The textual layers of European contract law
| Jurisdiction | South Africa |
| Pages | 165-199 |
| Author | Zimmermann, R. |
| Date | 24 December 2019 |
| Published date | 24 December 2019 |
| Citation | 2019 Acta Juridica 165 |
165
The textual layers of
European contract law
REINHARD ZIMMERMANN*
For the past four decades, lawyers in Europe have been fascinated by
the idea of creating (or re-creating) a European private law. Contract
law has, so far, been at the centre of attention. Various actors have
shaped the development: the European legislature and the European
Court of Justice as much as academic writers. National law reform has
also contributed to a rapprochement of thinking patterns. One of the
most interesting developments has been the creation of various sets of
model rules, or restatements, of European contract law. It began with
the elaboration of ‘Principles of European Contract Law’ by the ‘Lando’
Commission, a purely academic initiative, and it eventually led, in 2011,
to the publication of a Proposal for a Regulation on a European Sales
Law, ie the attempt to codify central parts of general contract law and
sales law within the European Union. That Proposal was withdrawn by
the European Commission in late 2014. Thus, there is now some time
for reection. The present essay attempts to sketch the various ‘textual
layers’ that have accumulated in the quest for a code of European
contract law. At the same time, it explains the background for a research
project that attempts to provide a synthesis of the development.
When, one day, the history of the unication of European contract
law is written, it is likely that one of the rst chapters will be devoted
to the period between 1980 and 2015. 1980 was the year when a
rst meeting of lawyers from the member states of the European
(Economic) Community was held in Brussels in order to discuss
the establishment of a Commission on European Contract Law.1
And in its Work Programme of 2015, the European Commission,
led since November 2014 by Jean-Claude Juncker, announced its
intention to withdraw the Proposal for a Regulation on a European
Sales Law, and with it a draft codication of large parts of general
contract law, which had been published in October 2011.2 The
* Director at the Max Planck Institute for Comparative and International
Private Law, Hamburg.
1 O Lando & H Beale Pr inciples of European Contract Law Part I (1995) ix.
2 European Commission ‘Commission Work Programme 2015 – A new start’
(2014) 910.
2019 ACTA 165
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166 PRIVATE LAW IN A CHANGING WORLD
latter announcement thus marked the end, for the time being, of a
long sequence of activities originally initiated by the Commission
on European Contract Law aiming rst at a set of model rules in
the nature of a ‘restatement’3 and, subsequently, at a codication of
European contract law. The present essay provides an overview of
that sequence of events.4 In the course of my visits to South Africa
over the past few years, I have encountered considerable interest in
what has been going on in the eld of contract law in Europe, but
also a sense of bewilderment about the many ‘textual layers’ that
have been produced by various dierent actors.5
This essay is dedicated to my old friend and colleague Danie
Visser, with whom, on a path that has led from Pietermaritzburg via
Cape Town, Regensburg and Hamburg to St. Johann im Ahrntal, I
have shared more experiences than I could ever recount.
I ERNST RABEL AND THE HAGUE CONVENTIONS
The year 1980 is also remarkable, in the present context, for two
other reasons. The one was the adoption of the United Nations
Convention on the International Sale of Goods (CISG) at a
diplomatic conference in Vienna.6 The other was the constitution of
a Working Group by the International Institute for the Unication
of Private Law (UNIDROIT) in Rome for the purpose of preparing
a set of ‘Principles of International Commercial Contracts’.7 Both
3 On which notion, see R Michaels ‘Restatements’ in J Basedow, KJ Hopt &
R Zimmermann (eds) The Max Planck Encyclopedia of European Private Law
(MaxEuP) (2012) 1464–8.
4 On the Europeanisation of pr ivate law in general, see R Zimmermann ‘The
present state of European private law’ (2009) 57 American Journal of Comparative Law
479–512; R Zimmermann ‘Comparative law and the Europeanization of private
law’ in M Reimann & R Zimmermann (eds) The Oxford Handbook of Comparative
Law 2 ed (2019) 557–98.
