European Private Law beyond the Common Frame of Reference Essays in Honour of Reinhard Zimmermann

by Vaquer, Antoni

• ISBN13: 9789076871936
• ISBN10: 9076871930
• Format: Paperback
• Copyright: 2008-07-15
• Publisher: Europa Law Publishing

Summary

An interim outline edition of the (academic) Common Frame of Reference has been recently published. It is difficult to predict the political use to which the CFR will be put, although it was the European Commission who entrusted it to a research network of excellence. Nevertheless, it will certainly become the cornerstone of the new European private law. Two strong reasons support this statement. On the one hand, over one hundred of outstanding European scholars have been engaged to this project. On the other hand, the CFR has tackled extensively some intricate matters. For the first time the European legal community, and indeed the global legal community, has a body of authentically European provisions, suitable for adoption as national law or capable of inspiring amendments of national law. Maybe a European regulation of (some aspects of) sale or tort law could be anticipated, but a systematic body of rules on lease of movables, donation or transfer of movables was hardly foreseeable. This does not mean that the CFR casts aside other mechanisms of approximation of the European national laws, in particular spontaneous harmonization. A polyedric approach is still necessary to complete the Europeanization of private law.

Table of Contents

Preface	p. v
Contents	p. xi
Legal History and Comparative Law	p. 3
Reinhard Zimmermann and European Private Law	p. 17
Reinhard Zimmermann's Contribution to Contemporary Roman Law	p. 27
Reinhard Zimmermann and Scots Law	p. 35
A Common European Law on Sales?
Introduction	p. 43
The General Approach to Sales Law Taken in the Green Paper on Consumer Aquis	p. 45
The General Approach to Sales Law in the Draft Common Frame of Reference	p. 49
A European Law of Lease?
Introduction	p. 57
The Lease Principles and the Draft Common Frame of Reference	p. 57
Rules Specific to Lease Contracts - An Overview	p. 60
Do We Need Rules on Specific Contracts?	p. 61
The Example of "Finance Leases"	p. 63
Damages for Fraud in Case of not Avoiding the Contract
Introduction: Focus of the Issue	p. 67
Decision of the Spanish Supreme Court of 18 January 2007 on Damages for Fraud	p. 69
Fraud and Liability for Damage in Contrahendo	p. 69
Damages For Fraud and Principles of European Contract Law	p. 71
Concluding Remarks	p. 75
At the Frontiers of Contract Law: Donation in European Private Law
Introduction	p. 79
Working on Gratuitous Contracts: Donation First	p. 80
"Predispositions" in the Work of the Study Group	p. 81
Terminology and Definitions	p. 83
The Cantus Firmus: Restricting Donations and Their Effects	p. 87
Form Requirement and Reduction of the Binding Force	p. 88
Obligations and Remedies	p. 89
Revocation by the Donor	p. 93
Conclusion	p. 96
The CFR and Credit Securities - A Suitable Case for Treatment?
Introduction	p. 99
The Need for a CFR Applying To Credit Securities?	p. 99
Justifications for Recognising the Existence of Security Rights	p. 107
Comprehensive Security Rights	p. 110
Carve-outs for Unsecured Creditors	p. 114
Security Rights and Publicity	p. 117
The Treatment of Quasi-securities	p. 120
Priority Rules	p. 123
Possible Pointers in a Direction other than the Uncitral Legislative Guide	p. 126
Conclusion	p. 127
European Tort Law; An Integrated or Compartmentalized Approach?
Introduction	p. 133
State of Affairs in EU Tort Law	p. 137
Identifying Torts that are "Likely Candidates" for Further Harmonization	p. 141
And What About Remedies?	p. 144
Unlikely Candidates	p. 146
Appraisal: Making Tort Law Tangible Through Compartmentalization	p. 148
A European Law on Unjustified Enrichment? A Critical View of the Law of Restitution in the Draft Common Frame of Reference
Introduction	p. 153
The Draft Common Frame of Reference and Unjust Enrichment	p. 153
Unjustified Enrichment in Europe: Similarities and Differences	p. 155
The Draft CFR: European Principles of Unjustified Enrichment Law	p. 157
Questioning the Harmonisation of the Law on Unjustified Enrichment	p. 159
Conclusions	p. 162
A European Law of Trusts?
Introduction	p. 167
The Current State of European Trust Law	p. 168
Discarding preconceived notions	p. 168
Illustration: An Excursion into the Concept of Real Subrogation	p. 172
The General Concept of Subrogation	p. 172
The Concept of Real Subrogation	p. 172
General	p. 172
English Law	p. 173
Certain Assumptions Regarding Real Subrogation	p. 174
General Lessons from the Mixed Jurisdictions?	p. 176
Seeing the Contours of a Next Phase of Development?	p. 177
Contract and Transfer of Property
Contract and Transfer of Property: Different Approaches	p. 183
The European Law Context	p. 185
Void and Avoidable Contracts	p. 187
Termination	p. 194
Conclusive Remarks	p. 199
European Private Law without European Law on Civil Procedure?
Introduction	p. 205
Foundations of European Procedure Law	p. 206
Overview	p. 206
Competence	p. 207
Four Ways leading to Europeanization of Civil Procedure	p. 208
ECJ Decisions	p. 208
Directives on Material Law	p. 209
European Proceedings	p. 210
Establishing Minimal Standards	p. 211
Harmonization or Unification?	p. 212
Different Strategies for Different Subjects	p. 212
Binnenmarktprozessrecht as a Model: A Procedural CFR	p. 213
Uniform Protection of Subjective Rights in the Trial	p. 215
Judicial Structure	p. 215
Protection at Different Levels: Article 6 ECHR vs. Chapter VII of the Charter of Fundamental Rights of the European Union	p. 216
Conclusion	p. 216
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