A common core?

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In another research project (with some personal links to the present one)81 researchers recently formulated, not a ‘common core’, but a first academic ‘Draft Common Frame of Reference’ (DCFR).82 Concerning precontractual liability, the DCFR contains the following provision:

II.–3:301: Negotiations contrary to good faith and fair dealing

(1)A person is free to negotiate and is not liable for failure to reach an agreement.

(2)A person who is engaged in negotiations has a duty to negotiate in accordance with good faith and fair dealing. This duty may not be excluded or limited by contract.

(3)A person who has negotiated or broken off negotiations contrary to good faith and fair dealing is liable for any loss caused to the other party to the negotiations.

(4)It is contrary to good faith and fair dealing, in particular, for a person to enter into or continue negotiations with no real intention of reaching an agreement with the other party.

How does this draft Article fit the cases which we have analysed in our project? First, the Article, which is very broadly formulated, would certainly apply to, and therefore provide a result for, most of the cases analysed in this project.83 Moreover, the language of the Article is of a similar level of generality to that which was stated by many of the national reporters as their general rule of precontractual liability and which (when applied as interpreted by the case law in each jurisdiction) was able to resolve particular cases with a sufficient degree of certainty; and so the outcome following from the Article, especially when read in connection with the official commentary and the illustrations which will accompany it, would probably not be much less certain than the results found by most of our national reporters for most of our cases. Would the result also be similar to the majority position for most of the

81Ole Lando, Johnny Herre, Christina Ramberg, Hector MacQueen, Martijn Hesselink and George Arnokouros were involved in the Study Group on a European Civil Code which produced the academic Draft Common Frame of Reference. Ole Lando chaired the original Commission on European Contract Law (which produced the Principles of European Contract Law) and Hector MacQueen and Willibald Posch were members of the Commission.

82von Bar, Clive, Schulte-No¨lke et al., Principles, Definitions and Model Rules of European Private Law: Draft Common Frame of Reference.

83The DCFR contains another, more specific provision (II.–3:302: Breach of confidentiality) which would be directly relevant to our case 12.

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cases? In broad terms, it probably would.84 Under the DCFR the answer to most of the questions would be determined by a general duty of precontractual good faith, in the same way as in most of the systems which were under consideration here. Moreover, liability, if any, would be limited to the reliance interest, as in the vast majority of the systems. However, again it would be a step too far, we think, to conclude that the Draft Common Frame of Reference represents the common core of precontractual liability in Europe. There are many more possible cases than the 13 which we analysed in this project; there are many more European legal systems than the 16 we discussed;85 and, in particular, as we have seen, on a lower level of generality than that on which the DCFR operates there are many important differences concerning the remedies and the facts which trigger them. The fact that a project such as ours and national legislation (together with statements of principles like the DCFR) operate on very different levels of generality is both a strength and a weakness of the Common Core methodology. Having said this, it is only fair to add that both in terms of underlying ideology, legal technique and outcome, Article II.–3:301 of the DCFR seems to represent the common core of the European civil law tradition, although not a broader European common core.

This brings us to another very general issue: the so-called common law/civil law divide. Does our project suggest anything with regard to the (continued) existence of such a major divide in Europe? Some other projects within the general Common Core Project have reached general conclusions in this respect, in particular three projects which are in some sense related to our own project: those on good faith,86 on the enforceability of promises,87 and on mistake, fraud and duties to inform,88 which all cover aspects of the formation of the contact. It is

84These provisions of the DCFR are developed from the original text of the PECL: see Lando and Beale, Principles of European Contract Law, Parts I and II, arts. 2:301 and 2:302. Our Danish reporter, Ole Lando, in his original report for our project was able to draw similarities in the result of many of the cases between Danish law and the likely outcome under the PECL.

85Our project was constituted before the recent expansions of the European Union. Our reports cover all the then-existing EU jurisdictions except for Belgium and Luxembourg, and also include Norway and Switzerland.

86Zimmermann and Whittaker, Good Faith in European Contract Law, which includes the issue of precontractual good faith, as well as good faith more generally in the performance of the contract.

87Gordley, The Enforceability of Promises in European Contract Law.

88Sefton-Green, Mistake, Fraud and Duties to Inform in European Contract Law.