5 On the notion of ‘textual layers’ (originally a term of art in the scholarship of
Roman legal history), see N Jansen & R Zimmermann ‘Contract formation and
mistake in European contract law: A genetic comparison of transnational model
rules’ (2011) 31 Oxford Journal of Legal Studies 625–62 at 626; R Zimmermann ‘Die
Auslegung von Verträgen: Textstufen transnationaler Modellregeln’ in Festschrift für
Eduard Picker (2010) 1353–73.
6 The Convention entered into force on 1January, after 10 instruments of
ratication, acceptance, approval or accession had been deposited. The text is easily
accessible in O Radley-Gardner, H Beale & R Zimmermann Fundamental Texts on
European Private Law (FunTexts) 2 ed (2016) 893–918.
7 UNIDROIT ‘Principles of International Commercial Contracts’ (1994) vii.
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THE TEXTUAL LAYERS OF EUROPEAN CONTRACT LAW 167
events are milestones in the process of a global harmonisation
of contract law, but they are also of considerable signicance
for European contract law. The CISG, in particular, has been an
important foundation for all subsequent European texts, and thus
it provides our most appropriate point of departure. Its history,
in turn, dates back to 1926, when UNIDROIT was founded at
the instigation of Vittorio Scialoja, Professor of Roman law at the
University of Rome La Sapienza. Scialoja was to become the rst
President of UNIDROIT.8
One of the members of UNIDROIT’s rst Governing Council
was Ernst Rabel, another Professor of Roman law,9 who had,
more or less simultaneously, founded the Kaiser Wilhelm Institute
for Comparative and International Private Law in Berlin (the
precursor of the Hamburg Max Planck Institute for Comparative
and International Private Law).10 In 1928, Rabel suggested to
Scialoja that he incorporate the unication of international sales
law into UNIDROIT’s work programme. That suggestion was
taken up in the following year and led, rst, to a report drafted
by the Kaiser Wilhelm Institute,11 then to the establishment of an
international committee with members drawn from the four main
systems of private law in Europe (England, France, Scandinavia and
Germany),12 and ultimately to a rst draft in 1935.13 Ernst Rabel
was the mastermind behind this project, and the comparative studies
prepared by him (and his collaborators in the Kaiser Wilhelm
Institute) became the basis for his monograph ‘Das Recht des
8 On UNIDROIT, see H Kronke ‘UNIDROIT’ in MaxEuP (n3) 1723–7.
Herbert Kronke was General Secretary of UNIDROIT from 1998 to 2008.
9 On Er nst Rabel, see G Kegel ‘Ernst Rabel – Werk und Person’ (1990) 54
RabelsZ 1–23; T Utermark Rechtsgeschichte und Rechtsvergleichung bei Ernst Rabel
(2005); R Kunze Ernst Rabel und das Kaiser-Wilhelm-Institut für ausländisches und
internationales Privatrecht 1926–1945 (2004); R Zimmermann ‘“In der Schule von
Ludwig Mitteis”: Ernst Rabels rechtshistorische Ursprünge’ (2001) 65 RabelsZ
1–38.
10 See J Basedow, U Drobnig, R Ellger et al Aufbruch nach Europa: 75 Jahre Max-
Planck-Institut für Privatrecht (2001).
11 Rappor t sur le droit comparé en matière de vente par l’Institut für ausländisches und
internationales Privatrecht’ de Berlin, easily accessible today in HG Leser (ed) Ernst
Rabel: Gesammelte Aufsätze volIII (1967) 381–484.
12 E Rabel ‘Die Arbeiten zur Vereinheitlichung des Kaufrechts’ in Gesammelte
Aufsätze (n11) 496–515.
13 E Rabel ‘Der Entwurf eines einheitlichen Kaufgesetzes’ in Gesammelte
Aufsätze (n11) 522–612; see also E Rabel ‘A draft of an international law of sales’
in Gesammelte Aufsätze (n11) 613–36.
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