1

UNIVERSITY OF AMSTERDAM

Master`s Thesis

European Private Law

(ir)reconciliable differences between the Civil and Common

law traditions?

Supervisor: Martijn Hesselink,

Second Reader, Selma De Groot,

Course: European Private Law, LLM, 2014, University of Amsterdam

1.Introduction ................................

2.The Civil Law and Common Law Traditions

2.1 Historical Background and D

2.2 Distinctive Mode of Thought

2.3 Legal Sources ................................

3. Convergence or Diverge

4.Results of the Debate

5. Conclusion………………………………………………………………………………………...

UNIVERSITY OF AMSTERDAM

Faculty of LawOudemanhuispoort 41012 CN Amsterdam

Master`s Thesis

European Private Law – A Dream or Reality in the face of

(ir)reconciliable differences between the Civil and Common

Second Reader, Selma De Groot,

Course: European Private Law, LLM, 2014, University of Amsterdam

Mladen Vujic10604030

...............................................................................................................................

2.The Civil Law and Common Law Traditions ..............................................................

Background and Development ................................................................

Distinctive Mode of Thought .......................................................................................

......................................................................................................................

3. Convergence or Divergence of Private Law………………………………………….

4.Results of the Debate…………………………………………………………………………

………………………………………………………………………………………...

in the face of

(ir)reconciliable differences between the Civil and Common

............................... 2

.............................. 6

................................. 8

....................... 11

...................... 14

………………………………………….17

………………………………………………………………………… 29

………………………………………………………………………………………...31

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1. June 2014

1. Introduction

One of the most compelling and lively debates in the field of private law in Europe concerns the unification and harmonization of law. The main reasons for unification and harmonization are said to be the enhancement of free movement of persons, services and capital and lower transaction costs1. These would eventually facilitate cross border transactions and promote the Internal Market2. In this respect, the Commission buoyantly stated that the difficulty in finding out the provisions of a foreign contract law is one of the ‘top barriers’ to cross-border trade for businesses or a ‘major contributing factor’ to obstructions to cross-border trade3.In the Commission`s own words, disparities between Member States` contract laws are perceived as having the capacity to directly affect the functioning of the common market4. Unification and harmonization of private law have frequently been proffered as a solution to this problem5. Many commentators have addressed the topic especially since 1989, when theEuropean Parliament6 in its resolution called for elaboration of European Civil Code,7 This brought about the emergence of a new scholarly discipline of European Private Law8.

1 See C. Ott and H. B. Schafer, Unification of European Contract Law: Economic Necessity or Academic Interest, in C. Ott and H. B. Schafer, Unification and Diversity of European Civil Law , p. 207, 2002

2 C. Schmid, Legitimacy Conditions for a European Civil Code, European University Institute Working Paper Law No. 2001/14

3 Proposal for a Regulation on a Common European Sales Law, supra n. 11, recital (1).

44 L.Miller, The Emergence of EU Contract Law, Europeanization and Diversity, page 186, Oxford University Press, 2011.

5 G.Low, The (Ir)Relevance of Harmonization and Legal Diversity to European Contract Law: A Perspective from Psychology, European Review of Private Law, 2010.

6 Resolution of 26 May 1989, C 157/89

7 J. M. Smits, The Making of European Private Law – Convergence of Private Law in Europe, Towards a Ius Commune Europeanum, Intersentia, 2002

8 Ibidem

3

Among other tasks, this discipline seeks to provide an answer to the contentious question of

whether and if so to what extent the European Union is in need of a uniform private law9 and

what its main traits should be. On the path towards a uniform and harmonized law the

differences between legal traditions, especially between the Civil Law and Common Law

represent a serious obstacle. Views on the relevance of this hurdle and the impact it might

have on the Europeanization of private law significantly differ. On the one hand, Pierre

Legrand10, whose work remains relevant to this day11, holds a rather extreme view that the

convergence between Common Law and Civil Law is almost utterly impossible. According to

him, unification and harmonization of private law is neither desirable, nor feasible. Others,

like Reinhard Zimmermann12 hold the view that the differences have never been so

conspicuous. He considers that all areas of private law should be subject to genuinely

European, as opposed to national scholarship and that endeavors to further Europeanization

should be fostered13.

The main aim of this thesis is to analyze the impact differences among legal traditions of the

Civil Law and Common Law may have on the future of private law in Europe. To this end,

the present contribution will focus on answering the question whether it is feasible to

reconcile the Civil and Common Law legal traditions in the complex process of building a

new and uniform private law. Can legal uniformity be achieved, neglecting existing

divergences among legal traditions, or is this simply impossible taking into consideration the

divergences between both legal traditions. Put more succinctly: Is European Private Law at

this point just an idea, albeit an inspiring one, or something which can become a palpable

reality in the foreseeable future? In order to explore this crucial question, we will first

examine two issues which we find essential for this debate: (i) Do the Civil Law and Common

9See on this G. Low, The (Ir)Relevance of Harmonization and Legal Diversity to European Contract Law: A Perspective from Psychology, European Review of Private Law, 2010; R. S. Green, Choice, Certainty and Diversity, Why More is Less, European Review of Contract Law, 2011

10 P. Legrand, European Legal Systems are not Converging, International and Comparative Law Quarterly, 1996

11 See For Instance R. Michaels, Why We have No Theory of European Private Law Pluralism, in Pluralism and Private Law edition by L.Niglia, Hart Publishing, 2013

12 R. Zimmermann, Roman Law and European Legal Unity, Towards a European Civil Code, A. Hartkamp, Kluwer Law International , 2010

13 R. Zimmermann, The Present State of European Private Law, The American Journal of Comparative Law, 2009

4

Law traditions converge in terms of style and (ii) whether it is feasible at all to achieve a real

convergence of private law given the current diversity amongst national private legal systems

in Europe.

The method for this analysis is chosen having in mind tasks it strives to fulfill. Hence this

work shall be primarily positivistic: It will attempt to give an answer to the question of

whether European Private Law is feasible, rather than taking a normative approach wherein

recommendations about what the law should be are given. For answering the question of

possible convergence of the style of the Civil Law and Common Law, the method used is

comparative.14Using this method will enable to compare and contrast the style of Civil Law

and Common Law within these legal traditions effectively in order to show whether they are

converging and if so to what extent. This would not be possible by using only one -

dimensional cultural comparison15, as it often tends to oppose comparative evaluation and

legal unification as a possible outcome, stressing the significance of legal mentality specific

for national legal systems16. Consequently, the comparative method is more suitable to serve

the aforementioned purpose. However, in case the conclusion is reached that it is indeed

feasible to reconcile the differences between Civil Law and Common Law; I will try to put

forth suggestions regarding the most appropriate method to achieve European Private Law, as

well as ideas on how this should be carried out. In that respect, this work shall be normative.

The thesis is organized as follows: After a brief introduction, Part II will compare the Civil

Law and Common Law traditions in more general terms, by using their most prominent

characteristics as comparison tools. Namely, their historical background and development,

distinctive mode of thought and sources of law. They reflect the style17 of these major legal

traditions, and have been selected precisely for that reason. According to German scholars

14 K. Zweigert and H. Kötz, An Introduction to Comparative Law, Oxford University Press, 2011

15 R. Michaels, Comparative Law, Oxford Handbook of European Private Law ( Basedow, Hopt, Zimmermann, Oxford University Press), 2011

16 R .Michaels, Comparative Law, Oxford Handbook of European Private Law ( Basedow, Hopt, Zimmermann, Oxford University Press), 2011

17 K. Zweigert and H. Kötz, An Introduction to Comparative Law, Oxford University Press, 2011

5

Zweigert and Kötz, what is vital in any legal tradition or legal system is their style18.

Although there are other substantial differences between the Civil Law and Common Law in

terms of substance and different values they pursue, the notion of the style of legal families

seems to be the most appropriate for the initial comparison of their characteristics. The

question of convergence or divergence and the possibility of convergence of private law will

hopefully become a lot clearer and unambiguous after examining these essential features.

Private law did not develop and exist separately and in isolation from these elements but

rather inside the framework set by these elements. This broader picture will help to

understand the core of the concepts of convergence and divergence of private law in Europe

and the problems that arise as a consequence thereof.

In addition, after these comparative observations Part III will seek to answer the pertinent

question of whether it is possible to achieve the real convergence, taking into consideration

the current diversity of the private law in Europe, particularly stemming from the difference in

legal traditions of Civil Law and Common Law. In this respect, the crucial question is can

Civil Law and Common Law traditions be reconciled when it comes to private law and if so

how should this be conducted? Existing views on this shall be presented, together with their

respective strengths and weaknesses. In addition, I will address the most recent attempts to

harmonize and unify private law namely DCFR and CESL and whether they contribute in

bridging the gap between Civil Law and Common Law.

