European Review of Private Law, Volume 24, Issue 3, 2016


Carla Sieburgh, Reinhard Zimmermann, Arthur Hartkamp: Scholar, Colleague, Friend

Jürgen Basedow,  General Principles of European Private Law and Interest Analysis: Some Reflections in the Light of Mangold and Audiolux

Abstract: In recent years, the Court of Justice of the European Union has twice tackled the task of identifying general principles in the field of European private law. Both cases – Mangold and Audiolux – concerned issues of discrimination; however, the two rulings differ substantially in both methodology and outcome. With regard to methodology, the Court made clear in both cases that general principles of law are the result of an inductive process of reasoning based on a consideration of other rules existing in the law of the Union, in public international law, or in the national laws of Member States. While the Mangold Court performed this task in a rather superficial way, the Audiolux ruling can serve as a model. A generalization from the more specific sources of law requires, as a second step, a reasoned justification. An analysis of this nature only takes place in Audiolux. But in this judgment, it reflects a narrow conception of general principles which is ill-suited to private law. General principles of law are general neither on account of their foundational importance, nor of the very general subject matter dealt with, nor of their general scope of application. They are general in that they derive from other more specific legal rules. Thus, even a very specific subject may be governed by a general principle of law. Contrary to Audiolux, the concept of general principles of law cannot be limited to principles having a constitutional character. In the legislation of the European Union, the term ‘general principles of law’ is sometimes used with regard to principles enjoying precedence over secondary Community law; in other cases, the principle may have an equal or lower hierarchical rank. In private law, in particular, general principles serve as a vehicle for the conveyance of information on the subject matter, of the interpretation of legislation, and of the filling of gaps. The inductive derivation of a general principle of law from specific legal rules requires the Court to analyse the interests of the parties involved and to evaluate those interests in the light of the law of the Union.


Hugh Beale, Penalty Clauses in English Law

Abstract: Since 1915, English law has distinguished between penalties (which are unenforceable) and ‘liquidated damages’ (which are enforceable) by the criterion of whether the amount agreed to be payable is extravagant and unconscionable in comparison to a genuine pre-estimate of the loss. Recent cases have suggested that a clause may also be valid, though it was not a genuine pre-estimate of the loss, if it had a commercial justification and was not merely aimed at deterring breach or even if it was aimed at deterring breach, provided that there was a broader social interest in ensuring compliance with the contract. The latest cases have been appealed to the Supreme Court. In one, the appellants argued that the doctrine of penalty clauses should be abolished or at least dis-applied when the parties ‘met on a level playing field’. But total abolition would leave unsophisticated businesses unprotected and partial disapplication would be difficult without developed criteria to determine when the doctrine should apply. More promising approaches may be to exempt clauses that form the ‘core’ of the contract or to ask what the commercial purpose of the provision is and whether its effects are proportionate to that purpose. It might be difficult, however, to determine what types of clause should fall within such a control, and it may be that the Supreme Court will decide to deal only with clauses that are triggered by a breach and to consider the legitimacy of clauses that have a commercial purpose other than compensation and including deterrence, provided that the effects of the clause are not extravagant and unconscionable.

Jean-Sylvestre Bergé, La complémentarité du droit national, international et européen: Perspectives pour les individus

Abstract: The complementarity of national, international, and European laws is one of the most powerful illustrations of the general phenomenon of global legal pluralism. This contribution to the essays collected in honour of one of the most distinguished professor in Europe who studied the cross relationships between private law and European Union law illustrates the complementarity of the laws in situations which have a (vertical or horizontal) effect on individuals.

Résumé: La complémentarité du droit national, international et européen est l’une des grandes illustrations du phénomène de pluralisme juridique mondial. Cette contribution aux articles réunis à l’honneur du plus célèbre des professeurs en Europe à avoir travaillé à l’intersection des rapports entre le droit privé et le droit de l’Union européenne, illustre l’état de complémentarité des droits qui peut exister dans les situations (verticales ou horizontales) qui affectent les individus.


