Draft Common Frame Of Reference Research Articles

Transfer of Contracts under German Law

The paper analyses the historical development of the transfer of contracts under German Law, regarding the principle of succession for the assignment of claims and the assumption of debts and the influence of the German Federal Court of Justice on the transfer of shares in a company. It also provides a dogmatic framing of the subject and shows the prerequisites for a valid transfer of contracts under German Law. Additionally, the paper outlines the protection of succession in contract law and how the Draft Common Frame of Reference codified the transfer of contracts. Finally, the author argues for the statutory addition of a third variant, of private assumption of debt, which is effective without the creditor’s consent.

Standards of the European Union (DCFR) in the sphere of regulation of non-contractual ob-ligations and problems of their harmonization in the inheritance law of Ukraine

Within the scope of this article, an analysis of the situation existing in the field of unification of those norms of national law of Ukraine, which directly regulate non-contractual obligations arising as a result of the death of a natural person, or his recognition as deceased in the field of inheritance law, is carried out. The specified non-contractual obligations in inheritance law are possible thanks to the structure known in Roman law as "legatum", and, quite successfully, entered into the current private law of most countries of the European space. In the civil legislation of Ukraine, this construction is called "testamentary disclaimer", it is an order of the testator, which is established in the will, and provides for the possibility of imposing on the heirs under the will the obligation to realize certain property benefits for the benefit of third parties - beneficiaries.
 Similar constructions are provided for by private law codifications of other European states, including the states that are members of the European Union. At the same time, despite the similarity of the legal nature of this institution, as of today, there is no single legal mechanism in the legal regulation of legal relations that are similar in nature in this area.
 At the same time, it is appropriate to consider the Project of a common reference scheme, which includes principles, concepts and model rules of European private law (Principles, Definitions and Model Rules of European Private Law. Draft Common Frame of reference (DCFR).
 In the work, the types of non-contractual constructions provided for by the DCFR are formed, distinguished and analyzed, primarily, their dialectical classification, architecture and place in the system of inheritance law. Emphasis is placed on rethinking and solving some problems in the inheritance law of Ukraine, from the point of view of new world realities.

Zaključenje ugovora i pravna sigurnost - primena međunarodnih standarda u srpskom ugovornom pravu

The paper addresses the rules governing the conclusion of contract from the aspect of the prevailing international standards in this area and their comparison with the appropriate solutions of the Serbian Law of Obligations. The international standards in the field of conclusion of contracts have been analysed primarily in the light of the relevant rules of the CISG, as one of the most widely accepted international conventions in the field of contract law, while also giving due consideration to the solutions of other important international documents and projects of uniform contract law, such as UNIDROIT Principles of International Commercial Contracts, Principles of European Contract Law and the Draft Common Frame of Reference for European Private Law. Among the plethora of issues relevant to the conclusion of the contract, the paper places the focus on those which seem most important from the perspective of their comparative analysis with the solutions of the Serbian Law of Obligations: negotiations, offer (contents of the offer, to whom the offer is addressed, revocability of the offer), acceptance of the offer (contents of the statement indicating acceptance of the offer) and the time of conclusion of the contract. Each of these issues has been separately analysed and evaluated in an endeavour to identify those solutions that contribute to achieving a higher degree of legal certainty in the relations arising from the contract conclusion, without standing in the way of party autonomy in this area.

Rękojmia za wady sprzedanych praw i dóbr niematerialnych w ujęciu historycznym i prawnoporównawczym

The paper deals with historical and comparative legal analysis of the subject of warranty for physical and legal defects. A brief review of European legal orders shows that they are generally oriented towards things (variously understood as tangible or intangible objects). However, modern trade is characterized by an increasing dematerialization of its components. It justifies the question of how the European legal orders and some model acts solved (in the past) and still solve the problem of seller’s responsibility for the sold rights and intangible objects. First, a historical analysis will be made of two issues – the concept of ‘thing’, as well as the object of property, and the object of the sale contract (and at the same time the regime of seller’s responsibility for defects). In the second part, the analysis from the comparative legal perspective will be made, covering selected legal orders in the field of the contract of sale of rights and liability of the seller for defects of these objects. The research has been based on the following legal systems: Austrian, French, German and Swiss. In addition, the Convention on Contracts for the International Sale of Goods (CISG) and the model law – the Draft Common Frame of Reference (DCFR) were analyzed.

