The Draft Common Frame of Reference – background and contents Kåre Lilleholt, University of Oslo

Draft Common Frame of Reference Principles, Definitions and Model Rules of European Private Law Prepared by the Study Group on a European Civil Code and the Acquis Group Interim Outline Edition

Background Academic projects on European private law Political ”action plan” on European contract law

Academic groups Commission on European Law (Lando Commission) Study Group on a European Civil Code Acquis Group Other groups

Political process European Parliament European Council Tampere 1999 (requested ”an overall study”) Commission communication 2001 ”on European contract law” communication 2003 ”a more coherent European contract law – an action plan”

CoPecl – Joint Network on European Private Law Study Group Acquis Group Insurance Group Association Henri Capitant Economic Impact Group Database Group Academy of European Law

CFR-Net Workshops Stakeholders Eventually concentration on consumer law Revised plan

Commission’s present position COM(2007) 447 final Priority to consumer contract acquis review ”The Commission [-] considers the CFR a better regulation instrument. … Its scope is not a large scale harmonisation of private law or a European civil code.”

Parliament’s present position Resolution 12 December 2007 ”Reiterates its strong support for an approach based on a wider CFR on general contract-law issues going beyond the field of consumer protection … Reiterates its request to the Commission that all the various possible options regarding the purpose and legal form of a future CFR instrument, including an optional instrument, should be kept open …”

The DCFR Black letter rules Comments Comparative notes

Outline Book I General provisions Book II Contracts and other juridical acts Book III Obligations and corresponding rights Book IV Specific contracts and the rights and obligations arising from them Book V Benevolent intervention in another’s affairs

Outline (ctd.) Book VI Non-contractual liability arising out of damage caused to another Book VII Unjustified enrichment Forthcoming: Book VIII Acquisition and loss of ownership in movables Book IX Proprietary security rights in movable assets Book X Trusts

Relationship with PECL Expansion and some deviations From contract law to law of obligations? A more ”theoretical” approach?

II. – 1:101: Definitions (1) A contract is an agreement which gives rise to, or is intended to give rise to, a binding legal relationship or which has, or is intended to have, some other legal effect. It is a bilateral or multilateral juridical act.

(2) A juridical act is any statement or agreement or declaration of intention, whether express or implied from conduct, which has or is intended to have legal effect as such. It may be unilateral, bilateral or multilateral.

What happened to ”good faith and fair dealing” PECL art. 1:201 ”Each party must act in accordance with good faith and fair dealing.” DCFR III.–1:103(3) ”Breach of the duty does not give rise directly to the remedies for nonperformance of an obligation … ”

Character of the DCFR Principles Definitions Model rules Purposes possible model for a political CFR academic text possible source of inspiration

Core aims of European private law (as stated in the text) Justice, freedom, protection of human rights, economic welfare, solidarity and social responsibility Promotion of internal market, preservation of cultural and linguistic plurality Rationality, legal certainty, predictability, efficiency

Legitimacy? Competence of the EU Legitimacy of academic projects

Desirabilty of harmonisation Promote cross-border transactions, integration of the internal market Needed by business? Law as part of national culture

Methodology Basis for harmonisation EU law or European law?

Political effects Welfare and social justice – or market integration? Codification as stagnation of change? Are the projects biassed (consumer friendly – or the other way round)?