Contract Formation and Mistake in European Contract Law: A Genetic Comparison of Transnational Model Rules

Abstract

The article examines how the rules on formation of contract and on mistake, contained in the various transnational model rules that have been published over the past two decades, have taken shape. The approach adopted here is based on an analysis of the ‘textual stratification’ of European private law. The relevant instruments (Convention on Contracts for the International Sale of Goods, Principles of European Contract Law, UNIDROIT Principles of International Commercial Contracts, Draft Common Frame of Reference, Principes contractuels communs) are analysed and compared in their historical sequence. To what extent and why have the texts been transformed in the process? The article demonstrates that there is a very considerable common ground reflecting the state of the art of comparative research in these fields over the past hundred years. It also highlights issues on which consensus must still be reached and it suggests patterns towards reaching such consensus. It is argued that the Principles of European Contract Law, rather than the Draft Common Frame of Reference, should provide the point of departure for future discussions. The scene for the article is set by a critical examination of the concepts of contract and legal act, as used in the Draft Common Frame of Reference. * Nils Jansen is Professor of Roman Law, Legal History, German and European Private Law at the Institute for Legal History, Westfalische Wilhelms-Universitat Munster. Email: nils.jansen@uni-muenster.de Reinhard Zimmermann is Director at the Max Planck Institute for Comparative and International Private Law, Hamburg. Email: r.zimmermann@mpipriv.de. A German version of this article has appeared in (2010) 210 Archiv fur die civilistische Praxis (hereafter AcP) 196. We would like to thank Sandy Steel, Cambridge, for assisting us with the preparation of the English text. The model rules under discussion are abbreviated throughout as follows: ACQP I/II: the Research Group on the Existing EC Private Law (Acquis Group), Principles of the Existing EC Contract Law (Acquis Principles): Contract I (Sellier 2007); Contract II (Sellier 2009). DCFR: C von Bar and E Clive (eds), Principles, Definitions and Model Rules of European Private Law: Draft Common Frame of Reference (DCFR), Full Edition, 6 vols (Sellier 2009). PCC: Association Henri Capitant, Societe de Legislation Comparee, Projet de Cadre Commun de Reference—Principes contractuels communs (Societe de Legislation Comparee 2008); for an English version (black-letter rules only) see B Fauvarque-Cosson and D Mazeaud (eds), European Contract Law. Materials for a Common Frame of Reference: Terminology, Guiding Principles, Model Rules (Sellier 2008) 573–614. PECL: Principles of European Contract Law, O Lando and H Beale (eds), Principles of European Contract Law, Parts I and II (Kluwer 2000); O Lando, E Clive, A Prum and R Zimmermann (eds), Principles of European Contract Law, Part III (Kluwer 2003). The Author 2011. Published by Oxford University Press. All rights reserved. For permissions, please contact the authors. Oxford Journal of Legal Studies Advance Access published September 20, 2011 at U nirsity of O lo Lrary on S etem er 2, 2011 ojls.oxjournals.org D ow nladed fom