The doctrine of hardship in contract law: comparative study

The article analyzes the doctrine of hardship in the contract law of Ukraine, France, Germany, England. The grounds for modify ing or terminating the contract due to a hardship are analyzed. A comparative analysis of the court ’ s powers to modify the contract in connection with a hardship is carried out . In French civil law the doctrine of l’imprévision covers all situations in which a party’s contractual obligations have become harder and more onerous to perform because of an unforeseen event posterior to the conclusion of the contract. The conception of hardship was introduced to Ukrainian Civil Code in 2004 for provide the contractual parties to overcome the negative impact of a change of circumstances that was unforeseeable at the time of the conclusion of the contract and renders performance excessively onerous for one of them . This provision is aimed, on the one hand, to restore the balance of interests in contractual relations and to reduce risks, and on the other hand, to keep the contract, as far as possible, preference given to the adaptation of the contract over its termination. Unfortunately, the case law indicates difficulty in implementing the provision of hardship. In English law doctrine is formed the concept of frustration. The only remedy for frustration in common law is termination of the contract; and termination is permanent – English law does not recognize partial frustration nor temporary frustration. German doctrine of hardship has been conceptualized into three aspects requiring a change of circumstances, the parties would not have concluded the contract if they had been aware of this change, and it would not be equitable for one party to deny the other party any amendment of the contract. German approach has been adopted in many harmonization projects and international instruments of contract law, in particular Principles on European Contract Law, Draft Common Frame of Reference, UNIDROIT Principles of International Commercial Contracts. In French, English and Germany law is established three different approaches to cases of contractual impossibility as an exception to pacta sunt servanda: contractual parties are not discharge unless performance has become impossible; as exception for impossibility to some cases; or as separate exception. The main problem nowadays is the lack of definition of “ significant change of circumstances ” in Ukrainian legislation and case law. Such a rule seems to increase legal uncertainty as the criteria of its implementation are vague and have not yet been firmly and precisely defined by case law. In most cases, the courts do not recognize the change of circumstances referred to by the party as significant. Ukrainian c ivil law doctrine defines “ significant change of circumstances ” as change of circumstances that did not depend on the will of parties and was the result of certain actions from the outside; and contains four features: was unforeseeable at the time of the conclusion of the contract, its duration and inevitability, arise without fault of the parties. The law of many states and international soft law gives courts power to modify or terminate the contract in case of change in circumstances. French Civil Code not contains certain grounds in the event of change in circumstances to modify or terminate the contract. They are the same as in case of contract modification or termination by parties. In contrast, Ukrainian legislator decreases significantly judicial intervention in contractual relations. The power of Ukrainian courts to modify the contract is based on the general principles of contractual freedom, if parties in contractual terms lay down modification the contract in case of change in circumstances that was unforeseeable at the time of the conclusion of the contract renders performance excessively onerous for a party.

