The draft common frame of reference as a tool for developing European private law

Abstract

European legislation always requires a legal basis for it to come into force. We see that the main basis for the Europeanisation of Private Law is Article 81 TFEU (ex Article 65 EC) but this is not the only article. There are a number of other articles depending on the content that the legislation intends to uphold. The first chapter deals with the legal basis that has been used by the European legislators to bring about the Europeanisation of particular private laws. This chapter also deals with any prospective and appropriate legal basis for there to be a European Contract Code. The idea of formulating a common contract code started oddly enough in 1980 through the Lando Commission. A number of other research groups were formed, all having a common aim - that their work will someday be used to make a European Contract Code. The European Commission, Council and Parliament also played their part in promoting a European Contract Code through their communications, opinions and resolutions respectively. Furthermore, this dissertation explores how the Draft Common Frame of Reference (DCFR) is the basis for what is currently being discussed by the Expert Group to create a Common Frame of Reference. All this and also the content of the DCFR are discussed in Chapter 2. Chapter 3 presents the definitions and model rules proposed by the DCFR. However, the DCFR goes further to include also the principles. There are no sections indicating which the principles are, but these are overriding and underlying. These principles will be dealt with in great depth in Chapters 3 and 4 respectively. Chapter 5 focuses on the opinions of a selection of scholars, what possible instrument the Common Frame of Reference can take and also what it should contain – whether it should deal solely with contract law or whether it should be extended to include tort law. The conclusion concentrates on the impact the DCFR may have on other private law matters. All through this dissertation, one fact is constantly being emphasised: that through the model rules, the definitions and the principles found under the DCFR, other European private law issues can benefit despite the fact that it is the first project that tackled a large area of private law.