Nils Jansen

'A European Civil Code in All But Name': Discussing the Nature and Purposes of the Draft Common Frame of Reference

This contribution critically examines the assertion that the Draft Common Frame of Reference has a (primarily) academic, non-political character and that, essentially, it merely serves to “restate” what is generally recognized anyway in the national legal systems in Europe. This assertion, on the part of some of the draftsmen of the Draft Common Frame of Reference, attempts to play down the potential impact of a document that is in reality designed to establish a kind of conceptual and definitional sovereignty in European private law: for it claims to be an authoritative text in the form of a non-legislative codification.If, then, the DCFR is to be regarded as a political document, this is due also to a proximity of that project to the political actors hitherto hardly imaginable. That has repeatedly been emphasized even by those participating in the preparation of the DCFR, but it is concealed by the assertion that the scholarly and political agendas are strictly separated.What need to be established is, on the one hand, whether lawyers in Europe are prepared to accept a systematic body of legal rules, drafted on the model of a codification, as a text of reference carrying an authority similar to that of the American Restatements. On the other hand it has to be debated whether the European bodies responsible for legislation should endorse or adopt the draft as a “political” CFR, or as an optional code. Those discussions can no longer revolve around individual rules, concepts, doctrinal arguments, or even individual parts of the DCFR, after it has found its definitive form as a rigidly systematized, non-legislative codification of patrimonial law in Europe. The European legal community has to recognize this and to point out the deficits that militate against an application of the DCFR, in whatever form.Availability of the full-text paper:The Cambridge Law Journal, Vol. 69, Issue 1, pp. 98-112, March 2010 (doi:10.1017/S000819731000019X). Copyright

The Proposal for a Regulation on a Common European Sales Law: Deficits of the Most Recent Textual Layer of European Contract Law

On 11 October 2011, the European Commission published a Proposal for a Regulation on an optional Common European Sales Law (CESL). This text represents a milestone for the further development of European contract law. Our essay critically examines and evaluates the Commission’s proposal. It outlines the Commission’s draft as well as its background and deals with some of the most pressing doctrinal and policy issues raised by it. We show that the suggested range of application and the technical mode for opting into the CESL are flawed. Further, the CESL incorporates many elements and doctrines of the current acquis communautaire, such as unduly extensive information duties and withdrawal rights as well as a policing of standard contract terms, without reconsidering their proper purposes and uses. With respect to the rules on sales law, it is particularly the mandatory character of most of them that poses grave problems. We also demonstrate that the CESL’s optional character does not eliminate the quality concerns raised in this essay: The CESL might become a ‘success’ despite its shortcomings. Hence, notwithstanding its optional character, the proposed text should not be enacted. What is needed is a broad and thorough debate on the scope, forms and contents of contract law harmonization in Europe rather than the speedy legislative enactment of a flawed product.

Private Law and the State: Comparative Perceptions and Historical Observations

The relation of private law to the state is one of the most complex aspects of the challenges posed for the law by Europeanization and globalization. It is not only distinct from that between public law and the state; it is also not the same in different legal systems. This article provides a historical and comparative overview of this relation in Germany and in the United States. It analyses the historical conditions and reasons for which the state became the ultimate source of authority for private law in Europe but remained largely without importance for doctrinal discussions and jurisprudential decisions within private law. It also identifies some factors that can explain largely different developments in the United States, where, despite the conceptual absence of the state within private law, private law was never seen to the same degree as autonomous from social policy. On the basis of these comparative and historical observations, the article concludes with more general, theoretical remarks on some of the problems that may be seen as core aspects of the relation of private law and the state.

Restating the Acquis Communautaire? A Critical Examination of the Principles of the Existing EC Contract Law

The article examines the Principles of the Existing EC Contract Law (Acquis Principles) published by the European Research Group on the Existing EC Contract Law (Acquis Group), a key player within the academic network charged with the preparation of a Common Frame of Reference. The Acquis Principles may therefore have a considerable impact on the shape and development of EC Contract Law. It is argued that the Acquis Principles do not constitute merely a restatement, or systematic revision, of existing EC private law. To a significant extent, the Acquis Group has drafted desirable rules, based on political decisions that may even entail a transformation towards a regulatory model of private law. At the same time, the Acquis Principles clearly demonstrate that the acquis communautaire is not a coherent system of contract law that can be taken to have emancipated itself from the acquis commun.

Traditionsbegründung im europäischen Privatrecht

Die Frage nach der Idee eines europaischen Privatrechts bildet die Grundlage fur das in diesem Beitrag entwickelte Verstandnis des Gemeinsamen Referenzrahmens, mit dem die Kommission offenbar eine neue Tradition gemeineuropaischen Privatrechtsdenkens etablieren will.

