lando Commission.
90 See for some very formalist criticism Kessedjian 1995.
91 See Snijders 1997, Hesselink 1999.
16
B. Working Method
The working method adopted by the Lando Commission is described clearly in the
Preface: First, a Reporter drafts Articles and Comments on a certain subject which he
presents to the drafting Group. That group prepares the text for submission to the whole
Commission. After the Commission has accepted the texts they are sent to the Editing
Group which takes special care of the terminology and presentation of the texts92. It is
important to note that the Commission left it to the Drafting Group and the Editing
Group to finalise the Comments93, apparently considering the black-letter Principles to
be the most important part of their work. The Notes to each article were written by its
Reporter on the basis of information provided by the Commission Members94.
As said above, the American Restatements are also drafted by a private organisation,
the American Law Institute. However, there is a major difference between the way the
PECL were drafted and the way in which in the US the Restatements of the Law and the
UCC are drafted. The drafts for the Restatements and for the UCC are explicitly
exposed to interest groups. Moreover, representatives from all parties concerned with a
certain branch of the law are involved (in great numbers) in the debates concerning the
drafts during the Annual Meeting of the ALI.
The Commission does not say why it has not exposed its draft to explicit lobbying95.
It could be argued that there is no need to do so because the PECL deal with general
contract law which is a fairly neutral part of the law, and the matters which the
Commission had to deal with were highly technical issues which could best be left to
specialists96. However, the most likely reason seems to be that sufficient funds were
simply not available to organise such an endeavour in a serious way. Contrary to the
ALI, which, as said above, is a highly professional organisation with thousands of
members, the Lando was rather a Commission of idealist volunteers97.
C. Presumptio Similitudinis
The Commission rather looked for similarities than for differences between the systems.
They adopted the presumptio similitudinis as the basis for their working method. This
method was previously successfully applied by Hein Kötz in his European Contract
Law98: the book mainly concentrates on the common core; the local peculiarities can be
found in the footnotes. Similarly, the Lando Commission has concentrated on
commonalties rather than on divergences. However, the differences are not hidden
altogether: they are spelled out in the comparative Notes.
92 Preface p. xv. Especially the Editing Group ensured that the terminology which was used could be
readily translated into French and other languages.
93 See PECL, Introduction, p. xv.
94 See PECL, Introduction, p. xv.
95 The PECL were discussed, in view of their comprehensiveness, with practising lawyers from six
Member States. See PECL, Introduction, p. xxvi.
96 Whether that position would be tenable will be discussed below.
97 See Lando’s preface (p. xvi): ‘However, the most important support was provided by my colleagues,
the members of the two Commissions, who without being paid for it gave their time and efforts for the
cause.’ See on the need for a European Law Institute which could provide the infrastructure for the
European Civil Code Project, above.
98 Kötz 1997. See also Zweigert/Kötz 1998, p. 40.
17
Some scholars are very critical of this method99. They maintain that it is
‘unscientific’. A true comparative lawyer should look for differences rather than for
common factors. However, in the light of their objectives the Lando Commission’s
choice is perfectly understandable. As said above, the main purposes the PECL should
serve are the following: to serve as a restatement of the common core of European
contract law; to provide a basis for future unification of contract law in Europe; to be
applied as law from now on in certain specific situations; and to provide a common
language. For all these purposes it makes perfectly good sense to concentrate on the
similarities rather than on the differences between the various European systems of
contract law. If one wishes to draft a set of rules which can be said to be based to some
extent on all these systems, and if one wishes to encourage further European integration
this method is likely to be the most effective. Clearly, the method of presumptio
similitudinis is far from being politically neutral. It is typically adopted by idealists who
believe in a uniform private law for Europe. It would never be used by adversaries of
European integration. But, of course, the alternative method which emphasises
differences is not politically neutral either. Apart from a few naive scholars who regard
the method as ‘objective’ or ‘scientific’, it is mainly employed by those who have other
ideals and political aims. They want to preserve local particularities because they regard
them as an important part of the national cultural heritage. And, clearly, they will not
only attack the method but also the purposes envisaged by the Lando Commission.
It should be noted, however, that the members of the Commission did not limit
themselves to establishing the common core. They went further. They wanted to build
something new, mainly (but not only100) based on the foundation provided by the
national European legal systems. The Commission state: ‘The method adopted may be
compared with the American Restatement of Contract, the second edition of which was
published in 1981. However, the task is different. The restatement is broadly intended as
a formulation of existing law, since in almost all states the law of contract is based on
the common law. In the Union, which is characterised by the existence of a number of
divergent legal systems, general principles applicable across the Union as a whole must
be established by a more creative process whose purpose is to identify, so far as
possible, the common core of contract law of all the Member States of the Union and on
the basis of this common core to create a workable system.’
Apart from whether there is here any true difference in principle with the
Restatements (it rather seems to be one of degree), it seems appropriate that the
Commission explicitly stated that they intended to create something new since this will
avoid the risk of the PECL being scrutinised by dedicated positivist ‘legal scientists’
who wish to reproach the Commission for the fact that the PECL are not an accurate or
objective or true statement of the common core. However, as a result, the PECL, at first
sight, seem to suffer from ambiguity101. On the one hand, they pretend to present the
common principles, the common core. They make a strong statement of communality.
On the other hand, they pretend to be progressive and tell us that they have not seen it as
their task to make interpolations or comprises. They actually acknowledge that some of
the provisions in the PECL reflect ideas which have ‘not yet’ (!) materialised in the law
99 See especially Legrand 2001.
100 Some rules emanate from outside the EU (UCC, Restatements), and some from no system at all!
101 This ambiguity is not the same as the one discussed above.
18
of any State102. Probably this ambiguity has something to do with the position of the
Lando Commission. On the one hand, the members are academics who want to
demonstrate how much the present contract laws of Europe actually have in common,
while, on the other, they are also would-be European legislators who want to show us
what a good European Contract Code could look like. However, on second thoughts,
this ambiguity should not be regarded as problematic. Instead of investigating to what
extent the PECL really represent the common core they can best be seen as the common
view (there are no dissents) on general contract law of some of the most eminent
scholars in the field from all across Europe. This in itself is a very strong and relevant
statement. I do not think that the Commission should or can (or indeed does) pretend the
PECL to be anything more than this.
IV. FORMAT AND STYLE
A. Format
The format chosen by the Lando Commission is that of Principles. At first sight to some
legal theorists the term ‘principles’ may be somewhat misleading. Far from being
principles as Ronald Dworkin has used them in order to sustain his claim of the law’s
integrity103, the black-letter text of Principles of European Contract Law looks very
much like rules, similar to those that can be found in many of the civil codes in Europe
and, across the ocean, for example in the Uniform Commercial Code104. Indeed, similar
to the Restatements the black-letter text is often referred to as ‘black-letter rules’ and
the Lando Commission itself frequently refers to ‘the rule’ in one article or the other.
Why are the PECL called ‘principles’? The members of the Commission never
explicitly say so but it seems likely that they were attracted by the connotation of
‘basic’, ‘fundamental’, ‘general’, et cetera105. Moreover, they may have been reluctant
to speak of rules for fear of being labelled as self-proclaimed European legislators.
Finally, of course, the direct source of inspiration were clearly the UNIDROIT
Principles.
The Principles are accompanied by Comments and Notes. Since some of the Articles
are (necessarily) rather abstract106, the Comments provide a very important source of
information. The Comments ensure that lawyers from the various European traditions
have a clear idea of what the Lando Commission means by the abstract formulas
contained in the Articles. They are an invaluable product of collective, international
scholarship, which may also, together with a casebook, provide excellent materials for
teaching the law of contract in Europe. For that reason it is of particular importance that
Ole Lando has made sure that a student’s edition would be available. (Frankly, for
optimal dissemination it would have been better if the whole document had been made
freely available on the Internet107.)
102 See PECL, Introduction, p. xxvi.
103 See especially, Dworkin 1986.
104 See above.
105 This, of course, does ring a bell as regards Dworkin’s integrity and other (crypto-) natural law theories.
106 See on abstraction below, 5A.
107 On p. iv it is stated: ‘Permission is given by the copyrightowner for unlimited reproduction for non-
commercial purposes only of the pages containing the texts of the articles.’ On the risk of separating the
19
In my view, the format is very appropriate for all the purposes the PECL are meant to
serve108. Because of the Comments, which contain many very helpful Illustrations, the
PECL are much less abstract and provide much more information and certainty than a
classical code. In that sense the adoption of the PECL as a European Code of Contracts
would mean important progress for many legal systems. On the other hand, for the same
reason, it would be an inexcusable mistake to cut off the Comments and Notes and to
adopt only the black-letter articles as a European code.
B. Style
1. Accessible - The PECL are written in an elegant style. Fortunately, the Lando
Commission has neither adopted the very learned, dogmatic style of Professorenrecht,
full of concepts and abstractions, such as e.g. the German, Greek, Portuguese and Dutch
civil codes (although, as said, the members of the Lando Commission are all
professors!), nor the extremely detailed and bureaucratic style of most English statutes.
Obviously, this very fortunate result was not attained by chance. It was rather an explicit
objective of the Lando Commission: ‘Every effort has been made to draft short and
general rules which will be easily understood not only by lawyers but also by their
clients.’109 And this effort has been very successfully accomplished by the Editing
Group.
2. Open. - The style is also rather open. The PECL explicitly leave a great deal of
discretion to the courts. There is no explicit attempt at ‘closure’: ‘The rules are supple,
leaving judges considerable latitude. Moreover, the rules may point in opposite
directions. It will then be for the judge to choose which is most appropriate in the
circumstances of the case and which to disregard.’110 As a restatement the PECL are
also meant to stimulate debate (both between the contracting parties and in the legal
community). As we saw above, the American experience has shown that for a
restatement too much closure in rigid black-letter rules is not the appropriate style.
Indeed, the style of the PECL is rather discursive. Sometimes they do little more than
provide the relevant elements for debate. Often they merely mention a set of factors
which should be taken into account. See, for example, art. 4:107 (3) (Fraud): ‘In
determining whether good faith and fair dealing required that a party disclose particular
information, regard should be had to all the circumstances, including: (a) whether the
party had special expertise; (b) the cost to it of acquiring the relevant information; (c)
whether the other party could reasonably acquire the information for itself; and (d) the
apparent importance of the information to the other party.’111 More specifically, the
Articles from the Comment, see below. See now the UNIDROIT Principles at
http://www.unidroit.org/english/principles/contents.htm.
108 On these purposes see above, II.
109 PECL, Introduction, p. xxvi.
110 PECL, Introduction, p. xxxiv.
111 Another typical example is art. 5:102 (Relevant Circumstances), on interpretation: ‘In interpreting the
contract, regard shall be had, in particular, to: (a) the circumstances in which it was concluded, including
the preliminary negotiations; (b) the conduct of the parties, even subsequent to the conclusion of the
contract; (c) the nature and purpose of the contract; (d) the interpretation which has already been given to
similar clauses by the parties and the practices they have established between themselves; (e) the meaning
commonly given to terms and expressions in the branch of activity concerned and the interpretation
similar clauses may already have received ; (f) usages; and (g) good faith and fair dealing.’
20
PECL make extensive use of open standards like ‘good faith and fair dealing’,
‘reasonableness’ et cetera.
There is a persistent view that commercial practice needs hard and fast rules whereas
in a non-commercial sphere (especially consumer contracts) more general standards and
open-textured rules are preferable. The underlying ideas seem to be that commerce
needs certainty more than individual fairness: it is more important to know exactly what
the law is than that the resolution of each specific case is fair to both parties;
professional parties conclude the same types of contracts all the time and all they want
is to be able to calculate their risk and set their prices on the basis of what they know to
be the law. This is what many scholars say about commercial practice112. If this is true,
then the PECL are not as well adapted to commercial contracts as the Lando claims.
However, this view does not seem to be unequivocally confirmed, to say the least, by
commercial practice113. Many important international commercial contracts contain
very vague ‘hardship clauses’, which often do not say much more than that in case of
‘hardship’ both parties will be under a duty to renegotiate the contract in good faith.
Moreover, some of the most important commercial contracts instruct the arbitrators to
apply the ‘lex mercatoria’, ‘general principles of the law’, et cetera. And quite
frequently arbitrators find as the most important content of the lex mercatoria the
general duty of good faith114. Interestingly, the concept of good faith was first
introduced in American law in the Uniform Commercial Code115. And, more generally,
the UCC is full of very broad standards. The reason for this is that the drafters thought
that such standards would be more suited to commercial practice116. Other interesting
examples include the UNIDROIT Principles of International Commercial Contracts,
which cannot be said to be a set of hard and fast rules, and Klaus-Peter Berger’s Central
Project, which compiles a list of (now 70) principles which are said to be generally
accepted in commercial practice, most of which are very broad117.