Umowa sprzedaży nieruchomości jako rzeczy przyszłej na tle prawnoporównawczym

In this article the author presents the construction and functions of a contract of sale of future goods, in particular pertaining to real property under construction. The sale of future goods contract guarantees the buyer that he will obtain the property right of the sold good automatically upon its existence (or sometimes at a later stage), the seller, that he will sell this good to the buyer. Consequently, the buyer may gain from the fact that the seller will not sell such goods to a third party and the seller may gain the price paid upon the signature of the contract, which will enable him to finance the construction of the future good. Such benefits of the sale of future goods contract can also be used in order to sell real property that is under construction. The guarantee and financing function of the sale of future goods contract is especially important in real property development projects. The sale of future goods contract has been evolving since ancient times. Presently, this type of contract has been experiencing a dynamic evolution, especially in respect to future real property. Such an evolution is though subject to legal regulations pertaining to the transfer of ownership rights of real estates that are in force in different national legal systems. Polish regulations incorporated in the Civil code enable parties to conclude sale of future goods contracts. Upon the signature of such a contract, the buyer obtains the right to acquire the ownership right of the future good. The ownership right is transferred onto him at the time when the buyer obtains the possession the now existing future good. Regulations pertaining to sale of real property differ substantially in most European countries. In some, such as Poland and Germany, real property may not be sold under the condition that it will be erected by the seller, or a third party in the future. Only existing real property may be sold. Such regulations are justified by the need to ensure the certainty of real property sales. In other countries, such as France, future buildings or apartments may be sold under a contract La Vente l’Etat Futur d’Achevement (hereinafter called VEFA). Under such a contract the buyer acquires all the existing parts of the sold real estate, while the remaining part – which is to be constructed – is acquired by the buyer automatically during the process of the construction. The seller receives his remuneration upon the completion of consecutive stages of the construction process. Also it is important to mention the construction of the sale of future goods contract as regulated in the Draft Common Frame of Reference. There, apart from the obligation of the seller to transform onto the buyer the real property rights of the sold goods, the seller is obliged to make all other necessary actions in order to enable such a transfer of rights. If the Draft Common Frame of Reference would be referred to the sale of future real property under construction, such an obligation would include the obligation to construct the real property. The analysis in this article indicates that the sale of real property under construction has been regulated in some countries and that such constructions as VEFA have had a positive impact on these legal systems. Such regulations stimulate the real property development sector and ensure better protection of consumers buying future real property. Also, as it has been shown, that the European model rules of the Draft Common Frame of Reference clearly underline the importance of the sale of future goods functions. These – namely the guarantee and financing functions – may also be used in the construction of a sale of future real property contract.

Redukcja utrzymująca skuteczność na tle projektu Księgi Pierwszej Kodeksu cywilnego

The article discusses the concept of the so-called “reducing upholding enforcement” (validity) of juridical acts in the light of the draft of Book One of the new Polish civil code (published in 2008). The draft contained a dedicated legal basis allowing courts to reduce the terms (i.e. contractual rights or obligations) of a contract which is invalid – it is so called “reducing upholding effectiveness”. In the article an analysis has been carried out of the most important theoretical and practical backgrounds. The main concern is about the scope of the judge’s power to reduce or even revise the term of the juridical act (contract) and its limit. The comparative context of reduction has also been presented. Reduction is one of the ways to avoid nullity of the juridical act, especially contract clause and is one form of partial invalidity. The main function of it is to protect parties from the disadvantageous and sometimes unexpected effects of invalidity, especially those effects for a party protected by the sanction of nullity (“weaker party”). Reducing the scope of the void term leads to the legal effects of a juridical act remaining in force to the extent allowed and valid in the realm of private law (for instance to cut out the part infringing mandatory rules). This paper includes also comparative remarks on the admissibility of such a reduction in chosen legal systems ius civile and common law tradition. Amongst ius civile systems the doctrine of reduction is widely accepted in German law (called Geltungserhaltende Reduktion). In the common law tradition, reduction is rather inadmissible as a principle. There is a restrictive approach for partial invalidity within the doctrine of severance in contract law. Even though the severability of the contract is only partly invalid, it is widely recognised that reducing invalid contractual terms is hard to accept because of the blue pencil rule and prohibition of such interventions in contractual matters. The article discusses exceptions which can be found in some countries (especially New Zealand or Québec law on illegal contracts). The fundamental problem arising in the area of reducing upholding effectiveness is connected with the fine line between reducing the scope of a void term as a part of the juridical act and revising the matter hidden behind the invalid part of the juridical act. In other words, with the limitations of the courts’ discretion in rewriting an invalid clause. Effects which are intended by reducing the scope of a void term can be achieved in other legal ways. The main alternative is the concept where the sanction of invalidity is established by the judge – in a structured discretion form - which was proposed in the model rules of The Principles of European Contract Law and Draft Common Frame of Reference. That approach reveals some aspects of a structured discretion useful to propose some amendments for the Polish normative basis of reduction. These are statutory factors which are supposed to be taken into consideration when a court exercises its power to sever, reduce or revise an invalid clause or obligation. One basic factor should prevent the so called innocent party from suffering injustice flowing from making a part of a juridical act null and void. This could be done by refusing partial invalidity and instead reducing or revising the invalid part (especially contract term). A version of a legal ground presented by the draft of Book One of the new Polish civil code to reduce the scope of the juridical act clause should be accepted as a step forward in the promotion of justice and efficiency of private law regulations. Implementation of that legal doctrine is supposed to be more detailed and include some aspects of structured discretion i.e. factors limiting the courts’ power to reduce or revise a void clause.

