Grundfragen der Vereinheitlichung des Vertragsrechts in der EU

The study tries to find answers to "basic questions" connected with the idea of unification of contract law within the European Union. It deals with questions that have been controversely debated by the literature in the past as well as with fundamental conecptional questions concerning the substantive orienientation of contract law which have been, so far, widely ignored in the context of European contract law unification. Chapter 1 examines the institutional and substantive conditions of EC law with respect to the unification of contract law, as for example: the already existing harmonisation of contract law as effected by EG directives, regulations and decisions, the projects and draft proposals, the critique of all of these, the divergency between the national contract law rules, the primary EC law and the possible EC competences for the unification of contract law, the extent and scope of a desirable unification, the recommendable unification instruments, and the necessary reforms in the EC judiciary. The analysis in chapter 1 results (among others) in the affirmation of the existence of an EC competence for the unification of contract law (Art 95 EC Treaty) and in the discovery of a deficiency of the present discussion. Neither EC law, nor ECJ decisions, nor the "private" codifications have made an attempt to develop a coherent system of answers to the basic value questions of contract law, although these questions have been answered in the respective EU member countries in very different mariners. It is only from such a coherent system of answers that a future European contract law can draw its substantive basis and its legitimacy. The further structure of the study results from these two tenets (existing EC competence and deficiency): Chapter 2 deals with the significance of the EC fundamental freedoms and the constitutional human rights for contract law and shows that human rights do not render a theoretical and dogmatic fundament of contract law superfluous, but that they, nevertheless, offer an important point of orientation for the preparation of a uniform contract law and its later application (legitimacy, transparency, coherence). An EU charter of human rights (which is under preparation) would help to overcome existing problems of the EC concept of fundamental freedoms with respect to contract law and could motivate the member states to remedy anachronistic deficits in their national charters of human rights which are traditionally modelled on an exclusively liberalistic concept of human rights (supplementation of limited social rights). Chapter 3 deals with the necessary bridging of the gap between the "general" contract law and the diverse contract law rules included in special legislation which regularly aims at the proctection of weaker contract parties (proposals are presented). Not only the provisions in the special legislation but also large parts of "general" contract law are marked by the tension between two principles of contract law: the "principle of contractual freedom" and the "principle of fairness and respect for the other party`s interests". The deliberations that follow the presentation of a number of recent approaches to contract theory in chapter 4 further concretise the balancing between these two principles against the background of European contract law. Chapter 5, by use of a few examples, wants to show the influence exercised by the answers to the discussed conceptional and substantive questions on the analysis of concrete rules of contract law (Lando Principles, UNIDROIT Principles, CISG, comparative law). The European unification of contract law still necissitates a number of careful preparatory studies, but it is, generally, a very desirable project that has good chances to be realised in the future,