Two new books: European private law as a national discipline

 

The international character of European private law is one of the reasons why I have always been attracted to this field. Like legal history and philosophy of law, European private law is an academic discipline practiced by academics from a wide range of different countries together making up a vibrant academic community. In law, this is still exceptional. This, however, is not the only dimension of European private law. There is also the national dimension: how do national private laws and European private law interact? There are many dimensions to this interaction. One is how national law influences EU private law (an obvious example being the inspiration that the EU legislator takes from national laws when drafting EU directives). Another is how EU directives and the case law of the CJEU ‘land’ at the national level and influence national courts, legislators and private actors.

Recently two books saw the light that both deal with this national aspect of European private law. The first, edited by Annina H. Persson and Eleonor Kristofferson from Örebro University, deals specifically with the Swedish experience with private law Europeanisation. Although this book also contains contributions about European private law in general, it also contains some interesting accounts of how EU law affects Swedish private law. One example is the 2009 Messner case in which the CJEU ‘invented’ a European principle of unjust enrichment when interpreting EU Directive 97/7 on distance contracts. This sits uneasily with domestic Swedish law that never accepted any such principle. The second book is the latest addition to the well-known Ius Commune Casebooks for the Common Law of Europe. This book, edited by Arthur Hartkamp, Carla Sieburgh and Wouter Devroe and called Cases, Materials and Text on European Law and Private Law essentially deals with the horizontal (‘among individuals’) effects of EU law. It is no surprise that this leads to elaborate attention for in particular the role of the CJEU and of EU directives in setting rights and obligations of people.

 

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Autonomy in Private International Law: Maria Hook on the Choice of Law Contract

 

It is no particular surprise that many see private law as being ultimately about the exercise of private autonomy by individual agents. At the core of private law lies the idea that individuals are allowed to know better than the State or anyone else what suits their needs and interests, and to act accordingly. At the same time, private law balances individual autonomy with countervailing considerations. In recent years, an extensive philosophical debate took place on what is the basis for this autonomy and its consequences for interpersonal relationships. In a recent book published by Bloomsbury/Hart, Maria Hook of the University of Otago applies the idea of autonomy to the field of private international law. In an informative, systematic and highly readable book, she explains that the current law fails to give due regard to the contractual choice of law agreement. Against the current view that choice of law clauses are primarily governed by PIL, Hook argues that these clauses must at least also be seen as falling within the law of contract. This allows her to apply, for example, rules on formation, validity and remedies to the clause, thus providing the reader with an innovative and fresh approach to the topic. The book, that is comparative throughout, thus offers a lot to both European private law and PIL experts.

Readers of the MEPLI blog will get a 20% discount when ordering the book online – use discount code CV7.

 

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‘Till Death Us Do Part’? On the Value of Fixed-term Marriage

 

The divorce rate in most European countries, Australia, Canada and the US ranges between 40 and 50%. This is the main reason why in a recent book psychologist and relation therapist Susan Pease Gadoua and journalist Vicki Larson argue that lifelong marriage is an outdated and unrealistic ideal that leads to ‘blaming, shaming, and sense of failure’ in case the partners are not able to live up to it. Gadoua and Larson therefore propose that the legislator should step away from the one-size-fits-all model of marriage and introduces a ‘starter marriage,’ a marriage that is renewed or terminated after a set period the parties have agreed upon. This fits in with a proposal made by legislators in Mexico City to adopt a temporary marriage contract that allows the spouses to automatically exit their marriage after two years or have their marriage renewed. This would have the clear benefit of not having to go through a painful and expensive divorce, in particular because the marriage contract would have to contain provisions on how to deal with children and property after the initial term has ended.

The rule that marriage is for life is one of those provisions that everyone takes for granted and that has received little attention in the legal literature. The proposals by Gadoua and Larson and of the local legislator in Mexico City prompt us to think through whether lifelong marriage is indeed a good idea. At a time when family relationships are increasingly contractualised, lifelong marriage (wedlock) could perhaps be supplemented with the new type of marriage of wedlease. It will, just as in case of any relationship coming to an end, require protection of the potential children and of the weaker spouse against the financial consequences of the separation, but this does not stand in the way of accepting wedlease as such. Apart from saving the high financial and emotional costs of divorce, its introduction will have the distinct advantage that (future) spouses have to better think through the consequences of their marriage and have to reconsider their commitment at set intervals.

In a paper that will soon be published on SSRN I argue that short-term marriage is indeed a worthwhile experiment. The paper seeks to find the origins of lifelong marriage and then argues that the motives behind this age-old institution are no longer convincing in the present time.

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New MEPLI Book: The Citizen in European Private Law

Two years ago the Faculty of Law at Maastricht University organised a series of events around the European Year of the Citizen. One event was co-organised by MEPLI and devoted to the role of private actors (citizens, consumers and companies) in private law. It is hardly a surprise that these private actors often set their own rules, revert to private enforcement and choose the applicable law. This is a well-known phenomenon in fields such as contract law, consumer law, company law and family law. Until now, however, few attempts have been made to look at these phenomena together with a view to arriving at conclusions that go beyond one specific field. This book, that collects the papers presented at the conference, is a first attempt to fill this gap.

 

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New MEPLI working paper by Jan Smits on The Expanding Circle of Contract Law

People and corporations are increasing held liable in private law for the external effects of their actions, in particular in cases that involve some fundamental aspect of “justice” such as severe violations of labour standards or threats to the environment. These public interests are traditionally guarded by the state, but are now increasingly enforced by private individuals, in particular in cross-border situations where the injustice takes place in a “far-away” country. This contribution, now out as a MEPLI working paper, explores what is the potential of contract law in dealing with this “private law justice across borders.” It asks whether the doctrine of privity of contract should be traded in for an approach that better takes the externalities of contracts into account. It is argued that current contract law is ill-suited to deal with this challenge and should adopt new techniques to expand the circle of people contract law seeks to protect.

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