European Private Law Research Articles

Towards a Critical Theory of Justice in European Private Law

Abstract: This paper formulates core elements of a critical theory of justice in European private law. First, it discusses the focus, scope and priorities of a justice approach towards private law. Then, it critically examines the injustice of certain core features of European private law’s basic structure. Finally, it briefly considers some key differences between the critical justice theory of European private law and most other private law theories.

FORESEEABILITY OF DAMAGES IN THE EUROPEAN PRIVATE LAW: KEY POINTS

the article deals with foreseeability of damages issue in the European private law.

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.

Characteristics of modern European contract law

European contract law has recently entered a new phase in its development as a result of the introduction of new legislation responding to the challenges posed by digitalization and, in particular, the supply of digital content and digital services. Whereas the new legislation contains several characteristics which reflect a continuity of concepts already well-established in European contract law, several innovations have been necessary in order to take account of the specific features of these digital products and the manner in which they are supplied. The legislative responses will play a pivotal role not only in consumer protection but for European contract law. This article will focus in particular on two new “twin” directives: 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. In examining the core features of these two Directives, this article will consider how their new and innovative characteristics which respond to the challenges of digitalization can contribute towards a modern European contract law. These new approaches in European legislation clearly show that the further development of contract law is facing challenges that go beyond this area of law. The modernization of contract law therefore raises questions that must ultimately be directed at clarifying the overarching features of European private law as a whole. Finally, the relationship between the law of obligations, on the one hand, and property law or intellectual property law, on the other, and possibly a new definition of the boundaries and interaction between these areas, can be considered if contract law recognizes data as an asset, but it will not be able to guarantee sufficient protection of these assets with its instruments alone. Embedding the new concepts, principles and rules in the field of contract law in the development of private law as a whole, in line with the changes in the “digital age”, will therefore remain a major task for legislation and legal doctrine in the EU and beyond.

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.

Europeanization of private law as a hermeneutic and civilistics problem: an approach to the interpretation law institutionalization

The article deals with the problems of the civilistic institutionalization of the interpretation law in the context of the Europeanization of private law. The basis of this study is the application of civilistic methods to investigate this problem. This article deals with the comprehensive study of the legal integration of the private law systems of the EU Member States and other European countries. In Comparative Law, this process is called Europeanization of private law. This is a broad topic that raises many questions. The issue of Europeazation of private law is an extremely multi-faceted problem. The current economic crisis is a challenge for the Europeanization of private law. There is a need to exchange experience in interpreting the concept of European Private Law after the 2016 Brexit referendumand to propose a common way of a coherent Europeanization policy strategy on this basis. In this context, Europeanization can be defined equally simply and broadly as a type regional international integration. However, this meaning is not so simple. Suddenly, after the 2016 Brexit, EU self-identification with all Europe is destroyed by one act. All this happened because level of European Union identification was very excessive. European academic lawyers spoke about it previously. In particular, it was stressed that they do not subscribe to the overly European Union-centric notion «Europe» that the term «Europeanization» implies. However, they went along with the widely used term «Europeanization», while noting its obvious inaccuracy. The «extremist wing of the Europeanization brigade» have tended to view the European states as little more than passive recipients duly implementing dictate of Brussels. Now Europeanization of private law for all EU member states should be understood as the «EU-ization», but it should take the form of a legal harmonization too. Europeanization of private law for all States, including Ukraine, should be interpreted as the legal cultural process or the common base of the harmonization of laws. And for this purpose academic lawyers should use this term as referring to the cross-culture comparing of legal paradigms at the domestic level. These paradigms could be the keys for understanding the legal convergence problem. They go to the very heart of the national (domestic) legal systems in Europe. Under these conditions, the concept of codification of private law in the form of a European civil code is hopelessly outdated. More promising is the way to approximate the mechanisms of legal interpretation. Indeed, there are all indications of the formation of a new civilistic institute, called the right of interpretation. This institute comes from ancient Roman ius interpretatio. That is why this modern institutionalization is a reception of Roman law interpretation. The article concludes that a coherent methodology is needed to clarify the process of institutionalizing the law interpretation. Therefore, there is a need to develop a new type of doctrine – the civilistic theory of law of interpretation. Key words: European private law, Europeazation of private law, law of interpretation, doctrine, civilistic methodology.