3. Flexible. Finally, the style is meant to create maximum flexibility. Therefore the
drafters have refrained from excessive detail and specificity in order not to inhibit future
development118. In addition, Article 1:106 provides a liberal rule on interpretation and
supplementation of the PECL. See the Comment119: ‘The ‘liberal’ interpretation has a
static and a dynamic aspect. The first envisages situations which may occur today but
which have been overlooked or omitted, the second situations which we cannot imagine
today, as the authors of the French civil code could not imagine an industrialized
society.’
112 According to Kennedy 1976, p. 1704, with references, this line of thought goes back to Max Weber.
See recently in the Netherlands Brunner 1992 and Tjittes 1997.
113 In the same sense Mendel 2000, p. 230 ff.
114 See e.g. the famous Norsolor case (C.C.I. 26 October 1979, no 3131); Nassar 1995, Osman 1992;
Central 2000 (where good faith is listed as the Lex Mercatoria’s principle no. 1).
115 See § 1-203 UCC. In addition, more than 50 other provisions make reference to the concept of good
faith.
116 See Twining 1973, p. 336: Llewellyn believed that tight drafting will often be at least as likely to
defeat commercial expectations as to provide a basis for them.
117 See Berger 1996 and Berger 1997.
118 P. xxvii. Compare UP, Introduction, p. viii: ‘the UNIDROIT Principles are sufficiently flexible to take
account of the constantly changing circumstances brought about by the technological and economic
developments affecting cross-border trade practice.’
119 Art. 1:106, Comment C.
21
C. Language
1. Choice of language. - The PECL were published in English. This was an obvious
choice since today English is not only the undisputed world language, it has also
become the European lingua franca among lawyers, both practising lawyers (mainly
due to the economic power of the London and New York based law firms) and
academics (virtually all European private law projects use English as their working
language)120.
A French translation of the first part of the PECL was published soon after the
English version121. And no doubt there will also be a French translation of this
edition122. Are translations into other European languages necessary? There is no doubt
that such translations would considerably enhance their circulation, and, as a result, the
familiarity of European lawyers with them, and, eventually, the realisation of their
goals. The potential risk of a loss of uniformity as a result of inadequate translation,
seems to be of minor importance, since the substantive ideas contained in the PECL are
far more important than the precise way in which they are formulated. However, if there
are going to be translations it is crucial that they should contain not only the black-letter
rule but also the Comments (with Illustrations)123.
Nevertheless, it seems likely that international academic debate and international
practice will mainly use the English version. Thus, eventually the English version may
well become the one which is used most frequently. Would that be a dangerous
development? It does not seem so. Even the most ardent French preservationist will
have to admit that today there is not a great risk that the British will want to dominate
Europe. Moreover, it should be emphasised that the terminology used in the PECL is
not the terminology of English law. It is rather a new legal language124.
2. Some terminological choices. - It is clear that the Lando Commission had to make
many choices also with regard to terminology. Some of the most significant include the
following. The PECL use125 ‘good faith and fair dealing’, like the Restatement
(Second) of Contracts and like the UP, not ‘good faith’, like many European systems
and the EC Directive on Unfair Terms126; ‘termination’, not ‘rescission’ like many
English judges127 or ‘avoidance’ like the CISG128; ‘avoidance’, like the UP, not ‘to
120 See on the important purpose of the PECL as a ‘common language’, above, 2D.
121 Les principes du droit européen du contrat, L’exécution, l’inexécution et ses suites. Version française,
La documentation française, Paris 1997, translated and edited by Isabelle de Lamberterie, Georges
Rouhette and Denis Tallon.
122 This edition already contains the French translation of the black-letter text.
123 A German translation of only the black letter articles was published in Zeitschrift für europäisches
Privatrecht 1995, p. 864, , and an Italian one, edited by Professor Guido Alpa in Rivista Critica del
Diritto Privato 2000, 3.
124 See p. xxv: ‘In fact no single legal system has been made the starting point from which the Principles
and the terminology which they employ are derived.’ This seems to be true. Here again there is a clear
parallel with the UP (Introduction, p. viii): ‘As to their formal presentation, The UNIDROIT principles
deliberately seek to avoid the use of terminology peculiar to any given legal system.’
125 Emphasis added.
126 Art. 3, Council directive 93/13/ECC on Unfair Terms in Consumer Contracts, 5 April 1993, OJ no.
l095, p. 29, 1993/04/21.
127 Which is confusing in England because the same concept is also used in case of misrepresentation, i.e.
both for termination ex nunc and ex tunc. See Lord Wilberforce and Lord Diplock in Photo Production
Ltd. v Securicor Transport Ltd. [1980] AC 827 (p. 844 and p. 851 respectively). See on the debate Treitel
1995, p. 676.
22
annul’ which is frequently used in international academic debate129; ‘debtor’ and
‘creditor’, like many European systems, but unlike English law which uses these terms
only as regards monetary debts, and unlike the UP, which use ‘obligor’ and ‘obligee’130;
‘non-performance’, like the UP, but unlike the CISG (‘breach’)131; ‘specific
performance’, like in England and not ‘implement’ like in Scotland132; ‘recovery’133,
and not ‘restitution’, like in England and in the UP134.
Some interesting French translations of the articles include: dol (not fraude) for
‘fraud’; contrainte (not violence) for ‘threat’; droit de suspendre l’exécution (not:
exception d’inexécution) for ‘right to withhold performance’135; and moyens for
‘remedies’.
V. SUBJECT MATTER
A. Abstraction
The law relating to contracts could be in theory, and is in practice in the various
European legal systems, stated on various levels and in various modes of abstraction.
The Lando Commission has opted for general contract law. Other alternatives include:
1. Legal acts (Rechtsgeschäfte). In the systems of the German legal family
(Germany, Greece, Portugal (negócio jurídico), the Netherlands (rechtshandeling))
contracts are regarded as just one type of Rechtsgeschäft. This concept has had some
success in legal doctrine in Italy, but it was not introduced into the new 1942 civil
code136. In France the concept has been even less successful137 and in English law it is
not known at all. It is a very abstract concept, which is to be found in the most general
(i.e. abstract) parts of the code, in Germany in Book 1 (General Part), in Greece in Book
1 (General Principles), in Portugal in Book 1 (General Part), and in the Netherlands in
Book 3 (General Part of Patrimonial Law) and is applicable, for example, to such
different acts as the formation of a contract, the recognition of a child and the
acceptance of an inheritance. It was developed in the hay days of Begriffsjurisprudenz
and it is very strongly related to the 19th century idea of party autonomy138.
The concept now seems outdated. As said, it was not included in the Italian Civil
Code. The Hungarian, Russian and other Eastern European codes do not use it, and it is
neither included in the UP139, nor in the Scottish plans for a civil code140 or the English
128 Artt. 49 and 64 CISG.
129 NB: in CISG, as said, ‘avoidance’ is what the PECL call ‘termination’.
130 In most of the drafts (and in the published Part I) the PECL also used ‘obligor’ and ‘obligee’ but these
terms were substituted in the final draft, a very fortunate choice. CISG, of course, uses ‘buyer’ and
‘seller’.
131 See on the general concept of non-performance below, 7C.
132 MacQueen/Thompson 2000, p. 221 ff.
133 Artt. 9:307-9:309 PECL.
134 Art. 7.3.6 UP.
135 Art. 9:201 PECL. Compare CISG: ‘suspend performance’. But see the Title of Section 9.2
(Withholding Performance): Exception d’inexécution.
136 See Bianca 1992, 3, with references.
137 But see Flour/Aubert 1994.
138 See Flume 1992, esp. pp. 28 ff.
139 Neither is it to be found in the American Restatements (First) and (Second) of Contracts or in the
U.C.C.
23
proposals for a commercial code. And although, as said, it is included in the 1992 Dutch
code it should be kept in mind that the first drafts for that code date from the 1950s141.
Moreover, today in legal doctrine and in legal education in most European countries
emphasis seems to be more on the law of obligations (with contract as one source of
obligations) and on the law of contract.
The Lando Commission was right in choosing not to draft Principles of European
Legal Acts. The concept is too abstract: even for those who are not completely
convinced by post-modernism142, this degree of rational, systematic abstraction goes too
far, especially as far as the law is concerned (as opposed to textbooks). It is also too
closely related to the 19th century conception of party autonomy for it to be acceptable
as a central concept in the law of the 21st century143. And, finally, it is too closely
related to only the German legal family, whereas it is completely unknown in English
law144.
2. Law of obligations, liability law, death of contract. - In most European legal
systems lawyers think in terms of the law of obligations and are familiar with general
rules on obligations145. Systematically, in these countries contracts are regarded
primarily as one of the sources of obligations. The concept of ‘obligation’ has been
central in the legal systems on the Continent since Roman law146 and it lies at the heart
of all European codes and at the universities in most civil law countries courses and
textbooks are based on it. This is different in the legal systems of England, Ireland and
Scotland, where emphasis is more on ‘contracts’, ‘torts’ and, more recently, on
‘restitution’147, and in Scandinavian countries, where sales law and general contract law
are the central concepts148.
The Lando Commission has not opted for Principles of European Obligations. They
do not explain why. Therefore we can only hazard a guess. The most obvious reason
seems to be that drafting Principles of European Contract Law was a sufficiently
ambitious endeavour. Another plausible reason might be that in the law of contracts a
great deal of work had already been done (ULIS, CISG, Restatements First and Second,
UP). Finally, they may have regarded the PECL as just a first step. Eventually, within
the ECC project where the PECL will be the general contract law, it may be decided to
adopt general rules on obligations. Many of the rules contained in the PECL may be
easily transformed into rules of obligations. As a matter of fact, during the drafting of
many rules (especially those relating to liability in damages) their possible application
to types of liability other than contractual has been taken into account.
Neither has the Lando Commission opted for ‘liability law’. In some legal systems
there is a tendency to concentrate mainly on liability and to move towards a ‘liability
140 See MacQueen 2000.
141 See Meijers 1954, p. 117. The first drafts reflect a clear preference for abstractions which was typical
of Meijers, the author of the first drafts. See Smits 1998, p. 17.
142 See on abstraction Hesselink 1999-1, p. 406 f, and on modernism and abstraction Smits 1998, p. 16 ff.
143 See on this below, 6A.
144 See Markesinis/Lorenz/Danneman 1997and my review (Hesselink 1999).
145 This is also true for the systems of the Germanic legal family, which also contain a general law of
obligations.
146 See Zimmermann 1996.
147 See, however, Samuel/Rinkes 1992 and Burrows 2000..
148 See for Sweden Hultmark 2000, p. 273.
24
law’. This is so in France149 and the Netherlands, where the University of Tilburg has a
‘Centre for Liability Law’150. This tendency is inspired by the idea that in many cases it
does (or should) not matter whether liability is contractual or delictual151. This seems to
be particularly true in case of accidents and other cases of physical harm and damage to
property, where indeed it should not make any difference whether parties have a
contractual or similar relationship (Sonderverbindung) or not, but for ‘pure economic
loss’ some legal systems (especially German and English law) make a distinction152.
The notion of a general ‘liability law’ is related to the idea of ‘the death of contract’
which was proclaimed by Grant Gilmore in 1974153. (See also the theories of
gesetzliches Schutzverhältnis (Canaris) and dritte Spur154). But today in most legal
systems contract law seems alive and well. One of the reasons seems to be that there is
more to contract law than just the ‘law of accidents’ or ‘injury law’ or even ‘liability
law’. This is particularly true for long-term contracts where even in case of conflict
liability is frequently not the main issue since, because of their mutual dependence,
parties are more interested in how they should continue their relationship155. Therefore
under the PECL, as in most European legal systems, liability in damages is just one of
the remedies for non-performance. Another reason is that most people still believe that
it makes a difference for the existence and extent of rights and obligations between
parties whether or not such rights and obligations were intended by the parties or not,
particularly in the case of ‘negotiated contracts’. This view seems to have been
embraced by the Lando Commission as well. Therefore, also in the view of the Lando
Commission contract is alive and kicking.
3. Specific contracts. - Another alternative would have been only to make rules for
all (or some) known types of specific contracts. The obvious advantage of such an
approach would be that the rules would be much less abstract. And, clearly, such
specific rules would much better fit the specific type of contract concluded by the
parties. But the drawbacks of such an approach are equally evident. First, as a result of
freedom of contract the work on such principles would never be finished because people
invent new types of contracts every day in order to best serve their particular
interests156. Secondly, such separate sets of rules for each type of contract would
inevitably be very repetitive, because many of the rules would be the same for all (or
most) types of contract. These seem to be the main reasons why since the acceptance of
consensual contracts in Roman law such an approach has been gradually abandoned and
why today all European legal systems contain general rules of contract law (and/or the
law of legal acts and/or the law of obligations)157. On the other hand, it is clear that
having only the general law of contract leaves a lot of specific questions unanswered.
149 See especially Viney 1995. See also Le Tourneau/Cadiet 1996.
150 See also Barendrecht 2000.
151 See the structure of the Dutch 1992 Civil Code, which provides general rules for liability in damages
(Section 6.1.10), from whichever source (contract, tort, negotiorum gestio, unjust enrichment or other).
