General

56. Improvements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 57. The Acquis Principles (ACQP) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

58. Principles of European Insurance Contract Law . . . . . . . . . . . . . . . . . . . . . . . 35

How the DCFR may be used as preparatory work for the CFR

59. Announcements by the Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 60. Purposes of the CFR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

61. Green Paper on the Review of the Consumer Acquis . . . . . . . . . . . . . . . . . 37 62. Draft proposal for a Directive on consumer contractual rights . . . . . . . . 37 63. Improving the existing and future acquis: model rules . . . . . . . . . . . . . . . . 38 64. Improving the acquis: developing a coherent terminology . . . . . . . . . . . . 39 65. No functional terminology list without rules . . . . . . . . . . . . . . . . . . . . . . . . . . 40

66. Coverage of the CFR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 67. Consumer law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

68. Revision of the acquis and further harmonisation measures . . . . . . . . . . 41 69. Terms and concepts referred to in Directives . . . . . . . . . . . . . . . . . . . . . . . . . . 42 70. When in doubt, topics should be included . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

71. Essential background information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 72. Good faith as an example . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 73. Presupposed rules of national law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

74. DCFR not structured on an ‘everything or nothing’ basis . . . . . . . . . . . . . 44

Developments after this edition

75. Full version of the DCFR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

76. Consumer credit contracts not covered . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

77. Evaluating the DCFR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 78. CFR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 79. Square brackets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

80. The CFR as the basis for an optional instrument . . . . . . . . . . . . . . . . . . . . . . 46

General

1. DCFR and CFR distinguished. In this volume the Study Group on a European Civil Code (the ‘Study Group’) and the Research Group on Existing EC Private Law (the ‘Acquis Group’) present the revised and final academic Draft of a Common Frame of Reference (DCFR). It contains Principles, Definitions and Model Rules of European

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Private Law in an outline edition. Among other goals, its completion fulfils an obligation to the European Commission undertaken in 2005. The Commission’s Research Directorate-General funded part of the work. One purpose of the text is to serve as a draft for drawing up a ‘political’ Common Frame of Reference (CFR) which was first called for by the European Commission’s ‘Action Plan on A More Coherent European Contract Law’ of February 2003.1 As is explained more precisely below, the DCFR and the CFR must be clearly distinguished. The DCFR serves several other important purposes.

2. Revision of the interim outline edition. A year ago, the DCFR was published for the first time in an interim outline edition.2 This edition is a revision in three main ways. First, the interim edition did not contain model rules in Book IV on loan contracts and contracts for donation, nor in Books VIII to X on acquisition and loss of ownership of goods, on proprietary security rights in movable assets, and on trusts. They have now been included. Secondly, one of the purposes of publishing an interim edition was to provide an opportunity for interested parties to comment on the draft and make suggestions for improvement. The public discussion of the interim outline edition prompted the research groups to revise at various places the text which had already been published. The research groups are grateful to all who have taken part in that critical evaluation, whether in publications, at conferences or in personal correspondence, and who have contributed to the improvement of the text. Naturally, not all the suggestions we received have been acted upon: some, for example, advocated solutions which had already been rejected after full discussion by the Study Group or the Acquis Group. But many suggestions for improvement have been gratefully adopted. Further revisions resulted from our own further reflections and discussions, the results of the research conducted by the evaluative teams in the network and the conclusions which we drew from the process of trans-

1COM (2003) final, OJ C 63/1 (referred to below as Action Plan).

2von Bar/Clive/Schulte-Nölke and Beale/Herre/Huet/Schlechtriem/ Storme/Swann/Varul/Veneziano/Zoll, Principles, Definitions and Model Rules of European Private Law. Draft Common Frame of Reference (Munich 2008) (referred to below as IOE).

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lating the first three Books into French.3 That applies in particular to Books I-III, but is not confined to them. (For more details, see paras 26-33). Thirdly, this revised edition contains an additional self-con- tained section in which we set out four underlying principles underpinning the DCFR. This draws on the Principes directeurs du droit Européen du contrat, the subject-matter of an independent research project, which published its output in 2008.4 The conclusions of the economic impact group, which analysed particular rules of the DCFR from an economic perspective, were also made available to us.

3. Paperback and hardcover editions of the final DCFR. Like the 2008 interim edition this revised edition is only an outline edition because it appears without comments and notes. The European Commission received in December 2008 the material published here along with an explanatory and illustrative commentary on each model rule. The Commission has also received the extensive comparative legal material which has been gathered and digested in the past years. The entire work will be published in book form later in the year. At the same time we considered that the publication of a compact and inexpensive second paperback edition would help promote the wider dissemination and discussion of these texts. The complete edition will be voluminous. It will invite study at one’s desk at home or in the office, but it will be too bulky to pack into luggage taken to meetings

3By Professor Jacques Ghestin (Paris); published at http://www.fondation- droitcontinental.org/Documents/Traduc-vBar-livre%20I-II-III-%2008- 2008.doc.

4Fauvarque-Cosson/Mazeaud and Wicker/Racine/Sautonie-Laguionie/ Bujoli (eds.), Principes contractuels commun. Projet de cadre commun de référence (Paris 2008); Fauvarque-Cosson/Mazeaud and Tenenbaum, Terminologie contractuelle commune. Projet de cadre commun de référence (Paris 2008). These studies have also been published in English: European Contract Law. Materials for a Common Frame of Reference: Terminology, Guiding Principles, Model Rules. Produced by Association Henri Capitant des Amis de la Culture Juridique Française and Société de Législation Comparée. Edited by Fauvarque-Cosson and Denis Mazeaud. Prepared by Racine, Sautonie-Laguionie, Tenenbaum and Wicker (Munich 2008).

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or conferences. That is another reason for also publishing a second edition in outline form, essentially Articles only.

4.An academic, not a politically authorised text. It must be stressed that what we refer to today as the DCFR originates in an initiative of European legal scholars. It amounts to the compression into rule form of decades of independent research and co-operation by academics with expertise in private law, comparative law and European Community law. The independence of the two Groups and of all the contributors has been maintained and respected unreservedly at every stage of our labours. That in turn has made it possible to take on board many of the suggestions received in the course of a large number of meetings with stakeholders and other experts throughout the continent. The two Groups alone, however, bear responsibility for the content of this volume. In particular, it does not contain a single rule or definition or principle which has been approved or mandated by a politically legitimated body at European or national level (save, of course, where it coincides with existing EU or national legislation). It may be that at a later point in time the DCFR will be carried over at least in part into a CFR, but that is a question for others to decide. This introduction merely sets out some considerations which might usefully be taken into account during the possible process of transformation.

5.About this outline edition. This final outline edition consists of an introduction, the names of the academic contributors and an acknowledgement of our funders and donors, an overview of the guiding principles underlying the model rules, a set of definitions (referred to in I. – 1:108 (Definitions in Annex) and listed later in the Annex to the model rules), tables of derivations and destinations, and the model rules. The introduction explains the purposes pursued in preparing the DCFR and outlines its contents, coverage and structure. It describes the amendments to the 2008 interim edition and elucidates the relationship between the DCFR and the publications which have already appeared or will appear in the course of the preparatory work. Finally, it sketches out how the DCFR might flow into the development of the CFR.

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