Book review: The Financialization of the Citizen. Social and Financial Inclusion through European Private Law, by Guido Comparato. (Oxford: Hart Publishing, 2018)

Book review: <i>The Financialization of the Citizen. Social and Financial Inclusion through European Private Law</i>, by Guido Comparato. (Oxford: Hart Publishing, 2018)

Contribution to the Process of Unification of European Private Law

This monographic issue includes several papers related to some questions of Private Law, which are addressed, mainly, from the perspective of European Law but also of Comparative Law. The subjects are diverse and, apparently, without connection, since some address issues related to the new social reality in which we live, related to the information society and unfair business practices; and others deal with traditional institutions of Civil Law, such as prescription, which is subject to review. All of them, however, have a common feature, which is the dogmatic and practical interest of the matters dealt with, and their contribution to the unification, understood in a broad sense, of European Private Law.Published online: 31 October 2019

Contribución al proceso de unificación del Derecho privado

Este monográfico incluye varios trabajos relacionados con cuestiones de Derecho privado y que se abordan, fundamentalmente, desde la perspectiva del Derecho europeo aunque también del Derecho comparado. Las materias tratadas son diversas y, aparentemente, sin conexión entre sí, pues algunas abordan cuestiones surgidas de la nueva realidad social en la que vivimos, relacionadas con la sociedad de la información y las prácticas comerciales abusivas; y otras versan sobre institutos tradicionales del Derecho civil, como la prescripción, que es sometida a revisión. Todas ellas, sin embargo, tienen un rasgo común, que es el interés dogmático y práctico de las materias tratadas, y su contribución a la unificación, entendida en sentido amplio, del Derecho privado europeo.Publicación en línea: 31 octubre 2019

Hungarian Case Law Relating to European Private Law (2018–2019)

Hungarian Case Law Relating to European Private Law (2018–2019)

European-Autonomous Property Rights: Does the EU Operate Its Own Numerus Clausus?

Property rights are at the core of property law. They are used to shape relationships between people and things. Their effect is generally against the world (erga omnes) and hence there are limitations on the number and content of those rights. The vast majority of legal systems within the EU operates a numerus clausus – or ‘closed list’ – of property rights. In the past decades, there has been an increase in the making of a European private law: private law rules at the EU level. This does not only concern rules of EU contract law, but increasingly also rules of property law at the EU level. Examples of the latter are rules relating tomortgage credit that influence the content of rights of hypothec, but also rules on the law applicable to international succession- or matrimonial property law cases. At the same time, there is influence of the four basic freedoms (freedom of movement of goods, persons, services and capital) on national private law. In this case law, the Court of Justice of the European Union (CJEU) relies on national law, but also provides its own EU terminology and definitions. This does not mean that a full-fledged law of property arises at the EU level, but it raises the question what system-elements are also present at the EU level. National legal systems generally operate on the basis of a closed system of property rights (a numerus clausus). Existing European Property Law research looks into the rise of European property law and the existence of principles such as the numerus clausus, in European legislation. This article focuses on the Court of Justice of the European Union and investigates whether EU law has its own numerus clausus: a list of property rights defined autonomously in European case law and legislation

Within the Public-Private Divide. Right to Housing and Consumer Law in Recent European Private Law Trends

AbstractThis paper intends to discuss some major European legal issues by building on the critique of a certain narrow relevance of human basic needs, according to traditional Western legal conceptions of the subject as well as of the public-private divide. In particular it aims at verifying the potentiality of consumer law for rethinking the right to housing, within recent trends of European Private Law, by adopting a remedial approach. For this reason the paper analyzes three well-known cases decided by the Court of Justice of the European Union (CJEU) – namely Aziz, Sanchez Morcillo and Kušionová – as examples of this meaningful trend. Through the combination of the fairness test over contractual terms with the criteria of effectiveness and proportionality, a broader protection of right to housing is recognised even in horizontal private relationships. Art. 7 of the EU Charter of Fundamental Rights (CFREU) could represent the constitutional reference for this new perspective. The paper also intends to show how the relevance of the basic need for housing is traced to debtor's families. CJEU's interpretative itinerary seems to start from a fairness test about contractual terms, but eventually comes to give protection to subjective situations that are even out of the domain of the contract.

Оценочные понятия в европейском частном праве

Оценочные понятия в европейском частном праве

Zimmermann, Reinhard, Recht und Religion in der europäischen Rechtstradition II: Römisches Recht und Römische Kirche: Ein rechtshistorischer Streifzug

Abstract Roman Law and Roman Church. A Foray in the Field of Legal History. This is the slightly amended text of a public lecture delivered at the invitation of the organizers of the 42nd German Legal History Conference in September 2018 in Trier. After briefly sketching the enormous range of the discipline of legal history, the lecture focuses on the law of contract and the law of succession; and it seeks to demonstrate the importance of Rome on the development of European private law: both the Rome of pagan antiquity and of the Christian Church.

