歐洲合同法原則(英文版)

1、THE PRINCIPLES OF EUROPEAN CONTRACT LAW Prepared by the Commision on European Contract Law 1999 text in EnglishIntroduction to the Principles of European Contract Law Prepared byThe Commission on European Contract LawA businessman is negotiating a contract with a company in another State of the Euro

2、pean Union, but neither party wishes to apply the law of the other country.A lawyer is advising parties to a contract involving parties in different States.An arbitrator has to decide a dispute under a contract to be governed by internationally accepted principles of law.A professor of law wants his

3、 students to gain an understanding of the way in which contracts are treated by the laws of the different States of the European Union, and to learn the common principles.A legislator is drafting a code or a statute on the law of contracts.An European Union official is drafting a new Directive affec

4、ting contracts.All these need to know the principles of contract law shared by the legal systems of the Member States and to have a concise, comprehensive and workable statement of them. The Principles of European Contract Law Parts I and II(1), and part III (2) will provide this. The Books are avai

5、lable with Kluwer Law International see You will find the text of the articles of Parts I-III in the third section below.The Principles have been drawn up by an independent body of experts from each Member State of the European Union under a project supported by the European Commis

6、sion and many other organisations. The principles are stated in the form of articles with a detailed commentary explaining the purpose and operation of each article. In the comments there are illustrations, ultra short cases which show how the rules are to operate in practice. Each article also has

7、comparative notes surveying the national laws and other international provisions on the topic.The Principles of European Contract Law Parts I and II (hereinafter referred to as PECL I and II.) cover the core rules of contract, formation, authority of agents, validity, interpretation, contents, perfo

8、rmance, non-performance (breach) and remedies. The Principles previously published in Part I (1995) are included in a revised and re-ordered form. Part III covers plurality of parties, assignment of claims, substitution of new debt, transfer of contract, set-off, prescription, illegality, conditions

9、 and capitalisation of interest.Throughout Europe there is great interest in developing a common European civil and commercial law. The European Parliament has twice called for the creation of a European Civil Code. The Principles of European Contract Law are essential steps in these projects.The Ba

10、ckground of the PrinciplesThe European Union have promoted a European rgime of academic lawyers whose platform is Europe and whose writings and debates are concerned with the future European law. This new European rgime resembles that of the American. In the United States the writings on contract la

11、w - as on other subjects - deal with the problems and issues common to the common law states. There are considerable differences between the contract laws of the several states. These differences, however, do not prevent a debate which can be based on common concepts and a common legal method. Such

12、a common language and a common legal method is also slowly emerging in Europe. The American and the new European rgimes are inspiring each other. Together with lawyers from other countries they are in the process of becoming a world community of academic lawyers. To day, however, the domestic law is

13、 the main subject of the European law schools. And Europe has as many legal sciences as there are legal systems. This, in fact, is a great waste of efforts and talent. It will be an enormous improvement of resources and ideas and enrich the legal science considerably when in the third millennium the

14、 talents will unite to establish and later maintain a European- or a world- private law.(3) And the efforts and money which it will cost to unify the private law will be amply repaid when it is there. Much of the work to cultivate the many domestic laws will then be saved.The Commission on European

15、Contract LawThese considerations have guided the Commission on European Contract Law. Since l982 it has been working to establish Principles of European Contract Law (hereinafter called PECL). Part 1 of the Principles dealing with performance, non-performance and remedies was published in 1995.(4) P

16、ECL Parts I and II was published in 1999 and Part III in 2003.With a few exceptions the members of the Commission of European Contract Law have been academics, but many of the academics are also practising lawyers. The Members have not been representatives of specific political or governmental inter

17、ests, and they have all pursued the same objective, to draft the most appropriate contract rules for Europe.In some respects the Principles may be compared with the American Restatement of the Law of Contract, which was published in its second edition in 1981.Like the Restatements the articles draft

18、ed are supplied with comments and notes. The Restatements consist of non-binding rules, soft law. They purport to restate the Common Law of the United States. The Principles are also soft law, but their main purpose is to serve as a first draft of a part of a European Civil Code. Furthermore a commo

19、n law does not to exist in the European Union. The Principles has therefore been established by a more radical process. No single legal system has been their basis. The Commission has paid attention to all the systems of the Member States, but not every of them has had influence on every issue dealt

20、 with. The rules of the legal systems outside of the Communities have also been considered. So have the American Restatement on the Law of Contracts and the existing conventions, such as The United Nations Convention on Contracts for the International Sales of Goods (CISG). Some of the Principles re

21、flect ideas which have not yet materialised in the law of any state. In short, the Commission has tried to establish those principles which it believed to be best under the existing economic and social conditions in Europe.An attempt has been made to draft short rules which are easily understood by

