bluuebunny/crossref_metadata_2025 huggingface dataset:
Alternative Liability Under Belgian Law: Unknown an Thus Unloved? An annotation of the decision of the Supreme Court (the Netherlands) of 9 October 1992
Authors: Geers Inge
Published: April 2022

Abstract. The author examines whether the result obtained in the Dutch DES-case, namely a joint and several liability of the DES manufacturers, could be reached before Belgian courts. As the Belgian civil Code does not contain a rule comparable to article 6.99 of the Dutch civil Code, this seems impossible. Article 1382–1383 C.C. require a certain causal relationship. Consequently, if the damage is due to an unidentified member of a well-defined group, as in the DES-case, the plaintiff will not receive any compensation, because he fails to prove the causal link between the specific fault of a group-member and his own damage. The existing legal presumptions of causation could not relieve the onus of proof weighing on the DES-daughters either, as none of them applies to their specific case. Therefore it is hardly astonishing that in fields where victims are regularly confronted with the problem of an unidentified tortfeasor, such as pollution cases, traffic and hunting accidents, one has searched for alternatives and funds have been created in order to ascertain those victims of a compensation. By analogy with these funds the author proposes to create a guarantee fund intended to indemnify not only the DES-daughters, but all victims of unidentified drugmanufacturers.
The principle of indirect effect of Community law
Authors: Betlem Gerrit
Published: April 2022

Abstract. Whenever there is a conflict between a provision of national law and a rule of a Community directive in a dispute between two private parties, the question arises which law must prevail. Generally speaking, EC directives can have an impact on domestic law under either the doctrine of direct effect or the duty imposed on national courts to construe their domestic law in conformity with the directive. Under current EC case law, it is not possible for one individual to rely on a directly effective provision of a directive as against another private party: there is no horizontal direct effect. However, directives may nevertheless have a decisive impact on the outcome of the dispute through this canon of interpretation: indirect effect. This article reviews ten years of judicial development of the principle of indirect effect. In particular it examines the relationship between direct and indirect effect, the relevance or not of expiry of the period for transposition of the directive into domestic law and the discretion of the national courts to construe their own laws under the requirements of Community law.

Schlüsselwörter: - Europtiisches Gemeinschaftsrecht –Einwirkung von Gemeinschaftscrecht auf Privatrecht – horizontaler direkter Effekt – Verpflichtung, wirkung nationales Recht in Übereinstimmung mit dem Gemeinschaftsrecht auszulegen

Zusammenfassung. Wo immer in einem Rechtsstreit zwischen zwei Parteien ein Konflikt zwischen einer nationalen Vorschrift und der Regelung einer Gemeinschaftsrichtlinie auftritt, stellt sich die Frage, welches Recht vorrangig ist. Allgemeiner ausgedrückt, Richtlinien der europäischen Gemeinschaft können sich auf nationales Recht entweder aufgrund eines direkten Effektes oder im Rahmen der den nationalen Gerichten auferlegten Verpflichtung auswirken, ihr eigenes Recht in Übereinstimmung mit der Richtlinie auszulegen. Nach gegenwärtigem Gemeinschaftsfallrecht ist es für eine Individualperson nicht möglich, sich auf eine direkte Rechtswirkung einer Richtlinie wie gegenüber einer anderen Privatpartei zu verlassen: es gibt keine horizontale direkte Auswirkung. Gleichwohl haben Direktiven durch eine andere Auslegungsmethode nichtsdestoweniger eine entscheidende Bedeutung in Bezug auf das Ergebnis des Streits: Indirekte Auswirkung. Dieser Beitrag betrachtet zehn Jahre juristische Entwicklung des Prinzips der indirekten Auswirkung. Insbesondere werden die Beziehungen zwischen direkter und indirekter Auswirkung, die Relevanz (oder Nicht-Relevanz) des Ablaufs des Zeitraums der Umsetzung der Richtlinie in natinales Recht und die Diskretion natinaler Gerichte untersucht, ihr eigenes Recht unter Berücksichtigung der Forderungen des Gemeinschaftsrechts auszulegen.
Abuse of rights in civil law tradition
Authors: Gambaro Antonio
Published: April 2022

Abstract. The doctrine of abuse of rights has a long history but little future. The jurists who developed the jus commune could draw on Roman sources to support the principle that the exercise of one’s rights could not be relied on to justify intentional harm to another. In mediaeval times this principle was mainly used to prevent unsuitable use of building rights and assist in town planning. The requirement of intention was diluted by reference to numerous presumptions. The Napoleonic code avoided the need to rely on the doctrine by including certain zoning and town criteria within the code, but it was called upon later in the nineteenth century as a way of dealing with conflicting interests in the way land was used and the activities allowed on the land. This use of the doctrine was in turn rendered otiose when the tort provisions of the civil code began to be interpreted in an extensive manner which allowed conflicting interests to be weighed in determining the existence of fault liability. The doctrine of abuse of rights has thereafter played only a restricted role in the French legal system. It has been codified in relation to abuse of procedural rights within the justice system.