유럽사법을 통해 본 계약체결 전 의무에 대한 연구 - 정보제공의무를 중심으로 -

유럽사법을 통해 본 계약체결 전 의무에 대한 연구 - 정보제공의무를 중심으로 -

Book Review: The Financialisation of the Citizen – Social and Financial Inclusion Through European Private Law, by Guido Comparato

Book Review: The Financialisation of the Citizen – Social and Financial Inclusion Through European Private Law, by Guido Comparato

Is Renovating the General Law of Contracts Useful? The French Experience

The ordonnance of 10 February 2016 for the reform of contract law, of the general regime and of proof of obligations came into force on 1 October 2016. Further changes were made by the legislator in 2018. This reform modifies one of the most important part of the Code civil: the provisions on contracts and obligations The reform aims at giving more accessibility and clarity to French contract law, and it undeniably has already made it more attractive internationally. In this paper, we explain why, in an international world where contracting parties can chose the law applicable to their contract, we believe that a codified law is very important to overcome the void left by the contract and to resolve the difficulties that have arisen during its existence. Besides, it brings legal certainty, accessibility and visibility. We also explain why we think that a modern general law of contracts is a unique opportunity to propose a base of legal provisions considered as “minimal” and to affirm a specific legal policy. If it is clear, that practitioners and judges should not conceive contract law as the expression of a contractual public order (ordre public contractuel), it is sometimes difficult to know to what extent contracting parties can set aside some provisions of the governing law. Finally, we explain how, after having been for nearly two centuries the instruments of a certain legal nationalism, national codifications have become the cement of European private law. Indeed, the French contract law reform, which was built on the diversity of Europe, drew much inspiration from various European and international models. In turn, it has attracted a great deal of interest abroad, was translated into several languages and is extensively commented.

Impact of the European Private Law Codification outside Europe I. Common Law in the Old Colonial Empire (Pakistan)

The paper provides insight into the existence of codified private law in a Common law colony – Pakistan – outside the realm of Europe. As the Britain ruled the subcontinent for a long period of time, therefore, Pakistan continued to follow the Common law system regulated by their British colonizers. It gives a detailed account of the existence and application of common law in the subcontinent, and on the intent of the British to codify the laws in the region to accomplish their ‘divide and rule’ policy for the administration of the subcontinent. Using this as the proverbial measuring stick, the paper then seeks to justify a parallel system of codified private laws in existence in Europe, in a compact manner. Not only this, the paper also reflects upon the impact of the codified private law in the legal development of Pakistan as a whole till to date. For that purpose, an explanatory over-view of the Indian Contract Act of 1872 is provided including the history, traditional and common law roots, and the Act, itself.

Formation, development and modern state of private international law in the European Union

The article discloses the formation, development and modern state of private international law in the European Union. The concept of “European private international law”, including an analysis of the term in a narrow, wide and broadest sense is revealed in the article. The author analyses three main stages in the development of the private international law (PIL) in the EU, in particular: formation (1957 ‒ 1999); active development ‒ after the entry into force of the Amsterdam Treaty (1999 ‒ 2009); modern period ‒ after the entry into force of the Lisbon Treaty (2009 ‒ present).This article examines the limits of EU legislation as the source of a single law and highlights the difficulties associated with projects on the codification of private law in the EU. Such an approach may be appropriate in the current state of EU integration if it is limited by the rules of binding contract law and the provisions of private international law. Further harmonization of private law in Europe also requires significant changes in the institutional structure for the creation of uniform rules and the development of new methods of regulation.

Rise and fall of the classic concept of private law: lessons from the legal consciousness of european private law

Is there such a thing as European private law, a set of rules of EU law distinguished by the binary opposition public and private law? This article aims to shed light on the debate over the rise and the fall of the classic concept of private law and how the legal consciousness of the latter enhanced the legal awareness of European private law. Philosophyand sociology of law claim reasons in the search for answers, from a metaphysical and epistemological points of view.Furthermore,the reality of private law in practice put the ancient concepts in challenge by the phenomena of transnationalization of Law. Globalization, europanization, and the privatization of private Law are factual claims against the persistence of the classic concept of private law. These categories reveal the inconsistences between the theory of will in books and law in practice, suggesting that pluralism can face the lack of sense of a universal model of private law to all the realities involved in the European Union. The belief that the harmonization (or systematization) of national Civil Codes at the European level would lead to the coherence of private law is one of the basesto a final question about the extent to which the persistence of the classic concept of private law among legal scholarship is still an obstacle to the effectiveness of EU integration through the combination of public and private enforcement.