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interesting to note that all three found that the differences in answers to their questionnaires did not coincide simply with the classical division – the caricature – between common law and civil law systems. Simon Whittaker and Reinhard Zimmermann, with regard to good faith,89 and James Gordley, with regard to the enforceability of promises,90 noted the varied range of doctrines amongst the different jurisdictions, and the equally varied understandings of the jurisdictions as to the application (and, therefore, the specific outcome) of these doctrines in particular cases. But they drew attention to similarities of outcome and even of underlying philosophy which blurred the distinctions, and which certainly did not draw firm lines along the common law/civil law divide. Such findings seem to confirm recent claims by comparative lawyers that the common law and the civil law traditions in Europe are converging or even have never been very far apart.91 Ruth Sefton-Green’s study on mistake, fraud and duties to inform, however, was more nuanced. In her conclusion she found that the frontiers between the jurisdictions in her study in relation to both the outcome and reasoning of her cases did not generally lie in terms of legal traditions or legal families but rather there were different clusters of cases which reflected different considerations.92 And in discussing a number of particular cases she drew attention to the fact that the result of the study was inconsistent with the normally preconceived dividing line between civil law and common law countries.93 However, she began her study with a recognition that the common law and civil law systems do divide over the precontractual obligation to provide information.94

We should emphasise that any general conclusions concerning ‘the’ difference between ‘the’ common law and ‘the’ civil law cannot be

89Above n. 86, pp. 676–8, 698–701.

90Above n. 87, pp. 371–8. See esp. p. 378: ‘common law courts reach many of the same results as those in civil law systems, in part, because of the exceptions that they have recognized. If one wishes, one can speak of the carving out of these exceptions as “convergence”. But, in this area of law, the doctrinal structure has not converged.’

91See, e.g., J. Gordley, ‘Common Law und Civil Law: eine u¨berholte Unterscheidung’ (1993) ZeuP 498; Hesselink, The New European Legal Culture, pp. 21–2; Markesinis, The Gradual Convergence: Foreign Ideas, Foreign Influences, and English Law on the Eve of 21st Century; E. McKendrick, ‘Traditional Concepts and Contemporary Values’ (2001) 10 ERPL 95; Mattei, Comparative Law and Economics, p. 69ff.; R. Zimmermann, ‘Roman Law and European Legal Unity’ in Hartkamp et al., Towards a European Civil Code (3rd edn), p. 21ff.; S. Vogenauer, ‘Eine gemeineuropa¨ische Methodenlehre des Rechts – Pla¨doyer

und Programm’ (2005) ZEuP 234.

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based on a limited and specific study like the present one. However, with regard to the cases under consideration in the present project it seems fair to say that we have detected a fundamental difference in approach between the countries which are usually considered to be part of the civil law tradition and those which are said to be part of the common law. Indeed, throughout these Conclusions we have pointed to this difference on several occasions. Unlike English, Irish and Scots95 law, all the other systems contain some general doctrine of precontractual liability, usually based on good faith. English, Irish and Scots law were the systems that most often offered no remedy and never were they the system that provided the most extensive liability. There was therefore both a doctrinal difference between the ‘common law’ systems and the ‘civil law’ systems and a corresponding difference in the outcome of cases. England, Scotland and Ireland not only rejected the general duty between negotiating parties to take each other’s interests into account, but even characterised the period of negotiations as being one in which the parties should generally have no such duty; and this was then translated into a significantly more limited range of liabilities between negotiating parties where the negotiations failed to result in a concluded contract. However, having said that we also saw, when it comes to the details of the remedies available and the facts which actually trigger the remedies, that both the differences between common law and civil law and the similarities within the civil law turned out to be much less important than they seemed to be at first sight. The common law was able to impose liability in particular situations, because what passed between the parties during the negotiations, which in many of the civil law systems would have constituted a breach of the precontractual duty of ‘good faith’, or precontractual ‘fault’ for the purposes of liability in tort, would also happen to fall

95For the purposes of our study Scots law, whilst being a mixed system rather than a system of purely common law origin, is generally aligned with English and Irish law: see above text to n. 70. James Gordley’s study on the enforceability of promises treated Scotland as a civil law system, although noted that ‘its doctrinal structure is much different, one might almost say sui generis’: above n. 87, p. 374. It is perhaps not surprising that Scotland should be aligned with the civil law jurisdictions for the purpose of that study, since Scots law lacks the key doctrine of the common law in relation to the legal enforceability of promises: the doctrine of consideration. In our study, however, we have found that in other respects Scots law follows the same general approach as English and Irish law to the scope of liabilities to be imposed on parties negotiating a contract.

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within a specific tort (delict) in English, Irish or Scots law, or would give rise to another claim such as for unjust enrichment. Nevertheless, it would go too far to conclude, with regard to the subject of precontractual liability, that the factual approach has uncovered underlying pervasive substantive unity (a ‘common core’) which was disguised by merely conceptual differences.