The outcome of the convergence debate shall subsequently be discussed in the Part IV, with

particular emphasis on constructing a new private law in Europe. What is the impact of the

alleged similarities or differences on European Private Law? If European Private Law is

feasible and differences between Civil Law and Common Law traditions are thus not

insurmountable then another question of paramount importance arises: What is the best

approach in designing new uniform private law rules? Currently dominant views are gathered

around two basic methods. On the one hand, the first is concerned with European legal

science and non binding legislation and puts forth model rules as an alternative to binding

legislation. It contends that European Private Law should be primarily designed and

developed by academics. This represents the so called soft approach to the Europeanization of

private law. The second one pushes for the inclusion of binding legislation with the European

Civil Code as the main aim and defends this as the most desirable outcome. Which among

18 Ibidem

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these methods is deemed to be the most appropriate to accomplish this complex task? Should

European Private Law be codified19? Or should it be left to the academics in their job of

giving birth to a new legal science?20In this sense, what is the contribution of the recent

attempts of the DCFR and CESL to overcome divergences and achieve uniformity? Will

European Private Law despite all efforts remain just a dream?

The conclusion will attempt to sum up all views on the feasibility of European private law and

offer possible solutions to the lasting problems discussed in the previous sections. While the

present debate is highly intellectually stimulating and attractive from a legal perspective, it is

no less true that it remains one of the most challenging and demanding contemporaneous

questions within the field of private law in Europe. All views presented herein are therefore

only a humble contribution to this debate.

2. The Civil Law and Common Law Traditions

First and foremost and for the purpose of the coherence of the ensuing discussion, the term

‘legal tradition’ must be defined. Hence, legal tradition has often been described in the

following terms:

‘A set of deep rooted, historically conditioned attitudes about the nature of law, about

the role of law in the society … about the proper organization and operation of a legal

system, and about the way the law is or should be made, applied, studied, perfected

and taught.’21

Legal tradition thus refers to the current state and conception of the law as a product of its

specific historical background22. The concept of legal families is related to legal tradition,

although it places more emphasis on the grouping of legal systems into branches and the

19 This question is among most disputed ones. See for example- H. Collins, The European Civil Code- The Way

Forward, Cambridge University Press 2008

20 U. Mattei, Hard Code Now, Global Jurist Frontiers, 2002

21 J. H. Merryman, The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America. 2nd ed. Stanford University Press, 1985

22 M. W. Hesselink, Lecture - Legal Traditions ( Common Law and Civil Law), Course- European Private Law, Amsterdam Law School, Amsterdam, 2014

7

establishment of a hierarchy between them.23Admittedly, the concepts of legal tradition and

legal families are interrelated and connected24, but for the purpose of this work the term legal

tradition shall be used as it reflects the origins of the law to a greater extent and is thus more

appropriate for the present analysis25. It draws attention to normative remnants of the past

which have survived until the present.26A broad concept of tradition is therefore crucial to

understanding law itself since it captures elements that tend to be overlooked by legal

theorists who analyze law in abstract terms (such as command, norms, rules and principles) or

social theorists who analyze it in terms of roles, interests, power, and systems etc. What they

often ignore is ‘pastness’: the idea that tradition draws attention to the authoritative presence

of the past, which is extremely pervasive in almost all legal systems.27I will not delve deep

into the debate on the terminology, as I believe that both the legal tradition and legal family

are similar and related terms. For the purpose of the present work, the use of the term ‘legal

families’ shall be reserved for the division of the legal systems into larger groups called legal

families.

Two major legal traditions are Civil Law and Common Law. This is reflected by the fact that

it has often been said that most legal systems follow either the tradition of Civil Law or

Common Law28. By this it is meant that they share a distinctive heritage.29 It is extremely

difficult to make a precise division of which particular legal systems belong to which

tradition, but roughly speaking Civil Law tradition encompasses Continental Europe, Latin

America, most of Africa and many Central European and Asian legal systems. England, along

23 Ibidem

24 Ibidem

25 For more about the legal traditions and explanation of differences between them- See J.M. Smits, Is Law a Parasite? An Evolutionary Explanation of Differences among Legal Traditions, Maastricht European Private Law Institute Working Paper No.2011/31

26 H. P. Glenn, Legal Traditions of the World: Sustainable Diversity in Law, Oxford University Press, 2010

27 M. Krygier, Law as Tradition, 1986

28 P. De Cruz, Comparative Law in a Changing World, pages 37-41, The Classification of Legal Systems into Legal Families, Routledge and Cavendish, 2007

29 M. A. Glendon, M. W. Gordon, and P. G. Carozza, Comparative Legal Traditions, St. Paul, Minnesota: West Group, 1999

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with the United States and other countries once part of the British Empire, belong to the

Common Law legal tradition30.

The Civil Law legal tradition encompasses legal systems that are historically based on Roman

Law. The term Civil Law comes from the Latin word Ius Civile: the law applicable to all

Roman citizens. It should therefore be distinguished from the other meaning of the term Civil

Law referring to the law governing private relationship between individuals.

The Common Law legal tradition emerged in the England in the middle Ages and refers to the

legal systems that are generally speaking uncodified. They rely heavily on the case law and

precedents, i.e. judicial decisions that have already been rendered in similar cases.

The following paragraphs will be devoted to the comparison of Civil Law and Common Law

using as comparison tools characteristics that reflect their style31. These are historical

background, distinctive mode of thought and sources of law each tradition acknowledge.

2.1 Historical Background

Civil Law legal systems originate from the period around 450 BC. This is marked in legal

history as the beginning of the development of Civil Law. The reason behind this is that the

Twelve Tablets, the first ever written law on dispute resolution were published in Ancient

Rome. The Twelve Tablets designed and structured rules on court proceedings for the first

time, establishing their significance in legal tradition. The next important period for the Civil

Law is known by the work of Emperor Justinian who made his famous compilation of law

later named Corpus Iuris Civilis in the 6th century. It was a large codification of private law

including family, property, contract and inheritance law. It originally consisted of three parts,

the most important of which was called Digest or Pandectae. The Commission established by

Justinian gathered and revised the whole existing, relevant ancient Roman Law. Although at

the moment of its emergence it did not achieve full success because Germanic tribes used

primarily their local laws and customs, this codification enabled the further studying of

Roman Law at Italian and French universities at the beginning of 12th century.

30 See on this E. Örücü, A General View of Legal Families and of Mixing Systems, pages 170-187 in Comparative Law a Handbook, edited by E. Örücü and D. Nelken, Hart Publishing, 2007

31 K. Zweigert and H. Kötz, An Introduction to Comparative Law, Oxford University Press, 2011

9

The third stage of development of Civil Law began after the so called Dark Ages.Europe

witnessed the vivid revival of the Roman Law. Famous universities in Italy and France began

to explore and teach Roman Law again. During this time the first modern European university

was founded in Bologna. Students came to study civil law from all over Europe and brought

this influence back to their own countries.32Scholars tried to adapt Roman Law as it was in the

Corpus to the needs and reality of that time. They were called Glossators, because the changes

– glosses - they made to the Digest. Their work contributed to the rise of Roman Law in its

new form. They and their own students became the new profession of lawyers who found

places not only in universities, but in the administrations of princes, cities and the Church.

In Paris and Oxford, Prague and Heidelberg, Cracow and Copenhagen, a fusion took place

between the medieval Romano-Germanic law and the learning based on the revived Roman

law. To varying degrees, this compound learning formed the base from which the majority of

national civil law legal systems subsequently emerged.33

Roman civil law, together with the abundant literature generated by the Glossators and

Commentators, came to be the Ius Commune, the common law, of Europe. “There was a

common body of law and of writing about law, a common legal language, and a common

method of teaching and scholarship” (Merryman).

In France, famous centers for the study of Roman Law were located at Toulouse and

Montpellier. The south of France especially was under the heavy influence of Roman Law at

that time, whereas the law of the northern part of the country was based on local Germanic –

Frankish customary law34. Despite the visible presence of Roman Law in medieval France,

there was no serious discussion regarding the complete reception of Roman Law into

France35. Local customs were prevalent. Consequently, the reception of Roman Law was

rather moderate and gradual.

Germany, however, got acquainted with the Roman Law in the 15th century, later than Italy

32 J. H. Merryman, The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America. 2nd ed. Stanford , 1985

33 M. A. Glendon, M. W. Gordon, Comparative Legal Traditions, West Publishing, 1982

34 K. Zweigert and H. Kötz, An Introduction to Comparative Law, Oxford University Press, 2011

35 Ibidem

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and France. The Central powers were weak and German local law was not adequate to fulfill

the needs of that time. Hence, the ground for the reception of Roman Law was fertile. Basic

Roman concepts, phraseology and methods were thus accepted. This had a deep impact on the

local people and the way the law was perceived. Reception was widespread.

Furthermore, in the 18th century Savigny and his followers once again turned to the study and

exploration of Roman Law as it was originally found in the Corpus Iuris. They believed that

the highest educational value resided in the return to the purity and truth of an ancient Roman

Law.36They systematized, organized Roman materials and contributed to the overall return to

the original ancient sources of law.

The idea of the codification of German law was born in the middle of the 19th century.

German scholars continued the investigation of classical Roman Law with the aim of

discovering its “latent system”, which they intended to adapt to the needs of their own society.

In this particular process, they brought the study of the Digest to its highest and most

systematic level, which henceforth became known as the Pandectists37. Their work on

German Civil Code therefore was founded on the principles of Roman Law and the Roman

spirit in the code is conspicuous.

