with comparable property systems. For once the public/private divide is a boon, because it keeps out of the European remit all public controls on land ownership, and this might help to develop more complete (even Soviet style!) national land codes.

In short the common law logic of a split between land and other property would require a great deal of structural reorganisation of civilian codes and would leave a large duplication of legislative overhead. For this reason a simple land exclusion is not feasible.

3. Movables

(1) Contracts affecting movables

The Draft Common frame of reference intrudes deeply into property law so far as it affects movables.44 It is not the purpose of this article to address the adequacy or shortcomings of the Books covering these subjects, a topic which has already attracted a considerable periodical literature45 with much more to come, but merely to consider this area briefly to see how wide-ranging is the proposed codification, and how necessary is a watertight land exclusion.

Goods are corporeal movables, and the category of movables also includes incorporeals but exclude immovables.46 The shift from French of the European Convention on Human Rights to the English of the Draft Common Frame of Reference is marked by a meaning for goods

44DCFR (n 2) books VIII, IX; S Van Erp ‘(D)CFR, Consumer Acquis, Property Law and Euromortgage’ (2007) 11(4) EJCL Internet 1, 2-3.

45N Jansen & R Zimmermann ‘European Civil Code in All But Name’ [2010] CLJ 98; AF Salomons ‘Fifteen Questions On the Rules Regarding Acquisition of Movables’ [2009] 04 ERPL 711; T Hastad ‘Derivative Acquisition of Ownership of Goods’ (2009) 17(4) ERPL 725; W Faber ‘Book VIII of the DCFR: Overview of Content and Methodology’ [2010] 14(3) Edinburgh Law Review 499; S Wortley ‘Book VIII of the DCFR: Original Acquisition’ [2010] 14(3) Edinburgh Law Review 508.

46DCFR (n 2) Annex (‘corporeal’, ‘goods’, ‘movables’, ‘property’).

quite distinct from the ‘biens’ protected at Strasbourg.47 Contracts affecting movables are covered, both general contracts and specifics such as sale and hire.

The Green Paper visualises the Common Frame of Reference as a Matryoshka doll, successive layers of increasing contention.48 According to Wikipedia ‘the number of nested figures is traditionally at least five, but can be much more, up to several dozen with sufficiently fine craftsmanship.’49 It is perhaps not necessary to discuss quite so many layers, but nevertheless there are at least four that must concern us. The inner core is contract law covering:

‘definition, pre-contract, formation, withdrawal, representations, grounds of invalidity, interpretation, contents and effects, performance, remedies, nonperformance, plurality of parties, change of parties, set off and merger and prescription.’50

There are plenty of issues here where the draft may not sit well with English contracts affecting movables. The general duty of good faith and fair dealing51 is a major departure from the common law52 which extends to contract and to every other obligation.53 The European proposal is very different, but none the worse for that, but it might be difficult to extend good faith to substantive property law as opposed to obligation. However, it is not the purpose of this paper to explore areas of divergence. More generally contracts live and die in a short time frame and so are easier to change contract law than substantive property

47This means things in a much wider sense including tangibles, intangibles and claims.

48Green Paper (n 9) [4.3]; the order used in this paper varies slightly from the Commission’s list.

49Matryoshka Doll (Russian Doll) (Wikipedia, November 11th 2010).

50Green Paper (n 9) [4.3.1].

51DCFR (n 2) I.-1:103; also [72].

52O Lande ‘Is Good Faith an Over-arching General Clause in the Principles of European Contract Law’ (2007) 15 ERPL 841; Whittaker ‘Framework’ (n 3), 642; Eidenmuller (n 3) 687-. Whittaker ‘Assessment’ (n 3) [31], Appendix II; HL Report (n 8) [31ff].

53DCFR (n 2) III.-1:103.

law, and substantive property rights in movables have a shorter shelf life than corresponding rights in land, making movables the more promising subject of harmonisation.

A second layer includes wider obligations:

restitution, tort/delict, unjustified enrichment and beneficial intervention in another’s affairs.54

This is broad indeed. There is a common market in goods and so a common contract law is a legitimate European concern. It is more difficult to justify a wider European law of obligations. It is as if the European Union has suddenly decided to take over Asia, and is quietly pondering Africa as well. Nor is it easy to find any coherence in the coverage selected apart from those areas of law covered in the volumes already published by Sellier.55

The egregious rule has been ‘if in doubt include it.’56 European competence is only possible if there is first a clear articulation of what is included and what is excluded, and why.

(2) Special contracts affecting movables

The third layer of the Russian doll includes a number of special contracts,57 reflecting the nominate contracts familiar in civil codes,58 but entering here territory previously uncharted by comparative law.59 Mostly these novelties would never affect land directly and can be left on one side, but those that might are:60

Book IV.A - sales;

54Green Paper (n 9) [4.3.2], [4.3.4].

