The Making of European Private Law: Toward a Ius Commune Europaeum as a Mixed Legal SystemIntersentia nv, 2002 - 306 pages The private law of the Member States of the European Union has become more and more 'European'. The fact that the European Union is making ever more use of directives as an instrument to achieve private law goals, is, in this context, not the most important development. Of much more substance is the fact that one increasingly realises that a uniform European private law has to be created, in one way or another, in the near future, if a truly common European market is to function at all. Over the last decade, Europe has witnessed the emergence of a vigorous debate about the need for and the feasibility of a future European ius commune in the field of private law. This book critically discusses this debate and provides a systematic overview of the various initiatives taken and describes the fragmentary European private law that already exists (by way of European directives, international conventions, etc.). In addition, the author aims at making a contribution to the debate by suggesting that the experience (good or bad) of the so-called 'mixed legal systems' is of great importance to the European private law venture and to the development of a uniform private law for Europe. This idea is supported by insights from Law & Economics and illustrated by South African law in particular. This idea of 'European private law as a mixed legal system' is then applied to the law of contracts, torts and property. This book takes up the challenge to give a critical examination on the various methods of creating this ius commune. A detailed table of contents, list of abbreviations, bibliography, table of cases and index complete the book and make it a valuable study for everyone interested in European private law. |
Contents
cas | 6 |
D | 19 |
NONCENTRALIST METHODS TOWARDS A IUS COMMUNE | 35 |
5 | 59 |
Eight Possible Objections to the Free Movement | 66 |
CHAPTER 3 | 73 |
4 | 82 |
2 | 114 |
Damages | 179 |
CHAPTER 6 | 187 |
C | 193 |
C | 203 |
C | 210 |
74 | 216 |
CHAPTER 7 | 229 |
6 | 242 |
Common terms and phrases
AJCL applied approach Cape century chapter civil law civil law tradition codification commercial common law comparative law context continental contract law Convention countries customary law discussed doctrine Dutch law economic English law ERPL Europe European Civil Code European Contract Law European Law European legal European private law European Union example exist faith German law Hartkamp highest court Hrsg important influence interpretation ius commune judgments Kötz law and common law of contract law of obligations law system legal culture legal rules legal science legal transplants legislation lex mercatoria liability Louisiana Markesinis method mixed legal systems mixed system national law Netherlands parties PECL possible Principles Privatrecht property law provides Quebec Raad RabelsZ Recht recognised role Roman law Roman-Dutch law SALJ Scots law South African law Southern Cross 1996 specific stare decisis Supreme Court systematisation theory THRHR tort law trust Unidroit unification ZEuP Zimmermann Zweigert/Kötz 1998