All entries for November 2011

November 30, 2011

The Future of Europe – Week 9

My last blog entry shall give a summary of the crucial insights I gained in this module and give an outlook as a consequence of my thoughts concerning our subject, the European Law. Closing the circle, regarding to my first two blog entries I may say that the history of European Law has a big impact on the possibilities of a further development of the European Law. Only when we understand, that so far there has never been such as a common European Law, we can value the gravity of this task. As I have shown in my second blog entry there are certainly other ways to tackle the lack of legal harmonisation, but a Common Code should remain our destination. In my opinion it is a question of faith, if we keep trying to realise an idealistic aim or if we acknowledge that in the near future this aim may not be realised. The "optional instrument" certainly shows the motivation to achieve at some point a total legal harmonisation in Europe. I would suggest everyone to think about a legal harmonisation in Europe not only in terms of a technical question of commerce, but rather also in terms of global politics. How do we want to arrange the future of Europe in a world of uprising super-powers as China or India. Compared to the future leading powers in the world we will be a dwarf between giants. At the beginning of this century we have been 11 per cent of the world's population. In the middle of this century we will compose 7 per cent and at the end of it we will be 5 per cent of. If we disintegrate more and more into single units we won't be even that. That is why I think we should be careful with all our EU criticism, especially as I notice it in the British media I don't think that this is the most prudent way to act towards a prosperous future. However a European Law and therefore a European Common Code can be a strong token of unity and power and at the same time enforce our economy in terms of internal as well as in terms of external trade. We may be in the future a dwarf but I think we should act like a clever one. In the global competition we can be David, let the others be Goliath...


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November 26, 2011

The Kraken


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November 24, 2011

Culpa in contrahendo – Week 8

The culpa in contrahendo seems to be a unique invention in the landscape of European legal systems. Was it a stroke of genius or just a needed stopgap? The breech of precontractual obligations is in the French and the English Legal system subscribed to the Law of Tort, as well as the Rom II Regulation does it in Art. 12.

The Munich Commentary of the BGB speaks about the c.i.c. as a form of liability on reliance of its own kind, which is situated between the liability of the Law of Contract and the Law of Tort.

Rudolf von Jhering who is known to be the actual founder of the principle of culpa in contrahendo did not have in mind the cases which are ruled today by this principle. He rather thought of applying the c.i.c. to situations of the falsus procurator or the situation of a seller without a existing item to sell.

However the Courts had been willing to adopt his principle to fill the gap which was left by the German Tort Law falling short in protecting the parties in precontractual obligations.

Today the c.i.c. broadens its application further and further. Only the guideline of protection of the party who relied on a possible contract cannot longer explain the scope of cases which are ruled by this principle. The protection of consumer, the protection of the economical weaker party and the protection of the investor seem to rule more and more the c.i.c..

The establishment of a legal institution to a place in a system to which it does not belong causes incoherence. The lack of coherence seems to cause a loss of guidelines. The c.i.c. has become the kraken of the BGB. It reaches for more and more territory to rule.

The German BGB, which is known for its strict and straight principles has in this point betrayed its own order. A system which is based on rationality and its own proper order should obey its own principles to avoid the decline of itself!

November 16, 2011



Image-Link Foto dpa

Recent developments in Consumer Law – Week 7

While preparing my presentation about the notion of Consumer for our European Contract Law module, I came across really interesting developments in European Consumer Law. The Council has accepted a proposal for a new Directive concerning Consumer Law: PE CONS 26/11. The new Directive unifies 4 older Directives regarding the protection of the consumer, namely:

-Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises

-Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts

-Directive 97/7/EC on the protection of consumers in respect of distance contracts

-Directive 99/44/EC on Sale of Consumer Goods and Associated Guarantees

These Directives will be organised in a horizontal order as one new Directive.

Although there has been the possibility to adopt a new notion of consumer the new Directive sticks to the old narrow approach as defined in the Directive 93/13/EEC. But the European Parliament has proposed apparently in its version of the Directive of the 23.4.2011 to adopt a new broader notion of consumer.

This movement is now considered in the 17th preparatory note of the PE CONS 24/11. Also the DCFR tried to introduce in its article Art. I-1:105 I a broader approach to the definition of consumer.

However comparing the different movements within the European law and regarding the different notions of the Member States I wonder why the EU does not introduce a common binding notion of consumer with a regulation.

For international contracts the consumer is always protected throught the Directives. But who knows exactly when one is protected in international sales and when in national business. The people clearly have to be confused.

In France for example even a legal person can be considered as a consumer as in Germany § 13 BGB speaks about a natural person.

At the moment this area does not seem to be perfectly harmonised. Another European legal issue to tackle!

November 01, 2011

The optional instrument – Week 5

Writing about web page

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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