Punitive Damages in Germany

The German law of damages is governed by the concepts of compensation and restitution. According to § 249(1) of the German Civil Code (BGB, Burgerliches Gesetzbuch), a person who is liable in damages must primarily1 restore the injured person or damaged property to the position that would have existed had the wrong not occurred (Naturalrestitution, restoration of the status quo ante). If the victim has suffered bodily injury or damage to his property, § 249(2) BGB allows the latter to demand the required monetary amount in lieu of restitution. Only where genuine restitution is impossible or unreasonable (for the injured party or the tortfeasor) does the tortfeasor have to make good the resulting economic loss in money instead: § 250 s. 1, 251 BGB. Furthermore, monetary indemnification for non-economic loss presupposes an injury to the body or health, or an infringement of the victim’s freedom or sexual self-determination, § 253 BGB.

Grundregeln des bestehenden Gemeinschaftsprivatrechts

Der Beitrag bietet eine kritische Analyse der Principles of the Existing EC Contract Law, die die European Research Group on the Existing EC Private Law soeben als die zentrale wissenschaftliche Vorarbeit fur einen Gemeinsamen Referenzrahmen bzw. fur die anstehende Revision des Verbrauchervertragsrechts durch die Europaische Kommission vorgelegt hat

Farewell to Unjustified Enrichment

concepts help to relate otherwise independent institutions and rules to each other and thus may shed new light on the law. Having such categories in a legal system may help lead to fundamentally new insights and understanding. A category applying in fundamentally different contexts such as torts, property law, and contracts, needs however to be kept responsive to the different functions and contexts of those many fields of the law. 4 It may turn * Professor Nils Jansen, Münster University. 1 J du Plessis, “Labels and Meaning” (2014) 18 EdinLR 416 at 417 f, 426 ff, 432 f. 2 N Whitty, “Rationality, nationality and the taxonomy of unjustified enrichment”, in D Johnston and R Zimmermann (eds), Unjustified Enrichment. Key Issues in Comparative Perspective (2002) 658 at 679 f, 686 f, 693–713; R Evans-Jones, Unjustified Enrichment, vol I (Enrichment by Deliberate Conferral: Condictio) (2003) paras [1.67]–[1.87] and passim; vol II (Enrichment Acquired in any Other Manner) (2013) paras [2.34]–[2.43]. 3 Unless indicated otherwise, the term “civilian tradition” will refer only to the discussions in those three legal systems. 4 Cf Evans-Jones II (n 2) para [2.35], referring to du Plessis’ discussion of problems resulting from the introduction of new rules into a mixed legal system: J du Pessis, “The Promises and Pitfalls of Mixed Legal Systems” (1998) 9 Stellenbosch LR 338 at 344 f. 3 out that the concept assumes different meanings in different contexts, and such ambiguities in meaning may eventually result in a general category breaking apart. The history of the civilian law of unjustified enrichment provides an example of such a development. It is well known, even in the English-speaking world, that the doctrinal and normative structure of the civilian law of unjustified enrichment underwent fundamental and parallel changes during the course of the twentieth century. 5 During the last few decades, however, it has increasingly become apparent that what was once the “modern civilian approach” to this field of the law 6 ultimately leads to its dissolution. The reason is the fundamental functional and doctrinal differences between different claims collected under the heading of unjustified enrichment: large parts of the law of unjustified enrichment are no longer treated as freestanding non-contractual obligations, but rather as remedies in contract law. It thus seems to be time to say farewell to the idea of a unified law of unjustified enrichment. Despite its residually Roman terminology (condictiones; Kondiktionen), the civilian law of unjustified enrichment can barely be understood as a Roman institution. Indeed, Roman lawyers did not know of “unjustified enrichment” as a separate legal category. The modern rules and their conceptual substance result from nineteenth century Pandectist theory. However, the codification of this theory in the general clauses of § 812 (1) German BGB (1900) and Article 62 Swiss OR (1883) turned out to be premature, as the discussions surrounding this theory had not yet come to a conclusive end. During the twentieth century, it was felt that the rules laid down in those general clauses did not work properly. A famous expert opinion written for the German legislature in 1981 thus began with a long list of “inconsistencies in the (then) current law (Ungereimtheiten der gesetzlichen Regelung)”; 7 today, few German jurists would deny that this was a fair evaluation. Those inconsistencies result ultimately from the fact that the Pandectists had interwoven into their theory of unjustified enrichment two fundamentally different legal conceptions that do not fit well with 5 Cf R Zimmermann and J du Plessis, “Basic features of the German law of unjustified enrichment” (1994) 2 RLR 14; but see G Dannemann, The German Law of Unjustified Enrichment and Restitution (2009) at 4, 167, and passim. Dannemann neglects or criticises as wrong important developments that occurred during the last fifty years. 6 R Zimmermann, “Unjustified Enrichment: The Modern Civilian Approach” (1995) 15 OJLS 403. 7 D König, “Ungerechtfertigte Bereicherung”, in Bundesminister der Justiz (ed), Gutachten und Vorschläge zur Überarbeitung des Schuldrechts, vol II (1981) 1515 at 1520. 