Schneider LW807

Frederick European Comparative Law

fs66@kent.ac.uk 4465 words

How, if at all, can Comparative legal Studies make a contribution to the ongoing debate on legal integration within the European Union?

2007/2008 University of Kent

After the Second World War, the political leaders of different Western European countries were wondering how they could avoid all military conflicts on the Old continent. The idea of economic interdependence appeared: countries which cooperated very closely on the economic ground had no interest in attacking each other. This led to the European Community and later to the Single Market. It is still argued that the Single Market has not been completely achieved and that further integration is necessary. This spill over effect should lead according to some people to the harmonization of private law.

Comparative law is one of the tools we have to answer the question whether the harmonization of private law is desirable or not. But of course it is not the only purpose of this discipline and it didn’t wait for European Integration to appear. The First Congress of the Comparative Legislation Society, which is considered to be the moment when this discipline appeared, occurred in 1869[1]. In order to speak about Comparative law, we should first define it precisely. It is important to say what Comparative law is not, for a better understanding of what it actually is. It is not a discipline in which different national laws are taught as such. It is a much more general part of legal science in which not only rules but also norms, decisions, facts, concepts and values are compared.[2] The actual application process counts, not only the black-letter rule.

Therefore, Comparative law needs an important background. It should be analysed in conjunction with other social sciences. In fact, culture plays a crucial role in law and legal culture is a central concept of Comparative Law. Law is influenced by culture, which can be explained among other things by history and sociology.

Different approaches are possible in Comparative Law. This paper will make the choice to focus on the hermeneutical and the dialectical approaches. The hermeneutical analysis has been chosen because the author strongly believes that law is only a signifier of a deeply signified.[3] The dialectical approach[4] has been chosen in order to show the oppositions in Contract Law in different European countries and in order to see what the best solution in an eventual European Contract Code could be.

Integration in the area of private law is one of the main debated topics in the EU. The focus of this paper on Contract Law can be explained by the fact that the contract has a central position in the Market Economy. The Single Market being an enlarged Market Economy, it is asked whether the absence of a common European contract is not an obstacle to its completion.

There are different forms of integration: rapprochement, harmonization, coordination and unification. As we will see, the problem in analysing arguments used for and against integration in the field of contract law is that scholars don’t speak about the same thing. Opponents of integration are very often caricaturising supporters of a European Civil Code because they say that supporters simply are for a total unification of the law, not taking into account the specificities of legal cultures. We will try to analyse the feasibility of harmonization but sometimes it will be impossible not to talk about unification because arguments used in the debate very often refer to this type of integration.

So, to what extent can Comparative legal Studies help in the debate concerning integration in Contract Law? Does it only provide arguments against a European Civil Code because such Code would be a threat for national legal identities?

We will see in a first part what the Study Group on a European Civil Code proposes in the field of Contract Law. We will then analyse the arguments of the opponents of integration in the field of Contract Law based on Comparative legal studies. In a third part the arguments of its supporters will be presented.

The idea of codification of Contract Law on a supranational level is not new. Von Bar proposed already in 1900 a codification of Civil Law on a European scale.[5] In the 1920s, Rabel started to work on creating principles of international trade contracts called UNIDROIT principles.[6] Because of the war and its implications, they have been stopped but they led indirectly to the Hague conventions signed and entered into force in the 60s and in the 70s. They concerned International Sale Contracts and their formation. The Vienna Convention, which was enforced in 1988, created the CISG (Contracts for the International Sale of Goods). It is important to notice that, despite the fact that many countries have signed it, there are some notable exceptions in the European Union: the UK, Ireland and Portugal refused to sign it. One of the main successes of this Convention was that it established a common “framework for the analysis of some of the complex legal issues that can arise in the law of contract”[7].