Marcel Fontaine, Les objectifs de l’harmonisation du droit des contrats – Deux projets OHADA et les Principes OHADAC: objectifs contrastés

Abstract: The trend towards harmonization of contract law is increasingly developing, but orientations may be very different, due not only to the respective contexts, but also to the nature of objectives pursued. The present essay describes and compares three recent harmonization projects, two in the African context of the Organisation pour l’harmonisation en Afrique du droit des affaires (OHADA), the third one initiated by the Organisation pour l’harmonisation du droit des affaires dans la Caraïbe (OHADAC). The first African project, as requested by the Council of Ministers of OHADA, took strong inspiration from the UNIDROIT Principles, as the intention was to elaborate a modern instrument apt to attract investors. This project, however, has not been adopted, in particular because of a marked reluctance to depart from the French legal tradition, which is prevailing in most (but not all) member States. An alternative project, based on a private initiative, is in the process of being elaborated, with the view to remain within the dominant legal tradition and to avoid disorienting practitioners. As to the project that has just been prepared in the framework of OHADAC, it takes much inspiration from existing uniform law instruments, including the UNIDROIT Principles. At the same time, it is mainly concerned not to retain rules which could appear to be unacceptable in certain parts of a region where the legal systems are very diverse.


Stefan Grundmann, ‘Towards’ a Private Law Embedded in Social Theory: Eine Skizze

Abstract: The article starts by pointing out that the organizational contract, characterized mainly by its long-term duration and its arrangement in networks, is just as important in practice as are simple exchange contracts. Nonetheless, in contract law doctrinal thinking, legislation, and also comparative law studies, it has received much less attention. In the present essay, the question is asked whether this state of affairs may not be due to the fact, at least in part, that core developments in other social sciences – in this case particularly in institutional economics and in the new economic sociology – have not properly been taken into account. In the first main part of the essay, it is indeed argued that the concept recognized in institutional economics of a relation-specific investment (O. Williamson) could well have been the basis for developing core needs for protection and a regulation satisfying these needs. The second main part of the essay explains that the concept of ongoing reciprocity described in the new economic sociology (W. Powell) as the core characteristic and key to the success of networks can be used as a solid basis for developing legal rules and duties. Thus, the organizational contract does not only seem to be “underrepresented” in legal discourse and legislation as compared with the simple exchange contract. It also casts light on how much law and legal scholarship can benefit from the insights gathered in other social sciences.


Martijn W. Hesselink, The Justice Dimensions of the Relationship between Fundamental Rights and Private Law

Abstract: This article explores the justice dimensions of the relationship between the Charter of Fundamental Rights and private law. It reaches three main conclusions. First, a partisan interpretation of the Charter and its horizontal effects in terms of controversial values would be difficult to match with the reasonable pluralism of worldviews characterizing the European Union (EU). Instead, the interpretation of fundamental rights should be guided by the demands of a political conception of justice that is acceptable to people adhering to divergent understandings of individual and common good. Secondly, courts and other interpreters of the Charter must distinguish between fundamental rights, freedoms, and principles in accordance with their respective moral content and cogency. The generic and hyper-positivistic reference to the ‘constitutional’ or ‘primary EU law’ status of the entire Charter is far too crude. In particular, human rights, which every person equally has by virtue of his or her humanity, should have much stronger force than merely instrumental freedoms and principles. Thirdly, the facts of the reasonable pluralism of worldviews and of the indeterminacy of the Charter and its horizontal effects together call for judicial restraint. Because the fundamental rights, as formulated in the Charter, strongly underdetermine private law rules and outcomes of civil disputes, courts should, in principle, be deferential in cases where the reasons and interests raised by a constitutional right claim have already been adequately addressed in a robust democratic process. From the perspective of justice in each of these dimensions, the Court of Justice probably has been too partisan and activist in some recent private law cases, such as Alemo-Herron.