4 one another. The modern civilian law of unjustified enrichment thus grows from two intellectually separate roots. 8 (a) The Roman condictiones Only one of those two elements is rooted in the Roman condictiones: it is the idea that the debtor has to return what he received without sufficient legal basis (causa; Rechtsgrund). Yet those restitutionary condictiones were never regarded as enrichment claims in the modern sense of the word until the very end of the eighteenth century: 9 they were not understood as being based upon an unjustified enrichment, neither were they limited to the actual enrichment on the debtor’s side. 10 The Roman jurists focussed instead on the original transfer. They gave a restitutionary condictio to the claimant in cases where they felt the defendant should be obliged to return what he had received from the former. Originally, however, the Roman condictio had not even been a restitutionary remedy. Rather, it was established as an action to enforce promises for stipulations for a certain amount or certain things (stipulationes certi). 11 Of course, such an action had to be strict, in that the defendant could not claim that he did not have the thing he had stipulated for; there was never a defence on the basis that the defendant was no longer enriched. 12 Modern jurists might therefore wonder how this action could eventually have become the basis of the modern law of unjustified enrichment. The decisive factor making this development possible was probably the action’s formula. This formula was abstract, in that it did not mention a specific cause of action. The condictio could thus be used in contexts quite different from those for which it had been designed originally, such as cases where the claimant sued to recover an informal loan 8 Similarly, J Esser, Schuldrecht Allgemeiner und Besonderer Teil, 2 nd edn (1960) at 776 (§ 189). The remark is not found in later editions of his book. 9 A von Tuhr, “Zur Lehre von der ungerechtfertigten Bereicherung” in Festschrift Ernst Immanuel Bekker (1907) 291 at 297, 303; B Kupisch, Ungerechtfertigte Bereicherung: geschichtliche Entwicklungen (1987) at 1–27; N Jansen, “Die Korrektur grundloser Vermögensverschiebungen als Restitution?” (2003) 120 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte (rom) 106 at 110–123; S Lohsse, Aequitas Martiniana, Habilitation Bonn, (2013) §§ 4–6, especially § 6 I. 10 See, for this concept of an enrichment claim, Zimmermann (n 6) at 403 f. 11 M Kaser and K Hackl, Römisches Zivilprozessrecht, 2 nd edn (1996) at 111–113; D Liebs, “The History of the Roman condictio up to Justinian”, in N MacCormick and P Birks (eds), The Legal Mind, Essays for Tony Honoré (1986) 163 at 164 ff; further references in Jansen, (n 9) at 110 ff. 12 Paulus, D 12.1.2; Pomponius, D 12.6.7; for detail, see R Zimmermann, The Law of Obligations (1990) at 897 f. 5 (mutuum) or things which had been stolen (condictio furtiva). 13 Nevertheless, in view of its strict nature, the action’s scope of application remained limited. Besides its application in the field of contractual claims and theft, the most important were instances of undue or failed transfers (condictio indebiti, condictio ob rem, etc). 14 The Roman jurists never acknowledged a condictio genuinely based on an infringement upon another person’s rights; 15 only during the twentieth century did this claim find its place in the civilian law of unjustified enrichment. 16 Indeed, such a claim would have looked quite strange within the intellectual structure of Roman law. Roman jurists did not conceive of rights as reasons for legal remedies, 17 and the strict consequences of the condictio are quite inappropriate in typical cases of innocent infringements upon other persons’ property. For the same reason, Roman jurists did not grant a condictio for claims for expenditure made; where they found it appropriate to allow the creditor to recover expenses made, they instead based it on the negotiorum gestio. 18 What then, it might be asked, did Roman and ius commune jurists mean when they described the condictiones as an expression of a natural law principle against unjust enrichment? Obviously they had ideas in mind which significantly differed from modern conceptions of liability for unjustified enrichment. Their concept of unjustified enrichment referred to cases of undue or failing transfers. In the context of the condictio, they never thought about the abstract idea of siphoning off an unjustified enrichment. 19 The unjustified enrichment as such was not seen as a causative event triggering a condictio. Indeed, civilian authorities explained the condictiones on the basis of concepts such as real contracts, fictional 13 Liebs (n 11) at 166; for such cases, see also Lohsse (n 9) § 6 II. This was particularly important in cases where the penal actio furti did not apply: Gai Inst 4.112 (= J Inst 4.12.1). 14 For the historical development, see Liebs (n 11) at 167. 15 Jansen (n 9) at 126 ff. Some scholars have tried to prove the existence of such a claim in Roman law; cf B Huwiler, “Zur Anspruchsgrundlage der Obligation aus ungerechtfertigter Bereicherung im Schweizerischen Obligationenrecht”, in N P Vogt (ed), Liber Amicorum Schulin (2002) 41 at 48 f. However, the fragments used to support such a theory (especially D 12.6.29) do not concern an infringement upon another person’s property right, but rather invalid transfers. 16 Zimmermann, “Unjustified Enrichment” (n 6) at 417. 17 There were some arguments that may be understood to be pointing in the direction of such a conception of rights, however (see e.g. D. 12.1.32; 12.6.55). 18 There was no independent claim to recover expenses incurred by the possessor of another’s property. The poss