Breach of contract

This contribution uses J & H Ritchie Ltd v Lloyd Ltd 2007 SC (HL) 89 as a peg on which to hang a number of fundamental questions about contract: What is a contract? Does the word ‘contract’ sometimes refer to a legal relationship rather than a juridical act? If so, does this matter? Is the law on implied terms satisfactory? Might a duty of good faith and fair dealing in contract law be a better way of dealing with certain problems than resort to the implication of terms? When is a breach of contract serious enough to justify cancellation or rescission? Should a supplier of defective goods have a right to cure the defect? Is there a risk of forgetting the difference between a right to withhold performance and a right to rescind or cancel? These questions are prompted by the fact that this was a straightforward case and similar situations must occur regularly. Yet, different judges reasoned differently and came to different conclusions in the course of the case being appealed all the way to the House of Lords. The question, therefore, is: how might a simple case have been better, or in a more straightforward way, approached through law? The contribution argues that the Draft Common Frame of Reference (the DCFR) provides both concepts and rules that would have reached the ultimate conclusion in Ritchie much more quickly and perhaps the case would not have needed to be litigated at all.

Bank Guarantee: Significance and Regulation Issues of the solvet et repete Principle

Bank Guarantee: Significance and Regulation Issues of the solvet et repete Principle

Fiduciary management and fiduciary ownership in the post-Soviet countries: experience of Ukraine, Republic of Moldova, Republic of Belarus and Russian Federation

Abstract The focus of this research is to define the common and distinctive features of the approaches used by lawmakers in the post-Soviet states (Ukraine, Republic of Moldova, Republic of Belarus and Russian Federation) for the purpose of implementing fiduciary management and fiduciary ownership institutes into their respective national laws. It has been established that over the course of the fiduciary management and fiduciary ownership institutes development in the countries referenced above, similar solutions were initially applied. Thus, an effort was made to implement the institute of trust inherent in the common-law countries into the systems of civil law. However, the effort did not come to fruition and that resulted in the fiduciary management institute being implemented. However, notwithstanding the similarities in the general approaches to determining the content of the fiduciary management provisions in all post-Soviet countries, the situation in Ukraine came out to be different from that in other countries. Following the adoption of the Civil Code (CC) of Ukraine with the fiduciary management institute enshrined therein, the Code was amended by adding the provisions on fiduciary ownership, but typical for the Civil Law countries. Over a long period of time, the Ukrainian legislation was the only one that referred to the institute of fiduciary ownership (fiducia), but due to recent dramatic overhaul, the CC of the Republic of Moldova was amended by the provisions on fiducia as well. This research represents a review of modern statutory provisions of Ukraine, Republic of Moldova, Republic of Belarus and Russian Federation covering fiduciary management and fiduciary ownership, including identification of common and distinguishing features thereof. It is found that as of today, the laws of the Russian Federation and Republic of Belarus do not go beyond fiduciary management, whereas those existing in the Republic of Moldova and Ukraine refer to both fiduciary management and fiducia institutes. Outlined in the research are differences between fiduciary management, trust and fiducia. The research also offers an insight into the degree of influence the Draft Common Frame of Reference and provisions of the CC of Romania and CC of France, those related to trust and fiducia, had on the formation of fiduciary ownership concept in the legislation of the Republic of Moldova. Also included in the research is the analysis of the latest changes in the legislation of Ukraine, related to the introduction of fiduciary ownership as a means to secure the performance of obligations.