The experience of other legal systems is similar. Although the principle prohibiting the abuse of rights was codified in Switzerland, Germany and Italy, these provisions have only rarely been relied on in practice. The need to prove intention is too onerous. Other provisions of the codes, such as the requirement of good faith in §242 BGB have enabled an equitable result to be achieved without resort to the doctrine of abuse of rights. It has also been subsumed within traditional principles such as venire contra factum proprium and unconscionability. Indeed the abuse of right theory is too rigid to provide an adequate resolution of the underlying problem: the balancing of conflicting interests. More flexible approaches have rendered the doctrine largely superfluous.
Court of Justice of the European Communities, Case C-89/91, Shearson Lehman Hutton Inc. v TVB Treuhandgesellschaft für Vermögensverwaltung und Beteiligungen GmbH, judgment of
Authors: Janssens Thomas
Published: April 2022

Abstract. In Shearson Lehman Hutton v TVB (hereinafter “Shearson”), the Court of Justice has clarified the field of application ratione personae of Art. 13 of the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters of 27 September 1968. The Court held that the special rules of jurisdiction on consumer contracts (Section IV of the Brussels Convention) are not applicable to a plaintiff who acts in pursuance of his trade or profession and therefore is not a consumer party to one of the consumer contracts mentioned in Art. 13, par. 1.

Résumé. Dans Shearson Lehman Hutton c./ TVB la Cour de Justice précise le champ d’application ratione personae de l’article 13 de la Convention de Bruxelles sur le compétence et l’exéution des jugements étrangers en matière civile et commercialle du 27 septembre 1968. La Cour juge que les règles spéciales de compétence concernant les contrats conclus par un consommateur (section IV de la Convention de Bruxelles) ne sont pas applicables au demandeur qui agit dans le cadre de son commerce ou de sa profession et n’a donc pas la qualité de consommateur partie au contrat visée par l’article 13, par, 1, même si la créance lui a été cédée par un consommateur.
Introduction to the Special Issue on Property Law
Authors: Van Erp Sjef , van Rhee Remco
Published: April 2022

Traditionally, property law is considered to be an area where unification or even harmonisation is scarcely achievable, given the fundamental disparities between the various legal traditions. Particularly the differences between common law and civil law are often seen as too wide and too deep to overcome. This is what might be called the conventional wisdom. During the conference “Aspects of property law in a comparative and historical perspective”, held in Maastricht on 10 November 2000, the question arose whether this still is the correct view were property law to be analysed from a historically comparative viewpoint.
Feudal Law: the Real Ius Commune of Property in Europe, or: Should We Reintroduce Duplex Dominium?
Authors: Heirbaut Dirk
Published: April 2022

Abstract: Once Europe knew of a “European common law”, the so-called Ius Commune. This old Ius Commune is nowadays considered to be a possible source of inspiration for a future common European Law. But apart from the Law of Obligations, there are few examples of such a new legal order. This is only logical, since the Law of Property of old used to be local and regional, that is, outside the Ius Commune. However, the feudal system of land tenure existed everywhere in Europe, and thus, became part of the Ius Commune. The basic idea of this feudal system was that of divided property. Both the feudal lord and the feudatory were owners of the tenure, both with different rights, though. This theory was quite flexible, and was thus applied to any kind of property. Alas, this idea of divided property disappeared with the demise of the feudal system at around 1800. However, the author is of the opinion that a revival of this idea could prove beneficial for the law. The possibility to combine several variants of property within Europe into a common concept would, beyond doubt, amount to a great improvement in the law of an ever-tighter Europe.
Combating Late Payment in Business Transactions: How a New European Directive Has Failed to Set a Substantial Minimum Standard Regarding National Provisions on Retention of Title
Authors: Milo Michael
Published: April 2022

Abstract: The European Union issued the directive on late payment in business transactions on August 8, 2000, which contains a provision on retention of title clauses. This provision provides for the recognition of simple foreign retention of title clauses in business contracts. In this paper the author discusses this directive with regard to the harmonization of property law within the European Union on the one hand, and to the national retention of title arrangements on the other. The inclusion of an aspect of property law in this directive can be considered a revolutionary development, while at the same time more could have been accomplished in harmonizing the laws regarding retention of title.
Civil and Common Property Law: Caveat Comparator – The Value of Legal Historical-Comparative Analysis
Authors: Van Erp Sjef
Published: April 2022