Ewoud Hondius, Unfair Contract Terms and the Consumer: ECJ Case Law, Foreign Literature, and Their Impact on Dutch Law

Summary: In the late twentieth century, most European states have adopted legislation on unfair contract terms. The Directive 93/13/EEC on unfair terms in consumer contracts has effectively made the European Court of Justice (ECJ) the final arbiter in interpreting much of this legislation. The present paper explores the impact which the ECJ case law and foreign legal writing has had in an individual Member State, that is, the Netherlands. Seven issues are highlighted. (i) First, especially in the United States, information requirements as to contract terms have been investigated and found wanting. Although it must be conceded that not every consumer will read the small print even when enticed by the legislature to do so, this paper submits that such requirements do have some value. (ii) Contra proferentem interpretation is one of three age-old weapons against unfair contract terms; but, unlike the common law, Dutch law has not made much use of it. (iii) Dutch law has used the overt control over the introduction into the contract and the content of standard contract terms, but the result is of little use to guide parties, attorneys, and judges. Dutch case law, unlike that in Germany, is so much attuned to the circumstances of the case that it hardly establishes useful precedents. (iv) One of the first cases on unfair contract terms decided by the ECJ, the Océano case, caused a major discussion in the Netherlands. Should the Dutch legislature step in and change the sanction of avoidance or nullification into that of considering an unfair term not binding, or should the consequences of ex officio avoidance or nullification be left to the existing statutory provisions? The Hoge Raad eventually came to terms with Océano and the following ECJ case law in Heesakkers v. Voet. (v) An issue with regard to which Dutch courts have not yet had the opportunity to tie in with the case law of the ECJ is the problem of geltungserhaltende Reduktion, rejected in the Banesto case, which is in line with German case law. Until Banesto, Dutch case law had in fact accepted the device of geltungserhaltende Reduktion. This paper strongly supports the approach applied by the ECJ and German case law. (vi) Dutch law does not extend the control of unfair contract terms to the main subject matter. This is in line with the EC Directive and the case law of the ECJ (Kásler), and it is an expression of the rejection of the iustum pretium doctrine. The Nordic experience with handling unfair contract terms, without the exception for the main subject matter, demonstrates that the exception is not necessary. (vii) Finally, with regard to enforcement, the Dutch experience shows some surprising discrepancies with that in Germany. The two models may be described as the Dutch poldermodel and the German ‘battle’ model. The final paragraph sets out the conclusion of the foregoing analysis. In dealing with unfair contract terms, a collective approach should be favoured. Indeed, the Unfair Contract Terms Directive itself directs Member States to do so. Unfortunately, this is hidden for practitioners, because their understanding of the Directive will usually be limited to the part which has been transposed into national legislation, and the national legislation usually does not include the relevant provisions of the Directive. Also, it may be argued that a collective breach needs a collective remedy. This has been illustrated by two issues concerning unfair contract terms. The first one is the validity or invalidity of exemption clauses in standard terms. A second example is the question of the (in)validity of an arbitration clause in standard building terms.


Corjo J.H. Jansen, A European Civil Code and National Private Law: Lessons from History

Abstract: It is possible to distinguish three key historical motives underlying the formation of national civil codes: economic motives, reasons of state interest, and the interests of citizens. The question arises as to whether these motives can teach us something about the possibility of the successful implementation of a European Civil Code. The modern civil codes share a common legal tradition and, to some extent, a homogeneous legal culture, based on the reception of Roman legal rules and principles. A further question thus arises: Is it possible to derive inspiration from the ‘old’ ius commune for the formation of a European Civil Code?