Institution of the contract transfer in the light of model law acts

The transfer of a contract is a legal structure that allows you to transfer to the third party the rights and obligations of one of the existing parties to the contract. Nowadays, only a few European legal orders have decided to regulate this institution explicitly. In other cases, the admissibility of performing this activity is derived from the principle of freedom of contract. The problem of the widespread functioning of this structure in the absence of relevant standards has been noticed by the creators of numerous model law projects, the PECL Principles, Draft Common Frame of Reference and UNIDROIT Principles. Each of these soft law acts contained at least a rudimentary regulation of the transfer of contract, which was clearly separated from the structure of debt assumption and assignment of debt.

The Equalisation of Benefits (Compensatio Lucri Cum Damno) in the Italian Law. A Possible Inspiration for Other European Member States?

The Compensatio Lucri Cum Damno concerns cases in which the behaviour of the wrongdoer caused both damages and advantages to the victim. The question is: when and under which conditions such advantages can be set-off against the liable person’s obligation of paying damages? On the contrary, should such mitigation of liability be denied? In 2018 the Italian Highest Courts established principles with regard to these questions, but only with reference to the specific cases submitted to their attention. This article shows how the Italian Courts were inspired by the common principles of European private law and the comparative method with regard to: i) the impossibility of stating a general rule (thus, the necessity of proceeding for categories and classes of cases), and ii) the necessity of looking at the purpose of the benefit, rather than at the causal link between tort and advantages. The author believes that the criteria identified by the Italian case-law for the deductibility of benefits from damages might be of inspiration for other European Member States. Furthermore, it is here highlighted that the Italian Highest Courts made decisions on Compensatio Lucri Cum Damno using an argument explicitly based on the Soft Law and this could strength the effect of the moral suasion within the Draft Common Frame of Reference and the Principle of European Tort Law.

Duty to renegotiate in international commercial law and uncontemplated behavioural effects

This paper explores possible uncontemplated effects and behavioural implications created by duty-to-negotiate provisions in international instruments. More precisely, the paper considers how five different international instruments approach the subject, namely the Convention on Contracts for the International Sale of Goods (CISG), UNIDROIT Principles of International Commercial Contracts (PICC), Principles of European Contract Law (PECL), Draft Common Frame of Reference (DCFR) and Common European Sales Law (CESL). The extent to which these international and European legal instruments correspond to recent economic and behavioural findings is examined. Moreover, an economically inspired analysis is conducted of the uncontemplated consequences of the duty to renegotiate that well-intended international lawmakers never anticipated. Further, it is suggested that game theoretical and behavioural reasons might exist for adopting a cautious approach to the duty to renegotiate in instances of unforeseen contingencies as found in the CISG as well as the English, German, US and Scottish law of contracts. JEL classification: C23, C26, C51, K42, O43

L’évaluation du DCFR au regard de la problématique de la perte de chance et de la causalité alternative

