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Hesselink on the the Principles in Common Frame of Reference for European Private Law

By Lawrence Solum

Martijn W. Hesselink (University of Amsterdam - Centre for the Study of European Contract Law) has posted 'If You Don?t Like our Principles We Have Others'; On Core Values and Underlying Principles in European Private Law: A Critical Discussion of the New ?Principles? Section in the Draft CFR on SSRN. Here is the abstract:

In March 2009 the Outline Edition of the ?academic? draft Common Frame of Reference (CFR) was published. The draft CFR is meant to play a key role in the further development of European private law, both as a ?tool box? for the European legislator and judiciary and as a basis for a possible optional code. The Outline Edition is very similar to the Interim Outline Edition that was published a year earlier. There is one important difference, however. In addition to the part on Model Rules, which form the bulk of the DCFR, and the part dedicated to Definitions, the latest edition contains a new part called ?Principles?.

The content of this new part is quite different from what the Introduction in the Interim Outline Edition had to say about ?principles, aims and values?. Whereas the Interim Outline Edition contained an open-ended list of fifteen core aims and values of equal standing, the new Principles section in the Outline Edition contains only four ?underlying principles? of freedom, security, justice and efficiency which, however, are assigned an important task in the interpretation and development of de model rules. The remaining principles that still were mentioned in the 2008 edition as core aims and values of European private law, such as ?solidarity and social responsibility?, are now said to be ?generally of a rather high political nature? and, therefore, primarily relevant to an assessment from the outside of the draft CFR as a whole. In other words, a reduction from fifteen to four and a transformation from values into underlying principles in a year?s time.

The new ?Principles? section in the draft CFR raises several questions. This paper addresses three of them. First, are these ?principles? really principles in the usual sense or are they better understood as being values? Secondly, does Europe need a limited set of private law principles or values? And, thirdly, how can the 2009 version of the draft CFR be so different from the 2008 version on such a fundamental subject?

In doing so, this paper also relates the 'Principles' section in the DCFR to the ?general principles of civil law? that the European Court of Justice has referred to in a number of recent cases, and to the values on which the Union is founded, according to the Lisbon Treaty.

Full post as published by Legal Theory Blog on December 03, 2009 (boomark / email).