Résumé: La formation des codes civils nationaux obéit historiquement à diverses considérations dont les trois principales sont celles d’ordre économique, celles tenant à l’intérêt de l’État et celles tenant aux intérêts des citoyens. L’identification de ces motivations peut conduire à se demander si elles recèlent des enseignements quant aux chances de succès de l’entreprise d’élaboration d’un Code civil européen. Les codes civils modernes s’inscrivent dans une même tradition juridique et partagent une culture juridique relativement homogène, toutes deux fondées sur la réception des règles et principes du droit romain. Cette observation soulève donc une autre question, celle de savoir s’il est possible de s’inspirer de ‘l’ancien’ ius commune pour élaborer le Code civil européen.


Sebastian C.J.J. Kortmann, Indirect Representation According to the Draft Common Frame of Reference

Abstract: This essay discusses the so-called actio directa and actio contraria, as laid down in the final edition of the Draft of a Common Frame of Reference (DCFR), that is, the possibility of a direct relationship between the principal and the third party in case of indirect representation.

In 1998, Arthur Hartkamp wrote an article entitled ‘Indirect Representation According to the Principles of European Contract Law (PECL), the UNIDROIT Agency Convention and the Dutch Civil Code’. All three sets of rules contain a provision for the actio directa as well as one for the actio contraria. Hartkamp shows that the differences between the three regulations are not significant. At the same time, he concludes that the provisions in the PECL are more clear and more consistently drafted than the others.

The DCFR also contains an actio directa (Art. III.-5:401) and an actio contraria (Art. III-5:402). These provisions differ substantially from those in the other sets of rules.

In this essay, a brief comparative survey is made between the first three sets of rules and the DCFR. In the DCFR, the actio directa is limited to situations in which the indirect representative has become insolvent. The arguments for this limitation are not convincing. Furthermore, the DCFR only provides the third party with an actio contraria if the principal initiates an actio directa against the third party. Thus, the principal is provided with more protection than the third party. There is insufficient justification for such protection.

Based on this survey, it can be concluded that the rules in the PECL are more balanced and consistent and lead to more equitable results than the rules in the DCFR.


Ole Lando, Unification of Patrimonial Laws Governing International Trade

Abstract: Should the laws of the world dealing with cross-border transactions be unified? Such unification presupposes an agreement on what we understand by ‘law’ and what its sources are. The drafters of uniform laws and lawyers who are preoccupied with comparative law often ask themselves: Is there, among the nations, a common core of legal values? If there is, this will facilitate legal unification. It will also make the international law-making easier if, in exceptional cases, a court is permitted to disregard a legal rule.

Résumé: Faut-il unifier les droits nationaux en matière de transactions transfrontières? Une telle unification présuppose une convergence de vues relativement à ce qu’il faut entendre par ‘droit’ et à l’identification de ses sources. Les rédacteurs de lois uniformes et les autres spécialistes de droit comparé se demandent souvent s’il existe un noyau de valeurs juridiques communes à toutes les nations du monde. Si c’est le cas, l’entreprise d’unification en sera facilitée. Cela rendra aussi plus aisée l’élaboration d’une règle internationale lorsque, dans des hypothèses exceptionnelles, un tribunal a la possibilité de s’affranchir d’une règle juridique.


Roel Van Leuken, Parental Liability for Cartel Infringements Committed by Wholly Owned Subsidiaries: Is the Approach of the European Court of Justice in Akzo Nobel also Relevant in a Private-Law Context?

Abstract: Although the European Court of Justice, in Akzo Nobel, expressly decided that the anti-competitive behaviour of a (wholly owned) subsidiary may be imputed to the parent company when both form part of the same economic unit, it is doubtful that this theory of identification really is at the base of the joint and several liability of the parent for the payment of a cartel fine. This article not only traces the actual basis of the competition law liability of a parent company for cartel infringements committed by a (wholly owned) subsidiary but also investigates whether that liability automatically translates into the civil liability of the parent company for damages suffered by third parties due to an infringement of competition law committed by a (wholly owned) subsidiary.