152 Compare Von Bar 1996, and Hesselink 1999-1, p. 220 ff, with further references.
153 Gilmore 1974.
154 Rejected for the Netherlands by Hesselink 1999, p. 210 ff and Hartkamp 2000, no. 48b.
155 See Macneil 1987 and Macaulay 1963.
156 See Loos 2000.
157 In Scandinavian systems the Contract Act only covers a limited number of issues. See for Sweden
Hultmark 2000, p. 274.
25
That is why within the framework of the European Civil Code project principles of
specific contracts (sales, services, long-term contracts) are being prepared.
4. Commercial and consumer contracts. - Some legal systems distinguish between
commercial and civil law. In the first wave of codifications most continental European
legal systems adopted both a civil code and a commercial code. However, since the first
half of the 20th century the significance of this distinction has significantly decreased.
And some countries, notably Italy (1942) and the Netherlands (1992), officially
abolished the distinction on the occasion of implementation of their new civil codes158.
However, interestingly, during the last decades of the 20th century a counter-
development started to occur as a result of the birth of ‘consumer law’. Thus a new
distinction arose, between general civil law, which was thought to be largely based on
party autonomy, and specific consumer law, which exceptionally was more
protective159. In the course of the 1980s and ’90s in many European countries consumer
law developed into an important branch of the law (not least as a result of the many
European directives), with a great deal of autonomy. In France all consumer regulations
have even been brought together in the Code de la Consommation. This development
was enhanced by the way in which European Union bureaucracy in Brussels is
organised. Different Directorates-General are responsible for the Common Market and
for Consumer Protection, which has significantly increased the tendency to make
separate rules for consumers and commercial parties.
There are many international examples of the new dichotomy: the UCC, CISG and
UP are only intended for commercial contracts; in England plans are made for a
commercial code whereas, as said, France has adopted a consumer code. However, there
are also counter-examples: the American Restatements (First) and (Second) of Contracts
are intended for all contracts, and in Europe many countries have tried to integrate
consumer law into their civil codes as far as possible, thus trying to maintain the
integrity of civil law. A clear example is the 1992 Dutch civil code.
The Lando Commission has expressly opted for unitary contract law. This seems to
be the right choice for many reasons. First, the distinction between consumer contracts
and commercial contracts is very problematic. Smits argues that each has its own
distinct logic160: commercial contracts are concluded with a view to making profits
whereas ‘domestic contracts’ (concluded by consumers, et cetera) would not have this
purpose. This position does not seem to be tenable. First, this distinction ignores the
importance of a major group of contracts, the mixed contracts, i.e. the ones concluded
between a consumer and a professional. There are very few purely domestic contracts,
and there is even less litigation on such contracts. In many systems many domestic
agreements are even considered to be outside the scope of the law161. But more
importantly: every party who concludes a contract usually does so because she believes
it will make her better off. More specifically, most consumers will buy their goods and
services where it is most favourable in terms of price, service et cetera, whereas most
158 In the Netherlands the distinctions between kooplieden and other persons, and between daden van
koophandel and other acts was abolished as early as in 1934. See Klomp 1998, p. 165 and Klomp 2000, p.
60.
159 See Tjittes 1994.
160 In favour of such schizophrenia is also the ‘Groningen school’: See e.g. Brunner 1992 and, especially,
Tjittes 1994, Tjittes 1997, and Tjittes 2000.
161 See Gordley 2001.
26
sellers and service providers are doing their best to make a profit. Compare Mattei162:
‘Since there is no such thing as a separate market for consumers (demand) and a
separate market for producers (supply), contract law has to face the problem of how to
merge supply and demand into a single market. The creation of two different bodies of
law at odds with each other would ignore this reality, and, as a result, reduce the chance
of building efficient private law institutions for modern Europe.’ Secondly, by
(re)introducing ‘schizophrenic contract law’, as Mattei has called it163, the definition
and proof of status (consumer or professional) becomes all important, whereas it seems
much more efficient to concentrate on contract rather than on status.
However, for one of the purposes the Lando Commission has in mind for its PECL
(maybe it is even its final goal), in admittedly rather opportunistic terms, it might have
been preferable to opt either for a consumer code or for a commercial code since,
precisely because of the way Brussels’ bureaucracy is organised, the adoption of a
Consumer Code (institutional basis and political aim: consumer protection) or a
Commercial Code (institutional basis and political aim: common market) seems to be
much easier to achieve164; the concept of general ‘contract law’ may be somewhat too
abstract from a European institutional and political perspective.
Interestingly, the PECL are very similar to the UP which are intended exclusively for
commercial contracts165. If commercial law and consumer law have their own
respective logic, does this mean that the PECL have applied business logic to consumers
(or the other way around)?166. Or are the rules so abstract that the real choices will have
to be made when the rules are applied? Or do the PECL provide evidence against the
necessity of this dichotomy167?
5. National and international. - Whereas the UP are only meant for international
contracts, the PECL are explicitly intended to apply also to internal contracts168: ‘But
while the Principles will be found particularly useful in international trade transactions
within Europe, they are not confined to such transactions and may be applied equally to
purely domestic transactions.’ A distinction between national and international contracts
was proposed by Drobnig: he suggested unifying only the law of international
contracts169. However, this suggestion was rejected by most other scholars as being
impracticable and as being a source of new discrimination which would obstruct the
proper functioning of the common market.
6. Some consequences. - The Lando Commission has chosen for general contract
law. For the purpose of creating a common language the choice of general contract law
is probably the most suitable. Rules of general contract law may, however, be less
appropriate for some of the other purposes. For a code, a choice of law, or incorporation
into a contract some more specific rules are usually (also) needed. In the ECC project
162 Mattei 1999, p. 538
163 Mattei 1999.
164 Compare what Staudenmayer, a senior civil servant at the European Commission, said in Utrecht in
December 1999 (See Hesselink, AA Katern 74).
165 See above, 2A.
166 In their Preface and Introduction the PECL frequently refer to business. See e.g. p. xxv (‘international
business community’)
167 See on the political relevance of this distinction below, 6A, on the relevance of the distinction for the
style of drafting (closed rules or open standards) above, 2A.
168 P. xxv.
169 Drobnig 1996 and Drobnig 1997.
27
work has started now on ‘nominate contracts’, especially sales, services, long-term
contracts, insurance, monetary loans and personal guarantees170. Among these rules
there will probably be some specific rules on e.g. consumer sales and commercial sales
respectively.
Also, from a (left-wing) political perspective, as a result of the absence of (usually
mandatory) protective rules for consumers, employees, tenants and other weaker parties,
which are usually to be found in the part on specific rules of contract law, the PECL
may look rather individualist (as opposed to social) and sterile (the important rules are
simply not there)171.
Another consequence of the Lando Commission’s choice for general contract law is
of a more institutional kind. General rules of contract law are necessarily rather abstract
and abstract rules in practice leave many of the real choices to the discretion of the
courts172.
B. Functional Approach
The Commission on European Contract Law has adopted the ‘functional approach’173.
This means that it has dealt with (more or less) all matters which are relevant for
contracts even though some of these matters could be, and in many systems actually are,
dogmatically regarded as part of another or a broader field of law, based on a different
type or degree of abstraction (see above). First, the PECL deal with some matters that
are regarded in many jurisdictions as matters of tort law. See, for example, Section 2.3
(articles 2:301 and 2:302) on pre-contractual liability174 and art. 4:117 on damages in
case of (possible) avoidance for mistake et cetera. The PECL also include rules on
matters that are regarded in some countries as part of the law of Rechtsgeschäft (see
above), for example many issues of formation (Chapter 2) and validity (Chapter 4)175.
In addition, the PECL contain many examples of subjects that in most European
countries are regarded as part of the general law of obligations. See, for example, the
rules on Performance and Non-Performance (Chapters 7, 8 and 9)176. Moreover, the
PECL deal with some issues that in many systems are regarded as part of the law of
restitution. The most prominent examples are articles 4:115 and 9:307-9:309 on
recovery after avoidance or termination of a contract which has already been (partially)
performed177. Finally, the PECL contain some rules, especially some remedies, which
170 A team based in Amsterdam, Tilburg, and Utrecht is preparing the draft rules on sales, services and
commercial contracts. In Hamburg a team is working on personal guaranties. Recently in
Luxembourg/Paris a team has started to work on monetary loans. And in Hamburg an associated team is
currently drafting principles of insurance contracts in collaboration with a group led by Professor
Reichert-Facilides).
171 See on this further below, 6B.
172 Compare Yntema 1936, p. 468: ‘European codes, which confide excessive discretion to the courts on
account of the generality of their prescriptions’.
173 P. xxv.
174 See for example France, Belgium, and Italy. See Hesselink 1999-1, p. 80, Hesselink 2001-1, and
Hondius 1991, pp. 11-12, all with further references.
175 See notably Germany (artt. 116 ff BGB), Portugal (artt. 240 ff Código civil) and the Netherlands (artt.
3:32 ff BW).
176 See for example Italy (artt. 1176 ff), the Netherlands (artt. 6:27 ff. and 6:74 ff).
177 Compare artt. 7.3.6 UP and 81 (2) CISG.
28
ce reduction ).
t-off.’
in some jurisdictions are only available with regard to some specific contract,
particularly sales (example: art. 9:401 on pri 178
The Commission could have made different, more radical functional choices. Some
will find the functional choice of contracts still too dogmatic and would have preferred
the functional choice of liability law179. However, as said, there is more to contract law
than liability, and it is likely that the choice of contract law will be the one which is
most easily accepted by (and thus: functional to) both legal doctrine and practice180.
C. Subjects Covered
Most of the subjects relating to general contract which codes, contracts courses and
commentaries in Europe deal with today are covered by the PECL. The choice of
subjects and their presentation are very similar to the UP. However, contrary to the UP
the PECL also deal with the difficult subject of the authority of agents (Chapter 3)181.
A few classical subjects of contract are still missing, but the Lando Commission is
currently working on them182: ‘Additional chapters will deal with the effects of
illegality and immorality, compound interest, conditions, extensive prescription of
claims and with topics which cover both contractual and non-contractual obligations
such as assignment of claims, assumption of debts, plurality of debtors and creditors,
and se
The structure of the PECL is quite straightforward. It consists of 131 articles which
are divided into 9 chapters, four of which are sub-divided into two or more sections.
The structure looks very similar to the UP, but in Europe there does not seem to be a
Code with such a plain structure. This is clearly one of the ‘progressive’ aspects of the
PECL183. The PECL are much more straightforward than, for example, the recent
(1992) Dutch civil code, where one has to ‘collect’ the law relating to a consumer sales
contract from 6 different degrees and types of abstraction.
Nevertheless the PECL still provide a rather ‘learned’ view of contract law. Their
structure reveals that they were drafted by academics. Barendrecht has suggested a
different, more inductive approach184. In his view a codifier should start by identifying
which problems require specific rules and draft specific rules for those problems. Would
the result have been very different from the PECL? It probably would. In the alternative
approach the Principles would probably have been less abstract (no general contract
law), and concerning some specific issues (e.g. offer and acceptance (Section 2.2)) there
would probably have been less detailed rules whereas concerning other subjects (e.g.
measure of damage (9:502)) the rules would probably have been more detailed.
178 See for example France (art. 1644 Cc), Germany (art. 462 BGB) and Italy (1492). See also art. 3 (2)
Directive 1999/44/EC on consumer guarantees.
179 This approach seems to be favoured by Barendrecht 2000, p. 2.
180 See on taxonomy Mattei 1997-1.
181 The rules are based on, and very similar to, the UNIDROIT Convention on Agency in International
Sale of Goods. See Busch 1998; EJCL; Hartkamp 1999.
182 PECL, Preface xiv.
183 On progress see further below, IX.
184 See Barendrecht 2000, p. 16.
29
VI. POLITICS
A. Law & Politics
1. Conflict. - Contract law is meant to resolve conflicts between parties to contracts.
These parties have conflicting interests and invoke conflicting arguments in favour of
their respective positions185. Each system of general contract law has balanced those
interests in its own way. The way the balance is struck depends on many factors. One is
the type of contract most frequently involved in the cases that have come before the
courts, or the type of cases the legislator had in mind when stating the law186. General
contract law differs if it has been developed in labour or in construction cases, in
negotiated or non-negotiated contract cases and in long-term (e.g. franchise) or discrete
(e.g. sales) contract cases. Another factor is the types of parties that were involved in
most cases in which general contract law was developed. It makes a difference whether
in most cases both parties were large multinational companies which were each assisted
by a whole team of specialised lawyers, or whether in most cases one party was a
consumer, or the state. It may also make a difference at which point in time the most
important part of contract law developed, a long time ago or relatively recently. Finally,
and probably most importantly, it makes a difference who developed contract law and
what their views were. Lawmakers with different views make different choices.
Therefore all coherent theories of contract law that have attempted to consider contract
law as the expression of just one underlying idea and which have tried to explain
contract law in its entirety in terms of that particular idea (including the one that
proclaimed the death of contract) have failed187. And there is not much hope for new
theories.
