PRECONTRACTUAL LIABILITY IN EUROPEAN PRIVATE LAW. Ed by John Cartwright and Martijn Hesselink Cambridge: Cambridge University Press (www.cambridge.org), The Common Core of European Private Law, 2008. xxvi + 508 pp. ISBN 9780521516013. £85.
| Published date | 01 September 2010 |
| Date | 01 September 2010 |
| Author | Greg Gordon |
| Pages | 526-527 |
| DOI | 10.3366/elr.2010.0313 |
This book, part of the Trento project (based in Turin since 2007), is the ninth volume in the Common Core of European Private Law Series. In the preface, the editors note that their work on the topic, and that of their rapporteurs, has been ongoing (to a greater or lesser extent) for some twelve years. That is a maturation period more commonly associated with the production of malt whisky than a co-authored volume, but from it has emerged a book of the very highest quality.
The work is divided into five parts. The editors’ introduction (discussed further below) is followed by the thirteen case-studies which comprise the bulk of the book. Each takes the form of a short hypothetical scenario which ends by asking what liability, if any, has been incurred, a question answered in turn by the national reporters of each of the sixteen jurisdictions involved in the study. Each case-study concludes with a set of comparative observations in which the editors note the points of convergence and divergence which emerge from the foregoing analysis. There then follow two thought-provoking chapters which respectively provide an Israeli and a law and economics perspective on the topic in hand. The editors then present their conclusions.
As one might expect, the work clearly shows the difference between the Common Law world (in which camp Scots law on this occasion firmly belongs) and the Civilian. In the former, some specific (and often statutory and/or land-specific) rules apart, precontractual liability can barely be said to exist, the negotiation phase instead providing a mere context in which certain wrongs (chiefly misrepresentations of either a fraudulent or negligent nature) may be committed. By contrast, the Civil Law world recognises general rules of precontractual liability. But the work also amply demonstrates that there is no one Civilian response: the
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