Contents of the DCFR (Seite 9)
9. Principles, definitions and model rules. The DCFR contains‘principles, definitions and model rules’. The title of this book thus follows the scheme set out in the European Commission’s communications (referred to below in paragraph 59) and in our contract with the Commission. The notion of‘definitions’ is reasonably clear. The notions of‘principles’ and‘model rules’, however, appear to overlap and require some explanation.
10. Meaning of‘principles’. The European Commission’s communications concerning the CFR do not elaborate on the concept of‘principles’. The word is susceptible to different interpretations. It is sometimes used, in the present context, as a synonym for rules which do not have the force of law. This is how it appears to be used, for example, in the‘Principles’ of European Contract Law (PECL), which referred to themselves in article 1:101(1) as‘Principles ... intended to be applied as general rules of contract law in the European Union’ (italics added). The word appears to be used in a similar sense in the Unidroit Principles of International Commercial Contracts. In this sense the DCFR can be said to consist of principles and definitions. It is essentially of the same nature as those other instruments in relation to which the word‘principles’ has become familiar. Alternatively, the word‘principles’ might be reserved for those rules which are of a more general nature, such as those on freedom of contract or good faith. In this sense the DCFR’s model rules could be said to include principles. However, in the following paragraphs we explore a third meaning.
11. Fundamental principles. The word‘principles’ surfaces occasionally in the Commission communications mentioned already, but with the prefix‘fundamental’ attached. That suggests that it may have been meant to denote essentially abstract basic values. The model rules of course build on such fundamental principles in any event, whether they are stated or not. There can be no doubt about their importance. Private law is one of those fields of law which are, or at least should be, based on and guided by deep-rooted principles. To some extent such fundamental principles are a matter of interpretation and debate. It is clear that the DCFR does not perceive private law, and in particular contract law, as merely the balancing of private law relations between equally strong natural and legal persons. But different readers may have different interpretations of, and views on, the extent to which the DCFR suggests the correction of market failures or contains elements of‘social justice’ and protection for weaker parties. |