2. Autonomy (Individualism) v Solidarity (Altruism). - One of the basic conflicts
underlying contract law is the conflict between autonomy and solidarity. Or, as it is
often put, the conflict between the right to be free and the obligation of solidarity (but it
could also be stated in the opposite way: the obligation to let free and the right to
solidarity). Many conflicts concerning contracts may ultimately be reduced to that
conflict188. This was first argued with great force by Duncan Kennedy189. It is clear that
there is here an analogy with the traditional political opposition, that most European
countries (and many others) have known throughout the 20th century, between
liberalism and socialism or the right and left190. These political currents reflect different
views concerning the economy and the role of the law within it. One is usually
associated with a free market, the other with state intervention (regulation), one with
mere allocation the other with redistribution. More broadly speaking, the idea of party
185 See generally Jhering 1874 and Nieuwenhuis 1992.
186 See Kötz 2000, Kötz 1998, p. 20; Hesselink 1999-1, p. 419.
187 In the same sense Craswell 1989 and Smits 1998.
188 I do not pretend that all contract law can be explained in terms of this dichotomy, nor do I pretend that
this is the only important conflict underlying contract law, this dichotomy is all there is to contract law.
Quite the opposite. Above I said that contract law can best be regarded as a relatively incoherent result of
balancing of a great variety of conflicts.
189 See Kennedy 1976. This chapter owes a great deal to his analysis in both that classical article and in
his recent book (Kennedy 1997).
190 Of course, in countries with a proportionate electoral system there were many other parties as well,
including, typically, a Christian-Democratic party in the centre.
30
autonomy (individualism) is usually historically connected to Enlightenment,
philosophically to rationalism (Kant), socially to the 18th and 19th century dominance of
citizens, economically to classical capitalism (laissez-faire), and politically to liberalism
(‘the right’). Basic ideas include ‘free will’, ‘certainty’, ‘self-reliance’ and
‘competition’191. Typical legal dogmas are ‘freedom of contract’, ‘absolute property’
and ‘fault liability’. On the other hand, the idea of solidarity (altruism) is usually
historically associated with Industrialisation, philosophically to Marxism, socially to the
late 19th and early 20th century attack on capitalism and emancipation movements
(working class, women, cultural minorities, consumers), economically to the welfare
state (regulation), and politically to socialism (‘the left’). Basic idea’s include
‘protection’, ‘fairness’, ‘sacrifice and sharing’, and ‘regulation’192. Typical legal
dogmas are ‘the duty of good faith’, ‘abuse of right’ and ‘strict liability’.
Whether this distinction will continue to have a prominent role in the 21st century is
uncertain. It is clear that in many European countries the political conflict is much less
poignantly present today than it was during the Cold War. And maybe today’s political
spectrum can best be characterised by the attempt to overcome this dichotomy. But, on
the other hand, it is striking to see that the political movements (‘Third Way’193,
‘l’Ulivo’) or models (‘Polder Model’) that pretend to have overcome the classical
distinction define themselves exactly in terms of the old distinction; they claim to be a
compromise between the two extremes194.
3. A Matter of Choice. - Left versus right, freedom versus equality, individual versus
the state, market versus regulation, individual versus collective, egotism versus altruism.
I do not claim that these distinctions either completely or necessarily overlap, but I do
think that they have been sufficiently connected and recognisable in Europe over the
last century. In each European system balances have been reached between these
extremes, in each field of the law including contract. I also think that the more a legal
system tends to opt in all the choices just mentioned for the first alternative the more
most people will regard it as left wing, whereas systems that tend to opt for the latter
will be regarded more as right wing. Where did the Lando Commission strike the
balance?195.
4. Comparative Law & Politics. - Interestingly, with regard to political preferences
there may sometimes be more harmony within one political family across the European
borders than within a legal family of conceptually and historically related European
legal systems. The question then arises for European citizens (as it arises more generally
within the European Union) whether they feel, for example more ‘right’ or more
‘French’ (the clash between culture and politics).
5. No Integrity. - Before embarking upon a political evaluation of the PECL, a few
preliminary remarks should be made. First, there is nothing natural, logical or necessary
about one way or another of balancing autonomy and solidarity. There is a policy (or
political) choice to be made here on which different people have different views (law is
191 See Kennedy 1976, pp. 1713ff.
192 See Kennedy 1976, pp. 1717ff.
193 See for a philosophy of the third way Dworkin, 2000.
194 Maybe in some countries like the Netherlands the underlying conflict is merely hidden under
compromise but will re-emerge in days of less (or even more) economic prosperity when real choices will
again have to be made.
195 The general part of contract law is often thought to be ‘politically neutral’, technical. This is forcefully
contested by Duncan Kennedy. See his forthcoming article (Kennedy 2001).
31
politics). Assertions that contract is really only (or mainly) based on freedom, will,
promise et cetera are based on a rhetoric that calls for deconstruction196. I do not think
that in any European country today a set of general contract law rules would be
accepted that were exclusively based on either freedom of contract or contractual
solidarity. Therefore a balance must be found. There are different political views in all
countries on where the balance should lie197.
Secondly, for a legislator there are only two ways to avoid striking the balance in the
conflict at some specific point. One is by drafting a very vague or open-textured or
abstract rules, that leaves the actual choice to the courts. The other is by providing no
rule at all, and thus leaving the matter completely to the courts to decide (or to the
negotiating parties). However, it should be noted that in most cases choosing not to
make specific rules is also a choice in the conflict, because where there is no specific
derogating rule (e.g. relief in case of a change of circumstances), the general rule (e.g.
the binding force of contract) will apply.
Finally, it should be noted that, exactly because of the various factors that play a role
in the development of the law (there are probably many others), the system of contract
law in a country is never, and can never be, the consistent expression of one specific
balance in just one of the many conflicts that underlie it, say 70% freedom of contract
and 30% solidarity. No legal system is consistently to be found in one specific place on
the line between the two poles198. To give an example, French law has a tough rule on
imprévision (pacta sunt servanda: autonomy) but also has extensive ‘implied’ duties to
inform (obligation d’information)199 and to protect (obligation de sécurité)200 the other
party (forçage du contrat: solidarity). Similarly, in most countries both ‘commercial’
and ‘consumer’ contract law are based on both notions201. In the Netherlands some
authors have recently argued for two distinct bodies of contract law, one for tradesmen
and one for consumers202. The strongest separation thesis is proposed by Jan Smits203.
He maintains that the law of commercial contracts and the law of consumer contracts
have a completely different logic204. Smits bases his theory on post-modernist
philosophy and on the related theory of legal pluralism. It is very surprising that Smits
should invoke post-modernism for introducing (or rather reintroducing) what is of
course a very modernist abstraction: the whole world of people entering into contracts
can be divided into two distinct groups, each with their own exclusive logic. As I
explained above, general contract law is best understood as being based on a whole
variety of different logics. (That is pluralism!) But this philosophical argument cannot
in itself completely disqualify the separation thesis. The weakness of the theory rather
lies in its assumption of these two different logics. Is commercial practice a jungle that
needs a tough freedom of contract logic? There are many examples that rather show the
opposite. First, the doctrine of unforeseen circumstances, which is usually regarded as
196 Which is not the same as destruction.
197 See recently in favour of more freedom of contract in the Netherlands Hartlief 1999.
198 See Kennedy 2001.
199 See Hesselink 1999-1. pp. 262 ff, with many examples.
200 See Hesselink 1991-1, pp. 191ff, with many examples.
201 See also above.
202 See Brunner 1992, Tjittes 1997 and Tjittes 2000.
203 Smits 1998 and repeated in Smits 2000.
204 The logic of trade is to maximise profit and the logic of ‘house and garden’ contract is to obtain a
specific result.
32
arity) .
an example of solidarity in contract. In virtually all countries this doctrine was accepted
in purely commercial cases205. In the Netherlands the pre-contractual duty to inform,
another classical example of a more social contract law, was developed in commercial
cases206, just like the doctrine against formalist, literal interpretation207, and liability for
breaking-off negotiations208. Another example is provided by the theory of relational
contracts, which emerged in commercial settings (distribution, franchise, agency, joint-
ventures)209. And the doctrines of good faith and unconscionability were first
introduced into the law of the United States in the Uniform Commercial Code210. More
recent examples include the UNIDROIT Principles of International Commercial
Contracts which contain many very ‘social rules’, e.g. art. 3.10 (gross disp 211
B. Autonomy v. Solidarity
Which political choices has the Lando Commission made with regard to the conflict
between autonomy and solidarity? Of course, the most obvious examples of this are to
be found among the rules that determine the enforceability of promises and the scope of
an obligation. However, it is clear that, upon final analysis, most of contract law deals
with these questions. One could even define contract law as the law that determines to
what extent promises are binding. Therefore most questions of contract can be analysed
in terms of autonomy versus solidarity.
1. General Contract Law. - Of course, the choice made by the Lando Commission to
concentrate on the general part of contract law, thus leaving aside most statutory
regulations which give protection to employees, tenants, consumers and other
presumably weaker parties, gives an impression of a greater freedom of contract than
actually exists with regard to many important contracts in most European systems212.
Or, to put it in more explicitly political terms: from a left-wing perspective most of the
important law (most of the political achievements in the 20th century) is missing in the
PECL. Therefore, for a left-wing politician the PECL as a first European Code may
seem rather poor and old-fashioned; and she would probably be rather more impressed
by a Labour Code or a Housing Code or a Consumer Code.
The Commission says that it does not deal with such specific types of contract
because policy questions were involved213. But is this not also true for the general part
of contract law? As demonstrated by the American Legal Realist and the Critical Legal
205 See Hesselink 1999-1, pp. 319 ff, with examples from many European jurisdictions.
206 HR, 15 November 1957, NJ 1958, 67, note Rutten (Baris/Riezenkamp), HR, 21 January 1966 , NJ
1966, 183 (Booy/Wisman).
207 HR, 13 March 1981, NJ 1981, note Brunner, 635, AA 1981, p. 355, note Van Schilfgaarde
(Ermes/Haviltex).
208 HR, 18 June 1982, NJ 1983, 723, note Brunner, AA 32 (1983), 758, note Van Schilfgaarde
(Plas/Valburg), HR, 23 October 1987, NJ 1988, 1017, note Brunner (VSH/Shell), HR, 14 June 1996, NJ
1997,481, note HJ Snijders (De Ruiterij/Ruiters).
209 See especially Macneil (e.g. Macneil 1974, Macneil 1978, Macneil 1987).
210 See especially § 1-203 UCC: ‘Every contract or duty within this Act imposes an obligation of good
faith in its performance or enforcement.’ In addition, more than 50 other sections in the UCC refer to the
concept of good faith.
211 See also the many examples of duties to co-operate et cetera accepted in international arbitration. See
Nassar 1995.
212 See for similar criticism with regard to the Restatement (First) of contract, Clark 1933, p. 658, and
Yntema, p. 466.
213 P. xxv.
33
Studies Movements and as we will see in the following, also with regard to issues of
general contract law between equal parties et cetera, policy/political choices will have to
be made214. These choices may not be very politically controversial, but choices
nevertheless have to be made.
2. Freedom of contract. - Unlike most civil codes in Europe the PECL dedicate a
specific article to ‘freedom of contract’, which is placed right at the beginning of the
PECL (art. 1:102). It starts as follows: ‘Parties are free to enter into a contract and to
determine its contents’. However, this general statement is immediately qualified, after
the comma, by the following phrase ‘subject to the requirements of good faith and fair
dealing, and the mandatory rules established by these Principles’. Thus, under the PECL
the mechanism is the following: freedom in principle, subject to exceptions provided by
mandatory law and good faith.
Where freedom of contract forms, like in most legal systems, the point of departure
(parallels: free market, absolute property, fault liability), the solidarity rules are to be
found in the limitation and regulation of that freedom, often in mandatory rules. Many
of these rules are made in order to impose solidarity with (i.e. to protect) a specific type
of party which is presumed to be weaker, because of its status and its typical position in
the type of contractual relationship she is involved in. The most classical examples are
to be found in the mandatory rules of labour law, landlord and tenant law, and consumer
law. Of course, for those types of contracts the most relevant part of contract law is not
general contract law. Especially in the heavily regulated fields of contract law, where
there is not much freedom of contract remaining, general contract law is of little
relevance.
Many scholars favour a more radically social ‘general contract law’215. And indeed
the emphasis given by the Lando Commission to freedom of contract seems somewhat
out of place. First, because it gives the wrong impression: in most European systems
with regard to many contracts there is not as much freedom of contract as the Principles
suggest. Secondly, because it gives just one side of the picture. From a political
perspective it would probably have been more balanced to place freedom of contract
(autonomy) and the duty to co-operate (solidarity) side by side in the same article, in
order to emphasise that European contract law is based on both these (conflicting) ideas.
