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Juridical Acts in the Draft Common Frame of Reference – A Model for Scotland?

Document Cited authorities 12 Cited in Related
Vincent
AuthorPhillip Hellwege
Pages358-382
Date01 September 2014
DOI10.3366/elr.2014.0229
Published date01 September 2014
INTRODUCTION

In February 2010, the Scottish Law Commission presented its Eighth Programme of Law Reform to the public.1

Eighth Programme of Law Reform (Scot Law Com No 220, 2010).

As one of its projects under this programme, the Commission proposes “to review the law of contract in the light … of the Draft Common Frame of Reference”2

Eighth Programme (n 1) para 2.16.

 (“the DCFR”3

C von Bar and E Clive (eds), Principles, Definitions and Model Rules of European Private Law. Draft Common Frame of Reference 6 vol (2009).

). The Commission believes that the

DCFR has a considerable amount to offer in the law reform process. It may be seen as an instrument to provide an important area of Scots law with a systematic health check, giving a basis for treatment where the law is found to be ailing or otherwise in need of remedial treatment.4

Eighth Programme (n 1) para 2.16.

 Since February 2010, the Commission has published three discussion papers, one on interpretation of contract,5

Discussion Paper on Interpretation of Contract (Scot Law Com No 147, 2011). Compare M Hogg, “Fundamental Issues for Reform of the Law of Contractual Interpretation” (2011) 15 EdinLR 406; P Hellwege, “Der DCFR als Grundlage für eine Revision und Kodifikation des schottischen Vertragsrechts?” (2013) 21 Zeitschrift für Europäisches Privatrecht 88.

 another on formation of contract,6

Discussion Paper on Formation of Contract (Scot Law Com No 154, 2012).

 and a third on third party rights.7

Discussion Paper on Third Party Rights in Contract (Scot Law Com No 157, 2014).

 It has commenced working on breach of contract and it plans to address penalty clauses in the near future

With its focus on contract law, the Scottish Law Commission does not include another legal concept which is recognised by the DCFR: juridical acts. Article II.-1:101(2) DCFR defines a juridical act as “any statement or agreement, whether express or implied from conduct, which is intended to have legal effect as such”. Introducing the legal concept of juridical acts, the authors of the DCFR wanted to develop further the Principles of European Contract Law (“the PECL”)8

O Lando and H Beale (eds), Principles of European Contract Law. Parts I and II (2000); O Lando, E Clive, A Prüm and R Zimmermann (eds), Principles of European Contract Law. Part III (2003).

. The PECL do not expressly accept the legal concept of juridical acts. Nevertheless, they deal with statements indicating intention and such statements include acts within the definition of juridical acts in the DCFR. In Article 1:107 PECL they do so, however, only by way of reference

These Principles apply with appropriate modifications to agreements to modify or end a contract, to unilateral promises and other statements and conduct indicating intention.

 The authors of the DCFR were critical of this approach. They argue that “this technique is a short-cut which should only be used with great care and only when the appropriate modifications will be slight and fairly obvious”.9

C von Bar, H Beale, E Clive and H Schulte-Nölke, “Introduction”, in von Bar & Clive, Draft Common Frame of Reference (n 2) at para 42.

 Consequentially, the DCFR does not simply deal with juridical acts by way of reference. It includes a number of provisions specifically on juridical acts, and on the basis of the preceding quotation one may assume that it does include these provisions whenever the appropriate modifications are neither slight nor fairly obvious

The introduction of the legal concept of juridical acts has already been criticised by a number of authors. Nils Jansen and Reinhard Zimmermann point to the fact that it can hardly be argued that the legal concept of juridical acts is derived from the acquis commun,10

N Jansen and R Zimmermann, “Contract Formation and Mistake in European Contract Law” (2011) 31 OJLS 625 at 629.

and Martijn Hesselink writes that it “makes the draft look more … Germanic than necessary”.11

M W Hesselink, “The Common Frame of Reference as a Source of European Private Law” (2009) 83 Tulane LR 919 at 969.

 These are substantial points.12

See for further criticism J P Schmidt, “Der ‘juridical act’ im DCFR” (2010) 18 Zeitschrift für Europäisches Privatrecht 304; H Collins, (2008) 71 MLR 840; R Schulze and T Wilhelmsson, “From the Draft Common Frame of Reference towards European Contract Law Rules” 2008 ERCL 154 at 157; S Whittaker, The “Draft Common Frame of Reference”. An Assessment (2008) 6 and 78–87; R Zimmermann, “The Present State of European Private Law” (2009) 59 Am J of Comp L 479 at 493; A Vaquer, “Farewell to Windscheid?” 2009 ERPL 487 at 491–494; R Sefton-Green, “Sense and Sensibilities” 2008 ERCL 281 at 290–291.

