The Role of Comparative Law in the Making of European Private Law

• Author: Christian von Bar
• Position: Professor - University of Osnabrück
• Pages: 5-11

5

JURIDICA INTERNATIONAL XX/2013

Christian von Bar

Professor

University of Osnabrück

The Role of Comparative

Law in the Making of

European Private Law

1. Affi nitive legal systems

Estonia can now celebrate the tenth anniversary of its Law of Obligations Act, and this is perhaps a not inap-

propriate occasion to refl ect on the role of comparative law in the development of a European private law.

After all, the Estonian code on the law of obligations arose out of foundation work conducted in comparative

law. Peter Schlechtriem’s contribution to that is not forgotten. The commentary on the code, all three vol-

umes of which have since been completed, is likewise rich in references to international material; the team

of editors and contributors led by Paul Varul has succeeded in weaving into the text extensive treatment of

the Draft Common Frame of Reference (DCFR) in particular. Now that the code of obligations has passed its

probation, the task for the legal scholars of Estonia may well lie fi rst and foremost in shadowing and chaper-

oning the text and consolidating its sensible practical application. For that purpose of reinforcing the Esto-

nian law of obligations, it long ago became more important to concentrate once again on the national code

rather than to consult foreign legislation, case law, and literature. Of course, one may well wish to assure

oneself of the correctness of the route the code has apparently chosen through the light cast by foreign legal

materials and to check whether, even after such a short time, reforms to particular provisions are already

needed. Apart from this, however, foreign law remains confi ned as a rule to the role of a stopgap; it will be

enlisted when it pinpoints a solution to questions that could not be suffi ciently analysed in this jurisdiction.

Thus, in a case of doubt one may well look to Germany. That makes sense most of all in those instances

wherein the German and Estonian legal systems assume a parent–child relationship in which the defi ning

elements of the Estonian code of obligations have been borrowed from German law. The tort-law concept of

unlawfulness, the law of unjustifi ed enrichment, and the complicated doctrine of negotiorum gestio consti-

tute prominent examples among many. Similar phenomena are to be found in many parts of the European

Union—for instance, in the relationship between Portugal and Italy, between Cyprus or the Isle of Man*1

and England, between Belgium and France, between Finland and Sweden, between the Czech Republic

and Austria, and between Greece and Germany. Within closely related legal systems, developments are

also followed in the country from which the relevant regime or rule is derived. Germany—on the scale of a

Europe divided into small domains—is already a ‘large’ country; moreover, at any rate, it possesses com-

paratively more copious jurisprudence and scholarly legal literature than Estonia. One may well, therefore,

long continue to draw inspiration from it—if that is desired.

1 On which one can now consult the impressive work by M. Zillmer. Die Rechtsordnung der Isle of Man – mit Schwerpunkt

im Wirtschaftsrecht, verglichen mit dem englischen Recht. Universitätsverlag Osnabrück 2012.