3. Good Faith and Fair Dealing. - The PECL represent the international triumph of
the principle of good faith: they contain innumerable references to ‘good faith and fair
dealing’, both in Articles and in Comments, far more than any civil code in Europe.
What will be the role of good faith in article 1:201 and others?
In many European legal systems the good faith principle has developed over the last
century into a means by which the courts have imposed solidarity (altruism) in
limitation of autonomy, both within contract law and outside. Indeed, the duty of good
faith is frequently defined as the duty to take the other party’s interests into account216.
Many of the typical applications of good faith (Fallgruppen) which were developed by
legal doctrine translate aspects of a duty to take the other party’s interests into account
(altruism)217: duty of care, duty of loyalty, duty to co-operate, duty to inform, venire
214 See on the political stakes in “merely technical” issues of contract law Kennedy 2001.
215 Wilhelmsson 1995, Lurger 1998, Alpa 1996, p. 89 ff. See also Vranken 2000.
216 See e.g. Bianca 1992, no. 224; Hartkamp 2001, no. 300; Stathopoulos 1995, no. 51;
Soergel/Teichmann 1990, § 242, no. 4. See further Hesselink 1999-1, p. 44.
217 See Hesselink 1999-1, pp. 58 ff.
34
contra factum proprium non valet (similar to estoppel), proportionality. At first sight,
therefore, it seems that good faith is the intrinsically altruist concept that imposes
solidarity and counterbalances party autonomy.
However, in my view, good faith, as it developed in European legal systems like the
German and the Dutch, should not (or should no longer) be regarded as a separate
normative concept218. It is best conceived as a means to compensate for a formalist
approach towards rules and rights219. Similar to the way, under Roman law, the
primitive formalist approach towards the legis actiones (ius civile) was compensated by
the law developed by the magistrates (ius honorarium) , and to the way, in England, the
initial formalism of Common Law (forms of action) was balanced by the Lord
Chancellor’s Equity, on the Continent good faith became the tool which the courts had
found to counterbalance the consequences of a formalist approach towards the new
phenomenon of codes220. In contract law most of the anti-formalism judicial activism
was aimed at limiting the absolute (i.e. formal) application of the rule pacta sunt
servanda, which, of course, is closely related to party autonomy. Therefore, today in
Europe most of the ‘content of the good faith norm’ consists of social, altruist norms.
However, this could be different if the norms in the code with regard to which a party
tries to adopt a formalist approach were social norms. Under a more social system of
contract law anti-formalism might also be directed against parts of the law that are
based more on solidarity, such as a rule that protects contracting parties (consumers and
others) against surprising standard terms221. But most of the norms in the European
codes were based on 19th century liberalism (freedom of contract, absolute property
rights et cetera) and the formalist attitude towards those rules was attacked with the
weapon of good faith.
It seems likely that under the PECL good faith will continue to be used as a tool
against a formalist approach to rules of contract law and contractual rights and
obligations. To the extent that the PECL will be approached in a formal way, good faith
will continue to be needed as a limit to party autonomy and as a gateway for solidarity
rules. To the extent that the PECL are less individualist than the 19th century codes and
more social (which they definitely are), we will start to see some more ‘party autonomy’
inspired exceptions to ‘social’ rules as part of the ‘content of the good faith norm’222.
4. Duty to Co-Operate. - Article 1:202 proclaims a duty for the parties to co-operate.
At first sight this article seems to be the recognition by the Lando Commission of the
importance of the other basic idea underlying today’s European contract law: solidarity.
However, as seems to follow from the Comment, the Lando Commission rather seems
to understand it in a more limited and technical sense. Under the PECL the duty to co-
operate is especially meant to play the role that is fulfilled in many civil law systems by
218 See Hesselink 1998-2, Hesselink 1999-1, Hesselink 1999-3, Hesselink 2000. See earlier Staudinger/J
Schmidt 1995.
219 See on form and substance in private law Kennedy 1976 and Kennedy 1997.
220 Hesselink 1999, passim, especially pp. 429 ff. As a consequence, to the extent that a formalist
approach towards the civil code (and towards rules in general) is given up good faith will no longer be
needed as a counterbalance. Historical parallels: the merger between ius civile and ius honorarium and
the gradual integration of common law and equity as a result of the Judicature Acts of 1873 and 1875.
221 See, as a recent Dutch example, HR, 1 October 1999, RvdW 1999, 136 (Geurtzen/Kampstaal) where
the concept of good faith was used to limit (protective) statutory rule that standard terms may be avoided
if they have not been made available for consultation (art. 6: BW).
222 See Hesselink 1998.
35
the doctrine of mora creditoris223. However, in contrast with the latter doctrine under
the PECL the duty to co-operate is a real, enforceable ‘obligation’. Failure to co-operate
may constitute ‘non-performance’(art. 1:301), which means that in principle the other
party has recourse to the remedies given in Chapter 9224.
A duty to co-operate is recognised, on the basis of good faith, in many European
legal systems225. It was developed in France by the great René Demogue who said: ‘Les
contractants forment une sorte de microcosme; c’est une petite société où chacun doit
travailler pour un but commun qui est la somme des buts individuels poursuivis par
chacun, absolument comme dans la société civile ou commerciale.’226. Today, in many
European systems it plays an important, though admittedly rather indeterminate role227.
Although article 1:202 PECL is intended by the Lando Commission to have a more
limited function, if the PECL were to be enacted as a European Code of Contracts, it
might nevertheless develop as the main anchor-point under the European code for the
further development of social contract law. It seems perfectly suitable as a basis for
social rules that courts might wish to develop.
5. Excessive Benefit or Unfair Advantage. - With regard to the kind of cases art.
4:109 is meant to deal with, one extreme position (freedom of contract) would be: the
contract is binding upon the parties since consensus was reached. This is what seems to
have been the rule in many European countries in the 19th century before doctrines like
undue influence, misbruik van omstandigheden et cetera were developed. A more
moderate version of this approach would aim to restore the (imaginary) ‘initial
position’. It would concentrate on the contract the parties would presumably have
concluded if the weaker party was an ordinary party. An advantage of this approach is
that it provides incentives for creating an equal bargaining situation228. A disadvantage
is that it leads to fictions. Who knows what the parties would have done? (would the
seller have accepted the market price? et cetera).
The other extreme (contractual solidarity) would be: the state imposes the price
included in any contract. In more moderate versions it would be held that courts should
only enforce contracts with fair prices. The law could either indicate a certain absolute
or presumptive balance between the price actually paid and the market price, or leave it
to the courts to decide in every individual case. Scandinavian countries (most explicitly)
and German and Austrian law (in some cases) seem to rely on a version of the latter
approach, and French law in the case of some contracts (lésion)229. An advantage of this
approach is that it is straightforward. The difficulty lies in deciding what a fair price is,
223 Art. 1:202, Comment A. See Hesselink 1999-1, p. 244ff
224 See artt. 8:101 in connection with art. 1:301. See also Art. 8:101, Comment A.
225 For example France, Germany, and Italy. See Hesselink 1999-1, p. 238ff, with references.
226 Demogue 1931, no. 3. However, Carbonnier 1993, no. 113, warned that one should not exaggerate:
‘L’outrance peut perdre une idée juste. On s’étonnera qu’à une époque où le mariage s’était peut-être trop
transformé en contrat, d’aucuns aient rêvé de transformer tout contrat en mariage.’
227 See Vranken 1997, p. 22, Vranken 2000, Hesselink 1994, Hesselink 1999-1, pp. 238 ff. See also the
central role of co-operation in Macneil’s relational contract theory (Macneil 1974, Macneil 1987).
228 See below, on law & economics.
229 In the Nordic countries on the basis of § 36 Contract Act any clause in any contract may in principle
be policed in view of substantive unfairness. See Wilhelmsson 1998, p. 259, Nielsen 1997, no. 128,
Hultmark 2000, p. 278, and below. Under German (§ 138 (2) BGB), Austrian (§ 879 ABGB) and Greek
(arts. 178 and 179 civil code) law contracts with a gross disparity between the obligations are considered
to be against good morals. Under French and Belgian law (artt. 1674-1685 Cc) a sale of immoveable
property may be rescinded in case of lésion (price less than 5/12th of the value).
36
i.e. where the balance should lie between the price the parties agreed upon and the
market price.
To put it in other words, in cases like this an individualist is more likely to favour the
approach of procedural fairness, which is more respectful of party autonomy (although
in a rather fictitious way: it is said to provide incentives, but incentives for what?; to
reach a fair price or just to inform?), whereas an altruist would rather favour a
substantive fairness approach, which acknowledges that some people under certain
circumstances even make the wrong choices when they are provided with all the
relevant information.
The PECL have reached a compromise (third way): a combination (or rather
cumulation) of procedural and substantive unfairness. Neither of them suffices in
isolation230. At first sight, that seems a rather harsh rule. However, as it seems, in most
cases it should be relatively easy to prove one of weaknesses or needs indicated in art.
4:109231. Then everything will depend on the court’s appreciation of excessiveness. It
seems likely that, if the PECL were to be enacted as a European Code of Contracts, at
least in the beginning, different courts could decide differently according to their
traditions et cetera. In order to create more legal certainty the PECL could have
indicated in the Comments what proportion is presumed to be excessive, as indeed the
UP did in their Comment on the rule concerning unforeseen circumstances
(hardship)232.
6. Unfair terms. - Standard terms are a classical instance where the principle of
freedom of contract came under attack. With regard to such terms the individualist
conception of contract as consensus was obviously highly fictitious. When signing a
contract which contains a set of standard terms or refers to them a party usually gives its
consent without fully knowing the content and implications of these terms, either
because she has not read them or because she does not understand them. Moreover,
even if she does understand them she is frequently left with no alternative because the
other party (typically an economically more powerful one) is not prepared to contract on
terms other than these whereas all the other actors in the industry use similar conditions.
In the course of the 20th century in all European legal systems the question arose of
how to deal with standard terms.
In an extremely individualist view all such contracts would simply be valid and
enforceable: the general conditions were freely accepted when the contract was signed;
each party should take care of her own interests when signing a contract. This view has
been abandoned in all European countries. Less extreme versions of the individualist
approach concentrate on bringing the general terms to the attention of the other party. If
that party accepts these conditions after having read them and understood them they
should then be binding upon her. This approach was adopted by the 1942 Italian civil
code, the first code to deal with the problem233. It provided protection by trying to
230 Art. 4:109, Comment B. A similar approach was earlier adopted in Italy (art. 1448 cc) and in Portugal
(art. 282 c.c.).
231 See (1)(a): ‘[the party] was dependent on or had a relationship of trust with the other party, was in
economic distress or had urgent needs, was improvident, ignorant, inexperienced or lacking bargaining
skill’.
232 An alteration amounting to 50% or more of the cost or the value of the performance is likely to amount
to a “fundamental” alteration, which may allow relief. See art. 6.2.2., Comment 2.
233 Art. 1341 cc. Since 1996 see also artt. 1469 bis ff which implement the EC Directive on unfair terms
in consumer contracts.
37
restore the ‘initial position’ of true consent: it declared a number of onerous standard
terms to be void unless the other party explicitly agreed to them in writing. In most
other systems it took a long time for the legislator to intervene. In the meantime the
courts tried to solve the problem on a case by case basis. They often did so with the help
of the concept of good faith: in specific cases they declared the invocation of a specific
clause in standard terms as being contrary to good faith, thus upholding the formal
validity of the clause (no interference with freedom of contract). Later, a more
straightforward check of the content of such clauses was adopted (Inhaltskontrolle)234.
In most systems in the legislator intervened during the 1970’s235. After the German
example (AGBG) most of these statutes mainly focus on checking the content of
standard terms, thus openly limiting the freedom of contract. They even contain black
lists of clauses that are deemed to be voidable in general conditions in consumer
contracts. In 1993 a European directive on unfair terms in consumer contracts was
adopted236. This directive has now been implemented into most European legal systems.
Just like most European statutes and the EC Directive, art. 4:110 also aims to directly
police the content of standard terms (substantive fairness) rather than limiting itself to
procedural fairness: a party may avoid a standard term if the term causes a significant
imbalance in the parties’ rights and obligations. However, the Inhaltskontrolle is limited
in two significant ways. First, art. 4:110 only deals with unfair terms ‘which have not
been negotiated’. Thus for clauses that have been individually negotiated freedom of
contract and self-reliance continue to prevail. Secondly, section 2 excludes application
to terms which define the main subject matter and to the price, thus rejecting the iustum
pretium theory. These two limitations are also to be found in the EC Directive and was
also present in most European legal systems before the implementation of the directive.
Moreover, most European legal systems also reject the adoption of the iustum pretium
theory as such237. However, in the Scandinavian countries protection extends further238.
In the Nordic countries the checking of contract clauses is not limited to standard terms.
See art. 36 Contract Act239: ‘(1) An agreement may be amended or set aside, in whole
or in part, if its enforcement would be unreasonable or contrary to principles of fair
conduct. The same applies to other legal transactions. (2) In applying subsection 1 of
this provision, consideration shall be given to the circumstances at the time of the
conclusion of the agreement, the content of the agreement, and later developments.’ On
the basis of this article even the price may be controlled240.
