A Methodological Approach for a European Restatement of Contract Law

Abstract

The aim of the article is to offer a contribution to the debate on European codification by focusing the attention on methodology. At present, the contributions of legal science to the European civil code debate are still not supported by a clear methodology, which seems indispensable to clarify, among the different aspects, the real utility of a supranational code. This is probably caused by the fact that the problem of a possible European codification is a rather recent research field: however, as will be demonstrated, not only European codification is the ideal ground to examine the methodological differences of various disciplines, which analyse codification attempts, but such an examination could give rise to a profitable synergy. Two new methodological approaches to European codification will be proposed: Comparative Law and Economics and Modern Law and Economics. On the basis of these methods, I will try to analyse the advisability of enacting a Restatement of European contract law. Such an analysis is needed not only because at present the enactment of a European Civil Code is not technically possible - given the lack of a provision in the Treaty of the European Community upon which the creation of a European Civil Code could be based and the lack of an answer to the question whether or not a European Civil Code will lead to efficient results according to the subsidiarity principle – but also because the combined use of different methodologies suggests to chose this model. A Restatement should then not be seen as a second best choice, given the difficulties of intuducing a binding civil code, but as a truly alternative model for harmonisation or unification of the law in Europe.