Résumé: Bien que la Cour de Justice ait explicitement affirmé, dans l’arrêt Akzo Nobel, que le comportement anticoncurrentiel d’une filiale dont le capital est détenu en totalité par la société mère peut être imputé à cette dernière lorsque toutes deux font partie d’une même unité économique, il est permis de douter que cette théorie de l’identification soit réellement la justification de la condamnation conjointe et solidaire de la société mère au paiement d’une amende pour cartel. Le présent article analyse non seulement le véritable fondement de la responsabilité, en droit de la concurrence, de la société mère pour les infractions en matière de cartel commises par une filiale détenue à 100 %, mais envisage également la question de savoir si cette responsabilité implique en outre, automatiquement, une responsabilité civile de la société mère pour les dommages subis par des tiers à la suite d’une infraction au droit de la concurrence commise par une filiale détenue à 100 %.


Hector L. Macqueen, Unilateral Promises: Scots Law Compared with the PECL and the DCFR

Abstract: This contribution compares the recognition of a general concept of unilateral promises, binding without acceptance by the promisee, in Article 2:107 of the Principles of European Contract Law (PECL) and Article II.-1:103 of the Draft Common Frame of Reference (DCFR) with the equivalent Scottish rule. The significance of this comparison is that the rule in question is significantly wider than that found in most other European legal systems, which tend to recognize only limited categories of unilateral promises or to impose a requirement of acceptance. Despite an authoritative restatement of the law by Lord President Gill in Regus (Maxim) Ltd v. Bank of Scotland plc [2013] CSIH 12, the Scottish courts have generally approached the concept in a restricted and restrictive way, although at least occasionally allowing it a role even in commercial cases. The decision of the UK Supreme Court in the Scottish appeal Royal Bank of Scotland v. Carlyle [2015] UKSC 13 poses a significant challenge to such caution, and the judges’ self-imposed restrictions are also inconsistent with the DCFR’s approach. On the other hand, the Scottish experience suggests that the DCFR’s requirement that notice of the promissory statement must reach the promisee to make it effective except when the statement is a public declaration may, in turn, be too demanding. It is also suggested, in opposition to a suggestion by Professor Martin Hogg, that from both the DCFR and the Scottish experience the conduct of the recipient after the statement is made may be relevant to the question of whether the statement can be treated as a binding promise.


Anna Maria Mancaleoni, The Obligation on Dutch and Italian Courts to Apply EU Law of Their Own Motion

Abstract: The European Court of Justice (ECJ) case law relating to the power of and the obligation on national courts to assess, of their own motion, the unfairness of contractual terms in consumer contracts under Directive 93/13/EEC has had a remarkable impact on national legal systems by introducing rules which often derogate from ordinary procedural rules and from the principles of judicial restraint and party autonomy. They also derogate from the traditional rules on contractual invalidity. This article, drawing extensively on the work of Arthur Hartkamp, summarizes the relevant legal framework on the EU level and in the Dutch and Italian legal systems and then focuses on two recent and groundbreaking judgments of the Supreme Courts of the Netherlands and Italy in order to assess the impact of the relevant EU law and to compare these judgments. With regard to the ex officio assessment of the unfairness of terms in consumer contracts, the comparison shows that the impact of EU case law has been greater in the Netherlands than in Italy, as the Italian regulation implementing Directive 93/13/EEC, unlike its Dutch counterpart, already provided explicit rules on the ex officio assessment of unfair terms by courts, similar to the rules subsequently established by the ECJ. Furthermore it emerges that the approach adopted in the Netherlands is restrictive with regard to the power of the court to raise ex officio the question of nullity. In Italy, on the contrary, that power is the characteristic unifying all forms of nullity laid down in the legal system, with the caveat that when the nullity is ‘protective’, as in cases of nullity provided by consumer law, the consumer can oppose the nullity (Pannon).


Hans-W. Micklitz, Überlegungen zu dem schwierigen Verhältnis von EU-Privatrecht und nationalem Privatrecht

Abstract: The present essay starts from the premise that many private lawyers share my intuition that the research field has received relatively little attention. There is an abundant debate about the Common Frame of Reference and the Common European Sales Law; but the influence of primary Community law on private law as well as the visible European regulation of private law in all its facets have been neglected. The structuring of the different levels of relations between EU and private law discloses specific deficiencies. In the final part of the essay the reasons are investigated which may lie behind this limited attention.