The concept of a European Contract Law has been reactivated in the 70s with the launch of the so-called Lando Commission, which has established the Principles of European Contract Law (PECL). It was necessary to recall the precedent attempts of codification of Law on a supranational level not only to show that it wasn’t a new idea but also because the PECL have been influenced by it. There is no doubt that some general ideas of the PECL have been inspired by the UNIDROIT principles.[8]

The purpose of this paper is not to analyse into details the PECL but some general ideas about it must be given as it has hugely inspired the Study Group on a European Civil Code. The PECL had four aspirations: “to state the Common Core of the Contract laws of Europe, to contribute to a future codification, to provide a set of rules and to create a common European language”[9]. It is important to say that American restatements of the law represented one of the sources of inspiration for the Lando Commission. The US being a Common Law country and the idea of restatement in general being used in the Common Law tradition, it would be false to pretend that the PECL have just been influenced by Civilist Law. There are some other elements showing the influence of Common Law: the fact that the PECL include a set of rules on remedies for non-performance, the use of implied and express terms being just few examples of this. It is true however that there is no strong privity rule and no doctrine of consideration in the PECL.[10]

Moreover, the influence of the Civil Law tradition is much more obvious. The PECL emphasize the idea of good faith which is totally absent from the Common Law (Walford vs. Miles is the case in which the House of Lords says that the introduction of the good faith concept in Common Law could not happen [11]). They establish also a pre-contractual duty to inform, which also is a purely Civil Law concept. The PECL foresee the possibility of irrevocability of an offer if the offer explicitly says so. This is a Civil Law idea absent in Common Law countries.[12]

But we must insist on the fact that the dominance of Civil Law tradition is relative and that the Common Law is in fact over-represented if we consider the weight of the countries belonging to this tradition within the EU. Moreover, the PECL make a clear choice against any legal culture with the unitary concept of non-performance. The Lando Commission also didn’t make any cultural choice with illegality and immorality.[13]

The debate about integration concerning Contract Law in the European Union as such began in 1994 with a resolution of the European Parliament called “Towards a European civil code”.[14] In 2001, the European Commission issued a Communication in which a concern about obstacles to cross-border trade was expressed. The lack of Contract law is regarded by the Commission as one of the main obstacles to this. It is in this context that the Study Group on a European Civil Code led by Christian von Bar emerged. The works of this Group have not been completed yet but it is already known that the part devoted to Contract Law will be based on the PECL.[15]

The main argument of the opponents of a Common Civil Code is that there are different legal traditions in Europe, which can’t be reconciled. This concerns mainly the clash between Common Law countries and Civil Law countries. This cleavage appeared already in the middle age, in around the year 1100 at the time Roman Law (or, to be more precise, its late version which has been codified by the Emperor Justine) had been rediscovered in Northern Italy.[16] Roman law had a capital influence on the European continent. However, at the same time, an independent and original system appeared in England.

This is at the origin of the fact that England and Ireland have one legal system, whereas all the other EU member states have another system, except for Scotland, which has a mixed system. The main difference between these two systems doesn’t consist in differently working rules but in a different way of thinking. In the Civil Law countries, the reasoning is based on rules and concepts[17], whereas in the Common Law countries the law doesn’t matter so much, facts are predominant.[18] This means that courts in France will immediately look for some abstract concepts to apply to concrete cases, whereas courts in England will focus on the jurisprudence. The Common Law approach explains why England and Ireland need no Civil Code.

Moreover, even in the Civil Law tradition you have some important cleavages. Scandinavian countries are influenced by realism, which explains that they have no civil code neither. Because of their communist past, Central and Eastern European countries have a sui generis legal tradition.[19]

But even before we start to look at the arguments given by the opponents of integration in Contract Law because of this diversity of Systems, we should focus on the general argument that you can’t uniformize the rules. Deschemaeker says that there are three solutions and that there are all wrong. The first is that we take the system of one of the member states and that we apply it to the whole European Union. This would mean that we would take the Dutch Civil Code for example because it has been reformed recently and that we would align all the other countries on that model. But this would be unacceptable because of political reasons: no one would accept to give up its system totally. Another solution would be to create a mixture of different legal systems but this would imply lack of coherence. The third solution, which has been the more used by the Lando Commission, would be to create a new language but Deschemaeker claims that nobody would understand it.[20] It is argued that there will always be a contradiction between compromise and coherence. Whether you have a compromise between different systems but no coherence or coherence with a system which doesn’t take into account diversity.

It is not the only one contradiction that opponents of a harmonized Contract Law see in the Lando Commission works. They perceive an incoherence between the idea of restatement and the notion of a future codification. If the PECL really are a restatement, it means that it doesn’t represent any tool for any further integration. It just recalls already existing similarities but no choices are made in consideration of a future harmonization. Moreover, if it was possible to make a restatement, it means that European legal cultures are close enough to find some common principles in that and in this case there is no barrier to cross-border trade and no need of integration. At the opposite, if the PECL represent a codification, some choices are made and it is not really a restatement. In this case, the European legal cultures would be so far from each other that no convergence would be possible.[21]

Moreover, the opponents of a European Civil Code say that the reference to Ius Commune and Ius Mercatoria is a misunderstanding. It is true that in middle age there was a common core of legal principles called Ius Comune. However, England was always apart of that, which shows that the gap between Common Law and Civil Law has never been mastered as some pretend. Ius Mercatoria existed and was working well but it only concerned transnational law[22], whereas the European Civil Code is supposed to be applied as well for transnational as for national contracts.

