Critique of the Draft Common Frame of Reference (DCFR)
10.06.2008
Professor Reinhard Zimmermann, Director of the Max Planck Institute for Comparative and International Private Law has together with Professors Horst Eidenmüller (Munich), Florian Faust (Hamburg), Christoph Grigoleit (Regensburg), Nils Jansen (Münster) und Gerhard Wagner (Bonn) authored a critique of the Draft Common Frame of Reference (DCFR). The critique appears in the der JuristenZeitung and provides information as to this milestone in European private law and to initiate further academic debate. The work focuses primarily upon the fundamental challenges which inhere not only to codification efforts but also to the appraisal of competing interests.The Draft Common Frame of Reference (DCFR) was published at the beginning of the year. The text is the result of the efforts of numerous private law scholars hailing from the Member States of the European Union and presents itself as an "academic" proposal adhering solely to scientific - as opposed to political - principles. Notwithstanding its unwieldy name, the text is nothing less than the draft of the central components for a European Civil Code.
Following an overview of the genesis and content of the DCFR, the critique first asks whether and to what extent the DCFR is premised upon diligent and reasoned consideration of the legal interests at stake. The critique then turns with greater detail to the significance of private autonomy and additionally examines the degree to which the proposed provisions meet the demands of legal certainy and legal clarity. Thereafter, the DCFR is assessed on the criteria of internal and systematic consistency and evaluates whether the Draft critically weighs and reasonably consolidates the sources on which it is based, namely the Lando Commission's Principles of European Contract Law and the Acquis Principles, but also the private law traditions of the Member States. Furthermore, the critique considers the Draft's definitions of more than 120 key private law terms which are treated by neither the Lando Principles nor the national private law systems with the same degree of form or elaborateness.