Résumé: Le point de départ de cette contribution est un constat partagé par de nombreux privatistes – l’importance limitée du sujet. Alors que le projet de cadre commun de référence et le droit commun européen de la vente ont été abondamment débattus, tant l’influence du droit européen primaire sur le droit privé que la régulation européenne de toutes les facettes du droit privé ont été négligées. L’analyse structurelle des différents niveaux de la relation entre le droit de l’Union européenne et le droit privé met en évidence les défaillances spécifiques à chacun de ces niveaux. La dernière partie de l’étude est consacrée aux raisons qui peuvent expliquer l’attention limitée portée à ces questions.


Frederik Peeraer, Ilse Samoy,  The Belgian Civil Code: How to Restore its Central Position in Modern Private Law?

Abstract: This essay addresses the status of the Belgian Civil Code in the twenty-first century. If the French revision process should have a successful outcome, Belgium will be one of the last countries to use a nineteenth century code. Does Belgium also need a revision of its Civil Code, or are there suitable alternatives? If a revision is advisable, a more fundamental question arises: How can a revised Belgian Civil Code cope with the stratification of private law and the multiple challenges every European legal system faces today?

The first part of this essay briefly elucidates the challenges for the Belgian Civil Code. The second part looks for suitable responses, including (but not limited to) a possible revision of the aforementioned code. The third part will argue that a modernization of the Belgian Civil Code is essential to restore its central position in private law. Since two of the key advantages of codes are their durability and their comprehensive scope, a modern Belgian Civil Code’s content should be limited to concepts, basic principles, and general rules. Any attempt to offer an overview of private law in its entirety in a single civil code can only be detrimental to those two key advantages. Because of the limited powers of a national legislature, the further development of the law can only result from collaboration between many different actors. An unremitting emphasis on the facts underlying hard legal questions and on the legal discourse is a necessary element of such a collaborative contribution.


Norbert Reich, Product Liability and Beyond: An Exercise in ‘Gap-Filling’

Abstract: This article discusses the impact of product liability law on product safety regulation, with special reference to ‘medical devices’. Four aspects are highlighted in particular: first, a short reference to the experiences of and controversies in the United States on this subject; second, an analysis of the recent case law of the Court of Justice of the European Union (CJEU), which interprets product liability law under Directive 85/374/EEC as a supplementary instrument of product safety regulation; third, an examination of the limits of product liability in cases of bankruptcy of the manufacturer, as in the case of the ‘affaire PIP’; and fourth, a discussion of the attempt to hold a so-called ‘notified body’ (i.e., the EU certification agency) liable for defective medical devices in the litigation concerning defective breast implants in terms of Directive 93/42/EEC and the relevant rules of national law. The German Federal Supreme Court has recently decided to refer the matter to the CJEU for a preliminary ruling and has argued that, under the EU effectiveness principle, product liability law has a regulatory function, especially when sensitive health issues, raised by defective medical devices implanted into the human body, are at stake – as in the ‘affaire PIP’.


Carla Sieburgh, The Attribution of Acts: Towards a Principled Assessment under EU and National Private Law

