Uniform Rules for European Contract Law? : A Critical Assessment

Over the last 30 years, the evolution of acquis communautaire in consumer law and harmonising soft law proposals have utterly transformed the landscape of European contract law. The initial enthusiasm and approval for the EU programme has waned and, post Brexit, it currently faces increasing criticism over its effectiveness. In this collection, leading academics assess the project and ask if such judgements are fair, and suggest how harmonisation in the field might be better achieved. This book looks at the uniform rules in the context of: the internal market; national legislators and courts; bridging the gap between common and civil law; and finally their influence on non-member states. Critical and rigorous, it provides a timely and unflinching critique of one of the most important fields of harmonisation in the European Union. Contents Contributors Table of Cases Table of Legislative Instruments Table of Abbreviations 1. The First Stage of Modern European Contract Law 2. The Role for European Contract Law: Uniformity or Diversity? I. Introduction II. Rules are Not Enough III. Intended Function and Form IV. Diversity in Substance V. The Future VI. Conclusions Part I: Uniform Rules for the Internal Market 3. Ius Commune and Contract Law I. Roman Contract Law II. The Civilians III. The Canonists IV. The Interaction Between the Ius Commune and the Local Law V. Conclusion 4. Optimal Standards for the Single Market: A Law and Economics Approach I. Introduction: Legal Diversity and the Single Market II. The Role of Harmonisation of Legal Rules and Standards III. Full vs Minimum Harmonisation and Co-Existence of Standards IV. A Preliminary Assessment of the Various Modes of Harmonisation V. Conclusions 5. Non-national Rules in the Arbitration of Commercial Contracts I. Introduction II. Law Applicable to the Substance of the Case III. Conclusion Part II: Uniform Rules for National Legislators and Courts 6. The Modernisation of the Law of Obligations Using the Principles of European Contract Law I. Introduction II. Advantages and Disadvantages of a Uniform Contract Law III. Judicial Governance IV. Final Thoughts 7. Uniform Rules as Guidelines for National Courts and Legislatures: The German Experience I. Introduction II. The Reception of Uniform Contract Law in the Reform of the German Law of Obligations III. The Lack of a Judicial Response to Uniform Law IV. Uniform Contract Law: A Model for Legislatures, but not for Courts V. Conclusion 8. National Reforms: New Instruments Towards Converging Rules within Europe? The Example of the French Contract Law Reform (2016) I. Introduction II. Preliminary Reflections on the European Context III. Uniform Rules: A Source of Inspiration for the French Legislator IV. Soft Law Instruments: A Source of Inspiration for the Application of the French Reform—Selection of Issues Related to Party Autonomy V. Conclusion Part III: Uniform Rules to Bridge the Gap between the Common Law and the Civil Law 9. The Rise of EU Consumer Law between Common Law and Civil Law Legal Traditions I. Introduction II. Three Different Approaches towards Harmonisation III. Harmonisation of Contract Law in the European Union IV. Concluding Remarks 10. Bridging the Gap: The CISG as a Successful Legal Hybrid between Common Law and Civil Law? I. Introduction II. CISG Essentials III. Traits of the CISG and its Origins IV. Success of the CISG in Legal Practice and as a Legislative Reference Model V. Success of the CISG as the Best Possible Legal Solution? VI. Conclusion 11. The Sources and Effects of Contractual Terms: Towards an Approximation of Common Law and Civil Law I. Introduction II. The Effects of Terms III. The Guarantee as the Backdrop for the Modernisation of the Civil Law IV. The Sources of Terms; The Binding Effects of Pre-contractual Information V. Conclusions Part IV: Uniform Rules as a Model for Non-EU Countries 12. European Contract Law and Asian Contract Law I. Introduction II. The Asian Contract Law Initiative III. The Challenges of the Harmonisation Process IV. Convergence of Legal Systems V. Legal Nature of Asian Contract Law VI. Conclusions 13. The Two Spirits of the PLACL I. Introduction II. Some Background III. The Two Spirits of PLACL IV. Systematising and Shifting: Some Results V. Conclusion 14. The Effects of European Harmonisation on Turkish Contract Law I. Introduction II. A Brief Overview of the Development of Turkish Contract Law III. Effects of European Harmonisation on Turkish Contract Law IV. Selected Novelties in the Turkish Code of Obligations V. Unsolicited Goods (TCO Article 7) VI. Standard Terms (TCO Articles 20–25) VII. Unfair Exploitation/Gross Disparity (TCO Article 28) VIII. Hardship (TCO Article 138) IX. Passing of Risk in Sales Contracts (TCO Article 208) X. Law on Consumer Protection XI. Late Payment in the Provision of Goods and Services (TComC Article 1530) XII. Conclusion 15. An American Perspective on the European Harmonisation of Contract Law I. Introduction II. Paying Homage III. Story of the American Commercial Code IV. General and Specialised Contract Rules V. Commercial and Consumer Contract Law VI. Harmonisation and Diversity VII. Relationship of Legal Education and Harmonisation of Law VIII. Opting-in and Opting-out of a European Contract Law IX. Conclusion Index The first stage of modern European contract law / Francisco de Elizalde -- The role for European contract law : uniformity or diversity? / Hugh Beale -- Ius commune and contract law / Bart Wauters -- Optimal standards for the single market : a law and economics approach / Juan Jos Ganuza and Fernando Gómez Pomar -- Non-national rules in the arbitration of commercial contracts / Zeynep Derya Tarman -- The modernisation of the law of obligations using the principles of European contract law / Encarna Roca Trías -- Uniform rules as guidelines for national courts and legislatures : the German experience / Thomas Ackermann -- National reforms : new instruments towards converging rules within Europe? : The example of the French contract law reform / Benedicte Fauvarque-Cosson -- The rise of EU consumer law between common law and civil law legal traditions / Geraint Howells and Mateja Durovic -- Bridging the gap : the CISG as a successful legal hybrid between common law and civil law? / Andre Janssen and Navin G. Ahuja -- The sources and effects of contractual terms : towards an approximation of common law and civil law / Francisco de Elizalde -- European contract law and Asian contract law / Mateja Durovic -- The two spirits of the Placl / Iñigo de la Maza Gazmuri -- The effects of European harmonisation on Turkish contract law / Ilk anay -- An American perspective on the European harmonisation of contract law / Larry A. Dimatteo, contributors