Vanessa Wilcox, A Company's Right to Damages for Non‐Pecuniary Loss, Cambridge: Cambridge University Press, 2016, 192pp, hb £72.99, pb £21.99.
| Published date | 01 September 2019 |
| Author | Zlatin Zlatev |
| Date | 01 September 2019 |
| DOI | http://doi.org/10.1111/1468-2230.12436 |
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REVIEWS
Francisco de Elizalde (ed), Uniform Rules for European Contract Law? A
Critical Assessment, Oxford: Hart Publishing, 2018, 256 pp, hb £75.00.
This collection of essays on European Contract Law has, by coincidence,
followed an interesting time line. The essays are the written contributions
following from a conference held in Segovia on 23 and 24 June 2016. Whilst
the conference was intended to take stock of the European efforts towards
harmonisation and unification of contract laws, including the potential of
uniform rules to br ing common law and civil law systems closer together, the
outcome of the Brexit referendum cast a shadow over that question. Now,
almost three years later, little is certain about the conditions under which the
UK will leave the European Union, and if it will at all. For European contract
law, this changed context not only has ramifications for the future application
of the acquis communautaire in consumer contract law, but in a broader sense
it opens up the debate on how harmonisation works and what the effects of
uniform rules are.
The book bases its critical assessment of European contract law on an ex-
amination of four themes. These four themes are derived from the objectives
of the Principles of European Contract Law (PECL), a set of soft law rules de-
veloped by legal scholars under the leadership of Professor Ole Lando between
1982 and 2003. Part I of the book examines if and how uniform rules can
contribute to facilitating cross-border trade in the pursuit of creating an EU
internal market. Part II looks at the ways in which uniform rules of contract
law—whether model rules or ‘hard law’ rules aimed at harmonising Euro-
pean contract law—influence courts and national legislators. Part III assesses
the ability of uniform rules to bridge the gap between common law and civil
law systems. Part IV, finally, broadens the enquiry to non-EU countries and
asks what uniform rules of contract law have been developed there and what
comparisons may be drawn with the European experience.
The book’s four parts present the harmonisation of European contract law as
a process marked by ambitions, successes, failures, unintended blessings, lessons
learnt, and hopes for the future. Rather than presenting a summary of the
chapters, I will pick up on a few strands that emerge as relevant for assessing
the potential benefits, and problems, of harmonising contract law.
In the context of the EU’s internal market project, what emerges is that the
importance of rules is relative. Beale in his introductory chapter to the book
emphasises that ‘rules are not enough’ for the harmonisation of laws (11). That
statement, first of all, applies to the by now well-known insight in comparative
law that rules operate in context, and that it is for comparison more helpful
to take a functional approach that looks at how concrete results are reached.
This process works in two directions. First, uniform rules can be designed on
the basis of a functional comparison that identifies which outcomes should be
C2019 The Author.The Moder n Law Review C2019 The Modern Law Review Limited. (2019) 82(5) MLR 966–981
Reviews
preferred and tries to capture those in rules. Second, when rules are applied in
different legal systems, uniformity requires that they are interpreted in a similar
manner. That can be difficult for topics in contract law that differ radically
from one legal system to another. For example, whilst civil law systems often
give relief to a party who has bought goods under a mistaken assumption as
to their nature or their usefulness for a particular purpose, allowing the buyer
to avoid the contract, the English common law does not, unless the buyer’s
belief was induced by an incorrect statement (a misrepresentation). The case of
Smith vHughes, where the buyer required old oats for horse feed but mistakenly
obtained new oats, will be familiar to most law students in the UK.
To solve the problem of diverging interpretations, Beale suggests, it is prefer-
able for uniform rules to be accompanied by detailed comments. These should
not only explain how each article is expected to be applied, but also provide
illustrative examples. That approach could also, during the legislative process,
facilitate the adoption of rules by providing the legislature with explanations
that clarify the need for certain rules and their envisaged effects. Unfortunately,
that lesson was learnt too late for the proposed Common European Sales Law
(CESL), which was withdrawn when a new European Commission took office
in 2015 (14).
The relative role of uniform rules in the pursuit of har monisation or unifi-
cation is seen also in the chapters of Part I, which consider European contract
law from historical, economic and conflict of laws perspectives. Wauters, taking
a historical perspective, analyses how the development of a European ius com-
mune in the middle-ages can provide lessons for initiatives such as the PECL.
He concludes, like Beale, that the ways in which uniform rules are interpreted
and applied can be unpredictable. Historically, the interpretation of Roman
law after its re-discovery and reception in Europe has taken different routes
based on the scholarly commentaries added in the middle ages. Further, rules
by themselves often do not make clear which policy choices have been made
in their conception. Ganuza and G´
omez Pomar, taking a law and economics
approach, elucidate which costs and benefits are attached to alternative degrees
of harmonisation of contract laws in Europe. Their chapter shows that full har-
monisation can have efficiency gains, but that it often ignores consumer and
business preferences that are taken into account when an approach is chosen
that allows for the co-existence of rules, eg, minimum harmonisation. Also
from a conflict of laws perspective, Tarman shows, the relevance of uniform
rules such as the PECL or the Unidroit Principles for International Commer-
cial Contracts remains limited. Choice of law rules, such as Article 3 of the
Rome I Regulation, limit parties’ choices for the applicable law to govern their
contract to state laws.
The picture is not all bleak, however. Parts II, III and IV highlight the more
positive sides of harmonisation of contract laws. The chapters on German
law (Ackermann) and French law (Fauvarque-Cosson) analyse how the Eu-
ropeanisation of contract law inspired national legislators to update their own
civil codes. This resulted in a modernised German law of obligations in 2002,
replacing the rules of the codification of 1900, and in a new French law of obli-
gations in 2016. Incidentally, the transformative effects that soft laws can have
C2019 The Author. The Modern Law Review C2019 The Modern Law Review Limited.
(2019) 82(5) MLR 966–981 967
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