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James Gordley
The Future of European Contract Law on the Basis of Europe’s Heritage
Of greater help to the future of European contract law than any particular change in doctrines and rules would be a change in the prevailing view of why doctrines and rules should be accepted. In Europe, legal training, legal scholarship and the administration of justice are based on authoritative statements of the law by the legislatures or courts of single states. These statements rightly require deference when they are resolutions by a legislature of particular problems the legislature has actually considered. But the formulations of a high court and the provisions of civil codes are often no more than the best effort a court or a drafting committee made, often long ago, to resolve a knotty problem. If their formulation was imperfect, to follow it must sometimes lead to a wrong result. Courts must then either reach a wrong result or else pretend to apply a formula they are in fact disregarding. Moreover, to consider only the formulations of the courts and legislatures of a single state is to disregard the experience of other states, which may shed light on how a problem should be resolved. It would be better to base teaching, scholarship and the resolution of particular cases on the experience of all states in which similar problems have arisen.
European Review of Contract Law, Walter de Gruyter
Print ISSN: 1614-9920
Volume: 1, 07/2005
Pages: 163 - 183