Deschemaeker argues that people supporting integration in Contract Law have a low level of knowledge of Comparative legal studies. He explains that the division of the legal system into different branches differs in each country. If we take the example of to whom this Contract law would apply, we can have a problem. In the French law, this is not defined in the Civil Code but in the droit des personnes. In, fact, a person must have a capacité juridique in order to be able to sign a contract.[23] This means that a European contract law would have an implication not only on national contract law but also on other branches of law. This would maybe imply a total reconsideration of the division into branches of law in different countries. These reforms would be complicated, costly and would take a lot of time.

A common Contract Law would also imply a new education system. Lawyers would have to relearn everything, this would also concern scholars. This change would not imply only this kind of economic costs. A new Contract Law would require learning of a new approach, of a new way of thinking. This would take a certain time: you can’t change your reasoning immediately. The English law reasoning is inherent to the brain of an English lawyer. He thinks as an English lawyer unconsciously. It would take at least one generation to have lawyers who would think like the European Contract Law would require it. This would lead to some misunderstandings and there would certainly be a non-uniform interpretation of law in different countries. This problem would concern mainly Common Law countries for which the emergence of a new Contract Law would imply the largest consequences.

It is argued that only the fact that there is a circulating idea of common Civil Code is an evidence of ignorance of Common Law mentality. Common Law just has no Code because it doesn’t need it. Common law is based on case law and it is happy with it. It doesn’t mean that the jurisprudence approach is better than the codified approach. It just means that each country has its approach which works well and that therefore there is no need to change it, according to Deschemaker.[24] This difference of approaches can be explained by history. The English courts obtained huge prerogatives in the past in order to avoid the arbitrary character of royal decisions. In the contrary, the Civil Code in France is seen as a symbol of the French revolution, a revolution that took place against absolutism. The German Bürgerliches Gesetzbuch is seen as a symbol of German unity. So, unification would take place at the cost of national identity of a country.[25]

Moreover, Comparative law shows that there is no universal truth. [26] It is true that the Civil Law mentality wants to show that there is only one possible verdict: this which expresses the law. You can always draw a parallel between a fact and a law and this is what you are supposed to do in Civil Law countries. This is supposed to be a mechanical system. It is why you don’t have any dissenting opinion in courts in France.[27] But a universal truth would mean that a conflict would lead to the same verdict in each country. The plurality of answers to a problem shows that everything is relative. What is considered as legal in a country can be considered as illegal in another one. Therefore it could be asked whether it would not be more desirable to have different solutions in different countries to take the national culture into account.

Sacco claims that the idea that all the peoples tend to the same type of society with identical rules is very simplistic. He sees the origin of this idea in the still present Hegelian conception of history in which there is only one path called progress and all the nations have to pass through the different stages of this path. Mankind is based on diversity and this is its richness.[28]

Diversity has been and still is the richness of Mankind as a whole, but especially of Europe. David Cosandey shows in Le Secret de l’Occident that Europe developed much faster than Asia during centuries. He sees the origin of this in the flexibility of Europe. Europe was divided into small countries in which laws were adapted to the needs, whereas Asia was dominated by Empires in which bureaucracies imposed uniform systems not adapted to the local societies. [29] It is obvious that the source of law should lay in the will of concerned persons. The larger the area in which a piece of legislation is applied, the less the opinion of concerned people can be taken into account.

Moreover, Comparative legal Studies shows that legal systems like to copy some of their elements on other systems. We can quote the example of the recently reformed Dutch Civil Code which seems to be attractive to many other countries. Several countries have already Commissions which role is to reform the Civil Code on the basis of the Dutch Civil Code. If we would have a common Civil Code, we would not have on whom to copy, except on the United States. This would limit consequently the sources of inspiration. The opponents of harmonization of Contract law refute the argument that this pluralism leads to inertia because each country is just waiting for a change in another country to copy it. There is a competition between legal systems actually: each country tries to attract the more possible capital through its attractive legislation.[30]

So, we have seen that the opponents of a common Civil Code have a lot of strong arguments against integration. It is why a larger part has been devoted to these arguments. However, it doesn’t mean that they are right. Comparative legal studies also provides arguments to codification. And, in spite of the fact that they are less numerous, they are more convincing than the arguments against a common Contract Law.

