A common core of law within Europe on interpretation of contract?
Jaap Baaij from the University of Amsterdam visited the ECCL this week. Jaap is, together with David Cabrelli and Laura Macgregor, an editor of an interpretation project for the Common Core of European Private Law. More information on the Common Core project can be found here: http://www.common-core.org/. The results of the project have been published by Cambridge University Press in their series Cambridge Studies in International and Comparative Law: http://www.cambridge.org/uk/browse/browse_all.asp?subjectid=302.
Essentially, the Common Core project involves the creation of factual scenarios which are analysed by reporters from different European countries. The material contained in the national reports acts as source material for the production by the editors of both a comparative analysis of each individual factual situation, and an overall comparative analysis. In this way, we can identify trends, similarities and differences in the national legal systems within Europe. It may become clearer whether it is true to say that there is, in fact, a "common core" of law on any specific topic within Europe.
The Common Core project has no specific aim beyond the production of comparative conclusions on the law within Europe. It does not specifically aim to create a European civil code for private law, nor the rationalisation of European Directives in the area.
Very little has been published on the law of interpretation of contract from a comparative perspective. It is often stated that civilian systems tend towards a subjective approach, whereas common law systems tend towards an objective approach. This is, however, an over-simplification of the situation, and it is likely that most systems apply a combination of both approaches. This would apply to Scots law: whilst it would be correct to say that the approach is largely objective, there are exceptions. One such exception is the "private dictionary" rule, in terms of which the court will give effect to a special or technical meaning of an expression shared by the contracting parties which differs from the objective meaning of the phrase. Where that occurs, the courts uphold the subjective agreement of the parties, in other words their true intentions.
Following the meeting in Edinburgh, the editors have made good progress, including drafting 11 scenarios and creating a time-line for the project. National reporters have been found for some countries but not others, and a goal for the near future will be to put together a full team of people.
One way in which this contract project may differ from some of the others in the Common Core project is that it will invite reports from certain countries located outside Europe. Those countries will be involved because they are considered to be "mixed" legal systems. There is a school of thought that considers Scots law as a mixture of a strong civil law basis overlaid with later English influence. Legal sytems such as South Africa and Louisiana may contain a similar mixture of civil law and common law elements. The editors intend to invite national reporters from South Africa and Louisiana to participate. In this way, in addition to identifying a common core within Europe, once the project is complete, the editors will be able to draw conclusions on whether the mixed legal systems show any similarity of approach to these questions.
We have very much enjoyed our productive first meeting with Jaap, and we look forward to working with him in the months to come to progress the project.