The New Law of Obligations in Estonia and the Developments Towards Unification and Harmonisation of Law in Europe

AuthorPeter Schlechtriem
Pages16-22

Peter Schlechtriem

The New Law of Obligations in Estonia and the Developments Towards Unification and Harmonisation of Law in Europe

Introduction

The creation of a new Civil Code as undertaken in Estonia, and the reform of parts of an old Civil Code as under way in the Federal Republic of Germany need acceptance not only by the legislative bodies and organs competent to enact new laws but also by the wider community of those who have to apply and interpret the law in general and in the particular areas to be reformed: lawyers, practitioners and scholars, therefore, have to participate in the discussion preceding the enactment of the new law, and their concerns and criticism have to be taken seriously by the drafters. Both in Germany and in Estonia one line of critical arguments was based on the claim that the respective reform projects did not sufficiently take into account the new developments towards unification or harmonisation of the law in Europe and on the international level, in particular of the law of obligations which is of overriding importance for commerce1. If the claims of these critics were well-founded, the new reform projects would indeed be faulty and outdated, for the time of insular developments of codes and legal systems has passed with the fall of hurdles and barriers for commerce in regions of Europe and beyond. The emerging body of key concepts and basic structures common to the law of obligations of market-oriented economies of the European states in general and the member states of the European Union in particular mandate that every new codification, every project of reform or amendment of a legal system has to be tested whether it is in tune with these developments or falling behind. But are these critics right, and are their arguments well-founded? To answer that question, this paper will compare basic features of the new Estonian law of obligations and the reform project for the German law of obligations with the basic structures and key concepts of the various developments towards unification and harmonisation of this area of the law in Europe and on the international level.

1. Institutions and projects

If developments towards common principles and structures for the law of obligations in Europe are used as a yardstick for measuring the reform projects in Estonia and Germany, it has to be considered first, how and where, i.e. driven and undertaken by which institutions these developments take place, and how far they have come already.

First of all, legal acts of the European Community are a source of unification and harmonisation. While in the field of private law, regulations which are directly binding for all citizens of member states of the EC, are still extremely rare ? an example being the regulation on overbooking by airlines ?, directives are more and more reaching and harmonising central parts of private law; sales law and the EC directive on certain aspects of the sale of consumer goods and associated guarantees (1999/44/EC) of 25 May 1999 and, furthermore, the directive on delayed payments, are just two, albeit the most important, examples.

Another road to unification or harmonisation is attempted by model codes (in the widest sense). The main objective of some of these model projects is the hope for a European code of obligations (or the like). But short of that, they offer very useful tools for educating European lawyers, i.e. those jurists who will have and must have a command of the common legal language to be developed in order to facilitate cross-border communication.

Last but not least, one of the model projects, the UNIDROIT Principles of International Commercial Contracts, which are not confined to Europe, have mainly gained recognition and importance in arbitration proceedings, when the parties in the arbitration clause had not determined the applicable domestic law, but had rather loosely referred to the lex mercatoria the general principles of law, etc. But they are also a source of inspiration for domestic reformers and legislators.

1.1. Drafting and drafters

Model codes and similar projects are rarely drafted by single persons. Usually they are elaborated by groups of experts from many countries, the number of countries represented and the selection of experts being mainly a matter of the respective framework ? and not least the financial basis ? for the project and a more or less informal co-option of the group members. Let me name just some of these drafting groups.

The prestigious project of the Commission on European Contract Law, which had published the Principles of European Contract Law in two parts in 1995 and 2000, edited by the Danish scholar Professor Ole Lando together with Professor Hugh Beale of Warwick, England, is nominally a private initiative instigated by the editors and some others and was funded by private and public institutions, but it has the moral and to some extent the financial backing of the EC Commission and the European Parliament, which on several occasions has emphasised the need for a European Civil Code. The group, often named after its spiritus rector the "Lando Commission", co-opts its members and tries to have a fair representation of, if not all legal systems of Europe, at least the main European law "families".

UNIDROIT, the Institute for the Unification of Private Law, is a creation of the League of Nations in 1926, and now an international juridical entity, financed by member states; it has promoted a number of important uniform law conventions and has ? in 1994 ? published the first part of the Principles of International Commercial Contracts. The working group elaborating the mentioned Principles consists of representatives of countries of all five continents, some of the European members being members of the Lando Commission, too.

The most ambitious project to date is the so-called Study Group for a European Civil Code. It consists of a number of working teams in several European countries and is financed by research foundations in the Netherlands, Germany, Sweden and other sources. The general idea is to build on the Principles of European Contract Law as a kind of general part of the law of obligations and supplement them by more specific topics such as sales and services, insurance contracts, secured transactions, transfer of property, torts, negotiorum gestio, restitution and unjust enrichment. The working teams draft proposals with the help of expert advisers ? again striving for a representation of all major European legal systems ?, and twice a year the so-called co-ordinating group convenes in a kind of plenary meeting, discusses and refines the draft proposals and aims at formulating black letter rules, which were later to be backed up by comments to be...

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