55The works of the Study Group on the European Civil Code.

56DCFR (n 2) Intr [70] at 42.

57Green Paper (n 9) [4.3.3].

58Whittaker ‘Framework’ (n 3) 630.

59Eidenmuller (n 3) 663-664.

60It is not proposed to discuss the following specific contracts: IV.C services, IV.D mandate, IV.E commercial agency, franchise and distributorship, IV.F loan (loans for the acquisition of land are expressly excluded) and IV.G personal security. For construction contracts (a subspecies of service contracts) see below heading 7.

pursued in contract. Common law systems, joined by a few continental codes, allow the seller to reserve title until the goods are paid for, making available a proprietary claim to recover the goods in the event of non-payment. This reservation of title provides strong protection against the insolvency of the buyer and a European contract code needs to deal with reservation of title.68 This is a marginal topic for land lawyers, a part of commercial law; after all, most real property lawyers are real property lawyers.

Overall in relation to property in goods, the foray behind national lines is limited, because, as Faber points out, it relies on national registers, and the national registration could turn much of the European structure upside down.69 In each case there is a solid land exclusion, achieved in each case by limiting the scope to goods.70

The division between a European property law for movables and national schemes for land obviously gives rise to a problem of legislative duplication. Some points may well conflict with existing national property law. Examples are the definition of formalities71 and the provision that no form is required for contracts and other juridical acts;72 clearly the latter would not be suitable for land, though there is provision for the severance of mixed contracts.73 Other eye-catching details are the rules for the service of notice,74 already complex without another level of detail, and rules for imputed knowledge.75 It will be very confusing if Europe uses the word ‘notice’ to describe the process of giving notice of an assignment that has been completed, rather than observing the normal English usage, the

68Interaction between contract and property law causes significant practical problems: G Betlem & E Hondius ‘European Private Law after the Treaty of Amsterdam’ (2001) 9 ERPL 3, 9.

69DCFR (n 2) VIII.-1:102.

70DCFR (n 2) VIII.-1:101(1); IX.-1:101.

71DCFR (n 2) I.-1.106, 1.107.

72DCFR (n 2) II-1.106.

73DCFR (n 2) II-1.107.

74DCFR (n 2) I.-1:109.

75DCFR (n 2) II-1.105

duty on a buyer to enquire for discoverable interests before buying. Two more substantive concerns are the general availability of specific performance, albeit with some bars.76 This would represent a major extension of English law for goods, with the potential to raise major conflicts of priority,77 and would have major ramifications in land law.78 The rules on contractual assignment would also be very awkward if applied to land: a European contract would be assignable even if it says it is not.79

A deeper issue about the proposed venture into property law is the issue of competence. The Commission observed mildly that a regulation on contract law or a civil code raise issues of subsidiarity and proportionality80 even if it did turn out to be within the political will of the member states. In truth the Tobacco Advertising ruling shows that the EU lacks competence to codify private law.81 Behind this stands the property shield, which is not in any way constrained to immovables82 which strongly suggests that Books VIII and IX of the Draft Common Frame of Reference fall outside the Treaty powers of the EU. If there is a single market in goods, it seems logical to stop at the edge of contract law where the guiding principles are freedom of contract and just results, and to leave aside property where the scope for party autonomy is limited and the core aims are security and certainty.83

76G de Vries ‘Right to Specific Performance: Is there a Divergence Between Civil and Common Law Systems and Has it Been Bridged in the DCFR?’ (2009) 17(4) ERPL 581; M Van Kogelenberg ‘Right to Enforced Performance of Non-monetary Obligations’ (2009) 17(4) ERPL 599.

77DCFR (n 2) III.-3:302.

78See below heading 7.

79DCFR (n 2) III.-5:108(1); Whittaker ‘Assessment’ (n 3) App IV; Eidenmuller (n 3) 687.

80Green Paper (n 9) 11.

81C–376/98 Germany v Parliament EU (Tobacco Advertising) [2000] I ECR 8419 ECJ,

J[84]; S Weatherill ‘Reflections on the EC’s Competence to Develop a European Contract Law’ (2005) 13(3) ERPL 405, 415ff.

82EC §295 ex §222; Sparkes ELL (n 40) [3.18ff].

83DCFR (n 2) Principle [36], I.1:102(3)(c); J Basedow ‘Freedom of Contract in EU’ (2008) 16(6) ERPL 901; G Alpa ‘Party Autonomy and Freedom of Contract Today’ (2010) 21(2)

EBL Review 119.