TheSevenPossibleAvenuesofDevelopmentGREENPAPERFROMTHECOMMISSIONonpolicyoptionsforprogresstowardsaEuropeanContractLawforconsumersandbusinesses(Brussels, 1.7.2010,COM(2010)348final)Option1:“mere"publicationoftheDCFR(forlegislators,teachersandprivateparties)Option2: an“officialtoolboxforlegislator"Option3:EUCommissionrecommendationtoMemberStatestoincorporatetheDCFRintonationallawsOption4:DCFRasanalternativesystemtonationallawsthatcouldbechosen by parties("optionalinstrument")Option5:EUDirectivewithminimumcommonstandardsOption6:EURegulationwithuniformrulesreplacingnationallawsOptionZ:EuropeanCivilCode
The Seven Possible Avenues of Development GREEN PAPER FROM THE COMMISSION on policy options for progress towards a European Contract Law for consumers and businesses (Brussels, 1.7.2010, COM(2010)348 final) Option 1: “mere” publication of the DCFR (for legislators, teachers and private parties) Option 2: an “official toolbox for legislator” Option 3: EU Commission recommendation to Member States to incorporate the DCFR into national laws Option 4: DCFR as an alternative system to national laws that could be chosen by parties (“optional instrument”) Option 5: EU Directivewith minimum common standards Option 6: EU Regulationwith uniform rules replacing national laws Option 7: European Civil Code
HOWISTHEDCFRRESOLVINGTENSIONS?THECASEOFTHEDOCTRINEOFCULPAINCONTRAHENDO(FAULTINCONTRACTING")BLACK'SLAWDICTIONARY:"THEPRINCIPLETHATPARTIESMUSTACTINGOODFAITHDURINGPRELIMINARYCONTRACTNEGOTIATIONS
HOW IS THE DCFR RESOLVING TENSIONS? THE CASE OF THE DOCTRINE OF CULPA IN CONTRAHENDO (“FAULT IN CONTRACTING”) BLACK’S LAW DICTIONARY: “THE PRINCIPLE THAT PARTIES MUST ACT IN GOOD FAITH DURING PRELIMINARY CONTRACT NEGOTIATIONS
TheDifferenceGERMANLAWENGLISH&USLAWal Generallyaccepted view:... contractingparties are undercommon law does not have aaduty,classifiedascontractual, to deal in goodcounterpartfaithwitheachotherduringb/Kessler&Fine:...thethe negotiationstage,ordoctrinesof negligence,elsefaceliability,customarilyestoppel, and impliedcontract,to the extent of the wrongedamongothers,have ...servedparty's reliance."manyofthedoctrinalfunctionsof culpaincontrahendo
The Difference GERMAN LAW “. contracting parties are under a duty, classified as contractual, to deal in good faith with each other during the negotiation stage, or else face liability, customarily to the extent of the wronged party’s reliance.” ENGLISH & US LAW a/ Generally accepted view: - common law does not have a counterpart b/ Kessler & Fine: “. the doctrines of negligence, estoppel, and implied contract, among others, have . served many of the doctrinal functions of culpa in contrahendo