Scope

Narrowing the focus: patrimonial law

As a matter of judgment, it has to be recognised that certain areas of private law seem more likely than others to be enveloped by considerations of policy or social values which will vary relatively markedly between individual jurisdictions. Based on the differing traditions, politics and social mores of nations stemming from the history of their constituent communities, some areas of the law will be relatively more 'entrenched' in national specifics than others. Areas of the law which might be singled out here include land law, family law, the law of succession and employment law. It would make little sense for the Study Group to commence its work by examining these areas of the law where the distinct legal cultures are likely to be relatively more entrenched in their heterogeneity. If it should prove impossible to draft a restatement of shared legal principles in areas of the law thought to be less divergent - offering similar solutions to comparable legal problems - then other areas of private law which are apparently more diverse still will hardly bear greater fruit. As a first step, attention must be concentrated on those areas of the law which are less likely to bear the dominating imprint of diverse social and political judgments.

Defining patrimonial law

For these reasons the Study Group is confining its focus within private law to what may be described as core patrimonial law. A related reason for doing so is the context of the European internal market. In so far the principles might at some stage come to serve as the basis for legislative measures harmonising aspects of private law in the EU, it makes sense to concentrate on those areas which are most relevant to business activity - be it to facilitate legal transactions or to provide redress when they misfire. The exact boundaries of this sub-set of private law have yet to be fully finalised by the Study Group, but it is envisaged that in its completed form the restatement will contain articles and accompanying commentary on at least substantial parts of the following areas of law:

1. the law of obligations:
i. the general law of contracts
ii. the special law of particular contracts
iii. non-contractual obligations
2. the law of moveable property

The general law of contracts

As regards the general law of contracts, the Study Group will build on the work accomplished by the Commission on European Contract Law (the Lando Commission). The Study Group has benefited from a substantial overlap with the membership of that Commission.