 However, they do not apply with the same force to Scotland. Unlike their colleagues from south of the border, Scottish lawyers always had an interest in developing general principles and concepts: the term “juridical act” was used in a Scottish case as early as 1885.13

Cooper v Cooper's Trustees (1885) 12 R 473 at 477. I am grateful to G Gretton of the Edinburgh Law School for drawing my attention to this case.

 In this case the Lord Ordinary used the term, however, only within a citation from a book of Friedrich Carl von Savigny on private international law,14

F C von Savigny, A Treatise on the conflict of Laws, 2nd edn, Eng tr by W Guthrie (1880). This puts a question mark behind the proposition which has been made repeatedly by G Dannemann, without offering proof of it, that the legal notion of juridical acts in Scots law has been inspired by French law: G Dannemann, “The CESL as Optional Sales Law”, in G Dannemann and S Vogenauer (eds), The Common European Sales Law in Context (2013) 708 at 724–725; G Dannemann, “Contracts and other juridical acts in the DCFR”, in V Sagaert, M Storme and E Terryn (eds), The Draft Common Frame of Reference (2012) 9 at 12.

 and private international law is the context in which we find the term being used in one subsequent case.15

Irving v Snow 1956 SC 257 at 266.

 In other cases the term has been used rather loosely.16

Finlay v Finlay's Trustees 1948 SLT 182 (acts of a notary public); Parker's Executors v Esso Petroleum Co Ltd 1971 SLT (Sh Ct) 28 (raising an action); Regus (Maxim) Ltd v Bank of Scotland Plc [2013] CSIH 12 (promise as unilateral juristic act).

 Finally, the term appeared in academic writing, too.17

See D M Walker, The Oxford Companion to Law (1980), who uses the synonym “juristic act”. I am grateful to R Anderson of Glasgow Law School for drawing my attention to this reference.

 Even though both the case law and academics have only made scarce use of the term, it is nevertheless not self-evident why the Eighth Programme of Law Reform focuses on contract law, only. The recent discussion paper on the interpretation of contracts, for example, has predecessors in a discussion paper of 199618

Discussion Paper on Interpretation in Private Law (Scot Law Com No 101, 1996).

 and a report of 1997.19

Report on Interpretation in Private Law (Scot Law Com No 160, 1997).

 They both took a broader view and dealt with the interpretation in private law in general, not merely in contract law. They therefore included the interpretation of other acts which fall within the definition of juridical acts in the DCFR, and indeed they expressly use the notion of juridical acts.20

DP on Interpretation (n 18) paras 1.11, 4.1–12; Report on Intepretation (n 19) paras 1.10, 4.1–8.

The question I would, thus, like to raise is whether the rules on juridical acts in the DCFR can serve as a model for Scotland. This question relates to the so called tool box function of the DCFR.21

On this function compare von Bar et al (n 9) at para 8; Hesselink (n 11) at 944–947; Lord Mance, “The Common Frame of Reference” (2010) 18 Zeitschrift für Europäisches Privatrecht 457 at 462; H Schulte-Nölke, “Arbeiten an einem europäischen Vertragsrecht” 2009 Neue Juristische Wochenschrift 2161 at 2165.

A Common European Sales Law22

Proposal for a Regulation of the European Parliament and of the Council on a Common European Sales Law, COM (2011) 635 final.

 will not replace the DCFR in this respect, as the CESL will not include specific provisions on juridical acts. A quotation from the notes to Article II.-1:101 DCFR may serve as a starting point for my reflections:23

DCFR, Art II.-1:101, Note 9, 128. It is probably true that a Scottish lawyer has been the driving force for including the legal concept of juridical acts in the DCFR: see Dannemann, in Dannemann and Vogenauer (n 14) at 724–725; Dannemann, in Sagaert et al (n 14) at 12. However, it could hardly be argued that it has been taken from Scots law, as the authors of the DCFR themselves believed that the notion of juridical acts is not a familiar term in Scots law.

Scottish law does use the term “juridical act” and of course recognises and regulates a large number of juridical acts such as offers, acceptances, promises … and so on, but it is not a familiar term and little in the way of a general theory has been developed.

 Can the DCFR function as a catalyst for developing a general theory of juridical acts which has hitherto been missing in Scots law? JURIDICAL ACTS – WHY AND WHAT FOR?

I will develop an answer to this question in three steps: first, I will revisit the arguments for and against the introduction of the legal concept of juridical acts in general. The Scottish literature does not discuss these arguments at length, and there is no extensive discussion of this point in the full edition of the DCFR either. The latter simply states:24

DCFR, Art II.-1:101, Comment B, 125.

“The notion of a juridical act is a useful one.” To get some more specific ideas as to the usefulness of the notion of juridical acts I will turn to the German debate. Juridical acts as a legislative concept

The German debate focuses on the merits of the Allgemeiner Teil (general part) of the BGB.25

See M Schmoeckel, “Der Allgemeine Teil in der Ordnung...

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