A Principled Approach to European Contract Law?
| Author | Jan Smits |
| DOI | 10.1177/1023263X0000700301 |
| Published date | 01 September 2000 |
| Date | 01 September 2000 |
| Subject Matter | Editorial |
Editorial
APrincipled Approach to European Contract Law?
Recently the final version of Parts I and II of the Principles
of
European
Contract
Law
1was published. This event is rightly praised as an important step in the
development of a common law for Europe. To have - as we do now at the beginning
of the 21st Century - a text on which eminent scholars from all Member States of the
European Union agree, is a good starting point for further discussion on the future
contents and shape of a European Contract Law. I feel that it is in this idea of a
common
text with which the various national legal orders can be compared and from
which inspiration can be drawn, that the great value of the Principles lies.
The drafters of the Principles have a more ambitious view of their own project.
According to the Introduction, at least one of the main functions of the Principles is to
serve as a 'precursor' for a future European Code of Contracts. 2Once a proper basis
for the enactment of such a Code can be found in some European treaty (and I would
say that
if
one wants to adopt a European Code for the whole of the law of contract, it
should be done by introducing a entirely new treaty so that each and every Member
State can decide for itself whether it will adopt such a Code), the Principles could serve
as a starting point for the contents of this Code. There are however at least 3two good
reasons why this specific ambition of shifting the ambit of the Principles from the pure
academic to the political, should be questioned. Why do I feel that this 'principled
approach' to European Contract Law (or European Private Law in general) may not be
successful?
The first reason is of a rather practical nature. The most important contribution to
harmonization of contract law in Europe up till now lies in the implementation of
1. Ole Lando/Hugh Beale (eds.), Principles
of
European Contract Law, Parts I and II Combined and
Revised, (Kluwer Law International, 2000).
2. Ole Lando/Hugh Beale (eds.), Principles
of
European Contract Law, Parts Iand
II
Combined and
Revised, xxiii.
3. See for a more detailed account - mostly discussing other objections - Jan M. Smits, The Good
Samaritan in European Private Law; on the Perils
of
Principles without a Programme and a
Programme for the Future, (Kluwer, 2000).
7 MJ 3 (2000) 221
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