Martijn W. Hesselink

The Principles of European Contract Law: Some Choices Made by the Lando Commission

In this paper I discuss the Principles of European Contract Law which were recently published by the Lando commission. I do this by addressing some of the choices the Lando commission made when drafting their Principles. In particular I examine choices with regard to the purpose of the PECL, the authors and their working method, the format and style, the subject matter, politics, culture, economics, and progress v. tradition. In assessing these choices I try to provide a deconstruction of the PECL as a restatement of the common core of European contract law.

The Case for a Common European Sales Law in an Age of Rising Nationalism

The European Commission’s recent proposal for a common European sales law was made in a political climate of rising nationalism. The Commission makes a solid economic and constitutional (legal basis) case for its proposal. However its argument, which focuses exclusively on the internal market, is not likely to fully convince the opposition. The reason is that it fails to address the widespread notion, underlying also many technical arguments, that Member States should remain sovereign in matters of general private law for the reason that private law is a matter of national identity. In this paper, I address that argument head on. I do this by first identifying the nationalist undertone in many technical arguments raised against the Europeanisation of private law and then defending the CESL as an expression of another identity that many Europeans share, i.e. their European identity. I argue, in particular, that the proposed CESL should be welcomed as a common European model of justice between private parties, as rules of just conduct for the internal market. Since most people in Europe identify with both their nation-state and Europe, albeit in different degrees, it makes sense to offer them the choices between national and European contract law. Although the question whether to opt into a CESL should be a matter of private autonomy, the question which legal options will be available is matter of the public autonomy of citizens and requires a full democratic legitimation. Therefore, Art 352 TFEU, the flexibility clause that bypasses the ordinary legislative procedure, would be unacceptable as a legal basis.

Precontractual liability in European private law

Part I. Introduction John Cartwright and Martijn Hesselink Part II. Case Studies: 1. Case 1: Negotiations for premises for a bookshop 2. Case 2: Negotiations for renewal of a lease 3. Case 3: Mistake about ownership of land to be sold 4. Case 4: An architects preparatory work for a contract which does not materialise parallel negotiations 5. Case 5: A broken engagement 6. Case 6: An express lock-out agreement 7. Case 7: The breakdown of merger negotiations 8. Case 8: A shopping centre without a tenant 9. Case 9: Breakdown of negotiations to build a house for a friend 10. Case 10: Public bidding 11. Case 11: A contract for the sale of a house which fails for lack of formality 12. Case 12: Confidential design information given during negotiations 13. Case 13: Misrepresentation or silence about a harvesters capacity Part III: From the common law to the civil law: the experience of Israel Nili Cohen Part IV. A Law and Economics Perspective on Precontractual Liability Eleonora Melato and Francesco Parisi Part V. Conclusions John Cartwright and Martijn Hesselink.

Common Frame of Reference & Social Justice

Abstract This paper evaluates the draft Common Frame of Reference (DCFR) in terms of social justice. It concludes the DCFR has all the characteristics of a typical European compromise. Ideological and esthetical purists will certainly be disappointed. In this respect, it has much in common with the Constitutional Treaty. This is not necessarily something to be worried about. A common frame of reference is not made, in the first place (if at all), for esthetical or ideological reasons; it is meant to provide some normative guidance in the further development of European contract law. Overall, from the point of view of social justice the DCFR is fairly balanced. There is certainly room for improvement. The laissez-faire concept of juridical acts should be removed. The list of underlying values, which may play an important role in the interpretation and further development of the CFR by the courts, must be made more balanced. The protection of consumers should be extended to SMEs at least in certain cases (notably unfair terms). The classical role of good faith as a basis for new judge-made obligations should be restored. However, the characterisations of the DCFR by some scholars as ‘a law for big business and competent consumers’ or, alternatively, as a ‘massive reduction of private autonomy’ are both exaggerations.

A Spontaneous Order for Europe? Why Hayek’s Libertarianism is not the Right Way Forward for European Private Law

It has been suggested recently by several scholars that the ideas of Friedrich von Hayek should play a prominent role in shaping the future of European private law. This paper examines what we can learn from Hayek for the further development of European contract law. Hayek rightly underlines that law is a contingent phenomenon, historically grown in response to needs of a specific society. This means that we should be suspicious of universalism and strong functionalism (related to strong pragmatism). Whatever the future of European contract law should look like, it would be wrong to think that we could start designing it with a clean slate. Therefore, the drafters of the CFR have been rightly inspired by the existing national, European and international traditions. One of the most fundamental insights from Hayeks work (already centrally present in The Road to Serfdom) is that of our incurable ignorance and its implications for the limits of central planning. This insight certainly also affects private law although not necessarily in the ways suggested by some of his contemporary followers. Also, Hayeks warnings against nationalism are still most relevant today. Finally, he rightly reminds us that we should not be unduly impressed by the scientism of the economic analysis of law that is based on the illusion that welfare consequences for individuals of legal rules, including those of the consumer acquis or the CFR, can be measured and compared. What we should certainly reject, however, is Hayeks totalitarianism. His all or nothing approach has no empirical basis; it is completely detached from reality. The implication is dramatic. If the only argument for a spontaneous order is that it will save us from totalitarianism then there is little reason to adopt Hayeks spontaneous order. A mixed economy of the kind that we are familiar with in Europe is much more attractive. However, as Posner has pointed out, on the crucial question of what would be the right mix Hayek had hardly anything to say, and he also uttered precious little on the kind of contract law (how much freedom?) such an economy would need. Therefore, a democratically designed contract law drawn up by a legislator inspired by the private laws in Europe as they have grown organically, but making its own choices on the issues that it deems socially most important, seems to be a much better way forward for Europe than a spontaneous order.

