Book Review: An Original Way of Carrying Out Comparative Legal Research?, Mistake, Fraud and Duties to Inform in European Contract Law
| Published date | 01 December 2006 |
| DOI | 10.1177/1023263X0601300406 |
| Author | Andrea Pinna |
| Date | 01 December 2006 |
| Subject Matter | Book Review |
Book Reviews
474 13 MJ 4 (2006)
the misconceptions in t he academic literature and in t he real-life reform proposals on
national parliaments , and hence this book needs to re ad by anyone that champions the
cause of national parlia ments – be they Eurosceptics or federalist s.
Tap io R aun io
University of Tampere
AN ORIGINAL WAY OF CARRYING OUT COMPARATIVE LEGAL R ESEARCH?
Ruth Se on-Green (ed.), Mistak e, Fraud and Duties to Inform in Europea n
Contract Law, Cambridge University Press 2005, xii + 414 pp., hardback, £65 ($120),
ISBN 0-521-84423-1
ere a re apparently several ways of carry ing out comparative law research. is is what
the founders of the Common Core of European P rivate Law project claim.1 e purpose
of this project is to determi ne, in a particular eld, what Europea n legal systems have in
common and what di erentiates them . Such a purpose is not in itself original , since this
is what comparative law is all about. e met hod applied in the project is also c onsidered
to b e or igi nal . C lai mi ng to be t he ‘ ls spirituels’ of Professors R. Schlesinger and R . Sacco,
the initiators of the Com mon Core project say they e ect a practic al approach, consisting
in tryi ng to formulate the problem in practical terms and to discover t he e ective
solution given by di erent legal systems.2 Only the practical solution is then compared
and little attent ion is given to the particula r reasoning followed in di erent jurisdictions.
is is also not origina l: it has long been established t hat the practica l approach is the
only method that complies with the intrinsic nature of comparative law. Professor
Zweigert, one of the most prominent comparative law scholars of the las t century, has
taught generations of students and researchers t hat every investigation must begin with
the setting of a work ing hypothesis or a pract ical situation. e second step consists
in solving the prac tical issues accordi ng to the domestic legal sy stems investigated.3 It
is important to follow thi s method because, even thoug h every society fac es the same
problems, very o en t hese problems are solved by di erent legal concepts and rea soning.
Moreover, the various paths followed frequently lead to a very similar, if not identical,
solution in practice.4 If the pur pose and the method of the Common Core project a re not
1 For a presentation of the re search project by its i nitiators, se e M. Bussani a nd U. Mattei, ‘Le fonds
commun du droit privé eu ropéen’, Revue Internatio nale de Droit Comparé 29 (2000).
2 See, in deta il, R. Sacco, ‘L egal Formant s: A dynamic Approac h to Comparative L aw’, 39 American
Journal of Compara tive Law 1 (1991).
3 K. Zweigert, ‘Mét hodologie du droit comparé ’, in Mélanges J. Maury (1 960) , 579 . e same ideas a re to
be found in K. Zweiger t and H. Kötz, An Introducti on to Comparative Law, (OUP, 3rd edn., 1998), 34 .
4 As already show n by comparative legal schol ars: see mainly, K. Zweiger t, ‘Des solutions identiques p ar
des voies di érentes’, Revue Internat ionale de Droit Comparé , 5 (1966, pp. 5 .).
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