The Principles of European Contract Law, a Review Essay
| Date | 01 March 1996 |
| Published date | 01 March 1996 |
| DOI | 10.1177/1023263X9600300105 |
| Author | Madeleine van Rossun |
| Subject Matter | Article |
Madeleine van Rossun
The Principles of European Contract Law,
A Review Essay
Ole Lando and Hugh Beale(eds), Part 1: Performance, Non-Performance
and Remedies Prepared by the Commission on European Contract Law
(Chairman: Professor Ole Lando), Martinus Nijhoff Publishers 1995, 268
pages, hardback, Dfl. 225, £97, US$ 153.
§1. Introduction
Following aworking period of some fourteen years, the
Commission
on
European
Contract Law (the Lando
Commission)
has put forward
The
Principles
of
European
Contract Law, Part 1, a set of basic rules in the field of contract law.
The first volume deals primarily with methods of contractual performance and the
complex rules concerning breach of contract and remedies.
The book starts with some general provisions.
In the preface details are provided about the Lando
Commission's
method of working
and the identity of its members. This is followed by a summary of the intention and
purpose behind the
Principles
and a survey of the subjects covered. There then follows
the text of the articles forming the
Principles
in both English and French. In the main
part of the book each article is discussed separately and accompanied by a commentary
giving the reasons for the rule, its purpose, operation and relationship to other rules.
Short comparative notes are added with a view to demonstrating the manner in which
the issue is dealt with in the various legal systems under analysis.
*Senior
Lecturer
in Private Law, University of Limburg (NL). This article was edited by Ruth
Redmond-Cooper, who also provided helpful comments on English contract law.
MJ 3 (1996) 69
IThe Principles of European Contract Law
The concept
of
a
European
Code
of
Obligations was born in 1974 at a symposium at
the Copenhagen Business School where the EEC Draft Convention on the Law Appli-
cable to Contractual and Non-Contractual Obligations was discussed. Ole Lando and Dr.
Winfried Hauschild (then Head of Division in the Directorate General for the Internal
Market of the Commission of the European Communities) both attended the meeting.
They agreed that the choice of law rules put forward in the Draft Convention were
insufficient since they would not assist in advancing the legal uniformity which is
required for an integrated European market. Lando and Hauschild therefore concluded
that uniform substantive law rules were necessary.
In this review essay I shall outline the intention and purpose
of
the Principles and give
an overview of the main provisions. Furthermore I shall (where it appears appropriate)
consider the source
of
each principle and its European counterparts, and compare them
with other rules relating to the harmonization ofEuropean Contract Law, with particular
reference to the Unidroit
Principles.
Finally I shall conclude with some evaluating and
critical remarks.
§2. The Intention and the Purpose of the European Principles
The format of the
European
Principles demonstrates that they are inspired by the
Ameri-
can Restatements. 1As with the
Restatements,
the
Principles
are not intended as con-
crete rules which are immediately applicable in legal practice; instead, they provide
legal instruments which may be useful in the process of law-finding. However, the
European
Principles differ significantly from the
Restatements
in at least one way.
While the Restatements give only a synopsis of the current legal position in a precise
codified form, the
Principles
are more concerned with harmonization and reform of the
legal systems of the Member States of the European Community, in establishing on a
comparative basis those principles which are perceived to be best having regard to
economic and social conditions in Europe. 2
However, the differences should not be exaggerated. The fact that the English common
law provides a common parentage to the legal systems of the various states
of
the USA
results in a certain degree of homogeneity. The legal systems of Europe are, of course,
infiltrated by Roman Law. 3The Principles are drafted - as the Lando
Commission
put
1. In relation to the
Restatements
see, for example, James Gordley, 'European Codes and American
Restatements: Some Difficulties', 81
Columbia
Law Review(1981), 140.
2. See Ole Lando, 'Principles of European Contract Law: An Alternative to or a Precursor of European
Legislation', 40 AmericanJournalof
Comparative
Law (1992), 573.
3. See R. Zimmerman, 'Roman Law and European Legal Unity', in A.S. Hartkamp etat (ed.)
Towards
a European Civil Code, (Martinus Nijhoff Publishers, 1994), 65 ff; 'Konturen eines Europaischen
Vertragsrecht', 50 JuristenZeitung (1995),478; 'Historisches Verbindungen zwischen Civil Law und
Common Law', in Muller-Graff (ed.),
Gemeinsames
Privatrecht in der Europdischen
Gemeinschaft,
(Nomos, 1993), 47 ff.
70 MJ 3 (1996)
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