Post-private Law?

In 2012, Hans Micklitz presented a report (Gutachten) for the German lawyers’ association (Deutscher Juristentag) on the future of consumer law. The focus of the report was primarily on German law. However, as usual, Micklitz’ main argument clearly had a broader, Europe-wide vocation. Therefore, it is particularly fortunate that the report recently was published also in English, entitled ‘Do Consumers and Businesses Need a New Architecture of Consumer Law? A Thought Provoking Impulse’. Micklitz answers the question of whether there is a need for a new design of consumer law positively. Consequentially, he proposes to reshape consumer law into a special law. In this short contribution in his honour, I will take issue with that proposal and with the main reasons Hans Micklitz offers in its support.

Precontractual Liability in European Private Law: Contents

Part I. Introduction John Cartwright and Martijn Hesselink Part II. Case Studies: 1. Case 1: Negotiations for premises for a bookshop 2. Case 2: Negotiations for renewal of a lease 3. Case 3: Mistake about ownership of land to be sold 4. Case 4: An architects preparatory work for a contract which does not materialise parallel negotiations 5. Case 5: A broken engagement 6. Case 6: An express lock-out agreement 7. Case 7: The breakdown of merger negotiations 8. Case 8: A shopping centre without a tenant 9. Case 9: Breakdown of negotiations to build a house for a friend 10. Case 10: Public bidding 11. Case 11: A contract for the sale of a house which fails for lack of formality 12. Case 12: Confidential design information given during negotiations 13. Case 13: Misrepresentation or silence about a harvesters capacity Part III: From the common law to the civil law: the experience of Israel Nili Cohen Part IV. A Law and Economics Perspective on Precontractual Liability Eleonora Melato and Francesco Parisi Part V. Conclusions John Cartwright and Martijn Hesselink.

Precontractual Liability in European Private Law: Index

Part I. Introduction John Cartwright and Martijn Hesselink Part II. Case Studies: 1. Case 1: Negotiations for premises for a bookshop 2. Case 2: Negotiations for renewal of a lease 3. Case 3: Mistake about ownership of land to be sold 4. Case 4: An architects preparatory work for a contract which does not materialise parallel negotiations 5. Case 5: A broken engagement 6. Case 6: An express lock-out agreement 7. Case 7: The breakdown of merger negotiations 8. Case 8: A shopping centre without a tenant 9. Case 9: Breakdown of negotiations to build a house for a friend 10. Case 10: Public bidding 11. Case 11: A contract for the sale of a house which fails for lack of formality 12. Case 12: Confidential design information given during negotiations 13. Case 13: Misrepresentation or silence about a harvesters capacity Part III: From the common law to the civil law: the experience of Israel Nili Cohen Part IV. A Law and Economics Perspective on Precontractual Liability Eleonora Melato and Francesco Parisi Part V. Conclusions John Cartwright and Martijn Hesselink.

Precontractual Liability in European Private Law: List of contributors

Part I. Introduction John Cartwright and Martijn Hesselink Part II. Case Studies: 1. Case 1: Negotiations for premises for a bookshop 2. Case 2: Negotiations for renewal of a lease 3. Case 3: Mistake about ownership of land to be sold 4. Case 4: An architects preparatory work for a contract which does not materialise parallel negotiations 5. Case 5: A broken engagement 6. Case 6: An express lock-out agreement 7. Case 7: The breakdown of merger negotiations 8. Case 8: A shopping centre without a tenant 9. Case 9: Breakdown of negotiations to build a house for a friend 10. Case 10: Public bidding 11. Case 11: A contract for the sale of a house which fails for lack of formality 12. Case 12: Confidential design information given during negotiations 13. Case 13: Misrepresentation or silence about a harvesters capacity Part III: From the common law to the civil law: the experience of Israel Nili Cohen Part IV. A Law and Economics Perspective on Precontractual Liability Eleonora Melato and Francesco Parisi Part V. Conclusions John Cartwright and Martijn Hesselink.

Precontractual Liability in European Private Law: Frontmatter

Part I. Introduction John Cartwright and Martijn Hesselink Part II. Case Studies: 1. Case 1: Negotiations for premises for a bookshop 2. Case 2: Negotiations for renewal of a lease 3. Case 3: Mistake about ownership of land to be sold 4. Case 4: An architects preparatory work for a contract which does not materialise parallel negotiations 5. Case 5: A broken engagement 6. Case 6: An express lock-out agreement 7. Case 7: The breakdown of merger negotiations 8. Case 8: A shopping centre without a tenant 9. Case 9: Breakdown of negotiations to build a house for a friend 10. Case 10: Public bidding 11. Case 11: A contract for the sale of a house which fails for lack of formality 12. Case 12: Confidential design information given during negotiations 13. Case 13: Misrepresentation or silence about a harvesters capacity Part III: From the common law to the civil law: the experience of Israel Nili Cohen Part IV. A Law and Economics Perspective on Precontractual Liability Eleonora Melato and Francesco Parisi Part V. Conclusions John Cartwright and Martijn Hesselink.