14 pr econtractual liability in european private law

b. Legal formants

We decided not to adopt the formal distinction and separate discussion of legal formants. Does this choice imply a theoretical position with regard to Sacco’s theory of legal formants? Maybe it does. The reason why we decided not to follow the model was that both the national reporters and the general reporters found it too artificial and unworkable. Most national reporters appear to have thought that this method was not the best way to present their national system and tradition as they know it. These are not external reports made by outsiders, but internal reports from insiders. And as reporters, most of us thought that our national legal system should be presented as being coherent. The relevant players (legislator, courts, scholars, teachers) treat their system as being coherent, even though from the outside this assumption may be questionable. Moreover, there have been much more radical versions of (internal and external) critiques of coherence49 and it seemed odd to privilege (and reify) Sacco’s moderate version.

Still, what we retained of Sacco’s approach is that national reporters were invited specifically to report on inconsistencies (both between sources of law or legal formants and within them individually), and also to report on deeper/higher levels of their national tradition where they could contribute to explaining rule choices.

3. The cases

The present book contains the discussion of 13 cases. The original questionnaire, prepared by the editors and answered by the reporters, contained 19 cases. In part, the reduction is deceptive because we have sometimes amalgamated two or three cases into a single case, where the facts were very close and we first drafted variant facts as separate cases in order to allow the reporters to focus their answers on the separate variations; but in editing them we have been able to merge the answers in a way which highlights more clearly the variations. For example, case 7 (the breakdown of merger negotiations) contains three separate situations within each of which it is necessary to consider variations of the facts; this began as three separate cases, which we have edited into one. However, the reduced number is also a result, in part, of our decision not

49See Kennedy, A Critique of Adjudication (fin de sie`cle), who regards Sacco as ‘a classic external critic in that he believes that “legal formants” determine legal rules through the vehicle of indeterminate legal dogmatics’ (p. 387, n. 41).

16 pr econtractual liability in european private law

misrepresentation or silence about a harvester’s capacity during the negotiations for its sale, where the negotiating parties have in fact concluded the contract. We thought it important to include this case, because it was relevant, for each jurisdiction, to test whether and (if so) how the formation of the contract affected the jurisdiction’s analysis of the precontractual stage.

Obviously, from a methodological point of view these may be important choices which may significantly influence the conclusions. Indeed, from certain vantage points, what has been omitted may be as interesting as what has been included. For example, omitting cases on the ground that they add little to the rest of the cases, or are marginal to the topic, forms an important step in (further) defining the topic; and this in turn contributes to ‘normalising’ the subject matter as a coherent (common European) category with certain well-defined borders. The difficulty over the Linoleumrollenfall case is a particularly good example of this.

The drafting and selection of the original cases was based on preliminary comparative research.51 That research provided us with a preliminary idea of what the main issues might be. The cases are hypothetical cases; they were constructed by us. But the construction and selection of hypothetical facts did not occur at random. Rather, we tried to formulate the cases and questions in such a way that they would reveal the factors that seem to be decisive in the Member States when deciding whether a party should be liable for her conduct (including omissions) during the precontractual stage. We tried to formulate the facts and, in particular, the questions as neutrally as possible. This meant, among other things, that we tried to avoid formulations which would point to (or fit better with) a certain solution (to avoid ‘leading questions’) or a certain legal system (to avoid Member State-specific terminology).

Again, we are well aware that ‘the main issues’ is a very problematic concept and that neither neutral language nor crude facts exist. Also, some of the cases look rather similar to actual reported cases, as some reporters comment in their discussions.

4. The national reports

The national reports on each case are presented in the alphabetical order of the names of the countries: Austria, Denmark, England,

51See M.W. Hesselink, ‘Precontractual Good Faith’ in Beale et al., Cases, Materials and Text on Contract Law, ch. 2, section 2 (pp. 237–93).

intr oduction 17

Finland, France, Germany, Greece, Ireland, Italy, the Netherlands, Norway, Portugal, Scotland, Spain, Sweden, Switzerland. This was a deliberate choice. It deviates from some of the other projects within the Common Core Project. For example, the project on good faith52 organised its reports according to ‘legal families’, starting with German law as the parent of the apparently most important legal family for that topic; and the project on the enforceability of promises53 is also organised by families, starting with French law.

We thought that the presentation of our results according to legal families would not be helpful; not only because this would contradict the egalitarian ideology of the project, as formulated by the general editors54 – ‘our project equally focuses on all the European systems under review, it treats them as equally as possible and places no emphasis on systems that are or could be considered leading or paradigmatic, or hegemonic’ – but also, and more importantly, because the main object of our research was to discover whether such legal families actually exist in terms of the way in which they answer legal questions within the scope of this project. Indeed, one way of seeing the Common Core Project is as a deconstruction of the idea of legal families.55 In particular, we hoped to find out whether alliances are consistently the same with regard to different cases and different questions, in the way that the idea of legal families would suggest. The issue will be addressed extensively in the Conclusions.

Finally, in order to assist the reader we decided to edit the reports to quite a significant degree (and we are grateful to our reporters for their tolerance and understanding in this respect). Editing included, amongst other things: bringing the reports to a similar level and style as far as the English language is concerned; bringing the size of the reports to similar proportions; and introducing a common terminology for some of the main issues. Again, we are well aware that these editorial choices (especially the introduction of a common terminology which, of course, can never be neutral), which all contribute to an impression of greater uniformity, are likely to have some influence on our comparison.

52Zimmermann and Whittaker, Good Faith in European Contract Law.

53Gordley, The Enforceability of Promises in European Contract Law.

54Bussani and Mattei, ‘The Context’, above n. 2, p. 5.

55Many introductions into comparative law have been based on the idea of legal families. See, e.g., David and Jauffret-Spinosi, Les grands syste`mes de droit contemporain; Zweigert and Ko¨tz, Introduction to Comparative Law.