Volume 3 <italic>(</italic>Book IV contd; Book V, Benevolent intervention in another's affairs<italic>)</italic>
More than 20 years in the making; the collaboration between hundreds of legal academics throughout Europe; the picture of what, one day, might be the law of the European nations, the multi-volume product has now landed: the Full Edition of the DCFR. Many reasonable people have many reasonable views on European integration and legal harmonisation. Often such views colour perceptions of the DCFR. But whatever one's Europaanschauung, the appearance of the DCFR Full Edition is a watershed. The Full Edition, encompassing a commentary to each article, together with national notes, is a colossal achievement. We cannot know what the future holds, but the DCFR gives as good an indication as any. That is why it is so important. The European Commission's rather odd Green Paper on European Contract Law (COM(2010)348 final) – the content of which only sometimes appears connected to the title – contains a full spectrum of suggestions for the future: from “do nothing” to full-blown harmonisation under a European civil code. Only two suggestions, however, does anyone take seriously: (1) to use the DCFR as a “tool-box” for use by legislators, European and national, when framing future legislation; or (2) for the DCFR to form the basis of an Optional Instrument of European Contract Law.
Perhaps the most important achievement of the DCFR is that we now have de facto, if not (yet) de iure, a sketch map for getting our bearings in the varied topography of European private law. Where else does one look to find a concise statement, in English, of how a particular DCFR provision relates to the law of a national legal system? The DCFR's utility for comparative law is considerable. Admittedly, of course, for the specialist mountaineer, a sketch map is never enough: a snap-shot of a legal system, a bald statement or a single case reference, can sometimes mislead. But detailed cartography is, for the specialist, available elsewhere. The Zimmermann-inspired projects are consistently the best. (And the best of the best is the peerless Historisch-Kritischer Kommentar zum BGB which, despite its title, is the most useful work in European private law: see the review by Lord Rodger at (2005) 9 EdinLR 176). To develop the climbing metaphor, however, no matter how good the maps are, maps don't get boots on the summit. If the national notes in the Full Edition are a sketch map of European private law, the DCFR text is a suggested route. The perceived difficulties with the DCFR route, however, are many. I will mention only two. First, as with any suggested route, until some pioneer is willing to venture his reputation on it, the route remains untested, unproven and unloved. The second difficulty comes with many, perhaps most, harmonisation projects, but is particularly pronounced for the DCFR: a “suggested” route looks rather like a “mandatory” one. And lawyers, like climbers, tend to prefer to pick their own route under their own law.
Whether these...
