General Private Law Research Articles

Family lawyers on cohabitation and judge-made law

This article advances debates on the limits of judge-made law to palliate legislative failure to respond to changing practice. Canadian judges have adjusted the general private law to address the situation of unmarried cohabitants. In Kerr v Baranow, the Supreme Court of Canada continued its adaptation of unjust enrichment to this end. The article reports on the first empirical inquiry into how the judgment is operating, including outside the courtroom. Interviews with family lawyers in Quebec show that bringing claims under the adapted doctrine is complex and costly. Variable and unpredictable outcomes impede fair and efficient private ordering. Cohabitation agreements do not seem a satisfactory solution. The study highlights shortcomings in the leading Canadian judgment, which recognizes some cohabiting couples as partnerships but stops short of presuming an equal sharing of gains during the union. But, since the participating lawyers pointed to factors that would reduce the efficacy of reform by judges or by legislatures, the study does not yield a broad preference for legislative reform over judicial reform.

The Implementation of Directive 2019/771 in Ukrainian Private Law: Future Prospects and Challenges

Ukraine as an EU candidate country gets a duty to adopt national law to EU law. The EU sales law is one of the directions in this field. In the future, as one of the Member States, Ukraine also will have the obligation to transpose new Directive 2019/771 on certain aspects concerning contracts for the sale of goods. One of the main questions for Ukrainian legislator is connect with transposition of these Directive in Ukrainian Civil Code or separate Act, apply new regulation to all obligational relations, with some exceptions for consumer contracts or only to consumer contracts in case of non-conformity. The comparison of Directive 2019/771 and Ukrainian sales law is realized in the article. The general remarks on the method for transposition of Directive 2019/771 in Ukrainian private law, in particular relationship between consumer law and general private law, the term “lack of conformity”, liability of the seller in case of non-conformity and remedies for lack of conformity are analyzed.

SOME FEATURES OF THE DEVELOPMENT OF GEORGIAN PRIVATE LAW FROM THE 90S TO THE PRESENT DAY

The presented article is dedicated to the trends of development of Georgian private law from the 90s to our days. In the scientific work are considered several essential legal reforms in the direction of both general private law and special branches of private law (labor law, corporate law). Accordingly, the article explores the grounds for legislative changes, their negative and positive sides. The purpose of the research is, first of all, to determine what are the features of common law and the law of continental Europe, then to determine which of them were reflected in the legislative changes implemented in Georgian private law, and with what specificity. Accordingly, the article analyzes the tendencies of private law development in Georgia with regard to legal reforms. The research confirms that most of the legislative changes served as a departure from Soviet rules, which was considered as a difficult task. At the same time, the reforms were aimed at bringing them closer to European standards and improving national legislation, although it became clear that the implementation of separate changes was based on the influence of American law too.

Magyar magánjogászok tudományos írásai Németországban (1920–1944)

The study of the scientific relations between Hungarian and German private law jurists between 1920 and 1944 is still a current research issue, the comprehensive presentation of which has not been undertaken by either the German or the Hungarian legal historians. This research task cannot be completely performed by the author of this study either. The research question is that among the Hungarian private jurists, who published his scientific results in German journals, in the columns of the Zeitschrift der Akademie für Deutsches Recht and in the Zeitschrift für osteuropäisches Recht, and on what topics and in what way was it approached. The study covers private law in the broad sense, so in addition to general private law, it also covers writings on family law, commercial law and civil procedure law. When evaluating these questions, the role of the given author in Hungarian scientific public life is also a research aspect.

‘Unchartered’ waters: fundamental rights, Brexit and the (re)constitution of the employment law hierarchy of norms

The decision of the British people to leave the European Union (EU) raises foundational questions for many legal fields. The effects are especially likely to be felt within domestic employment law, which now has a strong basis in EU law. Of particular concern is the removal of the nascent EU fundamental employment rights influence over domestic legislation. Employment lawyers have long relied on fundamental rights as a means of preserving the autonomy of their subject from general private law. One manifestation of this turn to fundamental rights concepts has been the ‘constitutionalisation’ of employment rights. EU law, notably the Charter of Fundamental Rights, has become a key underpinning of this constitutionalisation process. This article considers the effects of the constitutionalisation in the United Kingdom employment sphere of some of the rights found in the Charter’s Solidarity Title, through its role in the emergence of a hierarchy of sources or ‘norms’ in the employment field. In order to address the question of the Charter’s influence on the hierarchy of sources in the employment context, three interrelated processes are examined. The article begins by exploring the ‘constitutionalisation’ process, by setting out the nature of the Charter and the effects of its employment rights on the hierarchy of sources. This is followed by a consideration of the ‘deconstitutionalisation’ process brought about by Brexit, before finally examining whether a potential ‘reconstitutionalisation’ process might be underway by looking at key terms of the EU (Withdrawal) Act 2018 and the potential to replicate the Charter in domestic law.

