RICERCA ITALIANA     

European contract law and the Vienna sale Convention

Università degli Studi di Firenze

Abstract

This research paper proposes to be an in depth study of the experiences and uniformization of law as regards contracts within the european union and attempts to elaborate a common nucleus of concepts , principles and rules according to the requests of the european commission.
Keeping in mind that other efforts to elaborate uniform models were strongly inspired by regulations governing international sales of personal property (movibles) dictated by the Vienna Convention, aknowledging method and content of the same, this research also analyzes the study of this set of rules which often offers solutions with potentially general value.
Particular attention will be paid to examples and to the choices of legislative policy, which are more suitable for the purpose of uniformity. <<<

Principal Investigator

Giuseppe VETTORI Università degli Studi di FIRENZE

Research Objectives

The creation of cultural assumptions necessary to create a system of wide shared rules, that can constitute the base of the future european contract law, proceeds firstly through the predisposition of coding plans. These plans, because of their nature, represent what today is commonly indicated as soft law.
The extraneity of that tools from the sources of normative production as commonly understood is the constant feature that characterizes such different tools often not coinciding. However, even if in a different way, the so called soft Law discounts a heavy debit towards the uniform discipline of the international sale of mobile things, dictated by the Convention of Vienna, in particular for methods and contents.
For the Countries that have joined to, such discipline is law in force, in the same way as the generally recognized criteria of formal creation of the law sources.
In such perspective, the premise of the research is that the Italian legal culture has lend insufficient attention to the Convention of Vienna. It happened in a similar way in many European countries. So, just a more careful approach to the rules contained in such normative systems and in the application can stimulate in a meaningful way the studies on the future European coding. Such tools allow to compare both domestic and international points of view.
If it is true that the Convention of Vienna contains a discipline expressly dictated according to a single contractual type, it is also true that the sale contract has always constitute the model of general contract separated from the single types.
In fact, several rules of the Convention of Vienna, above all those regarding the contract formation, are already equipped of a general valence, as it is shown by the almost total insertion inside the most meaningful expressions of the so-called soft Law.
The rules of the Convention of Vienna have revealed an unforeseeable expansive ability in sectors which represent today the first real expressions of the European private right, in particular in the market and comsumer protection. It should be adequate to remember the reception of the “principle of conformity” in the discipline of the consumer goods sale.
Studying the Convention of Vienna in a renewed and more modern way allows not only to fill cultural gaps of our legal atmosphere, but also to put to point a methodological approach characterized by a strong interdisciplinary nature. That nature includes private, international and comparative studies of the possible models of European contract law creation. <<<

Timescale

24 months

National and international background

In recent years we have been witness to a process of slow but progressive affirmation of models of uniform juridic soluions for the regulations of governing European countries.
This process requires a broad analysis of mechanisms through which principles, rules, concepts and institutions are elaborated at the supranational level.
Through the contribution and the reciprocal influence of the legislative, giurisprudential and doctrinal creators as wellas economic and social dynamics which are at the base of such elaboration.
The study of this phenomenon of juridic convergence does not only effect the rules elaborated at the communitary level - rather, they are only one component of this of this complex juridic process, directed at discerning the presence of a "common nucleus" of private European law. Actually, the experience of european legislation introduced through the directives has highlighted more and more the need for a common base of general rules, in the context of which only the norms (provisions) introduced in conformity with the directives will permit the atteinment in the legal systems of the various member-nations of an identical discipline which is therefore the same for them all.
In consideration of the recognition of the inadequacy of "Communitary Law" for its sectoriality, analytics and lack of organic unity, the unarrestable process of integration was entrusted to " European Common Law " that is to a group of rules and principles, which are the result of cultural meditation and intellectual elaboration.
It is this principle which inspired the Commission for European contract law and, in the first place, its President, Ole Lando.
The fundamental objective which the Commission assigned itself was that of creating a "corpus" of uniform rules to be applied to contracts and to obligations within the common market, seeking the orientation which they have in common and as a basis of European Contract law.
The principles of European Contract law elaborated by the Commission are not, only a mere consolidation of existing law in Europe.
If on one side we have wanted to preservecommon European tradition, on the other we have soughtto choose the best solution on a technical level.
The best of the principlesis the result of the convergence on fundamental solutions which are common to several sets of regulations or codes with particular attention to other concrete experiences of uniformization such as the "Restatement of Contracts of the United States of America and to international acts such as the convention on Vienna of 1980 on international sales contracts. Such things make the Principles of a corpus of remarkable weight.
It is therefore presumable that they will hold an important role in the possible elaboration of a European Code or legal system.
In the opposite case, the principles would, in any case, maintain their own interest as an example of a set of rules of soft law, which would be extraneous to the classic system of the sources.
In reality the possibility of carrying out the process of harmonization of the issuing of a sole code has been evaluated on a critical basis also by the European Commission which proposes four different evolutionary alternatives :
- Leave to the market the solution of problems.
- Promote a group of common principles which are not binding.
- Improve the existing communitary list of rules.
- Adoption of a uniform text.
The Board has launched a document that provides the elaboration of a “common picture of reference” but not an organized action. This “picture” should be made of common rules and definitions about the principal aspects of the contract discipline. It should also adapt the internal and european positions of Courts, contractual praxis, and the international instruments ( in particular the Convention of Vienna). It finally turns out the reference to the Convention of Vienna as a fundamental value for its nature of uniform inforce right and as model for an european contract law codification.
The recognition of all the various system of integration is useful to understand in a better way the actual evolution and to give important data for interpreting the trends of the future developments. <<<