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Limitation of Liability for Damages in European Contract Law

Document Cited authorities 12 Cited in Related
Pages193-224
AuthorReinhard Zimmermann
Date01 May 2014
Published date01 May 2014
DOI10.3366/elr.2014.0204

W A (“Bill”) Wilson was the first Lord President Reid Professor of Law in the University of Edinburgh, a position he held from 1972 until his death in 1994. Through his writing and, particularly, his teaching,1

The latter aspect is emphasised by Alan Rodger in the first W A Wilson Memorial Lecture: “Thinking About Scots Law”, (1996) 1 EdinLR 3 f.

he left a deep impression on all his students and on Scots law. This is documented in a book entitled Scots Law into the 21st Century: Essays in Honour of W A Wilson and edited by the 2013–2014 President of the Society of Legal Scholars.2

H L MacQueen (ed), Scots Law into the 21st Century: Essays in Honour of W A Wilson (1996); see, in particular, the two introductory essays to that volume by the editor.

 But Bill Wilson was also the Scottish representative in the (first) “Lando” Commission which produced the Principles of European Contract Law (PECL).3

O Lando and H Beale (eds), Principles of European Contract Law, Part I (1995). On the PECL, see R Zimmermann, “Principles of European Contract Law”, in J Basedow, K J Hopt, and R Zimmermann (eds), The Max Planck Encyclopedia of European Private Law (2012) 1325 ff.

 These Principles constitute a milestone on the path towards the harmonisation of European private law. They have exercised a considerable informal influence on law reform in a number of European countries and have set in motion a process that has culminated, for the time being, in the publication of a Proposal for a Regulation of the European Parliament and of the Council on a Common European Sales Law of 11 October 2011.4

This Proposal includes large parts of general contract law: COM(2011) 635 final. For comment, see H Eidenmüller, N Jansen, E-M Kieninger, G Wagner, and R Zimmermann, “The Proposal for a Regulation on a Common European Sales Law: Deficits of the Most Recent Textual Layer of European Contract Law”, (2012) 16 EdinLR 301 ff; and the contributions to G Wagner and R Zimmermann (eds), “Sondertagung der Zivilrechtslehrervereinigung zum Vorschlag für ein Common European Sales Law”, (2012) 212 Archiv für die civilistische Praxis 467 ff.

 I would therefore like to devote the 15th W A Wilson Memorial Lecture to a topic within the field of European contract law that was covered in Part I of the PECL: the limitation of (contractual) damages. Articles 4.503 and 4.504 PECL, first published in 1995, have, in fact, established the central point of reference for the discussion of this topic on a European level ever since

Over the past two decades a number of texts have appeared in quick succession which have attempted to consolidate, and eventually also to coordinate, the European acquis commun (i.e. the traditional private law as it can be found today in the national legal systems) and the acquis communautaire (i.e. the rules of European Community private law, particularly in the field of consumer contract law).5

For an overview, see R Zimmermann, “The Present State of European Private Law”, (2009) 67 American Journal of Comparative Law 479 ff; “Europäisches Privatrecht – Irrungen, Wirrungen”, in Begegnungen im Recht: Ringvorlesung der Bucerius Law School zu Ehren von Karsten Schmidt (2011) 321 ff; “‘Wissenschaftliches Recht’ am Beispiel (vor allem) des europäischen Vertragsrechts”, in C Bumke and A Röthel (eds), Privates Recht (2012) 21 ff. For the distinction between acquis commun and acquis communautaire, see N Jansen, “European Private Law”, in Basedow, Hopt, and Zimmermann (eds), Encyclopedia of European Private Law (n 3) 637 ff.

Apart from, and following on from, the Principles of European Contract Law (PECL), these are: Acquis Principles (ACQP),6

Research Group on the Existing EC Private Law (ed), Principles of the Existing EC Contract Law (Acquis Principles), Contract I (2007); Contract II (2009); see H C Grigoleit and L Tomasic, “Acquis Principles”, in Basedow, Hopt, and Zimmermann,Encyclopedia of European Private Law (n 3) 10 ff.

 Principles of European Law (PEL),7

The PEL comprise many volumes covering, inter alia, specific contracts, non-contractual obligations, trust and transfer of property with regard to moveables; for present purposes, see Study Group on a European Civil Code/E Hondius, V Heutger, C Jeloschek, H Sivesand, and A Wiewiorowska, Sales (2008); generally, see M Schmidt-Kessel, “Study Group on a European Civil Code”, in Basedow, Hopt, and Zimmermann, Encyclopedia of European Private Law (n 3) 1611 ff.