Abstract: Although civil law and common law show growing convergence in the area of contract and tort law, still a large divergence can be seen in the area of property law. The most important explanation for this divergence is the historical development of these two legal systems. However, as a result of economic integration unification of property law seems to become unavoidable, especially with regard to security interests. In this article property law is analysed from a comparative and historical viewpoint, taking into account the close connection between the law and economic reality.
The Reform of German Tort Law
Authors: Fedtke Jörg
Published: April 2022

Abstract: After a few futile attempts at reforming German law relating to compensation for tortious acts and breach of contract, a bill enacted on April 18, 2000 brought about some major changes. Amongst the key areas of reform are: the introduction of a general claim for non-pecuniary loss in cases of personal injury; the partial exclusion of value-added tax (VAT) in the calculation of material damages; an improvement of the position of children participating in public traffic; a “levelling” of the defences available to train operators as well as keepers of motorised vehicles under strict liability statutes; new rules relating to liabilty for pharmaceutical products; the raise of existing compensation caps (Haftungshöchstgrenzen) in the field of strict liability; and the introduction of liability of court-appointed experts who submit erroneous reports. Not only has the German legislator, by implementing this reform in August 2002, stayed abreast of changes in case law relating to compensation for tortious acts and breach of contract, but it has also fallen into line with general developments of the law in Europe, such as the improved protection of small children and the establishment of an express claim for non-pecuniary loss. However, the legal basis for a general right of personality has remained unchanged; in this context, a proposal by the Bundesrat to include such a right expressis verbis in the new § 847 BGB has not been adopted. The same holds true for the possibility of the principal to escape liability for his assistants, which is even more important against the background of other European jurisdictions. To lawyers with a common law background, who are accustomed to the gradual development of their case law, this history of German tort law offers an interesting perspective: it demonstrates the frictions involved in the interplay between legislative “maintainance” of an entire Code on the one hand, and development of the law by Courts on the other.
Company Law in Member States against the Background of Legal Harmonisation and Competition between Legal Systems
Authors: Ebers Martin
Published: April 2022

Abstract: The following contribution deals with European company law and is based on the “Überseering” judgment of the ECJ of November 2002 (which followed the cases “Daily Mail” and “Centros”), the Statute for the European Society and the pending Statute for the European Co-operative Society. The paper presents the thesis that European company law mainly focuses on the competition between different legal systems and company forms rather than harmonisation. The article discusses the problems caused by such competition and proposes some solutions.
Unification of the European Law of Obligations and Codification of Catalan Civil Law
Authors: Espiau Espiau Santiago
Published: April 2022

Abstract: The Spanish Constitution grants Catalonia, one of the Spanish so-called Autonomous Communities, power to legislate on private law. The power is not unlimited, being the “bases of contractual obligations” one of the main restrictions. Nowadays, the Catalan Department of Justice fosters the enactment of a Civil Code for Catalonia. Until now, the Family Code and the Succession Code, a range of statutes and the First Act of the Catalan Civil Code have been passed. This paper analyses the Catalan codification process within the framework of the European harmonisation of private law. The author stresses the necessity of taking into account the developments of the new ius commune europaneum and points out the possible Catalan contribution to the process of harmonisation.
ECJ, 24 January 2002, Case C-372/99, Commission v. Italian Republic Collective action under the Unfair Contract Terms Directive
Authors: Loos Marco B.M.
Published: April 2022

Abstract: Case C-372/99 concerns an infringement procedure under Article 226 EC against the Italian Republic (hereinafter also referred to as: Italy) for failing to adopt the necessary measures to enable (consumer) organisations to prevent the use of unfair contract terms. In its ruling, the ECJ reiterated its decision in the famous Océano-case and further developed the idea that the unfairness-test in Article 3 of the Directive on Unfair Contract Terms is to be applied ex officio. Finally, it clarified that collective action may not only be undertaken against unfair contract terms that already are being used in practice, but also to prevent the future use of unfair contract terms that not have been made use of just yet.
The Protocol on Matters Specific to Space Assets
Authors: Ribbelink Olivier M.
Published: April 2022

Abstract: The Protocol on Matters Specific to Space Assets differs in several aspects from the other Protocols. It deals to a large extent with ‘assets’ that are permanently out of reach, and therefore includes elaborated ‘associated rights’ (inter alia permits, licences, and authorizations issued by states or international organizations). Seizure of rights and/or control by a creditor could cause friction with respect to state sovereignty. Furthermore, although thus far no conflict with existing international space law has been identified, the application of the Protocol could have consequences for the obligation of the launching state to retain jurisdiction and control, as well as for the international liability of the launching state. It is suggested that both matters can and should be resolved through national space legislation. Finally, the proposed Supervisory Authority is not an intergovernmental organization, but a subsidiary organ of the General Assembly of the United Nations.
Should we Ratify the Convention on International Interests in Mobile Equipment and the Air Equipment Protocol? Some Remarks from a Dutch Point of View
Authors: Salomons Arthur
Published: April 2022