Sustainable consumption and circular economy in the Directive 2019/771

One of the aims behind issuing a new directive on consumer sales contracts (directive 2019/771) was to adjust this part of contract law so that it can contribute to sustainable development. The Rec. 32 of the directive explicitly states that one of its objectives is to achieve more sustainable consumption patterns and a circular economy. This article analyses whether and to what extent this motive is reflected in the black letter rules of the directive (the previous directive on consumer sales contracts constitutes a point of reference). The work begins with a general assessment of the interplay between the values the directive is meant to protect. The impact that the values at hand may have on the interpretation of the directive’s provisions is diagnosed (with a focus on the influence of the choice of the method of harmonization on the interpretation process). The study covers ecology-related issues emerging in the context of durability requirements, objective conformity requirements stemming from various quality standards, reparability of the good, consumers rights under the directive and the interplay between the general private law rules and the directive’s norms. Based on the analysis, the first conclusions regarding the ecological effectiveness of the directive are made. Although directive 2019/711 announces striving for the achievement of sustainable consumption and a circular economy as one of its aims, within its black letter provisions no significant changes are introduced in comparison to its predecessor. The EU legislature has correctly diagnosed some (but not all) areas where modifications should be made to ensure sustainable consumption within the consumer market. Nevertheless, no significant changes in their regard were introduced. As a result, the interpretation of the directive’s provisions through the prism of the ecology-related values should be applied to ensure that this regulatory intervention brings about the intended change to the consumer sales law.

Reflexiones sobre la propagación de nuevas tipologías de daño

La proliferación de nuevas tipologías de daños genera como interrogante dilucidar si ello se condice con el principio de reparación plena que se concreta en una justa indemnización o, si por el contrario, existe un abuso. Para procurar una respuesta es ineludible observar la influencia de los cambios de paradigmas producidos, como es la constitucionalización del derecho privado en general y, de la responsabilidad civil, en particular que coloca al hombre como eje del Derecho desplazando la preeminencia patrimonialista. A la par, examinar la evolución de las distintas ramas de la ciencia que estudian al ser humano para adquirir una mirada interdisciplinaria que permitirá dar una mayor precisión en la conceptualización de los distintos tipos de daños. A partir de ello se comprende que las clásicas calificaciones y clasificaciones de los daños no satisfacen los requerimientos actuales, razón por la cual se impone una nueva sistematización, justificando la misma con el análisis de la desvinculación del daño moral del psíquico y la comparación del menoscabo al proyecto de vida con la perdida de chance. Para concretar la reparación justa, no se debe indemnizar dos veces el mismo perjuicio bajo distintas denominaciones, ni se debe desestimar un tipo de menoscabo reclamado sin justificación científica válida.

Mechanism of the legal regulation of cargo transportation by the motor transport

The article examines the mechanism of the legal regulation of cargo transportation by the motor transport and its elements. The author stands by the theory of the legal positivism and the need for uniformity of such regulation. The mentioned approach ensures the unity of the legal regulation, as well as the ability to influence elements of the mechanism: grounds of legal relations; legal position of the parties, in particular the regulation of their rights and obligations; the legal regime of the subject; types and ways to stimulate, restrictions and prohibitions; legal remedies to protect the disturbed subjective rights and legitimate interests of the parties. Contract as an individual legal act only specifies the content of these relations to its sides. The purpose of the paper is consisted of representation of developments of interpretation mechanism of legal regulation of road transport and its elements. The object of the research is studying the approaches to the concept of "mechanism of regulation" and its elements, and the subject – provision of scientific doctrine, acts of current legislation and practice of their application. Currently scientists and practitioners have been searching ways to improve the regulation of social relations in general private law and its individual institutions based on the ideas of universalization, and in Ukraine – towards adaptation to the provisions of EU law. In the carriage cargoes by motor transport within the EU it comes to observance of common rules.