 Draft Common Frame of Reference (DCFR; first in an Outline Edition and subsequently in a Full Edition),8

C von Bar, E Clive, and H Schulte-Nölke (eds), Principles, Definitions and Model Rules of European Private Law: Draft Common Frame of Reference (DCFR), Outline Edition (2009); C von Bar and E Clive (eds), Principles, Definitions and Model Rules of European Private Law: Draft Common Frame of Reference (DCFR), Full Edition (2009); see R Zimmermann, “Common Frame of Reference”, in Basedow, Hopt, and Zimmermann, Encyclopedia of European Private Law (n 3) 261 ff.

Principes Contractuels Communs (PCC),9

Association Henri Capitant des Amis de la Culture Juridique Française and Société de Législation Comparée, Principes Contractuals Communs (2008) (constituting a proposed revision of the PECL).

 Feasibility Study (FS),10

Commission Expert Group on European Contract Law, Feasibility study for a future instrument in European Contract Law, 3 May 2011, for the text of which, see R Schulze and R Zimmermann, Europäisches Privatrecht: Basistexte, 4th edn (2012) sub III.30.

 and the proposed Common European Sales Law (CESL)11

The text of the Common European Sales Law constitutes Annex I to the Proposal for a Regulation on a Common European Sales Law (COM(2011) 635 final, 11.10.2011). In this paper the text of the proposed Common European Sales Law will be abbreviated CESL, while the Proposal for a Regulation will be cited as PR CESL.

In the course of time what had originally been an academic project had also become a political one, as is apparent from a number of communications by the Commission of the European Union, issued from 2001 onwards.12

For details, see R Zimmermann, “European Contract Law: General Report”, in 4th European Jurists’ Forum: Proceedings (2008) 185 ff; cf also the other contributions to Section 1 on European Contract Law, particularly, on the political intentions of the EC, those by S Weatherill, M J Bonell and T Wilhelmsson.

Two more documents must be mentioned in the present context; for even though they are aiming at global rather than merely European legal harmonisation, they have been of considerable importance also for the development of European contract law: the United Nations Convention on Contracts for the International Sales of Goods (CISG) of 11 April 1980 and the UNIDROIT Principles of International Commercial Contracts (PICC) which first appeared in 1994 and then, in amended versions, in 2004 and 2010.13

UNIDROIT (ed), UNIDROIT Principles of International Commercial Contracts2010 (2011). On the CISG, see U Magnus, “Sale of Goods, International (Uniform Law)”, on the PICC, see J Kleinheisterkamp, “UNIDROIT Principles of International Commercial Contracts (PICC)”, both in Basedow, Hopt, and Zimmermann, Encyclopedia of European Private Law (n 3) 1507 ff, 1727 ff.

 What we are faced with are thus a number of different “Textstufen”,14

On the concept of “Textstufen”, normally used in Roman law scholarship, see R Zimmermann, “Textstufen in der modernen Entwicklung des europäischen Privatrechts”, [2009] Europäische Zeitschrift für Wirtschaftsrecht 319 ff; N Jansen and R Zimmermann, “Contract Formation and Mistake in European Contract Law: A Genetic Comparison of Transnational Model Rules”, (2011) 31 Oxford J of Legal Studies 625 (626).

 or layers of text, genetically and hermeneutically intimately related to each other. This makes it both worthwhile and necessary to compare and analyse these texts in historical sequence and to ask how they have been transformed in the process

Two studies have previously been devoted to the topics of formation of contract, mistake and contract interpretation.15

Jansen and Zimmermann (n 14) 625 ff; R Zimmermann, “Die Auslegung von Verträgen: Textstufen transnationaler Modellregelungen”, in R Richardi, J Wilhelm and T Lobinger (eds), Festschrift für Eduard Picker (2010) 1353 ff.

One of the difficulties encountered in any such study lies in the fact that comments have only been published to some of these model rules. Most important for present purposes (and for purposes of the two previous studies) are the comments to PECL and PICC, the former of which have largely been taken over, in a somewhat unsatisfactory manner,16

See, e.g., Jansen and Zimmermann (n 14) 655, 661.

 into the DCFR. No comments have been published to the FS and the CESL, i.e. to the two most recent textual layers. Thus, we do not know why certain changes have been made to previous texts. But even where we do have comments (as in the case of PECL and PICC) they are often not very helpful for our enterprise. For they merely tell us what a specific rule is intended to mean. They do not tell us why that rule was chosen from among the various regulatory options available.17

Cf also N Jansen and R Zimmermann, “‘A European Civil Code in All But Name’: Discussing the Nature and Purposes of the Draft Common Frame of Reference”, (2010) 69 Cambridge LJ 98 at 104 ff (e.g. at 111: “Comments and illustrations are designed to elucidate the rules but they do not offer legal arguments”).

 Thus, its specific profile and the policy arguments favouring it remain unclear: both vis-à-vis the other model rules and vis-à-vis the historical and comparative context

With the proposed CESL the development appears to be heading towards a (perhaps preliminary) conclusion, for this is a text which the European Union intends to enact. It will no longer be just a set of academic model...

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