A lot of Civil Codes around Europe are not adapted to the present world. There is an urgent need for modernisation. Therefore, there is a unique opportunity of modernisation of the Codes and of unifying European legal cultures at the same time. National contract laws in several countries have to be changed hugely and the way of reasoning will have to be changed anyway. So why not change these ways of thinking in the same direction?

Moreover, the idea of convergence between different civilized societies emerges. Of course, some people can always argue that legal systems are not converging.[31] However, it is obvious that in general terms cultures are converging in Europe and that we have more in common than before. All European peoples live in a post-materialist and post-modern era.[32] It is true that Central and Eastern Europe countries still have to fill the gap, they are not at the same level as Western Europe. This has certainly a consequence on the legal culture because you can’t separate legal culture from the rest of the culture. Actually, law is a part of a national culture seen as a whole. Therefore, convergence in culture will lead to convergence in perception of what a contract is in the society. And the perception of what contract is by the society should have an influence on the regulations relative to contract.

The idea of competition between legal systems motivating themselves may be partly true. However, why work isolated when you can work together? It is obvious that a dialogue will be more constructive when it will involve more people. There are many common European projects which work well. You can quote the examples of Ariane, Airbus and the common immigration policy. Competition is not a mandatory condition to achieve success.

The idea of codified Contract Law in England is not impossible. Even Deschemaeker admits it. As India was an English colony, there was an Indian Contract Law established in the 19th century. Moreover, there was a Common English-Scottish Commission on uniformization of Contract Law. This shows that Common Law is not immutable and that a common ground can be found.[33]

Dialogue is an important factor in achieving agreements. The development of Comparative legal Studies led to an increase of translations of national legislation into other languages and enabled the circulation of legal concepts.[34] Thanks to that, an English scholar has a better knowledge of French, Dutch and Italian law than fifty years ago. This enables him to understand better another legal culture, even if he will stay outside this culture. The number of meetings, conferences and congresses between scholars from different European countries has increased in the last decades.

Moreover, the critic of a European Civil Code as a hybrid which would be totally incoherent is not grounded. This argument could be applied to any European Union legislation. EC law is always a hybrid between different systems and if it would not work, the European Union would fail for a long time. But apparently, if it still exists, it is because it is not a totally absurd idea. Harmonization between different legal cultures doesn’t lead automatically to chaos. Why should it imply more chaos in Contract Law than in other areas? On the contrary, it is argued that the Lando Commission has found a lot of interesting compromises and that its aim is to create a new, coherent European legal culture.[35] It believes that the construction of a bridge between the Civil Law and the Common Law is possible.[36]

Actually, Comparative legal Studies provides us an element of answer not only if we compare just different European systems. We can also compare them with the United States, which gives us a lot of interesting information. In fact, if we compare the UK to the US and to European Civil Law countries, we realise that the British system is closer to the continental approach than to the American one.[37] England as well as the USA are Common Law countries but of very different types. This is partly due to the history of the last two centuries. Europe had an extremely formalistic system in the 19th century. It is less the case now but the realism is still not victorious there. The European systematic and doctrinalist approach can be explained by the trust in political institutions on the one hand and by the threat of communism and fascism on the other hand. The trust in institutions implied that Europeans had no problems in giving them a lot of power. The threat of totalitarianism implied that they didn’t want the courts, which could be politicised in the case of a victory of an extremist party in elections, to have too large arbitrary power.[38] In the US on the contrary, there is a pragmatic functional approach, the emphasis on the connection between law and other social sciences is even much stronger than in England.[39] This shows that the difference between England and the continent is relative and that the cleavage Common Law/ Civil Law is an artificial one.

After having taken a larger overview taking a transatlantic example, we can focus on a much smaller scale. In fact, you can observe that differences in substance don’t coincide necessarily with national borders. You can have some differences within one country and similarities between different countries.