Common Law emerged and developed in different social, political and cultural circumstances

from Civil Law38. The beginning of its legal history is linked to the Norman conquest of

Britain in 1066. Normans managed to achieve a high level of organization of the central

power, which enabled the development of the judicial system. In order to establish a Norman

legal order in a foreign country, William the Conqueror deputized a “corps of loyal

adjudicators” or judges to resolve disputes at the local level and essentially make the

law.39Initiated by fiscal reasons, so called kings courts started to be involved in private

disputes also. Royal justice reached a high level in terms of organization, because it was

supported by a firm central power. This process led to the centralization of justice and the

36 Ibidem

37 . A. Glendon, M. W. Gordon, Comparative Legal Traditions, West Publishing, 1982

38 P. De Cruz, Comparative Law in a Changing World, Chapter 4, The English Common Law Tradition, Routledge and Cavendish, 2007

39 H. P. Glenn, Legal Traditions of the World: Sustainable Diversity in Law, Oxford University Press, 2010.

11

unification of English law in the following centuries.40Local rules lost their practical

importance, and the law created and unified by the judges and their practice served its

function well. That was one of the major reasons why the idea of codification has never been

considered as seriously as it has in Civil Law tradition.

While considering the historical development of Common Law, it must be pointed out that

Common Law has not been significantly influenced by Roman Law. Its influence has rather

been peripheral41.

Compared to the Civil Law tradition, historical development and background was

substantially different. Whereas Civil Law was founded mostly on the basis of Roman Law

and the concepts related to it, Common Law was immune to Roman Law and had its own path

of legal evolution. As far as the codification of the law is concerned, Civil Law tradition

embraced the idea of codification, systematizing and organizing the law into coherent codes.

Common Law, on the other hand was reluctant to gather and codify existing rules, and opted

for the creation of law on a practical case to case basis. Therefore, if we look closely at the

legal history and origins of Civil Law and Common Law, different social and political factors

contributed to the different historical development of the two major legal traditions. We can

conclude that these chief differences concern the impact of Roman Law and the idea of

codification.

In comparison with Civil Law legal tradition, which was heavily based on Roman Law,

Common Law remained rather isolated from it. When it comes to codification, legal systems

that are part of the Civil Law tradition have sought to achieve it throughout history. Quite

conversely, Common Law has never accepted codification as its general principle42. The

history of these traditions can be looked at and compared from many angles, including various

criteria, relations and actors. In spite of this, I believe that the key differences between Civil

Law and Common Law in terms of their historical development relate to the products and

results of its development. These are questions which revolve around the acceptance of

40 K. Zweigert and H. Kötz, An Introduction to Comparative Law, Oxford University Press , 2011

41 Ibidem

42 Nevertheless, some parts of the Common Law are already codified. For instance, the Uniform Commercial Code in the United States represents evidence in this respect. See more on the Uniform Commercial Code, A. H. Boss, The Future of the Uniform Commercial Code Process in an Increasingly International World, Legal Studies Research Paper Series, Research Paper No. 2007-06, Temple University Beasley School of Law, 2007

12

Roman Law and the (un)desirability of codification. It is from that point of view that Civil

Law and Common Law have considerably diverged historically.

2.2 Distinctive Mode of Thought

Another important hallmark of the legal traditions is a distinctive mode of legal reasoning43.

This element of the style of the legal traditions is best described by answering the question of

which concepts and methods Civil Law and Common Law lawyers use in reasoning about the

law and discovering the content therein. In the Civil Law tradition the prevalent method is the

deductive method44. Abstract norms are used in a well defined manner and law is applied

according to rules and legal standards contained in statues and codes. Law is created and

prepared in advance, and areas of law are clearly distinguished. Generally speaking, the mode

of thought characteristic of the Civil Law tradition is based on consistency, deduction and

rules made in advance45.

On the other hand, the Common Law tradition focuses on applying the law on a case to case

basis using the inductive method. It has never been preoccupied with the idea of codifying

and systematizing law at the same extent as Civil Law has. Indeed, Common Law lawyers are

unwilling to generalize, define and articulate concepts46.

The best comparison of the two ways of thinking is found in the words of Lord Cooper who

clearly and effectively compared mode of thoughts and stressed the essential differences that

come out of these:

The distinction may be put in many ways. A civilian system differs from a Common

Law system much as rationalism differs from empiricism and deduction from

induction. The civilian naturally reasons from principles to instances, the common

43 See more on Legal Reasoning, B. G. Scharffs, The Character of Legal Reasoning, Washington and Lee Law Review, 2004

44 V. V. Palmer, Double Reasoning in the Codified Mixed Systems- Code and Case Law as Simultaneous , Methods, Journal of Comparative Law, 2012

45 V. O`Connor, Practitioner`s Guide Common Law and Civil Law Traditions, International Network to Promote the Rule of Law, 2012

46 P. De Cruz, Comparative Law in a Changing World, Chapter 4, The English Common Law Tradition, Routledge and Cavendish, 2007

13

lawyer from instances to principles. The civilian puts his faith in syllogisms, the

common lawyer in precedents; the first silently asking himself as each new problem

arises, ‘what should we do this time? and the second asking aloud in the same

situation ‘what did we do last time’? The civilian thinks in terms of rights and duties,

the common lawyer in terms of remedies. The civilian is chiefly concerned with the

policy and rationale of a rule of law, the common lawyer with its pedigree; the instinct

of the civilian is to systematize. The working rule of common lawyer is solvitur

ambulando.47

As a result, it is said that Common Law lawyers are more pragmatic, while Civil Law lawyers

think more abstractly in terms of institutions and principles.

The second perceived difference concerns the application of the law and the role of courts in

that regard. The authoritative power of the case law, present in the Common Law, lead to the

creation of a practice of following precedents, and the so called stare decisis doctrine. This

doctrine implies that precedents have binding force, and should be respected in similar factual

situations. On the contrary, Civil Law tradition, unlike Common Law does not formally

respect the doctrine of stare decisis48. Stare decisis is a legal principle by which judges are

obliged to follow the rules established in previous cases. It has two aspects: horizontal and

vertical. Horizontal means that courts are formally bound by its own decisions.49Vertical

suggests that decisions of higher courts are binding on lower courts50.

The Civil Law legal tradition experienced quite different historical circumstances than

Common Law, as was described in Part 2.1. The role of the courts was imagined and designed

not as the law maker, but simply to apply the law, already existent in the statutes. According

to Lasser, ‘the most basic foundational idea of the French legal and political order has

47 Lord Cooper of Culross, The Common Law and the Civil Law – A Scot’s View, Harvard Law Review, 1950

48 K. Funken, The Best of Both Worlds – The Trends Towards Convergence of the Civil Law and the Common Law System, 2003

49 J. W. Mead, Stare Decisis in the Inferior Courts of the United States, Nevada Law Journal, 2012

50 Ibidem

14

traditionally been that the legislature, and the legislature alone, is supposed to have law-

making power.’51

Given the fact that one of the most evident characteristics of the Common Law is abiding by

the stare decisis doctrine, and that Civil Law is generally resistant towards it, the conclusion

can be drawn that Civil Law and Common Law substantially diverge in another crucial

element of the style. Nonetheless, this statement is not entirely true. Many scholars share the

view that differences are fading away and that Civil Law tradition applies the doctrine of

binding force of precedents as well. It is an obvious trend that in Civil Law the precedent

plays an important role in practice, even when this is not always covered in a legal

literature.52One of the arguments to support this view and to explain this is that judges do not

want to undermine their authority by overturning their previous decisions. Additionally, and

in relation to this, judges of lower courts depend on higher court judges for career promotions

and lower court decisions are reviewed by the higher courts.53 Further examples of Civil Law

adopting the case law may be that often due to legislative deficiencies, gaps are filled with the

previous decisions made in similar cases. This led to a practice that is somewhat similar to

what has been happening in the Common Law tradition for centuries. To illustrate this, an

example is given regarding the French Cour de Cassation : “…the decisions of the Cour de

Cassation despite the absence of a formal doctrine of stare decisis certainly have force for the

lower courts whose decisions would be appealable to those same courts.”54

Therefore, although Civil Law and Common Law began from opposite directions through

history as far as the doctrine of stare decisis is concerned, nowadays they show the signs of

convergence, and I am convinced that this trend will continue. The behavior of Civil Law

judges described above gives me reason to believe that this will be so. After all, this is not

something new, because the literature is rich with claims and empirical evidence to support

51 M De Sol’E Lasser, Judicial Deliberations. A Comparative Analysis of Judicial Transparency and LegitimacyOxford University Press, New York 2004, Also on this, V. Fon and F. Parisi, Judicial Precedents in Civil Law Systems: A Dynamic Analysis, International Review for Law and Economics, 2006

52 E. Hondius, Precedent and the Law, Electronic Journal of Comparative Law, Vol.11.3, 2007

53 M. G. Algero, The Sources of Law and the Value of Precedent: A Comparative and Empirical Study of a Civil Law - State in a Common Law Nation, Louisiana Law Review, Volume 65, 2005

54 Ibidem

15

this view.55 Of course, Civil Law systems have never directly proclaimed the application of

binding force of precedent. In many legal systems following Civil Law tradition though,

previous decisions have de facto binding effect. In sum, my view will be closest to the

argument presented by Zweigert and Kötz: It is hardly an exaggeration to say that the doctrine of

stare decisis in the Common Law and the practice of Continental courts generally lead to the same

results.56”

2.3 Legal Sources

Legal sources acknowledged and followed by Civil Law and Common Law traditions are

interdependent with the previous elements of the style described above. They have been

largely determined by historical conditions under which they were developed and mode of

thought which was prevalent under each tradition.