Abstract: This article addresses the desirability of ratification of the Convention on international interests in mobile equipment and the Air Equipment Protocol from a Dutch point of view. In doing so, the author only speaks out on the legal aspects of ratification, not paying attention to the economic benefits that the drafters of the Convention predict. The main obstacle to ratification seems to be the rather fundamental differences between the provisions on default in the CIME and their counterparts in the Dutch Civil Code. These differences, however, do not validate non-ratification of the CIME. In the first place because the Dutch provisions on non-performance and default have themselves been heavily criticized in Dutch legal literature and are far too complex to be practical. In the second place the CIME allows the Dutch Government to make adjustments by means of declarations to be made by the Government upon ratification. Finally, there are important similarities between the CIME and the Principles of European Contract Law, whose purpose is to serve as a ‘model for judicial and legislative development of contract law’ and which indeed have already begun to function as such. The kinship between CIME and PECL in itself therefore advocates ratification. These three considerations outweigh all the reservations and objections which we may have concerning the rather hard and fast, creditor-oriented provisions in the CIME.
The Cape Town Convention: a Model for a European System of Security Interests Registration?
Authors: Van Erp Sjef
Published: April 2022

Abstract: The Cape Town Convention introduces a worldwide and computerized registration system of security interests. This will be a first-in-time system of ‘notice filing’ and it will be object based. For different types of mobile equipment different registries will be established. The international registration system to be created under the Cape Town Convention is analyzed from the perspective of internationally accepted guiding information (registration) principles: publicity, efficiency, sufficiency, accuracy, simplicity and uniformity. Finally, the question is examined whether notice filing can be implemented by civil law systems which have a system of deeds filling.
Fairchild v. Glenhaven Funeral Services Ltd and others, Fox v. Spousal (Midlands) Ltd, Matthews v. Associated Portland Cement Manufacturers (1978) Ltd and others
Authors: Ruda Albert , Tamasauskas Andreas , Hattenhauer Christian , Christodoulou Kostas N.
Published: April 2022

Abstract: This case concerns three appeals, heard together, which resulted from actions brought by employees who had developed the mesothelioma disease as a result of being exposed at work to asbestos dust. In these actions, the claimants sought compensation against employers who had exposed them to substantial inhalation of asbestos dust or fibres. At first instance, two of the claims were dismissed on the basis that the claimants could not establish, on a balance of probabilities, which of the defendants had exposed the employee to the asbestos dust which caused the disease. In the third case the judge found that, by exposing the claimant to asbestos fibres, the defendant had materially contributed to, and thus caused, the occurrence of mesothelioma. He accordingly apportioned liability between the defendants. The claimants in the first two actions, and the defendants in the third, appealed. Before the Court of Appeal it was common ground that (a) the mechanism initiating the genetic process which culminated in mesothelioma was unknown, (b) the factor triggering off the disease might, with an equal degree of probability, be a single, a few or many fibres, and (c) the condition, once caused, was not aggravated by further exposure – however, the greater the quantity of fibres inhaled the greater the risk of developing the disease. This caused the Court of Appeal to conclude that, since mesothelioma was an indivisible disease triggered on a single unidentifiable occasion by one or more fibres on a single unidentifiable occasion, it could not be proved on a balance of probabilities which period of exposure had caused the disease. The Court accordingly held that the claimant in each case had failed to establish causation against any of the defendants. It accordingly dismissed the appeals in the first two cases and allowed the appeal in the third case.

The claimants appealed to The House of Lords, which overturned these decisions. The Law Lords held that, where an employee had been exposed by different defendants, during different periods of employment, to inhalation of asbestos dust, in breach of each defendant’s duty to protect him from the risk of contracting mesothelioma, and where that risk had arisen but, in current medical knowledge, the onset of the disease could not be attributed to any particular or cumulative wrongful exposure, a modified approach to proof of causation was justified. In such cases, evidence that each defendant’s wrongdoing had materially increased the risk of contracting the disease was sufficient to satisfy the causal requirements for his liability. Accordingly, applying that approach and in the circumstances of each case, the claimants could prove, on a balance of probabilities, the required causal connection to establish the defendants’ liability.
Danny Busch, Ewoud H. Hondius, Hugo J. van Kooten, Harriët N. Schelhaas, Wendy M. Schrama (eds), The Principles of European Contract Law and Dutch Law – A Commentary, Ars Aequi Libri
Authors: Janssen André
Published: April 2022

