Towards a European Law of Contracts

Date01 July 2004
DOIhttp://doi.org/10.1111/j.1468-0386.2004.00225.x
Published date01 July 2004
AuthorEve Truilhé‐Marengo
Towards a European Law of Contracts*
Eve Truilhé-Marengo**
Abstract: European contract law has recently been the subject of increasing attention and
intense debate. In addressing this issue,the following contribution departs from traditional
analyses of the necessity, feasibility, and opportunity to harmonise national legislation on
contractual relations. Instead, the author seeks to demonstrate that, with the objective of
promoting the internal market and developing trade within it, EC authorities have long
since given birth to a genuine European contract law. Beginning with the analysis of a
body of EC directives, this article argues that the genuine nature of this law can be ascer-
tained despite its limits or rather by taking these limits into account. The important rights
granted to different contracting parties (consumer-purchaser, consumer-tourist, and
certain professionals) stand in contrast to the formal incoherence and fragmented char-
acter of the legal texts. The article concludes that, in analysing the notion of European
contact law, it is necessary to adapt a functional approach rather than a formal one,
because the functional approach has dominated European integration and the European
law of contracts since its inception.
I Introduction
Contracts, agreements between two or more parties destined to have legal effects, are,
along with currency, the true driving force of economy. It is not unusual, therefore, that
since the arrival of a single European currency, the relation between the Internal
Market and contract law has been subject to increasing scrutiny. The necessary, and
feasible, character of harmonisation between different national legal systems concern-
ing contracts has been the primary focus of academics for a few months now. This
analysis will somewhat move away from this and address another set of questions,
namely whether Community integration has not already given rise to a form of har-
monisation. What further elements do the different Community instruments lack before
the existence a Community law of contracts may be aff‌irmed?
Contracts are the traditional ‘legal garb’ for commercial exchanges. It is therefore
not surprising that in order to promote the Internal Market and exchanges within it,
European Law Journal, Vol.10, No. 4, July 2004, pp. 463–478.
© Blackwell Publishing Ltd. 2004, 9600 Garsington Road, Oxford OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA
*The translation of this text was done by Elsa Gopala Krishnan and Simon Towle. EC directives have
been translated directly from the off‌icial French-language version and may therefore occasionally differ
slightly from the off‌icial English-language version.
** Dr Public Law and Ingénieur d’études CNRS,Centre d’Etudes et de Recherches Internationales et Com-
munautaires (CERIC, UMR 6102).
Community authorities adopted a legal framework for the security of contractual
agreements. We shall therefore analyse the protection afforded to certain parties by
Community law through the dynamics of these parties’ rights (II). On the other hand,
the different Community provisions concerning contract law are more of a ‘puzzle’ than
a coherent and organised whole. The nature of Community goals and competencies
has built a piecemeal body of law. The current weaknesses of contract law must there-
fore be addressed (III), to put them in perspective and hopefully, overcome them.
The purpose of this contribution is to prove that, on condition of using Community
law’s own methods and concepts instead of trying to adapt inappropriate national
methods or frameworks,the logic behind the Internal Market has progressively brought
about a form of contract law, focused on protecting the weaker party, and, with some
help from comparative law, legal instruction, and convergence between national
systems, this body of law may well produce a full-f‌ledged law of contracts at the Euro-
pean level.
II The Dynamics of Parties’ Rights
With the chief concern of laying down the necessary foundations of the Internal
Market and effective competition, Community law has aligned itself with a common
trend in national systems, namely protecting the ‘weaker’ party. This category usually
includes the non-professional party or consumer (the layperson), due to his/her igno-
rance, but also certain professionals (sellers of goods or suppliers of services), in this
case because of their dependency. The following analysis will aim to show that by
conferring rights upon the non-professional or the lay person and certain professional
parties, the Community lawmaker has laid the foundation for a true European contract
law.
ARights of the Layperson
The layperson is afforded two types of safeguards under Community law: both general,
with the Directive on unfair terms, and specif‌ic, through a series of sector-based
directives.
a) Protection against Unfair Terms, or the Search for Contractual Balance
The Directive on unfair terms1is the f‌irst general directive aiming at harmonisation of
contract law. It is a horizontal directive, applicable to all sectors and all contracts
formed between a professional and a consumer, albeit with a few exceptions.2
In a contractual relationship between professional and consumer, the latter’s consent
is affected by is lack of information: the professional has detailed knowledge of the
contract’s provisions, having written them or often used them, whereas the consumer
simply agreed to them. It becomes necessary to avoid the professional taking advan-
European Law Journal Volume 10
464 © Blackwell Publishing Ltd. 2004
1Directive 93/13, on unfair terms in consumer contracts, OJ L 95 21/04/1993, 29–34.
2The tenth paragraph of the Directive excludes from its cope: contracts concerning labour, contracts on
wills and estates,those pertaining to family status or company status. Such express exclusion is not entirely
necessary in our view as these relationships are not, by their very nature, likely to be affected by a stand-
ard contract. Arts 1–2 of the Directive also excludes terms which ref‌lect ‘binding legislative or executive
provisions and provisions or principles in international treaties’.

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