Towards a European Private Law: To Harmonise or not to Harmonise, that is the Question

Abstract

There is an increasing number of scholarly legal publications which favour a far-reaching harmonisation of private law or even a European Civil Code (Lando, Hartkamp etal). In these publications the question whether a European private law is desirable is no longer seriously examined. The questions asked rather relate to how and when private law will be harmonised. An overzealous harmonisation of private law may generate more costs than benefits, however. Economics provides a powerful analytical framework by which to analyse the pros and cons of the realisation of a European private law. Since Claus Ott on many occasions expressed the hope that Law and Economics would play an important role in the search for a new European ius commune, I will use his favoured interdisciplinary approach to assess the need for a European private law.