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

Author:Christian von Bar
Position:Professor - University of Osnabrück
Christian von Bar
University of Osnabrück
The Role of Comparative
Law in the Making of
European Private Law
1. Af 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 re 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 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 con 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 suf 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 de ning
elements of the Estonian code of obligations have been borrowed from German law. The tort-law concept of
unlawfulness, the law of unjusti 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.

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