Civil Law tradition has always been enthusiastic with the idea of codifying and systematizing

the law. Rule-fixation is stronger in the culture of the Civil Law than of the Common Law because of

the peculiar character and the extraordinary success of the French Code Civil and of nineteenth

century German legal science (which was a science of rules).57

That attachment to the written rules and abstract notions influenced the whole Civil Law

tradition. Thus it seems perfectly logical that primary source of law is legislation enacted in

Parliament. Within civil law countries, there is a strict hierarchy of laws. At the top of the

hierarchy is the Constitution, followed by codes and other legislation (emanating from the

executive or parliamentary branches depending upon the legal system), then executive

decrees, regulations, followed by local ordinances. Custom, as a rare source of law sits at the

bottom of the pyramid and would rarely be relied upon in court.58In the Civil Law tradition

55 E. Hondius, Precedent and the Law, Electronic Journal of Comparative Law, Vol.11.3, 2007

56 K. Zweigert and H. Kötz, An Introduction to Comparative Law, Oxford University Press, 2011

57 J. H. Merryman, On the Convergence and (Divergence) of the Civil Law and the Common Law, New Perspectives for a Common Law of Europe, 1978

58 V. O`Connor, Practitioner`s Guide Common Law and Civil Law Traditions, International Network to Promote the Rule of Law, 2012

16

there is a widespread belief that legislators should make the law and that judges should simply

apply it.59

Common Law through its history did not show much appreciation for codification and

structuring of law, its primary focus was on case law, which was created by means of judicial

decisions. Case law represented the primary source of law, whereas statutes were viewed as

secondary sources with its function to correct judicially created rules.60

Sources of law respected and being followed by Civil Law and Common Law at first glance

appear to differ remarkably. However, one should be cautious before making any firm claims

regarding sources of law in Civil Law and Common Law. The reason for increased attention

is the fact that recently, judges in legal systems following Civil Law show a tendency to abide

by previous decisions in similar cases. Furthermore, the practice of Common Law is

astonishingly moving to the codification of law and enacting written statutes. The trend of

convergence is justified by the fact that both traditions wanted to implement advantages of the

other in their own tradition. Civil Law on the one hand, wanted to ensure consistency in

application of the law and make it more predictable. On the other hand, the sudden inclination

of Common Law towards codification is explained mostly by the requirements of modern

society and unification of certain fields of law. The reason for the increasing codification in

Common Law jurisdictions, according to Guido Calabresi, is that the courts are not capable

of writing speedily enough most of the rules that a modern society apparently needs.61" To

support this trend of convergence, one can argue that some of the major fields of law in

Common Law systems are already codified to a non-negligible extent. Evidence for this

comes from Australia, England and the United States. In these countries, there has been an

extensive body of codes in the fields of bankruptcy, intellectual property, antitrust, banking,

regulation, securities and tax law62. The abundance of enacted statues in the United States

made Guido Calabresi state that America had entered the age of statutes63. The biggest

59 Ibidem

60 Ibidem

61 G. Calabresi supra note 4, at163. As cited in K. Funken, The Best of Both Worlds – The Trends Towards Convergence of the Civil Law and the Common Law System, 2003

62 See U. Mattei, Comparative Law and Economics, University of Michigan Press, Michigan, 1997

63 G. Calabresi, A Common Law for the Age of Statutes, Harvard University Press, 1985

17

codification project in the United States – the Uniform Commercial Code, was also

considered as a triumph of codification wave in the Common Law systems. It is one of the

most successful projects in American Law making, because in its wording it showed

understanding of business needs and reality. It clearly demonstrated the benefits of Civil Law

elements, and undermined the force of the opposition to codification64. In my opinion, this

trend is irreversible, because what caused this convergence was the necessity to adopt certain

features belonging to different tradition. As can be observed, that was deemed to be beneficial

and the gap that initially seemed to be unbridgeable is rapidly decreasing.

2.4 Convergence or Divergence of styles of the Civil Law and Common Law traditions

The results of this comparison of styles of the Civil Law and Common Law traditions show

that Civil Law and Common Law developed in historically, socially and culturally different

circumstances which was the reason for the existence of crucial differences between them in

terms of the legal reasoning and sources of law they acknowledged. However, gradually as

the circumstances changed, these differences diminished, so there has been mutual accepting

of legal concepts between Civil Law and Common Law.

As we see, in terms of the style Civil Law and Common Law are not miles away from each

other, and in that perspective convergence of private law in these traditions should be further

examined. Despite the overall importance of the style of these major legal traditions for the

feasibility of the European Private Law, the most recent developments in this field offer proof

of the relativization of its significance. In the response of the UK Government to the

Commission Proposal for a Regulation on the Common European Sales Law, 65the main

reasons for the reluctance to accept this legislative proposal were not the differences in terms

of the style but rather a sense of uncertainty that it will lead to benefits for consumers or

businesses66. Whereas the UK fully supports the efforts to simplify consumer law,67 there is

insufficient evidence to demonstrate that a new, optional, highly complex legal instrument

focused on contract law for cross-border sales can provide benefits to consumers or business.

64 W. Hawkland, Uniform Commercial Code and the Civil Codes, Louisiana Law Review, Volume 56, 1995

65 European Commission Proposal for a Regulation of the European Parliament and of the Council on a Common European Sales Law, Brussels, 2011

66 UK Ministry of Justice, A Common European Sales Law for the European Union – A Proposal for a Regulation from the European Commission, The Government Response, 2012

67 Ibidem

18

Nor is it clear that it will achieve the benefits to cross border trade and growth it presumes68.

This shifting towards the needs of business rather than elements of the style might be the

logical response in this case, especially because society is changing at an unprecedented pace,

where economic and trading perspectives seem to be prevalent compared to the bonds with

tradition. The astonishing fact that at present only 9 % (!) of British consumers buy online

from other EU countries, while 53 % do so in the UK69 give reasons to hold such an attitude.

The UK is seeking to avoid legal burdens to efficient trade, and in this sense legal barriers

mean businesses sometimes refuse to sell to consumers living abroad70. Consequentially,

around 3 million European consumers are affected each year in the EU, and nearly 310,000 of

them are in the UK71. These numbers are staggering and it did not take me by surprise that the

elements of the style were superseded as the primary concerns in the UK, as far as the debate

on European Private Law is concerned. Another thing to be borne in mind is that during the

debate in the European Parliament on the establishment of the CESL, further criticism of

CESL came from the UK representative Earl of Darmouth who described it as a piece of

legislation with low value in comparison with the UK Sales of Goods Act72. This can be

interpreted as evidence that in the UK, a country with Common Law tradition, CESL is

compared with the legislative act, which means that appreciation for the elements of the style

that used to be of primary importance in the past have lost its vigor. This is a crucial issue for

the feasibility of European Private Law, and can serve as a strong argument in the further

debate.

3. Convergence or Divergence of Private Law

This Part will address the question of convergence or divergence of private law in Civil Law

and Common Law traditions. I will explore the question of to what extent private law in Civil

Law and Common Law traditions can converge, taking into account the existing diversity that

comes out of a plurality of legal systems belonging to different legal traditions in Europe? Out

68 Ibidem

69A Common Sales Law for Europe, Factsheet for United Kingdom, See http://ec.europa.eu/justice/contract/files/common_sales_law/sales_law_uk_en.pdf

70 Ibidem

71 Ibidem

72 European Parliament Debate on the establishment of the Common European Sales Law, Strasbourg, 2014

19

of twenty eight Member States currently, three of them follow the Common Law Tradition.

These are England, Ireland and Cyprus. Is it possible at all to reconcile Civil and Common

Law traditions in the so called Europeanization of private law? Views on the feasibility and

desirability of convergence of private law in Europe take quite opposite sides. On the one

hand, there are scholars who sparkled this question by forcefully denying any kind of possible

convergence. They stated that the differences between Civil Law and Common Law prevent

the mere idea of convergence. Main representatives of this opinion are Pierre Legrand73 and

Gunter Teubner74. On the other hand, scholars like Reinhard Zimmermann and Ole Lando

hold the view that differences are not that noticeable and that convergence can turn out to be

successful, offering methods in the pursuit of it. Lando is enthusiastic about convergence and

Europeanization of private law, proposing the adoption of European Civil Code75. Other

authors approach both views with caution, taking more modest and milder stances. I will

address these views as an initial step in answering the question before I analyze the most

recent attempts to Europeanize Private Law in Europe namely, CESL76 and DCFR77.

Canadian scholar Pierre Legrand, is well known for his negative attitude towards the

convergence of private law in Europe and any form of unification of private law in Europe.