In this book, a number of Dutch authors (nineteen altogether) have attempted to compare the Principles of European Contract Law, Parts I and II (edited by Ole Lando und Hugh Beale, Kluwer International, The Hague/London/Boston, 2000) with the corresponding rules of the Dutch Burgerlijk Wetboek and provide a commentary. The attempt to draw a comparison with Dutch law is appealing for two reasons. First, the Burgerlijk Wetboek is amongst the most recent civil law codes in Europe: it’s most important parts only entered into force in 1992. Comprehensive legal comparisons have been undertaken throughout its forty-year genesis. The second and closely related reason is that it is generally no longer possible to categorize the new Dutch Burgerlijk Wetboek under the ‘familiar’ legal traditions. Whereas the old Dutch Burgerlijk Wetboek was strongly influenced by French law, the new law reflects various elements of Germanic and Anglo-Saxon legal traditions. It is often said that the Dutch codification is stuck ‘in the Channel’ between the three great legal traditions in Europe. This is what makes it so interesting, as a potential model for a European Code on Contract Law and as a subject of comparison with the European Principles which are considered ‘modern’.
Hof van cassatie van België / Cour de cassation de Belgique, 31 January 2002 - The effect of avoidance in bankruptcy as against a third party acquirer in good faith
Authors: Storme Matthias E. , Lurger Brigitta , Salomons Arthur , González Pacanowska Isabel
Published: April 2022

The case decided by the Belgian Hof van cassatie/Cour de cassation on 31 January 2002 concerns the effects of avoidance in bankruptcy of an impeachable transaction by the bankrupt debtor disposing of assets, and especially the conflict with a subsequent acquirer of these assets. The bankrupt debtor (Transport de Koning) had transferred shortly before bankruptcy a trailer in lieu of payment to its creditor Diemotrans. Diemotrans had sold and delivered the trailer shortly after bankruptcy to a subsequent buyer in good faith, the LLC André. The insolvency administrator (Driessen) asked the court for a declaration of ineffectiveness of the transaction vis-à-vis the creditors and a condemnation of LLC Andre to restitute the trailer to the bankrupt estate. The Court decided that the claim of the insolvency administrator fails insofar as the conditions for bona fide acquisition by LLC Andre are met (actual possession and good faith).
Recent case law/Arrêts récents/Aktuelle Gerichtsentscheidungen
Authors: van Schaick Bert , Ruda Albert , Østergaard Kim , Sagaert Vincent , Dacoronia Eugenia , Caterina Raffaele , Petz Thomas , Tvarnø Christina , Tamasauskas Andreas , Cairns Walter , Pironon Valérie , Hünert Matthias , Shúilleabháin Máire Ní , Mota Pinto Paulo , MacGregor Laura , Ribot Igualada Jordi , Hahn Anne-Catherine
Published: April 2022

In this section authors from various European countries report the recent case law in their jurisdiction in the field of private patrimonial law, that is decisions on the law of property, juridical acts, the law of obligations, contract law and prescription. The ERPL started this section in 2003. The section aims to give readers an overview of what is happening in the most recent European case law. We have asked the national reporters to report the juridical essence of the decisions given by the highest courts in their country. These national reports are integrated in one general report that arranges the decisions by subject, so that readers can easily find out whether decisions on their special interest were given in any European jurisdiction or whether decisions on one subject have been taken in various European jurisdictions. In principle, this section does not relate the facts of the decision, nor the personal opinion of the reporter. One can find discussions on the most important decisions of European courts in ERPL?s case note section.

The recent case law section gives overviews of decisions published in periods of four months. The period of January-April is reported in the fourth issue, the period from May to August is published in the sixth issue, the period from September to December is reported in the second issue of the next year. In this issue, we report decisions of high courts taken from April to August 2004. As yet, some decisions can only be found on the internet. Therefore, at the end of this section we have listed web sites where one can find European high court decisions. The Board of Editors of the ERPL wants to thank the national contributors to this report, who worked very hard to have their reports ready in time.
European Private Law - Survey 2002-2004
Authors: Hondius Ewoud H.
Published: April 2022

Over the past four years, this Review has published Chronicles of European Private Law over the periods 1998-2000 and 2000-2002. The present Chroni­cle purports to provide an update to these surveys until the summer of 2004. Like its predecessors, it is divided into four Parts: 1. Public Measures at Harmonization; 2. Private Efforts at Harmonization; 3. The Various Parts of Private Law; 4. Legal Literature on a Nation-by-Nation Basis. For reasons of space, civil procedure, private international law and specific contracts such as sale of goods and insurance will not be covered, while company law, commercial law and consumer law will only be dealt with in a very concise way.
A.R. Buck, John McLaren and Nancy E. Wright, Land and Freedom. Law, Property Rights and the British Diaspora
Authors: Milo Michael
Published: April 2022

