EUROPEAN CONTRACT LAW: HOW TO EXCLUDE LAND?

Professor Peter Sparkes.1

The debate about European contract law assumes that it is feasible to bring together national contract laws whilst partitioning off property law, leaving specifically national land laws unaffected. This paper assesses whether this has been achieved by the current work and questions whether it is ever achievable.

1. Land and the Draft Common Frame of Reference

Publication of the Draft Common Frame of Reference provides a starting point for the discussion since it lays down Principles, Definitions and Model Rules of European Private Law.2 This represents an ambitious draft of a civil code for Europe,3 creating the potential for a large interface with real property in two particular aspects:

its application to juridical acts as well as contracts; and

the material scope extending beyond contract to include non-contractual rights and obligations and related property matters.4

This is cut down by a land exclusion which appears, superficially, to be much too narrow in scope; the very first article5 provides that the rules of the Draft Common Frame of Reference

1Professor of Property Law, University of Southampton. This paper was presented to the Confernece on Europeanisation of Private Law, University of Leicester, December 18th 2010.

2C Von Bar & E Clive Principles, Definitions and Model Rules of European Private Law – Draft Common Frame of Reference (Oxford, OUP, 2010) (‘DCFR’).

3N Jansen & R Zimmermann ‘European Civil Code in All But Name’ [2010] CLJ 98; S Whittaker Draft Common Frame of Reference: An Assessment (London, Ministry of Justice,

2008) [13]; H Eidenmuller et al ‘Common Frame of Reference for European Private Law - Policy Choices and Codification Problems’ (2008) 28(4) OJLS 659, 668; S Whittaker ‘A Framework of Principle for European Contract Law?’ (2009) 125 (Oct) LQR 616, 645.

4 DCFR (n 2) I.-1:101(1).

‘are not intended to be used …, except where otherwise provided, in relation to: …

(f) the ownership of, or rights in security over, immovable property.’6

This is – dare one presume to say? - much narrower than the drafters intended; read literally it suggests that a contract to sell land is within the Draft Common Frame of Reference. The balance of the definition between things and rights in things is not quite right. By way of contrast movables are in, not just contracts to sell goods but also property in goods are now thought to be ripe for Europeanisation.7 The intention is to debate the Draft Common Frame of Reference as presented whilst recognising that the eventual ‘political’ document is likely to be much narrower, that it will be ‘recontractualised’.8 What may emerge from consultation on the Commission’s Green Paper9 is what the Contract Communication promised in 2004,10 a European Contract Law covering both business and consumer contracts as favoured by the Council11 along with a Revision of the Acquis covering consumer law.12 The object of the current paper is merely to assess the technical adequacy of the current draft in its attempt to harmonise contract law without affecting systems of property.

5No numbering system should be adopted for anything until the person proposing it has typed into a word processor one hundred random references; had that exercise been undertaken the numbering system of the DCFR would inevitably have been very different.

6DCFR (n 2) Principles [38], I.-1:101(2)(f). This is subject to further restrictions in later books: rule 101(3).

7See below heading 3.

8European Contract Law; the Draft Common Frame of Reference (House of Lords EU

Committee, 12th Report 2008-2009 session, HL Paper 95) [54].

9Green Paper on Policy Options for Progress Towards European Contract Law for Consumers and Businesses COM(2010) 348 final; K O’Callaghan & Y Francis ‘Contract Hit [2010] European Lawyer 29.

10European Contract Law and the Revision of the Acquis: The Way Forward COM (2004)

651 Final; M Kenny ‘Those Magnificent Men and Their Unifying Machines’ (2005) 30 EL Rev 724.

11Setting Up of a Common Frame of Reference for European Contract Law (EU Council 8286/08 JUSTCIV 68, April 11th 2008) [10-11]; Whittaker ‘Framework’ (n 3) 628-629.

12Proposal for a Directive on Consumer Rights 2008/0196 (COD).