Professor, Copenhagen Business School
On Legislative Style and Structure
Should a legislator write in legal language that gives precision to his intentions but which the average citizen may have difficulties in understanding? Or should he instead use simple and popular language, which the citizen can understand but is less precise?
Issues of style and structure are closely related. In the structure of a statute or code a legislator may use legal criteria, as some legislators do when they separate the law of obligations from the law of property, and address the property aspects of the sale of goods in one book and the mutual obligations of the parties to a sales contract in another. That enables treatment of issues relating to property and to obligations together, but the citizen then has to find material on these two aspects of a sale in different places. It would be easier for him if all the rules relating to the sale of goods were located together.
Should the code or statute be exhaustive and cover all of the issues that one can imagine being touched upon by a subject, or should it cover only some important issues, leaving the others to be developed by the courts? Should the statute provide broad principles, letting the courts then fill them in, or detailed rules, which give the courts little freedom of discretion?
In the following discussion, I will address the ways in which English, German, and French legislators have dealt with these problems. The focus will be on the statutory provisions relating to obligations. In addition, I will discuss the style and structure of the UN Convention on Contracts for the International Sale of Goods (CISG); the Principles of European Contract Law 1 (PECL), which were prepared by the Commission on European Contract Law; and the UNIDROIT Principles of International Commercial Contracts 2 (UPICC), which were the fruit of UNIDROIT work.
From the British one learns to be cautious when drafting black-letter rules, and not to draft rules that are too broad and general. The members of the two groups, the Commission on European Contract Law and the UNIDROIT Working Group, realised that their English colleagues were walking dictionaries for their cases, who could often point to English decisions showing the adverse consequences of a proposed rule.
However, neither the Commission on European Contract Law nor the UNIDROIT Working Group adopted the elaborate style of the English legislature. In Great Britain, most statutes were originally enacted to counteract some mischief created by the case law, and the English courts did not like them. They regarded statutes "as an evil, a necessary evil no doubt, which disturbed the lovely harmony of the Common Law" 3 . So when they interpreted the statutes, they applied them only to the precise situations that they unquestionably covered, applying a narrow and pedantic construction of statutes.
This led the English legislators to go into great detail in order to force the courts to give effect to their intentions. Hein Kötz gives an example of this. He recalls the way in which article 6 of the European Directive on Liability for Defective Products is implemented in the British Consumer Protection Act 1987. One of the factors in determining whether a product is safe is 'the presentation of the product'. In implementing this directive, the British act succeeds in expanding these five words into 45 without adding anything of substance. The language on the presentation of the product becomes "the manner in which and the purpose for which, the product has been marketed, its get-up, the use of any mark in relation to the product and any instructions for, or warning with respect to doing or refraining from doing anything with or in relation to the product"4.
One wonders whether it is still necessary for the British legislation to go into such detail. In the last few decades, the English courts have moved, in Lord Diplock's words, from the "purely literal towards the purposive construction of statutory provisions"5.
It seems, however, that the traditional style has got into the bloodstream of British lawyers. We find traces of it with the Study Group on a European Civil Code, which is in the process of amending the PECL. Article 2:102 (1) of the PECL lays down the general rule that "each party must act in accordance with good faith and fair dealing". Under British influence, this paragraph has been amended to read: "A person has a duty to act in accordance with good faith and fair dealing in negotiating or concluding a contract or other juridical act and in exercising a right or performing an obligation." Here, 12 words have become 34 words6.
The Germans - most notably, the Pandectists of the 19th century - made great efforts to refine the legal language. They set the imprint of precision and consistency on the German Civil Code (BGB), which came into force in the year 1900. Its draftsmen strove to find the most clear and precise expressions, to use words in the same sense wherever they appeared in a text, to utilise one expression universally for the same phenomenon, to avoid unnecessary repetition, and to place the more general rules before the more special ones. These techniques were later adopted by many of the world's legislators.
However, the structure of the BGB is not only very carefully thought through but also very complicated. The idea of placing the more general rules before the more specific was carried into action with great consistency. Book 1 covers the rules that apply to the obligations, property, family matters, and matters of succession that are addressed by Books 2, 3, 4, and 5, respectively. This book provides, among other things, rules on the elements of agreements, the authority of agents to bind their principals, and prescription.
The style and main structure of the Civil Code was retained when the law of obligations was revised in 2001. Today, Book 2 (on obligations) has eight parts. Part 1 deals mainly with the contents of the obligation. In this and in parts 4-7, all obligations are handled via the same provisions, whether they are contract, tort, or restitution obligations. This has made it necessary to lift them to a high degree of abstraction and disembodiment. In § 241 BGB, which begins Book 2 and applies to all obligations, it is provided in paragraph 1 that the debtor is obliged to tender the performance he owes. This, as some writers note, is obvious7.
Among the new provisions of the revised edition of the BGB, some deal with culpa in contrahendo, fault in contracting. This subject was not treated in the BGB; rather, rules had been developed by the courts8. In § 241 (2) it is now provided that the debtor must also pay regard to the rights, 'legal goods', and interests of the other party. The debtor has what the Germans call Schutzpflichten, duties of care, toward the other party. But a party who negotiates a contract is not yet a debtor, as there is not yet a contract. The BGB's § 313 (1), which is in Part 3 (dealing with obligations arising out of a contract), takes care of that. It specifies that the duties of care provided for in § 241 (2) may also arise out of contract negotiations. Also, § 280 (1) BGB, which is in Part 1, provides that a party may claim damages for the loss he suffers when the other party violates duties arising out of a 'debt relationship'. Thus it is that the rules on culpa in contrahendo are to be found in a conjunction of §§ 241, 313, and 280. A general duty of care is established in § 241, with § 313 (1) extending that duty to negotiations and § 280 imposing liability for violating the duty. This is logical and carefully considered. However, in order to understand it, one must be a well-informed German lawyer. And the rules state only that a liability exists; there are no indications as to the situations to which they apply. In order to know that, one would have to consult the case law.
This style differs from the one used in the PECL's article 2:301 (2) 9 and in UPICC article 2.1.15 (2) on negotiations in bad faith. These provide that a party who has negotiated, or broken off negotiations, in bad faith is liable for the losses caused to the other party. And they both give examples illustrating what constitutes behaviour in bad faith10.
The BGB's § 242 provides that the debtor must perform his duty in accordance with good faith and fair dealing, having regard for commercial practices. Originally this rule was not meant to play a very significant role. But, due to the turbulent history of Germany and to a growing need for social justice, § 242 now has paramount importance. It has operated as a sort of 'super-provision' - a king of the Code, as it were - that has modified other statutory provisions, and it has been applied to change the rigorous individualism of the original contract law of the BGB, so as to adapt the law to the changed social and moral...