His main argument is that cultural differences among the various legal systems, particularly

between Civil Law and Common Law are such that prevent any idea of European Private

Law78. He argues that what matters the most about the law is its cultural context. Rules

represent only the surface of the law, and the core of any law is situated in its legal culture. He

explains that in these words: Law simply cannot be captured by a set of neatly organized rules,

"the law" and "the rules" do not coexist and that there is indeed much "law" to be found beyond the 73 P. Legrand, European Legal Systems are not Converging, International and Comparative Law Quarterly, 1996

74 G. Teubner, Legal Irritants: Good Faith in British Law or How Unifying Law Ends up in New Divergences, The Modern Law Review, 1998

75 M. J. Bonell and O. Lando, Future Prospects of Unification of Contract Law in Europe and Worldwide, A Dialogue Between M.J. Bonell and O. Lando on the occasion of the seminar in honor of O. Lando held in Copenhagen on 2012

76 European Commission Proposal for a Regulation of the European Parliament and of the Council on a Common European Sales Law, Brussels, 2011

77 Principles, Definitions and Model Rules of European Private Law, Draft Common Frame of Reference,Prepared by the Study Group on a European Civil Code and the Research Group on EC Private Law (Acquis Group), 2009

78 P. Legrand, European Legal Systems are not Converging, International and Comparative Law Quarterly, 1996

20

rules79. The meaning of a particular rule in a particular cultural and national context can only

be discovered after studying that context80. He describes that context by using the notion of

the legal mentalité81. It is what he calls interiorized legal culture and for that reason, legal

traditions significantly differ regarding their own legal mentalité. All differences that exist

between Civil Law and Common Law tradition are products of cultural differences If we

conduct deeper examination in terms of legal mentalité, we draw the conclusion that Civil

Law and Common Law traditions despite their adjacency within the European Community, have

not been converging, are not converging and will not be converging in the future82. His view has been

heavily criticized as being too pessimistic and Euro Sceptic83. Although, Legrand`s view may sound

extreme, I agree with authors who claim that it has to be taken into account in the debate of the

feasibility of European Private Law84as kind of preliminary step, since he presented his views 15 years

ago. Legal culture clearly has a deep impact on the creation and evolution of law as such. As we saw,

the style of the Civil Law and Common Law traditions was largely determined by the legal culture.

However, I think that the main weakness in giving such importance to legal culture is in

overestimating its influence on consequences it might have on possible convergence. In that respect, in

Part II which dealt with comparison of the style of Civil Law and Common Law, it has been shown

that various reasons standing behind the birth of legal culture of Civil Law and Common Law have

gradually disappeared throughout history. Different social, political and cultural needs implied

adopting elements of the style until then so characteristic for other legal tradition. Civil and Common

Law traditions and legal systems within are not the same as they were at the beginning of their

development. To illustrate this, German law has experienced so many disruptions between 1800 and

today that one can speak of a unified legal culture only at a very high level of abstraction85.

Society itself is radically different from what it was at the time legal traditions were culturally rooted

79 Ibidem

80See J.M. Smits, The Making of European Private Law – Convergence of Private Law in Europe, Towards a Ius

Commune Europeanum, Intersentia 2002, on Legrand`s understanding of the convergence

81 P. Legrand, European Legal Systems are not Converging, International and Comparative Law Quarterly, 1996

82 Ibidem

83 For example, W. Twinning, General Jurisprudence, Understanding Law from a Global Perspective, page 311

Cambridge University Press 2009,

84 See on this J.M. Smits, The Making of European Private Law – Convergence of Private Law in Europe, Towards a Ius Commune Europeanum, Intersentia, 2002

85 R. Michaels, Legal Culture, Oxford Handbook of European Private Law ( Basedow, Hopt, Zimmermann, Oxford University Press), 2011

21

and shaped. Legal culture is not a static notion as such. It is susceptible to moving in different

directions depending on the needs of society. Legal culture is changeable86 and we cannot make such

firm far reaching statements such as that Civil Law and Common Law legal traditions will not be

converging at any point in the future. This was also confirmed as we saw by the gradual loss of

interest in legal culture in favor of economic needs as the recent examples in part 2.4 have shown.

Another opponent of convergence, albeit not a vehement one, is German scholar Gunther Teubner. He

uses the institute of good faith, an important factor in Europeanization of contract law, to claim that

unification and harmonization of private law, instead of the predicted convergence would lead to

further divergence87. The concept of good faith reflects the great historical divide between Civil Law

and Common Law. Interpreted the Civil Law way, the famous bona fides or good faith principle is the

expression of a unique continental legal culture88. The way Civil Law lawyers deal with good faith is

in line with their way of legal reasoning. The specific way in which continental lawyers deal

with such a 'general clause' is abstract, open-ended, principle-oriented, but at the same time

strongly systematized and dogmatized89. This is quite contrary to Common Law lawyers’

way of legal reasoning and thus, Teubner poses a pertinent question which might be of great

value to the convergence of private law debate. Would the inclusion of such a broad principle

as good faith in the Common Law mean that Common Law lawyers are supposed to

concretizethis principle in the way Civil Law lawyers do90? Teubner presents his view that

the good faith principle in the process of unification and harmonization of contract law shall

never be transplanted into the Common Law as it has been applied in Civil Law. Good faith,

applied in Common Law would rather become the so called legal irritant91. He clarifies his

view by stating that German concept of good faith emerged and continued to exist in specific

cultural and political circumstances and that it would not be likely to expect that such concept

can have the same or even a similar role before the English courts. The concept of good faith

as applied by English lawyers would be rather different and it would be situational in

86 J. M. Smits, The Making of European Private Law – Convergence of Private Law in Europe, Towards a Ius Commune Europeanum, Intersentia, 2002

87 G. Teubner, Legal Irritants: Good Faith in British Law or How Unifying Law Ends up in New Divergences,

The Modern Law Review, 1998

88 Ibidem

89 Ibidem

90 Ibidem

91 Ibidem

22

character92. He describes the role of good faith in contract law as inextricably linked to the

social and political environment. Social environment is volatile and political factors unstable

to the extent that transferring the good faith for the sake of Europeanization would bring more

diversity than intended unity.

If, under European law, good faith is transferred from the Continent to British law

and if it is supposed to play also in the new context its role of linking contracts to a

variety of different discourses, then it is bound to produce results at great variance

with continental legal orders. Good faith will reproduce in legal form larger

differences of the national cultures involved, and it will do so, paradoxically, because

it was meant to make their laws more uniform93.

He indicates that substantial differences between good faith in Germany and Britain are such

that transferring the good faith concept from Civil Law to Common Law tradition would

create more uncertainty and diversity of outcomes than it would have had the quest for a

unified European law been launched. This paradox of convergence process is an important

contribution to the feasibility of European Private Law debate. Teubner`s insight in the

eventual problems that might arise in the process of transferring good faith from the Civil

Law to the Common Law legal tradition is realistic in a way that reasonably questions

coherence of a new European Private Law. Good faith is a significant question of contract law

that needs to be tackled if any form of unification and harmonization of private law is to be

achieved. However, I would object to Teubner`s view for the same reasons I have objected to

Legrand`s. As society itself is constantly changing, we cannot make such sure predictions on

what would be the eventual consequences of the adoption of good faith in Common Law. Far

reaching predictions based on the current state of affairs and historical experiences although

valuable, are not necessarily true. From the time Teubner introduced his concept of legal

irritants, the attitude of English lawyers towards good faith has changed drastically. The first

step towards establishment of good faith came as a result of the transposition of the Unfair

Terms in Consumer Contracts Directive94. After the concept was introduced into English law,

92 Teubner gives explanation of situational character of good faith and refers to the work of J. Beatson and D. Friedmann (eds), Good Faith and Fault in Contract Law (Oxford: Clarendon, 1995) 191-228

93 Ibidem

94 Council Directive 93/13 EEC on Unfair Terms in Consumer Contracts

23

it has recently witnessed court decisions that brought implied duty of good faith into English

Law95. This case law clearly set the stage for the new era of development of good faith in

English Law. The main reason why courts decided to admit an implied duty of good faith in

some commercial contracts is that the needs of businesses for maintaining good and strong

relationships with partners prevailed over the traditional skepticism of English judges towards

the concept of good faith. As we can observe, this might serve as an additional point to

support the claim that currently UK as a Common Law country is more preoccupied with the

needs of businesses than with historically rooted concepts. It seems to me that English

lawyers are slowly but surely abandoning their negative attitude towards the introduction of

Civil Law concepts within the frame of the unification and harmonization of law because they

have become aware of the fact that differences between Civil Law and Common Law are after

all not unbridgeable. Nonetheless, Common Law is still not ripe for an official introduction

of the concept of good faith although quite evidently, as we can see from the recent case law,

it has certainly taken some steps in that direction. The chances for transferring the Civil Law

concept of good faith into Common Law are now higher than fifteen years ago. This is

something which was definitely very difficult to predict. For that reason, I doubt the validity

of Teubner`s negative predictions about the role of good faith in the European Private law, but

at this point his claims cannot be totally rejected either. It remains to be seen what role good

faith would have in the future of European Private Law. Should it become a general clause

like it is in the Civil Law Tradition, where it operates not only in all branches of contract law,

the law of obligations or private law, but in some countries even outside private law96? Or

should its field of application be limited to controlling the content of standard terms in

consumer contracts97? My view on this rather opaque question98 is that it should have a role

somewhat similar to that which it has in Civil Law seeing as how Common Law countries

have already shown a tendency towards the Civil Law concept not only in the case law but

