Full Description
In its case law the Court of Justice of the European Union has acknowledged general principles of EU law, which have a constitutional status. In addition the Court of Justice has also recognised 'general principles of civil law', relying upon values which are traditionally rooted in the domain of private law.The pervasive use of principles, both in the case law of the Court of Justice and in other EU projects of 'soft' and 'hard' law, challenges legal scholarship. Although the concepts of principles and rules have been widely discussed within the context of national legal orders, they need to be rethought at the European level, because the traditional view of a principle does not fit the European Union's constitutional architecture. This also applies to the general principles of civil law, for instance good faith. They also have to be redefined to be consistent with the European Union's legal order.The contributions in this book examine EU general principles and their distinction from rules both within the context of the European Union as well as of the Member States. Moreover, they focus on the relevance of EU general principles for contract law and of principles of civil law for a European contract law.
Contents
Table of Cases List of Authors IntroductionJacobien Rutgers and Pietro Sirena Principles versus Rules in the Emerging European Contract LawYehuda Adar and Pietro Sirena I. Introduction II. The Substantive Content and Analytical Structure of a Principle: A Critique of the Common View III. Principles and Rules IV. Principles of European Law V. Principles in the Evolving European Contract Law VI. The Balance between Principles and Rules The ECJ and General Principles Derived from the Acquis CommunautaireElise Poillot I. General Principles as a Remedy to Limits on European Legislature Competences in Contract Law II. General Principles as a Tool of Court Policy Making in Contract Law The Principle of Effectiveness and EU Contract LawNorbert Reich I. A Constitutional Starting Point: Article 47 of the Charter II. Effectiveness versus Procedural Autonomy III. Some Examples Applying the Effectiveness Test in Mandatory EU Contract Law IV. Some General Conclusions The Principle of Proportionality and European Contract LawCaroline CauffmanI. The 'Classic' Content of the 'Principle of Proportionality' in EU Law II. Expressions of the Principle of Proportionality in EU Contract Law III. The Principle of Proportionality as an Autonomous General Principle of EU Contract Law IV. Conclusion 'General Principles' and 'Underlying Principles' in the Proposed Common European Sales Law and their Role in its InterpretationSimon Whittaker I. The Evolution of 'Principles' in the DCFR II. Two Types of 'Principles' in the CESL? III. Conclusion Contractual Autonomy and European Private LawSalvatore Patti I. Freedom of Contract as a Principle of European Private Law II. Limits of the Freedom of Contract in the Tradition of the European Civil Codes III. New Limits of the Freedom of ContractIV. 'Aims' to be Realised by Means of Private Law and the Increase of Mandatory Rules V. New Techniques of Distribution and New Rules of Concluding the Contract VI. Sufficient Information as a Condition of the Freedom of Contract VII. 'Petrification' of the Law or a New Conception of the Freedom of Contract Good Faith and Reasonableness in European Contract LawEmanuela Navarretta I. The General Issue II. The European Perspective III. The Policy Dimension IV. Coordination between Good Faith and Reasonableness V. The Politics of Harmonisation and a Final Remark Benefits to the Defendant as a Measure for Relief: Toward a Specific Rule in European Contract Law?Carlos Gomez Liguerre I. Restitution and Unjust Enrichment II. Profits as Enrichment III. Disgorgement of Profits Made by Breach of Contract
