Realism and idealism in the harmonization of contract law in the European Union

The advantages of enhanced cross-border trade among the member states are emphasized by advocates of the harmonization of law in the European Union, a principle which has been included in each of the treaties of accession. Following political events in 1989, the concept of a Europe-wide law of obligations received renewed impetus. The leading advocates, who comprised a Study Group under the chairmanship of Professor Christian von Bar, were academic lawyers supported by the European Commission and by journals devoted to legal integration. The impact of decisions of the Court of Justice of the European Union in 2000 and 2006, however, ensured that only a modest proposal, as distinct from a European Civil Code, would be put forward. The Common European Sales Law, an optional instrument, is assessed both in terms of how it is expected to work and in the light of benefits arising from the existence of standard European terms. Also in this thesis historical-legal arguments in favour of ‘Europeanized’ contract law are evaluated and found to be not wholly convincing. The counter-argument, put forward by the Canadian Professor Pierre Legrand, maintains that the principal European legal traditions are epistemologically distinct, rendering convergence impossible. Legrand’s contribution to the debate is possibly overstated but has never been shown to be misconceived. However, this thesis draws attention to the degree of affinity – greater than is generally recognized – which always existed between the Common and Civil Law traditions. It is argued that this underlying affinity is more likely to lead to durable results by European lawyers seeking solutions to shared problems than by the artificial process of codification.

Name dc:type.qualificationname

other

Level dc:type.qualificationlevel

masters

Grantor dc:publisher.institution

University of East Anglia

Year dc:date.issued

2012

Author dc:creator

• Gaskell, Jeremy M.

Language dc:language

en