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Leaving the Shadow for the Test of Practice - On the Future of the Principles of European Contract Law*

Friedrich Blase#

1. Introduction

2. History and State of Affairs of the PECL

3. The Success Story of the UPICC

4. Specific Value of the PECL

5. Necessary Steps for the Future

6. Endnotes




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Leaving the Shadow for the Test of Practice

On the Future of the Principles of European Contract Law

Friedrich Blase

copy @ Lex Mercatoria

Leaving the Shadow for the Test of Practice - On the Future of the Principles of European Contract Law*

Friedrich Blase#

2. History and State of Affairs of the PECL

The PECL presented in 1995 and 1999 are very similar to the UPICC 23  Their origins and the work of the drafting groups were largely the same. The PECL are also formulated as black-letter rules, which are complemented by a more or less detailed commentary. Not surprisingly, both sets of rules show a fair deal of cohesion in terms of their content.  24  Their mutual inspiration was facilitated by the fact that a number of experts served in both drafting groups.  25  In particular both chairmen, Lando and Michael Joachim Bonell, were also members of the other group.

The short period of time which lay between the initial presentation of the two projects in 1994 and 1995 seems to suggest that there was either a race of private initiatives in the field of harmonisation of international contract law  26  or a co-ordinated timing in the presentation. One desired effect of the co-ordinated release of both projects may well have been to enable a combined analysis of their academic and practical value. Rather than a discussion on the value of one of the projects, the analysis following the releases could have revolved around a comparison of the two sets of rules. Such an analysis would have been to the benefit of both projects. After preparation lasting 23 years for the UPICC and 19 years for the PECL both drafting groups must have felt that the value of their work would not have been adequately recognised if the other project was presented significantly earlier. Considering the number of scholarly writings, the reports on the use in dispute settlement and the influence in legislative activity  27  one cannot deny the impression that until today the PECL have remained in the shadow of the UPICC. The UPICC are at the center of attention in academic and practical debate. So far, the PECL play little more than a minor role.

Interestingly enough, the delay of the publication of the 1999 version has brought the PECL into conflict with another project which - although entirely different in its outset - has the same ultimate goal. The project for a European Contract Code by the Pavia Group around Guiseppe Gandolfi is scheduled to publish its findings in early 2000. In contrast to the UPICC the collaboration of the Lando-Commission with the Pavia Group is negligible. The latter does not intend to find principles of contract law which are common to all national laws within the EU, but rather approaches the codification of contract law with a pragmatic attitude by looking at the most challenging topics of contract law such as the effect of contracts on ownership of movables and immovables.  28  After reviewing the various national solutions, Gandolfi formulates a possible European regulation of the issue, which is subsequently distributed to the members of the Pavia Group for approval.  29 

Bearing in mind on the one hand the recent publication of the 1999 version of the PECL and on the other hand the challenge from the project by the Pavia Group, now is a crucial time for determining the future of the PECL. If the PECL are to step beyond their undoubted academic value and are to enjoy a future outside legal textbooks, they must face the test of practice. They must be catapulted to the forefront of attention in European legal research, education and practice.  30 

 23. See ‹http://www.jus.uio.no/lm/eu.contract.principles.1998/index.html›.

 24. Cf. Bonell, An International Restatement of Contract Law, 1997, at 85.

 25. For a detailed comparison of their content see Bonell, Restatement at 88 et seq.

 26. Bonell, An International Restatement of Contract Law, 1997, at 87, fn. 7.

 27. Berger, Creeping Codification of the Lex Mercatoria, at 67.

 28. Cf. also infra at The Success Story of the UPICC

 29. Cf. presentation of the project by Guiseppe Gandolfi at the Centrum für Europäisches Privatrecht at the Westfälische Wilhelms-Universität zu Münster on 12 December 1998.

 30. For an overview of the project cf. Academy of European Private Lawyers (ed.), Code Europeen des Contrats - Avant-Projet, at 1 et seq.

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