In another respect, however, protection (and therefore: limitation of freedom of
contract) under the PECL goes further than that provided by the directive. Art. 4:110
extends the scope of application of the general clause of the EC Directive to contracts
between private persons and to commercial contracts241. Even the directive’s black list
234 See in Germany BGH, 29 October 1956, BGHZ 22, 90.
235 For example in Germany (1976), in England (1977), and in France (1978). See Hesselink 1999-1, pp.
97 ff., with further references.
236 Council Directive 93/13.
237 See
1997, p. 130 ff.
238 See Wilhelmsson 2001.
239 See Nielsen (1997), nos. 128 ff and 382 ff.
240 See Wilhelmsson 2001 and PECL, art. 4:110, Notes, 4 (p. 271).
241 Art. 4:110, Comment A.
38
of clauses that are deemed to be unfair, although not directly applicable, is quoted in the
Comment as a possible source of inspiration for judges and arbitrators242.
7. Implied terms. - Chapters 6 on ‘Contents and Effects’ and Chapter 7 on
‘Performance’ look very classical, and are very much based on party autonomy.
Especially the way the PECL deal with ‘implied terms’ is somewhat disappointing. The
PECL do not explicitly take into account all the ‘implied terms’ that courts in Europe
have developed during the course of the 20th century, especially on the basis of good
faith243, and that have radically changed contractual relationships and the rights and
obligations of the parties to a contract244. Art. 6:102 (Implied Terms) only mentions
possible sources of implied terms. But, as Oliver Wendell Holmes said245, ‘you always
can imply a term in a contract’. The Lando Commission has made no attempt to state
when a term should be implied or what its content should be. The only heteronomous
obligations they explicitly mention are the duty of good faith and fair dealing (art.
1:201) and the duty to co-operate (art. 1:202), but, as said, these duties are too vague.
Also the choice of the term ‘implied term’ is itself unfortunate because it makes one
think of an implicit agreement by the parties (intent, autonomy). The PECL even
mention as the first source of implied obligations the intention of the parties246. This
means: the unexpressed intention of the parties247. In reality, however, these are
obligations that parties would often not have contemplated, and if they had one of them
(the one who is now accused of non-performance) would probably not have agreed to
such an obligation248. In France some of these obligations cannot even be excluded or
limited in the contract249. And in all systems, exclusion is often effectively difficult
because these obligations are ‘implied’ by the courts after the fact. Compare in the
Netherlands the so-called implied warranties250.
The wording of the article, the Comment on it, and the Survey of Chapters 1-9
suggest that art. 6:102 is only a ‘gap-filling’ device, which is elaborated in more specific
rules on instances of failure to fix the price (art. 6:104), absence or disappearance of a
factor of reference (art. 6:107) and quality of performance (art. 6:108). That is a very
narrow view of the concept of implied terms, which does not reflect the achievements in
European case law during the 20th century251. To put it in German terms: the PECL
242 Art. 4:110, Comment B. See on reflexwerking in the Netherlands Hartkamp 2001, no. 368.
243 See for hundreds of examples from many European jurisdictions Hesselink 1999-1, pp. 173-273.
244 See on the importance of these obligations Snijders 1999, Vranken 2000, and Barendrecht 2000.
245 Holmes 1897.
246 Art. 6:102 (a).
247 The UP (art. 5.1) do not mention the parties’ intention as a source of implied obligations.
248 See Malaurie/Aynès 1998, no. 632 (‘le juge ajoute au contrat une obligation à laquelle les parties
n’avaient pas songé, et peut-être même qu’elles avaient implicitement écartée’), Flour/Aubert 1994, no.
406 (‘Dans les mots, les tribunaux feignent toujours de rechercher la volonté des parties. Dans la réalité,
ils se fondent sur l’équité plus souvent qu’ils ne le disent: et ce, au mépris parfois de ce qui a été le plus
probablement voulu.’), Treitel 1995, p. 191 (‘In many cases of this kind, the same process can with equal
plausibility be described either as (…) the imposition of a legal duty.’).
249 Viney 1995, no. 186.
250 HR, 9 October 1992, NJ 1994, 287, 289 (Steendijkpolder) (implied warranty by seller who stipulates
that the buyer will build on the land sold to him, that the land is in all respects suitable as a building site),
HR, 25 June 1993, NJ 1994, 291, note Brunner (implied warranty that a second hand car’s milometer
indicates the correct number of miles).
251 Compared to the PECL the UP place somewhat more emphasis on the importance of ‘implied’
obligations. Art. 5.1 (Express and implied obligations), the first article of chapter 5 (Content), states: ‘The
contractual obligations of the parties may be express or implied.’ Also the term ‘implied obligations’ is
39
only deal with ergänzende Vertragsauslegung, not with Nebenpflichten
(Schutzpflichten). However, in the course of the 20th century in hundreds of cases all
over Europe a host of obligations have been developed by the courts. This is what
Barendrecht has rightly called the ‘living law of contract’252. It would be fictitious, and
politically wrong, to regard the acceptance of these obligations by the courts as being
based on party autonomy. As said, it is sometimes even impossible to exclude them
effectively. In my view the Lando Commission should have tried to ‘codify’ this very
important part of contract law. It could have relied on the achievements made by the
courts and legal doctrine, especially in Germany, where sets of detailed obligations have
been elaborated. At the very least they could have codified four types of basic
obligations which have been accepted in many European systems: duties of care or
protection253, duties of loyalty254, duties to co-operate255 and duties to inform256.
Admittedly, the PECL did codify the duty to co-operate, but, as said, the examples in
the Comment mainly cover traditional mora creditoris situations257.
8. Change of circumstances. - The problem of changing circumstances provides a
good illustration of the phenomenon that legal systems are not consistently more liberal
or social. French contract law which, as we saw, contains many social rules and
doctrines, refuses to assist a party who has found herself in serious trouble because of an
unexpected change of circumstances. The law on this point was established in the 19th
century (in a case which involved a contract concluded in 1567), and has remained
unchanged since then: pacta sunt servanda and the court should not come to the rescue
on account of the judges’ sense of equity258. Today, all other European legal systems
help a party in case performance of the contract unexpectedly becomes excessively
onerous, although for some systems this has taken a long time (the Netherlands) and in
others this help is rather limited (England)259. In most jurisdictions the rules have been
developed by the courts on a case to case basis, usually on the basis of the doctrine of
good faith. Today, Italy, Greece and the Netherlands have codified rules260. Articles
more appropriate than ‘implied terms’ because it relates less to the fiction that these terms are part of the
contract (autonomy, et cetera).
252 Barendrecht 2000-2.
253 Schutzpflichten, obligations de sécurité, obblighi di protezione. See Hesselink 1999-1, p. 186 ff with
many examples from case law, and with further references.
254 Leistungstreuepflichten, obligations de loyauté, obblighi di salvaguardia. See Hesselink 1999-1, p.
225 ff with many examples from case law, and with further references
255 Mitwirkungspflichten, obligations de coopération, obblighi di cooperazione. See Hesselink 1999-1, p.
238ff with many examples from case law, and with further references.
256 Aufklärungs- and Auskunftpflichten, Obligations d’information, obblighi d’informazione. Duties to
inform not only exist in the pre-contractual stage but also during performance. See Hesselink 1999-1, pp.
262, with many examples from case law, and with further references.
257 The obligation is stated at the beginning. The UP have placed the equivalent (art. 5.3 UP) in the
chapter on ‘Content’.
258 Civ., 6 March 1876, D. 1876, 1, 193, note Giboulot, Les grands arrêts, nr. 94. It should be noted that
the legislator intervened by way of specific statutes after both World Wars. See further Hesselink 1999-1
p. 321 ff, with further references.
259 Art. 6:111 goes further than English law. See Comment, p. 325, which would allow relief in Suez
cases where English courts refused to help (Tsakiroglou & Co Ltd v Noblee Thorl GmbH [1962] AC 93).
260 Artt. 1467 codice civile, 388 Greek civil code, 6:258 BW. In the Dutch case one cannot really speak of
codification. Rather, the Hoge Raad abandoned its extreme position (established in HR, 8 January 1926,
NJ 1926, 203 (Sarong case), 19 March 1926, NJ 1926, 441, note Scholten, HR, 2 January 1931, NJ 1931,
40
6.2.1. UP and 6:111 PECL are the first to introduce the duty to negotiate, which is
similar to the contractual provisions in many international commercial contracts
(hardship clause)261.
In the course of the 20th century, with regard to a change of circumstances, most
European legal systems have moved from a very individualist rule to a more social one.
The conflict is usually expressed, in less straightforward language, as the conflict
between the principle pacta sunt servanda and the principle of good faith, or, as the
Lando Commission puts it262, the ‘tension between two conflicting principles, pacta
sunt servanda (agreements must be observed) and rebus sic stantibus (undertakings are
based on the premise that circumstances remain as they are).’ However, in the next
sentence the language is more openly moralist (altruism): ‘Article 6:111 stresses that
normally pacta sunt servanda is the paramount principle; but that in certain extreme
circumstances it would be considered inequitable for one party to insist on strict
performance when that would be excessively onerous for the other.’
Some authors, relying on theories on relational contracts and extensive duties to co-
operate263, and on law & economics, suggest that art. 6:111 may be too restrictive264.
Parties should have incentives to renegotiate much earlier, not only in case performance
becomes excessively onerous. In contracts which are characterised by great uncertainty
concerning the future, on the one hand, and strong mutual dependence, on the other,
parties should be under an obligation to renegotiate in order to deal with foreseen
incidents. The UP actually seem to go further (and are clearer) than the PECL: the
Comment says that an alteration amounting to 50% or more of the cost or the value of
the performance is likely to amount to a “fundamental” alteration265. The PECL do not
contain a similar rule, neither in the black-letter text nor in the Comments.
9. Choice of remedy. - Under the heading ‘Freedom to choose remedies’ the ‘Survey
Chapters 1-9’ proclaims266: ‘When there has been a non-performance, the aggrieved
party should be given the greatest possible freedom to choose its remedy to fit for its
needs, subject only to the requirements of good faith and fair dealing already
mentioned’. This statement of principle is a very strong statement of individualism267,
although it is moderated to some extent by the reference to good faith. A more altruistic
approach would require the innocent party to take the legitimate interests of the other
party into account when choosing a remedy.
The phrase ‘the requirements of good faith and fair dealing already mentioned’ refers
to an earlier passage where three examples are given of the limitation of remedies by
‘good faith and fair dealing’: art. 9:201 PECL (a right to withhold performance only in
as far as is reasonable), art. 9:505 (the right to damages limited to losses the creditor
could not reasonable have avoided), and art. 9:301 PECL. The latter article limits the
274 (Mark = Mark)) when it had become certain that the new code would include this new rule (HR, 27
April 1984, NJ 1984, 679, note Van der Grinten (Sipke Helder/NVB)).
261 See Hesselink 1999-1, p. 348.
262 PECL, Survey Chapters 1-9, p. xxxvii.
263 See Macneil 1987
264 Barendrecht 2000.
265 Comment 2 (p. 147). It should be noted that the UP are meant exclusively for commercial contracts.
266 P. xxxix.
267 It also follows from the wording of art. 8:101 (1) (Remedies available): ‘Whenever a party does not
perform an obligation under the contract (…), the aggrieved party may resort to any of the remedies set
out in Chapter 9.’ Compare also Section (2).
41
availability of the remedy of termination to cases of ‘fundamental non-performance’.
Fundamental non-performance is defined in art. 8:103268. Here the interest of the non-
performing party is clearly taken into account. Much more so than in the Netherlands
where the Hoge Raad maintains an extremely individualist position in this matter269,
although there has been some fierce and justified opposition in legal doctrine270. These
are important limitations to the free choice of remedies. And the PECL contain some
further examples that show that ‘the greatest possible freedom to choose a remedy’ may
be limited in practice (‘by good faith’).
Nevertheless, one wonders whether the Lando Commission should not have gone
further. It could have adopted a general rule to the effect that the election of remedies is
subject to principles of proportionality and subsidiarity, the former meaning that a
specific remedy should not be available if the benefit the creditor would derive
therefrom would be extremely disproportionate to the burden it would impose on the
debtor, and the latter meaning that if each of a number of remedies would result in the
bringing the creditor in the same position (in the specific circumstances of the case; not
merely in the abstract!), then the creditor should opt for the remedy which (to his
knowledge!) is less detrimental to the debtor271. Of course such a rule could be read into
art. 1:201, but, as said above, this could be said of any rule. It would have been
desirable if such a more specific rule could have established in Chapter 8.
An additional argument is provided by the recent EU directive on consumer
guarantees where the choice of remedy for the buyer is far from free272. On the contrary,
the Directive provides for a hierarchy of remedies273.