22、the prospective users of the Principles such as practising lawyers and business people. The Commission has made an analysis of the extent to which Part 1 of the Principles are applicable to the more important commercial contracts for the provision of goods and services of various kinds and the trans

23、fer of rights (licence agreements, etc.). Although the Principles cannot provide the appropriate solution to all the issues which every of these specific contracts raises the commission has found them applicable to the great majority of these issues.The Commission has made an effort to deal with tho

24、se issues in contract which face business life of today and which may advance the trade, especially the international trade. However, the Principles do not intend to apply exclusively to international transactions.Which Further Parts of the Law are Planned to be Unified? The Study Group of a Europea

25、n Civil CodeOn the European Continent there is a traditional concept of what is private law. It covers family law, law of inheritance, law of property and the law of obligations with its three main branches, the law of contract, the law of restitution and the law of torts. The law of contract is pro

26、bably the field of the law which most urgently needs unification. It is also here that we find a fragmentary European legislation enacted as directives. It has been doubted whether the Amsterdam Treaty empowers the institutions of the EU to prepare a Civil Code for the Union.(5) For a long time the

27、Council of MInisters and the European Commission showed no intention of engaging upon a major effort to harmonize the general principles of contract law, although the European Parliament twice requested them to prepare a European Civil Code. However, in October 1999 the European Council decided that

28、 the Commission and the Council of Ministers should prepare an overall study on the need to approximate the Member States legislation in civil law matters. On July 11 2001 the Commission published a Communication to the Council and Parliament (COM(2001) 398 final) asking them - and other stakeholder

29、s - whether a kind of Restatement, i.e. soft law rules on cotracts which are not binding on the courts, and only work by their force of persuasion should be made, or whether a comprehensive and binding Union legislation on the law of contract should be prepared. The Commission also asked whether the

30、 existing Community contract law (Acquis communautaire), most of which consist of directives on consumer protection, should be improved and co-ordinated.The Commission received responses to the Communication during 2001 and 2002. The Council of Ministers did not object to a harmonisation of contract

31、 law if a need for it was revealed. The European Parliament proposed the enactment of a binding European Contract Law in 2010 as the ultimate goal after careful studies and preparations. So did the Commission on European Contract Law and the Study Group of a European Civil Code. The other so-called

32、stake holders, i.e. governments, courts, lawyer and business organisations, law faculties and individual scholars were divided in their views. Many of them favoured the drafting of non-binding principles to be adopted by parties and by arbitrators deciding international disputes. That would not prev

33、ent national legislators from adopting these rules when revising their national contract laws. Most of the stake holders also favoured a review of the existing EC law (the Acquis communitaire) in combination with the drafting of non-binding principles. On February 12 2003 the Commission published an

34、 Action Plan as a second step in the ongoing discussion about the future European Contract Law. It suggested as a first measure the improvement of the existing and future Acguis Communautaire in the field of contract law. This could be achieved by means of a so called Frame of Reference, which conta

35、in rules on the conclusion, validity and interpretationof contract as well as performance, non performance and remedies, rules on credit securities and movable goods and on the law of unjust enrichment. This would fill in the many lacunae which the Acquis leaves open. The Plan also envisages the dev

36、elopment of General Conditions of Business Contracts valid throughout Europe. The Commission offers to help the enterprises and their organisations to exchange information with view to drafting such conditions. Finally, the Plan discusses the possibility of having an Optional Instrument of European

37、Contract Law. However, the aim is not to impose this Instrument on the contracting parties, but to make it possible for them to choose it to replace their national laws.The Commission has asked the views on this Action Plan of the same institutions and stake holders which responded to the 2001 Commu

38、nication, and is working up the responses before it takes its next step in the ongoing deliberations.It seems as if the doubts as to whether the Amsterdam Treaty allows the EU to prepare a Civil Code could be overcome.Some of the Governments have given the idea of a codification more than a moral su

39、pport. In February 1997 the Dutch Government organised a symposium on a future European Civil Code in the Hague, and since then a Study Group of a European Civil Code has been established under the leadership of Professor Christian von Bar, University of Osnabrck Germany and comparative studies and

40、ensuing drafts of a code are now carried out in centres. A centre in Hamburg in Germany is The Max Planck Institut fr auslndisches und internationales Privatrect. It is dealing primarily with personal security and with secured transactions relating to moveable property (mortgage in moveables, retent

41、ion of title, etc). The Hamburg centre and the Zentrum fr europisches Recht at the University of Innsbruck in Austria is dealing with insurance contracts. A centre in Osnabrck in Germany is treating rules on torts, unjust enrichment and negotiorum gestio. Centres in Amsterdam, Utrecht and Tilburg in

