Reinhard Zimmermann

The law of obligations : Roman foundations of the civilian tradition

Part 1 Introduction - the concept of an obligation and its implications: obligatio - conceptual and systematic foundations stipulatio alteri, representation, cession. Part 2 Verbal obligations: stipulatio stipulatio poenae - conventional penalties suretyship. Part 3 Real obligations: mutuum - loan for consumption commodatum, depositum, pignus - loan for use, deposit, pledge. Part 4 Consensual obligations: emptio venditio I - sale (basic requirements) emptio venditio II - sale (main effects) emptio venditio III - sale (warranty of title and of proper quality) locatio conductio I - mainly lease locatio conductio II - contract of employment, contract for work mandatum - mandate excursus - negotiorum gestio societas - partnership. Part 5 Arrangements outside the contractual scheme of classical Roman law: donatio pacta and innominate real contracts. Part 6 General principles of contractual liability: formation of contract error - mistake interpretation of contracts metus and dolus - duress and fraud invalidity and reasons for invalidity condicio and dies - conditions and time clauses termination of obligations breach of contract. Part 7 Obligations arising neither from contract nor from delict: unjustified enrichment. Part 8 The law of delicts: delict in general furtum - theft Lex Aquilia I Lex Aquilia II actio iniuriarum - infringements of personality rights strict liability.

Roman Law, Contemporary Law, European Law: The Civilian Tradition Today

Introduction 1. The End of an Era: Transformation of Scholarship in Roman Law 2. The Transition from Civil Law to Civil Code in Germany: Dawn of a New Era 3. A Change in perspective: European Private Law and its Historical Foundations Final Observations Index

'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.

AUDITORS' LIABILITY AND ITS IMPACT ON THE EUROPEAN FINANCIAL MARKETS

Statutory auditors serve as an integral device to safeguard confidence in European financial markets. The market for corporate auditing is highly concentrated. A collapse of one of the top four auditing firms could cause a severe lack in the availability of auditing services. In a 2007 Staff Working Paper the European Commission proposed to reform auditor liability and to protect auditing firms from catastrophic liability claims. This paper analyses the reform options suggested by the European Commission and pleads, in essence, for the following liability rules: 1. The company and its auditor may enter into an agreement limiting the amount of liability of the auditor in respect of any negligence occurring in the course of the audit, subject to approval by the general meeting of the audited company. 2. This limitation may not be set below a fair and reasonable amount. The definition of fair and reasonable should be laid down in a European framework, providing a set of basic criteria, including the sum of fees paid to the auditor and the size of the company. 3. If the amount of liability significantly deviates from what would be fair and reasonable, the court which decides on a damage claim against the auditor declares the agreement void. 4. In the assessment of the validity of the agreement, the court shall take into account the European framework basic criteria to be considered by the parties and additional factors such as auditor independence and the applicability of institutional and individual insurance excesses.

Judge and Jurist: Essays in Memory of Lord Roger of Earlsferry

PART I: TRIBUTES TO LORD RODGER PART II: LORD RODGER IN THE HOUSE OF LORDS AND SUPREME COURT PART III: ROMAN LAW AND ROMAN LEGAL HISTORY PART IV: SCOTS LAW AND SCOTTISH LEGAL HISTORY PART V: NEW PERSPECTIVES ON RECURRING THEMES

Policy Options for Progress Towards a European Contract Law. Comments on the issues raised in the Green Paper from the Commission of 1 July 2010, COM(2010) 348 final

In its position paper on the Commission’s Green Paper on policy options for a European contract law (COM (2010) 348 final, 1 July 2010), the Max Planck Working Group welcomes initiatives to overcome the fragmentary and inconsistent state of contract law in Europe. However, the Working Group criticizes that the Commission did not sufficiently consider the issue of the legislative competence of the EU. At present, an optional instrument (opt-in) drafted as a Regulation (option 4) and based on Art. 352 TFEU seems to be the preferable option. Such an instrument raises a number of questions regarding its choice and its area of application which have been addressed by the Working Group. An optional instrument should be granted a broad scope of application, including both B2B and B2C contracts, domestic contracts, intra-Union cross-border contracts as well as contracts with parties resident in third states. Its scope should neither be limited to cross-border contracts nor to contracts concluded online. However, the recommendation of the Institute is subject to an evaluation of the substantive quality of the instrument which is not yet available. In this regard, an important preparatory work for any future European contract law, i.e. the Draft Common Frame of Reference (DCFR), has already been criticized by some members of the Working Group. Also, any legislative initiative should be preceded by a proper review of the existing acquis and should be coordinated with the current work on a Consumer Rights Directive.This article is published in this Research Paper Series with the permission of the rights owner, Mohr Siebeck. Full-text Rabel Journal articles are available via pay-per-view or subscription at IngentaConnect, a provider of digital journals on the Internet.

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

Revocation of Wills by Changed Circumstances

INTRODUCTION The nature of revocation Revocation of a will, which is the converse of the initial act of making, proceeds on the broad principle of freedom of testation. The subject may be divided according to whether the revocation is voluntary or involuntary. Voluntary revocation is determined by the intention of the testator. The basis of Roman and Roman-Dutch law was that voluntary revocation could be achieved, expressly or by implication, by a formal will or document as well as by destruction of the original will. A will may also be revoked involuntarily, by operation of law, when certain circumstances occur. Involuntary revocation does not seem to require an act of free will or specific intention to revoke. Rather the intention to revoke is implied. Hughes explains that involuntary revocation is based on a policy of requiring a person to reconsider his or her social obligations in the light of a change in circumstances. Cases of involuntary revocation by changed circumstances include revocation by the birth of a child, revocation by subsequent marriage, revocation by divorce or annulment of marriage, and certain other forms of automatic lapsing of a will. This chapter considers revocation by changed circumstances in the context of two mixed jurisdictions (South Africa and Scotland), one jurisdiction from the Common Law world (England), and one from the Civil Law world (Netherlands).

Auditor Independence at the Crossroads – Regulation and Incentives

In November 2011, the European Commission published legislative drafts proposing radical reforms for statutory audits in Europe,1 fuelling heated political and academic debates2. This paper presents cornerstones for a new regulatory framework of auditing and thereby contributes to the ongoing debate on the role of auditors and their independence.