All entries for October 2012

October 17, 2012

What is the concept of the European contract ?

In England the contract is seen as an exchange of values, as a tool for commercial transaction. At the opposite, in France, the contract is seen as an exchange of consent, protected by the moral. The distinction existing between the two concepts of contract explains many different rules. In France for instance, the doctrine of good faith is the principle rule in contract law, while, in England, it does not exist (even if the bad faith is not encourage as say the writers). Another example could be the remedies in case of breach of contract. In France, the specific performance is the rule, while in England it is an exception, because on the one hand we protect the consent, and on the other hand we protect the bargain.

The question is which concept, supposing there are only two, will be adopted for an European contract law. On the one hand, we have seen that the concept draws the rules, and that there are difference between the countries. On the other hand, we know that groups of research on a European contract law use, as inspiration sources, the law from different 'legal families'. Can we suppose that it is possible to create a new concept by mixing rules, or by summarizing different one ?

Here can emerge a issue, already noticed in the last post. Is the moral concept of contract used in the Romanistic family or also in the Germanic family ? If the moral concept is use in the Continental Europe, and can we suppose to impose it to the Common law countries ? The question is not about only a concept, but apparently one more time, about civilization. This is really interesting to know how the idea of Europe will go over the national, historical foundations to create a new legal family.


Source : H Beale, B Fauvarque-Cosson, J Rutgers, D Tallon and S Vogenauer, Casebook on the Common Law of Europe: Contract Law(Hart, ed. 2, 2010, in library: KN10 C6)


October 09, 2012

Linguistic and culture : two arguments against the an Europeanisation of contract law

The Europeanisation of contract law is an enterprise of the European Commission about creating an European contract law. If the creation of a contract law for the Europe isn't criticised itself, the elaboration of European Civil Code, which is seen as the final aim of this enterprise, is subject to controversy.
The issue isn't about the law itself. The issue is about the creation of a legal monument representing the Europe. In this way that seems impossible according to certain persons.

One of the argument, developed by Gérard Cornu is that the creation of an European Civil Code couldn't be possible because it's a problem of linguistic. « French law can only be the daughter of the French language ». It means that not a law, but a code, as the legal monument of a community, can be created only for people using the same language, and at least sharing the same culture. And because there is no European language, an European Civil Code is impossible.
We can ask if this argument is reliable. The French Civil Code has inspired all of the civil law country around the world, especially in Europe. Because it is an example of unity, it had inspired the German civil code (BGB). In Germany, the code had permitted the unity of the nation, united around the law. And not the opposite. Why the French civil code couldn't be the start of an European legal unity ? Maybe is the concept of European legal unity itself which is controverted.

An other argument, of Pierre Legrand, against the creation of a Civil Code is based on the linguistic and the culture of the EU's member.
Because the law is created by the society, and not the society by the law, the legislative instrument is soaked of the society's aspiration. The history, the psychology, wrote Pierre Legrand, can explain the legal system of a country.
The French Civil Code is, in this way, a unique French creation, and can not be copied for others country. An European Civil Code could be seen as a domination of the civilian society on the common law community. Europe can not impose to common law countries a legal system at the opposite of them.
Here we are in front of the most important problem in Europe, in the legal culture itself. The union of two opposite. This union may prevent the elaboration of a European Civil Code.


Source : H Beale, B Fauvarque-Cosson, J Rutgers, D Tallon and S Vogenauer, Casebook on the Common Law of Europe: Contract Law(Hart, ed. 2, 2010, in library: KN10 C6)


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