Private Law Principles, Pluralism and Perfectionism

This paper discusses the legitimacy of general principles of private law as they have been formulated recently by the Court of Justice of the European Union and proposed by the European Commission. It addresses challenges from different strands in political theory including liberal perfectionism, political liberalism and Habermasian discourse theory. There are four specific lessons to be learned from these theories. First, the quest should not be for very general and abstract principles with a very broad scope, but rather for principles of an intermediate level of abstraction and a limited scope, which could explain and bring coherence to a set of rules or a legal doctrine, but not to the whole law of contract. Private law principles which are too general and sweeping would risk to neglect the need for internal diversification within private law. Secondly, these private law principles should be situated on the non-constitutional level of ordinary private law, subject to the constitution (including its horizontal effect) which in turn must be compatible, in order to be legitimate, with the political principles of justice that the EU polity has given itself. Thirdly, the CJEU, although an institution that is not in itself a less legitimate lawmaker than the legislator, also when it comes to private law principles, has a strong duty to explain itself and to provide good reasons for adopting general principles of civil law and for choosing certain principles, especially if these principles happen to be controversial, either from a comparative law point of view or along any of the other axes along which European citizens and European Member States may differ. Finally, there is no legitimate place for strong perfectionism in the deliberation on fundamental European private law principles; any private law perfectionism should be either local (in specific doctrines like unfair exploitation) or thin (limited to values like rationality). However, as long as we remain cautious is all these respects, the quest for general private law principles is perfectly legitimate. There is no contradiction per se in seeking to find general private law principles in a pluralist world.

Ambivalences en droit de la consommation remarques sur les effets de l'écriture du droit

In every legal system, consumer law indicates problems that it is supposed to solve: imbalance, unfairness and unconscionability. It raises important questions about a legal system’s pre-existing ability to deal with those problems. In a way, consumer law’s very presence in a legal system judges that system. When considering consumer law as a part of the system, an opposition arises between two kinds of discourse. First, there is a discourse, which constructs consumer law as a legal entity apart from the others, sometimes leftist, founded on a defense of social justice or on market regulation. From this angle, consumer law might easily appear to be subversive. Second, there is a discourse, which results from the effort to accommodate consumer law within the legal tradition’s general private law. Under this discourse, rather than disrupting the core private law, consumer law is integrated into it. A gap may thus be noticeable between the initial intentions that sustain consumer law and the effects it produces. The author’s claim in this paper is that this gap, which generates ambivalence about consumer law, results from western legal systems’ main way of formalizing law in the contemporary era by writing.

The Case for a Common European Sales Law in an Age of Rising Nationalism

The European Commission’s recent proposal for a common European sales law was made in a political climate of rising nationalism. The Commission makes a solid economic and constitutional (legal basis) case for its proposal. However its argument, which focuses exclusively on the internal market, is not likely to fully convince the opposition. The reason is that it fails to address the widespread notion, underlying also many technical arguments, that Member States should remain sovereign in matters of general private law for the reason that private law is a matter of national identity. In this paper, I address that argument head on. I do this by first identifying the nationalist undertone in many technical arguments raised against the Europeanisation of private law and then defending the CESL as an expression of another identity that many Europeans share, i.e. their European identity. I argue, in particular, that the proposed CESL should be welcomed as a common European model of justice between private parties, as rules of just conduct for the internal market. Since most people in Europe identify with both their nation-state and Europe, albeit in different degrees, it makes sense to offer them the choices between national and European contract law. Although the question whether to opt into a CESL should be a matter of private autonomy, the question which legal options will be available is matter of the public autonomy of citizens and requires a full democratic legitimation. Therefore, Art 352 TFEU, the flexibility clause that bypasses the ordinary legislative procedure, would be unacceptable as a legal basis.