Abstract: Attribution of conduct almost necessarily touches upon the essence of a person, be it a private person (a natural person or a private legal person) or a public person. The result of such attribution may substantially restructure the essence of that person. Through attribution, a court moulds the person to whom the act is attributed into a shape that fits in with the court’s understanding of justice or of what a desirable result is. To prevent the ends envisioned by the court to drive it mechanically to attribute conduct to a person as if it were that person’s own conduct, a refined and balanced approach to attribution has to be adopted. The court must balance the interests of the person to whom the act is to be attributed, the interests of society as a whole, and the protection of the legitimate and reasonable expectations of third parties. With regard to the attribution of unlawful acts, the reasoning of the Supreme Court of the Netherlands in the case of Knabbel en Babbel may be a source of inspiration: The conduct of a person will constitute an (unlawful) act of another person if it is generally held in society that the conduct must be considered to be that other person’s act. Attribution of conduct of person A to person B as if it were person B’s own conduct can follow from the nature of A’s conduct and capacity, viewed against the background of relevant acts, omissions, and circumstances within the sphere of responsibility of B. Rather than proceeding on the basis of one principle that may be upheld or rejected in favour of another principle, it is advisable to start assessing attributability on the basis of all interconnected principles and interests. The assessment of attribution, which takes place in fields such as state liability, state aid, competition law, public procurement law, and the provision of Internet services, will thus reflect a broader range of arguments. Those arguments may derive from the fields of international and supranational laws just mentioned, from the branch in which a legal person is active, from private law doctrines regarding attribution (the protection of legitimate expectations within the ambit of agency law, the attribution of acts to a state, to a company, or to an employer on the basis of authority, the attribution of unlawful acts to a state, to an enterprise, or to an employer), and from human rights law. An approach is thus called for that seeks to reconcile respect for different aspects of persons: One may act as an official who observes the applicable regulations or as a person making use of one’s freedom of expression. This will improve the level of substantive justice achieved by the judgment.


Christiaan Timmermans, Horizontal Direct/Indirect Effect or Direct/Indirect Horizontal Effect: What’s in a Name?

Abstract: In private law doctrine, suggestions have been made to introduce a terminology relating to the phenomenon of horizontal effects of EU law that is different from the terminology used by EU lawyers. That terminology is designed better to accommodate the specificities of private law. By subtly changing the word order, private lawyers aim to cover under the label ‘direct horizontal effect’ only those cases in which EU law can be invoked with the consequence of directly affecting or modifying a private law relationship. Invoking European law to review national law in terms of its compatibility with European law is defined as ‘indirect horizontal effect’. This essay discusses the unfortunate consequences for legal practice of using two different sets of terminology, almost identical in wording, but substantially different in scope. A number of disadvantages of the terminology advocated by private lawyers are addressed, also in the light of the case law of the European Court of Justice. Finally, a suggestion is made to arrive at a uniform terminology attempting to accommodate both private law and EU law sensibilities.

Reinhard Zimmermann, Die Verjährung – von den Principles of European Contract Law bis zum Entwurf eines Gemeinsamen Europäischen Kaufrechts: Textstufen transnationaler Modellregeln

Abstract: In the international discussion concerning the law of (liberative) prescription (or: limitation) the following model has, over the past twenty years, established itself as the new „mainstream“: (i) There is a general short period of prescription of (usually) three years, counting from the time when the creditor knew, or could reasonably be expected to have known, the facts on which his right is based. (ii) It is supplemented by a long period of usually ten or (concerning personal injuries) thirty years, the running of which does not depend on reasonable discoverability. (iii) Prescription does not extinguish the right concerned; rather the debtor is granted a right to withhold performance. (iv) There is a range of circumstances leading either to a renewal of the period of prescription, or to its suspension, or to a postponement of its expiry. (v) The parties may modify the rules on prescription, though only within certain limits. This model, originating in the Principles of European Contract Law, can be found in all transnational model rules based on those Principles, i.e. Draft Common Frame of Reference, Feasibility Study, and Draft Regulation on a Common European Sales Law, as well as in the Principles of International Commercial Contracts. It has also been influential on the level of national law reform. There are, however, many differences, as far as the details of implementing this model are concerned. The present essay critically examines the changes which the text of the Principles of European Contract Law has undergone on the way towards the Draft Regulation on a Common European Sales Law. It cautions against the assumption that the most recent text is the best text. Rather, the older texts – though they also require improvement – should continue to be the starting point for further discussions concerning the law of prescription at the national and international level.


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