95 See Yam Seng Pte Limited v International Trade Corporation Limited – [2013] EWHC 111 (QB), TSG Building Services plc v South Anglia Housing [2013] EWHC 1151 (TCC), Mid Essex Hospital Services NHS Trust v Compass Group [2013] EWCA Civ 200

96 M.W. Hesselink, The New European Legal Culture, The New Private Law: Essays on the Future of Private

Law in Europe, Kluwer Law International , 2002

97 Ibidem

98 E. Maackay, V. Leblanc, The Law and Economics of Good Faith in the Civil Law of Contract, prepared for the 2003 Conference of the European Association of Law and Economics, at Nancy, 2003

24

also in codified law99. As far as the role of good faith in Europeanization is concerned, I

would place emphasis on the recent case law of the ECJ which can be construed as being

beneficial for the feasibility of European Private Law. The ECJ has recently in the Pia v

Messner100 judgment established that Directive 97/7/EC101 on distance contracts does not in

principle preclude a legal provision of a Member State which requires a consumer to pay fair

compensation in the case where he has made use of the goods acquired under a distance

contract in a manner incompatible with the principles of civil law, such as those of good faith

or unjust enrichment102. Although attributing the role of the principle of good faith to a

general principle of civil law might be unintentional, it may represent a deliberate and novel

step towards a European Private Law103. As a conclusion it can be said that the concept of

good faith in itself should not keep common law and civil law lawyers divided104. In this

respect: common law lawyers should not fear the concept of good faith. Good faith does not

differ much from what the English lawyers have already experienced with equity105 I would

say that there is no reason for Common Law lawyers to insist once again on historical and

cultural elements. They should rather take a more pragmatic approach. European Private law

would thus be viewed under a new perspective. In this respect, substantive provisions of the

CESL dealing with good faith, in my opinion provide solid base for the eventual binding

codification. Article 2 (b) says: that good faith and fair dealing’ means a standard of

conduct characterized by honesty, openness and consideration for the interests of the other

party to the transaction or relationship in question106. It certainly bridges the gap between

Civil Law and Common Law because notions of honesty and considerations for the interests 99 For instance, American law has expressly adopted good faith in the Uniform Commercial Code and in the 2nd

Restatement of Contracts

100 C-489/07 Pia Messner v Firma Stefan Krüger, judgment of 3 September 2009

101 Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts

102 C-489/07 Pia Messner v Firma Stefan Krüger, judgment of 3 September 2009

103 M. W. Hesselink, The General Principles of Civil Law: Their Nature, Roles and Legitimacy, Amsterdam Law School Legal Studies Research Paper No. 2011-35, Centre for the Study of European Contract Law Working Paper No. 2011-14, 2011

104 M. W. Hesselink, The Concept of Good Faith, 2011

105 Ibidem

106 Article 2 (b) European Commission Proposal for a Regulation of the European Parliament and of the Council on a Common European Sales Law, Brussels, 2011

25

of the others can easily fit both into the category of the equity and traditional good faith in

Civil Law.

Unlike Legrand and Teubner, who claim that differences between Civil Law and Common

Law are irreducible, and as a consequence, European Private Law is unattainable, Reinhard

Zimmermann holds a more optimistic view in that respect107. He is in favor of

Europeanization and directs his attention to the renewal of European legal culture while at the

same time speaking about the re-Europeanization of private law108. He advocates the

convergence of private law, but the path he proposes is more at the level of developing a

common grammar of legal language, with the greater sensitivity to differences in results109.

He argues that current legal traditions constitute a great source of unifying potential, but the

final aim shall be a new European legal culture110. That culture should be based on what

historically was Ius Commune, therefore the result would be the creation of the new European

Ius Commune. Current diversity of private law is comparable to the situation in the Germany

in the 19th century. Similarly to Savigny`s work, academics should seek to rediscover Roman

rules, concepts and principles. According to Zimmermann: The essential prerequisite for a

truly European private law would appear to be the emergence of an ‘organically progressive’

legal science, which would have to transcend the national boundaries and to revitalize a

common tradition111. Therefore, in his view crucial role in the making of a new private law is

reserved for scholars and their efforts for the revival of European legal culture should

accordingly be fostered. In his newest work on the present state of private law in Europe, he

does not change his mind on the feasibility of European Private Law and the methods of

achieving it112. He confirms his position stating that all parts of private law acquired a

European legal identity, although to a different extent. What is common for all of them,

107 R. Zimmermann, Civil Code and Civil Law: The Europeanization of Private Law within the European Community and the Re- Emergence of a European Legal Science, Columbia Journal of European Law, 1995, Zimmermann claims that unification and harmonization of European Private Law is the process which is irreversible from the current perspective, and is likely to gain even an ever greater momentum.

108 R. Zimmermann, Civil Code and Civil Law: The Europeanization of Private Law within the European Community and the Re- Emergence of a European Legal Science, Columbia Journal of European Law, 1995

109 Ibidem

110 Ibidem

111 Ibidem

112 R. Zimmermann, The Present State of European Private Law, American Journal of Comparative Law, 2009

26

however is that they should all be subjected to European, as opposed to national legal

scholarship113. Still, he concludes that no part of private law is ready to be cast into an official

European legal instrument, whatever form it may take114. Undoubtedly, Zimmermann`s work

is inspiring and sheds new light onto the differences between Civil Law and Common Law.

By insisting on the return to the Ius Commune, he actually believes that differences between

Civil Law and Common Law were already reconciled in history, mostly thanks to a parallel

return to Roman Law as a base. What Europe currently needs is to some extent similar.

The primary strength of Zimmermann`s view in the feasibility of the European Private Law

debate lies in the fact that Europe has already witnessed Ius Commune in its history

(Merymann). Hence, his reconciliation method of Civil Law and Common Law traditions has

already been proven to be successful. My argument is that it is quite reasonable to base

predictions about European Private Law, on the grounds of the old Ius Commune, since

Europe is facing similar needs as in the 19th century. Pressure for the legal unification is

coming primarily from the necessity of facilitating trade. In relation to this, situations are

comparable115, although in the 19th century there was no EU. The institutional setting

nowadays makes Europeanization complex and very demanding. Decision making concerning

who should make European Private Law and how it should look like currently is an even

more troublesome issue which might be neglected by the proponents of European Private Law

as Ius Commune. Having this in mind, solutions might be similar to what we witnessed two

centuries ago, albeit with certain precautions resulting from the above. In addition, European

Private Law as Ius Commune has other drawbacks and cannot stand alone as a method of

creating European Private Law. Firstly, deficiency concerns the mere fact that in the old Ius

Commune, Civil Law tradition played a major part116. Ius Commune was influential with

respect to Common Law only to a limited extent. Even Zimmermann recognizes this as a

113R. Zimmermann, Savigny’s Legacy: Legal History, Comparative Law and the Emergence of a European Legal Science 42 L. Q. Rev. 576 (1996); R. Zimmermann, Comparative Law and the Europeanization of Private Law, in The Oxford Handbook of Comparative Law, supra note 12, at 539

114 R. Zimmermann, The Present State of European Private Law, American Journal of Comparative Law, 2009

115 R. Zimmermann, Savigny’s Legacy: Legal History, Comparative Law and the Emergence of a European Legal Science 42 L. Q. Rev. 576 , 1996

116 See on this J.M. Smits, The Making of European Private Law – Convergence of Private Law in Europe, Towards a Ius Commune Europeanum, Intersentia, 2002

27

fact117. In arguing about new European legal science, Smits is right to claim that Common

Law lawyers should be equally involved118. However, I disagree with his claim that it is

something which will undoubtedly happen. My doubts are based on the current reluctance of

some parts of English society to warmly accept steps towards the unification and

harmonization of private law119. For instance, the British Confederation of Industries

representing the businesses in the UK is clearly against harmonization of contract law120. This

might influence the willingness of English scholars to participate in this project, since they

would face serious opposition coming from their own country. My argument is that in the

same way we cannot derive far reaching conclusions about the feasibility of European Private

Law based on the negative presumptions of Legrand and Teubner, we also cannot firmly

declare that English scholars would take part 121 in the quest for the new Ius Commune to the

same extent as Civil Law ones.

A second objection that might be invoked against the new Ius Commune approach concerns

the fact that the old Ius Commune was based on a rather scholarly approach, as opposed to

uniformity being achieved in practice122. However, I do not find this argument as convincing

as the previous one, since I consider that in any case for European Private Law to become

reality in practice, European legal science shall have irreplaceable role in facilitating it.

Ole Lando, like Zimmermann, also holds the view that European Private Law is feasible, but

what differs in their perceptions is how it should be achieved. The method Lando proposes is

the enactment of a European Civil Code, which is the preferred solution to the so called soft

117R. Zimmermann, ‘Roman Law and the Harmonization of Private Law in Europe’ in A.S. Hartkamp, M. W. Hesselink, E. Hondius, C. Joustra, E. du Perron and M. Veldman (eds), Towards a European Civil Code, 3rd edn, 2004118 See on this J. M. Smits, The Making of European Private Law – Convergence of Private Law in Europe, Towards a Ius Commune Europeanum, Intersentia 2002

119 During the debate in EU Parliament on the adoption of Common European Sales Law, the UK Politician Earl of Darmouth, heavily criticized the adoption of Common European Sales Law, comparing it with the UK Sales of Goods Act, which he describes as the model of brevity and simplicity.