The case for a common European sales law in an age of rising nationalism

The European Commission’s recent proposal for a common European sales law was made in a political climate of rising nationalism. The Commission makes a solid economic and constitutional (legal basis) case for its proposal. However, its argument, which focuses exclusively on the internal market, is not likely to fully convince the opposition. The reason is that it fails to address the widespread notion, underlying also many technical arguments, that Member States should remain sovereign in matters of general private law for the reason that private law is a matter of national identity. In this paper, I address that argument head on. I do this by first identifying the nationalist undertone in many technical arguments raised against the Europeanisation of private law and by then defending the CESL as an expression of another identity that many Europeans share, ie their European identity. I argue, in particular, that the proposed CESL should be welcomed as a common European model of justice between private parties, as rules of just conduct for the internal market. Since most people in Europe identify with both their nation-state and Europe, albeit in different degrees, it makes sense to offer them the choices between national and European contract law. Although the question whether to opt into a CESL should be a matter of private autonomy, the question which legal options will be available is matter of the public autonomy of citizens and requires a full democratic legitimation. Therefore, Article 352 TFEU, the flexibility clause that bypasses the ordinary legislative procedure, would be unacceptable as a legal basis. Résumé La récente proposition de la Commission européenne d’un règlement européen sur la vente a été faite dans un climat politique de montée du nationalisme. La Commission présente de solides arguments économiques et constitutionnels (base juridique) en faveur de sa proposition. Quel que soit son raisonnement, qui se concentre exclusivement sur le marché intérieur, il n’est pas de nature à convaincre pleinement l’opposition. La raison en est qu’elle échoue à affronter l’idée très répandue, sous-jacente aussi à de nombreux arguments techniques, que les états membres devraient rester souverains pour les questions de droit privé général, pour la raison que le droit privé est une question d’identité nationale. Dans cet article, j’aborde cet argument de front. Je le fais d’abord en identifiant la tonalité nationaliste de nombreux arguments techniques soulevés contre l’européanisation du droit privé, puis en défendant le projet de règlement européen sur la vente comme l’expression d’une autre identité que de nombreux Européens partagent, à savoir leur identité européenne. Je soutiens, en particulier, que le projet de règlement européen sur la vente devrait être accueilli comme un modèle commun européen de justice entre des parties privées, comme des règles de juste conduite pour le marché interne. Comme la plupart des gens en Europe s’identifient à la fois avec leur état-Nation et avec l’Europe, bien qu’à des degrés différents, cela a un sens de leur offrir le choix entre le droit des contrats national ou européen. Bien que la question du choix du règlement européen sur la vente devrait être une question d’autonomie privée, la question de savoir quelles options juridiques seront disponibles est une question d’autonomie publique des citoyens et requiert une pleine légitimation démocratique. C’est pourquoi l’article 352 du traité sur le fonctionnement de l’UE, prévoyant une clause de flexibilité qui contourne la procédure législative ordinaire, serait inacceptable en tant que base juridique. Zusammenfassung Der Vorschlag für ein Gemeinsames Europäisches Kaufrecht (GEK) kam in einer Phase zunehmenden Nationalismus. Die EU Kommission begründet ihren Vorschlag sowohl ökonomisch als auch kompetenziell auf solide Art und Weise, dennoch wird ihr – allein auf Binnenmarktüberlegungen basierender – Ansatz die Gegner wohl nicht überzeugen. Dies beruht darauf, dass sie das Kernbedenken, das auch viele Einzelfragen bestimmt, nicht anspricht: nämlich dass die Mitgliedstaaten Herren des allgemeinen Vertragsrechts bleiben sollten, weil es die nationale Identität betrifft. Dieser Beitrag widmet sich ganz ebendiesem Bedenken. Zunächst wird auf den nationalstaatlich orientierten Unterton eingegangen, der bei vielen scheinbar technischen Argumenten mitschwingt. Sodann wird das GEK als Ausdruck einer weiteren Identität erklärt, die ebenfalls vielen wichtig ist, namentlich einer Europäischen Identität. Insbesondere wird dahingehend argumentiert, dass es sich beim GEK um ein gemeinsames Europäisches Modell von Privatrechtsgerechtigkeit handele, namentlich um gute Verhaltensregeln für einen Binnenmarkt. Da die meisten Europäer ihre Identität sowohl im Nationalstaat als auch in Europa sehen, wenn auch möglicherweise in jeweils unterschiedlichem Ausmaß, erscheint es naheliegend, ihnen die Wahl zwischen national und Europäisch zu eröffnen. Obwohl das Opt-in als privatautonome Entscheidung ausgestaltet werden sollte, ist die Frage, welche verschiedenen solche Optionen es geben sollte, zugleich eine der politischen Autonomie der Bürger Europas, verlangt also nach einer umfassenden demokratischen Legitimation. Daher erscheint Art. 352 AEUV, die Ergänzungskompetenz, durch die das “ordentliche” Gesetzgebungsverfahren umgangen wird, als Kompetenz inakzeptabel.