This book deals with the clash between the claims of western settlers for land and those of the indigenous inhabitants of Australia, New Zealand, Canada and the USA. It is about property law, particularly property rights in land, and in the diversity of its analyses, it skilfully shows that property rights are subject to ideological conceptions as to how society should be organized. It is at the same time also an historic research into the developments about the thinking on property rights in land. Law, political science and historic research form an excellent amalgam. This book is indeed very interesting.
OGH, 6.12.2001 - Wirkliche Übergabe bei Schenkung auch durch Besitzkonstitut?
Authors: van Schaick Bert , Persson Annina H.
Published: April 2022

A plusieurs reprises, pendant une période d?environ vingt ans avant sa mort, Mme F. a exigé du demandeur, chaque fois que celui?ci lui rendait visite, qu?il emporte avec lui un bien mobilier de valeur qu?elle déclarait vouloir lui donner. Mais de son côté le demandeur lui proposait de garder ce bien chez elle aussi longtemps qu?elle vivrait. Dans un premier testament de Mme F., mention fut faite de cette donation. Mais celle?ci n?ayant pas été reprise dans le dernier testament de la défunte, il s?en est suivi un litige sur la réalité de cette donation entre le demandeur et le défendeur. Dans l?arrêt commenté, l?OGH a déclaré que le demandeur était devenu propriétaire et que le défendeur, qui avait vendu le bien dont il n?était pas le possesseur de bonne foi, était tenu de l?indemniser.
Recent case law/Arrêts récents/Aktuelle Gerichtsentscheidungen
Authors: van Schaick Bert , Ruda Albert , Østergaard Kim , Sagaert Vincent , Dacoronia Eugenia , Caterina Raffaele , Martín-Casals Miquel , Petz Thomas , Tvarnø Christina , Tamasauskas Andreas , Cairns Walter , Pironon Valérie , Hünert Matthias , Shúilleabháin Máire Ní , Mota Pinto Paulo , MacGregor Laura , Ribot Igualada Jordi
Published: April 2022

In this section authors from various European countries report the recent case law in their jurisdiction in the field of private patrimonial law, that is decisions on the law of property, juridical acts, the law of obligations, contract law and prescription. The ERPL started this section in 2003. The section aims to give readers an overview of what is happening in the most recent European case law. We have asked the national reporters to report the juridical essence of the decisions given by the highest courts in their country. These national reports are integrated in one general report that arranges the decisions by subject, so that readers can easily find out whether decisions on their special interest were given in any European jurisdiction or whether decisions on one subject have been taken in various European jurisdictions. In principle, this section does not relate the facts of the decision, nor the personal opinion of the reporter. One can find discussions of the most important decisions of European courts in ERPL?s case note section.
EuGH, 30.9.2003, C-224/01, Gerhard Köbler v. Republik Österreich - Liability of a Member State for Damage Caused to Individuals by Infringements of Comm
Authors: Wissink Mark , Cairns Walter
Published: April 2022

Mr Köbler has been employed since 1 March 1986 under a public-law contract with the Austrian State in the capacity of ordinary university professor in Innsbruck (Austria). He applied for the special length-of-service increment for university professors. He claimed that, although he had not completed 15 years? service as a professor at Austrian universities, he had completed the requisite length of service if the duration of his service in universities of other Member States of the European Community were taken into consideration. He claimed that the condition of completion of 15 years service solely in Austrian universities amounted to indirect discrimination unjustified under Community law.

The Verwaltungsgerichtshof (Supreme Administrative Court) referred to the Court a request for a preliminary ruling, which it later withdrew. It also dismissed Mr Köbler?s application on the ground that the special length-of-service increment was a loyalty bonus which objectively justified a derogation from the Community law provisions on freedom of movement for workers. Then Mr Köbler brought an action for a declaration of liability against the Republic of Austria for breach of a provision of Community law by a judgment of the Verwaltungsgerichtshof, Austria before the Landesgericht für Zivilrechtssachen Wien (Regional Civil Court, Vienna), which referred to the Court for a preliminary ruling several questions.

The Court held that the principle that Member States are obliged to make good damage caused to individuals by infringements of Community law for which they are responsible is also applicable where the alleged infringement stems from a decision of a court adjudicating at last instance where the rule of Community law infringed is intended to confer rights on individuals, the breach is sufficiently serious and there is a direct causal link between that breach and the loss or damage sustained by the injured parties. In order to determine whether the infringement is sufficiently serious when the infringement at issue stems from such a decision, the competent national court, taking into account the specific nature of the judicial function, must determine whether that infringement is manifest.

