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case of The Closed Motorway, European consensus takes the opposite tack: nine systems clearly oppose relief. These selective areas of consensus confound claims of a Europe polarized along common law/civil law lines. A realistic map of pure economic loss in Europe must be more detailed and nuanced than has been supposed.

Certainty vs. uncertainty

A second point of interest in the above tables concerns the degree of legal certainty in the answers. For example – as shown by Table 8.1 – the German system reported only one problematical case, but the Spanish report produced seven; Austria produced only two problematical cases, but Italy yielded five. Therefore, we wondered whether greater predictability and certainty (less indeterminacy) about pure economic loss seems to be characteristic of the conservative regimes and whether there is any discernible trend in the results yielded by the liberal or pragmatic regimes. As interesting as the question is, we do not think this evidence leads to any valid generalization. If there is any tendency we would have been tempted to argue that tort regimes with a structured system of ‘protected interests’, whether the structure results from codified texts, borrowed doctrine or case precedents (but this would include England) tend to yield more definite and predictable ‘yes and no’ answers from the reporters, and as a consequence fewer ‘problematical’ responses. However, we hesitate to call this much more than a possibility. The evidence is mixed. For example, it is difficult to explain why Portugal and Finland produced a higher number of problematical cases (seven and eight respectively) than Germany and Austria, although all these regimes adhere to a system of protected interests. It is also difficult to explain the low number of problematical cases in France and Belgium, as compared to the higher number in Spain, though these regimes do not purport to embody a system of protected interests. The reasons for these patterns can be manifold. They may stem from a variety of accidental factors, including the cautiousness of the reporter, the evolutionary stage of the question in a particular country or the variable interplay of legal formants tackling the issue within the same system.4

4For example, to say in a given case that the solution is not problematic in France perhaps places no stress upon the existence of covert means by which the juges du fond

Of course one could question whether legal certainty of the above kind is a real asset – not only for loss bearers in our societies,5 but also in relation to the perennial need of any legal system to continue to develop new solutions that fulfil the demands of law-users. These questions, however, involve the eternal debate about the proper balance between flexibility and predictability in the law6 (as well as between uniformity and diversity of the law, in a supranational context)7 and might well be seen as a research issue far beyond the boundaries of our study.

may render an adverse or surprising judgment. A different observer might have chosen to underscore the problematical side instead of giving an affirmative answer ‘in principle’. Further, the jurisprudence and/or a strand of doctrine in one jurisdiction may point to opposite outcomes (competing formants) or the precise hypothetical situation may not have been previously treated with as much clarity as in another jurisdiction.

5One could question the influence that some social and economic factors may have on the flowering of this issue in recent years. C. von Bar underlines the fact ‘that the wealth of modern men consists more and more of ‘‘pure economic interests” ’ and that ‘in our modern economy there always exists the possibility of re-acquisition, with the result that the distinction between ownership (meaning the interest in preserving individual tangible objects) and money (representing the possibility of acquiring ownership) has lost some of its importance’ (emphasis added): ‘Liability for Information and Opinions Causing Pure Economic Loss to Third Parties: A Comparison of English and German Case Law’, in B. Markesinis (ed.), The Gradual Convergence (Oxford University Press, Oxford, 1994), pp. 99, 108.

6It would not be possible to mention the great number of reference works on this subject. See, however, as to the different legal traditions, R. von Ihering, Der Zweck im Recht (Leipzig, 1877); A. Hägerström, Das Prinzip der Wissenschaft. Eine logischerkenntnistheoretische Untersuchung. I. Die Realität (Uppsala, 1908); F. Gény, Méthode

d’interprétation et sources en droit privé positif (2nd edn, Paris, 1919); R. Pound, The Spirit of Common Law (Harvard, 1921).

7See M. Bussani and U. Mattei, ‘The Common Core Approach to the European Private Law’, in (1997/98) 3 Columbia Journal of European Law (Fall/Winter) 339; M. Bussani and U. Mattei, ‘Le fonds commun du droit privé Européen’, in (2000) 1 Revue Internationale De Droit Comparé 29.