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Workshop 9 "Family and Credit": NON-LEGISLATIVE HARMONISATION: PROTECTION FROM UNFAIR SURETYSHIPS. Background Paper by Aurelia Colombi Ciacchi

The debate on the creation of a common contract law for Europe has concentrated so far predominantly on legislative harmonisation. With “legislative harmonisation” this paper means not only legislation in the strict sense, but also non-binding, optional instruments which are drafted in the form of model laws, no matter whether they are issued by public bodies or private entities. Non-legislative instruments of harmonisation have found some consideration in the Commission’s communications on European contract law, but only with regard to voluntary, non-authoritative measures, such as the approximation of standard contract terms in the business practice.

This paper will concentrate instead on the major authoritative system of non-legislative harmonisation: judicial governance. It starts from the assumption that harmonised written legal provisions are neither necessary nor sufficient to assure equally effective protection of the same basic interests in different legal systems. They are not necessary, because the same degree of protection of a certain interest can be achieved by applying the most different legislative provisions or case-law doctrines. This is shown by comparative law studies based on a factual approach, such as the Trento project “The Common Core of European Private Law”.
They are not sufficient, because even totally uniform rules can lead in their application to different degrees of protection from country to country, according to each different system of remedies and courts practice. A more effective and sensitive way of harmonising the standards of protection of certain basic interests of European citizens could be convergence in the case-law of the Member States. It could be more effective because the intensity of protection of a certain right depends primarily on the law-in-action, not the law-in-books. It could be more sensitive because case-law convergence operates even in a context of greatest diversity of legal cultures. All that matters is that the courts of different European States achieve similar results in the same cases, regardless of which norms, doctrines or procedures they apply in order to come to this end. To illustrate how the standards of protection in European contract law could be approximated via case-law convergence, this paper will refer to one specific example: the protection of non-professional guarantors from unfair suretyships.

(read the full paper attached below)

ID: 37219
Author(s): iff
Publication date: 28/04/06

Created: 13/04/06. Last changed: 19/05/06.
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