Informal Authorities in European Private Law

The article considers the nature of authorities in the law, and, specifically, the often undervalued yet important role played by informal auctoritas, by contrast with formally binding enactments. It explores the terminological difficulties within modern discourse which make discussion and understanding of such informal authorities difficult. Exemplarily, the status of Roman sources in the ius commune is considered in detail, establishing the informal criteria which determine their authoritative quality – belief in the extraordinary quality of the texts and the jurists’ mutual expectations of applying them. The analysis then proceeds to modern German practice and the enormously significant role played by learned Commentaries in the work of practising lawyers and courts – a phenomenon difficult to explain without recourse to a concept of informal authority. Finally, this understanding is demonstrated in the context of transnational private law by reference to the modern phenomenon of non-legislative codifications, such as the American Restatements, the Principles of European Contract Law and the UNIDROIT Principles of International Commercial Contracts; all those codifications have gained a substantial informal authority as reference texts for international legal discourse.

Principles of European Tort Law? Grundwertungen und Systembildung im europäischen Haftungsrecht

* Der Beitrag beruht urspr?nglich auf meinem Vortrag ?The State of Art of the Europe an Law of Torts, Present Problems and Proposed Principles?, gehalten im April 2004 an der Universit? di Trieste; der Vortragstext wird demn?chst im Tagungsband erscheinen: East 8c West in the European Tort Law Perspective, hrsg. von M. Bussani. Abgek?rzt werden zitiert: C. v. Bar, Gemeineurop?isches Deliktsrecht I (1996) und II (1999) (zitiert: v. Barl, II); ders., Konturen des Deliktsrechtskonzepts der Study Group on a European Civil Code, Ein Werkstattbericht: ZEuP 2001, 515ff. (zitiert: Konturen); J. WG. Blackie, Tort/Delict in the Work of the European Civil Code Project of the Study Group on a European Civil Code, in: Grundstrukturen (diese Note) 133ff; M. Bussani ZW Pal mer/F. Parisi, Liability for Pure Financial Loss in Europe, An Economic Restatement: AmJ.Comp.L. 51 (2003) 113ff; European Group on Tort Law, Principles of European Tort Law, Text and Commentary (2005); Grundstrukturen des Europ?ischen Deliktsrechts, hrsg. vonR. Zimmermann (2003) (zitiert: Grundstrukturen); D. Ibbetson, A Historical Intro duction to the Law of Obligations (1999); Jansen, Duties and Rights in Negligence: Oxford J. Leg.Stud. 24 (2004) 443ff. (zitiert: Duties); ders., Die Struktur des Haftungsrechts, Ge schichte, Theorie und Dogmatik au?ervertraglicher Anspr?che auf Schadensersatz (2003) (zitiert: Struktur); f?. Koziol, Die ?Principles of European Tort Law? der European Group on Tort Law: ZEuP 2004, 234f. (zitiert: Principles); U. Magnus, Vergleich der Vorschl?ge zum Europ?ischen Deliktsrecht: ZEuP 2004, 562f?; Pure Economic Loss in Europe, hrsg. vonM. Bussani/ V.V Palmer (2003); G. Wagner, Grundstrukturen des Europ?ischen Delikts rechts, in: Grundstrukturen (diese Note) 189ff. (zitiert: Europ?isches Deliktsrecht); F. Wer ro/VV.Palmer/A.-C. Hahn, Synthesis and survey of the cases and results, in: The Bounda ries of Strict Liability in European Tort Law, hrsg. von Werro /Palmer (2004) 387ff; JR.. Zim mermann, Principles of European Contract Law and Principles of European Tort Law: Comparison and Points of Contact, in: Tort and Insurance Law, Yearbook 2003 (erschie nen 2004) 2ff. (zitiert: Principles); ders., Wege zu einem europ?ischen Haftungsrecht, in: Grundstrukturen (diese Note) 19ff. (zitiert: Wege).