The Draft Common Frame of Reference is an academic instrument for the harmonization of private law between EU States and was drafted in 2006 by the Study Group on a European Civil Code and the Research Group on Existing EC Private Law (the ‘Acquis Group’). Beyond its aim of a future European Civil Code, the DCFR is an academic work which provides a comparative analysis of private law between EU countries and it is also an example for future and current national reform of private law. This essay analyses chapter 6 of the DCFR which concerns ‘Non-contractual liability arising out of damage caused to another’ and, more specifically, the area of loss of chance and alternative causation. On the first hand, DCFR tries to harmonize the controversial area of loss of chance as an independent form of damage, one can however conclude that the aim of the DCFR is not reached. On the other hand, concerning alternative causation, the DCFR distinguishes two situations, the ones where multiple potential authors caused a damage to one victim, and the ones where multiple potential authors caused a damage to multiple victims. The solution adopted for each situation is different from the one adopted by the Principle of European Tort Law (PETL), which is another project of harmonization concerning torts specifically.

The principle of good faith and fair dealing in English contract law

Given that continental civil law scholarship applies the concept of good faith in either a subjective (honesty in fact) or objective sense (good faith and fair dealing), the present article focuses on the latter one. The traditional view in England and Wales discards the recognition of a general principle of good faith and fair dealing in English law. English courts have adopted a piecemeal solutions approach (as shown by the judicial decisions issued in Interfoto Picture Library (1987) and Walford v. Miles (1992)). Meanwhile, the principle in question, along with the concept of the freedom of contract, is one of the most important principles of the continental civil law tradition (cf. art. 1104 of the French Civil Code, § 157, § 242 of the German Bürgerliches Gesetzbuch, art. 2 (1) of the Swiss Zivilgesetzbuch, art. 6:2 Burgerlijk Wetboek, art. 5 of the Polish Civil Code, art. 2 (1) Common European Sales Law, art. 1:201 Principles of European Contract Law, art. III1:103 Draft Common Frame of Reference). The current work analyzes recent English case law (in particular Yam Seng (2013)), which seems to acknowledge the principle of good faith and fair dealing while rejecting the traditional view mentioned above. The comparative approach — references to American, and Commonwealth law, as well as to that of particular European states — is taken into account. The author claims that hostility to the concept of good faith in an objective sense in English law is superficial. One may expect that in the near future courts in England and Wales will follow the path taken by courts in the United States (§ 205 of the Restatement (Second) of Contracts (1981)), Australia (Renard Constructions (1992)) and Canada (Bhasin v. Hrynew (2014)), and they will finally recognize good faith as an underlying principle.

Main provisions of lease agreement: draft common frame of reference and civil code of Ukraine

In the context of the adaptation legislation to the European standards, the article presents a comparative analysis of the norms of contractual lease obligations on the basis of acts of EU legislation and national code. Determine the main definitions, content and form of the lease agreement in both legislative acts. The aim of the research is to make a comparative analysis of the norms of European legislation and national legislation based on the CCU and DCFR. Based on the analysis of the application of definitions, we can conclude that the DCFR – generalized use of property under one definition, and in our opinion, it is more acceptable for ease use in practice. We believe that the legislation should apply the unified terminology of the most important institutions.

New EU legislative instruments concerning contracts for the sale of goods and supply of digital content

On the 20th of May 2019, the European legislator adopted new Directives on the sale of goods and supply of digital content, which determine the vector of future contract law development in the European Union. Directive 2019/770 on certain aspects concerning contracts for the supply of digital content and digital services, and Directive 2019/771 on certain aspects concerning contracts for the sale of goods are the first steps in adapting European private law to the requirements of the digital economy. The article discusses the reasons and preconditions for the adoption of new Directives. The authors, making a historical excursion of the harmonization of European contract law, demonstrate the continuity of the new Directives’ norms of European tradition on the basis of Principles of European Contract Law, Acquis Principles, Draft Common Frame of Reference, Common European Sales Law and Directive 1999/44/EC on certain aspects of the sale of consumer goods and associated guarantees. The advantages and disadvantages of the selected full harmonization in new Directives are examined. The legislative freedom granted to European Union Member States on certain issues related to contractual relations for the sale of goods and the supply of digital content are analyzed. The authors pay considerable attention to the disclosure of major legislative novelties related to contractual relations for the sale of goods and the supply of digital content, in particular the conformity of goods (digital content), and requirements for conformity; the seller’s (trader’s) duty to ensure that the consumer is informed of and supplied with updates that are necessary to keep those goods (digital content) in conformity; the burden of proof; data monetization; remedies for lack of conformity of goods (digital content). The problem of the hierarchy of remedies for lack of conformity of goods in a circular economy, such as repair and replacement, is also touched upon. The authors draw attention to the fact that taking into account the peculiarities of the circular economy and in order to determine the disproportion of the chosen method of legal protection, it is necessary to enshrine in legislation on the sale of goods the requirement to take into account its impact on the environment.

