A COMMON CONTRACT LAW FOR THE COMMON MARKET

Abstract

“There is no discipline of legal science which has such a distinctly European character as the discipline of private law: : : ” These are the opening words written by the famous scholar Paul Koschaker in his book Europe and the Roman Law, published about half a century ago.1 The present-day reader is stunned: do these words refer to that very nationally-minded academic treatment of private law which we know today? Can a “distinctly European character” be ascribed to an academic discipline which frequently does not even notice what is going on abroad in its own domain? It is true that this confinement within domestic limits is often explained by the historical and positive character of the law,2 but isn’t this explanation, given in an era of national legislation, the outright negation of a European mind? Koschaker himself was aware of the progressive national contraction of legal science and of private law; he based his judgement exclusively on the fact that, for more than 850 years, the discipline of private law was “a not unessential cornerstone in the construction of that form that we call Europe today”.3 Is the identity of European private law no more than the identity of its historical roots? Is European private law a mere relic, pathetically mourned after the European catastrophe of the second world war? The aftermath of the