Court of Appeal rules on trust status and client money protection in relation to Lehman Bros funds

PurposeThe purpose of this paper is to discuss the Court of Appeal's consideration regarding Lehman Bros International (Europe) (in Administration) (Court of Appeal: Civil Division: Lord Neuberger, Lady Justice Arden and Sir Mark Waller). Date of Judgment: 2 August 2010.Design/methodology/approachThe paper outlines the facts surrounding the case and comments on the decision.FindingsThe court ruled on trust status and client money protection in relation to Lehman Bros funds.Originality/valueThis judgment provides a rare example of the courts' application of the Client Assets Sourcebook rules and guidance in general private law disputes about property ownership and entitlement that invariably arise within the context of insolvency.

Some Law and Economics of Harmonizing European Private Law

Although harmonization of Private Law rules has been taking place in Europe through European legislative actions in areas such as Company Law, Intellectual Property, and Consumer Law, to cite a few, the process is lately under strict scrutiny as a consequence of the emergence of diverse initiatives proposing model rules for basic and general Private Law, such as those contained in the Draft Common Frame of Reference (DCFR). An ambitious and deliberate process of harmonizing Private Law in Europe is susceptible to evaluation using the lenses of Law and Economics, and there is already a substantial amount of literature to this effect. In this paper I try to offer three different lines of additional analysis to the existing literature. First, I characterize the different processes through which Private Law rules - and other legal rules, by the way - may end up looking very similarly across national borders. The main processes are indeed different in terms of the mechanism guiding them: One can observe uncoordinated convergence of substantive legal rules in various areas of the Law, but also a conscious coordination exercise with or without external promoters. Finally, the harmonization result may be the product of a political decision at a higher level of government. Thus, not only the result, but the processes itself are relevant for an economic assessment of harmonization. Second, I re-examine some of the major economic criticisms to harmonization by coordination and political fiat, and point out some of the underappreciated weaknesses of those economic critiques. Finally, I sketch what may be considered an epistemic criticism of the current harmonization exercise linked to the re-codification dimension involved in the process.

The nature of a financial investment intermediary's duty to his client

The landscape of legal duties imposed on financial investment intermediaries is characterised by the imposition of regulatory duties as well as duties arising under general law, in the realms of fiduciary duties and duties of care and skill. This article examines the relationship between public regulation and general private law in providing legal principles governing the conduct of financial investment intermediaries. This article also inquires into whether, in light of the Financial Services Authority's (FSA) desire to move into higher level ‘principles-based’ regulation of financial investment intermediaries, there may be a set of unifying principles that could govern financial investment intermediaries' relationships with their clients.

General Concepts of Private Law Relating to Private Property in the Civil Code of the Russian Federation and in the Civil Code of Quebec

AbstractThe paperidentifies some notable features on general private law ordering contained in the Civil Code of the Russian Federation. It does so by contrasting these provisions with similar articles and doctrine from the Civil Code of Quebec. The author points out several unique features of the Russian code and speculates on some of the potential implications of these features for private law ordering. These comments are meant to stimulate discussion and comparison, and are not meant to be exhaustive in either their descriptive content or substantive analysis. The Russian code convers similar conceptual territory as the Quebec code; thus, the organizing concepts are analogous. It is therefore not surprising that the animating themes of private laaw in the civilist tradition, major distinctions such as patrimonial and extra-patrimonial rights, real and personal rights, and various sub categories, find expression in the Russian code. The elaboration of these ideas is generally much extensive in the Russian code that in the Quebec code, although the iteration in the latter is arguably more concise, clear and coherent.

Sur la légitimité d'européaniser le droit privé.