42、 the Netherlands are working on sales, long term contracts and contracts for the renditions of services, such as construction contracts and services rendered by professionals (lawyers, doctors, accountants). A centre in Salzburg Austria is treating transfer of property in moveable goods.The German t

43、he Dutch and the Flemish Research Councils and a Greek foundation have granted funds for these enterprises, Contributions have also been received from the Austrian Ministry of Education and Science and the Italian Council of Lawyers. The work started in July 1999. It is envisaged that the general pr

44、inciples of the law of contracts provided in the PECL will be integrated in what may eventually become a European Civil Code.Notes1. Hardbound ISBN 90-411-1305-3 published in November 1999 by Kluwer Law International P.O Box 85889, 2508 CN Hague, The Netherlands2. Hardbound ISBN 90-411-1961-2 publis

45、hed in 2003 by Kluwer Law International, P.O. Box 85889, 2508 CN Hague, The Netherlands.3. In 1838 Thibaut made this observation regarding Germany which was then divided in a great number of legal systems, see ber die sogennante historische und nicht-historische -Rechts-schule, Archiv fr die zivilis

46、tische Praxis (1838) 39l-4l9 , reprinted in Hattenhauer, Thibaut und Savigny, Ihre programmatischen Schriften, Mnchen 1973 p 275, 279f.4. Lando & Beale (eds) Principles of European Contract Law, Part 1. Performance, Non-performance and Remedies, Dordrecht 1995.5. See Winfried Tilmann & Walter van Ge

47、rven, Die Kompetenzen det EU zur Schaffung eines einheitlichen Europischen Schuld- und Sachenrechts und die mglichen Rechtsgrundlagen in Vergleichende Untersuchung der Privatrechts ordnungen der Migliedstaaten der EU im Hinblick auf Diskriminerungen aus Grnden der Statsangehrigkeit sowie zur Mglichk

48、eit und Notwendigkeit der Schaffung eines europischen Zivilgesetzbuches, Europishes Parlament, Generaldirektion Wissenschaft, Projekt Nr IV/98/44, 1999. THE PRINCIPLES OF EUROPEAN CONTRACT LAW Prepared by the Commision on European Contract Law 1999 text in EnglishCHAPTER 1 : GENERAL PROVISIONSSectio

49、n 1: Scope of the PrinciplesArticle 1:101: Application of the Principles (1) These Principles are intended to be applied as general rules of contract law in the European Union.(2) These Principles will apply when the parties have agreed to incorporate them into their contract or that their contract

50、is to be governed by them.(3) These Principles may be applied when the parties:(a) have agreed that their contract is to be governed by general principles of law, the lex mercatoria or the like; or(b) have not chosen any system or rules of law to govern their contract.(4) These Principles may provid

51、e a solution to the issue raised where the system or rules of law applicable do not do so.Article 1:102: Freedom of Contract(1) Parties are free to enter into a contract and to determine its contents, subject to the requirements of good faith and fair dealing, and the mandatory rules established by

52、these Principles. (2) The parties may exclude the application of any of the Principles or derogate from or vary their effects, except as otherwise provided by these Principles. Article 1:103: Mandatory Law(1) Where the law otherwise applicable so allows, the parties may choose to have their contract

53、 governed by the Principles, with the effect that national mandatory rules are not applicable. (2) Effect should nevertheless be given to those mandatory rules of national, supranational and international law which, according to the relevant rules of private international law, are applicable irrespe

54、ctive of the law governing the contract. Article 1:104: Application to Questions of Consent (1) The existence and validity of the agreement of the parties to adopt or incorporate these Principles shall be determined by these Principles.(2) Nevertheless, a party may rely upon the law of the country i

55、n which it has its habitual residence to establish that it did not consent if it appears from the circumstances that it would not be reasonable to determine the effect of the partys conduct in accordance with these Principles.Article 1:105: Usages and Practices(1) The parties are bound by any usage

56、to which they have agreed and by any practice they have established between themselves.(2) The parties are bound by a usage which would be considered generally applicable by persons in the same situation as the parties, except where the application of such usage would be unreasonable.Article 1:106:

57、Interpretation and Supplementation(1) These Principles should be interpreted and developed in accordance with their purposes. In particular, regard should be had to the need to promote good faith and fair dealing, certainty in contractual relationships and uniformity of application.(2) Issues within

58、 the scope of these Principles but not expressly settled by them are so far as possible to be settled in accordance with the ideas underlying the Principles. Failing this, the legal system applicable by virtue of the rules of private international law is to be applied.Article 1:107 : Application of

59、the Principles by Way of AnalogyThese Principles apply with appropriate modifications to agreements to modify or end a contract, to unilateral promises and other statements and conduct indicating intention.Section 2: General Duties Article 1:201: Good Faith and Fair Dealing(1) Each party must act in accordance with good faith and fair de