Hugh Beale

The Future of the Common Frame of Reference

Abstract In this paper I explain what I, as one of the ‘academic researchers’, understand to the be the purposes of the Common Frame of Reference (‘CFR’), and why I think it deserves support from academic and practising lawyers and businesspeople across Europe. That support is particularly critical at this moment because at one point the European Commission seemed to be on the verge of abandoning the project. Despite recent words of encouragement from the new Commissioner for Health and Consumer Affairs, I am not sure that the danger has passed. I also consider the issue of ‘legitimacy’ of the project.

The European Civil Code Movement and the European Union's Common Frame of Reference

It is a very great honour to be invited to give this lecture in memory of Willi Steiner. I was not privileged to know him personally but I have long been aware of the enormous contribution that he made to the development of the Squire Library in Cambridge and the library of the Institute of Advanced Legal Studies, of which I have been a grateful user for many years. I am also very aware of Willis contribution to legal scholarship in general and in particular to comparative law. His work on the Index to Foreign Legal Periodicals is just one example. I hope and believe that the topic on which I am going to speak tonight would have interested him.

The law of security and title-based financing

Previously published as The Law of Personal Property Security, this new edition brings together all of the law on this complex area, providing guidance in the context of commercial practice, especially with increased coverage of conflict of laws, priority, insolvency, and enforcement.

Art. 66–68: The Sources of Contract Terms Under the CESL

This chapter considers at the sources of obligations and duties in contracts that would have been governed by the CESL, and, now that the CESL cannot amount to more than “soft law”, in future may help to interpret and develop the rules of whatever instrument is to replace the CESL proposal. It gives an overview of the various sources of terms listed or referred to in Article 66, and refers to other articles of the CESL that are relevant. It then discusses the question of obligations or duties that were not specifically agreed by the parties, with particular reference to Article 68 (Contract terms which may be implied). It is argued that there are many terms which, though not explicitly mentioned by the parties, may be treated as “tacitly agreed” by the parties and which therefore do not have to meet the “necessity” test of Article 68. The chapter ends by considering the issue of “ancillary” obligations and duties, in particular duties to avoid causing harm to the other party (obligations de securite, Schutzpflichten) and how the CESL would have interacted with the otherwise applicable law on these topics.

The Draft Common Frame of Reference: mistake and duties of disclosure

Abstract The provisions of the CFR dealing with mistake, non-disclosure and pre-contract information fulfil the functions of the CFR as a legislators guide or toolbox stated in the European Commissions Action Plan documents: to provide definitions and model rules which the European legislator could employ were it minded to deal with these topics – for example, to give consumers who have been the victims of breaches of information duties stronger remedies than the rights of withdrawal currently required by, e.g., the Doorstep and Distance Selling Directives. The paper suggests that the CFR has a further function as a toolbox: to provide the legislator with essential background information about the different laws of the Member States. This information is necessary in order to decide whether European legislation is needed at all and, if so, how it can best be made to “fit” existing national laws. The provisions of the DCFR dealing with mistakes caused by one party giving incorrect information to the other represent what is “common core” to most of the national laws; but the provisions dealing with fraudulent non-disclosure and with mistakes that are known or should have been known to the other party do not represent common core, since on these points the laws differ widely. Rather the DCFR provisions represent a workable compromise position. This must be clearly flagged up in the Comments and Notes, or the CFR would be highly misleading. The study shows that it would not be feasible for the European legislator to provide fuller remedies by simply stating that the consumer shall have whatever remedies for mistake or non-disclosure are available under national law: many national systems provide only very limited remedies. It would be possible to provide that the consumer should have “remedies for mistake and non-disclosure”, meaning that phrase to have an autonomous meaning, and to leave the CFR to provide a definition of those remedies. However, given the complexity of the topic and the enormous variations in the national laws, this approach would be risky: national legislators and courts might well not understand what is required. A detailed legislative scheme would be better. The DCFR offers a workable set of model rules, both on these issues under the general law of contract and for consumer contracts under the specific provisions dealing with information requirements in B2C contracts. The DCFR provisions would also fit well into a Optional Instrument that is aiming to meet the needs of SMEs seeking to enter transnational contracts.