7. Contracts for sale of land

There is a possibility that the draft Common Frame of Reference may be narrowed so as to be confined to cross-border transactions,158 which would ground it more firmly in the logic of the internal market and neutralise its likely effect on land. However, as drawn it applies to transactions within a single EU state and it is that wider remit that must now be examined.

It seems reasonable to deduce that the intention was to exclude a contract for the sale of land from the Draft Common Frame of Reference completely. A special contract is provided for sales of goods, its scope inherently limited159 and anyway sales of land explicitly excluded.160

As expected, there is no corresponding set of rules for the sale of land.

It is a separate question whether the basic rules on contracts and contractual liability in Books II and III. Civilian codes would have a single basic law of contract including for example rules of offer and acceptance, supplemented by rules for special nominate contracts. It would be awkward to exclude land from the basic contract provisions, because two separate codes would be required, rules for the offer and acceptance for goods and another set for land. What would suit civilians would be very awkward for common lawyers who might form a land contract under the European code inconsistent with the conveyancing rules and Standard Conditions of Sale. On balance it seems better to exclude land contracts which are distinguished by the need for written formality or notarisation and by the contract before conveyance procedure. The European draft of the general books on contract rules and contractual obligations (respectively Books II and III) apply with the exception of contracts

158 Commission Decision on Setting up the Expert Group on a Common Frame of Reference in the Area of European Contract Law (April 26th 2010, 2010/233/EU); Green Paper (n 9) [4.2.2].

159DCFR (n 2) IV.A.-1:101(1).

160DCFR (n 2) IV.A.-1:101(1).

affecting the ‘ownership of … immovable property’.161 When land is intended to be excluded from the book covering the sale of goods (Book IV.A) the equivalent exclusion is for ‘immovable property and all rights in immovable property’.162 Comparison of these suggests that sales of land are within the general contract rules, even if the contracts relate to ownership or security interests. The Draft falls well short of a watertight and logically satisfying exemption.

The belief that obligational aspects of land contracts are covered is reinforced by the special book covering construction contracts.163

8. Conclusion

This paper has considered the exclusion of land from the draft European contract/civil code proposed in the Draft Common Frame of Reference, which is intended to cover the law of property in movables. From this small snapshot the only possible conclusion is that the technical quality of the work is not good enough to form the basis for legislation. Only with a draft providing a much more rigorous land exclusion would it be possible to answer the question whether it is technically feasibly to separate civil law between property and obligation in way that works for both civilian and common law systems. Land needs to be excluded far more rigorously.

FN 141, 145, 153.

161DCFR (n 2) I.-1:101(2)(f).

162DCFR (n 2) IV.A.-1:101(3); the exclusion for donations is similar: IV.H.: 1:103(2).

163DCFR (n 2) IV.C.