The argument that a European Civil Code would have an enormous cost because of the necessity of changing programmes at law faculties is exaggerated. There is already a lot of EC law in many law schools and this would only add another module. Moreover, this would enable to reduce the number of courses of foreign law: English students would not have to learn any French or German Contract Law, because they would know European Contract Law. This would also encourage American students to learn European Contract Law because the study of one system would enable to know the Contract Law rules in different countries. And this would have on the long term as a consequence an increasing interest for the Single Market in the US, which would indirectly encourage American investments in Europe.

Moreover, someone like Deschemeaker is caricaturising the arguments of the supporters of integration in Contract Law and the PECL. He speaks of unification of Contract Law and he takes whole Europe when he criticizes the idea of integration, whereas he acknowledges that the Lando Commission is the more influential body working on a European Contract Law. And as seen before, the PECL are very general and they certainly don’t have as an ambition to achieve pure unification and there was never a word about establishing these rules for countries that are outside the EU.[40]

So, to conclude we can say that Comparative legal Studies should be considered as an important tool in the debate concerning the eventual emergence of a European Contract Law. It fuels many arguments used by its opponents: it shows the huge differences between Common Law and Civil Law traditions, which are supposed not to be reconcilable. It shows that each country has a separate legal culture, which is due to a separate past, and that this has its coherence. It enables to show that pluralism in legal systems helps to adapt solutions to the specific societies problems.

However, Comparative legal Studies also provides a lot of arguments in favour of a European Contract Law. Its development enabled to lawyers and scholars to understand better other legal cultures (even if it will always an understanding from outside), which encourages the dialogue. The comparison with the United States shows us that the English legal culture is closer to the European legal culture than to the American one. Moreover, culture is a changeable thing and this means that all national legal cultures can move to a Common European one.

But it should not be forgotten that Comparative legal Studies is only a tool. It will not provide a complete answer. Some arguments have to be brought from outside the legal Science. Economics is probably the science which gives the more important information. The Lando Commission considers that a Common Contract Law will make disappear a barrier to cross-border trade within Europe.[41] This seems to be logical because the lack of knowledge of a foreign Contract Law discourages companies and individuals to sign a contract abroad. However, the opponents say that this has almost no influence on individuals’ choices, that the price is the variable which guides the customer in his choice.[42] Moreover, they claim that the economic costs of harmonization would be superior to the benefits.[43]

Political and philosophical arguments are also present. Why make common rules in Contract Law on a European scale, whereas you can apply it directly to the whole world? Isn’t integration an end in itself in order to avoid war and to create a European identity? That are just few examples of questions that could be answered by politics and philosophy in different ways.

Bibliography :

D Cosandey, “Le Secret de l’Occident” (Paris : Arléa, 1997).

E Descheemaeker, « Faut-il codifier le droit privé européen des contrats ? » (2002) 47 McGill Law Journal 791.

S van Erp, “The precontractual stage” in A Hartkamp (edited by), “Towards a European Civil Code” (Nijmeged: Kluwer Law International, 2004) (pp. 363-379).

M Hesselink, “The New European Private Law” (The Hague: Kluwer Law International, 2002).
O Lando, H Beale (edited by), “Principles of European Contract Law” vol. I and II (The Hague: Kluwer Law International, 2003).

P Legrand, “European legal Systems are not Converging”, (1996) 45 International and Comparative Law Quartely 52.

P Legrand, « Le Droit Comparé » (Paris : Presses Universitaires de France, 2006).

M Lobban, “The Common Law and English Jurisprudence 1760-1850 (Oxford: Oxford University Press, 1991).

E McKendrick, “Harmonisation of European Contract Law: the State We are In”, in S Vogenauer, S Weatherill (edited by), “The Harmonisation of European Contract Law” (Oxford: Hart Publishing, 2006).

R. Sacco, “Les problèmes d’unification du droit”, in L Vogel (edited by), « Unifier le droit: le rêve impossible ? » (Paris : Droit Global/Global Law, 2001) (pp.9-26).

R Sacco, “Formation of Contracts”, in A Hartkamp (edited by), “Towards a European Civil Code” (Nijmeged: Kluwer Law International, 2004) (pp. 353-362).

K Schweigert, H Kötz, “An Introduction to Comparative Law”, 3rd edition translated by T Weir (Oxford: Oxford University Press, 1998).

L Vogel, “Introduction” in L Vogel (edited by), « Unifier le droit: le rêve impossible ? » (Paris : Droit Global/Global Law, 2001) (pp.7-8).

http://www.sgecc.net/media/downloads/structure04_12.pdf.

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