Secondly, the Court held that a measure such as the special length-of-service increment under Austrian law results in an obstacle to freedom of movement for workers which cannot be justified by a pressing public-interest reason. Finally, the Court decided that an infringement of Community law, such as that stemming in the circumstances of the main proceedings from the judgment of the Verwaltungsgerichtshof, does not have the requisite manifest character for liability under Community law to be incurred by a Member State for a decision of one of its courts adjudicating at last instance.
Recent Case Law
Authors: van Schaick Bert , Ruda Albert , Østergaard Kim , Sagaert Vincent , Dacoronia Eugenia , Caterina Raffaele , Petz Thomas , Tvarnø Christina , Tamasauskas Andreas , Cairns Walter , Pironon Valérie , Hünert Matthias , Shúilleabháin Máire Ní , Mota Pinto Paulo , Ribot Igualada Jordi , Black Gillian
Published: April 2022

In this section authors from various European countries report the recent case law in their jurisdiction in the field of private patrimonial law, that is decisions on the law of property, juridical acts, the law of obligations, contract law and prescription. The ERPL started this section in 2003. The section aims to give readers an overview of what is happening in the most recent European case law. We have asked the national reporters to report the juridical essence of the decisions given by the highest courts in their country. These national reports are integrated in one general report that arranges the decisions by subject, so that readers can easily find out whether decisions on their special interest were given in any European jurisdiction or whether decisions on one subject have been taken in various European jurisdictions. In principle, this section does not relate the facts of the decision, nor the personal opinion of the reporter. One can find discussions on the most important decisions of European courts in ERPL?s case note section.

The recent case law section gives overviews of decisions published in periods of four months. The period of January-April is published in the fourth issue, the period from May to August is published in the sixth issue, the period from September to December is published in the second issue of the next year. In this issue, we publish decisions of high courts taken from January to April 2005. As yet, some decisions can only be found on the internet. Therefore, at the end of this section we have listed web sites where one can find European high court decisions.
The Cape Town Convention on Interests in Mobile Equipment as Applied to Aircraft: Are Lenders Better Off Under the Geneva Convention?
Authors: Mauri Giulia
Published: April 2022

In November 2001, several countries signed, in Cape Town, the Convention on Interests in Mobile Equipment and its Aircraft Specific Protocol. The declared aim of the Convention is the introduction of more transparency and predictability in aviation finance deals. Already the Geneva convention, signed back in 1948, tried to address the concerns of the international financial community. However, this convention is now generally considered to be insufficient and not adapted to new financing instruments. In order to gain widespread approval, the Cape Town Convention provides for an opt-out system whereby Contracting States can decide not to apply or how to apply certain provisions of the Convention. Since these opt-out provisions relate to core area of the Convention, it is legitimate to ask whether this system, that has on the one hand granted the Convention general approval, would not, in the end, jeopardize its scope. Would then the lenders be better off under the existing system ? After having analyzed the core opt-out provisions and having tried to evaluate their impact on the scope of the Convention, the author concludes that the overall project of the Convention brings about more predictability and transparency in aviation finance and that the opt-out system is a ?necessary evil to obtain a higher good?.
Contractual Control and Contractual Review in England and France
Authors: Whittaker Simon
Published: April 2022

In this article, the author looks at two very different techniques for the control of the terms on which contracts are made. The first technique consists of the insertion of contract terms into the contract directly by law or by standard conditions set by public authorities or, less directly, as a result of a regulatory regime set up for the conduct of the business in the course of which the contracts are made. The second technique ? familiar to all European lawyers from Article 7 of the EC Directive on unfair terms in consumer contracts ? consists of the policing of unfair terms by public or private bodies taking preventative measures, whether judicial or extra-judicial. The author then looks at the interaction between these two types of control in the exclusion from judicial review by Article 1(2) of the Directive of contract terms ?which reflect mandatory statutory or regulatory provisions?. These issues are discussed from the point of view of English and of French law, examining their different choices in implementing the EC Directive, and contrasting the different mixtures of public and private law ways of thinking which are revealed.
Information and Formal Requirements in EC Private Law
Authors: Mankowski Peter
Published: April 2022

Modern Community law utilises duties to inform as instruments of consumer protection to a great extent. Rather often such duties appear as formal requirements the spectre of which is not all too wide. The business has to guarantee that the information is provided in documented form in order to overcome informational asymmetry. Furthermore, a specific array of sanctions for non-compliance has developed in the legal orders of the Member States. The sanctions traditionally stemming from non-compliance with formal requirements do not apply regularly whereas novel sanctions prevail which mainly instrumentalize the time limit applicable to the consumer?s right of withdrawal. Additionally, damages or alterations the burden of proof could become material.
Registration of Interests as a Formality of Contracts: Comparative Remarks on Land Registers within the Frame of European Private Law
Authors: Cámara-Lapuente Sergio
Published: April 2022