10. Balance. - On balance, also taking the other articles into account which cannot be
discussed in detail here for reasons of limited space, I think that the PECL are rather
more ‘social’ (to the left) than most of the European codes, although because of their
abstraction very much will ultimately depend on how they will be applied by the courts
(if they are going to be enacted as a European Code of Contracts). This is not to say that
they are more social than the contract laws of most European jurisdictions. Much of the
‘social’ contract law can be found in 20th century case law and statutory regulations.
The basic structure of the PECL seems to be rather classical, in the sense that the
general rule is autonomy, which is (frequently and extensively) supplemented and
corrected by good faith related doctrines. One wonders whether the Lando Commission
could not have gone further so as to take the development of contract law in the 20th
century fully into account and to base its general contract rules more explicitly on both
autonomy and solidarity. It is clear that many of the conflicts emanating from contracts
268 Compare art. 7.3.1 UP. See Sefton-Green 2000.
269 See HR, 24 November 1995, NJ 1996, 160 (Tromp/Regency), HR, 22 October 1999, NJ 1999, 159,
note Bloembergen, where the lower court interestingly had adopted a distinction very similar to the
English distinction between conditions and warranties, and HR, 4 February 2000, NJ 2000, 562, note
Vranken.
270 See Bakels 1993, p. 225 ff; Hartlief 1994, pp. 185, 204 ff. See for further, with references, Hartkamp
2001, no. 516 and Verbintenissenrecht, art. 265 (Hartlief). In my view the Hoge Raad should, more in
general, subject the choice of the remedy to proportionality and subsidiarity tests as described above.
Such a test could be based on good faith (redelijkheid en billijkheid), although, in my view, such a formal
foundation would not add a great deal.
271 In the Netherlands some authors have recently proposed to subject the exercise of the remedy of
termination to these two principles. See Stolp 2000 with further references.
272 See art. 3, Directive 1999/44/EC on consumer guarantees.
273 See for criticism Smits 2000-2.
42
will be between one party relying on autonomy and the other on solidarity. In that
conflict a balance has to be struck. Under the PECL the former party still has a
rhetorical (and evidentiary?) advantage over the other. Or is this the price we will have
to pay if we want to keep the conservatives on board the European private law
movement?
VII. CULTURE
A. Law as Culture
1. Comparative Law & Culture. - There exist considerable differences in style between
the various European legal systems274. These differences in style and in mentalité are
regarded by some legal scholars as an important part of our culture275. And in their view
these differences in legal culture should therefore be cherished. Other legal scholars,
however, hold the opposite view. They regard national idiosyncrasies as
provincialism276. In their view most differences between the various legal systems are
merely a nuisance which, moreover, obstructs the proper functioning of the common
market. The Lando Commission has made a clear choice for a new common European
legal culture rather than for the mere preservation of local legal cultures.
2. Cultural Ingredients of the PECL. - Obviously, the PECL are not culturally
neutral; they have been inspired by the various European cultures. The Lando
Commission does not try to hide this. On the contrary, it claims that its PECL are,
among other things, a restatement of the contract laws from the various European legal
cultures. However, it is excluded that the PECL should be inspired by each legal system
to the same degree. It is evident that the Lando Commission had to make (implicit or
explicit) cultural choices. See the Introduction where it is stated277: ‘The Principles are
designed primarily for use in the Member States of the European Union. They have
regard to the economic and social conditions prevailing in the Member States. The
Commission on European Contract Law has therefore drawn in some measure on the
legal systems of every Member State. This does not, of course, imply that every legal
system has had equal influence on every issue considered. In fact no single legal system
has been made the starting point from which the Principles and the terminology which
they employ are derived. Nor have the draftsmen of the Principles seen it as their task to
make interpolations or compromises between the existing national laws, except as is
necessary in order to weld the Principles into a workable system.’ In this chapter I will
try to assess the cultural choices which the Lando Commission has made. Of course, it
is impossible to determine precisely for each legal culture how much and in what way it
274 See Zweigert/Kötz 1998, p. 67 ff; Remien 1996.
275 See Collins 1995, Weir 1995, Legrand 1996, Legrand 1997, Legrand 1999-1, Legrand 1999-2,
Legrand 2001.
276 See Mattei/Robilant 2001. The locus classicus is Jhering 1924, p. 15: ‘legal science has degenerated
into jurisprudence of states, limited them by political boundaries - a discouraging and unseemly posture
for a science! But it is up to legal science itself to cast away these chains and to rediscover for all time
that quality of universality which it long enjoyed: this it will do in the different form of comparative law.
It will have a distinct method, a wider vision, a riper judgement, a less constrained manner of treating its
material: the apparent loss will in reality prove a great gain, by raising law to a higher level of scientific
activity.’ (English translation taken from Zweigert/Kötz 1998, p. 44).
277 PECL, Introduction, p. xxv.
43
is represented in the PECL. But, on the other hand, I think it is possible to say
something in this respect.
3. Legal Formants. - Cultures in Europe differ in many different ways. Such cultural
differences may also determine important differences in the law in a broad sense of ‘law
as legal culture’ (law in society). Even if the rules are very similar there may be great
differences in (for example) the way disputes are resolved. However, such differences,
interesting as they are, are difficult to describe and even more difficult to measure. They
easily slip into cliché and prejudice. The interest private law scholars in Europe have
taken in legal culture is only rather recent278. Moreover, with regard to the PECL today
we do not have anything more than black-letter-rules, comments and illustrations; we
cannot say anything concerning the way in which they will be applied, the context they
are embedded in et cetera279. Therefore I will mainly (but not only) concentrate here on
the cultural roots of legal rules and doctrines. I also will mainly limit myself to the
difference between the Common Law and the Civil Law tradition which is generally
held to be the most important cultural divide in Europe.
B. Common law v Civil Law
1. Divergence.- The Common Law and Civil Law legal cultures are usually said to be
fundamentally different in many respects280. For example, the way of legal reasoning: a
Common Law lawyer is said typically to draw a direct comparison between two cases
whereas a Civil Law lawyer would compare the cases indirectly, via an abstract rule.
Moreover, a Civil Law lawyer is said typically to think in terms of rights whereas a
Common Law lawyer would rather think in terms of remedies (causes of action): one
only has a right if one has a remedy. Finally, the Civil Law is said to be a systematic
whole (codes), whereas the Common Law is traditionally merely meant to resolve
conflicts (precedents). More specifically with regard to contract law, the Common Law
is said to be based on exchange (bargain theory) whereas the Civil Law is said to be
based on consensus; therefore under Common Law the parties bargain at arm’s length
whereas under Civil Law they should bargain in good faith.
2. Convergence. - It is not surprising that those who are against the unification of
private law in Europe (especially against a Code) tend to emphasise these differences281,
whereas those who are part of the European private law movement either claim that
their opponents exaggerate282, or that today the differences are diminishing283 or even
that they never really existed at all (the important Civil Law influence on English
law)284, or that they are simply not very relevant (political, socio-economic and
institutional similarities are more important)285.
3. Bridge. - The Lando Commission explicitly addresses the gap between Common
Law and Civil Law. As a matter of fact, according to the Commission, one of the
278 See e.g. Sacco 1991, Twining 1997.
279 This is also one of the reasons why Legrand and others object to a European Code: we do not know
what it means because rules only have meaning in context. See Legrand 1997.
280 According to Legrand a Common Law lawyer and a Civil Law lawyer have fundamentally different
views on what ‘law’ means. See on epistemology Legrand 1996.
281 Especially Legrand 1996 and Legrand 1997. See also Smits 1999, pp. 85 ff.
282 See Beale 1999, Beale 2000 and MacKendrick 2001.
283 See Markesinis 1994.
284 See Zimmermann 1998 and Gordley 1993.
285 See Mattei 1998-1, p. 69ff; Hesselink 2001-2.
44
benefits to be derived from the PECL is that they may provide a bridge across the
Channel286: ‘One of the most intractable problems of European legal integration is the
reconciliation of the civil law and the common law families. It is, of course true that
there are significant differences even between one civil law system and another; it is
also true that in many cases common problems will be solved in much the same way by
the various legal systems, to whichever legal family they may belong. But there remain
major differences between civil law and common law systems in relation to legal
structure and reasoning, terminology, fundamental concepts and classifications and
legal policies. (…) Differences of these kinds are inimical to the efficient functioning of
the single Market. One of the major benefits offered by the Principles is to provide a
bridge between the civil law and the common law by providing rules designed to
reconcile their differing legal philosophies.’ Thus, rather than consistently adopting
either the Common Law or the Civil Law approach, which would obviously have made
the Principles unacceptable to the other side, the Lando Commission opted for the more
difficult approach of trying to reconcile both cultures (and thus to create a new,
common European legal culture!). However, obviously even when building a bridge
many choices have to be made. What choices did the Lando Commission make?
4. Common Law Influence. - In a number of issues the Commission a clearly opted
for the Common Law tradition. Generally, it should be reminded that the PECL were
strongly influenced by the UP and that the UP, especially the part on non-performance
and remedies, are very much based on - both directly and indirectly, via CISG - art. 2
UCC and the Restatement (2nd) of Contracts in the United States, a Common Law
system287. Moreover, it should also be reminded that the PECL have ‘contract law’ as
their object, which is the abstraction most familiar to Common Law lawyers (see e.g.
most English textbooks and university courses and the American Restatements of
Contracts), whereas in Civil Law systems the codes, textbooks and commentaries
usually concentrate on ‘the law of obligations’288. Finally, it should be reiterated that the
idea of a restatement, which is one of the main objects of the PECL, and its format and
style have been borrowed from the American (Common Law) tradition of Restatements.
As for specific rules and doctrines, probably the clearest Common Law influence is
to be found in the PECL’s elaborate set of rules on remedies for non-performance289.
The emphasis on remedies clearly reflects the Common Law tradition. In his Preface
Lando says290: ‘Believing that, within the law of contracts, the rules on due performance
and the remedies for non-performance were of paramount importance, the first
Commission chose these subjects for the first phase of its work.’ Whereas this
observation may sound obvious to most Common Law lawyers, many Civil Law
scholars would typically regard formation, defects of consent (validity) and contents and
effects as more important, and formation as the natural starting point291.
286 Pp. xxii-xxiii.
287 See Farnsworth 1997, Gordley 1996, Bonell 1997, pp. 18, 65 and passim.
288 See above.
289 See Beale 2000: an elaborate set of rules on ‘defects of consent’ is more typical of Civil (especially
French) Law, elaborate rules on remedies are more typical of Common (especially English) Law.
290 P. xiv.
291 See e.g. Barendrecht 2000, p. 3: rules on interpretation, implied terms and good faith are probably the
most important rules of contract law.
45
Another very clear example of Common Law influence is the use in the PECL of the
concepts of ‘implied and express terms’292. Although Civil Law courts probably imply
more terms into contracts than the English courts do, they do this under different
headings; the concept of ‘implied terms’ is clearly of English origin.
Since the first half of the 19th century English law has made a distinction between
the terms of a contract according to their importance293. Breach of condition always
allows the innocent party to terminate the contract, whereas in case of breach of
warranty, the innocent party is never allowed to rescind. A term can be a condition
because the parties or statute or the courts say so294. When this sharp distinction proved
unsatisfactory the courts developed a third category of ‘intermediate’ or ‘innominate
terms’. The PECL do not make such a distinction between types of contractual terms.
However, the rules on non-performance and remedies, although admittedly they are
organised in a different way, seem to reflect much of the English case law (and debates)
with regard to remedies and, on the whole, it seems to be more similar to the Common
Law than to the Civil Law tradition. One example is Lord Diplock’s definition of an
innominate term295: ‘There are many contractual undertakings of a more complex
character which cannot be categorised as being “conditions” or “warranties”, (...). Of
such undertakings, all that can be predicated is that some breaches will, and others will
not, give rise to an event which will deprive the party not in default of substantially the
whole benefit which it was intended that he should obtain from the contract.’ This
definition was adopted as one of three situations in which non-performance is
fundamental under the PECL296 (and therefore gives the innocent party the right to
terminate297): ‘A non-performance of an obligation is fundamental to the contract if:
(…) the non-performance substantially deprives the aggrieved party of what it was
entitled to expect under the contract, unless the other party did not foresee and could not
reasonably have foreseen that result’298.
On the other hand, some typical Common Law doctrines have not been adopted by
the PECL. The most prominent is probably the doctrine of consideration299. In art.
2:101 (1) the PECL explicitly say: ‘a contract is concluded if: (a) the parties intend to be
legally bound, and (b) they reach a sufficient agreement without any further
requirement’300. The doctrine of consideration is frequently regarded as the basis of
English contract law. However, not only is this view incorrect from a historical
perspective (the bargain principle is actually quite recent), but the doctrine has also
become rather problematic in many respects and, as a consequence, controversial as
well. In practical terms the doctrine has lost most of its relevance because a deed is
easily made and otherwise (nominal) consideration is easily found301.