Towards normatively limited judicial sanction [structured discretion] as a proportional response to the defectiveness of legal action (contract) in modern legal transactions

The primary purpose of the legal considerations herein is to indicate the direction of the modernization of the legality of control mechanisms in modern legal transactions. At the base of these transactions there is still the traditional, dogmatic sanction of nullity (invalidity) regulated by law (ex lege), and the legal effects of a defective legal action (contract), i.e. an action contrary to law or moral norms. In consideration of disproportionality and ineffectiveness of the nullity sanction under new conditions, jurisprudence and legislation have directed their attention to the limited judicial sanction (structured discretion) originating from the common law tradition as a proportional and flexible response to the defectiveness of legal action (contract). The statutory judicial sanction, which became the basis of the reform on the concept of illegality in common law countries, have found expression in the model rule of European private law. The Principles of European Contract Law (PECL) and the Draft Common Frame of Reference (DCFR), the latter of which revises and updates the PECL, are the primary references for the model rules of contract law in the EU. The PECL and the DCFR have affected the concept of the defective sanction of legal action (contract) in the new Civil Code, drafted by the Polish Civil Law Codification Commission.

Harmonising Private Law in Cyberspace: The New Directives in the Digital Single Market Context

This article is an overview of the latest developments in EU private law in the Digital Single Market context. After several years of uncertainty, in 2019 the EU adopted directives on the sale of goods (Directive 2019/771) and distance sale of content and services (Directive 2019/7770). Both directives are an important upgrade of the present consumer protection regime as well as an addition to the significant list of instruments promised in the 2015 Digital Single Market strategy. This article has two purposes: the first is to establish that the directives are not completely novel but are a result of the tradition dating to Principles of European Contract Law (PECL), Draft Common Frame of Reference (DFCR) and Common European Sales Law (CESL). We also aim to question the basic suitability of civil law as a tool for regulating the Digital Single Market, in particular in light of the new technologies (AI, smart contracts, big data, robotics, etc.) We conclude that, while the directives are an important addition to the body of harmonized EU private law, the problems of new technology may need to be addressed separately and that, technology on occasion (e.g. smart contracts) has the capacity to fulfil the tasks used to be given to civil law.

The Standardisation of the Leasing Contract Under Italian Law and the Unidroit Principles

Despite its financial nature, for over forty years, Italian case law has classified the financial leasing contract as an atypical contractual form, often qualifying it as a sale or rental agreement. In this respect, various indexes were formulated, such as the amount of the rental fees and the existence of a redemption agreement. In August 2017, the Italian legislator sought to standardise the leasing contract under the law, attempting to define its contractual form and to regulate certain aspects, such as the lessee’s breach and possible consequences deriving from its termination. The comparison between the approach taken by case law prior to the legislative reform and the new regulatory framework shows that the legislator did not transpose the long-established jurisprudential outcomes into the reform. Instead, through comparing the legal reform with the UNIDROIT Principles (The Ottawa Convention and the Model Law), it would appear that the new legal framework closely resembles the solutions adopted therein. Conversely, it is clear that the legal reform does not incorporate the rules adopted by the Draft Common Frame of Reference.