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Premises’) or has carelessly issued an incorrect character reference (Case 18 – ‘Wrongful Job Reference’). Compensation in Case 16 is allowed in eight countries and compensation in Case 18 by eleven countries, and liberal, pragmatic and conservative regimes all figure in this list. As we noted earlier in our comparative comments, in these fact situations, these results are surely influenced by the absence of any spectre of indeterminate or widespread liability.

Summary on the ‘limited common core’

When we step back from the tableau of conclusions presented above, the general contours of agreement and disagreement may be discerned. On the one hand, it is clear that Europe is particularly divided over methodology, theories of relief and causes of action. There is no methodological common core, for the systems retain their distinctive façades and their characteristic ways of controlling or regulating the issue. Further, and now approaching the question at a more substantive level, Europe is also split over the outcomes that should occur in a number of loss situations caused by negligence. Here it is apparent that metalegal factors, such as the ‘floodgates’, philosophical values and historical conservatism, drive the outcomes. On the other hand, we have attempted to show that a ‘limited’ common core deserves to be recognized at the substantive level. As just seen, Europe basically agrees to the recoverability of consequential loss, intentionally caused loss, losses due to negligent professional services and transferred losses, and perhaps in other circumstances where the risk of indeterminate liability is under control. These are the contours of selective protection. While financial interests are not as comprehensively protected as other interests, there is indeed a considerable core frame of European protection. Across façades, regimes and traditions, pure economic loss is recoverable whenever the latter is a direct consequence of the infringement of a right or of an interest that the legal system means to protect. If we judge by the developments of the past 40 years, this frame has been increasing and is likely to continue to grow.

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that the inquiry into ‘pure economic loss’ confirms how deeply conscious the code-drafters will need to be about the overall implications of remoulding the law of tort.

Pure economic loss astride private law frontiers

The kind of awareness that is required in legal debate can be simply illustrated by consideration of the following. Throughout our study we have seen the conceptual dependency which exists between underlying contract and property ideas and the law of tort. Suffice it to recall, for example, the problems raised by the notion itself of pure economic loss, the flexible boundaries that comparative analysis enabled us to draw as to the so-called ‘consequential’ economic loss, as well as the great reliance upon contract rules to handle the issue in certain regimes. Even more strikingly than in other domains, any attempt at codification concerning pure economic loss therefore will be closely dependent on the solutions which the same code intends to offer in the other fields of private law, mainly with regard to contract and property.

To give further evidence of to what we are referring, we can return to some examples taken from our study. The first of them concerns ‘The Cancelled Cruise’, the second the ‘Cable’ cases, the third is the relevance of contract law to our issue, and finally the ‘Double Sale’ case.

Regarding the first case, if possession is included in the framework of property rights, or if it is at any rate protected by proprietary remedies, any infringement of possession will permit recovery of the economic loss, regardless of whether it is called consequential or pure.

dépassée de législation?’, in Rapports nationaux italiens au XI Congrès international de droit comparé (Caracas, 1982, Giuffrè, Milano, 1982), p. 65; ‘Symposium: Codification in the Twenty-first Century’, (1998) 31 University of California at Davis Law Review. See also

M. Bussani and U. Mattei, ‘The Common Core Approach to the European Private Law’, (1997/98) 3 Columbia Journal of European Law (Fall/Winter) 339; M. Bussani and U. Mattei, ‘Le fonds commun du droit privé Européen’, (2000) 1 Revue internationale de droit comparé, 29; M. Bussani and U. Mattei (eds.), Making European Law: Essays on the ‘Common Core’ Project (Trento, Quaderni del Dipartimento di Scienze Giuridiche, 2000); M. Bussani, ‘Current Trends in European Comparative Law: The Common Core Approach’, (1998) 21

Hastings International and Comparative Law Review 4, 785; M. Bussani, ‘‘‘Integrative”

Comparative Law Enterprises and the Inner Stratification of Legal Systems’, (2000) 8 European Review of Private Law, 83; M. Bussani, ‘In Search of a European Private Law’, in J. Sinde Monteiro (ed.), Um Código Civil para a Europa (Coimbra University Press, Coimbra, 2002), pp. 79 ff.; M. Bussani, ‘Before and Beyond a European Civil Code’, in ERA (Europäische Rechtsakademie-Trier) (ed.), European Civil Code(s) (Trier, 2002), pp. 109 ff.

If possession is not included in the property framework, however, or if the power of control over the thing is not sufficient in and of itself for the holder to be deemed a possessor, then the recoverability of the economic loss caused to the holder (by interference with the thing itself) becomes an issue to be settled.2

Regarding the second cases, if the right to electricity (but the same could apply to Hertzian or other electromagnetic waves)3 is deemed a right in rem whose transfer from the supplier to the user is completed as of the date of the agreement, any damage to the system supplying that energy (such as the cutting of power cables) will be considered an infringement of property rights and therefore will raise no problems in any of the legal systems here investigated.

Regarding the relevance of contract law, if the manner in which Austria and Germany apply the notions of culpa in contrahendo or the ‘contract with protective effect to third parties’4 is adopted as a model for a European code, it is beyond doubt that many of the issues raised in our hypothetical cases will be settled by contract principles, with little need to resort to tort law rules.5

The code’s infrastructure regarding transfer of ownership would clearly have manifold effects in any ‘Double Sale’ such as Case 12. Indeed, the right of the first buyer (solo consensu) to obtain compensation depends on a variety of factors, the role of which is actually to define who has the property right in the thing. These factors include the presence of good or bad faith, the completion of delivery (for movables), compliance with formalities such as registration and recordation (for immovables) and the effects assigned to the registration itself.

2Cf. C. von Bar, The Common European Law of Torts, vol. II (Clarendon Press, Oxford, 2000), p. 55.

3For the debate on the legal nature of these entities, see U. Mattei, Basic Principles of Property Law. A Comparative Legal and Economic Introduction (Greenwood Press, Westport, CT/London, 2000), pp. 76 ff., 153.

4The same could be said for notions such as the French concept ‘chaîne de contrats’. This refers to a series of contracts which, though distinct in law, form part of an economic complex. An example can be found in the chain which links a site owner to the contractor, the contractor to the subcontractor and the latter to the supplier of the building materials. See H. Kötz and A. Flessner, European Contract Law, I (trans. T. Weir, Oxford University Press, Oxford, 1997), pp. 255 ff. As to this technical notion and its actual impact on the recovery of pure economic losses, see G. Viney, ‘Introduction à la responsabilité’ (LGDJ, 1995), pp. 338 ff.

5Nevertheless, different technical rules could still exist in each liability regime of liability concerning, e.g., prescriptive periods or rules on the burden of proof.