292 Art. 6:102 PECL.
293 See Treitel 1995, p. 703; Beale/Bishop/Furmston 1995, p. 495 ff; McKendrick 1994, p. 157.
294 See Treitel 1995, p. 705ff; Beale/Bishop/Furmston 1995, p. 497; McKendrick 1994, p. 158ff.
295 Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26.
296 Art. 8:103 (b) PECL. See also art. 25 CISG and art. 7.3.1 (2) (a) UP.
297 Art. 9:301 (1) PECL.
298 See on fundamental non-performance in French and English law Sefton-Green 2000.
299 It should be noted, however, that the similar civil law doctrine of causa was rejected by the Lando
Commission in the same manner. See below.
300 Emphasis added. See also Comment (D): ‘Nor is it necessary that a promisee undertakes to furnish or
furnishes something of value in exchange for the promise (consideration).’
301 See McKendrick 2001.
46
The PECL contain no strong privity rule. For a long time the doctrine of privity of
contract (which is related to the doctrine of consideration) provided a major difference
between Common Law and Civil Law302: under English law a contract could not confer
rights or obligations on a third party. However, recent law reform has relaxed the
English privity rule considerably303. Today, under English law it is possible for two
parties to stipulate an enforceable promise towards a third party in their contract.
Therefore art. 6:110 (Stipulation in Favour of a Third Party304) can now be said to
reflect also the Common Law. Apart from the ‘Stipulation in Favour of a Third Party’
(and Agency) there is little attention in the PECL to the problem of ‘contract and third
parties’.
2. Civil Law Influence. - There are many typical examples of a Civil Law influence
in the PECL. The most striking example is probably the omnipresence of the concept of
good faith. The Lando Commission has clearly embraced the concept305: it is used on a
very large scale, far more than in any civil code in Europe. Although clearly of Civil
(Roman) Law origin, today, as a result of the EU Directive on Unfair Terms, the
concept is no longer completely alien to English law306.
As to specific rules, like all Civil Law systems307 but unlike English law308, the
PECL accept liability for negotiations contrary to good faith (art. 2:301). Moreover,
under the PECL the parties may be under a pre-contractual duty to inform (art. 4:103 (1)
(a) (ii) and art. 4:107)309. A similar duty is accepted in most European legal systems, but
has traditionally been rejected by English, Scots and Irish law310. As said, the Common
Law has traditionally allowed parties to bargain ‘at arm’s length’. Art. 2:202 (3) PECL
accepts the irrevocability of an offer when the offer explicitly says so, when it contains
a time-limit for acceptance and in case of detrimental reliance by the offeree. This is in
line with most Civil Law systems where an offer can be made irrevocable in many
situations. In German and Belgian law irrevocability is even the main rule311. On the
contrary, under English law a party cannot, in principle, make her offer irrevocable, for
such an undertaking would lack consideration312. Under the PECL penalty clauses are
enforceable (art. 9:509 PECL), but courts may reduce the penalty when it is grossly
excessive313. This is completely in line with the Civil Law tradition314, but in Common
Law systems penalty clauses are in principle not enforceable315. The ‘right to withhold
302 See Du Perron 1998, Kötz 1998, Markesinis 1998.
303 See the Contracts (Rights of Third Parties) Act 1999.
304 Although the ‘title’ of the article has a typical Civil Law, especially French, sound.
305 See for criticism, Hesselink 1999, passim, especially p. 437 ff, and Hesselink 1998. See further above,
VI B.
306 See Teubner 1998 and Hesselink 1999, p. 418, with further references.
307 See Hesselink 2001-1 and Hesselink 1999-1, p. 67 ff., with further references.
308 The duty to conduct negotiations in good faith was explicitly rejected by the House of Lords in
Walford v Miles [1992] 2 AC 128. See for Scotland MacQueen 1999 and MacQueen/Thomson 2000, p.
83 ff.
309 This duty is related to the general duty of good faith. See art. 4:107, Comment E.
310 See Musy 1999, p. 9 ff.
311 See § 145 BGB; Herbots 1995, no. 127.
312 Treitel 1995, p. 39. However, in the (Common Law system) of US law firm offers are sometimes
irrevocable (for up to three months) under § 2-205 U.C.C.
313 Section (2).
314 See e.g. the recent Dutch civil code, artt. 6:91ff BW
315 See further below.
47
performance’ is regarded by the PECL as a ‘remedy for non-performance’ (9:201),
whereas in Common Law systems it is not usually considered to be a remedy316.
In Civil Law systems the ordinary remedy in case of non-performance of a contract
has traditionally been the claim for specific performance of the obligation. The right to
specific performance is usually regarded as the essence of any obligation, whether of
contractual or other origin317. In Common Law systems, on the contrary, the order for
specific performance has traditionally been regarded as an exceptional remedy, which is
only available, at the discretion of the court, when damages are not an adequate
remedy318. In practice, this equitable remedy has mainly been granted in conflicts
concerning rights in land. The Lando Commission chose against the traditional
Common Law principle that damages are the normal remedy and that an order for
specific performance will only be given in exceptional cases: ‘The Principles take the
approach that, unless non-performance is excused, compelling the non-performing party
to perform should not be an exceptional remedy’319. However, it should be added that
the availability of performance in natura is excluded by the PECL in a number of cases
(see artt. 9:101 and 9:102 PECL). The result is usually regarded, quite rightly, as a
satisfactory pragmatic compromise between both traditions320.
The distinctions in Chapter 3 (Authority of agents) between direct and indirect
representation are familiar to many European systems, whereas the traditional Common
Law distinction between disclosed and undisclosed principals was not endorsed by the
Lando Commission321. Generally speaking, Chapter 4 (Validity) looks very civilian
because of its ‘defects of consent’ (vices de consentement, Willensmangel) approach322.
Chapter 5 (Interpretation) also seems closer to Civil Law. Art. 5:101 (1) states as a first
general rule of interpretation that a contract is to be interpreted according to the
common intention of the parties323. This is in line with the Civil Law tradition324, but in
contrast with the Common Law, where emphasis traditionally lies more on the objective
meaning of the contract325. However, there is also some gradual convergence to be
noticed here. On the one hand, most civil law systems seem to have moved towards a
somewhat more objective method of interpretation (normative Auslegung in Germany, il
significato normale in Italy, and the Haviltex criterium in the Netherlands)326, whereas,
316 Of course, also in Civil Law systems the right to withhold performance is not an action but an
exception. Compare on the history, foundation et cetera Hesselink 1999-1, p. 283 ff.
317 See Veldman 2000, with further references.
318 See Veldman 2000, with further references.
319 P. xxxix. See also Art. 9:102, Comment D: ‘Under these Principles the aggrieved party has a
substantive right to demand and to enforce a non-monetary obligation. Granting an order for performance
thus is not in the discretion of the court; the court is bound to grant the remedy, unless the exceptions of
paragraph (2) and (3) apply. National courts should grant performance even in cases where they are not
accustomed to do so under their national law.’
320 In practical terms the UP seem more effective because they allow the court impose a judicial penalty
(art. 7.2.4), similar to astreinte and dwangsom (which may cumulate with damages, like the dwangsom).
321 See Busch 1998; Hartkamp 1999.
322 See also Art. 4:101, Comment (p. 227).
323 See art. 5:101 (1).
324 Compare e.g. art. 1156 French and Belgian Cc, and art. 1362 Italian c.c.
325 See Cozens-Hardy MR’s formulation of the ‘golden rule’ in Lovell & Christmas Ltd v Wall (1911) 104
LT 85: ‘it is the duty of the court, which is presumed to understand the English language, to construe the
document according to the ordinary grammatical meaning of the words used therein, and without
reference to anything which has previously passed between the parties’.
326 See further Hesselink 1999-1, pp. 143-160.
48
on the other hand, the House of Lord (in a controversial decision) has recently
abandoned the ‘golden rule’ of literal interpretation in favour of an approach which
concentrates on the interpretation that a reasonable person with full knowledge of the
factual background of the contract would give327. This latter test in nearly identical to
the subsidiary test in art. 5:101 (3)328.
However, there are also are many typical examples from the Civil Law tradition
which have not been followed by the Lando Commission. To mention a few, the PECL
are not a (draft) civil code, they are not based on the concepts of a general law of
obligations or on Rechtsgeschäft329, they do not require a valid causa for the validity of
the contract330, they do not contain the German concepts of positive Vertragsverletzung
327 Investors Compensation Scheme Ltd v West Bromwich Building Society (No.1) [1998] 1 W.L.R. 896;
[1998] 1 All E.R. 98. See Lord Hoffmann (Lord Goff concurring): ‘I do not think that the fundamental
change which has overtaken this branch of the law, particularly as a result of the speeches of Lord
Wilberforce in Prenn v. Simmonds [1971] 1 W.L.R. 1381, 1384-1386 and Reardon Smith Line Ltd. v.
Yngvar Hansen-Tangen [1976] 1 W.L.R. 989, is always sufficiently appreciated. The result has been,
subject to one important exception, to assimilate the way in which such documents are interpreted by
judges to the common sense principles by which any serious utterance would be interpreted in ordinary
life. Almost all the old intellectual baggage of "legal" interpretation has been discarded. The principles
may be summarised as follows: (1) Interpretation is the ascertainment of the meaning which the document
would convey to a reasonable person having all the background knowledge which would reasonably have
been available to the parties in the situation in which they were at the time of the contract. (2) The
background was famously referred to by Lord Wilberforce as the "matrix of fact," but this phrase is, if
anything, an understated description of what the background may include. Subject to the requirement that
it should have been reasonably available to the parties and to the exception to be mentioned next, it
includes absolutely anything which would have affected the way in which the language of the document
would have been understood by a reasonable man. (3) The law excludes from the admissible background
the previous negotiations of the parties and their declarations of subjective intent. They are admissible
only in an action for rectification. The law makes this distinction for reasons of practical policy and, in
this respect only, legal interpretation differs from the way we would interpret utterances in ordinary life.
The boundaries of this exception are in some respects unclear. But this is not the occasion on which to
explore them. (4) The meaning which a document (or any other utterance) would convey to a reasonable
man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries
and grammars; the meaning of the document is what the parties using those words against the relevant
background would reasonably have been understood to mean. The background may not merely enable the
reasonable man to choose between the possible meanings of words which are ambiguous but even (as
occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used
the wrong words or syntax. (see Mannai Investments Co. Ltd. v. Eagle Star Life Assurance Co. Ltd.
[1997] 2 W.L.R. 945). (5) The "rule" that words should be given their "natural and ordinary meaning"
reflects the common sense proposition that we do not easily accept that people have made linguistic
mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from
the background that something must have gone wrong with the language, the law does not require judges
to attribute to the parties an intention which they plainly could not have had. Lord Diplock made this
point more vigorously when he said in The Antaios Compania Neviera S.A. v. Salen Rederierna A.B.
19851 A.C. 191, 201: "if detailed semantic and syntactical analysis of words in a commercial contract is
going to lead to a conclusion that flouts business commonsense, it must be made to yield to business
commonsense."’ In Prenn v Simmons Lord Wilberforce had said: ‘[English law is not] left behind in
some island of literal interpretation (…) the time has long passed when agreements were isolated from the
matrix of facts in which they were set and interpreted purely on internal linguistic considerations’.
328 Art. 5:101 (3): ‘If an intention cannot be established according to (1) and (2), the contract is to be
interpreted according to the meaning that reasonable persons of the same kind as the parties would give in
the same circumstances.’
329 See above, 5A.
330 Art. 2:101 (1) PECL.
49
and Vertrag mit Schutzwirkung für Dritte331, and they do not contain specific rules on
the distinction between obligations de moyens and obligations de résultat which is
known in many Civil Law systems332.
3. Balance. - Although there are important examples of the presence and absence of
some very characteristic aspects of both major legal traditions and although the Lando
Commission has found some very interesting compromises and new solutions, it is
submitted that, on the whole, the PECL seem to be somewhat closer to the Civil Law
tradition than to Common Law. In terms of numbers this seems to be only fair: in
Europe there are far more Civil Law than Common Law systems (13-2 plus one mixed
system) and many more European citizens belong to the Civil Law tradition than to the
Common Law. Frankly, the PECL probably adopted many more Common Law inspired
rules and cultural compromises than simple numerical considerations would justify.
However, for cultural preservationists this may not be enough. The point raised by
those who argue against a European civil code is that the cultural dominance of the
numerically, economically and politically stronger risks to annihilation of a certain legal
tradition in Europe, a legal tradition which incidentally on a world scale is far from
marginal (e.g. the United States, Canada, Australia, Hong Kong). Is this too high a price
to pay for European unity? The question seems only a variant of the more general
question of English participation in Europe.
According to Legrand the adoption of a European Civil Code would never lead to
real unity, because such a code would be interpreted differently in countries with
different legal cultures333. This may be true in the beginning. It is possible that if the
PECL were to be enacted as a European Code of Contract Law, in case of
‘disappointing contracts’334 Civil Law courts would in the beginning resolve conflicts
rather more frequently on the basis of doctrines which are to be found in the chapter on
Validity, whereas Engli