All entries for Tuesday 01 November 2011

November 01, 2011

The optional instrument – Week 5

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On October 11th, 2011 the European Comission proposed a 28th body of rules for cross-border contracts. The idea of a European Common Civil Code may be illusory, but the optional instrument, proposed last month, might be a important step to a common Code. Especially the smaller companies shall be motivated to involve themselves in the intra-european market. The optional instrument shall simplify business for seller and consumer. One code for all. Everybody knows its content. Everybody will be able to read it in his own language. All this seems to be very reasonable and easy. But is it really that simple?

No, certainly not! Although this approach proposes a common law for contracts, the problem of different property laws is still remaining. One of the main problems of the harmonisation of European Civil Law seems to be left aside. If a French seller contracts with a German consumer, is the transfer of property ruled by the German abstraction principle or not? If one party claims revocation of the contract, the French and the German law would come to a different answer to the question to whom the property of the sold item belongs.

A comprehensive Common Civil Code is still going to be a mammoth task. As shown in my first blog, it would be even a novelty. However the European Union shows effort to tackle the lack of harmonisation. We should not discourage a novice in his first attempts, as we may seem to be one. We shall rather motivate us to carry on: Let's keep trying! We as Europeans, can certainly do better!

November 2011

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