120 See S. Banakas, Harmonization of European Contract Law and General Principles of Contracts: A Common Lawyer`s Look into the Future

121 Some of them are already really active in the field of harmonization of contract law, I would stress Prof. Hugh Beale, Law Commissioner for England and Wales and Professor at the University of Warwick

122 J. M. Smits, The Making of European Private Law – Convergence of Private Law in Europe, Towards a Ius Commune Europeanum, Intersentia, 2002

28

approach of academics in creating a European legal science123. He bases his claim on the

arguments that law based on the academic debate tends to be too complicated, and that for the

sake of simplicity and clearness law should be contained in the Code124. Another important

thing is that courts would not be eager to apply academic rules; instead European Civil Code

has to be prepared, passed and promulgated125. He is not alone in his view. Ugo Mattei is

also in favor of a European Civil Code. In his opinion, the new European Code should be

hard, minimal, not limited to contracts and process-oriented126. He criticizes the soft approach

by saying that it actually resembles more the US style, which does not sit well with European

legal thought, and that codification is what European Private Law needs127. Furthermore,

proponents of this view state that a European Civil Code would bring legal certainty,

distinctness, easement of commerce and EU-wide justice and fairness128. Indeed, the idea of

one Civil Code that consist of rules devoted to private law with binding force seems to be

fascinating and apt to solve the majority of problems. On the other hand, there are equally

persuasive arguments against a European Civil Code. Firstly, the mere question of legitimacy

and the legal basis in the EU legislation to enact a European Civil Code is put through. Article

114 of TFEU129 which is perceived as the intended legal basis for the enactment of the Code,

can remain such only if it is clearly shown to what extent cross border transaction costs will

be lowered130. So far this is still debatable131 and casts doubts on the legal basis of the Code.

Secondly, there is a widespread belief that cultural diversity and the idea of European Civil

Code are incompatible132. Cultural diversity in Europe is an inherent value and as such

123 O. Lando, Why Codify the European Law of Contract, European Review of Private Law, 1997

124 Ibidem

125 Ibidem

126 U.Mattei, Hard Code Now, Global Jurist Frontiers, 2002

127 Ibidem

128 D.Schmid, Do we really need European Civil Code? Annual Survey of International and Comparative Law, 2012

129 Article114. Of the Treaty on the Functioning of the European Union

130 Ibidem

131 J. M. Smits, Diversity of European Contract Law and the European Internal Market, Maastricht University

Faculty of Law Working Paper No. 9/2005, 2005

132 R. Sefton. Green, Cultural Diversity and the Idea of European Civil Code, M.W. Hesselink, The Politics of a European Civil Code, pages 71-78, Kluwer Law International, 2006

29

promotes an exchange of ideas133, which would be seriously undermined if the European Civil

Code were to be enacted. Thirdly, there is an obstacle arising from the technical issue of

translation. It is said that taking into consideration twenty four official languages of the EU,

the European Civil Code would have to be translated into all the different languages. It would

be very difficult to ensure that the outcome would have the same meaning134. Fourthly,

lawyers and citizens in the countries following Common Law tradition would need to adjust

to the brand new legal system established by Code, which might be really cumbersome and

definitely requires time and effort. After measuring arguments for and against European Civil

Code, my view about the enactment of European Civil Code would be described as

moderately optimistic. I agree that European Civil Code as an idea is definitely something

Europe should strive for135. It would definitely be step forward towards a European

identity136. However, I think these counter arguments just presented, at least for the time being

prevailed. Too many obstacles in the process of adoption of the European Civil Code cannot

be currently resolved satisfactorily. After carefully examining both dominant methods by

which European Private Law should be achieved – soft or binding codification I would not

opt exclusively for either. As we saw both approaches have advantages and disadvantages.

For that reason, I would use the strengths of European legal science in the long and complex

process of making the European Civil Code. My argument is that a soft approach should not

be confronted with the idea of codification, as is usually the case, but rather be looked from

the perspective of preparing the path to the European Civil Code as the final goal. I shall

discuss the DCFR more thoroughly and answer the question whether this academic work set

the stage for the binding codification.

The Principles of European Contract Law (PECL)137 marked a first attempt to consolidate and

crystallize, by means of establishing a set of general rules, the acquis commune, i.e. the

tradition of private law laid down in the national legal systems of Europe138. Comprising a

133 Ibidem

134 D.Schmid, Do we really need European Civil Code? Annual Survey of International and Comparative Law, 2012

135H.Collins, The European Civil Code- The Way Forward, Cambridge University Press 2008

136 Ibidem

137 The Principles of European Contract Law, Prepared by the Commission on European Contract Law, 1999

138 R Zimmermann, ‘Principles of European Contract Law (PECL)’ in J Basedow, KJ Hopt and R

Zimmermann (eds), Max Planck Encyclopedia of European Private Law, 2011

30

body of rules on general), the PECL are: the product of many years of comparative analysis

and international cooperation; and they offer an authoritative point of reference for the

interpretation and development of the national legal systems in Europe. In fact, the PECL

have begun to play a key role in an incremental and “organic” harmonization of European

Private Law139 Thus, since 2003, when it first appeared in a Communication from the

Commission to the European Parliament and the Council, the concept of a

Common Frame of Reference (CFR) has increasingly occupied central stage and now

dominates the debate140. It represents a toolbox for future legislation in the area of general

contract law141. The main strength of the CFR is that it is well structured and coherent142.

Apart from its elegance in style and well structured content covering almost every aspect of

contract law, I would specially point out its relevance for the legal science, research and

education143”, as to: show to students, researchers and professors the vast areas of private

law that are indeed very similar across Europe, or at least typically lead to similar, if not

identical, outcomes144. I found this as one of the primary contributions of the soft law to the

European Private Law, especially because it was made by the large numbers of the prominent

scholars, which brings heavy authoritative power to this attempt to harmonize law.

139 H. Eidenmüller, F. Faust, H. Christoph Grigoleit, N. Jansen, Gerhard Wagne, R. Zimmermann, The Common Frame of References for European Private Law- Policy Choices and Codification Problems, 2009

140 Ibidem

141 See, e.g., Commission (EC) ‘European contract Law and the Revision of the Acquis: the way forward’(‘Way forward’) COM (2004) 651 final, 11 October 2004.

142 M. W. Hesselink, The Common Frame of Reference as a source of European Private Law, Tulane Law Review, 2008

143 Para. 7 of the Outline Edition, on p. 7 of DCFR

144 Ibidem

31

4. Results of the Debate

As we saw, views on the convergence of private law in Europe fifteen years ago were

polarized and confronted. On the one hand, Legrand and Teubner claimed that differences

between Civil and Common Law traditions were such as to prevent the convergence of

private law in Europe. For them, these differences were insurmountable and could not be

reconciled. On the other hand, Zimmermann and Lando are representatives of the view that

differences between Civil Law and Common Law traditions are such that can be reconciled,

and as a result European Private Law is feasible. They differ on the method by which it

should be created. What they share in common is a general sense of optimism about the

European Private Law.

Legrand and Teubner, in their works both stressed the importance of the differences between

Civil and Common Law and the impossibility of European Private Law, as an ultimate

consequence. I must say that in the overall debate on the feasibility of European Private Law,

these views cannot be neglected. Although slightly outdated they certainly display logic and

hold intrinsic value. However, my objections would be pointed towards the far reaching

consequences of these views. Deeply rooted legal culture in the Civil Law and Common Law

legal traditions is not a static notion. It is susceptible to change. This change which is a result

of European integration by its substance is radical145. As it was shown in the comparison of

the styles, the circumstances shaping the Civil Law and Common Law are constantly

changing. Civil Law and Common Law are much closer to each other, than they have been

before. So with all due respect for the opponents of feasibility of European Private Law, I can

conclude that their skepticism about European Private Law is not entirely justified. Proven

convergence of the style of the Civil Law and Common Law tradition gives me strong reason

to believe that overall framework in which European Private Law should be born is set, and

that it would be easier to develop than before. European Private Law, as a consequence is

feasible, and it is possible to reconcile the differences. After the examination of the role of

good faith in the European Private Law, it was shown that Common Law lawyers are

nowadays more concerned about the economic necessities, which was the most relevant in the

debate on the adoption of the CESL. The conclusion can be drawn that there is no reason for

Common Law lawyers to insist once again on historical and cultural elements that shaped

145 M.W. Hesselink, The Structure of the New European Private Law, The New Private Law: Essays on the

Future of Private Law in Europe, Kluwer Law International 2002

32

good faith throughout history. They should rather take a more pragmatic approach which

would eventually enable the further development of this crucial institute for European Private

Law. Substantive provisions of the CESL are almost perfectly designed to bridge the once

existing gap between Civil Law and Common Law. Another question that comes afterwards,

is how European Private Law as an ultimate goal should be achieved? What is the most

appropriate method in this respect?