This paper analyses the existing divergence between the systems of land registers in the Member States of the European Union and its impact in a partially harmonized field as European contract law. Taking as a starting point the notion of the registration as an additional formality required to gain full effectiveness of the contract before third parties, the acquis communautaire is reviewed while looking for some rules that deal with rights in rem that may be registered (i.e. reservation of title, timesharing) with land contracts or with mortgaged credits. From a comparative law approach several problems are studied that have to be tackled by all the registration systems (like the role of registration in the transfer of property, the contractual form entering the Register, the registration gap). The idea of computerization of registers as a possible path towards convergence is also explored, taking into account the patterns the English e-conveyance and e-registration, as designed by LRA 2002, the EU Eulis project and the International Register of the unidroit Convention of Cape Town of 2001 on international securities in mobile equipment. Finally, the possibilities for a harmonization of the existing registration systems and the present convergence features are evaluated.
Precontractual Duties and Conclusion of Contract in European Law
Authors: Schulze Reiner
Published: April 2022

For the future development of European contract law, one can extract from existing Community law not only fundamental principles like freedom of contract, non-discrimination on grounds of race, ethnic origin or gender and the protection of contractual parity in situations of structural imbalance. Moreover, the underlying principles of contract law provisions of Community law also form the basis for a set of rules for precontractual duties and formation of contract, which in some respects have innovative features in comparison with the traditional laws of most member states, for example in respect of information duties, the binding effect of precontractual statements and the rights of withdrawal. The planned Common Frame of Reference for European contract law will thus be able to build both on common traditions of the member states and on the autonomous principles of the Acquis communautaire.
Recent case law
Authors: van Schaick Bert , Ruda Albert , Østergaard Kim , Sagaert Vincent , Dacoronia Eugenia , Caterina Raffaele , MacDonald Ross , Petz Thomas , Tvarnø Christina , Tamasauskas Andreas , Cairns Walter , Pironon Valérie , Hünert Matthias , Shúilleabháin Máire Ní , Mota Pinto Paulo , Ribot Igualada Jordi , Black Gillian
Published: April 2022

In this section authors from various European countries report the recent case law in their jurisdiction in the field of private patrimonial law, that is decisions on the law of property, juridical acts, the law of obligations, contract law and prescription. The ERPL started this section in 2003. The section aims to give readers an overview of what is happening in the most recent European case law. We have asked the national reporters to report the juridical essence of the decisions given by the highest courts in their country. These national reports are integrated in one general report that arranges the decisions by subject, so that readers can easily find out whether decisions on their special interest were given in any European jurisdiction or whether decisions on one subject have been taken in various European jurisdictions. In principle, this section does not relate the facts of the decision, nor the personal opinion of the reporter. Discussions on the most important decisions of European courts can be found in ERPL?s case note section.

The recent case law section gives overviews of decisions published in periods of four months. The period of January-April is published in the fourth issue, the period from May to August is published in the sixth issue, the period from September to December is published in the second issue of the next year. In this issue, we publish decisions of high courts taken from May to August 2005. As yet, some decisions can only be found on the internet. Therefore, at the end of this section we have listed web sites where one can find European high court decisions.

The Board of Editors of the ERPL wants to thank the national contributors to this report, who worked very hard to have their reports ready in time. Ross Macdonald from Dundee University (Scotland) has edited the national reports.
Zur Sprache gebracht: Rechtsvereinheitlichung in Europa
Authors: Glanert Simone
Published: April 2022

The willed interaction of laws in Europe entails an interaction of languages. Yet, the defenders of uniformization of laws ignore the linguistic stakes in a way that can only summon the traductologist. Given his epistemic assumptions, the latter is however led to react in a way that lawyers will readily find subversive. Sensitive to the fact that law is carried by language, the traductologist explains how lawyers account neither for language?s persistence nor for its transience. For these two admittedly paradoxical reasons, the traductologist argues that lawyers largely underestimate the impact of language on the ongoing process of uniformization of laws. Undoubtedly, the traductologist?s reaction to the uniformization agenda stands in contrast to the translator?s traditional image, which is that of a servant or mediator. But the translator has been invisible long enough and should now be disposed to criticize those normative texts that imply a linguistic diversity and yet postulate the univocity of meaning. Through his work, the traductologist emphasizes the immense value of interdisciplinarity, which alone permits a more sensitive understanding of the implications of uniformization of law.
Remedies for Wrongdoing - The Measure of Recovery
Authors: Linssen Jacques G.A.
Published: April 2022

Especially in cases where somebody has received a benefit at the expense of another party without the latter having suffered, or being able to prove, damage, we can see that the law of damages with its focus on compensation does not offer sufficient protection to the owner who is entitled to use, exercise or exploit his rights undisturbed. Extending the scope of the law of damages by creating obligations to surrender the benefit under the heading of the law of damages would lead to results that can classified as fictions or that may lead to a departure from the compensation character of the law of damages. In this context, the institute of unjust enrichment may, at times, offer a way out. The author examines this question, and its dogmatic implications, from the point of view of Dutch, English, French and German law.