The Structure of the DCFR – Which Approach for Today's Contract Law?

Abstract

This paper discusses the DCFR as a potential model for a European Code because core members of the study group see it as this. The paper discusses, first, the overall structure and does so in two respects: It asks the question whether one should really aim at a big Code – including all obligations and large parts of property law – and argues that one should rather concentrate on a modern and convincing Contract Law Code, given that contract law is very complex today and there are not really many common problems with other obligations anyhow; the content and structure of contract law has reduced quality in the DCFR as a result of its combination with other obligations. Moreover, this paper asks the question whether all types of contract partners should be included and argues that the DCFR is right in doing so, but that it does not really reflect modern theory on where markets fail and therefore does not convincingly find the reasons where and why to differentiate in the substantive law solutions. In the two other sections two core phenomena of modern contract law are discussed: information and formation of contracts and service contracts and networks in today's service society. These are discussed with a view to see how intensively their peculiarities have indeed influenced the structure of the DCFR. Little such influence can be detected. These examples also show how well founded is the criticism that much too often general clauses are chosen instead of finding concrete solutions.