As far as the solutions offered are concerned, there are two most dominant approaches with

great varieties and distinctiveness within each. These are the so called soft approach, with the

basic premise that European Private Law should be created through the European legal

science with non binding legislation, and the approach of binding legislation with the

European Civil Code as the main feature. After examining each of these approaches in the

previous part, and having an insight into the advantages and disadvantages of each, I come to

the conclusion that I would not support blindly either of them. Instead, I would try to stress

the importance of European legal science as a path towards European Civil Code. As we saw,

currently Europe is not yet ready for the adoption of European Civil Code, since there are too

many hurdles. First among the obstacles is the non steady legal basis in the EU legislative

instruments for the smooth process of enactment146. The Lisbon Treaty did not improve

things. The mere question of legitimacy is blurred. Not less important is the question of

democracy,147in my view this question should be seriously discussed by all relevant

stakeholders. A second eventual drawback comes from scholars who see cultural diversity148

as an ideal that European Civil Code would negate. This should particularly be taken into

account given the fact that official motto of EU is United in Diversity149.Furthermore, it

would definitely take some time and effort for the Common Law lawyers to become fully

acquainted to the new legal system established by the Code.

A possible solution to this complex situation lies in the usage of the European legal science

and soft law as path towards the moment when European Civil Code could be enacted. A path

towards binding codification, in my opinion should be rather gradual, with soft non binding

146 Ibidem

147 M. W. Hesselink, Democratic Contract Law, 2014

148 R. Sefton. Green, Cultural Diversity and the Idea of European Civil Code, M.W. Hesselink, The Politics of a European Civil Code, pages 71-78, Kluwer Law International, 2006

149 See website http://europa.eu/about-eu/basic-information/symbols/motto/index_en.htm

33

legislation involved to a great extent. Soft law already produced significant results in their

domain. The recent success of CESL and DCFR shows that although these do not represent

the law in a formal sense, their contribution to private law is immense. Their success is

entirely based on their substantive quality and authority150. Their style provided for the further

debate on the issues of private law151. I think that soft law prepared in this way can only

facilitate and enhance the eventual enactment of European Civil Code. By following this path

European Private Law would not remain just a dream.

Conclusion

As we see the question whether it is possible to reconcile the differences between the Civil

Law and Common Law legal traditions in the making of European Private Law is really

challenging with the plenty of thoughts and arguments offered in this regard. The results

showed that Civil Law and Common Law developed under the historically different

circumstances. This was the reason of the existence of crucial differences between them in

terms of the legal reasoning and sources of law they acknowledged. However, gradually as

the circumstances changed, these differences diminished, so there has been mutual

convergence of legal concepts between Civil Law and Common Law. The most relevant

examples include adopting at least in practice, stare decisis doctrine in Civil Law and steps to

the codification of the Common Law. The main reasons for this were urging needs of the

constantly changing society. The results showed that despite the initial divergence based on

different historical background, Civil Law and Common Law traditions are not far from each

other as they used to be. This was really important for the main debate of this work, and that

is the feasibility of European Private Law. In the Part III devoted to the possibility of

convergence of the private law in Europe, I explored the key question for this work- Having

in mind that differences in Civil Law and Civil Law exist, and that private law in Europe is

vastly diverse, is it possible at all to reconcile these differences in the process of

Europeanization and create European Private Law? Is real convergence of private law

possible? To answer these questions I analyzed current dominant views on this. Views on the

150 M.W. Hesselink, The Structure of the New European Private Law, The New Private Law: Essays on the Future of Private Law in Europe, Kluwer Law International, 2002

151 Ibidem

34

convergence of private law in Europe are polarized and confronted. On the one hand, Legrand

and Teubner claim that differences between Civil and Common Law traditions are such to

prevent the convergence of private law in Europe. For them, these differences are

insurmountable and cannot be reconciled. This is slightly outdated, as we saw from the

relevant developments resulted in the adoption of the CESL For the others, like Zimmermann

and Lando differences between Civil Law and Common Law traditions are such that can be

reconciled, and as a result European Private Law is feasible. They both share optimism about

the feasibility of European Private Law. In what they differ is the method by which it can be

achieved.

The analysis was firstly pointed to the Legrand`s and Teubner`s views. I have to admit their

value and show respect for them. However, my objections would be pointed in the far

reaching consequences of these views. Deeply rooted legal culture in the Civil Law and

Common Law legal traditions is not a static notion. It is susceptible to change. This change as

a result of European integration by its substance is radical152. To sum, arguments in favor of

convergence of private law and feasibility of European Private Law prevailed. In this respect,

I reached the main goal of this thesis, after thorough analysis of existing views on this, and

offering mine as well. Another crucial and equally valuable question than arises, if it is

possible, how it is going to be achieved? In this respect I analyzed two approaches: First, the

so called soft approach, with the basic characteristic that European Private Law should be

created through the European legal science with the non binding legislation, with the

particular role of academics in it, and the approach of binding legislation with the European

Civil Code as the main feature. I presented the view that these two approaches should not be

confronted. The making of European Private Law should be gradual. Europe is not yet ripe for

the European Civil Code. The soft law, already proven to be successful and should remain the

right way towards European Private Law as reality. I am moderate optimist, and although we

cannot predict future, I hope that European Private Law would soon become reality.

152 M.W. Hesselink, The Structure of the New European Private Law, The New Private Law: Essays on the

Future of Private Law in Europe, Kluwer Law International, 2002

35

BibliographyH. Collins, The European Civil Code- The Way Forward, Cambridge University Press, 2008

M. A. Glendon, M. W. Gordon, and P. G. Carozza, Comparative Legal Traditions, St. Paul, Minnesota: West Group, 1999

K. Funken, The Best of Both Worlds – The Trends Towards Convergence of the Civil Law and the Common Law System, 2003

H. P. Glenn, Legal Traditions of the World: Sustainable Diversity in Law, Oxford University Press, 2010.

R. Sefton. Green, Cultural Diversity and the Idea of European Civil Code, M.W. Hesselink, The Politics of a European Civil Code, Kluwer Law International 2006, pages 71-78

M.W. Hesselink, The Politics of a European Civil Code, Kluwer Law International, 2006

E. Hondius, Precedent and the Law, Electronic Journal of Comparative Law, Vol.11.3, 2007

R .Michaels, Comparative Law, Oxford Handbook of European Private Law ( Basedow, Hopt, Zimmermann, Oxford University Press), 2011

K. Zweigert and H. Kötz, An Introduction to Comparative Law, Oxford University Press,2011

J. M. Smits, The Making of European Private Law – Convergence of Private Law in Europe, Towards a Ius Commune Europeanum, Intersentia, 2002

P. Legrand, Against a European Civil Code, Modern Law Review, 1997

H. Kötz, Contract Law in Europe and the United States: Legal Unification in the Civil Law and Common Law, Tulane European and Civil Law Forum 2012, Max Planck Private Law Research Paper No. 13/13L. Nottage, Convergence, Divergence and the Middle Way in Unifying or Harmonizing Private Law, European University Institute Working Paper Law No. 2001/01D. Schmid, (Do) we Need a European Civil Code (?), Annual Survey of International &Comparative Law, 2012

C. Schmid, Legitimacy Conditions for a European Civil Code, European University Institute Working Paper Law No. 2001/14

P.Legrand, European Legal Systems are not Converging, International and Comparative Law Quarterly, 1996

36

E.Hondius, European Private Law Survey- 2000-2002, European Review of Private Law,2002

M.J.Bonell and O.Lando, Future Prospects of Unification of Contract Law in Europe and Worldwide, A Dialogue Between M.J. Bonell and O.Lando on the occasion of the seminar in honour of O.Lando held in Copenhagen on 2012

U.Mattei, Hard Code Now, Global Jurist Frontiers, 2002

J.M. Smits, Is Law a Parasite? An Evolutionary Explanation of Differences among Legal Traditions, Maastricht European Private Law Institute Working Paper No.2011/31

J.M. Smits, Law Making in the European Union: On Globalization and Contract Law in Divergent Legal Cultures, Louisiana Law Review, 2007

G.Teubner, Legal Irritants: Good Faith in British Law or How Unifying Law Ends up in New Divergences, The Modern Law Review, 1998

J.H.Merryman, On the Convergence and (Divergence) of the Civil Law and the Common Law, New Perspectives for a Common Law of Europe, 1978

J.Haag, On which Level Private Law in Europe Should be Created? Maastricht European Private Law Institute Working Paper No. 2014/8

K.Funken, The Best of Both Worlds – The Trends Towards Convergence of the Civil Law and the Common Law System, 2003

M.W. Hesselink, The Concept of Good Faith, Towards a European Civil Code, Kluwer Law International, 2004

M.W. Hesselink, The New European Legal Culture, The New Private Law: Essays on the Future of Private Law in Europe, Kluwer Law International, 2002

R.Zimmermann, Roman Law and European Legal Unity, Towards a European Civil Code,

A. Hartkamp, Kluwer Law International, 2010

M.W. Hesselink, Private Law Principles, Pluralism and Perfectionism, Centre for the Study of European Contract Law Working Paper Series No.2013-06, 2012

37