ON THE LEGITIMACY OF EUROPEANISING EUROPE’S PRIVATE LAW. CONSIDERATIONS ON A LAW OF JUSTI(CE)-FICATION (JUSTUM FACERE) FOR THE EU MULTI-LEVEL SYSTEM There are good reasons to expect that the process of European integration might bring about a renaissance of comparative law and private international law, the two disciplines, in which Herbert Bernstein had excelled in the New and the Old World. To be sure, Europe’s legal systems must respond to processes of economic and political integration. It seems nevertheless quite unrealistic to expect from the European Union any comprehensive harmonisation of private law. Europe’s systems of private law are deeply entwined in the economic and political histories of the polities which they order and to which they owe their legitimacy. Europe’s identity is defined by the diversity of its legal heritage. Should not deepened comparative studies prepare and accompany the search for a Europeanised private law system ; and is it not the very vocation of private international law to organise constructive responses to legal diversity ? Pertinent efforts have been undertaken and are under way. And yet, the Europeanisation process, so this essay argues, follows a logic of its own, which none of our inherited legal disciplines seems able to cope with. Three difficulties will be discussed. One is inherent in very general developments of « post-classical » private law, in particular its linkages with regulatory and distributive policies and its opening to social values and human rights. Comparative law has often furthered, private international law has adapted to this (in Germany) so-called materialisation process. Europeanisation, however, adds challenging new dimensions. They are inherent in the multi-level structures of the European polity and hence inevitable. The interventions of European law into general private law (the codified systems of continental Europe and the common law of the UK) have so far been quite marginal. But Europe has very intensively and quite comprehensively re-organised the regulatory frameworks of private transactions whereas the distributive welfare state institutions in which private relations are embedded remained national domains. The Europeanisation of Private law is therefore to a large degree about the restructuring of the linkages of private law with its (Europeanised) regulatory environment and its embeddedness in welfare state institutions. Europeanisation affects this dimension through the freedoms it grants to European citizens. European law is a transformative discipline. It requires respect for its principles and the regulatory prescription it imposes in the realms of the enumerated competences of the European legislature. It cannot provide comprehensive responses to its quests for change. Europeanisation affects national systems of private law only selectively. The process of change is incremental and the essay therefore does not to try to present Europeanisation of private law as the building of a new system of rules and principles. It rather presents and explores patterns of legal change in three cases of exemplary importance. As will become apparent, neither comparative law, nor private international law or European law can lay claim to exclusive leadership in the Europeanisation process. Europeanisation is generating a new legal discipline. The challenging task of this discipline is to provide normative guidance for the operation of private law within the multi-level system of governance that Europe has become.

Europäisierung des Privatrechts - Zwischenbilanz und Perspektiven: Achte Tagung der Gesellschaft Junger Zivilrechtswissenschaftler Mainz, 10.-13. September 1997

On the occasion of its Eight Annual Meeting (Mainz, September 1997), the Society of Young Researchers in Civil Law tried to sum up the present-day discussion on 'Europeanisation of Private Law'. In the context of German legal scholarship, necessity and desirability of this process are still controversial even among younger authors. In the continental tradition of strict separation of public and private law, the EC remains a phenomenon to be described and controlled in terms of constitutional law. The actions of such a phenomenon with reference to private law relationships, therefore, appear as necessarily isolated and a dangerous interference with sovereignty and with the civil law system so fundamental to lawyers' state of mind. However, the economic and political necessities of market integration cannot avoid reshaping even basic structures of general private law (e.g. in the field of consumer protection). The very aim of the treaties is a continuous growth of general welfare within the legal community of Europe; the key mechanism to achieve that aim can be seen in the full release of private freedom and entrepreneurship. There can now can be observed, in EC law, complex and multipolar relationships between private parties, States, and the Community (e.g. in the well-known issue of directives' horizontal direct effect). This situation is not likely to be explained sufficiently by recourse to the fixed and formal sub-ordination structures of nineteenth-century rooted public law. Accordingly, the congress opened with reflections on the general question of competition or unification of legal orders in Europe. This basic feature emerged also in many contributions to specific problems. The congress continued with historical and comparative presentations. The crucial issue under all these perspectives is how to find models apt to meet the requirements of an unprecedented harmonisation process. Certain fields of substantive law were at the centre of the following lectures, especially Labour, Company, and Competition Law. Unfair competition and merger control was also discussed in a round table with renowned representatives of legal practice. The final contributions concerned Private International Law and methodological problems in European Law. The last mentioned aspect is of outstanding importance also for the current debate on the reform of legal studies in Germany. The bulk of knowledge tested in the state examinations has become too great; it even hampers a structural understanding of law. It could be, however, just the links of EC law to foreign legal systems and to other sciences that introduce the student to the inherent openness and incompleteness of law. Method will again turn out to be the only key to a high-level legal argument and practice, as it has always been. In the light of such developments, a further harmonisation of private law should be 'tolerable' even from the continental, systematic, point of view.

Security Interests in International Bankruptcies in Sweden

AbstractThe purpose of this paper is to briefly describe Swedish conflict rules concerning the treatment in bankruptcy situations of security rights in rem (such as reservations of title, transfers of title for security purposes and mortgages) in respect of chattels and other assets. One problem encountered in this connection is the difficulty to distinguish between issues of insolvency law, governed by lex concursus, and issues of general private law, mostly governed by lex rei sitae. Other types of problems arise if the asset has after the creation of a security interest been moved from one country to another. Finally, the article deals with set-off in bankruptcy, since the creditor who is entitled to set off his claim is in a situation similar to that of a secured creditor.