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repayment of the loan. This is replicated throughout, for example the tenant’s duty to vacate enforceable in contract and the landlord’s proprietary right to repossess and an easement constitutes a contract with the immediate neighbour and a proprietary duty to future neighbours, rights which separate when the burdened land is sold. Europeanisation of the personal obligations may cause rights to diverge when they ought to fit together.
Very often owners of property are constrained by the numerus clausus of property rights which limits property rights to pre-formulated varieties. The consequence is that rights in land on the continent may be made up of a close admixture of real and personal contractual rights, the whole designed to replicate a property interest recognised in the more flexible common law system.146 Europeanisation of the in personam element will create a bizarre mix of EU personal and national real right. The result will be much like land of mixed tenure before 1926, part freehold part leasehold, where the title would be rent asunder on the death of the owner. There is no clean borderline between property and contract is not in reality like that because parties utilise freedom of contract to modify property rights in ways that cannot be done directly. 147
6. Juridical acts
(1) Bilateral contracts
‘Contract’ is a term that has seeded itself promiscuously across Europe, and although there is a similarity of core meaning it cannot be assumed that all European usage confirms to the
146Akkermans Numerus Clausus (n 113) 308ff.
147Admittedly the abstraction principle reduces duplication but does not eliminate it.
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pure strain of the common law contract, certainly not at the level of detail. Shades of meaning are a potential problem when seeking to harmonise contract laws across Europe.148
A standard bilateral149 contract with consideration provided on both sides, the contract of the commercial lawyer. This would include a straightforward sale where a seller agrees to transfer ownership in a house at a given price to a buyer who promises to pay the price on completion; this is a contract in English law. A similar document would be used in Germany but translated usually as a ‘pre-contract’ since the transfer of title is accomplished by a ‘real agreement’ (dinglicher Vertrag).150 Similarly in France a pre-contract would be used, not strictly binding, and it seems inevitable that the final document a ‘contrat’ should translate into English as a contract.151
(2) Juridical acts
‘Contract’ is merely an example of a wider concept of ‘juridical act’, which is the scope of the Common Frame. A juridical act may be unilateral, when it is not properly described as a contract but takes the form of a unilateral undertaking, binding if so intended even without acceptance.152 It is much wider than just a unilateral contract of English law but on its own (without a land exclusion) might include a much wider range of unilateral acts, including a transfer of legal title, a deed of grant of an easement or a deed of gift. What if a donor gives his house to a donee? English lawyers would not describe this as a contractual situation since no consideration returns from the donee: it is seen as a unilateral act in the sense that only the donor need execute the gift, the donee’s role being limited to mute acceptance, a failure to
148The definition of contract was identified as a problem by Prof Vogenauer in evidence to the House of Lords EU Committee: HL Report (n 8) [27].
149The same applies to a multilateral contract with more than two parties.
150EJ Schuster Principles of German Civil Law (Oxford, Clarendon, 1901) [309].
151H Dyson French Property and Inheritance Law (Oxford, OUP, 2003) chs 3, 4, 5.
152DCFR (n 2) II.-1:103(2).
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disclaim the gift. In civilian systems wanting (?) a doctrine of consideration, the arrangement to give would be seen as a contract reliant on valid causa – the intention to give or family obligation.153 In fact there is a land exclusion: donation of land is outside the European codifiers remit, but donations of goods are included. Curiously, however, Book IV.H covers contracts for the donation of goods154 – and since a contract is defined to be a bilateral act,155 it seems not to include the unilateral act of gift itself. Perhaps this is because formality is needed to protect the fixed shares on inheritance. Book IV.H is not intended to cover an actual gift of a movable but only the preceding arrangement to give.
There is also scope for the Draft Common Frame of Reference to apply to bilateral transactions which are not contracts but ‘acts’ designed to give effect to transactions. This might include a conveyance or transfer or the French acte authentique used to complete a transaction.156 Many transactions within the literal meaning of a juridical act are removed by the land exclusion, for example a transfer of ownership of land or a mortgage. Other transactions which obviously ought to be excluded may be covered simply because the land exemption is too narrow, one random example being a deed of grant of an easement. The actual creation of a property right might fall into a code superficially about contracts for rights.
There is, therefore, scope for an unintended effect on substantive land law, wide but patchy. These have been noticed briefly above.157
153French CC §931; Bell Boyron & Whittaker (n 30) ** (1st edn) 323-327.
154DCFR (n 2) IV.H.-1:103(2); the same terminological ambiguity arises in relation to a contract for proprietary security over goods in book IX.
155DCFR (n 2) Annex (‘contract’).
156The two are difficult to disentangle in causal systems where a defect in the contract affects the passing of property: Van Erp (n 44) 2; Eidenmuller (n 3) 687-690.
157See above heading 3.